Acton v R

Introduction

1. By this ground of appeal, the applicant argues that the sentencing judge erred in applying the discount for the guilty pleas to the aggregate sentence, and not the indicative sentences, in contravention of s 53A(2) of the CSP Act. As later explained, the substance of this ground amounted to a complaint about the failure of the sentencing judge to give proper effect to the principle of totality when sentencing the applicant.
2. The passages in the sentencing judgment that were argued to disclose that error are as follows (J18-19): … The aggregate sentence I impose consists of a non-parole period of two years six months commencing from 22 April 2022 and a head sentence of four years. That is following the discount of 25 percent from a head sentence of six years. The [applicant] will become eligible to be released on parole on 21 October 2024. The sentences that I would have imposed for each sentence if such sentences had been imposed instead of an aggregate sentence are the offence of charge one, a sentence of two years six months. This term has been reduced by a discount of 25 percent for the plea of guilty. For the offence of charge two, a sentence of three years nine months. This term has been reduced by a discount of 25 percent for the plea of guilty, ie, from five years. For the offence of charge 3, a sentence of one year six months. This term has also been reduced by a discount of 25 percent for the plea of guilty. I will give that again. The aggregate sentence I impose consists of a non-parole period of two years six months, commencing from 22 April 2022, from a head sentence of four years following a discount of 25 percent. The [applicant] will become eligible to be released on parole on 21 October 2024, having regard to the 306 [days] that he has been in custody…
3. To summarise the above, and putting to one side the order in which the sentencing judge addressed the sentences, the indicative sentences were: 1. offence one: 2 years and 6 months. 2. offence two: 3 years and 9 months. 3. offence three: 1 year and 6 months.
4. In respect of each indicative sentence, the sentencing judge noted that the "term has been reduced by a discount of 25 percent for the plea of guilty".
5. The aggregate sentence imposed was for 4 years, with a non-parole period of 2 years and 6 months. The sentencing judge noted that the aggregate sentence was "following the discount of 25 percent from a head sentence of six years" (J18; J19). In fact, the discount on the aggregate sentence was 33 percent, not 25 percent as the sentencing judge indicated or, put another way, applying the 25 percent discount would produce an aggregate sentence of 4 years and 6 months, not 4 years.

Discounting of indicative sentences: s 53A of the CSP Act

1. Section 53A of the CSP Act provides: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following - (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.
2. In relation to s 53A(2) and the discounting for a plea of guilty, the following matters should be noted. First, it is well-established that the discount of 25 percent for the applicant's guilty pleas should be applied to each of the indicative sentences, not the aggregate sentence: Elsaj v R [2017] NSWCCA 124 at [56]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [6] and [138] ('Ibbotson'); Weiss v R [2020] NSWCCA 188 at [69]-[70] ('Weiss'). Part 3 of the CSP Act, referred to in s 53A(2)(b), includes s 25D (the provision that conferred and quantified the entitlement of the applicant to a discount for his guilty pleas). Secondly, and following on from the first matter, applying that discount to the aggregate sentence, rather than the indicative sentences, is an error requiring this Court to intervene and resentence: Weiss at [70]. Thirdly, applying the discount to the indicative sentences and not the aggregate sentence aids transparency and ensures that the principle of totality, which "should ordinarily come last in the sentencing process", is correctly applied: Ibbotson at [15]; JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at . By that last mentioned principle, a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, must assess whether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12].

