BT v R

Court of Criminal Appeal (NSW)|2012-11-01|Before: Basten JA, Adams J, Hulme J, Ms J

Introduction This is an application for leave to appeal from sentences imposed on the applicant in the District Court on 5 October 2011 in respect of four offences of armed robbery contrary to s 97(1) of the Crimes Act 1900, which prescribes a maximum penalty of 20 years imprisonment. No standard non-parole period applies to this offence. In respect of each offence, the applicant was sentenced to imprisonment for two years and five months with a non-parole period of one year and three months, commencing respectively on 26 May 2012, 26 November 2012, 26 May 2013 and 26 August 2013. Accordingly the overall sentence was three years and eight months with a non-parole period of two years and six months commencing 26 May 2012. 46The applicant was sentenced on 12 August 2011 for other offences (the home invasion offences) by the same judge who sentenced him for the present offences. The sentences which are the subject of the present appeal were wholly accumulated on sentences imposed on that earlier occasion, which concerned the offence of breaking, entering and committing a serious indictable offence in circumstances of special aggravation (the brandishing of a dangerous weapon - a machete) and related firearm offences (the "home invasion offences"). Following a discount of 40% for his plea of guilty and agreement to give evidence for the prosecution at the trial of his co-offender and a finding of special circumstances, the applicant was sentenced to an aggregate term of three years and six months with a non-parole period of two years, expiring on 26 May 2012. This sentence, though relevant, is not under appeal. 47The applicant was 16 years of age when he committed the first robbery, had just turned 17 when the other three were committed and was 18 when he was sentenced. The home invasion offences were committed some weeks after the robberies, when the applicant was aged 17 years and one month. The overall effect of the accumulation was that the applicant was sentenced to imprisonment for five years and eight months with a non-parole period of four years and six months, commencing 26 May 2010.

Grounds of Appeal I. The sentencing judge erred by failing to consider, in accordance with s18(1) of the Children (Criminal Proceedings) Act 1987, whether the applicant ought to have been dealt with at law or pursuant to Division 4 of Part 3 of that Act. II. The sentencing judge erred by failing properly to exercise his discretion in relation to the extent of accumulation upon, or concurrence with, existing sentences. III. The sentencing judge erred by failing to give effect to his finding of special circumstances when accumulating the individual sentences upon each other and upon sentences the judge had previously imposed. IV. The Applicant was denied procedural fairness in that the sentencing judge failed to warn those acting for him that he proposed to impose an effective non-parole period longer than that indicated during the proceedings on sentence.

Factual background 48The facts were not in dispute and, since the grounds of appeal do not raise any question of discretionary error in respect of the culpability of the applicant, may be very briefly summarised. On 5 April 2010 in the early hours of the morning the applicant together with two co-offenders entered a service station. One of the co-offenders threatened two staff members with a replica pistol. Cigarettes and $1,200 were taken. They were driven away by another accomplice. On 17 April 2010 shortly before midnight the applicant entered a McDonalds restaurant with two co-offenders. Again, one of the offenders threatened staff with a replica pistol. The sum of $2000 was stolen and the offenders ran away. Two days later during the evening the applicant, masked, and two co-offenders entered a pizza takeaway shop as two employees were completing their work. They were threatened with the replica pistol. The offenders took $200 and fled in two cars driven by accomplices. Lastly, about three hours or so after this robbery, the same three offenders entered a service station at about midnight. Four members of staff were threatened with the replica pistol. $450 and 100 packets of cigarettes were taken and the offenders fled in waiting vehicles. The applicant, who was again masked, had not himself used the replica pistol in any of these robberies. 49The home invasion offences were committed on 27 May 2010 by six co-offenders, of which two were adults. They had met together to plan the breaking and entering offence and agreed that one of them would be armed with a shortened rifle. Shortly after midnight they went in two cars to the victims' home. The applicant sat in the back of one of the cars carrying the rifle. When the cars arrived the adults remained whilst the young men alighted and went to the house, which was occupied by a woman with four young children. After the woman denied entry to two of the young offenders, the others including the applicant gained entry by forcing the front and rear doors and demanded money and drugs. She was assaulted and threatened with the gun and a taser. A landline telephone was ripped from a wall and money probably taken from a food tin. As the offenders ran from the house, the applicant was still carrying the rifle. Police arrived at this time, one of the cars was stopped before it could be driven away. That in which the applicant was a passenger was eventually stopped after a five kilometre chase. The rifle was found by police in the boot, where the applicant had secreted it. Weighing up the range of criminal activity covered by s 112(3) of the Crimes Act 1900 and the relevant aggravating circumstances, the learned sentencing judge concluded that the serious indictable offence involved (damage to property) was "towards the bottom of the range" of seriousness. The circumstances of aggravation (being in company, knowledge of the presence of persons in the premises) were not, his Honour held, the most serious aggravating circumstances. As to the circumstance of special aggravation, here being armed with a dangerous weapon, it also was "not one of the more serious ones". His Honour observed that other aggravating features were the presence of the children and the assault of their mother in their home, the offenders being aware at least of the presence of the mother before they entered. They were motivated by the hope of financial gain. 50The judge accepted the Crown case that none of the young offenders had instigated or organised the offence, this having been done by the adults who recruited them.

Prior record 51On 14 January 2008 the applicant was convicted on two counts of armed robbery in company and placed on probation subject to supervision by the Juvenile Justice Service. On 20 May 2008 he was convicted on another offence of robbery and subjected to a community service order for 100 hours. On 10 November 2009 he was again convicted robbery in company for which he was subjected to an eight months control order from 11 October 2009, with a non-parole period of three months. The present offences were, accordingly, committed whilst he was subject to parole.

