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Court of Criminal Appeal 7 April 2021

Tuesley v R

[2021] NSWCCA 58

Assault & violenceDrugs
CRIME APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE IMPOSED PAROLE PERIOD PAROLE PERIOD

Citation: Tuesley v R [2021] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 7 April 2021
Judges: Hoeben CJ at CL, Davies J, Fagan J

Background

The applicant pleaded guilty in the Local Court to six offences: two indictable assaults on police officers and four summary drug possession offences. He was committed to the District Court for sentence on the indictable matters, with the drug offences dealt with by way of a certificate under s 166 of the relevant legislation.

The offending arose from a police stop in Casino on the night of 10 August 2019. When officers attempted to prevent the applicant from swallowing two drug-filled balloons, a violent struggle followed. The applicant bit one officer's upper thigh (causing a wound approximately 2.5 cm long), and struck the other officer with his fists and feet. Both officers required hospitalisation after the applicant, who had hepatitis C, informed them of his condition after biting one of them. This caused significant anxiety, distress, and the need for prophylactic medication.

Judge McLennan SC in the District Court at Lismore imposed an aggregate sentence of 20 months' imprisonment as a fixed term, declining to set a non-parole period. The applicant appealed that sentence on four grounds.

  • Whether the sentencing judge erred in imposing a fixed term without setting a non-parole period, treating the fixed term as the total sentence rather than as the equivalent of a non-parole period
  • Whether the sentencing judge took into account irrelevant considerations or failed to consider relevant ones when declining to fix a non-parole period
  • Whether the sentencing judge was required to indicate a non-parole period for the indicative sentence on the s 60(2) offence (which carries a standard non-parole period of 3 years) and failed to do so
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Fixed term as equivalent to non-parole period. The Court found that the sentencing judge intended the 20-month fixed term to equate to the non-parole period rather than to the total term of the sentence. The total of all indicative sentences came to 39 months, and the judge's reasons made clear that the aggregate was calibrated as a non-parole period equivalent. No error was established on this ground.

Ground 2: Irrelevant and irrelevant considerations. The Court rejected the contention that the sentencing judge had regard to irrelevant matters or ignored relevant ones. The judge's stated reasons for declining to set a non-parole period centred on the applicant's extensive criminal history (approximately 143 separate offences over twenty years), the demonstrated failure of all prior sentencing orders to deter him, and poor prospects of rehabilitation. These were legitimate considerations under s 45 of the Crimes (Sentencing Procedure) Act 1999.

Ground 3: Failure to indicate a non-parole period for the s 60(2) indicative sentence. The Court acknowledged that s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 required the sentencing judge to indicate a non-parole period for any indicative sentence on an offence carrying a standard non-parole period. The sentencing judge had not done this, but he had also not been told by either party that the s 60(2) offence carried a standard non-parole period of three years. The Court found that even accepting that some error occurred, it had no practical effect on the aggregate sentence and the ground was rejected. Davies J observed that the Crown bears a particular obligation to ensure a sentencing court is given all relevant information, including whether an offence carries a standard non-parole period.

Ground 4: Manifest excess. Counsel for the applicant conceded at the hearing that this ground would not be pressed if the Court accepted that the 20-month aggregate was intended as the non-parole period equivalent. The Court agreed the concession was properly made. Having regard to the maximum penalties, the standard non-parole period, and the applicant's lengthy criminal record with minimal mitigating subjective factors, the aggregate sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a sentencing judge's remarks on sentence make clear that a fixed aggregate term was intended to equate to the non-parole period, the Court of Criminal Appeal will read the sentence accordingly rather than treating the fixed term as the total head sentence.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may decline to set a non-parole period; an extensive criminal history, failure of all prior sentencing orders, and poor rehabilitation prospects are legitimate bases for that decision.
  • A failure to indicate a non-parole period for an indicative sentence on an offence carrying a standard non-parole period (s 54B(4)) constitutes potential error, but will not ground a successful appeal where the error had no effect on the aggregate sentence actually imposed.
  • In dismissing the appeal, the Court of Criminal Appeal noted that the Crown has a positive obligation to ensure the sentencing judge is informed of all relevant matters, including whether a particular offence carries a standard non-parole period. The errors giving rise to this appeal stemmed substantially from that information not being provided.
  • No single indicative sentence in an aggregate sentencing exercise operates in isolation; a high total of indicative sentences does not make the resulting aggregate manifestly excessive where it is calibrated as a non-parole period equivalent and reflects the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 60
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45, 54A, 54B, 166
- Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW)

Cases:
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Convery v R [2014] NSWCCA 93
- R v Dunn [2004] NSWCCA 346
- See v R [2020] NSWCCA 272
- Waterstone v R [2020] NSWCCA 117