[2014] HCA 2
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1
168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321
[1936] HCA 40
JM v R [2014] NSWCCA 297
246 A Crim R 528
Johan v R [2019] NSWCCA 126
Johnson v The Queen (2004) 78 ALJR 616
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 2
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321[1936] HCA 40
JM v R [2014] NSWCCA 297246 A Crim R 528
Johan v R [2019] NSWCCA 126
Johnson v The Queen (2004) 78 ALJR 616[2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Kentwell v The Queen (No 2) [2015] NSWCCA 96
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Mill v The Queen (1988) 166 CLR 59[1988] HCA 70
Mundine v R [2017] NSWCCA 97
Newman (a pseudonym) v R [2019] NSWCCA 157
Parente v R (2017) 96 NSWLR 633[2017] NSWCCA 284
PB v R [2016] NSWCCA 258
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
PG v R [2017] NSWCCA 179
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28
SHR v R [2014] NSWCCA 94241 A Crim R 544
Sutton v R [2016] NSWCCA 249
Taitoko v R [2020] NSWCCA 43
Truong v RR v LeNguyen v R
Judgment (14 paragraphs)
[1]
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2017/155290
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 24 April 2019
Before: Hosking ADCJ
File Number(s): 2017/155290
[2]
Judgment
LEEMING JA: The factual background, proposed grounds of appeal and submissions in this application for leave to appeal against sentence are contained in the judgments of Rothman J and N Adams J. What follows assumes familiarity with their Honours' reasons.
The primary judge imposed an aggregate sentence of imprisonment for 6 years and 3 months, with a non-parole period of 4 years, following the applicant's guilty pleas to five counts of aggravated indecent assault, contrary to s 61M(2) of the Crimes Act 1900 (NSW). That provision has since been repealed, but was in force in mid to late 2009 on the evening (count 1) and the following morning (counts 2, 3, 4 and 5) when the offending took place. The conduct was rubbing the victim's vagina over the top of her clothing (count 1), then on the following morning rubbing her vagina underneath her clothing (count 2), followed by an open mouthed kiss (count 3), then kissing and licking around the area of the victim's vagina (count 4) and then rubbing her vagina with his hand under her clothing (count 5). The victim was the applicant's granddaughter, then aged 8. The facts did not specify the duration of the offending, save that the first count was for two periods of "a short time". The conduct giving rise to counts 2, 3, 4 and 5 likely occupied only a few minutes in total.
The offending conduct amounted to the reprehensible taking advantage of a child's trusting innocence. There is no suggestion that it was ever repeated.
The maximum penalty of each offence was 10 years' imprisonment. The standard non-parole period was 8 years' imprisonment (having been increased from 5 years imprisonment by the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Schedule 1, item 10).
The sentencing judge imposed an aggregate sentence of 6 years and 3 months, with a non-parole period of 4 years. The head sentence was determined by his Honour taking a notional aggregate sentence of 7 years, and discounting that by slightly more than 10% to reach 6 years and 3 months. The discount reflected the fact that the applicant's guilty pleas were entered on the day the trial was to proceed.
Grounds 1 and 2 focus upon two ways in which the sentencing judge departed from s 53A and s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour did not apply the discount for the utilitarian value of the guilty pleas to the indicative sentences, as required by s 53A(2)(b). Nor did his Honour indicate the non-parole period for each indicative sentence, as required by s 54B(4).
I agree with N Adams J that the first ground is made out, but the second is not. I agree with her Honour's reasons in relation to ground 1, and wish to add the following, in order to explain the different outcome of the two grounds of appeal based on failures to observe different provisions of the same statute in the same sentencing process.
First, the difference is consistent with authority. In relation to the incorrect application of the discount, see the authorities collected in Berryman v R [2017] NSWCCA 297 at [29]-[30]. As is there noted, I am conscious there has been a dissenting view as to the proper construction of the provisions, which is not without force, but it has not prevailed. In relation to the failure to specify the non-parole period, see JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40(15)] and Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [217]-[218].
The different outcome of those two grounds of appeal is readily explained, when two things are borne in mind. First, the imposition of an aggregate sentence is unavoidably less transparent than the imposition of individual sentences for each offence. Even when s 53A(2) is complied with, so that it is clear what the actual individual sentences would have been, an aggregate sentence will not in any case where there are more than two offences expose precisely how the individual sentences have been accumulated. The position would be much more opaque in the absence of s 53A(2). Secondly, the court's decision to exercise the power to impose an aggregate sentence should not alter the outcome. Offenders should be treated neither more severely nor more leniently by the decision to use the power conferred by s 53A. The aggregate sentence ought to be the same as the total effective sentence resulting from the imposition of individual sentences.
Failing to apply the discount for the guilty plea to the indicative sentences is apt to make the sentencing process less transparent. As RA Hulme J said in JM v R at [39(6)]:
"One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence ... A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise" (citations omitted).
The Crown relied on what was said in SHR v R [2014] NSWCCA 94; 241 A Crim R 544 at [40]-[43] for the proposition that a failure to take into account the relevant matters, including the discount, in the indicative sentences "does not necessarily mean that the sentencing discretion has miscarried". In SHR, this Court was addressing a ground of appeal that an aggregate sentence was manifestly excessive, in a case where it seemed likely that the indicative sentences had been discounted by the 20% utilitarian discount but that had not been said explicitly. But a ground of manifest excess turns on the sentence actually imposed, and "does not depend upon attribution of identified specific error in the reasoning of the sentencing judge": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. SHR is not authority for the proposition that there is no patent error in a sentence which does not comply with s 53A(2)(b).
It may be helpful to elaborate upon the first point made by RA Hulme J in JM, namely, the fact that it assists in the application of the principle of totality. The imposition of an aggregate sentence is not a merely arithmetical process. Of course it is true as a matter of arithmetic that it does not matter whether the same fraction is applied to the individual summands which are then added, together, or whether the summands are added and the fraction applied to the sum. (A x 90%) + (B x 90%) + (C x 90%) = (A + B + C) x 90%. But the determination of an aggregate sentence is not merely the sum of its parts.
In every aggregate sentence, there will be an implicit assessment of notional accumulation or concurrency. When that occurs, the sentencing judge does so by reference to the actual individual sentences which would have been imposed for each offence. Take an artificially simple example. Suppose an aggregate sentence is to be imposed following an early plea for three offences, for which undiscounted sentences of imprisonment for 6 years, 4 years and 1 year respectively would have been imposed. The sentencing judge should bear in mind the actual sentences which would have been imposed for the individual offences, namely, of 4½ years, 3 years and 9 months, when applying the principle of totality, not merely so as to comply with s 54A, but also so as to assess the extent to which the "sentence for one offence [can] comprehend and reflect the criminality for the other offence". The words are those of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]. His Honour continued:
"If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Thus in the example in the previous paragraph, the sentencing judge would need to assess the extent to which the 4½ year sentence for the first offence should comprehend and reflect the criminality of the second and third offences.
This is a reflection of the fact that the question of totality should ordinarily come last in the sentencing process. That reflected the position before the enactment of s 53A. The joint judgment in Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70 said that it was a recognised principle of sentencing and endorsed the following formulation:
"when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong".
