Edquist-Wheeler v R

Ground 1: The sentencing judge erred in the commencement date of the sentence

1. This ground of appeal arises from the revocation of the applicant's ICO. The applicant asserts two related errors in this ground of appeal, a denial of procedural fairness by the sentencing judge in respect of the commencement of the sentence his Honour imposed, and a failure to apply the principles of totality in fixing the commencement date.
2. The applicant was arrested on 11 January 2022 for the cultivation offence of that date and was refused bail. On 1 February 2022, the State Parole Authority revoked the ICO which had been made on 17 December 2021, the stated reason being the commission of the further offences. The ICO was stated as having been revoked with effect from 11 January 2022. It was due to expire on 16 June 2024.
3. That situation, and the commencement date of the sentence to be imposed by his Honour, were the subject of discussion before his Honour. Counsel for the applicant on sentence advised his Honour that the ICO had been revoked, and there was discussion between counsel and his Honour of the power of the State Parole Authority to consider reinstatement of the applicant's ICO. In the course of discussing the commencement date of the sentence his Honour was to impose, his Honour asked why he would not start the sentence on the day he imposed it, and indicated he thought that was the appropriate starting date. Counsel submitted that the principles of totality applied.
4. His Honour stated (at T 37) "But upon further reflection, no, he should get some credit because the reason the ICO was revoked was because of this… So he should get some credit".
5. His Honour said further: "… it would seem to me that because the ICO was revoked because of the commission of this offence, he's entitled to get some credit. So, I mean, I'll hear what the Crown has to say but I say that the sentence, I don't think it should start on 11 January but sometime after… I think he should get some credit but not total credit to go right back…".
6. His Honour said further (at T 38): "I said earlier today why wouldn't I start the sentence the day that I impose the sentence, but upon further reflection I should backdate it some period of time to give him credit for that part of that, that he's been serving. And I'll hear what the Crown has to say..."
7. His Honour indicated he would not completely backdate the sentence, because in that case the applicant would suffer no detriment for having breached his ICO. His Honour then said (at T 38): "Commencement date, he should get some credit for the period he's already been in custody. My present view, subject to hearing from the Crown, is that I wouldn't commence the sentence on the day I impose it. I will backdate it some period of time."
8. Later in the sentence hearing his Honour asked the Crown prosecutor for his view about the commencement date. The Crown advocate said (at T 60): "I would submit on that that he's been in custody, as your Honour's indicated, since 11 January this year. That's a calculation, your Honour, of nine months and 16 days. Your Honour, the Crown submits that perhaps a backdate of in the vicinity of five months would be appropriate… It's basically 50% between the prior offence and this current offence."
9. To both of those submissions, his Honour said "Yes."
10. In his Remarks on Sentence, delivered on 23 November 2022, almost a month after the sentence hearing on 27 October 2022, his Honour said (at ROS 18): "Because the Intensive Correction Order imposed on the offender in December 2021 for the same offence was revoked as a result of him committing these offences, and indeed as I have said revoked from 11 January 2022, being the date upon which he committed this offence, I propose to give some considerable credit to the offender in determining the commencement date of the sentence. When I say credit, on one view the sentence that I will impose for this offence should commence at the expiration of the sentence he is currently serving for the revoked Intensive Correction Order, but in my view, and this is in accordance with proper principle, because the ICO was revoked as a result of him committing these offences, I should commence this sentence a significant period of time before the sentence for the revoked ICO expires, which is on 16 June 2024. I propose to give the offender the benefit of 12 months backdated from 16 June 2024 to commence the sentence, which is 16 June 2023."
11. On 15 December 2022 his Honour published a short judgment in which he stated that "pursuant to the slip rule" he amended the total sentence he had imposed on 23 November 2022 to a sentence of 4 years and 6 months. The Appeal Book did not contain a transcript of the "reopened" sentence proceedings, but it did contain some written submissions by counsel for the applicant, which requested that Judge Marien SC consider changing the commencement date of the sentence. Counsel submitted then that his Honour having commenced the sentence on 16 June 2023 was contrary to his Honour's power under s 47 Crimes (Sentencing Procedure) Act and also contrary to the submissions of both parties on sentence that the sentence should be backdated to commence between the date of arrest and the date of sentence, whereas his Honour had commenced the sentence after the date of sentence.
12. In his "sentence amendment" judgment of 15 December 2022 his Honour confirmed that his intention had been to give the applicant the benefit of commencing the sentence 12 months before the expiration of the sentence he was serving following revocation of the ICO, and thus he had commenced the sentence on 16 June 2023. His Honour declined to change the date, confirming that the commencement date of 16 June 2023 was the commencement date that he intended.

