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Sentencing Review : The Crimes (Sentencing Procedure) Act 1999 - 2 years on

A paper by Andrew Haesler
Public Defender*

On April 3 2000 the NSW legal world shifted slightly on its axis. In the most far reaching and fundamental criminal law reform since 1929, section 556A of the Crimes Act 1900 was renumbered.

Section 556A was the only Crimes Act provision known to most of the legal profession. Its value as a specialised car number plate was well recognised. Its demise was greeted with considerable regret. But life goes on. Already some penitents have left the Local Court with a perfect 10 and unblemished records. It is rumoured, that 10's have been given by Judges of the District Court. I suspect however that it may be some time before we see a 10 in the Supreme Court .

Now some 2 years after the introduction of the Crimes (Sentencing Procedure) Act 1999 (the CSPA), it is time take a look at some of its more problematic provisions - many of which are by now old friends.

Hierarchy of Punishment:
The hierarchy of punishment can be seen by looking at Part 2 of the Act Sections 5 to 9. Periodic and home detention (ss 6 & 7) are set out as alternatives to full time detention. Community Service Orders and Bonds are categorised as non custodial alternatives. (ss 8 & 9).

Sections 8 and 9 commence ' Instead of imposing a sentence of imprisonment...'In the context of the CSPA this comment must be taken to limit penalties such as bonds and community service only to offences which have a penalty of imprisonment available. Thus if a fine is the only available penalty, only a fine can be imposed.

It seems incongruous that a bond which of itself is a harsher penalty than a fine ( Relic v DPP [2000] NSWCA 84) should be available as an alternative to a fine.

Suspended sentences would appear to fit between sections 6 & 7 and 8 & 9. This is because although a period of imprisonment is required to be imposed, the type of detention by which it could be served - full time, periodic or home detention, is only determined on breach. See section 99(2).

Bonds:
The Act allows only three types of bond.

* Section 10 bonds either conditional or non conditional (for those who will carry the old terminology with them to their graves - the equivalent
C rimes Act provision was s 556A). Only section 10 bonds can be imposed where the only available penalty is a fine.
* Section 9 bonds imposed where a penalty of imprisonment was otherwise available.
* Section 12 bonds following suspension of sentence.

The section 9 bond has a five year limit, section 19 and 12 bonds have a two year limit.

Bonds can be conditional. Section 95 sets out the conditions the Bond must contain. This includes a general condition to be of good behaviour.

There is no prohibition on additional conditions. There is a general rule however that conditions must; bear some relationship to the offence and the offender ( Bantick v Blunden (1981) FLR 414); not be unduly onerous ( R v Harvey (1989) 40 A Crim R 102); and the offender must have a reasonable chance of complying with them ( Crawford v R unreported NSW CCA 28 June 1995).

Section 101 of the Act makes it clear that any other common law power to impose a recognisance or bond, including any obligation to keep the peace, is abolished.

Section 10: No Conviction Bonds
Before a section 10 bond is given the court must have regard to four factors

a. a person's character, antecedents, age, health and mental condition;
b. the trivial nature of the offence;
c. the extenuating circumstances in which the offence was committed;
d. any other matter which the court thinks proper to consider.

The section was drafted to replace but not change s 556A . As is the wont of the NSW CCA one court thought otherwise, holding that all four conditions had to be satisfied before a s10 bond could be granted. (see R v Piccin No 2 [2001] NSW CCA 323 per Bruce James J and Giles JA, Hulme J).

As is also the way of things at the CCA, a different bench thought otherwise. In Paris v R [2001] NSWCCA 83 the Court Wood CJCL, Ipp AJA and Simpson J all held that the four factors in s 10 were disjunctive, not exhaustive and that it was not necessary that the offence be trivial before a s10 bond was imposed. The sentencing Court can consider any of the s10 factors when deciding whether a non conviction Bond is appropriate

Paris for reasons of history, legislative interpretation principles and simple common sense is to be, and to date has been, preferred.

Section 11: Pre Sentence Remands
Section 11 allows for a person to be released to bail before sentence so that an assessment can be made of their prospects for rehabilitation or to see whether rehabilitation has in fact occurred. This conditional release was not intended to be restrictive and can be for any appropriate purpose (s11(1)(c) CPSA). The Bail Act 1978 has been amended to accommodate bail for rehabilitation purposes, see s36A.

