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Court of Criminal Appeal 7 May 2021

Tammer-Spence v R

[2021] NSWCCA 90

Assault & violence
WHERE TOTAL EFFECTIVE RATIO WAS 76.9% HELD, NO ERROR

Citation: Tammer-Spence v R [2021] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 7 May 2021
Judges: Bathurst CJ, Price J, N Adams J

Background

The applicant was an inmate at Long Bay Gaol when, in November 2016, he committed a series of violent offences against a fellow inmate who had recently been placed in his cell. The offences included demanding money under threat of violence, pouring boiling water over the victim causing burns to 15% of his body surface area, and then detaining the victim overnight to prevent him from raising the alarm. The victim required surgery, spent three months in hospital, and was left with permanent scarring.

At the time of the offences, the applicant was already serving a six-year sentence that had commenced when he was 18 years old. A jury convicted him of demanding property with menaces in company, recklessly causing grievous bodily harm, and detaining for advantage in aggravated circumstances. He was acquitted of the more serious charge of causing grievous bodily harm with intent.

On 1 March 2019, the sentencing judge (Arnott SC DCJ in the District Court) imposed an aggregate sentence of seven years' imprisonment, commencing on 23 November 2017 (the expiry of his existing head sentence) with a non-parole period of four years. The applicant sought leave to appeal against that sentence on two grounds.

  • Whether the sentencing judge erred in fixing the commencement date of the new sentence at the expiry of the applicant's existing head sentence, rather than at an earlier date
  • Whether the sentencing judge erred by failing to give adequate effect to a finding of special circumstances, having regard to the total effective sentence to be served when the new sentence was accumulated onto the existing one

Decision

On the first ground, the Court of Criminal Appeal noted that s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) creates a presumption that a sentence for an offence committed in custody commences at the expiration of the offender's existing sentence. The applicant argued that the sentencing judge should have departed from that default position. The Court rejected this argument, finding no error in the decision to commence the sentence consecutively. The offences were serious, committed in a custodial environment, and considerations of general deterrence and discipline within that environment were properly relevant. The sentencing judge had expressly turned his mind to the commencement date and there was no basis for appellate interference.

On the second ground, the applicant contended that, when the aggregate sentence was accumulated onto the existing sentence, the total effective ratio of non-parole period to head sentence rose to approximately 76.9%, effectively neutralising the benefit of the special circumstances finding. The Court acknowledged that a finding of special circumstances can be undermined where accumulation produces a total effective ratio close to the statutory default of 75%. However, the Court found that the sentencing judge had expressly identified the accumulation of sentences as one of the bases for his special circumstances finding. This demonstrated that his Honour had the effect of accumulation in mind when structuring the sentence.

The Court was satisfied that the total ratio of approximately 76.9% reflected the sentencing judge's actual intention rather than any inadvertence or arithmetic error. The Court also noted that the seriousness of the offending placed real constraints on how far the non-parole period could have been reduced without failing to reflect the criminality involved. The applicant showed no remorse and received no discount for a guilty plea. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence for an offence committed in custody presumptively commences at the expiry of the offender's existing sentence; the Court of Criminal Appeal confirmed that this default position reflects legitimate penological considerations, including general deterrence and custodial discipline.
  • A finding of special circumstances is not automatically undermined simply because accumulation of sentences produces a total effective ratio close to the statutory 75% default; the critical question is whether the total ratio reflects the sentencing judge's actual intention or reveals inadvertence or miscalculation.
  • Where a sentencing judge expressly identifies accumulation of sentences as a basis for finding special circumstances, that express acknowledgment strongly indicates the result was intentional, not the product of error.
  • No error was established merely because the total effective ratio across accumulated sentences exceeded the ratio applied to the index offences in isolation; the Court confirmed that the analysis requires consideration of the sentencing judge's stated reasoning, not arithmetic alone.
  • The gravity of the underlying offending and the absence of mitigating factors such as a guilty plea or remorse placed practical limits on the extent to which a non-parole period could be reduced, even where special circumstances were found.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47, 56
- Crimes Act 1900 (NSW), ss 35(2), 86(2)(b), 99(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen (2013) 249 CLR 571
- Power v The Queen (1973) 131 CLR 623
- Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18
- Islam v R [2020] NSWCCA 236
- Qoro v R [2020] NSWCCA 276
- Elwood v R [2019] NSWCCA 315
- Brennan v R [2018] NSWCCA 22
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- GP v R [2017] NSWCCA 200
- MD v R [2015] NSWCCA 37
- Maglovski v R [2014] NSWCCA 238
- Delaney v R [2013] NSWCCA 150
- Gray v R [2013] NSWCCA 169
- CM v R [2013] NSWCCA 341
- Barrett v R [2011] NSWCCA 213
- Caristo v R [2011] NSWCCA 7
- R v Wakefield [2010] NSWCCA 12