Hall v Regina

The application 20 The applicant's primary complaint was that he had been incompetently represented by the solicitor who appeared for him in the sentence proceedings. He referred to her Honour's observation that he had not given evidence to express his remorse, to which she added that he "nowhere expressed any indication or understanding of how his offences may have affected the many people, predominantly women, who were the victims of his crimes". He said that he had wanted to give evidence but that his solicitor did not call him, saying that his evidence "would not make any difference". He complained that her Honour was left with no more than hearsay evidence of his expressions of remorse recorded in the reports. He referred to R v Munro [2006] NSWCCA 350, per Beazley JA at [17] ff. 21 Generally, he asserted that his case had not been properly prepared and that there had been a lack of negotiation about the charges to which he pleaded guilty. He accepted that he bore the burden of establishing that his representation had given rise to a miscarriage of justice, referring to the review of the relevant principles in the judgment of Gleeson CJ in Nudd v The Queen (2006) 80 ALJR 614 at [9]. 22 A ground of appeal such as this cannot be pursued in the absence of evidence. In so saying, I am mindful of the applicant's disadvantage being unrepresented. Nevertheless, we are without evidence from him or from his solicitor. We do not know how the case was prepared. We do not know what negotiation, if any, took place before the proceedings. That, in any event, is not a matter about which we would have received evidence. Nor do we know why the applicant was not called. That may have been a decision by the solicitor for sound tactical reasons. Certainly, it was a matter residing within the "wide discretion" of an advocate to which Gleeson CJ referred in Nudd. 23 What we do have is the transcript of the sentence proceedings, together with written submissions provided to her Honour by the applicant's solicitor and by the Crown's representative. From that material it appears that the solicitor addressed relevant matters, displaying a sound grasp of sentencing principle. Nothing in the material before us conveys that the applicant's representation gave rise to a miscarriage of justice. 24 He also complained that his solicitor had failed to emphasise that the overwhelming majority of the offences were committed within a relatively short period of time, and were attributable to his addiction to cocaine. However, that was clearly the effect of the material before her Honour. Moreover, the transcript of the sentence proceedings records observations by the solicitor that the offences were "a flurry of criminal activity committed by a man heavily motivated by drugs", and that they took place "over quite a short compass…". 25 Otherwise, the applicant asserts that there are a number of factual errors in the psychological report and in her Honour's remarks. He said that he would have corrected these if he had given evidence. 26 Dealing first with the remarks, he made the following points: · As to his background, her Honour said that he had nine step-siblings from his mother's second marriage. In fact, he said, he had four step-siblings from his mother's first marriage and four from his father's first marriage. · Her Honour recorded that he had worked from time to time in the building industry as a labourer, but was receiving benefits before being in prison for these offences. As to that, he said that he was a qualified bricklayer and had worked in a variety of skilled positions, and had applied for benefits only in late December 2004. · Her Honour said that his former partner had an apprehended violence order out against him and that he had not seen his son since being imprisoned. In truth, he said, he had earlier consented to an apprehended violence order, without admissions, but that it was not current at the time he was sentenced. Moreover, in the period before his arrest he had restored an amicable relationship with his partner and had had access to the child. He agreed that he had not seen his son since being in prison, but said that he would have dearly loved to have seen the boy but accepted that his partner did wish to expose him to a prison environment. 27 The first of those matters is clearly of no significance at all. The second and third of them are of more importance as aspects of his background but, in all the circumstances, it is not apparent that they would have had any significant bearing upon her Honour's assessment of the appropriate sentences. 28 As to the psychological report, the applicant identified the following errors in the history contained in it: · The report recorded that his father's style of parenting had been "rather permissive and laid back". In fact, he said, his father had been a strict disciplinarian and that had been a matter dealt with in many of his counselling sessions. · The report recorded that he had been assaulted by his former partner's brother, and that this related to his having allegedly stolen money from his partner. He pointed out that it was his partner's son from a previous relationship who had assaulted him, and he denied having stolen money from her. 29 Again, it is difficult to see how these errors, accepting that they were such, could have had any significant bearing upon sentence. It is true that his being assaulted by a person associated with his partner was part of the circumstances leading to his abuse of cocaine in 2004. However, it was of no moment who that person was or why the assault occurred. I should record that he raised two other matters in the report concerning his employment and his relationship history which he said were erroneous, but it is not necessary to refer to them because they are clearly minor and of no significance. 30 The applicant faces a lengthy prison term. One can understand that he might examine the record of the proceedings to identify any imperfections he might perceive in the evidence or the presentation of his case. However, the matters he has raised, individually or in their combination, do not persuade me that her Honour's sentencing exercise is flawed and that this Court should intervene. 31 The applicant took a point concerning the form of her Honour's sentencing order. When passing sentences other than fixed terms, she announced the head sentence before specifying the non-parole period. As he rightly observed, this was not in accordance with the procedure required by s44(1) of the Crimes (Sentencing Procedure) Act. However, the effect of her Honour's sentences is not in doubt and it could not be said that the sentencing process miscarried. The error is no more than a technical one and it also would not warrant this Court's intervention: cf R v Cramp [2004] NSWCCA 264, per Spigelman CJ at [38] - [44]; Itaoui v R (2005) 158 A Crim R 233, per Howie J at [17] - [18]. 32 Finally, the applicant submitted that the aggregate sentence is manifestly excessive. He relied upon the background of his cocaine addiction and the circumstances giving rise to it, and he expressed before us his remorse and his insight into the effect upon the victims of his crimes. He also argued that the aggregate term was the product of an accumulation of sentences which failed to exercise the restraint dictated by the principle of totality, referring to the judgment of Hunt CJ at CL in R v Close (1993) 65 A Crim R 55 at 59. 33 The aggregate sentence is undoubtedly severe but, in my view, appropriately so. The applicant stood for sentence for twenty-seven offences the subject of committal charges, with a much larger number of offences required to be taken into account on a Form 1. Together, they represented a sustained and serious episode of criminality. The total sentence of imprisonment for ten years and nine months was clearly within the bounds of the proper exercise of her Honour's discretion. The effective non-parole period of eight years was appropriate to reflect considerations of retribution and deterrence, and it leaves the applicant with a substantial period of parole eligibility during which his rehabilitation might be fostered. 34 I would grant leave to appeal but dismiss the appeal. 35 PRICE J: I agree with Hidden J.