BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Bellew J. Subject to the following, which concerns ground 1 of the conviction appeal and a related aspect of the sentence appeal, I agree with the reasons of his Honour.
Ground 1 challenges the conviction of the applicant for four offences against s 114 of the Crimes Act 1900 in circumstances where he was also convicted of four corresponding offences against s 115. Those sections relevantly provide:
"114 Being armed with intent to commit indictable offence
(1) Any person who--
…
(d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,
shall be liable to imprisonment for seven years.
…
115 Being convicted offender armed with intent to commit indictable offence
Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years."
The only difference between the elements of the offences referred to in these provisions is that to commit an offence under s 115, an offender had to already have been convicted of any indictable offence. In this applicant's case that offence was an offence of break, enter and steal. He was convicted of that offence on 11 May 2018. [1] Each pair of offences under ss 114 and 115 were based on the same facts, save for the previous conviction.
At all relevant times s 152 of the Criminal Procedure Act 1986 (the "CPA") provided:
"152 Arraignment on charge of previous conviction
(1) An accused person is not to be arraigned for any previous conviction charged in an indictment unless he or she is convicted of a subsequent offence charged in the indictment.
(2) On the accused person's conviction of the subsequent offence--
(a) the accused person is to be arraigned, and
(b) the jury is to be charged, and
(c) the trial is to proceed,
in relation to the previous conviction.
(3) In the trial for the subsequent offence, evidence of the previous conviction may not be admitted, except in reply to evidence of character, unless the accused person is convicted of the subsequent offence." (emphasis added)
As noted by Bellew J, this provision replicated former s 394 of the Crimes Act which was referred to in the passage from the judgment of Hunt J in R v Tillott (1991) 53 A Crim R 46 ("Tillott") set out at [50].
The applicant pleaded guilty in the Local Court and adhered to his plea in the District Court. He was not dealt with on indictment and thus the procedure set out in s 152 of the CPA was not strictly engaged. Instead, the District Court proceeded to "deal" with him on sentence (CPA; s 102(1)). Nevertheless, it followed that he was taken "to be convicted on indictment" (CPA; s 102(2)) which, in the case of the offences under ss 114 and 115, means he is taken to have been convicted by a procedure that conforms with s 152. The significance of that procedure is that it confirms the conclusion of Bellew J, and in turn Hunt J in Tillott, that ss 114 and 115 are separate offences and that the applicant could be convicted of both without there being an abuse of process in the form of some "double jeopardy".
Although s 152 of the CPA is expressed in general terms, the only offence that the Court was informed of that it addresses is s 115 of the Crimes Act. For the purposes of s 152(1) and the applicant's offences under s 115, the "previous conviction charged in an indictment" is the indictable offence of break, enter and steal of which he was convicted of in May 2018. The "subsequent offence[s] charged" of which he was convicted are the offences under s 114 of the Crimes Act and the "indictment" is the (hypothetical) separate indictment containing four counts under s 115 that would have been filed against the applicant in the District Court had he not pleaded guilty in the Local Court. As explained by Hunt J in Tillott, s 152(2) mandates a procedure whereby, after a conviction for an offence under s 114, the accused is only then arraigned on an indictment charging him with an offence under s 115 and that indictment avers their "previous conviction". The trial of an offence under s 115 then ensues. Section 25 of the CPA avoids the need for the indictment to specify the particular of the previous offence. Further, s 152(3) precludes any reference to the previous conviction during the trial of the s 114 offence. This procedure is odd, but it at least affords a protection to the accused by ensuring that they do not face a jury on an indictment that contains both a s 114 offence and a s 115 offence and suffer the prejudice of the jury learning of their "previous conviction". Counterintuitive as it all appears, the entire premise of this procedure is that an offence under s 115 is a separate offence to an offence under s 114 and not an aggravated version of the same offence.
The applicant's submissions contend that, as all the elements of an offence under s 114 are encompassed by an offence under s 115, his convictions for offences under s 114 cannot stand. The submissions referred to Pearce v R (1998) 194 CLR 610; [1998] HCA 57 at [16] ("Pearce") where McHugh, Hayne and Callinan JJ rejected a contention that a plea in bar was available where the offender was convicted of two offences but where each offence contained an element the other did not, such that neither was wholly included in the other. The applicant's submissions noted that, in a footnote to the judgment in Pearce, their Honours contrasted that circumstance with a circumstance in which an accused was charged with a (hypothetical) offence of "housebreaking" and an offence under s 110 where the latter included all the elements of the former. Their Honours observed that "i[f] convicted or acquitted of one, the accused would have a plea in bar to the other". However, these statements in Pearce must give way to the operation of s 152. As stated, it mandates a procedure whereby an accused is first convicted of an offence under s 114 and only then arraigned and tried for an offence under s 115. It follows that an accused could never raise a plea in bar to an indictment that includes a count under s 114 because s 152 precludes the accused from being arraigned on an indictment charging an offence under s 115 until they are first convicted of the offence under s 114. Thus, the applicant's challenge to his convictions under s 114 must be rejected. For the sake of completeness, I note that if, following a conviction for an offence under s 114, a plea in bar to the offence under s 115 was raised and successful, it would preclude any trial from ever being conducted under s 152(2). However, section 152 cannot be read out of existence. It follows that the concerns about double jeopardy in that circumstance must give way to the operation of s 152.
Nevertheless, Pearce still has much work to do in relation to the resentencing of the applicant. Pearce is often cited for the proposition that the proper approach to sentencing for multiple offences is to first identify the appropriate sentence for each offence and to then consider questions of cumulation, concurrency as well as totality (Pearce at [45]). However, Pearce also establishes that, at the stage of determining the appropriate sentence for individual offences, it is necessary to avoid double punishment in respect of some element or aspect that one of those offences has in common with other offences (Pearce at [49]). Further, their Honours confirmed that double punishment for common elements is not avoided by making sentences concurrent (id):
"Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count." (emphasis added)
These principles are also applicable to indicative sentences as they must be determined "had separate sentences been imposed instead of an aggregate sentence" (Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)). This means that, in this case, the indicative sentences for the s 115 offences must be determined in a manner that avoids doubly punishing the applicant for so much of those offences that involved a commission of the s 114 offences (or vice versa). This is reflected in the indicative sentences proposed by Bellew J. I agree with those indicative sentences and the aggregate sentence suggested by his Honour.
