//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWCCA 210
Court of Criminal Appeal (NSW)
2011-07-22
Allsop P, Simpson J, Buddin J
Original judgment source is linked above.
) 61 A Crim R 58 The Queen v Shrestha [1991] HCA 26; 173 CLR 48 Kalache v R DRAFT as at 8/09/2011 10:19 AM Thorpe v R [2010] NSWCCA 261 Trindall v The Queen [2007] NSWCCA 119; (2007) 171 ACrimR87 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Wakefield v R [2010] NSWCCA 12 WC v The Queen [2007] NSWCCA 287; (2007)178ACrimR 1 Category: Principal judgment Parties: Nasser Kalache (Applicant) Regina (Respondent) Representation: Counsel A Francis (Applicant) P G Ingram SC (Respondent/Crown) Solicitors Elie Rahme & Associates (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2007/16240-012 2008/14159-004 Decision under appeal Before: Woods DCJ; Bennett DCJ File Number(s): 2007/16240 2008/14159
Judgment 1ALLSOP P: I have read the reasons of Simpson J and Buddin J. I agree with the orders proposed by Buddin J. Given the disagreement between them I should express my own reasons for coming to the view that I have. I need only be brief, given the comprehensive discussion of the issues by my colleagues. 2The concept of special circumstances is one derived from the Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (and its predecessor, the Sentencing Act 1989 (NSW), s 5(2)). It assists in informing the appropriate ratio between the non-parole and parole periods in any given case. As such, it affects the justice and appropriateness of the overall sentence: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 62-63 and Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623-624 [45]-[49] and it bears upon an important element and purpose of the sentencing process, rehabilitation: Crimes (Sentencing Procedure) Act , s 3A(d); Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 476 and The Queen v Shrestha [1991] HCA 26; 173 CLR 48 at 69. 3It is true that there was little explicit material here as to the prospects of rehabilitation. The various offences revealed a propensity for dishonesty, the last including a disregard for the administration of justice. There was no foundation to conclude, however, (and neither sentencing judge did) that rehabilitation was so unlikely as to be a concept legitimately to be viewed as foreign to the sentencing process. 4As the reasons of Buddin J make clear, the failure of a sentencing judge to address the question of special circumstances in the process of cumulation may, and in all likelihood will, reveal error in the exercise of the sentencing discretion. 5As I appreciate it, the disagreement between Simpson J and Buddin J is not one as to principle but it is as to the reading of the reasons of, in particular, Woods DCJ. As Howie AJ said in Maglis v R [2010] NSWCCA 247 at [24]-[25], the reasons for sentence in this context are crucial. 6The tasks of the sentencing judges here were difficult. There were a series of offences, all deserving of sentences of imprisonment. No complaint is made about any individual sentence. The nature of the reference by Woods DCJ to special circumstances, the sentences imposed by him and the lack of reference to a consideration of the overall effect of the sentences on the relationship between non-parole and parole periods lead me to agree with Buddin J that his Honour failed to give consideration to the assessment of an overall appropriate sentence in the light of the applicant's history of incarceration. 7I have difficulty with concluding that Bennett DCJ committed any error given how the sentencing submissions before him appear to have been approached by the parties. Bennett DCJ was faced with a serious offence (attempt to pervert the course of justice), even if at the lower end of the range of seriousness for the crime. 8In these circumstances, I agree with Buddin J that intervention is warranted by the error of Woods DCJ. I agree with the sentence proposed by Buddin J. No lesser non-parole period is warranted. The parole period vindicates, to the limited extent possible, the purpose of rehabilitation through earlier release and supervision. 9SIMPSON J: The applicant seeks leave to appeal against sentences consecutively imposed upon him on 22 June 2009 and 21 June 2010 in the District Court by, respectively, Woods DCJ and Bennett DCJ. 10The sole issue raised by the application concerns the structure of the total term of the sentences following their accumulation. The applicant's contention is that he is subject to an overall term of imprisonment that has an inappropriate emphasis on the non-parole period, at the expense of the period of the sentence during which he would be eligible for release on parole. It is not contended that any of the individual sentences is manifestly excessive or otherwise attended by error. The argument takes into account sentences earlier imposed on the applicant, on two occasions, that are not the subject of complaint. 11The contention is based upon s 44 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") which relevantly provides: "(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." In other words, absent special circumstances, a non-parole period is not to be less than 75 percent of the total sentence. 12Notwithstanding s 44, by s 45 a sentencing court may decline to set a non-parole period (for reasons there specified) and instead set a fixed term.
