[1936] HCA 40
Hughes v R [2018] NSWCCA 2
KT v R (2008) 182 A Crim R 571
[2008] NSWCCA 51
Lowe v The Queen (1984) 154 CLR 606
Source
Original judgment source is linked above.
Catchwords
Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Hughes v R [2018] NSWCCA 2
KT v R (2008) 182 A Crim R 571[2008] NSWCCA 51
Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
MD v R [2015] NSWCCA 37
Norouzi v R [2020] NSWCCA 237
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26
R v Hammoud (2000) 118 A Crim R 66[2000] NSWCCA 540
R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111Sefian v R [2018] NSWCCA 194
Tammer-Spence v R [2021] NSWCCA 90
Vale v R (2016) 77 MVR 194[2016] NSWCCA 154
Vuni v R [2006] NSWCCA 171
Wong v The Queen (2001) 207 CLR 584
Judgment (3 paragraphs)
[1]
THE APPLICANT'S SUBMISSIONS
In summary, the applicant advanced the following submissions:
1. In written submissions, it was contended that there is no House v King error. Rather, the sentence was unreasonable and unjust as a result of the ratio the non-parole period bears to the aggregate sentence imposed which in combination result in a manifestly excessive sentence (reference was also made to the starting date of the sentence but this was not pressed in oral submissions).
2. This results from the applicant serving a 6 month sentence for the revocation of the ICO, before then servicing a 1 month sentence for the revocation of the 2018 CCO, to which is added 42 months non-parole period for the offences. The overall period of incarceration was 49 months which will have the applicant in custody until 22 years of age.
3. Both the applicant and the Crown accepted in the sentencing proceeding that some accumulation was warranted. In the applicant's case, there was a recognition that accumulation was required to recognise "two separate aspects of the offending on the particular night" and to take into account that he has served a period of time for the intensive correction order that was revoked".
4. The sentencing judge said nothing about the totality of the sentence concerning the sentence for the breach of ICO and referred to the "totality of the sentences for the breach of bond offence and the indicated sentences".
5. The aggregate sentence of 5 years' imprisonment is not asserted to be manifestly excessive.
6. The sentencing judge does not appear to have taken into account the fact of this additional 6 months accumulation in his consideration of an adjustment of the ratio of the non-parole period to the aggregate sentence. It was submitted that an ICO is a special species of punishment where the "s 5 threshold" has been crossed. Even though it was revoked, this is not a case where there is a "twelve months sentence with a non-parole period specified which gives you some guidance in relation to the non-parole period applied to that offending".
7. His Honour found the applicant would benefit from an extended period of supervision in the community to best address his substance issues whilst also taking into account his age. As such, his Honour adjusted the effective non-parole period to reflect what he said was 71.6% of the sentence.
8. In fact, the adjustment to the aggregate sentence was such that the aggregate non-parole period was 70% of the aggregate sentence. If one were to add on the 1 month which the applicant was to serve for the breach of bond sentence it is just under 71%.
9. The sentencing judge articulated his reasons as to why the adjustment (in relation to the aggregate sentence) was so modest but this did not include the accumulation on the sentence being served by the applicant at the time of sentencing. There was a recognition by the sentencing judge of the need for rehabilitation and for ongoing support which did not materialise because of the structure of the sentence.
10. The benefit of that finding was lost since there is 6 months custody prior to the commencement of the sentences imposed by the sentencing judge.
11. Overall, the sentencing judge did not give sufficient effect to the finding of special circumstances. Reliance was placed, in that respect, upon AM v R [2020] NSWCCA 101 ("AM") at [26] and [27] (per Hidden AJ, with whom R A Hulme and Fagan JJ agreed).
Thus, the Court may intervene when the result of the accumulation of multiple sentences is to remove the effect of a finding of special circumstances.
In this case, the accumulation of the sentences resulted in the loss of the benefit of the already limited adjustment of the non-parole period from special circumstances. The ratio of the effective non-parole period for all of the offending is around 73%.
Further, the period of parole eligibility was not substantial and no explanation for the modest special circumstances was, in fact, given in this case: see Sefian v R [2018] NSWCCA 194 at [78].
The applicant submitted that the offences occurred shortly after reaching 18 years of age. Overall, the sentence was substantial. A large period of supervision was warranted because of the age of the offender, and having regard to findings as to the prospects of rehabilitation and remorse.
[2]
CONSIDERATION
The contentions by the applicant compel attention to the principles applicable to the determination of a manifest excess ground, which principles were recently set out in this Court's judgment in Norouzi v R [2020] NSWCCA 237 at [46]-[49].
By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly excessive, the applicant must be taken as asserting the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25] (per Gleeson CJ, Gummow, Hayne and Callinan JJ); Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 ("Obeid") at [443] (per R A Hulme J, with whom Bathurst CJ, Leeming JA and Hamill J agreed). This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Markarian at [27]; Vuni v R [2006] NSWCCA 171 ("Vuni") at [33] (per Hoeben J (as his Honour then was), with Tobias JA and James J agreeing); Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman and R A Hulme JJ agreed). It is not to the point that the Court might have exercised the sentencing discretion differently: Obeid at [443].
Intervention is not warranted simply because the sentence is "markedly different" from other sentences that had been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 ("Wong") at [58]; Obeid at [443]. Rather, there must be some misapplication of principle, even though when and how is not apparent from the reasons given in the impugned judgment: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong at [58].