DAVIES J: I agree with Bellew J. I also agree with the additional remarks of Beech-Jones CJ at CL.
BELLEW J: Ethan Darcy (the applicant) pleaded guilty in the Local Court to a series of offences. He adhered to those pleas before his Honour Judge Bennett SC in the District Court and a table setting out the offences, along with a number of other matters that the applicant asked the sentencing judge to take into account, was annexed to his Honour's judgment. [2] That table is extracted below, supplemented by a summary of the facts in respect of each group of offences. The summary of the facts has been drawn from the submissions of counsel for the applicant, in circumstances where the Crown accepted the accuracy of the summary in each case. [3]
[3]
The offences committed at Pink Lotus Massage on 20 October 2018
On 20 October 2018, Ms Han Lin Zhao and a Mr Malone were closing the Pink Lotus Massage premises in West Ryde. Whilst Ms Zhao was in the garage of the premises she placed her handbag, which included a number of valuable items, in her car. She then stepped away from the car and went back inside the premises to turn off a light. At this time, Mr Malone noticed that the car door was ajar, and that the applicant was standing next to it.
Ms Zhao and Mr Malone then became involved in an altercation with the applicant and tried to stop him from leaving the garage. During that altercation the applicant pushed past Ms Zhao, causing her some minor injuries. The applicant eventually fled the scene by gaining access to the roof of the Pink Lotus premises and jumping across to the roof of a neighbouring property. Ms Zhao's handbag was not taken.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/114105 H424818692
2 10 years imprisonment
1 002 20/10/2018 - West Ryde - entered garage of Pink Lotus Massage with intent to steal. Sentence (2nd or subsequent offence following sequence 3) Form 1 taken into account
S 114(1)(d) Crimes Act 1900 [3 years imprisonment]
3 10 years imprisonment
2 003 20/10/2018 - West Ryde - entered garage of Pink Lotus Massage with intent to steal after previous conviction on 11/05/2018 of break enter and steal at Sutherland Local Court. Sentence [2 years 9 months 23 days imprisonment]
S 115 Crimes Act 1900
4 2 years imprisonment
3 004 20/10/2018 - West Ryde - assault of Han Li Zhao. Sentence [9 months imprisonment]
S 61 Crimes Act 1900
[4]
The offence committed at Fogo Restaurant on 16 December 2018
On 16 December 2018 the applicant was seen on CCTV footage entering Fogo Restaurant in Chippendale. At the time, the restaurant was closed and the staff were inside cleaning up. The applicant was seen to walk through the premises and take possession of a backpack from which he removed a wallet. He then left the premises. Later that evening, the applicant used a Commonwealth Bank card which he had taken from the wallet to purchase items valued at $44.80. The victim was alerted and was able to block the card shortly thereafter.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/120339 H71173766
2
002 16/12/2018 - Haymarket - obtained property to the value of $44.80 by deception using the bank card of Sayuri Goto. Form 1 10 years imprisonment Attach to Court File 19/114105-002
S 192E(1)(a) Crimes Act 1900
3
003 16/12/2018 - Chippendale - stole a wallet & bank card from Sayuri Goto. Form 1 5 years imprisonment
S 117 Crimes Act 1900
4 10 years imprisonment
004 16/12/2018 - Chippendale - entered Fogo Restaurant with intent to steal. Form 1 (2nd or subsequent offence)
S 114(1)(d) Crimes Act 1900
[5]
The offences committed at Super Noodle and Schnitz on 30 November 2018 and 17 December 2018
[6]
The offence committed at Kikki K on 11 December 2018
[7]
The offence committed at Bulgogi Korean Restaurant on 15 December 2018
[8]
The offence committed at Beijing Impressions Restaurant on 18 December 2018
At about 1:00pm on 30 November 2018 the applicant entered the kitchen area of the Super Noodle store in Burwood and stole a handbag belonging to an employee. When the bag was later recovered, a piece of jewellery worth approximately $1,000.00, cash in the sum of approximately $2,000.00, and a pair of reading glasses, were found to be missing.
On 17 December 2018 the applicant entered the rear of the Schnitz store in Burwood and stole a handbag belonging to an employee which contained Bank cards, identification cards and a small amount of cash.
At about 5:30pm on 11 December 2018 an employee of Kikki K in Drummoyne was packing up the store and placed approximately $700.00 in cash in a safe before locking the safe and leaving a key to it in an unlocked drawer nearby. The applicant had been loitering in the vicinity and after the employee left he entered the store and stole the money.
On 15 December 2018 the applicant entered the rear of the Bulgogi Korean Restaurant in Strathfield where he stole a bag belonging to an employee. When the bag was later found, an amount of cash together with a passport, an Opal card and a Bank card, were missing.
