Ahmad v R

Court of Criminal Appeal (NSW)|2022-06-08|Before: Meagher JA, Mitchelmore JA, Bellew J

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought leave to appeal from a sentence imposed on him in the District Court following pleas of guilty to the following counts: (1) steal motor vehicle (s 154F of the Crimes Act 1900 (NSW)); (2) take and drive conveyance without the consent of the owner (s 154A(1)(a) of the Crimes Act); and (3) larceny (s 117 of the Crimes Act). The applicant was sentenced to imprisonment for a period of 2 years and 3 months, with a non-parole period of 12 months. The sentence was backdated to commence on 25 August 2021, meaning that the non-parole period expires on 24 August 2022. He sought leave to appeal on the following grounds (Ground 3 was not pressed at the hearing): (1) His Honour erred by taking into account an irrelevant factor during the sentencing exercise. (2) His Honour erred by finding that the applicant was on conditional liberty at the time of the offence/s and erred by finding it was an aggravating factor. (4) His Honour erred by not considering section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") when determining whether an intensive correction order ("ICO") is an appropriate sentence after it was raised by the applicant. The Court (Mitchelmore JA, Meagher JA and Bellew J agreeing) held, granting leave to appeal, but dismissing the appeal: As to Ground 1: The applicant's contention that the sentencing judge took into account an irrelevant factor was based on comments the sentencing judge made during the exchange with the parties, which did not form part of the reasons for imposing the sentence. The applicant cannot rely on those exchanges to establish error in the sentence: [1], [19]-[20], [25], [35]. Mohindra v R [2020] NSWCCA 340; Dang v R [2014] NSWCCA 47 applied. As to Ground 2: The applicant's concession before the sentencing judge, that he was on conditional liberty at the time of the offending and that this was an aggravating factor pursuant to s 21A(2)(j) of the Sentencing Procedure Act, was properly made. Section 171(4) of the Sentencing Procedure Act operates prospectively to extend the term of an offender's sentence by reference to the number of days for which the offender was at large after the revocation order takes effect. It does not operate to alter, retrospectively, the status of the offender who is in the community on conditional liberty at a time before the revocation order is made: [1], [29]-[30], [35]. Morrison v R [2009] NSWCCA 211; (2009) 197 A Crim R 103 applied. As to Ground 4: It was apparent from the record of the proceedings on sentence that after hearing what the sentencing judge proposed by way of sentence, the applicant's counsel did not press the submission for an ICO. Accordingly, the sentencing judge was not required to consider s 66 of the Sentencing Procedure Act: [1], [32]-[33], [35]. Blanch v R [2019] NSWCCA 304 distinguished.

Judgment

MEAGHER JA: I agree for the reasons given by Mitchelmore JA that although leave should be granted, this appeal should be dismissed.
MITCHELMORE JA: The applicant seeks leave to appeal from a sentence imposed on him in the District Court on 8 December 2021 following pleas of guilty to the following counts: 1. steal motor vehicle (s 154F of the Crimes Act 1900 (NSW)); 2. take and drive conveyance without the consent of the owner (s 154A(1)(a) of the Crimes Act); and 3. larceny (s 117 of the Crimes Act).
The applicant was sentenced to imprisonment for a period of 2 years and 3 months, with a non-parole period of 12 months. The sentence was backdated to commence on 25 August 2021, meaning that the non-parole period expires on 24 August 2022.
The applicant's Notice of Appeal raised four grounds of appeal. However, the applicant's solicitor withdrew the third ground of appeal in the course of the hearing, leaving the following grounds: "(1) His Honour erred by taking into account an irrelevant factor during the sentencing exercise. (2) His Honour erred by finding that the applicant was on conditional liberty at the time of the offence/s and erred by finding it was an aggravating factor. (3) [Withdrawn.] (4) His Honour erred by not considering section 66 of the Crimes [(Sentencing Procedure)] Act 1999 (NSW) when determining whether an ICO [intensive correction order] is an appropriate sentence after it was raised by the applicant."
For the reasons below, I would grant leave to appeal on the above grounds but dismiss the appeal.