The applicant eschewed any reliance upon any "specific" error although the nature of the challenge brought on the appeal requires further analysis as I will discuss below.
Nor was there any challenge made to the aggregate sentence imposed for the offences or the sentences imposed upon the revocation of the 2018 CCO or ICO and the resultant accumulation of sentences as such.
Nonetheless, the contentions as to why the sentence imposed upon the applicant was manifestly excessive were predicated squarely upon the structure of the sentencing resulting in a ratio of the "non-parole period to the aggregate sentence imposed" being insufficient. Thus, it was contended that the accumulation of sentences produced a non-parole period which was manifestly excessive, because the sentencing judge had given little or no consideration of the 6 month accumulation for the ICO and had removed the effect of a finding of special circumstances as a result of accumulation, relying in that respect upon AM. Further, the sentencing judge was said to have not articulated reasons as to why the special circumstances ratio under that structure was so modest.
There are aspects of the applicant's submission which are suggestive of appeals which, in substance, were based upon patent error. For example, the applicant relied upon AM for the principle that the Court may intervene when the result of accumulation of multiple sentences is such as to remove the effect of a finding of special circumstances (at [26]). However, the component of that judgment in which that principle was considered was solely concerned with the determination of a ground of appeal asserting a specific error, namely, that the sentencing judge had "failed sufficiently to vary the statutory ratio to give effect to his finding of special circumstances" (at [22]). In AM, the Court found it unnecessary to consider the second ground concerning manifest excess (at [30]).
Similarly, CM v R [2013] NSWCCA 341 ("CM") at [34]-[40], cited in AM as a foundation for the principle that appellate intervention may be warranted where there is demonstration of a failure to give effect to a finding of special circumstances, concerned a passage of the judgment in CM dealing with a ground of appeal which was stated thus: "the sentencing judge failed to give practical effect to a finding of special circumstances". That ground was upheld in the appeal but the two grounds concerning manifest excess in that appeal were rejected by the Court (ground 1 concerning the application of a discount upheld in the course of considering a manifest excess ground): see CM at [10], [28], [38], [42] and [48].
It is appropriate, in that respect, to reemphasise one of the principles mentioned above as to the manifest excess ground of appeal. In an appeal relying upon the (singular) ground of manifest excess, appellate intervention will not be justified simply because the result arrived at in the Court below is markedly different from sentences imposed in other cases and, thus, intervention was only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error: Hughes v R [2018] NSWCCA 2 at [86] (per Payne JA, with whom R A Hulme and Garling JJ agreed).
As a general proposition, if the applicant intended to pursue his application for leave to appeal in the fashion I have described, it would have been desirable to bring a ground of appeal directed to a specific error; whether directed to a ground that the Court below failed to give effect to a finding of special circumstances or a ground that the reduction in the statutory ratio was insufficient having regard to a finding of special circumstances. I will approach the resolution of the issues raised on this appeal firstly through the prism of the specific errors asserted by the applicant in the context of the manifest excess ground. Logically, given the way the applicant presented his argument, that will require a closer examination of the structure of the sentences adopted by the sentencing judge including the accumulation adopted before turning to the particular issues raised as to special circumstances. I will then return to the question of whether the sentence imposed was manifestly excessive.
There was no complaint by the applicant about accumulation resulting from the sentence imposed as a result of the revocation of the ICO as such, but the accumulation from that source was the fulcrum for the complaint made by the applicant about the ratio of the total non-parole period to the overall sentence (resulting in a ratio of 73% overall). The starting point for the consideration of the applicant's overall submissions as to the ground of appeal should then be to consider the appropriateness of the accumulation as a result of the revocation of the ICO. My conclusion is that the accumulation, in that respect, was appropriate. My reasons for that conclusion may be briefly stated.
Although his Honour did not expressly refer in his reasons on sentence to the partial accumulation of the sentence by 6 months upon the sentence imposed following the revocation of the ICO, it is apparent from the structure of the sentence (which commenced on 10 November 2019) that his Honour had determined that this consideration was appropriate to take into account in the application of principles of totality.
The submissions of the parties in the sentencing proceeding made plain that some accumulation for the revocation of the ICO was appropriate. Counsel for the applicant sought that the sentencing judge take into account the period served on the ICO and the commencement date of the ICO, being 10 April 2018. His Honour expressly had regard to those considerations in sentencing and, broadly, gave effect to the contentions advanced by counsel for the applicant as to sentencing (and accumulation) arising out of the revocation of the ICO.
It was well within his Honour's discretion to accumulate the sentence in the manner his Honour did. In R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, Justice Simpson observed that (at [7]):
[7] …Whether or not to accumulate sentences in relation to multiple offences, is in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way)…
Similarly, in Majzoub v Regina [2019] NSWCCA 94 at [20]-[21], Hidden AJ (with Hoeben CJ at CL and Garling J agreeing), in relation to the sentence under consideration in that case, said:
[20] Her Honour gave careful consideration to the issue of accumulation or concurrence, with an eye to the principle of totality. That principle was examined by Davies J (with whom Hoeben CJ at CL and Beech-Jones J agreed) in Pannowitz v R [2016] NSWCCA 13 at [40]:
"As the Applicant acknowledged the matter of the extent of accumulation is a matter of judicial discretion made in accordance with established principle: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]. In Regina v XX [2009] NSWCCA 115 Hall J (with whom Tobias JA and Kirby J agreed) set out at [52] a number of propositions that his Honour said could be derived from the case law. Those propositions focused on a consideration of the similarity, differences and the degree of connection between the offending both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. To those matters may be added a need to ensure public confidence in the administration of criminal justice to avoid the perception that an offender will not be punished more severely for committing multiple offences: Khawaja v R [2014] NSWCCA 80 at [24]-[25] following R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [46]."
