Lupica v R

Court of Criminal Appeal (NSW)|2024-02-26|Before: Harrison CJ, Cavanagh J, McNaughton J

JUDGMENT

HARRISON CJ at CL: I agree with McNaughton J.
CAVANAGH J: I agree with McNaughton J.
McNAUGHTON J: Ricky Lupica ("the applicant") has filed an appeal pursuant to s 5AF(3) of the Criminal Appeal Act 1912 (NSW) against a "final sentence" of 3 years and 9 months' imprisonment with a non-parole period of 2 years and 3 months imposed on him by Judge Still on 4 November 2022, in the Drug Court at Parramatta in relation to eight offences.
This is known as a "final sentence" because it was made in the Drug Court pursuant to s 12 of the Drug Court Act 1998 (NSW) (the Act). The applicant contends that errors occurred in the context of the sentencing process within the Drug Court regime. The applicant submits that errors in the initial sentence (before a different judge) were carried forward to the final sentence.

The grounds of appeal

The applicant relies on the following grounds of appeal: 1. The sentencing judge/s erred in determining the issue of parity; 2. The sentencing judge/s erred in the approach to the principles of totality and delay in setting the commencement date of the sentence; 3. The sentence is manifestly excessive.

Chronology of offending and sentences

As noted, the applicant's appeal relates to his sentence for eight offences. It is convenient to now set out the chronology of the offending and the sentencing for each of these matters.

Offences 1, 2 and 3 - Offending on 12 June 2021

The facts for the first three offences were set out in an agreed facts statement. The offending occurred in an underground carpark of a Penrith apartment block on 12 June 2021. The applicant was on parole. At about 12.05am, the applicant and two co-offenders gained entry to the car park through a roller door which had been opened to let a car out (Offence 2 - on indictment). Inside, the applicant gained entry to four locked storage containers using a pair of bolt cutters. The group removed three pushbikes and a bike mounted torch from the containers and left the building. The circumstance of aggravation for the break and enter was being in company with a man referred to here as AB, as well as another man.
As he left the building, the applicant saw a dash cam in a ute and smashed the ute's window (Offence 1). A co-offender then removed the dash cam (Offence 3). Police were called and the applicant and his co-offenders were arrested and the property recovered.

Offences 4 and 5 - Earlier offending on 23 May 2021

Offences 4 and 5 were two earlier offences committed by the applicant on 23 May 2021. At about 12.30am the applicant gained entry to the basement car park of a residential apartment building in Northmead. He approached a secure storage cage belonging to unit 8 and picked up a bicycle pump. He then went to a storage cage belonging to unit 3, which was locked and secured with a bolt and padlock. He broke the lock and remained in the storage cage for five minutes. He then tried to open the garage door but was unsuccessful.
The applicant then returned to the unit 3 storage cage where he picked up a toolkit and pressure washer before placing them next to a bin storage area. He then returned to the unit 8 storage cage and collected the bicycle pump taken from unit 3 together with a toolbox. He moved these items to the bin storage area.
The applicant left and returned in a car which he parked outside the entry to the basement garage. He placed the stolen items into the car and drove away. DNA matching that of the applicant was found at the scene.

Referral to drug program and initial sentence on 2 February 2022 for Offences 1, 2, 3, 4 and 5