Ground 1a: Denial of procedural fairness

1. Counsel for the applicant submitted that, given his Honour's indication during the sentence proceedings that he would backdate the sentence to a date before the date the sentence was imposed, the applicant was deprived of the opportunity to make submissions about why the sentence should not commence after the date of sentence. He relied on the statement of principles relating to denial of procedural fairness in Carl v R [2023] NSWCCA 190.
2. The Crown submitted that the applicant did not suffer procedural unfairness in respect of the commencement date of the sentence. The Crown submitted that the commencement date of the sentence was a live issue in the sentence hearing; that the applicant's counsel was not deprived of the opportunity to make submissions and did so, in writing and orally; the sentencing judge was not bound to accept the starting date proposed by either party; it is clear from the exchange in the hearing that his Honour had only formed a preliminary view; and his Honour's indication that he was contemplating backdating the sentence should be understood to mean not to some date before the date of imposition of the sentence, but to a date before the expiration of the term of the revoked ICO.
3. In Carl, Leeming JA said, at [5], "Procedural fairness is concerned to avoid practical injustice". The transcript of the sentence hearing demonstrates that both the legal representatives for the applicant and the Crown submitted that the sentence should commence on some date before the date of imposition of sentence, and his Honour indicated that he would backdate the commencement of the sentence, not to 11 January, the date the applicant went into custody and from which his ICO was revoked, but for some period.
4. It may be that when his Honour came to sentence the applicant in the following month, his Honour did not have access to the transcript of the sentence hearing. However, his Honour's explanation in his Remarks on Sentence of his reasons for the commencement date he chose differed significantly from the position discussed with his Honour in the hearing.
5. The pronouncement of sentence being the first occasion on which the parties were made aware of the commencement of the sentence specified by his Honour, the applicant did lose the opportunity to make submissions in opposition to the course his Honour took, and therefore suffered unfairness and practical injustice. The issue is not that a sentencing judge is not bound by an agreement between the prosecutor and the offender, but rather that his Honour did not state that their submissions were not accepted and that he proposed to take another, quite different, course.
6. This sub-ground of appeal must be upheld.

