Hala v R

Procedural and custodial history

1. At this point it is convenient and useful to recount the procedural history of the applicant's relevant court matters and his custodial history.
2. He was born on 21 June 1994 and is now 30 years old.
3. He first went into custody as an adult in March 2016, at the age of 21, sentenced to imprisonment for offences of assault, intimidation and breaching an apprehended domestic violence order, committed on two occasions in 2015. He was released to parole in November 2016.
4. He was arrested on 11 January 2017 and charged with a specially aggravated break and enter offence committed in October 2015. The facts of that offence were not made known to this Court. He was remanded in custody and sentenced for that offence in December 2018. The sentence was 8 years and 6 months imprisonment, with a non-parole period of 4 years and 10 months, commencing on 11 January 2017, the non-parole period expiring on 10 November 2021.
5. On 19 October 2021 he was charged with an offence of affray committed on 15 October 2021 while he was in custody.
6. He was released to parole on 10 November 2021 in respect of the aggravated break and enter offence.
7. The offences the subject of this appeal occurred in Griffith on 24 and 25 March 2022. In brief, for these purposes, the applicant was arrested and charged on 24 March 2022 with supplying methylamphetamine, dealing with money suspected of being proceeds of crime and having custody of a knife in a public place. On the following morning he was refused bail in Griffith Local Court. On that day, he assaulted a police officer who had him in her custody and escaped from Griffith Police Station.
8. He was apprehended on 13 May 2022 and remanded in custody. His parole for the aggravated break and enter offence was revoked from 11 May 2022. There are no documents from the State Parole Authority before this Court, so the reason for the revocation of the applicant's parole is not known. The Court's experience suggests it likely had some connection with the Griffith offences, but the precise formulation of the reason or reasons is not known. The applicant's balance of parole, of 3 years, 3 months and 17 days, is due to expire on 27 August 2025.
9. On 15 March 2023 the applicant pleaded guilty to some of the Griffith offences and was committed for sentence to Albury District Court.
10. On 5 April 2023 the applicant was sentenced by Judge Turnbull SC at Bathurst District Court for the affray offence. I will briefly state the facts of that offence, as the issue of appropriate totality of sentences for the totality of the applicant's criminality must be considered in resentencing him. The affray offence involved the applicant and three other prisoners assaulting another prisoner by punching, kicking and stomping on him, and throwing him down some stairs. The description of the facts of the offending made it seem sustained, but Judge Turnbull SC said the offending lasted just under two minutes. His Honour found that another man initiated the attack and the applicant was second in culpability of the four offenders. The maximum penalty was 10 years imprisonment. The applicant received a 25% discount for his plea of guilty. The sentence was 2 years and 4 months imprisonment, commencing on 10 January 2023, with a non-parole period of 1 year and 2 months, to expire on 9 March 2024, the sentence expiring on 9 May 2025.
11. The matters the subject of the appeal came before Judge Grant on 6 June 2023.

The sentence proceedings before Judge Grant

1. The offences for sentence were:

• assaulting a police officer causing actual bodily harm, contrary to s 60 of the Crimes Act 1900 (NSW), with a maximum penalty of 7 years imprisonment and a standard non-parole period of 3 years imprisonment.
• dealing with property suspected of being the proceeds of crime, contrary to s 193C(2) of the Crimes Act, with a maximum penalty of 3 years imprisonment. There were two offences on a Form 1 to be taken into account when the applicant was sentenced for that offence: having custody of a knife in a public place and supplying a prohibited drug.
• a related offence on a s 166 certificate, of being an inmate, escaping from lawful custody, the jurisdictional limit being 2 years imprisonment.