[21] On accumulation and concurrence generally, her Honour also referred to the summary of the relevant principles by Hall J in R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52]. From this, her Honour extracted the relevant approach as follows:
"Firstly questions of accumulation are discretionary. The key concern is that the sentence imposed for each offence is appropriate and the total sentence properly reflects the overall criminality of the offending. Applying Cahyadi v R [2007] NSWCCA 1 at [27] Howie J stated that if the sentence for one offence can comprehend and reflect the criminality of the other offence, then the sentence ought to be concurrent because 'otherwise there is a risk that the combined sentence will exceed that which is warranted to reflect the total criminality of the two offences. If not the sentences should be at least partly cumulative. Otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences."
As previously mentioned, the ICO was imposed by the Local Court on 22 March 2019 for a period of 12 months and was for an entirely unrelated offence of common assault which occurred on 31 December 2018. A short time later the applicant committed the offences in breach of the ICO.
The applicant entered custody for the matters for which he stood for sentence on 10 April 2019. On 23 July 2019, the ICO was revoked and a period of imprisonment of 11 months, 3 weeks and 2 days was imposed and backdated to commence to that date. As earlier mentioned, it expired on 1 April 2020.
The Crown correctly submitted that the exercise of the discretion by the sentencing judge, in that respect, was consistent with a proper regard being given to the overall criminality of the applicant and had the effect of avoiding the perception that the applicant would receive a discount for committing multiple offences.
Those considerations may account for the shift in focus of the applicant's challenge from accumulation to special circumstances, even though as I have mentioned, no specific error was relied upon in that respect. I will turn then to the findings of special circumstances.
The sentencing judge made a finding of special circumstances. He adjusted the statutory ratio to 70% for the offences (allowing for the notional accumulation of those offences). By the accumulation of the sentence by the CCO that ratio became 71.6% and after the six month accumulation for the ICO, the ratio of the non-parole period (of 49 months) to the overall sentence of 67 months became 73%.
In fact, the applicant submitted that the sentencing judge appeared to have not taken into account the fact of the 6 months accumulation for the breach of the ICO into his Honour's adjustment of the statutory ratio so that the 71.6% ratio from special circumstances was lost.
It is true that his Honour did not expressly allude to a ratio of 73% in his reasons for sentence and referred, in the final passage of his judgment (after discussions with counsel as to the correct dates to give effect to the non-parole period order) and referred expressly only to a ratio of 71.6% resulting from the accumulation of the sentence imposed for the offences upon those imposed for the revocation of the 2018 CCO.
However, I do not consider that the sentencing judge was unmindful of the effect on the ratio of the non-parole period to the overall sentence arising from the accumulation upon the sentence for the revocation of the ICO. He was plainly alert to the issues of totality, accumulation (including, as discussed, the sentence for the revocation of the ICO) and special circumstances.
Bearing in mind the earlier discussion of accumulation, it is clear his Honour fixed the commencement date of 10 November 2019 for the offences as part of the structure of sentence he had adopted to deal with the multiple offences and which included, accumulation arising out of the ICO. As earlier mentioned, the sentencing judge was mindful that the applicant had entered custody on 10 April 2019, and fashioned the accumulation for the revocation of the ICO from that starting point. After imposing a sentence of imprisonment from 10 April 2019 to 1 April 2020 for the revocation of the ICO, his Honour accumulated under the principle of totality, by 6 months on the sentence imposed on the applicant.
I accept the submission by the Crown that the sentencing judge was alluding to that very formulation when fixing the overall structure of the sentence imposed upon the applicant, when he stated at the conclusion of his reasons (after checking the appropriate dates to give effect to his decision) "the Court has determined that it is appropriate for that structure in view of all the circumstances". This is particularly so in the light of the fact that his Honour had immediately prior to that statement referred to the accumulation of the sentence for the offences and the 2018 CCO. It would have been desirable for his Honour to expressly refer to the overall ratio but these aspects of his reasons are to be found in the closing part of an ex tempore judgment in sentencing the applicant in which some imprecision of expression may be permitted. It may be taken as deliberate course having regard to the careful structuring of the sentence imposed.
The reference by the sentencing judge to considerable weight being given to special circumstances, in the final passage of his reasons for sentence for the applicant, may properly be seen as a reference to the allowance for special circumstances for the offences. Again, that statement appears at the end of his reasons for sentence, and was expressed thus, "and considerations in the determination of the terms of the total effective sentence and accordingly, though it may appear that somewhat less weight has here afforded to it, in the exercise of discretion and ameliorated non-parole period, that somewhat compromised degree of amelioration is the Court's intention". In my view, that statement is a reference to the more modest adjustment to the statutory ratio for special circumstances after the accumulation for multiple offences.
