Martin v R

Court of Criminal Appeal (NSW)|2016-03-03|Before: Bathurst CJ, Hall J, Hulme J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/35698 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 March 2015 Before: Garling A-DCJ File Number(s): 2014/35698

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Hall J in this matter. I agree with the orders his Honour proposes and with his reasons.
So far as the additional remarks of R A Hulme J are concerned, I would prefer not to express any concluded view on the matters raised by his Honour, particularly in circumstances where they were not the subject of argument, nor necessary for the disposition of the appeal. However, in considering the issue there are two matters which, in my view, tend to lead to a contrary conclusion to that suggested by his Honour.

Sentences

The sentencing hearing was originally listed for hearing on 7 November 2014. The matter was not reached and was heard by Garling A‑DCJ on 26 February 2015.
The applicant was sentenced on 23 March 2015 as follows: Count 1 - In respect of the aggravated break, enter and commit larceny and taking into account the Form 1: 3 years imprisonment to commence on 30 December 2014 and expire on 29 December 2017 with a non-parole period of 1 year and 10 months to expire on 29 October 2016. Count 2 - In respect of the assault with intent to rob armed with an offensive weapon (syringe): 4 years and 6 months imprisonment to commence on 30 June 2015 and to expire on 29 December 2019 with a non-parole period of 2 years and 9 months to expire on 29 March 2018.
The sentencing judge backdated the sentence on Count 1 by 58 days from 26 February 2015 being the date the applicant first came before the District Court for sentencing, in order to take into account the period in custody bail refused on the subject offences from the date of arrest on 4 February 2014 until 1 April 2014 on which latter date he commenced serving a fixed term of imprisonment for 6 months for an offence of assault.
Accordingly, under the sentences imposed on 23 March 2015 the applicant is eligible to be released to parole on 29 March 2018.
The total effective sentence in respect of Counts 1 and 2, commencing 30 December 2014 and expiring on 29 December 2019, was 5 years with a non-parole period of 3 years and 3 months.

The Custodial Period in Respect of the Previous Assault Offences

The applicant was taken into custody on being charged with Counts 1 and 2 on 4 February 2014 and served a custodial sentence between 1 April 2014 and 24 February 2015, imposed in respect of offences of assault committed on 17 July 2009, 19 September 2012 and 22 September 2013. The applicant being on bail at the time of the subject offences committed on 4 February 2014.

Grounds of Appeal

In his Notice of Application for Leave to Appeal dated 8 October 2015, the applicant gave notice that he intended to rely upon three Grounds of Appeal, namely: Ground 1: The learned judge erred in failing to correctly apply the guideline judgment on armed robbery Ground 2: The learned sentencing judge erred in failing to correctly apply the totality principle and failing to give full effect to a finding of special circumstances. Ground 3: The sentence imposed was manifestly excessive.

Factual Matters Concerning the Offending

Prior to the commission of the offences the subject of Counts 1 and 2 for which the applicant was sentenced, he had not served a custodial sentence.
The sentencing judge accepted that the applicant had entered early guilty pleas to Counts 1 and 2 and showed remorse in a letter tendered to the court.
In his Remarks on Sentence the sentencing judge set out the facts in relation to each offence. These were based upon an Agreed Statement of Facts dated 26 February 2015.
It is not necessary to set out all of the full facts contained in paragraphs 1 to 13 of the Agreed Statement of Facts. A summary of the material facts is as follows: "On 4 February 2014 at approximately 10:30 pm, whilst on bail, the applicant entered a service station at Carlton, New South Wales. The only person inside the service station was the console operator, who was alerted to the applicant's presence by the door entry buzzer. The console operator looked towards the door and saw the applicant carrying a plastic bag in his left hand and a syringe in his right hand. The applicant approached the console operator and grabbed the sleeve of the console operator's shirt with his left hand and pointed the syringe at a distance of approximately 20 cm from the neck of the console operator. The applicant instructed the console operator to "open the till". The console operator backed away and then ran out the front door of the service station and activated the duress alarm. The Applicant ran out of and away from the service station store. Between 11:00 pm and midnight on the same night (4 February 2014), the Applicant entered a house in Blakehurst by opening a garage roller door and opening an unlocked internal door. Two people were asleep in the house. The Applicant took several items including an iPad. Police, who were patrolling the area following the earlier attempted robbery at the service station at Carton, arrested the Applicant nearby. The arrest of the Applicant gave rise to an additional charge of resisting an officer in the execution of duty, charge which was taken into account on a Form 1." (Applicant's Written Submissions at [9]-[11])

