Regina v Smallbon

The application 17 Counsel for the applicant, Mr Dhanji, challenged both the effective total sentence and the minimum term. He submitted that the sentence of eight years is manifestly excessive, given the exceptional subjective circumstances to which I have referred. In particular, he argued that his Honour should have given less weight to considerations of deterrence in accordance with the principles relating to the sentencing of mentally disordered people summarised by Gleeson CJ in R v Engert (1995) 84 A Crim R 67. 18 It is clear from the remarks on sentence that his Honour was conscious of all matters favourable to the applicant, including his pleas of guilty, his remorse and the significance of his having surrendered the second victim and himself to police. His Honour spoke of the need for personal and general deterrence and it is true that he did not refer to the principles expounded in Engert. In fairness, it does not appear that his attention was directed to that line of authority. (Neither Mr Dhanji nor the Crown prosecutor before us had appeared in the District Court.) However, subject to one matter to which I shall return, I cannot see that the application of those principles, together with a proper recognition of the applicant's subjective case generally, could have led to an effective sentence any less than that which his Honour imposed. Indeed, in the circumstances, the applicant is fortunate that his Honour chose to make all the sentences concurrent. 19 That said, the one matter which does concern me is that his Honour made no express allowance for the period the applicant spent in custody following his arrest for the offences the subject of the first incident. As I have said, he was in custody from 3 July to 15 September 1998, a period of about two and half months. This Court has recently restated the importance of recognising periods of presentence custody in passing sentence, either by backdating the sentence or by reducing it appropriately: R v Pyrda [2001] NSW CCA 230, per Howie J at pars 9-11. I think that the practical course in this case is to reduce the effective sentence of eight years by three months. 20 It follows that there should be some adjustment of the effective minimum term. However, I am persuaded that the minimum term should be reduced in any event. As I have said, his Honour found special circumstances in the applicant's need for prolonged supervision on his release but, in my view, there are two other matters which should also have been taken into account in determining the length of the minimum term. One is the applicant's prospect of serving the custodial component of his sentence in strict protection. The other is the reservation expressed by both Mr Ballard and Doctor Lucas about the capacity of the prison system to afford the applicant the treatment and counselling which he requires. There is no doubt that these are matters capable of amounting to special circumstances: cf R v Simpson [2001] NSWCCA 534. I would reduce the effective minimum term by nine months. In my view, the resultant minimum term would still be adequate to reflect the applicant's criminality. 21 I would grant leave to appeal and allow the appeal. I would quash the sentences on the two kidnapping charges (counts 1 and 6). The sentence I would propose on each of those counts should now be couched in terms of the current legislation, the Crimes (Sentencing Procedure) Act, 1999. On each count I would sentence the applicant to imprisonment for seven years and nine months to commence on 28 September 1998, with a non-parole period of four years and three months. I would confirm the sentences on the other counts. The applicant would be eligible for release on parole on 28 December, 2002. 22 BUDDIN J: I agree. **********