Likewise, in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
It will be seen that the statutory regime, which requires indicating the actual sentence which would be imposed taking into account all relevant matters (including the discount for a plea) corresponds with the approach stated in Pearce. While the statements of principle by Howie J in Cahyadi reproduced above predate s 53A, they have been applied to aggregate sentences: see for example Galvin v R [2015] NSWCCA 88 at [50]; Taitoko v R [2020] NSWCCA 43 at [130]-[133]. I acknowledge that s 53A was at least in part a response to aspects of Pearce, but I nonetheless see no reason to conclude that it displaces the approach stated in Cahyadi, Mill and Pearce extracted above.
In contrast with the above, the failure to specify a non-parole period for the "indicative" sentences can have no effect upon the ultimate aggregate sentence which was imposed in the present case. Indeed, I struggle to think of any case where it is at all likely that the power to impose an aggregate sentence would be exercised where it could make any difference.
Finally on these grounds, the Crown pointed to s 53A(5) and s 54B(7), which provide that the failures to comply with the provisions do not invalidate the aggregate sentence. Those provisions mean what they say. The sentence imposed remains valid, notwithstanding the failure to comply with what statute requires. Sections 53A(5) and 54B(7) thereby fend off any suggestion that a consequence of the failure to comply with the law is invalidity. They give a direct answer to the question framed thus in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [93]: "A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". It follows that there can be no suggestion of jurisdictional error by the District Court when sentence is imposed contrary to s 53A(2)(b) or s 54B(4), still less can it be suggested that the gaoler lacks a defence of lawful authority for what would otherwise be the trespass to the person and false imprisonment of the offender. But those sections do not entitle the District Court to disregard the commands in the Crimes (Sentencing Procedure) Act. Nor do they relieve this Court from its obligation to correct error. As N Adams J notes, s 101A confirms this. Accordingly, s 53A(5) and s 54B(7) are irrelevant to the appeal.
I agree with Rothman J, for the reasons he gives, that ground 3 is made out. The indicative sentences are far from lenient, and the offending giving rise to counts 2, 3, 4 and 5 was a single course of conduct. A sentence of imprisonment for 6 years and 3 months is manifestly excessive.
It is necessary to resentence. There is no reason to depart from the findings of the sentencing judge. The offending is reprehensible, but occurred over a short period of time, although it included an aspect of planning. The applicant is of prior good character, elderly and in poor health. There is no practical prospect of reoffending. I agree with the orders proposed by Rothman J, and the indicative sentences his Honour has proposed.
ROTHMAN J: The Applicant, Ibbotson, [1] seeks leave to appeal the sentence imposed by Acting Judge Hosking of the District Court on 24 April 2019. The sentencing judge imposed an aggregate sentence for five offences, indicating for each offence the sentence he would have imposed and, ultimately, imposed an aggregate sentence of imprisonment of 6 years and 3 months, with a non-parole period of 4 years.
The offences for which the Applicant was imprisoned, the indicative sentence for each and the nature of each offence is:
1. Count One: 3 years' imprisonment; the Applicant rubbed the victim's vagina over her clothing;
2. Count Two: 4 years' imprisonment; the Applicant rubbed the victim's vagina inside her clothing;
3. Count Three: 1 year's imprisonment; the Applicant kissed the victim with an open mouth;
4. Count Four: 5 years' imprisonment; the Applicant kissed and licked the victim around the area of her vagina;
5. Count Five: 4 years' imprisonment; the Applicant rubbed the victim's vagina inside her clothing.
The Applicant seeks leave to appeal and, if leave be granted, appeals on three grounds, which are:
1. Ground One: the sentencing judge erred in applying the sentencing discount to the aggregate sentence and not the indicative sentences;
2. Ground Two: the sentencing judge erred in failing to indicate the non-parole period for each Count in circumstances where the offences were subject to a standard non-parole period; and
3. Ground Three: the sentence imposed was manifestly excessive, as a result of:
1. a failure to give sufficient weight to the subjective case of the offender;
2. the indicative sentences being excessive; and
3. the accumulation of the individual sentences, when arriving at the aggregate sentence, being excessive.
The Applicant is the grandfather of the victim. At the time of the offences, the Applicant was aged 64 years and the victim was aged 8. The five offences occurred in two separate events over consecutive days in 2009 and it was not until 23 May 2017 that the Applicant was first charged. He was sentenced in April 2019, at the age of 73.
Each of the offences, referred to above, is a contravention of s 61M(2) of the Crimes Act 1900 (NSW) (hereinafter the "Crimes Act"), which renders it an offence for any person to assault another person and, at the time of, or immediately after or before the time of, the assault, to commit an act of indecency on or in the presence of that person.
The offence is generally referred to as aggravated indecent assault. For an offence of that kind, the victim must be aged less than 16 years. The maximum penalty is 10 years' imprisonment. Each offence carries a standard non-parole period of 8 years' imprisonment. The Applicant pleaded guilty to each of the charges.
[3]
Facts
The parties compiled Agreed Facts, which formed the basis for the sentencing exercise. Those Agreed Facts are part of Exhibit A in the sentencing proceedings and are before the Court. They were summarised by the sentencing judge.
Briefly, in September/October 2009, the Applicant, his wife and other family members travelled to Wollongong to stay at the home of the Applicant's son and family. At some point, during that stay, the victim was playing hide and seek with others. The Applicant was lying on a mattress in the lounge room and he encouraged the victim to hide under the covers.
When the victim was under the covers, the Applicant put his hands on the victim's vagina, outside her clothing, and rubbed it for a short time. The victim's mother walked past as she was in the bed and asked her daughter if she was all right. The victim said she was and the mother left the room.
The victim's evidence was that she responded to her mother's question in that way because she was too scared to say anything for fear of what might happen. The Applicant continued, after the mother had left, to rub his granddaughter's vagina for a short time (Count One). At some point, the Applicant told the victim to come to his bed the next morning.
The following morning, the Applicant went into the victim's room and whispered to her to come with him. The Applicant's wife was sleeping on a mattress on the floor in the same room as the victim. The victim made an excuse that she could not get over her grandmother and the Applicant told her to jump over her grandmother, which she then did.
After leaving the bedroom, the victim went with the Applicant to the lounge room and lay down with him on a mattress. The Applicant then placed his hand under her clothing, on the victim's vagina, and rubbed it (Count Two). The Applicant also kissed the victim with an open mouth and told her how to kiss him back (Count Three).
At that point, the Applicant asked the victim if he could kiss the victim's vagina. Apparently, the victim was scared and replied in the affirmative. He then crawled under the sheets, pulled down the victim's underpants, and kissed and licked the victim in the area around the vagina (Count Four). After stopping this, he then placed his hand back inside the victim's clothing, and rubbed her vagina with his fingers (Count Five).
[4]
Subjective circumstances
The Applicant did not give evidence, but his subjective circumstances were before the sentencing judge. The Applicant was born in Uruguay on 8 July 1945 and was the middle of three male children.
His father was an alcoholic and his parents separated, when he was aged 7. The Applicant lived with his father and his older brother and his father refused to let either child have any contact with his mother or younger brother. Further, notwithstanding promises to the contrary, after the separation, the Applicant and his brother were in an orphanage for 10 months.
During his time at the orphanage, the Applicant was the subject of an attempted sexual assault by another child. His brother stepped in and stopped the assault.
After the period in the orphanage, the Applicant and his brother generally tended to care for themselves as a consequence of the father's working hours. Neighbours assisted with the care, from time to time.
The Applicant's education was initially interrupted because of the need to move and, consequently, move schools on a regular basis and, at 14 years of age, the Applicant was required to leave school to obtain work to assist with the family's finances.
The Applicant moved to Australia in 1974 with his family. Despite attempts to obtain Australian citizenship, he was unable to obtain it. Since arriving in Australia, the Applicant has worked in various labouring positions and owned a cleaning company. He retired from work in 2000, due to a back injury, and, since that time, has lived on Commonwealth benefits and his savings.
The Applicant has never previously been charged with a criminal offence. As a consequence, he has no criminal record nor, obviously, has he previously spent time in prison.
The Applicant and his wife have 4 children and 10 grandchildren. Their youngest child has been diagnosed with schizophrenia and lives in close proximity to the Applicant's home. That youngest child relied on the Applicant to drive her to various medical appointments and other commitments. She does not have a drivers' licence; suffers from dyslexia; and cannot read or write.
The Applicant suffers from diverticulitis; Type II Diabetes; high cholesterol; and hypertension. Further, he has been diagnosed as suffering from clinical depression.
[5]
Remarks on sentence
The sentencing judge dealt with objective seriousness [2] and concluded that the offences were "serious in the extreme" and "a terrible breach of trust". Count Four, in the conclusion of the sentencing judge, was the most serious offence and was assessed as above the midrange in objective seriousness. His Honour then concluded that Counts Two and Five (the Counts involving rubbing under the clothing) were offences that fell in the midrange of objective seriousness and were next in seriousness to Count Four.
Counts One and Three, involving touching over the clothing and open mouth kissing, were the least serious and the sentencing judge noted that, were the Applicant only to have been charged with Count Three, he would not have imposed a full-time custodial sentence.
In dealing with the subjective case of the Applicant, the sentencing judge noted his age at the time of the offence and at the time of sentencing; his lack of prior convictions or criminal offences; and the various medical conditions from which the Applicant suffered. The sentencing judge noted that the offences were out of the Applicant's general character and that the Applicant was unlikely to reoffend.
The sentencing judge concluded that the Applicant was remorseful and referred to the historical and other material in Dr Seidler's Report as probably correct, noting that the Applicant had a dysfunctional childhood.
The sentencing judge also found that incarceration would be more difficult for the Applicant because of his relative lack of ability with English and the fact that it was likely he would need to be in protection as a consequence of him having committed child-sex offences. Further, the Applicant is unlikely to receive many visits on account of the Applicant's wife's inability to drive.
Further, the sentencing judge found that the Applicant's wife would also suffer real hardship as she was substantially dependent on the Applicant, noting that the Applicant would almost certainly be deported.
Based on the circumstance that the sentence was to be the first time the Applicant was in custody, together with his age and his less than perfect health, the sentencing judge found special circumstances, allowing him to impose a shorter period for the non-parole period. The sentencing judge discounted the sentence by an amount "slightly more than" 10% for the plea of guilty.
[6]
Ground One
As earlier stated, the first ground of appeal is that the sentencing judge erred in applying the sentencing discount to the aggregate sentence and not the indicative sentences. Nice questions arise as to the circumstances in which such a defect would adversely affect an offender.
Section 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:
"(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following -
…
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence."
Section 22, under Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), sets out the manner in which a guilty plea is to be taken into account on sentence.
As a matter of arithmetic, the effect of applying a 10% discount to each individual indicative sentence and then aggregating does not seem, on its face, different in effect from applying the 10% discount to the aggregate sentence. If the sentences were fully cumulative, then the 10% discount to each indicative sentence and to the aggregate sentence would, mathematically, be the same. If, as one suspects (and as was the situation in this sentence), the aggregate sentence is to be a sentence in which the sentencer consciously determines to impose a sentence that is something more than the highest indicative sentence but less than a full accumulation of all the indicative sentences, then there can be two possibilities.
Either the amount over and above the highest indicative sentence will be calculated as a percentage or it will be a set period of time. If the former, which I do not encourage, discounting the aggregate sentence, as distinct from each indicative sentence, will make no difference. If the latter, namely, a period of time over and above the highest indicative sentence, then discounting the aggregate sentence will provide a higher discount than discounting each indicative sentence.
To give an example of that last situation, if a sentencing judge were to add 12 months to the highest indicative sentence to account for the additional criminality, then applying a 10% discount to the aggregate sentence would provide an extra 1.2 months of discount than would otherwise be the case. Of course, sentencing is not an arithmetic exercise.
[7]
Ground Two
The second submission made by the Applicant is that the sentencing judge erred in failing to indicate the non-parole period for each Count. As stated, each Count is an offence against s 61M(2) of the Crimes Act, for which there is a standard non-parole period of 8 years' imprisonment. Pursuant to the terms of s 54B(4) of the Crimes (Sentencing Procedure) Act, the Court is required, when determining an aggregate sentence of imprisonment, to indicate and make a written record of the non-parole period that it would have set for each such offence, where a standard non-parole period applies to the offence.
Each of these offences, as stated, has an applicable standard non-parole period. As a consequence, the Sentencing Judge was required to indicate the non-parole period that he would have fixed on the indicative sentence. The provisions of the Act are clear. [7]
In PB, I (with the agreement of Davies and Garling JJ) said:
"[11] During the course of the appeal, it was pointed out that Count 1 was an offence for which a standard non-parole period applied and the terms of the s 54B of the Crimes (Sentencing Procedure) Act 1999 required a sentencing judge to express a non-parole period, even in respect to an indicative sentence: s 54B(4) of the Crimes (Sentencing Procedure) Act. The learned sentencing judge did not do that. Notwithstanding the point being raised, no attempt was made to amend the grounds of appeal.
[12] The failure to indicate a non-parole period is an error, although it is not an error that, in any sense, can affect the aggregate sentence imposed. It is from the aggregate sentence that the appeal lies (with leave). Further, the terms of s 54B(7) of the Crimes (Sentencing Procedure) Act make clear that the failure to indicate a non-parole period does not invalidate the sentence. That provision does not relieve a sentencing judge from the obligations imposed by the provision. Nor does it overcome error for the purpose of an appeal.
[13] For the foregoing reasons, error has been disclosed. I have not dealt with manifest excess, but, given the existence of error, re-sentencing is necessary and the submission on manifest excess is overtaken and dealt with in that process."
The Crown submits, as it did for the issues associated with Ground One of the appeal, that non-compliance with the provisions does not invalidate the sentence: see s 54B(7) of the Crimes (Sentencing Procedure) Act, and, in relation to Ground One, ss 22(4) and 53A(5) of the Crimes (Sentencing Procedure) Act. As was expressed in PB, invalidity is not the issue.
[8]
Ground Three
Essentially the Applicant submits three particulars that may explain a sentence that, on the Applicant's submission, was manifestly excessive. First, the Applicant submits that the sentencing judge failed to give sufficient weight to the subjective case of the offender. Secondly, the Applicant submits that the indicative sentences were excessive; and, thirdly, the Applicant submits that the accumulation of the individual sentences, when arriving at the aggregate sentence, was excessive and did not appropriately reflect the total criminality of the conduct.
There can be little doubt that the sentencing judge considered the Applicant's subjective case. It would be a rare case, where an Appellate Court would intervene on the basis that insufficient weight has been given to a particular aspect of the matters that are required to be assessed in arriving at an appropriate sentence.
There can be little doubt the sentencing judge paid particular attention to the Applicant's prior good character, even in circumstances where such a factor plays a lesser role in child sexual offences, particularly where there is a familial relationship with the victim. It is difficult to identify any aspect of the Applicant's subjective case that the sentencing judge did not properly take into account.
The sentencing judge was certainly aware that the Applicant was unlikely to reoffend and expressly referred to that factor in his remarks. The sentencing judge also remarked as to the age of the Applicant and the particular difficulties associated with his incarceration on account of his health and other aspects. In and of itself, this particular is not made out.
Further, it is difficult to come to the conclusion that the indicative sentences that were prescribed by his Honour were "excessive". The most severe indicative sentence was 5 years' imprisonment, for Count Four and the least severe sentence was 1 year's imprisonment for Count Three. If each of those offences were to have occurred, independently of the other offences, it would be difficult to suggest that the indicative sentence for each fixed by his Honour was manifestly excessive, or excessive at all.
Fundamentally, manifest error is an error that requires the Court to find that the sentence below was "unreasonable" or "plainly unjust". [9] A submission that a sentence is manifestly excessive (or manifestly inadequate) is a conclusion which is either an accurate conclusion or it is not.
[9]
Additional comments
Since circulating the first draft of these reasons, I have been provided with the drafts of judgment of N Adams J and a draft judgment of Leeming JA. Because there seems to be controversy as to the approach to Ground 1 and the error in Ground Two, it is necessary for me to explain the position I have in relation to these aspects.
The error in Ground One is a failure to abide by the requirements of the legislation and may or may not have affected the sentencing discretion. To make it abundantly clear, lest it be misrepresented, no part of the foregoing reasons suggests that the error would not affect, or would usually or probably not affect, the sentence imposed.
On the contrary, the foregoing seeks to make clear that an error of this kind will probably affect the sentence to the advantage of the offender. Further, it may adversely affect the sentence from the offender's perspective, albeit not usually.
It is also necessary to deal with the proposition that transparency is a guide to the process to be adopted under the Crimes (Sentencing Procedure) Act. In Markarian v The Queen, [11] the approach of Kirby J was different to that of McHugh J. The approach of Kirby J favoured total transparency. The approach of McHugh J was to favour an "intuitive" or "instinctive" approach. The plurality [12] expressed the view that there is no single mandated path in the reasoning process, [13] provided that the exercise of discretion takes account of all (and only) relevant considerations and otherwise does not err in a manner described in House v The King. [14] The sentencing judge, as has been stated many times, must be allowed as much flexibility in sentencing as is consonant with the statutory scheme that applies and consistency of approach. [15]
Notwithstanding the above approach of the plurality in Markarian, [16] the generally accepted and recommended approach is that described by McHugh J to which earlier reference has been made. Sentencing is now, somewhat tritely, referred to as a process of "intuitive" or "instinctive" synthesis. But the philosophical difference between the approach of McHugh J and Kirby J needs to be understood, as does the place of "transparency".
In Aristotelian terms, expertise is the combination of academic and practical learning and experience. The expert, in terms Aristotle utilised for the purpose of moral rectitude, is the person who as "second nature" or "intuition" or "common sense" applies expertise, without necessarily consciously so doing. In modern pedagogical terms, Aristotle's analysis was developed by psychologists to understand the process by which new skills are learned and applied. The difference of approach suggested by Kirby J, on the one hand, and McHugh J, on the other, is a difference of approach embodied, in modern education terminology between "conscious competence" and "unconscious competence".
[10]
Re-sentence
In light of the foregoing, it is the function of the Court to resentence the Applicant. It is not my view that a lesser sentence is not warranted in law.
In re-sentencing the Applicant, I would take into account all of the subjective matters to which I have referred and the objective seriousness of the offences in question. I, too, would find, on the basis of the Applicant's age and health, special circumstances warranting a shorter non-parole period than would be required if the Court were to implement the statutory ratio.
It is unnecessary to repeat the conduct that gave rise to the various Counts. I would set out the following indicative sentences as the starting point before the discount for the plea:
Count One: 3 years' imprisonment, with a non-parole period of 2 years' imprisonment;
Count Two: 4 years' imprisonment; with a non-parole period of 2 years and 8 months' imprisonment;
Count Three: 1 year's imprisonment, with a non-parole period of 8 months' imprisonment;
Count Four: 5 years' imprisonment, with a non-parole period of 3 years and 4 months' imprisonment;
Count Five: the same indicative sentence and non-parole period as for Count Two.
No complaint is made as to the application of a discount of 10% for the plea of guilty and I would apply a 10% discount to each of the foregoing indicative sentences, which would result in an indicative sentence for each at:
Count One: 2 years and 8 months and a non-parole period of 21 months;
Count Two: 43 months and a non-parole period of 28 months;
Count Three: 10 months and a non-parole period of 7 months;
Count Four: 54 months (4 and a half years) and a non-parole period of 3 years;
Count Five: the same indicative sentence and non-parole period as for Count Two.
I, too, would impose an aggregate sentence. I take account of the fact that Count One was different conduct and required the formation of a different intention than the conduct in the remainder of the counts. I also take account of the fact that the invitation issued to the victim, if "invitation" be an appropriate term, the night before, indicates a degree of planning in relation to the conduct that occurred the next morning.
[11]
Ground One
It was common ground that the sentencing judge applied the discount for the applicant's plea of guilty to the aggregate sentence imposed rather than the indicative sentences as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"). It was also accepted by the Crown that a number of decisions of this Court have held that this was an error, citing Berryman v R [2017] NSWCCA 297 at [29]; PG v R [2017] NSWCCA 179 at [74]-[94]; Elsaj v R [2017] NSWCCA 124 at [56] and Vaughan v R [2020] NSWCCA 3 at [92].
Despite these decisions, the Crown did not accept that this Ground should be upheld, arguing that a failure of this type "does not necessarily mean that the sentencing discretion has miscarried". The only decision cited as authority for this proposition was SHR v R [2014] NSWCCA 92 at [40]-[43] per Fullerton J, (Basten JA and Davies J agreeing). Those passages in SHR v R do not stand as authority for the principle relied upon by the Crown.