Discussion and consideration

1. The applicant's essential submission is that, having considered that an aggregate sentence was appropriate and noting that the applicant was entitled to a 25 percent discount for his early guilty pleas in accordance with s 25D(2)(a) of the CSP Act, the sentencing judge erroneously applied that discount to the aggregate sentence, rather than the indicative sentences (applicant's submissions at [34] and [42]). Further, the applicant argues that the sentencing judge further complicated, but did not cure, this error in applying the discount in a second, but different, way (applicant's submissions at [42]).
2. The key passage of the sentencing judgment has been set out at [32], above.
3. The applicant submits that the "first approach" of the sentencing judge was, as a "starting point", to fix the aggregate sentence and then apply a discount and, thereafter, imposed indicative sentences "which were then accumulated to amount to the 'discounted' aggregate" (applicant's submissions at [43]). The upshot, the applicant submitted, was that the sentencing judge reached the aggregate sentence in two different ways: one which involved error and one which, of itself, did not (applicant's submissions at [44]).
4. The applicant, during submissions in this Court argued that, although the second approach was not erroneous, by first dealing with the aggregate sentence the totality principle was infringed, with the consequence that the sentencing discretion miscarried, and that error could not be cured by the second approach. This followed, the applicant argued, because the second approach was neither independent to, nor separate from, the first approach with the consequence that the principle of totality had not been applied in the right way, and at the right time. The thrust of what was argued was that the sentencing judge determined - both in substance and in form - the aggregate sentence first, thereby denying the proper application of the principle of totality.
5. In my view, although it might have been preferable for the sentencing judge to approach the matter more straightforwardly (and solely) by indicating the sentences for each offence, applying a discount for the guilty plea to each of them in conformity with s 53A(2) of the CSP Act, and thereafter imposing the aggregate sentence, that he did not do so did not lead to the principle of totality being bypassed, for the following reasons. First, there is nothing in the order that the sentences were announced that dictates such a conclusion. Indeed, the applicant, during the course of the hearing in this Court, did not contest the proposition that it was both common, and acceptable, for sentencing courts to announce the aggregate sentence before announcing the indicative sentences, and also accepted that it would not be erroneous for a sentencing court to approach the matter in that way. Secondly, when one examines the reasons of the sentencing judge, his Honour makes plain that before announcing any sentences, he has "had regard to the principle of totality, given there are multiple offences and the principle of proportionality" (J17). It is apparent from where that consideration occurred in the reasons of the sentencing judge that, consistent with authority, the sentencing judge dealt with totality at the end of the sentencing process. Thirdly, following on from the second matter, when one has regard to the aggregate sentence imposed and the indicative sentences, it is apparent that there was only a very small degree of accumulation. Thus, rather than suggesting the erroneous application or subversion of the principle of totality, to my mind the sentencing structure reinforces the opposite conclusion - that the sentencing judge gave some prominence to the principle of totality. Fourthly, having expressed these matters, thereafter the reasons themselves contain a clear statement that the discount was applied to the indicative sentences. Fifthly, although the sentencing judge did, twice, remark that the "head sentence" was four years and that was "following the discount of 25 percent from a head sentence of six years", in my view when the sentencing judgment is read as a whole, those remarks, of themselves, do not suggest that the sentencing judge impermissibly engaged in "reverse engineering" so as to fit the indicative sentences within the aggregate sentence that had been pronounced, as was submitted, and infringe the principle of totality.

Ground 2: the error in finding there was actual intentional use of a knife

Introduction

1. By this ground of appeal, the applicant argues that the sentencing judge erred in finding that, following the struggle with the broom and the wrestling, there was by the applicant "the actual intentional use of a knife to slash across Mr Browne's torso and it is only by the slimmest of margins that the knife only cut his shirt and not his stomach" (J11). The applicant submits that the finding, which was made in the context of the sentencing judge assessing the objective gravity of offence two (the intimidation offence involving Mr Browne), was "not open" and, further, was not "in accordance with the submissions of the parties on sentence" (applicant's submissions at [49]).
2. In relation to this last submission, it was not suggested by the applicant, either in written or oral submissions in this Court, that there was any procedural unfairness in making the relevant finding. Given that stance, nothing further need be said about that submission.