Ground 1(b): Failure to apply the principles of totality

1. The applicant submitted that his Honour did not explain why he accumulated the sentence he imposed on the revoked ICO, and to the extent that he did, other than by stating that the ICO had been revoked as a result of the commission of the offence for sentence. He submitted that because it was open to the applicant to seek that his ICO be reinstated and open to the State Parole Authority to do so, the applicant's eligibility to be released from custody to serve the balance of the ICO should have been treated by his Honour in a similar way to the approach taken by Basten JA in White v R [2016] NSWCCA 190 at [38] to an offender's eligibility to be released to parole: "The third approach involves a factor expressly adverted to by Simpson J in Callaghan, namely the possibility of re-parole. In circumstances where parole is revoked because of a further offence warranting a sentence of imprisonment, it may seem artificial to hypothesise the possibility of re-parole because, in a practical sense, that will not occur. On the other hand, it seems unduly harsh to assume that the offender would never have been released again to parole with respect to the earlier offence, because of the commission of the second offence. Another way to express that proposition is that the principle of totality requires, in the general run of cases, that the new sentence not be accumulated on the end of a lengthy period of imprisonment resulting from revoked parole. At least in this respect, the principle articulated by McHugh J in Postiglione v The Queen [15] that "a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence" may be accepted in considering an appropriate period of backdating."
2. Counsel for the applicant submitted that applying the principles of totality, the sentence should not have been accumulated towards the end of a substantial proportion of the revoked ICO, having regard to the total criminality involved in both the offence for sentence and the offence the subject of the ICO, which counsel submitted his Honour failed to consider. Counsel submitted that his Honour treated the revoked ICO as if it was a fixed term of imprisonment with no prospect of earlier release to the community for the applicant.
3. Counsel for the applicant further submitted that, having taken into account that the offence for sentence was significantly aggravated by the applicant being subject to an ICO, his Honour should have allowed for greater concurrency of the sentences to avoid the applicant being doubly punished. He relied on the statements of Simpson J in R v Kitchener [2003] NSWCCA 134 and of Kirby and Simpson JJ in R v Kaiva (Court of Criminal Appeal (NSW), 9 November 1998, unrep) that to take into account as an aggravating factor that an offence was committed while the offender was on parole, but not backdate the sentence, gives the appearance of double punishment, regarded in Kaiva as an error.
4. The Crown submitted that Judge Marien SC did not overlook totality, nor did he doubly punish the applicant by taking into account the circumstance of aggravation that the applicant was on conditional liberty for a similar offence, but allowed an appropriate degree of concurrency between the sentences.
5. In White Simpson JA said, at [120]: "That issue was to do with the overlap between the revocation of parole and the partial accumulation of sentence. Where… parole is revoked solely because of the commission of subsequent offences, an argument is available… that the offender is doubly penalised for the subsequent offences: first, by the revocation of parole (attributable only to the commission of the subsequent offences), and second, by the imposition of a cumulative sentence."
6. In Callaghan v R [2006] NSWCCA 58, Simpson J, as her Honour then was, said that a discretion exists for a judge to backdate a sentence where parole had been revoked by reason of the offence for which the person was then to be sentenced. Her Honour said, at [23]: "It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole."
7. Her Honour said that relevant factors are whether the reoffending occurred within a short time of release on parole and the balance of term to which the offender is exposed. Although the Court in White and Callaghan, and s 47 of the Crimes (Sentencing Procedure) Act, refer only to parole and not an ICO, fairness and justice required that his Honour take a similar approach to the revoked ICO, given that reinstatement of the revoked ICO was available pursuant to s 165 Crimes (Administration of Sentences) Act 1999 (NSW), to avoid the perception of the applicant being doubly punished by his ICO having been revoked because of the fresh offence and his sentence for the subsequent offence being accumulated to the extent that it was on the revoked ICO, having regard to the criminality of both offences. In the circumstances of this matter, his Honour erred in the exercise of his sentencing discretion and this sub- ground of appeal must be upheld.

Ground 2: The sentencing judge erred by finding that the applicant was not in protective custody and not taking this factor into consideration on sentence

