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Court of Criminal Appeal 14 December 2021

Christian v R

[2021] NSWCCA 300

Assault & violencePublic order & justice offences
SENTENCE APPEAL AGGREGATE SENTENCE ERROR SCOPE OF RE EXERCISE OF SENTENCING DISCRETION WHETHER CONFINED TO ADJUSTING NON

Citation: Christian v R [2021] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 14 December 2021
Judges: Beech-Jones CJ at CL, RA Hulme J, Dhanji J

Background

The appellant pleaded guilty to nine indictable offences and three related summary offences arising from a course of conduct between December 2015 and January 2017. The offending involved multiple instances of demanding money with menaces in company, assault occasioning actual bodily harm, intimidation, and aggravated entry to a dwelling, together with a number of associated offences taken into account on Form 1s. The victims were subjected to threats, physical violence, and intimidation often connected with alleged unpaid debts.

On 26 November 2019, Judge Hanley SC imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 6 years, commencing 23 November 2017. The ratio of the additional term to the non-parole period was one-third, which is the standard statutory ratio under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999. However, the sentencing judge had made a finding of "special circumstances" that would ordinarily justify extending the additional term beyond that standard ratio, and both parties agreed on appeal that this finding was never given effect when the non-parole period was fixed.

The sole ground of appeal was that the sentencing judge's failure to give effect to the special circumstances finding was an error. The Crown conceded the error, but the parties disagreed on how the appellate court should remedy it.

  • Whether the sentencing judge erred by failing to give effect to a finding of special circumstances when fixing the non-parole period under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the Court of Criminal Appeal's intervention should be confined to adjusting the non-parole period to reflect the finding, or whether the full sentencing discretion had to be re-exercised afresh under the principles in Kentwell v The Queen (2014) 252 CLR 601

Decision

The Court unanimously accepted that the sentencing judge's failure to translate the special circumstances finding into a reduced non-parole period constituted an error, and granted leave to appeal on that basis.

The central debate concerned the scope of the appellate remedy. The appellant submitted that the Court could simply correct the non-parole period without disturbing the head sentence, particularly given that the Crown was not seeking a higher head sentence. Beech-Jones CJ at CL, with whom RA Hulme J and Dhanji J agreed in result, held that because the Crown declined to accept that confined approach, the sentencing discretion had to be re-exercised in full under the principles established in Kentwell. The Court noted that where both parties consent to confining intervention to the subject matter of the specific error, earlier decisions such as Carroll v R and Haines v R suggest that a more targeted correction is permissible. However, absent that agreement, a full re-exercise is required.

Beech-Jones CJ at CL expressed pointed criticism of the Crown's approach. His Honour observed that the Crown's refusal to accept the applicant's concession, which had not even sought a reduced head sentence, served only to entrench procedural complexity without any tangible benefit. RA Hulme J agreed with the orders proposed. Dhanji J, while inclined to the view that agreement between the parties could have confined the appeal to the non-parole period question in an adversarial context, declined to express a concluded opinion on that point given that no such agreement had been reached.

Re-exercising the sentencing discretion afresh, Beech-Jones CJ at CL reduced both the head sentence and the non-parole period, giving proper effect to the special circumstances finding and resulting in a more favourable ratio of additional term to non-parole period.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed on 26 November 2019 set aside
  • In lieu thereof: aggregate term of imprisonment of 7 years and 6 months, commencing 23 November 2017 and expiring 22 May 2025
  • Non-parole period of 5 years set pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, expiring 22 November 2022
  • Earliest eligible parole release date specified as 22 November 2022
  • Indicative individual sentences for each offence identified pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A sentencing judge who makes a formal finding of special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 must give actual effect to that finding when fixing the non-parole period; a failure to do so is an error warranting appellate intervention.
  • Where both parties agree to confine appellate correction to the specific error (such as adjusting the non-parole period only), the Court of Criminal Appeal may be able to limit its intervention accordingly, as suggested by Carroll v R and Haines v R.
  • Absent that bilateral agreement, the full sentencing discretion must be re-exercised afresh in accordance with Kentwell v The Queen, even where the error appears narrow and the contested issues are limited.
  • Beech-Jones CJ at CL criticised the Crown's refusal to accept a confined approach, describing it as entrenching unnecessary complexity where no tangible benefit arose and the applicant was not seeking a lesser head sentence.
  • Dhanji J declined to express a concluded view on whether party agreement could confine the appellate exercise in an adversarial context, leaving that question open on the facts of this case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 44(2B), 53A(2), 32(1)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1900 (NSW), ss 59(1), 59(2), 61, 99(2), 111(2), 188, 192E, 192K, 195, 527(1)(c)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Road Transport Act (NSW), s 54(1)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Carroll v R [2015] NSWCCA 219
- Haines v R [2016] NSWCCA 90
- Almaoiue v R [2021] NSWCCA 274
- CM v R [2013] NSWCCA 341
- Daniels v R [2016] NSWCCA 35
- Martin v R [2016] NSWCCA 104
- O'Connell v R [2016] NSWCCA 43
- Sabongi v R [2015] NSWCCA 25
- Zeiser v R [2020] NSWCCA 154