At about 9:00am on 18 December 2018 the applicant gained entry to the Beijing Impressions Restaurant in Ashfield. Whilst inside, he took two sets of keys and attempted to open the cash register. He also took an employee's handbag. The employee in question then saw the applicant in the toilet and left in order to give him some privacy. She then noticed that her handbag was missing. The applicant left the premises but was confronted by the employee. He managed to escape, following which police were called. The applicant was observed running into the backyard of a nearby property and was pursued by police before unsuccessfully attempting to jump over a fence. A struggle then ensued in which one police officer suffered minor grazes, and the other was bitten by the applicant. When subdued, the applicant was found to be in possession of a Korean identity card and a small amount of methylamphetamine.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2018/389554 H69414011
13 5 years imprisonment
4 011 30/11/2018 - Burwood - stole handbag with $2,000 cash, Pandora jewellery of $1,000 value, reading glasses of $200 value from Mei Lau. Sentence [1 year 9 months imprisonment] Form 1 taken into account
S117 Crimes Act 1900
9
007 17/12/2018 - Burwood - stole a wallet with $50 cash, 2 bank cards, identification cards, an opal card, & keys from Sarker Piasi. Form 1 5 years imprisonment Attach to Court file 18/389554-011
S 117 Crimes Act 1900
11 5 years imprisonment
5 009 11/12/2018 - Drummoyne - stole $700 cash from Kikki K (business). Sentence [1 year 3 months 22 days imprisonment]
S 117 Crimes Act 1900
16 10 years imprisonment
014 14/12/2018 - Strathfield - entered the building of Beijing Impressions Restaurant with intent to steal. Form 1 (2nd or subsequent offence) Attach to Court file 19/189659-004
S 114(1)(d) Crimes Act 1900
12
010 14/12/2018 - Strathfield - stole a wallet, Korean passport, $100 cash, a bank card, an Opal card & cigarettes from Eunbi Cho. Form 1 5 years imprisonment
S 117 Crimes Act 1900
14 5 years imprisonment
6 012 18/12/2018 - Ashfield - entered Beijing Impressions Restaurant with intent to steal. Sentence [2 years 1 month 14 days imprisonment] Form 1 taken into account
S 117 Crimes Act 1900 [4]
15 10 years imprisonment
7 013 18/12/2018 - Ashfield - entered Beijing Impressions Restaurant with intent to steal after previous conviction on 11/05/2018 at Sutherland Local Court of break enter and steal. Sentence [2 years 9 months 23 days imprisonment]
S 115 Crimes Act 1900
4 5 years imprisonment
004 18/12/2018 - Ashfield - resisted Sergeant John Rayment in execution of his duty. Form 1 (2 years imprisonment in the Local Court) Attach to Court file 18/389554-003
S 58 Crimes Act 1900
6
006 18/12/2018 - Ashfield - goods in custody - Korean identity document. Form 1 12 months imprisonment and a fine of 10 penalty units
S 527C(1)(a) Crimes Act 1900
5 S 166 2 years imprisonment
8 005 18 December 2018 - Ashfield - possess 0.08 grams of crystal methylamphetamine. Criminal Procedure Act 1986 [6 months 23 days imprisonment]
S 10(1) Drug Misuse & Trafficking Act 1985
2
002 18-12-2018 - Ashfield - stole a handbag with a health card, Medicare card, Opal card, dentures, glasses, and a lunch box & card holder from Qi Shi. Form 1 5 years imprisonment Attach to Court file 18/389554-012
S 114(1)(d) Crimes Act 1900
3 7 years imprisonment
9 003 18 December 2018 - Ashfield - assault Sergeant John Rayment in the execution of duty occasion actual bodily harm. S 166 3 years standard non parole period Form 1 taken into account
S 60(2) Crimes Act 1900 Criminal Procedure Act 1986 (2 years imprisonment in Local Court.
[1 year 1 month 14 days imprisonment]
[9]
The offence committed at the Living Room Café on 8 December 2018
On 8 December 2018 the applicant entered the rear of the Living Room Café at St Ives when the staff were at the front of the store preparing to close. He stole approximately $34,235.00 in cash.
The charge brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/81466 H73127083
6 5 years imprisonment
10 006 8 December 2018 - St Ives - stole $34,235 cash from Haojun Yang & Danyan Qian. Sentence [2 years 23 days imprisonment]
S 117 Crimes Act 1900
[10]
The offence committed at an Eastwood Grocery store on 10 December 2018
On 10 December 2018 at about 11:00pm the applicant entered a store in Eastwood. He walked up to the till and removed approximately $900.00. Despite being confronted by the proprietor he was able to flee.
The charge brought against the applicant as result of these events was as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/76821 H69195460
1 5 years imprisonment
11 001 10/12/2018 - Eastwood - stole $900 cash from Haee Sun Choi . [1 year 3 months 22 days imprisonment]
S 117 Crimes Act 1900
[11]
The offences at the Roaming Bird Chicken Shop on 10 and 11 December 2018
[12]
The offence at Bencino Café on 12 December 2018
On 10 and 11 December 2018 the applicant entered the Roaming Bird Chicken Shop in West Ryde. On each occasion he tried to access the cash register but was not able to remove any cash.
At about 11:30am on 11 December 2018 the applicant entered the Du Massage premises in Gladesville. He approached the front counter and took a handbag which had been left there by an employee.
At about 8:13am on 12 December 2018 the applicant entered the rear entrance of the Bencino Café in Meadowbank. Whilst in the cafe he stole an employee's backpack from the staff room, the contents of which were valued at approximately $600.00.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/70480 H72965681
8 10 years imprisonment
12 008 11/12/2018 - Gladesville and West Ryde - entered Roaming Bird shop with intent to steal. Sentence (2nd or subsequent offence) Form 1 taken into account
S 114(1)(d) Crimes Act 1900 [3 years imprisonment]
9 10 years imprisonment
13 009 11/12/2018 - Gladesville and West Ryde - entered Roaming Bird shop with intent to steal after conviction of break enter and steal at Sutherland Local Court on 11/05/2018 Sentence [2 years 9 months 23 days imprisonment]
S 115 Crimes Act 1900
4 10 years imprisonment
004 10/12/2018 - West Ryde - entered the Roaming Bird shop with intent to steal Form 1 (2nd or subsequent offence) Attach to Court file 19/70480-008
S 114(1) (d) Crimes Act 1900
1 5 years imprisonment
14 001 11/12/2018 - Gladesville - stole a handbag and contents from Hon Xia Pan Sentence [1 year 3 months 22 days imprisonment]
S 117 Crimes Act 1900
3
003 11/12/2018 - Meadowbank - stole backpack containing a passport, sunglasses, headphones, and clothing, of $600 value from James Gardiner Form 1 5 years imprisonment Attach to Court file 19/70480-006
S 117 Crimes Act 1900
6 10 years imprisonment
15 006 11/12/2018 - Meadowbank & West Ryde - entered Bencino Café with intent to steal Sentence (2nd or subsequent offence to sequence) Form 1 taken into account
S 114(1)(d) Crimes Act 1900 [3 years imprisonment]
7 10 years imprisonment
16 007 11 December 2018 - Meadowbank & West Ryde - entered the Bencino Café with intent to steal after conviction of break enter and steal at Sutherland Local Court on 11 May 2018 Sentence [2 years 9 months 23 days imprisonment]
S 115 Crimes Act 1900
[13]
The offence at Darling's Bistro on 17 October 2018
On 17 October 2018 the applicant entered Darling's Bistro in Rozelle where he stole two bags belonging to employees and containing Passports, Bank cards and other items.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/192608 H71932242
4 10 years imprisonment
003 17/0/2018 - Rozelle - entered Darlings Bistro with intent to steal. Form 1 (2nd or subsequent offence) Attach to Court file 19/70480-006
S 114(1)(d) Crimes Act 1900
6
005 17/10/2018 - Rozelle - stole a Samsonite backpack and contents from Matthew Colliard. Form 1 5 years imprisonment
S 117 Crimes Act 1900
7
006 17/10/2018 - Rozelle - stole a Calvin Klein backpack and contents from Rachel Slosarik. Form 1 5 years imprisonment
S 117 Crimes Act 1900
[14]
The offence at Lemongrove Shopping Centre, Chatswood on 12 December 2018
On 12 December 2018 the applicant entered the 88 Foot Massage store located in Lemongrove Shopping Centre, Chatswood. Shortly afterwards, an employee of the business secured the premises, as a consequence of which the applicant was locked inside. He attempted to get out by throwing items at the front door, including a vase which he broke. He also stole $40.00 from a wallet which was left behind by one of the store's employees.