Applicant's Subjective Factors

At the time of sentence the applicant was 33 years of age. He had a criminal record commencing in 1997, including convictions for assault and drug offences.
As indicated above, at the time of the subject offences he was on conditional liberty (bail) in respect of the earlier assaults to which reference has been made above.
The applicant has had a lengthy history of substance abuse, dating back to his early teens. A report from Dr Richard Furst, Consultant Forensic Psychiatrist dated 31 October 2014 was tendered on his behalf at the sentencing hearing. The report contains a detailed analysis of his background and identifies the particular sources of information utilised by Dr Furst. These included medical records from St George Hospital and from Sutherland Hospital. I will refer to the applicant's attendance at Sutherland Hospital (approximately three weeks before the subject offences were committed) below.
Dr Furst observed that the applicant had a history of apparent learning difficulties being below average in public school and that he had behavioural issues. He was diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD) when he was 13 years of age.
On the history obtained the applicant was exposed to domestic violence and physical abuse in his childhood at the hands of his biological father.
He worked in various jobs after leaving school. These included labouring work and driving trucks.
He has a history of mood instability, taking an overdose of medication in 2007 and of suffering from chronic low mood.
There was also a history of apparent psychosis including an episode when he was 19 years of age requiring admission to Sutherland Hospital.
He had a further admission to that hospital at the age of 22 years when it is said he was thought to be suffering from schizophrenia.
The applicant has been in receipt of a disability support pension since 2009.
Dr Furst's report includes a history of the applicant using cannabis from the age of 13 years. He used 'ice' (methylamphetamine) from the age of 16 years.
From the age of 29 years he used heroin and was treated on the Opioid Substitution Program over a period of some 3 months in 2013. His prescribing doctor was an addiction medicine specialist in Campbelltown.
Dr Furst observed that he has been admitted to drug and alcohol rehabilitation centres on five occasions including the William Booth Program in the years 2001 and 2003, and to Odyssey House in 2007 and 2011. According to the history given to Dr Furst, the applicant apparently managed to stay abstinent from drugs between 2011 and 2013.
The applicant discontinued taking prescribed medication in relation to the lastmentioned program on 13 January 2014. According to the history given to Dr Furst he subsequently relapsed into drug use in the form of the prescription drug Tramadol (which has opiate-like properties), heroin and 'ice'. He was reported to have continued using those drugs up to and including the time of the subject offences.
Dr Furst recorded the applicant's desire to return to a drug and alcohol rehabilitation facility.
Dr Furst's report set out his review of relevant documents. These included, importantly, a summary of the entries in the records of Sutherland Hospital concerning the applicant's attendance approximately three weeks prior to the subject offences. In that respect the history recorded by Dr Furst (p 6) is as follows: "16/01/14: A presentation to Sutherland Hospital was noted on 16/01/14, less than three weeks prior to the offences in question before the Court. Mr Martin described 'panic attacks' and felt suicidal and had 'nothing to live for' requesting to go to a rehabilitation facility. Problems were noted in his relationship with Kelly and involvement of child protection services. He reported feeling stressed and sleeping poorly. Mr Martin was also noted to be agitated and low in mood. He said that he heard the voices of his ex-partner telling him to 'end it' and that 'the police are after him.' However, he was not thought to be suffering from a major mental illness." (AB at 59)
The sentencing judge noted in his Remarks on Sentence (p 3) that Dr Furst had diagnosed the applicant as having a substance use disorder, recurrent episodes of drug induced psychosis and personality disorder. His Honour also noted that Dr Furst stated that the applicant would benefit from drug and alcohol rehabilitation in an appropriate centre. He noted, according to the applicant's letter to the court, that he wanted to overcome his drug addiction and return to work and that in this regard he needed support and treatment. The sentencing judge further observed: "… He has previously successfully undergone some rehabilitation treatment and wishes to further rehabilitate himself. He has expressed remorse for the offences and said he was drug affected at the time." (ROS at p 3)
Garling A-DCJ also stated: "I am satisfied that there are special circumstances, in particular his need for drug rehabilitation, he has made attempts to rehabilitate himself and he really needs to be rehabilitated." (ROS at p 4)

Ground 1: The learned sentencing judge erred in failing to correctly apply the guideline judgment on armed robbery

