Farrell v R

The applicant's personal circumstances

1. The applicant's mother Yvette Lever deposed that the applicant grew up in a NSW regional town and was a good athlete. The family struggled financially and electricity to the house could only be obtained through a generator when there was money to buy petrol to start it.
2. Ms Lever was the victim of domestic violence at the hands of the applicant's father. She gave examples of the emotional abuse the applicant's father would inflict on the applicant as including refusing to collect him from a friend's place, thus, making him walk a very long distance home, and failing to watch his football games even though he watched his brother's. The physical abuse was that he would hit the children over "the most minor matters or sometime for no apparent reason". She stated this "got worse" and she moved to Sydney with the children when the applicant was 15. The move to Sydney was hard on the children and the applicant fell in with bad friends. Ms Lever now runs a café and hopes to assist the applicant to start a business buying and selling Indigenous art upon his release from custody.
3. Mr Ballardie, psychologist, recounted the applicant's childhood experiences as described to him. The applicant described having a positive relationship with his brother and sister and described his mother as "always supportive". He stated that his parents often fought which "negatively impacted on him and they separated when he was about 15 years of age". The applicant described his father to Mr Ballardie as "angry, aggressive and undermining and said that he often hit him". He stated that he moved to live with his grandmother when he was 15 years old due to his father's violence.
4. The applicant's grandmother wrote a letter stating, inter alia, that the applicant's father never showed him any love or support whilst growing up and the close relationship the applicant has with his child is something he did not have.
5. Finally, Ms Tasker provided a letter describing how difficult her life is with the applicant in custody. She met the applicant in early 2017 (after he was released on parole). They have a son together born in early 2018 (when the applicant was back in custody). She described how difficult gaol visits are and how it upsets the applicant that he has only met his son in custody. She stated that she and the applicant have discussed that they want to have a big family and do not want their children to be around the type of life the applicant had. She explained that the applicant wants to set up a business selling Indigenous art and she is hopeful he will be able to provide for his family that way. She also stated that the applicant told her he regrets what he did and wants to do better.

Remarks on sentence

1. In setting out the facts (as outlined above at [7]-[21]), his Honour noted that the Instagram page was set to public, which meant that anyone could view photographs posted it to. After setting out the factual summary, his Honour noted that the applicant's conduct caused detriment to the victims by damaging their reputation and isolating them. He also noted that the applicant was in custody at the time and had been charged with "similar offences". Furthermore, he noted that the conduct clearly was not designed to force the witnesses to withdraw their statements, as the applicant's brother had already pleaded guilty. His Honour then stated: "However, it is nonetheless a serious offence in each case. The offending was premeditated, deliberate, continuing and involved recruiting others to achieve his criminal objective. The offender was clearly intent on alerting the criminal milieu to the role of each of [TJ] and [LB] as persons who were prepared to give evidence in a criminal matter against a criminal offender."
2. His Honour added: "It is well known that within the prison system, if also not without, that individuals who turn on their criminal associates to provide evidence against them are dealt with extremely harshly, particularly if available to be so dealt with when in custody."
3. In fact, LB was in the custodial witness protection program, and, as his Honour noted, this was identified to the "criminal milieu" by the usage of "#supergrass". His Honour further noted the risk posed to TJ through the applicant exposing that she was in a relationship with the prisoner SS, who was married. SS was similarly endangered as someone having a relationship with an informer. As such, his Honour characterised the offending as a "serious example" of "like offending". His Honour stated: "Offending conduct of this nature represents a direct attack upon the justice system. The Instagram account could be viewed by any member of the public and it had the potential to undermine the trust that informer witnesses place in police and prosecuting authorities to provide for their protection. It would operate as a discouragement to members of the criminal milieu taking on the role of an informer in relation to other members of the criminal milieu. It significantly diminishes the prospect, in general, of informers coming forward to provide evidence of criminal offending by others, and that is a significantly adverse circumstance in relation to the investigation of criminal offending, and as I have said, a direct attack on the justice system. In my view, the offending in each case can be assessed as approaching closely the midrange of objective seriousness for such offences."