1. In written submissions for the sentence hearing, counsel for the applicant stated "The offender is presently in strict protection where there is a risk that he will not receive appropriate treatment for his psychological problems whilst in gaol."
2. During oral submissions in the sentencing hearing the Crown prosecutor submitted that there was no evidence that the applicant was then in special protective custody. Counsel for the applicant then referred his Honour to the second report of Mr Borenstein, wherein Mr Borenstein stated: "Mr Edquist-Wheeler is currently in protective custody, and his ability to participate in programs within the prison is extremely limited, which could impact negatively on the progress he has made to date in ensuring he does not relapse into using substances."
3. Counsel told his Honour that was the basis of the submission he had made. Counsel also referred his Honour to a portion of Mr Borenstein's report wherein he recited the history given to him by the applicant of having been assaulted by other inmates, when in protective custody, and having been elevated to strict protective custody. His Honour raised the issue of whether the applicant would continue to be in protective custody after he was sentenced. The Crown disputed that there was evidence the applicant was then in protective custody. Counsel for the applicant then adduced, by unsworn information from a Corrections Officer, that the applicant was housed in the protection unit in South Coast Correctional Centre and had been held there for "at least a few months, maybe even a year".
4. In his Remarks on Sentence his Honour stated: "I should note that it is agreed by… counsel… on behalf of the offender, that Mr Borenstein's reference in his second report to the offender being in strict protective custody on remand is not correct."
5. That was a factual error, and no such concession had been made by counsel for the applicant before his Honour. The applicant submitted that his Honour erred by not considering his protective custody in sentencing him.
6. The Crown submitted that a sentencing court requires evidence that an applicant will be serving his sentence in protective custody for that fact to be taken into account on sentence, and further, that the evidence must indicate that the conditions of protective custody will be more onerous than conditions for other prisoners. The Crown submitted there was no evidence before the sentencing judge that the applicant would be likely to remain in protective custody when sentenced. The Crown submitted that in the sentence proceedings, protective custody was relied on only in relation to asking the judge to find special circumstances. The Crown submitted that the sentencing judge's misstatement of the facts as to the concession by counsel was immaterial and his Honour's declining to make a finding of special circumstances was a discretionary finding open to the judge.
7. The matter having been raised on behalf of the applicant, his Honour was required to deal with it. His Honour mistook the facts about the applicant's protective custody, of which there was some evidence. This ground of appeal is made out.

Ground 3: The sentencing judge erred by not making a finding of special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act

