Beattie v R [2009] NSWCCA 51

New South Wales Court of Criminal Appeal

CITATION: Beattie v R [2009] NSWCCA 51

HEARING DATE(S): 27 February 2009 JUDGMENT OF: Grove J at 1; Buddin J at 22; Price J at 23

EX TEMPORE JUDGMENT DATE: 27 February 2009

DECISION: Appeal allowed. Appellant resentenced.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Judge indicates intention to alter proportion of non-parole period to total term in favour of offender - Effect of sentence for unrelated offences seemingly overlooked - Resentence to achieve favourable proportion

CATEGORY: Principal judgment

CASES CITED : R v Ibrahim [2005] NSWCCA 43

PARTIES: Dwayne Lyndon BEATTIE - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/14770

COUNSEL: C Smith - Applicant P Leask - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant Solicitor Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/21/1123

LOWER COURT JUDICIAL OFFICER: Knight DCJ

LOWER COURT DATE OF DECISION: 11 December 2007

IN THE COURT OF CRIMINAL APPEAL CA 2007/14770

GROVE J BUDDIN J PRICE J

27 February 2009 Dwayne Lyndon BEATTIE v REGINA Judgment 1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by Knight DCJ on 11 December 2007 at Penrith District Court. The applicant had pleaded guilty to a charge of robbery in company, for which there is a prescribed maximum penalty of 20 years imprisonment. 2 An agreed statement of facts was placed before the Court. These have been summarized in the Crown's written submissions and I can draw the following from there. 3 After an evening of socializing at the Rooty Hill RSL Club a number of persons including the applicant and co-offenders and the victim Mr El-Nakib left the club in a courtesy bus at about 3 am. During the journey there was an altercation between some of the passengers and the driver stopped the bus. Police attended and ultimately the passengers were required to make their own way home. Mr El-Nakib was walking away when he was accosted by the applicant and his co-offenders. The group, of which the applicant was a member approached Mr El-Nakib hurling insults such as "fucking wog", "fucking arab cunt" and "go back to your own fucking arab country". Mr El-Nakib became concerned for his safety and a co-offender approached him and pushed him to the ground. Whilst he was there he was kicked about the head and body a number of times by the applicant and another co-offender. Further insults were being shouted. During this assault Mr El-Nakib was robbed of his wallet which contained $450, his mobile phone and his house keys. 4 The applicant and his co-offenders ran off and the victim was able to flag down a passing police car, who took him for treatment. He suffered a dislocated right shoulder, a severely swollen right eye socket, right eye haemorrhage and numerous bruises and grazes. 5 The applicant was aged twenty at the time of the offence. His father had died suddenly when he was eleven years of age and his mother gave evidence that his behaviour had deteriorated after his father's death. A pre-sentence report noted that the applicant had difficulties adjusting after his father's death and he became involved with an older negative peer group. He left school after Year 9 but had not been able to engage in any really meaningful employment. 6 His Honour sentenced the applicant to imprisonment consisting of a non-parole period of 2 years 6 months commencing on 8 November 2008 and expiring on 7 May 2011 with a balance term of 18 months. The total term was therefore 4 years. Counsel for the applicant expressly accepted that the term was not manifestly excessive. His Honour had made a number of findings concerning aggravating circumstances and none of these have been the focus of challenge. 7 The grounds of appeal were expressed: "Ground 1: The sentencing judge erred in failing to consider the principle of totality in sentencing the applicant. Ground 2: The sentencing judge erred in failing to give effect to the finding of special circumstances in the context of earlier sentences imposed on the applicant." 8 These grounds can conveniently be dealt with together. To perceive the essence of the applicant's complaints it is necessary to examine his other offences. Coincidentally he had on two previous occasions been sentenced by Knight DCJ and it is easy to empathize with the exasperation which his Honour revealed in his final remarks to the applicant, which were obviously designed to encourage the applicant to, as his Honour succinctly put, "get a grip on your life". 9 The offence which is the subject of this appeal was committed on 3 September 2005. At that date he was on bail in respect of offences of aggravated dangerous driving occasioning grievous bodily harm and aggravated breaking and entering and committing an indictable offence. The first of these offences had been committed on 18 October 2003 and the second on 3 March 2004. On 10 November 2005 he was sentenced on these matters, respectively, to a fixed term of imprisonment for 18 months commencing on 10 November 2005 and expiring on 9 May 2007 and to imprisonment consisting of a non-parole period of 12 months commencing on 9 May 2007 and expiring on 8 May 2008 with a balance term of 2 years and 6 months. 10 Committed prior to all of these was an offence of robbery whilst armed with an offensive weapon on 7 January 2003, however, he was not charged with this offence until 8 September 2006 following investigation which included DNA profiling. 11 On 16 July 2007 for this offence committed in 2003 he was sentenced to imprisonment consisting of a non-parole period of 1 year commencing on 9 November 2007 and expiring on 8 November 2008 with a balance term of 2 years and 6 months. 12 As can be seen, his Honour fixed the commencement date of the present sentence at the expiry of the non-parole period for the lastmentioned offence. 13 The consequence in terms of totality was that the applicant will be in custody for a minimum term stretching from 10 November 2005 to 7 May 2011, a total of (in round terms) 5 years 6 months. His balance term during which he may be eligible for parole is 1 year 6 months. In proportion, that minimum custody represents just under 79 percent of a notional total term of 7 years. 14 With obvious reference to the statutory prescription his Honour said, in his remarks on sentence: "The balance of the total term of imprisonment exceeds one-third of the non-parole period because there are special circumstances which are: (1) your need for a lengthy period of supervised parole in order to assist in your rehabilitation, and (2) your age." 15 Examined in isolation the sentence for the index offence, divided into a non-parole period of 2 years 6 months and a balance term of 18 months, shows that the non-parole period is a proportion of 62.5 percent of the total term. 16 It was submitted by the applicant that (as was the fact) the omission by his Honour to refer to the total effective outcome of proportion between minimum custody and balance term was surprising. It was contended that the omission amounted to error. 17 In R v Ibrahim [2005] NSWCCA 43 Buddin J observed: "Although in its current form s 44 (2) does not prohibit a court from setting a period for the balance of the term which is less than one-third of the non-parole period, it is rather surprising, in the circumstances of the present case, that the sentencing judge did not indicate his reasons for having arrived at such a result. I am inclined to the view that the sentencing judge simply overlooked the matter." 18 In Ibrahim the effective period of minimum custody was 90 percent of total term. Buddin J also referred to a number of other similar matters where the percentage varied but minimum custody exceeded 75 percent of total term and it is not necessary for present purposes to recapitulate them. 19 I am satisfied that the grounds of complaint by the applicant have been made out. 20 I would maintain the finding of special circumstances for the reasons given by his Honour and endorse those findings favourable to the applicant which he made. I would substitute a sentence in which the proportion used by his Honour in the index sentence is approximately applied to a notion of total term. 21 I propose the following orders: