Krzykalski Aka Palmer v R

The remarks on sentence (ROS)

1. The sentencing judge accepted the applicant's and his uncle's evidence concerning the applicant's upbringing. The sentencing judge accepted the evidence of the sexual assaults, particularly because the applicant had given evidence at the Royal Commission into Institutional Responses to Child Sexual Abuse and, as a result, was bringing a civil claim for damages for the abuse. The sentencing judge accepted that from about the time of the sexual assaults the applicant started using illegal drugs
2. The sentencing judge was satisfied on the balance of probabilities that all of his offending was related to his drug habit which was directly attributable to the sexual abuse he received when in the juvenile justice institutions. The sentencing judge accepted that for the first time, the cause of the applicant's drug taking was being realistically addressed with the assistance of psychologists through the Royal Commission. Further, the sentencing judge accepted that the applicant had successfully completed a significant opioid rehabilitation drug treatment plan.
3. The sentencing judge also accepted that on the day of the robbery at the newsagency, the applicant was on heroin. His Honour accepted that the applicant held a gun to Ms Ellis's head because, in a drug confused state, the applicant was seeking money to assist a friend to travel to Bathurst so she could face trial.
4. His Honour determined that the objective seriousness for an offence of its kind, count 1 was just below the middle of the range. His Honour found that there would be a modest increase in the sentence for that offence by reason of the offence on the Form 1. In relation to count 2, his Honour determined that the objective seriousness was towards but not at the bottom of the range.
5. His Honour thought that for the first time in the applicant's life his prospects of rehabilitation were good. His Honour considered that by reason of the applicant's background, general deterrence, although important, was somewhat reduced in significance. However, specific deterrence was fully engaged.
6. His Honour accepted that the PTSD meant that a period of imprisonment would be more arduous for the applicant.
7. His Honour accorded a discount of 25% for the applicant's early pleas and, although his numerous previous offences disentitled him to leniency, his Honour found special circumstances both because of the PTSD and because the applicant's prospects of rehabilitation would be enhanced by a longer period on parole.

Ground of appeal: The aggregate sentence imposed on the applicant by the sentencing judge was manifestly excessive taking account of both the objective seriousness of both offences and the applicant's subjective case

