Hampton v R

GROUND 1 - His Honour erred in failing to consider whether or not he ought take into account time served on an unrelated matter.

GROUND 2 - The cases following the line of authority established by the decision in R v Niass (NSWCCA, 16 November 1988, unreported) are wrongly decided.

18These grounds, which are conveniently dealt with together, require reference to the sentence proceedings. 19His Honour was taken to the details of the Applicant's criminal history and to his custodial record. In doing so, the Applicant's solicitor, Mr Sandilands, pointed out that on the assumption that his calculations were correct, there was a period between 8 March 2012 and 2 June 2012 which the Applicant spent in custody but which did not appear to be referable to any sentence which had ever been imposed upon him for any offence (at T13 L11-16). The following exchange then took place (commencing at T13 L 47): "Crown: Your Honour the Crown concedes that it appears that that doesn't relate to anything on his criminal history, however my submission is that's completely irrelevant to this current offence. His Honour: I must say I've had the argument Mr Sandilands has had a long time ago when I was counsel and - - Crown: Offenders can't be given a free kick just because there seems to be some unaccounted time - - Sandilands: But he did .. (not transcribable)..in gaol. Crown: It has no relevance to this offence whatsoever. His Honour: That may be so in the sense of relevant punishment directly attributable to this offence, however, if he's been punished when there was no reason to punish him; I think I can take that into account. Crown: It's a matter for your Honour. We don't have any paperwork in that regard and I can't provide any - - His Honour: There may be, I don't know, it may be simply a refusal of bail in respect of other matters. Crown: That's right. His Honour: But - - Crown: Which is likely in my submission given - - His Honour: Well unless it's - and I doubt it, very poor record keeping, but it's more likely to be a refusal of bail. And that tends to be kind of confirmed by why you would be transferred from a fulltime custody gaol to a metropolitan remand centre unless you're (sic) status as a sentenced prisoner had changed. Crown: That's correct. His Honour: Notwithstanding the fact that he's transferred on the 13th and not the 8th. Sandilands: Just to assist your Honour, my instructions are, and you won't have it there, is that it was referable to bail refuse (sic) and was referable to a matter that he was ultimately found not guilty of. His Honour: Right. Sandilands: They're my instructions. Crown: In that case your Honour it's - - His Honour: I hear you Madam Crown. Crown: Thank you your Honour." 20There was no further reference to the issue in the sentence proceedings, nor was there any reference to it in his Honour's judgment. Evidence was given by the Applicant in the sentence proceedings. He said nothing about his period in custody between 8 March 2012 and 2 June 2012, and, in particular, made no reference to anything which occurred in that period which was said to be relevant on sentence (AB50-58). 21The Applicant's submissions depend upon a construction of what occurred in the District Court during the sentencing submissions which, as outlined above, were relatively brief. The Applicant's submissions require acceptance, by this Court, that the sentencing Judge was invited to take into account (or give credit for) a period between 8 March and 2 June 2012 when the Applicant was in custody, having been refused bail on charges upon which he was ultimately discharged at the Penrith Local Court on 20 August 2012. 22The exchange which took place between his Honour and the representatives of each party was, as set out, somewhat fluid. However, after the solicitor for the Applicant revealed his instructions that the period in question had been served by the Applicant in the circumstances referred to in [19] above, no further submission was advanced that that period ought be taken into account in some way in selecting a starting date for the sentences to be imposed. 23For all of these reasons, the foundation for these grounds is somewhat shaky. The Court should keep in mind concerns which have been expressed where error is said to arise based upon interchanges between the Bench and counsel during submissions: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475; [32]. These grounds also appear to strain the limits of permissible grounds of appeal as explained in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478; [79]-[82]. 24However, on the assumption that a sufficient foundation is crystallised for Grounds 1 and 2, it is necessary to address them. 25The transcript of the sentence proceedings reveals that the solicitor for the Applicant invited the sentencing Judge to take into account, and give credit to the Applicant for, his time in custody between 8 March and 2 June 2012 for an unrelated matter. The fact that he was discharged with respect to that matter was a factor added very late in the submission, and was unaccompanied by any submission that that aspect operated further in the Applicant's favour. As previously noted, the Applicant made no reference to that time in custody when giving evidence. 26In these circumstances, the bare invitation for the sentencing Judge to take this period into account on sentence ought be taken, at its highest, as an invitation to the sentencing Judge to approach this period as being a form of "credit in the bank" for the Applicant, to be considered on sentence for the later offences committed on 23 August 2012. The Applicant appears to submit that the sentencing Judge was bound to consider this matter and to take it into account in the exercise of the sentencing discretion. 27The decision of this Court in R v Niass appears to stand in the way of that submission. That decision makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in and of itself, relevant to the sentencing exercise. 