In SHR v R at [40], Fullerton J restated the (uncontroversial) principle that, although the appeal is against the aggregate sentence and not the indicative sentences, patent error in the appointment of an indicative sentence may reveal error in the aggregate sentence ultimately imposed. Fullerton J then observed the following at [41]:
"Even if it is open to find that his Honour did not discount the indicative sentences by 20 per cent (a conclusion which I find irresistible in light of his Honour's sentencing remarks extracted above) the Crown submitted that it is clear that his Honour applied a discount of 20 per cent for the pleas of guilty before the aggregate sentence was imposed which, in effect, neutralised the error. The Crown further submitted that the aggregate sentence is not rendered invalid merely by the failure to apply the discount to the indicative sentences (the language of s 53A(5)). Neither is another sentence warranted in law under s 6(3) of the Criminal Appeal Act given that a significant degree of accumulation between the indicative sentences was called for to reflect the totality of the offending and the aggregate sentence imposed in this case reflects that finding." [Emphasis added.]
Her Honour then went on at [42] to observe that "the extent of the need for accumulation can inform the question of whether the aggregate sentence is the product of a sound sentencing exercise" before stating that "[t]he real question is whether the aggregate sentence is excessive in the sense that it is unreasonable or plainly unjust". Her Honour then stated the following at [43]:
"While I am persuaded his Honour did treat the pleas of guilty contrary to the way mandated by s 53(2)(b), I am not persuaded that the aggregate sentence was necessarily infected by that error such as to compel the positive finding that another sentence is warranted in law. What remains to be considered is whether the sentencing exercise miscarried on other grounds." [Emphasis added.]
[12]
Ground Two
It was common ground that the sentencing judge failed to indicate the non-parole period for the counts on which a standard non-parole period was provided. This was contrary to s 54B(4) of the Sentencing Act, which provides that when imposing an aggregate sentence the court is to indicate and make a written record "for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence".
Although the Crown conceded this error, reliance was placed on s 54B(7) of the Sentencing Act which provides that non-compliance with s 54B of the Sentencing Act does not "invalidate" the sentence. Section 54B(7) is concerned with the validity of the sentence; it does not mean that there was no error. That this is so is confirmed by s 101A of the Sentencing Act which expressly provides that "[a] failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence".
The Crown also relied upon the decision in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 where Button J (with whom McClellan CJ at CL and Garling J agreed) considered and dismissed a similar ground on a number of bases (at [214]-[219]), including that the appellant's solicitor had not assisted the sentencing judge and that it is the aggregate sentence and not the indicative sentences which is amenable to appeal. Significantly, the Court also held at [217] that "setting non-parole periods for the indicative sentences would have no effect on the sentence imposed upon and to be served by Mr Nguyen".
Again, the decision in Truong v R; R v Le; Nguyen v R; R v Nguyen was decided before the decision in Kentwell. Thus, the approach taken by the Court to error needs to be examined with some caution. Despite this, as I have explained at [135] above, although an applicant does not need to establish that an error has had an actual effect on the sentence imposed, he or she still is required to show that an error has the capacity to influence the sentence. I am unable to see how a failure to state the non-parole period on an indicative sentence has the capacity to influence the aggregate sentence imposed. The applicant did not rely upon any decision in which it has been found that such an error is amenable to intervention by this Court.
[13]
Re-sentencing
Having been satisfied that Ground One is established, I do not consider it necessary to consider whether the sentence imposed was manifestly excessive. Error having been established in the sentencing process, the court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912 (NSW) by an independent exercise of the sentencing discretion: Kentwell (at [43]).
I would adopt the findings made by the sentencing judge. The five offences for which the applicant was sentenced occurred over a relatively short period of time. The applicant is now 74 years old and will turn 75 in July. He had no criminal record prior to the commission of these offences. He is in poor health and his wife is heavily dependent on him.
In the exercise of my independent sentencing discretion, I too would arrive at a lesser aggregate sentence than that imposed by the sentencing judge, having regard to the totality principle, the applicant's age, prior good character and other subjective factors. On this basis, I agree with the orders proposed by Rothman J.
[14]
Endnotes
"Ibbotson" is a pseudonym utilised because the name of the offender would reveal the identity of the child victim.
ROS p 5.
Section 53A(2)(B) of the Crimes (Sentencing Procedure) Act.
See SHR v R [2014] NSWCCA 94 at [41]-[42] and PG v R [2017] NSWCCA 179 at [92].
[2017] NSWCCA 179.
[2017] NSWCCA 124 ("Elsaj").
PB v R [2016] NSWCCA 258.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91] and [92]; Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 at [38]-[41] (dealing with whether conduct was "void" for non-compliance with legislation).
See House v The King (1936) 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.
(1936) 55 CLR 499; [1936] HCA 40.
(2005) 228 CLR 357; [2005] HCA 25.
Ibid per Gleeson CJ, Gummow, Hayne and Callinan JJ.
Ibid at [27].
(1936) 55 CLR 499; [1936] HCA 40 at 504-505.
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 at [5].
(2005) 228 CLR 357; [2005] HCA 25 op. cit. at [27], [36] and [37], including the reference to Wong (2001) 207 CLR 584; [2001] HCA 64.
(1936) 55 CLR 499; [1936] HCA 40 at 504-505.
(2014) 253 CLR 58; [2014] HCA 2.
(1936) 55 CLR 499; [1936] HCA 40 at 504-505.
Bearing in mind, in particular, that the prohibition that arises from the judgment in Barbaro, is a prohibition on the expression of an opinion as to the "bounds" of any sentence; not the expression of opinion of an appropriate sentence that could be imposed: see Barbaro at [7], per French CJ, Hayne, Kiefel and Bell JJ; see also the discussion of these issues in my judgment in R v Aghili Nategh (No 3) [2019] NSWSC 1892 at [122]-[131], to which I adhere.
(2014) 252 CLR 601; [2014] HCA 37 ("Kentwell").
Ibid at [42].
Kentwell v The Queen (No 2) [2015] NSWCCA 96, [50]-[59].
After all of this occurred, the Applicant told the victim not to tell anyone about what he had done. Initially, the victim complied with that request, because she was ashamed and scared.
In late December 2009, the victim told her mother. The victim's father (being the son of the Applicant) then confronted the Applicant by phone. The Applicant denied the offences.
The conduct was reported to police in January 2010, but the victim's parents decided not to proceed with the matter. The victim has had no contact with the Applicant since the conversation between the Applicant and the victim's father.
On 18 January 2017, the victim, by then aged 14 years, was interviewed by Police, as she had indicated to them that she desired that the matter be reopened. On 23 May 2017, the Applicant attended Wyong Police Station and was interviewed in relation to the charges. The Applicant denied the allegations.
Eventually, on the day the matter was listed for trial, the Applicant entered a plea of guilty to each of the five Counts. That occurred on 9 July 2018.
His wife suffers from diabetes; chronic back pain; cataracts; and dyslexia. The Applicant's wife has difficulty reading as a result of her dyslexia and her English is, in any event, limited. Like her daughter, the Applicant's wife does not have a drivers' licence and does not work. The wife gave evidence, in the sentence proceedings, that because of her chronic back pain, she could not use public transport and was heavily dependent on the Applicant for her day-to-day living.
