[2005] NSWCCA 455
Elias v The Queen (2013) 248 CLR 483
[1936] HCA 40
JM v R (2014) 246 A Crim R 528
[2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601
Source
Original judgment source is linked above.
Catchwords
[2018] HCA 32
Douar v R (2005) 159 A Crim R 154[2005] NSWCCA 455
Elias v The Queen (2013) 248 CLR 483[1936] HCA 40
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Kilic v The Queen (2016) 259 CLR 256[2016] HCA 48
Lehn v R (2016) 93 NSWLR 205[2016] NSWCCA 255
Majzoub v R [2019] NSWCCA 94
McIntyre v R (2009) 198 A Crim R 549[2009] NSWCCA 305
Mulato v R [2006] NSWCCA 282
Newman (A Pseudonym) v R [2019] NSWCCA 157
Ng v R (2011) 214 A Crim R 191[2011] NSWCCA 227
PG v R (2017) 268 A Crim R 61[2017] NSWCCA 179
Police v Te Pairi [2008] NSWLC 17
R v AB (2011) 59 MVR 356[2006] NSWCCA 242
R v Newell [2004] NSWCCA 183
R v Price [2016] NSWCCA 50
R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534
R v Speechley (2012) 221 A Crim R 175[2012] NSWCCA 130
R v Veatufunga [2007] NSWCCA 54
Simpson v R [2019] NSWCCA 137
Toole v R (2014) 247 A Crim R 272
Judgment (14 paragraphs)
[1]
The Applicant's Grounds of Appeal
The Applicant relies upon the following grounds of appeal:
1. Ground 1 - His Honour erred in not providing reasons for his findings as to the objective seriousness of each offence.
2. Ground 2 - His Honour erred, by taking into account an irrelevant consideration, in finding the Applicant to not be genuinely remorseful.
3. Ground 3 - His Honour erred, by failing to take into account a relevant consideration, in deciding when to commence the Applicant's sentence.
4. Ground 4 - His Honour erred, by failing to take into account a relevant consideration, in deciding whether to find special circumstances.
5. Ground 5 - His Honour erred in failing to afford the Applicant procedural fairness in respect of his decision to not find special circumstances.
6. Ground 6 - Not pressed.
7. Ground 7 - The aggregate sentence of imprisonment imposed on the Applicant is manifestly excessive.
At the hearing before this Court on 26 February 2020, the Applicant was granted leave to rely upon a further ground of appeal:
(h) Ground 8 - His Honour erred in finding that the driving which constituted the related offence of driving whilst disqualified occurred on the night of the Applicant's other offences.
[2]
Facts of Offences
A Statement of Agreed Facts, signed by the Applicant, was tendered in the District Court.
The Applicant is Released on Bail
The Applicant (then aged 30 years) was released from the Surry Hills Police Station at about 6.00 pm on 4 May 2018. The Applicant's criminal history indicated that he was charged that day with offences of possess identity information and goods in custody. He had been granted conditional bail that day in the Local Court with the conditions including a requirement that he not be seated in the driver's seat of a vehicle at any time for any purpose and a curfew condition that he not be absent from his Bankstown home between the hours of 9.00 pm and 6.00 am.
The Applicant has never held a driver's licence and, at the time of the present offences, was disqualified from driving until 2024.
After being released at Surry Hills, the Applicant contacted a young female friend (the victim) to ask for a lift. He knew the victim as they had been in an intimate relationship in the preceding months.
The Applicant Travels to See the Victim
The victim was not able to provide the Applicant with a lift so the Applicant travelled to meet the victim, who was at a friend's place in Merrylands. He arrived at about 10.00 pm.
The Applicant then drove with the victim in a Holden Commodore from Merrylands to Concord, the suburb where the victim resided. The victim did not want the Applicant to know the exact whereabouts of her home so she directed him to stop near her home and told him to wait in the car whilst she went to retrieve property belonging to him.
For reasons that are unexplained in the Agreed Statement of Facts, the victim returned to the car and the Applicant drove them both in the direction of the city so that he could meet a friend.
The Applicant and the Victim Argue
At around midnight, while en route and driving through Rockdale, the victim told the Applicant that she was getting tired. The Applicant was trying at that time to arrange for a hotel through a friend. Whilst they waited for confirmation of that arrangement, the victim continued to tell the Applicant that she wanted to go home to sleep. The Applicant argued with her and said he wanted to spend the night with her.
At 12.34 am on 5 May 2018, the victim booked a taxi on her mobile phone. The taxi arrived, however, the victim did not get into it as the Applicant agreed to drive her home instead. The Applicant then drove the victim back to Concord, but was arguing with her about why she would not go home with him.
They arrived in Concord and the victim told the Applicant she needed to sleep and that they would talk the next day. The Applicant responded that he would sleep in his car. The victim got out of the car and began walking up the street. The Applicant called out her name and asked her to talk in the car. She told him she did not want to and kept walking.
The Applicant drove the car in the victim's direction and then got out of the car. The two continued to argue on the street. The Applicant asked if they could spend the night together. The victim told him she wanted to go home to sleep and threatened to call the police.
The Victim Makes a "000" Call
The Applicant continued arguing with her so the victim called "000" on her mobile phone.
During the "000" call, the victim referred to the Applicant as her boyfriend and told the operator that he "is follow me - want to come back home sleeping. He won't let me go home". The Applicant's voice could be heard in the background of the "000" call.
The Applicant Forcibly Detains the Victim
The victim was giving her address to the operator when the Applicant took her phone and put his hand over her mouth. He then pushed her along the street towards his car. The victim could be heard screaming on the "000" recording.
The Applicant pushed the victim inside the back of the car behind the driver's seat. He locked the door and then got in to start the car. The Applicant swung his arm at the victim but did not connect with her as she was behind the driver's seat.
The Applicant drove off and threw the victim's phone out the car window, thereby breaking it (the damage property offence). Pieces of the phone were later found by police.
Residents living in the area heard an argument taking place outside on the street and someone calling for help, before a car "screeched" off. Part of the incident was captured on CCTV.
In the car, the victim asked the Applicant to stop and said that she was hurt but the Applicant continued to drive. The Agreed Statement of Facts records that the Applicant was angry and "saying stuff". The victim thought about jumping out of the car as she did not know what the Applicant wanted to do to her.
The Victim Leaps from the Moving Vehicle and Hides in a Nearby Property
When the victim saw there were no cars beside them, she jumped out of the car whilst it was still being driven by the Applicant. As a consequence of jumping out of the moving car, the victim sustained two large grazes to her left leg, a cut to her right foot, and grazes to her left elbow. These injuries constituted the actual bodily harm for the purpose of the offence of aggravated kidnapping.
The victim was too scared to try to outrun the Applicant so she climbed over the fence of a nearby house and hid in the backyard.
The Applicant Goes Looking for the Victim and the Victim is Assisted by Residents
Soon after, the residents of that house were both awoken by the doorbell ringing. The male occupant answered the front door and saw the Applicant on the porch. The Applicant said "mate, mate my girlfriend is in the back of your house" and "She's a meth addict. She's in your backyard". The male occupant thought the Applicant sounded demanding. The Applicant said "Open the gate mate". The male occupant replied "No. Go away. I'm calling police" and closed the door.
The occupants went to the back of their house and saw the victim in the pool area. She had no shoes on and had an injury to her knee. The female occupant of the house, who was a nurse, assisted the victim. The female occupant did not observe the victim to be affected by drugs.
Police Attend and the Victim is Taken to Hospital
The occupants of the house made a "000" call at around 1.32 am. Police and paramedics responded to the call. The victim was taken to Burwood Police Station and then to Concord Hospital for treatment for her injuries as she could not walk on her own.
