22 December 2009
Mark Anthony HILLIER v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)
Judgment
1 BASTEN JA: On 16 October 2005 the applicant was surprised in the act of attempting to break into a car in Seven Hills with a screwdriver. On being interrupted by the owners, being a couple with a young child, the applicant assaulted the father, Mr Hardy, stabbing him in the hand with the screwdriver. He also threatened Mrs Hardy with the screwdriver. The applicant pleaded guilty to the assault on Mrs Hardy and to damaging the motor vehicle. He was put on trial for the assault on Mr Hardy. The real issue in dispute was not the occurrence of the assault, but rather the seriousness of the offence. The more serious offence (of which he was acquitted) involved an intention to hinder lawful apprehension. He was convicted by a jury of a lesser offence, namely assault occasioning actual bodily harm.
2 When the applicant came before Cogswell DCJ for sentence on 5 September 2008, his Honour was invited to take into account a further charge of break, enter and steal committed on 7 February 2007, which was included on a form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). He was also sentenced for a further break, enter and steal, committed at a house in Blacktown on 4 January 2007, to which he had pleaded guilty.
3 On the charge of assault occasioning actual bodily harm, the judge imposed a sentence of four years imprisonment, with a three year non-parole period. The maximum penalty for that offence was five years imprisonment. His Honour found that the offence fell within the "mid-range" in terms of objective seriousness.
4 In respect of the break, enter and steal, his Honour imposed a sentence of five years with a non-parole period of 3.5 years. These two sentences, which covered the primary offences, were largely accumulated, the sentence for the latter offence commencing six months before the completion of the non-parole period for the assault.
5 There were two further offences, namely the assault on Mrs Hardy and the damage to the Hardys' motor vehicle. On each of these, the applicant was sentenced to imprisonment for six months, by way of a fixed term, each to be served concurrently with the other and concurrently with the sentence for the assault on Mr Hardy.
6 The result was an overall period of imprisonment for 7.5 years, with a non-parole period of six years, the balance of term being 1.5 years.
7 The application for leave to appeal against the sentences was based primarily upon the proposition that the sentences individually and as accumulated were manifestly excessive. At the hearing of the application, counsel appearing for the applicant put the matter on a somewhat different basis. He alleged errors of principle on the part of the sentencing judge in taking into account both the lengthy prior record of the applicant for similar offences, and the fact that the break, enter and steal was committed whilst on parole, in determining the objective severity of the offences. This approach was said to be inconsistent with the principles identified by this Court in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 (Spigelman CJ, McClellan CJ at CL, Grove, Barr and Bell JJ). These factors did not demonstrate that the sentence was necessarily manifestly excessive, but they raised a question as to whether there was a relevant error in the sentencing exercise. In these circumstances, it is appropriate to grant leave to appeal. That leave should extend to each of the principal sentences and the various grounds relied upon, as an error in respect of one sentence may have affected the totality of the period of imprisonment imposed.
Taking antecedent criminal history into account
8 It has long been axiomatic that a sentencing judge has a significant degree of freedom from review in determining the appropriate sentence for a particular offence. That principle gives appropriate recognition to the fact that sentencing is not an exercise in precision and that a result which falls within a reasonable range will not be open to challenge, absent a specific misapplication of principle. As noted by Gleeson CJ in Engert (1995) 84 A Crim R 67 at 68:
"A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration."
9 In the language of House v The King [1936] HCA 40; 55 CLR 499 at 505, an appellate court will intervene only if it is established that the sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the exercise, mistook the facts or failed to take into account some material consideration. Further, it is only in circumstances where the court is of the opinion that some other sentence is warranted in law and should have been passed that it is empowered to intervene: Criminal Appeal Act 1912 (NSW), s 6(3).
10 The process of sentencing operates at a number of different levels. The first level requires the determination of primary facts. The second requires the identification of relevant considerations; the third, a judgment as to the operation of those considerations in the process of determining the sentence. That is not to suggest that any mechanistic exercise is involved. Nor is it to suggest that it is necessarily wrong for the sentencing judge to ignore these factors in giving reasons for sentence.