28Relevant statutory provisions confirm that time for which an offender has been held in custody in relation to the offence for which sentence is to be passed is a mandatory factor to be taken into account on sentence: ss.24(a), 47(3) Crimes (Sentencing Procedure) Act 1999. There is nothing in s.21A Crimes (Sentencing Procedure) Act which supports the Applicant's submission. It is true that s.21A is not exhaustive and factors available to be taken into account at common law remain available. However, this brings one to the decision in R v Niass, which has been applied frequently in this State. 29Later decisions of this Court tend to confirm this approach. Some have involved an acceptance that where other events occur during such a period in custody, those events may bear upon the issue of sentence. However, that is because they relate to the offender's subjective circumstances: R v Evans (NSWCCA, 21 May 1992, unreported); R v Webster and Jones (NSWCCA, 3 August 1992, unreported); R v Chung (NSWCCA, 9 March 1994, unreported); R v David (NSWCCA, 20 April 1995, unreported); R v Hudd (NSWCCA, 5 December 1995, unreported); R v Baartman (NSWSC, Dunford J, 18 December 1988, unreported); R v Karageorge [1999] NSWCCA 213; R v Giam (No. 2) [1999] NSWCCA 378; R v Rozynski [2001] NSWCCA 257; Huntingdon v R [2007] NSWCCA 196 and Kerr v R [2008] NSWCCA 201. 30These decisions confirm an approach that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters. This is particularly so where there is a broken period of custody, as exists in this case. 31If events occurred during the period in custody which could otherwise be called in aid of the offender's case on sentence, such as marital breakdown, loss of employment, development of illness or other aspects which could bear upon the person's subjective circumstances on sentence for offences later committed, then that may be relevant on sentence. R v Evans appears to be an example of this approach. 32To succeed on Ground 2, it is necessary for the Applicant to demonstrate that the approach taken in R v Niass and subsequent cases is clearly wrong: Green v The Queen [2011] HCA 49; 244 CLR 462 at 490-491 [84]-[85]. In R v Mai (1992) 26 NSWLR 371 at 380, it was said that the Court of Criminal Appeal is not bound by its earlier decisions, but should depart from such decisions with caution, and only when satisfied that the law and justice of the case required such a result. On one view, this approach appears to be less onerous than that described by Heydon J in Green v The Queen. It is unnecessary to consider on the present application whether the statement in R v Mai (at 380) was intended to state a different test to that stated in R v Johns [1978] 2 NSWLR 259 at 262, 264 that this Court is not bound to follow an earlier decision if it was satisfied that the decision is wrong: R v Arnold [1993] 30 NSWLR 73 at 85-86 (Abadee J; Gleeson CJ agreeing at 74). It is sufficient to observe that departure from a previous decision would require a strong conviction that the previous decision was incorrect: R v Arnold at 85E-F; Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 at 570; [127]. The principle in Green v The Queen is consistent with the general approach when construing uniform national legislation where the rule of comity applies, so that a court at the same level in the judicial hierarchy should not depart from an earlier decision of another court unless convinced that the earlier decision is plainly wrong: R v NZ [2005] NSWCCA 278; 63 NSWLR 628 at 665 [156]. 33The Applicant did not submit before this Court that R v Niass, insofar as it related to the "credit in the bank" concept, was wrong or should not be followed. In these circumstances, the issue goes no further. 34Decisions of courts in other States concerning the commencement date of sentences appear to depend upon local statutory provisions, and the approach of Judges in those jurisdictions operating within their own statutory frameworks. To the extent that Ground 2 invites this Court to adopt the reasoning and apply decisions in other States (including R v Renzella [1997] 2 VR 88 and other decisions to which the Court was referred in argument), particular care is needed. This Court has noted that caution should be exercised where matters of practice and procedure in one jurisdiction are relied upon in support of arguments in this jurisdiction: R v NZ. 35The New South Wales decisions in this area should be applied. A proper foundation has not been established for a conclusion that any decision under challenge was plainly wrong and should not be followed. In any event, these decisions appear to be based upon the particular circumstances of each case where the broad statement in R v Niass has been applied. Properly understood, no error is revealed in any of those decisions. 36If it was concluded that the sentencing Judge was indeed asked to take into account this period in custody on sentence, no error has been demonstrated by the Applicant in the circumstances of this case. 37Even if some error was demonstrated, a proper examination of this period could not lead to a result favourable to the Applicant. At the highest, the Applicant can point to about two months in custody against a background of years in custody serving other sentences. There is nothing about this period which would attract any factor which operates in his favour by reference to his subjective circumstances. 38Further, the approach to sentencing in this case would have to take into account (in a manner not applied by the sentencing Judge) that the present offences were committed whilst the Applicant was subject to conditional liberty, being on bail for another alleged offence. Further, factors already operating powerfully against the Applicant on sentence, being specific deterrence and general deterrence, would be further escalated by examination of the circumstances, which saw him committing these serious offences on 23 August 2012, whilst subject to conditional liberty and within three days of being discharged on the matters giving rise to the earlier period in custody. 39Grounds 1 and 2 ought be rejected.

GROUND 3 - His Honour erred in not properly taking into account the principle of totality. 40Ground 3 claims that the sentencing Judge erred in not properly taking into account the principle of totality. This ground is misconceived. The Applicant was to be sentenced for two offences. The sentences imposed were entirely concurrent and there was no element of accumulation at all. The sentencing Judge was not asked to take into account, on the question of totality, the four-month sentence which he was serving for take and use a conveyance prior to the commencement of these sentences. The decision to make the sentences entirely concurrent was a generous one for the Applicant given that two separate victims were no doubt terrified as a result of their being targeted for robbery after leaving a bus and in a public street. 41This ground should be rejected.

GROUND 4 - The sentence for the offence contrary to s. 97(1) of the Crimes Act was manifestly excessive. 42The circumstances of the offending have been set out. His Honour said (commencing at ROS 11): "So far as the objective seriousness of the offence is concerned, I note that the offences were committed in company, which is an element in the more serious offence, that they involved threats which were significant and I take those to be aggravating in the circumstances. I note that there does not appear to have been a great deal of premeditation, the amount of property taken is in fact relatively miniscule, the victims were vulnerable, being on public transport, and there were two separate victims although it has to be said that in the circumstances they were part of one continuous episode of criminality. In terms of the objectives of punishment it is clear that there has to be an element of general deterrence, there has to be an element of specific deterrence, and I take into account the general purposes of punishment as outlined in the legislation and the authorities. I also take account, in respect of the robbery offence, of the guideline judgment of Henry. There are distinctions between this case and Henry, in particular it seems to me that the plea is at an early opportunity and should be given the full utilitarian discount and there is (sic) some elements, obviously, that should be taken into account in that the offender had little or no recollection in reality of the offences because of his Benzodiazepine intake and yet has facilitated the course of justice". 43A report under the hand of Danielle Hopkins, psychologist, was tendered before the sentencing Judge. That report set out that the Applicant is a person of aboriginal heritage whose childhood involved frequent moving between various locations in Sydney, the Central Coast and the Hunter Valley. His Honour found that the relationship between the Applicant and his parents was a volatile one, characterised by continuing domestic violence. He also found that the death of the Applicant's father marked the start of what he described as the Applicant's "negative behaviour" and that thereafter, the Applicant's mother, as a result of her use of cannabis and alcohol, played no real maternal role. 44There was evidence that the Applicant commenced consuming alcohol at the age of 13 years of age, that he had remained a regular consumer of both alcohol and cannabis since that time, and that he commenced amphetamine use at 15 years of age, from which he developed a significant habit resulting in the implementation and continuation of a methadone program from the age of 18. The Applicant also became addicted to benzodiazepines which, at one point, saw him consuming 6 Xanax tablets up to three times each week. 45His Honour found that the Applicant had been unable, because of his custodial history, to undertake any extensive rehabilitation, be it residential or otherwise. He also found that the Applicant had expressed genuine remorse and had gained some insight into his offending behaviour. All of these matters led his Honour to express the following conclusion (at ROS 7): "I indicated before that he has not been given a non-parole period; he needs, it seems to me, to be given the opportunity to be supervised to cope with his substance abuse, his poor coping skills, his emotional and behavioural regulation and his consequential thinking skills." 46His Honour then concluded (at ROS 11): "It seems to be that there are special circumstances particularly having regard to the offender's need for rehabilitation. I take into account what are sometimes referred to as Fernando criteria but in reality a recognition by the courts of the fact that persons from extremely deprived or violent backgrounds need to be dealt with a degree of leniency." 47In imposing the sentences previously outlined, his Honour recommended that as far as conditions of parole were concerned, the Applicant should be given the benefit of any drug or alcohol treatment program or counselling, along with the benefit of any education or work-related programs, anger management programs and medical treatment. 48As previously noted, the maximum penalty for the offence contrary to s.97(1) of the Crimes Act is imprisonment for 20 years. The sentence imposed upon the Applicant involved a head sentence of five years with a non-parole period of two years and six months. His Honour's finding of special circumstances gave rise to this substantial variation of the statutory ratio. 