On 22 October 2021, following pleas of guilty in the Penrith Local Court, the applicant was referred and/or committed for sentence to the Parramatta Drug Court pursuant to s 6 of the Act.
The initial sentence hearing for these five offences took place before Senior Judge Mottley on 2 February 2022, exercising the hybrid (Local and District Court) jurisdiction of the Drug Court. An initial sentence was imposed by her Honour in accordance with s 7A(2) of the Act. The Crown tendered a bundle of documents, including: the Indictment for Offence 2, a Statement of Facts, the criminal history, the custodial history and the traffic history of the applicant. In summary, Offence 2 was dealt with on indictment, Offences 1 and 3 on a s 166 certificate in the District Court, and Offences 4 and 5 in the Local Court.
No evidence was called by, or material tendered on behalf of, the applicant. Submissions were made on behalf of the applicant, without objection from the Crown, to the effect that: the applicant is one of a number of children; his mother and sister remain supportive of him; he has a 22 year old daughter with whom he has contact and two grandchildren; he was sexually assaulted by a teacher when he was aged 10 or 11; he started to abuse drugs around the time of the sexual assault, commencing with amphetamines and cannabis then escalating into heroin and methamphetamines; he had battled with drug addiction for a significant period; at the time of the offending, he had relapsed into drug use, was socialising with anti-social friends and was using ice daily; he committed the offences to fund his drug habit; he was diagnosed with anxiety and depression and was on prescribed medication; and he was unemployed prior to his arrest, but had employment prospects through his nephew.
In imposing the initial sentence, Judge Mottley provided ex tempore remarks on sentence. Her Honour noted the jurisdictional limit of the Local Court of two years' imprisonment applicable to Offences 4 and 5.
In relation to Offence 2, the aggravated break enter and steal, her Honour assessed the objective seriousness as falling below the midrange, and stated she found similarly in relation to Offences 1 and 3.
Her Honour noted the element of forethought in relation to the forced entry to the storage container and damage to the locks and referred to the effect of the offending on the victims.
As to offences 4 and 5, her Honour found they were not serious examples of offending of their type. Her Honour noted the lack of sophistication and planning involved, but also acknowledged the effect of the offences upon the victim.
All offences were found to have been aggravated by the applicant being on conditional liberty (parole) for similar offending at the time of their commission, and her Honour found there was a consequent need for greater weight to be given for personal deterrence and denunciation.
Early pleas of guilty entitled the applicant to 25 percent discount, as noted by her Honour.
Her Honour described the applicant's criminal history as a "crowded one". The applicant's adult offending commenced in 1991, when he was 18, with break and enter with intent offences. Her Honour referred his history as including driving matters, offences involving property, violence, dishonesty, drugs, and fraud. Her Honour also noted that the applicant had been serving continuous sentences of imprisonment for almost 6 years between October 2016 and January 2022. The criminal history disentitled him to any leniency.
The initial sentencing judge noted the applicant had been battling addiction for a very long time which had led to the commission of the serious offending. Her Honour also noted that he had been a victim of a very serious crime at a young age and stated: "One would think that there is a real nexus between the commission of that crime and your drug use over a period of time."
Her Honour referred positively to the applicant's acknowledgment of his offending and to his commitment to healing. Her Honour also noted the benefit to him of the support of his mother and sister, and that he hoped for a meaningful relationship with his daughter and two grandchildren.
Her Honour also referred to the applicant's co-offender, AB, who had already been sentenced in relation to the incident giving rise to Offences 1, 2 and 3, albeit in a different jurisdiction and who had a different criminal history. Her Honour concluded there were no relevant parity issues.
In tabular form - the details of the offences, the maximum penalty and the indicative sentences specified by her Honour are as follows: No Offence Maximum Penalty Indicative Sentences Destroy or damage property 2 years' imprisonment 1 (Crimes Act 1900 (NSW) s 195(1)(a)) (Drug Court exercising Local Court jurisdiction) 4 months' imprisonment (otherwise 5 years) 2 Aggravated break and enter and commit (steal) (in company) 20 years' imprisonment 2 years and 3 months' imprisonment (Crimes Act 1900 (NSW) s 112(2)) 5 years SNPP Larceny 2 years' imprisonment 3 (Crimes Act 1900 (NSW) s 117) (Drug Court exercising Local Court jurisdiction) 3 months' imprisonment (otherwise 5 years) Break, enter and steal 2 years' imprisonment 4 (Crimes Act 1900 (NSW) s 112(1)(a)) (Drug Court exercising Local Court jurisdiction) 12 months' imprisonment (otherwise 14 years) Larceny 2 years' imprisonment 5 (Crimes Act 1900 (NSW) s 117) (Drug Court exercising Local Court jurisdiction) 1 month imprisonment (otherwise 14 years)

Her Honour fixed an aggregate sentence of 2 years and 9 months with no non-parole period (s 7A(4) of the Act). Pursuant to s 7A(5)(b) of the Act the sentence was suspended from 2 February 2022, and from that date the applicant was released from custody to commence the Drug Court Program. It is important to note that as at this date, the applicant's earlier sentence had expired four days before 2 February 2022, on 30 January 2022.

Further three offences - committed whilst on Drug Court Program

Offence 6 - Intimidation of AL on 16 March 2022

On 16 March 2022, at 8.24am, prior to attending Drug Court, the applicant sent a text message to his sister, AL, with whom he had been arguing regarding the sale of their deceased father's home. Their mother was still living there. The text message read as follows: "Oi [AL] who's talking shut saying that yous ain't stopping until dads house gets sold like fuck who ever trys to have dads house sold Ill shoot in the face with a shot gun dad said he wants his house to stay a lupica house and thats the end of that I honestly dont give a flying fuck who wants to shoot there big fucking mouths of watch and see what happens."
AL spoke to police that day and requested an Apprehended Domestic Violence Order against the applicant. She first informed police she was not scared of him but then provided an account by way of a Domestic Violence Evidence in Chief statement indicating that she was a little scared. The applicant admitted to having sent the message.

Section 10 risk hearing arising from Offence 6 on 6 April 2022

On 6 April 2022, a risk hearing pursuant to s 10 of the Act was conducted by her Honour Judge Keogh. The Crown applied for the applicant's Program to be terminated pursuant to s 10(1)(b). Her Honour declined to terminate it, but instead gave a warning, and imposed a sanction of seven days' imprisonment from 6 to 13 April 2022. On 13 April 2022, the applicant was released from custody and continued the Program.