1. The applicant does not challenge any of Judge Grant's findings.
2. The facts were agreed.
3. On the afternoon of 24 March 2022 police stopped a car in Griffith. The applicant was in the front passenger seat. Police found a small bag in the front passenger footwell. The applicant agreed the bag was his. In the bag police found $11,830 in Australian currency, 4.26g of methylamphetamine and a small pocket knife. The cash was the subject of the proceeds of crime charge, and the drug and pocket knife were the subject of the offences on the Form 1.
4. The applicant was arrested and remanded in custody at Griffith Police Station overnight. On the morning of 25 March 2022 he was refused bail in Griffith Local Court and was remanded into the custody of Corrective Services NSW.
5. The custody sergeant, Sergeant Harris, put the applicant in a dock in the charge room. He was permitted to call his partner in a private room. He then told Sergeant Harris he did not want to "go back inside" and leave his partner. Sergeant Harris observed him to be upset and anxious.
6. Later Sergeant Harris was escorting the applicant to the van dock area. As she approached the door into the charge room and produced her access card to unlock the door, the applicant put her in a headlock, threw her to the ground and took her access card from her grip.
7. He ran through and out of the police station. The car which police had stopped the day before drove him away.
8. Sergeant Harris sustained bruising and inflammation to her right shoulder, left knee and neck, which resolved without ongoing issues. She also sustained a dislocated coccyx, which required follow-up treatment.
9. Judge Grant assessed the assault of Sergeant Harris as below the mid range of objective seriousness. He noted that assaults upon police are very serious offences and deterrence must be reflected in the sentence. His Honour assessed the proceeds of crime offence as towards the lower end of objective seriousness. He did not appear to state his assessment of the objective seriousness of the escape offence.
10. His Honour noted the applicant was on parole at the time of the offences, as a statutory aggravating factor.
11. His Honour took into account the following subjective matters. The applicant was 27 years old at the time of the offences and 28 at the time of sentencing. He is of Tongan heritage. His formative years were beset with adversity and hardship, socio-economic disadvantage, violence, substance abuse and negative peer influences. As a young adult he developed chronic substance abuse issues. His Honour said the applicant's background of deprivation allowed for some diminution of his moral culpability and some moderation of general deterrence. The applicant's record of prior convictions disentitled him to leniency. He was genuinely remorseful. His prospects of rehabilitation were guarded.
12. The effects of Covid had made the applicant's experience of custody more onerous. His Honour found special circumstances in the applicant's requiring intensive assistance to reintegrate into the community and his risk of becoming institutionalised.
13. His Honour applied a 25% discount, for the applicant's early pleas of guilty, to the indicative sentences, which were 18 months imprisonment for the offence of assaulting the police officer, and 6 months imprisonment for the proceeds of crime offence. His Honour imposed an aggregate sentence of 22 months imprisonment, commencing on 27 October 2024, expiring on 26 August 2026, with a non-parole period of 14 months expiring on 26 December 2025.
14. For the offence of escaping from lawful custody his Honour imposed a sentence of 6 months imprisonment, to be concurrent with the aggregate sentence. This was not in accordance with s 57 of the Crimes (Sentencing Procedure) Act. That section had been brought to His Honour's attention in written submissions by counsel for the then offender and the Crown. Section 57 will be discussed further below.