11 It is apparent from a cursory examination of sentencing cases and texts that the process of appellate review, and indeed the imposition of sentences, has become more analytical over the years. The expectation that a sentence will be explained and justified by way of articulated reasons prevents the courts from reliance upon an unexplained exercise of "instinctive synthesis". Synthesis envisages a number of elements, which it is expected can be articulated, whether by the sentencing judge or by the appellate court. As explained in House, if it does not appear "how the primary judge has reached the result embodied in his order, … if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance": at 505.
12 A higher level of analytical assessment of sentencing may have arisen from increasing expectations as to the nature of the reasons expected of sentencing courts, but also from increasing statutory regulation of the sentencing process. (The two reasons are not, of course, unrelated.) For present purposes, the primary facts in relation to the alleged extraneous considerations were not in doubt: these were the applicant's lengthy criminal record and the fact that he was on parole at the date of the break, enter and steal in January 2007. Nor was it in dispute that these facts were relevant matters to be taken into account: the issue was how they should be taken into account. Purpose is important in sentencing.
13 The last proposition is illustrated by the decision of the High Court in Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465. The question was whether in taking into account the fact that this was the second violent killing in which Mr Veen had been involved, the sentence of life imprisonment had been imposed in order to protect the community from future crimes or whether it was part of the punishment for the crime which had been committed. The joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ acknowledged "that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment": at 474.
14 The Court also noted two subsidiary principles, one of which was expressed in the following terms at 477:
"The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences …."
15 The distinction identified in this last passage acquired new significance in the light of the statutory requirement (in relation to particular offences) for the imposition of a standard non-parole period, said to represent "the non-parole period for an offence in the middle of the range of objective seriousness for" the relevant offence: Sentencing Procedure Act, s 54A(2). The meaning of that provision and particularly the words "objective seriousness" were addressed by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168 (Spigelman CJ, Woods CJ at CL and Simpson J). The Court drew a distinction between factors relevant to the objective seriousness of the offence and factors which might be described as "personal to the offender": at [84]-[88]. The Court continued at [92]:
"For instance, while the antecedent criminal history, or the fact that the offender has re-offended while on conditional liberty can be relevant for a determination of an appropriate level of punishment where either: '… illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences,' … per the majority in Veen [No. 2], considerations of this kind are more relevant to the measure of punishment for the individual offender, than they are to a consideration of where the offence before the court falls within the spectrum of conduct which may constitute the offence in the abstract."
16 It appeared from that passage that the distinction involved a matter of emphasis or weight, rather than a categorical separation. A degree of ambivalence in earlier decisions led to the constitution of a five judge Court in McNaughton, to determine the proper role of such matters as a criminal history, in the sentencing process. Spigelman CJ at [24] stated:
"Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen v The Queen (No 2) and in Baumer [ v The Queen [1988] HCA 67; 166 CLR 51] as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions."
17 The context in which the matter arose in McNaughton was the identification in s 21A(2)(d) of the Sentencing Procedure Act of a "record of previous convictions" as an aggravating factor, and its significance in the light of the direction that the Court is not to have regard to any such aggravating factor "if it will be contrary to any Act or rule of law to do so": s 21A(4). McNaughton held that it would be contrary to such a rule to take account of an antecedent criminal history in determining the objective seriousness of the offence and thus the upper boundary beyond which a sentence could not properly extend.