The sentencing judge observed that in sentencing for an offence under s 97(1) (armed robbery) he was to take into account the matters set out in the Henry guideline: R v Henry [1999] NSWCCA 111; 46 NSWLR 346.
The guideline judgment in Henry confirmed that in cases of armed robbery, a full-time custodial sentence is to be imposed unless there are exceptional circumstances. The guideline case further established that a sentence of between 4 and 5 years for the full term of a single offence carried out by a young offender with limited criminal history was indicated.
I note that the particular characteristics in that category of case were set out by Spigelman CJ at [162] as follows: (i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case.
Spigelman CJ noted in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419 that the Henry guideline "should be understood to involve a late plea of guilty, for the purposes of the application of the guideline promulgated in these reasons". That is, where there is an early plea of guilty, the Thomson & Houlton guideline effectively reduced the four to five year starting range for Henry cases by 15%, to account for Henry involving a late plea equivalent to 10%.
Subsequent cases have clarified that a guilty plea entered late generally allows for a discount of 10% of the sentence: Speer v Regina [2004] NSWCCA 118 at [29] and R v Boney [2008] NSWCCA 313 at [25]-[28].
Having considered the matters set out in the Henry guideline, Garling A-DCJ considered that the applicant: "… is not quite young but he does not have a large criminal history, a weapon like a knife capable of killing or inflicting serious injury. There appears to be a limited degree of planning, limited if any actual violence, a vulnerable victim, a small amount, that is nothing taken and a plea of guilty. Henry provides for a head sentence between four and five years where that occurs. On his behalf it is submitted that it is low to mid-range, above low but below mid as the victim was unaware of his entry and there was no damage." (ROS at p 4)
His Honour proceeded upon the basis that the two offences, whilst occurring on the same day, were quite separate offences and that it was necessary that the sentences to be imposed should be partially accumulated. It was clear that his Honour intended to provide the applicant with a discount of 25% on the sentence otherwise to be imposed (ROS at p 5), but erroneously stated that the guideline judgment in Henry proceeded on the basis of a discount of 15%, not 10%.
In the submissions for the applicant it was stated that the sentencing judge provided no indication that he intended to depart from the guideline. The reference to 15% discount in the Henry guideline was wrong, it being noted that in Henry the discount of 10% was stated as relating to a late plea.
In support of Ground 1, it was submitted that had his Honour applied a discount of 15% in addition to the discount of 10% already incorporated into the Henry guideline, then the resultant head sentence would have been 4 years and 3 months. Such a term of imprisonment, it was stated, would have given effect to his Honour's stated intention of applying a 25% discount in respect of the second count.
Accordingly, it was contended that the head sentence of 4 years and 6 months should have been 4 years and 3 months, as 4 years and 6 months was a sentence longer than was warranted in all the circumstances of the case.
The Crown in its Written Submissions observed that his Honour appeared to have taken the view that, notwithstanding the applicant's age, he fell within the parameters set out in Henry. However, given his age as at the date of the offence (33 years) as well as his criminal antecedents the Crown observed that it was questionable that the applicant, strictly speaking, fitted the Henry criteria. Accordingly, the approach of applying the Henry guideline at all was said to have been one that unduly favoured the applicant.
The Crown accepted that his Honour misstated the discount on the basis of a late plea incorporated in the Henry criteria. However, it submitted that this did not add any weight to the submission for the applicant that his Honour should have applied an additional 15% to the 10% Henry discount. To do so, it was contended, would reduce the sentencing exercise to a mere mathematical exercise which is contrary to principle: Markarian v R [2005] HCA 25; (2005) 228 CLR 357.
The Crown also noted the applicant's concession that the guideline judgments are not to be rigidly applied. It submitted that the issue of calculation to which the applicant's submissions refer, would only carry weight if the guideline was one that required rigid application.

Decision: Ground 1

Apart from the age of the applicant, the sentencing judge was required to consider and give appropriate weight to countervailing matters set out in Henry in determining the sentence to be imposed. The countervailing factors in this case included, importantly, the matter on the Form 1 in respect of Count 1 as well as the fact that at the time the offences were committed on 4 February 2014, the applicant was on conditional liberty.
Those matters, the Crown submitted, further distinguished the applicant's case from the typical case to which the Henry guideline relates.
When all matters relevant to determining the sentence are taken into account, I consider that the head sentence imposed was a sentence that appropriately reflected the criminality of the offences after allowing for the relevant factors discussed above. I do not consider that the erroneous reference to the discount implicit in Henry could be said to have had a level of significance as to have negated the sentencing judge's overall assessment relevant to the sentencing exercise undertaken. I accept the Crown submission that the point raised by Ground 1 has not been shown to have impacted upon the instinctive synthesis undertaken by the sentencing judge: Markarian v R, supra, at 374, 379.
Accordingly, I do not consider that Ground 1 has merit, and should be dismissed.