Ground 1

1. The applicant noted the decision in Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 as authority for the proposition that his Honour was not required to take into account the periods of pre-sentence custody not referable to the subject offences. It was accepted that the commencement date of the sentence was a matter for his Honour's discretion, subject to considerations of fairness in all the circumstances: Callaghan v The Queen (2006) 160 A Crim R 145; [2006] NSWCCA 58 ("Callaghan").
2. As to Ground 1(a), the applicant submitted that his Honour had misunderstood the scope of his discretion. In reliance on his Honour's reference to s 47(3) of the Sentencing Act, it was submitted his Honour had erroneously assumed that the commencement date was resolved by the fact that the balance of parole did not expire until 2 September 2019.
3. It was submitted that it was matter of "form over substance" to suggest that the applicant was not bail refused on the subject charges until 28 June 2019 because the charges relevant to the appeal were not instigated until the service of a future CAN upon him whilst in custody on 18 December 2018.
4. Under Ground 1(b), the applicant noted that he would have been eligible for consideration for parole from 5 July 2017 until 18 December 2018 if it were not for the discontinued 2017 charges. The factual allegations which caused the revocation of his parole were never established and bail was never granted for the 2017 charges.
5. It was also alleged under Ground 1(b) that the sentencing judge erred when he had regard to the fact that the applicant's parole was revoked for "similar offences" to the subject offences as a factor relevant to the sentence not being backdated to a date prior to 2 September 2019. The applicant also submitted that his Honour had erred in stating that specific deterrence was enhanced because of these "similar offences". The applicant pointed out that the 2017 charges had not been proved.
6. In relation to Ground (1)(c), the applicant submitted that the SPA usually considers individuals for parole on an annual basis. As the applicant was bail refused on the 2017 charges from 5 July 2017, he submitted that he had lost the chance for his parole to be granted after he committed the subject offences. Mr Barrow emphasised that at the time of sentence, the only extant offence from 5 July 2017 was the matter on the Form 1 and this had kept the applicant from being considered for parole.

Crown submissions

1. In response to Ground 1 overall, the Crown submitted that, in practical terms, his Honour reduced the non-parole period to 10 months and 2 days by backdating the sentence by 1 month and 2 days, in addition to finding special circumstances. The Crown submitted that, mathematically, this meant that the applicant received 74% of what he advocated for at sentence. That is, if the sentencing judge had backdated the sentence to 25 August 2018 (as requested), it would have had the effect of reducing the non-parole period by 13 months and 16 days. Instead, by varying the statutory ratio and backdating to the extent he did, his Honour allowed for 10 months and 2 days (306 days). This was approximately 74% of the requested reduction of 13 months and 16 days (412 days). That is, the dispute between what was sought and what was received was about 3 months.
2. When addressing Ground 1(a), the Crown relied upon the decisions in Hutchen v The Queen [2015] NSWCCA 101 ("Hutchen"), Callaghan and Refaieh v R (2018) 272 A Crim R 245; [2018] NSWCCA 72 and re-iterated that there is a general discretion as to whether to backdate when an offender has spent time in custody for offences which are not directly related to the offences for which they are being sentenced.
3. In terms of Ground (1)(b), the Crown submitted that it is evident from the transcript of the proceedings on sentence and his Honour's Remarks that he was aware that the 2017 charges had been discontinued. It was submitted that his Honour's consideration of the 2017 charges was limited to considering the state of mind of the applicant at the time of offending.
4. The Crown further noted that Ground 1(c) rested on a number of hypotheticals. It was submitted that the applicant would not have necessarily been released on parole, especially given the evidence of his previously "superficial" compliance with it. As such, the Crown distinguished this case from one such as R v Kitchener [2003] NSWCCA 134.
5. When responding to the applicant's use of Sultana v R to support Ground (1)(d), the Crown noted that Hidden J had refrained from construing ss 24(a) and 47(3) to render the time in pre-sentence custody referable to Form 1 matters a mandatory consideration for the purpose of backdating a sentence. In addition, in Sultana v R, parole was revoked solely on account of the Form 1 offence and the two offences listed on the Forms 1 were of the same nature as the offence on the indictment.

Ground 1

1. Section 24(a) of the Sentencing Act provides that, in sentencing an offender, the court must take into account "any time for which the offender has been held in custody in relation to the offence" (emphasis added). Section 47(1) of the Sentencing Act provides that sentences are to generally commence on the day they are imposed, s 47(2) provides courts with a general discretionary power to backdate the commencement of sentences and s 47(3) requires a sentencing court exercising its discretion under s 47(2) to take into account time the offender has been held in custody "in relation to the offence".
2. It was common ground in this matter that there was no requirement for the sentencing judge to backdate the sentence to any particular date, so long as his Honour took into account the time spent in custody "in relation to" the subject offences. At the time of sentence on 10 October 2019, the applicant had been held in custody for 2 years and 3 months (since 5 July 2017) for the following reasons: 1. From 5 July 2017 he was bail refused on the 2017 charges which were later discontinued (except for one of the two breach AVO matters ) 2. From 14 June 2017 he was taken to be serving a balance of parole (to expire on 2 September 2019) due to the 2017 charges (this was the date of the alleged breach of parole). 3. From 28 June 2019 he was bail refused on the subject charges.
3. Thus, consistent with ss 24(a) and 47(2) of the Sentencing Act, the only period that the sentencing judge was required to have regard to, insofar as the commencement date was concerned, was from 2 September 2019 when his parole period expired to 10 October 2019. Despite this, his Honour's discretion was broad.
4. There is no doubt that an inmate who spends time in custody bail refused on charges which are later withdrawn or in relation to which he or she is subsequently acquitted might feel aggrieved. As the decision in Hampton v R confirmed, time spent in custody in relation to one offence cannot be "banked" such that if the applicant is subsequently acquitted on that charge it must be applied to the present sentence. A similar situation arose in Refaieh v R where the offender had been granted bail on the subject offence but remained in custody because he was bail refused on a matter which was subsequently no-billed. This Court (Hoeben CJ at CL, Johnson J and N Adams J) considered the authorities, including Callaghan and Hutchen, and held (at [56]) that there is no authority for the proposition that the words "in relation to" in s 47(3) of the Sentencing Act "ought to be construed so broadly as to include time when the applicant was on bail for the offence but not eligible to be released because of other charges".

