Ingray v R

Court of Criminal Appeal (NSW)|2023-10-30|Before: Davies J, Cavanagh J, Sweeney J, Sweeney JJ

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought leave to appeal from an aggregate sentence of 11 years and 6 months with a non-parole period of 8 years imposed upon him in the District Court in respect of a total of 34 offences committed during the period November 2018 to February 2019. The offending was generally of a similar type in that the applicant and three co-offenders would steal motor vehicles and then drive to areas where they would target homes and businesses for the purposes of breaking into those homes and businesses and stealing goods. Some of the offending happened while persons were inside their homes. On four separate instances, the applicant attended a private residence and was observed or engaged in a confrontation with the victims. Two of the counts involved the applicant and two co-offenders using a stolen vehicle to follow two victims travelling in their own vehicle and the surrounding the victims whilst they were in their car. One of the co-offenders carried a metal bar and tried to gain entry to the vehicle while the victims were lodged between two other vehicles. When the victims fled, they were pursued by the applicant and his co-offenders. At the time of commission of the offences, the applicant was on parole, having only been released from custody on 16 October 2018. The applicant pursued three grounds of appeal, being: 1. the sentencing judge erred by finding that there was no evidence of remorse; 2. the sentencing judge erred by failing to have regard to the impact of COVID-19 on the applicant's conditions of custody; and 3. the sentence was manifestly excessive. Held, per Cavanagh J with Davies and Sweeney JJ agreeing, granting leave to appeal but dismissing the appeal: Ground 1 - Remorse The finding of the sentencing judge that the applicant had not demonstrated remorse was open to his Honour. The applicant did not give evidence on sentence and it is well established that a sentencing judge is entitled to exercise caution in assessing remorse: Cavanagh J at [39]; Imbornone v R [2017] NSWCCA 144 at [57]. It was not suggested that the sentencing judge overlooked critical evidence. It was open to his Honour not to accept that the applicant was contrite and remorseful when the applicant merely relied on untested statements made to a psychologist and a Corrective Services officer: Cavanagh J at [41] and [45]. Further, reliance on s 21A(3) of the Crimes (Sentencing Procedure Act) 1999 (NSW) did not assist the applicant. Satisfaction of s 21A(3)(i)(i) and (ii) did not mandate a finding of remorse but merely precluded a finding unless those subsections were satisfied: Cavanagh J at [49]. Ground 2 - The impact of Covid-19 Whilst the Court may have regard to the impact of the Covid-19 pandemic as part of the process of determining the appropriate sentence (Cavanagh J at [61]), in the circumstances of this matter, the sentencing judge did not err in having regard to the impact of Covid-19 (Cavanagh J at [62]-[63]). The applicant did not adduce any evidence in support of his submission that his conditions in custody were impacted by Covid-19 and there was no statement by the Crown to that effect (Cavanagh J at [63(2)]). Further, his Honour did have regard to the impact of Covid-19 in considering the difficulties arising from a lack of visits from the applicant's son. The sentencing judge found that the non-parole period was the minimum time which the applicant should spend in custody reflective of the total criminality involved. Ground 3 - Manifest excess The applicant submitted only that the non-parole period was manifestly excessive. The applicant was sentenced in respect of 34 offences, many of which were serious and many of which were in the mid-range or just below the mid-range. The non-parole period must be subject to the ultimate requirement that the minimum term in custody reflects the totality of the offending: Kirby v R [2021] NSWCCA 162 at [45]. The Court was not satisfied that the length of the non-parole period was such that it was manifestly excessive: Cavanagh J at [84].

JUDGMENT

DAVIES J: I agree with Cavanagh J.
CAVANAGH J: The applicant seeks leave to appeal from the sentence imposed upon him by Judge King SC in the District Court in respect of a total of 34 offences committed during the period November 2018 to February 2019.
The applicant was sentenced to an aggregate sentence of 11 years and 6 months with a non-parole period of 8 years.
Of the 34 offences the applicant had disputed only four. On 9 April 2021, the applicant was found guilty after a trial by jury in respect of four separate offences which occurred on 12 February 2019 in the company of three co-offenders. Those offences were aggravated break and enter and commit serious indictable offence; steal motor vehicle; and two charges of assault with intent to rob while armed with an offensive weapon under the Crimes Act 1900 (NSW).
Prior to the commencement of the trial, the applicant pleaded guilty to 20 further offences which were all said to have been committed between November 2018 and February 2019. There were a further 10 counts of similar charges dealt with on a Form 1 and a further four matters relating to driving whilst unlicensed on a s 166 certificate.
Annexed to this judgment is a table providing details of all of the offences involving the applicant, the findings as to objective seriousness and the indicative sentences imposed by the sentencing judge.
The applicant relies on three grounds of appeal being: 1. the sentencing judge erred by finding that there was no evidence of remorse; 2. the sentencing judge erred by failing to have regard to the impact of COVID-19 on the applicant's conditions of custody; and 3. the sentence was manifestly excessive.
The applicant does not challenge the findings as to objective seriousness or any findings of fact, except those that may relate to ground 1.
The applicant was sentenced on 27 January 2022. His Honour, the sentencing judge, also sentenced two of the co-offenders, Mr William Haines and Mr Aaron Brown. Mr Ty Simms and another related offender, Mr James Kavanagh, were sentenced separately by Norton SC DCJ on 30 September 2021 and Yehia SC DCJ (as her Honour then was) on 31 July 2020.
On sentence the applicant relied on: 1. a sentence assessment report dated 18 August 2021; 2. a psychological report of Dr Sidhu dated 4 August 2021; 3. an affidavit from his brother dated 17 August 2021; and 4. a custody management record dated 15 February 2019.
The applicant did not give evidence on sentence.
The applicant filed an affidavit dated 5 October 2023 which was received for the purposes of re-sentencing (if that arises).

Background

The offending involved the applicant acting in a series of joint criminal enterprises with one or more co-offenders, which involved planning and organisation. The applicant and his co offenders would travel in stolen vehicles late at night or early in the morning to places where they anticipated being able to locate targets for their offending. They would drive to an area and break into houses or business premises. They would use housebreaking implements, such as metal bars. Vehicles would be stolen for use in the related offending.
All of the offences involved residential or business premises and were committed in company. Many of the offences were aggravated.
Counts 10, 11, 18 and 28 involved the applicant attending a private residence where he was either observed by or engaged in a confrontation with victims. Further, in respect of many of the counts, people were in their homes during the offending conduct.
The conduct constituting counts 9 and 10 involved the applicant and two co-offenders using stolen vehicles to follow two victims travelling in their own vehicle. When the victims arrived at their business premises, the applicant and his co-offenders parked the two stolen vehicles in front and behind the victims' vehicle to prevent them from leaving. Whilst the female victim called triple 0 and the male victim locked the car, one of the co-offenders carrying a metal bar tried to gain entry to the vehicle. The victims were able to escape by nudging the vehicle out of the way. Even as they fled, they were pursued by the applicant and his co-offenders.
The sentencing judge accepted that the applicant acted jointly with one or more of the other four co-offenders in respect of each offence. Indeed, out of all the co-offenders, the applicant was sentenced for the highest number of offences.
All of the offences were committed whilst the offender was on conditional liberty. He was only released on parole on 16 October 2018. He began to re-offend on 29 November 2018.
Although the applicant was involved in more offences than any of his co-offenders, the sentencing judge did not find that he was the ringleader. Indeed, his Honour accepted that each of the matters should be regarded as a series of separate joint criminal enterprises with equal criminality between those participating on each occasion.
The findings on objective seriousness are set out in the attached table, Appendix 1 Ingray v R - Appendix (368214, pdf). To the extent that his Honour specified a point in the range in respect of each offence, all of the offending was described as between mid-range down to low-range. There were a number of mid-range offences. There is no challenge to his Honour's findings on objective seriousness.

The applicant

Although the applicant was only 24 at the time of the sentence, he already had an extensive criminal history and he had only been released from prison a month earlier. He had been before the court on many occasions as a juvenile and as an adult in respect of similar types of offending.
His Honour referred to the offender's traumatic childhood. The applicant said that he grew up impoverished and was often hungry. He grew up in the housing commission community where he said that crime, deprivation and violence were ever-present. By the age of nine he had developed a negative attitude toward police. By the age of 11 he had begun to fight at school and his rate of attendance had dropped. He was sent to live with his uncle. He stayed there for a year before returning to live with his mother.
His mother died when he was 12. This had a substantial effect on him. He says this caused the collapse of his family unit as his father was a recluse. Whilst in juvenile detention, around the age of 13, he was subjected to an incident of sexual abuse. He began to use Xanax and Methylenedioxymethamphetamine, or "ecstasy". He said that he and one of his brothers went off the rails completely, smoking cannabis, stealing cars and being arrested for various offences.
By the age of 16 he had graduated to more serious offending, such as aggravated break and enter, common assault, assault occasioning actual bodily harm, damage property and robbery in company. He completed Year 10 in custody.
He has only spent nine months in the community since his 18th birthday. He has never worked in the community.
He said his offending was directly related to the need to make money quickly to support his drug addiction. He said he was under the influence of drugs when he committed the offences for which he accepted his guilt.
His son was born on 12 August 2019 whilst he was in custody. He said that he hoped to gain custody of his son in due course and hoped to have a strong relationship with his son.
His Honour assessed the prospects of re-offending as high to medium-high and did not accept that there were good prospects of rehabilitation, finding that the prospects must be considered "guarded".
His Honour went on to find that there were significant differences between the applicant and some of the co-offenders, particularly Mr Kavanagh and Mr Simms. Further, his Honour observed the lack of commonality between the ways in which the matters were placed before the Court in respect of each offence.
His Honour did not accept that the applicant had demonstrated remorse, suggesting he was simply "mouthing a platitude that he anticipated might derive some benefit on sentence". Indeed, his Honour made the same observation in respect of all of the co-offenders. His Honour stated: "On the material before me, although there has been some statement of recognition by offenders as to the impact that their offending has on other persons, recognition of that impact on the victims is not necessarily indicative of being remorseful or contrite, it is simply an acknowledgment of the obvious, that the victims of offences such as this suffer consequences beyond simply the financial, although the extent of the financial impact varies, and they are also emotionally impacted."
His Honour went on to note that the applicant did not give evidence on sentence which made it difficult for the Court to appreciate whether he was, in fact, contrite or remorseful and, further, that pleas of guilty were not, in the circumstances his Honour outlined, a sign of remorse or contrition.
His Honour accepted that the commission of the offences whilst on parole was a significant aggravating feature.