Offence 7 - Break, enter and steal on 26-27 April 2022

Between 4pm on 26 April 2022 and 7am on 27 April 2022, the applicant broke into a residence in Oakhurst. The residence was in the process of being renovated and was empty but secured. The applicant removed a flyscreen from the front window in order to open a glass window. He stole a commercial wet-dry vacuum and several power tools from the garage. The homeowner sought a compensation order for the value of the tools of $850.

Offence 8 - Break and enter with intent to steal on 4-5 June 2022

Between 11pm on 4 June 2022 and 8am on 5 June 2022, the applicant broke into a vacant residence in Hebersham. There was no furniture or items of value as the property was on the market to be sold. Again, the applicant gained entry through a front window flyscreen. He opened several cupboards and located hand tools. He placed some of the tools on a bench but ultimately left the premises without any item.

Termination of the applicant's Drug Court Program - 15 June 2022

On 15 June 2022, the applicant's Program was summarily terminated, the applicant having been returned to custody on 9 June 2022 following his arrest for Offence 8. The termination was pursuant to s 10(1)(b) of the Act, that the applicant's participation in the program posed an unacceptable risk to the community that he may reoffend.

Final sentence - 4 November 2022

On 4 November 2022, consequent upon the termination, the applicant came before the final sentencing judge for the imposition of final sentences pursuant to s 12 of the Act in respect of the offences for which the initial sentences had been imposed (Offences 1-5) as well as for the subsequent additional offending (Offences 6 - 8) which had been committed whilst he was on the Program. He had remained in custody bail refused since 9 June 2022.
At the final sentence hearing, the Crown tendered a bundle of documents (Exhibit A) consisting of the facts relating to offences 6 - 8, Program chronology, drug test history, sanctions history, criminal history, custodial history, traffic record report, and an email setting out the calculations of the applicant's pre-sentence custody. The Crown also relied upon the initial sentence remarks.
The applicant relied upon a psychologist's report of Mr Tim Watson-Munro ("the Report"), two letters of support (one from Dr Jedidiah Evans of Sydney University dated 3 November 2022 (who ran a writing workshop attended by the applicant in custody) and one from Mr Paul Baker, Governor of Parklea Correctional Centre dated 17 October 2022 (confirming that the applicant had spent time on the Drug Recovery Wing at Parklea Correctional Centre, engaging well with the programs offered)), and five certificates of completion for courses undertaken whilst in custody. In addition, the applicant gave evidence.
The Report set out the applicant's background and some relevant subjective considerations. At the time of the offending, he was 48 years of age, and at final sentence he was 49. The Report recorded that the applicant was receiving Buprenorphine on a monthly basis by way of depot injection which was treating his drug cravings, and that he was highly motivated to remain drug free now that he had detoxified.
The final sentencing judge, Judge Still, delivered his remarks on sentence ex tempore. He noted that the material before him included the initial sentence remarks of Senior Judge Mottley and that he relied upon that decision in relation to: "the matters taken into account, the facts of the offences including [the applicant's] criminal history at initial sentence."
Judge Still referred to first five offences in brief and noted the indicative sentences which had been imposed. His Honour then referred to the further three offences. Judge Still noted that he was obliged under s 12 of the Act to make an assessment of the applicant's participation on the program, to have regard to any sanctions served during the program and to take into account any time that he had served in custody referable to the matters being sentenced.
In relation to Offence 6, his Honour noted the text message was quite long and contained a specific threat of violence that concerned AL to the point that she contacted police. His Honour assessed the objective seriousness of the offence at just below the mid-point, noting there was no actual violence involved.
In relation to Offence 7, the final sentencing judge noted that the offence was clearly planned and not opportunistic. His Honour further noted that there was no confrontation or damage and the items were of a limited value. The objective seriousness was assessed as somewhat below mid-point.
As to Offence 8, his Honour noted that the offence was planned but that there was no damage and no confrontation. The objective seriousness was assessed as well below the mid-point. His Honour noted that the applicant had told the police he was using methamphetamine at the time of that offence.
A 25 per cent discount was provided in respect of the further three offences for the early guilty pleas. The final sentencing judge noted that the further three offences were aggravated by the fact that they were committed while the applicant was subject to conditional liberty, being the suspended sentence imposed by the Drug Court. It was also noted that he was subject to two specific requirements - not to further offend and not to commit acts of violence. His Honour also noted that the initial sentence had been imposed for the same type of offending.
As to the applicant's subjective case, the final sentencing judge noted the submissions made on his behalf. His Honour also referred to the applicant's evidence that he was sorry for his performance on the Program; he had taken steps to address his drug issues whilst in custody as demonstrated by the tendered material; he still enjoyed the support of his mother and sister; he has a plan for a better life; his Program was derailed due to a toxic relationship; and that he can address his drug issues by staying single and away from places and people associated with obtaining drugs, which he said would be easy.
The final sentencing judge referred in some detail to the Report, noting that it clearly stated that the applicant's program had been derailed due to an eight-week co-dependent toxic relationship with a woman who used various illicit drugs.
His Honour also noted that the applicant had reported to Mr Watson-Munro that he had been sexually abused by a school janitor at around the age of seven, and that Mr Watson-Munro was the only person he had told other than his father shortly before he had died.
His Honour referred to the Report's detailing of the applicant's history of drug-taking from the age of 12, which extended across various substances. It was noted that the Report set out results of psychometric testing informing Mr Watson-Munro's opinion that the applicant suffered from a depressive disorder and a protracted substance abuse disorder.
The voluntary steps to address his drug issues which the applicant had taken whilst in custody were acknowledged, and his Honour referred to his evidence that he had remained drug free on the Program until he entered the adverse relationship. The final sentencing judge noted that the applicant had stated he had committed the further offending in the context of being drug-affected and needing finance to support his and his then-partner's drug addiction.
The final sentencing judge also accepted Mr Watson-Munro's conclusions and relied upon them as a basis to find special circumstances, commenting that: "Underlying his drug use Mr Lupica has experienced unresolved symptoms of trauma referable to alleged sexual abuse which occurred during his formative years."
The final sentencing judge noted the applicant's criminal history had been dealt with at the initial sentence and referred in brief to his ten prior break and enter offences and four intimidation charges on his criminal history.
As required by section 12 of the Act, the final sentencing judge, in reconsidering the initial sentence, then undertook an assessment of the applicant's participation in the Program. His Honour noted that after the initial sentence was imposed in February 2022, he had used drugs and alcohol sporadically before a period of abstinence which was then followed by drug use in March. His Honour noted that on 16 March 2022, the day of the intimidation offence against his sister, the applicant had attended the Drug Court as part of his Program and, on that day, his test results indicated he had not used drugs.
The breach hearing on 6 April 2022 was noted by the final sentencing judge, including that the applicant had received a sanction of seven days' imprisonment, rather than a termination of the Program as sought by the Crown.
His Honour also noted that the court records showed there to be very little drug use after 6 April, but that the applicant had committed the break and enter offence (Offence 7) between 26 and 27 April 2022, and had attended the Drug Court on 27 April without referring to it. It was further noted that the next drug use occurred around 21 May, and the commission of the last offence was on 4 June 2022.
The final sentencing judge summarised the applicant's participation on the program noting that he had not progressed past the first phase of the Program, had used drugs whilst on the Program, had committed significant offences whilst on the Program and had not been honest. In conclusion, the applicant's participation was noted as poor and his Honour determined that he did not deserve any credit for his participation.
As to pre-sentence custody, the sentencing judge noted that the applicant had served a sanction of seven days' imprisonment whilst on the Program, and that he was bail refused after his arrest for Offences 7 and 8 for 148 days. His Honour declined to make an allowance for the days he had been in custody referable to his breach of parole for the earlier sentence. The sentencing judge stated that the sentence must reflect personal and general deterrence. A finding of special circumstances was made.

