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Court of Criminal Appeal 1 December 2023

Primmer v R

[2023] NSWCCA 301

Fraud & dishonesty

Citation: Primmer v R [2023] NSWCCA 301
Court: NSW Court of Criminal Appeal
Date: 1 December 2023
Judges: Davies J, Cavanagh J, Sweeney J (Sweeney J delivering the principal judgment)

Background

The applicant pleaded guilty in the Local Court to one count of demanding money with menaces, contrary to s 99(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years imprisonment. The offence involved threatening phone calls made to a victim, in which the applicant demanded $15,000 and made explicit threats of violence against the victim, his wife, and children. A second person associated with the victim was also threatened.

At the time of the offence, the applicant was on parole for prior offences of violence. His parole was revoked with effect from 22 September 2020, the day after his arrest. When he came to be sentenced in the District Court on 1 July 2022, he was still serving the balance of that parole period.

The sentencing judge imposed a sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months, commencing on 22 September 2022. That commencement date was set by accumulating the new sentence on the balance of parole by approximately two years. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by ordering a future commencement date for the sentence, contrary to s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge failed to take into account the delay between the offence and sentencing when determining the commencement date
  • Whether the sentencing judge failed to have regard to the fact that the applicant's parole had been revoked because of the very offence for which he was being sentenced
  • Whether the sentence was manifestly excessive

Decision

Ground 1(a): Section 47(5) error. The Crown conceded that the sentencing judge erred by directing the sentence to commence on a date after the date of sentencing. Section 47(5) of the Crimes (Sentencing Procedure) Act 1999 prohibits a court from ordering a future commencement date where an offender is serving a sentence, the non-parole period of that sentence has expired, and the offender remains in custody under it. That was precisely the applicant's position at the time of sentencing, and the sentencing judge's approach was therefore contrary to the statute.

Ground 1(b) and (c): Delay and parole revocation. Both counsel accepted that the sentencing judge had not been given adequate assistance on these issues at first instance. The Court noted that new arguments not raised below face a high threshold, but confirmed (drawing on White v R and Tompkins v R) that the Court of Criminal Appeal may intervene where justice demands it, even where the omission was that of defence counsel and the sentencing judge. The Court accepted that the delay in the sentencing process was a relevant matter. It also accepted that the revocation of the applicant's parole resulted directly from the commission of the offence for which he was being sentenced, a consideration recognised in White v R and Callaghan v R as relevant to how accumulation is approached.

Resentencing. Because error was established, the Court resentenced the applicant in accordance with Kentwell v The Queen. The head sentence and non-parole period remained the same (4 years with a non-parole period of 2 years and 6 months), and the finding of special circumstances and the ratio between the non-parole period and the total sentence were maintained. However, the Court backdated the commencement of the sentence to 12 October 2021, the date of the applicant's guilty plea in the Local Court, to account for delay and the parole revocation circumstances. The ground of manifest excess was not upheld.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed by Judge Ingram SC on 1 July 2022 is quashed.
  • In lieu thereof, the applicant is sentenced for the offence of demanding money with menaces to imprisonment for 4 years with a non-parole period of 2 years and 6 months, commencing on 12 October 2021, with the sentence expiring on 11 October 2025 and the non-parole period expiring on 11 April 2024.

Key Takeaways

  • Section 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits a court from directing that a sentence commence on a future date where the offender is in custody serving a sentence whose non-parole period has already expired. The Crown conceded, and the Court accepted, that the sentencing judge's order in this case fell squarely within that prohibition.
  • Under the approach confirmed in White v R and Tompkins v R, the Court of Criminal Appeal retains the power to intervene even where relevant arguments were not raised before the sentencing judge, where the interests of justice require it.
  • Where an offender's parole is revoked as a direct consequence of the offence for which they are being sentenced, that connection is a relevant consideration when determining commencement date and accumulation, as recognised in Callaghan v R and White v R.
  • Delay in the sentencing process is a factor properly taken into account when fixing the commencement date of a sentence, and failure to do so may constitute error on appeal.
  • Once appellate error is established, the Court of Criminal Appeal resentences afresh in accordance with Kentwell v The Queen, taking into account all relevant factors including those not addressed at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 99(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(5)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Fernando [2002] NSWCCA 28
- R v Millwood [2012] NSWCCA 2
- Tompkins v R [2019] NSWCCA 37
- White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302
- Zreika v R [2012] NSWCCA 44; (2012) 233 A Crim R 460