Ground 1 - Remorse

The applicant does not challenge his Honour's finding in respect of the four counts which proceeded to trial but says that his Honour should have found remorse in respect of the other offending.
The applicant relies on s 21A(3)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW) ("CSP Act"), contending that the sentencing judge erred in finding that there was no evidence of remorse in respect of the offences to which the applicant pleaded guilty.
The applicant submits that his remarks to Dr Sidhu, psychologist, and Ms Smith, the author of the sentencing assessment report, provide cogent evidence of "genuine regret" over and above his pleas of guilty and should have been understood within the context of the applicant's profoundly disadvantaged upbringing: see Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93 at [41] per Brereton JA (N Adams and Lonergan JJ agreeing).
Further, the applicant submits that his reflection that the victims' experience would have been frightening is an acknowledgement that he has caused injury, loss or damage by virtue of his actions and demonstrates degree of insight into the impact of his offending.
Finally, in relation to his Honour's finding that the applicant was "simply mouthing a platitude that he anticipate[s] might derive him some benefit on sentence", the applicant submits that such a finding failed to contextualise the comments made against the backdrop of his longstanding addiction issues and consequential cycle of recidivism. I take this submission to mean that the sentencing judge should have considered the applicant's words in the context of his disadvantaged background in the sense that his words may be less sophisticated or more limited but still should have been accepted as a genuine reflection of his remorse.
I do not accept that error has been shown for a number of reasons.
Firstly, in circumstances in which an offender chooses not to give evidence on the sentencing hearing, it is well-established that a sentencing judge is entitled to exercise caution in assessing remorse.
In Imbornone v R [2017] NSWCCA 144 ("Imbornone") the Court (per Wilson J at [57], with whom Hoeben CJ at CL and R A Hulme J agreed), summarised the principles in respect of statements made to third parties about remorse, as follows: "[57] This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: (1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58]-[59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. (5) Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, 'to treat this evidence with anything but scepticism represents a triumph of hope over experience': R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44]."
Those principles are particularly apt in this matter as the applicant sought to rely on untested statements made to a psychologist and a Corrective Services officer which were neither direct nor specific and were said to provide the foundation for a finding of remorse. His Honour observed (correctly) that as the applicant did not give evidence on sentence, it was difficult to appreciate whether he was contrite and remorseful.
Secondly, it is not suggested that the sentencing judge overlooked critical evidence or that his Honour misapplied principle. The challenge by the applicant is really that his Honour took a mistaken view of the evidence.
This Court's power to intervene depends on an acceptance or error, either of a specific type as referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 ("House") or of a different type, such as manifest excess: see Finnigan v R [2022] NSWCCA 181 at [41].
The question which arises is thus whether the finding was open on the material before the sentencing judge: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131] per Beech-Jones CJ at CL (as his Honour then was), N Adams and Cavanagh JJ agreeing; Azzopardi v R [2019] NSWCCA 306 at [36]-[39].
In my view, the applicant has not established that the finding on remorse was not open on the material. His Honour considered the evidence which might be suggestive of remorse on the part of the applicant and made findings about it. For example, his Honour did not accept what was referred to in the report of Dr Sidhu as being a sign of remorse, but rather considered it a "common sense acknowledgement of the impact of the offending".
Further, his Honour expressed doubt at some of the statements said to have been made by the applicant to the psychologist. For example, his Honour did not accept the suggestion that the applicant had made the decision to break into properties late at night to avoid confrontation with victims, observing that breaking into residential premises at night is always likely to be in such circumstances where confrontation may occur.
I also do not accept that reference to s 21A(3) of the CSP Act assists the applicant. Section 21A(3) lists the mitigating factors that must be taken into account in determining the appropriate sentence for an offence, which includes: (i) the remorse shown by the offender for the offence, but only if - (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
The applicant did not direct his Honour to any part of s 21A(3)(i) during the sentencing hearing. Further, if the applicant was intending to submit that satisfaction of s 21A(3)(i)(i) and (ii) necessarily leads to a finding of remorse, I disagree.
Sections 23A(3)(i)(i) and (ii) limit the circumstances in which the Court may find remorse, but they are not definitional in their terms. The words "but only if" operate to preclude a finding of remorse unless those subsections are satisfied but do not operate to mandate a finding of remorse. It does not follow that a finding of remorse must be made if those subsections are satisfied.
In my view, the findings on remorse were open to the sentencing judge and ground 1 has not been made out.