At about 9.00 am that day, police spoke with the victim at the hospital and noticed that she was missing some pink false toenails (those, as well as her sandals, were later found where the Applicant had first grabbed her and forced her into the car). Police were informed that a man identifying himself as "Jim Beam" (clearly the Applicant) had called the hospital and had asked to speak to the victim, but was not allowed to do so.
The Applicant is Pulled Over by Police
At about 10.50 am on 5 May 2018, police were notified that the Applicant had arrived at Concord Hospital looking for the victim. Shortly afterwards, police pulled over the Applicant's car on Concord Road and arrested him.
Although the Applicant had been driving whilst disqualified on the evening of 4-5 May 2018, it was the Applicant's driving after 10.00 am on 5 May 2018 which constituted the charge of driving whilst disqualified to which he pleaded guilty and was to be sentenced. Regrettably, this aspect was not made clear in the Agreed Statement of Facts. However, the Court Attendance Notice for this offence specified the time of this offence as between 10.00 am and 11.00 am on 5 May 2018.
When the Applicant's car was pulled over, he had a passenger in his car. CCTV was later obtained which showed this passenger in the Concord Hospital's Emergency Department waiting area. The passenger provided a statement confirming that he attended the hospital with the Applicant and that they were there to see the Applicant's "missus".
The Applicant is Interviewed and Charged
Following the Applicant's arrest, he provided a version of events that he later adopted in an electronically recorded interview with police. He denied the victim's version of events, stating that she bit him on the finger and ran away and that she had fallen over someone's fence. He denied being at Concord Hospital on the morning in question.
The Applicant was charged with the present offences on 5 May 2018. He was refused bail and has remained in custody since that date.
[3]
The Applicant's Subjective Circumstances
The Applicant was born in December 1987 and was 30 years of age at the time of the offences.
As noted earlier, the Applicant has never held a driver's licence. His prior criminal history included convictions for driving whilst never having been licenced and fraudulently altering a driver's licence (2007 and 2009), driving whilst disqualified (2009, 2011, 2017 and 2018), stealing (2014), assault (2015) and possession of a prohibited drug (2017).
Prior to May 2018, the Applicant had not been sentenced to a term of full-time imprisonment. Sentencing orders had included a community service order (for driving whilst disqualified in 2009 and stealing in 2014) and an intensive correction order (for driving whilst disqualified in 2011). Other sentencing orders included fines and good behaviour bonds as well as periods of disqualification.
On 2 July 2018, the Applicant was sentenced in the Local Court to imprisonment for two months commencing on 3 May 2018 and concluding on 2 July 2018 for the offences of possession of identity information to commit an indictable offence and goods in custody, being the offences for which the Applicant had been released on bail on the evening of 4 May 2018.
A Sentencing Assessment Report dated 5 May 2019 was tendered at the District Court sentencing hearing. The author of that report noted the Applicant had been separated from his former wife for 18 months and that their six-year old son remained in her care. The Applicant informed the Community Corrections Officer that he had been unemployed for a period of two months prior to his arrest and that, before then, he had been subcontracting as a cabinet maker for various wardrobe companies in the Sydney metropolitan area.
The Applicant stated that upon release he would be returning to his previous employment. The Community Corrections Officer noted that the Applicant declined to provide "consent for Community Corrections to verify this information with his employer".
With respect to the offences, the Community Corrections Officer noted that the Applicant "appeared to accept responsibility for his actions" but that "despite this, he apportions some blame towards the victim". The Community Corrections Officer noted that the Applicant "has never thought about his consequences towards driving without a licence" and that he "recounted that transporting himself to work (or various other locations) is more important than community safety".
[4]
The Sentencing Hearing
The sentencing proceedings were heard at the Parramatta District Court on 6 February 2019. A number of documents and reports were tendered in the Crown and defence cases on sentence. In addition, the Applicant and his brother gave evidence.
Both the Crown and the solicitor for the Applicant relied upon written submissions with short oral submissions then being made. The sentencing Judge then proceeded to deliver ex tempore sentencing remarks on 6 February 2019.
Having regard to issues raised on the appeal, it is appropriate to refer to aspects of the sentencing hearing.
It was agreed between the parties that the Applicant had been in custody for a period of seven months and five days (2 July 2018 to 6 February 2019) solely referable to the present offences (T2, 6 February 2019). As noted earlier, the Applicant had served a sentence of two months' imprisonment from 3 May 2018 to 2 July 2018 for unrelated offences.
The Applicant gave evidence and, as noted earlier, he stated that what he had told Mr Fordyce was true and accurate with the Applicant acknowledging as well that the contents of the Sentencing Assessment Report were true and accurate (T4-5, 6 February 2019). The Applicant acknowledged that he had not acted appropriately towards the victim on the evening of 5 May 2018 and that he had acted in a similar way during his marriage when under the influence of drugs. The Applicant stated that he was prepared to undertake programs to assist his capacity to address domestic violence and drug abuse issues.
The Applicant confirmed that he would live with his mother at Busby when ultimately released from custody. It was noted that his mother was present in Court at that time.
The Applicant's solicitor then asked (T7-8, 6 February 2019):
"Q. Will you work when you get out of custody?
A. Yes.
Q. How do you know that--
A. My previous employer, my brother has spoken to him and he's agreed to take me back.
Q. Which brother spoke to him?
A. Hunza.
Q. Hunza, who is [in] Court today?
A. Yes.
Q. What's the name of the company that you would be working with?
A. Kitchen Land.
Q. That's a previous employer?
A. Yes.
BROCK: No further questions for this witness.
HIS HONOUR: What weight can I give to those last two questions and answers when in the sentencing assessment report it is said that your client 'declined to provide consent to community correction verifying certain information with his employer'? Why would I give any weight to what he said?
BROCK: Your Honour, I'll allow my client to--
HIS HONOUR: No, I'm asking you. Why would I give any weight to what he said, in that context, and also in relation to what he says is his relationship with his ex-wife when he refused community corrections to contact her?
BROCK: The only submissions I can make is that he has, in terms of employment, relied on his brother to assist him with his ex-employer.
HIS HONOUR: That's what he says. When the Crown and the Corrective Services have no opportunity to test it because he wouldn't let them approach him and he has a history of dishonesty."
[5]
Sentencing Remarks
Once again, having regard to the grounds of appeal, it is appropriate to refer to parts of his Honour's ex tempore sentencing remarks: R v Jibran [2019] NSWDC 317. After reciting the facts of the offences, his Honour said (at [28]-[32]):
"28 It is the placing of that young woman in that motor vehicle, and driving it in the way that you did, that constitutes the offence of aggravated kidnapping.
29 It is the destruction of her mobile phone, by throwing it out of the window, that constitutes the offence of damage property.
30 It is the driving of the motor vehicle on that night which constitutes the offence of driving whilst disqualified.
31 In terms of objective seriousness of the offences for offences of their kind: the kidnapping is slightly below a mid-range offence; the damage to property is towards but not at the bottom … of the range; and the disqualified driving is at the top of the range.
32 Each of these offences is additionally aggravated by the fact that you were on bail."
His Honour then referred to the psychological report and Sentencing Assessment Report (at [35]-[37]):
"35 Your subjective circumstances have been advanced through two documents: first, a psychologist's report dated 24 January 2019; and secondly, by a sentencing assessment report dated 5 February 2019.
36 To a large extent, the two documents have some degree of commonality. But there are two significant respects in which they are in conflict. In the psychologist's report, the impression given is that your relationship with your wife is one which you hope to be able to reconcile. However, when that issue was raised by the community corrections officer for the purpose of the sentencing assessment report, you refused consent to that officer contacting your ex‑wife - and therefore I discount what you told the psychologist.
37 In the psychologist's report some history is given of your work. It states that your previous employer (you worked as a cabinetmaker) would have work for you. You refused permission to the community corrections officers to check that asserted fact. I therefore discount what you told the psychologist."
