Brough v Director of Public Prosecutions

Judgment 1On 5 September 2013, Mr Corey Brough was sentenced in the Local Court of New South Wales at Lithgow by Magistrate Toose for three offences. At the time, he was serving a number of pre-existing sentences, with regard to which the overall non-parole period was less than 75% of the overall head sentence. His solicitor submitted to the learned Magistrate that the new offences could commence before the expiry of the pre-existing overall non-parole period, but also submitted that "your Honour can choose any date your Honour feels is appropriate". His solicitor made no submission about special circumstances that could alter the ratio between the non-parole period and the head sentence of the new sentences. 2In the event, her Honour imposed three wholly concurrent sentences of imprisonment to commence on the day upon which the pre-existing overall non-parole period came to an end. In her Honour's remarks on sentence, nothing was said about special circumstances, and the ratio between the non-parole period and the head sentence confirms that none were found. 3A severity appeal to the District Court on the part of Mr Brough is statute barred due to the effluxion of time. 4Mr Brough has appealed to this Court. Based upon the grounds of appeal, the issues that I must determine are: can the approach of her Honour constitute a question of law alone, thereby permitting an appeal to this Court pursuant to s 52 of the Crimes (Appeal and Review) Act 2011 (NSW) (the Act)? If so, has any error of law been demonstrated that would lead me to vary the sentence (pursuant to s 55(2)(b) of the Act) or remit the matter for further hearing in the Local Court (pursuant to s 55(2)(c))? Some preliminary matters 5Mr Brough is the appellant, and according to the interaction of s 61 of the Act and rr 51B.9 and 51B.10 of the Supreme Court Rules 1970 (NSW) is the plaintiff. He was, of course, the defendant at first instance. The Crown is the defendant to the appeal. However, for ease of comprehension, I shall refer to Mr Brough as the appellant, and his opponent as the Crown. 6The appellant lodged his appeal somewhat out of time. The Crown did not submit that I should refuse an extension, pursuant to r 6 of the Supreme Court Rules, if I were to find the appeal to be meritorious. Because I consider the submissions of the appellant to be reasonably arguable and to raise some important issues, I consider that an extension of time to institute the appeal should be granted. 7Neither party sought costs if that party were to succeed before me. Grounds of appeal 8As amended at the commencement of the hearing with the consent of the Crown, these were as follows: (1)The Magistrate erred in failing to have regard to the principle of proportionality in structuring the appropriate sentence for each of the subject offences. (2)The Magistrate erred in failing to have regard to the principles of totality in the context of the plaintiff serving existing sentences at the time of the imposition of the subject sentences. (3)The Magistrate erred in failing to have regard to s 44(2) of the Crimes (Sentencing Procedure) Act ('special circumstances') in the context of the plaintiff serving existing sentences at the time of the imposition of the subject sentences. (4)The Magistrate erred in failing to correctly apply the principle of totality when considering the commencement date of the subject sentences. 9Whilst ground one was not formally abandoned, in oral submissions senior counsel for the appellant made clear that he was content for my focus to be on the last three grounds. Background 10On 15 January 2011, while in custody for other offences, the appellant escaped from the Coffs Harbour Police Station holding cells. To state things very succinctly, he travelled on foot to a "Windscreens O'Brien" business in the north of Coffs Harbour. He used a piece of wire to manipulate a lock and gain access to the building there. Inside he found an unsecured van with keys in the ignition. He drove the van out of the building via a roller door, and all the way south to Sydney, where he gave custody of it to an unknown man. En route, he stopped at a service station in Kempsey, where he obtained $56 worth of fuel and drove off without paying for it. These crimes (except for the escape) led to the sentences under appeal. 11In late January 2011 the offender was arrested and sentenced in the Local Court of New South Wales at Coffs Harbour for the escape and other, unrelated offences. At that stage he was not charged with the other offences of 15 January 2011. He was released to parole on 25 July 2011. 12On the night of 28 August 2011, the appellant broke into a pharmacy and a gym in Parramatta, and stole cash and goods. He was arrested the following day, and on 30 August 2011 was charged with two counts of aggravated break, enter and steal. His parole was revoked and he began to serve his balance of parole. Judge Coorey sentenced the appellant in the District Court of NSW with regard to those two offences on 2 January 2012. 