Harrold v R

Grounds of Appeal

1. The applicant seeks leave to appeal on two grounds. They are: "Ground 1: A miscarriage of justice has occurred as the applicant was incompetently or carelessly represented on sentence as the applicant's legal representative failed to: 1. make any submissions at the proceedings on sentence; 2. put forward any subjective material; 3. submit on the evidence of institutionalisation; and 4. submit on the need for a finding of a special circumstances given the evidence of institutionalisation, drug dependency and the accumulation of the sentences. Ground 2: The sentencing judge erred in failing to consider a finding of special circumstances based on the evidence of institutionalisation, drug dependence and the accumulation of the sentences."

Charges and Agreed Facts

1. The applicant pleaded guilty to the two counts on the Indictment. The first count was an offence contrary to s 95(1) of the Crimes Act 1900 of aggravated robbery, namely, that he robbed his victim of $2,200 and, at that time, intentionally inflicted actual bodily harm on the victim. The second count was that the applicant possessed a shortened firearm that was not a pistol, without being authorised to do so contrary to s 62(1)(b) of the Firearms Act 1996.
2. The first offence of aggravated robbery occurred when the applicant, together with a co-offender, drove to the house of the victim to sell the victim various pieces of scrap metal. After a discussion, the value of the scrap metal was agreed at $250. The applicant sought payment in cash. The victim indicated that he would pay by electronic funds transfer.
3. The victim walked to his vehicle to obtain a pen to record the details of the applicant's bank account. As he approached his vehicle, the applicant punched the victim in the face with a closed fist, grabbed his wallet (which was on the passenger seat of the victim's vehicle) and removed $2,200 from it. He then threw the wallet onto the ground.
4. The victim attempted to prevent the applicant from leaving with his money. This led to a scuffle during which the victim fell to the ground after having been punched three times. The victim took hold of the applicant's left leg as he walked to the passenger side door of the co‑offender's vehicle in order to escape the scene. In so doing, the applicant dragged the victim along the ground and as he got into the passenger's side of the co-offender's vehicle, he struck the victim with his fist a number of times.
5. As the vehicle drove away, the victim was dragged approximately 50m along the roadway, which only ceased when the applicant kicked out at the victim causing him to let go.
6. As a result of the robbery, the victim suffered from bleeding, swelling and bruising to his nose, mouth and right ear. He suffered significant abrasions to his torso, right buttock and right leg.
7. When the applicant was arrested, the police seized his mobile telephone.
8. An analysis of a series of images on that phone showed the applicant holding a sawn-off double-barrelled shotgun in his right hand. An expert determined the firearm to be a prohibited one. The applicant has never been licensed to keep a firearm. These facts constitute the second offence to which the applicant pleaded guilty.

Applicant's Criminal History

1. The applicant's criminal history was tendered to the sentencing Judge. It recorded that, at the time of sentence, the applicant was a few months short of his 31st birthday. His criminal record commenced when he was about 19 years old in 2007. He has regularly recorded offences of stealing, assault and a variety of drug offences. The stealing offences included breaking and entering, having goods in custody suspected of being stolen, and dishonestly obtaining property by deception.
2. The applicant also had a very poor driving record with a series of offences relating to driving a motor vehicle whilst disqualified, stealing a motor vehicle and driving under the influence of alcohol.
3. The applicant's criminal record had resulted in several custodial sentences prior to the events with which this appeal is concerned.
4. Contained within the Agreed Chronology tendered to the sentencing Judge were the following events: 1. The applicant was released from custody on 5 May 2017 according to the chronology provided to the Court (however, records from the New South Wales Department of Corrective Services show the release date to be 15 May 2017); 2. About a month later, on 13 June 2017, the applicant committed the offence of being in possession of a prohibited weapon (Count 2); 3. Count 1 (aggravated robbery) was committed on 5 August 2017; 4. The applicant was arrested for these two offences on 1 September 2017; 5. The applicant was granted bail on 6 September 2017; 6. That bail was revoked with effect from 16 October 2017, when the applicant commenced serving a fixed term of imprisonment for six months and two concurrent fixed terms of imprisonment of three months.
5. These fixed term sentences were imposed at the Newcastle Local Court on 18 January 2018 and concerned offences of driving whilst disqualified, having custody of a knife in a public place, and having goods in custody suspected of being stolen.
6. On 20 July 2019, at the Raymond Terrace Local Court, the applicant was sentenced for a number of offences relating to entering a house and stealing goods below the value of $60,000, stealing a motor vehicle; driving whilst disqualified; and dishonestly obtaining property by deception.
7. In respect of these offences, the applicant was sentenced to an aggregate term of 3 years imprisonment commencing on 15 January 2018 and expiring on 14 January 2021. A non-parole period of 2 years was fixed, which expired on 14 January 2020.
8. At the time the applicant was sentenced in August 2019, he was serving the aggregate sentence and had about 5 months remaining of his non-parole period to serve. It can be observed that the sentence imposed by Ellis DCJ, with which this appeal is concerned, was to be served concurrently with the existing aggregate sentence for a period of 6 months.

Subjective Material

1. In addition to the applicant's criminal and custodial history, which included five custodial offences since he had entered custody in 2017, the sentencing Judge had before him a Sentencing Assessment Report ("the SA report"). The SA report was prepared on 31 July 2019, having been requested by the applicant's lawyer when the plea of guilty was taken on 13 May 2019.
2. The SA report was prepared after the applicant was interviewed and contact had been made with his mother, his aunt and his brother. It recorded that the applicant was living in the Muswellbrook area and that, although he had a history of employment in the fabrication industry, he had been unemployed for the previous two years. It noted that he had employment whilst in custody. The applicant told the Community Corrections Officer that he had a substance dependency (drugs) and financial instability. The applicant also accepted that there was a link between his violent behaviour and the use of illicit drugs. According to the SA report, the applicant acknowledged his need to undertake intensive drug intervention to avoid similar behaviour in the future. He said he was willing to undertake drug and alcohol counselling to address his offending behaviour, including undertaking group intervention such as cognitive behavioural therapy.
3. The SA report noted that the applicant's previous response to supervision was poor and had resulted in breach action being taken. It assessed the applicant at a medium/high risk of re-offending and identified a number of interventions which could be undertaken by the Community Corrections Service.
4. There was no other material addressing the subjective circumstances of the applicant put before the sentencing Judge.
5. The applicant himself did not give any evidence of any subjective background, nor did he give evidence of any kind which supported what he had told the author of the SA report.

Sentence Proceedings

1. I have earlier noted the details of the aggregate sentence imposed by Ellis DCJ.
2. The proceedings on sentence occurred during a busy list in the District Court in Newcastle. The various documents which I have described were tendered. Material relating to the co-offender was also tendered but the sentencing Judge determined that parity between the applicant and his co-offender was not a relevant consideration. There is no challenge to that conclusion.
3. After the various documents were tendered, a discussion took place between the Crown and the sentencing Judge regarding the applicant's previous custody. At the end of that discussion, with the applicant's lawyer confirming the relevant dates of previous custody, his Honour said that he would be prepared to start the applicant's sentence on 15 July 2019 "… which gives him 6 months concurrent with his current [sentence]". There was no suggestion that this approach involved error.
4. His Honour then informed the parties that he was thinking about imposing an aggregate sentence. Discussion took place about the circumstances in which the plea of guilty had been entered and whether the applicant had been committed for sentence from the Local Court. That discussion led to his Honour stating that he would give the applicant a 15% discount which he described as being a "… super call-over discount". No issue was raised by either lawyer about this statement to suggest that the discount was inappropriate.
5. Then, and prior to any submissions on sentencing being sought from either the Crown or the applicant's legal representatives, his Honour said this: "… What I'm thinking is this. In relation to the firearm, this is for indicative sentences, start the sentence at 2 years 6 months, discount by 15%, leaves him a sentence of 2 years and 1 month. In relation to the robbery, [start] it at 5 years, discounted it by 15%, leaving 4 years and 3 months, with an aggregate sentence of 5 years to date from 15/07/19 and a non-parole period of 3 years from 15/07/19 to 14/07/22 and then on parole for 2 years."
6. His Honour was then asked to repeat the dates for the non-parole period by the applicant's legal representative, which his Honour did. The applicant's legal representative then said this: "Lawyer: Would your Honour just excuse me from the Bar table? Thank you, your Honour, unless I can be of any further assistance. His Honour: Sorry? Lawyer: Unless I can be of any further assistance, I don't wish to be heard. His Honour: Madam Crown? Crown Lawyer: I don't wish to be heard."
7. His Honour then proceeded to sentence the applicant. His Honour's remarks were very brief. No doubt that reflected that the facts were agreed, they were in relatively short compass and no competing submissions had been made to his Honour which called for any resolution by him of such differences.

Remarks on Sentence

1. His Honour commenced by noting the two charges and the maximum penalties; he noted the application of the 15% utilitarian discount; and then he briefly recounted the agreed facts in a wholly unexceptional way.
2. His Honour then referred to the principles of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act 1999. He then noted what he described as "the guideline judgment of Henry", although he noted that it was a different offence. His Honour then recorded that he regarded the robbery as being a reasonably serious example of the offence and he determined that no sentence other than one of imprisonment would be appropriate.
3. His Honour then turned to the subjective circumstances of the applicant and said this: "The Court notes that the offender is now aged 30 years. He has a lengthy criminal history, which is an aggravating factor in the sense that it is relevant to this Court's assessment of his prospects of rehabilitation and of the need for specific deterrence."
4. His Honour dealt with the various dates which were relevant with respect to the applicant's history of imprisonment. His Honour noted his obligation to comply with the "High Court's decision in Pearce by nominating discrete indicative sentences to reflect the criminality of each of these two matters". He said he would apply the principle of totality: "… by making these two matters partly concurrent with his current parole period as I propose to date the sentence from 15 July 2019, which is concurrent for the last six months of his non-parole period imposed by the Local Court."
5. He then dealt with reasons why the position of the co-offender was not relevant.
6. His Honour then said this: "Are there any other particular matters I need to mention on sentence?"
7. Both the applicant's lawyer and the Crown's legal representative said that there was nothing further that needed to be mentioned.
8. His Honour then announced the indicative sentences and fixed the aggregate sentence. He concluded by saying: "I note that I did take into account the sentencing assessment report which was provided."
9. There was no ground of appeal which directly addressed the issue of whether the brief remarks on sentence were adequate to fulfil his Honour's obligations to give proper reasons for the sentence which he imposed. It is, accordingly, inappropriate to comment in this judgment on the procedure that was followed, except to note that it did not accord with the normal practice for sentence proceedings.

Ground 1

1. With respect to this ground, the applicant submitted that the incompetence and/or carelessness of the applicant's lawyer in the presentation of material and making of submissions to the sentencing Judge was manifest on the face of the transcript.
2. The applicant submitted that no assistance was provided to the sentencing Judge at all when he sought assistance from the parties as to whether or not there were any other matters to be considered. The applicant noted that no written or oral submissions were made, and that no other material was tendered on behalf of the applicant.
3. The applicant submitted that in the present case, the consequence of this failure by the applicant's lawyer was that because there was prima facie evidence of "institutionalisation" which was readily apparent from the applicant's criminal and custodial history, the applicant's lawyer was obliged to draw this to the sentencing Judge's attention for the benefit of his client, but that he did not do so.
4. The applicant's submissions contained this: "In particular, there was no submission as to the court making a finding of special circumstances based on the evidence (albeit limited) of institutionalisation, drug dependence and the combined factor of accumulation upon the sentence that the applicant was already serving. The failure to obtain evidence via a psychological report is one matter that goes to incompetence, and the failure to make submissions in the absence of such evidence is another."
5. The applicant indicated that both of those matters were relied upon as establishing the first ground.
6. In respect of the second matter, the applicant submitted that whilst it is possible to infer that the sentencing Judge made a finding of special circumstances, there was no indication that his Honour turned his mind to any other relevant factors other than accumulation on existing sentences. Such relevant factors were identified as drug dependency and institutionalisation. Although the applicant accepts that the sentencing Judge noted, albeit at the end of his Sentence Remarks, that he had taken into account the SA report, there was no indication as to quite how that material had been taken into account and what part or parts of the SA report had been accepted or rejected.
7. In dealing with the issue of accumulation as a basis for a finding of special circumstances, the applicant noted that the fact was that the sentence ratio of the aggregate sentence imposed by Ellis DCJ was 60%. He submitted that having regard to the applicant's existing custody, his total effective sentence had a ratio of 70%, which meant that there ought to have been submissions that drew the attention of the sentencing Judge to the fact that the ratio he desired to impose on the aggregate sentence was eroded in the circumstances which existed.

Crown Submissions

1. The Crown submitted that it was apparent from the transcript that when the sentencing Judge informed the parties of the sentence that he had in mind (and invited submissions from both the Crown and the applicant's lawyers) had there been anything obviously erroneous about the sentence, those representatives then appearing would have raised it. The Crown pointed to the fact that no specific submissions were made which indicated that both lawyers saw the sentence as being an open and not unreasonable one.
2. The Crown submitted this: "The sentence indicated by the sentencing judge was open on the material that was available, would not have been different had submissions been made about institutionalisation and drug dependency, had a non-parole period shorter length than the statutory ratio and which when accumulated with the sentence that the applicant was serving resulted in a total sentence with a non-parole period of two years."
3. The Crown submitted that if the risk, or fact, of institutionalisation required a sufficient period on parole, it was addressed adequately by the alteration of the statutory ratio to 60% on the aggregate sentence.
4. The Crown submitted that no incompetence was shown and that in any event, the applicant was bound by his legal representative's conduct of the matter on his behalf and so cannot now be heard to complain about the outcome.
5. The Crown drew attention to the fact that, on this application, no evidence was adduced from the applicant, or from the applicant's lawyer who appeared on the proceedings with respect to his attitude to the matters now being raised relevant to his alleged incompetence. The Crown noted that the absence of any evidence on the application meant that the Court did not know whether there was in fact any material to be tendered to the sentencing Judge.
6. With respect to the second ground, the Crown submitted that a parole period of 2 years, fixed in the aggregate sentence by the sentencing Judge, was an ample period for the applicant to address issues related to institutionalisation and drug dependence.
7. The Crown noted the authorities of this Court which draw attention to the fact that an applicant, in circumstances such as those which existed here, is not entitled to obtain the same ratio of the non-parole period to the head sentence for the total effective sentence as the ratio determined between those two factors of the subject sentence when special circumstances were found.
8. Finally, the Crown submitted that if the sentencing Judge was in error, then pursuant to s 6(3) of the Criminal Appeal Act 1912, this Court would not form the opinion that a less severe sentence was warranted in law and, accordingly, would dismiss the appeal.
9. In support of this ground, the Crown submitted: "The applicant was a recidivist, whose long list of convictions required condign punishment for a reasonably serious example of robbery and the further unrelated possession of a firearm that had been shortened for what inevitably would have been a criminal purpose. His subjective factors were not compelling and the points he now makes equally lack significance. Ultimately, it may only be since his last sentence that he has begun to consider his risk of relapse to the abuse of drugs and further offending when in the community."

Legal Principles

1. The affording of procedural fairness is an "immutable characteristic" of a court, including a court exercising a discretion to impose a sentence: see Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 at [194] per Gageler J. If a breach of procedural fairness in the course of sentencing proceedings is established, that can be a basis for interfering with the exercise of the power to impose a sentence: see John Wayne Tsiakas v R [2015] NSWCCA 187 at [43] per Beech‑Jones J.
2. However, it is not sufficient to warrant intervention on an appeal by simply pointing to a failing, perhaps a gross failing, of a legal representative who appeared during the sentence proceedings. By application of analogous principles to those relevant to the setting aside of a conviction, the court needs to consider whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the sentence proceedings: Tsiakas at [44].
3. This Court has considered whether "compelling material was available but not tendered, or its significance not appreciated": Pym v R [2014] NSWCCA 182 at [75] per Fullerton J; whether material of "significance" was not presented: R v Abbott (1985) 17 A Crim R 355 at 356, or whether the sentencing court was deprived of the consideration of an offender's subjective circumstances: Raymond John Munro v Regina [2006] NSWCCA 350 at [25].
4. Mention should also be made of a recent decision in this Court of Nauer v R [2020] NSWCCA 174, where at [52], Cavanagh J said: w "… The real issue in this appeal is whether the material that the applicant said should have been presented was of such significance that it would have been capable of materially affecting the outcome of the sentencing hearing."
5. Put differently, the applicable principles can be summarised in this way.
6. It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 472-3; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v R [2010] NSWCCA 264.
7. The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [34] per Gleeson CJ.
8. The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [34], [37].
9. One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36], Button at [18].

