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Court of Criminal Appeal 1 October 2021

Clarke v R

[2021] NSWCCA 236

Theft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE SINGULAR GROUND OF MANIFEST EXCESS MULTIPLE OFFENCES STRUCTURE OF THE SENTENCING

Citation: Clarke v R [2021] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 1 October 2021
Judges: Meagher JA, Walton J, Harrison J

Background

The appellant had pleaded guilty to two armed robbery offences and one offence of perverting the course of justice, all committed in late March 2019. At the time of those offences, he was subject to both a community correction order (CCO) and an intensive correction order (ICO) imposed for earlier, unrelated offending.

The sentencing judge in the District Court was therefore required not only to sentence the appellant for the robbery and perverting offences but also to re-sentence him for the CCO driving offences and to deal with the revocation of the ICO. The result was a layered sentencing structure. The sentencing judge imposed an aggregate sentence of 5 years with a non-parole period of 3 years and 6 months (commencing 10 November 2019), together with a fixed term of 2 months for the driving offences commencing 6 weeks earlier.

When all sentences were taken together, including the pre-existing sentence flowing from the ICO revocation, the effective ratio of the non-parole period to the total term was approximately 73.1%. The standard statutory ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW) is 75%, but the sentencing judge had found "special circumstances" justifying a reduced ratio, citing the appellant's age, need for drug and alcohol rehabilitation, and need for community reintegration.

  • Whether the overall sentencing structure, and in particular the effective non-parole period ratio of 73.1%, was manifestly excessive given the finding of special circumstances.
  • Whether the accumulation of sentences arising from multiple unrelated episodes of offending had the practical effect of negating or significantly undermining the special circumstances finding.
  • Whether the sentencing judge had failed, through inadvertence or miscalculation, to give proper effect to that special circumstances finding when structuring the overall sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. All three judges agreed that the sentence was not manifestly excessive, and that no error in the exercise of the sentencing discretion had been established.

The Court confirmed that to succeed on a ground of manifest excess, an appellant must demonstrate the sentence was "unreasonable or plainly unjust." The Court cannot substitute its own view merely because it might have sentenced differently. The appellant did not challenge the aggregate sentence itself, the individual indicative sentences, or the accumulation arising from the sentencing structure. His complaint was confined to the effect of that structure on the non-parole period ratio.

Walton J, with whom Harrison J agreed, rejected the contention that the 73.1% ratio deprived the special circumstances finding of any practical utility. The judge noted that the adjusted ratio was a product of the legitimate accumulation of multiple, unrelated offences rather than any error or inadvertence. Crucially, the sentencing judge had expressly acknowledged that the need to reflect the totality of the criminality would "compromise" the degree of amelioration otherwise achieved by the special circumstances finding. The appellant remained eligible for 18 months on parole, which Walton J accepted was consistent with the purposes identified as justifying the special circumstances finding.

Meagher JA added that this was not a case, unlike some prior decisions, where a sentencing judge had inadvertently failed to give effect to a special circumstances finding. The sentencing judge's closing remarks specifically addressed the interaction between the totality principle and the effective non-parole period, demonstrating that the outcome was the product of a deliberate and considered sentencing exercise.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances does not guarantee a fixed reduction in the non-parole ratio. Where multiple unrelated episodes of offending require accumulated sentences, the totality principle may legitimately produce an effective non-parole ratio higher than the ratio applied to any individual sentence.
  • The Court of Criminal Appeal confirmed the distinction between cases where a special circumstances finding has been inadvertently undermined by accumulation and cases where a sentencing judge has consciously weighed the competing demands of totality and rehabilitation. Only the former category is likely to disclose error.
  • No error arises merely because the sentencing judge did not expressly reference every component of the accumulated sentence structure in the reasons, provided the overall structure and closing remarks demonstrate that the judge turned his or her mind to the consequences of accumulation for the effective non-parole period.
  • In dismissing the appeal, the Court emphasised that the relevant question on a manifest excess ground is whether the outcome is unreasonable or plainly unjust, not whether the appellate court would have structured the sentences differently.
  • Where an appellant does not challenge individual component sentences, the accumulation between them, or the findings on objective seriousness, the threshold for establishing manifest excess in the overall structure is a demanding one.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), s 110(4)(a)

Cases:
- AM v R [2020] NSWCCA 101
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v The Queen (2005) 228 CLR 357
- MD v R [2015] NSWCCA 37
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hammoud (2000) 118 A Crim R 66
- R v Henry (1999) 46 NSWLR 346
- Tammer-Spence v R [2021] NSWCCA 90
- Wong v The Queen (2001) 207 CLR 584