Lonsdale v R

Court of Criminal Appeal (NSW)|2020-09-30|Before: Hoeben CJ, Beech-Jones J, Adams J

Solicitors: Dib and Associates - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2018/195052 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 October 2019 Before: Hanley SC DCJ File Number(s): 2018/195052

Offences and sentence On 16 October 2019, the applicant and Messrs Cadiogan and Rhodes-Moylan were sentenced by his Honour Judge Hanley SC (the sentencing judge) in the District Court at Penrith for an offence of attempt specially aggravated break and enter with intent to commit a serious indictable offence (in company and armed with a dangerous weapon), contrary to s 113(3) of the Crimes Act 1900 (NSW).

Ground 1 - The sentencing judge erred in the manner in which he determined whether there were special circumstances

Ground 2(a) - The sentencing judge erred in his assessment of the applicant's prior criminal record and background

Ground 2(b) - The applicant has a legitimate sense of grievance by reason of the sentence imposed on his co-offenders

Factual Background

At about 4pm on Sunday 24 June 2018, the victim Andrew Culverston was at his home in Hazelbrook, with his girlfriend and two friends. All four were downstairs watching television. The applicant and his co-offenders arrived outside the house in a motor vehicle.
The group were captured on CCTV from a neighbour's premises. As they left the vehicle, Cadiogan retrieved a bag containing a shotgun from the rear passenger seat. The applicant retrieved a silver baseball bat from the boot of the vehicle and placed a piece of material over his face. Rhodes-Moylan had secreted a large silver wrench in the front stomach pocket of his jumper. Two females remained in the vehicle while the three offenders advanced towards the victim's home.
All three offenders wore gloves. Cadiogan was running and the applicant and Rhodes-Moylan were walking towards the house. Each was carrying weapons. The occupants contacted triple-0 when two of the victim's guests saw people running onto the driveway carrying these weapons.
The front door of the premises was kicked in and one of the offenders entered the premises. They remained in the vicinity for about two minutes and then all returned to the vehicle. When they left the premises, Cadiogan was still holding the shotgun and the applicant had the silver baseball bat. The vehicle departed quickly.
Police observed the offenders' vehicle at 4:20pm as it was travelling west on the Great Western Highway at Bullaburra. The vehicle was stopped and all occupants were arrested.
Weapons and clothing used in the commission of the offence were dumped in bushland between the victim's home and the location where the offenders were ultimately arrested. These items were later recovered by police. The shotgun used was a Bentley pump action shotgun loaded with four live shotgun cartridges. This weapon only had to be pumped once to reload. Police also located the aluminium baseball bat used by the applicant, the chrome wrench, a pair of red gloves and a white curtain.

Proceedings on sentence

The applicant tendered a bundle comprising psychological reports, a letter of apology and reference letters (Exhibit 1). Cadiogan relied upon a psychological report and an affidavit of his mother, Suzanne Collum (Exhibits 2 and 4). Rhodes-Moylan tendered a bundle of three psychological reports, reference letters, completion and attendance certificates in relation to periods of rehabilitation and a letter of apology (Exhibit 3).

Objective seriousness

The sentencing judge assessed the objective seriousness of the offence as falling "within the midrange, but towards the lower end of that broad spectrum of assessment" (Sentence judgment 10.2). In reaching that conclusion, the sentencing judge had regard to the following features of the offending: 1. the intended serious indictable offence was to intimidate the occupants of the house, although they were not personally confronted inside the house; 2. the offence involved three men approaching the house, each of whom was armed with a weapon; 3. the offence was an attempt and one that was as close as possible to completion; 4. the door of the house was broken down; 5. the dangerous weapon used was a pump action shotgun which came into the more serious characterisation attributable to a dangerous weapon and it was loaded; 6. the victims had seen the armed men running along the driveway, which caused significant alarm; 7. the attack was brazen in that it occurred in a residential area in broad daylight and the offenders approached the house in the manner already described; 8. having regard to the weapons, the gloves, the applicant's covered face and that the offenders utilised a driver, there was some degree of planning involved, although not in a professional or sophisticated sense that would aggravate the offence; and 9. the offence was committed over a relatively short period of time.
The sentencing judge noted that the offenders acted pursuant to a joint criminal enterprise and his Honour was not prepared to distinguish between each of them on the basis of the different form of weapon which they were carrying during the attempt. A 25 per cent discount was allowed for an early plea of guilty in the case of each offender.

