Donald (a pseudonym) v R

Court of Criminal Appeal (NSW)|2021-07-02|Before: Payne JA, Rothman J, Button J

Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2019/90093; 2019/90104; 2019/90106 Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 19 June 2020 Before: McClintock SC DCJ File Number(s): 2019/90093; 2019/90104

Matter H71120871 (hereinafter "Matter 871") 1. Sequence 1: break enter and steal, committed on 15 March 2019, the maximum sentence for which is 14 years' imprisonment; 2. Sequence 6: drive whilst disqualified, committed on 15 March 2019 for which the maximum penalty is 6 months' imprisonment and/or a fine equivalent to 30 penalty units; Matter H69856930 (hereinafter "Matter 930") 1. Sequence 2: take and drive conveyance without the consent of the owner, committed on 23 to 24 February 2019, the maximum penalty for which is 5 years' imprisonment; Matter H0214924 (hereinafter "Matter 924") 1. Sequence 1: steal from person, committed on 17 February 2019, the maximum penalty for which is 14 years' imprisonment; 2. Sequence 5: steal from person, committed on 12 March 2019, the maximum penalty for which is 14 years' imprisonment; 3. Sequence 12, steal from person, committed on 9 March 2019, the maximum penalty for which is 14 years' imprisonment; 4. Sequence 16: larceny, committed on 17 February 2019, the maximum penalty for which is 5 years' imprisonment.

As well as the offences to which the applicant pleaded guilty, 6 further offences were notified and sought to be taken into account by the applicant on a Form 1. They were: Sequence 2 in Matter 871, take and drive conveyance without consent of owner, committed on 15 March 2019; Sequence 3 in Matter 871, goods in custody, committed on 21 March 2019; Sequence 6 in Matter 924, dishonestly obtain property by deception, committed on 12 March 2019; Sequence 9 in Matter 924, larceny, committed on 12 March 2019; Sequence 11 in Matter 924, larceny, committed on 5 February 2019; and Sequence 13 in Matter 924, larceny, committed on 14 March 2019.
The learned sentencing judge imposed an aggregate sentence of 5 years' imprisonment, with a non-parole period of 3 years, commencing on 30 July 2019. The non-parole period is set to expire on 29 July 2022 and the head sentence would expire on 29 July 2024.
In imposing the aggregate sentence, his Honour set out a number of indicative sentences which were as follows: 1. Sequence 1 (Matter 871): taking into account sequences 2 and 3 on the Form 1, 3 years' imprisonment; 2. Sequence 6 (Matter 871): 12 months' imprisonment; 3. Sequence 2 (Matter 930): 12 months' imprisonment; 4. Sequence 1 (Matter 924): 18 months' imprisonment; 5. Sequence 5 (Matter 924) taking into account Sequence 6 (Matter 924 on a Form 1): 20 months' imprisonment; 6. Sequence 12 (Matter 924): 18 months' imprisonment; 7. Sequence 16 (Matter 924), taking into account Sequences 9, 11 and 13 (Matter 924 on a Form 1): 12 months' imprisonment.
As can be seen from the foregoing, his Honour indicated a sentence of 12 months' imprisonment for the offence of drive motor vehicle during a disqualification period, which is a contravention of s 54(1)(a) of the Road Transport Act 2013 (NSW). The maximum penalty, as is recited above, for that offence is 6 months' imprisonment and/or 30 penalty units fine.
His Honour had been informed, during the course of the sentencing proceedings, that the maximum penalty for the offence was 2 years' imprisonment and operated on that basis. It is no criticism of the learned sentencing judge that he accepted that which he was told by counsel and sentenced accordingly.
None of the charged offences were offences for which there had been set a standard non-parole period. As a consequence, his Honour was not required to indicate non-parole periods for the indicative sentences that were set out in his Honour's remarks on sentence and his Honour did not indicate non-parole periods for each offence.
Each of the foregoing offences was committed whilst the applicant was on a good behaviour bond, pursuant to the terms of s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That bond was imposed for the offence of aggravated break and enter with intent to steal. On 10 May 2019, the applicant, having been called up for sentence, was sentenced by Judge Girdham SC for that offence to imprisonment for 3 years and 4 months, expiring on 30 November 2021 with a non-parole period of 2 years, expiring on 30 July 2020.
The learned sentencing judge, as earlier indicated, imposed an aggregate sentence of 5 years, with a non-parole period of 3 years, being a ratio of 60%, which was to have commenced on 30 July 2019. As a consequence, the sentence imposed by the learned sentencing judge was partly concurrent with the sentence imposed by Girdham SC DCJ for the previous offence.
On account of that partial accumulation between the sentences, the effect of both sets of sentences was that there was a total effective sentence of 6 years' imprisonment, with a 4-year non-parole period, dating from 31 July 2018. The non-parole period was, as a consequence of the accumulation, set to expire on 29 July 2022 and, therefore, reflected a ratio of 67% between the non-parole period and the head sentence.
The prescribed ratio [1] is a ratio between the non-parole period and the remainder of term of not less than 3:1. In other words, the prescribed ratio is that the non-parole period should not be less than 75% of the head sentence, unless the sentencing judge determines that special circumstances exist. [2]
As can be seen from the foregoing reference, the ratio between the non-parole period and the remainder of sentence applies to all sentences, including aggregate sentences.
The effect of the approach that the learned sentencing judge took to accumulation and concurrency with the pre-existing sentence imposed by Girdham SC DCJ resulted in the non-parole period being 67% of the head sentence, notwithstanding that his Honour had determined that the non-parole period should be 60% of the head sentence. Coincidentally, her Honour Judge Girdham SC had also determined that it was appropriate for the non-parole period to be 60% of the previous head sentence.
The Crown concedes that there has been error in the setting of the indicative sentence for the drive whilst disqualified offence on the basis of a maximum sentence which was four times the maximum prescribed by the legislation, and setting a sentence which is twice the sentence allowed by the legislation. It will be necessary for the Court to re-sentence. [3]
While it may be said that the aggregate sentence of 5 years may not have been affected very much by the indicative sentence that his Honour prescribed for the offence of drive while disqualified, it cannot be said that the aggregate sentence was not impacted by that error. Even if it were not affected, there is error that requires re-sentencing.
Nevertheless, his Honour imposed an aggregate sentence that was a term of imprisonment 2 years more than the most severe individual indicative sentence set. It is likely that the mistake into which his Honour was led had an impact upon the aggregate sentence imposed.
As a consequence, it is necessary for the Court to determine, for itself, an appropriate sentence to impose upon the applicant and, if that sentence is less severe than the sentence imposed by the learned sentencing judge, to quash the sentence and impose a less severe sentence.