A 12 month restriction on s11 bonds was introduced to encourage a degree of finality in these matters. If more time is needed to complete rehabilitation, a bond or suspended sentence could be imposed at the conclusion of the remand.

Suspended Sentences
As some one intimately involved in the drafting of section 12 I can say it was always our intention that there be no partially suspended sentences. We felt obliged to impose this restriction to avoid courts partially suspending sentences to get around the 'special circumstances' provisions in s44 CSPA.

In July 2001 the Court of Criminal Appeal in Gamgee [2001] NSWCCA 251 Mason, P; Dowd J; Sully J dissenting, held that we had intended the exact opposite of what I thought was clear from a reading of the Act.

The majority found no reason in the words of section 12 or the CSPA to restrict or exclude the suspension of any part of the sentence. Partial suspension can now occur in relation to any portion of the sentence (including conditional partial suspension later in the sentence) to enable some event to take place. The examples given are completion of pregnancy or a course of study.

A suspended sentence is a sentence of imprisonment. As with other options to full time imprisonment the sentencing court must before imposing a suspended sentence engage in a two step process: Dinsdale (2000) 115 A Crim R 558 and Foster [2001] NSWCA 215.

The first step is to determine whether imprisonment is to be ordered at all and for how long. The second step is to decide whether that sentence is to be suspended.

Cumulative suspended sentences
Section 12 suspensions can be cumulative to each other. They cannot be made either cumulative to or concurrent with another sentence if that other sentence involves imprisonment. This includes, home detention, periodic detention or the period when a person is serving the balance of parole. See R v Edigarov. [2001] NSWCCA 436.

Breach of a Bond
On breach the court can:

* find the offence trivial and take no action (s98(3)(a);
* find there are good reasons to excuse the breach (s 98(3)(b); or
* revoke the Bond (s98(3)) and except in the case of a s12 Bond proceed to re-sentence the offender.

On revocation of a section 12 Bond, the court cannot vary the length of the term imposed. They must determine whether the sentence, if over 6 months, is to have a non parole period and whether if appropriate, it should be served by home or periodic detention. See s99(2) CSPA.

In Devine v R (1967) 119 CLR 506 at 515 Windeyer J noted that the misconduct alleged to breach the Bond must relate in some way to the original offence. In that case speeding offences were found not to relate sufficiently to a bond for sexual assault.

Fines
Justice Wood in Laws [2000] NSWSC 885 correctly noted that s 95 c(ii) prevented the imposition of a fine or compensation as a condition of a bond. The rationale for this provision was that poverty or lack of resources should not of itself allow breach of conditions and lead to possible imprisonment (not of course a problem for Mr Laws).

However his Honour was not otherwise constrained from imposing a substantial fine on Mr Laws. Section 15 allows for fines of up to 1000 Penalty units as an additional penalty for matters on indictment where no fine is provided. Similar provisions exist for fining body corporate in section 16.

Section 24:
An important section, s24 ensures that the Court must take into account any time during which an offender has been held in custody. In addition if an offender is being sentenced for failing to comply with obligations under a bond or community service the fact that they have been the subject of CSO or a bond and anything done in compliance with their obligation under that bond or CSO must be taken into account.

When read with s47(2) ' A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed,'it is clear that time held in custody can be taken into account and that the sentence can be backdated even though the period of the backdate itself was not spent in custody.

A person being sentenced should receive that due allowance for every day held in custody in relation to the offence.

Compliance with a bond or community service should, on re-sentence, count as a special circumstance, justifying variation of the statutory ratio for a sentence and a lesser non-parole period. See s44(2)CSPA.

Multiple sentences: Pearce v R
A court cannot, when sentencing for multiple offences, fix a term of imprisonment on one count sufficient to punish an offender for their overall criminality and impose notional concurrent sentences on the remaining counts. Pearce v R [1998] 194 CLR 610

The court must:

'Fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.'( Pearce at 624 emphasis added.)

It is not a simple task. The sentencing court must take into account the totality of the criminality of what is involved in all the offences ( Mill v R (1998) 166 CLR 59) but it cannot simply impose one effective penalty or aggregate all the individual sentences.

The court must determine whether sentences are to be wholly or partially concurrent. It must also ensure that a distinction is made between those who commit multiple offences and those whose crimes are not so widespread. ( R v Wheeler [2000] CCA NSW 34 per Sully J at [34] and R v Bavadra (2000) 115 A Crim R 152.) These principles also apply to the setting of non parole periods.

