Christian v R

The Agreed Facts

1. The facts of the offending were set out in a statement of agreed facts that was tendered before the sentencing judge and described by his Honour.
2. With count 1 and 2, on 31 December 2015, the applicant drove the victim, Peter Barbara, to a caravan in Mount Druitt and, over the course of the day, demanded $3,600 from him, in company with a co‑offender. When the victim claimed he did not have the money, the applicant assaulted him with a rubber mallet. The victim suffered bruising and had difficulty in walking afterwards.
3. As noted, the Form 1 attached to count 3 included a charge of common assault. At some time towards the end of September 2016, the victim of that assault, Paul Hawkins, spent four days driving the applicant to various places. After four days without sleep he told the applicant he could no longer drive and told him to get out of the car. This started an argument, during which the applicant grabbed the victim by the jaw. A few weeks later the applicant called Hawkins demanding to be picked up. When he did not do so immediately, the applicant found him at his house and kicked the front door damaging it and a mirror. This constituted the malicious damage offence included on the Form 1 attached to count 3. The assault occasioning actual bodily harm offence which was count 3 arose out of an argument with Hawkins around December 2016 during which the applicant kicked Hawkins in the face, causing his nose to bleed.
4. The victim of count 4, the intimidate offence, owed the applicant money. She agreed to sell her car in order to repay him. On 8 December 2016, when this had not occurred, the applicant called her and verbally abused her, including saying "I want $5,000 today or you are going to be put in the boot".
5. The demand money with menaces in company that was count 5 was committed in early January 2017. Barbara was a co-offender. The victim arrived at a house in her car with another co-offender. The applicant entered the back seat of the car. Both he and the other offender in the car slapped the victim to her face and demanded money. The offender left the vehicle and told Barbara to take the victim to get money.
6. Count 6 was committed in December 2016. The applicant caused the victim to hand over the keys to her car after conveying to her father a threat to burn her car.
7. Count 7 was committed on 18 January 2017. The applicant grabbed the victim in a choke hold, saying "you fucking dog cunt. You owe us money" and demanding the victim sign over the papers for his car.
8. Count 8 was committed in late January 2017. The applicant and his co-offender assaulted the victim by punching him to the face and head, causing bleeding. The motivation for the offence was an unpaid debt of $600.
9. With count 9, in December 2016, the applicant and his co-offender were staying at a house formerly occupied by the victim. She had moved but left some possessions behind. The offender and his co-offender had been told not to enter a nursery room in her new house. The victim found some car parts inside that room and complained to the co-offender in a text message about them entering that room. The applicant and co-offender apparently took offence and came to the victim's new house. They told her to go to the garage, where the applicant told her not to disrespect his co-offender. The co-offender yelled at her "do you want me to fucking bash you right now?"
10. The intimidation offence that was included on the Form 1 involved the applicant sending a message to the victim in February 2017 about money she owed including one that read "I'm going to ask that half the bill must be sorted this afternoon or I'll be at your door come 3.00pm… I've been very patient now my patience is up".
11. The receiving offence included on the s 166 certificate related to a stolen paintball gun and equipment located by police when executing a search warrant at a house occupied by the applicant on 20 February 2017. The goods in custody offence included on a Form 1 attached to the receiving charge arose out of the police locating a stolen boat during the same search. The offence of possess identification information was the result of the execution of a search warrant at a co-offender's house on 27 February 2017 during which they found a student card in someone else's name with the applicant's photograph.
12. The fraud offence included on the Form 1 attached to the receiving charge concerned an instance of failing to pay for petrol on 21 February 2017. The driving offences included on a s 166 certificate arose from CCTV footage which captured the applicant driving on 7 January 2017 and 31 January 2017, when he was disqualified.