18 McClellan CJ at CL agreed with the Chief Justice but added the following remarks at [63]:
"If the question is asked 'is it a worse crime to commit an offence having been previously convicted for the same or similar offence' the general community would probably answer 'yes'. Although the Crown argued that this was because prior offending informs the mens rea of the instant offence there are difficulties with this argument, including matters of proof. There is force in the argument that it may inform the moral culpability of the offender for the instant offence. However, as Howie J indicated in R v Wickham [2004] NSWCCA 193 and the Chief Justice confirms, that argument was rejected by the High Court in Veen v The Queen (No 2). "
19 Grove J also agreed with the Chief Justice, adding some further remarks. Barr and Bell JJ, in a joint judgment stated at [81]:
"We agree with the Chief Justice's reasons for rejecting the Crown's contention that an offender's record of previous convictions may be taken into account as part of the objective circumstances of the offence for the purposes of determining the upper boundary of a proportionate sentence."
20 This principle requires, in an entirely hypothetical sense, that an offender who commits 10 virtually identical offences of break, enter and steal each of which would allow a sentence within the range from two to three and a half years, would not receive a greater sentence than three and a half years for any offence, but might see the sentences increasing from the bottom end of the range to the higher end of the range as an increasing record is reflected in greater weight being placed on personal deterrence and related criteria. The same analysis would apply in relation to offences committed on parole or other forms of conditional liberty and those not so committed.
21 This result does not follow as a matter of logic from any underlying principle. To treat a second or subsequent offence as "more serious" than a first or earlier offence does not necessarily involve imposing an additional penalty in respect of the earlier offence. It merely accepts the fact of an earlier offence as relevant to the moral culpability in respect of a later offence and, of itself, warrants a higher sentence. However, to adopt that approach would be inconsistent with the line of authority referred to above. It would be an error within House, on the part of a sentencing judge. The question is whether the sentencing judge in the present case did adopt such an erroneous approach.
Sentence for assault
22 To answer the question just posed, it is necessary to provide some further background to the offences for which the applicant was sentenced, and then to refer to his Honour's remarks on sentence.
23 The first offence in time and that for which he was first sentenced was the assault on Mr Hardy occasioning actual bodily harm.
24 It is convenient to put to one side the fixed terms of six months imposed for the assault on Mrs Hardy and the malicious damage to the motor vehicle. Each of these sentences commenced on 12 May 2008, as did the sentence occasioning actual bodily harm to Mr Hardy. In practical terms they were entirely absorbed within the non-parole period for the more serious offence and no challenge was raised in respect of those sentences.
25 The events of 16 May 2005, when the applicant was confronted by Mr Hardy as he was attempting to break into the Hardys' car, fell within a short compass. The facts do not appear in any detail from the original material provided to the Court. It is sufficient to take the summary of the prosecution case, as set out in the applicant's submissions, bearing in mind the offence for which the applicant was convicted.
26 On Sunday 16 October 2005, Mr Hardy and his wife returned to their home after lunching with friends and saw a silver laser hatchback parked in the driveway, facing the street. They got out of their car. Mrs Hardy saw the applicant getting out of the Hardy family's second vehicle, a Toyota Land Cruiser. Mrs Hardy said, "I don't know you, you bastard." The applicant pushed her and swung a screwdriver at her. That constituted the charge of common assault to which the applicant pleaded guilty. At the time, Mrs Hardy was holding her six week old baby and her five year old son was in the vicinity.
27 Mrs Hardy tried to grab to the applicant, but he said, "Keep back. I'll stab you." The applicant tried to get into the Laser, and Mr Hardy grabbed him to prevent him from doing so. The applicant swung the screwdriver at Mr Hardy who received a cut to the palm of his right hand. That constituted the offence for which he was convicted by the jury.
28 In his sentencing judgment, the trial judge noted at [14]:
"Before turning to matters personal to Mr Hillier, I need to make some observations about the assault occasioning actual bodily harm on 16 October 2005. It was aggravated by three features referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 . One is that it involved the use of a weapon. A second is that it was committed in the presence of a child under eighteen. The third is that it was committed whilst Mr Hillier was on conditional liberty. He was on parole. I find that offence to be in the middle of the range of objective seriousness for these kinds of offences, particularly given the use of the weapon and the presence of a child. It could be a shocking experience for an infant to witness his father being attacked in this way."