Further, in the final passage of the reasons for sentence to which I have alluded above, the Court expressly recognised that the total effective non-parole period was arrived at having regard to the minimum sentence which the Court found appropriate to be served by the applicant having regard to the overall criminality (there was no dispute as to the sentencing judge's finding as to the objective seriousness of the offences). In other words, his Honour found that a finding of special circumstances should not result in a non-parole period inconsistent with the overall criminality of the offending. His Honour remarked that he had allowed full weight for "all of those considerations" in determining a "term" and then made allowance for "any residual work those circumstances have to do as special circumstances warranting some accumulation of the non-parole period".
Hence, even though his Honour did not expressly refer to a ratio of 73%, I consider he was cognisant of the effect of accumulation resulting in that outcome. The sentencing judge did not overlook or miscalculate the reduction afforded for special circumstances and recognised it was, after accumulation, modest. That assessment fell within the discretion of the sentencing judge.
In that respect and also because the applicant appears to contend that the accumulation in the sentencing process had robbed the finding of special circumstances of utility, it is appropriate to refer to the judgment of N Adams J (with whom Bathurst CJ and Price J agreed) in Tammer-Spence v R [2021] NSWCCA 90 as follows (at [52]-[62]):
[52] This ground alleges error in the manner in which the sentencing judge approached the question of "special circumstances" in s 44(2) of the Sentencing Act. The principles to be derived from the decisions of this Court addressing s 44(2) are well settled. They have been summarised in numerous decisions including Caristo v R [2011] NSWCCA 7 at [27]-[31] and Calhoun (a pseudonym) v R [2018] NSWCCA 150 ("Calhoun").
[53] As was observed by Spigelman CJ, with whom Mason P, Grove and Sully JJ and Newman AJ agreed, in Regina v Simpson [2001] 53 NSWLR 704; [2001] NSWCCA 534 at [63], the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence: Power v The Queen (1973) 131 CLR 623; [1974] HCA 26. Similarly, in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) observed at [57], "[f]ull-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody". [54] A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Calhoun at [30]; Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18 at [35]. The applicant must establish House v The King error (see above at [35]). As the language of s 44(2) makes clear, the degree or extent of any adjustment of the statutory ratio is a matter for the discretion of the sentencing judge: Calhoun at [30].
[55] Relevantly, although "special circumstances" are not defined in the Act, it has been held that the accumulation of a sentence upon a pre-existing sentence may constitute special circumstances allowing a sentencing judge to reduce the non-parole period to less than 75% of the sentence being imposed: Simpson v R (1992) 61 A Crim R 58 at 60-61 per Hunt CJ at CL, Grove and Sharpe JJ agreeing.
[56] The nub of the complaint under this ground is that even though his Honour varied the statutory ratio down to 57% for the aggregate sentence he imposed, the total ratio when combined with the term he was already serving was 76.9% which, it is contended, does not reflect his Honour's finding of special circumstances.
[57] In support of the contention that his Honour must have intended a result in which the total ratio between the time to be served and the head sentence for both the aggregate sentence and his existing sentence was less than 75%, the applicant relied upon the decision of Thorpe v R [2010] NSWCCA 261 in which Simpson J (as her Honour then was) observed this at [4]:
"… Where the basis for a finding of special circumstances is to foster rehabilitation, it is the overall term, not the terms of individual sentences, that must be adjusted. If that is not the result, the finding of special circumstances is ineffective to achieve its objective. The applicant is entitled to the benefit of that finding in a practical, not merely theoretical, way."
[58] This passage by her Honour was considered by Fullerton J (with whom Bathurst CJ agreed) in Gray v R [2013] NSWCCA 169. In doing so her Honour observed that Simpson J's comments need to be considered in the context of the circumstances of that case. Fullerton J then observed at [41]:
"… I do not interpret her Honour to have intended to express that in every case where individual sentences have been accumulated and special circumstances have been found on the basis of the need to provide for an offender's rehabilitation, a variation in the ratio in the overall term will inevitably result. As I see it, the question in any particular case is whether a finding of special circumstances has been effectively translated into the sentencing outcome in a 'practical, not merely theoretical, way' by providing for a parole period that allows for an adequate period under supervision in the community which remains proportionate to the non-parole period as the mandatory period an offender is to serve in custody without inappropriate emphasis on that mandatory period."
[59] I agree with Fullerton J. I do not understand Simpson J to have suggested in Thorpe v R that in every case where special circumstances have been found on individual sentences to provide for an offender's rehabilitation the variation in the overall ratio should be less than 75%.
[60] The proper approach in appeals where it is contended that a sentencing judge has erred in the manner in which a finding of special circumstance has been applied was explained by Gleeson JA (with whom Johnson and Hall JJ agreed) in MD v R [2015] NSWCCA 37 at [42]-[43]:
"Generally speaking 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. Examples can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40].
The starting point with appeals asserting such error is to ascertain 'what can be gleaned of the judge's intention from the sentencing remarks': Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ)."
[61] In Elwood v R [2019] NSWCCA 315 at [61] Fullerton J observed:
"…. a sentencing judge who makes a significant finding of special circumstances not based solely on the fact of accumulation, should either carry that finding into effect on accumulation or give an explanation for why that was not done (see the cases cited by Hamill J at [84] in [Sabongi [2015] NSWCCA 25])."
[62] Thus, the approach for this Court when such a ground of appeal is relied upon is to examine the findings of the sentencing judge in order to ascertain whether the result is what he or she intended. As R A Hulme J observed in CM v R [2013] NSWCCA 341 at [40]:
"Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing Judge specifically intended, or it may be the result of inadvertence or miscalculation."
