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Court of Criminal Appeal 11 September 2020

Stines v R

[2020] NSWCCA 228

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE EXISTING SENTENCE STRUCTURE STRONG SUBJECTIVE CASE INTELLECTUAL DISABILITY APPEAL ALLOWED

Citation: Stines v R [2020] NSWCCA 228
Court: NSW Court of Criminal Appeal
Date: 11 September 2020
Judge(s): Meagher JA; Fullerton J; Button J (reasons by Button J)

Background

The applicant pleaded guilty to robbery under s 94 of the Crimes Act 1900 (NSW), arising from an incident on 28 January 2018 in which he grabbed a phone from a woman while riding a bicycle, causing redness to her neck. The maximum penalty for the offence is 14 years' imprisonment. On 27 November 2019, the District Court sentenced him to a head sentence of 2 years with a non-parole period of 12 months, commencing 24 November 2021.

The difficulty was that the applicant was already serving two other sentences at the time of this sentencing. The first was for a break, enter and steal offence (1 year with a 9-month non-parole period, commencing 29 January 2018). The second, and most significant, was for aggravated robbery with wounding committed on the same day as the robbery in question (reduced by the Court of Criminal Appeal in June 2019 to 5 years 3 months with a non-parole period of 3 years 6 months, commencing 24 August 2018).

The new robbery sentence was imposed as partially cumulative upon and partially concurrent with the pre-existing sentences. When all three sentences were considered together, the combined non-parole period came to nearly 83% of the total head sentence, leaving only approximately 12 months on parole at the end of close to five years in continuous custody.

  • Whether the cumulation of the new sentence upon the pre-existing sentence structure produced a ratio between total non-parole period and total head sentence that was distorted well beyond the statutory norm of 75%
  • Whether the resulting sentence, viewed in its overall context, was manifestly excessive
  • What the appropriate re-sentence should be, having regard to the pre-existing structure and the applicant's significant subjective circumstances

Decision

Button J (Meagher JA and Fullerton J agreeing) found that the combined effect of the three sentences was clearly problematic. The non-parole period to head sentence ratio had risen to approximately 83%, compared to the statutory norm of 75%, and the applicant would have spent close to five years in continuous custody before being released to only around 12 months of parole supervision.

Button J acknowledged that the sentencing judge had addressed questions of cumulation and concurrence in her remarks on sentence, but had not explicitly considered the downstream effect of partial accumulation on the overall ratio. Whether this reflected an error in principle or simply a sentence that was manifestly excessive in its broader context, Button J was not required to decide. Either characterisation supported intervention.

The Court placed considerable weight on the applicant's subjective circumstances. These included a mild intellectual disability linked to impulsivity and poor decision-making, a severely traumatic upbringing (including an incident at age 8 in which his father set fire to the family home), illiteracy, no employment history, a disability support pension since 2005, severe anxiety and depression, a history of substance use, and a serious assault by a correctional officer while in custody in 2014 that left him with a permanently plated jaw. The applicant also received a 25% discount for his early guilty plea.

Button J's remedy was to maintain the length and internal ratio of the sentence under appeal, but to move its commencement date forward from 24 November 2021 to 24 May 2021. This adjusted the overall combined ratio to approximately 75%, produced a total parole period of around 18 months, and was described as achieving an appropriate balance between the pre-existing sentence structure and the interests of the community in the applicant's supervision and eventual rehabilitation.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by Judge O'Rourke SC on 27 November 2019 quashed
  • In substitution: non-parole period of 1 year commencing 24 May 2021, expiring 23 May 2022, followed by a parole period of 1 year expiring 23 May 2023
  • Release to parole date fixed at 23 May 2022

Key Takeaways

  • When imposing a sentence that is cumulative (in whole or in part) upon pre-existing sentences, the resulting total ratio between non-parole period and head sentence across all sentences must be considered, not just the internal ratio of the new sentence in isolation.
  • A ratio of approximately 83% between total non-parole period and total head sentence, arising from partial accumulation, constituted either a sentencing error regarding the statutory ratio or a sentence that was manifestly excessive in context; the Court of Criminal Appeal found it unnecessary to determine which characterisation applied.
  • Adjusting the commencement date of a sentence, while maintaining its length and internal ratio, is an available re-sentencing mechanism to correct distortion caused by a pre-existing sentence structure.
  • The Court treated the applicant's mild intellectual disability as a significant mitigating factor, directly linking it to his offending behaviour, impulsivity, and reduced capacity for deterrence-based reasoning.
  • Community interests in parole supervision and rehabilitation are relevant considerations when determining the appropriate balance between the non-parole period and total head sentence, particularly after extended periods of continuous custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery)

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (principles governing cumulative and concurrent sentences)
- Stines v R [2019] NSWCCA 115 (earlier successful appeal against sentence for aggravated robbery with wounding)