The Applicant's Sentencing History 13It is necessary to set out the applicant's sentencing history, including sentences not the subject of the application. The applicant has in fact been sentenced on four separate occasions, and has been in continuous custody since 26 June 2008. His sentencing history is as follows: (i) On 26 August 2008 he was sentenced in the Local Court (in respect of offences of possessing or using a prohibited weapon, and possessing or attempting to possess a prescribed restricted substance) to two concurrent fixed terms of imprisonment of 2 months, commencing on 26 June 2008 and expiring on 25 August 2008; (ii) on 14 November 2008, he was sentenced by Woods DCJ (following jury conviction, in respect of one count of conspiracy to defraud and one of money laundering, committed in February and July 2001) to:
15Since no complaint is made about any of the individual sentences imposed, it is unnecessary to go into detail about the nature of the offences. It is sufficient to say that the conspiracy offences involved the applicant agreeing with other participants in a scheme by which financial institutions were fraudulently induced to advance to purported borrowers sums in excess of the value of properties against which the funds were lent; the money laundering offences involved the disposition of the funds so obtained. Woods DCJ remarked that the 2001 and 2004 offences were essentially similar. (It is only the sentences imposed in respect of the 2004 offences that are the subject of this application.) 16The pervert the course of justice offence was committed on 19 June 2008, by the applicant asking a person who was to be a Crown witness in the prosecution of the 2004 offences to make a false statement concerning the evidence he could give. Bennett DCJ found the offence to be "at the lower end of the range of objective seriousness". (AB 62) 17There is little material of a personal nature concerning the applicant revealed in any of the remarks on sentence. He was born in January 1970, and was 31 at the time of the commission of the first (2001) set of conspiracy and fraud offences; 34 at the time of the second set, and 38 at the time of the pervert the course of justice offence. He is now 41 years of age, and will, when eligible for release on parole, be 44. 18It appears that on only one occasion during this course of sentencing was any mention made of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act. In sentencing the applicant in 2009, Woods DCJ said: "I find special circumstances for varying the normal relationship between the head sentence and the non-parole period in count 1, consisting in the structure of the sentences to be imposed overall." 19His Honour therefore varied the statutory proportion. As I have said above, the effect of the variation of the statutory provisions in one sentence was to restore the statutory proportion of the aggregate sentence. 20Section 44(2) does not specify the bases upon which the proportions stated in the subsection may be varied. However, commonly, two bases are seen. The first concerns rehabilitation. A non-parole period may be reduced in order to allow the offender an extended period of time under supervision on parole. The second arises when cumulative sentences are being imposed. If the statutory proportions are to be retained in the overall sentence, as distinct from the individual sentences, it is sometimes necessary to vary the proportions of the non-parole and parole periods in the individual sentences in order to achieve that result. That is exactly what Woods DCJ did, and that I take it, is what he meant by the somewhat elliptical remark, extracted above. 21It is to be noted of s 44, that while imposing a prohibition (reversible) on the imposition of a sentence in which the non-parole period is less than 75 percent of the overall sentence, there is no corresponding prohibition on fixing a sentence in which the non-parole period exceeds that proportion. Nor is any reason required to be given where that is done. However, this Court has held, on more than one occasion, that a sentencing court which decides to take that course would be well advised to explain why it does so: see, for example, Wakefield v R [2010] NSWCCA 12. This is to avoid an inference that the structure of the sentences arose by oversight: R v Henry [2004] NSWCCA 306; Wakefield . 22As is apparent from what I have said above, on the single occasion where the statutory proportions were varied in the applicant's favour, some explanation was given. The applicant does not complain of the way in which the individual sentences were structured; what he complains of is that, by the progressive accumulation of sentences, the sentences became more and more skewed in favour of the non-parole period, at the expense of the parole period. By the time Bennett DCJ imposed his sentence, the proportion (taking into account all sentences dating back to the 2008 Local Court sentences) was 93 percent of the overall sentence. 