R v Crawford (No 2)
[2022] ACTSC 88
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Crawford (No 2) |
Citation: | [2022] ACTSC 88 |
Hearing Date: | 27 April 2022 |
DecisionDate: | 27 April 2022 |
Before: | Elkaim J |
Decision: | See [12] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – where offender had an awful upbringing – where error “contrary to law” |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 61 |
Cases Cited: | R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 |
Parties: | The Queen ( Crown) P M Crawford ( Offender) |
Representation: | Counsel E Priestly ( Crown) J Cooper ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Aboriginal Legal Service ( Offender) | |
File Number(s): | SCC 297 of 2021 |
Elkaim J
On 22 April 2022 I sentenced Mr Crawford for the offences of aggravated burglary and theft.
The sentence for the aggravated burglary was 19 months. It commenced on 12 February 2024 and ended on 11 September 2025. For the theft he was sentenced to 12 months’ imprisonment, commencing on 12 May 2024 and ending on 11 May 2025.
The matter was complicated by the fact that Mr Crawford was already in prison serving sentences, which had been imposed by Refshauge AJ, and which were due to end on 12 February 2025 with a non-parole period ending on 12 February 2023.
It was necessary for me to reset the nonparole period, which I did; the new non-parole period ending on 21 October 2024.
Mr Cooper, who represented Mr Crawford, sent an email to the Court in which he pointed out that the non-parole period I had set was 80 per cent of the head sentence. He thought this might not have been intended, as it is a particularly high percentage. It is well known that, usually, a nonparole period will fall within the range of 50 to 70 per cent.
As a result of Mr Cooper’s email, I relisted the matter today to hear any further submissions that the parties wished to make.
There was no dispute that it was open to me to adjust the nonparole period which I will do pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT). Clearly, I had made an error “contrary to law”.
The principles for the setting of a non-parole period were stated in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103. This was said from [101]:
[101] In this jurisdiction, the considerations that are relevant to fixing a non-parole period are to be found in ss 7 and 33 of the Sentencing Act and understood in the context of the above cases.
[102] In fixing a non-parole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low non-parole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
[103] Ordinarily, a non-parole period should constitute a substantial part of the total sentence. In some cases, a non-parole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low non-parole period is set, the sentencing court should explain why, in the particular case, it considers that the low non-parole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.
In my original sentencing remarks I said, at [27], there are “probably some prospects of rehabilitation”. Clearly a nonparole period which is just over 80 per cent of the head sentence is not consistent with this sentiment.
I think I should adjust the nonparole period to recognise the small prospect of rehabilitation. I have decided that a non-parole period of 3 years, 1 month and 13 days, commencing on 13 February 2021 and ending on 26 March 2024 should be set. This equates to 68 per cent of the head sentence.
This has the unusual effect of the nonparole period ending before the commencement of the sentence for the theft charge. In order to recognise the prospect of rehabilitation, no other solution is possible.
I make the following order:
(a) The nonparole period set on 22 April 2022 is adjusted so as to commence on 13 Feb 2021 and end on 26 March 2024.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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