[Original emphasis.]
The adjustment of the statutory ratio to 73% was, in my view, the product of the accumulation of multiple offences. There is no proper basis to find, in the circumstances, that his Honour perceived that a ratio of 70% or 71.6% was appropriate to give effect to his finding of special circumstances rather than a ratio of 73% having regard to the context of those multiple offences. The applicant has not demonstrated an error in the exercise of a discretion in that respect. Ultimately, the sentencing judge decided upon a ratio of the overall non-parole period to the overall aggregate which did not rob the special circumstances finding of utility as part of as sentencing structure which was carefully considered. The applicant remained eligible for 18 months parole at the expiration of the 49 months total effective non-parole period.
I accept the submission for the Crown that the overall ratio in fact reflected what the sentencing judge regarded as the minimum non-parole period the applicant should spend in custody to reflect the overall offending whilst also providing a sufficient period of time (18 months) on parole having regard to his age, his need for drug and alcohol rehabilitation and re-integration into the community.
There was no other basis for a finding of a manifest excess identified by the applicant. No challenge was made to the aggregate or indicative sentences, the sentencing for the revocation of the ICO and 2018 CCO or the accumulation arising from the structure of the sentence imposed. There was no challenge to the findings of the sentencing judge as to the objective seriousness of the offences and, in my view, the findings made in that respect were plainly open.
When seen in that light, I do not consider that the sentence imposed upon the applicant was either unreasonable or plainly unjust or, more particularly, that the non-parole period was manifestly excessive.
The applicant has, therefore, failed to establish the single ground of appeal, namely, that the sentencing imposed was manifestly excessive, although the issues raised by the applicant should properly result in the grant of leave to appeal.
I would order:
1. Grant leave to appeal.
2. Dismiss the appeal.
HARRISON J: I agree with Walton J.
[3]
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Decision last updated: 01 October 2021
MEAGHER JA: On 12 May 2020 the sentencing judge (Ingram SC DCJ) sentenced Mr Clarke to an aggregate sentence of 5 years with a non-parole period of 3 years and 6 months, commencing on 10 November 2019. That sentence was imposed for the commission of two offences of robbery while armed with an offensive weapon, contrary to Crimes Act 1900 (NSW), s 97(1), and one offence of doing an act with intent to pervert the course of justice, contrary to Crimes Act, s 319. The last offence was dealt with pursuant to Criminal Procedure Act 1986 (NSW), s 166. The ratio of the non-parole period to the total term of that sentence was 70%.
The two robbery offences were committed on 29 and 30 March 2019. Mr Clarke was arrested for those offences on 10 April 2019. At the time they were committed he was subject to a 2 year community correction order (CCO) for alcohol-related driving offences committed on 31 August 2018. That order commenced on 8 November 2018. He was also subject to an intensive correction order (ICO) imposed for 12 months commencing 22 March 2019 for common assaults and other offences committed on 30 December 2018. On 23 July 2019 that ICO was revoked and the commencement date of the sentence of imprisonment then imposed was 10 April 2019. That sentence expired on 1 April 2020.
The task of the sentencing judge was to sentence Mr Clarke for the robbery and pervert course of justice offences and to re-sentence him for the alcohol-related driving offences the subject of the CCO in circumstances where he was already serving a term of imprisonment commencing from 10 April 2019.,. Taking account of that sentence, his Honour imposed a fixed term of 2 months imprisonment for the driving offences to date from 10 October 2019, thereby allowing for an accumulated sentence of 6 months for the ICO offences; and imposed the aggregate sentence commencing on 10 November 2019.
Focusing first on that aggregate sentence, the ratio of the non-parole period to the overall sentence was 70% (42 months / 60 months). When account is taken of the 2 month sentence imposed for the relevant CCO, that ratio becomes 70.5% (43 months / 61 months). Taking into account the existing sentence imposed following the revocation of the ICO, that ratio becomes 73.1% (49 months / 67 months).
Mr Clarke seeks leave to appeal against the aggregate sentence imposed on 12 May 2020. The sole ground of appeal is that the sentence imposed is manifestly excessive. To make good that ground, the applicant must demonstrate that the sentence was "unreasonable or plainly unjust" in a context where there was no single correct sentence that had to be imposed. The result is that this Court may not substitute its own view as to the correct sentence for that of the sentencing judge merely because this Court may have exercised the sentencing discretion in a different manner.
Mr Clarke does not submit that the term of the aggregate sentence of 5 years with a non-parole period of 3 years and 6 months is itself manifestly excessive. Rather, his complaint is as to the structure of the overall sentence which resulted in a ratio of the total effective term to the non-parole period of 73.1% because of the extent to which the sentences imposed were not to be served concurrently with the existing sentence.
In imposing sentences for the CCO offences and the robbery offences in circumstances where Mr Clarke was serving an existing sentence, it was necessary for the sentencing judge first to consider separately the appropriate sentences for each of those incidences of offending. Having done so, it remained for his Honour to be satisfied that the overall sentencing structure, taking into account the pre-existing sentence, properly reflected the criminality of all of the offending.