Background Facts

The parties agree that the Remarks on Sentence accurately set out the circumstances surrounding the offending and, generally, the applicant's circumstances. His Honour, in turn, relied upon agreed facts that were before the Court for the purpose of the sentencing proceedings. [4]
As earlier indicated, the applicant pleaded guilty in the Local Court, which was, relevantly, the earliest opportunity and the sentencing judge, appropriately, allowed a 25% discount for the utilitarian value of the plea of guilty. I, too, would allow a 25% discount for the plea of guilty.
In essence, the offences are all lowest level of seriousness, low-value thefts or fraud, albeit there is a number of them.
The learned sentencing judge recited the applicant's criminal history, which is described as quite extensive and started with a stealing charge in 1995 when the applicant was 13. There are a number of offences before the Children's Court, including stealing cars, goods in custody, and larceny.
By 2001, the applicant was dealt with as an adult for goods in custody; carrying a cutting weapon; and another offence of dishonesty for which he was placed on a bond. The bond was breached, and the applicant was imprisoned for a short time when that was called up. He also served sentences for goods in custody; break and enter; and larceny.
Over and above the foregoing, the applicant's criminal history includes imprisonment for custody of a knife; further occasions where there were goods in custody; break and enter; and larceny.
I accept the description of the learned sentencing judge that it is clear from the material before the Court that the applicant has spent very little of his adult life out of custody. The longest periods the applicant has been in the community as an adult have been: 14 months between 2001 and 2002; 14 months between 2005 and 2006; 15 months between 2008 and 2009; and another 15 months between 2010 and 2011.
The applicant went into the Drug Court program and was out of custody between 2014 and 2016 as a result of being enrolled in that program. He was released to parole on 5 April 2017; was returned to prison for the breach of parole on 7 June 2017; and the sentence expired on 19 December 2017. As earlier stated, he received a bond in 2018 which ended with his return to prison on 22 March 2019, the day he was arrested for the offences for which he received the impugned aggregate sentence, now on appeal.
There can be little doubt that his offending is largely driven by the abuse of drugs and the custodial history shows numerous failed drug tests while incarcerated.
Exhibit E on Sentence is a table setting out the various criminal proceedings, relevant to the sentence proceedings. For clarity, it is appropriate that Exhibit E be reproduced, and it is in the following terms: H53560752 H55742019 H58387634 H6245443 H65100663 H347972194 Offences presently before the Court 24/12/13 Offence committed (Break, enter, steal) 09/01/14 Offence committed (Steal from person) 27-30/01/14 Offences committed (Larceny, Receiving, 3x Fraud) 04/02/14 Charged 31/07/14 Indicative sentence at Drug Court (19 months imprisonment aggregate sentence) 19/08/14 Charged 12/03/15 Indicative sentence at Drug Court (11 months imprisonment aggregate sentence) 17/06/15 Offences committed (Larceny, found with intent to commit indictable) 13/07/15 Charged 21/01/16 Final Sentence at Drug Court Final Sentence at Drug Court (2 x S9 Bond 9 months) (2 x S9 Bond 9 months) 14/03/16 Offences committed (4 x larceny, 3 x fraud) 28/07/16 Offences committed (Larceny, stalk intimidate) 07/08/16 Charged 13/10/16 Bonds called up and resentenced (15 months imprisonment aggregate sentence) Bonds called up and resentenced (15 months imprisonment aggregate sentence) Sentenced at Drug Court (15 months imprisonment aggregate sentence) Sentenced at Drug Court (15 months imprisonment aggregate sentence) 05/04/17 Non parole period expired Non parole period expired Non parole period expired Non parole period expired 22/04/17 Offences committed (aggravated Break and Enter with Intent) 18/05/17 Charged 19/05/17 Granted bail 05/11/17 Parole period expired Parole period expired Parole period expired Parole period expired 25/07/18 Offence committed (possess prescribed restricted substance) 14/08/18 Charged 25/07/18 Sentenced ($500 fine) 18/12/18 Bail continued 17/02/19 Offence committed (H...924 steal from person, larceny) 23/02/19 Offence committed (H… 930 take and drive) 09/03/19 Offence committed (H…924 Steal from person) 12/03/19 Offence committed (H…924 Steal from person) 15/03/19 Offence committed (H…087 break, enter and steal) 21/03/19 Arrested and charged bail refused. 22/03/19 Bail refused 10/05/19 Sentenced (3 years 4 months imprisonment NPP 2 years, commencing 31/07/18, expiring 30/07/20)