As a result of his residency status, the sentencing judge accepted that the Applicant was likely to be deported upon his release from custody. The Applicant has some family in Uruguay, but no longer has strong ties there, having lived in Australia for over 45 years, at the time of the sentence.
The sentencing judge accepted that the offender was unlikely to reoffend, given his age, lack of criminal antecedents and otherwise good character. Before the Court at Sentencing and on Appeal was the report of Dr Katie Seidler, Clinical and Forensic Psychologist, who, amongst other matters, expressed the opinion that the Applicant presented a low risk of re-offending.
The submission of the Applicant on this issue is that the correct manner in which to apply the discount is to each indicative sentence and error has been disclosed. Given the state of the authorities, there can be no doubt as to the correctness of that proposition. [3]
As to the effect of such an error, the Applicant submits that, if a sentencing judge were examining all of the indicative sentences, each of which has been discounted for the plea of guilty, then the psychological effect on the sentencing judge would be to impress upon the judge a lower criminality, whether consciously or subconsciously. The possibility of that proposition is, in my view, remote, but it is possible. [4]
Nevertheless, the submission of the Applicant, namely, that the correct approach to applying the discount is to apply the discount to each indicative sentence and then to assess and impose an aggregate sentence, has been accepted by the Crown in this case, and by the Court in previous cases, as an error: PG v R [5] at [71]-[92], which recites and reaffirms the statement by the Court (Hoeben CJ at CL, Bathurst CJ and McCallum J agreeing) in Elsaj v R [6] at [56]. In Elsaj, Hoeben CJ at CL said:
"Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53."
As earlier stated, it is improbable that applying a discount for the plea of guilty at the point where indicative sentences are fixed, rather than when the aggregate sentence is imposed, will usually disadvantage an offender. Further, there is much that is compelling in the analysis of Basten JA in PG, supra, of the provisions of 53A.
The provisions of s 53A of the Crimes (Sentencing Procedure) Act require the indicative sentence to have had applied to it all the matters that are relevant under Part 3 of that Act. As such, it is necessary to determine whether the plea of guilty is such a matter.
Section 22 of the Crimes (Sentencing Procedure) Act (1999) NSW requires a court to take into account the fact that the offender pleaded guilty, the timing of that plea or indication of plea and the circumstances in which the offender indicated the plea. Each of those criteria are required to be taken into account "in passing sentence"; not in "calculating" the sentence. When imposing an aggregate sentence, it is only the aggregate sentence that is "passed".
On the other hand, any other construction than that which requires the discount to be applied to indicative sentences would create some difficulties. For example, if an offender pleaded guilty to two offences, for which a discount should apply (perhaps at the highest level), and pleaded guilty to other offences later in the process, and/or went to trial in relation to some of the offences, unless the Court were prepared to apply the discounts to each indicative sentence, it would be almost impossible to determine the discount that should be applied to the aggregate sentence.
In any event, the view I take is that following the judgment in Elsaj, and the cases recited therein, the Court should adopt the approach of the majority in PG and leave it to the legislature, if a change is sought to be effected.
As a consequence of the foregoing, error has been disclosed. It is not accepted that the error involved any adverse consequence on the Applicant, but, as made clear at [78] and above, that does not matter. Further, for those who may not read these reasons appropriately, the error would lead, usually, to an effect on the sentence to the benefit of the offender, but could lead to an adverse effect.
An order of a superior court of record, for example a sentence for murder in the Supreme Court, is not invalid on account of error, but that does not necessarily negate the fact that error has occurred, when an appellate court is dealing with identifiable error in the sentence that has been imposed. Similarly, invalidity in an order of the District Court occurs only for jurisdictional error and a provision such as s 54B(7) of the Crimes (Sentencing Procedure) Act is inserted to ensure invalidity is not the consequence of irregularity or error. [8] Error has been disclosed in both Grounds One and Two.
As the High Court in House v The King [10] makes clear, manifest error occurs when the outcome is such that it points to a misapplication of principle or an error of the kind that would otherwise be described as identifiable error, even though it cannot be identified. The particularisation of matters that may have led a sentencing judge to impose a sentence that is manifestly excessive or manifestly inadequate may be of assistance, but are not decisive.
In the foregoing, I have not dealt with the issue of the criminality of the conduct and its appropriate reflection in the aggregate sentence. As has been made clear in the description of the offences and the facts that gave rise to them, these offences concerned two separate occasions.
Count One occurred in the night or evening, during which the Applicant rubbed his granddaughter's vagina over her clothing. Counts Two, Three, Four and Five occurred the next morning, when the victim, at the behest of the Applicant, left the bedroom, where she was sleeping with her grandmother, and went into the lounge room and lay down with her grandfather on a mattress. At that time, the Applicant committed the conduct that gave rise to the remainder of the Counts. In other words, Counts Two, Three, Four and Five are part of the one course of criminal conduct.
The sentence indicated for Count Four is not beyond the range of sentences that could have been imposed by the sentencing judge, but it is not lenient. The total sentence, expressed by the aggregate sentence, given that there were two courses of conduct, over a very short period of time; given the excellent subjective factors of the Applicant; given that the conduct was aberrant; and given that there is a low risk of reoffending, seems, on its face, to be manifestly excessive and indicative of error. In my view, Ground Three has been made out.
The latter is the "expert" in Aristotelian terms. The former, applying conscious competence, consciously applies learned skills to the task at hand. Conscious competence necessarily requires transparency. Unconscious competence is necessarily less transparent and, possibly, wholly opaque, or, more accurately, esoteric.
If transparency were the guiding principle to sentencing, then we would have abandoned "intuitive synthesis", and adopted the approach of Kirby J in Markarian.
Rather, the courts have made clear, in relation to appeals, that sentencing judges must have, as earlier stated, as much flexibility as the statutory scheme will allow and as is consonant with the consistent approach of sentencing principles. Further, regardless of the lack of transparency, the exercise of the sentencing discretion will be the subject of interference only on one of the bases described in House v The King [17] or as a result of manifest error, as also described in the last mentioned judgment.
This was confirmed and emphasised in the judgment of the High Court in Barbaro v The Queen [18] in which the High Court made clear, once more, that it could not be a ground of appeal that a judicial officer imposed a sentence beyond the ambit expressed in the opinion of the parties, but only on the basis of those criteria described in House v The King. [19] The lack of transparency may lead more readily to a conclusion that there is manifest error, predominantly because the error will be unable to be identified, but, of itself, cannot be a ground of appeal. [20]
I have already expressed the view, prior to the insertion of these additional comments, that error in Ground One has been disclosed, although, I did not accept that the error involved any adverse consequence on the Applicant. Nevertheless, the foregoing additional comments raise, as does the draft reasons of N Adams J and, the draft reasons of Leeming JA on Ground Two, the proper application of the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW).
It has been suggested that the judgment of the High Court in Kentwell v The Queen [21] renders it "no longer the case that an identified error can be dealt with by a finding that 'no other sentence is warranted in law'." I do not accept that suggestion.
The judgment of the High Court in Kentwell says no such thing and stands for no such proposition. The High Court, like every other court, is bound to apply the valid and operative legislative provisions that have been promulgated.