Ground 2: The learned sentencing judge erred in failing to correctly apply the totality principle and failing to give full effect to a finding of special circumstances

The sentencing judge made a finding of special circumstances. As I have earlier observed, his Honour stated: "I am satisfied that there are special circumstances, in particular his need for drug rehabilitation, he has made attempts to rehabilitate himself and he really needs to be rehabilitated." (ROS at p 4)
As noted above: 1. In respect of Count 1, the applicant was sentenced to a term of imprisonment of 3 years, with a non-parole period of 1 year and 10 months. The ratio of the non-parole and the parole period to that sentence was accordingly 61.1% of the head sentence. 2. In relation to Count 2, the ratio of the non-parole period of 2 years and 9 months to the total term of the sentence of 4 years, 6 months, was also 61.1% of the head sentence.
The effective overall head sentence was a period of imprisonment of 5 years commencing 30 December 2014 and expiring 29 December 2019 with an effective overall non-parole period of 3 years and 3 months expiring on 29 March 2018, with a balance of term of 1 year and 9 months. In percentage terms, the overall non-parole period is 65% of the head sentence and the balance of the term is 35% of the head sentence.
Accumulated onto the custodial sentence imposed in relation to the assaults committed in 2009, 2012 and 2013, the total overall sentence is almost 5 years 11 months (or more precisely, 5 years 10 months 26 days). The total non-parole period of that effective overall sentence (including the period served in respect of the existing sentences) is 70.3% and the balance of term is 29.7%.
The Crown submitted that although the sentencing judge did not refer to the totality principle in his sentencing remarks, his Honour must have had regard to it in fixing the commencement date for the sentences on each offence as that was the only basis upon which he could have made the sentence for the s 97(1) offence partially concurrent with the s 112(2) offence: Crown Written Submissions at [22].
Accordingly, the Crown contended that there was no substance to the argument that his Honour did not have regard to the principle of totality.
As to the degree or extent of any adjustment of the statutory ratio, this, the Crown argued, was a matter for the discretion of the sentencing judge. The Crown observed that "[c]learly the 70% overall non-parole period has come about as a result of partial accumulation of the two offences for which he was being sentenced".
The Crown acknowledged that it is not clear whether his Honour intended that the end result would be only a 5% variation in the statutory ratio. The Crown further acknowledged that his Honour did appear to give significant emphasis to the applicant's need for rehabilitation "… but unfortunately did not specify how that rehabilitation could be better facilitated by a longer period of supervision on parole": Crown Written Submissions at [27].

Decision: Ground 2

The evidence before the sentencing judge established, firstly, that apart from other medical conditions, the applicant had a significant substance use disorder, that he had in the past sought and obtained rehabilitative treatment for that disorder, and that that had, at least for a period of time, resulted in improvement in his condition. Dr Furst's report also confirms that on 16 January 2014, approximately three weeks before the subject offences, the applicant attended Sutherland Hospital specifically seeking admission to a rehabilitation facility by reason of the severe problems reported and recorded in the records of Sutherland Hospital, but that unfortunately no known treatment appears to have been given to him and no referral made for him to be assessed and/or treated elsewhere. He accordingly was not admitted to a rehabilitation facility at that time, notwithstanding his need for treatment and his attempt to receive treatment.
In those circumstances, the sentencing judge's assessment and findings that the applicant had a need for drug rehabilitation, that he had made attempts to rehabilitate himself in the past, and that at the time of sentencing he needed to be rehabilitated, were well supported by the evidence having regard to the material and opinions referred to and expressed by Dr Furst in his report.
In these circumstances, although it may be accepted that the sentencing judge was mindful of the need to take into account the sentence imposed on the applicant by reason of his breach of the bonds in respect of the earlier assaults and made some allowance in terms of accumulation and concurrency in that respect, the overall or total sentence imposed did not give effect to his Honour's conclusion and findings concerning the applicant's need for rehabilitation and to then structure the sentences so as to allow for an appropriate parole period during which the applicant can be treated for his long‑standing substance use disorder. It is to be observed that no other circumstance was identified by the sentencing judge as a basis for the finding of special circumstances.
In summary, the essential complaint under Ground 2 is that, in spite of the finding of special circumstances, the total effective sentence, in particular, the effective non-parole period of approximately 70% did not give effect to the sentencing judge's intention to adjust the statutory ratio.
As stated in para [59] above, the overall sentences imposed for Counts 1 and 2 was a total of 5 years and a non-parole period of 3 years 3 months. Had no such finding been made, a non-parole period of 3 years 9 months would have been imposed. Accordingly, the sentences imposed allowed for an additional 6 months parole period and a corresponding reduction in the non-parole period.
The combined effect of the sentences for Counts 1 and 2 together with the existing sentences and the period when the applicant was bail refused (1 month 28 days) produces a combined overall sentence of approximately 5 years 11 months. On that basis, the reduction in the effective non-parole component (together with the pre-sentence custody) was only 3 months. When so analysed, although his Honour's sentencing for Counts 1 and 2 were intended to effect a reduction in the non-parole period of 6 months, the effect of the overall sentences and pre-sentence custody was to allow only for an additional period of 3 months.
In CM v R [2013] NSWCCA 341, R A Hulme J observed at [40]: "Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing Judge specifically intended, or it may be the result of inadvertence or miscalculation."
The principles and approach to be taken where it is said that a sentencing judge did not make an adjustment to the statutory ratio he or she intended were recently reviewed in Sabongi v R [2015] NSWCCA 25 per Hamill J with whom Hoeben CJ at CL and Johnson J agreed. In that case, his Honour observed that where a sentencing judge makes clear that he or she is aware that the total sentence is in accordance with the statutory ratio it would be rare for this Court to intervene. However, his Honour also stated at [84]: "Conversely, in cases where the finding of special circumstances was more broadly based than the accumulation itself and where the sentencing judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the "statutory norm" the court has intervened: see R v LWP; R v Thornberry; R v Keen; R v Street; R v Heron; M v R."
In the present case the sentencing judge did not state that he intended that the effective or total non-parole period was to be 70%. This is not a case in which his Honour in making a finding of special circumstances on the basis of the medical history of the applicant and the opinions expressed by Dr Furst intended merely to adjust the statutory proportion by the small margin of 5% between the statutory ratio of 75% and that produced by the overall sentence (70%). The medical evidence strongly indicated that the applicant, who is still a comparatively young man, has a real and pressing need for rehabilitation treatment. Dr Furst expressed the opinion that: "Mr Martin would probably benefit from a structured drug and alcohol treatment program, such as the Intensive Drug and Alcohol Treatment Program (IDATP) at the John Morony Correctional Centre (OMMPCC). 'Getting SMART', 'Getting SMART Recovery', Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) programs may also be indicated." (p 8)
I have concluded that Ground 2 has been made out and that this Court should intervene. The extent of the Court's intervention, subject to resolution of Ground 3, is addressed below.