The sentencing Judge then recited aspects of the Applicant's family history and his drug use and continued (at [41]-[45]):
"41 At the time that you committed the offence on this young woman, you had taken methylamphetamine. The concept of a man as big as you, out of control on ice, is a terrifying prospect.
42 You have not sought treatment for your extensive and prolonged use of illicit drugs. You have not sought assistance in relation to your anger issues. Indeed, in the expert's report tendered on your behalf, the psychologist concludes that you constitute a high risk of intimate‑partner violence as a result of your emotional coping and drug abuse issues.
43 You purported to express remorse in the witness box today. But as the author of that expert report himself noted, you reflected minimisation of the severity of the violence on that woman. I am not satisfied on the balance of probabilities that you are genuinely remorseful.
44 By reference to your own psychologist's report, as well as the sentencing assessment report, your prospects of rehabilitation are guarded at best.
45 This is not your first criminal offence. You have numerous offences of driving without a licence or whilst disqualified. You have one prior offence of violence. You have offences of dishonesty. You are not entitled to the leniency which, in appropriate circumstances, is extended to a first offender."
[6]
Ground 1 - His Honour Erred in not Providing Reasons for his Findings as to the Objective Seriousness of Each Offence
Applicant's Submissions
Mr Howell, counsel for the Applicant, noted that findings concerning the objective seriousness of the offences were confined to what was said by his Honour at ROS[31] (see [80] above). It was submitted that his Honour did not identify any of the factors which were taken into account in arriving at each of these conclusions concerning objective seriousness.
It was accepted that the characterisation of the degree of objective seriousness of an offence is a classic feature of the exercise of sentencing discretion which this Court will be slow to disturb: Mulato v R [2006] NSWCCA 282 at [37].
It was submitted, however, that this ground of appeal does not challenge the conclusions reached by the sentencing Judge, but the sufficiency of the reasons for those conclusions. Whilst acknowledging that a sentencing Judge is not expected to provide elaborate reasons for a conclusion about objective seriousness, it was submitted that the parties and this Court need to understand the basis for the conclusion reached: Simpson v R [2019] NSWCCA 137 at [32].
It was submitted that the findings were important to the sentencing process and that error had been demonstrated under this ground of appeal.
Crown Submissions
The Crown submitted that the reasons of the sentencing Judge made sufficiently clear factors which bore upon the objective seriousness of the offences. It was submitted that the sentencing Judge's recital of the facts shed light upon the aspects of the offences which led to the particular findings of objective seriousness made and not challenged by the Applicant.
The Crown acknowledged that the sentencing Judge was technically mistaken in believing that the driving whilst disqualified offence occurred when the Applicant was driving during the course of the aggravated kidnapping offence, rather than on the next day. That issue is the subject of a separate ground of appeal (Ground 8).
The Crown submitted that the Court should keep in mind that the sentencing judgment was delivered ex tempore when considering a ground of appeal which did not challenge the particular findings, but asserted an insufficiency of reasons with respect to the findings. The Crown submitted this ground of appeal had not been made out.
Decision
[7]
Ground 2 - His Honour Erred by Taking into Account an Irrelevant Consideration in Finding that the Applicant was not Genuinely Remorseful
Applicant's Submissions
Counsel for the Applicant accepted that it was a matter for the sentencing Judge to determine whether a finding should be made that the Applicant was remorseful.
Counsel noted that the Crown had acknowledged the Applicant's remorse in its written submissions in the District Court and had not cross-examined the Applicant concerning remorse at the sentencing hearing.
It was submitted for the Applicant that the sentencing Judge's finding concerning remorse (at ROS[43] at [82] above) disclosed error in that his Honour appeared to have treated the statement in Mr Fordyce's report concerning minimisation of the severity of violence as relating to the victim in this case, rather than the Applicant's former wife. Counsel for the Applicant emphasised that at no point in Mr Fordyce's report had it been suggested that the Applicant had minimised the severity of the violence directed towards the victim.
Mr Howell acknowledged that it was possible to read his Honour's observation as referring to the Applicant's former wife and not the victim, but he submitted that that was not the appropriate construction to be reached in the case.
Counsel submitted that the sentencing Judge had taken into account an irrelevant consideration in making the finding concerning remorse, as the foundation for the finding was based upon an aspect of the evidence unrelated to the present victim.
Crown Submissions
The Crown submitted that it was open to the sentencing Judge to make the relevant finding concerning the Applicant's remorse. In construing what his Honour meant at this part of the sentencing remarks, the Crown noted once again that these were ex tempore sentencing remarks so that some leeway should be allowed in that respect.
The Crown submitted that, when read in context, the challenged statement was no more than a passing observation that the Applicant's attitude to his past offending behaviour towards his former wife was consistent with his Honour's own finding concerning remorse in this case.
The Crown submitted that this ground of appeal should be rejected.
Decision
The onus lay upon the Applicant to satisfy the sentencing Judge, on the balance of probabilities, that he was genuinely remorseful for the subject offences: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
[8]
Ground 3 - His Honour Erred by Failing to Take Into Account a Relevant Consideration in Deciding When to Commence the Applicant's Sentence
Applicant's Submissions
The Applicant submitted that the sentencing Judge was wrong in stating (at ROS[52] at [85] above) that the Applicant had been in custody "for seven months and five days". As at 6 February 2019, he had been in custody since 5 May 2018 so that his period in custody was nine months.
It was submitted that the sentencing Judge did not have regard to the fact that the Applicant had been in custody on these matters since 5 May 2018 although he was serving sentences for other matters as well in the two-month period ending on 2 July 2018.
It was submitted, in the alternative, that if the sentencing Judge was aware of the entire period, he provided no reasons why the exercise of sentencing discretion resulted in commencement of the Applicant's aggregate sentence on 5 July 2018, being three days after his pre-existing sentences had expired.
Crown Submissions
The Crown submitted that his Honour had a clear understanding of the Applicant's custodial position since 5 May 2018 as a result of information contained in the Crown sentencing summary and a discussion with the legal representatives for the parties early in the sentencing hearing (see [66] above) and the Crown written submissions.
It was submitted that his Honour's clear intention was to backdate the sentence in such a way that the Applicant would receive credit for time spent in custody that was referable to these offences only.
The Crown acknowledged that his Honour had made a mistake, in the nature of an oversight or miscalculation, by directing that the sentence commence on 5 July 2018, rather than 2 July 2018 which was the correct date for the Applicant's custody solely referable to these offences.
The Crown submitted that such an error was of the type recognised in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, where this Court may make a discrete adjustment to the commencement date of the sentence without embarking upon a resentencing exercise as would be required in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Decision
The sentencing Judge was provided with clear information, both in writing and orally, concerning the Applicant's custodial position since 5 May 2018. It was stated that the sentences of imprisonment for unrelated matters expired on 2 July 2018.
[9]
Ground 4 - His Honour Erred by Failing to Take Into Account a Relevant Consideration in Deciding Whether to Find Special Circumstances
Applicant's Submissions
Counsel for the Applicant submitted that, as noted earlier (at [78]), a finding of special circumstances was sought in the District Court upon two bases:
1. that if the commencement of the Applicant's sentence was accumulated upon his existing Local Court sentences, then there was a risk that the ratio as between the total period of custody and any non-parole period would exceed 75%; and
2. that the Applicant's prospects of rehabilitation may justify a departure from the statutory ratio.
It was noted that the Crown written submissions had said that a finding of special circumstances was open in this case (see [74] above).
It was submitted for the Applicant that, having received written submissions from the parties, the sentencing Judge did not raise with either side his inclination not to find special circumstances and the basis for such a view. It was submitted that the reasons for declining to find special circumstances (at ROS[53] at [85] above) did not refer to the Applicant's first submission based upon the accumulation of the present sentence on the earlier Local Court sentences.
