R v NEWMAN [2005] NSWCCA 388 | Case summary

5 At the time of sentence for those offences, the Applicant was already in custody serving sentences earlier imposed in respect of three other offences of break, enter and steal, with two offences of "goods in custody" having been taken into account on a Form 1. These offences were committed respectively on 5 November 2001, 25 December 2001, 11 January 2002 and 7 March 2003. He was sentenced for those matters on 8 August 2003 - on two to imprisonment for 3 years and 6 months including non-parole periods of 2 years and 4 months commencing on 7 March 2003 - and on the third to imprisonment for 3 years and 11 months including a non-parole period of 2 years and 5 months both such periods commencing on 7 March 2004. The effect of these sentences was thus non-parole period of 3 years 5 months, commencing on 7 March 2003 and concluding on 6 August 2006, and a balance of term of 1 year and 6 months. 6 The effect of the sentences imposed on 20 January last and which are the subject of this appeal was thus to extend the Applicant's non-parole period by 1 year 7 months, from 6 August 2006 to 6 March 2008, making it in all 5 years, nullify the 18 months when he could have been admitted to parole under the earlier sentences and provide for a new period of 12 months when he will be eligible for parole. That eligibility will arise after he has been incarcerated for 5 years, since 7 March 2003. The sole ground of appeal is that that there is an inappropriate proportion between these 1 year and 5 year periods and that the period during which the Applicant will be eligible for parole should be increased at the expense of the non-parole period.

7 However, it should also be noted that 2 years and 5 months of the 4 years non-parole period imposed in January this year was made concurrent with the non-parole period the Applicant was then serving. Judge McLoughlin was conscious of this saying that:- "… because of that backdating, that there will be no finding of special circumstances when one looks at the offenders antecedents and the commission of this offence - the second one with which his Honour was dealing - whilst on bail." 8 Counsel for the Applicant submitted that, whilst there is no axiomatic entitlement to a sentence which bears a relationship between non-parole period and parole period of 3 to 1, that should be the prima facie situation in the absence of considerations which militate against it. Relying on R v Nightingale [2005] NSWCCA 147, it was submitted that if the sentencing judge intended to increase the statutory ratio, he could be expected to make reference to that fact and indicate his reasons for so doing. It was further submitted that Judge McLoughlin had not adhered to these latter dictates. 9 I have no difficulty in accepting the general among these propositions but I disagree with the last. For the passage I have just quoted from his Honour's remarks makes it clear why he took the stance he did. Conscious that by backdating the commencement of the Applicant's sentence to the extent he did, he had imposed a limited period of further incarceration, his Honour was unwilling to reduce further this period.. That was a perfectly understandable approach when regard was had to the Applicant's criminality and one with which I agree. 10 I do think it would have been preferable for his Honour not to have commenced that Applicant's sentence as early as he did and in that situation he could, while maintaining the 1 year and 7 months increase in non-parole period, have allowed a longer parole period. Counsel for the Applicant has pointed out the benefits to someone with the Applicant's record and history, including a very poor upbringing and drug addiction, of a longer period on parole. 11 However he has eschewed any suggestion that this Court should achieve those benefits by extending the concluding date of the Applicant's sentence and there being no Crown appeal, it would not be appropriate to adopt that method of providing the Applicant with a longer parole period. 12 Counsel for the Applicant also drew attention to remarks of Kirby J when siting as a member of a 2 judge bench in the matter of R v Oliver (2005) NSWCCA 6 wherein his Honour said:- "Should the Court intervene? Where an error is shown, and where it can be inferred that the sentencing judge would have given a lesser sentence, but for the error, ordinarily one would expect this Court to intervene unless to do so would reduce this sentence to a level, which was less than adequate. I have come to the view that the Court should intervene. I accept that, but for the error, his Honour would have imposed a lesser sentence along the lines suggested by the applicant and that such a sentence would have been within the range of should sentencing discretion and therefore unlikely to have attracted a successful Crown appeal. In these circumstances I believe it is just for the Court to intervene and re-sentence the applicant in terms which correct the demonstrated error." (par s.34-37). 13 It has long been established law that remarks made by a judge sitting as one of a 2 judge bench of this Court are not authoritative. That applies also even if the remarks are concurred in by the second member of the Bench. The nature of the cases, issues, argument and consideration with which such a bench is involved is the reason for that approach. Indeed, there is a practice - which should be adhered to - that statements made by judges sitting in that situation are not cited. Be that as it may, the remarks of Kirby J which I have quoted are contrary to the considered decision of this Court in R v Simpson (2001) 53 NSWLR 705 - see [79] et seq. - and are wrong. 14 Lest it be thought that I may have overlooked it, I should say something about the totality of the sentences imposed on the Applicant, which amounted to, as I have indicated, a non-parole period of 5 years and a balance of term of 1 year. They were imposed for five offences of break, enter and steal committed between 5 November 2001 and November 2002 or March 2003. The Applicant was born on 3 February 1970 and between 1982 and the first of these had some 40 convictions for offences of stealing and other dishonesty. His record reveals he has been granted an extraordinary degree of leniency by the courts and had not reformed. The only proper characterisation of him at the time he came before Judge McLoughlin was that he was a recidivist and the time had come, for reasons of general and personal deterrence, retribution and protection of the community, for him to receive sentences at least as long as he did. 15 In my view there was no error, unfavourable to the Applicant, in Judge McLoughlin's sentencing of him and, while I would give leave to appeal, the appeal should be dismissed. 16 SPIGELMAN CJ: I agree with Hulme J. 17 SULLY J: Subject to saying something about paragraphs 12 and 13 of the judgment of Hulme J, I agree with the orders proposed by his Honour, and with the reasons given by his Honour for the orders. As to paragraph 12 I wish to say for myself these things: 18 I agree that "Remarks made by a Judge sitting as one of a two Judge bench of this Court, are not authoritative" in the sense that a two Judge Court is not authorised by the Chief Justice unless it is clear that the particular appeal against sentence "is not likely to require the resolution of a disputed issue of general principle": See the Criminal Appeal Act 1912 (NSW) s6AA(2). 19 I prefer to reserve my position on what is stated in the two concluding sentences in paragraph 13. I am not sure as at present advised that there is so black and white a practice as is suggested; and I have not made any particular comparative analysis for present purposes of the decisions in Oliver and in Simpson. 20 None of the foregoing matters affects what I would consider to be the just resolution of the present particular appeal. **********

R v NEWMAN

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