Submissions

1. The applicant indicated that he took no issue with his Honour's categorisation of the objective seriousness of count 1 as below mid-range. The applicant accepted that the offence was attended by a degree of physical violence. However, the applicant submitted that the offence was clearly not planned, the weapon could not inflict physical injury, and a relatively small amount was taken.
2. The applicant submitted that an indicative sentence of ten years' imprisonment, undiscounted, where objective seriousness lay below the mid-range, may have been appropriate for an offender who did not have a compelling case as the applicant did, but was otherwise a very significant sentence.
3. The applicant did not take issue with the sentencing judge's categorisation of count 2 as being towards the bottom of the range. The applicant submitted that it was entirely impulsive, unplanned, isolated and short. The applicant submitted, however, that looking at an undiscounted sentence of 12 months' imprisonment, a real question arises as to whether the applicant's conduct on that occasion could justify the imposition of a full-time custodial sentence at all. The indicative sentence may have been appropriate in the absence of a substantial subjective case.
4. The applicant submitted that he had a compelling subjective case that weighed heavily against the indicative sentences and the aggregate sentence. He submitted that neither of the indicative sentences nor the aggregate sentence could have been justified in the face of the following findings: (a) remorse for committing both offences; (b) the applicant's rough and chaotic upbringing. The applicant said that this called into question whether considerations of early life disadvantage should have operated in the sentencing process to reduce the aggregate sentence; (c) the abuse the applicant suffered whilst in State care and the consequent findings that this caused his drug addiction which led to an offending lifestyle; (d) the applicant suffered from PTSD from the wrongdoing of the Corrective Services Officer. The applicant submitted that the sentencing judge appeared to have limited the effect of that finding to support the conclusion of special circumstances because of harsher conditions of custody; (e) the reasonable or good prospects of rehabilitation; (f) The fact that the applicant, on release to parole, was facing extradition to Queensland to serve additional parole time in custody. The applicant submitted this should have been considered when setting the ratio of parole to non-parole period at 65%, because even a small amount of additional time in custody in Queensland will mean that the finding of special circumstances will not be reflected in the ultimate sentence; (g) the sentencing judge did not take into account the inordinate delay in sentencing the applicant where most of that delay was caused by factors beyond the applicant's control.
5. Counsel for the applicant, in oral submissions focused on three matters which, together, were submitted to point to manifest excess. First, the applicant's background was said to amount, in effect, to a situation akin to Bugmy v The Queen (1990) 169 CLR 525, leading to the applicant's use of drugs and in turn to his criminal history. Secondly, the sentencing judge did not have regard to the incident involving the Corrections officer pointing a firearm at the applicant as extra-curial punishment. Thirdly, the fact that the applicant would, on the expiration of his non-parole period in New South Wales, have to serve out his parole in Queensland, was not taken into account by the sentencing judge having regard to the totality principle.
6. The Crown submitted that the applicant's contention that the offence was not planned should be rejected. The applicant was wearing a balaclava, gloves, dark clothing and was armed with a firearm. He gave evidence he had been asked to assist a friend obtain money and the offence was carried out for that purpose. The Crown submitted that no specific finding was made about planning by the sentencing judge.
7. The Crown submitted that whilst the weapon was an imitation firearm, it could have been used to strike the victim. In any event, it was designed to instil great fear in the victim who was not likely to have known it was an imitation firearm.
8. The Crown submitted that the applicant's subjective case was not one that could properly be described as compelling. He was not young. He had an appalling criminal record of offences of the same kind. He had also shown continued disobedience to the law, including by escaping and absconding when on conditional liberty.
9. The Crown submitted that general deterrence was still significant as the sentencing judge accepted.
10. The Crown submitted that the assessment of the applicant's prospects of rehabilitation needed to be viewed against his lifetime of offending.
11. In relation to the PTSD, the Crown submitted this could only have played a limited role in the overall sentencing exercise when regard was had to when it occurred.
12. The Crown submitted that the sentencing judge was clearly cognisant of the fact that the applicant would be required to serve an additional term of imprisonment in Queensland, but there was a practical limitation on how that could be taken into account. No submissions were made in relation to totality at the sentence proceedings. The Crown submitted that any variation to the statutory non-parole period beyond 65% was not warranted.
13. The Crown submitted that the sentencing judge gave detailed consideration to the applicant's subjective case to make positive findings about his prospects of rehabilitation. However, what the applicant had achieved did not outweigh the need to reflect the gravity of the offending.

