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[2010] NSWCCA 162
Court of Criminal Appeal (NSW)
2010-05-27
Simpson J, Fullerton J, Clellan CJ
Original judgment source is linked above.
The applicant's subjective circumstances 14 A report from Mr Taylor, clinical psychologist, was tendered which contained a detailed history of the applicant's family circumstances, his history of drug use and his educational and vocational status. The applicant and his mother gave evidence confirming the accuracy of that history. 15 His Honour noted that the applicant was raised in Aboriginal communities in western New South Wales and that he started to use alcohol and drugs at age 12 after leaving the family home when his mother commenced a relationship with his step-father. The relationship between the applicant and his step-father was fractious which culminated in the applicant being subjected to regular physical abuse. His mother gave evidence that she was unaware for some years that it was abuse from her then partner that caused her son to leave home since her work with various community-based projects for the disabled and the elderly took her away from the home for extended periods. It would appear that the applicant was not subject to any, or any adequate, adult supervision from his early teens. 16 He left school at age 13. Mr Taylor noted he is currently virtually illiterate. He worked in various unskilled labouring positions for short periods of time from age 13. His last paid employment was at age 17 when he was employed mowing lawns. He told Mr Taylor that after he came to Redfern in his teens, his drug use and criminal activities escalated, to both feed his heroin and amphetamine addiction and to support his lifestyle on the streets. 17 The applicant's record reveals that he first came to the attention of the Juvenile Justice Service at age 16 when he was convicted of a number of break and enter offences, and that he was repeatedly before the Children's Court thereafter for offences of the same or a similar kind. His Honour noted that the applicant was first sentenced to imprisonment at age 17 and that he has served successive periods of imprisonment since that time for a range of offences involving breaking into and/or entering premises with intent to steal, and robbery. His record, both in New South Wales and the Northern Territory, also includes offences of violence and a raft of driving offences. His Honour noted that the applicant had spent a total of 7 years in custody at the date of sentence. He was at that time aged 27. 18 The applicant's record revealed that as at the date of the first offence for which he was to be sentenced (namely the Glenbrook offence in August 2005) he had been on parole for a period of just over six months, following the expiration of a non-parole period in January 2005 imposed in the District Court in July 2004 for multiple offences including break, enter and steal and robbery. His release on parole coincided with the expiration of a fixed term of imprisonment for 12 months for an offence of break, enter and steal imposed in March 2004. 19 The link between the applicant's past offending and his drug use, and the offending for which he was sentenced and his drug use, was not in issue. His mother gave evidence that after the applicant was released to parole in January 2005 he lived with her at which time she observed him to make concerted efforts to find work and remain drug free. She said that the applicant became increasingly frustrated with his lack of success, which she understood to be directly related to his lack of education and his lack of trade skills, and that thereafter he drifted back into drug use and she again lost contact with him. 20 His Honour accepted that the applicant's remorse and shame was genuine, and that he was apparently committed to remaining drug free on his release with the support of his mother and his partner and young family. He remained unpersuaded, however, that the applicant's subjective circumstances ameliorated the serious criminality reflected in the offences committed over a twelve month period, particularly where most of the victims were elderly and where in some cases the offences were committed in the victims' homes. That said, after noting Mr Taylor's view that there was a moderate to high risk of the applicant reoffending, his Honour said: "Nevertheless, when it comes to sentencing, I have altered the time that the legislature requires me to for the periods of parole and non parole and I find there are special circumstances." 21 His Honour does not make clear the basis for finding special circumstances, either in his sentencing remarks or elsewhere in the transcript of the proceedings on sentence. The appeal
22 On the appeal the applicant did not challenge the sentences imposed on any of the individual counts. Neither was it submitted that the fact or degree of accumulation reflected error per se. The error said to justify intervention by this Court was his Honour's failure to vary the statutory ratio between the aggregate non-parole period and the balance of term so as to give full effect to his finding of special circumstances. It was submitted that no purpose is served by a finding of special circumstances and an alteration to the statutory ratio on individual counts, where the ratio after accumulation is disturbed by a measure of only six weeks, as is the case here, and that where that occurs error is implicit. Authority for that proposition was said to source from a number of cases, including R v SJD [2004] NSWCCA 182, where the sentencing judge found special circumstances but reduced the aggregate non-parole period by only six weeks and which this Court was satisfied constituted error. A similar approach was adopted in R v LWP [2003] NSWCCA 215 and applied in R v Street [2005] NSWCCA 139. 