13While in custody, after being informed that police intended to conduct a forensic procedure in relation to the events of 15 January 2011 after his escape, the offender confessed. He was charged with the three offences that are the subject of this appeal, namely: break enter and steal, take and drive a conveyance, and dishonestly obtain property by deception. 14It can therefore be seen that when the appellant appeared before her Honour on 5 September 2013 for sentencing, he had been, and still was, serving a number of sentences. The first of those was balance of parole, which commenced on 30 August 2011 and had expired on 30 January 2012. The second were the sentences imposed by Judge Coorey. Considered as a whole, they featured a head sentence of three years eight months, with a non-parole period of two years and two months. They commenced on 2 January 2012 (that is, about a month before the balance of parole expired), and their head sentence was due to expire on 1 September 2015. The non-parole period with regard to those sentences was to expire on 1 March 2014. 15Attached to this judgment is a diagram that sets seeks to set out the sentence structure described above, along with the sentences imposed by the Magistrate, in readily comprehensible form. 16It can be seen that the ratio between the non-parole period and the overall head sentence imposed by Judge Coorey was 59%. Taking into account the pre-existing period of balance of parole (which extended the effective period in custody by four months and four days from 30 August 2011 to 2 January 2012), the overall head sentence being served by the appellant on the day he appeared before her Honour was just over four years. The overall non-parole period being served by the appellant was two years and six months. The ratio between the overall non-parole period and the overall head sentence was 62.4%. 17As I have indicated, it was not disputed at the sentence hearing by the appellant's then lawyer that the Magistrate had a broad discretion as to the commencement date of the new sentences. However, she submitted that, because the offences founding the new sentences pre-dated the offences for which the appellant was already serving sentences, and were temporally connected to the escape, their non-parole period could be made concurrent with the pre-existing non-parole period to some degree. It was not disputed that the appellant had a very long record for criminal offences generally, and offences of the kind for which he was to be sentenced again in particular. Nor, as I have said, was any submission made about special circumstances. 18Before me it was accepted by both parties that, by way of the operation of s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), the longest head sentence that her Honour could impose was one year four months, cumulative upon the pre-existing overall head sentence. Section 58 relevantly provides: 58 Limitation on consecutive sentences imposed by Local Court (1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. (2) Any period for which an existing sentence has been extended under this or any other Act is to be disregarded for the purposes of this section. ... (4) In this section: existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively). sentence of imprisonment includes an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987. Because of the joint position of the parties, I shall not pause to consider the mathematical correctness of that proposition. 19In concise extemporaneous remarks on sentence, her Honour at one stage said: The matters before the Court are break and enter and steal, there's take and drive conveyance and dishonestly obtain property by deception. The offences occurred on 15 January 2011, I have read the facts of the matter, had a look at the history, they each carry, well significant periods in custody which is impacted by the fact though that you are presently serving a sentence of three years and seven months so I could only - I am limited really in what I can do. 20Ultimately, with regard to each offence her Honour imposed a head sentence of imprisonment for 12 months with a non-parole period of nine months to commence on 1 March 2014. A number of aspects of the effect of those new sentences on the overall custodial position of the appellant may be noted. 21First, the sentence for each offence was wholly concurrent with the sentences for the other two offences. 22Secondly, the learned Magistrate imposed the sentences to commence at the end of the pre-existing non-parole period. In other words, there was no partial concurrence between the pre-existing non-parole period and the new sentences. 23Thirdly, there was no deviation from the ratio of 75% between the newly imposed non-parole period and the newly imposed head sentence. 24Fourthly, considering the continuous custodial position of the appellant as a whole, he is now serving an unaltered overall head sentence of four years and three days that commenced on 30 August 2011 and expires on 1 September 2015. His new overall non-parole period is three years, three months and one day, comprising the four months and four days spent in custody for the balance of parole, the two years two months imposed by Judge Coorey, and the nine months fully cumulative imposed by the learned Magistrate (the apparent discrepancy of three days is caused by the differing lengths of calendar months). That new overall non-parole period expires on 30 November 2014. 