Criminal history

The sentencing judge made a qualified finding that the applicant had reasonable prospects of rehabilitation and of not reoffending "provided he can complete the rehabilitation programs and implement them into his life in the community". His Honour went on to say: "[The applicant's] partner's letter offers some hope and expectation that his prospects for rehabilitation and likelihood of reoffending in the future are capable of being achieved, although at this stage my finding would have to be that I am not confident he will be successful in either, unless he does address the matters he has been urged to for some considerable time." (Sentence judgment 18.8)

The applicant's background

The sentencing judge found that the applicant had an unremarkable childhood, in terms of psychiatric, substance and criminal issues. He did not have behavioural difficulties until high school where he became involved in fighting and was non-compliant with school work. He obtained his school certificate in 2005. His Honour noted that the applicant's brother suffered from a heroin addiction and that this appeared to adversely impact the applicant.
The sentencing judge noted that the applicant attended TAFE and worked as an apprentice in carpentry for four years before he switched employment to work on cranes. He was employed until he was taken into custody in June 2018.
His Honour found that the applicant commenced using alcohol at the age of 12, started using cocaine at the age of 18 and became addicted. He used it almost daily until he was taken into custody. He also used Xanax to counter the effects of cocaine. His Honour noted that the applicant blamed his recent offences on the influence of drugs.
His Honour accepted that in 2015 a psychologist, Ms Baker, considered the applicant to have post traumatic stress disorder (PTSD), depression and attention deficit disorder with hyper activity. Another psychologist, Mr Cinar, confirmed the symptoms of PTSD and opined that the applicant suffered from depression and anxiety. His Honour took those matters into account as providing a foundation for the applicant's abuse of drugs and alcohol.

Sentencing principles and totality

The sentencing judge concluded that because of the applicant's criminal history and his failure to rehabilitate in the past when afforded the opportunity, there was a need for specific deterrence. Having regard to totality, his Honour determined to allow partial concurrence with an earlier sentence relating to the applicant's breach of a s 12 bond.
The sentencing judge declined to make a finding of special circumstances for the following reasons: "I am not satisfied that any additional period of time within the community is necessary to achieve his rehabilitation, other than the period of time that will be available to him as a result of the sentence imposed. In making that determination, I have taken into account the fact that he has failed in the past to take advantage of the periods in the community when programs were available to him. On the contrary he has participated in programs whilst he is in custody. Hopefully he will complete those programs and upon his release to the community will be in a state whereby he is able to deal with the vicissitudes of life and the attraction of drugs and alcohol, but will also be supervised for a significant period of time by Community Corrections officers." (Sentence judgment 36.8-37.3)

Breaches of bonds

The s 12 bond to which the applicant was subject at the time of the offending was revoked and in lieu thereof the applicant was sentenced to a term of imprisonment of 18 months, to date from 24 June 2018 and expire 23 December 2020. A s 9 bond was set aside and applying the principles of totality, the matter was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Parity

The sentencing judge noted that parity would be a significant issue. His Honour found that because the offending occurred as part of a joint criminal enterprise, he was not prepared to distinguish between the roles of each co-offender. He did, however, consider that the deprived backgrounds of Cadiogan and Rhodes-Moylan distinguished them from the applicant. His Honour found that Rhodes-Moylan's criminal history appeared to be de-escalating. In contrast, his Honour found that the offending of the applicant and Cadiogan had increased in severity and regularity. It was as a result of that analysis that the sentencing judge determined that some distinction between the three offenders in sentencing was necessary.