1. Section 44 of the Crimes (Sentencing Procedure) Act requires a court to set a non-parole period for a sentence, and provides in s 44(2) that the balance of the term of the sentence must not exceed one third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more. In the sentence hearing, counsel for the applicant asked the sentencing judge to find special circumstances to reduce the non-parole period and extend the applicant's time under supervision on parole to assist in his rehabilitation. His Honour declined to find special circumstances warranting a variation in the non-parole period.
2. Counsel for the applicant acknowledged that a finding of special circumstances is discretionary. Counsel relied on two factors, of the applicant being in protective custody, reducing the assistance available to him to resolve his drug addiction issues and mental health issues, and the need for the applicant to address those issues on parole, and the effect of the accumulation of sentences on the non-parole period.
3. With the accumulation of sentences, the total sentence was 5 years, 11 months and 4 days. The total non-parole period was 4 years, 9 months and 5 days. The ratio of the non-parole period was 80%, compared with the statutory ratio of 75% provided by s 44. Counsel referred to decisions of this Court which have recognised a practice, where sentences are accumulated, to find special circumstances and reduce the non-parole period of the second sentence to ensure a proper proportion between the total minimum term and the effective total sentence: R v Simpson (1992) 61 A Crim R 58; Hejazi v R [2009] NSWCCA 282 at [35]-[36].
4. The Crown submitted that the sentencing judge made no error in not treating protective custody or the accumulation of sentences as special circumstances to reduce the non-parole period, or in his finding that the period of parole after the applicant's release would be appropriate for his transition back into the community.
5. The Crown did not accept that the applicant's counsel had not raised before Judge Marien SC the effect on the non-parole period of the accumulation of sentences as part of the denial of procedural fairness, in that his Honour did not make clear his intention to accumulate the sentence by "future dating" its commencement.
6. In Hejazi, Basten JA said at [18]: "It is commonplace to treat s 44 as having operation in relation to the aggregate period of imprisonment imposed for a series of offences. It does not. There may of course be an appropriate practice of relating the effective non-parole period to the aggregate term of imprisonment, bearing in mind the statutory proportion specified by s 44. However, that is a practice and not an application of the Sentencing Procedure Act. The distinction is not without significance: where the Act operates, it should be applied in its terms. In relation to a practice, the sentencing judge may enjoy a wider range of flexibility, within which to sentence without appellable error."
7. I note that his Honour's use of the term "aggregate term of imprisonment" was not a reference to a sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act, as the introduction of that provision post-dated this decision. His Honour said that to demonstrate error in respect of an effective non-parole period for an aggregate term of imprisonment an appellant would have to demonstrate that the sentence imposed did not give effect to the intentions expressed in the sentencing judgment.
8. In the same decision, Howie J observed about the relationship between an effective term of imprisonment and an effective non-parole period, when sentences had been accumulated, at [35]-[36]: "[35] For my part, I do not see any inconsistency between the practice that has been adopted in this Court in applying the statutory ratio to an aggregate or effective non-parole period and the terms of s 44. In my opinion, a judge is required in a case such as the present to consider the relationship between the period to be served before parole eligibility arising from the accumulation of the two sentences and the balance of the term of the sentence for the second offence in order to ensure a sufficient period of parole supervision. [36] It may be necessary to find special circumstances to reduce the non-parole period imposed on the second offence to bring about that result. This has been conventional sentencing practice in this State since at least 1992: see R v Simpson (1992) 61 A Crim R 58. However, the ultimate question to be asked is what is the least period the offender is required to serve before being eligible for parole? The answer to that question will depend upon a consideration of all the purposes of punishment and not simply the rehabilitation of the offender."
9. In Hardey v R [2019] NSWCCA 310, Bellew J (Brereton JA and Lonergan J agreeing), said s 44(2) of the Crimes (Sentencing Procedure) Act does not prohibit a non-parole period being greater than 75% and, although there is no requirement for reasons to be given when a non-parole period exceeds 75% of the total sentence, it is usually considered appropriate to do so: at [28] and [29]. His Honour referred to GP v R [2017] NSWCCA 200, wherein Hamill J, Macfarlan JA and Button J agreeing, said there is no statutory requirement that a sentencing judge must give reasons for setting a non-parole period that is more than 75% of the total sentence, but where a sentencing judge is accumulating sentences and the non-parole period is greater than 75% of the total sentence, it is preferable that some express comment is made in the Remarks on Sentence which makes it clear that the judge is aware of the impact of the accumulation.
10. Bellew J also noted the observations of Bell P in Huang v R [2019] NSWCCA 144 at [52]: "I agree with Hamill J as to the desirability of a sentencing judge expressly acknowledging an awareness of the impact of accumulation. Given the consequences of inadvertence, viz. a greater period of imprisonment, this is more than simply a salutary discipline. Prisoners should not be left to wonder whether the term of their incarceration was affected by inadvertent oversight or was fully intended."
11. Bellew J in Hardey said the question was whether the total period in which the applicant was to be detained in custody reflected what the sentencing judge specifically intended or whether it was the result of inadvertence or miscalculation: [31]; if the result had been overlooked, error would be established.
12. In Ozan v R [2021] NSWCCA 231, Rothman J said at [5]: "I do not accept that it is an error of law or principle to fix a non-parole period that has the effect that its total effective proportion of the head sentence is greater than 75%. I do accept that it should not be done unless there is good reason."
13. In Ozan, Ierace J said that in that case it was a significant exercise of discretion to exceed the statutory ratio of the non-parole period without explanation, in circumstances where the statutory ratio was significantly exceeded and a submission had been made on behalf of the offender that the overall non-parole period should not be increased.
14. In this case, counsel for the applicant had asked Judge Marien SC to find special circumstances. His Honour said: "I do not find special circumstances warranting a variation in the statutory ratio. In my view the period of parole after his release at the end of the non-parole period, his period on parole will be entirely appropriate in relation to a requirement for supervision for his transition back into the community."
15. His Honour did not refer to the effect of the accumulation of sentences on the total non-parole period. Nor did he do so when the sentence was "reopened" on 15 December 2022 and he confirmed the commencement date of the sentence. Without any explanation by his Honour it is not clear whether his Honour intended a total non-parole period of 80% of the total term of imprisonment or whether the result was inadvertent. Again, because of the way the hearing had proceeded in terms of the judge's indication about a commencement date, counsel for the applicant had not had the opportunity to address his Honour specifically about the total non-parole period arising from an accumulation of sentences or the extent that his Honour accumulated them. The record of the sentence hearing and his Honour's Remarks on Sentence lacking any indication by his Honour of his awareness of the effect of the accumulation of sentences on the total non-parole period, I infer that his Honour overlooked the result. In effecting that result without an explanation that he so intended, his Honour erred in the exercise of his sentencing discretion.
16. Errors having been established, this Court's duty is to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Resentence