Final Sentence Orders

In relation to the first five offences, the final sentencing judge confirmed the initial sentence and revoked the suspension order made with respect to it.
As to the further three offences, the final sentencing judge noted that they were separate and discrete offences which required substantial accumulation. His Honour partially accumulated the further three offences upon the initial sentence. After allowing a 25 percent discount on each offence for the pleas of guilty, the following indicative sentences were specified:

Offence 6: 6 months' imprisonment;
Offence 7: 12 months' imprisonment; and
Offence 8: 9 months' imprisonment.

Ground 1 - The sentencing judge/s erred in determining the issue of parity

Applicant's submissions

The applicant's ground of appeal in relation to parity was correctly framed in the course of submissions as a contention that he has a justifiable sense of grievance when his indicative sentence for Offence 2 is compared with that of AB, who had, it is submitted, relevantly identical offending, and an equally poor criminal history. The applicant contends that the initial sentencing judge fell into error when she determined that parity was not relevant because of the difference in jurisdiction and the difference in criminal histories that had been provided to the Court, and this error, in turn, flowed through to the final sentencing judge. It was submitted orally that the initial sentencing judge should have considered parity in "a more detailed way". Ultimately, however, the test is whether the applicant has a justifiable sense of grievance.
The applicant notes that AB was sentenced in the Penrith Local Court on 21 October 2021 to 12 months imprisonment with a non-parole period of 4 months and 11 days. He was released immediately upon sentence. It is contended that in addition to the common offence with the applicant (that is, Offence 2), he had five separate offences, all of which were offences of break, enter and steal in some variation. It is submitted that he also had an equally, if not more, extensive criminal history than the applicant.
AB was not subject to conditional liberty when he committed the 12 June offence, but had very recently been so. In addition, he had another discount feature pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). The applicant submits that even acknowledging these differences, they do not account for his indicative sentence being so markedly different in relation to Offence 2 to that of AB.
It is further contended that during the final sentence, the final sentencing judge did not engage with the issue of parity and relied upon her Honour's initial observations of that issue. The transcript from AB's sentence proceeding in the Local Court was not before either the initial or the final sentencing judge.
The applicant argues that the sentence received by AB, for the same offending in relation to Offence 2, is such that it has led to a justifiable sense of grievance.