For the reasons given by Walton J in his analysis commencing at [77] below, I agree that leave to appeal should be granted and the appeal dismissed. This is not a case where the outcome of the sentencing process is so unreasonable or plainly unjust that it can be inferred that there has been a failure properly to exercise the sentencing discretion. I add the following brief observations to that analysis.
The starting point for the sentencing exercise was the determination of the aggregate sentence for the robbery offences and for the CCO offences. It is not contended that there was any error in the exercise of the sentencing discretion in relation to each of those sentences considered separately. Nor is it suggested that there was any error in providing for the period of 1 month concurrence in relation to the serving of those sentences.
In providing that the sentence for the revoked CCO should commence on 10 October 2019, the sentencing judge in effect imposed an accumulated sentence of 6 months for the ICO common assault and resist arrest offences, which were entirely unrelated to the subsequent offending. It is not contended that his Honour's discretion miscarried in the assessment of the criminality involved in that offending.
Rather, it is submitted that the accumulation of these two sentences produced a sentencing structure which, having regard to the proposed parole period, resulted in an effective non-parole period which was manifestly excessive. In support of that contention, it is noted that the sentencing judge found that there were "special circumstances" warranting the adjustment of the non-parole period with respect to the aggregate sentence, having regard to Mr Clarke's age, the need for drug and alcohol rehabilitation, and the need for ongoing support to reintegrate him into the community. It is then suggested that a non-parole period ratio of 73.1% does not give effect to the purposes identified as justifying the finding of special circumstances.
However, this is not a case where it is contended, or might be concluded, that through inadvertence or miscalculation on the part of the sentencing judge, he has failed to give effect to that finding so as to justify a conclusion that he erred in doing so: cf MD v R [2015] NSWCCA 37 at [42]-[43]; AM v R [2020] NSWCCA 101 at [26]; Tammer-Spence v R [2021] NSWCCA 90 at [57]-[63]. Here, as the Crown emphasises, the sentencing judge addressed the extent to which his finding as to special circumstances was "compromised" by the need to give effect to the totality of the offending for which Mr Clarke had been and was being sentenced (see Walton J at [71]). In doing so, his Honour did not expressly refer to the effective 6 month sentence for the ICO offences and its consequences for the effective non-parole period ratio. However, the sentencing structure took that sentence as its starting point, providing for the CCO sentence to commence 6 months later on 10 October 2019 and for the aggregate sentence to commence on 10 November 2019. Most significantly, the sentencing judge's closing remarks specifically advert to the need for the effective non-parole period to be not less than that which Mr Clarke should serve for the totality of the criminality for which he had been or was to be sentenced; and acknowledge its consequence for the "degree of amelioration" otherwise provided by the finding of special circumstances. In the result, it cannot be inferred or concluded either from the remarks on sentence, or from the structure and features of the sentence to which the applicant draws attention, that there was any failure properly to exercise the sentencing discretion.
WALTON J: In November 2019, Harrison John Clarke, the applicant, pleaded guilty in the Campbelltown Local Court to two offences of robbery while armed with a weapon contrary to s 97(1) of the Crimes Act 1900 (NSW). The offences were committed on 29 March 2019, with the first in time occurring shortly after midnight (sequence 1 of charge number H71183062) and the second in time occurring in the morning (charge number H70933144). The applicant also pleaded guilty to one charge of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act (sequence 2 of charge number H71183062). That latter offence was committed on 30 March 2019 and was placed on a s 166 certificate. The three offences shall hereinafter be referred to as, collectively, "the offences".
The applicant entered into custody on 10 April 2019 for the charged offences H 71183062.
At the time of the offences, the applicant was, relevantly, the subject of two Community Corrections Orders ("CCO"). The first CCO was imposed by the Local Court at Sutherland on 8 November 2018 (and commencing on that date) for an offence of driving with a middle range prescribed concentration of alcohol, contrary to s 110(4)(a) of the Road Transport Act 2013 (NSW), on 31 August 2018 ("the 2018 CCO"). A second CCO was imposed on 13 March 2019, with respect to two offences committed on 30 December 2018 (charge number H7089776), including assault officer in execution of duty ("the 2019 CCO"). The 2019 CCO operated until 12 March 2020. It did not, however, feature in the sentencing of the applicant for the offences.
Further, the applicant was also the subject of an Intensive Correction Order ("ICO"), imposed in the Liverpool Local Court on 22 March 2019, for an offence of common assault committed on 30 December 2018. That ICO commenced on 22 March 2019 and concluded on 21 March 2020. The offences occurred about 1 week after the applicant was placed on the ICO and whilst he was on conditional liberty.
On 12 May 2020, the applicant was sentenced by Judge Ingram SC ("the sentencing judge") in the District Court at Campbelltown. His Honour imposed an aggregate sentence of 5 years' imprisonment, with a non-parole period of 3 years and 6 months, for the offences commencing on 10 November 2019. The non-parole period expired on 9 May 2023. The head sentence expired on 9 November 2024. His Honour made a finding of special circumstances. The ratio of the non-parole period to the total term for the offences was 70%. The applicant received a 25% discount for his early plea of guilty.