1. In the event that the Court came to resentence the applicant, he and the Crown had filed affidavit material. The Crown sought and was granted leave to file further material about the appellant's custodial conditions and psychological treatment in custody. Both parties made further written submissions about that material, with leave. I have considered that material and those submissions in resentencing the applicant.
2. In resentencing the applicant, I proceed on the basis of the agreed facts of the primary offence and the offences on the Form 1. I adopt Judge Marien SC's assessment of the primary offence as between the low and midpoint of objective seriousness, with which the applicant did not take issue. It is important to keep in mind that the offence involved not only cultivating a number of plants which was not great, but the aspect of exposing his child to that process for the second time. That was an experience which the applicant said had marred his own childhood.
3. I take into account his Honour's findings about the applicant's subjective circumstances, including his emotionally disadvantaged childhood and his diagnosed depression, anxiety, and cannabis dependence.
4. I take into account, from the material provided to the Court for resentencing, that the applicant is and remains in protective custody and has been in protective custody since March 2022, after he was assaulted in custody, according to a letter from Michael Premutico, Acting Governor of the Metropolitan Special Programs Centre (MSPC) to the DPP, tendered by the Crown in the appeal. Mr Premutico also advised in that letter that the applicant had been isolated in his cell during Covid outbreaks on two to three occasions for 10 to 15 days. The applicant said in his affidavit that had occurred four to five times. Even on Mr Premutico's account, the applicant experienced periods of isolation which would have made his experience of custody more onerous, as this Court has recognised. Mr Premutico said the applicant is ineligible for criminogenic programs. He can engage in education programs, but one of them is not available at the MSPC. This information was confirmed by further letters from Emily Hannigan, Centre Liaison Officer, MSPC, tendered by the Crown in the post-hearing material.
5. The applicant said he expects to remain in protective custody for the balance of his sentence. He said he has been working as a baker, he has not been accepted into drug and alcohol programs, or other criminogenic programs, which is consistent with Mr Premutico's advice. I take those matters into account in resentencing the applicant. The applicant said he has not been offered or provided treatment for his drug problem or mental health issues, although the records produced by the Crown recorded some attention being provided to him during 2023 and 2024.
6. I take into account the maximum penalty, all the purposes of sentencing, and apply the 25% discount for the applicant's plea of guilty.
7. Of significance is the prior cultivation offence, and that the subject cultivation offence was committed a very short time into the ICO for the former offence, 25 days, albeit about 19 months after the commission of the prior similar offence.
8. In the sentence hearing, when the applicant had been in custody for between nine and 10 months, the Crown suggested his sentence could commence about five months after he went into custody and his ICO was revoked. In the hearing of this appeal, counsel for the applicant did not take issue with that suggested commencement date.
9. The Crown submitted the Court would find no lesser sentence was warranted.
10. In resentencing the applicant, I have decided that the appropriate sentence is 3 years, 6 months imprisonment. I have decided that it is appropriate to commence that sentence six months after the revocation of the ICO, taking into account that the commission of this offence was the reason for the revocation of the ICO, the time after the ICO began when this offence occurred, and the total criminality of both offences.
11. Finding special circumstances in the accumulation of sentences, I have slightly reduced the non-parole period of the sentence from the statutory ratio provided by s 44, but the overall non-parole period of the overall sentence is 75%. I am of the view that any lesser non-parole period would be inappropriate.

Orders

1. Accordingly, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed by Acting Judge Marien SC is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for 3 years, 6 months with a non-parole period of 2 years, 6 months commencing on 11 July 2022, the sentence expiring on 10 January 2026 and the non-parole period expiring on 10 January 2025.

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