Crown submissions

After referring to relevant established authority on the issue of parity, the Crown noted that this ground of appeal related only to the indicative sentence for Offence 2 and only to the sentence in relation to one of the co-offenders.
The Crown noted that AB's sentencing proceedings took place in a closed court. The s 23 discount was in relation to a matter entirely unrelated to the subject offending and was, on any view, very significant. The outcome was such as to warrant AB being immediately released from custody.
AB's overall sentence of imprisonment was 12 months with a non-parole period of 133 days (four months and 13 days). The Crown pointed to a number of matters it contended made AB's sentence readily distinguishable from that of the applicant.

Consideration of Ground 1

The essence of the principle of parity is that equal justice requires identity of outcome in cases that are relevantly identical and different outcomes in cases that are different in some relevant respect: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (per Gaudron, Gummow and Hayne JJ).
The principles have been conveniently summarised by Weinstein J (Davies and Button JJ agreeing) in Vujinovic v R [2024] NSWCCA 10 at [48]-[52]: "The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 - 610 per Gibbs CJ. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ said:- Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (Citations removed) In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:- The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be 'gross', 'marked' or 'glaring' (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]). In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:- Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29]. I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [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?"
First, it can be noted that pointing to parity as a ground of appeal in relation to one out of eight indicative sentences when it is the aggregate sentence which is the subject of appeal, is a difficult argument to make good. As stated in XY (A Pseudonym) v R [2023] NSWCCA 50 at [66]: "[…] Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]."
Second, it is clear that it was open to the initial sentencing judge to consider the issue of parity, as it is acknowledged her Honour did, but then for her to find that the principle did not apply because of the different jurisdiction and the criminal history of the applicant.
Third, there are readily distinguishable differences between the applicant's matter and that of AB which undermine any argument that the applicant has a justifiable sense of grievance. They are these: 1. as noted above at [58], AB was sentenced in the Local Court; 2. AB's criminal history was significantly more limited compared with that of the applicant. AB had only two prior convictions in 2000 and 2003 whereas the applicant had nine prior break and enter convictions, all of which involved dwellings, and four of which were aggravated by the applicant being in company at the time of the offences; 3. the applicant was on parole when he committed the offence, whereas AB was not; and 4. most importantly, AB received a significant discount pursuant to s 23 of the Sentencing Act. He was clearly released from custody on the day of his sentence hearing in order to secure his safety, which could not be guaranteed in custody.
This ground of appeal has not been made out.

Ground 2 - The sentencing judge/s erred in the approach to the principles of totality and delay in setting the commencement date of the sentence

Applicant's submissions

The applicant pointed to the principles of totality which require a judge to consider not only the criminality involved in the offences for which they are imposing sentence, but also the criminality of the offending for which an offender is already serving a sentence. The applicant submits that neither judge appeared to have information in relation to the criminality involved in the offending for which he was subject to parole, and the task was therefore a difficult one.
Whilst the applicant acknowledged that the final sentencing judge referred to totality in the context of partial accumulation of the first five sentences and the last three sentences, as well as the representation of the individual criminality and separate victims of the offending, it is contended that the practical effect of the sentence indicated that those principles were not given "sufficient weight" when looking at his record as a whole in light of the relevant principles.
It is contended that the final sentencing judge erred in: 1. Failing to take into account the theoretical possibility of the applicant being re-granted parole had he not committed the offences for which the judge was sentencing him; 2. Failing to take into account the need to avoid any double punishment; 3. Failing to take into account that there had been considerable delay in the sentencing of the applicant and that this disadvantaged him in a particular and significant way, noting that AB had been sentenced when his plea was entered.
It was further contended that his Honour had taken into account the fact the offences were committed on parole as an aggravating factor, and that it was arguable that his Honour took that fact into account as a matter of aggravation in setting the terms of the indicative sentences. When exercising his discretion not to backdate the sentence to take into account time on parole, it is contended his Honour failed to identify any of the other factors which he was required to consider when exercising his discretion not to backdate the sentence.
The Crown had submitted before the final sentencing judge that it appeared that the applicant's parole had been revoked solely because he had committed the June 2022 offences (Offences 1, 2 and 3), and that it was a matter of discretion what, if any, credit would be given for the time spent in custody jointly attributable to the breach of parole and being bail refused on the June 2022 offences. The applicant's representative at the final sentencing hearing noted the wide discretion of the Court but submitted that the Court consider taking into account part of the time spent in custody following the revocation of parole.
The applicant referred to R v DW [2012] NSWCCA 66; (2012) 221 A Crim R 63, and further submitted that the final sentencing judge "ought" to have considered the question of delay, as it was "a matter of significance to the judge's exercise of his discretion in determining to what extent, if any, to backdate the sentence", albeit acknowledging that no argument about delay was put to the sentencing judge. The applicant also referred to R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [13] and the principle that "the discretion is generally circumscribed by a proper application of the principle of totality". It is contended that the final sentencing judge's discretion miscarried.
Further, as to the question of backdating and the commencement date of the sentence, the applicant argued that the usual approach of giving credit for pre-sentence custody was by way of backdating: Kaderavek v R [2018] NSWCCA 92, and that occurrences and conditions in custody were relevant to take into account: Kljaic v R [2023] NSWCCA 225.
The applicant, in particular, complained about the disparity in the start date of his sentence as compared with that of AB. AB's sentence commenced on 21 October 2021, the date on which he entered a plea of guilty.
The applicant pointed to the delay between the date of his committal on 22 October 2021 and the date of the initial sentence of 2 February 2022. Whilst acknowledging the delay was not "overly onerous", it is put that it came about because of the DPP's election to proceed on indictment due to an issue potentially enlivening s 58 of the Sentencing Act. It was submitted that this led to an "artificial starting point" of the sentence which led to "an unfairness in the overall parity and totality of the sentences ultimately imposed." It is contended that the final sentencing judge, in determining the start date of the sentence, should have taken into account the "delay" and should have taken into account the "on-program" time.
Relying on R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303, McKittrick v R [2014] NSWCCA 128; (2014) 243 A Crim R 155 and Sabra v R [2015] NSWCCA 38; (2015) 257 A Crim R 33, the applicant contends that the delay between his arrest on 12 June 2021 and the final sentence of 4 November 2022 (one year and five months) was not properly accounted for in the mitigation of the sentence, notwithstanding his failure of the Drug Court program during that period of time.

Crown submissions

In relation to the submission regarding the applicant's contention that the final sentencing judge's failure to consider the issue of totality, the Crown submitted that the applicant was not serving any earlier sentence at the time of either the initial or the final Drug Court sentencing hearing for the present offences. The Crown submitted that the final sentencing judge did consider the issue of totality when imposing the final sentences, referring to it with respect to offences 6, 7 and 8 and indicating a period of notional concurrence in the imposition of the final aggregate sentence.
As to the contention that the sentencing judge erred in the exercise of his discretion by not backdating the sentence to a time during which the applicant was in custody due to his revocation of his parole, the Crown submitted that the applicant would need to show a House v The King (1936) 55 CLR 499 error in the backdating exercise undertaken by the sentencing judge: Salafia v R [2015] NSWCCA 141 at [76]. The Crown set out the accepted principles in relation to pre-sentence custody and back-dating, including the discretion available to a sentencing judge where an offender is in custody following revocation of parole for an earlier offence. It was submitted by the Crown that the approach taken by the final sentencing judge was open to his Honour in the circumstances and showed no error.
As to the contended failure to backdate the sentence because of the putative delay, again the Crown pointed to the need for the applicant to show a House v The King error. In any event, the Crown submitted there was no relevant delay. The applicant's involvement in the Drug Court explained the lapse of time between his plea of guilty and final sentence date.