The complaint in the present ground of appeal is that, in this respect, his Honour had failed to have regard to a relevant factor which had been relied upon in submissions in the District Court. It was submitted that there was nothing in the sentencing remarks which would support an inference that his Honour turned his mind to the impact of accumulation and totality on the statutory ratio and whether that provided a principled basis for a finding of special circumstances in the Applicant's case: GP v R [2017] NSWCCA 200 at [23].
Crown Submissions
The Crown submitted that the sentencing Judge was clearly aware that the Applicant had served a sentence of two months' imprisonment between May and July 2018 and that this was a factor which had been mentioned at the sentencing hearing.
The Crown submitted that accumulation upon an existing sentence will not always be a material consideration to be adverted to by a sentencing Judge. Whether or not it is a relevant consideration in a given case will depend upon the effect of the accumulation upon the ultimate ratio between the custodial component and the parole period of the sentence.
[10]
Ground 5 - His Honour Erred in Failing to Afford the Applicant Procedural Fairness in Respect of his Decision to Not Find Special Circumstances
Applicant's Submissions
In support of this ground, counsel for the Applicant relies upon the decision of the High Court of Australia in DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [39] where the Court said (footnotes omitted):
"Notwithstanding the adversarial nature of criminal proceedings, the public interest in the sentencing of offenders is such that the sentencing judge (or the appellate court in the case of re-sentencing) is not constrained by any agreement between the parties as to the appropriate range of sentence or by concessions made by the prosecutor. Where, however, the judge (or the appellate court in the case of re-sentencing) is minded not to act on a concession made by the prosecution, the failure to put the offender on notice of that inclination and give him or her an opportunity to deal with the matter by evidence or submissions will ordinarily be a miscarriage of justice. In the absence of such an indication, it will be reasonable for the offender to conduct his or her case upon the understanding that the concession will be accepted and acted upon by the court."
The complaint under this ground of appeal is that the sentencing Judge did not put the parties on notice of his disinclination to accept what was said to be a joint position of the parties on the issue of special circumstances.
In circumstances where the Crown had expressed a considered position on this aspect in its written submissions, it was submitted that the Court was required to raise this issue with the parties before proceeding in the manner in which his Honour did, and that the failure to do so constituted a denial of procedural fairness on this aspect.
Crown Submissions
The Crown submitted that the Applicant had been given an opportunity to make submissions about special circumstances and had done so and that the requirements of procedural fairness did not require more than had occurred in this case.
It was submitted that the Crown position at first instance was a qualified one which invited consideration by the sentencing Court as to a finding of special circumstances and not the statement of an absolute position.
The Crown submitted that a sentencing Court is not required to warn an offender every time it departs from a position that is either not opposed or conceded by the Crown: Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318 at [43]-[45]. It was submitted that this was not a case where the Applicant was entitled to believe, or was ever led to believe, that the Court would find special circumstances. It remained a matter for the District Court and the Crown's qualified submission did not give rise to a belief that such a finding would necessarily be made.
[11]
Ground 8 - His Honour Erred in Finding that the Driving Which Constituted the Related Offence of Driving Whilst Disqualified Occurred on the Night of the Applicant's Other Offences
Applicant's Submissions
It is appropriate to consider next this ground of appeal which was added by leave at the hearing in this Court.
As noted earlier (at [38], [98]), the sentencing Judge was mistakenly of the view that the drive whilst disqualified offence occurred on the night of the aggravated kidnapping offence rather than the next day.
Counsel for the Applicant submitted that this was a clear error which was material to the sentencing process so that this ground of appeal should be upheld.
Crown Submissions
The Crown acknowledged that this error had occurred, but submitted it was not material to the sentencing process.
The Crown submitted that this was a mistake concerning particulars only. Reliance was placed upon Yassine v R [2008] NSWCCA 139 at [30]-[31] and Newman (A Pseudonym) v R [2019] NSWCCA 157 at [11]-[15]. It was submitted that the Applicant had committed an offence of driving whilst disqualified during the day on 5 May 2018 and not the evening of 4 May 2018, but that the mistake by the sentencing Judge did not make any material difference on sentence.
Decision
It is the case that the Applicant committed an offence of driving whilst disqualified for which he was to be sentenced on the s.166 Certificate in the District Court. For understandable reasons given the ambiguous nature of the Statement of Agreed Facts, his Honour mistook this offence as being committed in the course of the aggravated kidnapping offence.
In some circumstances, it may make no difference where a Judge mistakenly states that an offence was committed on one day as opposed to another. However, in the present case, the sentencing Judge approached the Applicant's course of conduct on the evening of 4 May 2018 and the early hours of 5 May 2018 as including the driving whilst disqualified offence (see ROS[30]-[31] at [80] above).
Viewed in this way, I am satisfied that the mistake as to the date on which the driving whilst disqualified offence occurred was material and bore upon the sentencing outcome in this case. It was not a matter of mere particulars. I do not think that anything said in Yassine v R or Newman (A Pseudonym) v R stands in the way of such a finding. Rather, it was a significant aspect of the Applicant's overall course of conduct.
[12]
Ground 7 - The Aggregate Sentence of Imprisonment Imposed on the Applicant is Manifestly Excessive
The Applicant has made good Grounds 3 and 8. Error has been demonstrated in accordance with the principles in House v The King and this Court should proceed to exercise its independent sentencing discretion under s.6(3) Criminal Appeal Act 1912 in accordance with the principles in Kentwell v The Queen at [43].
In these circumstances, it is not necessary to give separate consideration to this ground of appeal which asserts that the aggregate sentence was manifestly excessive. I will keep in mind submissions made in support of this ground of appeal for the purpose of determining whether a lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912.
[13]
Resentencing the Applicant
The Court undertakes the resentencing exercise under s.6(3) Criminal Appeal Act 1912 on the material before the sentencing court with the addition of any relevant evidence concerning the Applicant's progress towards rehabilitation in the period since the sentencing hearing: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2].
On resentencing, the Applicant relied upon the affidavit of Penelope Baker, solicitor, affirmed 25 February 2020. Ms Baker's affidavit demonstrates that the Applicant has completed a number of courses whilst in custody including the "Health Survival Program" (concerning first aid and resuscitation procedures), the "Save a Mate" program (concerning drug abuse and the consequences of drug addiction) and the "Red Cross Addiction Support" program (concerning drug addiction). The Applicant is now housed at the Broken Hill Correctional Centre where he has enrolled in a computer studies course and the EQUIPS Aggression and Addiction Program.
The affidavit reveals that the Applicant has been employed as head sweeper at the Broken Hill Correctional Centre in 2020. The affidavit recounts, as well, the impact on the Applicant's family of his ongoing incarceration.
The Crown relied upon the affidavit of Emma Pearl Phillips, solicitor, affirmed 20 February 2020 with respect to the Applicant's history of custodial offences. Ms Baker's affidavit also touched upon the Applicant's custodial disciplinary history.
Between March and September 2019, the Applicant had a number of disciplinary offences including stealing, assault, possession of a drug and failing to comply with Correctional Centre routine for which penalties were imposed, including confinement to cells or periods without access to buy-ups. The Applicant's correctional disciplinary history does not assist him on the issue of rehabilitation: Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [131].
However, the Applicant asserts (and it appears to be the case) that there have been no disciplinary offences since his transfer to the Broken Hill Correctional Centre.
Because of the actual bodily harm occasioned to the victim, the Applicant is to be sentenced for an offence of aggravated kidnapping under s.86(2)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.