Ground 2

1. As outlined above, the applicant's partner Ms Tasker provided a letter to the Court. The Crown did not seek to cross-examine Ms Tasker, so her evidence was not challenged. There was no evidence before his Honour as to the basis upon which Ms Tasker had been initially charged before her proceedings were discontinued.
2. As with all material tendered on proceedings on sentence, it was a matter for the sentencing judge as to how much weight he placed on Ms Tasker's letter. A complaint that too much or little weight was placed on a particular sentencing factor will not establish House v The King error. The nub of this ground, however, is not that his Honour placed insufficient weight on Ms Tasker's letter, but that he took into account an irrelevant consideration in doing so, being the fact that she was charged "as being involved in the present offending, even though the charges have been discontinued." The fact that the charges were discontinued means that there was no finding of fact in relation to whether Ms Tasker had or had not been involved in this way.
3. Despite the fact that the Evidence Act 1995 (NSW) does not apply to sentencing proceedings, unless an order is made under s 4(2)(a), they are still adversarial in nature. The Crown's express position was that it did not object to the admission of the letter or require to cross-examine Ms Tasker. No Crown submissions were made about her. Significantly, the applicant's counsel submitted that it would be "unsafe" to draw an inference adverse to her credibility in this regard.
4. It is to be accepted that his Honour did not reject the letter outright but, as I have already stated, the error is not the fact that he placed so little weight on it but the fact that he took into account an irrelevant consideration without warning that he would do so.
5. I would uphold Ground 2 as well.

Re-sentence

1. Since error has been found, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601 at 618; [2014] HCA 37 at [43].
2. In undertaking the sentencing discretion afresh the Court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25 at [51] and confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120 at 131; [2011] HCA 39 at [26]. The maximum penalty of 10 years is a guidepost to which I must have regard.
3. These were serious public justice offences, committed in custody whilst serving a balance of parole. The applicant is to be sentenced on the basis that his conduct caused an actual detriment to the two victims, rather than simple threats. As the sentencing judge observed, his offending conduct was "premeditated, deliberate, continuing and involved recruiting others to achieve his criminal objective". The conduct represented a direct attack upon the justice system and, as his Honour observed, had the potential to limit the prospect of informers coming forward in the future.
4. In re-sentencing the applicant, I would place some weight on the letter from Ms Tasker. It was not suggested in this Court that I would depart from the findings of the sentencing judge regarding objective seriousness (approaching mid-range) or the discount for the plea of guilty (10%). As for remorse, nothing was put to the Court to the effect that a different finding should be made on that issue either. Having had regard to Mr Ballardie's report and the letter of the applicant's mother, grandmother and partner, I am not satisfied that the applicant has demonstrated genuine remorse.
5. It was submitted that on re-sentence this Court would find the Bugmy principles applicable. The sentencing judge had rejected that submission and made the following finding: "While the offender's youth was not without difficulty this is not a matter in which the factors referred to in Fernando and Bugmy have any application."
6. In Bugmy, the High Court considered, inter alia, the question of the relevance of an offender's deprived background. The DPP acknowledged in the High Court that "the effects of profound deprivation do not diminish over time" and submitted that "they are to be given full weight in the determination of the appropriate sentence in every case" at [42]. In that context, the High Court went on to observe at [44] (footnote omitted): "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."

ORDERS

1. I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant in the District Court on 10 October 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW): 3 years of imprisonment to date from 18 December 2018 and expire on 17 December 2021 with a non-parole period of 1 year and 10 months to expire on 17 October 2020. 1. Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: Count 1: 2 years and 4 months imprisonment. Count 2: 2 years and 6 months imprisonment.

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: 07 August 2020