Consideration

1. The principles about what constitutes a manifestly excessive sentence are well known and do not need to be repeated here; it is sufficient to note their recent restatement in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
2. The applicant's submissions appear to accept that, were it not for what was said to be the applicant's compelling subjective case, the indicative sentences and the aggregate sentence would be appropriate, if stern. The real difficulty for the applicant is that his subjective case, whilst a reasonably good one, and whilst it was accepted by the sentencing judge, cannot be said to be compelling.
3. At the time of this offending, he was 46 and 47. He had a bad criminal record in two states. His most recent offence prior to the index offences was another robbery with violence where a firearm was used. In 1999 he had been sentenced to 11 years' imprisonment for a series of offences including robbery with violence, and possession and use of a number of weapons. When sentenced in Queensland in 2016 the sentencing judge noted that he had spent 22 of 30 years in detention since he turned 15.
4. There can be no doubt that he had a violent upbringing, and that he was sexually assaulted when in juvenile detention. The sentencing judge accepted that the sexual assaults led to drugs, and the drugs led to and were causative of the applicant's offending, but there was limited psychiatric evidence providing any assistance to show why the applicant continued to offend in the violent ways that he did. The psychiatric evidence reported on studies linking sexual abuse in young persons with drug use and offending, without concluding anything in particular about the applicant in that regard. The psychiatrist also considered that the applicant was suffering from PTSD as a result of the way he was treated after his arrest for these offences.
5. The sentencing judge made favourable findings about the applicant's prospects of rehabilitation, but there was little evidence apart from the applicant's own evidence to reach that view. The psychiatrist, Dr Chew, said that the applicant's prospects of rehabilitation were good "if he can engage in treatment". Dr Chew thought the applicant's substance use disorder was in remission in a controlled environment, but the applicant had prison offences for failing a prescribed drug test, and for refuse or fail to provide a drug sample. Further, the applicant admitted to drug use whilst he was in prison. There was no Sentencing Assessment Report.
6. Certainly, by the time of the sentence hearing, the applicant had been having depot injections of Buprenorphine. He had also made other progress in prison, having been made head of the prison carpentry shop. These subjective matters, however, had to be balanced against the seriousness of the offending. This is a difficulty for the applicant. The sentencing judge clearly made favourable findings concerning the applicant's background and his prospects of rehabilitation. In accepting that the sentences (indicative and aggregate) may have been appropriate for a person without a compelling subjective case, the applicant appears to be submitting that his Honour did not give sufficient weight to the applicant's subjective case. Such a submission cannot result in a finding of manifest excess, where the sentences were open to the sentencing judge, but for a very favourable assessment of the subjective case, as the applicant accepted.
7. The applicant, in his submissions, described his subjective case as compelling. Minds may differ about that, particularly as the applicant admitted before the sentencing judge that he had continued to use drugs right up to the present offending, despite having lied and misled the Queensland Court and Probation and Parole authorities about matters connected with his drug taking. Whilst not minimising the applicant's dysfunctional background, it was no worse than the background of many persons who come before the Court who have suffered physical, emotional and sexual abuse as children.
8. It is not correct to say that the index robbery offence was unplanned. As the Crown submitted, the offence was committed because the applicant was asked by a friend to assist in obtaining money. He used a firearm and sought to disguise himself.
9. The offence was committed at a time when the applicant had been released to parole for exactly the same type of offence. While technically he was not on parole, that was only because his parole had been cancelled as a result of his own wrongdoing in breaching a number of his conditions of parole.
10. It does not appear to be disputed that the sentencing judge appropriately increased the sentence slightly for the robbery because of the Form 1 offence. That offence involved a different firearm to the one used in the robbery.
11. Of the three matters said to be significant in demonstrating manifest excess upon which emphasis was placed by the applicant's counsel, the sentencing judge made favourable findings as a result of the applicant's background and upbringing, including the sexual assaults. His Honour considered that the significance of general deterrence should be somewhat reduced because of that background.
12. His Honour took into account that the applicant's PTSD was likely to make custody more onerous for him, and made a finding of special circumstances for that and for the applicant's need for rehabilitation. Although complaint is now made that his Honour only used the PTSD to find special circumstances, the applicant's counsel at the sentence hearing ultimately confined his submission about PTSD to that outcome.
13. What was never put to his Honour, although the applicant in this Court seeks such a finding, is that the actions of the Corrective Services officer should be regarded as extra-curial punishment. This attempt to put forward a new matter is exactly what this Court said in Zreika v R [2012] NSWCCA 44; (2012} 223 A Crim R 460 at [79] should not happen.
14. In any event, I do not consider that what occurred does constitute extra-curial punishment. There was no evidence that the Corrective Service officer behaved in the way he did because of anything to do with the offending for which the applicant was sentenced. That would be a minimum requirement for proof by the applicant of extra-curial punishment both before the sentencing judge and in this Court: R v Allpass (1993) 72 A Crim R 561; Regina v Daetz; Regina v Wilson [2003] NSWCCA 216 at [38] and [62]; Quinn v R [2018] NSWCCA 297 at [222].