Eventually, the applicant made a hole in the ceiling and escaped through the roof cavity into the premises next door, which were also locked. He was able to break through the front door of those premises and flee. In doing so, he caused damage totalling $1,470.00.
The charges brought against the applicant as a result of these events were as follows:
Court File Reference H Sequence For Sentence or Form 1 Maximum Penalties & Indicative Sentences Form One Offence Taken into Account
2019/189659 H71852315
4 14 years imprisonment
17 004 12/12/2018 - Chatswood - stole $40 cash from Quing Anna Fan in the shop of 88 Foot Massage and broke out. Sentence [2 years 7 months 23 days imprisonment] Form 1 taken into account
S 112(1)(b) Crimes Act 1900
3
003 12/12/2018 - Chatswood - intentional damage to a vase of 88 Footage Massage. Form 1 5 years imprisonment Attach to Court file 19/189659-004
S 195(1)(a) Crimes Act 1900
5
005 12/12/2018 - Chatswood - break and enter of Welcome Health Chiropractic and damage to the door and lock. Form 1 14 years imprisonment Attach to Court file 19/189659-004
S 112(1)(a) Crimes Act 1900
[15]
THE SENTENCE IMPOSED
Having given the indicative sentences set out above, the sentencing judge imposed an aggregate sentence of 6 years and 6 months imprisonment, with a non-parole period of 3 years and 9 months.
The applicant now seeks leave to appeal against his conviction and sentence on the grounds set out below.
[16]
Ground 1 - The applicant's pleas of guilty in relation to offences 1, 6, 12 and 15 occasioned a miscarriage of justice
[17]
The offences the subject of this ground
Each of the offences which are the subject of this ground, and to which the applicant pleaded guilty (collectively, the s.114 offences) was contrary to s 114(1)(d) of the Crimes Act 1900 (NSW) (the Act). That section is in the following terms:
114 Being armed with intent to commit indictable offence
(1) Any person who--
…
(d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,
shall be liable to imprisonment for seven years.
…
The applicant also pleaded guilty to four offences contrary to s 115 of the Act (collectively, the s 115 offences). That section is in the following terms:
115 Being convicted offender armed with intent to commit indictable offence
Whosoever, having been convicted of any indictable offence, afterwards commits any offence mentioned in section 114, shall be liable to imprisonment for ten years.
It is common ground between the parties that:
1. each of the s 114 offences were based on the same facts and circumstances as each of the s 115 offences;
2. each of the s 115 offences were charged on the basis that the applicant had previously been convicted of the indictable offence of break enter and steal.
[18]
Submissions of the applicant
Counsel for the applicant submitted that having pleaded guilty to, and having been sentenced in respect of, the s 115 offences, the applicant should not have been dealt with in respect of any of the s 114 offences. It was submitted that in circumstances where the s 114 offences and the s 115 offences were based upon the same facts, a miscarriage of justice had arisen because, on a proper analysis, an offence contrary to s 115 of the Act was to be regarded as an aggravated form of the offence created by s 114, rather than as a separate offence.
In advancing these submissions, counsel sought to distinguish the circumstances of this case from those considered by this Court in R v Tillott [5] , a decision upon which the Crown substantially relied. I have considered this suggested distinction when addressing this ground below.
[19]
Submissions of the Crown
It was the Crown's submission that on a proper construction, s 115 of the Act created a separate and distinct offence to that created by s 114, and that no miscarriage of justice had arisen by virtue of the applicant's pleas of guilty to the s 114 offences. In support of that submission the Crown relied upon the judgment of this Court in Tillott [6] which, it was submitted, was not distinguishable on any relevant basis.
[20]
CONSIDERATION
Before dealing with the substance of this ground, it is appropriate to make some reference to the nature of this Court's discretion to quash a conviction which has been entered following a plea of guilty. In R v Thalari [7] Johnson J (with whom Young JA and Latham J agreed) articulated a number of principles which inform the exercise of that discretion. Those principles include the following:
1. an application to withdraw a plea of guilty is to be approached with caution, bordering on circumspection; [8]
2. the onus lies upon the applicant, who must establish a good and substantial reason why the plea should be permitted to be withdrawn; [9]
3. given that a plea of guilty constitutes an admission to all the elements of the offence, a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice would arise if the accused were not permitted to withdraw it. [10]
As to the last of those matters, Johnson J observed [11] that normally, a miscarriage of justice will only arise where the accused did not understand the nature of the charge, or did not intend by the plea to admit guilt. However, it is apparent from his Honour's use of the word "normally" that he was not intending to limit the circumstances which might be capable of supporting a conclusion that a miscarriage of justice can be made out. Such an approach is consistent with previous decisions of this Court which establish that the categories of such circumstances are not closed, and that each case will depend on its own facts. [12]
One circumstance which may enliven the exercise of the discretion is where the integrity of the plea, as an admission of guilt, has been affected. [13] I did not understand the Crown to take issue with the proposition that if the applicant's submissions as to the proper construction of ss 114 and 115 of the Act were accepted, a miscarriage of justice would be established.
In circumstances where the submissions of each party centred largely upon the judgment of this Court in Tillott, it is appropriate to consider that judgment at this point.
