Blanch v R

Crown Submissions

1. The Crown submitted by reference to Basten JA's judgment in Fangaloka and paragraph [87] of Pullen that the paramount consideration of community safety must be considered as part and parcel of the s 66(3) considerations involving the whole range of factors informing the process of instinctive synthesis. Reference was also made to Karout where Fullerton J (at [90]) said that the paramountcy of community safety does not require the court to give precedence to an ICO over a sentence of full-time imprisonment as a means of ensuring community safety.
2. It was submitted given the unchallenged assessments of objective gravity made by the learned sentencing judge in relation to Counts 1 and 2 of medium and lower medium range respectively, the principle of proportionality requiring adequate punishment pointed to the applicant being required to serve her sentence in full-time detention.
3. Counsel pointed out that the learned sentencing judge did not affirmatively find the applicant's prospects of rehabilitation were positive. His Honour was guarded about the risk of recidivism. For the reasons given by the learned sentencing judge, it was submitted that the s 66(3) considerations clearly overwhelmed the paramount consideration of community safety in the present matter.
4. So far as the adequacy of his Honour's reasons was concerned, the Crown submitted that his Honour adequately stated the ground why no sentence other than full-time custody is appropriate in the case. Reference was made to Taylor v R [2018] NSWCCA 255 where Wilson J said (at [53]-[55]) that the judicial obligation to give reasons in sentencing cases does not require a court to refer directly and in terms to every statutory provision considered or applied, or to every principle of sentencing law regarded as relevant. From the point of view of the appellate court it was enough if on considering the whole of the reasons for sentence fairly, what the sentencing court did, and why, was clear. From this the appellate court could "determine whether law and principle had been correctly applied". It was submitted his Honour's judgment passed this test.