The last two columns in the foregoing table relate to the sentence imposed by her Honour Judge Girdham SC and the sentence imposed by his Honour Judge McClintock SC respectively, the latter being that which is the subject of the appeal.
As already stated, there were agreed facts on Sentence. The brief summary of the facts provided by the sentencing judge assumes a familiarity with the circumstances of the offending, but it is necessary to be a little more expansive in the summary as a person reading these reasons may be unfamiliar with the circumstances of the offending. The foregoing is not intended to be, nor is it, a criticism of the learned sentencing judge.
As already indicated, there were three matter numbers: Matter 871; Matter 930; and Matter 924. In each of those matters there were a number of offences, which have already been described.
Each of those offences were given a sequence number, as a consequence, there are, relevant to sentencing, two offences that were marked as Sequence 2, one being in relation to Matter 871 and one being in relation to Matter 930. There are also two offences marked Sequence 1, one in relation to Matter 871 and one in relation to Matter 924. Otherwise, for convenience, the sequence numbers are different and do not need to be otherwise differentiated.
The first offences, Matter 871, were offences committed at St Paul's College, Sydney University. On 12 March 2019, the victim in the first offence parked a motor vehicle in a student car park at St Paul's College. The building was secured.
The victim left his room for the day and left a number of items of property, being, a laptop, a Garmin watch, a Nautical watch and keys to a Peugeot motor vehicle in his room. His girlfriend was in the room at the time and remained there. She later left the room and when she left, the victim's property was still on his desk.
At 1:05 PM, the applicant broke into and entered the room; he stole property, including the laptop, the two watches and the keys. The Form 1 in relation to this matter is the take and drive of the Peugeot motor vehicle, for which he used the keys he had stolen. He drove away from the campus.
The second set of offences, Matter 930, occurred between 23 and 24 February 2019. The victim and his family returned home at Oxford Street Rozelle; parked their Mazda motor vehicle in their garage; and went inside.
Early the next morning, the victim reported that the Mazda had been stolen. The applicant was arrested on 21 March 2019 in Chippendale and provided information from which the Police were later able to recover the vehicle.
The third set of offences, Matter 924, occurred on and after 5 February 2019. It has been described accurately as a crime spree, albeit each offence being relatively petty in seriousness.
At or about 3:42 PM on that day, the applicant stole from the display area of the Office Works store at Pitt Street, Sydney. He stole a Lenovo Tablet valued at $297; and a Samsung Tablet valued at $419.
At 3:28 PM on 17 February 2019, the applicant boarded a city-bound train at Central Station and, in the course of the journey, stole an iPad Pro worth $1,537.17 USD from the victim's laptop bag. The victim was sitting near the applicant on the train.
At about 4:30 PM on 17 February 2019, the applicant entered the Novotel at Murray Street Pyrmont and was depicted exiting a room behind the cafe, carrying a large Samsung flat-screen television. He attempted to use the lift, but, on seeing a staff member approach, the applicant dropped the television in a stairwell and left the building.
On 9 March 2019 at 3:34 PM, the applicant stole an Apple iPhone worth $1200 from the victim in that offence, who was working at a Pop-Up shoe store in Burwood Westfield. The applicant committed that offence by walking past a stool on which the phone was placed, close to the victim, while the victim was distracted talking to a customer.
On 12 March 2019 at 2:55 PM, the applicant, while seated at a table at the Queen Victoria Building in the City, used his foot to slide a nearby chair with the victim's handbag closer to him. He then reached across and took the victim's wallet from the bag.
The wallet contained various cards, personal papers, cash, two Westpac cards (one personal and one business) and an ANZ Visa card.
That afternoon, between 2:50 PM and 3:45 PM, the applicant used all three of the victim's bank cards to make purchases (including gift vouchers over 12 transactions) totalling $815.95.
At about 6:50 PM on 12 March 2019, the applicant entered a cafe in Pyrmont, walked towards the staff area, forced open a locked cupboard under the cash register and removed $500 in cash.
On 14 March 2019, the applicant entered a costume jewellery store at World Square in the Sydney CBD, stole a silver bracelet with several charms from the display area and left without paying. The total value of the items was $419. On arrest, the applicant's phone revealed that he was offering to sell the bracelets and also other items.
As earlier stated, the applicant had previously been granted a s 11 Bond and was on conditional liberty at the time that these offences were committed. The conditional liberty arose as a result of orders being made under s 11 of the Crimes (Sentencing Procedure) Act 1999 for an offence of aggravated break and enter with intent to steal.
On 10 May 2019, the s 11 Bond was called up and Girdham SC DCJ sentenced the applicant. The facts of that matter are before the Court and were before the learned sentencing judge as part of Exhibit D on Sentence.
The offence for which the applicant was sentenced by Girdham SC DCJ occurred in Pyrmont on 22 April 2017. At about 1 PM on that day the applicant broke into a residence while the victims were in the courtyard.
When the victims became aware of the applicant, he was in an upstairs bedroom and an exchange occurred in which the applicant threatened one of the victims; rushed past another on the staircase; and broke out of the house by kicking the front door, which broke the hinge and latch. No property was stolen from the house at the time, but damage was occasioned to the front security door, rendering it inoperable.
In the bedroom in which the applicant had been confronted, the drawers had been opened and clothes had been scattered around the room. The obvious inference arose that the applicant was seeking to steal property of value.
As already stated, the applicant has a lengthy criminal history. Apart from the matters for which he was sentenced by Girdham SC DCJ, the applicant had imposed upon him the sentence in the Drug Court. That sentence was imposed in 2016 and was for a term of imprisonment of 15 months, with a non-parole period of 8 months. The offences for which he was there sentenced were four sets of similar property-related offences.
The applicant was released to parole from the sentence arising from the Drug Court on 5 April 2017 and was re-arrested after the commission of the offence for which he was sentenced by Girdham SC DCJ.

