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Court of Criminal Appeal 23 October 2020

Qoro v R

[2020] NSWCCA 276

Assault & violenceTheft & property
CRIME SENTENCE APPEAL SPECIAL CIRCUMSTANCES ERROR DISCLOSED SENTENCING APPEAL ALLOWED

Citation: Qoro v R [2020] NSWCCA 276
Court: NSW Court of Criminal Appeal
Date: 23 October 2020
Judges: Simpson AJA, Rothman J, Bellew J

Background

The applicant, a man of Bundjalung and Fijian descent born in 1986, pleaded guilty in the District Court to one count of armed robbery under s 97(1) of the Crimes Act 1900 (NSW). The offence occurred on 1 September 2018 in Orange, when the applicant produced a knife in a taxi, threatened the driver, and stole her wallet containing $435 in cash.

The sentencing judge imposed a head sentence of 3 years and 9 months with a non-parole period of 2 years and 6 months, commencing 5 June 2019 (at the expiry of concurrent 9-month non-parole periods for earlier offences). The sentencing judge found special circumstances, citing the applicant's history of schizophrenia and the need for careful management and supervision, and stated a two-thirds ratio between the non-parole period and the head sentence was appropriate.

The applicant sought leave to appeal on the basis that the sentencing judge's stated intention was not actually achieved. When the earlier sentences were factored in, the effective overall ratio of non-parole period to head sentence across the accumulated sentences came to approximately 72.2%, rather than the intended two-thirds (approximately 66.7%).

  • Whether the sentencing judge erred by failing to give practical effect to his own finding of special circumstances when the sentence was imposed cumulatively on earlier sentences.
  • Whether the accumulation of sentences produced an overall non-parole period that was disproportionate to the total effective head sentence, contrary to the sentencing judge's stated intention.

Decision

The Court of Criminal Appeal unanimously granted leave and allowed the appeal. Rothman J (with Simpson AJA and Bellew J agreeing) found that the sentencing judge had identified special circumstances and expressed a clear intention to impose a non-parole period of approximately two-thirds of the head sentence. However, because the sentence was cumulative on pre-existing sentences, the resulting overall ratio did not reflect that intention, disclosing error.

The Court undertook resentencing on the basis of the accumulated sentences as a whole. It took into account additional material, including the applicant's subjective circumstances: a deprived and violent childhood, diagnosis of schizophrenia (first identified in juvenile detention), substance use disorder and antisocial personality disorder, illiteracy, and his institutionalised tendencies. The Court also noted the serious and confronting nature of the offending, the applicant's prior criminal history involving violence and substance abuse, and his limited victim insight.

Rothman J identified that the total accumulated sentences needed to reflect, in their overall ratio, the extended period of supervision and rehabilitation required in the community. The Court restructured the sentence to bring the overall effective non-parole period closer to two-thirds of the total effective head sentence across all accumulated sentences.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by the District Court on 6 December 2019 for one count of armed robbery was quashed.
  • The applicant was resentenced to a head sentence of 3 years and 6 months, commencing 5 June 2019 and concluding 4 December 2022, with a non-parole period of 2 years and 1 month, concluding 4 July 2021.
  • The applicant's first eligibility for parole was set at 4 July 2021.

Key Takeaways

  • Where a sentencing judge finds special circumstances and expresses a clear intention about the ratio of non-parole period to head sentence, the sentence must actually give effect to that intention when viewed across the entire accumulated sentence structure.
  • Accumulation of sentences can defeat a finding of special circumstances even where the individual sentence on its face appears to reflect it. The Court of Criminal Appeal confirmed that the overall effective ratio across accumulated terms must be considered.
  • A finding of special circumstances based on psychiatric conditions, such as schizophrenia requiring careful supervision, carries weight at resentencing and must be translated into a measurable adjustment to the overall non-parole period.
  • Resentencing on appeal permits the appellate court to take into account additional evidence, including updated subjective circumstances of the applicant, when restructuring the sentence.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A and the principles in Veen v The Queen (No 2), the purposes of sentencing (including rehabilitation and the need for community supervision) must be genuinely reflected in the sentence ultimately imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (guideline judgment for armed robbery)
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (deprived background in sentencing)
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (purposes of sentencing)
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25
- Elwood v R [2019] NSWCCA 315
- Kennedy v R [2010] NSWCCA 260