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Court of Criminal Appeal 16 July 2021

Kite v R

[2021] NSWCCA 159

Assault & violenceTheft & property
SENTENCING APPEAL AGAINST SENTENCE GENERAL P RINCIPLES ACCUMULATION APPEAL ALLOWED

Citation: Kite v R [2021] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 16 July 2021
Judges: Harrison J, Bellew J, Cavanagh J (judgment delivered by Cavanagh J)

Background

The appellant pleaded guilty in the District Court to one count of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW). The offending arose from a home invasion in Sydenham on 24 May 2019, in which the appellant and three other men entered a unit, physically confronted the male occupant, threatened him, and stole cash, jewellery, and two mobile phones. The appellant was arrested on 11 June 2019 and denied involvement initially.

At the time of his sentencing on 10 July 2020, the appellant was already serving custodial sentences for three other offences, including supply of a prohibited drug, possession of a prohibited drug, and driving under the influence of drugs. Those sentences had been imposed at various points between October 2019 and January 2020, after his arrest for the present offence.

The District Court sentenced the appellant to three years' imprisonment with a non-parole period of one year and ten months, commencing 1 February 2020. The appellant appealed on two grounds: that the sentencing judge failed to give effect to his expressed intention to partially accumulate the sentence onto the existing sentences, and that the judge made an error in calculating the pre-sentence custody period attributable to the offence.

  • Whether the sentencing judge erred by failing to partially accumulate the sentence with the existing sentences the appellant was serving, despite expressing an intention during the hearing to do so.
  • Whether the sentencing judge incorrectly calculated the period of pre-sentence custody referable to the offence.

Decision

The Crown conceded error on both grounds and accepted that the Court of Criminal Appeal was required to resentence the appellant afresh. The sentencing judge had indicated, in exchange with counsel, that partial accumulation was appropriate on totality principles, given the causal connection between the drug-related offences and the present offending. Despite that expressed intention, the resulting sentence commenced on 1 February 2020 rather than at an earlier date that would have reflected any degree of accumulation onto the earlier sentences.

On resentencing, Cavanagh J adopted the sentencing judge's findings on objective seriousness, which placed the offence below the mid-range of criminality. The judge accepted that the appellant and his brother were recruited by the other two men who bore primary responsibility for instigating the home invasion, that the duration of the offending was relatively short, and that no resultant physical harm was inflicted on the victim. The appellant's drug dependency provided some explanation for the spontaneity of the offending.

Cavanagh J maintained the same overall term of three years with a non-parole period of one year and ten months, consistent with the original sentence. The 25% discount for the utilitarian value of the early guilty plea was preserved, as was the finding of special circumstances justifying a longer parole period. The aggravating factor that the appellant was on conditional liberty at the time of the offending was also taken into account.

To give effect to the partial accumulation that had been indicated at first instance, Cavanagh J directed the sentence to commence on 11 September 2019, rather than 1 February 2020. Because the recalculated non-parole period expired on 10 July 2021, the appellant was entitled to immediate release upon the orders being made.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In lieu thereof, the appellant sentenced to three years' imprisonment commencing 11 September 2019 and expiring 10 September 2022.
  • Non-parole period of one year and ten months specified, commencing 11 September 2019 and expiring 10 July 2021.
  • Appellant directed to be released forthwith.

Key Takeaways

  • Where a sentencing judge expressly signals an intention to partially accumulate a sentence onto existing terms, failing to do so in the resulting orders constitutes a sentencing error.
  • The Court of Criminal Appeal confirmed that partial (rather than full) accumulation can be appropriate where earlier offences are causally connected to the present offending, reflecting totality principles.
  • Under totality principles, complete accumulation of sentences for related offences can produce an aggregate term that is disproportionate to the overall criminality involved.
  • A finding that the appellant was on conditional liberty at the time of the offending remains an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even on resentencing.
  • Maintaining the same length of sentence on appeal while adjusting the commencement date is a permissible approach where the head sentence itself was not in error but the accumulation calculation was.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Pannowitz v R [2016] NSWCCA 13