The offender in Tillott pleaded not guilty in the District Court to an indictment alleging two offences contrary to s 114 of the Act, and an additional offence of being in possession of a shortened firearm. He was found guilty by a jury of all of those offences. Following convictions being recorded, the Crown presented a further indictment against the offender alleging an offence contrary to s 115 of the Act. The offender pleaded guilty to that offence, following which a conviction was recorded.
Against this background, and in the context of a ground of appeal which asserted that the verdicts of the jury in respect of the offences contrary to s 114 of the Act were unsafe and unsatisfactory, an issue arose as to whether the offender's plea of guilty to the s 115 offence amounted to an admission of guilt in respect of the offences against s 114. In circumstances where the Crown relied upon the applicant's plea to the s 115 offence in defence of that ground, Hunt J (with whom the other members of the Court agreed) addressed the interrelationship between ss 114 and 115 of the Act: [14]
…[T]he appellant had previously been convicted (in 1985) of charges of armed robbery and possession of a shortened firearm and (in 1983) of a charge of assault occasioning actual bodily harm.
The charges of being armed and in possession of disguises with intent to commit an armed robbery of which the appellant was found guilty by the jury had been laid pursuant to s114 of the Crimes Act 1900 (NSW), for which the maximum penalty of seven years penal servitude is prescribed. Section 115 provides that a person who has already been convicted of a felony and who commits any offence provided by s114 is liable to penal servitude for 10 years. Section 115 should be contrasted with s443, which permits an additional sentence of between two and 10 years penal servitude to be imposed where a person convicted of a felony has previously been convicted once of an indictable offence or an additional sentence of between three and 14 years penal servitude where he has previously been convicted twice or more often of such offences.
Section 115 has accordingly been interpreted as providing an additional offence, and not merely a higher maximum penalty for the offences provided by s114 aggravated by the existence of the prior conviction. Section 394(1) prevents an indictment being presented charging an offence such as provided by s115 until the accused has been convicted of the subsequent offence provided by s114, and s394(2) provides that, upon such conviction, the accused shall "forthwith" be charged with the offence provided by s115 "and the trial shall proceed in respect thereof". Section 372 provides that, in the indictment charging such an offence pursuant to s115, it is sufficient for the indictment to state merely that the accused was previously convicted of an indictable offence without particularly describing such offence.
In rejecting an argument that the Crown was entitled, in defending the ground of appeal, to rely on the plea of guilty to the s 115 offence as evidence of the offender's guilt on the two s 114 offences which had gone to trial, his Honour continued: [15]
In a trial of the offence provided by s115, the Crown would similarly have had to prove afresh the commission by the appellant of the offences provided by s114 of which a jury had already found the accused guilty. It would have been otherwise in relation to the previous felony, for s115 refers to the conviction for a felony, not to the commission of that felony. The care with which s372 excludes the necessity for any description of the indictable offence of which the accused was previously convicted recognises that a jury will again have to decide his guilt of the offence provided by s114, as it seeks to avoid the prejudice which could well be created by the description of that offence being before the jury if (as it was in the present case) it is an offence of the same type. And, finally, s394(2) expressly provides that a trial is to proceed in respect of the charge pursuant to s115.
It is evident that in reaching these conclusions, his Honour had regard to a number of sections of the Act which were then in force. The first was s 372 which at that time was in the following terms:
372 Indictment charging previous offence also
In an indictment for an offence committed after a previous conviction for an offence, whether indictable or punishable on summary conviction, it shall be sufficient, after charging the subsequent offence, to state that the accused was theretofore at a certain time and place convicted of an indictable offence, or an offence punishable on summary conviction, as the case may be, without particularly describing such previous offence.
The second was s 394 which at that time was in the following terms:
394 Arraignment etc on a charge of previous conviction
(1) No person shall be arraigned , in respect of any previous conviction charged in any indictment, unless he is convicted of the subsequent offence charged therein.
(2) Upon such conviction he shall forthwith be arraigned, and the jury shall be charged as to such previous conviction, or convictions, and the trial shall proceed in respect thereof.
The third was s 443 which at that time was in the following terms:
443 Additional sentences on second or third convictions
In every case where, on the conviction of a person of an offence punishable under this Act, it is made to appear to the Judge that the offender has been previously convicted of, and sentenced for, an indictable offence, under this or any former Act, such Judge may sentence the person to a term of punishment, in addition to that prescribed for the offence of which he then stands convicted.
Such additional punishment shall be:
(1) Where the offence of which the person then stands convicted is a felony:
(a) if he has been once previously so convicted and sentenced - penal servitude for ten years, or not less than two years,
(b) if he has been twice or oftener previously so convicted and sentenced - penal servitude for fourteen years, or not less than three years.
(2) Where the offence of which he then stands convicted is a misdemeanour - imprisonment for eighteen months, or not less than six months.
Each of ss 372 and 394 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW). [16] Section 372 is now replicated (in essentially the same terms) in s 25 of the Criminal Procedure Act 1986 (NSW) (the CPA) and s 394 is replicated (in essentially the same terms) in s 152 of the CPA. Section 443 was repealed by the same legislation but has not been replicated elsewhere.
In addressing the judgment in Tillott, counsel for the applicant before this Court expressly acknowledged Hunt J's conclusion that an offence contrary to s 115 was to be regarded as a separate and additional offence to that created by s 114. However, counsel sought to distinguish Tillott on the basis of what were said to be different factual circumstances. Counsel relied, in particular, on the fact that the offender in Tillott had pleaded not guilty to an indictment presented against him in the District Court alleging offences contrary to s 114, whereas the applicant had pleaded guilty in the Local Court to the s 114 offences, and had been committed for sentence to the District Court.
Counsel further submitted that the provisions of s 152 of the CPA (formerly s 394 of the Act) were only engaged in circumstances where there had been a trial. Counsel submitted that to the extent that the decision in Tillott supported the proposition that s 115 of the Act created a separate offence to s 114, it should be interpreted as having that effect only where there had been a trial for the s 115 offences.
Counsel also drew attention to the fact that s 443 had not been replicated in any other Act since its repeal. It was submitted that in circumstances where that section had been relied upon by Hunt J for the purposes of his analysis, and his conclusion that s 115 created a separate offence, the repeal of s 443 served as a further distinguishing factor.
I am unable to accept the proposition that the circumstances of the present case, and those in Tillott, are relevantly distinguishable, such that the judgment in Tillott should not be followed. I have come to that view for the following reasons.