Background

The sentence proceeded on the basis of Agreed Facts, which the sentencing judge briefly summarised in a manner with which the applicant does not take issue.
The applicant committed the first count (steal motor vehicle) over the evening of 1 February into 2 February 2021. He stole a white Hino truck from an address in Homebush by breaking the driver's side window, removing the ignition barrel, starting the vehicle and driving it from its location. Although the truck was subsequently used by another individual in a further criminal act, it was accepted that the applicant was in no way responsible for that act.
The applicant committed the second count (take and drive conveyance without owner's consent) over the evening of 24 February into 25 February 2021. The applicant broke into a Toyota Hilux, again breaking the driver's side window, removing the ignition barrel, starting the vehicle and driving it from the owner's address. He left the vehicle a couple of blocks away from where he had taken it.
The applicant committed the third count (larceny) when he stole various items from the Toyota Hilux, the taking of which was the subject of the second count. The items included a wallet, tool bag and tools, and were valued at $3,000.
On 25 February 2021, the applicant was arrested and charged. He has been in custody since that date.
At the time of his arrest, the applicant was on parole. On 19 October 2017, he was sentenced to a period of imprisonment of 6 years and 6 months, with a non-parole period of 4 years, for one count of supply prohibited drug (large commercial quantity), with an offence of participate in a criminal group, contribute to criminal activity taken into account on a Form 1 ("2017 Sentence"). The 2017 Sentence was backdated to commence on 22 January 2016, and the applicant was released on parole on 21 January 2020.
On 17 March 2021, the State Parole Authority ("Parole Authority") made an order revoking the parole order. The stated basis for the revocation order was that the applicant had breached two conditions of the parole order: Condition 1, which the Parole Authority described as "you must be of good behaviour (outstanding charge/s)" and Condition 5, described as "you must report to a community corrections officer at the times and places directed by the officer". The Parole Authority's order stated that the parole order "shall be treated as having been revoked on 29 January 2021" (emphasis in original).
On 6 October 2021, in the Local Court, the applicant pleaded guilty to the above three counts and was committed for sentence in the District Court. On 8 December 2021, the proceedings came before Ellis DCJ, sitting at Newcastle. The material that the applicant tendered on sentence included a report prepared by a psychologist, Ms Kerry Watson, dated 29 November 2021. Ms Watson cross-referred in her report to a report of a psychiatrist, Dr Richard Furst, dated 17 October 2017, which was prepared for the previous sentence proceedings and which the applicant also tendered on sentence. The applicant gave some brief oral evidence and he was cross-examined. Following an exchange between the sentencing judge and the parties (after the judge had reviewed their respective written submissions) his Honour imposed the sentence that is the subject of this appeal.

The sentencing judge's remarks on sentence

At an early stage of the remarks, the sentencing judge described the applicant's custodial status as follows: "He has been in custody on this matter since his arrest on 25 February 2021. However, as he was on parole at the time of this offence that parole was revoked on 17 March. Although, it was indicated that the revoked date was nominated as 29 January [2021], although it did not actually happen until 17 March [2021]. But in any event, the balance of parole was fixed at one year, five months, three weeks, two days, to date from 25 February [2021] until 16 August 2022."
After summarising the offending by reference to the Agreed Facts, the sentencing judge stated that he had considered applicable provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), including s 3 and s 21A. His Honour also stated that he had "considered s 5 [of the Sentencing Procedure Act] and determined that no sentence other than a sentence of imprisonment would be appropriate".
The sentencing judge addressed the applicant's subjective factors, including the consequences of a traumatic brain injury that he suffered when he was a passenger in a motor vehicle that was involved in a head-on collision some years previously, and his escalating drug use. Although his Honour found no direct causal connection between the applicant's injury or drug use and the offending conduct, his Honour considered that each provided some explanation. His Honour found that there were factors present from McClellan CJ at CL's summary of the relevant principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], without particularising them. His Honour also took into account the applicant's stated desire to do something about his substance issues and his need for ongoing treatment and counselling.
The sentencing judge classified the objective seriousness of each count as "essentially about in the midrange of offending". His Honour also noted that the applicant had "a reasonably lengthy criminal history", albeit more particularly in relation to motor vehicles. At this point in his Honour's remarks, his Honour paused to ask counsel for the parties whether there was anything further, or in need of correction. No issues were raised by the parties.
After applying the full 25% discount for pleading guilty at the earliest opportunity, the sentencing judge gave as indicative sentences 9 months for the larceny offence, 18 months for the offence involving the truck, and 15 months for the offence involving the Hilux. As I noted above, his Honour concluded that an aggregate sentence of 2 years and 3 months should be imposed. His Honour continued: "I impose a non-parole period of 12 months following my finding of special circumstances which relate to his need for a longer period to deal with mental health issues and substance abuse, and also in recognition of the significant COVID-19 adverse impact upon him in terms of loss of privileges, loss of personal visitations and significant periods spent in lockdown, more particularly since he has been at Kempsey since July of this year. Given this finding of special circumstances, I impose a non-parole period of 12 months to date from 25 August 2021 and to expire on 24 August [2022], followed by a period of 15 months on parole from 25 August [2022] to 24 November 2023. I direct that he be released to parole on 24 August 2022 and supervised in relation to the mental health issues set out within the report of Kerry Watson, psychologist and indeed in the report of Dr Richard Furst, and also in relation to substance abuse relapse prevention."