Apart from reading down a provision on account of some constitutional provision, to read out valid and operative provisions of any statute is contrary to the rule of law and fails to distinguish between the proper function of the judiciary, on the one hand, and the legislature, on the other. The terms of section 6(3) of the Criminal Appeal Act are valid and operative.
The only issue that arises from the judgment in Kentwell is the basis upon which such a conclusion on appeal should be reached or can be reached. As is clear from the well-known passage in Kentwell, recited by N Adams J in her draft reasons, not "all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion". [22] As a consequence, to distinguish judgments on the basis that they are "pre-Kentwell" may be unhelpful.
The basis upon which the Court could come to the view that no other sentence is warranted in law, has been the subject of discussion in a number of cases. My own position in relation to that aspect was expressed in Kentwell (No 2), [23] when the Court was required to deal, on remitter from the High Court, with the application for extension of time, leave to appeal and the appeal.
I should clarify that the issue with which I was there dealing was the operation of s 6 of the Criminal Appeal Act and whether the Applicant should be granted leave to appeal, rather than the operation of the conclusion that no other sentence is warranted in law. As the High Court, and this Court, has made clear on a number of occasions, in an appeal from an applicant, in the absence of a proper and appropriate warning, no other sentence would be warranted in law, if, on the exercise of the resentencing discretion the Court would come to a view that a more severe sentence should be imposed.
Another situation may well be where an error has occurred that has benefited the applicant for leave to appeal. Where an error is identified the effect of which is to benefit the party seeking to obtain the benefit of the error for the purpose of a re-sentencing exercise, the preferable course may well be to deny leave. Similarly, it may be preferable to deny leave, where the error could not possibly have affected the sentence that was imposed. Nevertheless, if that be the only error, it may be a basis for concluding that no other sentence is warranted in law.
With respect to N Adams J, the reasons for judgment in SHR v R [24] were in no way inconsistent with the approach of the High Court in Kentwell. In SHR, Fullerton J with whom both Basten JA and Davies J agreed, made it clear that the discount for the plea of guilty, pursuant to s 22 of the Crimes (Sentencing Procedure) Act, should be applied to the indicative sentences when they are indicated, but held that it was for the Applicant to demonstrate that an error in the specification of an indicative sentence was material to the outcome.
Where, as here, the error is in the setting of an indicative sentence, which is never imposed or "passed", it is only where the error in the indicative sentence has affected, or might have affected, the aggregate sentence, from which the appeal lies, that error has been disclosed in the sentence passed.
Returning, as I must, to the error disclosed by the failure to apply the appropriate allowance for the plea of guilty to the indicative sentence, the question is whether the failure to comply with the procedure mandated by the Crimes (Sentencing Procedure) Act, in this regard, discloses error, or possible error, in the sentence that was imposed.
As initially remarked, in my view, error has been disclosed, because it is appropriate, at this juncture, to follow the judgment of the court in Elsaj. [25] Further, as implicit in the foregoing initial comments, the process of "intuitive synthesis", which the sentencer applies, may result in a sentencing judge examining each of the indicative sentences and, as explained in these comments, determining a sentence without consciously applying a fixed or percentage increase on the highest indicative sentence. It may well be that, pursuant to the process of instinctive or intuitive synthesis, the sentencing judge examines each of the indicative sentences and fixes an aggregate sentence that reflects the totality of the criminality.
As a consequence, examining higher sentences and reaching an aggregate "intuitively" and then applying the discount may adversely affect the offender. As earlier commented, any adverse effect would be unusual; but it is not impossible. In some cases, the adverse effect may be obvious.
The foregoing analysis of "intuitive synthesis" and the operation of s 6(3) of the Criminal Appeal Act are also apposite to the issues associated with Ground Two.
On Ground Two, Leeming JA has expressed the view that Ground Two discloses error but that the error "can have no effect upon the ultimate aggregate sentence which was imposed". As the foregoing reasons make clear, I also consider that error is established by the issue raised by the terms of Ground Two of the appeal.
Further, I agree with Leeming JA that an error of this kind could not affect the sentence that was imposed. However, as his Honour makes clear, this Court has an obligation to correct error.
Unlike the issues that affect Ground One, an "intuitive" assessment of the non-parole period does not raise the possibility that it would affect the aggregate sentence. Any non-parole period can be no less than three quarters of the head sentence, [26] unless special circumstances exist. Thus, if both the head sentence and non-parole period are assessed "intuitively" an arithmetic check would be required. If only the non-parole period were assessed "intuitively" and, as here, special circumstances were disclosed, the head sentence would need to be lengthened, contrary to principle. In those circumstances, there is no principled basis upon which the failure to set an "indicative non-parole period" can affect the ultimate aggregate sentence imposed.
The circumstance that the error, identified by Ground Two of the appeal, cannot possibly affect the sentence imposed, does not, in this case, relieve the Court of the requirement to re-sentence. This Court must determine, in relation to the sentence that was imposed, i.e. the aggregate sentence, whether any other sentence is warranted in law. The mere fact that one ground of appeal discloses error that could not affect the sentence imposed does not assist, when other errors, identifiable or manifest, require the Court to re-sentence.
Nevertheless, I reiterate that I agree with his Honour's comments that an error of the kind described in Ground Two could not affect the sentence and would, if that were the only error, allow the Court either to deny leave or to come to the view that no lesser sentence is warranted, without embarking upon the entire re-sentencing task. My preference, in those circumstances, would be to deny leave to appeal on that ground, but that would have no practical effect in these proceedings. [27]
It is for the foregoing reasons, as expanded, that it is not only appropriate, but necessary, for the Court to embark upon a consideration of the ground of manifest excess. It may well be that, on further appeal, the view expressed in Elsaj [28] is disapproved. That statement of the possible is not intended to reflect a view as to the correctness of Elsaj, different from that already expressed in the consideration of Ground One.
Ultimately, error has been disclosed, which on one ground affects the sentence imposed and, on another, may have affected the sentence imposed. The Court, therefore, must undertake the re-sentencing discretion.
In all, I would fix an aggregate sentence of 5 years and 6 months' imprisonment, with a non-parole period of 2 years and 9 months.
I would propose that the Court make the following orders:
1. Leave to appeal granted;
2. Appeal allowed;
3. The sentence imposed on the Applicant by the District Court on 24 April 2019 be quashed and in lieu thereof the Court impose the following sentence:
1. An aggregate sentence of 5 years and 6 months' imprisonment commencing on 23 March 2019 and concluding on 22 September 2024, with a non-parole period of 2 years and 9 months concluding on 22 December 2021;
2. The Applicant will be first eligible for parole on 22 December 2021.
N ADAMS J: I have had the advantage of reading the draft judgment of Rothman J. I adopt the summary of the relevant facts and submissions set out therein. I respectfully agree with the orders proposed by his Honour for the following reasons.
In his concurring judgment Basten JA observed at [2] that:
"The error in specifying indicative sentences in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), while not determinative of the outcome of the appeal, caused confusion in this case and was apt to lead to a misreading of the outcome for other purposes." [Emphasis added.]
