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[2019] ACTCA 34
appellant. Appeal allowed. The sentences imposed on 15 February 2019 were set aside. The Court imposed the individual sentences set out in its orders, producing a total term of 7 years, 4 months and 22 days...
The Court of Appeal changed two aspects of Blundell’s sentence. It considered the 10% reduction for guilty pleas entered after a Criminal Case Conference too small because such pleas save time and cost, spare witnesses from giving evidence and assist the justice system. It said the discount should generally be at least 15%, while still depending on the circumstances. The Court also considered the nonparole period, which was 77% of the total sentence, insufficiently explained given the primary judge’s finding that Blundell still had guarded prospects of rehabilitation. The Court replaced the sentences, leaving the total prison term at 7 years, 4 months and 22 days and setting a nonparole period of 4 years, 9 months and 21 days. It did not decide that any possible failure to comply with s 37 required relief.
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In Blundell v The Queen [2019] ACTCA 34, the ACT Court of Appeal reviewed a sentence imposed for 44 charges, 12 of which involved resentencing for breaches of good behaviour orders made in 2015. Burns J imposed an aggregate term of 8 years and 5 months’ imprisonment, commencing on 15 August 2017, and a nonparole period of 6 years and 6 months ([1]–[2]).
The appeal originally identified five grounds. The appellant abandoned grounds concerning a factual error, part of an argument about the statutory statement of the sentence reduction, and the overall head sentence. The remaining live complaints concerned the discount for guilty pleas entered after a Criminal Case Conference, the operation of s 37 of the Crimes (Sentencing) Act 2005 (ACT), and the nonparole period ([3]–[5], [20]).
The Court allowed the appeal. It held that the approximately 10% discount for the relevant post-Conference pleas was too low, and that the nonparole period of 6 years and 6 months, about 77% of the head sentence, was not justified by the reasons given ([12], [18], [31]–[38]). The Court resentenced Blundell. The substituted aggregate term was 7 years, 4 months and 22 days, and the nonparole period was 4 years, 9 months and 21 days ([48]–[49]).
The Court did not reopen the factual findings or the assessment of the offences. It expressly agreed with the primary judge’s findings about the offences, their objective seriousness, the appellant’s subjective circumstances, the individual sentences and the concurrency arrangements ([44]–[46]). The appellate intervention concerned how those findings translated into the plea discounts and the nonparole period.
The first substantive issue was the discount for guilty pleas entered after the Criminal Case Conference. The primary judge had allowed approximately 10%, noting that the pleas were not early, that the appellant had benefited from a reduction in the number of charges, and that the pleas nevertheless had utilitarian value ([6]). The appeal court accepted that the sentencing judge had considered relevant factors, but held that the result did not give full weight to the practical value of resolving proceedings through pleas after a Conference ([11]–[13]).
The Court described that value in concrete terms: savings of time and cost, relief for witnesses who might find giving evidence difficult, and avoidance of potentially prolonged pre-trial applications. It noted that a coincidence application had become unnecessary in this case ([13]). The Court also considered the consistency of sentencing practice important to confidence in the Criminal Case Conference process and the administration of justice ([13]).
The Court treated the usual practice described in R v Williams as a practice, not a mandated rule, while noting that s 33(1)(za) requires a sentencing court to consider current sentencing practice ([7]–[8]). Its own conclusion was that a discount following a Conference should generally be at least 15%, with a discount almost always falling within 15% to 20% ([12]–[14]). It therefore ordered resentencing of the relevant matters at approximately 15% ([18], [48]).
The Court also addressed the prosecution’s reliance on s 35(2)(c), which requires consideration of whether the guilty plea was connected to negotiations about the charge to which the offender pleaded guilty ([15]–[16]). Referring to R v Toumo’ua, it explained that a plea accepted after a belated prosecution offer is not thereby a plea at the earliest reasonable opportunity. Ordinarily, the timing assessment starts when the offender is first charged, not when the eventual offer is made. The Court recognised a possible different situation where the offender makes an early offer to plead on a basis later accepted by the prosecution ([16]).
The Court rejected treating abandoned charges as a benefit to the offender when setting the discount. It said that, for charges not pursued, it must be assumed that the offender was not guilty and that the offender therefore gained no advantage from their withdrawal ([17]). This distinction matters: the negotiated outcome may affect the analysis under s 35(2)(c), but the Court’s approach does not equate a prosecution decision not to pursue a charge with a sentencing benefit for the offender.
The second substantive issue was the nonparole period. The Court relied on the principle that a nonparole period is independently susceptible to a claim of manifest excess. It is not fixed by a statutory percentage or mathematical formula, and it involves a discretionary assessment of the minimum time justice requires the person to serve ([27]–[28]). The Court’s discussion, drawing on authorities including Cole, Taylor and Bugmy, emphasised rehabilitation prospects as an important consideration, together with the other purposes of sentencing and the need to protect the community ([28]–[30]).
