New South Wales Court of Criminal Appeal CITATION: R v SWAN [2005] NSWCCA 252 HEARING DATE(S): 8 July 2005 JUDGMENT DATE: 22 July 2005 JUDGMENT OF: Grove J at 1; Howie J at 6; Rothman J at 7 DECISION: (1) Leave to Appeal Granted; (2) Appeal granted in part; (3) Senteces on Counts 2 and 3 be quashed only insofar as the non-parole period is concerned and, in lieu thereof, a non-parole period of twelve (12) months commencing 1 February 2005 and ending on 31 January 2006 be imposed; (4) The prisoner be released on parole on 31 January 2006 on the usual conditions. CATCHWORDS: Criminal Law - appeal against sentence - cumulative sentences - special circumstances - ratio of non-aparole period Crimes (Sentencing Proceedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 (s.112(1), s.188) Criminal Appeals Act 1912 (s.5(1)(c) R v Simpson (MG) (1992) 61 ACrimR 58 CASES CITED: R v Close (1992) 31 NSWLR 743 The Crown PARTIES: Anthony Dean SWAN (Appellant) FILE NUMBER(S): CCA 2005/614 Ms A Francis for the Appellant COUNSEL: Mr P Barrett for Crown S E O'Connor Solicitors (Legal Aid Commission) SOLICITORS: S Kavanagh - DPP (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/03212 LOWER COURT JUDICIAL OFFICER: Gibson ADCJ IN THE COURT OF CRIMINAL APPEAL 2005/614 GROVE J HOWIE J ROTHMAN J 22 July 2005 R v Anthony Dean SWAN Judgment 1 GROVE J: In this appeal, orders were made by the Court on 8 July 2005 which are recited in the draft judgment of Rothman J which I have had the advantage of reading. His Honour also sets out details of the offences charged and the structure of sentences imposed by Gibson ADCJ which I gratefully adopt. 2 The result of the partial resentence by this Court is that the non parole periods on counts 2 and 3 (to be served concurrently) bear a proportion to balance of terms more favourable to the appellant than would be the case if the proportion specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 were applied. Such departure is authorized where there is a finding that special circumstances exist. 3 Where a sentence is made cumulative on another sentence, that may amount to special circumstances in relation to the last sentence in order to preserve the statutory relationship between non parole period and balance of sentence: R v Simpson (M.G.) 1992 61 A Crim R 58; R v Close 1992 31 NSWLR 743. 4 Analysis of the record of proceedings and the remarks on sentence of Gibson ADCJ provokes a conclusion that it was his Honour's likely intention to apply the proportion specified in the statute overall, which conclusion was appropriate to the circumstances. The resentence achieves that result. 5 For that reason, I joined in the making of the orders on 8 July 2005. 6 HOWIE J: For the reasons given by Rothman J and Grove J I agree with the orders proposed by Rothman J. 7 ROTHMAN J: On 8 July 2005, the Court issued the following orders: (a) Leave to appeal granted. (b) Appeal granted in part; (c) The sentences on Counts 2 and 3 be quashed only insofar as the non-parole period is concerned and in lieu thereof, a non-parole period of twelve (12) months commencing 1 February 2005 and ending on 31 January 2006, be imposed; (d) The prisoner be released on parole on 31 January 2006 on the usual conditions. The Court reserved its reasons for the making of the above orders and I now publish my reasons for joining in the Court's orders. 8 This matter comes before the Court of Criminal Appeal pursuant to the terms of s.5(1)(c) of the Criminal Appeals Act 1912 as an Application for Leave to Appeal, and if successful, an Appeal, against the sentence imposed by Gibson ADCJ on 21 September 2004. 9 The appellant had pleaded guilty before His Honour to three charges. 10 The circumstances of the offences committed relevantly were that: In relation to Count 1: Break enter and steal: the appellant broke into a residence in Gunnedah, between 15 November 2002 and 2 December 2002, while the occupants were on holiday, and stole a television and cassette recorder. In relation to Count 2: Receiving stolen goods: the police, on 30 April 2003, found on the premises of the appellant certain stolen goods which were the result of a break enter and steal. Likewise, in relation to Count 3: Receiving stolen goods: the police, on 30 April 2003, found on the premises of the appellant certain stolen goods being the result of another break enter and steal. The offences are a breach of s.112(1) of the Crimes Act 1900, in relation to the first count and a breach of s.188 of the Crimes Act 1900 in relation to Counts 2 and 3, which carry, in relation the first count, a maximum sentence of 14 years' imprisonment, and in relation to each of Counts 2 and 3, a maximum sentence of 10 years' imprisonment. 11 As earlier indicated, the appellant pleaded guilty to each of the charges and was sentenced by Gibson ADCJ to the following terms of imprisonment: (a) Count 1: Break enter and steal: Imprisonment for 30 months commencing on 1 February 2004 and concluding on 31 July 2006 with a non-parole period of 22 months to conclude on 30 November 2005; (b) Counts 2 and 3: Receiving: On each Count, imprisonment for 21 months commencing on 1 February 2005 and concluding on 31 October 2006 with a non-parole period of 16 months to conclude on 31 May 2006. 