The applicant's subjective case - findings of the sentencing judge
His Honour commenced his analysis of the offender's subjective case with reference to his "serious record of offending that involved outcomes in extended periods of imprisonment for a range of criminal conduct from age 15", although observing that the common law excludes treatment of the offender's record as aggravating the offending.
His Honour observed that the applicant's criminal record was evidence of "some propensity" (presumably to commit these types of offences), and so was important in the assessment of general and specific deterrence and the applicant's prospects of rehabilitation. The applicant was 32 years old at the time of the offending and he had only been out of custody for five weeks on parole. He had been remanded in maximum security (apparently due to a 2012 escape custody) so during COVID-19 he had no access to programs. He was compliant with buprenorphine treatment in custody and hoped to continue with that program on release. He is the father of two children with whom he has little contact and has been unemployed, largely due to drug use issues, since 2005.
The principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were applied, his Honour concluding that the applicant had a profoundly disadvantaged background, and that there is a foundational relationship between that disadvantaged background and his destructive relationship with drugs. Whilst not reducing the objective criminality of the offending, his Honour found that it does have a bearing on the assessment of moral culpability, which he found to be reduced. There was confirmation in the letter of the applicant's mother, Ms Bottom, about parental neglect by the applicant's father and physical and emotional abuse of the applicant by his stepfather.
The sentencing judge accepted that the applicant was genuinely contrite and that he was reasonably insightful as to the impact of his offending. The evidence of Associate Professor Robertson as to the effect upon the applicant of having been subjected to sexual abuse whilst in juvenile detention was noted, as was the diagnosis of chronic PTSD and a persistent depressive condition. On review in 2018 by Mr Machlin for the sentencing proceedings before Wass DCJ, the presence of symptoms consistent with ADHD and substance use disorder had also been noted. There was no finding of special circumstances, although Mr Barber had submitted that special circumstances could apply given that the accumulation of sentences may lead to a need to adjust the standard ratio.
[2]
Ground 2: The sentencing judge erred in his approach to the commencement date of the sentence and in ordering the sentence to commence on 22 June 2022
It is convenient to proceed to deal with Ground 2 of the appeal first.
Section 47 of the Crimes (Sentencing Procedure) Act provides:
47 Commencement of sentence
(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.
The effect of s 47 in circumstances where revocation of parole and delay in sentencing coalesce was considered by Simpson JA in White at [118] to [122]:
"[118] By s 47(2)(b) of the Sentencing Procedure Act, a court is permitted to post-date the commencement of a sentence, but only if the sentence is to be served consecutively or partly consecutively with another sentence of imprisonment. By sub-ss (4) and (5), a sentence may not be post-dated to a date later than the earliest date on which the offender will become entitled or eligible to release on parole having regard to any other sentence of imprisonment being served.
[119] At all material times, notwithstanding the revocation of parole, the applicant was eligible to be released on parole in relation to the 2008 sentences. The sentence imposed in respect of the 2013 offences could therefore not be post-dated beyond the date on which it was imposed. That being so, the delay in sentencing extended the period of accumulation available to the sentencing judge. That is, the sentencing judge had a vastly wider range of options for the commencement date selection than would have been available to her had sentencing taken place on, or shortly after, say 4 September 2014 (or earlier). The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him.
[120] No argument in these terms was addressed to the sentencing judge. Such argument as there was (and it was limited) concerning the extent of backdating was directed to the issue considered in R v Kaiva (NSWCCA, 9 November 1998, unreported) and Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, and which was also ventilated in this application. That issue was to do with the overlap between the revocation of parole and the partial accumulation of sentence. Where, as here, parole is revoked solely because of the commission of subsequent offences, an argument is available (and frequently advanced) that the offender is doubly penalised for the subsequent offences: first, by the revocation of parole (attributable only to the commission of the subsequent offences), and second, by the imposition of a cumulative sentence. In R v Eric John Andrews (NSWCCA, 28 April 1993, unreported) Hunt CJ at CL had no difficulty in rejecting the proposition that, in those circumstances, an offender is subject to double punishment. His Honour said that the revocation is because the commission of the further offences shows that the offender is unable to adapt to normal lawful community life and is therefore no longer entitled to parole in relation to the earlier offences (although the evidence of that inability was the commission of the offences): see also, R v Brett John Kelly [2000] NSWCCA 557.