The first sentencing proceedings 52These were conducted on 11 August 2011 and sentences were imposed on 12 August 2012. They concerned only the young offenders, all of whom pleaded guilty. Tendered in the applicant's case were the report of Juvenile Justice, a psychologist's report, a letter from the applicant and a bundle of educational qualifications. For the present it should be noted that the psychologist's report dealt, as one would expect, with both the home invasion offences and the robberies. The applicant gave evidence in which he expressed remorse for the offences, his addiction to crystal amphetamine, his plans and hopes for the future and briefly touched on the circumstances of the home invasion. He also confirmed his undertaking to give evidence for the prosecution against the adult offenders involved in the home invasion offences. 53The applicant's solicitor submitted that it might be appropriate to delay imposing sentence on the applicant until the proceedings concerning the armed robbery offences had been heard. However, the judge considered (for reasons that are presently immaterial) that he should not do so. Although somewhat obliquely, it was understood that the later proceedings would be regarded as a continuation of the current proceedings to the extent that they were relevant. 54In his reasons, the judge referred in some detail to his family circumstances, course of education and drug abuse involving cannabis, alcohol, sniffing fly spray and amphetamines, accepting that he was using crystal amphetamine every second day up to his arrest, which "was clearly affecting his mental state". His Honour noted the psychometric testing that showed that the applicant's intellectual ability was in the lowest 25% of his cohort, though results were mixed and may have been affected by his use of illicit drugs. His Honour referred to "a pattern of disadvantage, depression, isolation, turning to illicit substances and then crime to support that illicit substance habit and through association with the wrong sub-cultural group". He noted the view expressed in the pre-sentence report that, despite incidents of minor misbehaviour, the applicant's "behaviour has steadily improved and he is demonstrating a good level of insight into the factors behind his offending behaviour. The judge considered that the applicant's evidence was truthful, and accepted that he was remorseful and contrite. In respect of the likelihood of rehabilitation, the judge accepted the psychologist's opinion that the applicant's drug problem gave rise to a guarded prognosis. He set out the applicant's criminal history and noted that the offences were committed whilst on parole. 55In respect of the principal offence the starting point head sentence was five years and ten months. Applying a discount of 40% for plea and assistance resulted in a head sentence of three years and six months. His Honour found special circumstances by virtue of the applicant's "need ... to have a lengthy period under the careful eye of either Juvenile Justice or the Probation and Parole Service to ensure that he stays abstinent from alcohol and drugs and does not make the wrong associations such that he might relapse into a life of crime". The non-parole period was set at one year and nine months. For the firearms offences the applicant was sentenced to a control order of three months wholly accumulated on the non-parole period. 56The judge ordered that, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the applicant should serve the entire term of his imprisonment as a juvenile offender. The reasons doing so principally concerned the applicant's education and rehabilitation, but an additional consideration was minimising the risk of retribution for his assistance.

The second sentencing proceedings 57The applicant was implicated in the robbery offences by a co-offender and, was charged on 19 October 2010 when in custody for the home invasion. He made full and frank admissions. The applicant, who was not armed, was described by the judge as "a strongly built young man and his size and stature would clearly pose a threat to most members of the public". The agreed facts stated the opinion of the investigating officers that the applicant "was impressionable, being influenced by older more experienced co-offenders". 58It is clear that the proceedings concerning the robbery offences were a continuation of the earlier proceedings, in particular in respect of the applicant's subjective case and the judge's earlier findings were adopted and applied. 59During submissions by the applicant's solicitor, the following exchange occurred - HIS HONOUR: There's a theoretical consideration. Your client's date of birth is 17 April 1993. Is that right? HANCOCK: That is right your Honour. HIS HONOUR: So he turns 21 on 17 April 2014. Is that right? HANCOCK: Yes your Honour. HIS HONOUR: So he's in juvenile custody at the current time. Want him out of custody before he turns 21? HANCOCK: Yes your Honour. HIS HONOUR: At the moment, he's due to get out when he is nineteen. Is that right? HANCOCK: That is correct your Honour, nineteen and a month and - or six weeks, yes. Your Honour did make an order, as your Honour will recall, on the previous occasion under s19 of the Children (Criminal Proceedings) Act. HIS HONOUR: Yes I did. Well, they are happy to have him there. HANCOCK: Yes, yeah, so -- HIS HONOUR: I suppose you're happy to stay there, are you [B]? SPEAKER: ... (not transcribable)... HIS HONOUR: Juvenile rather than, yeah, big house? HANCOCK: Yes your Honour. [Then moving to tender some Judicial Commission statistics and submit that the judge should apply the same subjective findings case as set out in the earlier judgment.] It is this passage which gives rise to the fourth ground of appeal.

The sentencing judge's approach 60Following a brief narration of the circumstances of the offences, the judge commenced his discussion of the relevant sentencing factors by applying R v Henry [1999] NSWCCA 111; 46 NSWLR 346 noting in particular the following matters: the offenders were young, some with extensive criminal histories; the replica pistol used was not capable of inflicting injury; planning was limited but wearing masks and changing clothing showed some; no actual violence was inflicted but there was a real implicit threat; the victims were vulnerable; the sums taken were mostly small. His Honour then described the methodology he adopted as to the offenders overall, commencing with a theoretical head sentence of four years for each offence and applying a 25% discount for early pleas, together with an additional discount for assistance which brought the discount to 40%; he then added - For each of the offenders here present there are special circumstances and where the head sentence should be three years I will fix a non-parole period of eighteen months, and where there is a 40% discount, I will fix a non-parole period of 15 months. Finally, the judge pointed out that, although some offences were committed on the same day, a partial accumulation was appropriate. 61The judge then dealt with each offender. In respect of the applicant, his Honour referred to what he had already said in connexion with the home invasion offences, including the applicant's background and personal circumstances, how he became involved in a criminal gang and his positive response to juvenile detention, concluding - [The applicant] is not eligible for release to parole for ... [the home invasion offences] until 26 May 2012. The current sentences must commence on that day. [Emphasis added.] (It is submitted - apropos the second ground of appeal - that this passage, in particular on the word "must", demonstrates that the judge laboured under the misapprehension that he was obliged, as a matter of law, to commence the sentences for the armed robberies at the expiration of those imposed for the home invasion offences.) 62The judge then increased what he described as "the basal sentence" because the applicant had committed the offences whilst on conditional liberty and concluded - [The applicant] will be in custody all told for four years and six months and ... the principle of totality and consideration of his age mean that I should not sentence him to any longer period of incarceration. [He] can serve his sentence until 17 April 2014 in juvenile detention but on that day he attains his twenty-first birthday and must serve out the balance of his sentence, which is about just over six months, in an adult correction centre. 63The overall result was that the effective non-parole period was 79% of the overall aggregate sentence. The judge did not refer to this consequence. It is this matter which enlivens the third ground of appeal.

