New South Wales Court of Criminal Appeal CITATION : R v IRVING [2003] NSWCCA 127 HEARING DATE(S) : 2 May 2003 JUDGMENT DATE : 8 May 2003 JUDGMENT OF : Levine J at 1; Simpson J at 23 DECISION : 1. Leave to appeal granted.; 2. The sentences imposed on 2 August 2002 be set aside and in lieu: Count one, a sentence of imprisonment for a fixed term of two years to commence on 26 July 2002 and to expire on 25 July 2004. Count two, imprisonment for 4 ½ years to commence 26 July 2002 and to expire 25 January 2007; non-parole period of 3 years to commence 26 July 2002 and expire 25 July 2005. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 s44(2) Criminal Appeal Act 1912 s6(3) CASES CITED : R v Thornbury [2000] NSWCCA 526 REGINA (Respondent) PARTIES : v THOMAS JOHN IRVING (Applicant) FILE NUMBER(S) : CCA 60039 OF 2003 HK Dhanji (Applicant) COUNSEL : DM Howard (Respondent) DJ Humphreys (Applicant) SOLICITORS : SE O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/1107 FILE NUMBER(S) : LOWER COURT Bellear DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60039 OF 2003 LEVINE J SIMPSON J Thursday 8 May 2003 REGINA v THOMAS JOHN IRVING Judgment 1 LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed by his Honour Judge Bellear in the Penrith District Court on 2 August 2002. 2 The applicant pleaded guilty to two counts, the first, assault occasioning actual bodily harm, the second, break enter and steal. The first offence carries a maximum penalty of 5 years imprisonment, and the second, 14 years imprisonment (ss59 and 112(1) of the Crimes Act 1900). 3 His Honour sentenced the applicant to a fixed term of 2 years to commence on 2 August 2002 in relation to count one. 4 In relation to count two his Honour sentenced the applicant to a term of imprisonment of 4 ½ years commencing on 2 August 2002 with a non-parole period of 3 years (which would expire on 1 August 2005). 5 The facts can be shortly stated: the victim was 90 years of age and a resident in an aged care home. The applicant broke, entered and stole from the victim in his suite and assaulted him with a chair apparently used to break into the premises after the victim had shut the door against the applicant. 6 The first ground of appeal is that his Honour the sentencing Judge erred in failing demonstrably to take into account the applicant's pre-sentence custody solely referable to the offences, a period of 7 days from 6 October 2000 to 13 October 2000. The Crown does not dispute this. Thus this Court's intervention is triggered. 7 The better to understand the second basis of complaint, it is useful to adjust the sentences imposed by taking into account the omitted 7 days. 8 Thus the sentence on count one would be for a fixed term of 2 years commencing 26 July 2002 and expiring on 25 July 2004. The sentence in respect of count two would be for 4 ½ years commencing on 26 July 2002 and expiring on 25 January 2007. The three-year non-parole period would expire on 25 July 2005. 9 The second basis of complaint is that the learned sentencing Judge erred in failing to give effect to his finding of special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999. 10 In the course of his remarks on sentence, his Honour said: "I now must have regard to s44(2) of the Crimes (Sentencing Procedure) Act in that the non-parole period must not be less than three-quarters than the head sentence unless special circumstances exist. Having regard to all material on sentence I am satisfied that special circumstances do exist for the following reasons: (1) His childhood upbringing; (2) His early abuse of drugs and alcohol (age fourteen) to date; (3) His need for a substantial sentence at a young age; (4) His need for ongoing drug and alcohol rehabilitation; (5) His need for ongoing psychological assessment, treatment, counselling and monitoring; and (6) His need for ongoing supervision and guidance by the Probation and Parole Service to monitor the above on release". 11 As the applicant remarks, viewed in isolation the non-parole period of 3 years is two-thirds of the total sentence. 12 However the applicant contends that at the time of sentencing he had been in continuous custody since 30 April 2001. Assuming that to be correct, the total effective sentence therefore, commencing from that date and expiring in January 2007, is approximately 5 years and 9 months and that the total effective non-parole period is 4 years and 3 months approximately, thus, viewing the period of custody as the total effective sentence, the non-parole period is approximately 74 per cent of the total sentence. 13 It is argued that the sentencing Judge did not rely upon the effect of the cumulation of sentences. His Honour had remarked: "Both sentences are to be served concurrently with each other and to be served partly concurrent and partly consecutively with the sentence you are already serving". 14 It is contended that the matters relied upon by his Honour by way of special circumstances were relevant to the proportion of the non-parole period to the "total" effective sentence as opposed to the individual sentences imposed, and thus it is argued that in setting an effective non-parole period of approximately 74 per cent of the "total" effective sentence, his Honour failed to give effect to this stated intention. Reliance was placed upon a decision of this Court in R v Thornbury [2000] NSWCCA 526 in support of the proposition, that assuming that the foundation therefor has been made out, it can be concluded that the stated aim of special circumstances for providing a minimum term of less than 75 per cent was not attained and thus error is demonstrated. 15 An examination of the antecedents of the applicant in the appeal book discloses that the nominated starting point of 30 April 2001 was referable to a sentence of 3 months for goods in custody ordered to commence on that date. That sentence had expired before the date upon which his Honour sentenced the applicant. 16 The only other relevant sentence was that imposed in the Blacktown Local Court on 15 November 2001. That was for the offence of break, enter and steal and was made up of a head sentence of 18 months commencing on 3 July 2001 with a non-parole period of 14 months which would expire on 2 September 2002, which was one month exactly after the imposition of the sentences by his Honour (in terms of date) but, as adjusted, approximately 5 weeks after the date upon which his Honour's sentences should have commenced. 17 Viewed starkly, therefore, the extent to which the stated intention of giving an increased non-parole period by reason of special circumstances was not attained, it was not attained by, at most, a period of 5 weeks. 18 His Honour imposed the sentences having regard to the principles of totality; he did make them partially concurrent to the extent indicated. It does not seem to me that there is any basis on which the time served in relation to the 30 April matter can be taken into account when assessing the mathematics of the proportion between the total sentence and the non-parole period in the sentences imposed in the matters the subject of the application for leave. I am not persuaded, further, that his Honour totally disregarded the fact that the applicant was serving a term of imprisonment and erroneously, in some way, ignored it in the context of the principle of totality, the application of which his Honour clearly recognised. 19 The objective seriousness of the offences with which his Honour was concerned, in my view was found correctly to far outweigh subjective matters to which his Honour nonetheless paid heed. 20 On a proper analysis, no error of the kind asserted for the applicant can really be found to have been made by his Honour. In any event, this is a case where s6(3) of the Criminal Appeal Act 1912 really does its work: no less severe sentence, in my opinion, is warranted in law. 21 Whilst the Court's intervention has been triggered by the error in relation to the period of 7 days referred to above, nothing in the affidavits filed (being that of the applicant affirmed on 30 April 2003 and that of his solicitor of the same date) or the subjective material the learned sentencing Judge had before him, alters the situation. 22 Accordingly, I propose: 1. Leave to appeal be granted. 2. The sentences imposed on 2 August 2002 be set aside and in lieu: Count one, a sentence of imprisonment for a fixed term of two years to commence on 26 July 2002 and to expire on 25 July 2004. Count two, imprisonment for 4 ½ years to commence 26 July 2002 and to expire 25 January 2007; non-parole period of 3 years to commence 26 July 2002 and expire 25 July 2005. 23 SIMPSON J: I agree with Levine J. ********** Last Modified: 05/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.