BT v R

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