Citation: Scholte v Rex [2023] NSWCCA 318
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2023
Judge(s): Simpson AJA (principal judgment); Button J and Weinstein J agreeing
Background
The appellant was sentenced in the District Court at Goulburn in September 2022 following his conviction, after a jury trial, on a charge of using an offensive weapon in company with intent to commit an indictable offence. He had earlier pleaded guilty to possessing an unauthorised firearm and common assault. A further charge of failing to take all reasonable precautions for the safe keeping of a firearm was dealt with by way of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
All four offences arose from a single incident on 31 October 2020 at a rural property near Goulburn. During a late-night dispute over the possession of a vehicle and a dog, the appellant arrived at the scene carrying a loaded shotgun, pointed it at the victim, and then punched him. The shotgun was later found concealed under a mattress on the verandah of the house where the appellant lived.
The sentencing judge imposed an aggregate sentence of five years' imprisonment with a non-parole period of two years and six months. The appellant sought leave to appeal on a single ground, which the Crown conceded.
Legal Issues
- Whether the aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was irreconcilable with the sentencing judge's stated intentions regarding the accumulation of the individual indicative sentences, constituting a sentencing error.
- What aggregate sentence was appropriate, having regard to the nature of the offences, the general need for some degree of accumulation across the counts, and the appellant's substantial subjective circumstances.
Decision
The Crown conceded that the aggregate sentence of five years could not be reconciled with what the sentencing judge said he intended when nominating the indicative sentences for each individual offence. That concession was rightly made, and the Court of Criminal Appeal accepted it as establishing error warranting resentencing.
Approaching the matter afresh, Simpson AJA held that some degree of accumulation across all four counts was ordinarily required. The possession of the unauthorised firearm (Count 1) and its use to threaten the victim (Count 3) involved distinct aspects of criminality, as did the assault (Count 2) and the prolonged failure to store the firearm safely. Purely concurrent sentences would not have adequately reflected the separate wrongdoing involved in each offence.
Against that, the appellant's personal circumstances carried significant weight in compressing the notional sentences into an appropriate aggregate. The medical evidence was described as "powerful": the appellant suffers from cardiomyopathy, congestive cardiac failure, morbid obesity, poorly controlled diabetes, chronic kidney disease, cognitive impairment following a stroke, severe depression, and osteomyelitis, among other conditions. Evidence that he had been denied access to some required medications and podiatry services since incarceration was not challenged and was taken into account.
Simpson AJA proposed notional individual sentences totalling six years and one month. Taking the appellant's serious medical history and the hardship of imprisonment for a person in his condition into account, the Court reduced the aggregate sentence to four years with a non-parole period of two years, commencing from the date of the jury verdict.
Orders Made
- Leave granted to appeal against the sentence imposed on 20 September 2022.
- Appeal allowed; sentence quashed.
- In lieu thereof, the appellant sentenced to imprisonment comprising a non-parole period of 2 years, commencing 29 July 2022 and expiring 28 July 2024, and a balance of term of 2 years expiring 28 July 2026.
Key Takeaways
- An aggregate sentence imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that cannot be reconciled with the sentencing judge's stated intentions on accumulation of indicative sentences constitutes identifiable error, warranting appellate intervention.
- Where multiple firearms offences arise from the same incident, the Court of Criminal Appeal confirmed that the possession and use of the weapon involve distinct aspects of criminality that ordinarily call for some degree of accumulation rather than full concurrence.
- Powerful and uncontested medical evidence about an offender's condition, including evidence of difficulties accessing adequate healthcare during incarceration, can carry significant weight in compressing individual notional sentences into a reduced aggregate.
- In resentencing under s 53A, the Court approaches the task with fresh eyes and is not bound by the indicative sentences nominated by the sentencing judge, provided the result is consistent with proper sentencing principle.
- The notional sentences nominated by the Court of Criminal Appeal (15 months, 4 months, 4 years, and 6 months respectively across the four counts) exceeded some of those set by the sentencing judge, but the aggregate sentence was ultimately reduced from five years to four years, reflecting the weight given to the appellant's subjective circumstances.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 166
- Criminal Procedure Act 1986 (NSW), ss 33B, 61
- Firearms Act 1996 (NSW), ss 7A, 39
- Crimes Act 1900 (NSW), ss 33B, 61
Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255