Subjective Circumstances

The Court has before it, as did the sentencing court, a confidential medical report from Justice Health. [5] The medical report discloses a number of medical problems suffered by the applicant. He has cirrhosis of the liver, secondary to Hepatitis C and alcohol dependency. An ultrasound showed an enlarged liver with coarse echotexture, which is consistent with the cirrhosis and hepatitis.
The Report also discloses that the applicant is currently on the methadone programme and has been prescribed 80 mg of methadone and 30 mg of mirtazapine, the latter being an antidepressant. He is currently being treated in prison for his drug and alcohol dependency and his liver condition is currently stable but is the subject of regular follow-up.
The Court also has before it a psychologist's report and an addendum thereto. [6] The psychologist, Mr Anthony Diment, provided his first report, dated 14 March 2020, which reflects an examination on 11 March 2020 that occurred at Parklea Correctional Centre. The applicant was 38 years of age and appeared, for his examination, neatly groomed and dressed. The applicant was softly spoken and appropriately polite, according to the psychologist.
Further, the applicant was, according to the psychologist, on examination, alert and aware of the time, date and place and showed that his memory and cognitive systems were intact. The replies given to questions from the psychologist were described as direct, open and thoughtful and the psychologist could find no indication of serious psychopathology.
The psychologist reported the life history given to him by the applicant. It warrants summary.
The applicant is the second of five children, his father having passed away from a heroin overdose, when the applicant was about 10. His father was approximately 30 at the time. His mother died at the age of about 50, from cirrhosis of the liver at a time when the applicant was imprisoned.
The applicant described his siblings as being "scattered around and some of them have also had problems". He reported that he was relatively close to all his siblings and did talk to them, which helped him.
Part of the memories of his early childhood, recounted by the applicant, was of "lots of domestic violence". The family had moved to Queensland when the applicant was very young and then to New Zealand, as his father was a New Zealander.
They went into refuges from time to time when his father was particularly violent to his mother; his father was a very heavy heroin user. His mother coped by drinking and using drugs.
At the age of about eight or nine the family moved back to Sydney. The applicant was in foster care for a while, being for a few months or so. After his father died his mother enforced no rules in the family and shortly thereafter or as soon as he was able, the applicant moved in with a friend.
The applicant attended primary school in New Zealand and described himself as being above-average at school and did not have learning problems. Nor did he get into trouble very much, although he described himself as a "class clown".
When he returned to Sydney, he went to Glebe Primary School and then High School. The applicant left school during year 10. Over the years, the applicant performed cash-in-hand jobs such as landscaping or cleaning or removalist work.
He reports being raped by an officer at Minda (Juvenile Justice Centre). That assault, according to the applicant, has haunted him ever since; he thinks about it all the time; and it makes him sick with fear and worry.
The psychologist records that the applicant was teary at the time that he was recounting this incident, but the applicant reported that, even though he gets very depressed at times, which can last for a few days or more, he is able to manage.
Notwithstanding his knowledge of the "Royal Commission into Sex Abuse [sic]", the applicant did not want to talk about the events as it was too disgusting and embarrassing to him. Nevertheless, he has now reported it and is very nervous about the whole circumstance.
The applicant used alcohol from when he was very young; from about 12 years of age and he drank a fair bit. He started abusing cannabis at the age of 14, but did not really like it. He reports having taken all sorts of drugs and, when he was 20 years of age, had a Xanax problem. He has not used while he has been in custody and feels better for it.
He has had various relationships, none of which lasted because of his imprisonment. He has a daughter with one of his partners and a son with another. They are 11 and 5 respectively.
The psychological assessment and testing scored the applicant as between moderate and severe range for anxiety and above-average in the severe range for depression. The risk potential arising from a Personality Assessment Screener scored the applicant's risk at 92.19, which correlates with the proposition that 92% of persons with such a score have problems of clinical significance.
The applicant's risks are marked in relation to acting out; social withdrawal; and suicidal thinking. His risks are moderate in relation to negative affect; health problems; alienation; and alcohol problems. Lastly, his risk is mild in relation to hostility control and is at normal risk for anger control both of which relate to interpersonal hostility.
The applicant described himself to the psychologist as "broken", which description shows a degree of insight into the difficulties the applicant is suffering. The psychologist expressed the opinion that there is evidence of longer-standing anxiety and depression arising, it seems, from a very deprived background and his early and continuing emotional and physical abuse. The psychologist suggested that the applicant fits the DSM-5 diagnosis criteria for Persistent Depressive Disorder with Anxiety (i.e. chronic depression) moderate-to severe at times; and Substance Use Disorder (mostly "ice" and alcohol), in remission.
The psychologist, who, in accordance with the protocols, would probably be reluctant to diagnose the applicant officially, did suggest that the applicant fits many of the criteria for a diagnosis of Post-Traumatic Stress Disorder (PTSD), arising from his childhood experiences both as a victim of violence and as a witness to it, including, I assume, the rape that occurred while he was in custody. It would seem, from the symptoms described by the applicant to the psychologist, that the applicant may well fit PTSD criteria, even if it were confined to the rape incident.
The psychologist seems to have formed a favourable view of the applicant's prospects of rehabilitation, as do I and as did the sentencing judge. He has expressed remorse and a degree of insight into the problems that he suffers, and the applicant expressed the view that if he were not to change his circumstances now, he would end up being a lonely old person.
Also, the applicant had some understanding of the effect his current behaviour was having on his relationship with his children, with whom, according to the desire expressed by him, he wanted to be involved in a good way, in the longer term.
Lastly, the psychologist expressed the need for the applicant to receive continuing medical assessment and monitoring for his anxiety and depression and psychological treatment for those difficulties. The psychologist noted that the applicant had been drug-free for at least a year and would benefit from an appropriate program in relation to drug and alcohol abuse, both in prison and on release.
The community sessions relating to anxiety and depression would, no doubt, also deal with those aspects of the behaviour of the applicant that seem to relate to PTSD. I note the desirability of treatment in prison, but am unable to direct such treatment.