[121] In Callaghan I reviewed those decisions, and a contrary line of authority that held that to decline to backdate the sentence for the subsequent offence at least gave the appearance of double punishment: Kaiva, and see R v Kitchener [2003] NSWCCA 134.
[122] There is, in my opinion, considerable force in the argument, advanced in this Court, but not advanced before the sentencing judge, that the delay in sentencing caused the applicant to lose a significant advantage. It would have been appropriate for the sentencing judge notionally to determine at what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date. The latest such date would have been 4 September 2014, when the matter was first listed but not reached, but it would have been open to consider any date after the date of the applicant's plea of guilty."
Bathurst CJ at [6] to [8] agreed with Simpson JA, (rather than adopting the alternative construction proposed by Basten JA at [23] to [41]):
"[6] Basten JA and Simpson JA also disagree on the construction of s 47(5) of the Sentencing Procedure Act in circumstances where parole for an offence other than that for which the offender is being sentenced has been granted but the offender is in prison following revocation of that parole.
[7] Section 47 is set out in the judgment of Basten JA. Although the result may seem unusual, it seems to me that s 47(5) limits the power of the sentencing judge to post-date the commencement of the sentence, in circumstances where the offender is serving a term of imprisonment for another offence only to the date of the expiration of the non-parole period set for the latter offence. The subsection focuses on the expiration of the non-parole period set by the Court and does not distinguish between circumstances where the offender is in custody, parole not having been granted, or in custody following the grant of parole and its subsequent revocation.
[8] In those circumstances, I agree with Simpson JA that the applicant was disadvantaged in the manner suggested by her, by the delay in sentencing and that the sentencing judge erred in failing to take the delay into account."
That approach was followed in R v Gray [2018] NSWCCA 241 ("Gray"), where in the context of dismissal of a Crown appeal for manifest inadequacy, Bathurst CJ observed:
"[66] …. s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can operate somewhat randomly in cases such as the present. The effect of the section in the present case is that the sentences for the fresh offences cannot commence any later than the date of sentence. For example, in the present case, had the respondent been sentenced on the day he pleaded guilty, which was 2 May 2017, the sentences could not have been commenced any later than that day. The disadvantage to an offender to whom s 47(5) applies from a delay in sentencing is self-evident but was explained by Simpson JA in White at [122]. As her Honour pointed out in that case, it would have been appropriate for the sentencing judge to notionally determine at what point the respondent could reasonably be expected to have been sentenced, having regard to the date of his plea, and direct the sentence commence no later than that date."
It was not submitted that the conclusion reached by the majority in White was wrong, and so the approach this Court takes must be in line with that taken in White, and as applied (by the majority comprising Bathurst CJ, Hamill J relevantly agreeing, in effect, at [122]) in Gray.
The Crown conceded that the effect of s 47 is that the sentencing judge was prohibited by law from commencing the sentence on a date after 21 April 2022 because the applicant's non-parole period for the other offending had expired on 9 October 2020, and so parole having been revoked, the applicant was "still in custody under that other sentence" on 21 April 2022 and so a direction under ss 2(b) could not be made.
Counsel for the applicant, Mr Averre, submitted that this Court should select a date close to 8 February 2022 sentence hearing as the notional date on which the applicant "could reasonably be expected to have been sentenced" (to adopt the phrase used by Simpson JA in White). In exchange with the Court, he did not identify any reason of principle as to why the commencement date for sentence could not be a date closer to the 10 December 2021 sentence hearing.