12 While the total sentences imposed by his Honour were 6 years with a total non-parole period of 4 years and 6 months, the effective overall sentence was imprisonment for 2 years and 9 months with a non-parole period of 2 years and 4 months. 13 His Honour made the sentences for Counts 2 and 3 wholly concurrent with each other and partly concurrent (i.e. for a period of 12 months) with the sentence imposed for Count 1. 14 The grounds of appeal relate to the allegedly excessive non-parole period in the overall sentence compared with the sentence as a whole. 15 No appeal is agitated in relation to the total term of the sentences imposed nor on the degree to which the sentences have been made concurrent and, necessarily, the extent to which they are cumulative. 16 His Honour determined that he would discount the overall sentence by 20% to take account of the material before him including the plea of guilty. His Honour held that the appellant had a "large bad record for offences of dishonesty and/or violence" and noted that the appellant had a significant drug problem and made some comments associated with his background as a member of the aboriginal community from Moree. In the case of the latter comment this was done to the benefit of the appellant, despite the paucity of material presented to his Honour on the plea. 17 His Honour, in fixing the non-parole period for each offence, expressly applied the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) and calculated three quarters of each of the terms. 18 Although his Honour did not expressly deal with the principles associated with totality, his Honour obviously took the view, given the commencement date of each of the respective sentences, that the totality of the criminality of the offences was such that it required a further sentence of three months for the two Counts of receiving resulting in the end date of the total sentences moving from 31 July 2006 to 31 October 2006. 19 Section 44 of the Sentencing Procedure Act, as amended in 2002, does not mandate a relationship between an overall non-parole period and the remainder of the overall sentence but requires a minimum non-parole period as a proportion of total sentence unless there are special circumstances in relation to each particular offence. Section 44 of the Sentencing Procedure Act does not require that the balance of the total term of a number of sentences imposed not exceed one third of the totality of the non-parole periods for the same sentences and the requirement in s.44 is a requirement that relates to each individual sentence only. 20 Even in relation to each individual sentence this Court has held on a number of occasions that the provisions of s.44(2) of the Sentencing Procedure Act do not create a statutorily prescribed norm in sentencing and that the sentencing procedure continues to be a matter within the discretion of the sentencing judge applying the general principles of sentencing law including those relating to the nature and purpose of parole. 21 His Honour below expressly declined to find special circumstances and, as has been said, applied, subject to rounding, a ratio of 3:1 between the non-parole period and the remainder of the sentence. 22 Having applied the relationship established by sub-section 44(2) of the Sentencing Procedure Act his Honour does not disclose in his reasoning any intent to depart from that relationship in relation to the overall sentence. 23 The Court has held on a number of occasions that the only requirement for reasons in relation to non-parole period is where a court fixes a non-parole period which results in the balance of the term exceeding one third of the non-parole period. In other words, the only requirement for reasons is where the court considers there are special circumstances. 24 In the present matter there can be, and is, no issue with the sentence imposed by Gibson ADCJ for each sentence and the non-parole period in relation thereto. Nor can there be any issue with any reasons therefor, or lack of them. His Honour's reasons disclose an intention to reflect the 3:1 ratio prescribed by the Act as the minimum, absent special circumstances. The overall sentence, however, does not reflect that ratio. This does not seem to be a deliberate departure but rather an understandable result of the effect of cumulative sentencing. Where a judge, having fixed the 3:1 ratio for each individual offence, intends deliberately to depart from the ratio in the overall sentence a statement to that effect should be made. Otherwise it will be presumed that the adjustment to account for cumulative sentence has accidentally been omitted. 25 In the circumstances and absent a statement that the overall effect was intended to be different from the 3:1 ratio, I am inclined to the view that his Honour simply failed, as an oversight, to make the adjustment so that the ratio of the non-parole period to the remainder of the sentence reflected his otherwise stated intention to have a ratio of 3:1. For those reasons I join in the orders announced by the Court. ********** 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.