The Sentencing Judgment

1. Notwithstanding the conceded error in relation to the finding of special circumstances, the sentencing judgment was clear and thorough. His Honour described the offending, made the findings of objective seriousness noted above and then address the applicant's subjective circumstances. In that regard I note seven matters about that judgment.
2. First, as at the date of sentencing the applicant was 39 years of age. The sentencing judge described him as having a "lengthy criminal history dating back to 199[7]" when he was 17, and that many of the offences involved violence as well as "driving and drug matters".
3. Second, his Honour accepted a description of the applicant's background provided by a psychologist namely that he came to Australia from South Africa when he was 8 years old. At age 10 he was diagnosed with ADHD. He left school and began working when he was 15, although his work history was interrupted by his time in custody. He had children from a previous relationship with whom he is in contact. In 2010 he joined a so called "Outlaw Motorcycle Gang" but had a falling out with that group which led to him being severely assaulted in 2014 and a shooting outside his mother's home in 2017. The sentencing judge accepted that he suffered "to some extent" from post-traumatic stress disorder from these events. His Honour noted his extensive history of drug abuse.
4. Third, his Honour carefully assessed the discount to be afforded for his plea of guilty. His Honour allowed a discount of 25% for all the offences other than count 7 for which the discount was 15%.
5. Fourth, his Honour accepted that the applicant was remorseful. His Honour also addressed the applicant's prospects of rehabilitation with care. His Honour accepted as "realistic" an assessment by the psychologist that he was of "moderate to high risk" of reoffending but added that there are indications that he may rehabilitate himself "in the future and that he has a genuine desire to do so".
6. Fifth, his Honour noted the applicant had been kept in segregated custody for a "considerable number of years", that that form of detention adversely affected a prisoner's mental health and did not encourage rehabilitation but that it was to an extent his own fault because of his need to be protected from the OMCG. His Honour found that his conditions of custody were a "significant factor in relation to the sentence to be imposed".
7. Sixth, his Honour noted the necessity to consider parity between the applicant and Barbara who was his co-offender in counts 5 to 7 (as well as the victim of count 1). Barbara was sentenced on 26 March 2019 to an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years and 7 months for four principal offences which included counts 5 to 7 and a further offence of supplying a prohibited drug with various offences included on Form 1's. He had received a discount of 50% on account of his pleas of guilty and assistance.
8. Seventh, in relation to special circumstances his Honour found: "His counsel has urged that I make a finding of special circumstances and vary the statutory ratio between the head sentence and the non-parole period to allow a greater period of time for his supervision in the community. I am satisfied that should be given only if I am of the view that will more likely achieve his rehabilitation. With his background it would generally be unlikely that such a finding would be made. However, I am satisfied in view of the indications he has given to both psychologists and in his evidence that he has taken some positive and real steps towards rehabilitation that his sentence should ensure he will receive rehabilitation within the Corrective Services and the community. That is desirable for someone with his history and the problems he has to overcome including a possibility of institutionalisation if he remains in custody for a lengthy period of time. That can be addressed by a finding of special circumstances where he can receive supervision within the community for a longer period of time which is directed towards achieving success through rehabilitation which will have benefits not only to him but ultimately to the community in ensuring it is protected against someone who in the past has demonstrated a degree of considerable violence."

Error Demonstrated

1. The sole ground of appeal is that his Honour "erred by failing to give practical effect to his finding of special circumstances".
2. Subsections 44(2A) and (2B) of the Sentencing Act provide: (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
3. The applicant noted that his Honour made a finding of "special circumstances" but did not vary the ratio of the balance of term to the non-parole period above one-third. That his Honour erred in doing so follows from the observations of R A Hulme J in CM v R [2013] NSWCCA 341 at [39] to [40]: "A finding of special circumstances does not compel a variation in the non-parole period. But if no variation is made, a judge is expected to give reasons as to why the finding is not being reflected in the ultimate term: Saad v R [2007] NSWCCA 98 at [33]-[36]; Heron v R [2006] NSWCCA 215 at [31]-[32]. This Court may also intervene where the result of accumulation of multiple sentences is to remove the effect of a finding of special circumstances: Stoeski v R [2008] NSWCCA 230 at [25]; Cicekdag v R [2007] NSWCCA 218 at [47]-[49]. Where there is no adjustment of the 3:1 ratio of non-parole period to parole period in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. A recent example of the former may be found in Houri v R [2013] NSWCCA 279; see also Phipps v R [2008] NSWCCA 178; and Stoeski. Examples of both varieties of the latter can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. Appeals asserting such error are not uncommon, and as Howie AJ remarked in Maglis v R [2010] NSWCCA 247 at [24], their success will often 'depend upon what can be gleaned of the Judge's intention from the sentencing remarks'" (emphasis added)
4. In this case I have no doubt that the sentencing judge intended to give effect to his finding of special circumstances. His Honour elaborated at length on the subject of special circumstances and concluded that a period of supervision for a "longer period of time" was warranted in an endeavour to "achiev[e] success through rehabilitation". The finding of special circumstances was not confined to the effect of accumulating sentences (Sabongi v R [2015] NSWCCA 25 at [84] per Hamill J). A sentence that did not provide for any longer period of supervision than a period that was one third of the non-parole period was clearly not intended by his Honour but instead was the result of inadvertence. The Crown did not submit to the contrary.