Mr Averre submitted that the applicant evidenced contrition and insight. Reduction in moral culpability due to the applicant's background of profound deprivation was clearly found by the sentencing judge, based on acceptance of the matters canvased in Mr Machlin's report.
In response, the Crown submitted that there is no requirement to choose a date prior to 21 April 2022. The Court should be mindful of the fact that a long period of parole remains to be served for the earlier offending. As no challenge was made to the sentencing judge's findings, this Court must sentence consistently with those findings. Given that the applicant was on parole for extensive similar offending, specific deterrence looms large in the sentencing exercise. The applicant's risk of re-offending was determined to be medium to high (although that was not a finding specifically made by the sentencing judge but was a reference to an assessment made by a community corrections officer in a Sentencing Assessment Report). There must be a continuing question mark over his prospects of rehabilitation. In effect, the position of the Crown was that little if any adjustment should be made to the length of sentence, but it was accepted that the sentence must be adjusted to commence on a date not later than 21 April 2022.
[3]
Re-sentence
The applicant is now almost 35 years old. He has been in almost continuous custody (other than brief periods on parole) since 2007. He had a disordered and disadvantaged start to life, with an emotionally withholding father and an emotionally abusive and violent alcoholic stepfather. He ran away from home from the age of 12 to escape this situation and took apparent refuge in cannabis at 12 years of age, followed by heroin at 16, and then methamphetamine or "Ice" on an ongoing basis.
In addition to the physical and emotional abuse, he has a history of other abuse whilst in juvenile custody, Associate Professor Robertson explaining that this exacerbated his already problematic trajectory into a more severe pathway of abuse of illicit opiates, recidivist criminal offending and chronic PTSD with a concurrent persistent depressive disorder.
His conduct in custody has included drug related (or suspected drug-related) offending in 2010, 2011, 2012, 2014, 2017 and July 2019, but none in the current period of imprisonment. He has expressed a wish to Mr Machlin to utilise the buprenorphine program upon release, with a willingness to engage in drug rehabilitation programs to assist him in remaining free from illicit drugs, which he acknowledges is a significant factor in his offending.
The applicant's prospects of rehabilitation are difficult to assess but there is some faint hope, although there was no explicit finding about this in the sentencing judge's remarks. The risk of reoffending was assessed by application of a risk assessment tool by a corrective services officer to be medium/high. I have taken into account that assessment and its circumstances, and all of his Honour's findings and assessments relevant to sentence.
The early guilty plea results in a reduction of 25%. I note Mr Machlin's observation that there has been some development in genuine motivation to improve his circumstances. There is remorse and contrition.
The commencement date for the sentence imposed must take into account not only selection of a date upon which the applicant could reasonably have expected to have been sentenced, but also one that appropriately accumulates the sentence imposed on him by Wass DCJ for the earlier offending.
I bear in mind that if he had been sentenced on or shortly after the date on which he entered his plea of guilty, 23 September 2021, his sentence could not be post-dated. I agree with and adopt the approach taken by Simpson JA in White, that in circumstances where an applicant's parole was revoked solely because of the commission of these present offences, any accumulation is at least capable of giving the appearance of double punishment.
I also note that while it is appropriate that the applicant's parole was revoked, he would not have been precluded from making a further application for parole during his parole period, nor would he have had to wait for a fixed parole review date.
The applicant was ready, with counsel retained and evidence tendered to make submissions and be sentenced on 10 December 2021, other than that there was a letter from his mother, the tender of which was deferred for reasons that are not entirely clear. That letter was tendered on 8 February 2022.
I am mindful that by 8 February 2022, the applicant had served slightly over 16 months of his parole, including the 5 weeks in the community before his arrest for the current offending. It seems to me that an appropriate date for commencement of the sentence is the Monday after the sentencing hearing, 14 February 2022, and that is the date I would fix for commencement of the sentence.
