Smith v R

[2023] ACTCA 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Smith v R

Citation:

[2023] ACTCA 23

Hearing Date:

19 May 2023

DecisionDate:

2 June 2023

Before:

Baker, McWilliam and Abraham JJ

Decision:

(1)    The appeal be allowed.

(2)    Order (e) of the orders of the sentencing judge be set aside.

(3)    A non-parole period of 2 years, 11 months and 12 days is set to commence on 10 December 2020, ending on 21 November 2023.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – error conceded in application of s 66 of the Crimes (Sentencing) Act 2005 (ACT) – global non-parole period ordered in accordance with law

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 6909
Crimes (Sentencing) Act 2005 (ACT) ss 63(c), 66
Supreme Court Act 1933 (ACT) s 37O

Cases Cited:

Kentwell v The Queen [2014] HCA 37; 252 CLR 601
M C-N (a pseudonym) v The Queen [2023] ACTCA 21
Millard v The Queen [2016] ACTCA 14
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
R v Smith [2021] ACTSC 114
R v Smith (No 2) [2022] ACTSC 246

Parties:

Kynan Smith ( Appellant)

The Queen ( Respondent)

Representation:

Counsel

J Maher ( Appellant)

A Williamson SC ( Respondent)

Solicitors

Nelson & Hill Lawyers ( Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 51 of 2022

Decision under appeal:

Court/Tribunal:             ACT Supreme Court

Before:  Justice Loukas-Karlsson

Date of Decision:          9 September 2022

Case Title:  R v Smith (No 2)

Citation: [2022] ACTSC 246

THE COURT:

1. On 9 September 2022, the appellant, having pleaded guilty in the Supreme Court to offences of attempting to pervert the course of justice, contravention of a family violence order and possessing a drug of dependence (a transfer charge), was sentenced to a total effective sentence of 1 year, 9 months and 13 days imprisonment to commence on 9 February 2023, with a non-parole period of 15 months commencing on 9 February 2023 and ending on 8 May 2024 (“the primary sentence”): R v Smith [2022] ACTSC 246.

1. Noting the primary sentence allowed for three months’ concurrency between sentences (1) and (2) below, the total effective sentence comprised:

(1)attempting to pervert the course of justice: 14 months and 13 days imprisonment commencing 9 February 2023 and ending 21 April 2024;

(2)contravention of a family violence order: 10 months imprisonment commencing 22 January 2024 and ending 21 November 2024;

(3)possessing a drug of dependence (a transfer charge): a sentence of the rising of the court; and

(4)imposition of a non-parole period of 15 months, commencing 9 February 2023.

1. At the time of sentencing, the appellant was serving an existing sentence imposed by Mossop J of 3 years, 4 months and 12 days imprisonment that commenced on 10 December 2020, with a non-parole period of 2 years and 4 months ending on 9 April 2023 (“the existing sentence”).

1. The sentencing judge ordered that there be some concurrency between the primary sentence and the existing sentence, such that the total aggregate sentence (including the existing sentence) to be served was 3 years, 11 months and 12 days, commencing on 10 December 2020 and ending on 21 November 2024 (“the overall sentence”).

1. In that circumstance, the sentencing judge was required to impose a new ‘global’ non- parole period in respect of the overall sentence pursuant to s 66(2) of the Crimes (Sentencing) Act 2005 (ACT). By reason of s 66(3), when the primary sentence was imposed, the non-parole period for the existing sentence was automatically cancelled. The new global non-parole period would need to be backdated to commence at the beginning of the overall sentence: Millard v The Queen [2016] ACTCA 14 at [84]. However, the non-parole period imposed by the sentencing judge in this case, commenced some 26 months after the commencement of the total effective sentence.

1. The respondent properly conceded error in the application of s 66 of the Crimes (Sentencing) Act. The effect of failing to set a new global non parole period was to increase the total non-parole period as a percentage of the overall sentence. When the primary sentence was considered separately, the new non-parole period was approximately 70% of the primary sentence. That was roughly consistent with the existing sentence imposed by Mossop J. However, given the non-parole period on the primary sentence was ordered to commence on 9 February 2023, the effect was the appellant would have to serve approximately 86 percent of his overall sentence before being eligible for parole, with a parole period of only six months.

