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Court of Criminal Appeal 8 December 2020

Dean v R

[2020] NSWCCA 317

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFER OF PLEA TO LESSER CHARGE APPLICANT ENTITLED TO 25% DISCOUNT LEAVE TO APPEAL GRANTED APPLICANT RESENTENCED

Citation: [2020] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 8 December 2020
Judge(s): Hoeben CJ at CL; Price J; Fagan J

Background

The applicant was arrested on 12 July 2015 following an approximately four-and-a-half-hour episode of threatening and intimidating conduct toward his former partner. While intoxicated, he made threats to kill her by phone, then drove to her home with a loaded, unregistered rifle. The incident also involved contravention of an apprehended violence order (AVO) and resistance of police.

The applicant pleaded guilty to six offences and was convicted after an eight-day trial of a seventh: possession of an offensive weapon with intent to commit an indictable offence (intimidation). Five related summary offences were also dealt with by certificate. The District Court sentenced him in February 2020, nearly five years after his arrest, partly because an earlier sentencing proceeding had miscarried and required intervention by the Court of Criminal Appeal in 2018.

The applicant sought leave to appeal against the sentences imposed by the District Court judge, raising five grounds.

  • Whether the District Court had jurisdiction to deal with a charge of failing to keep a firearm safely under s 39(1)(a) of the Firearms Act 1996 (NSW) on indictment, given the maximum penalty of two years imprisonment.
  • Whether the sentencing judge correctly implemented his own finding of special circumstances, and whether the resulting non-parole period ratios were internally consistent.
  • Whether the applicant was entitled to a 25% guilty plea discount for his plea to possession of an offensive weapon with intent to intimidate, rather than the 20% discount applied.
  • Whether the sentencing judge erred by finding the applicant knew the firearm was loaded when assessing moral culpability for the possession offences.
  • Whether the sentences were manifestly excessive.

Decision

Ground 1: Jurisdiction (conceded by the Crown). The District Court had no jurisdiction to deal with the charge of failing to keep a firearm safely on indictment. Because the maximum penalty for that offence is two years imprisonment, s 6(1)(c) of the Criminal Procedure Act 1986 (NSW) requires it to be dealt with summarily. The committal for trial was therefore beyond power, and the conviction was quashed.

Ground 2: Non-parole period arithmetic (conceded by the Crown). The sentencing judge found special circumstances and expressed an intention to extend the parole period to assist rehabilitation. In practice, however, the commencement dates chosen for the State and Commonwealth sentences resulted in a combined non-parole period of 87% of the total effective head sentence, defeating the judge's stated objective. The Court noted it was open to achieve a 66% overall ratio by adjusting the commencement dates of the respective sentences, and the Crown correctly conceded error.

Ground 3: Guilty plea discount. In September 2016, the applicant offered to plead guilty to possession of an offensive weapon with intent to intimidate. The prosecution declined, pursuing the more serious charge of intent to murder. A jury ultimately acquitted on the murder-intent count and convicted on the intimidation-intent count. The Court held that the applicant's offer in 2016 was a genuine offer to plead guilty to what was ultimately the offence of which he was convicted. He was therefore entitled to a 25% discount, not the 20% applied by the sentencing judge.

Ground 4: Knowledge the firearm was loaded. The Court found no error in this aspect of the sentencing judge's assessment. Ground 5 (manifest excess) did not arise in light of the resentencing required on other grounds. The Court resentenced the applicant, producing an effective overall sentence of 7 years with a combined non-parole period of 4 years and 8 months.

Orders Made

  • Leave to appeal granted.
  • The conviction for offence 6 (failing to keep a firearm safely, contrary to s 39(1)(a) of the Firearms Act 1996 (NSW)) quashed; the charge not remitted to the Local Court given the lengthy history of proceedings.
  • The appeal against sentence for offences 1 to 5, 7, and related offences A, B, D, and E upheld; sentences imposed on 13 February 2020 quashed.
  • In lieu of those sentences, the applicant was resentenced as follows:
  • Offence 2 (use a carriage service to threaten to kill, Commonwealth): 3 years imprisonment commencing 12 July 2015, expiring 11 July 2018, with a non-parole period of 1 year expiring 11 July 2016.
  • Offences 1, 3, 4, 5, 7, A, B, D, and E (State offences): aggregate sentence of 6 years commencing 12 July 2016, expiring 11 July 2022, with a non-parole period of 3 years and 8 months expiring 11 March 2020.
  • The order imposing no penalty for offence C (possession of ammunition without authority) was not disturbed.

Key Takeaways

  • Under s 6(1)(c) of the Criminal Procedure Act 1986 (NSW), offences carrying a maximum of two years imprisonment must be dealt with summarily; a committal for trial in the District Court for such an offence is beyond jurisdiction and any resulting conviction cannot stand.
  • Where a defendant offers to plead guilty to a lesser charge and the prosecution declines in favour of a more serious alternative, but the jury ultimately convicts only on the lesser charge, the defendant is entitled to the full guilty plea discount as if the plea had been accepted at the time of the offer.
  • A sentencing judge's finding of special circumstances must be given effect in the actual construction of the sentence; where the selection of commencement dates for concurrent State and Commonwealth sentences defeats the judge's stated intention about the parole ratio, that constitutes error warranting resentencing.
  • The Court of Criminal Appeal declined to remit the quashed charge to the Local Court, noting that the underlying criminality had already been absorbed into the overall sentencing exercise and that further proceedings were not warranted after a prolonged prosecution history.
  • Where an indicative sentence within an aggregate is found to have been imposed without jurisdiction, resentencing of the whole aggregate is required because the individual components are inextricably bound together, consistent with the approach in Lehn v R [2016] NSWCCA 255.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Code Act 1995 (Cth)
- Crimes Act 1914 (Cth)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW)
- Road Transport Act 2013 (NSW)

Cases:
- Lehn v R [2016] NSWCCA 255
- R v Cardoso [2003] NSWCCA 15
- R v Oinonen [1999] NSWCCA 310
- R v Pennisi [2001] NSWCCA 326
- Dean v R [2019] NSWCCA 27