29 It may be seen that his Honour did not expressly identify the applicant's criminal record as an aggravating feature in what appeared to be a description of the objective circumstances of the offence. He had earlier referred to the fact that the applicant had "a long criminal record", with numerous offences of breaking, entering and stealing and that he had received sentences of imprisonment for a number of those offences: at [12]. Although the role played by the criminal record may be unclear, it was not listed as one of the three specific features taken into account by way of aggravation and it was not shown that it was dealt with in contravention of the principles established in McNaughton.
30 A different conclusion must be reached with respect to the fact that the offence was committed whilst the applicant was on conditional liberty. In Way, at [92] this factor was identified as one to be taken into account in determining the appropriate punishment of the offender, rather than the objective seriousness of the offence. At least by implication, it should not be used to increase the otherwise appropriate range, based on the objective seriousness of the offence. Compared with a criminal record, there is a greater risk of double punishment in respect of breach of parole. That breach may itself be dealt with by an order revoking conditional liberty, with the result that the offender will continue to serve in custody the sentence imposed for the earlier offence.
31 Accepting that an error has been identified in the sentencing with respect to the assault occasioning actual bodily harm, the next question is whether any other sentence ought to have been imposed.
32 Once the fact of conditional liberty is removed from this part of the equation, there may be some doubt as to whether the offence was in the middle of range of objective seriousness. Although there was a weapon involved, it was an opportunistic use of a screwdriver which the applicant was carrying for a different (albeit unlawful) purpose. The injury inflicted must be assumed to have been quite minor, there being no medical record or photographs which allowed an assessment of the wound inflicted. In sentencing, the trial judge made no finding as to its seriousness. It must be assumed, in the applicant's favour, that it was not serious. The presence of the child was undoubtedly a circumstance of aggravation, but no reference was made to where precisely the child was, or what he might have witnessed which could have constituted a shocking experience.
33 Further, to describe an offence as "in the middle of the range of objective seriousness" does not indicate with precision the range of penalty which might be thought appropriate. In relation to this assault, the maximum penalty was five years imprisonment. Based on a permissible approach to that offence taken in isolation, a sentence in excess of 2 years imprisonment was not warranted.
34 There was, however, a further factor relevant to the sentence imposed, namely the requirement under s 32 of the Sentencing Procedure Act to take into account another offence of break, enter and steal. That offence was committed on 7 February 2007. It involved entry into a house at Kingswood, by smashing a window. The applicant stole a jewellery box, perfume and other items, including a television: sentencing judgment at [10]. The facts also described a kicking in of the front door and the breaking of a screen mesh door.
35 His Honour did not quantify the effect of taking that matter into account, nor was he required to do so: see Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [44] (Spigelman CJ). Although taking an offence into account pursuant to s 33 of the Sentencing Procedure Act does not involve sentencing "for" that additional offence, it nevertheless justifies an increase in the sentence otherwise appropriate. Generally speaking, it is inappropriate to take into account an offence of a completely different kind: see Attorney General's Application, at [51]-[57]. The similarity in the present case was presumably thought to be based on the fact that the assault occurred in the course of an attempted break, enter and steal, although from a motor vehicle. One difficulty in approaching the matter on the basis of a further offence of this kind is that a break, enter and steal carries a maximum penalty of 14 years, compared with the penalty of five years for the assault. Such a disparity increases the difficulty in knowing how the further offence should affect the sentence for the lesser offence.
36 In the present case, and disregarding the additional matter, it would not have been appropriate to impose a sentence in excess of 2 years imprisonment. Taking the additional matter into account, a sentence of 3 years would have been appropriate. Given the error identified above, and the fact that the sentence, properly considered, appears to be manifestly excessive, this Court should intervene. The sentence warranted in the circumstances was one of 3 years imprisonment with a non-parole period of two years three months. Given that there is to be a further accumulated sentence, it is appropriate to impose a fixed term of 2 years three months.
