BELLEW J: I agree with Cavanagh J and the orders that his Honour proposes.
CAVANAGH J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge Whitford SC in the District Court on 10 July 2020. The applicant had entered a plea of guilty in respect of one count of aggravated break, enter and steal, contrary to s 112(2) of the Crimes Act 1900 (NSW) ("the Crimes Act").
On 10 July 2020 his Honour imposed a sentence of imprisonment of 3 years commencing on 1 February 2020 and expiring on 31 January 2023. His Honour imposed a non-parole period of 1 year and 10 months commencing on 1 February 2020 and ending on 30 November 2021.
The applicant seeks leave to appeal on two grounds being:
1. the sentencing judge failed to partially accumulate the sentence with the existing terms of imprisonment being served by the applicant; and
2. the sentencing judge made an error in calculating the period of pre-sentence custody referable to the offence.
The applicant was sentenced at the same time as his brother, a co-offender. The sentencing judge imposed the same sentence upon both offenders, except that the sentence of the applicant's brother commenced on the day of his arrest being 10 June 2019.
The respondent concedes error and submits that this Court must sentence the applicant afresh.
[2]
Circumstances of offending
The facts were agreed and the sentencing judge's findings were based on those agreed facts.
On 24 May 2019, the applicant, his brother and two other men ("the offenders") broke into a unit in Sydenham. They entered through a closed but unlocked front door. They confronted the male victim. One of the men placed the male victim in a head lock, choking him. The applicant's brother grabbed at the male victim's neck. The offenders demanded his money and valuables.
Further, whilst the offenders were inside the premises one of them was holding a baseball bat and another was holding a knife.
Whilst the male victim and the applicant's brother remained in the lounge room, the applicant and the third man went through the kitchen. The third man was swinging the baseball bat causing damage to the kitchen. The applicant went through the kitchen drawers looking for money and valuables.
The applicant continued demanding that the male victim inform them of the whereabouts of the money and valuables. After initially refusing, the male victim identified a safe. The male victim used a key which was on a lanyard around his neck to open the safe. Despite this, one of the men again placed his hands around his neck.
The safe contained money and jewellery. They took the money from inside the safe. As they were leaving, the offenders took two mobile phones belonging to the victims.
The offenders stole between $2,500 - $4,000 in cash, a gold engagement ring valued at $2,000 and a watch valued at $250. The applicant gave evidence that he also stole two jars containing cannabis which he had found in the kitchen.
The applicant was arrested on 11 June 2019. He initially denied any knowledge of the offending.
[3]
The Sentencing Judgment
The sentencing hearing took place on 10 July 2020 and the sentencing judge imposed sentence on that day.
At the time of sentence, the applicant had been in custody since being arrested on 11 June 2019. As at the date of sentence, he had been in custody for 13 months (11 June 2019 to 10 July 2020). During that time, he had also been sentenced in respect of three other offences.
On 31 October 2019, he was called up on two Community Correction Orders ("CCO"). On 25 October 2018, a CCO had been imposed for a period of 15 months for the offence of supply prohibited drug greater than the small quantity and less than the indictable quantity.
Then on 30 July 2019 a CCO had been imposed for a period of 12 months for the offence of possessing a prohibited drug.
When called up on 31 October 2019, he was sentenced to a term of imprisonment of 2 months for the supply offence and 1 month for the possession offence.
Then on 9 January 2020 he was sentenced to a term of imprisonment for 5 months commencing 15 January 2020 and ending 14 June 2020 for the offence of driving a motor vehicle whilst under the influence of drugs.
In sentencing the applicant in respect of the offending the subject of these proceedings, the sentencing judge:
1. accepted that there was no evidence which connected the applicant or his brother with the use of the knife or the baseball bat;
2. accepted that the evidence did not establish that the applicant or his co-offender were aware prior to entering the premises that the victims were present;
3. accepted that the offence involved the use of some limited corporal violence upon the male victim and that there was no resultant physical harm occasioned to the male victim;
4. accepted that there was some destruction of the property inside the premises;
5. accepted that there was a degree of implicit violence entertained by the use of physical and verbal threats made to the victims during the course of the offending;
6. accepted that the duration of the offending was relatively short;
7. accepted that although the offending was targeted, it was only planned to a limited extent;
8. accepted the fact that there were four offenders present, meaning that the offending occurred in circumstances of aggravation;
9. accepted that the amount of property taken was not insubstantial; and
10. accepted that the motivation of the applicant (and his brother) was to obtain drugs for personal use and that it was only on entry to the premises that they demanded money.