23As I have said, the argument advanced on behalf of the applicant is that the non-parole period should be reduced in order to lengthen the period in which he is eligible for release on parole, in order to accommodate his need for rehabilitation and reintegration into the community. The sentences imposed by Woods DCJ in 2009 and Bennett DCJ in 2010 ought to have taken into account the increasing disparity between the statutory proportion, and the proportions the sentences were accumulating 24One difficulty with the argument is the sparsity of material available to establish any need for rehabilitation. What there is, emerging from the various Remarks on Sentence, is, essentially, limited to the following. The applicant came to Australia at the age of 6 (from where is not stated), is married and has three children. He has, apart from the offences mentioned in these reasons, limited criminal record, although his record includes an offence of maliciously inflicting grievous bodily harm for which, in 1993, he was sentenced to a term of imprisonment for a minimum term of 4 years, with an additional term of 18 months. (The severity of the sentence, which was upheld on appeal, is an indicator of the gravity of the offence). 25This judgment is not concerned with the length of any of the individual sentences imposed. It is directed solely to the complaint made, that the total term commencing with the sentences of 2 months commencing on 26 June 2008 resulted in a total term of imprisonment in which the non-parole period is disproportionate and excessive. 26I cannot accept that the evidence establishes the proposition for which the applicant contends. It is, I accept, highly unusual to see an accumulation of sentences that results in an overall sentence bearing the proportions that this accumulation of sentences does. However, having regard to the applicant's criminality, I am unable to see that any lesser non-parole period would be adequate. The only means of achieving a more conventional proportion would be by extending the head sentence, a course that is expressly available under s 6(3) of the Criminal Appeal Act 1912; but that is a power that is rarely exercised, and one that is not realistically available in this application. I bear in mind that, although it would have been unusual, given the length of the sentences it would have been open to any of the judges to impose a fixed term of imprisonment - had either done so, he would also have been obliged to explain his reasons for doing so. 27I would grant leave to appeal, but dismiss the appeal. 28BUDDIN J: I have had the advantage of reading the judgment of Simpson J in draft. Regrettably, I am unable to agree with her Honour. 29As Simpson J points out, the combined effect of the sentences imposed upon the applicant by Woods DCJ on 22 June 2009 and by Bennett DCJ, is that the non-parole period which the applicant is serving represents just over 93% of the total term. The further consequence is that whereas the applicant was eligible, as a result of the sentences imposed by Woods DCJ to a parole period of 12 months, the overall period by reason of the sentence imposed by Bennett DCJ is now one of just 5 months. Furthermore, by the time the applicant becomes eligible to be released on parole he will have spent a total of 5 years and 9 months in continuous custody. 30As Simpson J has also observed, Woods DCJ made a finding of "special circumstances" albeit in somewhat elliptical terms. The effect of that finding was to produce an overall sentence of 4 years imprisonment with a non-parole period of 3 years for the offences in respect of which the applicant then stood for sentence. In other words, the sentences were structured in such a fashion as to produce a non-parole period which represented 75% of the overall term for that group of offences. However, those sentences were ordered to be served cumulatively upon two pre-existing sentences, a feature of the case to which Woods DCJ did not refer when determining the sentences in question. On the other hand, Bennett DCJ made no reference at all to the question of "special circumstances" and the non-parole period which his Honour imposed represented 75% of the overall term of the sentence which his Honour imposed. 31The sentencing of offenders for multiple offences produces particular challenges. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 the High Court said: The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing , 2nd ed (1979), pp 56-7 as follows (omitting references): The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: ' when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong '; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'. See also Ruby, Sentencing , 3 rd ed. (1987), pp. 38-41. Where the principle falls to the applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred. [at 62-3] (emphasis added) 32In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said: To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as, of course, as questions of totality. [at para 45] 33See also Johnson v The Queen (2004) 78 ALJR 616. 34A sentencing judge is bound to consider the question of "special circumstances" in accordance with the terms of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 . The requirement to do so, particularly where it is also necessary to accommodate the principles of totality, is an issue with which this Court has had to grapple on a number of occasions in recent years. 