Discussion 64I agree with Basten JA that the first ground of appeal fails for the reasons stated by his Honour. I also agree that the second ground fails, insofar as it relies on the submission, in effect, that the learned sentencing judge's reasons demonstrated that he thought he had no jurisdiction to order that the current sentences could be concurrent (partially or, indeed, wholly) concurrent with the sentences which the applicant was then serving. The use of the imperative was susceptible of ambiguity: it might have the meaning attributed to it on the applicant's behalf but it might also mean that his Honour had simply decided that, given the nature of the offences with which he was then dealing, any such concurrence was inappropriate, to which conclusion he gave emphatic expression. I agree that, of these possible interpretations, the latter is overwhelmingly the more likely in light of the elementary error which the former would have entailed. 65With respect, I am unable to agree that the third ground of appeal should be dismissed. In Hejazi v The Queen [2009] NSWCCA 282, Basten JA said at [18] that s44 of the Crimes (Sentencing Procedure) Act 1999 does not have an operation "in relation to the aggregate period of imprisonment imposed for a series of offences". His Honour referred to treating the section as if it did as maybe "an appropriate practice of relating the effective non-parole period to the aggregate term of imprisonment ... [but this] is a practice and not an application of the Sentencing Procedure Act". Howie J (with whom Hislop J agreed), though not rejecting the term "practice" said - [35] For my part I do not see any inconsistency between the practice that has been adopted in this Court in applying the statutory ratio to an aggregate or effective non-parole period and the terms of s 44. In my opinion a judge is required in a case such as the present to consider the relationship between the period to be served before parole eligibility arising from the accumulation of the two sentences and the balance of the term of the sentence for the second offence in order to ensure a sufficient period of parole supervision. [36] It may be necessary to find special circumstances and reduce the non-parole period imposed on the second offence to bring about that result ... However, the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole. 66In my respectful view, although it is true that, in terms, s 44 deals only with individual sentences, it must be the case that, where a number of accumulating sentences are imposed the question of the appropriate parole period is to be considered, not in the abstract, but by reference to the statutory calculus. Whether described as a practice or otherwise, it is no less essential to consider s 44 when sentencing for multiple offences than for one sentence. To do otherwise would have the likely consequence of rendering a finding of special circumstances wholly or partly meaningless. Indeed, even where no special circumstances were present, accumulation could well destroy the application of s 44 to the individual sentences. Section 44 embodies a legislative policy as to the relationship between a non-parole period and the additional term which can only be departed from with good reason. To increase the ratio requires special circumstances but to decrease it requires more than arithmetic. Of necessity, therefore, the ratio provided for in s 44 must be a relevant and significant consideration when dealing with the effect of accumulation. 67That a sentencing judge has considered the issue is usually apparent from his Honour's reasons. Of course, no formula is required. The giving of reasons for a departure from the statutory calculus is necessary in the interests of transparency which, in the context of the administration of criminal justice, especially when sentencing, is of supreme importance, not least as a matter of simple fairness to both the offender and the victim. The mere unqualified specification of the effect of the accumulation of sentences will not, without more, demonstrate a consideration of the relevance of s 44 to the ratio between the effective non-parole period and the balance of the aggregate term. 68The need to explain has been referred to in a number of decisions of this Court, of which it is necessary only to mention a few. Thus, in Wakefield v R [2010] NSWCCA 12, where the sentencing judge made no mention of the consequence of a partial accumulation in respect of one count where the result was to impose an effective minimum sentence of 80 percent of the aggregate sentence, Grove J (with whom Simpson and R A Hulme JJ agreed) said - [26] ... It is true that, whilst the statute requires reasons to be stated for reducing the non-parole period against the stated formulation, no such requirement has been legislated if it is increased. However it has been stated in this Court more than once that it is expected that in circumstances where there is such an increase some reasons should be provided if only to forestall a conclusion that the specification was the result of error or oversight. In R v Dunn [2007] NSWCCA 312 it was said that this was especially the case where cumulation had taken place. Other examples of intervention by this Court in similar circumstances can be found in R v Lyndon [2003] NSWCCA 152; R v Ibraham [2005] NSWCCA 43. [27] It is clear, as the Crown Prosecutor submitted, that his Honour revealed an express intention that the potential parole period would be twelve months but that expression does not overcome the silence about the proportion of a minimum custody to total term. [28] In my view, it cannot safely be concluded that the matter was not simply overlooked (and neither counsel at the hearing drew his Honour's attention to it) and this Court should intervene to the extent of applying the statutory formulation. 69Regina v LWP [2003] NSWCCA 215 is an example closer to the present case, where the sentencing judge had found special circumstances arising from the offender's age, medical condition and the circumstances of his confinement and had, in respect of a number of the individual sentences, imposed non-parole periods that were 66.66 per cent of the head sentence. However, the effect of partial accumulation was such that the effective non-parole period was about 75 per cent of the aggregate term. Spigelman CJ (with whom Bell J and Miles AJ agreed) held that the "exercise by his Honour of the sentencing discretion did not miscarry, save in carrying his intended result into effect" (ibid at [23]) and adjusted the non-parole period of one of the sentences to achieve that result. 70In R v Keen [2004] NSWCCA 86 the material facts were summarised thus by Simpson J (with whom Sully and Sperling JJ agreed) - [54] ... [The] final matter concerns the manner in which his Honour sought to give effect to his finding of special circumstances. It will be recalled that he clearly stated, on more than one occasion, that the reason for so doing was the applicant's need for supervision on his release. That is of some significance. That is because it was put to the court by the Crown that, where sentences are to be accumulated, that might of itself be a reason for a finding of special circumstances, in order to bring about a conventional ratio between the head sentence and non-parole periods. That can be so in some cases, but it is clearly not what his Honour had in mind in this case. He envisaged, as the Crown conceded during the course of argument, that the applicant would have the benefit of an extended period of parole. And yet the result did not achieve that. The sentences ultimately imposed gave the applicant a head sentence of almost six years, with a non-parole period of almost four and a half years - almost precisely the statutory proportions. This, in itself, in my opinion, demonstrates error requiring re-sentencing. 71In Flynn v R [2010] NSWCCA 171 the sentencing judge stated that he had found special circumstances but the total non-parole period was 79.9 per cent of the aggregate sentence. The Crown referred to his Honour's detailed consideration of the sentence structure and submitted that this showed that his Honour had turned his mind to the effective length of the parole period and determined that it was appropriate. Price J (with whom Allsop P and McCallum J agreed) said - [44] The Judge found special circumstances in the applicant being "a young man" who was in need of "lengthy and close supervision." When the Judge pronounced the sentences for charges 1,3,5,6 and 8, he expressly found special circumstances. It make[s] little sense that his Honour, having found special circumstances, intended to fix the balance of the term of the total sentence as being about one-quarter of the total non-parole period which is less than the statutory ratio of one-third contemplated by s 44(2) Crimes (Sentencing Procedure) Act. His Honour had a difficult sentencing task and, in my respectful opinion, his intention to reflect a finding of special circumstances by a variation of the statutory ratio was overlooked in the total sentence... 72Here, the sentencing judge found special circumstances were relevant to sentencing for the home invasion offences and adjusted the sentences accordingly. His Honour also found that special circumstances were present justifying a reduction of the non-parole periods for the sentences for the robbery offences. These were not specified in the latter judgment but, plainly enough, were the same as those found in the earlier proceedings, namely the applicant's "need ... to have a lengthy period under the careful eye of either Juvenile Justice or the Probation and Parole Service to ensure that he stays abstinent from alcohol and drugs and does not make the wrong associations such that he might relapse into a life of crime". Of course, the effect of the present sentences was that this supervision was delayed for some years. 73There can be no doubt that the relevant sentences to be taken into account when considering the appropriate application of s 44 to the relationship between the effective non-parole period and the aggregate term of imprisonment are all those that were imposed on the applicant both for the home invasion and the robbery offences. This would have been so, even if the earlier sentences had been imposed by another judge but, in the circumstances here, the sentence proceeding was in substance one, although it was temporally divided. His Honour must have known, at least, that the applicant would be sentenced to further terms of imprisonment when the proceedings were ultimately completed. Even if the "lengthy period of supervision" that his Honour had in mind was that of the one year and nine months on parole resulting from the home invasion sentences (that is to say, he did not have in mind the consequences of the impending but undetermined sentences for the robberies), it is difficult to infer that his Honour thought that one year and two months supervision fitted that description. Such a period after spending four years and six months in an institution (with the last six months in an adult prison) is clearly not "a lengthy period of supervision". 