R v STRAHAN [2003] NSWCCA 397 | Case summary

Tuesday 16 December 2003 REGINA v MARTIN FRANCIS STRAHAN Judgment 1 HULME J: This applicant for leave to appeal pleaded guilty to being an accessory after the fact to the manslaughter by Brian John Robson of Ronald Charles Brotherton. The maximum penalty prescribed for the offence is imprisonment for five years. 2 On 31 March 2000 Barr J sentenced the applicant to imprisonment for a fixed term of three years commencing on 14 April 2000, such sentence to be served by way of periodic detention. 3 The circumstances of the offence were as follows. The applicant was at Mr Robson's house. At Mr Robson's request the applicant gave Mr Robson a lift to where the deceased was. The applicant knew that Mr Robson's purpose in going was to give the deceased a beating. 4 On arrival, which was at the house of someone named Shipley, an argument and a fight arose. Mr Robson dealt the deceased a number of savage blows with his fists and kicked him in the head. The deceased died. Although the applicant was present, he took no part in the assault. 5 At Mr Robson's request a third person brought a tarpaulin to the Shipley house. The applicant and Mr Robson wrapped the body of the deceased in the tarpaulin, put it in a car, took it into the bush and dumped it. Later the applicant and Mr Robson burned a lounge chair and some of Mr Robson's clothes which bore the blood of the deceased. 6 The killing remained undetected for six months. On 20 March 1998 the applicant was interviewed by police and acknowledged the events to which I have referred. Originally the applicant was charged with being an accessory after the fact to murder. Later that charge was reduced to being an accessory after the fact to manslaughter and Barr J regarded the applicant as having offered his plea of guilty as soon as the Crown indicated it was prepared to accept it. 7 At the time of sentence, the applicant was twenty-five years old. Between December 1993 and November 1997 the applicant had acquired a criminal record for a number of offences involving drugs, dishonesty and firearms, the most serious of which was being armed with intent to commit an indictable offence. For this offence the Applicant was, on 21 November 1997, sentenced to imprisonment for a minimum term of nine months and an additional term of three months. 8 Barr J concluded that there were signs that the applicant was "now facing up to his responsibilities", that the applicant no longer seemed to be involved with drugs, was working satisfactorily and the prospects seemed reasonable that he would continue to effect his own rehabilitation. His Honour accepted that the applicant was remorseful. 9 When he came to the topic of sentence, as distinct from his statement and examination of the circumstances of the offence and of the applicant, his Honour said: "It was submitted by Mr Terracini that I could properly impose a sentence of periodic detention and the Crown has put nothing against that submission. The offender has been assessed as suitable to serve a sentence of periodic detention. Notwithstanding the seriousness of the offence, I think, in view of the substantial rehabilitation the offender has already achieved and is likely to continue to achieve, that it would be appropriate to impose a sentence of less than full time custody and I propose to sentence the offender to periodic detention for three years." 10 His Honour gave no reasons for failing to set a non-parole period. Nor is there any part of his remarks on sentence which indicates that his Honour arrived at the term of the applicant's sentence before embarking upon the question of whether it should be served by way of periodic detention. 11 The court has been informed that since the sentence was imposed the applicant has had difficulty in attending, as required by Barr J's order and, not having a car, in travelling from his home in the Bateman's Bay area to the periodic detention centre at Unanderra. An affidavit or affidavits in that respect have been tendered without objection on the usual basis and on the issue of an extension of time within which to bring these proceedings. 12 At times the applicant has been absent from his periodic detention without leave. The Parole Board has revoked the order on three occasions, the last of which resulting in the applicant being required to serve the then outstanding balance of his sentence by way of full time imprisonment. The effect is that the applicant went into full time custody on 10 October 2002 and remained there until granted bail on 9 September of this year. He had previously served a period of full time custody between 17 June 2002 and 1 August 2002, although two weeks of this was also referable to another drug-related offence of which he had been convicted. 13 As was conceded by the Crown, it seems clear that in not providing reasons for declining to set a non-parole period his Honour breached the terms of s 45(2) of the Crimes (Sentencing Procedure) Act 1999. It is also to be inferred from the limited terms in which his Honour expressed himself that he did not employ the two stage process required at the time of sentence by s 5(1) of the Periodic Detention of Prisoners Act 1981. As has been made clear by a number of cases, including Regina v Schodde [2003] NSWCCA 164 at [14-15] and the cases there cited, a judge is required to set the term of a sentence of imprisonment before considering whether to order that it be served by an alternative to full time custody. 14 Thus, there was error in the process of the sentencing of the applicant. However, before this court proceeds to allow any appeal and re-sentence, the requirements of s 6(3) of the Criminal Appeal Act must be addressed. The sub-section provides:

"On an appeal under s 5(1) against a sentence the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor and in any other case shall dismiss the appeal." 15 The appropriate process required in light of the terms of s 6(3) was considered in Regina v Simpson(2001) 53 NSWLR 704 at [79] and I need not dilate at length on that here. 16 The question then arises whether a less severe sentence was warranted in law and should have been passed. His Honour, as I have said, provided no reasons for failing to set a parole period. Notwithstanding his optimism as to the applicant's prospects on parole, it does not seem to me that the case was one which justified a fixed term as distinct from one where the sentence was broken up into minimum and additional or non-parole and parole periods. If one added to the three year custodial period, which his Honour imposed, a parole period which would bear in anything like the usual relationship of one third to that three year custodial period, one would arrive at a sentence of four years. That by comparison with the statutory maximum of five years would in the circumstances of the offence of the applicant have been excessive. 17 In these circumstances I have reached the conclusion that the sentence of three years' custody was excessive and some lesser period was required. I do not ignore the fact that his Honour also directed that the sentence be served by way of periodic detention. However, the law requires that the length of the period be determined prior to the selection of the method by which that period is to be served and in light of that, it seems to me that his Honour was not justified in fixing the three year term that he did, notwithstanding the leniency inherent in periodic detention. 18 I may perhaps add that I find the requirement that it is only after the term is fixed that the issue of periodic detention can be addressed is one which is a requirement which is quite inappropriate in any sentencing regime but for better or worse judges are stuck with it. Thus, in my view, the applicant has made out the requirement of s 6(3) of the Criminal Appeal Act. 19 Accordingly, this court should proceed to re-sentence. The applicant has, in fact, served some eighty-four periods of periodic detention, the equivalent of some one year and thirty-two weeks. He has served at first five weeks and then more latterly eleven months of full time custody. Trying to translate periodic detention into an equivalent time of full time custody is difficult and I think the most one can do is to, as it were, take it into account without any attempt at precision. 20 I agree with his Honour that the Applicant's offence was serious. The community has a legitimate interest in ensuring that the police become aware at an early time of violent deaths. It seems to me that for that offence a sentence of three years divided between a non-parole period of 2 years and 9 months and a parole period of 9 months is appropriate. 21 Doing the best I can to reflect the circumstances as they presently are, and have been since the matter was before Barr J, I would propose that the commencing date at sentence be 10 June 2001. The three year sentence will accordingly expire on 9 June 2004. The non-parole period of two years and three months commencing on 10 June 2001 will expire on 9 September 2003, the date upon which the applicant was admitted to bail. 22

R v STRAHAN

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