R v Clissold [2003] NSWCCA 270 | Case summary

25 September 2003 REGINA v. PARKER Judgment 1 BEAZLEY JA: The applicant seeks leave to appeal against the sentences imposed by Coolahan DCJ in respect of a series of offences under s.112 of the Crimes Act 1900 of break, enter and steal, and other offences committed over a 3 month period between January and March 2002. The sole issue raised on the appeal is whether his Honour erred in imposing a non-parole period greater than 75% of the term of the sentence: see s.44 of the Crimes (Sentencing Procedure) Act (NSW) 1999. 2 The applicant pleaded guilty before Judge Coolahan on 21 June 2002 to 12 counts of break, enter and steal: s.112 of the Crimes Act; 3 counts of take and drive a conveyance without the consent of the owner: s.154A(1) of the Crimes Act; and 5 counts or larceny: s.117 of the Crimes Act. In addition, there were 8 offences on a Form 1 including 2 break, enter and steal offences. The break, enter and steal offences carried a maximum penalty of 14 years imprisonment. 3 The applicant was sentenced to a term of imprisonment of 3 years to commence on 30 March 2002 and to expire on 29 March 2005 in respect of the 5 larceny offences. Under s.117 of the Crimes Act 1900, the maximum penalty for larceny is 5 years. His Honour then sentenced the applicant in respect of the break, enter and steal offences taking into account the Form 1 matters. In respect of those matters the applicant was sentenced to a term of imprisonment for 6 years. This sentence was partially accumulated upon the sentence imposed for the larceny offences and was specified to commence on 30 September 2002 and to expire on 29 September 2008. His Honour ordered a non-parole period of 4½ years to expire on 29 March 2007. His Honour imposed sentences of imprisonment in respect of the other offences each to be served cumulatively with the sentence imposed for larceny and all of which expired either earlier than the sentence imposed for that offence or on the same day. 4 The effect of these sentences was that his Honour imposed a non-parole period which bore a relationship of 77% to the term of the sentence not 75%. The relevance of these ratios derives from the provisions of s.44 of the Crimes (Sentencing Procedure) Act 1999. Section 44(1) requires the Court to first set the term of imprisonment (para (a)); and then to set a non-parole period (para (b)). Section 44(2) then provides: "(2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision."