Consideration of Ground 2

The principles in relation to backdating to take into account pre-sentence custody are clear. If a period of pre-sentence custody is solely referable to the offence for which an offender is being sentenced, it is uncontroversial that credit, preferably by way of backdating, should be given: ss 24(a) and 47(3) of the Sentencing Act and Kljaic v R at [16] and [23]. However, where an offender has been in pre-sentence custody both because of the revocation of parole for previous offending, and because they have been bail refused in relation to the instant offending, the decision whether or not to backdate is within the discretion of the sentencing judge: R v Gray [2018] NSWCCA 241 at [62] and [122], referring to Simpson J in Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. Notably, in Callaghan, Simpson J stated: "22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences."
Further, in Ith v R [2013] NSWCCA 280 at [49], Hoeben CJ at CL referred to the above paragraphs in Callaghan, as well as, at [50], the passage relied upon by the applicant in DW, noting at [52]: "As the authorities make clear, the commencement date of the sentence was a matter of discretion for the sentencing judge. The commission of such a serious offence shortly after the commencement of parole for three other significant offences shows considerable contempt for the justice system. As such it is properly taken into account as a matter of aggravation. Another significant feature is the similarity between the offences for which parole was being served and the offence presently under consideration. In the circumstances of this case, I do not regard the commencement date of this sentence as constituting some form of double counting. On the contrary, to have further backdated the commencement date of the sentence would have offended the principle of totality and would not have provided adequate punishment and denunciation of the present offence."
In Rizk v R [2020] NSWCCA 291, Wright J at [115] (Basten JA writing additional observations on this point and concurring at [14]-[19] and Price J concurring) cited Hoeben CJ at CL's comments in Ith with approval. In Rizk, the applicant had committed further offences shortly after the imposition of an Intensive Correction Order (ICO). Justice Wright determined that to impose an aggregate sentence which was partially concurrent with the balance of the revoked ICO would not provide adequate punishment or denunciation of the offending.
In the present case, the applicant re-offended only two months after his release on parole and the offences were of the same type as those for which he was on parole. Further, the offending in breach of parole was on more than one occasion - that is, on 23 May 2021 and 12 June 2021. Despite this, the applicant was given the opportunity of participating in the Drug Court Program. This further conditional liberty was subject to a specific condition that he not re-offend. The applicant did re-offend. Again, he re-offended more than once whilst on the Program - that is, on 16 March 2022, 26-27 April 2022 and 4-5 June 2022.
For the final sentencing judge to decide, in his discretion, that in view of the history of re-offending whilst under supervision, he was not prepared to make any allowance for the time that the applicant had served for breaching his parole was consistent with authority and revealed no House v The King error. It was open to the final sentencing judge to regard the applicant's conduct whilst on conditional liberty as an aggravating feature, and not one that required backdating of the sentence. In the circumstances of this case, there was no element of double counting. The final sentencing judge's approach as set out in the following remarks was well open to him: "In circumstances where [the applicant] has failed his Drug Court program, he has further offended on three separate occasions and where he has been sentenced at the Drug Court for the matters which gave rise to him serving the balance of parole and has further offended, I do not propose to make any allowance for the days he has served for breach of his parole."
The other basis relied upon by the applicant for contending that the final sentencing judge erred in failing to backdate his sentence was on the basis of delay. As Simpson JA stated in White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 at [122], where there has been a delay in the sentencing proceedings, the question is: "[A]t what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date."
However, the instant case is markedly different from that of White. In White, the circumstances of the delay were set out at [117]: "Particulars provided to this Court show that the applicant entered a plea of guilty in the Central Local Court on 4 March 2014. This Court was told that the matter was listed for hearing in the District Court on 4 September 2014, but was not reached. It was relisted for hearing on 5 February 2015, and adjourned for further evidence to 20 February 2015. Sentence was passed on 2 April 2015. This was almost 2 years after the offences and the applicant's arrest. The first part of the delay was plainly attributable to the applicant's delay in entering his plea. The delay between entry of the plea and first listing is unexplained, but may be taken to be the caseload in the District Court. The delay between first listing and actual sentencing cannot be laid at the applicant's door."
In the instant case, there was no delay, other than that brought about by the applicant's involvement with the Drug Court Program, at his election. The course of the matter was as follows: 1. The applicant was diverted into the Drug Court Program on 22 October 2021. 2. The applicant received his initial sentence for the first 5 offences on 2 February 2022, that is, only three months and 11 days after he entered his plea of guilty in the Local Court. 3. The applicant received a suspended sentence and the opportunity to participate in the Drug Court Program for a number of months. 4. Offence 6 was committed on 16 March 2022, but the applicant sought and was granted the opportunity to continue on the Program. 5. The final two offences were committed in April and June 2022 and the applicant's Program was terminated on 15 June 2022. 6. On 15 June 2022, the applicant's legal representative sought an adjournment of eight weeks to resolve the two further offences and to obtain a psychological report for the applicant. The final sentence date was then listed for 19 August 2022. 7. On 8 August 2022, the applicant's legal representative sought a further adjournment to allow the applicant to complete the 12-week "Success for Life" program in custody.
Any so-called delay in this matter can clearly be attributed to the conduct of the applicant's case, presumably on his instructions. It is not the type of delay appropriately recognised by backdating the starting date of the sentence. In any event, such a submission was not made in the Court below on the applicant's behalf. No reason has been proffered as to why such a submission is now relied upon in this court when it was not put below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79]-[82] per Johnson J.
Finally, the applicant submitted that the final sentencing judge failed to consider the issue of totality, not only in relation to the present sentences, but also in relation to any other sentences he was serving. Ultimately, the submission was reduced to asserting that the issue was not given "sufficient weight".
That contention must be rejected. The final sentencing judge did consider totality, in terms, when specifying the final indicative and aggregate sentences. Further, as noted, the applicant was not serving any earlier sentence at the time of either the initial or final Drug Court sentencing for the present offences, and therefore no totality issue of that type arose in this matter. In any event, a complaint that the sentencing judge failed to give the issue "sufficient weight" is not a matter which can readily be made out in the context of pointing to House error: Geraghty v R [2023] NSWCCA 47 at [94]-[95].
Ground 2 is not made out.

Applicant's submissions

After referring to the accepted principles, the applicant submitted that when considering the factors relevant to an assessment of the objective seriousness of the overall offending, it is clearly the product of a long-standing, unresolved drug addiction, being largely opportunistic, and each individual matter falls below the mid-range in seriousness.
It was contended that the final sentencing judge failed to consider the relevance of the childhood deprivation and trauma background, and how that would or should have impacted upon the initial sentence, referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] and [44].
It was submitted that the final sentencing judge had material before him that was not before the initial sentencing judge. Such material should have been considered when determining whether to adopt the initial sentence wholly, given the significance of that material in explaining the applicant's background, his offending behaviour and his "non-linear progress" in rehabilitation attempts like the Drug Court Program.
Complaint was also made that the final sentencing judge erred by not considering the application of s 58 of the Sentencing Act in relation to Offences 4 and 5, particularly in relation to the issue of institutionalisation.
Finally, the applicant contended that the final sentencing judge double counted his failure to complete the Drug Court program.