Discernment

1. The principal submission of the applicant is that the Court should infer from the fact that as no document was tendered on the applicant's behalf, and that no submission was made on his behalf to the sentencing Judge, on its face the applicant had been incompetently or carelessly represented, and that the Court should conclude thereby that the applicant had lost his entitlement to procedural fairness.
2. The applicant submitted that upon such analysis he was not obliged to seek to put before the Court any evidence from his lawyer at the time of the sentencing proceedings, or the applicant himself as to what had occurred, and whether there were any particular instructions given, or conversations had, which might cast light upon what occurred in Court.
3. Further, the applicant did not seek to put before the Court any material which was available to be tendered to the court at the time of the sentencing hearing, or which, with reasonable care and diligence, could have been obtained to be put before the Court.
4. Whilst the applicant sought to tender a psychologist's report to this Court, that was on the basis that if the Court came to re‑sentence the applicant consequent upon identifying an error of law as asserted in the grounds of appeal, the Court could have regard to it when formulating any new sentence.
5. Having regard to the circumstances of what in fact occurred, namely that the sentencing Judge had described to the parties what sentence he was proposing to impose, and that the applicant's lawyer left the Bar table for a period, the length of which is unidentified in the transcript, but upon returning declined to put any submission at all, an inference is open that the applicant's lawyer was instructed, having conferred with the applicant, not to put any further submissions contrary to dissuade the judge from imposing the sentence which he had proposed.
6. I do not need for the purpose of considering this ground of appeal, to find either of the opposing inferences to be proved. That is to say, should this Court infer from the absence of submissions or material that the applicant's lawyer was incompetent and careless, or should the Court infer an informed acceptance of the proposed sentence by the applicant. The point to be taken is that, in the circumstances of this case, either inference can be drawn from the sentencing proceedings as recorded in the transcript. That is to say, on the face of the sentencing proceedings, it is equally open to draw either of the inferences just described.
7. Accordingly, I am unable to accede to the applicant's submission that there has been demonstrated on the face of the transcript to be a breach of procedural fairness on the face of the proceedings.
8. That conclusion can be reached all the more confidently, in circumstances where no material is put before the Court from either the applicant, or his lawyer at the time of the sentence proceedings, which explains the approach taken by the applicant through his lawyer at that time. As well, the applicant does not suggest, in this court, that there was any material available to the applicant's lawyer at the time the sentencing proceedings which could have, if put before the Court, been regarded to be of significance to the imposition of sentence.
9. In all of those circumstances, I would not be prepared to uphold the applicant's first ground of appeal.
10. The applicant's second ground of appeal suggested that there must have been, at least implicitly, a finding of special circumstances by the sentencing Judge because the non-parole period which had been imposed was 60% of the total sentence. The applicant submitted, correctly, that such a variation could not occur unless the sentencing Judge had formed the conclusion that special circumstances existed.
11. The applicant then submitted that the impact of the subject aggregate sentence, when taken together with the effective sentence which the applicant was serving at the time this sentence was imposed, had the consequence that the total sentence suggested a ratio of about 70% between the effective non‑parole period and the effective total sentence.
12. In those circumstances the applicant submitted that the Court should find that the special circumstances which obviously existed were not given any real effect when one considers the entirety of the sentence which the applicant is obliged effectively to serve.
13. I reject that argument. The effective sentence which the applicant was serving at the time that Ellis DCJ imposed the subject sentence, was one which had a ratio of about 70%. The sentence imposed by Ellis DCJ was, as I have identified earlier, at a ratio of about 60%. The combined total effective sentence was about 70%. In those circumstances, I am not satisfied that there is any true adverse effect on the ratio of the previous effective sentence of the kind for which the applicant contends.
14. However, there is a more important matter. The effect of the combined total of all of the sentences, is that the applicant will have a period of 2 years on parole - having completed the non-parole components of the sentences. The real question is whether that period of time on parole, even if special circumstances are found to exist, is appropriate and one adequate for the purpose of ensuring the applicant's reintegration into a law-abiding society.
15. In my opinion, in the circumstances of this matter, a period of 2 years on parole is an entirely adequate period for that reintegration process. Consequently, I am not satisfied that there can be any conclusion that the finding of special circumstances did not have an appropriate effect.
16. In all the circumstances, the applicant has not made good this ground of appeal.

Conclusion

1. I am satisfied, for the reasons I have expressed, that the applicant has not made good either ground of appeal.
2. However, having regard to the fact that the principal ground of appeal was one which sought to establish procedural unfairness, and in respect of which the applicant has failed in part because no material was made available to this Court which sought to explain what had occurred during the sentencing proceedings, the better course is for this Court to refuse the applicant leave to appeal.

Orders

1. I propose the following order: 1. Refuse leave to appeal.
2. CAVANAGH J: I agree with Garling J.

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 May 2021