[14]
Amendments
08 May 2020 - [189] - Reference to sections inserted.
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Decision last updated: 08 May 2020
Parties
Applicant/Plaintiff:
Jibran
Respondent/Defendant:
R
Cases Cited (51)
McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305
Mulato v R [2006] NSWCCA 282
Newman (A Pseudonym) v R [2019] NSWCCA 157
Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227
PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179
Police v Te Pairi [2008] NSWLC 17
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Ball [2013] NSWCCA 126
R v Burton [2008] NSWCCA 128
R v Greaves [2014] NSWCCA 194
R v Jibran [2019] NSWDC 317
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Newell [2004] NSWCCA 183
R v Price [2016] NSWCCA 50
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
R v Veatufunga [2007] NSWCCA 54
Simpson v R [2019] NSWCCA 137
Toole v R (2014) 247 A Crim R 272; [2014] NSWCCA 318
Yassine v R [2008] NSWCCA 139
Texts Cited: ---
Category: Principal judgment
Parties: Mohammed Jibran (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr S Howell (Applicant)
Ms C Curtis (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/141608
Publication restriction: ---
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: ---
Citation: R v Jibran [2019] NSWDC 317
Date of Decision: 06 February 2019
Before: His Honour Judge Colefax SC
File Number(s): 2018/141608
Related Offences Under s.166 Criminal Procedure Act 1986
The offences of driving whilst disqualified and damaging property were dealt with in the District Court as related offences nominated on a certificate under s.166 Criminal Procedure Act 1986. It may be taken that these related summary offences were before the District Court as they were said to arise "from substantially the same circumstances as those from which the [aggravated kidnapping] offence has arisen" in accordance with the definition of "related offence" in s.165(1) Criminal Procedure Act 1986.
As will be seen, the damage property offence was committed by the Applicant in the course of the aggravated kidnapping offence on the evening of 4-5 May 2018. The driving whilst disqualified offence on the s.166 Certificate was committed later on 5 May 2018 after the aggravated kidnapping offence was complete. No submission was advanced in this Court that the driving whilst disqualified offence was not a "related offence" for the purpose of s.166 Criminal Procedure Act 1986.
It has been observed that the "related offence" provisions in ss.165-168 Criminal Procedure Act 1986 assist the efficient administration of justice by conferring jurisdiction on higher courts to deal with summary offences arising out of circumstances giving rise to an indictable offence: DJ v R [2017] NSWCCA 319 at [60]-[61]. The sentencing Judge was prepared to deal with the related offences in accordance with s.167(2)(b) Criminal Procedure Act 1986 and this Court should do so as well in the event that error is demonstrated and the Court moves to resentence the Applicant.
In sentencing the Applicant for the related offences, the District Court has the same functions, and is subject to the same restrictions and procedures, as the Local Court: s.168(3) Criminal Procedure Act 1986. Accordingly, the jurisdictional limit in the Local Court applied in the District Court so that the sentence for the damage property offence could not exceed imprisonment for two years.
It was open to the sentencing Judge to impose an aggregate sentence for a combination of offences including an indictable offence and summary offences which were in the District Court on a s.166 Certificate: R v Price [2016] NSWCCA 50 at [76]-[80].
The Applicant informed the Community Corrections Officer that he was under the influence of "Ice" and Xanax at the time of the present offences. He stated that he had been smoking "Ice" for the past eight years and using non-prescribed Xanax in the months prior to the offences.
The Community Corrections Officer noted that the Applicant was then subject to two community corrections orders expiring on 12 June 2019 and 12 December 2019 with the supervision component of those orders having been suspended due to the Applicant's incarceration. These community corrections orders related to an offence of driving whilst disqualified in February 2018 and the call-up for breach of a bond for driving whilst disqualified in February 2017, leading to another non-custodial sentencing order made in June 2018.
The Applicant was assessed at a medium/high risk of reoffending according to the Level of Service Inventory-Revised scale.
A report dated 24 January 2019 from Andrew Fordyce, psychologist, was tendered in the defence case on sentence in the District Court. Mr Fordyce had conducted a two-hour interview with the Applicant by audio-visual link on 10 January 2019.
The Applicant gave evidence at the sentencing hearing on 6 February 2019 and confirmed that what he had told Mr Fordyce as contained in the report was true and accurate.
The Applicant told Mr Fordyce that he was the third of four children whose father died when the Applicant was 13-years old. The Applicant completed Year 10 at school and then undertook an apprenticeship in cabinetmaking.
The Applicant told Mr Fordyce that he abused alcohol, cannabis and MDMA in his adolescence and early adulthood. Mr Fordyce expressed the opinion that the Applicant had used drugs and alcohol following his father's death as a "maladaptive emotional coping strategy".
The Applicant told Mr Fordyce that he met his future wife when he was 21 years old. His relationship with his wife became strained when he began associating with an antisocial group of peers and abusing methamphetamine.
The Applicant admitted that his drug abuse and general attitude towards his wife had resulted in frequent conflict in their relationship. He told Mr Fordyce about an incident with his wife when he had become physically aggressive and struck walls and doors with him being charged with assault. The Applicant was convicted of two counts of assault (domestic violence) in July 2015 and was fined and placed on a good behaviour bond for 18 months.
In his report, Mr Fordyce expressed concern about the Applicant's account of this incident, observing that his account "may reflect a minimisation of the severity of the violence" (page 5). The Applicant expressed to Mr Fordyce hope that he would be able to reconcile with his former wife, although Mr Fordyce was concerned about the Applicant's capacity "to address his history of domestic violence".
In a part of his report which assumed significance given the grounds of appeal, Mr Fordyce recorded the Applicant's account concerning the victim of the aggravating kidnapping offence (pages 7-8):
"Mr Jibran informed me that he had assisted the victim with a separate matter on the day prior to the offence and that he became angry with her immediately before the offence as he felt she did not appreciate his actions. As such, Mr Jibran evidenced an attitude of entitlement which was consistent with that evidenced in his marriage. He said that he felt misused and upset and in this state of mind, committed the offence. He also acknowledged that he had engaged in methamphetamine use prior to the offence. Mr Jibran expressed remorse and contrition for his behaviour, stating that he now recognises that 'what [he] did was wrong' and that he 'shouldn't have grabbed her' and 'should have let her go home'. He added that he regrets not returning home with his brother after his release on bail."
In the following passage, Mr Fordyce assessed the Applicant as being a "high risk of intimate partner violence" (page 12):
"Mr Jibran's index offence occurred within the context of his methamphetamine abuse, emotional dysregulation, poor relationships skills and problematic intimate partnerships. Specifically, he did not appropriately regulate his negative emotions (particularly anger and a feeling of entitlement). His response was further compromised by his methamphetamine abuse, which would have promoted his impulsivity/ poor decision-making in response to conflict with the victim (who had been an intimate partner). He subsequently engaged in expressive violence towards the victim in the commission of the offence. He evidences a high risk of further intimate partner violence. Mr Jibran would be most likely to re-offend in similar circumstances to the index offence, i.e., when he is feeling angry and entitled/mistreated by an intimate partner/ex-partner, and under the influence of illicit substances. In particular, I am concerned about Mr Jibran's capacity to manage his risk of spousal violence while seeking to reconcile with his wife."
The Applicant's older brother, Hunza Asman Rafak, gave short evidence at the sentencing hearing in which he stated that the Applicant would receive family support when he returned to the community.
In addition, the Applicant's brother said that he had spoken to the Applicant's employer (at Kitchen Land) and that the family would support the Applicant with his return to employment and with accommodation.
The Applicant's solicitor then called Mr Rafak, the Applicant's brother, to give short evidence in relation to which he was not cross-examined. Mr Rafak confirmed that he had contacted the Applicant's previous employer at Kitchen Land who confirmed that he was prepared to re-employ the Applicant.
The Crown written submissions in the District Court addressed a number of issues. It was submitted that the objective criminality of the aggravated kidnapping offence was characterised "as approaching the mid range of objective seriousness", with reference being made in that respect to factors in R v Newell [2004] NSWCCA 183.
The Crown accepted that the Applicant "has shown some remorse through an early plea of guilty as well as demonstrating some insight into his offending and its consequences upon the victim".
The Crown submitted that the sentence should date from 2 July 2018 and there should be no further backdating "so as not to detract from the punitive effect of the term of imprisonment that has already been served for unrelated matters".