Remarks on Sentence

As earlier commented, the sentencing judge briefly summarised the facts in relation to each matter. The Applicant's Written Submissions summarised the relevant findings in a manner that is not challenged. The summary is in the following terms: "(i) all offences took place between 5 February and 14 March 2019; (ii) 25% discount for plea of guilty; (iii) break and enter on 15 March 2019 at lower end of the spectrum in terms of objective seriousness; (iv) take and drive on 15 March 2019 at the lower end of objective seriousness in terms of the commission of that offence; (v) extensive criminal history and since 2001 has spent little of his adult life out of custody; (vi) numerous failed drug tests in custodial history; (vii) Justice Health report indicates advanced liver disease for which treatment is available in custody; (viii) work and residence available with the applicant's brother upon release is relevant to the prospects of rehabilitation; (ix) letter of apology from applicant expressing remorse, and noting desperate state at time of offending as felt he had lost his family, accepted as genuine as well as intent to engage in more effective and productive rehabilitation; (x) rape as a resident of Minda and ongoing effects (shame, fear, helplessness, loss of confidence, loss of desire to socialise and incidents of self-harm) accepted; (xi) accepted content of psychologist's report including: (a) applicant direct, open and thoughtful with no signs of serious psychopathology; (b) intelligent with insight into condition when sober; (c) unprompted expression of remorse regarding offending; (d) second of five children; (e) father died of heroin overdose aged 30 (when the applicant was 10 years old) and mother of liver disease aged 50; (f) childhood characterised by domestic violence and transience, foster care; (g) left school during Year 10; (h) heroin and Xanax addiction; (i) raped by officer in juvenile detention and ongoing anxiety when alone with guards; (j) symptoms indicative of depression and anxiety; (k) two children aged 11 and 5 years who he has not seen since incarcerated probably due to COVID-19 restrictions; (l) offences committed when applicant evicted from rehabilitation and was on 'ice bender' when applicant was not usually user of ice; (m) moderate to severe range of anxiety and severe range of depression, including suicidal ideation in part with current predicament but also longstanding due to background and upbringing, as well as being exacerbated by sexual assault when he was 17 years old; (n) normal amount of empathy and care for others which is surprising given his background and the amount of time he has spent in custody; (o) rehabilitation prospects good due to remorse, support of siblings and motivation to have better relationship with children, however counselling required to address depression, anxiety and relapse prevention; (xii) offending opportunistic and rejects submission that professional planning involved; (xiii) form 1 offences taken into account 'in the usual way to affect the overall exercise of sentencing discretion[']; (xiv) aggravating feature of offences being committed whilst the subject of conditional liberty; (xv) record disentitles him to leniency; (xvi) institutionalisation resulting in little opportunity to learn skills involved in being in the community and being law abiding; (xvii) 'the sentencing discretion obviously has to take into account issues of totality and accumulation. There has to be some degree of accumulation in relation to these offences'; (xviii) Bugmy principles applicable due to significantly deprived upbringing including sexual assault as a result of failure of both private institution of family and public institution to protect young person; (xix) Henry principles applicable regarding very early drug addiction requiring significant period of time drug free with assistance, both psychological and other; (xx) 'In the circumstances there is really no doubt that there has to be a finding of special circumstances and I make that finding'; (xxi) 'I have to take into account issues of general deterrence, specific deterrence, denunciation, but I also have to take into account rehabilitation and issues finally taking into account the protection of the community'; (xxii) In relation to backdating, accumulation and totality: 'I intend to backdate the sentence as part of my discretion into the sentence that is being now served. I take that partly in relation to issues of accumulation and totality. I need also to ensure that I do not sentence him to an unduly harsh sentence, having regard to the fact that he has been in custody for a considerable time already. Accordingly, engaging in the process of intuitive synthesis, I propose to impose the following sentence by way of an aggregate sentence. As I have said, there would have to have been some concurrency and some partial accumulation to reflect the differing offences and differing times for the offences. I note that the offences took place over a relatively short period of time.'" (Footnotes omitted).
Neither party challenges the findings described above nor is there a basis to challenge them. The circumstances of the commission of the offences and the subjective circumstances of the offender are uncontroversial.
I confirm that, on my reading of the material before the sentencing court and before this Court, the findings are appropriate, and I would make the same findings on the material available.

Grounds of Appeal and Consideration

As already stated, the Grounds of Appeal include a ground, being the amendment to add Ground 4, relating to the mistake as to the maximum penalty available for the driving whilst disqualified that occurred on 15 March 2019. As already stated, the learned sentencing judge had been informed that the maximum sentence was 2 years' imprisonment and the learned sentencing judge set out an indicative sentence of 12 months' imprisonment.
The maximum sentence for this offence is 6 months' imprisonment and the sentence indicated was twice that which was allowed as a maximum. Neither party suggests that the maximum sentence would have been an appropriate indication of the objective seriousness and the subjective circumstances of the offender relating to the particular offence.
Further, even if it were, the learned sentencing judge correctly allowed 25% discount for the utilitarian value of the plea of guilty at the earliest opportunity. As a consequence of the foregoing, there is error. It is the kind of error which would not only permit the intervention of the Court on appeal, but requires the Court to re-sentence.
As a consequence of the concession by the Crown, appropriately made, that there is error of the kind that would require the Court to intervene and re-sentence, it is unnecessary to deal in detail, or at all, with the other Grounds of Appeal. It is now for the Court, in its function in re-sentencing the applicant, to deal appropriately with the applicant's mental condition; to set a sentence that is appropriately within range and neither unreasonable nor plainly unjust; and to give effect, assuming, for present purposes, that a finding of special circumstances is to be made, to that finding and to an appropriate total sentence based upon the criminality, including the criminality for the offence for which the applicant was sentenced by Girdham SC DCJ.
Notwithstanding that the Court is not required to deal with the other Grounds of Appeal, the Court is required to take into account the submissions made on the appropriate manner of dealing with the issues raised and about which criticism was levelled at the sentencing judge. However, the process is significantly different. The Court is required to re-sentence and the Court need not find error in the sentence imposed below in order to impose a sentence that is different from that imposed by his Honour.
As has been said on a number of occasions, sentencing is not a mathematical exercise. There is no single correct sentence.
That which is appropriate is a sentence, arrived at after applying sentencing principles, within a range that is appropriate for the offences in question and the offender, and which takes into account both the objective and subjective circumstances associated with the accused and his conduct, in order to seek to achieve the purposes of sentencing.
Before leaving the present issue, it is necessary to remark that each of the offences in question is plainly extremely opportunistic. There may have been some degree of planning associated with one of them, but the degree of planning is so slight that it is hardly significant.
Further, the offences in question are, essentially, petty theft offences, albeit committed in a variety of ways. The most serious of them is plainly the break enter and steal that was committed on 15 March 2019. Each of the offences bears the hallmark of a drug addiction.
Otherwise, the offences are puerile and involve the stealing of an iPad, an iPhone, a wallet and the contents therein. The larceny from the store is more serious, but is still not otherwise than at the lowest end of the objective seriousness of offences of that kind. Apart from the foregoing, the car theft, even though no damage was done to the motor vehicle, seems to have some more serious aspects to it, but was still both opportunistic and petty.
The extent of the applicant's criminal history shows the need for specific deterrence and, necessarily, the applicant is not entitled to the leniency that might be shown to a first offender.

