Citation: Moye v R [2022] NSWCCA 96
Court: Court of Criminal Appeal, NSW
Date: 13 May 2022
Judges: Basten AJA; Price J; N Adams J
Background
The appellant had been sentenced in the District Court at Lismore on 28 October 2020 to an aggregate term of six years' imprisonment, with a non-parole period of three years and nine months, commencing 20 October 2020. He had pleaded guilty to 16 counts on indictment and five further offences transferred from the Local Court under a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The offences included multiple counts of break, enter and steal, receiving stolen property, possessing property suspected of being proceeds of crime, and drug offences.
Two sentencing errors came to light on appeal. First, for three of the s 166 certificate offences (goods on premises suspected of being stolen, contrary to s 527C(1)(c) of the Crimes Act 1900 (NSW)), the sentencing judge stated the maximum penalty was two years' imprisonment when the correct maximum was six months. Second, the sentencing judge misstated the commencement date of the appellant's pre-sentence custody, resulting in only eight days' backdating rather than the nine months and four days to which the appellant was entitled.
The Crown conceded both errors and agreed the appeal should be upheld, with the Court proceeding to re-sentence the appellant.
Legal Issues
- Whether the sentencing judge erred by applying the wrong maximum penalty for three goods-on-premises offences under s 527C(1)(c) of the Crimes Act 1900 (NSW)
- Whether the sentencing judge erred by failing to account for the full period of pre-sentence custody during which the appellant had been bail refused solely in relation to the District Court charges
- What sentence was appropriate on re-sentence, including whether more favourable subjective findings should be made following affidavit evidence tendered at the re-sentencing hearing
Decision
On Ground 1, Price J confirmed the error was plain. The sentencing judge had indicated sentences of six months' imprisonment for each of the three goods-on-premises offences, apparently treating the maximum as two years. Because the correct maximum was six months, the indicative sentences were recalibrated to two months each on re-sentence. The Court adopted the sentencing judge's findings of objective seriousness and all other indicative sentences that had not been challenged on appeal.
On Ground 2, the custodial history showed the appellant had been arrested and bail refused on the District Court charges on 27 July 2019. He was not sentenced in the Local Court for unrelated matters until 30 April 2020, meaning he had been held on remand solely for the District Court offences for nine months and four days. The sentencing judge had only backdated the aggregate sentence by eight days. The Court found the full period of nine months and four days had to be accounted for.
On re-sentence, the Court declined to make more favourable subjective findings than the sentencing judge despite affidavit evidence being tendered. The Court adopted the sentencing judge's findings, including that the appellant's criminal history called for specific deterrence and community protection, that his moral culpability was not reduced by his background or depressive disorder, and that his self-medication with drugs did not mitigate his offending. A finding of special circumstances was maintained, preserving the ratio between the head sentence and the non-parole period at 62.5%.
N Adams J added a pointed observation about the responsibility of legal practitioners at sentencing. His Honour noted that both errors were identifiable at the time of the hearing and should have been corrected by the practitioners present, whether by interjection after the reasons were given or before the sentence was formally passed. His Honour described this as a duty of legal practitioners appearing on sentence.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Sentence imposed by McLennan SC DCJ on 28 October 2020 quashed
- In lieu thereof, the appellant sentenced to an aggregate term of imprisonment of 5 years and 9 months, commencing 25 July 2020, with a non-parole period of 3 years, 7 months and 4 days, expiring 28 February 2024
- Earliest date eligible for release to parole: 29 February 2024
Key Takeaways
- Under s 527C(1)(c) of the Crimes Act 1900 (NSW), the correct maximum penalty for goods on premises suspected of being stolen is six months' imprisonment, not two years. Applying the wrong maximum penalty is a material error that will vitiate the sentence.
- Where a sentencing judge misstates the period of pre-sentence custody, the full period during which an offender was bail refused solely in relation to the charges being sentenced must be accounted for in the backdating of the sentence.
- Upholding the appeal did not automatically lead to more favourable subjective findings. The Court of Criminal Appeal conducted a full re-sentence but adopted the original judge's findings where they were well-founded and unchallenged.
- In dismissing any basis for enhanced leniency, the Court confirmed that a persistent depressive disorder and a history of drug self-medication will not necessarily reduce moral culpability or render an offender unsuitable for general deterrence.
- Practitioners appearing at sentencing bear a duty to identify and draw to the court's attention errors in the statement of maximum penalties and in the backdating of sentences, at a minimum after reasons are delivered and before the sentence is formally passed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(1)(a), s 148, s 188, s 193C(2), s 527C(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drugs Misuse and Trafficking Act 1985 (NSW), s 10, s 23(1)(a)
Cases cited: None