74Furthermore, I find it impossible to accept, with respect, that he did not - at the very least - intend at all times to provide for a greater period on parole than application of the statutory calculus would have permitted. Otherwise, there was no need whatever to consider whether there were special circumstances, at least when sentencing the applicant on the robbery offences. The consequence of the robbery sentences was that, despite the judge's finding there were special circumstances which justified increase of the parole period, he not only did not do so but substantially reduced it. For myself, I do not think it appropriate, with respect, to decrease the parole period which would otherwise apply in the absence of special circumstances without giving some explanation for doing so. This must be so when dealing with individual sentences; to hold that no explanation is necessary when dealing with an aggregate sentence cannot be right. With respect to those with whom I have the misfortune to disagree, there is no explanation in the sentencing judge's reasons for the outcome that the effective non-parole period constituted 79 per cent of the total term. 75With respect, I have concluded that the sentencing judge's discretion in dealing with the application of the special circumstances to the aggregate sentence miscarried. I would adjust the sentences in such a way as to apply the ratio used to set the individual sentences to the aggregate. It is implicit, of course, that in my view (considering the totality) the lesser sentence is warranted. 76I now come to the fourth ground of appeal, the factual basis for which is the exchange set out in paragraph [59] above. With respect to the views of my brethren, the focus of the interchange was not so much whether the non-parole period should expire before the applicant reached the age of 21, but whether he should serve his sentence in juvenile detention rather than adult prison. Imposing a non-parole period that expired before his 21st birthday would have had this result. The exchange with the applicant made sense only, in my respectful view, if the judge had decided that he "would stay there". Otherwise, the question was calculated to raise hopes that, on the Crown submission, he intended to dash or, at least, thought he might do so. I do not imagine for a moment that his Honour had this in mind. The other interpretation, namely that he was simply asking the applicant to make a submission or endorse his counsel's submission, is to my mind quite unreal. It is pertinent to recall that, when sentencing the applicant for the home invasion offences, the reasons for making an order that he serve the non-parole period in juvenile detention included minimising the risk of retribution for his assistance. The reason still applied as, indeed, did the others. It was scarcely surprising, therefore, that his Honour expressed himself in a way that adopted the relevance of those considerations to the second sentencing exercise. Nor was it surprising that counsel did not think it necessary to make any further submissions: it appeared that his Honour had already anticipated his submission about juvenile detention and agreed with it. 77What had changed, however, of course, was the impact of the applicant's age on the accumulated term of actual incarceration, so that an order under s 19 of the Children (Criminal Proceedings) Act 1987 could not bring about the foreshadowed result. Section 19 of the Children (Criminal Proceedings) Act 1987 provides (so far as is material) - 19 Court may direct imprisonment to be served as a juvenile offender (1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987. (1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender. (2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless: (a) in the case of a sentence for which a non-parole period has been set-the non-parole period will end within 6 months after the person has attained that age, or (b) in the case of a sentence for which a non-parole period has not been set-the term of the sentence of imprisonment will end within 6 months after the person has attained that age. ... 78The effective non-period imposed on the applicant expires on 26 November 2014, which was seven months and nine days after his 21st birthday on 17 April 2014. The judge ordered that the period up to his 21st birthday should be served as a juvenile offender and thereafter, in an adult correctional centre. Had the sentence been just five weeks shorter, the applicant would have spent the entire period in juvenile detention by virtue of s 19(2)(a). I find it difficult to accept that, had his Honour appreciated that this was the effect of the period imposed, he would have nevertheless imposed the sentence he did. Of course, it was entirely within his discretion to do so. I make this point only to demonstrate that, if his Honour, before imposing the sentence on the day after the exchange with the applicant, had indicated to counsel what he proposed to do, it cannot be doubted that counsel would have brought this matter to his attention. It is true that counsel for the applicant asked the judge to clarify the starting dates, which was done. He had not been invited to make any submission as to the sentences and their effect (and, possibly, had not worked it out, acting on the basis of what he would have understood from the previous day) but asked for clarification of the starting dates, which was done. 79Accordingly, I would allow this ground of appeal and reduce the non-parole period to expire on 17 October 2014. 80R A HULME J: I agree with the judgment of Basten JA and the orders he proposes. I wish to say more in relation to Grounds 2 and 3. 81The facts in relation to the armed robbery offences have been set out in the judgment of Basten JA. The facts concerning the armed home invasion offence as disclosed in the judge's earlier sentencing remarks reveal it as an offence of considerable seriousness. Seven offenders planned and executed the armed invasion of residential premises at St Andrews in south-west Sydney. Four of them forced entry into the home which was occupied by a woman and four young children whilst the other three waited in cars outside. There were demands for money and drugs and the woman was assaulted and threatened with a gun and a taser. The applicant was the offender with the gun; a shortened rifle. Fortunately the police intervened and effected arrests as the offenders fled, seemingly empty-handed. 82Given the seriousness of this offence, it would have been very generous (and arguably erroneous) for the judge to have ordered only partial accumulation of the armed robbery sentences upon the non-parole period for the home invasion offence. 83I initially had misgivings as to whether the sentencing judge fully appreciated the effect of the accumulation of the sentences for the armed robberies upon those his Honour had previously imposed for the armed home invasion and firearm offences. 84In sentencing the applicant for the armed home invasion and firearm offences, his Honour made a finding of special circumstances for the following reasons: There are special circumstances here. They clearly are not that this was BT's first experience of detention, but his need ... to have a lengthy period under the careful eye of either Juvenile Justice or the Probation and Parole Service to ensure that he stays abstinent from alcohol and drugs and does not make the wrong associations such that he might relapse to a life of crime. (emphasis added) 85This is relevant to the complaint now made that the degree of accumulation of the sentences for the armed robbery offences overwhelmed the finding of special circumstances. The potential parole period under the existing sentence of 1 year 9 months had become one of 1 year 2 months after the armed robbery sentences were imposed, yet the judge had previously recognised that there was a need for "a lengthy period" of parole supervision. 86It is well established that the accumulation of sentences, either upon sentences imposed on the same occasion, or upon existing sentences, may be a basis for finding special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in respect of the final sentence to be served. The purpose for doing so may be to provide an appropriate proportion between the parole period and the total of the minimum period of custody imposed. See, for example, R v Moffitt (1990) 20 NSWLR 114 at 136D, per Badgery-Parker J; R v Simpson (1992) 61 A Crim R 58 at 61, per Hunt CJ at CL; Hejazi v R [2009] NSWCCA 282 at [16] - [21], per Basten JA, and [34] - [38], per Howie J; and Russell v R [2010] NSWCCA 248 at [41] - [46], per Price J. A sentencing judge is not, however, required to make such an adjustment. 87As I observed in Caristo v R [2011] NSWCCA 7 (with the concurrence of Giles JA and Adams J): [36] Where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Often this has occurred where sentences have been accumulated but it has occurred in single sentencing exercises as well. 88When his Honour imposed sentence for the armed home invasion and firearm offences, he was aware that the applicant was awaiting sentence for the armed robberies, but he had not heard any evidence or submissions concerning them. When those proceedings came before him some two months later, the overall picture would have been somewhat different. It became necessary to recognise by way of further sentence the applicant's involvement in four offences of significant seriousness. It was also necessary to provide for a reduction of those sentences on account of the applicant's pleas of guilty and assistance. Absent the latter necessity, there would have been greater scope to provide for a longer period of parole. 89Upon a closer analysis of what the judge said in the present case I am satisfied that he did in fact appreciate and intend the overall effect of the sentences he imposed. His Honour specifically adverted to the cumulative effect of the sentences he was imposing for the armed robbery offences, both as to non-parole periods and parole period. He also adverted to the cumulative effect of those sentences and the existing sentences being such that the applicant would "be in custody all told for four years and six months" and that this would involve serving a little over six months in an adult correctional centre. Finally, his Honour was obviously aware that the potential period for parole in relation to the last of the sentences to be served was one of one year and two months. 90It is of concern that after a significant period of custody the applicant will have a potential period of only 14 months on parole. However, and notwithstanding the many subjective matters available in mitigation, it was well open to the sentencing judge to regard 4 years 6 months as the least amount of time which justice requires the applicant to serve in custody: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 at 367; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 531; and Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520 at [40].