Crown submissions

After setting out the relevant principles, the Crown submitted that there was no proper basis for these three criticisms of the final sentence, and that the ground of manifest excess had not been made out.

Consideration of Ground 3

The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]: "• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
As further noted by Bell P (as Bell CJ then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] to these principles can be added: "1. Sentencing is an 'exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions' - Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56]; 2. Each case has to be considered on its own merits, and no case is entirely similar to any other - Windle at [61]; 3. There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate - Windle at [61]; 4. An applicant seeking to challenge a sentence on the ground of manifest excess has a 'very heavy practical burden', and must show a kind of disproportion which is so 'manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law' - R v Elemes [2000] NSWCCA 235 at [22]-[23]; 5. The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 - Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59]; 6. The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) - Turner at [68]; 7. Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process - Dinsdale at [6]; Simmons at [30]; 8. Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range - Martinez v R [2020] NSWCCA 250 at [39]; 9. Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight - Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]- [60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and 10. Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender - Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64]."
Finally, given the sentence in this matter is an aggregate sentence, it is also important to remember the following principles conveniently set out in XY (A Pseudonym) v R at [66]-[67]: "Where an aggregate sentence is imposed, as in this case, the operative sentence is the aggregate sentence and it is this sentence which must be shown to be manifestly excessive if an applicant is to succeed on such a ground of appeal. Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. In an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved: Aryal at [49]-[50], citing JM v R at [14]."
As to the factors relied upon by the applicant to help to make good his contention of manifest excess, the following can be observed.
First, the applicant's background falls short of the "profound childhood deprivation" discussed in Bugmy. Further, the submission now advanced was not put on his behalf in the sentencing proceedings. What was taken into account by the initial and final sentencing judges, however, was the applicant's background, including the alleged sexual offending against him as a child, and the relationship between that and his substance abuse issues.
Second, as to the argument based on s 58, it can be noted that s 58 relevantly provides: 58 Limitation on consecutive sentences imposed by Local Court (1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began. … (4) In this section - existing sentence means an unexpired sentence, and includes any expired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively (or partly concurrently and partly consecutively).
In essence, s 58(1) of the Sentencing Act provides that a Local Court (or District Court on appeal) may not impose a new sentence of imprisonment to be served consecutively, or partly concurrently and partly consecutively, with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or the first existing sentence if there is more than one) began.
As was made clear by R v Perrin [2022] NSWCCA 170; (2022) 301 A Crim R 160 at [80] by Wright J (Ward P and Harrison J agreeing), if there is no existing sentence as at the date of the imposition of the new sentence, s 58 is not engaged.
Here, the applicant's earlier sentence had expired at the time of the imposition of the initial sentence on 2 February 2022. Section 58 had no work to do. The fact the applicant missed out on the benefit of the operation of s 58 by only a few days was relied upon in oral submissions by the applicant in this Court as a factor which should have been taken into account by the final sentencing judge in a more general way in terms of the risk of institutionalisation.
The oral argument before this Court made in relation to the risk of institutionalisation is not persuasive in light of the period the applicant spent out of custody whilst being given the benefit of the Drug Court Program.
Finally, as to the contention that the final sentencing judge double counted the applicant's failure to complete the Drug Court Program, the following can be noted. The final sentencing judge was required to consider the nature of the applicant's participation in the Drug Court Program: s 12(2)(a) of the Act. As part of that assessment, his Honour was entitled to consider the applicant's offending during the Program as a matter tending against making a positive finding in respect of his participation. It was also open to his Honour to notionally partly accumulate the sentences for Offences 6-8, both in relation to each other and in relation to Offences 1-5 because they were separate and discrete offences. His Honour was entitled to note that the offences had been committed whilst the applicant was subject to a suspended sentence in the Drug Court, a form of conditional liberty.
The approach taken by his Honour did not amount to impermissible "double counting". Rather, the factors taken into account by his Honour were properly and separately available to him for consideration.
The applicant has not made good the ground that the final aggregate sentence was manifestly excessive. The final sentence was for eight offences, over five different occasions and involved different victims. All offences were committed while the applicant was on some form of conditional liberty, and in circumstances where his criminal history afforded him no leniency. The aggregate sentence was not unreasonable or plainly unjust.
Ground 3 is not made out.

Proposed orders

The orders I propose are therefore as follows: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 03 July 2024

(Crimes Act 1900(NSW)s 195(1)(a)), s 112(2)), s 117), s 112(1)(a))

(2021) 104 NSWLR 518

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