The distinction sought to be drawn by counsel between the circumstances in Tillott and those of the present case rests primarily on the fact that the applicant pleaded guilty in the Local Court and was committed for sentence, as opposed to the offender in Tillott who pleaded not guilty to an indictment in the District Court and proceeded to trial. In my view, such purported distinction is somewhat illusory. Notwithstanding the references to "jury" and "trial", there is nothing in the terms of s 152 of the CPA which suggests that it applies only in circumstances where there is a plea on indictment followed by a trial.
I am fortified in that view by the fact that an offence contrary to s 115 of the Act is a Table 1 offence under the CPA. As such, it must be dealt with in the Local Court, absent an election by the offender for trial on indictment. [17] Such a circumstance tends against counsel's submission that the fact that the applicant pleaded guilty in the Local Court relevantly distinguishes Tillott from the circumstances of the present case. Further, pleas to an offence contrary to both s 114 and 115 are expressly facilitated by s 152, a fact which provides further support for the conclusion that the provisions of ss 114 and 115 provisions should be construed, as Hunt J did in Tillott, as creating separate offences.
For those reasons I am not satisfied that this ground of appeal is made out.
[21]
Ground 2 - The sentencing judge applied the wrong maximum penalty to the s 114(1)(d) offences, being offences 1, 6, 12 and 15, and those s 114(1)(d) offences on the Form 1s which were taken into account
[22]
The reasons of the sentencing judge
In giving his reasons, the sentencing judge set out the offences to which the applicant had pleaded guilty, and what were said to be the applicable maximum penalties. [18] In the case of each of the s 114 offences (both those to which the applicant pleaded guilty and those that he asked be taken into account), his Honour specified a maximum penalty of 10 years imprisonment, on the basis that each was a "second or subsequent offence". [19] Before this Court, both parties accepted that the maximum penalty for each of the s 114 offences was in fact 7 years imprisonment, [20] and that in specifying a 10 year maximum penalty, his Honour had erred.
However, it should be emphasised that his Honour was led into that error as a consequence of the Crown providing a sentence summary which specified, in the case of each of the s 114 offences, the incorrect maximum penalty. [21] The fact that this is so was expressly acknowledged by the Crown who appeared before this Court (who was not the Crown who appeared on sentence). [22]
[23]
Consideration
There is no doubt that the applicant was sentenced in respect of each the s 114 offences on the basis of the incorrect maximum penalty. Given the multiplicity of offences to which he pleaded guilty, along with the fact that the sentencing judge was also asked to take additional offences contrary to s 114 into account, that error was not a technical one, but was one that had the capacity to infect the exercise of the sentencing discretion. [23] It follows that this ground has been made out and that the Court must re-sentence the applicant in the fresh exercise of the sentencing discretion.
However, before moving to consider re-sentence I am compelled to point out that this is not the first occasion in recent months where this Court has upheld a ground of appeal as a consequence of a sentencing judge being led into error as a consequence of the Crown providing erroneous information. In Haines v R, [24] in the context of the Crown having provided a sentence summary specifying the incorrect maximum penalty for the relevant offence, N Adams J (with whom I agreed) said:
The Crown conceded error in the aggregate sentence on the basis that the sentencing judge stated that the maximum penalty for the offence of accessory after the fact to break, enter and steal was 14 years imprisonment when it was in fact 5 years imprisonment. The DPP solicitor had stated the wrong maximum penalty on the Crown sentence summary and the applicant's legal representatives failed to correct it. Regrettably, this is a surprisingly common occurrence. District Court judges dealing with large caseloads should be able to rely on counsel to assist in this regard.
The judgment in Haines was delivered by this Court on 7 July 2021. On 4 August 2021, less than one month later, this Court delivered judgment in McGovern aka Lanesbury v R. [25] In the context of the Crown having provided incorrect information to a sentencing judge regarding the applicant's conditional liberty at the time of the offending, I said the following (citations omitted):
[76] This Court has said on a number of occasions that there is a fundamental obligation upon counsel appearing in sentence proceedings to assist the sentencing judge. Significantly, such observations were recently repeated in the context of sentence proceedings before a Judge of the District Court in which incorrect information as to the maximum penalty for the offending had been included in a sentence summary provided by the Crown.
[77] In my view, that obligation was not met in the present case. The failure of both parties to properly assist the sentencing judge in the conduct of the sentence proceedings has given rise to the error, and the resulting miscarriage of justice, which I have identified. That failure was compounded by the fact that although the Crown's error was apparent before the applicant was sentenced, it was inexplicably not drawn to her Honour's attention until after sentence had been passed.
[78] Judges in the District Court are burdened with busy lists. In circumstances where errors of the kind identified in this case are becoming increasingly common, it is appropriate to reiterate the fact that there is a fundamental obligation on counsel to provide the assistance which sentencing judges are entitled to expect. Any further comment on the undesirability of sentence proceedings being conducted in the manner in which they were conducted in the present case would be superfluous.
These are not the only occasions on which observations of this kind have been made by this Court, although they are the most recent.
At the risk of stating the obvious yet again, Judges of the District Court are burdened with a heavy caseload, which is administered in busy lists. They are entitled to expect that all practitioners will properly discharge their duties to the Court by providing proper assistance. The Crown has a particular responsibility to assist the Court, and to act as a model litigant. That responsibility can only be properly discharged by taking the necessary care to ensure that all material provided to a sentencing judge is accurate.
[24]
RE-SENTENCE
I have already set out the charges, the additional matters that the applicant asks be taken into account, and the facts and circumstances of the offending. The maximum penalties for the various offences are set out in those parts of the table reproduced above, noting of course that the correct maximum penalty in respect of the s 114 offences is 7 years imprisonment.
There was no specific issue taken with the sentencing judge's assessment of the applicant's subjective case, and his criminal antecedents. In those respects, I gratefully adopt the findings of the sentencing judge. In particular, I accept that the applicant appears to be someone who recognises his weaknesses and who wants to address the underlying cause of his misconduct (namely drug use) but who, at the same time, recognises that he needs to spend some period in custody being eligible for release on an extended period of parole.