Amendments 15 March 2013 - Deleting paragraph numbering for [46] and consequential renumbering of paragraphs and amending typographical errors. Amended paragraphs: 45/46, 47, 48, 49, 53, 60, 62, 65, 68, 70, 76 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2013

Judgment on sentencing 8The sentencing judge said of the applicant (p 8): "[BT] was arrested on 19 October 2010. He made full and frank admissions as to his role in four of the armed robberies. [BT] told police at the time he committed these offences he was under the influence of crystal methylamphetamine, known as 'ice'. The police accept that at no time was [BT] the user of the replica pistol. However, [BT] is a strongly built young man and his size and stature would clearly pose a threat to most members of the public, but probably not to members of a rugby scrum." 9In thorough and well-organized reasons, the judge then referred to the sentencing guidelines established with respect to armed robbery in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, which he held to be broadly applicable to the present circumstances. After considering how the characteristics were to operate in the present circumstances, he indicated the broad approach to be adopted in the following terms: "For each basic offence, I will commence with a theoretical head sentence of four years. Because it is accepted that each of the offenders pleaded guilty at the earliest available opportunity, with a 25% discount for the utilitarian value of the early plea, the theoretical head sentence reduces to three years. Two of the offenders are entitled to a greater discount, and that greater discount is 40%. With a 40% discount the head sentence reduces to two years and five months. For each of the offenders here present, there are special circumstances and where the head sentence should be three years I will fix a non-parole period of 18 months, and where there is a 40% discount, I will fix a non-parole period of 15 months. Some partial accumulation is clearly called for, even when three offences occurred on the one evening. That is because of three separate crimes and, in particular, three separate set[s] of victims." 10The sentencing judge then dealt with each offender in turn. In the case of the applicant, he applied the greater discount of 40%, including discounts for an early plea and for assistance. As there is no challenge to the individual sentences, it is not necessary to deal in detail with the circumstances. However, the sentencing judge noted that he had sentenced the applicant on a prior occasion for his role in an armed home invasion and a related firearms offence, in respect of which he became eligible for release on parole on 26 May 2012. He stated that "[t]he current sentences must commence on that day": p 19. (An issue arises on the appeal as to what was meant by that statement.) 11Imposing non-parole periods in respect of each sentence of 15 months, the commencement dates of the second and third sentences were accumulated by six months on the prior sentence and the commencement date of the fourth sentence was accumulated by three months on the third. The result was a minimum custodial period attributable to the four armed robberies of two years and six months, with an additional term of one year and two months, making, as his Honour explained, a total sentence of three years and eight months. The reasons continued: "I should increase the basal sentence because [BT] committed these offences whilst at conditional liberty. However, he will be in custody all told for four years and six months, and, again, the principle of totality and consideration of his age mean that I should not sentence him to any longer period of incarceration. [BT] can serve his sentence until 17 April 2014 in juvenile detention but on that day he attains his 21st birthday and must serve out the balance of his sentence, which is about just over six months, in an adult correctional centre." 12As Adams J explains, had the non-parole period been due to expire within six months of his 21st birthday, the applicant would have been eligible to serve the whole period in a juvenile detention centre: Children (Criminal Proceedings) Act, s 19(2)(a). The last sentence in the passage set out above indicates that the sentencing judge was fully conscious of the effect of the sentence he was imposing. Having stated the sentences he intended to impose in each case, the judge then asked (p 31): "Does anyone want any reason for sentence, as distinct from sentences themselves?" 13In response, one legal representative asked that a declaration be made under s 19 of the Children (Criminal Proceedings) Act, to which the sentencing judge responded that he intended to take that course. He then proceeded to impose the sentences: with respect to the applicant, see pp 36-37. He noted that the final non-parole period was due to expire on 25 November 2014 and that the applicant was to be released to parole at the expiration of that period. In conclusion he declared: "Pursuant to the Children (Criminal Proceedings) Act 1987, s 19, I order that you serve your term of imprisonment until obtaining your 21st birthday as a juvenile offender and thereafter in an adult correctional centre. On your release to parole, you will be under the supervision of the Community Offenders Services."