As noted above at [10], the sentencing judge gave an indicative sentence for Mr Hall of 3 years with 2 years non-parole period for the same offence. They both had the same charge of attempting to dispose of stolen property listed on a Form 1. As explained, each had another charge on the Form 1, being conspiracy to commit robbery in company for the applicant, and the more serious charge of conspiracy to commit robbery armed with a dangerous weapon for Mr Hall (the conspiracy case against the applicant did not include involve him having knowledge of the gun). On the other hand, the applicant has a lengthier criminal history of such offences than Mr Hall, which emphasises the importance of specific deterrence.
In all the circumstances, an appropriate sentence, taking into account the matters on the Form 1, is 3 years, with a non-parole period of 2 years and 3 months. To be served concurrently, also commencing on 14 February 2022, is a sentence of 6 months imprisonment for driving whilst disqualified in breach of s 54(1)(a) of the Road Transport Act. A mandatory period of 12 months disqualification from driving is also imposed.
Accordingly I would propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. The sentence imposed by Craigie SC DCJ on 21 April 2022 is quashed.
4. In lieu thereof, the applicant is sentenced as follows:
1. (1) For the offence in contravention of s 112(2) of the Crimes Act, taking into account the offences on the Form 1, a period of imprisonment for 3 years commencing on 14 February 2022 and expiring on 13 February 2025 with a non-parole period of 2 years and 3 months commencing on 14 February 2022 and expiring on 13 May 2024.
2. (2) For the offence in contravention of s 54(1)(a) of the Road Transport Act, imprisonment for 6 months commencing on 14 February 2022 and expiring on 13 August 2022 together with a 12 month disqualification from driving.
3. (3) The total sentence imposed is a period of imprisonment for 3 years commencing on 14 February 2022 and expiring on 13 February 2025 with a non-parole period of 2 years and 3 months commencing on 14 February 2022 and expiring on 13 May 2024.
1. The earliest date the applicant will be eligible to be released on parole in respect of this offending is 13 May 2024.
[4]
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Decision last updated: 05 September 2023
As to ground 1:
As error was established with respect to ground 2, it was not necessary to separately evaluate and determine the parity ground, however the Court considered parity principles on re-sentence: [15] to [16]; [62].
As to ground 2:
As the applicant was serving the balance of parole for earlier offending the effect of s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that the sentencing judge was prohibited by law from commencing the sentence on a date after the date the sentence was imposed (21 April 2022) because the applicant's non-parole period for the other offending had already expired on 9 October 2020, and so parole having been revoked, the applicant was "still in custody under that other sentence" on the date of sentence: [42] to [51].
White v R [2016] NSWCCA 190; R v Gray [2018] NSWCCA 241, applied.
In re-sentencing the applicant:
In circumstances where an applicant's parole was revoked solely because of the commission of these present offences, any accumulation is at least capable of giving the appearance of double punishment: [57] to [61].
White v R [2016] NSWCCA 190, applied.
The Court quashed the sentence imposed by the District Court and imposed a sentence of 3 years with a non-parole period of 2 years and 3 months commencing on 14 February 2022, in relation to the break enter and steal (taking into account the two offences on the Form 1) with 6 months imprisonment to be served concurrently, commencing 14 February 2022 for the driving whilst disqualified offence, together with a 12 month disqualification from driving.
JUDGMENT
KIRK JA: I agree with Lonergan J.
BUTTON J: I agree with Lonergan J.
LONERGAN J: The applicant, Geoffrey Browne, seeks leave to appeal against the sentence imposed upon him in the District Court on 21 April 2022, following a plea of guilty to a charge of aggravated break, enter and commit indictable offence, contrary to s 112(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years.
Taken into account on sentence were two offences set out on a Form 1 certificate: attempt to dispose of property contrary to s 188(1) of the Crimes Act which carries a maximum penalty of 10 years imprisonment and conspiracy to commit a robbery in company contrary to s 97(1) of the Crimes Act which carries a maximum penalty of 20 years imprisonment.