The primary judge described Blundell’s rehabilitation prospects as guarded, while recognising that he had previously addressed drug addiction, obtained work and contributed to family and community life. The judge also considered deterrence and community protection important because of the nature and number of the offences and the appellant’s criminal history ([32]). The appeal court accepted that summary of the primary judge’s assessment, but considered whether it explained the 77% nonparole period ([33]–[35]).
The Court concluded that guarded prospects could justify a substantial nonparole period, but did not explain an exceptionally long one. It observed that an offender’s prospects and attitude to rehabilitation may change during a long sentence, and held that the existence of at least some rehabilitation prospects meant rehabilitation could not effectively be ignored ([34]–[35]). It found the discretion had miscarried because the reasons did not explain the unusually high proportion, which would generally call for clear explanation, including reference to remote rehabilitation prospects ([38]).
The Court gave a contextual indication that where the head sentence is appropriate, the nonparole period will almost always fall within 50% to 70%. But it expressly said this was not a rule or a mathematical determinant: the percentage reflects an assessment rather than dictating it ([37]). It fixed the replacement period by assessing the minimum period Blundell should serve before eligibility for release, with the aim of providing a target to enhance rehabilitation ([48]).
The judgment does not purport to replace the statutory sentencing framework. It applies the Crimes (Sentencing) Act 2005 (ACT), including s 33(1)(za), which requires consideration of current sentencing practice, and s 35(2)(c), which concerns pleas related to negotiations about the charge ([8], [15]). Section 37, requiring a statement of the penalty that would otherwise have been imposed in certain cases, was also considered, but the Court did not finally determine whether it had been breached in a way requiring relief ([19]–[26]).
On guilty-plea discounts, the judgment develops the Court’s application of utilitarian value to post-Conference pleas. It identifies the significant benefits to the accused, the prosecution, witnesses and courts, and states that a discount in excess of 10%, almost always within 15% to 20%, is required in that setting ([12]–[14]). The judgment nevertheless describes this as a general proposition, not a fixed tariff. The circumstances of the plea, including its timing and the relationship to negotiations, remain relevant ([14], [16]).
On nonparole periods, the judgment reaffirms that the assessment is individual and discretionary. It rejects mechanical use of percentages, while giving 50% to 70% as a usual contextual range where the head sentence is appropriate ([28], [37]). The key qualification is that the range does not displace consideration of the offence, sentencing purposes and the offender’s circumstances. In particular, rehabilitation prospects remain significant; an unusually high percentage needs an adequate explanation ([34]–[38]).
The decision’s immediate effect was case-specific resentencing. The Court substituted sentences and an aggregate term, but otherwise agreed with the primary judge’s findings and individual sentencing assessments ([44]–[49]). The judgment does not state that every post-Conference plea must attract exactly 15%, nor that a nonparole period above 70% can never be imposed. It says that a higher period may be appropriate in a suitable case, but that 77% was unusual and required clear reasons in this case ([38]).
At [12], the Court said the benefits of a plea settlement to the accused, Crown and courts were so significant that a discount above 10%, and almost always within 15% to 20%, was required. In plain English, the Court considered a 10% reduction inadequate recognition of what an agreed resolution saves and avoids.
At [14], the Court said that, as a general proposition, the discount should be expected to be at least 15%. The qualification matters: it is an expectation grounded in current practice, not a statutory fixed percentage or an automatic entitlement to a particular figure.
At [16], the Court explained that the plea-timing clock ordinarily begins when the offender is first charged. In plain English, a later offer from the prosecution does not itself reset the timing assessment. The Court also left room for a different analysis where the offender had made an early plea offer that the prosecution later accepted.
At [17], the Court said charges not pursued should be treated on the assumption that the offender was not guilty. In plain English, the prosecution’s decision not to proceed with a charge is not, by itself, a sentencing benefit to be deducted from the guilty-plea discount.
At [35], the Court stated that some prospects of rehabilitation mean rehabilitation cannot effectively be ignored. This does not mean rehabilitation always outweighs deterrence or public protection. The surrounding reasoning says those other considerations remain relevant, but the offender’s prospects must be addressed rather than set aside.
At [37], the Court described 50% to 70% as the range in which a nonparole period will almost always fall where the head sentence is appropriate. It immediately qualified that statement: the percentage does not dictate the period. The practical meaning is that the range can inform scrutiny, but the sentencing court must still make an individual assessment.
At [38], the Court said that a 77% nonparole period was unusual and called for clear explanation, generally referring to remote rehabilitation prospects. This was not a categorical prohibition on a 77% period. It was a conclusion about the need for reasons in a case where the primary judge had described prospects as guarded, rather than absent.
The guilty-plea reasoning is most directly relevant where an offender enters pleas following a Criminal Case Conference and the discount is around 10%. The judgment makes the utilitarian value of the resolution central and identifies benefits such as reduced hearing time, lower costs, witness relief and avoidance of pre-trial applications ([12]–[14]). The precise discount still depends on the circumstances.