Ground 3: The sentence imposed is manifestly excessive

The offence constituting Counts 1 and 2 were objectively serious offences, as indeed was acknowledged in the written submissions for the applicant. Drug addiction is not of itself a mitigating factor and, as a matter of general principle, does not automatically lead to a lesser sentence.
The sentencing judge made findings as to the seriousness of the offences, the necessity for personal and general deterrence, and the applicant's prospects of rehabilitation. No error has been established in respect of such findings. His Honour stated: ''The offences are very serious. One of the offences involves a serious break and enter where the occupants had gone to bed but were present in the house and whilst they did not see the offender he stole their property. The other charge of armed robbery with a syringe would have been terrifying for the victim and the offender must be punished in such a way that he knows that he cannot offend in this way and if he does he will be sentenced to terms of imprisonment. But more importantly that others in the community know that if they offend in this way they will be sentenced to terms of imprisonment. There is no doubt he must be sentenced to two terms of imprisonment. I am satisfied that there are special circumstances, in particular his need for drug rehabilitation, he has made attempts to rehabilitate himself and he really needs to be rehabilitated." (p 4)
The issue of drug addiction in sentencing has been a much‑discussed subject in many decisions of this Court: R v Henry (1999) 46 NSWLR 346 (as to the relevance of an offender's drug addiction in assessing the objective criminality of an offence and as being a relevant subjective circumstance, see in particular Wood CJ at CL at [270], [274] and [276]); Toole v R [2014] NSWCCA 318 at [4]; R v SY [2003] NSWCCA 291 at [61] per Whealy J (with whom Ipp JA and Howie J agreed); Jodeh v R [2011] NSWCCA 194.
It is accepted that the origin or extent of a drug addiction (or any attempts to overcome it) may be relevant subjective considerations where the addiction might impact upon the prospects of recidivism or impact upon the prospects of rehabilitation. The age at which an offender became addicted may be a relevant factor to be taken into account in mitigation at sentence: R v Todorovic [2008] NSWCCA 49 at [58]; SS v R [2009] NSWCCA 114; Henry, supra, at [273].
In the present case, as earlier noted, the applicant has a lengthy history of substance abuse dating back to his early teens, details of which were discussed by Dr Furst in his Report at pp 3-4. As there noted, the applicant discontinued his medication (Suboxone) on 13 January 2014, relapsing into drug use in the form of the prescription drug Tramadol, heroin and 'ice': Report at p 4.
There is no evidence as to why the applicant discontinued his medication on 13 January 2014. Although in the particular circumstances of this case the applicant's addiction since his early teenage years and his attempts at rehabilitation are matters to be taken into account as subjective mitigating factors, they are to be taken into account along with the objectives of retribution and deterrence: Henry, supra, per Wood CJ at CL at [269]. That said, given the nature and seriousness of the applicant's offences there was a need to ensure that the sentences imposed gave effect to the principle of general deterrence.
It is, of course, to be borne in mind that the maximum sentence for the offence of assault with intent to rob is a term of 20 years imprisonment. The maximum sentence for the aggravated break and enter was, as earlier indicated, 20 years imprisonment with a standard non-parole period of 5 years. The offence of assault with intent to rob, the subject of Count 2, whilst armed with an offensive weapon, was serious. The sentencing judge was also required to bring into account the further matter of resist officer in the execution of his duty taken into account on the Form 1.
In my opinion, no error in determining the head sentences in respect of Counts 1 and 2 has been established.
In determining Ground 3 it is also relevant to have regard to the fact that the sentence for Count 1 was partially accumulated on the non-parole period for the earlier offences of assault.
In my opinion, there is no basis for Ground 3. The head sentences imposed were not manifestly excessive.