The following represents a table of the offences, maximum penalties and indicative sentences imposed after the discount:
Sequence Offence Max penalty/ SNPP Indicative Sentence
Seq 1 Robbery while armed with an offensive weapon 20 years 3 years imprisonment
(H71183062) S 97(1) Crimes Act No SNPP
Seq 2 Do act with intent to pervert the course of justice 14 years
(H71183062) S 319 Crimes Act No SNPP 18 months
S 166
Seq 1 Robbery while armed with an offensive weapon 20 years 3 years 4 months
(H70933144) S 97(1) Crimes Act No SNPP
REASONS FOR SENTENCE
The reasons for sentence of the sentencing judge were provided with respect to the applicant and the co-offender, Mr Middleton.
His Honour considered the relevant features of a typical case as expressed in Henry in the context of the applicant (see R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111).
In relation to the armed robbery offence corresponding to charge H71183062, the sentencing judge found that it "represents a serious example of an offence of armed robbery contrary to pursuant to 97(1)".
The basis for that finding was explained in the sentencing judgment as follows:
In relation to the circumstances of the robbery in H062/1 involving Mr Hossain, the offence is an offence of armed robbery because there is the use of a knife. The offender used the knife himself. His role was to be the brandisher of the knife and the facts disclose the part that he played in its use. He was an active participant in the robbery upon Mr Hossain as was the co-offender, JD. To some degree the co-offender, Middleton, played a lesser role. Whilst he was present and therefore lending himself to the enterprise, he did not brandish the knife nor, it would seem, utter any explicit threat. On the other hand, his presence added to, no doubt, the fear of the victim and he was one of the three people in company at the time of the commission of the offence. This in relation to the present offender, Clarke, he was personally armed with the knife and, in addition to that, the offence was visited by the further factor that the offence was one committed in company, that is to say he, JD, and the co-offender, Middleton were present.
His Honour considered the relevant features of a typical case as expressed by Henry in the context of the applicant:
1. The applicant was just over 18 years old when he committed the offences (the sentencing judge cited Yildiz v R [2020] NSWCCA 69 with respect to how particularly young offenders are dealt with under the Henry guideline and cited KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 with respect to consideration of the applicant's maturity).
2. A knife had been used.
3. There was no planning involved and this was borne out by "coincidentally" coming across the victim in the street.
4. There was some violence involved although it was not "in the worst category of violence in a very significant category of violence".
5. Whilst the victim was walking alone at night he was not a vulnerable person akin to a shopkeeper or taxi driver.
6. The amount taken being valued at $1,900 was "perhaps more on the small side rather than the particularly large side".
7. A 25% discount was to be afforded, as opposed to the envisaged 10% discount of a typical case under the Henry guideline.
Having regard also to the guideline judgment in Henry, and recognising that judgment provided guidance in sentencing, the sentencing judge said:
Putting the question of the plea timing and discount to one side, the Court is satisfied that the present offence is one which comes within the ambit of the guideline typical case. If it is outside that, it tends in the Court's view to be somewhat slightly above the typical case by way of seriousness, but not by a great deal.
None of those findings are disputed in this application for leave to appeal.
In relation to the armed robbery offence (corresponding to charge H70933144), the sentencing judge found the applicant and co-offenders were not "trawling" for victims. However, his Honour noted that there was "not insubstantial violence involved in this second offence". As to the objective seriousness of this offending, the sentencing judge found:
1. whilst the offences were in the lower echelons of vigour, there was nonetheless the use of a knife which scratched the victim;
2. the violence was also at the lower end of "the scale of seriousness" but it nonetheless had a terrible impact on the victim;
3. the offence was at night; and
4. there was a small amount stolen.
His Honour held that, "this offence is one which is somewhat above the typical case, not by a great deal, but nevertheless somewhat above, within the upper echelon of the typical case guideline contemplated or slightly above it in terms of the factual matrix".
Again, that finding was not challenged. The sentencing judge also found that by providing a misleading statement to police containing false information about what had happened to the vehicle while it was in the applicant's presence and thereafter, the applicant thereby perverted the course of justice. His Honour was satisfied, "that this is an offence of some seriousness, but within, perhaps the lower echelons of seriousness for such offending".
The sentencing judge then turned to the breach of the bond, namely, the 2018 CCO. He observed that the maximum penalty for the relevant offence was imprisonment for 9 months and/or a fine of 20 penalty units plus licence disqualification.
The sentencing judge noted that the "breach is the commission of two further offences, namely the two armed robbery offences and the act with intent to pervert the course of justice, being the three offences that stand for sentence today".
The sentencing judge observed that the applicant had commenced to serve the bond on 8 November 2018 before he breached it by commission of the first armed robbery on 29 March 2019 (sequence 1 of H71183062), and, "thus, there was a period of conformity with the bond for something in the order of five months or thereabouts, but there was of course still one year and seven months of the bond still remaining".
His Honour referred to the facts of that matter, which were, in short, that the applicant was driving unlicensed on 31 August 2018 with the middle range prescribed concentration of alcohol of 0.107 grams of alcohol in 210 litres of breath.
The sentencing judge revoked the bond and ultimately sentenced the applicant to a fixed term of 2 months' imprisonment to date from 10 October 2019.
Again, as earlier mentioned, that sentence was partially accumulated, by 50%, on the sentence his Honour ultimately imposed for the armed robbery offences and for doing an act with intent to pervert the course of justice, which his Honour commenced on 10 November 2019.
His Honour noted, again, that the applicant was just over 18 years old when he committed the offences and 19 years old at the time of sentence.
The sentencing judge received a number of testimonials including one from a previous employer in the air conditioning industry who was prepared to offer him work when he is released from custody and from the applicant's supportive mother.