The negotiation discussion is relevant where the prosecution offers to proceed on fewer charges and the offender accepts that offer after some delay. The judgment says the timing ordinarily runs from the first charge, not from the offer eventually accepted ([16]). It also says that charges abandoned by the prosecution are not themselves a benefit for discount purposes, on the assumption that the offender was not guilty of those charges ([17]).
The nonparole reasoning is particularly relevant where the nonparole period is a high proportion of an otherwise unchallenged or appropriate head sentence, and the sentencing reasons do not explain that proportion. A period around 77% may call for closer scrutiny under the judgment’s approach, especially where the sentencing judge has identified some, rather than remote or absent, prospects of rehabilitation ([32]–[38]). The Court’s contextual 50% to 70% observation is not a standalone test; the judgment stresses individual assessment ([37]).
The judgment also concerns the appellate setting in which errors in discounts or nonparole periods require resentencing. Here, the Court did not disturb the factual findings, offence seriousness assessments, individual sentences or concurrency, but recalculated the relevant discounts and nonparole period ([42]–[48]). The case should therefore not be read as deciding the appropriate sentence for different offence facts or different offender circumstances.
The supplied judgment contains no decisions after 22 November 2019, so it does not establish how later courts treated Blundell. It would not be grounded in the available material to describe later adoption, limitation or rejection.
The judgment itself relied on earlier ACT and High Court authorities. It discussed Williams and Hawkins on post-Conference discounts, Toumo’ua on pleas associated with negotiations, and Cole, Taylor and Bugmy on nonparole periods and rehabilitation ([7]–[10], [16], [27]–[30]). It also cited Miles when considering the effect of a possible failure to comply with s 37 ([23]).
For research purposes, the decision’s own contribution should be separated from those earlier authorities: it expressly states the expected minimum and usual range for post-Conference plea discounts, and applies the rehabilitation and reasons principles to find the 77% period unjustified on the reasons given ([12]–[14], [34]–[38]). Any account of later treatment would require sources beyond this judgment.
The judgment does not specify a discount for every possible plea following a Criminal Case Conference. It says the general expectation should be at least 15%, and that the usual range is 15% to 20%, but does not set out a complete method for selecting a figure within that range for every combination of plea timing, evidentiary strength, negotiations and procedural savings ([12]–[16]).
It also leaves open how the s 35(2)(c) negotiation factor should affect a discount in all circumstances. The Court explains that the timing clock ordinarily starts with the charge and that an early offer by the offender may make a difference, but does not comprehensively define the circumstances in which that qualification applies ([16]).
On s 37, the Court did not decide whether the sentencing remarks failed to comply with the provision. It discussed the requirement and the procedural character of non-compliance, then noted that the appellant’s arguments did not identify a practical sentencing consequence on that ground ([19]–[26]). The judgment therefore should not be presented as deciding every question about the required form or detail of a s 37 statement.
Finally, the Court did not identify a fixed threshold at which a nonparole percentage becomes unusual, or a checklist sufficient to justify every high percentage. It held that 77% was unusual and required clear explanation, generally with reference to remote rehabilitation prospects, but also said percentages do not dictate the outcome ([37]–[38]). The reasons required in another case will depend on its circumstances and the sentencing purposes engaged.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Blundell v The Queen
Citation: [2019] ACTCA 34
Hearing Date: 5 November 2019
Decision Date: 22 November 2019
Before: Murrell CJ, Elkaim and Rangiah JJ
Decision: Appeal granted
Catchwords: APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal against sentence – discount for plea of guilty – manifestly excessive nonparole period – prospects of rehabilitation
Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 33(1), 35(2), 37
Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 Cole v The Queen [2019] ACTCA 3 Drayton v The Queen [2013] ACTCA 44 Henry v The Queen [2019] ACTCA 5 Gillard v The Queen [2016] ACTCA 50 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Miles v the Queen [2016] ACTCA 54 R v Blundell [2019] ACTSC 42 R v Hawkins [2019] ACTSC 10 R v Toumo’ua [2017] ACTCA 9 R v Williams [2019] ACTSC 298 Taylor v The Queen [2014] ACTCA 9
Parties: Paul Anthony Blundell (Appellant)
The Queen (Respondent)
Representation: Counsel
J Campbell (Appellant)
T Hickey (Respondent)
Solicitors
Legal Aid ACT (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: ACTCA 10 of 2019
Decision under appeal: Court: Supreme Court of the ACT
Before: Burns J
Date of Decision: 15 February 2019
Case Title: R v Blundell
Citation: [2019] ACTSC 42 THE COURT:
On 15 February 2019, Burns J sentenced the appellant in respect of 44 charges, 12 of which were re-sentences for breach of good behaviour orders imposed by Refshauge J on 12 November 2015.
