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Court of Criminal Appeal 19 June 2020

CM v R

[2020] NSWCCA 136

DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE ACCUMULATION STATUTORY RATIO BETWEEN PAROLE AND NON PAROLE PERIOD SPECIAL CIRCUMSTANCES

Citation: CM v R [2020] NSWCCA 136
Court: NSW Court of Criminal Appeal
Date: 19 June 2020
Judges: Payne JA, Beech-Jones J, N Adams J

Background

The appellant pleaded guilty in the District Court to breaking into and entering a dwelling house and committing a serious indictable offence, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The offence occurred on 31 August 2018, when the appellant was on day release from the Compulsory Drug Treatment Correctional Centre at Parklea. Instead of attending a Narcotics Anonymous meeting as required, he entered a residential apartment in Sydney's CBD and stole a number of items including shoes, a watch, and various foreign currencies.

At the time of sentencing, the appellant was already serving the balance of a prior four-year aggregate sentence, with a non-parole period that had expired on 6 November 2018. The sentencing judge (Weber SC DCJ) backdated the new sentence to commence from 6 November 2018, effectively accumulating it upon the earlier sentence. The judge imposed a head sentence of three years with a non-parole period of two years and three months, which maintained the standard 75% statutory ratio on its face.

However, because of the accumulation on the prior sentence, the "effective" non-parole period across both sentences was five years and three months out of an "effective" total term of six years. This produced an effective ratio of 87.5% of the total term to be served in custody, rather than the standard 75%. The appellant sought leave to appeal on the grounds that the sentencing judge had failed to consider the totality of the effective sentence and had failed to make a finding of special circumstances.

  • Whether the sentencing judge erred by failing to consider the totality of the effective accumulated sentence, given the backdated commencement date
  • Whether the sentencing judge erred by failing to consider special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which would have allowed the balance of the sentence to exceed one-third of the non-parole period
  • What orders the Court of Criminal Appeal should make upon re-exercising the sentencing discretion, given the practical constraints created by the backdated sentence

Decision

The Crown conceded error, and the Court accepted that concession. N Adams J, writing the primary judgment (with Payne JA and Beech-Jones J agreeing), found that the sentencing judge had not been alerted to the effect the backdated commencement date would have on the effective ratio between non-parole period and head sentence across the accumulated sentences. The Court was satisfied the issue had simply been overlooked, rather than deliberately adopted. An error in the House v The King sense was established.

On the question of special circumstances, the appellant's counsel had made a brief submission at sentence that special circumstances existed based on the appellant's mental health and drug use. Despite this submission, no finding of special circumstances was made, and the ratio remained at 75% for the new sentence alone. The practical effect of accumulation meant the overall ratio rose to 87.5%, a result the Court was not satisfied the sentencing judge had intended.

Once error was established, the Court was required by Kentwell v The Queen to re-exercise the sentencing discretion afresh, rather than simply adjusting the original sentence to correct the identified error. By the time of the appeal hearing, the appellant had already served just over 75% of the effective non-parole period. This created a practical time constraint: it was too late to impose a lesser sentence and separately vary the statutory ratio.

Both parties jointly submitted that a pragmatic approach was appropriate: the Court varied the ratio for the new sentence so that the non-parole period represented 50% of the head sentence rather than 75%. This produced a 75% effective ratio across the accumulated sentences as a whole, permitted immediate release, and preserved a period of supervised parole to support rehabilitation. The Court accepted this approach, while expressly noting that the pragmatic resolution should not be read as derogating from the Kentwell principle that the Court must independently exercise its own sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The sentence varied so that the non-parole period is 18 months, commencing 6 November 2018 and expiring 5 May 2020 (with the head sentence remaining at three years)

Key Takeaways

  • Where a new sentence is accumulated upon an earlier one through backdating, the sentencing court must assess the effective ratio between the non-parole period and head sentence across both sentences, not merely the ratio on the face of the new sentence alone.
  • A failure to turn the mind to the practical effect of accumulation on the overall statutory ratio can constitute a House v The King sentencing error, particularly where the issue was not drawn to the sentencing judge's attention.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may depart from the standard one-third balance rule where special circumstances exist, and the sentencing court must record its reasons for doing so.
  • Once a sentencing error is established, the Court of Criminal Appeal confirmed it must re-exercise the sentencing discretion independently, consistent with Kentwell v The Queen, rather than simply correcting the specific error identified.
  • Unusual practical circumstances arising from a backdated sentence can justify a pragmatic sentencing outcome on appeal, but such an approach does not diminish the general obligation on the appellate court to exercise its own independent discretion.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(1), 44(2)

Cases:
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Veen (No 2) (1988) 164 CLR 465
- R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130
- McKinnon v R [2020] NSWCCA 106
- Mill v The Queen (1988) 166 CLR 59
- Brennan v R [2018] NSWCCA 22
- Calhoun v R [2018] NSWCCA 150
- GP v Regina [2017] NSWCCA 200
- Choi v R [2007] NSWCCA 150
- R v Bolamatu [2002] NSWCCA 454
- R v Close (1992) 31 NSWLR 743
- R v Gill [2002] NSWCCA 93