The applicant had a criminal history including driving under the influence, assault offences, resisting arrest, behaving in an offensive manner in public and entering inclosed lands unlawfully.
The applicant had reported that at the time of the offences he was under the influence of cocaine and ice. He reported using 3 to 5 grams of ice a day and having not slept for two weeks, suffering from hallucinations as a result. His Honour noted, however, that was not a mitigating factor.
His Honour noted that Community Corrections were of the view that the applicant would benefit from a mental health assessment, which his Honour said would likely occur after he was sentenced.
The Sentencing Assessment Report disclosed the applicant had insight into the impact of his offending on himself, his family and the victims. Further, the report noted that he was willing to undertake interventions to address his criminogenic needs and cut ties with antisocial associates.
Similarly, the applicant maintained the support of prosocial influences including his family. However, he was assessed as a medium risk of reoffending. His Honour ultimately found the applicant was genuinely remorseful, had "guardedly good" prospects of rehabilitation and was unlikely to reoffend, subject to his prospects of rehabilitation.
As to the ICO, the sentencing judge observed:
The offences were committed whilst on conditional liberty. He was in breach of six Community Correction Orders and one Intensive Correction order. In relation to the Community Correction Orders, the bulk of them have now expired and so too the Intensive Correction Order. However, the offender was called up on the breach of the Intensive Correction Order. It has therefore been revoked and he has been required to serve a term of imprisonment in relation to the Intensive Correction Order, commencing on 10 April 2019 and concluding on 1 April 2020.
His Honour referred to Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 as the cases setting out the relevant principles of parity. His Honour set out the circumstances, or what he could make of them from the limited material provided, of the co-offender, JD. Importantly his Honour noted that JD was around 16 and a half years old at the time of the commission of the offences and was, therefore, a juvenile. His Honour then set out the distinctions between the Children Court's legislative purposes under which JD was sentenced and the legislative purposes of sentencing which applied to the applicant and Mr Middleton.
His Honour then remarked that on 30 March 2019 police spoke to the applicant again and he agreed to supply them with a statement. He told them that, on the evening of 28 March 2019, he was with LH in his mother's car and they had gone to the home of the co-offender Mr Middleton. There, JD ended up with the car keys and said he wanted to go "pump some jobs in your car", but that he had refused to go. The applicant said that he went home and was told by his mother the next morning that police had been in contact concerning the car being involved in a robbery (sequence 2 in H71183062).
His Honour noted that given COVID-19 a custodial sentence would generally be more onerous on prisoners, although any specific finding on this issue relating to the applicant could not be made.
His Honour said he had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), noting that given the applicant's age, weight should be given to considerations of rehabilitation.
As to the fixing of an aggregate sentence, his Honour found:
In relation to the determination of the aggregate sentence, the Court applies the principle of totality and provides for notional accumulation between the sentences indicated in respect of H062/1, H144/1 and the s 166 certificate H062/2. In that context, having applied the principle of totality, the Court is satisfied that the aggregate sentence which should be imposed in respect of the indicated sentences will be an aggregate term of 5 years and an aggregate non-parole period of 3 years and 6 months.
As to the special circumstances with respect to the offences, his Honour found:
The court is satisfied that there are special circumstances warranting the adjustment down of that non-parole period, namely the age of the offender, the need for drug and alcohol rehabilitation and the need for ongoing support to re-integrate him back into the community.
Following the imposition of the aggregate sentence of 5 years' imprisonment, with a non-parole period of 3 years and 6 months, the sentencing judge said that he "must of course apply the principle of totality as between the aggregate sentence and the breach of bond sentence. The Court notes that the breach of bond sentence is a fixed term of two months. The Court will provide for one month partial accumulation as between the aggregate sentence and the breach of bond sentence."
As to the fixing of aggregate sentence, the sentencing judge stated:
In respect of the aggregate sentence a non-parole of 42 months is imposed which is to be taken to have commenced on 10 November 2019 and expiring 9 May 2023, with a total of aggregate term of 60 months, taken to have commenced on 10 November 2019 and expiring 9 November 2024.
After asking for assistance as to the dates in which the non-parole period would operate, the sentencing judge made the following statements regarding the totality of the sentences imposed:
In relation to the totality of the sentences for the breach of bond offence and the indicated sentences the Court recognises that the total effective term to non-parole period 71.6%. The Court has turned its mind to the question of special circumstances in this matter as set out above the Court has determined that it is appropriate for that structure in view of all the circumstances. The Court has given considerable weight to the special circumstances and considerations in the determination of the terms of the total effective sentence and accordingly, though it may appear that somewhat less weight has been afforded to it, in the exercise of discretion and ameliorated non-parole period, that somewhat compromised degree of amelioration is the Court's intention. That intention is the product of the Court's desire to provide more fully for the reduction of the entire term including the total non-parole period in the manner which the Court has just indicated.
The Court also recognises that the total effective non-parole period must not be less than that which the Court is of the view needs to be served by the offender having regard to the criminality which he must sentenced: see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. Accordingly, 71.6% might be viewed as being lacking in appropriate reflection of the Court's findings of special circumstances. The Court indicates that it has taken the course it has by firstly allowing full weight to all those considerations in the determination of the term and then making allowance for any residual work those circumstances have to do as special circumstances warranting some amelioration of the non-parole period.
[Emphasis added.]