SHR v R was delivered on 9 April 2014. The decision of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell") was delivered on 9 October 2014, six months later. Contrary to the approach taken by the Court in SHR v R, it is no longer the case that an identified error can be dealt with by a finding that "no other sentence is warranted in law". What the High Court held in Kentwell in the often cited [42] of the judgment is as follows (footnotes omitted):
"…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… ."
It did not assist the Crown in this matter to rely upon a pre-Kentwell decision to indicate the approach this Court should take to the accepted error under this Ground.
At [41]-[43] of his Reasons, Rothman J explains, by way of arithmetical comparison, that it is possible that the error in Ground One may not have actually impacted on the sentence. With respect to his Honour, as Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 (with whom Hamill and Lonergan JJ agreed) at [11], since Kentwell, an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the "capacity to influence the sentence". In circumstances where applying the discount to the aggregate sentence rather than the indicative sentence has the capacity to influence the sentence, error has been established under this ground and the court is required to re-sentence the applicant.
At [76] of his Reasons, Rothman J refers to his Honour's earlier decision in PB v R [2016] NSWCCA 258, with whom Davies and Garling JJ agreed, as a basis for upholding this Ground. The grounds in that matter were that the sentencing judge erred in failing to engage in an assessment of the criminality of Counts 2-5 and in failing to indicate how some of the Form 1 offences were taken into account in arriving at the indicative sentences. A ground of manifest excess was also relied upon. At [5] of the judgment, the following is observed:
"During the course of the oral argument, it was pointed out that the indicative sentence in relation to Count 1 did not include an indicative non-parole period in circumstances where the offence had prescribed a standard non-parole period. Further, the indicative sentences, if applied consecutively, would give rise to a total sentence of 19½ years and his Honour fixed a total of 14 years with a non-parole period of 8 years. In other words there is "concurrency" amounting to some 5½ years, and no explanation or express reference to the principles of totality."
At [8] of his decision in PB v R, his Honour indicated that he was satisfied that the sentencing judge failed to make any assessment of the objective seriousness for each of the offences. At [9], his Honour noted that the sentencing judge failed to refer to the Form 1 offences for Count 1, failed to expressly refer to any Form 1 offences for the other relevant counts and failed to clearly express the manner in which the Form 1 offences were factored into the sentence to be imposed. At [10], his Honour observed that the Form 1 offences were, in some instances, more serious than the offence to which they were attached. His Honour then observed that if these were the only errors he would have refused leave to appeal. At [11], his Honour then referred to the failure to comply with s 54B(4) of the Sentencing Act and observed that "no attempt was made to amend the grounds of appeal". It was in that context that his Honour went on to observe at [12]-[13]:
"The failure to indicate a non-parole period is an error, although it is not an error that, in any sense, can affect the aggregate sentence imposed. It is from the aggregate sentence that the appeal lies (with leave). Further, the terms of s 54B(7) of the Crimes (Sentencing Procedure) Act make clear that the failure to indicate a non-parole period does not invalidate the sentence. That provision does not relieve a sentencing judge from the obligations imposed by the provision. Nor does it overcome error for the purpose of an appeal.
For the foregoing reasons, error has been disclosed. I have not dealt with manifest excess, but, given the existence of error, re-sentencing is necessary and the submission on manifest excess is overtaken and dealt with in that process."
Garling J wrote a concurring judgment in which he observed the following at [62]-[64]:
"In the course of a sentencing exercise of the kind undertaken here, there is a clear and compelling need for the sentencing Judge to consider, assess and set out his evaluation of the objective seriousness of the criminal conduct involved in the offences to which the applicant pleaded guilty. Unless he did so, it is impossible to understand how, if at all, the sentencing Judge took into account the statutory guidepost of the standard non-parole period. Nor is it possible to understand how the very serious offences included on the Form 1 schedules were given their proper attention and weight.
It is for that reason that I am satisfied that error has been demonstrated, and Ground 1 should be upheld.
I wish to make it plain that I do not intend by these remarks to indicate that error can be demonstrated by pointing to mere infelicities of expression, or an absence of an express reference to basic sentencing principles in short and succinct remarks on sentence, nor do I wish to discourage the entirely commendable practice of delivering sentence remarks either ex tempore or shortly after the conclusion of sentencing hearings. Having regard to the workload and sentencing burden placed on judges of the District Court, to impose such requirements would not be in the interests of justice. However, the complexities of this particular sentencing matter required an exposition of the matters to which I have earlier referred."
Davies J also wrote a short concurring judgment in which his Honour stated that he agreed with both Rothman and Garling JJ. In those circumstances it seems to me that the decision in PB v R is not one in which a ground of appeal was allowed on the basis that the non-parole period for an indicative sentence was not specified. There was not even a ground of appeal in those terms before the Court.
I have been unable to find any decision in which such a ground has been successful. On the contrary, this Court has held on a number of grounds that this is not an error warranting the intervention of this Court.
In Sutton v R [2016] NSWCCA 249, this court considered a sole ground of appeal, which was that the sentencing judge had misstated the relevant standard non-parole period. Although Gleeson JA (with whom Fagan J and I agreed) observed at [36] that the sentencing judge had failed to comply with s 54B(4) of the Sentencing Act, that was not the reason the ground was upheld. In Mundine v R [2017] NSWCCA 97 this court considered a ground of appeal that the sentencing judge had erred in allowing for excessive accumulation. In considering this ground, Adamson J (with whom Basten JA and Campbell J agreed) observed at [85]:
"I note that the sentencing judge did not indicate the non-parole period when recording the indicative sentence for the offence of reckless wounding, although there is a standard non-parole period for that offence. This omission does not invalidate the aggregate sentence: s 54B(7)."
In Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 the same error was identified but the Court observed at [5] that "there was no issue raised on the application about it." In GR v R [2018] NSWCCA 280 at [21] Schmidt J (with whom Payne JA and Fagan J agreeing) noted that under s 54B(7), that error did invalidate the sentence. In Johan v R [2019] NSWCCA 126 Payne JA (with whom Davies and Button JJ agreed) noted at [7] that a ground that the sentencing judge had failed to comply with s 54B(4) of the Sentencing Act was abandoned.
I am given further comfort in my conclusion that non-compliance with s 54B(4) of the Sentencing Act is not an error requiring the intervention of this Court by the following two matters.
First, at [42] of Kentwell, which I have extracted above at [7], the remaining part of the passage is in these terms:
"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."
It seems to me that the example provided by the High Court in Kentwell is similar to that complained of under this Ground.
Further, on 25 October 2016, s 45(1A) to the Crimes (Sentencing Procedure) Act 1999 (NSW) came into effect. It provides that:
"A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division."
If a sentencing court is not required to set a non-parole period for a standard non-parole offence, it is difficult to see why a failure to do so in relation to an indicative sentence could amount to an error warranting intervention by this court.
I would dismiss this Ground of Appeal.
Section 44 of the Crimes (Sentencing Procedure) Act.
The error may be one able to be corrected by the sentencing judge under s 43 of the Crimes (Sentencing Procedure) Act 1999.
[2017] NSWCCA 124.
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: 08 May 2020