In all these circumstances, the sentencing judge found that the objective seriousness of the offending was below the mid-level of objective criminality.
At the time of sentence, the applicant was 25. He had a limited criminal history, apparently relating to drug and traffic matters. The sentencing judge found that the offending, the subject of these proceedings, was an escalation of the seriousness of his criminal offending although, again, his Honour made reference to the fact that he was intoxicated with illicit substances at the time.
His Honour found that the applicant's illicit drug use provided some explanation for the spontaneity of the offending. The applicant and his brother were recruited to assist the other two men who the sentencing judge accepted were primarily responsible for the instigation and execution of the home invasion.
The sentencing judge accepted that the applicant had shown remorse and that the prospects of rehabilitation depended upon the possibility of obtaining support and supervision and treatment for his drug problem. The sentencing judge found that the prospects of rehabilitation were guarded. His Honour made a finding of special circumstances on the basis that it would be in the best interests of the community that the applicant be directed towards a pro-social future and that he be supervised for a longer period on parole than he otherwise might have been.
The applicant received a 25% discount on account of the utilitarian value of his early plea of guilty.
As the applicant was serving sentences in respect of 3 other offences during the period between being arrested for this offence and the sentence being imposed on 10 July 2020, it was necessary for the sentencing judge to consider whether there should be any partial accumulation.
Before the sentencing judge, the applicant submitted that there should be a period of partial accumulation. The following exchange occurred:
"HIS HONOUR: So what do you contend is an appropriate start date? Perhaps I'll wait and give you an opportunity in your submissions; we've interrupted Mr Goold. Do you have further submissions, Mr Goold?
GOOLD: Only just to reiterate very briefly that the offences that you're looking at, possess prohibited drug and driving under the influence of drugs, are matters that are connected with what seems to be - they seem to have a causal connection with what the basis for this offending is as well. So when I say to your Honour that a partial accumulation may be appropriate, but not a full accumulation -
HIS HONOUR: On the basis that, as a matter of totality, if he was being sentenced for them all at the same time then it certainly wouldn't be the equivalent result of complete accumulation?
GOOLD: That's correct, your Honour."
Although the respondent originally submitted that the applicant's sentence should commence on the date of arrest being 11 June 2019, in reply, the respondent submitted:
"The Crown accepts that your Honour is entitled to partially accumulate, rather than wholly accumulate, for the reasons that your Honour has raised with my friend, being the principles of totality, but the Crown urges the Court to engage in a degree of partial accumulation that would reflect the separate criminality that the new offences bear in and above the matters for which he was received a custodial sentence upon call-up.
I accept it shouldn't be a sentence that's wholly cumulative upon the sentences that he was serving up until 14 June, but there should be some partial accumulation to reflect the additional criminality."
Plainly, his Honour intended to partially accumulate, as he said:
"Mr Ryan Kite was arrested the following day on 11 June 2019 and has been in custody also since that date. However, in his case he has been serving that period in custody, not only in relation to the present matter, but in relation to other matters, the cumulative effect of which is that he was serving sentences of seven months' imprisonment effectively between 31 October 2019 and 14 June 2020. His time in custody, too, will be taken into account, but it is common ground that there will need to be some adjustment to reflect the circumstances of those additional sentences being served, but it is also common ground that considerations of totality would mean, rather than there being complete accumulation on those other sentences being served, there would need to be some backdating into the period of time being served in respect of those additional matters, and I will certainly take those considerations into account when imposing sentence on Mr Ryan Kite."
[4]
Ground 1
The applicant submits and the respondent accepts that in imposing sentence his Honour failed to give effect to that which he intended to do as evidenced by his remarks on sentence. Even though the applicant was arrested on 11 June 2019, the sentencing judge backdated the sentence only to 1 February 2020, that is, his Honour took into account 5 months and 10 days of pre-sentence custody, even though the applicant had been in custody for 13 months at the time.
