Citation: Donald (a pseudonym) v R [2021] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judges: Payne JA; Rothman J; Button J
Background
The appellant (referred to by the pseudonym John Donald) pleaded guilty in the Local Court to seven offences, including break enter and steal, steal from person, take and drive a conveyance without consent, larceny, and driving while disqualified. He was committed to the District Court for sentence and maintained his pleas. Six further offences were taken into account on a Form 1.
The District Court sentenced the appellant to an aggregate term of five years' imprisonment, with a non-parole period of three years commencing 30 July 2019. The sentence ran partly concurrently with a separate sentence previously imposed for aggravated break and enter with intent. When combined, the effective total was six years' imprisonment with a four-year non-parole period, producing a ratio of 67% between the non-parole period and the head sentence.
The sentencing judge had been incorrectly told by counsel that the maximum penalty for driving while disqualified under s 54(1)(a) of the Road Transport Act 2013 (NSW) was two years' imprisonment. The actual maximum is six months. The judge accordingly indicated a sentence of 12 months for that offence, which was twice the statutory maximum.
Legal Issues
- Whether the sentencing judge erred in his approach to the appellant's mental condition (Ground 1)
- Whether the aggregate sentence and non-parole period were manifestly excessive, having regard to the appellant's subjective circumstances, guilty plea, objective seriousness, remorse, institutionalisation, and Bugmy and Henry factors (Ground 2)
- Whether the judge erred by accumulating the sentence in a way that nullified the finding of special circumstances and the 60% non-parole/head sentence ratio (Ground 3)
- Whether the judge erred by imposing an indicative sentence for driving while disqualified that exceeded the statutory maximum (Ground 4)
Decision
The Crown conceded Ground 4. The sentencing judge had been misinformed that the maximum penalty for the driving while disqualified offence was two years, when in fact it was six months. The indicated sentence of 12 months was therefore double the statutory ceiling. Following the principle in Kentwell v The Queen, this error required resentencing. The Court accepted that the error likely had some impact on the aggregate sentence, given the aggregate was two years more than the most severe individual indicative sentence.
On the approach to the appellant's mental condition (Ground 1), the Court considered the Bugmy principles, which require that disadvantaged background and mental health circumstances be fully and genuinely taken into account, without being diminished by the number of prior convictions. The Court assessed this in the context of resentencing rather than as a standalone ground requiring remittal.
On the question of special circumstances and the ratio between non-parole period and head sentence (Ground 3), the Court found that the partial accumulation with the earlier sentence had the effect of increasing the effective ratio from the intended 60% to 67%. This undermined the judge's own finding of special circumstances. On resentencing, the Court adjusted the non-parole period to give genuine effect to the 60% ratio.
The Court resentenced the appellant to a reduced aggregate term of four years and nine months, with a non-parole period of two years, four months, and two weeks. Rothman J noted the non-parole period was set to allow the appellant to be considered for parole before Christmas 2021.
Orders Made
- Time for filing the appeal extended to the date the application was filed
- Leave to appeal granted
- Appeal allowed; the sentence imposed on 19 June 2020 by the District Court at Sydney quashed
- In lieu of the original sentence, the appellant sentenced to an aggregate term of imprisonment of four years and nine months, commencing 31 July 2019 and concluding 30 April 2024
- Non-parole period of two years, four months, and two weeks, concluding 14 December 2021
- The appellant eligible for release on parole from 14 December 2021
Key Takeaways
- Where a sentencing judge is misinformed by counsel about the applicable maximum penalty and imposes an indicative sentence exceeding that maximum, resentencing is required, even if the effect on the aggregate sentence might appear modest.
- Under Kentwell v The Queen, an error in the indicative sentence for one component of an aggregate term is capable of infecting the aggregate, particularly where the aggregate substantially exceeds the most severe individual indicative sentence.
- Partial accumulation of sentences can unintentionally increase the effective ratio of non-parole period to head sentence beyond what the sentencing judge intended, potentially defeating a finding of special circumstances.
- The Bugmy principles require that a disadvantaged background and mental health history receive genuine weight in sentencing, and that weight does not diminish simply because the offender has significant prior criminal history.
- When resentencing to give effect to a finding of special circumstances, the court must ensure the adjusted non-parole period actually reflects the intended ratio across the combined effect of accumulated sentences, not merely for the individual sentence in isolation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 11, 44(2), 44(2B)
- Road Transport Act 2013 (NSW), s 54(1)(a)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v DBN [2005] NSWCCA 435
- R v Engert (1995) 84 A Crim R 67 (NSWCCA)
- R v LWP [2003] NSWCCA 215
- R v Swan [2005] NSWCCA 252
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14