(a) discretion in sentencing young person 15Part 2 of the Children (Criminal Proceedings) Act deals with criminal proceedings generally and, in particular, sentencing for indictable offences. Part 3 of the Act deals with criminal proceedings in the Children's Court and provides a sentencing regime separate from that applicable under the general law. 16Part 2, Division 4, applies to a person who has pleaded guilty to an indictable offence in a court other than the Children's Court, who was under 18 years of age when the offence was committed and under 21 years of age when charged with the offence: s 16. Where the offence is a "serious children's indictable offence" it must be dealt with according to law: s 17. In respect of other indictable offences, s 18 operates and is in the following terms: "18 Other indictable offences (1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children's indictable offence, be dealt with: (a) according to law, or (b) in accordance with Division 4 of Part 3. (1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters: (a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant. (2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children's Court under that Division in the same way as if: (a) the court were the Children's Court, and (b) the offence were an offence to which that Division applies. (3) If a court, in exercising the functions of the Children's Court under subsection (2), makes an order under section 33 that provides for a person to enter into a good behaviour bond or that releases a person on probation, the court may, on referral from the Children's Court under section 40 (1A), deal with the order in the same way as the Children's Court may deal with it under section 40." 17The applicant, having been born on 17 April 1993, was under 18 years of age when all the offences were committed. He was also under 21 years of age when charged and, indeed, when sentenced. In those circumstances, counsel submitted that the sentencing judge was obliged to consider whether to sentence him according to law or in accordance with Pt 3, Division 4, and did not do so. 18Each of sub-ss (1), (1A) and (2) speaks in mandatory terms. However, none expressly imposes an obligation to consider and determine which course to adopt. On the other hand, where there is a choice conferred by sub-s (1) and a list of mandatory considerations in sub-s (1A), it may properly be inferred that the court is obliged to make a determination as to which way to proceed and to have regard to the specified matters in so doing. 19The applicant submitted that the failure of the judge to consider the alternative approaches meant that the proceedings "miscarried". This conclusion was said to flow from the reasoning in CTM v R [2007] NSWCCA 131; 171 A Crim R 371 at [153]-[156]. It is true that Howie J in CTM noted a failure to comply with the Children (Criminal Proceedings) Act and concluded that the sentence imposed was "invalid": at [153]. However the non-compliance was with the provision requiring a "background report" prior to sentencing a young person to a term of imprisonment. The provision stated in terms that a court "shall not sentence" a person to a term of imprisonment absent such a report: s 25(2). Section 18 differs from s 25 in its form, content and purpose. 20In CTM, authority for the proposition that the sentence was "invalid" was found in Regina v CVH [2003] NSWCCA 237. That case involved a breach of s 25, in circumstances where a report had been obtained but manifested a failure to comply strictly with the requirements of the regulation governing its preparation. Dowd J noted that the section was in mandatory terms and that the sentencing judge "erred in failing to comply with s 25 of the Act": at [18]. In these circumstances, it seems likely that the term "invalid" was used in CTM to identify a sentencing exercise not carried out in accordance with the law and thus warranting a grant of leave to appeal and, if thought appropriate, resentencing. 21The fact that the applicant was sentenced according to law demonstrates that a choice was made. It might be possible to infer in some circumstances that a judge had been unaware of, or had not adverted to, the need to make a choice, or had thought that such a choice was simply unavailable: such a conclusion might involve a true failure to exercise an available power in circumstances where there was an obligation to make the choice. However, where the operation of the Children (Criminal Proceedings) Act was very much in the Court's mind, and in circumstances where it was common ground that it applied to the particular offender, the more plausible explanation (which should be accepted) was that the sentencing judge failed to advert to s 18 because he did not think there was, in any practical sense, an issue to be resolved. In the course of submissions, counsel for the applicant conceded that, had the judge turned his mind to s 18, it was almost inevitable that he would have sentenced according to law. Counsel also conceded that the judge was not asked to consider the operation of s 18, nor was his attention directed to the factors identified for consideration: CCA Tcpt, p 5(35)-(43). On the previous occasion on which a sentence had been imposed, the applicant had been sentenced for a serious children's indictable offence, in respect of which no choice was available. 22While it may be accepted that the sentencing judge did not in terms refer to s 18 or its considerations, he did identify armed robbery as a "serious criminal offence", noted the maximum penalty of 20 years imprisonment, further described it as not solely concerned with property but involving "a crime of violence" and noted that it tended to create "an atmosphere of fear and a perception of lawlessness in the community at large". He concluded (p 1): "Full time custody for offences of this type is almost inevitable, even if there is only one offence." 23That statement included an express rejection of the availability of any lesser form of sentence, which would have included forms of sentence available under Pt 3, Div 4. The nature of the indictable offence concerned was a mandatory consideration under s 18(1A)(b); in the absence of any submission that other factors militated in favour of a different view, it cannot be said that the sentencing process miscarried. Ground 1 must be rejected.

