Regina v Maxfield [2005] NSWCCA 136

New South Wales Court of Criminal Appeal

CITATION: Regina v Maxfield [2005] NSWCCA 136

HEARING DATE(S): 30 March 2005

JUDGMENT DATE: 30 March 2005

JUDGMENT OF: Grove J at 1; Howie J at 12; Hall J at 13

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES OF ROBBERY WHILST ARMED WITH OFFENSIVE WEAPON - SETTING OF NON-PAROLE PERIOD - SPECIAL CIRCUMSTANCES - VERY SMALL EFFECT ON OVERALL SENTENCES - NO ERROR BY SENTENCING JUDGE - NO LESSER SENTENCE WARRANTED

LEGISLATION CITED: s 44 Crimes (Sentencing Procedure) Act 1999

PARTIES: Regina v Robert Paul Maxfield

FILE NUMBER(S): CCA 2004/2905

D. Frearson SC (Crown) COUNSEL: P.M. Winch (Applicant)

S. Kavanagh (DPP) SOLICITORS: S.E. O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0372

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/2905

GROVE J HOWIE J HALL J

Wednesday 30 March 2005 REGINA v ROBERT PAUL MAXFIELD Judgment

1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed upon him by Delaney DCJ in Parramatta District Court. Following pleas of guilty the applicant was sentenced upon seven counts of armed robbery with an offensive weapon. He asked to be taken into account pursuant to a Form 1, three further offences of armed robbery with an offensive weapon and two offences of assault with intent to rob with an offensive weapon. 2 Sentences were imposed on 20 May 2004. The applicant was in custody serving a balance of parole in respect of a previous conviction, that balance expiring shortly thereafter on 28 May 2004. 3 His Honour constructed sentences in the following fashion. On two of the counts the applicant was sentenced to imprisonment for a fixed term of four years commencing on 20 May 2004 and expiring on 19 May 2008, to be served concurrently. On two further counts, to fixed terms of four years commencing on 12 November 2004 and expiring on 11 November 2008, to be served concurrently. On a further count to imprisonment for a fixed term of four years commencing on 20 May 2005 and expiring on 19 May 2009. On a further count, to imprisonment for a fixed term of five years commencing on 20 May 2005 and expiring on 19 May 2010. On the final count, taking into account the matters on Form 1, to imprisonment for seven years and six months commencing on 20 August 2005, with a non-parole period of five years and six months commencing on that date and expiring on 19 May 2010. 4 Thus, taking the earliest date of custody referable to these offences, it can be stated that the impositions involved an effective total term of eight years nine months, with a non-parole period of six years and nine months. 5 The applicant relies upon a single ground, asserting that his Honour erred with regard to the relationship between the length of the aggregate head sentence and the aggregate non-parole period. "Aggregate" is a reference to the effective sentence just mentioned. 6 The argument of the applicant is focussed upon s 44 of the Crimes (Sentencing Procedure) Act 1999 which provides that the balance of a term of sentence must not exceed one third of the non-parole period unless the court determines that there are special circumstances for departing from that proportion. Counsel for the applicant points out that the aggregate non-parole period is 77 per cent of the aggregate head sentence. This, it is contended, is incompatible with a finding by his Honour that special circumstances, in the sense of the use of that phrase in s 44, existed, and were to be taken into account. 7 Attention is drawn to relevant remarks by the learned sentencing Judge. His initial reference was in these terms: "I state at this stage, although I will refer to it again, that on the basis of the report from the Probation and Parole Service, the report from Dr Westmore and the evidence which has been given by the offender I have reached the conclusion that this will be a case in which the application of special circumstances will be appropriate to vary the usual ratio of 75 per cent - 25 per cent between the full time sentence and non-parole period in this case, for such sentences which are not fixed term." 8 Of course, fixed terms do not involve the setting of a non-parole period at all, but it can be observed that, in this case, there was only one sentence in which a non-parole period was fixed. His Honour made no reference to aggregate but it can be observed that he spoke in the plural of "sentences which are not fixed term", despite the fact that there was only one of these. 9 However, his Honour's later remarks make it clear that he had in mind the single sentence when he said: "In my opinion pursuant to s 44 of the Sentencing Procedure Act there is evidence before the Court which would justify the Court reaching the view that there should be a finding of special circumstances in respect of the offence for which a non-parole period is to be set, thereby justifying the Court from (sic) altering the statutory ratio." (Emphasis added.)