Ground 2 - The impact of COVID-19

Although neither the applicant nor the Crown referred to the impact of COVID-19 during their oral addresses, paragraph 46 of the applicant's written submissions on sentence included the following: "Mr Ingray is in custody at a time that the community is attempting to manage the risks posed by the COVID-19 pandemic. This has led to the cessation of family visits and he has had just two in-person visits with his young son. COVID-19 has been detected in custodial environments including recently (ABC News, Sydney News: Silverwater Jail Inmates Test Positive to COVID ABC News (online, 17 August 2021)). The Australian Government recognises prisons as high-risk settings for COVID-19 (Department of Health (Cth), 'COVID-19 - Frequently Asked Questions', webpage 11 August 2021). The more onerous conditions and anxiety about the pandemic can be taken into consideration on sentence".
The sentencing judge did not address any COVID-19 factors except as follows: "I note Raymond Ingray indicates that he has been managing to place Xavier and the offender in daily contact while the offender has been in custody and has observed that the offender has endeavoured to encourage positive outcomes for his son. Of course, as is common currently in custody, face-to face visits in the time of COVID are relatively rare if they occur at all."
The applicant contends that, despite the sentencing judge's reference to COVID-19 in this passage, his Honour erred in not having regard to the impact of COVID-19 on the applicant's condition in custody.
The applicant relied on the Crown submissions on sentence on behalf of a co-offender, Mr Simms as follows: "It has not been established that the offender is at greater risk of contracting Covid-19 by reason of being in custody. The Crown accept that the ongoing pandemic has resulted in additional restrictions within gaols which may make custody more onerous."
The applicant submits that the written submissions in Mr Simms' case formed part of the material put before his Honour for the purposes of sentencing the applicant and his Honour should have had regard to them, albeit he was not directed to that material on sentence.
The applicant sought to rely on the reduction in the statutory ratio in Mr Simms' case to 50%, coupled with the concession by the Crown in that case as to the impact of COVID-19, as exemplifying the failure of the sentencing judge to pay proper regard to the COVID-19 pandemic in this matter.
The applicant's ultimate submission under ground 2 was that the sentencing judge erred in not adjusting the statutory ratio to a greater degree so that the applicant would spend a longer time on parole.
The Crown submits that no error has been demonstrated, suggesting that the evidence as to the impact of the COVID-19 pandemic on the applicant was limited and his Honour addressed that evidence when referring to the rarity of face-to-face visits in the time of COVID-19.
A finding of special circumstances is a discretionary finding of fact: R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25 at [105] per Howie J (Hodgson JA and Grove J agreeing). The same principles apply to this ground as apply to ground 1.
Further, whether a sentencing judge has had regard to a relevant factor on sentence must be considered having regard to the sentencing judgment as a whole: Miller v R [2023] NSWCCA 267 at [24] per Kirk JA (Rothman and N Adams JJ agreeing).
It is well established that the Court may have regard to the impact of the pandemic as part of the process of determining the appropriate sentence and, in particular, in considering whether special circumstances exist to justify a longer period on parole: Scott v R [2020] NSWCCA 81; McKinnon v R [2020] NSWCCA 106 at [32].
However, the issue on this appeal is not whether the COVID-19 factors are matters that might be taken into account on sentence, but whether the sentencing judge erred in not having regard to them in assessing the applicant's sentence.
In my view, there are three principal difficulties for the applicant in establishing error under this ground being: 1. the sentencing judge did refer to the impact of COVID-19, at least as far as its impact on visits with the applicant's two-year-old son and the effect of that. This must be taken to be a direct response to the written submission made by the applicant (first part of paragraph [45] of applicant's submissions on sentence); 2. the applicant did not adduce any evidence in support of the general submission - that is, the last sentence of paragraph [45]. As was stated in Wass v R [2022] NSWCCA 143 at [69]-[71] per Wilson J, Beech-Jones CJ at CL (as his Honour then was) and Dhanji J agreeing, an offender seeking an amelioration of a custodial sentence should adduce evidence to assist in the consideration of the impact of the pandemic on the offender in custody. In this matter, the applicant adduced no evidence of the general effect of the pandemic. Nor did the applicant adduce any evidence of the specific effect on him, other than a reduction in visits by his son (to which his Honour referred); and 3. there is no parity appeal.
Further, whilst it may be that, in comparison with the co-offender, Mr Simms, the adjustment of the statutory ratio was slight, the sentencing judge identified a reason for fixing the applicant's non-parole period as follows: "The non-parole period of eight years is, in my view, the minimum period of time that Mr Ingray should be required to serve in the circumstances of the significant level of offending demonstrated by his raft of mostly serious offences."
In Thach v R [2018] NSWCCA 252 ("Thach") at [42]-[43], Davies J (Bathurst CJ and R A Hulme J agreeing) considered the constraints upon the reduction of the statutory ratio as follows: "[42] It is not appropriate to fix a non-parole period primarily from the perspective of the length of the period of supervision on parole, or primarily by reason of considerations of rehabilitation: Simpson at [55]-[59]. The correct perspective is reflected in the terms of s 44(1) of the Crimes (Sentencing Procedure) Act 1999 and the line of authority was summarised by this Court in R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 at [33]: [T]he Court in Simpson followed what had been said by the High Court in Power v R (1974) 131 CLR 623 at 627-629 to the effect that the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. (Emphasis included in original). [43] Accordingly, the discretion to find special circumstances is subject to 'the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence': Simpson at [63] per Spigelman CJ. This principle was restated in R v Lulham [2016] NSWCCA 287 at [55], where Bellew J held (Bathurst CJ, Beazley P, Hall and N Adams JJ agreeing) that a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender and provide specific and general deterrence, even if he or she is satisfied that there are special circumstances."
As his Honour said, any reduction in the non-parole period must reflect the criminality involved. The reduction in the statutory ratio cannot result in a sentence being imposed which is less than is necessary to serve the overall purposes of sentencing.
The sentencing judge must be taken to have had that principle in mind when fixing the non-parole period in this matter.
Further, I do not accept that his Honour erred in not having regard to the written submissions of the Crown in respect of the co-offender, Mr Simms. Those submissions were never brought to his Honour's attention.
Nor do I accept that error can be demonstrated by means of a comparative reference to the sentence imposed on Mr Simms. It may be that the sentencing judge in Mr Simms' matter considered that the impact of COVID-19 was most significant and that that resulted in a substantial reduction of the statutory ratio. However, there being no parity appeal, error is not shown by comparing the sentence imposed on Mr Simms with the sentence imposed on the applicant.
In my view, no error has been shown.