15. There is the further difficulty that his Honour had regard to the outcome of the officer's actions, which was the development of the PTSD, and adjusted the non-parole period accordingly. If his Honour had made a further adjustment on the basis of extra-curial punishment, that would have been double counting in favour of the applicant. His Honour's approach in that regard has not contributed to a manifestly excessive sentence.
16. The third issue raised by the applicant on the appeal was the issue of totality with regard to his Queensland sentence. On 12 April 2016 the applicant was sentenced in the Cairns District Court to imprisonment for five years for an offence of robbery with actual violence. A parole eligibility date of 3 January 2017 was fixed. The applicant was granted parole on 30 March 2017, but the parole order was cancelled on 9 June 2017 because he was non-compliant with his curfew, he left Queensland without permission, and he was not residing at his approved address. The report concerning the cancellation of his parole said that the balance of his sentence was 4 years, 5 months and 5 days.
17. The Crown's written submissions at the sentence proceedings pointed out that the applicant was subject to parole for an offence he committed in Queensland, and went on to submit that any sentence of imprisonment for the instant offending ought to accumulated on the balance of parole period that was imposed in Queensland. The submission said that the Court had a discretion to accumulate sentences in those circumstances, and referred to R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145.
18. The defence submissions said: It would appear to be clear from the criminal history document obtained from the State of Queensland, that upon completion of the sentence to be imposed by this Court, he will not be released into the community, but transferred in custody back to a facility in Queensland. There he will be required to serve the balance of the sentence imposed on 16 April 2016 at the Cairns District Court.
19. The defence submissions also said that it was accepted that the principle of totality would come into play in respect of how the matter contained on the Form 1 impacted upon the length of the sentence to be imposed for the robbery offence. That was the only mention of totality.
20. The sentencing judge was aware that before the applicant could be released back into the community the applicant would be required to serve an additional period of imprisonment in Queensland relating to his cancelled parole for the robbery offence in respect of which he was sentenced in 2017. His Honour made two references to that in his ROS.
21. No submission was made by either the Crown or defence counsel in relation to the totality principle arising from that cancelled parole. That may well have been because it was not known what the effect of the requirement for the applicant to go back into custody meant in practical terms. It was not made clear in the evidence whether the applicant would be required to serve the whole of the 4 years, 5 months and 5 days, or whether he might be released again on parole prior to the expiry of that period. Nor was it clear what was meant by the statement in the parole cancellation report, that the applicant was not considered suitable "for further community-based orders in Queensland", in terms of his being again released on parole.
22. The parties, by leave, subsequently lodged additional submissions at the conclusion of the hearing of the appeal concerning this issue. The position is no clearer as a result of those submissions in terms of whether the applicant will be required to serve out the whole of the cancelled parole period. Section 205 of the Corrective Services Act 2006 (Qld) sets out the powers of the Parole Board to cancel parole. Section 206(3) provides: Upon arrest, the prisoner must be taken to a prison - (a) if the order was suspended - to be kept there for the suspension period; or (b) if the order was cancelled - to serve the unexpired portion of the prisoner's period of imprisonment. However, s 211(3) provides: Despite section 206(3)(b), the parole board may, by written order, direct that the prisoner serve only part of the unexpired portion of the prisoner's period of imprisonment.
23. The position is, therefore, that it cannot be known in advance what period of time the applicant will serve in custody as a result of the cancellation of parole. It was not possible for the sentencing judge, even if he had been given this information, to factor in totality considerations as between the index offences and the offence for which the applicant had already been sentenced in Queensland. Nor is it possible for this Court to do so. Indeed, this Court's decision in Callaghan points to the matter not being concerned with totality, but only with the date a later sentence should commence, having regard to the revocation of parole for the earlier offence.
24. Further, it would appear that, pursuant to either or both of the Prisoners (Interstate Transfer) Act 1982 (NSW) and the Parole Orders (Transfer) Act 1983 (NSW) the applicant could apply to have either his sentence or his NSW parole period transferred to Queensland. That may mean either his NSW sentence or his NSW parole period could be served concurrently with the time he would spend in custody serving out his cancelled parole period for the Queensland offence.
25. Whilst it can be accepted that a failure to raise the totality principle before the sentencing judge would not necessarily mean that the matter could not be considered on appeal (cf, Zreika), where the evidence is left as uncertain at the hearing of the appeal as it was before the sentencing judge it is not appropriate for a finding of manifest excess to be made on the basis that the totality principle was ignored in this case.
26. The significant point is that his Honour took all proper matters into account in reaching the sentence he did. His Honour was certainly aware that, despite having found special circumstances, the applicant would, when released to parole in NSW, be transferred to Queensland to serve whatever part of his cancelled parole he would be required to serve. It may be accepted that the sentence is a stern one, but at the time of the offending the applicant had a long history of serious offending both in New South Wales and Queensland and, but for the cancellation of his parole by the Queensland authorities, he would have been on parole for an offence strikingly similar to the principal offence for which he was sentenced by Judge Colefax. That would have been another aggravating factor.
27. In my opinion, the applicant does not show that the aggregate sentence imposed was manifestly excessive.

Conclusion

1. I propose the following orders:
2. Leave to appeal granted.
3. Dismiss the appeal.
4. MCNAUGHTON J: I agree with Davies J.

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