The Crown submitted that the Court should consider a finding of special circumstances in favour of the Applicant as he "requires substantial intervention and support upon release into the community and his rehabilitation should be supported by the court allowing him a longer period of supervision in the community".
Written submissions for the Applicant in the District Court addressed the objective gravity of the aggravated kidnapping offence and submitted that it lay "somewhat below the mid range of objective gravity for offences under section 86(2)(b)", with submissions being made concerning the facts of the offence by reference to the factors identified in R v Newell.
It was submitted that the damage property offence lay below the medium level of gravity for offences under s.195(1)(a) Crimes Act 1900 with features of the offence referred to in support of that submission.
With respect to the drive whilst disqualified offence, it was submitted that the offence was in the "medium level of gravity" for offences under s.54(1)(a) Road Transport Act 2013, with features of the offence referred to in support of that submission.
In support of a finding of special circumstances, it was submitted that an adjustment of the usual ratio should be made having regard to the Applicant's prospects of rehabilitation, including strong family support and employment and the extended period of custody which would flow should the sentence date from 2 July 2018 given that he had been in custody since 3 May 2018 for unrelated offences.
During brief oral submissions, the sentencing Judge made clear that a sentence of less than two years' imprisonment was not within contemplation so that the use of an intensive correction order was "completely out of the question" (T11).
His Honour indicated that an aggregate sentence was to be imposed and said (at [48]-[51]):
"48 I intend imposing an aggregate sentence on you. For that reason, it is necessary for me to state the indicative sentences.
49 In relation to the damage to property offence, the indicative sentence is 6 months imprisonment minus 25%; that is, 4 months imprisonment.
50 In relation to the drive whilst disqualified, the indicative sentence is the maximum penalty, 12 months imprisonment minus 25%, which is 9 months imprisonment.
51 In relation to the offence of aggravated kidnapping, (and having regard to the 2 decisions of the Court of Criminal Appeal to which I was taken during submissions) the indicative sentence is 4 years' imprisonment minus 25%, that is 3 years' imprisonment."
It will be noted that the indicative sentence for the damage property offence should have been four months and two weeks (that is, 75% of six months). This appears to be an error which favoured the Applicant.
His Honour then turned to the commencement date of the sentences (at [52]-[56]):
"52 You have been in custody for 7 months and five days and consequently the start date for the non‑parole period will be backdated to 5 July 2018.
53 Although the Crown has conceded that I could make a finding of special circumstances, I decline to do so. Notwithstanding that this is your first period of imprisonment that, in and of itself, is not a sufficient reason to make a finding of special circumstances. I do not believe your prospects of rehabilitation would be enhanced by a longer period on parole. There are no issues that attend upon your serving your sentence which would be more onerous than for others.
54 I impose an aggregate sentence of 4 years' imprisonment.
55 I fix a non parole period of 3 years' imprisonment to date from 5 July 2018 and which will expire on 4 July 2021.
56 I fix a balance of 1 year to date from 5 July 2021 and which will expire on 4 July 2022."
In considering this ground of appeal, it is necessary to keep in mind that the sentencing remarks were delivered ex tempore at the conclusion of the sentencing hearing. In R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, this Court said at [34]-[35]:
"34 … it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57]).
35 When considering whether error has been demonstrated in the ways alleged by the Crown, it will be necessary to fairly read his Honour's remarks on sentence, bearing in mind the features of an ex tempore decision."
This ground of appeal does not seek to challenge findings made concerning the objective seriousness of the three offences, but the sufficiency of reasons provided with respect to those findings.
It is necessary to bear in mind that, as noted earlier (at [71], [75]-[77]), submissions were made in the District Court concerning these issues. With respect to the aggravated kidnapping offence, the Crown submitted that the offence was "approaching the mid range of objective seriousness" with the defence submission being that it was "somewhat below the mid range". The sentencing Judge found that the offence was "slightly below a mid range offence". In my view, his Honour's recital of the facts, coupled with that finding, constituted sufficient exposure of his Honour's reasons for that conclusion.
The Crown made no submission with respect to the objective seriousness of the other offences.
As mentioned earlier, the defence submission was that the damage property offence was "below medium level of gravity" for offences of that type. The sentencing Judge found that this offence was "towards but not at the bottom of the bottom of the range". Once again, his Honour's description of the offence, coupled with that finding, constituted a sufficient statement of reasons concerning that offence.
The defence submission concerning the drive whilst disqualified offence was that it lay at the "medium level of gravity" for such an offence. The sentencing Judge found that the offence was "at the top of the range". The sentencing Judge mistakenly approached this offence upon the basis that it was committed during the course of conduct that constituted the aggravating kidnapping offence (at ROS[30] at [80] above). In fact, the drive whilst disqualified offence was committed the next day when the Applicant was stopped by police when driving near Concord Hospital.
It is possible that the sentencing Judge's assessment of the objective seriousness of the disqualified driving offence was influenced by the mistaken belief that the offence occurred whilst the victim was detained in the Applicant's vehicle.
However, the Applicant relies upon a separate ground of appeal (Ground 8) with respect to the timing of the disqualified driving offence. The first ground of appeal is not the appropriate point to consider the complaint now made in Ground 8.
In considering this ground of appeal, I do not consider that the Applicant is assisted by anything said in Simpson v R, a decision which addressed circumstances significantly different to the present case.
I would reject this ground of appeal.
The Crown written submissions in the District Court had touched on the issue of remorse (see [72] above). Of course, it remained a matter for the sentencing Judge to determine whether the Applicant had demonstrated remorse in this case.
This ground of appeal focuses upon the question of remorse for the aggravated kidnapping offence and the damage property offence. It is difficult to see that any proper foundation existed for a finding of remorse for the disqualified driving offence given the Applicant's history of recidivism in that area, a topic to be addressed later in this judgment.
There were features of the Sentencing Assessment Report and the report of Mr Fordyce which indicated a past history of intimate partner violence and attitudinal issues on the part of the Applicant concerning that conduct. The Community Corrections Officer noted that the Applicant appeared to accept responsibility for his actions whilst still blaming the victim in some respects (see [48] above). Mr Fordyce noted the Applicant's "attitude of entitlement" concerning the present victim which "was consistent with that evidenced in his marriage". Mr Fordyce noted that the Applicant expressed remorse and contrition for his behaviour (see [59] above).
There is some overlap between the Applicant's domestic violence against his former wife and his violent conduct against the victim, with a sense of entitlement being manifested by the Applicant in both contexts. The Applicant's unwillingness to allow the Community Corrections Officer to contact his former wife provided the sentencing Judge with a level of concern before accepting what the Applicant said about his relationships.
I am not persuaded that what his Honour said (at ROS[43] at [82] above) involved a mistaken understanding in an area where there were, in reality, overlapping issues.
This ground of appeal asserts that his Honour took into account an irrelevant consideration in making a finding concerning remorse. The Applicant has not made good this ground.
I would reject this ground of appeal.
Clearly, it was his Honour's intention to commence the aggregate sentence for the present matters on a date when the sentences for unrelated matters had expired. That should have been 2 July 2018, but his Honour has mistakenly commenced the aggregate sentence for the present matters on 5 July 2018.
This ground of appeal should be upheld.
If no other ground of appeal is established, this error may be corrected in accordance with the principles in Lehn v R at [72], without the Court embarking upon the exercise of independent sentencing discretion required otherwise under s.6(3) Criminal Appeal Act 1912 and the principles in Kentwell v The Queen.
I will return to this issue after the remaining grounds of appeal have been considered.
The Crown pointed to cases where error had been established through a failure to advert to the impact of accumulation where there had been a resulting serious disproportion between the non-parole period and the parole period, including GP v R where the resultant custodial component was 81.5% of the total sentence.