Sentence for break, enter and steal
37 The applicant was separately sentenced with respect to breaking and entering, and stealing from, a dwelling house. The offence occurred at Blacktown on 4 January 2007. The back door of the premises had been kicked in, the house ransacked and property to the value of $12,500 stolen. The property included jewellery, a laptop computer, an Austrian passport and three airline tickets.
38 In respect of that offence, the applicant was identified as a result of a DNA comparison. He pleaded guilty. His Honour noted that the offence involved not merely the ransacking of the house, but the taking of items which would have caused the owner "a great deal of inconvenience and stress": at [11]. He regarded the ransacking of the premises as an aggravating feature. He noted that that offence also was committed whilst the applicant was on parole.
39 It is necessary to set out his Honour's comments in respect of this offence as they appeared in the judgment on sentence:
"15 As for the break and enter and steal which occurred on 4 January 2007, that too was committed whilst Mr Hillier was on parole. I do not regard it as being a professional exercise in a way that would aggravate the offence. But I do regard the ransacking of the premises - the contents of the house - as an aggravating feature.
16 I do not regard the motivation of financial gain as a factor because that is part of the offence of breaking and entering and stealing. However as I have said, his criminal record is such that there is a very important need to emphasise deterrence."
40 His Honour further stated at [24]:
"For the break enter and steal, given his criminal record and the presence of the aggravating factors, I would regard a sentence of seven years as being appropriate. However because he has pleaded guilty to break enter and steal, I propose to reduce that to five years. I regard a non-parole period of three and a half years as appropriate for the break enter and steal offence."
41 While it is possible that the reference to the applicant's criminal record, where it appears in the opening sentence of [24] may be considered as looseness of expression, the context suggests that the criminal record was, inappropriately, taken into account in determining the objective seriousness of the offence.
42 There remains a question as to how that error affected the sentence imposed. The applicant submitted that commencing with a sentence of seven years, being half the statutory maximum, demonstrated a manifestly excessive outcome. Attention was drawn to three previous decisions of this Court, R v Skornia [2000] NSWCCA 422, R v Garvey [2003] NSWCCA 226; 142 A Crim R 194 and R v Baleisuva [2004] NSWCCA 344. The latter cases involve industrial premises, whereas the first involved a dwelling house. In that matter the applicant was sentenced to four years imprisonment with a non-parole period of two years and was refused leave to appeal. Hulme J (with whom Barr J agreed) described the sentences as "well within the normal range of sentences for offences such as his": at [12]. On the basis of somewhat different facts, and given the conclusion reached, it is of limited assistance in indicating the upper end of the appropriate range.
43 The applicant also relied upon statistics prepared by the Judicial Commission which, out of a sample of more than 1,000 offenders (of which 879 received custodial sentences), indicated that only 27 (or 3%) had received a higher head sentence and only eight a higher non-parole period than the applicant.
44 The Director took issue with the way in which the statistics were presented. It was, he contended, more helpful to have regard to the sentences which were the same or greater than the applicant's, rather than merely those which were greater. On that basis the relevant figure was 6% of the sentences imposed, rather than 3%, because the applicant's sentence fell within a category which itself contained 3% of all the sentences. The Director also noted that, on a slightly more sophisticated approach, some 7% received the same or a greater sentence than the applicant. However, on any view, the sentence appears to have been above the 90th percentile as demonstrated by the available statistics.
45 The difficulty in applying these statistics is that they record punishment imposed, rather than the potential range of punishment considered to be available. In many, if not most, cases there will be factors which result in the sentence imposed not being at the top of a range. Yet, in the present case the sentencing judge was undoubtedly entitled to impose a sentence at the high end of the range, given the applicant's recidivism and the need for a significant element of deterrence. Nevertheless, because the sentence is at the top end of the range of sentences actually imposed, it is open to infer that his Honour increased the sentence attracted by the objective seriousness of the offence by relying on the applicant's criminal record. That inference should be drawn.