Consideration of Grounds 1 and 2

1. I accept that the passages from his Honour's reasons for sentence I have summarised or extracted at [32], [34], [35] and [37] above, may well have justified the decision to impose a sentence of full-time imprisonment instead of an intensive corrections order. However, I am also of the view that the circumstance that 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, required his Honour to direct himself as to the applicable principles, specifically s 66, governing the decision whether to make an ICO. The section, whether he referred to it expressly or only by implication, required him to consider as a paramount consideration the requirements of community safety by reference to which of an ICO or full-time detention would more likely address the offender's risk of re-offending.
2. His Honour would also have been required to consider the provisions of s 3A and other relevant principles and matters in accordance with s 66(3). He may well have come to the same conclusion adopting the approach required by the statute. But by by-passing, as his Honour appears to have done, the requirements of ss 66(1) and (2), and, in effect, proceeding directly to s 66(3), his Honour has not applied the relevant principles of law which govern the exercise of the statutory power invoked by the applicant's submissions before him. With great respect to his Honour he did not even refer to an ICO in terms.
3. I appreciate that, with respect, counsel appearing at first instance (not Mr Lange), from the transcript, did not give his Honour a great deal of assistance in relation to the matter. However, the question was squarely raised and seriously put and should have been considered in terms. On this basis Ground 1, in my opinion, is made out. It was not necessary for his Honour to set out the section, or to refer to it in express terms, but as his reasons make clear his Honour did not direct himself in substance by reference to the principles it establishes which govern the decision whether to make an ICO.
4. For the purpose of Ground 2, it may be that the same considerations reveal "process error" in the sense discussed by Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130]. This may be an aspect of failing to provide adequate reasons for a judicial decision. Hayne J said: … because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue. (My emphasis.) I must say on their face, the reasons are careful, thorough and comprehensive. However, again with respect, they fall short by failing to address in accordance with the Sentencing Act what was the critical issue presented for determination in the case. His Honour's reasons indicate that he did not examine "all of the material relevant to the particular issue" because they fail to disclose that, in substance, he applied s 66.
5. In R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42], Spigelman CJ said of the obligation to provide reasons for sentence: Sentencing judges are under an obligation to give reasons for their decisions.Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties.
6. In Karout at [92] Fullerton J pointed out that the result which she proposed, and with which Hoeben CJ at CL agreed, might have been different had a reasons ground been propounded and made good. Her Honour said (at [92]): The result might have been otherwise (and a different ground of appeal framed) were the sentencing judge to have failed altogether to refer to the written and oral submissions of the applicant's senior counsel that an ICO was an available and appropriate sentencing order.
7. In Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 (at [62] - [63]), decided when the two stage approach held sway for standard non-parole period offences, Johnson J said: It has been said that it is unnecessary that a sentencing court expressly state that it has applied the two-stage approach in arriving at the sentence imposed: (citations omitted). The failure of a court to indicate expressly that it has taken the two-stage approach to the determination of a sentence of periodic detention does not, of itself, demonstrate a failure to carry out the sentencing exercise in this manner: (citations omitted). However, the nature of the sentence imposed, and the failure to record that a two-stage approach has been taken, may lead the Court to examine carefully the findings made by the sentencing Judge to determine whether the sentence is erroneous: (citation omitted). These observations are apposite in the present case if one replaces the reference to "the two-stage approach" with a reference to s 66 Sentencing Act.
8. In Paul Campbell v R [2018] NSWCCA 87 Hamill J (Bathurst CJ and Schmidt J agreeing) (at [46]-[48]; [52-[53]) said the following: It was open to the Judge to decide that such an order was not an appropriate alternative in view of the seriousness of the offences and it is clear that his Honour did so. However, there is nothing in the remarks on sentence to suggest that this alternative was specifically considered, as s 5 required. The conclusion that no penalty other than a sentence of imprisonment was appropriate is clearly implicit in his Honour's remarks on sentence and I would not, by virtue of this matter alone, have concluded that ground 2 was established. His Honour, having concluded that the term of imprisonment should be one of 2 years or less, also had to give consideration to alternatives other than a full-time custodial sentence. There was at least one alternative available under s 12 of the Crimes (Sentencing Procedure) Act. The outcome urged for the applicant in the court below, which was accepted by the Crown to be a possible lawful outcome, was that a sentence of imprisonment might be imposed, but the sentence be suspended, subject to a conditional bond. While it is also implicit in Judge Berman's remarks that his Honour rejected a suspended sentence as an appropriate sentencing outcome, the remarks did not explain why his Honour concluded that outcome was not appropriate, even though the law required that the rehabilitation of the applicant should be the primary focus of the proceedings. … I am satisfied that the sentencing Judge erred in failing to consider an alternative to full-time custody and that ground 2 should also be upheld. Before leaving this ground, I should make it clear that a failure to approach the matter in two stages, as may be suggested by the passages from Robertson, Parente and Zamagias to which I have just referred, is not itself indicative of sentencing error. However, compliance with s 5 is a mandatory requirement and, where a sentence of less than 2 years is imposed and there are clear alternatives available, the preferable course is to make it clear that such alternatives have been considered and explain why they are not appropriate.
9. I wish to stress that I am not suggesting that in every case in which a short sentence of imprisonment is under consideration for an offence not excluded from Part 5 of the legislation by s 67, it is necessary for the sentencing judge to go through this process. For the reasons explained by Basten JA in Fangaloka (at [60]), a sentencing court is not under an obligation in every case to explore this alternative. There must be some relevant material, which could include a cogent argument advanced by counsel, before the court to engage a requirement to consider the matter. Basten JA said: The basis for the stated obligation was not explained in the passage extracted in the judgment of this Court. However, there was no such express obligation under the provisions introduced in 2010, nor is there such an obligation expressed in the current provisions. If there were such an obligation, the Local Court (where the power to impose imprisonment for an individual offence is limited to 2 years) would be required to consider imposing a sentence by way of ICO in every case in which imprisonment was appropriate.
10. What enlivened the necessity for his Honour to consider, and in the event explain if he was not persuaded, specifically, that an ICO was appropriate was the argument put by counsel. If the argument was to be rejected, his Honour was required to deal with the matter in accordance with the statutory stipulations governing the power to make such an order.
11. It follows that I am satisfied that Grounds 1, 2 and 3 have been made out and that in accordance with Kentwell the Court is required to re-exercise the sentencing discretion for itself to discharge its statutory duties and powers under s 6(3) Appeal Act.

Order for further assessment report

1. Given the nature of the error I have found, when re-exercising the sentencing discretion it will be necessary for the Court to decide whether to make an ICO according to law. As was pointed out during the oral hearing, the assessment report is now 12 months old and on the affidavit evidence received and read on the usual basis, in the event the Court were required to re-sentence, it may be that the applicant's attitude to the need to actively engage with rehabilitation to overcome her drug problem has greatly improved. For this reason to enable the Court to discharge its statutory obligation, an order was made under s 17C(1)(b)(vi) Sentencing Act requesting the provision of an assessment report in relation to the applicant as soon as possible. Clearly it is not possible for the Court to proceed to re-exercise the sentencing discretion until the required report was provided as absent an up-to-date report the Court had insufficient information before it to decide whether to make an ICO.
2. It was also indicated that upon receipt of the report, the Court would provide the parties with a further opportunity to provide submissions, either in writing or orally, on re-sentencing including whether an ICO should be made.
3. The updated sentencing assessment report dated 2 December 2019 was received on 3 December and the Court received further oral argument on re-sentencing on 11 December.

Counsel's further submissions

1. Mr Lange of Counsel argued that the up-to-date assessment report was more favourable than the original report. He submitted that when one considers that evidence in conjunction with the applicant's affidavit affirmed on 9 November 2019 read on the usual basis, s 66 was engaged and the Court should be satisfied that the sentence of imprisonment should be served in the community under an intensive correction order.
2. Mr Balodis for the Crown, in fairness did not strenuously oppose the making of an ICO, but argued that the sentence of imprisonment imposed by the learned sentencing judge remained apposite and that in the exercise of the Court's discretion it should be concluded that no lesser sentence was warranted. Should the Court entertain an ICO learned counsel argued that stringent conditions were appropriate.

Evidence and findings relevant to re-sentencing

1. The facts constituting the applicant's offending were agreed in the first instance, there is no challenge to his Honour's assessment of the objective gravity of the offending and his evaluation of the applicant's subjective circumstances are not challenged, except as to the important factors of the applicant's prospects of rehabilitation and the associated risk of re-offending. It should also be borne in mind that his Honour was mistaken as to the aggravating factor of the applicant being on conditional liberty at the time of the offending. This error must be corrected. Clearly that matter, at least in part, informs prospects of rehabilitation and the risk of re-offending.
2. It is not argued that his Honour's assessment of the prospects of rehabilitation and the risk of re-offending were not open to him on the material available at the time. Rather it is put that the need to re-sentence the applicant according to law, having regard to the errors I have identified, brings into play the new evidence. The updated sentencing assessment report and the unchallenged contents of the applicant's affidavit of 9 November 2019 (paragraphs 10 to 13) should be taken into account as they demonstrate that the applicant has made much better than expected progress toward rehabilitation.
3. Indeed, the only potentially negative factor arising from the new material is that during the applicant's participating in the Intensive Drug and Alcohol Treatment Program ("IDATP") in custody, commencing on 29 May 2019, the applicant has been drug tested 25 times and returned only two positive results on urine analysis: one for Quetiapine and the other for Barbiturate. Mr Lange argued that notwithstanding this the consideration that the applicant has not incurred any punishments for breaches of prison discipline indicates that the positive results are not indicative of continued use of illicit drugs, even occasionally in custody. I would accept Counsel's submission that Corrective Services would not permit such a flagrant breach of prison discipline to go unpunished. The likely explanation is that the results are indicative of prescription medication validly ingested by the applicant.
4. Quetiapine is medication used to treat mood disorders including depression. The updated assessment indicates that since her incarceration the applicant has commenced a medical regime for depression stemming from a personal loss two decades ago exacerbated by her incarceration. Benzodiazepines are barbiturates and, of course, are a common prescription sedative. I would make the finding contended for by Counsel. There is no suggestion at all that she has continued to use "ice" in custody. Indeed in her affidavit she expressly denies any continuing use of any illicit drug.
5. As I have said the applicant is engaging in the IDATP. In her affidavit she affirms that she attends this program four days per week for two hours each day. According to the updated assessment, enquiries made by its author indicate that the applicant was initially cautious and uncomfortable participating in the course, but she has progressed and grown especially in relation to victim empathy. She has stated (affidavit [13]): My experience with the justice system and gaol has been sobering and eye-opening. I have never appreciated how important my family were. I never appreciated how destructive drugs were to a person. I never appreciated that my conduct was not only destructive to me, but to destructive to the people (and families of those people) that I was selling drugs to. I now appreciate all of these things. I have learnt that I want to be clean and live a normal life. I understand first-hand how drugs can ruin someone's life and I don't want to be the cause of ruining my life or the lives of other people in the community. My choices while using drugs have impacted not only myself, but my family and members of the community. I am very sorry for my actions. I would regard this insight as a product of the applicant's active participation in IDATP. Given the corroboration of this statement of remorse provided by the contents of the updated assessment, I accept it as genuine and sincere. This is a very significant point of difference from the evidence before the learned sentencing judge.
6. While incarcerated the applicant was initially employed in ground maintenance and now in the assembly and packaging of headsets. She has progressed to a classification of C2. Custodial records show that she has been visited by her parents, children and her partner (her co-offender). It seems that he has made significant progress in his rehabilitation. His period of parole supervision has been suspended because of his assessed stability and he is currently employed as a miner.
7. Taking this evidence as a whole, it persuades me that there has been significant progress. She has gone from a person who was recalcitrant in relation to opportunities for drug rehabilitation while awaiting sentence to a person who is committed to the program and who has achieved real insight into the nature of her offending and the harm it causes. She has progressed in my view from a person who showed no real evidence of remorse to one who is genuinely and sincerely remorseful. Her corroborated full participation in IDAPT is in stark contrast to her failure to attend the EQUIPS Addiction Program while at liberty on bail. Having regard to these developments and her good character prior to the index offending I would now rate her prospects of rehabilitation as positive and her risk of re-offending as slight.
8. Given her progress, Community Corrections has eased its recommended supervision plan since its original assessment. In particular, the need for referral for residential rehabilitation has been ameliorated to individual alcohol and other drug counselling; the suggestion for random drug testing has been dropped and the non-association condition in relation to her partner has been ameliorated to a monitoring recommendation. The significance of this "easing" of the recommendations is the acceptance by Community Corrections of the applicant's progress in custody.