(c) extent of accumulation and special circumstances 27The challenge raised by ground 3 was, in effect, that the sentencing judge had allowed the degree of accumulation to overwhelm the effect of a finding of "special circumstances", so as to subvert the intended adjustment to the "statutory ratio". 28This submission flirted with fallacy. It may be accepted that the reference to the "statutory ratio" was intended as a paraphrase of the requirement that the balance of the term of a sentence not exceed one-third of the non-parole period absent a finding of special circumstances: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). However, that provision applies to individual sentences; it does not apply, in terms, to an aggregation of several sentences. What is sometimes assumed is that in making a finding of special circumstances, where several sentences are to be imposed, the sentencing judge is indicating an intention as to the appropriate ratio between the aggregation of the non-parole periods and the balance of term last expiring. In some cases the reasoning of the court may demonstrate such an intention; in other cases, the sentencing judge may have looked to the actual period which may be expected to be served by way of parole and found that to be an appropriate period of supervision. There is nothing irrational in considering 14 months an appropriate period of supervision, regardless of the precise ratio that period may bear to the minimum term of mandatory custody. 29The potential uncertainty of intention in such circumstances may be avoided (since 14 March 2011) by imposing an aggregate sentence of imprisonment with one non-parole period and a balance which may exceed the one-third ratio where there is a finding of special circumstances. If a judge imposing an aggregate sentence failed to provide for a balance of term exceeding the specified ratio, it might well be thought that the sentencing exercise had miscarried. However, in this case his Honour did not adopt the option of imposing an aggregate sentence, nor was there any clear indication that he thought it necessary to maintain any particular ratio between the balance of term last expiring and the total period of mandatory custody for the various offences. 30In specifying the sentences to be imposed, the sentencing judge expressly noted, prior to the passage set out at [11] above, that the "total non-parole period will effectively be two years and six months with an additional term of one year and two months". It would have been manifest, without the use of a calculator, that the additional term was only marginally less than 50% of the effective non-parole period and thus significantly exceeded the "statutory ratio". 31In discussing R v Sutton [2004] NSWCCA 225, in which this Court intervened to increase the discrepancy between the ratio which would have applied absent a finding of special circumstances and the terms of imprisonment actually imposed, R A Hulme J (Giles JA and Adams J agreeing) stated in Caristo v R [2011] NSWCCA 7 at [35]: "The important distinction, however, is that it is not apparent in Sutton that the sentencing judge said anything to indicate that he realised that the extent by which the non-parole period represented a departure from the statutory norm was as short as it was. In other words, it may well have been inadvertence or miscalculation that led to a non-parole period that was more than was intended by the finding of special circumstances. In the present case, the length of the non-parole period was precisely what the judge intended." 32In the present case, the same conclusion follows. It is made manifest by the fact that, after calculating the relevant overall sentence, the trial judge adverted to the fact that the applicant would be in custody "all told for four years and six months", which provided a reason for not increasing the basal sentence to reflect the fact that these offences were committed whilst the applicant was at large but subject to conditional liberty. 33The submissions for the applicant focused upon the likely period of parole as a proportion of the "total effective term, including the earlier sentences". That was a calculation the sentencing judge could have considered, but did not. He was not required to take that approach. There was, therefore, no error in his failure to take that calculation into account. Indeed, although inviting comment on his reasons prior to imposing the proposed sentences, no complaint was raised in this regard. 34In all these circumstances, this ground must be rejected.