Resentencing

R A Hulme J has helpfully reviewed in his judgment the relevant caselaw in which differing views have been expressed by members of this Court upon the issue as to what the High Court said in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42] requires. In that respect the issue in a case such as the present is whether the discretion is one that should be re‑exercised only in relation to the component of the sentence that is vitiated by error.
On that issue I have also had the benefit of considering the Chief Justice's observations in his judgment.
Given the fact that, as the Chief Justice and R A Hulme J have observed, this issue was not argued in these proceedings, I proceed upon the basis that, in re‑sentencing, the Court is required to engage in a fresh exercise of discretion, in that specific error has been established under Ground 2. Accordingly, for that purpose it has been necessary to bring into account in re‑sentencing the applicant all relevant facts and circumstances including those that have arisen since the initial sentencing.
The applicant was granted leave to rely upon his affidavit declared and affirmed 23 February 2016 in the event that this Court intervened. He is currently receiving methadone medication. He commenced year 10 studies whilst in custody but this was interrupted by the impact of his partner's recent death. He hopes to resume his studies and has expressed his keenness to undertake relevant rehabilitation programs but none have yet been available to him in custody.
Having regard to all relevant matters but being particularly mindful of the need for there to be sentences that are proportionate to the objective seriousness of the offences (R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15]), sentences of 3 years for Count 1 and 4 years 6 months for Count 2 are appropriate. However, intervention is warranted so as to provide for a longer parole period that will assist in supporting and promoting the applicant's rehabilitation. That can be achieved by an alteration of the non‑parole/parole period ratio in respect of Count 2.

Orders

I propose the following orders: 1. Leave to appeal be granted in respect of the sentences imposed by the District Court. 2. The sentences imposed by the District Court be quashed. 3. The applicant be re-sentenced as follows: 1. In respect of Count 1, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 1 year and 10 months to commence on 30 December 2014 and to expire on 29 October 2016, with a balance of term of 1 year and 2 months to expire on 29 December 2017. 2. In respect of Count 2 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years and 3 months to commence on 30 June 2015 and to expire on 29 September 2017, with a balance of term of 2 years and 3 months to expire on 29 December 2019. Accordingly, the applicant will become eligible for release on parole when the non-parole period expires on 29 September 2017.
R A HULME J: I agree with the orders proposed by Hall J and with his Honour's reasons.
His Honour has reassessed the sentences to be passed upon the applicant in accordance with what was said in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. In that case the issue was whether the entire sentence was affected by material error and in those circumstances it is perfectly understandable why the sentencing discretion should be exercised afresh by the appeal court. I have doubts, however, whether in every case in which error is found it is necessary and appropriate for this to be done. The issue was not ventilated in argument and so I am content in the context of this case for a fresh assessment to be made. However, I wish to make some observations about the issue.