The applicant pleaded guilty in the Local Court at an early stage. He was sentenced to 4 years and 3 months imprisonment with a non-parole period of 2 years and 9 months, Craigie SC DCJ having taken into account the 25% discount for his plea of guilty. The commencement date given was 22 June 2022 (effectively 2 months after the date of sentence) and so the head sentence is due to expire on 21 September 2026 and the non-parole period to expire on 21 March 2025.
The applicant was also sentenced to 6 months imprisonment to be served concurrently for a related offence of driving whilst disqualified contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW) and was disqualified from driving for 12 months.
The applicant seeks leave to appeal against the sentence imposed on the following grounds:
1. The applicant has a justifiable sense of grievance when comparing his sentenced to that imposed on the co-offender, Kayne Hall.
2. The sentencing judge erred in his approach to the commencement date of the sentence and in ordering the sentence to commence on 22 June 2022.
The applicant was sentenced at the same time as his two co-offenders, Kayne Hall and Geoffrey Sheridan. All three offenders entered guilty pleas at a relatively early stage and were given the benefit of a 25% discount. Complaint is made about the indicative sentence noted for Mr Hall in relation to the "same offences" as the applicant.
Mr Hall was sentenced to a total aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and 9 months taking into account other offending with which the applicant was not involved. The sentence was backdated to commence on 1 February 2021.
For the aggravated break and enter offence that Mr Hall committed with the applicant on 30 October 2020, the sentencing judge prescribed an indicative sentence of 3 years imprisonment with a non-parole period of 2 years, having taken into account two other offences on a Form 1 certificate. The attempt to dispose of property was the same offence as the applicant, but Mr Hall was actually charged with the aggravated version of conspiracy to commit robbery in company under s 97(2) of the Crimes Act, that is, conspiracy to commit robbery armed with a dangerous weapon. The latter portion of that offence carries a maximum penalty of 25 years imprisonment, and although dealt with on a Form 1, in the written submissions on sentence provided by both the Crown and counsel for Mr Hall, the fact that Mr Hall was charged with that aggravated offence was specifically addressed.
There were errors in the Agreed Facts tendered on sentence and, ultimately, in the sentencing judge's remarks as to the nature of the s 97(1) offence being taken into account on the Form 1 in the applicant's case. The Agreed Facts describe the applicant's sequence 5 as "conspiracy to commit Robbery armed in Company" (sic) and cites s 97(1) of the Crimes Act. In Mr Hall's case sequence 1 is (correctly) described as "Conspiracy to commit Robbery armed with a dangerous weapon", but then the wrong provision is cited: s 97(1) instead of s 97(2).
Whilst acknowledging these offences were both dealt with on Forms 1 and that the sentencing judge specifically acknowledged in his remarks on sentence that the applicant knew nothing about the firearm being planned to be used in the robbery that had been discussed, the sentencing judge, after referring to the discussions that took place between Hall and Sheridan in and around 26 October 2020 said this: "Hall asked Browne if he wished to participate in a robbery, Browne agreed. I note that it is as a consequence of his agreement to participate that Browne was also charged as having entered into the conspiracy to commit a robbery whilst armed with a dangerous weapon".
This statement by his Honour, although not raised as a separate ground in this appeal, or as a remark informing the parity ground, was obviously incorrect.
The parity ground is not without complexity given that the applicant's offending involved yet another break and enter which was in breach of parole against a background of many similar offences. Mr Hall's offending was in breach of an ICO, but also against a background of similar offences, although not as extensive a criminal record as the applicant's.
Error in the commencement date for sentence was appropriately conceded by the Crown. This amounted to "Kentwell error" and the applicant must be re-sentenced: Kentwell v R (2014) 252 CLR; [2014] HCA 37 at [44].
In those circumstances there is no need for this Court to separately evaluate and determine Ground 1 of this appeal (the parity ground), but obviously the Court will bear considerations of parity in mind on re-sentence.