The aggregate sentence was 8 years and 5 months' imprisonment, commencing 15 August 2017 and expiring on 14 January 2026. His Honour set a nonparole period of 6 years and 6 months, with the offender being eligible for parole on 14 February 2024.
The notice of appeal filed 14 March 2019 specifies five grounds of appeal.
The five grounds, in summary form, are as follows:
(1) His Honour made a factual error in finding that the appellant had been imprisoned in 2014;
(2) His Honour should have applied more than a 10% discount for the pleas of guilty which arose after a Criminal Case Conference;
(3) His Honour should have stated the penalty that would have been imposed for a number of offences but for the pleas of guilty;
(4) The total sentence of 8 years and 5 months was manifestly excessive;
(5) The nonparole period of 6 years and 6 months was also manifestly excessive.
Ground 2: Discount for plea of guilty
His Honour dealt with the discount following the Criminal Case Conferences at [49]: Clearly, nothing less than immediate terms of imprisonment are appropriate. I take into account your pleas of guilty. It cannot be said that those matters which resolved after the Criminal Case Conference were early pleas. In addition, you obtained a benefit through the reduction of the number of charges that you were facing. Your pleas to these charges nevertheless had utilitarian value. I will reduce by approximately 10 per cent the otherwise appropriate sentences with regard to those charges to which you entered pleas of guilty after the Criminal Case Conference. With regard to the charges where pleas of guilty were entered in the Magistrates Court, I will reduce the otherwise appropriate sentences by approximately 25 per cent.
In R v Williams [2019] ACTSC 298, the Chief Justice said this, from [3], about discounts following a Criminal Case Conference: 3. The Crown case was very strong in relation to all matters, as is frequently the case with aggravated robbery and similar offences, such as burglary. The strength of the Crown case is a factor that the Court is required to take into account under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), but the decisions of this Court make it quite clear that the utilitarian value of a plea is the primary factor when determining the extent of a discount for a plea. 4. In relation to pleas entered at or in the immediate aftermath of Criminal Case Conferencing, it is the Court's usual practice to allow a discount of up to about 20 per cent. This practice provides a degree of assurance to persons who are considering whether or not they should enter pleas at the time of Criminal Case Conferencing. 5. In accordance with the usual practice, this case, I consider it appropriate to allow discounts of around 20 per cent.
It is apparent from her Honour’s remarks that there is a “usual practice”. This should not be confused with a mandated practice. However, s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) does mandate that a sentencing court consider “current sentencing practice” when deciding an appropriate sentence.
In R v Hawkins [2019] ACTSC 10 the Chief Justice said, at [3]: Having regard to the utilitarian value of the pleas (considering the timing of the pleas and the savings to the victims in the criminal justice system), the offender is entitled to a sentence discount in the range of 15 to 20 per cent. Due to the strength of the case against him on all charges, the discount should not be at the upper end of that range.
The discount in Hawkins followed pleas of guilty after a Criminal Case Conference. Plainly her Honour was taking into account a range of factors, including the strength of the case against the offender, in establishing a range of 15% to 20% for the discount.
In the present case it is clear from [49], quoted above, that his Honour was not only taking into account the utilitarian value of the pleas but also the benefit that had accrued to the offender through “the reduction of the number of charges” from the original indictment. The offender pleaded guilty to 26 of the 38 counts in the original indictment.
35 Reduction of sentence—guilty plea (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
The Crown, referring to the Court’s decision in R v Toumo’ua [2017] ACTCA 9, suggested that the discount of 10% was consistent with the above subsection to the extent that it contemplated a number of reasons for the discount and avoided a duplication. However as stated in Toumo’ua the “purpose of s 35(2)(c) is not immediately obvious”. Further, the decision emphasises that the primary consideration is the utilitarian value of a plea, which largely depends on the timing of the plea. It clarifies that, if an offender accepts a belated Crown offer to proceed on fewer charges, then the offender’s acceptance of the offer is not a plea at the earliest reasonable opportunity such as would entitle the offender to a 25% discount. In other words, ‘the clock starts ticking’ when the offender is first charged, not when the Crown first makes the offer that ultimately resolves the proceedings. The position may be otherwise if, at an early stage, the offender has offered to plead on a basis that is ultimately accepted by the Crown.
Another matter that is significant in this case is that, where negotiations result in a plea, it is not relevant to consider any benefit to the offender associated with the Crown abandoning particular charges. In relation to charges that are not pursued, it must be assumed that the offender was not guilty and therefore gained no advantage by the withdrawal of the charges. In this case, there were eight such charges.
In this matter, therefore, the Court is of the view that the appellant should be re-sentenced in respect of those matters that attracted a 10% discount. The re-sentencing exercise should apply a discount of approximately 15%.