Nothing in s.44(2) proscribes the setting of a non-parole period which is greater than 75%. In this case the effective difference between a ratio of 75% and 77% meant that the term of imprisonment to be served by the applicant was 6 weeks longer than if a ratio of 75% had been adopted. 5 Counsel for the applicant submitted that his Honour erred in setting a non-parole period of more than three-quarters of the sentence. Counsel identified the error as being a failure to have regard to the issue of accumulation when considering the question of special circumstances,. Accumulation was used in two senses. First, in the conventional sense of a sentence being imposed to commence at a date later than the date of commencement of another sentence imposed at the same time. Secondly, it was used in the sense that these sentences were imposed so as to commence at a time shortly after the applicant had been released from gaol. The consequence was that the applicant had effectively served a 3 year custodial sentence followed almost immediately by a 5 year sentence, with only a short period on parole intervening. 6 To understand this submission it is necessary to understand a little of the background of the applicant and the circumstances in which the offences were committed. 7 The applicant was 33 years of age at the time that he appeared before Judge Coolahan. He has a lengthy criminal history. It is not necessary to repeat it - it is set out in detail in his Honour's Remarks on Sentence. At the time of the commission of these offences, the applicant was on parole in respect of an offence of break, enter and steal and offences of stealing from the person having served a custodial sentence of 5 years. He had been released to parole on 4 November 2001. Thus, he had been at liberty for a period of only 2 months at the time he commenced committing these offences. As is apparent from the dates upon which the offences were committed and their nature, the applicant had succumbed to another serious episode of offending. 8 In the course of his remarks on sentence, Coolahan DCJ gave attention to the question of special circumstances. Counsel then appearing for the applicant submitted that his Honour should make a finding of special circumstances. It is important for the submission which is now made to this Court to understand the case put at the sentence hearing. It was submitted to his Honour that the applicant had a genuine desire to rehabilitate himself and to break the present cycle that he was in. As is apparent from his Honour's judgment, that submission was made in realistic terms, counsel submitting that the applicant was not prepared to make any "phoney assurances" about the future, but that he did have a genuine intention to reform. His Honour dealt with that submission in these terms: "In this regard, [counsel for the applicant] urged me that notwithstanding all the factors which would militate against a finding of special circumstances, not the least of which was his being on parole at the time of the commission of these offences , I should still make a finding of special circumstances to enable the offender to yet again try to break the cycle that he is obviously in". 9 His Honour also observed that the Crown conceded that it was a significant factor in the applicant's favour that he had provided assistance to the police in making admissions, in circumstances where the police would not otherwise have realised that the applicant had committed a large number of the offences with which he was charged and subsequently pleaded guilty. That concession was qualified appropriately in the circumstances, as the applicant had not been completely open with the police and had failed to give certain information which was relevant. In particular, he had declined to nominate to whom he had given the stolen items in exchange for drugs, particularly the firearms, nor did he identify his co-offender. Nonetheless, the assistance given was acknowledged to have been substantial. 10 In determining whether to find special circumstances, his Honour said: "So far as special circumstances are concerned, I have given this matter careful consideration but when one looks at the offender's criminal history and the chances that he has been given in the past and taking into account the fact that he was already on parole when these offences were committed, it seems to me that I would not be justified in making such a finding". 11 Counsel for the applicant said that in coming to this conclusion, his Honour failed to have regard to the fact that there had been a partial accumulation of the sentences he imposed and also to the fact that the sentence of imprisonment came shortly after he had been imprisoned for a lengthy period. It was submitted that there was authority that accumulation of sentences could amount to special circumstances. Thus in R v Clissold (2002) NSWCCA 356, Smart AJ (Hodgson JA and Simpson J agreeing) stated that "Total or partial accumulation is a well recognised special circumstance". His Honour had, in his earlier judgment in R. v Attard (2000) NSWCCA 299, made a similar statement. 12 Counsel for the applicant also referred the Court to R. v Gower (1991) 56 A Crim R 115 where Priestley JA concluded that the trial judge had failed to give any consideration to the question of the relationship between minimum terms and the additional term. His Honour considered that had come about because of the order in which his Honour had imposed the sentences. That is not the situation here and it seems to me the case has no particular relevance to the issue before this Court. 13 It is important, in determining whether an appellate court should interfere with a sentence, to understand both the purpose of the non-parole period and how the question of special circumstances is to be approached. 14 In R v Simpson (2001) 53 NSWLR 704, Spigelman CJ in discussing the operation of s.44(2) said, at 717-718: "The reasoning in Power [v. R (1974) 131 CLR 623] indicates that it is not appropriate to determine the non-parole period primarily from the perspective of the length of the period of supervision on parole. Indeed, the primary perspective should be the length of the minimum period of actual incarceration. By enacting a provision that only works one way - requiring specific justification for a lower proportion but not for a higher proportion - Parliament has, in my opinion, reinforced this as the primary perspective. This has the effect that the scope of the considerations relevant to the determination of 'special circumstances' must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole. The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective. The words 'special circumstances' appear in numerous statutory provisions. They are words of indeterminate reference and will always take their colour from their surroundings. The sentencing context in which they appear in the present legislation must be understood against the background of a long-standing line of decisions in the High Court, commencing with Power, which emphasises that the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration. The proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of consideration of rehabilitation has long since been rejected. Statutory words of such generality usually lead courts to refuse to identify in advance of a list matters capable of satisfying the statutory formulation. While certain considerations might not often be sufficiently 'special', so that an exceptional justification is required for them to attain the requisite statutory quality, nevertheless there may always be circumstances in which such a factor is of sufficient strength, either alone or in combination with other factors, to justify a conclusion that 'special circumstances' are made out of the facts of a particular case. It will be comparatively rare for an issue to arise in terms of a proposition that a particular circumstance is incapable, as a matter of law, of ever constituting a 'special circumstance'. The statutory proportion constitutes a 'fetter' or 'constraint' (to use the words of the Court in R v. G D R ) on the exercise of what would otherwise be an unfettered and unconstrained discretion. It does not, however, alter the discretionary nature of the judgment for which the statute provides in s 44(1)(b) of the 1999 Act, requiring the Court to fix a non-parole period … The issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting 'special circumstances' of the requisite character, that is, that it is capable of justifying a variation in the statutory proportion which the legislature has enacted. More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence." 15 There are a number of difficulties with the case now sought to be made on behalf of the applicant. First, it does not appear from his Honour's Remarks on Sentence that the fact of accumulation was ever put to his Honour as a matter of special circumstances. Secondly, the fact that the applicant was on parole at the time of the offences, was considered by his Honour to be a matter of aggravation. In my opinion it would have been contradictory for his Honour to have then treated it as a 'special circumstance'. Thirdly, his Honour was not satisfied that, at the time the applicant appeared before him, there were real prospects of rehabilitation. In my opinion, no error has been shown in his Honour's approach to the question of special circumstances. It is also worth commenting that in essence, what the applicant is seeking is a reduction in the non-parole period, but has not sought to challenge that directly. The applicant did not seek to argue that a non-parole period of less than 75% should have been determined. But, in my opinion, whichever way the matter is viewed, I do not consider that the applicant has established error in the sentence imposed. 16 One other matter was raised during the course of argument on the appeal, namely, that the fact that the applicant had willingly co-operated with the police, save in the respects that I have mentioned, was an indicator that the prospects of rehabilitation were not hopeless and for this reason the non-parole period should have been set at 75%. The applicant's co-operation with the police is certainly a matter to be taken into account in his favour. His Honour did so, in the sentence that he imposed. It was not a matter raised by counsel at the hearing on sentence as a matter going to special circumstances, nor in fact was it raised by counsel on this application. There was not any error, in my opinion, in the manner in which his Honour dealt with the matter. 17 In all the circumstances, I do not consider that his Honour erred in dealing with special circumstances. 18 I would refuse leave to appeal. 19 ADAMS J: I agree with Beazley JA. 20 MILES AJ: I agree with Beazley JA

R v Clissold

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