23 The applicant further submitted that when the matter was raised with the sentencing judge after sentence had been pronounced, the error in failing to provide for an effectively longer period on parole was compounded by a failure, even at that time, to clearly articulate the reasons for finding special circumstances, and by a failure to appreciate that there was a need to effectively translate the finding of special circumstances into a sentence consistent with the need for the applicant to have an extended period of supervision on parole. The need for supervision beyond the 2 years and 6 months his Honour provided for was said to be necessary in this case to address the fact that the applicant either was institutionalised, or at risk of becoming institutionalised. It was also submitted that extended supervision on parole would improve his prospects of sustained rehabilitation from drug use and provide for his reintegration in family and social life at the expiration of what will be, in any event, a lengthy period in custody. 24 Authority for the proposition that a risk of institutionalisation is a basis for a finding of special circumstances emerges from a number of judgments of this Court. This much is clear from the list of authorities Ms Francis of counsel provided after the Court reserved its decision (R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] - [67]; R v Hooper [2004] NSWCCA 10 at [62] - [63]; R v Dorsett [2002] NSWCCA 326 at [10] - [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39). 25 I note that in R v Lemene, in re-sentencing an offender for a large number of offences of robbery to correct an error in the application of the principles in Pearce v R [1998] HCA 57; 194 CLR 610, Simpson J found that after accumulating a number of fixed and concurrent terms, a sentence for robbery whilst armed with an offensive weapon (where 32 matters on the Form 1, including ten counts of robbery in company, were to be taken into account) would be imposed in accordance with her Honour's finding of special circumstances. This was a finding in contrast to the finding by the sentencing judge that there were no special circumstances. It was also a finding her Honour made despite the fact that the offences were committed whilst the offender was on parole. The adjustment in the statutory ratio was made in that case expressly to assist in the rehabilitation of the offender who had spent little time out of an institution over the course of his adult life having suffered social, educational, psychological and occupational disadvantages in his youth. Her honour's approach, however, underscores the fact that a risk of institutionalisation, even in the face of entrenched recidivism and serious reoffending, is a factor a sentencing court may regard as a sufficiently special circumstance to warrant an adjustment to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act. 26 The Crown did not submit that a risk of institutionalisation could not amount to special circumstances in an appropriate case, or that there was no such risk established on the evidence in this case, despite the fact that his Honour made no specific reference to it and did not cite it as a basis upon which he found special circumstances. What the Crown submitted was that on a proper reading of his Honour's sentencing remarks, and the exchange with the legal representatives after sentence was pronounced, he intended that the applicant serve seven years in custody before being considered eligible for release to parole and that he structured the sentence to achieve that outcome. It was submitted by the Crown that his Honour made it clear in his exchange with the legal representatives that he had given effect to his finding of special circumstances (although he at no time made clear the basis for such a finding) when he adjusted the statutory ratio between the non-parole period and balance of term in respect of the Glenbrook and Doonside offences, and that it was only after partially accumulating the fixed terms on the other three counts, and arriving at an effective sentence that reflected the overall gravity of the offending, that the relationship between the non-parole period and the balance of term was close to the statutory ratio. 27 The Crown submitted that this case was quite unlike the situation in R v Street where at [39] Hoeben J was satisfied that the sentencing judge had simply overlooked the effect of partial accumulation in giving effect to a finding of special circumstances, or the situation in R v LWP where the sentencing discretion was found to have miscarried by the failure to reduce the aggregate non-parole period after an express finding of special circumstances, when there was a clear implication from the sentencing remarks that an adjustment in the statutory ratio should be the result. 28 The Crown also submitted that in each of the cases to which the applicant referred, the offender's subjective case was relevantly different from this applicant, in that he is a repeat offender with a lengthy criminal history who had little to commend him to the sentencing judge as a candidate for extended supervision on parole, particularly in circumstances where the course of offending for which he was sentenced was committed whilst he was on extended parole for offences of the same or similar kind. Has error been established? 29 The question remains whether error has been made out in this case where his Honour varied the statutory ratio when sentencing for the Glenbrook and Doonside offences, having found special circumstances, but did not maintain the variation in the ratio to any effective degree after accumulation.