Re-sentencing

1. Factoring these findings into the assessment, correcting the mistake about conditional liberty, and maintaining his Honour's assessment of objective gravity and evaluation of the applicant's objective circumstances otherwise, I remain of the view, particularly bearing in mind the application of the proportionality principle to the nature of her offending, that no other sentence than one of imprisonment is appropriate.
2. I have not overlooked the submission concerning the appropriateness of an ICO. I should point out that nothing in the amendments introduced by the 2017 Amending Act alters the general approach previously mandated in relation to the making of an ICO. In R v Fangaloka at [44] - [45] Basten JA summarised the previous law in the following way: Being characterised as a form of custodial penalty, the making of an ICO requires the sentencing judge to follow a three stage process in accordance with the principles stated in R v Zamagias and Douar v R with respect to periodic detention. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The sentencing judge made such a finding in the present case. The second step, as explained by Johnson J in Douar, is to determine the length of the sentence. That step was taken by the sentencing judge in determining that an overall term of imprisonment should be 2 years 6 months, comprising a sentence of 2 years for the robbery in company and a further sentence, partly accumulated, of 12 months for the assault occasioning actual bodily harm.31 The third, and critical stage for present purposes, was to determine whether the sentence should be served by way of an ICO. The reasoning by which the judge concluded that such an order should be made implicitly treated the amendments to Pt 5 of the Sentencing Act as qualifying the need to have regard to the general purposes of sentencing set out in s 3A; the question is whether the amendments had that effect. That question requires reference to the legislative history, the Second Reading Speech introducing the amendments and the case law. (Citations and footnotes omitted.)
3. The same three step approach remains necessary. I repeat that I have determined pursuant to s 5 of the Sentencing Act that no penalty other than imprisonment is appropriate. I agree with the Sentencing Judge, even when his Honour's mistake as to the aggravating factor is corrected, bearing in mind proportionality, that an aggregate sentence is the appropriate approach and I would maintain his Honour's indicative sentences after the discount for the late plea as follows: For Count 1: a term of 2 years and 3 months; For Count 2: a term of 18 months; For Count 3: a term of 6 months.
4. I would also be minded to impose the aggregate term of 2 years and 9 months for this offending and this offender. Like his Honour, the sentence should be backdated to commence on 13 March 2019 to take account of pre-sentence custody from 1 to 21 July 2016 in accordance with s 24 Sentencing Act. The sentence then would commence on 13 March 2019 and expire on 12 December 2021 as indicated by his Honour.
5. Where I would differ is in my approach to the question implicit in s 7 Sentencing Act whether an ICO should be made directing that the applicant serve her sentence in the community. The offending is not caught by s 67 and the sentence falls under the s 68 limit for aggregate sentences of 3 years. Obviously I have had regard to the contents of the original and updated sentencing assessment reports.

