Halloway v R

Consideration

Re-sentencing Mr Halloway afresh involves a separate and independent exercise by this Court of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. However, this Court is not prevented from taking account of matters before the sentencing judge or any views that he or she may have expressed concerning them. In Kentwell, the High Court said this at [42]-[43]: "[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non‑parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal."
Her Honour dealt carefully with matters that were placed before her at the sentencing hearing. Some of those are as follows.
On the assessment of objective seriousness, her Honour said this: "Considering all matters relevant to the objective gravity of the offences before the court, including the role that the offender actually played, noting of course it was a joint criminal enterprise, that the offender had no weapon and inflicted no violence himself, and the aggravating circumstances that apply … the offending falls in the mid-range of seriousness for all trial offences, if not slightly above, and just below mid-range for the plea offences."
Her Honour's remarks appear to indicate that each of the trial offences was assessed as being in the mid-range of seriousness, if not slightly above, and the plea offence and the Form 1 offence were each assessed as just below mid-range. Her Honour remarked that Mr Halloway has had a "somewhat disadvantaged background" and that "this reduces his moral culpability to some extent".
Her Honour indicated that on the plea to the 15 January 2019 aggravated break enter and steal offence, together with the related Form 1 offence, Mr Halloway would receive a 25% discount. That conclusion was uncontroversial.
Her Honour dealt with both general and specific deterrence. She remarked that "the Courts have consistently held that general deterrence is a particularly important sentencing function for these brazen types of home invasion offences, destroying forever the sanctity and feeling of the security of one's own home". Her Honour said that there is a need "in this case for specific deterrence in light of the offender's repeated behaviour to indicate to the offender the seriousness of his offending and the high criminality of it." As I explain below, I consider that there are reasons and scope for mollifying these conclusions in the present case.
Her Honour noted that at the time of sentence Mr Halloway was 23 years of age and that he had two children with his partner of seven years, aged three and twenty months. She observed that the children were currently cared for by Mr Halloway's mother, that his partner was then in custody and that he would like to work towards a reunion. Her Honour noted that Mr Halloway's mother would provide accommodation in Sydney and support for him upon his release.
The evidence established that Mr Halloway had learning difficulties and that he left school at year eight when asked to do so due to his poor attendance. Mr Halloway participated in the Bondi Waves program for 18 months, then the Exodus program in Redfern until the end of juvenile custody. On release from juvenile custody Mr Halloway worked full-time in a warehousing position for six months, after which he undertook various casual labouring jobs until 2017 when he secured an apprenticeship as a mechanic with Ford. He worked in this position until entering into custody in 2018.
Mr Halloway received weekly counselling during his time in juvenile custody but had not undertaken treatment in the community as he just tried to "cover up his feelings".
Her Honour noted that Dr Gumbert-Jourjon reported that Mr Halloway experimented with MDMA and cocaine and was using illicit drugs regularly from late 2017 when he was introduced, and subsequently became addicted, to methamphetamine. Mr Halloway described using ice nearly every day but that since being in custody he claimed not to have used any illicit substance. Her Honour noted Dr Gumbert-Jourjon's opinion that his symptoms are consistent with a diagnosis of stimulant use disorder in early remission, in a controlled environment.
Mr Halloway was diagnosed with ADHD for which he was not medicated. Her Honour noted that he reported experiencing depression throughout his life. She noted that while in custody between 2013 and 2015, Mr Halloway was diagnosed with a major depressive order for which he was prescribed antidepressants. Mr Halloway reported taking these for a year and then ceasing due to the side effects.
Mr Halloway told Dr Gumbert-Jourjon that he reverted to criminal offending as a means of funding his escalating drug use and to be able to support himself and his children. Her Honour noted that in Dr Gumbert-Jourjon's opinion, Mr Halloway met the diagnostic criteria for a severe stimulant use disorder at the time of the offending.
With respect to the trial offences, her Honour considered that Mr Halloway had shown limited insight into his offending, attempting to minimise his behaviour by saying that he acted solely as a lookout. She noted, however, that Dr Gumbert-Jourjon reported that Mr Halloway "does feel remorse" and that he said to Community Corrections that the victims would have been scared during the commission of the offences. Her Honour further noted that Mr Halloway had expressed regret in relation to his drug use, and that as a "grown man" he "should not be stealing cars and doing stupid things like that".
Her Honour accepted that Mr Halloway was relatively young at the time of offending and that she had "taken into account the emotional immaturity and lack of sound judgment".
Mr Halloway had been assessed by Community Corrections as presenting a medium to high risk of reoffending. Her Honour said that he has acknowledged that he would need to find stable work and abstain from drugs to avoid reoffending. She also remarked that Community Corrections noted that Mr Halloway appeared resistant to addressing his mental health condition.
Her Honour concluded that "in light of [Mr Halloway's] age", his criminal history disentitled him to the lenience that is afforded to those who come before the courts with little or no prior offending.
Mr Halloway's offences were committed whilst on conditional liberty. Her Honour expressed the view that that "clearly amounts to an aggravating feature and impacts on the issue of specific deterrence". She remarked further that "both offences are major 112 offences, were committed in the victims' home, and involved multiple series of criminal acts."
Her Honour accepted that Mr Halloway has some mental health issues. Although she did not consider them to be causally connected to his offending, her Honour accepted that they would make his time in any custodial setting "slightly more onerous and burdensome".