Ground 1

The applicant contends that the sentencing judge took into account an irrelevant factor, namely, the view of the Parole Authority and whether the parole order relating to the 2017 Sentence would be reinstated. The statements on which the applicant relies in this respect did not form part of the remarks on sentence, but rather formed part of the sentencing judge's exchange with the parties before delivering sentence.
Statements that the sentencing judge made in argument do not form part of his Honour's reasons for imposing the sentence, and the applicant cannot rely on them to establish error in the sentencing exercise: Mohindra v R [2020] NSWCCA 340 at [37] per Basten JA (Johnson and Davies JJ agreeing); Dang v R [2014] NSWCCA 47 at [32] per Adamson J (Simpson J (as her Honour then was) and Davies J agreeing). Further, and in any event, the ground of appeal is premised on a misunderstanding of what occurred during the hearing.
The statements of the sentencing judge on which the applicant relies followed an exchange about how his Honour was minded to structure the sentence, including so to accommodate the Parole Authority's decision to revoke the parole order pertaining to the 2017 Sentence. His Honour proposed to start the aggregate sentence on 25 August 2021 but to substantially change the ratio "so that the non-parole period would be a period of 12 months from 28 August 2021 and then [the applicant] would be on parole for a period of 15 months after that". The effect of what the sentencing judge proposed "would be that he would only do six months additional for the breach of parole and the rest of it would be concurrent with the sentence". Counsel for the applicant said at this point: "Understood, your Honour".
When his Honour asked the applicant's counsel shortly thereafter if there was anything else he wanted to say, counsel submitted: "No, your Honour, I don't think - you've got all the material before you. You've got my submissions. Clearly, what I was looking for was an ICO, but your Honour is really entitled to take a different view, as you have." [Emphasis added.]
The applicant sought to characterise the submission of counsel as one to the effect that "an ICO was an appropriate option". The Crown, on the other hand, contended that when considered in context, the applicant's counsel was properly understood by this statement to be no longer pressing for an ICO, having heard his Honour's preliminary indication as to sentence. I accept the Crown's contention. It was certainly well open to the sentencing judge to have understood counsel to no longer be pressing for an ICO, having regard to the words I have emphasised above.
The statements of the sentencing judge on which the applicant relies for this ground followed immediately upon the submission of his counsel that I have extracted: "And the other factor is at the moment he's - I'm not even sure if I can give him an ICO when he's apparently serving a sentence of revoked parole. But even if I could - and there is a question about that - but even if I could, it wouldn't be effective, because it's going to depend on whenever the parole board might decide to give him parole. This way, at least, in a sense it takes the parole board out of the question. He knows that he will get released under this sentence, because it's less than three years he knows that he will be released on 24 August, and the current parole date expires before then. So, he is not going to have an issue with the parole board. He will automatically be paroled on 24 August and then be on parole thereafter for 15 months." [Emphasis added.]
Having regard to the immediately preceding comment from the applicant's then counsel, the statements that the applicant impugns are properly understood as amounting to no more than a contingently expressed view about the availability of an ICO that was no longer sought. It is of some significance in this respect that all that counsel for the applicant submitted in response was, again: "Understood, your Honour."
For both of the above reasons, the applicant has not established, as a necessary first step to an allegation that his Honour took an irrelevant consideration into account, that the impugned statements formed any part of the sentencing judge's reasons on sentence. That conclusion renders it unnecessary to evaluate the correctness of the applicant's characterisation of his Honour's statements as irrelevant considerations.