Ground 1 - The sentencing judge erred in the manner in which he determined whether there were special circumstances

The applicant submitted that the sentencing judge erroneously determined as a reason for not finding special circumstances that rehabilitation could occur in custody, thus contravening the principle enunciated in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57].
There the High Court said: "... it was an error to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. Full-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence."
The applicant also complained that the sentencing judge failed to take into account the effect of the accumulation which followed from his earlier sentence (in relation to breaching the s 12 bond) upon the ratio between the total effective non-parole period imposed and the overall sentence.
In support of the first submission, the applicant relied upon exchanges between counsel and the sentencing judge to the effect that the only times that the applicant was likely to attend rehabilitation courses was if he were forced to do so by being in custody. The relevant exchanges were: "... why should he be given more chances, why should I make a finding of special circumstances" (T6.47) "He might learn more in custody; he's attending programs in custody; he wasn't doing that on the outside ... There's your answer isn't it? Some people you've just got to take there, and put there, and make them do it." (T7.6) "The only way that seems to force him to do anything is to keep him in custody. He'll then get the appropriate programs, and then he can come out into the community and hopefully on parole get further assistance." (T10.8)
The applicant submitted that this demonstrated the error referred to in the quotation from Muldrock v The Queen.

Consideration

The sentencing judge's reasoning in refusing to find special circumstances, having regard to this issue, is set out at [19] hereof. Those reasons are unambiguous. They make clear that the applicant's reliance on the transcript of proceedings is misplaced. Error is to be found in a sentencing judge's reasons as are set out here. Exchanges in the course of sentence proceedings between the bar and the judge are not ordinarily elevated to an expression of a final considered view (Dang v R [2014] NSWCCA 47 at [32]; Gibson v Regina [2019] NSWCCA 221 at [80]; Hart v Attorney General for NSW [2016] NSWCCA 71 at [58])
It is clear from his reasons that the sentencing judge declined to find special circumstances because he was not satisfied that an extended period on parole would promote rehabilitation in the applicant's case. Accordingly, his Honour was not prepared to extend the parole period in the hope that this might take place. What his Honour was not doing was attempting to formulate a sentence based on an expectation that the applicant would complete rehabilitation courses while in custody. That was the error identified in Muldrock v The Queen at [23] hereof. In that context it was well open to the sentencing judge to require some evidence beyond a hopeful submission that a longer period on parole would promote rehabilitation (Walsh v R [2020] NSWCCA 183 at [100]-[101]).
As his Honour set out in his sentence judgment (at 15.1, 18.1 and 36.1), it was clear that the applicant had failed to take advantage of previous opportunities of supervised rehabilitation in the community and that his Honour was not going to allow him any further chances to do so. This was a relevant consideration in determining whether special circumstances ought be found and was well open to his Honour. It follows that this submission in support of Ground 1 has not been made out.
In relation to the second submission put by the applicant in support of this ground, i.e. the relationship between accumulation of an earlier sentence upon a later sentence when assessing special circumstances, the relevant principles are as follows: 1. the accumulation of a sentence upon a pre-existing sentence may constitute special circumstances: Spark v R [2012] NSWCCA 140 at [35]; Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [30]; 2. a finding of special circumstances is a discretionary finding of fact, and to set it aside, it is necessary for the applicant to establish error on the part of the judge in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40; Calhoun v R at [30]. The sentencing court retains a wide discretion and subject to the non-parole period being manifestly inadequate or excessive, this Court should be slow to intervene. Just because it was open to a sentencing court to make a finding of special circumstances does not establish that it was an error not to do so; 3. the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence: Calhoun at [30]; and 4. the intention of the sentencing judge in producing the sentencing outcome should be discernible so as to dispense with any suggestion of inadvertence or miscalculation: Spark v R at [36] citing Maglis v R [2010] NSWCCA 247 and Caristo v R [2011] NSWCCA 7 at [36]; Calhoun v R at [31] referring to GP v Regina [2017] NSWCCA 200.
In addition to the above considerations, a sentencing judge is not obliged to give reasons for setting a non-parole period that exceeds 75 per cent of the total sentence, although it is advisable to do so in order to avoid an inference that the matter was not considered: Calhoun v R at [30]; McKittrick v R [2014] NSWCCA 128 at [37], [154]; GP v Regina [at [22].
Similarly, a sentencing judge is not required, where there is an existing term of imprisonment, to perform a calculation to ascertain what proportion of the sum of the non-parole period and the period already spent in custody bore to the total term: Stoeski v Regina [2014] NSWCCA 161 at [53]; Tuivaga v R [2015] NSWCCA 145 at [39].
The absence of an explanation of why a ratio in excess of 75 per cent is reflected in the total term of custody does not in itself establish error: Calhoun v R at [35]. This is particularly so where it can be seen from the reasons that the final result was precisely what the sentencing judge intended: McKittrick v R at [87]; AB v R [2014] NSWCCA 31 at [57].
The sentencing judge here was plainly mindful of the need to consider totality in the applicant's case with respect to his breaches of two bonds. In the sentence judgment at 19.2, his Honour stated (emphasis added): "Before I proceed to sentencing and discussing the issues of parity, I indicate that I propose to, in respect of the principles of totality, take into account the fact that there was a breach of a s 12 bond, he would have been required to be sentenced to a term of imprisonment. I propose to set a specific term, taking into account the principles of totality and in my discretion propose to make that sentence partially concurrent with the other sentence that I intend to impose in respect of this offence. The penalty for this offence will be accumulated partially on top of any sentence imposed in respect of the breach of a s 12 matter."
Moreover, when imposing the applicant's sentence his Honour said: "You will note that the sentence I have imposed is one that is also concurrent for a significant period of time in relation to the 18 months that I sentenced you for the breach of the s 12 bond. I do so in my discretion and by way of application of the principles of totality." (Sentence judgment 40.3)
The sentencing judge reiterated at sentence judgment 40.5 that there was no finding of special circumstances.
It is clear that the result was exactly what the sentencing judge intended. The sentence imposed upon the applicant was in accordance with the sentencing judge's express intention to allow a significant degree of concurrence; only 3 months of the applicant's discrete 18 months term of imprisonment was cumulative. As is plain from his reasons, the sentencing judge was not only mindful of the chronology of events but intended that only a small portion of the 18 months sentence would be served in addition to the sentence for the index offence. This was for the express purpose of taking into account the principles of totality.
The result in the overall effective non-parole period was 76.4 per cent of the total sentence, i.e. a departure from the statutory ratio of less than 1.5 per cent.
In all the circumstances, including the sentencing judge's clear intent to allow a modest degree of accumulation upon the earlier sentence because of the principle of totality, it was not necessary for his Honour to advert to the overall effective ratio. The applicant's contention that there was some inadvertence on the part of the sentencing judge has not been made out. It follows that Ground of Appeal 1 should be dismissed.

Ground 2(a) - The sentencing judge erred in his assessment of the applicant's prior criminal record and background

Ground 2(b) - The applicant has a legitimate sense of grievance by reason of the sentence imposed on his co-offenders

The applicant submitted that when proper regard was had to the criminal record of the applicant and Mr Cadiogan it was clear that Cadiogan's was the more serious. In particular, the applicant noted that Cadiogan had previously committed an offence of break and enter which he had not. The applicant submitted that his Honour had failed to take into account as a matter favouring him that this would be his first custodial sentence which would affect and change his status in the community for ever. The applicant submitted that the fact that this was his first custodial sentence was a matter which should have been taken into account by his Honour so as to reduce his sentence below that imposed on Cadiogan.

Relevant principle

The parity principle reflects the notion of equal justice and requires that like offenders be treated in a like manner. It allows for different sentences of due proportion to be imposed upon like offenders to reflect distinctions in degree of culpability and/or different circumstances: Fenech v R [2018] NSWCCA 160 at [29]-[33] per R A Hulme J (with whom Beazley P and Button J agreed); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ; Crennan and Kiefel JJ; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at [302] per Dawson and Gaudron JJ.
Appellate intervention on the ground of parity is warranted in the presence of marked and unjustified disparity (Green v The Queen at [31]-[33]) or a manifest discrepancy (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 per Mason, 624 per Dawson J) between co-offenders such as to engender a justifiable sense of grievance between co-offenders: see also Fenech v R at [31]; Weiss v R [2020] NSWCCA 188 at [90]; McTague v R [2020] NSWCCA 83 at [31].
The appellate court's assessment of disparity is conducted by reference to objective criteria and the court would refuse to intervene where the disparity is justified having regard to factors such as the co-offender's respective ages, backgrounds, criminal histories and roles in the criminal enterprise: Green v The Queen at [31] per French CJ, Crennan and Kiefel JJ.
This Court would be cautious in finding a justifiable sense of grievance when the sentencing court is fully aware of the co-offender's circumstances and states reasons for distinguishing them: Rae v R [2011] NSWCCA 211 at [68]; Burrows v R [2017] NSWCCA 45 at [67]; Dwayhi v R; Bechara v R [2011] NSWCCA 67 at [37]. As R A Hulme J (with whom Payne JA and Garling J agreed) said in Lloyd v R [2017] NSWCCA 303 at [95]-[97]: "95 It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. 96 It is a basic principle of appellate review of sentencing that "there is no single correct sentence" and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies" ... That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. 97 In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?..."