Mr Halloway had been assessed as presenting a medium to high risk of re-offending, he had the support of his mother and reported to have maintained a relationship with the mother of his children. Her Honour noted that his two children provided Mr Halloway with two very good reasons to rehabilitate. She noted that he claimed to be prepared to undertake intervention to address his drug use and had behaved satisfactorily in custody. Her Honour considered Mr Halloway's prospects of rehabilitation to be guarded and noted that they would improve if he obtained employment and abstained from drug use.
Her Honour found some limited evidence of genuine remorse on the matters to which he pleaded guilty.
As already mentioned, her Honour made a finding of special circumstances by reason of Mr Halloway's youth, his need for supervision upon his release to assist in his rehabilitation, his need to secure gainful employment, the need to keep him abstaining from drugs and also to protect the community. She varied the statutory ratio of the non-parole period to the full term from 75% to around 66%, a reduction with which I agree.
There is in my view an unfortunate but unavoidable air of artificiality in the process of an appellate court re-sentencing an offender in circumstances such as the present. The original sentencing judge conducted the trial of the offences to which Mr Halloway pleaded not guilty. She was present at the trial and had the advantage of hearing the evidence and counsel's addresses to the jury. That is not an insignificant advantage in my opinion, particularly in providing assistance in the assessment of the objective seriousness of the offending. In addition, her Honour had the distinct benefit of counsel's submission at the sentencing hearing, a process quite different to that which occurs in this Court.
One theme that emerges undiluted from the material available to this Court is Mr Halloway's drug addiction and mental illness. I have referred to those two factors as constituting a single theme because, in my estimation, having particular regard to the detailed and helpful analysis of Ms Gumbert-Jourjon in her Confidential Psychological Evaluation dated 18 September 2019, Mr Halloway is at a point in his life when it is critical that these issues are addressed together and without delay. Part of that report is in these terms: "5.1 Formulation and opinion Mr Halloway was diagnosed with depression in childhood, and again in juvenile custody during his teens. His early experiences of grief and loss appear to have been formative in this regard, and he reports continuing to struggle with symptoms of depression and anxiety. During his teens Mr Halloway became involved with an antisocial peer group, and reports he identified with their attitudes and behaviours at the time, becoming involved in a number of criminal offences and incurring time in juvenile custody. Though it appears that after his 2015 release he was making good efforts towards community reintegration, including participating in employment and training, and caring for his young family, he has had a number of setbacks and in 2017 became addicted to methamphetamine in the midst of various stressors. He reports having reverted to criminal offending as a means to fund his escalating drug use. As set out in the body of the report, it is my opinion that Mr Halloway would have met DSM-5 diagnostic criteria for a severe Stimulant Use Disorder at the time of the index offences. Mr Halloway accepts responsibility for his offending, which he did not attempt to justify or minimise. As observed by his mother, it would appear that the prospect of an extended custodial sentence has been sobering for Mr Halloway and given him cause to reflect upon his situation in greater depth. He shows insight into personal risk factors including his drug use and propensity to associate with antisocial peers, and expressed motivation for change, including a recognition that he will need to participate in targeted drug treatment and rehabilitation to further his progress in recovery and manage future risks. His degree of family support is likely to serve as an additional protective factor in recovery if he is able to maintain his motivation and engages with appropriate supports. 5.2 Recommendations Should Mr Halloway receive an extended custodial sentence, he is encouraged to apply for inclusion in drug-and-alcohol treatment programs. While his participation is subject to internal assessment by Corrective Services NSW, it is my opinion that based on his areas of criminogenic risk and need he would be a candidate for inclusion in more intensive programs such as the Intensive Drug and Alcohol Treatment Program (IDATP) or Compulsory Drug Treatment program (CDT). He may also benefit from general offender programs or other therapeutic support groups. While awaiting inclusion in programs, Mr Halloway is encouraged to self-refer to psychology services for assistance in managing his symptoms of depression and anxiety. At a time he becomes eligible, I would also support Mr Halloway's release to an inpatient drug rehabilitation program, in which he can receive multi-disciplinary care, case-management and community referrals during a stepped-down discharge process. In my opinion this would promote successful community reintegration for Mr Halloway more effectively than his transition directly from custody."
I respectfully agree with her Honour's assessment of the objective seriousness of the offences described in her remarks on sentence and generally with her other conclusions to which I have referred. I differ with her Honour to the extent only that I consider that Mr Halloway's subjective case, characterised as it is by the ubiquitous and malignant combination of mental illness and drug addiction, should be accorded more importance and should be taken into account in a way that significantly reduces both the need for general and special deterrence and consequently the sentences that should be imposed.
The applicable maximum penalties and the sentence, including indicative sentences, that I propose may be summarised as follows:
Aggravated break and enter (in company) and commit serious indictable offence (larceny) s 112(2) Crimes Act 1900 20 yrs imprisonment 5 yrs NG 4 yrs 6 mths with a NPP period of 3 yrs 2 Take and drive conveyance s 154A(1)(a) Crimes Act 1900 5 yrs imprisonment NG 15 mths 3 Assault OBAH s 59(1) Crimes Act 1900 5 yrs imprisonment NG 15 mths 4 Assault OBAH s 59(1) Crimes Act 1900 5 yrs imprisonment NG 15 mths s 112(2) Crimes Act 1900 20 yrs imprisonment 5 Aggravated break and enter (in company) and commit serious indictable offence (larceny), taking into account Form 1 offence: threatening to use an offensive weapon Form 1: 12 yrs imprisonment 5 yrs G 3 yrs 9 mths with NPP of 2 yrs 6 mths s 33B(1)(a) Crimes Act 1900 Aggregate sentence 6 yrs with NPP of 4yrs

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (5)