Observations about what Kentwell v The Queen requires

The plurality judgment in Kentwell v The Queen includes (at [40]-[42]) a discussion of the differing views expressed by the members of this Court in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284. It held that the analysis of Spigelman CJ should be accepted. The judgment continued with the following explanation (in [42]): "When a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration [House v The King (1936) 55 CLR 499 at 505], the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing [s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"] and the factors that the Sentencing Act [s 21A] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that is the appropriate sentence for the offender and the offence."
Importantly for present purposes, the judgment immediately continues: "This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion."
An example was then provided of a sentence being affected by "legal error" by specifying the non-parole and parole periods in a sequence that is contrary to that mandated by the legislation. Such an error, without more, "does not affect the exercise of the sentencer's discretion". This indicates to me that it was not held that any error in sentencing requires a fresh exercise of the sentencing discretion. Arguably, it was held that only an error that potentially had an effect on the sentencing outcome invokes that requirement. Put another way, it is what has been held to have been affected by House v The King error that should be the subject of the "fresh exercise".
Some errors potentially affect the entire sentencing outcome. The error in Kentwell v The Queen was of that type and it is understandable that in such a case the entire sentencing discretion must be re-exercised. But some errors only affect a discrete component of the outcome: for example, the commencement date of the sentence; the proportion of the sentence represented by the non-parole period; or the extent of the discount for a plea of guilty or assistance to authorities. If an error of that limited type is all that is the subject of complaint on appeal, or is the only error in respect of which an appellant is successful in establishing, it seems illogical that the Court is nevertheless required to redetermine the sentence in its entirety.
In the present case the only error found in the sentencing of the applicant was a failure to give appropriate effect to the finding of special circumstances. No error in the assessment of the overall sentence has been found. In these circumstances it can be said that there has been no House v The King error that is held to have vitiated the exercise of the sentencing judge's discretion in the assessment of the overall term of the sentence. In such circumstances, why then should this Court do more than exercise afresh the sentencing discretion insofar as it concerns the setting of the non-parole component? Kentwell v The Queen is silent on this point as it was concerned with error that affected the entire sentence rather than a discrete component of it.
There are even more stark examples that come to mind where, in my view, it would be illogical for this Court to engage in a fresh exercise of the entire sentencing discretion. Say, for example, the sole complaint on appeal was that a judge failed to take into account a period of pre-sentence custody by backdating the sentence. Or, perhaps the judge, contrary to s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), post-dated the commencement of a sentence because the offender was serving an existing sentence but for which the non-parole period had expired.