Consideration

The sentence imposed on the applicant was one of imprisonment for 4 years with a non-parole period of 3 years. The sentence imposed on Cadiogan was one of 3 years and 9 months with a non-parole period of 2 years and 9 months. The sentence imposed on Rhodes-Moylan was imprisonment for 3 years with a non-parole period of 1 year and 6 months.
There was nothing in the commission of the offence which indicated that the culpability of one of the co-offenders should be greater than that of the others. Accordingly, any assessment of differences between the co-offenders would depend upon each one's subjective case.
Relevant subjective features affecting Cadiogan were: 1. a degree of specific deterrence was necessary given his criminal history and the increasing seriousness of his offending. He had at the time of the offending served three discrete terms of fulltime imprisonment; 2. the index offence was committed while Cadiogan was on parole, having been released to parole two-three months before the offending; 3. the sentencing judge accepted that Cadiogan's expressions of remorse were genuine; 4. Cadiogan's compliance with supervision had been unsatisfactory and he was assessed as having a medium risk of re-offending; 5. Cadiogan had a deprived background which entitled him to a greater degree of leniency but was also relevant to the assessment of the threat which he posed to the community; and 6. Cardiogan had significant mental health issues but not such as would diminish his moral culpability to a significant degree.
Relevant subjective features of Rhodes-Moylan were: 1. his criminal history dated back to when he was a juvenile but there was a large gap in it and the sentencing judge considered that his offending had decreased and that he was entitled to a degree of leniency; 2. he was subject to s 9 bonds at the time of the offending; 3. the sentencing judge accepted that he was remorseful and had accepted responsibility for the offending; 4. he had good prospects of rehabilitation; 5. when he was aged 11, he left home and was exposed to substance abuse, violence and criminal behaviour for two years, followed by a more settled home environment; 6. he was diagnosed with ADHD at the age of 12; and 7. he had commenced drug and alcohol abuse from an early age.
Relevant subjective features of the applicant were: 1. he had been given opportunities to rehabilitate himself but had not availed himself of them; 2. he was subject to a s 12 and a s 9 bond at the time of the offending; 3. he had a good upbringing; 4. he expressed remorse; 5. his prospects of rehabilitation were qualified; 6. this offence represented an escalation in his offending, similar to that of Cadiogan; and 7. he suffered from PTSD symptoms and recurring depression.
It is clear from the foregoing that the features there identified pointed towards a greater degree of leniency in the case of Rhodes-Moylan as compared to that of the applicant and Cadiogan. That was not disputed in this Court. What was argued was that Cadiogan was the more serious offender and that the applicant's sentence should have been less than that imposed on him.
It was well open to the sentencing judge to find that Cadiogan's childhood deprivation and its effect on his moral culpability on the one hand and the need for protection of the community on the other explained why his Honour distinguished between him and the applicant but only to a limited extent.
What was involved was an evaluative assessment by the sentencing judge in relation to which error has not been identified. When regard is had to those matters it is clear that the disparity between the applicant and Cadiogan was relatively slight, i.e. three months. Such disparity cannot be described as marked or unjustified. The differentiation between the applicant and Cadiogan by the sentencing judge was plainly open to him in the circumstances.
Contrary to the applicant's submission, the fact that this was his first period of imprisonment does not assist him. On the contrary, the fact that he had been the subject of previous non-custodial punishments but had not only continued to offend but had done so in an increasingly serious way, operated to his detriment and supported the distinction which the sentencing judge made between him and Cadiogan.
It follows from the above that these grounds of appeal have not been made out.