Ground 3 - Manifest excess

The relevant principles governing a complaint that a sentence is manifestly excessive were stated in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: "[59] As was said in Dinsdale v R, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that 'the sentence imposed in these matters is so far outside the range of sentences available that there must have been error'."
In Kirby v R [2021] NSWCCA 162, Beech-Jones J (as his Honour then was) (with Harrison and Cavanagh JJ agreeing), said at [45]: "[45] In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; 'JM') although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252] -[254]). The ultimate question will be 'whether [or not] the aggregate sentence reflects the totality of the criminality involved' (JM at [40])."
The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
The applicant acknowledges that a significant term of imprisonment was justified but submits that his age and subjective case, coupled with the characterisation of the majority of the offending as at or below the mid-range of objective seriousness, renders the sentence manifestly excessive. This was clarified during oral submissions to mean that the non-parole period was unjust.
During oral submissions the applicant focussed on the period on parole, observing that despite the finding of special circumstances, the sentencing judge only varied the statutory ratio by 5%. The applicant submitted that the 5% adjustment fails to adequately recognise the importance of the applicant having the opportunity to address his drug problem, as a cornerstone of his rehabilitation, and to address his institutionalisation, which commenced when he was a juvenile.
The applicant also submitted that the approach of Norton SC DCJ in Mr Simms' case was instructive, although the applicant confirmed that this was not raised as a parity argument. The applicant relies on the sentence of Mr Simms to demonstrate that the adjustment of the statutory ratio was inadequate.
A finding of manifest excess is a conclusion. It may be made in circumstances in which no specific error is identified but the sentence is so far outside the range that some error must be implicit.
An appeal based on manifest excess may lie in respect of the fixing of the non-parole period as the non-parole period is a part of the sentence.
However, it is important to bear in mind that, as was indicated by the sentencing judge in this matter, the setting of a non-parole period is always subject to the principle that the non-parole period must reflect the minimum period which the applicant should spend in custody so as to be reflective of the total criminality involved.
I have already canvassed this issue under ground 2. It seems particularly important in considering ground 3 because the applicant was sentenced for a large number of offences, many of which were serious in nature. Further, although the offending is similar in nature and occurred over a less than four-month period and many of the offences are quite distinct and separate. Indeed, the applicant engaged in his criminal conduct on 17 separate days during that period.
An appeal does not lie from the indicative sentence, but a consideration of the indicative sentences can sometimes be instructive. Again, that is the position in this case. For example, there may be reasons why the ratio was varied to a more significant extent in Simms', as is evident from his Honour's consideration of the impact of COVID-19.
The sentencing judge's determination of the non-parole period is reflective of his assessment of the minimum period which the applicant should be required to spend in custody to reflect his level of criminality.
The applicant was sentenced in respect of 34 sentences, many of which were serious and many of which were in the mid-range, or just below the mid-range. Any non-parole period must be subject to the ultimate required that the minimum term in custody reflects the totality of the offending: see Kirby v R at [45].
It might be said that the sentence is severe, but I am unable to be satisfied that the length of the non-parole period is such that it is manifestly excessive.
For the reasons that I have set out, ground 3 is not established.
The applicant requires an extension of time to seek leave to appeal. The Crown does not oppose the extension of time. I am satisfied that the extension of time should be granted having regard to the circumstance of the matter, the matters raised on appeal and the explanation for the delay.
I would propose the following orders: 1. An extension of time to seek leave to appeal is granted. 2. Leave to appeal is granted. 3. The appeal is dismissed.
SWEENEY J: I agree with Cavanagh J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2023

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