Judge Grant's fixing of the commencement date of the sentences

1. At the beginning of the brief sentencing hearing his Honour asked counsel for the applicant what he wanted to say about the commencement date of the sentence being 27 February 2025. After the tender of documents his Honour again asked counsel what he wanted to say about a commencement date for the sentence of 27 February 2025. The following exchange then occurred: "HUSSEY: Your Honour, I'd just make this observation. I would be inviting your Honour to commence the sentence date at a date much earlier than that date for this reason. His Honour, Turnbull J, when sentencing Mr Hala for the affray matter, effectively accorded seven months-- HIS HONOUR: Well, he made it completely concurrent, didn't he, because the balance of parole, which is three years, three months, two weeks, and three days, commenced on 11 May 2022 and expires on 27 August 2025, Turnbull J, when dealing with the offender on 5 April 2023, imposed a sentence of 28 months commencing on 10 January 2023, which would expire on 9 May 2025, which is less than the expiry date of the Parramatta District Court matters, and the non-parole period imposed by his Honour was 14 months, whereby he would be eligible for parole on 9 March 2024, which is well short of the expiry date of the revoked parole, being 27 August 2025. So, it seems to me that it's wholly concurrent with his revoked parole period. HUSSEY: As I - and in my submission, at this stage, subject to what your Honour does today, if the non-parole period for these matters were to expire short of the end of the revocation of the parole period dated 27 August-- HIS HONOUR: Let me tell you what I am thinking of doing, Mr Hussey, and you can make further submissions if you want to, but I am intending to impose, in regard to sequence 1, an indicative term of 18 months, sequence 5, an indicative term of 6 months, on the 166 certificate there be 6 months, which is to be concurrent with the aggregate sentence I am going to impose, I am going to impose an aggregate sentence of 22 months, commencing date 27 February 2025, which would expire on 26 January 2027. I would impose a non-parole period of 14 months, whereby he would be eligible for parole on 26 May 2026. Do you want to say anything about that? HUSSEY: I don't take, or I don't cavil with your Honour insofar as the indicative terms that your Honour has noted and indeed the overall head sentence of the non-parole period. HIS HONOUR: You just say the commencement date should be a different date, it should be earlier? HUSSEY: Yes, and there would be nothing that would-- HIS HONOUR: What's the date you say it should be? HUSSEY: I'd be inviting your Honour to commence the date for this sentence, the aggregate sentence, at a date in the earlier part of 2024. There would be nothing preventing Mr Hala from approaching the parole board through the assistance of the Prisoner's Legal Service for a reinstatement of his parole once the non-parole period for this matter has expired. I otherwise have no difficulty with the indicative terms and the overall aggregate sentence and non-parole period. HIS HONOUR: Right. Let me turn to Ms Coleman. Ms Coleman, what do you say about a start date then of 27 October 2024? COLEMAN: Your Honour, the original start date that your Honour proposed, it seems to me would be more appropriate - HIS HONOUR: Well, I was going back six months, but what Mr Hussey's persuading me here is to in fact go further back and go 10 months back."
2. His Honour delivered his remarks on sentence immediately after the submissions were completed. After his Honour pronounced sentence, counsel for the applicant asked his Honour if there was "any utility in making a further submission to invite [his] Honour to exercise discretion for a further backdate" beyond the October date his Honour had specified. His Honour said no.
3. In his remarks on sentence, his Honour reflected the written submissions by the Crown and counsel for the offender about the commencement of the sentence in the following terms: "The offender has technically not served any time in custody for this offending. The offender's parole was revoked with effect from 11 May 2022 (he was arrested 13 May 2022), and it will expire on 27 August 2025. The Crown accepts that there should be some overlap with this period of revoked parole to reflect the principles of totality. However, given there is a separate victim, a distinct period of time in custody should be imposed in respect of these offences to give effect to the general and specific deterrence. Mr Hussey [counsel for the offender] submits the offending referable to the two charges occurred in close temporal proximity to each other and within the 24-hour period. When having regard to the principles of totality, the sentences to be imposed for each individual count could run primarily concurrent against each other, with any accumulation modest. The court is invited to commence this sentence not too far beyond the commencement of the non-parole period for the sentence imposed at the Bathurst District Court earlier this year. This will avoid a crushing sentence being imposed upon a relatively young offender in urgent need of community-based rehabilitation. The commencement date is a discretionary matter. In this matter, the commencement date of sentence will be 27 October 2024."

Commencement of sentences - legal provisions and principles

1. Consideration of this appeal requires reference to s 47 of the Crimes (Sentencing Procedure) Act, as considered by Simpson JA (Bathurst CJ agreeing) in White v R [2016] NSWCCA 190. Section 47 provides, relevantly: 47 Commencement of sentence (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. … (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender - (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if - (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence.
2. In White at [118]-[122], Simpson JA said: "[118] By s 47(2)(b) of the Sentencing Procedure Act, a court is permitted to post-date the commencement of a sentence, but only if the sentence is to be served consecutively or partly consecutively with another sentence of imprisonment. By sub-ss (4) and (5), a sentence may not be post-dated to a date later than the earliest date on which the offender will become entitled or eligible to release on parole having regard to any other sentence of imprisonment being served. [119] At all material times, notwithstanding the revocation of parole, the applicant was eligible to be released on parole in relation to the 2008 sentences. The sentence imposed in respect of the 2013 offences could therefore not be post-dated beyond the date on which it was imposed. That being so, the delay in sentencing extended the period of accumulation available to the sentencing judge. That is, the sentencing judge had a vastly wider range of options for the commencement date selection than would have been available to her had sentencing taken place on, or shortly after, say 4 September 2014 (or earlier). The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him. [120] No argument in these terms was addressed to the sentencing judge. Such argument as there was (and it was limited) concerning the extent of backdating was directed to the issue considered in R v Kaiva (NSWCCA, 9 November 1998, unreported) and Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, and which was also ventilated in this application. That issue was to do with the overlap between the revocation of parole and the partial accumulation of sentence. Where, as here, parole is revoked solely because of the commission of subsequent offences, an argument is available (and frequently advanced) 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. In R v Eric John Andrews (NSWCCA, 28 April 1993, unreported) Hunt CJ at CL had no difficulty in rejecting the proposition that, in those circumstances, an offender is subject to double punishment. His Honour said that the revocation is because the commission of the further offences shows that the offender is unable to adapt to normal lawful community life and is therefore no longer entitled to parole in relation to the earlier offences (although the evidence of that inability was the commission of the offences): see also, R v Brett John Kelly [2000] NSWCCA 557. [121] In Callaghan I reviewed those decisions, and a contrary line of authority that held that to decline to backdate the sentence for the subsequent offence at least gave the appearance of double punishment: Kaiva, and see R v Kitchener [2003] NSWCCA 134. [122] There is, in my opinion, considerable force in the argument, advanced in this Court, but not advanced before the sentencing judge, that the delay in sentencing caused the applicant to lose a significant advantage. It would have been appropriate for the sentencing judge notionally to determine at what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date. The latest such date would have been 4 September 2014, when the matter was first listed but not reached, but it would have been open to consider any date after the date of the applicant's plea of guilty."

Applicant's submissions

1. Counsel for the applicant submitted that in not considering s 47, the sentencing judge misapprehended his discretion to postdate the sentences he imposed to commence at the expiration of the applicant's balance of parole, that is, 27 August 2025. He submitted the extent of his Honour's discretion to commence the sentences after the date on which he imposed them was at the end of the applicant's non-parole period for the affray offence, that is, 9 March 2024.
2. The applicant submitted that the effect of the period between his re-entry into custody on 13 May 2022 and his being sentenced on 6 June 2023 was to his significant disadvantage, particularly in light of his being sentenced in separate sentencing proceedings for the affray offence. He submitted had the affray sentence not occurred when and as it did, Judge Grant could not have commenced the sentences he imposed later than 6 June 2023, the date he imposed sentence. Counsel submitted an appropriate sentencing date may have been 15 March 2023, when the applicant entered his pleas of guilty in the Local Court to the Griffith offences. However, because the affray sentence occurred when it did, and its length, the available commencement date for Judge Grant was extended to 9 March 2024.
3. Counsel submitted that in resentencing the applicant, the Court will need to consider how the sentence should interact with the sentence imposed by Judge Turnbull SC for the affray offence. The sentence Judge Turnbull SC imposed commenced on 10 January 2023, and thus was accumulated on the applicant's balance of parole by eight months, from 11 May 2022 to 10 January 2023. That period of custody from 13 May 2022 was also referable to the Griffith offences of March 2022, as well as the applicant's balance of parole.
4. Counsel submitted that in considering an appropriate total sentence for all the Griffith offences, the Court should consider the nature and circumstances and seriousness of the offences on 24 March and the short period of time over which all of the offences of 24 and 25 March 2022 occurred.
5. Counsel submitted that the overall global sentence is stern for a man who needs rehabilitation in the community's and his interests.

Crown submissions

1. The Crown submitted that there was no delay in the sentencing of the applicant which operated to his disadvantage, as was considered in White, in either the circumstances of his sentencing for the Griffith offences or when he came to be sentenced for the affray offence.
2. The Crown agreed that the latest available date for Judge Grant to commence the sentences, in compliance with s 47, was 9 March 2024, the end of the non-parole period for the affray offence.
3. The Crown submitted that the whole of the sentence for the affray offence was concurrent with the balance of parole from the 2018 sentence, so there was no double punishment in respect of the affray offence. The Crown submitted there should be significant accumulation between the affray sentence and the assault police sentence, given there were two different victims and a significant time difference between the two offences.

Section 57 of the Crimes (Sentencing Procedure) Act

1. Section 57 of the Crimes (Sentencing Procedure) Act provides as follows: (1) This section applies to a sentence of imprisonment imposed on an offender in relation to an offence involving an escape from lawful custody committed by the offender while an inmate of a correctional centre (whether or not the escape was from a correctional centre). (1A) A sentence of imprisonment to which this section applies must be imposed after any other sentence of imprisonment that is imposed in the same proceedings. (2) A sentence of imprisonment to which this section applies imposed on an offender - (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (3) In this section, a reference to a sentence of imprisonment is taken to be a reference to - (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.
2. The effect of s 57(2), in the circumstances of this case, is that the sentence for the escape offence must be accumulated on the non-parole period of the affray sentence (s 57(2)(a)) or the non-parole period of the sentence imposed for the Griffith offences (s 57(2)(b)), whichever expires later.
3. Counsel for the applicant conceded that he was an inmate by virtue of extended definitions in the Crimes (Administration of Sentences) Act 1999 (NSW). Counsel accepted that s 57 required that the sentence for the escape offence be accumulated on the non-parole period of the aggregate sentence for the other offences. Judge Grant did not do so, but this Court must do so in resentencing the applicant.
4. The Crown, whilst submitting that this Court must apply s 57 in resentencing the applicant, did not submit that this Court should impose a longer sentence than the applicant received in the District Court, in complying with s 57. The Crown submitted that the need for the sentence to comply with s 57, but not be longer than the sentence imposed in the District Court, may constitute special circumstances for this Court to reduce the non-parole period of the aggregate sentence from the statutory ratio.
5. The Crown also submitted that the Court will need to consider the ratio between the overall minimum term and the effective total sentence.

Resentence

1. In resentencing the applicant I have taken into account the factors highlighted by his counsel, being that at the age of 30, the applicant has been in custody since he was 21, but for eight months; his prospects for rehabilitation must remain guarded; he needs intervention and treatment for his chronic drug addiction, which is demonstrated by his recent infringements in custody of possessing buprenorphine; he needs extended supervision in the community to promote his rehabilitation; that his offences were committed on parole is accepted to be an aggravating circumstance; his life was marked by significant deprivation, which together with chronic substance abuse reduced his moral culpability; he was genuinely remorseful and there is a real risk of institutionalisation. I have also had regard to the matters in the affidavits relied on by the applicant on resentencing, including his efforts in custody to rehabilitate himself, attending courses and engaging in the buprenorphine program.
2. In addition to the Crown's submissions already referred to, the Crown emphasised on resentence the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act 1999, the aggravating factor that the offences were committed while the applicant was on parole, and that the applicant is not entitled to leniency by good character. The Crown did not challenge the sentencing judge's findings about the objective seriousness of the offences or the applicant's reduced moral culpability.
3. The Crown relied on the record of the applicant's infringements in custody. As he has been punished in custody for those occasions of misconduct, their continued occurrence does show the need for intense rehabilitation of the applicant.
4. There is no explanation for the delay in the applicant being sentenced for the affray in April 2023, when he was charged in October 2021. The non-parole period of that sentence expired on 10 March 2024. Subject to the sentences the subject of this appeal, the applicant is now able to seek review of his revocation of parole for his 2018 sentence. Of that sentence of 8 years, 6 months imprisonment he has served his non-parole period of 4 years, 10 months and a further 2 years, 2 months, a total of 7 years imprisonment.
5. Since he went into custody in March 2016 he has spent almost 8 years of his adult life in custody. Institutionalisation is clearly an issue, as is his need for rehabilitation, which is in the community's interests, as well as his.
6. There is no information as to how the sentence date for these offences was fixed for 6 June 2023, he having entered his pleas of guilty in the Local Court on 15 March 2023 and having entered into custody in respect of those matters on 13 May 2022. It does seem, as counsel for the applicant submitted, that the criminal justice system has worked in the applicant's case in a somewhat arbitrary fashion. I am satisfied that as a result he has suffered delays and disadvantage. This Court is constrained in resentencing the applicant by the circumstances of the sentences which have come before us.
7. In resentencing the applicant the task of this Court is to fix an appropriate total sentence for the total criminality of his offending of 24 and 25 March 2022 and ensure an appropriate total sentence for the totality of his offending the subject of current sentences.
8. In structuring the sentences I have reduced the non-parole period for the aggregate sentence for the assault police officer and deal with proceeds of crime charges, finding special circumstances in the need to accumulate the sentence for the escape offence on the non-parole period of the aggregate sentence, but not exceed the total sentence imposed in the District Court.
9. I am conscious that in the final result the total non-parole period of the total period in custody since May 2022 slightly exceeds the statutory ratio. In my view the result takes into account the interests of the applicant, the victims of his offences and the interests of the community.
10. The commencement date I have chosen is partially accumulated on the affray sentence, and has taken into account the date of the applicant's plea in the Local Court, the date he was sentenced in the District Court, the date of the revocation of his parole and the date of the expiration of the non-parole period of the affray sentence.

Orders

1. Accordingly, I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Judge Grant on 6 June 2023. 4. In lieu thereof the applicant is sentenced as follows: 1. Applying the 25% discount for the pleas of guilty to the indicative sentences, the indicative sentences are: 1. For the proceeds of crime offence, taking into account the two offences on the Form 1, 6 months imprisonment. 2. For the assault of the police officer occasioning actual bodily harm, 18 months imprisonment with a non-parole period of 6 months. For those offences I impose an aggregate sentence of 21 months imprisonment, with a non-parole period of 6 months imprisonment, commencing on 10 September 2023, the non-parole period expiring on 9 March 2024. 1. For the offence of escaping lawful custody I impose a sentence of 6 months imprisonment commencing on 10 March 2024, expiring on 9 September 2024. 2. The total sentence will expire on 9 June 2025. The applicant is to be released to parole on 9 September 2024.

---

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: 09 August 2024