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Court of Criminal Appeal 27 February 2019

Tompkins v R

[2019] NSWCCA 37

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL NEED TO RE SENTENCE

Citation: Tompkins v R [2019] NSWCCA 37
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2019
Judges: Hoeben CJ at CL, Schmidt J, Adamson J

Background

The applicant pleaded guilty in the Local Court to one charge of armed robbery and one charge of attempted aggravated taking of a motor vehicle with assault. Both offences were committed in early 2016, about one month after the applicant had been released on parole for an earlier robbery in company offence. Following his arrest in March 2016, the State Parole Authority revoked his parole, leaving him to serve a balance of approximately 23 months.

The applicant entered his guilty pleas on 17 November 2016 and was committed to the District Court for sentencing. Through a combination of court availability and a logistical failure involving the preparation of a forensic psychiatric report (neither of which was attributable to the applicant), the sentencing hearing did not proceed until 21 November 2017, more than a year later. By that date, the applicant had served approximately 20 of the 23 months remaining on his parole balance.

In the District Court, Judge King SC imposed an aggregate sentence of eight years imprisonment with a non-parole period of five years, commencing on the day of sentencing: 21 November 2017. The applicant sought leave to appeal that sentence on two grounds.

  • Whether the sentencing judge erred in his approach to the principle of totality, given that the applicant was already serving the balance of a revoked parole when the new sentences were imposed.
  • Whether the sentencing judge erred by fixing the commencement date of the aggregate sentence as the date of sentencing rather than an earlier date, in circumstances where there had been significant delay in proceedings through no fault of the applicant.

Decision

On the totality ground, the Court of Criminal Appeal found no error. The sentencing judge had found special circumstances and set the non-parole period at 62.5 per cent of the head sentence, which the Court accepted reflected an adequate consideration of totality in the circumstances.

On the commencement date ground, the Court found error. A significant delay of more than one year had elapsed between the applicant's guilty pleas and the sentencing hearing, and that delay was not attributable to the applicant in any way. The Court noted that the applicant's solicitor had told the sentencing court the applicant was "not disadvantaged" by the adjournment, but the Court found this was incorrect and that no proper advice had been given to the applicant about the real disadvantage flowing from delay.

The sentencing judge had not addressed the effect of delay when determining the commencement date and had given no reasons indicating he had turned his mind to backdating. The Court held, applying the principles in White v R [2016] NSWCCA 190, that the failure to consider backdating in this context caused the sentencing discretion to miscarry. The absence of reasons on this issue led to the conclusion that the matter had not been taken into account, or that there was a significant risk it had not been.

The Court set aside the original sentence and resentenced the applicant. All judges agreed the sentence should be backdated to 21 May 2017, though their precise reasoning differed slightly. Hoeben CJ at CL grounded the backdating in an estimate of when sentencing would likely have occurred but for the delay. Adamson J agreed with the outcome but based her reasoning on the need for greater concurrency between the parole balance and the new sentence, rather than on any estimate of when the hearing would have been held.

Orders Made

• The sentence must be set aside
• Re-sentence to be imposed as proposed by Hoeben CJ at CL
• The re-sentence is to be back-dated to 21 May 2017

Key Takeaways

  • Where significant delay occurs between a guilty plea and sentencing through no fault of the offender, the sentencing court is required to consider backdating the commencement date of the sentence and to record that consideration in its reasons.
  • A sentencing judge's failure to mention the effect of delay on the commencement date will, in the absence of other indicators, support an inference that the matter was not taken into account, or that there is a significant risk it was not.
  • Representations by a legal representative that the offender is "not disadvantaged" by a lengthy adjournment do not absolve the sentencing court of the obligation to turn its mind to backdating, particularly where the offender may not have been properly advised.
  • The Court of Criminal Appeal confirmed that White v R [2016] NSWCCA 190 establishes a clear obligation to consider backdating in delay cases, and that obligation is not so well-known as to be assumed satisfied without express treatment in the sentencing judgment.
  • Under the totality principle, a finding of special circumstances resulting in a reduced non-parole period ratio may, depending on the circumstances, constitute a sufficient adjustment to account for an offender already serving an existing sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154C(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47

Cases
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- R v Moffatt (1990) 20 NSWLR 114
- Warwick v R [2016] NSWCCA 183
- White v R [2016] NSWCCA 190; 261 A Crim R 302
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460