25Fifthly, to the extent that it is agreed that the Magistrate, because of the operation of s 58 of the CSP Act, was empowered to increase the overall non-parole period but not the overall head sentence, it was inevitable that any cumulation on the pre-existing non-parole period would "cut into" the pre-existing period on parole. 26Sixthly, it can be seen that the new ratio between the extended overall non-parole period and the unaltered overall head sentence is 81.1%. 27Seventhly, to express things another way, after having spent three years, three months and one day in continuous custody, the appellant will spend only nine months and two days on parole. Legislative provisions 28Parliament has chosen to circumscribe sentence appeals from the Local Court to the Supreme Court. An appeal as of right must be founded on "a ground that involves a question of law alone": s 52 of the Act. Leave of this Court is required in order to appeal from the Local Court to the Supreme Court on a ground that involves a question of fact, or a question of mixed fact and law: s 53(1). The appellant did not seek that leave; he was content to found the appeal solely upon s 52 of the Act. 29Section 52 of the Act provides: 52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. ... 30Section 55 relevantly provides: 55 Determination of appeals ... (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. ... Submissions of the appellant before me 31The appellant accepted that, in the normal course, there would have been a severity appeal to the District Court. Due to oversight, that had become impossible. But the appellant submitted that, if it be the case that this matter falls within the parameters of the provision that permits an appeal to this Court, that foregone opportunity should play no role in me refusing relief. 32The appellant submitted that there was a question of law about the principles of totality that arose in these proceedings on sentence. It was said that the question manifested itself not only by way of the failure of her Honour to backdate the commencement of the new sentences to some degree (thereby failing to make the new head sentence and new non-parole period partly concurrent with the pre-existing non-parole period), but also by the failure of her Honour to find special circumstances and adjust the ratio between the newly imposed head sentence and new non-parole period (thereby failing to replicate, at the least, the pre-existing state of affairs that favoured the appellant). 33The appellant accepted that the appeal under consideration is more circumscribed than an appeal against sentence to the District Court, and indeed more circumscribed than an application for leave to appeal against sentence to the Court of Criminal Appeal. However, in submitting that what was before me was a question of law and not a question of mixed law and fact, the appellant relied in particular upon what was said by Bathurst CJ (with whom Adamson and Simpson JJ agreed) in his judgment in R v PL [2012] NSWCCA 31. That was an appeal by the Crown against a directed verdict of acquittal in a trial for manslaughter. Section 107(2) of the Act, the appeal creating provision, was in identical terms to s 52: The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone. 34The Chief Justice said at [37]-[39]: There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WLR 1644 at 1653). The respondent contended that in the present case any error of the trial judge was an error of that nature and that at most the trial judge had wrongly concluded, in accordance with the correct principles, that there was not evidence on which a jury could convict, thereby committing an error of mixed fact and law. Although support for this argument can be derived from the correct statement of the principles in the opening paragraphs of the judgment of the trial judge, it seems to me for the reasons set out above he failed to apply these principles in reaching his conclusion, in particular in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused. The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone. 35Senior counsel also invited my attention to David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290 at [26]-[28]. 36With regard to interpreting the remarks on sentence of her Honour, the appellant submitted that the portion of them that I have extracted at [19] should be read as follows. Her Honour was referring to a restriction on her Honour's ability to backdate the commencement of the sentence, and not to a restriction on the quantum of the sentence able to be imposed beyond the expiry of the pre-existing overall non-parole period. In other words, I should interpret that passage as demonstrating an erroneous understanding and application of the law by the Magistrate, in that her Honour wrongly believed that there was some fetter on the Magistrate's ability to backdate the new sentences, thereby causing the Magistrate to reject that option after it had been raised by the solicitor for the appellant. 