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Court of Criminal Appeal 17 December 2020

Zreika v R

[2020] NSWCCA 345

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE NO ERROR ESTABLISHED CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE

Citation: Zreika v R [2020] NSWCCA 345
Court: Court of Criminal Appeal, NSW
Date: 17 December 2020
Judges: Payne JA; Bellew J; Wright J (judgment delivered by Wright J)

Background

The appellant pleaded guilty in the Local Court at Lismore to two charges of robbery armed with an offensive weapon and one charge of attempted armed robbery, arising from an incident in March 2018 at a Casino hotel. He was committed to the District Court for sentencing, where Hunt DCJ imposed an aggregate sentence of six years' imprisonment with a non-parole period of four years.

The appellant was already serving a sentence for separate firearms offences at the time of the sentencing proceedings. Hunt DCJ intentionally accumulated the new aggregate sentence upon the firearms sentence by one year, rather than backdating it fully to the commencement of the earlier sentence.

The appellant sought leave to appeal against the aggregate sentence on two grounds. He did not challenge the sentencing judge's findings on objective seriousness, his subjective circumstances, or the length of the sentence itself.

  • Whether the sentencing judge erred by failing to give effect to his finding of special circumstances when the partial accumulation of sentences reduced the effective ratio of the non-parole period to the head sentence.
  • Whether the sentencing judge erred by fixing an incorrect commencement date for the aggregate sentence, resulting in a one-day miscalculation.

Decision

Ground 1: Special circumstances

Hunt DCJ expressly found special circumstances, noting the appellant's risk of institutionalisation and his need for a longer period on parole to undertake drug and alcohol treatment. The finding was reflected in the ratio of the aggregate sentence itself: the non-parole period of four years against a six-year head sentence produced a ratio of 66.7%, below the statutory 75% ratio.

The appellant's argument was not that the ratio within the aggregate sentence was wrong, but that the effect of partial accumulation reduced the overall effective ratio (across both sentences combined) to approximately 71.4%. The Court rejected this ground, finding that Hunt DCJ had plainly considered the effect that accumulation would have on the total time to be spent in custody. His Honour described the combined result expressly in his remarks, and no error was established in the way the special circumstances finding had been given effect.

Ground 2: Commencement date

Hunt DCJ stated his intention that the aggregate sentence should commence "a year into" the firearms sentence. Since the firearms sentence commenced on 4 October 2018, the aggregate sentence should have commenced on 4 October 2019 plus one year, meaning 4 October 2019 was one year in, and the intended commencement date was 7 May 2019 (the day following the expiry of one year). Instead, his Honour recorded 8 May 2019, a one-day error.

The Court found this was a minor arithmetical miscalculation rather than a legal error vitiating the sentencing discretion. Applying the principle from Lehn v R (2016) 93 NSWLR 205, such errors can be corrected by simple adjustment without the need to exercise the sentencing discretion afresh. Leave to appeal was granted on this ground, and the sentence was adjusted accordingly.

Orders Made

  • Leave to appeal granted in respect of ground 2; leave to appeal otherwise refused.
  • The appeal allowed to the extent necessary to correct the calculation error.
  • The aggregate sentence adjusted so that the non-parole period of four years commences on 7 May 2019 and expires on 6 May 2023, with a balance of term of two years expiring on 6 May 2025.

Key Takeaways

  • No error is established merely because the partial accumulation of an aggregate sentence upon an earlier sentence reduces the combined effective ratio of non-parole period to head sentence, provided the sentencing judge plainly considered the effect of accumulation on overall time in custody.
  • A sentencing judge who finds special circumstances is not obliged to maintain the reduced non-parole ratio across all sentences being served concurrently or in accumulation.
  • Minor arithmetical errors in fixing a sentence commencement date do not constitute legal errors that vitiate the exercise of the sentencing discretion; the Court of Criminal Appeal confirmed it can remedy such errors by simple adjustment under the principle in Lehn v R.
  • In dismissing the special circumstances ground, the Court emphasised that the sentencing judge's express acknowledgment of the combined sentencing outcome in his remarks was sufficient to demonstrate the finding had been given proper effect.
  • Under the Lehn principle, the threshold between a correctable arithmetical slip and an error requiring full resentencing turns on whether the error goes to the substance of the discretionary sentencing exercise, not merely its arithmetic expression.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery armed with an offensive weapon), s 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B) (statutory non-parole ratio), s 53A(2) (indicative sentences under aggregate sentencing)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Refaieh v R (2018) 272 A Crim R 248; [2018] NSWCCA 72
- Caristo v R [2011] NSWCCA 7
- CC v R [2019] NSWCCA 229
- GP v R [2017] NSWCCA 200
- Elwood v R [2019] NSWCCA 315
- Lonsdale v R [2020] NSWCCA 267
- Rizk v R [2020] NSWCCA 291
- Sabongi v R [2015] NSWCCA 25