General and specific deterrence are necessarily important considerations, as is the need to recognise the harm done to the community in general, and the victims of the applicant's offending in particular. That said, this is certainly a case in which I am satisfied that special circumstances are established, because there is need for the applicant to spend a longer period on parole to assist in his reintegration into the community, and to generally support his rehabilitation. In all of these circumstances, there should be an adjustment in the ratio between the head sentence and the non-parole period.
In the course of argument before this Court, counsel for the applicant candidly accepted that the subjective case presented on behalf of the applicant on sentence was essentially limited to a Sentencing Assessment Report which made reference to the fact that the applicant had completed Year 10 whilst in juvenile detention, and that as a consequence of his offending since that time, had no employment history. [26] The report also stated that the applicant:
1. attributed the increase in his offending behaviour to substantial substance abuse;
2. stated that he had been in a "cycle" of addiction and criminal behaviour from his early teenage years;
3. acknowledged his struggle with addiction;
4. stated that although he can remain drug-free whilst incarcerated, he invariably relapses once he is released back in the community;
5. claimed that he did not intend to relapse or re-offend, but reflected that at times he found it easy to commit offences so he could be re-incarcerated in order to get clean;
6. stated that he believed that he is institutionalised, and may benefit from being re-integrated back into the community with a high level of support; and
7. was "future focused", and
8. stated that he was hoping to gain entry into the Compulsory Drug Treatment Correctional Centre (CDTCC) at Parklea if he was sentenced to a term of imprisonment. [27]
There is no evidence before this Court as to the applicant's progress in custody (if any) since he was sentenced. Notwithstanding the paucity of evidence as to the applicant's subjective circumstances, it is plain that his offending was inextricably linked to his drug addiction, and that his risk of re-offending, and his prospects of rehabilitation, are largely dependent upon his remaining drug-free in the future. In those circumstances, in addition to recognising the seriousness of the offending, any sentence must have regard to the need to address the applicant's rehabilitation. In determining the aggregate sentence set out below, I have had regard to all of these factors.
The indicative sentences at which I have arrived in the fresh exercise of the sentencing discretion, and the Form 1 matters I have taken into account, are set out in the following table:
Court File Reference H Sequence For Sentence or Form 1 Indicative Sentence Form One Offence Taken into Account
2019/114105 H424818692
2
1 002 20/10/2018 - West Ryde - entered garage of Pink Lotus Massage with intent to steal Sentence 2 years 9 months imprisonment Form 1 taken into account
S 114(1)(d) Crimes Act 1900
3
2 003 20/10/2018 - West Ryde - entered garage of Pink Lotus Massage with intent to steal after previous conviction on 11/05/2018 of break enter and steal at Sutherland Local Court Sentence 2 months imprisonment
S 115 Crimes Act 1900
4
3 004 20/10/2018 - West Ryde - assault of HLZ Sentence 9 months imprisonment
S 61 Crimes Act 1900
2019/120339 H71173766
2
002 16/12/2018 - Haymarket - obtained property to the value of $44.80 by deception using the bank card of SG Form 1 Attach to Court File 19/114105-002
S 192E(1)(a) Crimes Act 1900
3
003 16/12/2018 - Chippendale - stole a wallet & bank card from SG Form 1
S 117 Crimes Act 1900
4
004 16/12/2018 - Chippendale - entered Fogo Restaurant with intent to steal Form 1
S 114(1)(d) Crimes Act 1900
2018/389554 H69414011
13
4 011 30/11/2018 - Burwood - stole handbag with $2,000 cash, Pandora jewellery of $1,000 value, reading glasses of $200 value from ML Sentence 1 year 9 months imprisonment Form 1 taken into account
S117 Crimes Act 1900
9
007 17/12/2018 - Burwood - stole a wallet with $50 cash, 2 bank cards, identification cards, an opal card, & keys from SP Form 1 Attach to Court file 18/389554-011
S 117 Crimes Act 1900
11
5 009 11/12/2018 - Drummoyne - stole $700 cash from Kikki K (business) Sentence 1 year 3 months 22 days imprisonment
S 117 Crimes Act 1900
16
014 14/12/2018 - Strathfield - entered the building of Beijing Impressions Restaurant with intent to steal Form 1 Attach to Court file 19/189659-004
S 114(1)(d) Crimes Act 1900
12
010 14/12/2018 - Strathfield - stole a wallet, Korean passport, $100 cash, a bank card, an Opal card & cigarettes from EC Form 1
S 117 Crimes Act 1900
14
6 012 18/12/2018 - Ashfield - entered Beijing Impressions Restaurant with intent to steal Sentence 1 year and 9 months imprisonment Form 1 taken into account
S 114(1)d Crimes Act 1900
15
7 013 18/12/2018 - Ashfield - entered Beijing Impressions Restaurant with intent to steal after previous conviction on 11/05/2018 at Sutherland Local Court of break enter and steal Sentence 2 months imprisonment
S 115 Crimes Act 1900
4
004 18/12/2018 - Ashfield - resisted Sergeant John Rayment in execution of his duty Form 1 Attach to Court file 18/389554-003
S 58 Crimes Act 1900
6
006 18/12/2018 - Ashfield - goods in custody - Korean identity document. Form 1
S 527C(1)(a) Crimes Act 1900
5 S 166
8 005 18 December 2018 - Ashfield - possess 0.08 grams of crystal methylamphetamine Criminal Procedure Act 1986 6 months 23 days imprisonment
S 10(1) Drug Misuse & Trafficking Act 1985
2
002 18-12-2018 - Ashfield - stole a handbag with a health card, Medicare card, Opal card, dentures, glasses, and a lunch box & card holder from QS Form 1 Attach to Court file 18/389554-012
S 114(1)(d) Crimes Act 1900
3 S 166
9 003 18 December 2018 - Ashfield - assault Sergeant John Rayment in the execution of duty occasion actual bodily harm Criminal Procedure Act 1986 1 years 1 month 14 days imprisonment Form 1 taken into account
S 60(2) Crimes Act 1900
2019/81466 H73127083
6
10 006 8 December 2018 - St Ives - stole $34,235 cash from HY & DQ Sentence 2 years 23 days imprisonment