49This was a serious offence committed by a person who had a significant history of offences, including offences of violence. He had been sentenced by Bell J in December 2004 for offences of manslaughter and entering a dwelling house with intent to commit a serious indictable offence in circumstances of aggravation. The remarks on sentence in those proceedings (R v Hampton [2004] NSWSC 1215) make clear that her Honour approached the sentencing of the Applicant upon a basis sympathetic to his deprived upbringing and other factors which operated in his favour on sentence. Bell J observed (at [24]) that it was difficult to assess the likelihood of reoffending, or to meaningfully assess his prospects of rehabilitation, but concluded that, as he was a young offender (18 years old), it was appropriate that the Court place some emphasis on rehabilitation in the sentence. 50The sentencing Judge in the present proceedings was informed that the Applicant had not been released on parole. Limited information was provided to his Honour in this respect, emanating from the Applicant himself. Whatever view may be formed concerning the approach of the State Parole Authority on this topic, it would suggest that the prospects of the Applicant's rehabilitation, as considered by that body in 2010, were not favourable. Since then, the Applicant has committed further offences, including the serious offences to which the present appeal relates. 51In reality, the Applicant's subjective circumstances are no better than they were before Bell J in 2004. Indeed they are worse, in that the present offences were committed when he was 28 years old, and reflect significant acts of violence committed against members of the public in vulnerable circumstances where they have stepped off a bus, being followed by the Applicant and his accomplice who had targeted them for the purpose of "rolling" the victims. The gravity of offences committed against persons in and around the public transport system, and the consequent importance of general deterrence in such matters, has been emphasised by this Court: R v Kelly [2005] NSWCCA 280; 155 A Crim R 499 at 501-502 [6]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 41-42 [207]-[208]; R v Tuuta [2014] NSWCCA 40 at [52]. 52The primary offence under s.97(1) involved the use of actual force by the Applicant against the victim, accompanied by threats to kill the victim. This was a very serious offence, as the sentencing Judge found. That conclusion is not challenged in this Court, nor could it reasonably be challenged. 53The Applicant is able to call in aid on sentence his deprived upbringing as revealed in the approach adopted by Bell J in 2004, and by his Honour Judge McClintock SC in 2013. These subjective aspects do not diminish with the passage of time and the Applicant's repeated offending and incarceration: Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 at 1032 [42]-[44]. That said, the Applicant has continued to commit violent offences in relation to which the principles of sentencing should apply, including the necessity to impose appropriate punishment, recognition of the significance of specific deterrence and general deterrence, as well as the hope that rehabilitation may still be possible in his case, despite the experience of the last decade. 54At the conclusion of his sentencing remarks his Honour said: "Now you understand the sentence Mr Hampton. I have given you an extended period of parole, you have never had it before in terms of you have never been given it. You will not be released to parole if the parole board decide that you are not a good candidate for parole but on the other hand it seems to me if you make an effort with the help of Probation and Parole you will be helped by them hopefully with courses that allow you to get a job and settle down and make a contribution". 55There was no evidence that the Applicant's prospects of rehabilitation had improved since 2010 (see [50] above). His Honour did not identify any significant positive sign(s) which indicated that if the Applicant was allowed a longer period on parole, rehabilitation was likely to be successful, as opposed to being a mere possibility (R v Tuuta at [57]). The mere fact that the Applicant had never been given parole was not such a sign. Notwithstanding these matters, his Honour found special circumstances and fixed a relatively short non-parole period with a significant balance of term, thereby giving the Applicant an opportunity to prove himself in custody and to obtain conditional liberty on parole. His Honour's finding was, to say the least, a generous one and was largely unsupported by the evidence. 56The reality is that the sentencing Judge took a sympathetic view towards the Applicant. His Honour said as much at the conclusion of his remarks on sentence. 57The Applicant has not demonstrated that the sentence in respect of the s.97(1) offence was manifestly excessive. 58Although leave to appeal against sentence should be granted, the appeal should be dismissed. 59PRICE J: I agree with Johnson and Bellew JJ. 60GARLING J: I agree with Johnson and Bellew JJ.

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