Conclusion

The orders which I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal against sentence is dismissed.
BEECH-JONES and N ADAMS JJ: The background to the application for leave to appeal against sentence and the findings of the sentencing judge are set out in the judgment of Hoeben CJ at CL.

Ground 1: Special Circumstances

The first ground of appeal contends that the sentencing judge erred in the manner in which he determined whether (or not) there were special circumstances. This ground has two components.
First, the applicant contends that the trial judge erred by determining a "structure of the sentence upon a view that the [applicant] would benefit from treatment while in full‑time custody" (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [57]).
This contention does not accurately reflect the approach of the sentencing judge which is sufficiently encapsulated in the following passage from the sentencing judgment: "I am not satisfied that any additional period of time within the community is necessary to achieve his rehabilitation, other than the period of time that will be available to him as a result of the sentence imposed. In making that determination, I have taken into account the fact that he has failed in the past to take advantage of the periods in the community when programs were available to him … Hopefully he will complete those programs and upon his release to the community will be in a state whereby he is able to deal with the vicissitudes of life and the attraction of drugs and alcohol…"
The first two sentences of this passage reveal that the sentencing judge rejected the submission made to his Honour that a finding of special circumstances should be made on account of the applicant's need to attend rehabilitation programs. His Honour concluded that, given the applicant's past record of attendance, his Honour was not satisfied he would attend them in the future. His Honour's reference to the applicant completing programs in custody was simply included to contrast the position with what occurred when the applicant was released into the community.
The applicant's submissions sought to bolster this ground by referring to passages in the transcript of the submissions on sentence which were said to support the contention that the sentencing judge erred in his approach. Even if it was permissible to refer to the transcript in this way, which it was not, the passages relied upon do not support this ground. They are entirely consistent with the above extract.
Second, the applicant contended that the sentencing judge erred in not finding special circumstances from the effect of partially accumulating the sentence appealed from onto the sentence imposed as a consequence of the applicant's breach of the bond that was a condition of his suspended sentence. In particular, it was contended that the sentencing judge erred because the ratio of the effective non-parole period to the effective total sentence exceeded 75%. It was also submitted that the sentencing judge erred in "not flagging any intention" to do so.
The sentence imposed for the subject offence was four years imprisonment with a non-parole period of three years. The ratio of the balance of the term of this sentence to its non-parole period was one third. Put another way, the ratio of the non-parole period to the term of the entire sentence was three quarters. As there was no finding of special circumstances, this sentence conformed with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act").
The sentence imposed for the subject offence was fixed to commence three months after the commencement of a sentence imposed by his Honour as a consequence of breach by the applicant of the bond imposed under former s 12 of the Sentencing Act. The effect of both sentences imposed by his Honour was that the applicant was subject to a term of imprisonment for 4 years and 3 months with a minimum term in custody of 3 years and 3 months. The ratio of the latter to the former is 76.47%.
Section 44(2) of the Sentencing Act has no direct application to any analysis of a total effective sentence that results from the operation of two or more sentences. Nevertheless, it is common to make a finding of special circumstances under s 44(2) to ameliorate the effect of accumulating sentences that would otherwise result in the ratio of the "effective" non‑parole period exceeding 75% of the effective total term (see GP v Regina [2017] NSWCCA 200 at [16]; "GP v R"; CM v R [2020] NSWCCA 136 at [35]; "CM v R"; R v Simpson (1992) 61 A Crim R 58 at 60-61.) Further, it has been accepted that it is incumbent on a sentencing judge to consider or advert to the effect of accumulated sentences they may impose where the ratio of the effective non-parole period exceeds 75% of the total effective term (McKittrick v R [2014] NSWCCA 128 at [154]; GP v R at [22]). In such cases, the question is "whether the record of proceedings leads to an inference that the matter was considered or adverted to or not" (GP v R at [22]). Thus, in CM v R it was concluded that the sentencing judge did not intend "a result which would require the applicant to spend 87.5% of the 'effective' term of imprisonment in custody" (at [40]).
However, these principles are not hard and fast rules. Their application in a given case involves matters of degree. In this case, the ratio of the effective non-parole period to the effective total sentence was 76.47%. The sentencing judge considered questions of both totality and special circumstances at length. In those circumstances, we do not accept that his Honour failed to consider or advert to the very modest amount by which the accumulation of the two sentences meant that the effective non-parole period exceeded 75% of the total effective term. Otherwise, given the trivial amount by which it was exceeded in respect of the accumulated sentences, no obligation to "flag an intention … to do so" was engaged.
We reject ground 1.