The sentencing judgment

1. Before addressing the substance of the submissions directed to this ground, it is useful to return to aspects of the sentencing judgment to place the challenged finding into its proper context. In this respect, the following three parts of the sentencing judgment warrant emphasis: 1. The interactions between Mr Browne and the applicant occurred after the applicant "came out of the storage area" (J3). Mr Browne, as earlier noted, swung the broom in the direction of the applicant "with the intention of protecting himself in the case the [applicant] possessed a knife". Having made that finding, the sentencing judge then made three further factual findings about what occurred: first, the applicant grabbed the broom and there was a struggle between the applicant and Mr Browne as well as "wrestling on the ground" (J3); secondly, the applicant "retrieved a knife" from the pocket of his jumper, and Mr Browne let go of the applicant "and backed away from him"; thirdly, the applicant "approached" Mr Browne "and in a threatening way lunged a knife towards him and ran in an aggressive manner with the knife held in his outstretched hand" (J3). 2. The sentencing judge then described the interactions between the applicant and Mr Reay and the applicant fleeing from the premises through the hole in the wire fence, and into the nearby bush (see [12], above). The sentencing judge also described Mr Browne and Mr Reay finding the green shopping bag inside the storage area (see [13], above). It was at that point of the sentencing judgment that the sentencing judge made the following finding - that Mr Browne "noticed his own hooded jumper that he had been wearing had a large 13-centimetre slash mark across the front of it. The jumper was not damaged prior to the incident" (J4). 3. When assessing the objective gravity of the offending for offence two, it is clear that the sentencing judge's finding on this issue was informed by what the sentencing judge found was the applicant's intentional use of a knife to slash across Mr Browne's torso. The finding as to the objective seriousness of offence two was that it was (J11): … slightly below the mid-range. Here, preceding the actual offence, there was a fight with a broom handle, a struggle, and then the actual intentional use of a knife to slash across Mr Browne's torso and it is only by the slimmest of margins that the knife only cut his shirt and not his stomach.

The sentencing hearing

1. The Crown tendered CCTV footage (exhibit C) and it was played during the course of the sentencing hearing. It was also played during the hearing in this Court. The entirety of the offending involving Mr Browne (offence two) was captured on that footage. Some of the key events as shown in that footage formed the basis of the agreed facts, specifically the agreed facts at [15]-[19] and [24]. Given the nature of the challenge, those agreed facts are here set out: 15. Troy Browne took hold of a nearby broom, and as the offender came out of the storage area, Troy Browne swung the broom in his direction. Troy Browne did this with the intention of protecting himself, in case the offender possessed a knife. 16. The offender grabbed the broom and a struggled [sic] ensued between the two men. 17. The offender and Troy Browne were 'wrestling' on the ground, and Troy Browne tried to restrain the offender and hold him down. 18. The offender retrieved a knife from the pocket of his jumper, and Troy Browne let go of the offender and backed away from him. 19. The offender approached Troy Browne, in a threatening way, lunging the knife towards him and running in an aggressive manner with the knife held in his outstretched hand. … 24. Troy Browne noticed his own hooded jumper that he had been wearing had a large 13cm slash mark across the front of it. The jumper was not damaged prior to the incident.
2. The factual findings of the sentencing judge were based upon these agreed facts, and were thus the primary facts from which the sentencing judge drew the inference that there was the actual intentional use of a knife to slash across Mr Browne's torso.