37It was accepted that no mention was made by the solicitor for the appellant of a finding of special circumstances. But the appellant submitted before me that, in the circumstances of this case, the seeming failure of the learned Magistrate to turn her Honour's mind to that question, and the undoubted failure to find special circumstances, itself constitutes a question of law alone and an error of law. 38The appellant submitted that, if I were satisfied that either error of law had occurred, in light of the imminent expiry of the non-parole period of the appellant in any event, it would not be practical for me to remit the matter to the Local Court. Rather, I should vary the commencement date of the new sentences or the length of the non-parole period myself, with the result that the appellant would be immediately eligible for consideration for release to parole. Submissions of the Crown 39The Crown did not submit that the foregone opportunity to pursue a severity appeal in the District Court should play any role in forestalling the appellant from relief in this Court. 40The Crown placed a different interpretation on the passage that I have extracted at paragraph [19] above. It submitted that the passage should be read as a reference by the Magistrate to her Honour's understanding of the limitation imposed by s 58 of the CSP Act, and not any fetter on her Honour's discretion with regard to the starting date of the sentences. 41The Crown submitted that the appeal as framed did not pose a question of law alone, as required by s 52 of the Act. It referred to what was said by the Spigelman CJ (with whom McClellan CJ at CL and R A Hulme J agreed) in his Honour's judgment in R v PL [2009] NSWCCA 256; 199 A Crim R 199 at [26] as support for the proposition that application of a legal principle to the facts of a case involves a mixed question of fact and law, not a question of law alone. 42It was submitted that a question of law alone must be able to be stated with a degree of abstraction: see Bimson, Roads and Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [40]. That is impossible here: the real complaint of the appellant is not about (for example) the correct interpretation of s 55 of the CSP Act (which deals with the question of concurrence with, and cumulation upon, pre-existing sentences), or the correct interpretation of s 44 of the same Act (which deals with the statutory ratio between the non-parole period and the head sentence). Rather, the complaint of the appellant is a question of application of settled law to the particular facts with which her Honour was confronted. 43In any event, the Crown submitted that there was no error in the commencement date of the new sentences. The approach adopted was quite consistent with the CSP Act. Her Honour had a broad discretion as to when to commence the new sentences with regard to the pre-existing structure of the old ones: see generally R v Hammoud [2000] NSWCCA 540; 119 A Crim R 66. Furthermore, the solicitor for the appellant had specifically left open the option of commencing the new sentences on any date that seemed appropriate to the Magistrate. 44As for the question of special circumstances, the Crown emphasised that they were not sought in the Local Court. On the authority of Zreika v R [2012] NSWCCA 44 and subsequent cases, the Crown submitted that one should be cautious in permitting the appellant to complain about an aspect of sentence structure about which no submission was made in the Local Court. 45Leaving that aside, although it was perhaps open to the Magistrate to adjust the non-parole period downward, the circumstances hardly demanded that course. In short, the Crown submitted that there was no error of law or otherwise in the Magistrate not finding special circumstances and adjusting the new non-parole period. 46In summary, the Crown submitted that there was nothing wrong with the new sentences. It was well open to the discretion of the Magistrate to start the sentences when her Honour did, and not to find special circumstances. The sentences were unremarkable; indeed, lenient in light of the record of the appellant. What did the magistrate mean? 47Turning first to determine the question of interpretation of the extract from the judgement, I do not regard it as a reference to a fetter on the starting date of the new sentences. I consider that it was a reference to the limitation founded on s 58 of the CSP Act. That is because, towards the end of the passage, her Honour referred to the "significant periods in custody" that could be imposed, but thereafter drew a contrast by way of limitation by using the word "though". I accept the submission of the Crown that her Honour was contrasting the substantial sentences of imprisonment that were available to her Honour, as a matter of theory, with the practical limitation on cumulation that arises from s 58 of the CSP Act. 48It follows that I respectfully reject the submission of the appellant that that passage demonstrates an error of law with regard to possible commencement dates. Question of law alone established? 