(d) procedural unfairness 35The fourth ground of appeal asserted procedural unfairness in failing to warn the applicant's counsel that a longer custodial period was intended "than that indicated during the proceedings on sentence". 36The 'indication' relied on occurred during submissions made on 4 October 2011, when Mr Hancock was appearing for the applicant. He accepted that there might well be a degree of accumulation and was at pains to ensure that the applicant received an ongoing benefit (as he had with respect to the earlier sentences) to reflect his continuing promise of assistance in the prosecution of other offenders. (That submission was undoubtedly accepted, as he was accorded a 40% discount for plea and assistance.) The critical passage in the exchange then occurred (Tcpt, pp 42-43): "HIS HONOUR: Well at the moment, he is - the non-parole period expires on 26 May. HANCOCK: That's right your Honour, yes, next year. So it's a matter for your Honour, I suppose, to consider the questions of totality and of accumulation and concurrence with respect to each of the offences that fall for sentence today, but in my submission, it would still fall within your Honour's discretion to consider the question of to what degree any concurrence or cumulation attaches to the original sentence or the sentence already passed because in the end, your Honour would be looking at a series of accumulated sentences and your Honour would be entitled to take all into consideration in determining whether the overall sentence reflected the overall criminality in this particular case. HIS HONOUR: There's a theoretical consideration. Your client's date of birth is 17 April 1993. Is that right? HANCOCK: That is right your Honour. HIS HONOUR: So he turns twenty one on 17 April 2014. Is that right? HANCOCK: Yes your Honour. HIS HONOUR: So he's in juvenile custody at the current time. Want him out of custody before he turns 21. HANCOCK: Yes your Honour. HIS HONOUR: At the moment, he's due to get out when he is 19. Is that right? HANCOCK: That is correct your Honour, 19 and a month and - or six weeks, yes. Your Honour did make an order, as your Honour will recall, on the previous occasion under s 19 of the Children's Criminal Proceedings Act. HIS HONOUR: Yes I did. Well they are happy to have him there. HANCOCK: Yes, yeah, so - HIS HONOUR: I suppose you're happy to stay there, are you [B]? ... HIS HONOUR: Juvenile rather than, yeah, big house? HANCOCK: Yes, your Honour." 37The submission appears to read the words "want him out of custody before he turns 21" as a statement of intention on the part of the Court, rather than a summary of an anticipated submission. Counsel's response is consistent with it being the latter rather than the former. The exchange took place in a context where the sentencing judge was considering the applicant's then custodial situation; the focus of the discussion then turned to whether there should be a direction that he remain in a juvenile detention centre until he turned 21. That was the substance of counsel's submission and the basis of the judge's question to the applicant himself. 38If the applicant were to continue to serve a sentence as a juvenile offender beyond his 18th birthday, which was the result of existing sentences, a further declaration would be required if further sentences were to extend the term. The fact that his Honour was contemplating such a declaration indicated that he was contemplating such a sentence. 39Not only did the sentencing judge not indicate or imply that he did not intend to sentence the applicant to a term of mandatory custody extending beyond his 21st birthday plus six months, but when he outlined the proposed sentences in the course of giving judgment on the following day, in the presence of Mr Hancock still appearing for the applicant, no objection was taken, although Mr Hancock did later seek to confirm his understanding of the starting dates for the sentences: Judgment, p 40. The judge clearly had the terms of s 19(2)(a) in mind, as noted at [12] above. 40Where a court or tribunal states that it has before it material which in fact it does not have, or otherwise misleads a party as to the course it proposes to take, there may well be a degree of discouragement to the party concerned, either to provide additional material or to make submissions on a particular issue: see, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. The circumstances in Parker were identified by Kirby P in the following terms at 284: "This summons raises for consideration a complaint of a breach of the rules of procedural fairness in the way in which a judge of the District Court (McDevitt DCJ) disposed of an appeal to that Court from a conviction and sentence entered against the appellant in the Local Court. His Honour increased the appellant's sentence. He substituted a custodial for a non-custodial penalty. The complaint is that he did so upon the basis of facts which were not part of the prosecution case and were not clearly put to the accused in evidence. It is also complained that his Honour failed entirely (or failed adequately) to signal to the accused that he was contemplating a custodial sentence, so that the accused might consider making an application to withdraw his appeal." 41In imposing sentence on Mr Parker, the judge had considered himself bound by two decisions of this Court which required him to impose a custodial term: at 288G. Although the cases were distinguishable, he did not explicitly disclose his intention to rely upon them which, had it been disclosed, would have revealed an intention to impose a custodial sentence in place of the non-custodial sentence: at 293D-G. After a careful analysis of what was said and not said in the Court below, Kirby P (Handley and Sheller JJA agreeing) upheld the complaint of procedural unfairness. However, the facts were significantly different from those in the present case. First, the entitlement of an appellant to withdraw an appeal in circumstances where the court is considering increasing the sentence is not engaged in the present case: cf Neal v The Queen [1982] HCA 55; 149 CLR 305. Secondly, no one was in doubt in this case but that a custodial sentence would be imposed; the only question was as to its length. Thirdly, there was no firm indication (or, arguably, any indication at all) that the sentencing judge intended to impose a custodial term not extending beyond the applicant's 21st birthday and six months. At no point before the exchange set out above, did counsel for the applicant make any submissions in that respect. Nor could it be said that the extension of an existing term by two years or slightly more was not to be expected in respect of four armed robberies. Finally, if counsel had been in any doubt as to what was being implied by the critical statement now relied upon, that could readily have been clarified at the time. 42In the course of oral argument before this Court, some emphasis was placed on the exchange (not fully recorded) between the Court and the applicant personally. It was, however, an entirely appropriate exchange, allowing the Court to be satisfied that the applicant did indeed wish to remain in a juvenile institution, so long as the law allowed. The inquiry only had meaning in relation to the period up to the applicant's 21st birthday plus six months. That date imposed a limitation on the period the applicant could spend in a juvenile institution, to which his preference was relevant. The inquiry could not be reasonably be understood as a statement that no longer sentence was to be imposed. 43There is no substance in this ground of appeal.

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