Examples of this Court's application of Kentwell v The Queen

The approach this Court has taken thus far when responding to an error that affected only a component of a sentence sometimes has been to re-exercise the entire sentencing discretion afresh because it has been understood that Kentwell v The Queen requires it to do so.
In MD v R [2015] NSWCCA 37 the only ground of appeal was concerned with a sentence that failed to give effect to a finding of special circumstances because of a mathematical error. Gleeson JA (Johnson and Hall JJ agreeing) engaged in a thorough analysis of all factors bearing upon the total term of the sentence as well as the non-parole period before determining to impose the same overall term but with a reduced non-parole period.
The Court also expressed itself as having to re-exercise the sentencing discretion in other cases where the identified error was confined to the non‑parole component: Hutchen v R [2015] NSWCCA 101 at [44] (Hoeben CJ at CL, Adams and McCallum JJ agreeing) (the head sentence was maintained but the non-parole period reduced) and Wakeling v R [2016] NSWCCA 33 at [58]) (Davies J, Hoeben CJ at CL and Johnson JH agreeing) (the applicant conceded that no variation of the head sentence was required so the focus was upon the non-parole period)
In Arsiotis v R [2015] NSWCCA 275 the sentencing judge was found to have made a mathematical error in calculating the reduction of the sentence on account of the offender's plea of guilty. The judge allowed a 25 per cent discount but reduced a 24 month sentence to 20 instead of 18 months. This was the sole ground of appeal. But rather than merely correcting the error the Court (Bathurst CJ, Hidden and Davies JJ agreeing, at [8]) considered it "necessary for this Court to independently exercise its sentencing discretion". In the result, the same starting point was adopted but an 18 month term of imprisonment was imposed with a proportional reduction in the recognisance release order.
In Marrow v R [2015] NSWCCA 282 the only error was that the sentencing judge allowed a 20 per cent reduction for an early plea of guilty which was held to have warranted a 25 per cent reduction. There was a complete re-exercise of the sentencing discretion by the Court (Adamson J, Hidden and Davies JJ agreeing) in accordance with Kentwell v The Queen which resulted in a lower starting point being adopted and hence a lesser effective sentence being imposed.
In Alpha v R [2015] NSWCCA 225, with the agreement of Leeming JA and Price J, I (at [53]) expressed doubt about whether a complete re-exercise of the sentencing discretion was required where the sole issue was a mathematical error in reducing a sentence on account of an offender's plea of guilty and assistance to authorities: "The submissions for the Crown pointed out that where an arithmetical error is the sole basis of this Court's intervention in a sentencing appeal such intervention has been confined to simple correction. Burns v R [2008] NSWCCA 260 at [34], [37] and Young v R [2007] NSWCCA 114 at [26]-[28] were provided as examples. However, the Crown submitted that after Kentwell v The Queen [2014] HCA 37; 252 CLR 601 it seems necessary for the Court to re-exercise the sentencing discretion afresh. I am not sure that this will always be necessary; it seems to me that it would depend upon the nature of the error. However, in the present case I am prepared to carry out the task."
A more confined approach was taken in O'Connell v R [2016] NSWCCA 43. The sole complaint was that a finding of special circumstances was not reflected in the total effective sentence where individual sentences had been partially accumulated. The Crown contended that there was no principled basis for special circumstances to have been found. Fullerton J (Hoeben CJ at CL and Adams J agreeing) said (at [29]): "Since the appeal is limited to the question whether the sentencing judge erred in failing to adjust the non-parole period in accordance with his conclusion that special circumstances warranted such an adjustment pursuant to s 44 of the Crimes (Sentencing Procedure) Act, it is not necessary for this Court to consider whether the non-parole period and the additional term, taken together, were affected by an error of law. The only question for this Court was the propriety of the proportion of the sentence constituted by the non-parole period. Accordingly, it is necessary for this Court, in accordance with the principles in Kentwell v R (No 2) [2015] NSWCCA 96, to independently consider the application of s 44 of the Crimes (Sentencing Procedure) Act to the applicant's sentence and, in substance, if a lesser non-parole period should have been imposed, quash the sentence and pass the appropriately adjusted sentence."
Similarly, in Carroll v R [2015] NSWCCA 219 the only error identified was concerned with the application of the totality principle in sentencing for multiple offences. The Court (McCallum J; Hoeben CJ at CL and Adams J agreeing) stated (at [40]) that "in accordance with the principles stated by the High Court in Kentwell v R [2014] HCA 37, it is necessary to re-sentence the applicant". However, that exercise was confined to re-determining the degree of concurrence/accumulation of the sentences and followed a concession by Mr Game SC on behalf of the applicant that "it would not be inconsistent with the principles stated in Kentwell to preserve the terms of sentence determined by the sentencing judge" but to increase the degree of concurrency. There is nothing to indicate that the concession was based upon what Kentwell v The Queen requires and I suspect it was a practical one based upon the facts of the particular case.
Daniels v R [2016] NSWCCA 35 involved a sentencing judge purporting to make a parole order with conditions in the context of imposing a sentence of 4 years 6 months when the making of a parole order and imposing conditions is only permitted in the case of sentences not exceeding 3 years (per ss 50 and 51 of the Crimes (Sentencing Procedure) Act 1999 (NSW)). A question was raised as to whether the error should nonetheless be characterised as a sentencing error invoking the operation of s 6(3) of the Criminal Appeal Act 1912 (NSW) and thereby requiring the Court to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen.
Fullerton J (Hoeben CJ at CL and RS Hulme AJ agreeing) referred to the passage of the plurality judgment in Kentwell v The Queen at [42] that I have quoted above. Her Honour then said (at [28]-[29]): "In my view, the error in the sentencing exercise the subject of the second ground of appeal is an example of an error of the kind to which the High Court in Kentwell was referring. ['That is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion.'] After setting aside the parole condition (it being of no legal effect being made beyond power), the sentencing judge's appointment of a non-parole period of 3 years as the minimum period the applicant is to spend in custody is unaffected. … I do not regard the error in imposing a parole condition as part of the sentencing order as vitiating the exercise of the sentencing judge's discretion in this case. I would order that the parole condition be set aside but I would not move to re-sentence the applicant."
RS Hulme AJ added (at [61]): "Furthermore, while fully conscious of the decision of the High Court in Kentwell v R to which Fullerton J has referred, I am satisfied that in no way was any other aspect of the sentence affected adversely to the Applicant by his Honour's unauthorised imposition of a parole condition."
Viewed broadly, the approach taken in Daniels v R is consistent with confining the fresh exercise of the sentencing discretion to where an error as had potential impact upon the actual sentence imposed. In that case, the error was regarded as having had no potential impact at all.

Conclusion

The purpose of my engaging in this analysis is to make the general observation that there is, in my view, a persuasive argument in favour of this Court regarding Kentwell v The Queen as requiring a fresh exercise of the sentencing discretion in relation to the whole sentence when the sentencing discretion in relation to the whole of it is vitiated by error. Where there is error that does not entail vitiation of the entire sentencing discretion, but is an error that only affects a discrete component of the sentence that could have no potential bearing on the whole, the discretion should be re-exercised but only in relation to that particular component.

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