Re- Sentencing or Correcting Error

1. The parties debated the consequences that flow from this error. In supplementary submissions the applicant contended that, as the only error that was identified concerned the setting of the non-parole period, it was not necessary for the Court to undertake an independent exercise of the sentencing discretion. Instead, it was submitted that the Court could confine itself to adjusting the non-parole period. In its supplementary submissions, the Crown contended that, even though this error concerned a discrete aspect of the sentencing discretion, because it was not limited to an arithmetic error or the like then a "full Kentwell resentencing" exercise was required to be undertaken.
2. The references to "discrete error" and "arithmetical error" reflect the discussion in a number of cases as to whether, post Kentwell, there are some errors in the sentencing exercise that do not require an independent re-exercise of the sentencing discretion. The decision closest to this case is Martin v R [2016] NSWCCA 104 ("Martin") where the sentencing judge failed to give effect to a finding of special circumstances (at [74]). In Martin, Bathurst CJ observed that it does not seem that the approach of only correcting for the identified error was applicable to "the present case where the judge erred in failing to give effect to his finding of special circumstances by appropriately adjusting the non-parole period" but noted that the position may be different "if what occurred was self-evidently a mathematical error where it could be shown there was no error in the exercise of discretion but simply a miscalculation in reaching the end result" (at [4]). R A Hulme J noted that if some errors "only affect[ed] a discrete component of the outcome" such as the commencement date of the sentence, the proportion of the sentence represented by the non-parole period or the extent of the discount for a plea of guilty or assistance to authorities then it was "illogical that the Court is nevertheless required to redetermine the sentence in its entirety" (at [96]). Hall J assumed, without deciding, that an independent exercise of the sentencing discretion was required (at [87]).
3. The issue was considered again in a judgment of 5-member bench of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 ("Lehn"). Bathurst CJ, with whom Beazley P and Schmidt J agreed, rejected the proposition that if a "discrete error" is found then the sentence "can be adjusted to take account of that error" but instead concluded that s 6(3) of the Criminal Appeal Act 1912 requires "the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence" (Lehn at [68]). However, his Honour maintained his acceptance that some errors could be addressed without requiring the re-exercise of the sentencing discretion but instead only a correction of the precise mistake (at [72]): "That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles." (emphasis added)
4. Of present relevance, is that in Lehn at [85] to [87], Bathurst CJ disagreed with the judgment of Fullerton J in O'Connell v R [2016] NSWCCA 43 (with whom Hoeben CJ at CL and Adams J agreed) in which her Honour found that a failure by a sentencing judge to give effect to a finding of special circumstances meant that it was only necessary for this Court to consider the proportion the non‑parole period bears to the total sentence (at [29] to [31]). In O'Connell, Bathurst CJ and Rothman J held that, error having been established, it was necessary to resentence the applicant (at [6], [12] per Bathurst CJ and [50] to [59] per Rothman J). In Lehn at [87], Bathurst CJ stated that the approach adopted by the majority in O'Connell was "not in accordance with the requirements of s 6(3) of the Criminal Appeal Act".
5. In Lehn, R A Hulme J referred to the query he raised in Martin to the effect that errors in the sentencing process which "clearly only affected a discrete component of the sentence" (at [122]) do not require a re-exercise of the sentencing discretion. His Honour ultimately agreed with Bathurst CJ (at [125]).
6. Recently in Zeiser v R [2020] NSWCCA 154 at [11], this Court (Payne JA, Fagan and Cavanagh JJ) construed Lehn as holding that even where a "discrete error", such as the application of a discount, has affected a sentencing purpose and has been taken up in the exercise of the sentencing discretion, then the Court cannot simply adjust for the error but must resentence in accordance with Kentwell (citing Lehn at [50], [61] and [64] per Bathurst CJ).
7. The Crown contended that the effect of Lehn and the decisions of this Court that have followed it is that it is only arithmetic or calculation errors that will not engage "full Kentwell resentencing" and that for all other errors it is required "even where the error only relates to a discrete component of the sentencing process". This overstates the position. In Lehn at [72], Bathurst CJ referred to arithmetical errors as "an example" of the type of error that need not result in a "full Kentwell resentencing". Later in Lehn (at [84]), his Honour distinguished this Court's earlier decision in Daniels v R [2016] NSWCCA 35 which found that an error in imposing a condition on the offender's release on parole did not require a "full Kentwell resentencing" on the basis "that the invalid condition [in Daniels] was something entirely discrete from the sentencing process or the exercise of the sentencing discretion". Recently this Court held that an error in the fixing of a commencement date for a sentence two weeks earlier than it should have did not engage a "full Kentwell resentencing" (Almaoiue v R [2021] NSWCCA 274 at [25]). This was more than an arithmetic error. It was instead a mistake by the sentencing judge as to when the applicant in that case was taken into custody. For my part I consider that there is a difference between an error in the sentence imposed at first instance, be it arithmetical or otherwise, which can be addressed by giving effect to the sentencing judge's clear intention when imposing the sentence and an error that can only be addressed by the appellate court making its own assessment as to how the relevant error can be addressed and the sentencing exercise completed.
8. In this case I do not accept that the error of the sentencing judge in failing to give effect to the finding of special circumstances is an error that does not require a "full Kentwell resentencing". Although his Honour provided detailed reasons for the finding of special circumstances, his Honour did not specify the non-parole period that followed from that finding and hence it is not known what was the adjustment to the ratio between the additional term and the non-parole period. The fixing of a non-parole period is an essential component of the overall sentence. In this case if his Honour intended to fix a non-parole period of 4 years 5 months being just under 55% of the total sentence then that is a very different outcome to a non-parole period that was 5 years and 8 months being just under 70% of the total sentence. In these circumstances if the Court was to only determine the non-parole period, then the resulting sentence would not be the "corrected" sentence that his Honour intended to impose but some amalgam of a sentencing exercise undertaken by two Courts at two different levels in the judicial hierarchy.
9. In reaching this conclusion I have not overlooked that, in this case, the applicant was content to have this Court only adjust the non-parole period and, in that sense, it could be said that he had confined the scope of his appeal. In Lehn (at [81]), Bathurst CJ noted the concession by counsel for the applicant in Carrol v R [2015] NSWCCA 219 that it was only necessary to address concurrence and accumulation. However, in this case the Crown did not accept that the Court could so confine itself. In any event, for the reasons just noted, the failure to properly determine the non-parole period affects the whole sentencing exercise and this Court cannot avoid applying s 6(3) of the Criminal Appeal Act even if the parties agree it could.