In the present case, the Crown submitted that the selection of a July 2018 commencement date had resulted in a total period of continuous custody that was 76% of the total sentence. In order to achieve the statutory ratio of precisely 75%, his Honour would have had to reduce the non-parole period by just two weeks.
Viewed in this way, the Crown submitted that the impact of accumulation was not a material consideration in this case and that error had not been demonstrated in this respect.
Further, the Crown submitted that the Local Court sentences were of short duration so that a finding of special circumstances would have defeated the very purpose of accumulation by having the practical effect of almost entirely subsuming the Local Court sentences into the non-parole period of the aggregate sentence.
Decision
The sentencing Judge did not refer to the accumulation issue when declining to find special circumstances (at ROS[53] at [85] above). Reference was made to the rehabilitation aspect which had been addressed by the parties.
Given the submission made that a finding of special circumstances should be made on the accumulation basis, it would have been desirable for the sentencing Judge to have raised that aspect with the legal representatives for the parties and, if a finding of special circumstances was not to be made, addressing that issue briefly in the sentencing remarks.
The present ground of appeal asserts a failure on the part of the sentencing Judge to take into account a relevant consideration, namely the effect of accumulation upon the Local Court sentences.
I am not persuaded that the sentencing Judge failed to consider that aspect. The Local Court sentences had been mentioned in writing and orally at the short sentencing hearing. There was a brief mention of that aspect in support of a finding of special circumstances in the written submissions for the Applicant at first instance.
In my view, the sentencing Judge did not overlook that aspect, but regarded its impact on this issue as minimal. As the Crown observed, the result of his Honour's sentencing order was that the continuous period in custody constituted 76% of the Applicant's total sentence, a minimal variation of the starting point ratio of 75%. This is not a case like GP v R where there was an unexplained substantial variation from the 75% statutory ratio with the conclusion to be reached that the effect of accumulation had been overlooked.
I am fortified in this conclusion by the fact that a finding of special circumstances, by reference to accumulation, would have operated to erode substantially the sentences imposed in the Local Court for unrelated offences.
The Applicant has not made good this ground of appeal.
Insofar as a finding of special circumstances would have depended upon an acceptance of the Applicant's prospects of rehabilitation, the Crown submitted that his Honour made clear his concern regarding these prospects due to the Applicant's refusal to permit the Community Corrections Officer to speak to his former wife and to his employer to confirm the suggested availability of employment upon release.
The interchange between the sentencing Judge and the solicitor for the Applicant, the Crown submitted, made clear that there were real concerns on the part of his Honour in this regard (see [69] above).
The Crown submitted that, at no stage, had his Honour led the Applicant to believe that a finding of special circumstances would be made and that what occurred did not constitute a denial of procedural fairness.
Decision
It was a matter for the sentencing Judge to determine whether special circumstances should be found to warrant a variation of the statutory ratio contained in s.44(2) Crimes (Sentencing Procedure) Act 1999. A finding of special circumstances involves a discretionary finding of fact: Caristo v R [2011] NSWCCA 7 at [28]. His Honour was not bound to make such a finding because of the submissions of the parties.
Written submissions had been made on this issue by the legal representatives for the Applicant and the Crown. The Crown written submissions indicated that it may be open to the sentencing Judge to find special circumstances, but it always remained a matter for the Court to decide if such a finding should be made.
A claim of denial of procedural fairness involves consideration as to whether there has been practical injustice in the circumstances of the case: Ng v R (2011) 214 A Crim R 191; [2011] NSWCCA 227 at [48]ff.
This is not a case such as Ng v R where something said by the sentencing Judge led the parties to believe that a particular decision will be made which is then departed from without further notice being given to the parties.
The parties were well aware that the special circumstances issue always remained an issue for the sentencing Judge. Further, the sentencing Judge did not remain silent, but raised concerns about the Applicant's unwillingness to allow contact to be made with his former wife and proposed employer, these being aspects which bore, in one way or another, upon the Applicant's attitude to the Court and the sentencing decision to be made.
Whether practical injustice is demonstrated in accordance with the principles in DL v The Queen will involve consideration of the facts of the case.
I am not persuaded that the sentencing Judge was obliged to raise the issue of special circumstances with the parties so that his failure to do so gave rise to a denial of procedural fairness in this case.
I would reject this ground of appeal.
Accordingly, the Applicant has established error in accordance with the principles in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.
The Applicant has made good this ground of appeal.
As this ground has been established, I will have regard as well on re-sentence to the issue raised under Ground 3 concerning the commencement date of the sentence.
In determining sentence for the aggravated kidnapping offence, it is necessary to consider factors identified in decisions such as R v Newell and R v Speechley at [47]-[64], [105]-[109], including the period of detention, the circumstances of detention, the person being detained and the purpose of detention. A number of features of the offence are relevant to this assessment:
1. the Applicant and the victim knew each other and had previously been in an intimate relationship so that the offence occurred in a domestic context which does not diminish its seriousness: Heine v R [2008] NSWCCA 61 at [40];
2. the offence did not form part of any pattern of violence towards the present victim (although the Applicant had been violent towards his former wife);
3. although the offence was not committed as part of a pattern of violence in the Applicant's relationship with the victim, the offence took place in the context of an intimate relationship - it constituted domestic violence so that significant weight must be accorded to general deterrence and denunciation: Majzoub v R [2019] NSWCCA 94 at [26];
4. the Applicant acted in a controlling and violent way towards the victim demonstrating a sense of misplaced entitlement which courts have observed in domestic violence offences: R v Burton [2008] NSWCCA 128 at [95];
5. the period for which the victim was detained was relatively short, although it was the victim who brought her detention to an end by jumping from the Applicant's moving vehicle: Allen v R [2010] NSWCCA 47 at [22];
6. the circumstances of the victim's escape from the Applicant involves an irresistible inference of extreme fear on her part: R v Speechley at [106];
7. the degree of terror experienced by a victim of a kidnapping offence is relevant to an assessment of the objective seriousness of the offence: Bott v R [2012] NSWCCA 191;
8. the Applicant's decision to detain the victim in the first place appears to have been an impulsive one, which may have been affected by his ingestion of drugs, a factor that does not mitigate sentence: s.21A(5AA) Crimes (Sentencing Procedure) Act 1999;
9. the Applicant attempted to strike the victim when they were in the vehicle and only missed because she was located behind the driver's seat;
10. the nature of the "advantage" in this case, being the Applicant's desire to remain in the presence of the victim despite her wishes to the contrary, is a common advantage seen in kidnapping offences committed in a domestic violence context;
11. the victim sustained injury in the form of grazes to her left leg and elbow and a cut to her right foot sustained when she jumped from the car - the actual bodily harm sustained by the victim was a direct result of her being put in fear to the point where she felt the need to jump from a moving vehicle to escape the Applicant;
12. although the injuries sustained by the victim may not have been substantial, the immediate aftermath of the offence was such that the victim could not walk on her own and required hospital treatment - this was a relatively serious example of actual bodily harm: McIntyre v R (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [44]; and
13. the fact that a vehicle was used as a means of effecting the unlawful detention is also relevant to an assessment of objective seriousness of the offence: R v Ball [2013] NSWCCA 126 at [93].
The damage property offence was, in reality, part and parcel of the aggravated kidnapping offence. That said, the Applicant's removal of the mobile telephone from the victim, and his throwing of the item from the vehicle thereby damaging it, was a serious aspect of his course of criminal conduct because he deprived the victim of her only line of communication to the outside world which she was seeking to utilise by way of a "000" call which was terminated by the Applicant's actions.
I agree with the sentencing Judge that the aggravated kidnapping offence lay "slightly below a mid-range offence" and that the damage to property offence lay "towards but not at the bottom of the range".
The disqualified driving offence on 5 May 2018 was a very serious offence of that type. That offence is not to be treated as a type of minor postscript to the sentence for the aggravated kidnapping offence.