Discussion and consideration

1. The applicant's essential submission was that the inference was not open to be drawn. Whilst the applicant accepted that he produced a knife and that offence two was committed, the applicant submitted that neither the agreed facts nor the CCTV footage supported the factual finding made: at best, the applicant argued that the evidence, including the agreed facts, established "no more than the production of the knife and damage to the jumper during the course of the melee" (applicant's submissions at [66]).
2. The Crown submitted that the challenged finding was open and capable of establishing the intent of the applicant beyond reasonable doubt (Crown submissions at [39]) and, separately as a "threshold point", argued that the finding could be understood in a narrower, more confined way, descriptive only of the intentional use of the knife, rather than a finding that the applicant used the knife with intent to slash across the torso of Mr Browne.
3. I will first deal with the Crown's second submission. In my view, contrary to what was submitted, it is not open to characterise the finding of the sentencing judge in the confined way the Crown argued simply because the finding is not expressed to be so limited; rather, the finding, by its terms, was that there was "actual intentional use of a knife to slash across Mr Browne's torso".
4. I return now to deal with the applicant's principal submission. There was no dispute as to the principles that apply to a challenge of this kind. The question is whether the challenged finding was open on the material before the Court: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131] ('DS'); Ocek v R [2023] NSWCCA 308 at [116].
5. As it happens, the parties were not in substantive disagreement about the primary facts, merely about whether an inference was permissibly drawn about the applicant's intent based upon those facts. Although earlier set out, a summary of them, from the time the applicant was located in the storage area beneath the plunge pools, follows.
6. Initially, when the applicant was in the storage area, Mr Browne made verbal contact with the applicant, and the applicant responded, "I've got a knife", or words to that effect.
7. Thereafter, when the applicant exited the storage area, the critical interactions between the applicant and Mr Browne were these: the applicant and Mr Browne were wrestling and during the course of them doing so, the applicant removed the knife from the pocket of his jumper; Mr Browne let go of the applicant and "backed away"; the applicant "approached" Mr Browne "and in a threatening way lunged a knife towards him and ran in an aggressive manner with the knife held in his outstretched hand".

Introduction

1. Given the conclusion that the sentencing discretion miscarried in connection with ground 2, it falls upon this Court to re-exercise the sentencing discretion and determine the sentence to impose. If, and only if, following that exercise, the Court is satisfied that a lesser sentence than that imposed by the sentencing judge should be imposed, then the appeal should be allowed: s 6(3) of the Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43] ('Kentwell').
2. Further, in relation to the re-exercise of the sentencing discretion, both the applicant and the Crown proceeded on the footing that this extended to exercising the sentencing discretion across all offences. That approach is consistent with what was said in Kentwell at [42], and as further explained in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [67]-[87].
3. For the purposes of resentence, the applicant relied upon affidavits from the applicant affirmed 8 May 2024 and from his solicitor, Michael Lantis, affirmed 8 May 2024. The Court received that evidence on the "usual basis" - that is, to show events that have occurred since the time of sentencing, and not to enable a new and different case to be run in the event that this Court resentenced the applicant: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg v R [2022] NSWCCA 150 at [56]. The applicant's ultimate submission was that, upon resentence, this Court would pass a lesser sentence.
4. The Crown's ultimate submission was that no lesser sentence was warranted, with the consequence that the appeal should be dismissed. The submission is to be understood as one whereby, following independent consideration of all sentencing factors upon resentence, that result should follow: Davis v R [2015] NSWCCA 90 at [80]-[84].

The further evidence read on the appeal

1. Before exercising the sentencing discretion, it is appropriate to address the further evidence read on the appeal.
2. The evidence from the applicant was that soon after he was sentenced, he was "placed" on the buprenorphine program (which may be accepted), but the evidence said nothing about how he had progressed whilst on that program nor his intention to remain on it whilst in custody or following his release. There was not, it should be noted, any records from Justice Health in evidence (nor any other evidence) dealing with this issue.
3. The evidence from the applicant was also that he had secured a settlement of his civil claim brought following "abuse" that he suffered whilst he was at a boys' home (which may be accepted). The applicant's evidence was that he was working whilst in custody and that, when released, he proposes to use the money from the settlement to buy two caravans in order to rent one out, and to live in the other. It was the applicant's belief that, because he would not be homeless, this would "keep [him] out of trouble".
4. I am prepared to accept and find that this evidence, and the fact that the applicant has been "placed" on the buprenorphine program, provides some basis to make a slightly more favourable finding about the applicant's prospects of rehabilitation than what the sentencing judge did. Nevertheless, in my view, those prospects remain only very slightly better than "poor". I have reached that conclusion essentially because, whilst the applicant's participation in the buprenorphine program is an objectively positive development, there is, as I have earlier noted, no other material that would permit any other meaningful finding to be made about the nature of the applicant's progress whilst on that program, nor his intention to remain on it. Furthermore, the psychiatric report tendered by the applicant at the sentencing hearing from Dr Justine Schelle (the content of which significantly informed the sentencing judge's findings about prospects of rehabilitation: J16), expressed considerable reservations about whether the applicant's drug use would be successfully treated. In this respect, the report noted that the applicant's "illicit substance misuse… continues whenever he is out of custody"; that the applicant was "clear" that the reason he has ceased using methamphetamines is because he is currently in custody "rather than that he would like to cease it"; that the applicant "mentioned several times during the appointment today how much he loves using drugs", leading Dr Schelle to express the belief that when the applicant "is no longer incarcerated he will soon relapse to using substances and is unlikely to actively participate in any treatment regarding this"; and that she held "concerns" that the applicant would only be compliant with drug therapy whilst in prison "where it is harder to obtain illicit substances and may cease this medication when he leaves jail when drugs are more available". The matters referred to by Dr Schelle significantly inform my finding.