Ground 3: Section 37 of the Crimes (Sentencing) Act 2005 (ACT)
This ground is essentially a complaint that the provisions of s 37 of the Sentencing Act had not been complied with. This section states:
Reduction of sentence – statement by court about penalty (1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence – guilty plea), section 35A (Reduction of sentence – assistance in administration of justice) or section 36 (Reduction of sentence – assistance to law enforcement authorities). (2) The court must state— (a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and (b) if the lesser penalty is imposed under section 35A or section 36 – the reason for the imposition of the lesser penalty.
The appeal ground seems to be limited to counts 16, 18, 21, 23, 36 and 38 and also to the offences to which the appellant pleaded guilty in the Magistrates Court.
The appellant submits that contravention of s 37 is indicative of error.
At first sight the wording of s 37 would appear to support the appellant’s contention. Assuming that it does, what are the consequences?
In Miles v the Queen [2016] ACTCA 54, the sentencing judge had mentioned neither the extent of a discount nor the sentence that would have been imposed but for the discount. At [89], Burns and Wigney JJ said:
Secondly, his Honour did not comply with s 37 of the Sentencing Act in that he did not specify the extent to which he had reduced the otherwise appropriate sentences to acknowledge the appellant’s pleas of guilty. There can be no doubt that his Honour did take into account the appellant’s pleas of guilty in determining the appropriate sentences for each of the offences, as his Honour made numerous references to the circumstance of the pleas in his sentencing remarks, and referred to the fact that the pleas indicated acceptance of responsibility by the appellant, and also had, in the case of the ACT offences, a utilitarian value. Failure by a sentencing judge to comply with s 37 of the Sentencing Act does not invalidate the sentence; it is simply a failure to comply with a procedure the object of which is to inform an offender, the prosecution, the community and, on appeal, the appellate court of the reduction in sentence attributable to a plea of guilty, so that the process of sentencing may be better understood. The failure of his Honour was not in failing to take into account the appellant’s pleas; clearly he did. The failure was in not specifying the reduction in sentence he allowed by reason of the pleas. The sentences imposed by his Honour were appropriate, so that no further action on this issue is required.
The difficulty facing the appellant is that even if he has established error, he makes no complaint about the length of any of the sentences in relation to which his Honour may have failed to adhere to s 37, nor does he complain about the overall length of the sentence. His success in pointing out an error does not translate to any practical effect which might lead to a change, or amelioration of the sentences.
The assumption of error is not necessarily one that this Court adopts. The intent of s 37 is to inform an offender that he has been given a discount for his plea of guilty (or for his assistance to the administration of justice or to law enforcement authorities). It may not matter whether the statement of the discount is expressed as a percentage without the necessary calculation being described to the offender. A person who receives a sentence having been informed that it has been reduced by, say 10%, should have little difficulty in working out the sentence before reduction.
It is also important to note that his Honour allowed a reduction of “approximately 10%” which allowed for a degree of rounding off in order to assist in the structure of the overall sentence. In particular, in a case such as the present where there were so many sentences to be imposed, his Honour’s approach was entirely appropriate.
Ground 5: Nonparole period
The principles applicable to the manifest excess of a head sentence are equally applicable to nonparole periods. The general approach to whether or not a sentence is manifestly excessive was stated, concisely, in Cole v The Queen [2019] ACTCA 3 at [14]: Suffice to say that these principles rely on the basic proposition that a sentence will not be interfered with, on the basis of adequacy, unless it is unreasonable or plainly unjust (see for example Dalton v The Queen [2015] ACTCA 48 and, more recently, Parker v The Queen [2018] ACTCA 58).
The nonparole period was the subject of extensive comment in Cole. Commencing at [13], some relevant parts of the judgment are: 13. The setting of a nonparole period is an important part of the sentencing procedure. Often the length of the nonparole period will be as important to an offender, and the public at large, as the overall term of imprisonment. It follows that nonparole periods are equally susceptible to arguments of manifest excess or inadequacy as are head sentences. … 15. Nonparole periods are governed by Part 5.2 of the Crimes (Sentencing) Act 2005 (ACT). Section 65 of the above Act says a nonparole period must be set if an offender is sentenced to a term of imprisonment of one year or longer. The Act does not dictate the length of any nonparole period nor does it state that a nonparole period must equate to any particular percentage, or fall within a range of percentages, of the head sentence. 16. In Lowe v The Queen (1984) 154 CLR 606 at 610, Gibbs CJ stated this general principle: No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
R v Toumo’ua [2017] ACTCA 9 was a Crown appeal. … The court referred to a number of authorities concerning the setting of nonparole periods and summarised, from [95], the principles in this way: 95. The Sentencing Act says nothing about the length of a nonparole period, its purpose or its relationship to the total head sentence. ...
In Power v The Queen [1974] HCA 26; 131 CLR 623 at 629 the plurality (Barwick CJ, Menzies, Stephen and Mason JJ) said that the purpose of providing for parole in the legislation thereunder consideration was: ... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
That approach was applied by this Court in Millard v The Queen [2016] ACTCA 14.