1. That outcome resulted from a technical error or oversight when imposing the sentence. It serves to illustrate the importance of the lawyers attending Court on the imposition of a sentence being in a position to assist the Court at that stage, with any issue that arises from the sentence imposed. Had this been recognised, it would no doubt have been readily and easily remedied. What her Honour intended was readily apparent from the exchanges during the plea hearing and the non-parole period imposed relative to the primary sentence. Having not been raised at the sentencing stage, it is unfortunate that the error was not picked up (and conceded) more promptly, which would have enabled the parties to apply to the primary judge pursuant to r 6906 of the Court Procedures Rules 2006 (ACT) to remedy it. Alternatively, the parties could have applied for the proceeding to be reopened in order that the sentencing judge remake the relevant order in accordance with the law, pursuant to s 61(3)(a) of the Crimes (Sentencing) Act.

1. Instead, unfortunately, the matter proceeded to an appeal. At that stage, the respondent conceded the error. The respondent submitted that the Court should therefore resentence the appellant, in accordance with Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. That is, the Court should engage in a full resentencing (including reconsidering the head sentence). Although accepting that the head sentence was not manifestly inadequate, the respondent nonetheless submitted that the head sentence could be reconsidered and increased. The respondent submitted the level of concurrency contained in the total effective sentence failed to properly recognise the separate and discrete instances of offending and the overall gravity of all of the appellant’s offending. Accordingly, he submitted that a Parker direction (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282) should be given to the appellant because he was exposed to the risk of an increased sentence. The appellant did not submit that a lesser head sentence than that imposed by the primary judge should be imposed.

1. McCallum CJ (Loukas-Karlsson and Charlesworth JJ agreeing) in M C-N (a pseudonym) v The Queen [2023] ACTCA 21 at [25] queried the application of Kentwell to s 37O of the Supreme Court Act 1933 (ACT) (the provision pursuant to which this appeal was instituted). However, given the absence of argument we do not consider it is appropriate to address the issue of the application of Kentwell.

1. In the circumstances in which this appeal arises, as discussed above, and where the respondent conceded that the head sentence is not manifestly inadequate, even if we were of the view that a higher sentence should be imposed, we would not do so. At the appeal hearing we declined to give the Parker direction sought. It is to be recalled that the purpose of a Parker direction is to alert an appellant to the possibility their sentence might be increased on appeal to enable them to consider whether they wish to proceed with the appeal. It was not appropriate to give a Parker direction given the circumstances in which this error is now being rectified. It is no fault of the appellant that the error occurred and the non-parole period must be rectified to accord with the proper application of s 66 of the Crimes (Sentencing) Act.

1. The sentencing judge set out the factual basis of the offences, and the matters relevant to the imposition of sentence, including the non-parole period. Apart from the respondent’s submission that the Court may come to a different conclusion as to the appropriate length of the head sentence, no issue is taken by either party to that consideration including any factual findings. We have also taken into account the existing sentence, and the facts and circumstances of the imposition of that sentence as explained in R v Smith [2021] ACTSC 114.

1. Given that we are rectifying the misapplication of s 66, it is unnecessary to recite those factual matters relevant to imposing the non-parole period. We note also that the prosecutor submitted before the sentencing judge that Mossop J’s assessment of the appropriate length of the non-parole period relative to the existing sentence remains appropriate to the further sentence to be imposed.

1. On resentence, the appellant read the affidavit of his solicitor Zelin Yu, dated 19 May 2023, which updates his situation as at the time of the appeal. Suffice to say, it does not advance the appellant’s case in any significant manner. As the appellant submitted, it cannot be suggested that his prospects of rehabilitation have improved, but they have not worsened. At best, it reflects that the appellant is positively using his time in custody since his sentence was imposed.

1. As explained above, we do not alter the primary sentence. We impose a non-parole period on the overall sentence of 2 years, 11 months and 12 days, to commence on 10 December 2020 and end on 21 November 2023. This is roughly consistent with the approach taken by Mossop J and allows the appellant to be on parole for 12 months, with the supervision and support that entails.

Orders

1. The Court makes the following orders:

(1)The appeal be allowed.

(2)Order (e) of the orders of the sentencing judge be set aside.

(3)A non-parole period of 2 years, 11 months and 12 days is set to commence on 10 December 2020, ending on 21 November 2023.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the reasons for judgment of the Court.

Associate:

Date: 6 June 2023

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Amendments

6 June 2023           Replace “McCallum CJ” with “McCallum CJ (Loukas-Karlsson and Charlesworth JJ agreeing)” Paragraphs: [9]