The Purposes of Sentencing

The purposes of sentencing have been described on a number of occasions. The provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) now prescribe those purposes.
In fixing an appropriate sentence, the Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of seriousness that warrants the imposition of the maximum sentence imposed by the legislature. [7] Or, whether, as in this case, to fix a sentence that is within the notional range between the lowest level of objective seriousness and a category below that which requires the imposition of the maximum sentence.
In that task, the Court seeks to achieve purposes that have been described as sometimes conflicting in their objectives. Those purposes include the importance of the protection of society; personal and public deterrence; retribution; reform; and punishment. They also include, if not otherwise caught by the term "reform", rehabilitation. [8]
Each of the foregoing objectives must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence in question and take into account considerations relating to reform and rehabilitation of the offender. Those latter two aspects are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated.
The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed that ensures the protection of society and the personal deterrence of the offender. The process is one that has been often described as involving "intuitive synthesis" or "instinctive synthesis".
The process takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and considers each of them in a manner that best achieves the purpose of sentencing. The purposes of sentencing overlap; none of them can be considered in isolation; and each is a guidepost for the purpose of arriving at an appropriate sentence.
Sometimes, if not usually, those guideposts point in different directions. [9] In my view each of those foregoing objectives, described by the High Court in Veen v The Queen (No 2), supra, include all of the factors prescribed by the legislature under s 3A of the Crimes (Sentencing Procedure) Act.
The legislature, reflecting the common law, has described the purposes in the following manner: ensuring adequate punishment for the offence; prevention of crime by deterrence of the offender and others; the protection of the community; the promotion of rehabilitation; rendering the offender accountable for the conduct; denouncing the conduct; and recognition of the harm done to the victim of the crime in the community.
The task of synthesising each of the objective and subjective factors in order to achieve the purposes of sentencing is often a difficult one. It is one that may result in different sentences, each of which may be correct. It is necessary for the Court to deal with the application of those factors.