…
Recently, in Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47], Hoeben CJ at CL (Latham and Price JJ agreeing) emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Further, the need for rehabilitation had to be balanced against the overarching requirement (in that case, found in s 16A(1) of the Crimes Act 1914) that the sentence be of a severity appropriate in all the circumstances of the offence.
In Taylor v The Queen [2014] ACTCA 9 at [19], this Court summarised the proper approach to fixing a nonparole period as follows:
A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods.
The court continued at [102]: 102. In fixing a nonparole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low nonparole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
… 23. The need to give reasons was stressed in Millard v The Queen [2016] ACTCA 14. The Court said at [65] that “….it is helpful to the court on appeal if a sentencing court articulates the reasons for setting a nonparole period, or at least for setting an unusual nonparole period.” 24. The Court in Millard went on to state a number of propositions arising from the assessment of an unusual nonparole period. The court quoted with approval from Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 at 194-5; at [43]: (1) When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.
(2) A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive.
(3) Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny.
(4) The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom.
(5) The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release.
(6) The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case.
(7) It follows from (5) and (6) that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.
(8) All the relevant factors have to be taken into account. They are many and varied, but they include —
(a) that a non-parole period has a penal element;
(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.
In Bugmy v The Queen (1990) 169 CLR 525, the High Court said this at 532: A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No. 2] (1988) 164 CLR 465, at p. 477., whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment. In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation. If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.
As seen above, the Chief Justice in Taylor v The Queen [2014] ACTCA 9 emphasised the importance of rehabilitation in setting a nonparole period. Her Honour said, at, [19] (referring to Drayton v The Queen [2013] ACTCA 44) where an offender had “limited prospects of rehabilitation,” a nonparole period of 70% would not be amended.
The nonparole period in the present case is 77% of the head sentence.
The primary judge dealt with rehabilitation at [48]: You have not yet reached the stage where rehabilitation is irrelevant. You still have prospects for rehabilitation and you have demonstrated in the past that you are capable of addressing your drug addiction, obtaining work and being a useful member of the community, as well as a good and loving father and partner. I cannot, however, say that your rehabilitation prospects, at the present time, are good. In my opinion, they must be seen as guarded. The nature and number of offences before this Court, together with your criminal history speaks of the need to impose sentences designed to deter you from further criminal offending and also to protect the community. General deterrence is always an important consideration in sentencing for offenders of this type.
Re-sentence
The appellant’s success on Grounds 2 and 5 means that it is necessary for the Court to re-sentence the appellant (see for example Gillard v The Queen [2016] ACTCA 50 and Kentwell v The Queen [2014] HCA 37; 252 CLR 601).
The Crown submitted that the necessary exercise involved the Court re-examining all of the submissions made by the parties before the primary judge in order to meet the necessary requirements of the re-sentencing exercise.
The Court does not disagree with the Crown but specifically notes that it has found no error in any of the assessments of the evidence made by his Honour nor in any of the conclusions that his Honour has drawn from the evidence. The difference between this Court and his Honour, and the basis for the findings of error, lies in the translation of those findings and conclusions into the particular discounts applied and into the extent of the nonparole period.
The Court specifically agrees with his Honour’s treatment of the evidence and in re-sentencing the appellant has reached the same findings as his Honour. This agreement extends to his Honour’s findings on the facts of the offences and their respective levels of objective seriousness and the observations on the appellant’s subjective characteristics.
Most importantly, this Court agrees with the individual sentences imposed by his Honour and the levels of concurrency applied by him.
It was for this reason that the Court asked the parties to prepare a schedule of the sentences imposed but subject to, where applicable, respective discounts of 15% and 20%.
As already stated, the Court is of the view that 15% is the correct discount so that the offender will be re-sentenced as set out below (in accordance with the agreed schedule provided by the parties). In relation to the nonparole period this will be 4 years, 9 months and 21 days. The period equates to 65% of the head sentence but is not a product of a mathematical exercise commenced by deciding on a particular percentage. Rather the percentage reflects the Court’s view, with the principal aim of providing the appellant with a target to enhance his rehabilitation, of the minimum period that he should serve before being eligible for release.
The Court makes the following orders:
(a) The appeal is allowed.
(b) The sentences imposed by Burns J on 15 February 2019 are set aside. (c) In lieu thereof the following sentences are imposed:
(i) For the offence of burglary (CC11638/2014) the appellant is sentenced to 8 months’ imprisonment, commencing on 15 August 2017 and expiring on 14 April 2018.
(ii) For the offence of theft (CC11644/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 August 2017 and expiring on 14 January 2018.
(iii) For the offence of burglary (CC11639/2014) the appellant is sentenced to 8 months' imprisonment, commencing on 15 November 2017 and expiring on 14 July 2018.
(iv) For the offence of theft (CC11645/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 November 2017 and expiring on 14 April 2018.