46 In re-sentencing the applicant, it is necessary to make an appropriate allowance for the guilty plea (which was no doubt in part a consequence of the applicant being linked to the crime through DNA testing). It is also appropriate to recognise that personal deterrence requires that the sentence be at the high end of the appropriate range. A sentence of four and a half years is appropriate. Absent special circumstances, a non-parole period of three years, four months should be specified. (If the proportion adopted by the sentencing judge were maintained, the figure would be three years two months. However, departure from the statutory maximum for the balance of the sentence requires justification: Sentencing Procedure Act, s 44(2).)
47 It is arguable that these adjustments constitute relatively minor changes to the sentencing undertaken below. However that is not a reason for the Court not to intervene once error has been identified in accordance with House v The King at 504-505.
48 Part of the discourse in this area of jurisprudence involves "strong resistance … against appellate 'tinkering' with sentences": see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62] (Kirby J). However, that language has usually been adopted in cases which, like Dinsdale itself, involved appeals by the Director of Public Prosecutions against the inadequacy of a sentence: see, eg, R v Burke [2000] NSWCCA 450 at [27]; Regina v Smith [2001] NSWCCA 152 at [41]; R v Ceissman [2004] NSWCCA 466 at [8]; R v Matthews [2007] NSWCCA 294 at [49]; R v Tortell [2007] NSWCCA 313 at [52]; R v Vera [2008] NSWCCA 33 at [26]; R v AD [2008] NSWCCA 289 at [78]. On occasion, that language has also been adopted in relation to a challenge by an offender seeking to reduce his or her sentence: see, eg, Jones v Regina [2006] NSWCCA 385 at [25]. Whether it is appropriate in such cases may be doubted and should at least be justified, acting as it does, against the interests of liberty of the offender. Jones itself involved a rejection of the alleged specific errors and a final consideration of whether the period of mandatory custody was manifestly excessive because it was an unduly high proportion of the sentence: at [11]. Where a variation (in that case one month) could be described as "tinkering", it might equally be said that it was not clearly outside a permissible range, in circumstances where no other error had been demonstrated. Alternatively, the result might be achieved by the application of s 6(3) of the Criminal Appeal Act.
49 In any event, the reduction of a sentence by six months cannot appropriately be characterised as "mere tinkering", were that test otherwise appropriate. Once that intervention is deemed appropriate, it is necessary to specify a non-parole period in accordance with s 44.
Totality
50 The sentencing judge directed that the sentence for the assault should commence on 12 May 2008, being the date on which the non-parole period for a number of prior unrelated offences ended. The non-parole period as specified by his Honour ended on 11 May 2011. The sentence for the break, enter and steal at Blacktown was directed to commence on 12 November 2010, being six months before the completion of the non-parole period for the assault. On the sentences fixed by his Honour, the applicant would serve 2.5 years of custody attributable solely to the assault and 3.5 years custody attributable solely to the break, enter and steal sentence, before becoming eligible for parole.
51 In expressing the matter in these terms, account is taken not only of the overlap between the two non-parole periods, but the fact that the first six months of the non-parole period for the assault was to be served concurrently with the fixed six month terms for the assault on Mrs Hardy and the damage to the car.
52 Given the fact that the principal offences were entirely separate, a large degree of accumulation was appropriate. The result was to impose a significant minimum custodial sentence upon the applicant by way of personal deterrence. Given the apparent failure of earlier sentences to have that effect on his behaviour, no error was shown in that regard.
53 If there ever were a legitimate complaint about totality, it will be removed by the re-sentencing exercise. Not only are the non-parole periods in each case reduced, but the period of overlap between the sentences will be maintained. The degree of overlap is thereby marginally increased, and the proportion accumulated marginally reduced.
Special circumstances
54 Finally, the applicant complains that the primary judge failed to find "special circumstances" so as to warrant a variation in the statutory formula with respect to the non-parole period and the balance of sentence.