Sentencing

Even though, as a consequence of the fact that the Court is required to re-sentence, the other Grounds of Appeal do not need to be dealt with, it is necessary to deal with the submissions made in so far as they deal with the sentence to be imposed by the Court. As is clear from the recitation of the Grounds of Appeal, the applicant submits that the learned sentencing judge fell into error by failing to give reasons as to the impact of the applicant's mental conditions upon general and/or specific deterrence. Further, the applicant submits that no mention was made by the sentencing judge of the diagnosis of PTSD.
First, the psychologist's report does not diagnose the applicant with PTSD. Generally, although not always, psychologists are reluctant to diagnose, on the basis that they leave that process to psychiatrists.
Nevertheless, the psychologist did refer to the fact that the applicant met many of the criteria for a diagnosis of PTSD. This, according to the psychologist, arises from childhood experiences both as a victim and witness of violence.
It would seem that the foregoing description would also include the sexual assault on the applicant that occurred while in a State institution. The reference by the applicant to being haunted by the assault and the greater anxiety in relation to prison may both be aspects of PTSD, assuming, for present purposes, that he is suffering from that disorder.
The applicant is certainly suffering from a persistent depressive disorder with anxiety and substance use disorder, although the latter is in remission. He suffers suicidal ideation, despite his rejection of suicide as a possible outcome.
Each of those factors point markedly to a condition that must be taken into account in determining an appropriate sentence, because it renders general deterrence less significant, and ameliorates the applicant's culpability for his behaviour.
However, it can hardly be said that there was error on the part of the sentencing judge, even though that is no longer an issue before the Court, in circumstances where no submission was made to the sentencing judge on the basis that there was PTSD that had been diagnosed. Notwithstanding the absence of reference by counsel, on behalf of the applicant at the sentencing, to the principles in De La Rosa, [10] the learned sentencing judge referred to the psychological report at length in his Remarks on Sentence and made reference to the suggestion that the applicant probably fitted the criteria for PTSD as a result of his experience during childhood.
The sentencing judge also found that the deprived background and upbringing of the applicant had led to his long-standing anxiety and depression which had been "undoubtedly exacerbated by the sexual assault on him when he was 17". [11]
The foregoing background was taken into account by the sentencing judge in arriving at the sentence that he imposed. As a consequence, the sentencing judge has taken into account the report of the psychologist; the probability that he was suffering from PTSD; the applicant's deprived background and upbringing; the sexual assault on the applicant when he was 17; and the issues otherwise raised by the applicant, on appeal, that were said to be ignored.
In delivering Remarks on Sentence, it is unnecessary for a sentencing judge to refer to authority or recite extracts of judgments. The High Court judgment in Bugmy [12] requires a sentencing court to give full weight to profound childhood deprivation.
The childhood deprivation of the applicant was a factor to which the learned sentencing judge referred. It is unnecessary, in those circumstances, to elaborate beyond noting that the childhood deprivation has been taken into account. Of course, that childhood deprivation may point in more than one direction: it may ameliorate moral culpability; and it may exacerbate the importance of protecting the community. [13]
The manner in which a mental illness, intellectual disability or other mental problems may be treated were summarised, albeit not exhaustively, by this Court [14] as including: an amelioration of the offender's moral culpability and the consequent reduction of the need to denounce the crime; the offender may be an inappropriate vehicle for general deterrence; the significantly greater burden associated with a custodial sentence, which may, as a consequence of the mental condition, be far more onerous; a reduction in the need for specific deterrence; and/or a possibly greater need for the factor of protection of the community and/or, particularly in the case of intellectual disability, the need to ensure that the offender recognises and applies learned behaviour.
Nevertheless, each of the foregoing factors is well-known to sentencing judges. Each of them is now being taken into account and nothing in the Remarks on Sentence, notwithstanding the submissions, suggests that the learned sentencing judge failed to take those factors into account. On the contrary, each factor was the subject of specific reference in the learned sentencing judge's Remarks.
Further, the learned sentencing judge's reference to the report of the psychologist and the childhood deprivation and sexual assault suggests that each of them was dealt with appropriately. Having determined the issues that are to be considered in fixing a sentence, the sentencing judge does not commit identifiable error by not explaining, at length, how each is to be factored into the synthesis that is then undertaken.
Indeed, too detailed an analysis of the effect of each of the factors may, in some instances, lead to a staged sentencing process, which is to be avoided. As a consequence, once each of the factors have been identified and it is clear that each of them has been taken into account in fixing the sentence, the question that then arises is whether the sentence imposed is manifestly excessive and that is determined, not by the identification of error, but by determining whether the result of the sentencing process is plainly unfair or unreasonable.
Notwithstanding those comments, it is for this Court to re-sentence taking into account the psychologist's report; the deprived childhood; and the probability that the applicant suffers PTSD. In fixing the sentence that I propose I take the foregoing into account. Leaving aside for present purposes the Bugmy issues, in particular, I take into account that the mental health condition of the applicant has contributed, albeit indirectly, to the commission of the offences and, as a consequence, his moral culpability is slightly reduced.
I also take the view that, because of the psychological conditions, the applicant is an inappropriate vehicle for general deterrence and I take into account that the time in prison will weigh more heavily on the applicant than it does on persons who are not suffering from those conditions. I do not however take the view that there is a lesser significance for specific deterrence on that account.
Particularly given the lengthy criminal history of the applicant, specific deterrence is a significant aspect, even in circumstances where, as here, there seems to be a genuine desire to rehabilitate. The pettiness of the theft and the nature of the criminal charges lead me to form the opinion that the applicant does not present a greater danger to the community as a result of his mental illness. Rather, the mental illness has led to substance abuse, which exacerbates, as an additional mental condition, the difficulties that the applicant suffers.
Dealing separately with the Bugmy issues and bearing in mind that such deprivation in an offender's youth and background must be assessed in relation to the individual, I accept that some regard should be had to the profound childhood deprivation and assault suffered by the applicant. This, however, is not a case in which violence has been perpetrated with the consequence of the "normalisation" of violence as a means of resolving issues.
Rather, in this case, like the mental conditions, the applicant's childhood deprivation includes the early consumption of drugs and alcohol, and it is the normalisation of that difficulty that has led to the substance abuse disorder. That disorder is a direct result of the applicant's childhood deprivation.
As a consequence, the Court must be careful not to double count that which is factored into the sentencing process as a result of the mental or psychological conditions, on the one hand, and, on the other hand, the childhood deprivation, in circumstances where the effect of the childhood deprivation has been to encourage behaviour which has led, in part, to the psychological conditions. Nevertheless, the childhood deprivation is taken into account to the credit of the applicant to some extent and also to ameliorate his moral culpability.
Further, in relation to the issues raised in support of Ground 2, in fixing the sentence to be imposed, I take into account the subjective circumstances of the applicant, including his physical health and his mental condition; the fact that the offences were at the lower end of the scale of objective seriousness; to the extent that it may be different, the relatively low value of the property taken; the applicant's remorse, which is accepted as genuine; and the fact that there is a degree of institutionalisation of the applicant, which must be taken into account in assessing an appropriate sentence to be imposed.
As did the sentencing judge, I consider that there are special circumstances warranting a variation of the prescribed ratio between the non-parole period and the remainder of the sentence so as to reduce the non-parole period and extend the potential period on parole. Those special circumstances relate to the psychological issues to which reference has been made; the evidence of institutionalisation; the need for the applicant to have supervision and treatment for his anxiety, depression and/or PTSD; and rehabilitation in relation to his drug use.
There can be little doubt that the learned sentencing judge was well aware of the sentence imposed by Girdham SC DCJ when fixing the commencement date of the sentence to be imposed and the non-parole period. It is no mere coincidence that the learned sentencing judge fixed a ratio of the non-parole period, where the non-parole period was 60% of the head sentence.
Her Honour Judge Girdham SC also fixed a 60% ratio between the non-parole period and the head sentence. Yet, the effect of the accumulation by the learned sentencing judge was to result in an effective sentence in which the non-parole period was 67%, or two-thirds, of the head sentence. The learned sentencing judge did not give an explanation as to why there was to be an increase in the ratio that he had otherwise determined.
The effect of partial accumulation and/or concurrency in sentencing will usually be to increase the ratio between the non-parole period and the head sentence. It is for that reason that this Court has, on previous occasions, made clear that partial accumulation of sentences will, in and of itself, be a special circumstance that would allow a judge, if so minded, to reduce the last sentence for the purpose of ensuring that the overall effective non-parole period is, to the extent desired by the sentencing judge, given effect. [15]
Where, as here, a sentencing judge has deliberately fixed a non-parole period, which is less than the statutory ratio described in the Crimes (Sentencing Procedure) Act, it will be assumed that such ratio is to be reflected in the overall sentence ratio, unless the judge expressly signifies otherwise. Here, where the ratio between the non-parole period and head sentence in the existing sentence served and the proposed ratio between the non-parole period and the head sentence in the sentence to be imposed were identical, in the absence of an explanation or comment that the intended result was a two-thirds ratio, it must be assumed that the higher ratio of two-thirds, compared to 60% otherwise determined, was not an intended result.
For the purposes of resentencing, some of the foregoing is only marginally relevant. However, it becomes relevant because I am persuaded that the appropriate sentence would reflect a ratio of 60% as was determined by Girdham SC DCJ and by the learned sentencing judge. This is not a mathematical exercise. I consider, if the applicant is to have any chance of long-term successful rehabilitation, he needs an extended period of between three and three and a half years on parole.
The determination to find special circumstances and fix a ratio of 60% will provide such a period and it permits a lengthier period under supervision to allow for a greater chance of success in rehabilitation, by the appropriate medical and psychological treatment of the applicant. Because it is intended to impose a sentence that is partially cumulative and partially concurrent, the non-parole period fixed for the sentence to be imposed will be fixed to allow for the overall sentence to reflect the ratio of 60% of the head sentence for the non-parole period to be served.
I have formed the view that no other alternative to full-time custody in prison is an appropriate sentence to impose, given the number of offences and the criminal history of the applicant. None of the offences with which the applicant is to be sentenced has a prescribed standard non-parole period.
As a consequence, if an aggregate sentence is to be imposed, it is unnecessary for the Court in fixing indicative sentences to specify a non-parole period for each. I propose that the Court impose an aggregate sentence, the indicative sentences for which would be as follows:

H71120871 1. Sequence 1: break enter and steal, committed on 15 March 2019, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW), including taking into account the offences on the Form 1, a starting point of 4 years, and, after the 25% discount for plea of guilty, an indicative sentence of 3 years' imprisonment. The Form 1 offences attached to Sequence 1 are: take and drive conveyance without consent of the owner; and goods in custody. 2. Sequence 6: drive motor vehicle during disqualification period, committed on 15 March 2019, with a maximum sentence of 6 months' imprisonment, a starting point of 4 months' imprisonment and, after the 25% discount for plea of guilty, 3 months' imprisonment.

H69856930 1. Sequence 2: take and drive conveyance without consent of owner, committed on 23 and 24 February 2019, the maximum sentence for which is 5 years' imprisonment, a starting point of 12 months' imprisonment and, after the 25% discount for plea of guilty, an indicative sentence of 9 months' imprisonment.

H870214924 1. Sequence 1: steal from person, maximum sentence of 14 years' imprisonment, a starting sentence of 2 years' imprisonment, and an indicative sentence, after the 25% discount for plea of guilty, of 18 months' imprisonment. 2. Sequence 5: including the offence on the Form 1, steal from person, being the stealing of a wallet committed on 12 March 2019, maximum penalty of 14 years' imprisonment; a starting point of 2 years' imprisonment and, after the 25% discount for plea of guilty, an indicative sentence of 18 months' imprisonment. The Form 1 offence taken into account is dishonestly obtaining property by deception. 3. Sequence 12: steal from person, maximum sentence of 14 years' imprisonment, starting point of 2 years' imprisonment and, after the 25% discount for plea of guilty, an indicative sentence of 18 months' imprisonment. 4. Sequence 16: larceny, maximum penalty of 5 years' imprisonment, taking into account the Form 1 offences, being another three counts of larceny, a starting point of 20 months' imprisonment and, after the 25% discount for the plea of guilty, an indicative sentence of 15 months' imprisonment.

From the foregoing indicative sentences, I would propose to impose an aggregate sentence of 4 years and 9 months head sentence. I would propose to allow for totality by concurrency to the same extent as did the learned sentencing judge, commencing the sentence on 31 July 2019.
As a consequence of the desire to ensure a significant period of parole being available, assuming, for present purposes, that the applicant is granted parole, I would, but for what follows, fix an aggregate non-parole period of 3 years and 5 months, the effect of which would be that the total time served for both the sentence imposed by Girdham SC DCJ and for this sentence is 5 years and 9 months, with a non-parole period of 3 years and 5 months.
To give effect to the foregoing special circumstances and the overall ratio of 60% requires the Court to reduce the non-parole period further and to sentence the applicant to a non-parole period of 2 years and 4 months and 2 weeks for this particular sentence. I have deliberately allowed for an additional period of 2 weeks, so that the applicant may be subject to parole prior to Christmas, if the Parole Authority so determines.
I propose that the Court make the following orders: 1. Time for the filing the appeal be extended to allow for the Application for Leave to Appeal and Appeal to be filed on the date filed in this matter; 2. Leave to Appeal be granted; 3. Appeal be allowed and the sentence imposed on 19 June 2020 by the District Court at Sydney on the applicant, John Donald (a pseudonym), be quashed and, in lieu of the sentence, the following sentence be imposed: 1. The applicant be sentenced to an aggregate sentence of imprisonment of 4 years and 9 months, commencing 31 July 2019 and concluding 30 April 2024, with a non-parole period of 2 years and 4 months and two weeks, concluding 14 December 2021; 2. The applicant will be first eligible for release on parole on 14 December 2021.
BUTTON J: I agree with Rothman J.

Endnotes

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
Ibid, and, in relation to aggregate sentences, s 44(2B).
Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37.
Exhibit D on Sentence, Appeal Book p 238 and following.
Exhibit F on Sentence, Appeal Book pp 245-247.
Exhibit 8 and 9 on Sentence, Appeal Book pp 275-288.
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20] (Bell, Gageler, Keane, Nettle and Gordon JJ).
Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; [1988] HCA 14.
Veen v The Queen (No 2), supra.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
Remarks on Sentence pp 11.2-11.7, Appeal Book p 15.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Bugmy, supra, at [44]; R v Engert (1995) 84 A Crim R 67; (NSWCCA, 20 November 1995, unrep) (Gleeson CJ, Allen and Sully JJ).
De La Rosa, supra, at [177] (McClellan CJ at CL).
R v Swan [2005] NSWCCA 252 at [3], [19] and [24]; R v DBN [2005] NSWCCA 435; R v LWP [2003] NSWCCA 215 at [10]-[13]. 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: 20 August 2021

Crimes (Sentencing Procedure) Act 1999(NSW)ss 3A, 11, 44(2), 44(2B), s 44(2).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)

Cited By (3)