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Court of Criminal Appeal 5 September 2023

Browne v R

[2023] NSWCCA 218

Theft & property
CRIMINAL LAW SENTENCE APPEAL ERROR IN COMMENCEMENT DATE

Citation: Browne v R [2023] NSWCCA 218
Court: Court of Criminal Appeal, NSW
Date: 5 September 2023
Judges: Kirk JA, Button J, Lonergan J

Background

The appellant pleaded guilty in the Local Court to aggravated break, enter and commit indictable offence under s 112(2) of the Crimes Act 1900 (NSW), with two further offences taken into account on a Form 1 certificate and a driving while disqualified offence dealt with separately. He was sentenced in the District Court on 21 April 2022 to 4 years and 3 months imprisonment with a non-parole period of 2 years and 9 months, with the sentence ordered to commence on 22 June 2022, roughly two months after the sentencing date.

A key complication was the appellant's custodial history. He had been arrested on 18 November 2020 and had been in continuous custody since that date, serving the balance of a revoked parole period from an earlier sentence. That revocation occurred because of the very offences now before the court. The non-parole period for the earlier sentence had already expired on 9 October 2020, meaning the appellant was serving the revoked parole portion of that sentence when he was sentenced on 21 April 2022.

The appellant sought leave to appeal on two grounds: first, that his sentence was disproportionately harsh compared to that of his co-offender (a parity ground); and second, that the sentencing judge erred in setting the commencement date at 22 June 2022 rather than at or before the date of sentence. The Crown conceded the second ground.

  • Whether the sentencing judge erred by ordering the sentence to commence on a date after the date of sentencing, in circumstances where the appellant was "still in custody under" an earlier sentence within the meaning of s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the appellant had a justifiable sense of grievance arising from a disparity between his sentence and the indicative sentence given to his co-offender, Kayne Hall

Decision

Ground 2: Commencement date error

Section 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits a court from directing that a sentence commence on a date after the date it is imposed if the offender is still in custody under another sentence. Because the appellant's non-parole period for the earlier sentence had already expired before 21 April 2022, and parole had been revoked, he was serving the balance of that earlier sentence on the date he was sentenced. This meant the sentencing judge was statutorily prohibited from nominating a commencement date of 22 June 2022. The Crown appropriately conceded this error, which constituted a "Kentwell error" requiring resentencing.

Parity (Ground 1)

Because error was established on Ground 2, the Court did not need to separately resolve the parity ground. Parity considerations were nonetheless taken into account during resentencing. The Court noted that the co-offender Hall's indicative sentence for the shared break and enter offence was 3 years with a 2-year non-parole period. The appellant's more extensive criminal record of similar offending justified a higher non-parole period, but the overall head sentence was reduced to 3 years on resentencing.

Resentencing: commencement date and double punishment concerns

The Court fixed the commencement date as 14 February 2022, the date the sentence hearing concluded. In doing so, the Court noted the principle from White v R [2016] NSWCCA 190 that where parole is revoked solely because of the commission of the offences being sentenced, any accumulation risks the appearance of double punishment. The final sentence imposed was 3 years imprisonment with a non-parole period of 2 years and 3 months, commencing 14 February 2022, with a concurrent 6-month term for the driving while disqualified offence also commencing that date.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by the District Court on 21 April 2022 quashed
  • In lieu: imprisonment for 3 years commencing 14 February 2022 and expiring 13 February 2025, with a non-parole period of 2 years and 3 months commencing 14 February 2022 and expiring 13 May 2024 (for the aggravated break, enter and commit indictable offence, taking into account the Form 1 offences)
  • Imprisonment for 6 months commencing 14 February 2022 and expiring 13 August 2022, to be served concurrently (for driving whilst disqualified)
  • 12-month disqualification from driving
  • Earliest eligible parole release date: 13 May 2024

Key Takeaways

  • Under s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court is prohibited from ordering a sentence to commence on a date after the date of sentence if the offender remains in custody under an earlier sentence on that date. This prohibition applies even where the offender is serving a revoked parole period and the original non-parole period for the earlier sentence has already expired.
  • A failure to comply with s 47(5) constitutes a "Kentwell error," which requires the Court of Criminal Appeal to quash the sentence and resentence the offender.
  • Where parole revocation arises solely from the commission of the offences being sentenced, any accumulation of that period upon the new sentence carries at least the appearance of double punishment, a consideration recognised in White v R [2016] NSWCCA 190.
  • In resentencing, the Court of Criminal Appeal confirmed it will take parity principles into account even where a separate parity ground does not require independent determination, ensuring the re-imposed sentence bears an appropriate relationship to sentences given to co-offenders for shared offending.
  • Factual errors in agreed facts and sentencing remarks (here, a mischaracterisation of the conspiracy charge applicable to the appellant) may not themselves constitute appeal grounds but can still affect the analysis of related grounds including parity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 112(2), 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47 (particularly s 47(5))
- Criminal Procedure Act 1986 (NSW)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- White v R [2016] NSWCCA 190
- R v Gray [2018] NSWCCA 241
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DS v R [2014] NSWCCA 267
- Kadwell (a pseudonym) v R [2021] NSWCCA 4
- Kelly v R [2017] NSWCCA 256