Farrell v R

Court of Criminal Appeal (NSW)|2020-06-05|Before: Meagher JA, Wilson J, Adams J

The applicant's personal circumstances

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.
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.

Remarks on sentence

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."
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."
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."
His Honour then dealt with the applicant's custodial history, in particular the discontinued 2017 charges. He stated that the charges related to an attempt to prevent TJ from giving evidence in the proceedings against the applicant's brother. He then dealt with the circumstances surrounding the applicant's parole being withdrawn, which I have dealt with above at [27]-[28].
His Honour noted that during the period of the applicant's release from custody, before the July 2017 charges were brought, he had entered into a relationship with Ms Alison Tasker. A child of that relationship was born in January 2018, by which time the applicant's parole had been revoked. His Honour noted the withdrawal of the 2017 charges and stated: "There is nothing before me as to the particular reasoning for that course being adopted, but it appears likely that it was because an essential witness was no longer available, having died." (Emphasis added.)
In relation to the subject offences, his Honour noted: "It is of significant concern that the offender, having been charged with offences that resulted in his parole being revoked and his return to custody, went on to commit further offences of a very similar nature to the offences that had caused the revocation of his parole. Apparently, he learned nothing from the fact that his parole had been revoked for committing similar offences." (Emphasis added.)
Turning to the applicant's personal circumstances, his Honour noted the defence material tendered on sentence. He noted that the applicant had suffered financial hardship in childhood and that his father was aggressive and sometimes violent. His Honour then summarised the applicant's evidence that Ms Tasker was a "supportive and loving" partner to the applicant, although noting that: "It is evident from the material before me [she] was at least alleged to be one of those assisting in relation to the publication in the Instagram account."
His Honour found that the applicant had experienced difficulties adjusting to the schools in Sydney and left in Year 11 to commence a panel-beating apprenticeship. He did not complete it. He started a lawn mowing and gardening service in 2011 but was subsequently incarcerated. His Honour then stated: "He is said to have a strong connection with his Aboriginal community and his uncle, who he is close to, is the head of Tribal Warrior. That, from memory, is an indigenous person by the name of Shane Phillips. I note that I am aware from past matters of the activities of Tribal Warrior and the assistance it endeavours to give to indigenous persons, particularly those who are having difficulties, and I note that, not that I hold it against the offender, there is no reference from his uncle in this matter, who presumably could have assisted him over the course of years."
His Honour then addressed the applicant's prior offending, noting that "it is obvious from his criminal history that he has committed a number of serious offences over the years, and he has spent a number of periods of imprisonment, commencing from 14 October 2004." He also noted the applicant's apparently "superficial" attitude to parole. In relation to the applicant's situation with Ms Tasker and their child, he noted that: "Ms Tasker, in her reference, speaks about her difficulties as a result of now being a single mother, and opines that the offender's priorities are that he does not want his son to grow up without his father being around, and also wishing to set up a business involved in buying and selling indigenous artworks. Other than the expression of that desire to several persons, there is nothing before me that indicates that the offender has any particular expertise in relation to running a business, or in relation to art, of any nature. Ms Tasker says that, "Lance has told me how much he regrets what he has done. He is also very disappointed in the effects his actions have had on his family. He has told me that he wants to do better in and life, not only for himself, but for us as a family."
In relation to the weight that this reference should be given, he observed: "I have some difficulty in describing any significant weight to the letter from Ms Tasker, taking into account that it is apparent that she was charged as being involved in the present offending, even though the charges have been discontinued."
His Honour found that the applicant did not express remorse or contrition despite his plea of guilty. He also found that the applicant's likelihood of rehabilitation was poor. In doing so, he accepted the following passage from the Crown submissions on sentence: "It is submitted that it would represent the triumph of hope over experience to assess the offender's prospects of rehabilitation as anything other than poor. The present offences occurred while the offender was in custody, parole revoked, and with bail having been refused on similar charges involving the same alleged victim. This, taken with the offender's criminal history, indicates a continuing attitude of disobedience of the law, a point which is only underscored by the nature of the present offences, which themselves strike at the heart of the criminal justice system."
When deciding at what point to commence the applicant's sentence, his Honour noted stated the following: "Submissions made by Mr Howell, being Exhibit F2, note that the offender has been continuously in custody since 5 July 2017 as a result of the revocation of his parole, and having continuing matters hanging over his head at various times since then, including being in custody in relation to this matter since 2 September 2019. The Court has the discretion to backdate a sentence to be entirely concurrent, partly concurrent, or alternatively to be entirely cumulative on past sentence, as referred to by Simpson J in Callaghan v The Queen (2006) 160 A Crim R 145. In Hutchen v The Queen [2015] NSWCCA 101, it was said at (36) that, "It is incorrect to characterise the time spent in custody as a result of the revocation of parole, as "any time for which the offender has been held in custody in relation to the offence", as referred to in s 47 of the Crimes (Sentencing Procedure) Act 1999. Section 47(3) is directed to incarceration directly relating to the offence in respect of which the offender is being sentenced. In the Crown's submission, the period of custody solely referrable to these offences is the period from 2 September 2019, being the date on which his revoked parole expired. Noting that it was not until after that date that the earlier charges to which I have referred were withdrawn, after the death of Ms [TJ], those charges being withdrawn on 6 September 2019. Prior to 2 September 2019, the offender was in custody, bail refused on the like charges from 2017, parole revoked and eventually bail refused on the present charges when, as I understand it, bail was not applied for on one of the occasions that the matter came before this Court for sentence, before Hosking AJ on 28 June 2019." (Emphasis added.)
His Honour considered general deterrence to be important, given that the offences related to the integrity of the justice system. As for the need for specific deterrence, his Honour observed the following: "Specific deterrence, particularly, because this offending was of a like nature to the previous charges, although those matters eventually were not proceeded with, and the fact that he was committing this offending while in custody." (Emphasis added.)
His Honour then stated "[a]ccordingly, I intend to date the sentence from the date of the expiry of the parole period". After announcing the sentence his Honour concluded by stating: "I have found special circumstances in relation to this matter because I have taken into account the totality, being the total time in custody since 5 July 2017, and I have endeavoured to restore an overall balance of 75% for the non-parole period, including that period of time, which is approximately two years, one month, so I have reduced the non-parole period from the statutory relationship of 75% to the total sentence to 50% of the total sentence. I am unable to find any other special circumstances."

Ground 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").
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.
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.
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.
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.
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.
Finally, under Ground 1 (d) the applicant submitted that his Honour failed to have regard to the fact that he had been bail refused on the two Form 1 offences which were part of the 2017 charges. His Honour did not take this into account in fixing the commencement date of the sentence. Reliance was placed on the observations of Hidden J in Sultana v R [2007] NSWCCA 107 that justice normally demands that Form 1 matters should be taken into consideration when backdating a sentence.
In relation to Ground 1 overall, it was submitted that it was an "erroneous approach" for his Honour to backdate the sentence to 2 September 2019. He submitted that if the sentence actually commenced on 5 July 2017 and coincided with the entirety of the applicant's time in custody, the applicant was effectively sentenced to five years and almost four months in custody. It was also noted that the applicant's then counsel had not endorsed the approach eventually taken by his Honour. Rather, he had sought a "balanced approach".
As for Ground 2, the applicant relied upon the exchanges between the applicant's then counsel and the sentencing judge concerning Ms Tasker's potential involvement in the subject offences extracted above at [41].
Overall, it was submitted that if error was established there were "strong grounds" for imposing a lesser sentence. These included the fact that the applicant had spent from 5 July 2017 until at least 25 August 2018 in custody because of now-discarded charges, his disadvantaged background and the fact that he currently has strong family support. It was submitted that this Court should backdate the sentence at a point "well before 2 September 2019" to accommodate the unusual features of the case. This would mean that his non-parole period would be less than 50% and this was unusual. Nonetheless, he submitted a restructuring of the statutory ratio could still be beneficial to the applicant.

Crown submissions

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.
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.
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.
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.
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.
In relation to Ground 2, it was submitted that the weight to be given to the matters raised by Ms Tasker was a matter of discretion for the judge. The Crown referred to the fact that his Honour had the affidavit of Mr Cole before him which included the fact that Ms Tasker had been charged with the same offences as the applicant. It was, thus, open for him to make inferences and afford her statement less weight.
As for the failure to find remorse in Ms Tasker's statement, the Crown distinguished this case from those where the Crown has completely failed to object to a sworn affidavit by the applicant that contained expressions of remorse (see Van Zwam v R [2017] NSWCCA 127). In such cases, it is not open to the sentencing judge to reject a submission that the remorse is not genuine. Here, as indicated in the Crown written submissions, the Crown had submitted generally that the applicant's statements of remorse to the psychologist and members of his family were untested evidence and, therefore, could be afforded little or no weight. As such, the Crown submitted the finding of reduced weight was open to his Honour.
Overall, it was submitted that his Honour gave a considerable discount by reducing the non-parole period to 50% based on the custodial history. It was submitted that his Honour was permitted to have regard to the 2017 charges when considering deterrence. Furthermore, any potential adverse effect of the discontinued charges was clearly negated by his Honour's generous finding of special circumstances. Even if error was established, the Crown submitted that no lesser sentence was warranted, having regard to the objective seriousness of the offending, the limited subjective factors in favour of the applicant, and the generous reduction in non-parole period already given.

Ground 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".
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.
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.
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".
All of these principles were accepted by the applicant. The complaint under Ground 1 was that his Honour made a number of discrete errors which caused the sentencing discretion to miscarry in one of the ways set out in House v The King (1936) 55 CLR 499; [1936] HCA 40.
First, it was contended that the sentencing judge erred in failing to recognise the scope of his discretion. The scope of the discretion is discussed by Simpson J (as her Honour then was) in Callaghan. In that matter the offender's parole had been revoked because of the commission of a subsequent offence and the sentencing judge had commenced the offender's sentence after the balance of parole had expired. Simpson J, with whom James and Hall JJ agreed, held that a discretion exists in terms of whether to backdate the sentence to the date parole was revoked, to another point in time during the parole period, or to after the head sentence had expired: at [24]-[25]. That is, when an offender has been in custody both serving a balance of parole and bail refused on the subject offences, the question as to when the sentence could commence is a matter of a broad discretion exercised to do justice in the circumstances of the particular case.
The sentencing judge was aware of this discretion, as he expressly referred to the decisions in Callaghan and Hutchen in the passage extracted above at [63]. The applicant's complaint is that by referring to s 47(3) of the Sentencing Act in this passage his Honour misunderstood the scope of his discretion. Given that his Honour had just (correctly) cited Callaghan, I am not satisfied that this was case.
As for Ground 1(c), it is to be accepted that the sentencing judge made no specific reference to the fact that the (discontinued) 2017 charges had precluded the applicant from being reconsidered for parole on a number of occasions. But what his Honour did is refer to the fact that at the time of this offending the applicant was in custody, parole revoked, pending resolution of the 2017 charges, the fact that on 18 March 2019 no action was taken by the SPA on the parole revocation because the 2017 charges were still pending and the fact that on 6 September 2019 the 2017 matters were discontinued. I am satisfied that his Honour was aware that the applicant remained serving his balance of parole due to the 2017 charges and that those matters were subsequently discontinued. It could not be said that this issue was overlooked nor that it required his Honour to backdate the sentence.
As for Ground 1(d), it is clear that his Honour failed to take into account that the applicant had been bail refused from 5 July 2017 on the breach AVO offence taken into account on the Form 1. The question is whether this failure constitutes an error. Reliance was placed on the decision of Sultana v R in which this Court (Hidden J with whom McClellan CJ at CL and Rothman J agreed) considered whether s 47(3) applies to an offence on a Form 1, rather than an offence on an indictment. In that context, Hidden J observed the following at [15]: "Of course, whether to backdate a sentence for any reason is a matter within the discretion of the sentencing judge, although it is a discretion for which there is ample guidance in the authorities. It seems to me that the terms of ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act are capable of embracing pre-sentence custody referable to Form 1 matters, but I do not find it necessary to decide that question. The fact is that Form 1 matters normally have an impact, sometimes a substantial impact, on the sentence passed for the principal offence. Justice demands that pre-sentence custody exclusively referable to such offences should normally be taken into account and, consistently with authority, it is preferable that that be done by backdating the sentence for the principal offence." (Emphasis added.)
It was certainly well open to his Honour to have regard to this fact but I am unaware of any authority for the proposition there is a requirement to do so and in any event the applicant was not in custody solely for the Form 1 offence at any time.
As for Ground 1(b), I am satisfied that the sentencing judge erred in the manner in which he treated the (discontinued) 2017 charges. The relevance of those charges was that they were the reason for the applicant's parole being revoked. The Crown did not lead any evidence about the factual basis for those charges. It was the affidavit of Mr Cole that introduced this evidence. The 2017 charges were discontinued. There had been no factual findings in relation to them. Despite this, his Honour appears to have treated the charges as proved, or at least as having substance, in the following respects: 1. At [20], his Honour stated that it was "of relevance" that the offending conduct occurred while the applicant was in custody, "having been parole-revoked and charged with offences of a similar kind." 2. At [37], his Honour observed that it was "of significant concern" that the offender, having been charged with offences that resulted in his parole being revoked and his return to custody, went on to commit further offences of a very similar nature to the offences that had caused the revocation of his parole". His Honour then observed that "[a]pparently, he learned nothing from the fact that his parole had been revoked for committing similar offences." (Emphasis added.) 3. At [49], in the context of Ms Tasker's letter his Honour observed that "[h]aving been charged with like offending, he went on to commit these offences shortly after the birth of the child." 4. At [53], in the context of finding that the applicant's prospects of rehabilitation were poor his Honour accepted a Crown submission that he committed the subject offences having been bail refused on similar charges involving the same alleged victim. 5. At [57], in the context of his Honour considering when to backdate the sentence, it was noted that "[p]rior to 2 September 2019, the offender was in custody, bail refused on the like charges from 2017." 6. It was not until [58] when his Honour found that specific deterrence was of particular importance because the offending was of a "like nature" to the previous charges that his Honour went on to add the words "although those matters eventually were not proceeded with".
The true position was that the subject offences were committed whilst the applicant was serving parole for offences with which he was dealt with in 2013. The balance of that parole was revoked because he was charged with similar offences to the subject offences. However, those similar offences were never proved. That notwithstanding, for the purposes of sentencing the applicant his Honour appears to have placed significant weight on the similarity between the discontinued 2017 charges and the subject charges in exercising the power to backdate the sentence.
In doing so, his Honour took into account a matter which was not established to be the fact. In the language of House v The King, he mistook the facts, treating the 2017 charges as if they had been established, or at least likely to have been committed.
I would uphold Ground 1.

Ground 2

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.
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.
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.
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.
I would uphold Ground 2 as well.

Re-sentence

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].
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.
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.
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.
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."
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."
I have set out the applicant's childhood above. When the sentencing judge held that this is not a matter in which the Bugmy factors "have any application", his Honour was making an evaluative assessment in relation to which judicial minds may differ. That assessment was as to whether the applicant's childhood could be described as one of "profound" deprivation. The High Court held that the effects of "profound" childhood deprivation should be given "full weight" in "every sentencing decision". There can be no doubt that the applicant had a deprived childhood, although there was no material placed before the Court that he was exposed to "extreme violence and alcohol abuse". Despite this, I would have regard to the applicant's unfortunate childhood as one of many factors relevant to the sentencing process.
It was also submitted that on re-sentence this Court would find special circumstances for the purpose of s 44(2) of the Sentencing Act on a basis other than that found by the sentencing judge. That submission raises an interesting question concerning the competing considerations relevant to the expiration of the new non-parole period.
The applicant's then counsel had submitted that the sentence should have commenced from around the date of the offending behaviour, which was 8-11 September 2018. The Instagram page was public until 12 November 2018 and the applicant was charged on 18 December 2018. I would be prepared in the exercise of my independent sentencing discretion to commence the sentence on 18 December 2018. This was the date he was charged with the subject offences and he continued in custody from that date on the other matters. His parole was not breached by reason of the subject offences. The sentence I have independently arrived at is also an aggregate sentence of 3 years. I have also arrived at the same indicative sentences, namely 2 years and 4 months in relation to the offence of cause detriment to a potential witness TJ and 2 years and 6 months in relation to the offence of cause detriment to a potential witness LB (with the Form 1 offence).
Given that I would backdate the sentence to the time of charge (even though he was not strictly in custody in relation to this offence until 28 June 2019), I see no reason to make the same variation to the statutory ratio in s 44(2) of the Sentencing Act. The only basis for a variation of the statutory ratio by the sentencing judge from 75% to 50% was that the applicant had already spent so long in custody. His Honour indicated that he wanted to maintain a 75% ratio between the time he first came into custody on 5 July 2017 and the date he will be eligible for parole. I would propose to adopt the same course. I would impose a sentence of 3 years imprisonment to commence from the date of charge, 18 December 2018. Maintaining the 75% ratio between the period he will have spent in custody both serving his balance of parole and this sentence results in a variation of the statutory ratio to 61%.

ORDERS

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

Judgment

MEAGHER JA: I have had the benefit of reading N Adams J's reasons in draft. I agree with those reasons and the orders that her Honour proposes.
WILSON J: I agree with N Adams J.
N ADAMS J: On 10 October 2019, the applicant was sentenced by Judge King SC for two counts of causing a detriment to a witness, contrary to s 326(2) of the Crimes Act 1900 (NSW): R v Farrell [2019] NSWDC 835. The conduct giving rise to these counts was arranging for details of two "informer" witnesses to be published on a public Instagram page. The maximum penalty for this offence is 10 years imprisonment.
In imposing the sentence, his Honour took into account another offence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), namely contravening an apprehended domestic violence order ("AVO"), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for that offence is 2 years imprisonment or a fine of 50 penalty units.
The applicant had pleaded guilty to the charges before trial and received a discount of 10%. He received an aggregate sentence under s 53A of the Sentencing Act of 3 years imprisonment with a non-parole period of 1 year and 6 months. The applicant was charged with these offences on 18 December 2018. For reasons explained below, his Honour imposed the sentence to commence on 2 September 2019. The applicant's non-parole period will expire on 1 March 2021 and his full term will expire on 1 September 2022.

Submissions on sentence

In response to a question by his Honour, the applicant's then counsel submitted that the relevance of Mr Cole's affidavit was that it demonstrated that the subject offences could have been dealt with summarily and it also dealt with the relevant procedural history. The following exchange then took place about the reference in Mr Cole's affidavit to Ms Tasker also being charged: "HIS HONOUR: Was she the outside assistance in terms of publishing the material? HOWELL: I don't know the answer to that. HIS HONOUR: Well, what was she charged with? HOWELL: As I understand it, Ms Tasker was also charged in respect of the same allegations that give rise to these sentence proceedings but they were ultimately-- HIS HONOUR: The same allegations? HOWELL: That they were ultimately in the exercise of the Director's discretion discontinued against her, but I don't know the reasons that sat behind that decision by the director. HIS HONOUR: I gather it had something to do with the death of [TJ] from your instructing solicitor's affidavit. HOWELL: I don't actually know, but it may well be so. HIS HONOUR: Perhaps you could ask your instructing solicitor. He obviously knows the answer. HOWELL: As best as we understand, it wasn't because of [TJ]'s passing because the nature of the case here was not dependent on her. HIS HONOUR: The reason I ask, Mr Howell, and it's very obviously because you've tendered a reference from Alison Tasker who is referred to in your instructing solicitor's affidavit as someone who appears to have been charged in relation to this matter, and in respect of which there was some success in terminating the proceedings. It would seem by implication from the facts that it was either her or some other perhaps family member that posted the material on line, as he couldn't do that from the gaol. Your instructing solicitor wants to speak to you. HOWELL: All that I can say in response to your Honour's observations is that they're all correct. Those inferences that your Honour is drawing are open in terms of inferences clearly, I'm not resisting that. I just-- HIS HONOUR: The reason I raise it is that having tendered the reference from Alison Tasker, it affects the degree to which one can rely on it. HOWELL: All I can say is that the reference from Ms Tasker speaks to the matters it speaks to and your Honour is looking at it in the context where, whilst the facts assert and it's accepted by him that he was given some assistance by some people outside of custody to achieve his end, it would be unsafe for your Honour to draw the inference adverse to her that it was in fact her-- HIS HONOUR: I just wonder why the Crown didn't object to the letter, or at least seek to cross-examine the author. Anyway, thank you. I suppose that's par for the course with the DPP these days." (Emphasis added.)

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