(v) For the offence of burglary (CC11640/2014) the appellant is sentenced to 8 months' imprisonment, commencing on 15 February 2018 and expiring on 14 October 2018.
(vi) For the offence of theft (CC11646/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 February 2018 and expiring on 14 July 2018.
(vii) For the offence of burglary (CC11641/2014) the appellant is sentenced to 8 months' imprisonment, commencing on 15 May 2018 and expiring on 14 January 2019.
(viii) For the offence of theft (CC11647/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 May 2018 and expiring on 14 October 2018.
(ix) For the offence of burglary (CC11642/2014) the appellant is sentenced to 9 months' imprisonment, commencing on 15 July 2018 and expiring on 14 April 2019.
(x) For the offence of theft (CC11648/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 August 2018 and expiring on 14 January 2019.
(xi) For the offence of burglary (CC11643/2014) the appellant is sentenced to 9 months' imprisonment, commencing on 15 October 2018 and expiring on 14 July 2019.
(xii) For the offence of theft (CC11649/2014) the appellant is sentenced to 5 months' imprisonment, commencing on 15 October 2018 and expiring on 14 March 2019.
(xiii) For Count 9 (CC12496/2017) the appellant is sentenced to 3 years, 4 months and 24 days’ imprisonment, commencing on 15 January 2019 and expiring on 7 June 2022.
(xiv) For Count 10 (CC12497/2017) the appellant is sentenced to 12 months and 22 days’ imprisonment, commencing on 8 July 2021 and expiring on 29 July 2022. (xv) For Count 11 (CC12498/2017; CC12499/2017; CC12500/2017; CC12501/2017; CC12502/2017; CC12503/2017; CC12505/2017; CC12506/2017) the appellant is sentenced to 5 months and 3 days’ imprisonment, commencing on 8 July 2021 and expiring on 10 December 2021.
(xvi) For Count 12 (XO31325/2018; XO31326/2018; XO31327/2018) the appellant is sentenced to 12 months and 22 days’ imprisonment, commencing on 8 July 2021 and expiring on 29 July 2022.
(xvii) For Count 13 (CC12507/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 8 December 2020 and expiring on 19 August 2022.
(xviii) For Count 14 (CC12508/2017) the appellant is sentenced to 12 months and 22 days’ imprisonment, commencing on 20 September 2021 and expiring on 11 October 2022.
(xix) For Count 15 (CC12509/2017) the appellant is sentenced to 17 months’ imprisonment, commencing on 20 June 2021 and expiring on 19 November 2022.
(xx) For Count 16 (XO31328/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 8 December 2020 and expiring on 7 January 2021.
(xxi) For Count 17 (CC12512/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 20 May 2021 and expiring on 31 January 2023.
(xxii) For Count 18 (XO31329/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 20 May 2021 and expiring on 19 June 2021.
(xxiii) For Count 19 (CC12511/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 1 July 2021 and expiring on 12 March 2023.
(xxiv) For Count 20 (CC9140/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 13 December 2021 and expiring on 24 August 2023.
(xxv) For Count 21 (XO31330/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 13 December 2021 and expiring on 12 January 2022.
(xxvi) For Count 22 (CC9141/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 25 January 2022 and expiring on 6 October 2023.
(xxvii) For Count 23 (XO31331/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 25 January 2022 and expiring on 24 February 2022.
(xxviii) For Count 24 (CC9138/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 7 March 2022 and expiring on 18 November 2023. (xxix) For Count 25 (XO31332/2018) the appellant is sentenced to 5 months and 3 days’ imprisonment, commencing on 7 March 2022 and expiring on 9 August 2022.
(xxx) For each charge of obtaining property by deception, which was committed to the Supreme Court from the Magistrates Court, (CC9143/2015; CC9144/2015; CC9145/2015; CC9146/2015; CC9147/2015; CC9148/2015) the appellant is sentenced to 2 months’ imprisonment, each commencing on 19 October 2023 and expiring on 18 December 2023.
(xxxi) For Count 26 (XO31333/2018) the appellant is sentenced to 5 months and 3 days’ imprisonment, commencing on 19 September 2023 and expiring on 21 February 2024.
(xxxii) For Count 27 (CC12514/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 19 July 2022 and expiring on 30 March 2024.
(xxxiii) For Count 28 (XO31334/2018) the appellant is sentenced to 12 months and 22 days’ imprisonment, commencing on 30 April 2023 and expiring on 21 May 2024.
(xxxiv) For Count 29 (CC12516/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 22 December 2022 and expiring on 2 September 2024.
(xxxv) For Count 30 (CC12517/2017) the appellant is sentenced to 12 months and 22 days’ imprisonment, commencing on 13 September 2023 and expiring on 4 October 2024.
(xxxvi) For Count 35 (XO31336/2018) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 13 March 2023 and expiring on 24 November 2024.
