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Court of Criminal Appeal 13 July 2022

Veale v R

[2022] NSWCCA 154

Sexual offencesPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE WHERE SENTENCING JUDGE FIXED NON

Citation: Veale v R [2022] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 13 July 2022
Judges: Meagher JA; Fullerton J; Ierace J

Background

The appellant pleaded guilty in the Newcastle District Court to two Commonwealth offences: using a carriage service to procure a person under 16 to engage in sexual activity (maximum 15 years), and using a carriage service to threaten to kill (maximum 10 years). A further offence of using a carriage service in a menacing, harassing or offensive way was taken into account under s 16BA of the Crimes Act 1914 (Cth). The conduct occurred in July 2020 and involved more than 2,000 calls and text messages to a 15-year-old complainant.

The sentencing judge in the District Court imposed aggregate sentences exceeding three years and, as required, fixed a single non-parole period. Notably, that non-parole period was fixed to expire on the very date of sentencing, 15 March 2022, and the judge recommended that the appellant be released on parole that day. The appellant had by that point served the equivalent of the non-parole period in custody.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge had misunderstood the operation of the Commonwealth parole provisions; and second, that the sentences were manifestly excessive given the appellant's significant psychiatric history.

  • Whether the sentencing judge proceeded on a mistaken belief that fixing a non-parole period expiring on the sentencing date, combined with a recommendation for immediate release, would in fact result in the appellant's release on parole that day.
  • Whether that misunderstanding, if established, constituted a miscarriage of the sentencing process requiring resentencing.
  • Whether, if ground 1 succeeded, the sentences imposed were manifestly excessive having regard to the appellant's psychiatric history (ground 2 only arising if resentencing was ordered).

Decision

The Court of Criminal Appeal upheld ground 1. Under the Commonwealth scheme, the Attorney-General (not the sentencing court) holds the power to release a federal offender on parole. Even where a non-parole period has expired, the Attorney-General must decide whether to make a parole order, and that process carries no guarantee of same-day release. The court found the sentencing judge had proceeded on the mistaken belief that fixing a non-parole period expiring on the sentencing date and recommending immediate release would actually produce that result.

Because a miscarriage of the sentencing process was established, the Court was required to resentence the appellant unless satisfied no different sentence should be imposed: Kentwell v The Queen (2014) 252 CLR 601. The Court concluded that resentencing was appropriate. Ground 2 therefore did not separately arise.

On resentencing, the Court restructured the sentences as two concurrent terms, both commencing on 16 October 2020, with the longer sentence (for the count 2 offence) expiring on 15 October 2023. Rather than fixing a non-parole period under s 19AB, the Court made a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). This was the appropriate mechanism given that, by the time of resentencing, the aggregate of the remaining sentences did not require the non-parole period regime previously applied. The order provided for the appellant's release on 15 July 2022, subject to conditions running until 15 October 2023.

Orders Made

  • Leave to appeal granted; appeal allowed; sentences imposed in the District Court set aside.
  • Two concurrent sentences of imprisonment imposed, both commencing 16 October 2020: the count 3 sentence expiring 15 October 2023 and the count 2 sentence also expiring 15 October 2023.
  • Recognizance release order made under s 20(1)(b) of the Crimes Act 1914 (Cth): the appellant to be released from imprisonment on 15 July 2022 upon giving security by recognizance of $100.
  • Release subject to 13 conditions running until 15 October 2023, including supervision by a probation officer (the Commissioner of Corrective Services NSW or nominee), compliance with reasonable directions, no interstate or overseas travel without written permission, attendance at treatment and rehabilitation programs as directed, compliance with prescribed medication, no communication or contact with the complainant (directly or indirectly), and reporting and notification obligations.
  • Failure to comply with conditions without reasonable excuse may result in a monetary penalty up to $1,000, extension of the recognizance period, or revocation of the release order and imprisonment for the unserved portion of the sentences.

Key Takeaways

  • Under the Commonwealth sentencing scheme, release on parole is the exclusive province of the Attorney-General, not the sentencing court. A court's recommendation for release, even accompanied by a non-parole period expiring on the sentencing date, does not compel or guarantee same-day release.
  • A sentencing judge who structures a federal sentence on the mistaken assumption that fixing a non-parole period to expire immediately will produce immediate parole release commits a sentencing error that constitutes a miscarriage of process, enlivening the appellate court's resentencing jurisdiction.
  • The Court of Criminal Appeal confirmed that, on resentencing following such a miscarriage, it is required to impose a fresh sentence unless satisfied no different sentence should be passed, consistent with the principle in Kentwell v The Queen.
  • Where the aggregate of remaining federal sentences no longer exceeds three years at the time of resentencing, the mandatory non-parole period regime under s 19AB of the Crimes Act 1914 (Cth) may not apply, and a recognizance release order under s 20(1)(b) may be the appropriate vehicle instead.
  • Section 19ALA(1)(f) of the Crimes Act 1914 (Cth) permits the Attorney-General to have regard to comments made by the sentencing court when deciding whether to make a parole order, but that provision does not alter the fundamental allocation of the release decision to the executive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 15YR, 16BA, 16F(1), 19AB, 19AC, 19AF(1), 19AH(1), 19AL, 19ALA(1)(f), 19AM(1), 20(1)(b), 20(1B), 20A(5)(c), 20AA, 20AB
- Criminal Code Act 1995 (Cth), ss 474.15, 474.17, 474.26
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48, 50
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32(3)(a)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Khawaja v Attorney-General (Cth) [2022] FCA 334
- Johan v R [2019] NSWCCA 126
- Whyte v R [2019] NSWCCA 218
- R v Muldrock [2010] NSWCCA 106