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Court of Criminal Appeal 27 November 2024

Pritchard v R

[2024] NSWCCA 215

Assault & violence

Citation: Pritchard v R [2024] NSWCCA 215
Court: Court of Criminal Appeal, NSW
Date: 27 November 2024
Judges: Fagan J, Chen J, Sweeney J

Background

The applicant was serving an aggregate sentence of nine years' imprisonment (commencing 23 December 2019, expiring 22 December 2028) for serious offences including aggravated sexual assault and inflicting actual bodily harm. While in custody, he committed a further offence: assault occasioning actual bodily harm in company against a fellow inmate on 9 December 2020. The assault was a calculated attack, carried out with another inmate, targeting a young and vulnerable prisoner to steal his "buy ups" (purchased goods).

The applicant pleaded guilty and was sentenced in the District Court at Port Macquarie on 26 October 2022. Judge Flannery SC imposed a fixed term of 18 months' imprisonment, backdated so that it commenced partway through the applicant's existing non-parole period. A related larceny offence was taken into account on a Form 1 (a mechanism under NSW law where an offender formally acknowledges additional offences so the sentencing court can increase the penalty accordingly).

The applicant sought leave to appeal, arguing that the sentencing judge failed to give reasons for imposing a fixed term rather than a sentence with a non-parole period, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to provide reasons for declining to set a non-parole period, as required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the total sentence was manifestly excessive, having regard to the applicant's age, deprived background, and positive conduct in custody
  • Whether, following the identification of error, a lesser sentence was warranted in law upon resentencing

Decision

Ground 1: Failure to give reasons. All three judges agreed that the sentencing judge erred by not stating her reasons for imposing a fixed term rather than a sentence with a separate non-parole period and balance of term. Section 45(2) of the Crimes (Sentencing Procedure) Act requires reasons to be given in those circumstances. The error was established, which obliged the Court of Criminal Appeal to re-exercise the sentencing discretion.

Ground 2: Manifest excess. Sweeney J was not persuaded that the sentence was manifestly excessive. While the applicant pointed to his youth (21 at the time of the offence), deprived upbringing, and positive conduct in custody, other factors weighed against him. These included a serious criminal history (which her Honour found disentitled the applicant to leniency), a qualified finding of remorse, the Form 1 larceny (which required greater weight on personal deterrence and retribution), and the premeditated nature of the offence in a custodial setting, which called for strong general deterrence.

Resentencing. Although error was found on ground 1, all three judges concluded that no lesser sentence than the 18-month fixed term was warranted in law. The Court maintained the fixed term structure. Because the new sentence fell entirely within the currency of the applicant's existing head sentence, it was not practical to build in a separate parole period. Backdating commencement to sit within the existing non-parole period was described as a practical and fair approach that effectively replicated a 50% non-parole period without unduly extending the applicant's total time without parole eligibility. Fagan J noted that some increase in the ratio of non-parole time to total effective sentence is an unavoidable consequence expressly contemplated by ss 47 and 56 of the Act when an offence is committed in custody.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 45(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing judge must give reasons for declining to set a non-parole period; failure to do so constitutes a legal error requiring the appellate court to re-exercise the sentencing discretion.
  • Identifying a sentencing error does not automatically produce a lesser sentence. The Court of Criminal Appeal re-exercised the discretion independently and reached the same outcome as the original sentencing judge.
  • Where a custodial offence sentence falls entirely within the currency of an existing head sentence, imposing a fixed term (rather than a sentence with a non-parole period) may be a legitimate and practical approach, provided the commencement date is structured to replicate a fair non-parole equivalent.
  • Offences committed in custody, particularly those involving premeditated violence against vulnerable inmates, attract strong general deterrence considerations; the Court affirmed that such offences ordinarily call for cumulative sentences under s 56 of the Act.
  • In dismissing the appeal, the Court confirmed that the applicant's positive conduct in custody was acknowledged but did not, in combination with his other subjective circumstances, justify reducing an 18-month fixed term for a serious in-custody assault accompanied by a Form 1 larceny.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly ss 44, 45, 47, 56
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Murray v R [2024] NSWCCA 107
- R v Jeremiah [2016] NSWCCA 241
- R v Windle [2012] NSWCCA 222
- RO v R [2019] NSWCCA 183
- Turnbull v R [2019] NSWCCA 97