Citation: Haines v R [2021] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judge(s): Hoeben CJ at CL; Bellew J; N Adams J
Background
The appellant was sentenced in the District Court at Sydney on 22 November 2019 for ten offences committed between April 2016 and March 2017. The offences included accessory after the fact to break, enter and steal; robbery armed with an offensive weapon (a claw hammer); steal from person; reckless wounding in company; and several other property and drug offences. Eight of the ten offences were committed while the appellant was on parole; two were committed while he was in custody.
The sentencing judge imposed an aggregate sentence of 6 years and 4 months imprisonment, with an aggregate non-parole period of 3 years and 10 months. This sentence was ordered to commence in June 2019, running concurrently with the tail end of an existing sentence the appellant was then serving.
The appellant sought leave to appeal on two grounds: first, that the sentencing judge had applied the wrong maximum penalty to the accessory after the fact charge; and second, that the judge had failed to properly consider totality and accumulation when constructing the aggregate sentence alongside the balance of his pre-existing sentence.
Legal Issues
- Whether the sentencing judge erred by recording the maximum penalty for accessory after the fact to break, enter and steal as 14 years rather than the correct 5 years, and what consequences flowed from that error
- Whether the sentencing judge failed to properly consider totality and accumulation, given that the new aggregate sentence was ordered to commence before the expiry of the non-parole period of the existing sentence
- Whether, on re-sentencing, any lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)
Decision
Ground 1: Wrong maximum penalty
The Crown conceded the error. The sentencing judge had recorded the maximum penalty for accessory after the fact to break, enter and steal as 14 years when the correct maximum is 5 years. The Court accepted that applying the wrong maximum penalty had the capacity to influence the sentence, which, following Kentwell v The Queen (2014) 252 CLR 601, is sufficient to establish appealable error. It was therefore necessary to re-sentence the appellant.
Re-sentencing and the s 6(3) test
On re-sentencing, the Court exercises its discretion afresh, putting the original sentence to one side. The test under s 6(3) of the Criminal Appeal Act 1912 is a composite one: the Court must determine both whether a lesser sentence is "warranted in law" and whether it "should have been passed." Any sentence within the available range is warranted in law, but a lesser sentence should only have been passed if the established error had the effect of wrongly elevating the sentence. On re-exercising its discretion, the Court arrived at an aggregate sentence slightly higher than that imposed at first instance, meaning no lesser sentence was warranted in law.
Ground 2: Totality and accumulation
The Court dismissed this ground, finding no error in the sentencing judge's approach to totality or to the accumulation of the new sentence upon the existing one.
Procedural error by practitioners
N Adams J noted that the wrong maximum penalty had originated from an error in the Crown's sentence summary, and that the appellant's legal representatives had failed to correct it. Both Bellew J and N Adams J observed that this kind of error is a surprisingly common occurrence. All practitioners involved in sentence proceedings bear an obligation to ensure that accurate information, including the correct maximum penalty, is placed before the sentencing judge.
Orders Made
- Leave to appeal granted
- The appeal is dismissed
Key Takeaways
- Applying the wrong maximum penalty at sentence constitutes an error with the capacity to influence the outcome and is sufficient to enliven the Court of Criminal Appeal's re-sentencing jurisdiction under the principles established in Kentwell v The Queen.
- Where the Court re-sentences following established error, it exercises its discretion entirely afresh. The mere fact that a lesser sentence is "warranted in law" (because it falls within the available range) does not mean it "should have been passed" within the meaning of s 6(3) of the Criminal Appeal Act 1912.
- In dismissing the appeal, the Court confirmed that an appellant cannot assume a re-sentencing exercise will produce a reduced sentence, particularly where the error relates to only one indicative sentence within a larger aggregate.
- Under the principles affirmed in Kentwell and applied in Aboud v Regina, sentencing is not an exact science: no single outcome is "the" correct sentence, and any sentence within the available range is lawful. Reduction on appeal requires the error to have wrongly elevated the sentence.
- The Court of Criminal Appeal noted, through both Bellew J and N Adams J, that errors in stated maximum penalties are a recurring problem, and that practitioners appearing for both the Crown and the defence carry a responsibility to ensure the court receives accurate sentencing information.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(3), 59(2), 94, 97(1), 112(1)(a), 117, 195(1)(a), 347
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
Cases
- Aboud v Regina [2021] NSWCCA 77
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CM v R [2013] NSWCCA 341
- GP v Regina [2017] NSWCCA 200
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lonsdale v R [2020] NSWCCA 267
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Qoro v R [2020] NSWCCA 276
- R v Fernando (1992) 76 A Crim R 58
- R v Jeremiah [2016] NSWCCA 241
- R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381