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Court of Criminal Appeal 26 July 2024

Brown v R

[2024] NSWCCA 136

Assault & violenceTheft & property
CRIME APPEALS SENTENCE APPEAL PAROLE PERIOD AND TOTAL HEAD SENTENCE WHERE SPECIAL CIRCUMSTANCES NOT FOUND APPEAL ALLOWED

Citation: Brown v R [2024] NSWCCA 136
Court: New South Wales Court of Criminal Appeal
Date: 26 July 2024
Judges: Harrison CJ at CL, Button J, Dhanji J

Background

The applicant pleaded guilty to five property offences in the District Court at Campbelltown in November 2023, with two further offences taken into account on a Form 1. The offending occurred over approximately 45 minutes on 23 May 2022 and included entering an occupied dwelling-house with intent to steal, the theft of two motor vehicles, a demand with menaces, and the deliberate destruction of a vehicle by fire.

At the time of offending, the applicant had been on parole for only around three months following a sentence for a prior serious offence. The State Parole Authority subsequently revoked his parole from the date of the new offending, leaving a balance of parole of approximately 2 years, 5 months, 3 weeks, and 4 days to be served.

The sentencing judge imposed an aggregate sentence of 4 years and 6 months, with a non-parole period of 3 years and 4 months, dated from 1 February 2023. No finding of special circumstances was made, and the ratio between the head sentence and the non-parole period was 74%. However, because the new sentence commenced partway through the service of the parole balance, its partial cumulation on that balance produced a higher effective ratio across the total time to be served.

  • Whether the sentencing judge erred by failing to account for the effect of the applicant's balance of parole on the total effective ratio between the non-parole period and head sentence across both terms.
  • Whether it was double counting to find, as an aggravating circumstance, that an offence of entering a dwelling-house with intent to commit larceny was committed in a "home," when the dwelling-house element was part of the charge itself.
  • Whether the aggregate sentence was manifestly excessive having regard to the applicant's profound disadvantage, mental illness, and drug dependence, weighed against his extensive criminal history and the seriousness of the offending.

Decision

Ground 1: Parole balance and the statutory ratio

The Court found that the partial cumulation of the new aggregate sentence on the balance of parole, when considered in totality, produced a total effective ratio of approximately 77.5% between the total non-parole period and total head sentence. No special circumstances had been found and no reasons had been given for extending the usual 75% ratio. The sentencing judge had not been alerted to this effect by either party, but the error was nonetheless established.

In additional reasons, Dhanji J (with whom the other judges agreed) concluded that a simple arithmetic correction was not appropriate. Because the finding of special circumstances and any consequential adjustment to the non-parole period could not be separated from the broader sentencing discretion, the Court was required to resentence the applicant afresh under the principles in Kentwell v The Queen and Lehn v R. The applicant was resentenced to an aggregate term of 4 years, with a non-parole period of 2 years and 10 months, to produce an overall ratio of 75%.

Ground 2: Aggravating factor and double counting

The Court acknowledged a "flavour of practical double counting" in treating the commission of the offence in a home as an aggravating feature, given that the charge itself required entry into a dwelling-house. However, consistent with prior decisions of the Court, the offence under section 111(2) of the Crimes Act 1900 (NSW) has a broad statutory definition of "dwelling-house" that extends beyond a domestic home. The concept of a "home" captures something more specific than the wider statutory term, so applying the aggravating circumstance did not constitute legal error. Dhanji J noted some tension between this line of authority and cases where aggravating factors closely inherent to an offence have been found to produce impermissible double counting, but did not resolve that tension given the outcome on ground 1. This ground was not upheld.

Ground 3: Manifest excess

The Court accepted that the applicant's background of profound deprivation, history of abuse, psychological difficulties, and substance dependence were relevant mitigating considerations that could not be ignored. Nevertheless, those matters had to be weighed against his extensive criminal history, documented non-compliance in custody and the community, and the seriousness of the offending itself. The Court was not satisfied that the aggregate sentence was manifestly excessive, and this ground was not upheld.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed on ground 1.
  • Applicant resentenced to an aggregate sentence of 4 years imprisonment.
  • Non-parole period reduced to 2 years and 10 months, producing a total effective ratio of 75%.

Key Takeaways

  • Where a new sentence is partly cumulative on a balance of parole being served, the total effective ratio between the non-parole period and head sentence across all terms must be considered, not just the ratio within the new sentence itself. Failure to do so, particularly where no special circumstances are found, can constitute a sentencing error.
  • Both parties bear responsibility for alerting the sentencing court to the effect that cumulation on an existing parole balance will have on the overall sentencing ratio.
  • Under the principles in Kentwell v The Queen and Lehn v R, an adjustment to a non-parole period to account for cumulation on prior terms cannot be made by simple arithmetic correction. It requires the appellate court to re-exercise the full sentencing discretion.
  • The statutory definition of "dwelling-house" in the Crimes Act 1900 (NSW) is broader than the concept of a "home." Existing authority in the Court of Criminal Appeal supports the position that treating commission of an offence in a home as an aggravating feature does not constitute double counting merely because the charge requires entry into a dwelling-house, though Dhanji J flagged some unresolved tension in the authorities.
  • A profoundly deprived background and history of abuse are relevant mitigating considerations, but will not alone render a sentence manifestly excessive where an applicant's criminal history, non-compliance, and the gravity of the offending weigh heavily in the other direction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 4, 99(1), 105A(f), 111(2), 112, 117, 154F, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(eb)
- Criminal Appeal Act 1912 (NSW) s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW) s 10(1)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
- Christian v R [2021] NSWCCA 300
- R v Bennett (2014) 254 A Crim R 1; [2014] NSWCCA 197
- Chung v R [2017] NSWCCA 48
- BB v R [2017] NSWCCA 189
- Elyard v R (2006) 45 MVR 402; [2006] NSWCCA 43
- Huang v R [2017] NSWCCA 312
- Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237
- DB v R [2024] NSWCCA 18
- Sausa v R [2023] NSWCCA 95
- Brennan v R [2018] NSWCCA 22
- Hardey v R [2019] NSWCCA 310