Re-Sentencing

1. At the hearing of the appeal, the Crown read an affidavit on the "usual basis". It attached prison records indicating that, since he was sentenced, the applicant has committed three disciplinary infringements being possession of drugs in December 2019 and two instances of damaging prison property in 2020. This material is consistent with the sentencing judge's findings. Otherwise, there was no challenge by either party to the sentencing judge's findings including his Honour's assessment of the objective seriousness of the various offences and the discounts applied on account of his pleas of guilty. I will adopt those findings and discounts.
2. Of the individual offences, I note that counts 1 and 2 occurred over a sustained period with the victim not being released until around 7pm at night and count 9 involved the intimidation of the victim in the home she occupied with her young son. Count 5 did not involve a threat of violence but to damage property. Bearing that in mind and the sentencing judge's findings, the indicative sentences I propose are as follows: Offence Finding of Objective Seriousness Indicative Sentence Count 1: Counts 1 and 2 Demand money with menaces in company (s99(2) Crimes Act 1900) Count 1: "within the mid-range" of objective seriousness 3 years 6 months Count 2: Assault occasioning actual bodily harm in company (s59(2) Crimes Act 1900) Count 2: "below the mid-range" Count 2: 2 years Count 3 Assault occasioning actual bodily harm (s59(1) Crimes Act 1900) "towards the lower end of objective seriousness" 15 months With Form 1 offences Count 4 Intimidation (s13(1) Crimes (Domestic and Personal Violence) Act 2007) "towards the low range of objective seriousness". 9 months Count 5 Demand money with menaces in company (s99(2) Crimes Act 1900) "below the mid-range of objective seriousness" 2 years 6 months Count 6 Demand money with menaces in company (s99(2) Crimes Act 1900) "just below the midrange of objective seriousness" 2 years 6 months Count 7 Demand money with menaces in company (s99(2) Crimes Act 1900) "just below the mid-range of the objective seriousness" 2 years 6 months Count 8 Assault occasioning actual bodily harm in company (s59(2) Crimes Act 1900) below the mid-range of objective seriousness 2 years Count 9 with Form 1 Aggravated (knowing person inside) enter dwelling with intent to intimidate (s111(2) Crimes Act 1900) "towards the lower end of objective seriousness" 18 months Offence on s 166 certificate Receiving stolen goods (s188 Crimes Act 1900, seq 41) "towards the lower end of objective seriousness" 3 months with Form 1 offences Section 166 Certificate Driving offences: drive whilst disqualified x 2 (s54(1) Road Transport Act) (second or subsequent offences) (seqs 25 and 38) "towards the mid-range of objective seriousness" 3 months concurrent and automatic disqualification periods

1. I note that the periods of disqualification from driving follow automatically from the operation of the relevant legislation.
2. Overall, the agreed facts reveal the applicant intimidating to the point of terrorising a group of people around him for a period of over a year to give him what he wanted when he wanted. I would impose an overall sentence of 7 years and 6 months. Adopting the finding of special circumstances made by his Honour but also bearing in mind his Honour's very qualified assessment of the applicant's prospects of rehabilitation, I would set an aggregate non-parole period of 5 years representing a ratio of the non-parole period to the overall sentence of 2/3. Bearing in mind his existing sentence, the ratio of the total minimum period that the applicant will serve in custody to the total term is just under 70%.