(xxxvii) For Count 36 (XO31337/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 13 March 2023 and expiring on 12 April 2023.
(xxxviii) For Count 37 (CC9149/2017) the appellant is sentenced to 20 months and 12 days’ imprisonment, commencing on 25 April 2023 and expiring on 5 January 2025.
(xxxix) For Count 38 (XO31338/2018) the appellant is sentenced to 1 month’s imprisonment, commencing on 25 April 2023 and expiring on 24 May 2023.
(d) The total term of imprisonment is 7 years, 4 months and 22 days commencing on 15 August 2017 and expiring on 5 January 2025.
(e) A nonparole period of 4 years, 9 months and 21 days is imposed, commencing on 15 August 2017 and expiring on 4 June 2022. I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Elkaim and Justice Rangiah.
Associate:
Date: 22 November 2019
Blundell
The Queen [2019] ACTCA 34
(1990) 169 CLR 525
(1984) 154 CLR 606
(1974) 131 CLR 623
(1999) 199 CLR 295
(1988) 164 CLR 465
Appeal allowed. The sentences imposed on 15 February 2019 were set aside. The Court imposed the individual sentences set out in its orders, producing a total term of 7 years, 4 months and 22 days commencing 15 August 2017 and expiring 5 January 2025. It imposed a nonparole period of 4 years, 9 months and 21 days commencing 15 August 2017 and expiring 4 June 2022 ([49]).
However, notwithstanding that his Honour considered appropriate factors, the result of a discount of 10% remains too low. Its defect is that it does not take full account of the utilitarian value of a ‘settlement’ following a Case Conference. The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.
The utilitarian value includes a range of factors including savings of time and cost, relieving witnesses from giving evidence (often being people who will find giving evidence very difficult) and the avoidance of often prolonged pre-trial applications. In this case, for example, a coincidence application became unnecessary. It is also vital that persons coming to a Criminal Case Conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
Without stating a particular discount, as a general proposition it should be expected that it will be at least 15%.
The Crown drew the Court’s attention to s 35(2)(c) of the Sentencing Act, which states:
It would be a fair summary of his Honour’s consideration of rehabilitation that he thought the offender could mend his criminal ways but his current round of offending both tempered his prospects of rehabilitation and also demanded a greater role for general deterrence. There can be no criticism of his Honour’s summary. The real question is whether, notwithstanding this summary, a nonparole period of 77% was unreasonable.
Other than at [48] his Honour’s sentencing remarks disclose no other elucidation of the path leading to the 77% nonparole period. The assessment of rehabilitation prospects as not good at the “present time” and “guarded” may be consistent with the imposition of a substantial nonparole period but is inconsistent with an exceptionally long nonparole period, particularly in the context of a long sentence in the course of which an offender’s attitude towards and aptitude for rehabilitation may change dramatically.
The presence of at least some prospects of rehabilitation does not permit rehabilitation to be effectively ignored. An absence of prospects of rehabilitation is the only way the nonparole period in this case could be justified.
The Crown cautioned against an approach which overemphasised the relevance of the specific percentage. The Crown said that the important factor was for the primary judge to fix a nonparole period which reflected the minimum time that the offender ought to remain in prison. An apparently high percentage might, on taking into account other matters, be placed into a perspective which did not necessarily reflect error.
We accept this approach. However, where a head sentence is appropriate, taking into account the factors that inform an appropriate nonparole period and current sentencing practice, the resulting nonparole period will almost always fall within the range 50-70%. The percentage however does not dictate the nonparole period, rather it reflects an assessment which will usually be characterised by falling within a certain range.
The Court is accordingly of the view that the discretion in relation to the nonparole period has miscarried. This is not to say that a nonparole period of 77% will never be appropriate. But, as emphasised by the above authorities, such a nonparole period is unusual and calls for clear explanation, generally with reference to remote prospects of rehabilitation.
The Crown submitted that, if the head sentence was lenient then a ‘correct’ nonparole period might be a greater percentage of the head sentence. Further the Crown submitted that the head sentence in this matter was particularly lenient, in particular having regard to the number of offences involved, their individual severity and the commission of a good deal of them while the offender was subject to a suspended sentence.
In these proceedings, the head sentence has not been challenged. It is not obvious that it was unduly lenient. In addition there is no indication, or suggestion, that his Honour approached the length of the nonparole period on the basis that the head sentence was lenient. Consequently, it is not necessary to entertain this argument.
The Crown relied on a number of authorities, but in particular Henry v The Queen [2019] ACTCA 5, to make its point. There is no doubt that in Henry this Court stated that the setting of a nonparole period was not a mathematical exercise. However, as emphasised in Henry, prospects of rehabilitation play a significant role in the setting of nonparole periods. Where, as is the case here, the head sentence is unremarkable (in the sense of not being either manifestly inadequate or excessive) then a percentage can be seen as a guide to what might be an appropriate nonparole period.