Discussion and consideration: resentencing the applicant

1. At the outset, it is important to note that the applicant did not challenge any of the findings made by the sentencing judge (except the finding covered by ground 2), although the applicant sought to "clarify" the following matters in connection with two findings (T10.20).
2. First, in relation to the finding made that the aggravated break and enter offence involved actual or threatened use of violence, the applicant submitted that "the only basis" upon which that finding could be made was the applicant's statement that "I've got a knife", or words to that effect, such that the finding could only be supported on the basis that it was the threatened use of violence. That submission may be accepted, and the Crown did not submit to the contrary.
3. Secondly, the applicant referred to what was said by the sentencing judge at J5 - namely, the applicant "being armed with a knife and actually producing it directly in the course of the break and enter offence when interrupted" - and submitted that the sentencing judge did not make that finding when regard is had to the finding made by the sentencing judge at J9-10. The applicant submitted that the sentencing judge at J9-10 "appears to reject" the use of the knife as a matter of statutory aggravation under s 21A of the CSP Act. In my view, the initial passage that the applicant referred to in the sentencing judgment at J5 is not a finding, but rather a summary of what the Crown had submitted. That, I consider, to be apparent when regard is had to the preceding paragraph of the sentencing judgment, as well as the balance of the paragraph where the finding was suggested to have been made.
4. Nevertheless, the applicant's submission should be accepted. I will briefly explain why. The critical finding made by the sentencing judge at J9-10 was expressed as follows: The prosecution asks the Court to accept a number of facts in aggravation, based on the material tendered and the evidence called in the proceedings, which I have referred to, at Crown written submissions para 11. However, I do not accept that the beyond reasonable doubt with the weapon - that is, as it is already part of the circumstances of the offence, the aggravation is the knife…
5. As is evident, the finding made by the sentencing judge at J9-10 addressed a submission made by the Crown in their written submissions at paragraph 11. Relevantly, the Crown submission in that paragraph was directed to the aggravated break and enter offence and the submission put was that the offence involved the actual or threatened use of a weapon (s 21A(2)(c) of the CSP Act). The sentencing judge did not accept the submission, holding that the use of the weapon "is already part of the circumstances of the offence, the aggravation is the knife". That conclusion was plainly correct as the circumstance of aggravation for the break and enter offence was identified as being "armed with offensive weapon - knife" (agreed facts at [1]). For completeness, I would also add that the sentencing judge did not find that the use of a weapon was an aggravating factor with respect to the intimidation offences for essentially the same reason: the sentencing judge noted, given what was said in Sharpe v R [2006] NSWCCA 255, that it would be "impermissible to have additional regard to the threatened use of a weapon as an aggravating factor, given the threat to use an offensive weapon is an element of the offence under s 33B" (J9-10).

Orders

1. For the above reasons, I propose the following orders: 1. Grant leave to the applicant to appeal against the sentence imposed on 23 February 2023. 2. Allow the appeal. 3. The sentence imposed on 23 February 2023 is quashed and in lieu thereof impose an aggregate sentence of imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 3 months commencing 22 April 2022. The applicant will become eligible to be released on parole on 21 July 2024. The sentence will expire on 21 October 2025.

Amendments 31 July 2024 - Format change to coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2024