30 It seems clear that his Honour determined that a non-parole period of 7 years (and nothing less) was warranted in all the circumstances. That said, I am not persuaded that simply because his Honour observed in his exchange with the lawyers after sentence that were he to have strictly applied s 44 of the Crimes (Sentencing Procedure) Act to the aggregate sentence, a non-parole period of 7 years 1 month and 15 days would have been imposed, that he intended to provide for an extension of the period on parole by only six weeks. From the fact that these precise calculations were only cited by his Honour after the issue had been drawn to his attention by the applicant's legal representative (and after an adjournment when he advised the parties that he had "looked at the figures"), it appears that he had not turned his mind to the question whether the aggregate sentence should also reflect his finding of special circumstances. In the absence of any indication to the contrary, the open inference is that after partially accumulating the sentence for the Doonside offence as the longest sentence his Honour simply "rounded up" the non-parole period and balance of term. There is no criticism in that approach. It is often both practical and sensible to impose the longest sentence after the imposition of fixed terms for objectively less serious offences so as to arrive at a minimum period of imprisonment before an offender is considered eligible for release to parole. The error in this case is not that his Honour failed to make sufficiently clear the basis upon which he found special circumstances as mandated by s 44(2) of the Crimes (Sentencing Procedure) Act, the error is in his failure to give full effect to his finding of special circumstances after the individual sentences were accumulated.
Does the error attract a re-sentence? 31 The Crown submitted that even were there error in the way his Honour dealt with the issue of special circumstances, this Court should not intervene and reduce the aggregate non-parole period relative to the aggregate sentence where the applicant does not challenge the individual sentences or the degree of accumulation, and where the Court would not be satisfied that a non-parole period less than 7 years is warranted.
32 In R v LWP, a case involving a series of serious sexual assaults against the offender's daughter and niece, the Chief Justice dealt with a similar submission to that advanced by the Crown on this appeal by considering whether the effective non-parole period, imposed at first instance, was at the bottom of the range after a balancing of all relevant considerations. In considering that question, and resolving ultimately to the view that a lesser sentence on one of the offences was warranted within the meaning of s 6(3) of the Criminal Appeal Act 1912 in light of the sentencing judge finding special circumstances, his Honour had the assistance of clearly articulated reasons from the sentencing judge as to why special circumstances were present, namely, in that case, the combined effect of the offender's advanced age at the time of his eventual release, his poor state of health and the conditions of his custody. In this case, as I have already observed, there is a paucity of clearly articulated reasons from the sentencing judge as to why special circumstances were found. 33 For my part, and in accordance with s 6(3) of the Criminal Appeal Act, I am satisfied that some other sentence should be imposed in light of what I regard as an available finding of special circumstances, principally by reason of the applicant being at risk of further institutionalisation. I also take into account the fact that he does have established family support and an expressed determination to remain drug free on his release. I am persuaded that in these circumstances the effective sentence should allow for the period on parole to be extended beyond the statutory ratio, and for a period longer than the six weeks his Honour provided for. In this way the applicant can be afforded the opportunity to benefit from an extended period of supervision in the community at the expiration of his non-parole period. 34 I am satisfied that the resulting effective non-parole period of 6 years and 6 months remains an appropriate reflection of the applicant's very serious and repeated offending. 35 The orders I propose are: 1. Leave to appeal against sentence is granted. 2. Sentences imposed on the Kirribilli (CAN H29495712/3), Kings Park (CAN H28259554/2), Redfern (CAN H28630909/1) and Glenbrook (CAN H25170917/2) offences are affirmed. 3. The sentence for the Doonside offence (CAN H28032523/13) is quashed and in lieu thereof a sentence is imposed comprising a non-parole period of 4 years and 6 months to commence on 26 September 2008 and to expire on 25 March 2013 with a balance of term of 3 years to expire on 25 March 2016. 4. The effective sentence is a non-parole period of 6 years and 6 months commencing on 26 September 2006 and expiring on 25 March 2013 with a balance of term of 3 years to expire on 25 March 2016. **********
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Jackson
R
Pearce v R [1998] HCA 57; 194 CLR 610 R v Dorsett [2002] NSWCCA 326 R v Gordon [2004] NSWCCA 45 R v Hooper [2004] NSWCCA 10 R v LWP [2003] NSWCCA 215 CASES CITED : R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 R v Nykolyn [1999] NSWCCA 39 R v SJD [2004] NSWCCA 182 R v Street [2005] NSWCCA 139 R v Taufua [2001] NSWCCA 411 Watts v R [2007] NSWCCA 153