Section 47(5) makes it easier for the sentencing court to comply with Pearce by allowing for sentences which run parallel to each other. What is required by the section is a clear statement of when parole can or could commence and when the last sentence finishes. (ss 47 and 48)

The key potential problem to be watched for when cumulative sentences are being imposed is that there be should no gap in custody. An offender should not released to parole and then returned to commence a fresh sentence.

Section s 45(b) allows for fixed terms to be set because of other sentences imposed.

Accumulation of sentences may be regarded a special circumstance justifying variation of the usual * ratio required by s 44 particularly if the resulting overall sentence appears imbalanced. Cook [1999] NSWCCA 234, Simpson (1992) 61 A Crim R 58 and Clarke (1995) 78 A Crim R 236 at 239 .

In most cases of multiple sentences it would be appropriate to fix a term for each offence and the partially accumulate some or all of the offences, to reflect in the total effective sentence the overall criminality of what the offender has done.

Merely setting the same term for each offence (taking account totality) and making them all concurrent will no longer do. See AEM & Others v R [2002] NSWCCA 58 and Fernando v R [2002] NSWCCA 28.

Taking Matters into Account: The Form 1:
When a person is sentenced in the higher courts other unrelated matters may be taken into account on sentencing (ss 31 -35 CSPA and Form 1) The more venerable practitioners may remember that matters were once taken into account on the 9th Schedule to the Crimes Act.

The Form 1 matters are generally taken into account on the most serious of the offences. It is not appropriate for the Form 1 offence to be more serious than the principle matter.

Taking matters into account on a Form 1 does not mean that no extra punishment will be imposed because of the additional matters. In theory the only limitation is the maximum penalty of the offence with which they are being taken into account. The penalty must reflect the totality of the criminality and reflect the nature of the offence taken into account (see AEM and Bavandra).

The CCA have examined how to approach Form 1 matters in a number of different ways. There appears to now be a consensus.

' An offender who adopts the procedure [of the Form 1] is entitled to expect an additional penalty significantly less than would have been imposed had separate charges been prosecuted; if that were not so then the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and the courts and must therefore be implemented in such a way as to afford some benefit to an offender' R v Harris [2001] NSWCCA 322.

Special Circumstances
Section 44(2) of the CSPA notes that in imposing a sentence of imprisonment the non parole period cannot be less than * of the sentence unless there are special circumstances. If a court imposes a lesser percentage reasons must be given

For some time there have been a variety of views as to when special circumstances can be found. In 2001 the CCA sat a five judge bench to resolve these issues - Simpson v R [2001]NSWCCA 534.

The Chief Justice with whom the Court agreed made the following points;

1. There is no reason to say a finding of special circumstances must be based exclusively, or primarily, on the fact that it is desirable for an offender to be subjected to an
extended period of supervision on parole.
2. The primary perspective in determining the non-parole period is the length of the minimum period of actual incarceration Power v R (1973) 131 CLR 623.
3. The scope of the considerations relevant to the determination of special circumstances encompasses the full range of issues that are relevant to the determination of
the minimum period of actual incarceration.
4. Section 44(2) operates as a "fetter" or "constraint" on the exercise of the sentencing discretion. R v GDR (1994) 35 NSWLR 376 referred to. The decision required is, firstly,
one of fact (to identify the circumstances) and, secondly, one of judgment (to determine whether those circumstances justify a lower proportion between the head sentence and the non-parole period).

In essence all relevant factors must be considered both when assessing the non parole period and the total sentence however the non parole period must still reflect the objective seriousness of the offences and other relevant sentencing factors.

A Plea of Guilty
The CCA in the guideline judgement of R v Thomson & Houlten (2000) 49 NSWLR 383 considered s 22 of the CSPA and the 'discount' an offender was entitled for a plea of guilty. The court was of the view that :

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

There are a number of different approaches by sentencing judges and Magistrates to how Thomson should be approached. The preferred view is that the discount for the utilitarian aspects of the plea is not influenced by the strength of the Crown case. That factor goes to another aspects of the plea of guilty which is quite distinct: That is considerations of whether the plea shows contrition and whether any discount over and above that for the utilitarian benefit should be allowed R v Carter [2001] NSW CCA 245.

This view was recently reinforced by the decision of the High Court in Cameron v R [2002] HCA 6. The joint judgement of Gaudron, Gummow and Callinan JJ, with some support from Kirby J, noted that is it well established that a guilty plea must be taken into account in mitigation of sentence ( Siganto v R (194 CLR 656). That guilty plea can reflect not only remorse and the pragmatic sparing of the community of the cost of a trial but also acceptance of responsibility and a willingness to facilitate the course of justice.

The High Court by majority, noted that a persons willingness to plead should be assessed in relation to the charge eventually preferred. They should not be assessed in terms of an earlier incorrectly particularised charge. This point is reflected in the NSW authorities.

Where an accused offers to plea to a lesser charge but that offer is rejected, the CCA has held that a full sentence discount is appropriate. R v Oinonen [1999] NSWCCA 310

Thomson sought to entrench a practice of specifying the sentencing discount given for a guilty plea, at least so far as its utilitarian aspect. The High Court in the decision of Wong v R and Leung v R (2001) 76 ALJR 79, [2001] HCA 64 put a cat among the pigeons. The joint judgement of Gaudron Gummow and Hayne JJ cast doubt on any sentencing exercise that involved a two stage approach: That is where the sentence is first notionally determined and then discounted taking into account various factors. Their Honours expressed a preference rather, for an 'instinctive synthesis' approach whereby all relevant sentencing factors were considered and weighed before sentence was pronounced.

The High Court by majority also rejected the idea that guidelines which purported to limit a sentencing judges sentencing discretion should issued by the CCA. In response the government passed amendments to the CSPA. The new section 42A purports to retrospectively validate any guideline judgment of the CCA. This would include Thomson.

The efficacy of the amendments and the effect of Wong & Leung on Thomson were not resolved in the latest attempt to get a guideline, this time for sexual assault heard on the 15 March 2002 - AG Application No 2; Sexual Assault and Aggravated Sexual Assault. They may come up in the matter of Sharma due to be heard in mid April.

In the meantime I would recommend that, a guilty plea, because of the operation of the common law, Cameron and s 22 CSPA still demands a reduction in sentence both for its utilitarian value and if appropriate its indication of remorse, acceptance of responsibility and a willingness to facilitate the course of justice. It would be better however if the court did not specify the exact discount rather they should indicate which factors they have taken it into account in reduction of the otherwise appropriate sentence.

Sentencing error
Section 43 allows for the reopening of matters for correction of errors where a sentence has been imposed, or not imposed according to law. It reproduces in substance the old section 24 Criminal Procedure Act 1986. A check list of procedures to be followed are set out in Ho v Director of Public Prosecutions (1995) 37 NSWLR 393.

There is no time limit on such applications (Smart J in R v Denning unreported CA NSW 15 May 1992 at p 11.) Section 42 is commonly used to correct commencement date errors or to fix parole periods. Particular problems have arisen where courts have failed to consider whether non parole periods should be set when periodic or home detention is ordered.

Sentences of Imprisonment
Part 4 of the Act relates to the sentencing of an offender to imprisonment.

The pre-1989 terminology relating to non-parole periods has been resurrected. Section 44(2) however, continues the Sentencing Act 1989 provisions that the non-parole period must not be less than three-quarters of the sentence, unless there are 'special circumstances'.

Procedurally, a Court must now impose the total sentence then set out the non-parole period. If a lengthy parole period is required, this will now have direct consequence in the reduction of the non-parole period. R v Carrion (19991-2000) 49 NSWLR 149.

Non parole periods and the provisions of s 44 apply to periodic detention and home detention. Before these alternatives to full time imprisonment are ordered there must first a determination that a sentence of imprisonment apply and then a decision as to how it is to be served.

For home detention, the sentence must be imposed before the assessment is made. This was designed (ineffectually in my view) to prevent the sentences being extended to take account of the in built leniency of this option.

The Court of Criminal Appeal has said that in-built leniency should not be taken into account with fixing the term of the sentence of periodic detention ( R v Wegener [1999] NSW CCA 405). Thus a sentencing court cannot increase sentence by virtue of the fact it is intended to be served by periodic detention or home detention.

Cumulative sentences in the Local Court
Section 58 of the Sentencing Procedure Act makes it clear (hopefully clearer than the old s444 Crimes Act) that the Local Court may only impose two consecutive sentences, which together cannot exceed three years from the date on which the original sentence commenced.

The only exception, s58(3), is where the new sentence relates to an assault on a correctional officer and, the old sentence was imposed by a court other than the Local Court. The restriction on accumulation upon accumulation in the Local Court is only waived by s 58(3) for offences involving assaults by convicted inmates of correctional centres.

Where in R v Barton [2001] NSWCCA 63 at para 51 the Chief Justice expresses a contrary view, he appears to be in error.

Section 58 creates a particular and peculiar anomaly when it comes to sentences for offences involving escape (s57). To put it bluntly, if the DPP proceed with escape matters in the Local Court, then s57 being the limitation on jurisdiction, may and will in most cases prevent s57 from having its full intended operation.

In relation to sentences in the Local Court the CCA, in R v Doan (2000) 50 NSWLR 115 makes it clear that section 27(2) of the Criminal Procedure Act 1987 sets a jurisdictional maximum not a maximum penalty.

Children's Court
Section 33(c) Children's Criminal Procedure Act continues arrangements which allow for control orders to have non-parole periods and for other related sentencing principles to be taken into account by the Children's Court. Section 29 Children's (Detention Centres) Act continues to practice where Children's Court exercise powers which parallel those which the Parole Board has over adults.

The Children's Court has power to impose statutory 'Griffith Remands' and suspended sentences. (S31B and s41A Children (Criminal Procedure) Act). The provisions were introduced to coincide with the Children's Drug Court Program.

Conclusion
Overall, with the exception of some drafting errors and matters of political policy, I have been comforted by the positive reactions to the new Act by the judiciary and legal profession. I wish I could comfort you by saying that there won't be a wholesale re-numbering of Criminal legislation for a long time to come, however, this exercise is but the first stage of quite considerable changes to the structure of criminal legislation in New South Wales. Wait till they get to the Crimes Act!

Andrew Haesler
Public Defender

14 March 2002


 

*
Andrew Haesler is a NSW Barrister and Public Defender.

Admitted to practice in 1981 Andrew has worked as a Solicitor with the Redfern Legal Centre, (he was its Principal Solicitor from 1985 to 1989), Alice Springs (with the Aboriginal Legal Service) and Wollongong (with Legal Aid Commission).

He was admitted to the Bar in 1990 appearing in a wide variety of matters before accepting an appointment as a Public Defender in 1995. In 1999-2000 he was the Director of the Criminal Law Review Division of the NSW Attorney General's Department.

APPENDIX


A QUICK QUIZ ON
CSPA BONDS
courtesy of Magistrate George Zdenkowski


Section 9:
Can s9 bonds only be imposed in respect of offences which carry a prison penalty?

Section 10:
1. Is there a greater restriction on conditions that can be imposed on s10 bonds than on s9/s12 bonds?
2. What is the legal effect of a dismissal without conviction?
3. Can a donation be required as a condition of a bond?
4. Considering the different approaches of the NSW CCA in Paris and Piccin (No 2) as to the construction of s10(3), which is preferable?

Section 11:
1. How do s11 remands differ from 'Griffiths' remands?
2. Is s11 restricted to remands to assess the prospects/achievement of rehabilitation or does the s11(1)(c) reference to 'any other purpose' provide a wider scope?
3. To what extent can a court 'take a punt' on an offender's prospects of rehabilitation? (See Tindall & Gunton (1994) 74 A Crim R 275).
4. Is it permissible to impose a bond under s11 or is the court restricted to bail conditions? (See R v RY [2001] NSWCCA 499.

Section 12:
1. Can the seriousness of objective circumstances render a suspended sentence inappropriate notwithstanding powerful subjective features?

(See DPP v Waack [2001] 121 A Crim R 134).
2. Can s12 sentences be partially suspended? If so, which part? (See Gamgee.
3. Is a partially suspended sentence a way of avoiding the 75% rule (ie 'special circumstances' by the back door?).
4. What discretion is available to the court for breach of a s12 suspended sentence? (See s98(3)(a) and (b)).
5. Is the two-step process in Dinsdale optional or mandatory? (see Blackman & Walters, [2001] NSWCCA 121.
6. Do subjective factors weigh more heavily than objective factors in determining a suspended sentence outcome?
(See Leilei [2001] NSWCCA cf DPP v Waack [2001] 121 A Crim R 134).
7. R v Laws [2000] Wood CL at CL correct in holding that a fine could not be combined with a suspended sentence because of s95(c)(ii)?
8. Can a defendant be sentenced to a s12 bond at the same time as she/he was sentenced to a term of imprisonment but released to parole?
(See R v Edigarov [2001] NSWCCA 436.