55 Because the balance of the sentence for the assault is wholly encompassed within the non-parole period for the second sentence, the proposed adjustment need only be considered with respect to the second sentence. His Honour imposed a sentence of five years imprisonment with a non-parole period of 3.5 years. The balance of the term was therefore 1.5 years, or 43% of the non-parole period. That constituted a contravention of s 44(2) of the Sentencing Procedure Act, absent a finding of special circumstances. However, the degree of departure is small and is not the subject of a challenge.
56 Had his Honour found special circumstances, he should have recorded his reasons for that conclusion. It should not be inferred that he intended to make such a finding. Rather, he stated at [21]:
"I regard his prospects of rehabilitation as poor. They are not hopeless, but they are poor. I do not accept that there is evidence of remorse, apart from that which is demonstrated by the pleas of guilty. I do accept that he has poor health."
57 There may be circumstances in which the primary facts as found, or the inferences drawn by the sentencing judge from them, indicate a firm basis for making a finding of special circumstances. It is possible that, in such a case, a failure to refer to the possibility of special circumstances may demonstrate error in the sense that the sentencing judge failed to turn his or her mind to the question. Even then, it may be necessary to demonstrate that the applicant sought such a finding. The facts in this case did not give rise to the relevant inference: cf R v Astill (No 2) (1992) 64 A Crim R 289 at 295-296 (Kirby P, dissenting), 300-302 (Sully J), 304 (Lee AJ).
58 Counsel for the applicant, having accepted that the individual sentences roughly complied with the statutory ratio, then noted that the effective parole eligibility period, as a proportion of the whole sentence period, either including the two primary sentences or those sentences together with unrelated sentences, gave rise to a non-parole period which was either 80% or 83% of the total sentence. That result was challenged as inappropriate.
59 These submissions were misconceived. First, it is well understood that where sentences are accumulated the balance of the term, as a proportion of the mandatory period of imprisonment, although comprising the statutory ratio of 25% of the final sentence, will constitute a much diminished proportion of the overall period of imprisonment. However, because the ratio imposed by s 44 is calculated by reference to an individual sentence and not to an accumulated term of imprisonment comprising several sentences, that result does not entail legal error: see Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236 at [18]. Secondly, a finding of special circumstances is only relevant where the balance of the term of the sentence exceeds one-third of the non-parole period. A smaller proportion does not engage the statutory precondition.
60 That does not necessarily address all aspects of the exercise. The fact that s 44 operates with respect to a specific sentence, usually the sentence last commencing, where there is a number of sentences, does not mean that the considerations which may give rise to a finding of "special circumstances" are limited to the considerations relevant to that sentence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704. The relevant considerations sufficient to justify a finding of "special circumstances" may flow from the structure of the several sentences. Nor is it necessary to rely upon statements in Griffiths v The Queen [1989] HCA 39; 167 CLR 372, dealing with quite a different statutory regime, to support that proposition. It is sufficient to note that the "totality principle" may affect the cumulative period of mandatory custody, so as to reduce the non-parole period of the last sentence. The effect of that consideration may be to warrant a lengthier period of eligibility for release on parole.
61 It is also important to note that the desirability of a longer period on parole does not justify an increase in the otherwise appropriate sentence with respect to the last commencing sentence. As a result, the period of eligibility for parole may constitute a smaller proportion of an aggregate of consecutive sentences than might have been thought appropriate if there had been a single lengthy sentence. The flexibility to achieve longer parole eligibility period than the statutory proportion existed under the Probation and Parole Act 1983 (NSW), s 20A(2), discussed in Griffiths, and is not inconsistent with s 44.
62 Nevertheless, in the present case the possibility of a finding of special circumstances, consequent upon a consideration of the overall length of the period of mandatory custody, arose equally in relation to the sentences imposed by the trial judge as they do under the proposed re-sentencing.
63 No error was demonstrated in respect of his Honour's failure to find "special circumstances" for the purposes of s 44 of the Sentencing Procedure Act. In re-sentencing the applicant, it is therefore appropriate to apply the statutory ratio in relation to the sentence having an effective balance of the term.
Conclusion
64 The following orders should be made: