R v Hall [2017] NSWCCA 313
R v Hall [2017] NSWCCA 313 · Read the judgment on AustLII
Catchwords: Sentencing – special circumstances – non-parole period not usually below 20 per cent of the total sentence
In this decision the CCA has re-endorsed a rule of thumb to the effect that, even with a finding of special circumstances, non-parole periods should not usually be set as low as 20% of the overall sentence.
The offender was found guilty by a jury of four serious sexual offences committed in 1990. The offender called an escort to a motel room, and when she arrived he held a knife to her throat, covered her eyes, threatened to kill her, then committed a number of sex acts on her, before leaving her there. The victim immediately complained and was taken to hospital, where various examinations were done of her, including DNA swabs. The trail of the offender went cold, until I n 2007 the offender was in Queensland and failed to pay for petrol, as a result of which he was charged, convicted, and his DNA profile taken. That profile eventually made its way onto the national DNA database, so that in 2010 NSW police were notified of the match. It took until 2013 for a warrant to be issued for his arrest, though he was arrested fairly quickly after that. However, it then took a further three years for the trial to take place, and the sentencing proceedings were also subsequently delayed. Other than the relatively minor offence of stealing petrol, the offender had not otherwise come under notice in the years after the offence; the fact that he had led an apparently-blameless life in the many years following these crimes were a central aspect of his subjective case. He was sentenced to 5 years imprisonment, with a non-parole period of 1 year. The Crown appealed against the asserted inadequacy of the sentence.
In allowing the Crown appeal and eventually resentencing the offender, the CCA (RA Hulme J, Simpson JA and Wilson J agreeing) canvassed a number of issues, including the proper approach to delay in prosecuting offences in a case like this one (it was not pressed by the offender that the he had been in a state of uncertain suspense – only that he had used the time productively). However, for present purposes a different aspect of the decision is of more interest. In setting the non-parole period at only 20% of the head sentence, the sentencing judge had criticised a previous decision of the CCA: R v Tuhakaraina [2016] NSWCCA 81. Readers will recall that, absent a finding of special circumstances, the non-parole period must be 75% of the overall sentence. Here, it was 20%.
In Tuhakaraina, Wilson J (with whom RA Hulme J agreed; Garling J dissenting) had noted that, whilst it was neither necessary nor prudent to state any general rule about the formulation of a proper ratio, once there has been a finding of special circumstances, it should be ‘very rare indeed’ and ‘in the most extraordinary circumstances’ for the non-parole period to represent only 20% of the overall sentence. That is so because it would be difficult to see how such a proportion could perform the manifold functions of sentence set out in s3A of the Crimes (Sentencing Procedure) Act (which of course include rehabilitation – but also punishment and general deterrence, amongst others). Here, perhaps not coincidentally (given RA Hulme J and Wilson J were also the majority in Tuhakaraina) the court reiterated that proposition (at [93]), with RA Hulme J reiterating that it would be an unusual case which imposes such a low proportion and yet complies with all of the principles relevant to setting a non-parole period – principles which were helpfully summarised in this decision, at [89].
The decision should be taken to be strongly discouraging, rather than prohibiting, sentences for which the non-parole period is so short. For example, presumably their Honours did not have in mind cases where the reason for special circumstances had to do with the structure of the sentence (for example if it is to be made partially concurrent and partially cumulative with some pre-existing sentence).