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Court of Criminal Appeal 9 August 2024

Hala v R

[2024] NSWCCA 146

Assault & violenceTheft & propertyPublic order & justice offences

Citation: Hala v R [2024] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 9 August 2024
Judges: Harrison CJ at CL, Dhanji J, Sweeney J

Background

The appellant was sentenced in the District Court on 6 June 2023 for offences arising from events in Griffith on 24 and 25 March 2022. Those offences included assaulting a police officer occasioning actual bodily harm, dealing with property suspected of being proceeds of crime (with two related offences on a Form 1), and escaping from lawful custody. Judge Grant imposed an aggregate sentence of 1 year and 10 months with a non-parole period of 1 year and 2 months, plus a concurrent 6-month term for the escape offence, with sentences commencing on 27 October 2024.

The escape arose after the appellant, having been refused bail in the Griffith Local Court, placed the arresting officer in a headlock, threw her to the ground, took her access card and fled the police station. The officer sustained a dislocated coccyx and other injuries. The appellant was at large until 13 May 2022, when he was apprehended and remanded in custody, and his parole for an earlier aggravated break and enter offence was subsequently revoked.

The appellant did not challenge the terms of the sentences, the findings of the sentencing judge, or the non-parole period. His sole challenge was to the commencement date of 27 October 2024, which he contended was significantly later than it should have been.

  • Whether the sentencing judge erred by failing to consider section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when fixing the commencement date, thereby misapprehending the scope of the discretion available.
  • Whether the sentencing judge failed to adequately consider the effect of delay in fixing that commencement date.
  • Upon resentencing, whether section 57 of the Crimes (Sentencing Procedure) Act 1999 (NSW) required the escape sentence to be accumulated rather than run concurrently with the aggregate sentence.

Decision

The Crown conceded that it was open to the Court to find error in relation to ground 1(a), namely that the sentencing judge had not turned his mind to section 47 of the Crimes (Sentencing Procedure) Act 1999. Both counsel acknowledged that the sentencing judge had not received the assistance he was entitled to on these issues. The Court accepted the concession and granted leave to appeal.

Once resentencing was engaged, the Court also identified a separate error in the original sentence that required correction: the escape sentence had been imposed concurrently, when section 57 of the Crimes (Sentencing Procedure) Act 1999 required it to be cumulative. This provision had not been addressed before Judge Grant. The Court noted that this was an error to the appellant's advantage in the original sentence but one that had to be corrected on resentencing.

Sweeney J restructured the sentences to account for the totality of the appellant's criminality, including the earlier affray sentence imposed by Judge Turnbull SC at Bathurst in April 2023. Special circumstances were found to exist, justifying a reduction in the non-parole period for the aggregate sentence, on the basis that the escape sentence was required to accumulate onto it. The commencement date was set at 10 September 2023, which was described as partially accumulated on the affray sentence and responsive to the date of the appellant's Local Court plea, the date of sentencing in the District Court, the date of parole revocation, and the expiry of the non-parole period for the affray sentence.

The Court acknowledged that the final result was shaped by a "difficult combination of factors" extending beyond the offences and the offender themselves, including the unusual timeline of the various offences and the constraints on the Court of Criminal Appeal in dealing with a sentence appeal. The total non-parole period across the current period in custody slightly exceeded the statutory ratio, but the Court was satisfied this was appropriate having regard to the interests of the appellant, the victims and the community.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Grant on 6 June 2023 quashed.
  • In lieu thereof, the appellant resentenced as follows:
  • Proceeds of crime offence (taking into account two Form 1 offences): 6 months imprisonment (indicative sentence after 25% guilty plea discount).
  • Assault of police officer occasioning actual bodily harm: 18 months imprisonment with a non-parole period of 6 months (indicative sentence after 25% guilty plea discount).
  • Aggregate sentence for those two offences: 21 months imprisonment with a non-parole period of 6 months, commencing 10 September 2023, non-parole period expiring 9 March 2024.
  • Escaping from lawful custody: 6 months imprisonment commencing 10 March 2024, expiring 9 September 2024.
  • Total sentence to expire 9 June 2025.
  • Appellant to be released to parole on 9 September 2024.

Key Takeaways

  • A failure by a sentencing judge to turn their mind to section 47 of the Crimes (Sentencing Procedure) Act 1999 when fixing a commencement date constitutes an error in the exercise of the sentencing discretion, as the Crown in this matter conceded.
  • Under section 57 of the Crimes (Sentencing Procedure) Act 1999, a sentence for escaping from lawful custody must be accumulated on the existing sentence being served at the time of the escape; a concurrent term is not permissible, and where that error benefits an offender at first instance, the Court of Criminal Appeal must correct it on resentencing.
  • In resentencing under the principles in Kentwell v The Queen (2014) 252 CLR 601, the Court of Criminal Appeal must assess the totality of the offender's current criminality and ensure the overall sentencing structure reflects all sentences bearing on the offender's circumstances, including sentences imposed by other courts between the original sentencing and the appeal.
  • Where errors in the original sentence operated both to the offender's disadvantage and to their advantage, the Court of Criminal Appeal may correct both categories of error when conducting a full resentencing exercise.
  • The final outcome in this matter was described by Dhanji J as resulting from an unusual convergence of factors, including a complex custodial and procedural timeline, and the Court's observations about the adequacy of assistance given to the sentencing judge at first instance serve as a reminder of the importance of full submissions on commencement date and cumulation obligations.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly sections 47 and 57
- Crimes Act 1900 (NSW), sections 60 and 193C(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), section 166

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- White v R [2016] NSWCCA 190