Ground 2

The applicant next contends that the sentencing judge erred in finding that he was on conditional liberty at the time he committed the offences for which the judge was passing sentence. It follows, in his submission, that the sentencing judge erred in relying on s 21A(2)(j) of the Sentencing Procedure Act, which prescribes, as an aggravating factor to be taken into account in determining the appropriate sentence for an offence, that "the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence".
As I noted above, the Parole Authority revoked the applicant's parole for the 2017 Sentence by order dated 17 March 2021. The Authority's treating his parole as having been revoked on 29 January 2021 was authorised by s 171 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("Sentence Administration Act"), which provides: "(1) A parole revocation order may be made - (a) whether or not the offender has been called on to appear before the Parole Authority, and (b) whether or not the Parole Authority has held an inquiry. (2) A parole revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on any earlier date that the Parole Authority thinks fit. (3) The earliest date on which a parole revocation order resulting from a breach of the obligations of the offender under the parole order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender's obligations under the parole order. (4) If an offender is not taken into custody until after the day on which the parole revocation order takes effect, the term of the offender's sentence is, by this subsection, extended by the number of days the person was at large after the order took effect."
Relying on s 171(4), the applicant submits that the treatment of the revocation as taking effect on 29 January 2021 retrospectively altered his status at the time he committed the offences on 20-21 February 2021 and 24-25 February 2021. Rather than being on conditional liberty at the time of the offending he was, instead, unlawfully at large. This submission is contrary to that put on his behalf before the sentencing judge, with the applicant's counsel there conceding that s 21A(2)(j) was an aggravating factor to be taken into account.
I consider that the concession below was properly made and that s 171(4) does not have the effect for which the applicant now contends. Where an offender is not taken into custody until after the day on which the parole revocation order takes effect, the subsection operates to extend the term of an offender's sentence, prospectively, by reference to the number of days for which the offender was at large after the revocation order takes effect. It does not operate to alter, retrospectively, the status of the offender who is in the community on conditional liberty at a time before the revocation order is made.
The decision of this Court in Morrison v R [2009] NSWCCA 211; (2009) 197 A Crim R 103, on which the applicant relied, supports the above construction. At the time the applicant in Morrison committed the offences in issue, his period of parole should have expired and, as far as he was aware, had expired. In fact, the parole order had been revoked and a warrant issued for his arrest. The Crown sought to rely on the term "at large" in what was then s 171(3) of the Sentence Administration Act (now s 171(4)) as supporting the sentencing judge's finding that the applicant was on conditional liberty at the time he committed the offences. In rejecting that submission, RA Hulme J (McClellan CJ at CL and Grove J agreeing) considered that the term "at large" in s 171(3) was "simply a reference to the person not being in custody". The term could not, in his Honour's words, "convert the person into someone who is to be regarded as in the community under a form of conditional liberty": at [44]. It follows on that characterisation of "at large" that even if a revocation of parole is "taken to have taken effect" (to use the language of s 171(2)) from a date that pre-dates the relevant offending, s 171(4) does not alter the status of the offender at the time of that offending as being on conditional liberty.

Ground 4

This ground may be dealt with briefly. The applicant contends that his Honour erred by not considering s 66 of the Sentencing Procedure Act when determining whether an ICO was an appropriate sentence after it was raised by him. The applicant submitted that his counsel had advanced a cogent submission in support of an ICO, from which it followed that the sentencing judge should have expressly directed himself to s 66 in his sentencing judgment. The applicant relied in this respect on the decision of this Court in Blanch v R [2019] NSWCCA 304.
As with Ground 1, this ground of appeal is premised on a misunderstanding of what occurred at the sentencing hearing. For the reasons I have outlined above, I accept the Crown's submission that the applicant's counsel did not press his submission for an ICO. As the Crown submitted, the circumstances of the present case can readily be distinguished from those in Blanch, where "the whole gravamen of the case presented on behalf of the applicant at first instance was that (a) a sentence of imprisonment was inevitable; but (b) it was appropriate to order that it be served in the community by intensive correction order": at [60] per Campbell J (Hoeben CJ at CL and Price J agreeing).

Disposition

I would grant leave to appeal against sentence but dismiss the appeal.
BELLEW J: I agree with Mitchelmore JA.

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: 29 June 2022

Procedure)] Act 1999(NSW)

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