35In Simpson v R (1992) 61 A Crim R 58, a number of sentences were imposed upon an offender who was, like the present applicant, serving a sentence at the time. Hunt CJ at CL, with the concurrence of the other members of the court, said: The principal objection taken on behalf of the applicant is to the gross disproportion between the total minimum term of four and a half years which he has to serve and the only effective additional term of three months. He says that, although the three months additional term represents what may be called the "usual" proportion of one-third of the last minimum term imposed ( Sentencing Act 1989 (NSW), s 5), it represents only just over 5 percent of the total sentences of the two counts which he is serving (that is, total sentences of four years and nine months). ... The judge did not, however, give any consideration to whether special circumstances were established by the extraordinary disproportion - created by the sentences which he was imposing simply by adhering to the formula provided by s 5(2) - between the total minimum term of four and a half years and the effective additional term of three months. In those circumstances, I am satisfied that the judge made an error in the exercise of his sentencing discretion. In my view, the sentence should be restructured so as to produce the result that the additional term is one-third of the total minimum term, but maintaining the present total sentences of the two courts of four years and nine months. [At pp 60-62] 36In Maglis v R [2010] NSWCCA 247 an effective sentence of 7 years 4 months and 22 days imprisonment with a non-parole period of 5 years 8 months and 10 days was imposed. Howie AJ, with whom the other members of the court concurred, said: His Honour found that there were special circumstances and applied that finding to reduce each of the non-parole periods that he specified for the individual sentences. ... The overall non-parole period imposed by ... was, on my calculation, 77 per cent of the overall head sentence. For my part I do not understand why a judge would find special circumstances on each separate offence, yet impose a sentence on overall basis where the non-parole period is more than 75 per cent of the total sentence. This Court has on more than one occasion been troubled by applications for leave to appeal in similar situations. Sometimes the Court has upheld the appeal and sometimes it has been dismissed. The individual decisions depend upon what can be gleaned of the Judge's intention from the sentencing remarks. ... Those remarks indicate to me that his Honour intended a finding of special circumstances to apply to the overall period of custody that the applicant was required to serve as a result of the five offences he had committed. However, not only did his Honour's finding of special circumstances not translate into a reduction of the overall non-parole period imposed by him, but also, when consideration is given to the overall sentence he is to serve as a result of the sentences imposed by both Judges, the overall non-parole period is about 80 percent of the total sentence. I do not believe that [the sentencing judge] intended this result. As I have indicated the Crown fairly conceded the point. [at paras 23-26] 37Those cases provide illustrations of the two broad categories of case in respect of which the Court has seen fit to intervene. The first category concerns a situation in which the sentencing judge has failed to address the issue of "special circumstances". The second category concerns a situation in which the sentencing judge has made a finding of "special circumstances", but has then failed to give effect to that finding in structuring the overall sentencing outcome. There are many other such instances. See R v Close (1993) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356; R v Lyndon [2003] NSWCCA 152; R v LWP [2003] NSWCCA 215; R v Reicher [2003] NSWCCA 300; R v Keen [2004] NSWCCA 86; R v Henry [2004] NSWCCA 306; R v Jammeh [2004] NSWCCA 327; R v Attard [2004] NSWCCA 376; R v Ibrahim [2005] NSWCCA 43; R v Swan [2005] NSWCCA 252; Fina'i v R [2006] NSWCCA 134; Perry v The Queen [2006] NSWCCA 351; (2006) 166 A Crim R 383; Buadromo v R [2007] NSWCCA 43; GAC v The Queen; WC v The Queen [2007] NSWCCA 287; (2007) 178 A Crim R 1; Dunn v R [2007] NSWCCA 312; Diesing v R [2007] NSWCCA 326; MAJW v R [2009] NSWCCA 255; Flynn v R [2010] NSWCCA 171; Briggs v R [2010] NSWCCA 250; Thorpe v R [2010] NSWCCA 261; Wakefield v R [2010] NSWCCA 12; IS v R [2011] NSWCCA 142; Khoury v R [2011] NSWCCA 118. 38However, there have been instances in which this Court has not intervened in circumstances in which the non-parole period has exceeded 75% of the overall term. See, for example, Musgrove v The Queen [2007] NSWCCA 21; (2007) 167 A Crim R 424; Trindall v The Queen [2007] NSWCCA 119; (2007) 171 A Crim R 87. 39What is significant about each of those decisions however is that there was no question of inadvertence on the part of the sentencing judge because in each case the judge intended to produce the particular sentencing outcome which was imposed. 40Moreover, in each of those cases the actual period of time which the offender was anticipated to spend on parole was to be measured in years rather than in months. 