Whilst the respondent accepts that the extent of accumulation is a matter of judicial discretion, [1] the effect of the sentence imposed is that it was wholly accumulated on the sentences served by the applicant between 31 October 2019 and 14 June 2020. As such, the respondent accepts that by commencing the sentence on 1 February 2020, the sentencing judge failed to give effect to his finding that there should be something less than complete accumulation.
In the circumstances, the applicant has established error and it is necessary to re-sentence. [2]
[5]
Ground 2
The respondent accepts that there was a calculation error by the sentencing judge. His Honour failed to give effect to the pre-sentence custody served by the applicant, solely referable to the offending, the subject of these proceedings. Not all errors require this Court to re-sentence. [3]
It would be permissible merely for this Court to correct the calculation error, but as the applicant has succeeded on Ground 1, it is necessary to re-sentence in any event.
[6]
Re-sentencing
The applicant relies on his affidavit of 21 May 2021 on re-sentence.
He states that he has been an inmate at the Clarence Correctional Centre since 2 September 2020. He has been employed in the joinery and woodwork section and is developing skills that he hopes to use upon his release. He had completed the EQUIPS Addiction and EQUIPS Aggression programs prior to coming to the Clarence Correctional Centre. He has not yet been able to engage with the Intensive Drug and Alcohol Treatment Program due to the shortage of time before he becomes eligible for parole. He has not been charged with any additional offences in custody.
I have regard to that material on re-sentence as it relates to the applicant's subjective case. I adopt the sentencing judge's findings as to the circumstances of the offending. They were based on agreed facts. I also adopt the sentencing judge's findings as to objective seriousness being below the mid-level.
In addition to the further material relied upon by the applicant, I have regard to both the oral evidence of the applicant (as recorded in the transcript of the sentencing hearing) and the document titled "Address to the Court" prepared by the applicant which was provided to the Court.
I accept that the applicant has a criminal history including a conviction of using a carriage service to menace, harass or offend in 2017.
Having regard to the applicant's evidence and his prepared document, I accept that he has shown remorse for his offending. Further, having regard to the up-to-date material relating to the progress made by the applicant whilst in custody, I accept that he does have some prospects of rehabilitation.
Further, I adopt the sentencing judge's findings in respect of special circumstances, such that the statutory ratio should be adjusted. The applicant would benefit from a longer time in the community under supervision. He is also entitled to a 25% discount on account of the utilitarian value of his early plea of guilty.
I accept the respondent's submission that the fact that the applicant was on conditional liberty at the time is an aggravating feature and I take account of that feature on re-sentence, having regard to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
In order to reflect the criminality of each offence, it is necessary that there be partial but not complete accumulation. Having regard to my findings as to the applicant's subjective case but also the aggravating feature that he was on conditional liberty at the time of the offending and having adopted the sentencing judge's findings as to the objective seriousness, I would impose the same sentence of 3 years with a non-parole period of one year and 10 months.
In order to partially accumulate the sentence with his other sentences, the sentence will commence on 11 September 2019. The sentence will expire on 10 September 2022. I specify a non-parole period of 1 year and 10 months commencing on 11 September 2019 and ending on 10 July 2021. Pursuant to s 158 Crimes (Administration of Sentences) Act 1999 (NSW) the applicant is entitled to be released at the end of the non-parole period which was 10 July 2021.
[7]
Orders
The orders I propose are:
1. Leave to appeal is granted.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court.
4. In lieu thereof sentence the appellant to a term of imprisonment of 3 years commencing on 11 September 2019 and ending on 10 September 2022.
5. I specify a non-parole period of 1 year and 10 months commencing on 11 September 2019 and expiring on 10 July 2021.
6. I direct that the appellant be released forthwith.
[8]
Endnotes
Pannowitz v R [2016] NSWCCA 13 at [40] (per Davies J, Hoeben CJ at CL and Beech-Jones J agreeing).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).
Newman (a pseudonym) v R [2019] NSWCCA 157 at [12]-[14] (Basten JA).
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Decision last updated: 19 July 2021