Orders

1. Accordingly, the orders I propose are: (1) Leave to appeal against sentence granted; (2) Appeal allowed; (3) The sentence imposed on the appellant on 26 November 2019 is set aside; (4) In lieu thereof: 1. Sentence the Appellant to an aggregate term of imprisonment of 7 years and 6 months commencing on 23 November 2017 and expiring on 22 May 2025, 2. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 5 years expiring on 22 November 2022; 3. Specify that the earliest date the applicant will be eligible to be released on parole is 22 November 2022; 4. Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are those identified in [38] of this judgment.
2. R A HULME J: I agree with the orders proposed by Beech-Jones CJ at CL. I also agree with his Honour's reasons but feel constrained to make the following observations.
3. The applicant came to this Court asking only for a reduction of the non-parole period of his sentence to correct the inadvertent mistake of the sentencing judge of failing to give effect to his finding of special circumstances. The non-parole period of 5 years proposed by the Chief Judge reflects what I consider is an appropriate response.
4. It is inconceivable that the sentencing judge's discretion to assess an aggregate sentence of 8 years would have been exercised any differently if he had properly determined the non-parole period. Neither party has suggested how it could possibly have been in any specific or practical sense.
5. The Crown submitted the overall sentencing discretion was affected by the inadvertent error in relation to the non-parole period for three reasons. With respect, I do not find them persuasive but it is unnecessary dwell upon any analysis.
6. My agreement with the reasons and orders proposed by Beech-Jones CJ at CL arises from the fact that the Chief Justice in Lehn v R (at [85]-[87]) specifically rejected an approach adopted by this Court in O'Connell v R [2016] NSWCCA 43 which was another case in which a judge had failed to give effect to a finding of special circumstances. The Court proceeded on the basis that it could confine its intervention to a reconsideration of just that issue, but Bathurst CJ held that this was "not in accordance with the requirements of s 6(3) of the Criminal Appeal Act" 1999 (NSW). The doctrine of precedent requires me to accept that this would apply to the present case, despite the foregoing observations.
7. There were references in Lehn v R (Bathurst CJ at [81] and myself at [126]) to two examples of cases in which the Court's intervention was constrained in the light of concessions made by the parties: Carroll v R [2015] NSWCCA 219 and Haines v R [2016] NSWCCA 90. In the present case, the applicant's counsel proposed in his supplementary submissions that the intervention of this Court could be confined to the reassessment of the non-parole period. It is most unfortunate that the Crown could not accept that concession and thereby confine the appeal to an uncontroversial, simple and easily rectifiable issue. It is not as if the applicant was seeking a lesser head sentence, let alone the Crown conceding that there should be.
8. In Lehn v R at [126]-[127] I wrote the following about this: "The applicant's further written submissions suggest that some errors are amenable to adjustment 'to correct the discrete error' which 'is, in effect, done with the agreement of the parties, and by convention'. Experience suggests that this does, on occasions, occur. Further, there are cases in which counsel for appellants make concessions to the effect that the Court may confine the exercise of its sentencing discretion to the subject matter of the error: Carroll v R [2015] NSWCCA 219 (which is referred to by Bathurst CJ) is one example and Haines v R [2016] NSWCCA 90 would appear to be another. Simple and readily-correctable errors can easily occur in the now (regrettably) complex environment of sentencing law and practice. One would hope that such a practical and efficient approach will be adopted in the cases where there is error of the type I raised in Martin v R."
9. Rather than promoting practical and economical appellate rectification of a conceded error, the approach of the Crown only serves to entrench complexity which, in a case such as this, has no tangible benefit.
10. DHANJI J: I have had the advantage of reading the judgment of Beech-Jones CJ at CL in draft as well as that of RA Hulme J. While I am inclined to the view that having regard to its adversarial context, the appeal could have been limited to a consideration of the non-parole period had both parties agreed to this approach, that was not the case. I would, consequently, prefer not to express a concluded view on this issue. I otherwise agree with the orders proposed by Beech-Jones CJ at CL for the reasons his Honour gives.

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: 14 December 2021