41In that context it may be observed that in Caristo v R [2011] NSWCCA 7, RA Hulme J, with whom the other members of the Court agreed, said This brings me to the point that the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important. In the present case the judge's sentencing order allows for a potential period on parole of 2 years 6 months. There was no evidence before the judge that required a conclusion that this was insufficient to meet the purposes for which the judge found special circumstances. [at para 41] 42Furthermore, in R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704, Spigelman CJ said, with the concurrence of the other members of the court: The length of the non-parole period remains, however, of potential significance. Indeed, the requirements of rehabilitation would be best computed in terms of a period of linear time, not in terms of a fixed percentage of a head sentence. The desirability of a longer than computed period of supervision will be an appropriate approach in many cases. It is not, however, the only perspective. [at para 58] 43The decisions to which I have referred, in my view, lend considerable support to the applicant's claim that both sentencing judges have fallen into error. As I have said, Woods DCJ found "special circumstances" on account of the need to accumulate the sentences with which he was concerned in June 2009, but then failed to consider the impact of those sentences upon the applicant's overall custodial circumstances. In my view, this failure constituted an error. Furthermore as I have also said, Judge Bennett failed to refer to the question of "special circumstances" at all. The explanation for his Honour's failure to do so may lie in the fact that the parties at first instance apparently did not bring the matter to his Honour's attention. The consequence, in my view, is that his Honour simply overlooked the matter and thereby compounded the error into which Woods DCJ had fallen. That said, I accept that the challenge facing Bennett DCJ was particularly stark given that he was imposing a sentence of relatively short duration in respect of a single offence against the background of the pre-existing sentences which were described by Simpson J. 44Putting the matter another way, neither judge appears to have undertaken the task of which the High Court spoke in Mill (supra) of having a "last look at the total [sentence] just to see whether it looks wrong". In my view, a sentence in which the period of eligibility for release on parole is just 5 months, against an overall non-parole period of 5 years and 9 months in custody, is unable to withstand that kind of analysis. 45Moreover, an important purpose of sentencing is the rehabilitation of offenders. The community has a profound interest in ensuring that that objective is pursued. It is very difficult to see how that objective is likely to be achieved should the sentencing outcome in the present case be permitted to stand. I accept that the evidence concerning the applicant's prospects of rehabilitation was very limited. Nonetheless, his prospects had not evaporated to the point at which it could be said that he was beyond redemption. The applicant's history did not, for example, suggest that he was a career criminal who had continued to offend whilst on parole. Nor did either of the sentencing judges make a finding of that kind. 46For those reasons I am of the view that the Court should intervene and proceed to re-sentence the applicant. I see no warrant for interfering with the effective total head sentence of 6 years and 2 months imprisonment. I propose however that the effective non-parole period should be reduced to one of 5 years. I appreciate that the proportion which the non-parole period bears to the head sentence is still in excess of 75 percent, but in my view that period in custody is the minimum period which is required in all the circumstances. It will be necessary to restructure some aspects of the sentences which were imposed in the District Court in order to give effect to the outcome which I have foreshadowed. I should also observe that in arriving at that outcome, I have borne steadily in mind the various principles to which I referred at the outset of these reasons. In my view, the simplest way in which to achieve the proposed outcome is to alter only the sentence imposed by Woods DCJ in respect of the offence of conspiracy to defraud and leave the other sentences intact. The reason why various of the sentences are fixed terms is because of the manner in which the sentence which is now last in time is structured. 47I propose the following orders: 1 Grant leave to appeal. 2 Allow the appeals. 3 Quash the sentences imposed in the District Court and in substitution therefor impose the following sentences: (a) for the offence of perverting the course of justice, sentence the applicant to a fixed term of 9 months to commence on 25 August 2010 and to expire on 25 May 2011; (b) for each of the three offences of money laundering, sentence the applicant to concurrent fixed terms of 2 years to commence on 25 February 2011 and to expire on 25 February 2013; (c) for the offence of conspiracy to defraud, sentence the applicant to a non-parole period of 1 year and 8 months to commence on 25 October 2011 and to expire on 24 June 2013 with a total term of 2 years and 10 months to expire on 24 August 2014. 4 The applicant will be eligible for release on parole on 24 June 2013.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2011
Kalache
R
[1988] HCA 70
[2007] NSWCCA 21
[1998] HCA 57
(2004) 78 ALJR 616
(1993) 31 NSWLR 743
(2001) 53 NSWLR 704
(1988) 166 CLR 59
(1998) 194 CLR 610
(2001) 53 NSWLR 704