It is the bare act of driving whilst disqualified which constitutes the offence. In New South Wales, disqualification from driving follows conviction by a court, which may give rise to "ordered disqualification" or "automatic disqualification" (without a specific court order): ss.204-205, Road Transport Act 2013. Disqualification differs from licence suspension or cancellation which results from administrative action and not court proceedings: see, for example, ss.40, 59 Road Transport Act 2013. Accordingly, driving whilst disqualified involves an offender defying an order made in or flowing from curial proceedings. By order made at the Bankstown Local Court on 3 May 2017, when the Applicant was sentenced for an offence of driving whilst disqualified, he was disqualified for a period of two years from 4 August 2022.
Factors which may affect the objective seriousness of a disqualified driving offence include the distance travelled and whether there is some urgent or unexpected need to drive which might explain (but not excuse) the act of driving.
Where the disqualified driver has never held a licence, the offence is further aggravated because of public safety concerns where such a person is driving vehicles on public roads.
There was no urgent reason for the Applicant to be driving at all on the morning of 5 May 2018. He was driving the vehicle as part of a process of seeking out the victim. It does not appear that the Applicant was concerned for the wellbeing of the victim. He had spoken of her in derogatory terms to the householders who assisted the victim after her escape (see [33] above). When he was arrested by police, he gave them a false account in which he blamed the victim (see [40] above).
The Applicant's attitude towards driving whilst disqualified was reflected in his statement to the Community Corrections Officer that transporting himself around was "more important than community safety" (see [48] above).
The present offence of disqualified driving was a further example of the Applicant's defiance of the law which prohibited him from driving a motor vehicle at all unless he held a driver's licence, an option which was not open to him in any event until his disqualification period expired in 2024.
An order of disqualification is made in addition to any penalty imposed for an offence: s.205(5) Road Transport Act 2013. The power to disqualify is given in aid of the proper protection of members of the public in their lawful use of a public highway: R v Veatufunga [2007] NSWCCA 54 at [40].
The plain purpose of the legislation is to regulate aspects of road transport, including the disqualification of persons from driving where it is established those persons have not shown the requisite degree of responsibility necessary to drive, a matter which concerns the protection of the public: Hei Hei v R [2009] NSWCCA 87 at [37]; R v Greaves [2014] NSWCCA 194 at [70].
Further, the Applicant has never held a driver's licence. In R v AB (2011) 59 MVR 356; [2011] NSWCCA 229, this Court said at [112]:
"… this Court has said that a licence to drive a motor vehicle is a privilege which carries with it significant obligations to drive safely and not to endanger the lives of others: Gillett v R [2006] NSWCCA 370; 166 A Crim R 419 at 437-438 [47]. The Respondent had never been licensed to drive a motor vehicle and was a disqualified driver at the time of these offences. Far from being privileged to drive as a licensed driver, he was prohibited by law from driving. His driving history, and status as a disqualified driver, indicated an attitude of disobedience to the law and required that increased weight be given on sentence to issues of retribution and personal deterrence: R v Nguyen [2008] NSWCCA 113 at [51]."
Offences of driving whilst disqualified are summary offences prosecuted in the Local Court, although the present offence was before the District Court (and this Court) by way of a s.166 Certificate. It is helpful to note what was said by his Honour Judge Henson in Police v Te Pairi [2008] NSWLC 17 at [53]:
"The second sequence of driving whilst disqualified … also warrants the imposition of a term of imprisonment. The principles of general and specific deterrence are of particular importance to these types of offences. Offenders who are disqualified from driving need to know that the community and the court expects that the sentences imposed for offending behaviour will not simply be ignored. Irrespective of the motivation of the offender, predicated as it was on self-interest, the need to respect the law requires from time to time a strong message to be sent to offenders that their wilful disobedience of its strictures comes at a price. In this case the price the offender will pay will be to lose his liberty."
It was an aggravating factor on sentence that these offences were committed in breach of conditional liberty whilst the Applicant was on bail. He was already a disqualified driver, but his actions in driving on 4 and 5 May 2018 constituted further express breaches of his conditional bail. In addition, at the time of these offences, the Applicant was subject to two non-custodial sentencing orders for driving whilst disqualified (see [50] above). All of this needs to be reflected in penalty for these offences.
A very strong measure of specific and general deterrence is required for the offence of driving whilst disqualified.
Having regard to factors which bear upon sentencing for offences of driving whilst disqualified, I am satisfied that the Applicant's offence on 5 May 2018 lies at the top of the range for such offences. The Applicant's driving whilst disqualified offence warrants the imposition of the maximum penalty of imprisonment for 12 months, reduced to nine months by application of the 25% discount for his early plea of guilty. The maximum penalty represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. Both the nature of the offence and the circumstances of the offender have been considered in determining that this penalty is warranted in this case: Kilic v The Queen (2016) 259 CLR 256; [2016] HCA 48 at [18]. An offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence: Kilic v The Queen at [18]. The sentence to be imposed for driving whilst disqualified in this case accords with the proportionality principle explained in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15].
The Applicant had prior non-custodial sentencing options extended to him and he had not made full use of the indulgences he had received through those sentencing measures.
The Sentencing Assessment Report and Mr Fordyce's report reveals the Applicant's attitude towards women with whom he has been in domestic relationships, which gives rise to concern with respect to the Applicant's future conduct. The aggravated kidnapping offence calls for a measure of specific deterrence and general deterrence on sentence.
The Applicant has expressed belated remorse with respect to the offence committed against the present victim which may point towards some developing insight on his part in this area. That said, his history with respect to his former wife means that a guarded assessment at best can be made concerning his prospects of rehabilitation. The risk assessment made by Mr Fordyce supports a guarded approach to this issue.
A real concern with respect to the Applicant is his complete disregard for the law as demonstrated by his recidivist history of driving whilst disqualified. That contumelious approach requires a further level of significant caution in assessing his prospects of rehabilitation and compliance with court orders.
It is appropriate to proceed by way of an aggregate sentence of imprisonment.
The 25% discount for the Applicant's pleas of guilty should apply to the indicative sentences: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at 39; PG v R (2017) 268 A Crim R 61; [2017] NSWCCA 179 at [71]ff.
Having considered all objective and subjective factors and relevant sentencing principles and after applying the 25% discount, the indicative sentences are as follows:
1. for the aggravated kidnapping offence - three years' imprisonment;
2. for the damage property offence - three months' imprisonment;
3. for the driving whilst disqualified offence - nine months' imprisonment.
The level of notional accumulation to be applied, taking into account the totality principle, will lead to an aggregate sentence of imprisonment for three years and 10 months. This outcome reflects the need for complete notional accumulation of the sentence for the separate and very serious offence of driving whilst disqualified, whilst accepting that the sentence for the damage property offence should be treated substantially as part of the course of criminal conduct involved in the aggravated kidnapping offence.
Taking into account the period of unbroken custody since 3 May 2018, a limited finding of special circumstances will be made, with the non-parole period to constitute 74% of the full sentence. A non-parole period of two years and 10 months constitutes the minimum period which the Applicant should spend in custody for these offences: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [57], [65].
The aggregate sentence will commence on 2 July 2018.
For the purpose of s.6(3) Criminal Appeal Act 1912, I am satisfied that a lesser sentence is warranted in the circumstances of the case.
I propose the following orders:
1. grant the Applicant leave to appeal against sentence;
2. the aggregate sentence imposed at the Parramatta District Court on 6 February 2019 is quashed;
3. the Applicant is sentenced to an aggregate term of imprisonment for three years and 10 months comprising a non-parole period of two years and 10 months commencing on 2 July 2018 and expiring on 1 May 2021 with a balance of term of one year commencing on 2 May 2021 and expiring on 1 May 2022; and
4. the earliest date upon which the Applicant will be eligible for release on parole is 2 May 2021.