Should the sentence be served by way of ICO

1. I turn then to the provisions of s 66 Sentencing Act. Section 66 applies to the limited question of deciding whether to make an intensive correction order. For that limited purpose, community safety must be the paramount consideration. In this context that consideration is to be assessed by answering the question posed by s 66(2) which of making an ICO or requiring the sentence to be served by way of full-time detention is more likely to address the offender's risk of re-offending. Pausing at this stage and focusing on that aspect of community safety bound up with an offender's risk of re-offending, I am of the view that making an ICO, in the changed circumstances since the learned sentencing judge passed sentence, is more likely than requiring her to continue in full-time detention to address her risk of re-offending. In making this decision, I also bear in mind the purpose of the legislation in its amended form as articulated in the Attorney General's second reading speech set out at [43] above.
2. I will not overlook the s 66(3) consideration which requires the decision whether to make an ICO to take into account other relevant considerations. The general principles underpinning sentencing as expressed in s 3A Sentencing Act were clearly highly influential in the decision at first instance (see [37] above). Bearing those matters in mind, but having regard to the s 66(2) assessment I have made, in the light of the applicant's much improved and greatly changed circumstances, I have concluded that the Court should make an ICO in relation to the applicant.

Form of the order

1. It seems to me that there is no scope in the Sentencing Act for making a hybrid order requiring a person to serve part of a sentence in full-time detention and the balance under an ICO. In truth, such a structure would amount to a term of full-time imprisonment with a non-parole period and an additional term.
2. A possible difficulty, however, arises from the terms of s 71(1) Sentencing Act, "An Intensive Correction Order commences on the date on which it is made"; but only if the date of this Court's orders is taken as the date of commencement. Section 70 provides that the term of an intensive correction order is the same as the term or terms of imprisonment in respect of which the order is made. These provisions do not admit of a type of hybrid mode of serving a sentence, as I have said.
3. These are not the only relevant provisions. S 47 of the Sentencing Act is in the following terms: (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender - (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if - (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires. (My emphasis.) Of present importance are subsections 1 to 3. It will be noticed immediately that the s 47 is said to be subject to s 71 which deals with the commencement of an ICO, and to any direction under subsection (2).
4. I note that in Pullen the Court quashed the sentence at first instance and made an ICO commencing on the same date. That is, the order of the Court of Criminal Appeal was backdated, as usually occurs, to commence on the same day as the sentence at first instance which was quashed on appeal. In my judgment this approach is justified by the powers conferred upon the court under s 6(3) as follows: On an appeal under s 5(1) against the sentence, the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. (My emphasis.) The re-sentence passed on appeal is in substitution for the sentence passed at first instance which is quashed when the sentence appeal is upheld. It seems to me that s 71 is accommodated by reading it in the light of s 6(3) so that when this Court makes an order in substitution for the sentence of the learned sentencing judge which is to be quashed this Court's sentence is taken to have been passed then rather than now. That is to say the sentence is quashed ab initio. Given the applicant's pre-sentence custody for a period when bail was refused, ss 24 and 47 justify backdating the sentence to a date before his Honour passed the sentence to be quashed, viz 3 April 2019.
5. I would accede to the Crown submissions that reasonably stringent conditions ought to be imposed. They will speak for themselves. But in addition to the standard conditions mandated by s 73, I would impose conditions under s 73A including a rehabilitation and treatment condition and an abstention condition, the latter to ensure continuing progress towards rehabilitation. I would also impose under s 73B a condition permitting the monitoring of the relationship between the applicant and her partner in accordance with the recommendations of Community Corrections.
6. The orders I propose are: 1. Grant leave to appeal; 2. Appeal allowed; 3. Quash the sentence imposed by his Honour Judge Gartelmann SC in the District Court on 3 April 2019; 4. In substitution therefor, sentence Yvette Blanch to an aggregate period of imprisonment of 2 years and 9 months to be served by way of an Intensive Correction Order commencing on 13 March 2019 and expiring on 12 December 2021; 5. The Intensive Correction Order is subject to the following conditions: 1. The offender must not commit any offence; 2. The offender must submit to supervision by a Community Corrections Officer; 3. The offender is to participate in a rehabilitation program on referral by the Community Corrections Officer; 4. The offender is to seek and receive treatment in consultation with her general practitioner or other professional to maintain or review her current medication regime; 5. The offender is to abstain from consuming alcohol and drugs; 6. The offender is to be subject to monitoring by Community Corrections of her relationship with Nathan Whalan.

Endnote

1. [2019] NSWCCA 173 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: 19 December 2019