Ground 2: The Applicant's Criminal Background and Parity

Ground 2(a) contends that the sentencing judge erred in his assessment of the applicant's prior criminal record and background. Ground 2(b) contends that the applicant has a legitimate sense of grievance by reason of the sentences imposed on his co‑offenders. In oral argument, counsel for the applicant refined ground 2(b) to focus on what he contended was the disparity between the sentence imposed on the applicant and that imposed on his co‑offender, Mr Cadiogan. The sentence imposed on Mr Cadiogan was imprisonment for 3 years and 9 months with a non‑parole period of 2 years and 9 months; ie 3 months less than that imposed on the applicant.
The sentencing judge carefully considered the circumstances of each of the offenders. His Honour noted that each of the offenders has a prior criminal record. [1] In relation to the applicant, his Honour noted he has "a record going back to 2009" which "disqualif[ies] him from any leniency". [2] In relation to Mr Cadiogan, his Honour observed that he "also has a criminal history without any real breaks". [3] His Honour also described the personal background of each of the applicant and Mr Cadiogan in detail. In relation to Mr Cadiogan, his Honour observed that he will "take [it] into account as entitling him to a greater degree of leniency in determining the final sentence imposed". [4] His Honour expressly referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. There was no such finding in relation to the applicant.
In explaining the sentence imposed on Mr Cadiogan, his Honour declined to make a finding of special circumstances but stated: [5] "I am, however, satisfied that in relation to him, there is some degree of diminished responsibility as a result of the deprivation as a child, and that accords him a greater degree of leniency in the sentence that will be imposed between him and Mr Lonsdale."
In relation to ground 2(a), the applicant's written submissions refer to the failure of the sentencing judge to expressly refer to the fact that the applicant had not previously served a period in custody. Leaving aside whether it is mandatory for a sentencing judge to advert to such a matter, we are satisfied that his Honour was cognisant of that fact. His Honour had previously imposed the suspended sentence on the applicant.
In relation to ground 2(b), the applicant's submissions did not contend that his Honour erred in differentiating between the backgrounds of the applicant and Mr Cadiogan or that such differentiation was incapable of warranting a different sentence. However, it was submitted that the sentencing judge nevertheless erred because, Mr Cadiogan's criminal record was so much worse than the applicant's criminal record, that meant that, even allowing for the difference in their personal backgrounds, it could not justify the three‑month differential in sentence. [6] The only substantive difference between them in relation to criminal backgrounds was that in February 2017 Mr Cadiogan received a custodial sentence of 2 years and 6 months with a non‑parole period of 1 year and 11 months for a similar offence under s 113 of the Crimes Act 1900 committed in 2014. The subject offence was committed by Mr Cadiogan while he was on parole for that offence. The applicant had not previously been convicted of any offence under s 113 or any provision which was equally serious and had not previously served a custodial sentence. However, as noted, at the time of the offence he was subject to a suspended sentence under former s 12 of the Sentencing Act. This was imposed for offences of damaging property, assault and resist officer in the execution of their duty.
In describing the role of this Court in addressing a complaint of lack of parity, French CJ, Crennan and Kiefel JJ stated in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [32]: "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive." (emphasis added)
In this case it was open to the sentencing judge to make the qualitative assessment that the criminal backgrounds of the applicant and Mr Cadiogan were not relevantly different and that the difference in their personal backgrounds warranted the relatively modest difference in the sentences that were imposed. There was not certainly no "marked disparity between sentences giving rise to the appearance of injustice".
We reject grounds 2(a) and 2(b).

Orders

We agree with the orders proposed by Hoeben CJ at CL.

Endnotes

AB 14.3.
AB 14.
AB 14.9.
AB 27.6.
AB 41.
T 30/09/2020 at p 14.6.

Amendments 22 October 2020 - Word "not" added to paragraph [32] so that it now reads: "Similarly, a sentencing judge is not required ..." 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: 22 October 2020

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