49Turning next to the question of whether the appellant has established that a question of law alone has been demonstrated, I accept that there is no bright line between a question of law and a question of mixed fact and law. However I consider that a question concerning the application of correct legal principle to the facts of a particular case is a question of mixed fact and law: R v PL [2009] at [26]. The application of incorrect legal principle to the facts of a particular case on the other hand could give rise to a question of law alone: R v PL [2012] at [39]. 50In my respectful opinion, the decision of David Morse (Office of State Revenue) v Chan is authority for the proposition that questions about the application of the principle of totality (correctly understood) are questions of mixed fact and law, not questions of law alone: see [26]-[30]. 51To my mind, the appeal is founded upon a critique of the way in which a sentencing magistrate applied well-established principles to the evidence that was placed before her Honour. I think that the Magistrate applied the correct law of totality (including questions of cumulation and concurrence) in general, and commencement dates in particular, to the facts of this case. Those facts included, of course, the existence of the pre-existing sentence structure. In light of my finding about the passage extracted above at [19], I do not consider that the Magistrate misstated the principles of cumulation and concurrence, or somehow misunderstood them. Nor can one infer from the fact that the new sentences commence at the end of the pre-existing overall non-parole period that some error of law has occurred. 52As for the failure to find special circumstances that would reduce the ratio between the new non-parole period and the new head sentence, again there is no misstatement of principle or statute. It is possible that the learned Magistrate simply overlooked the question; it is also possible that, in a concise extemporaneous judgment with regard to the imposition of relatively short sentences, her Honour felt no need to refer to it. Speaking more generally, it is hard to accept that it is an error of law for a sentencing magistrate or judge to fail to refer in remarks on sentence to a legal principle if that judicial officer is not taken to it in the plea in mitigation by the lawyer for the defendant. 53I accept the submission of the Crown that what really founds this appeal is not a question of law alone, but rather a question about the application of well-settled legal principles to particular facts. 54Because the appeal was founded on establishment of one or other question of law alone, it follows that on this threshold basis the appeal should be dismissed. Contingent determination - error of law leading to intervention? 55As against the possibility that I am wrong in my analysis to the effect that the appeal is not founded upon a question of law alone, I shall briefly turn to the question of whether, on the assumption that there is a question of law alone, the appellant has demonstrated an error of law that should lead me to intervene. 56As for the commencement date, it was not an error to commence the new sentences at the end of the pre-existing overall non-parole period. It is true to say that the Magistrate could have commenced the new sentences at an earlier date, thereby providing the appellant with the benefit of a degree of concurrence between the pre-existing non-parole period and the new head sentence and non-parole period. But it is well known that sentencing magistrates and judges have a broad discretion in that regard. It is also true to say that the absence of an earlier commencement date meant that every day of the new non-parole period "cut into" the pre-existing parole period, without the pre-existing overall head sentence being extended commensurately. But that is an inevitable side-effect of the limitation upon cumulation in the Local Court contained in s 58 of the CSP Act that generally markedly favours a defendant. 57I now turn to whether the failure to find special circumstances and consequently shorten the new non-parole period is an error of law. Special circumstances were not sought. If they had been sought, it is true that the Magistrate may have granted such an application, especially in light of the cumulation on the pre-existing sentence structure. But it is well known that the question of whether or not special circumstances have been established is a matter of discretion very much reposed in the sentencing magistrate or judge: see R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. It cannot be said that anything in the evidence before her Honour legally compelled a finding of special circumstances. As a result, I do not consider that it that it can be said that it was an error not to find special circumstances. 58In short, even if I am wrong in finding that there is no question of law alone that founds the appeal, I would nevertheless decline to interfere, on the basis that the appellant has not established either error of law for which he contends. 59It follows that I respectfully consider that the appeal must be dismissed. Orders 60I make the following orders: (1) Extension of time for the filing of the appeal granted. (2)Orders one to four in the amended summons of the plaintiff are dismissed. (3)Each party is to pay their own costs.