S 117 Crimes Act 1900
2019/76821 H69195460
1
11 001 10/12/2018 - Eastwood - stole $900 cash from HSC 1 years 3 months 22 days imprisonment
S 117 Crimes Act 1900
2019/70480 H72965681
8
12 008 11/12/2018 - Gladesville and West Ryde - entered Roaming Bird shop with intent to steal Sentence 2 years and 8 months imprisonment Form 1 taken into account
S 114(1)(d) Crimes Act 1900
9
13 009 11/12/2018 - Gladesville and West Ryde - entered Roaming Bird shop with intent to steal after conviction of break enter and steal at Sutherland Local Court on 11/05/2018 Sentence 2 months imprisonment
S 115 Crimes Act 1900
4
004 10/12/2018 - West Ryde - entered the Roaming Bird shop with intent to steal Form 1 Attach to Court file 19/70480-008
S 114(1) (d) Crimes Act 1900
1
14 001 11/12/2018 - Gladesville - stole a handbag and contents from HXP Sentence 1 year 3 months 22 days imprisonment
S 117 Crimes Act 1900
3
003 11/12/2018 - Meadowbank - stole backpack containing a passport, sunglasses, headphones, and clothing, of $600 value from JG Form 1 Attach to Court file 19/70480-006
S 117 Crimes Act 1900
6
15 006 11/12/2018 - Meadowbank & West Ryde - entered Bencino Café with intent to steal Sentence 2 years 10 months imprisonment Form 1 taken into account
S 114(1)(d) Crimes Act 1900
7
16 007 11 December 2018 - Meadowbank & West Ryde - entered the Bencino Café with intent to steal after conviction of break enter and steal at Sutherland Local Court on 11 May 2018 Sentence 2 months imprisonment
S 115 Crimes Act 1900
2019/192608 H71932242
4
003 17/0/2018 - Rozelle - entered Darlings Bistro with intent to steal Form 1 Attach to Court file 19/70480-006
S 114(1)(d) Crimes Act 1900
6
005 17/10/2018 - Rozelle - stole a Samsonite backpack and contents from MC Form 1
S 117 Crimes Act 1900
7
006 17/10/2018 - Rozelle - stole a Calvin Klein backpack and contents from RS Form 1
S 117 Crimes Act 1900
2019/189659 H71852315
4
17 004 12/12/2018 - Chatswood - stole $40 cash from QAF in the shop of 88 Foot Massage and broke out Sentence 2 years 7 months 23 days imprisonment Form 1 taken into account
S 112(1)(b) Crimes Act 1900
3
003 12/12/2018 - Chatswood - intentional damage to a vase of 88 Footage Massage Form 1 Attach to Court file 19/189659-004
S 195(1)(a) Crimes Act 1900
5
005 12/12/2018 - Chatswood - break and enter of Welcome Health Chiropractic and damage to the door and lock Form 1 Attach to Court file 19/189659-004
S 112(1)(a) Crimes Act 1900
[25]
Before the sentencing judge, the applicant sought an order for referral to the Drug Court for a determination as to whether he should be the subject of a compulsory drug treatment order. I note that such an order can only be made in respect of a person who is "an eligible convicted offender". An eligible convicted offender is defined in s 5A of the Drug Court Act 1998 (NSW) in the following terms:
Definition of "eligible convicted offender"
(1) A person is an eligible convicted offender if -
(a) the person is convicted of an offence, other than an offence referred to in subsection (2), and
(b) except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed-
(i) the unexpired non-parole period of the sentence was a period of at least 18 months, and
(ii) the unexpired total sentence was a period of not more than 6 years, and
(d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and
(e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and
(f) the person satisfies such other criteria as are prescribed by the regulations.
(1A) Subsection (1) (b) does not prevent a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court).
(2) A person is not an eligible convicted offender if-
(a) the offence for which the person has been convicted involved the use of a firearm, or
(b) the person has been convicted at any time of any of the following:
(i) murder, attempted murder or manslaughter,
(ii) sexual assault of an adult or child or a sexual offence involving a child,
(iii) any offence involving the violent use of a firearm,
(iv) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act,
(v) any offence prescribed by the regulations for the purposes of this section.
(3) A person is not an eligible convicted offender if, in the opinion of the Drug Court-
(a) the person suffers from a mental condition, illness or disorder that -
(i) is serious, or
(ii) leads to the person being violent, and
(b) the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program.
In light of the sentence that I am proposing, the applicant does not meet the criteria in ss 5A(1)(b)(i) and (ii). In these circumstances, I do not propose to make any order referring him to the Drug Court.
[26]
ORDERS
For all of these reasons, I propose the following orders:
1. Leave to appeal against sentence is granted.
2. The appeal is allowed.
3. The aggregate sentence imposed in the District Court is quashed.
4. In lieu thereof, the applicant is sentenced to an aggregate term of 6 years imprisonment commencing on 1 January 2020 and expiring on 31 December 2025.
5. Specify a non-parole period of 3 years and 4 months imprisonment commencing on 1 January 2020 and expiring on 30 April 2023.
6. The applicant will be eligible for release on parole on 30 April 2023 and his sentence will expire on 31 December 2025.
[27]
Endnotes
AB 87.
[2020] NSWDC 824 at [98].
Crown written submissions at [10].
It is accepted that this is an error and should be a reference to s 114(1)(d) of the Crimes Act 1900 (NSW).
(1991) 53 A Crim R 46.
(1991) 53 A Crim R 46.
(2009) 75 NSWLR 307; [2009] NSWCCA 170 at [32]; 196 A Crim R 398.
At [33].
At [33].
At [34].
At [35].
See for example R v KCH [2001] NSWCCA 273; MM v R [2016] NSWCCA 235.
R v Sagiv (1986) 22 A Crim R 73 at 80.
Commencing at p 53.
At 54.
Schedule 3(12).
Criminal Procedure Act 1986 (NSW) s 260.
Commencing at [6].
At [6]; [11]; [13]; [19]; [22]; [24].
See appellant's written submissions at [75]; Crown's written submissions at [34].
AB 59 - AB 62.
Crown written submissions at [33]-[34].
Maldonado v R [2009] NSWCCA 189 at [19] per Latham J.
[2021] NSWCCA 149 at [67].
[2021] NSWCCA 176 at [76] - [78].
AB 203.
AB 203.
[28]
Amendments
06 April 2022 - Order (6) - now reads "30 April".
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: 06 April 2022