McMillan v R

Court of Criminal Appeal (NSW)|2024-02-23|Before: Garling J, McNaughton J, Weinstein J

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Alan McMillan, the applicant, was sentenced in the District Court for a single charge of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW) ("subject offence"). In March 2021, the applicant and a co-offender, Mr Andrew Nath, entered a suburban liquor store. The victim, working alone, exited the office and encountered the applicant (wearing a folded bandana around his face) and Mr Nath (wearing a balaclava and wielding a Samurai sword). Mr Nath threatened the victim with the sword and stole approximately $460 cash from the register. The applicant stole five bottles of rum. The applicant spent three distinct periods in custody referable to the subject offence as well as other unrelated offences: Period 1: From 29 March to 11 December 2021 for the subject offence; Period 2: From 14 June to 7 September 2022 for unrelated offending; and Period 3: From 8 September to 9 December 2022 for the subject offence. On 7 September 2022, the applicant was sentenced for the unrelated offending to which he had pleaded guilty. In sentencing the applicant, the Local Court Magistrate took into account the period that the applicant had already spent in custody. The Magistrate ultimately imposed three Community Correction Orders on the applicant. On 9 December 2022, the applicant was sentenced for the subject offence. Pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), the sentencing judge was required to take into account any time for which the applicant had been held in custody in relation to the offence. During the sentencing hearing, the applicant submitted that Period 1 was solely referable to the subject offence. That submission was correct. He then submitted that the applicant's time spent in custody during Periods 2 and 3 were "also by virtue of the fresh offence that [the applicant had] been sentence[d] for". That submission was either incorrect or incomplete. The applicant was sentenced to 6 years' and 6 months' imprisonment with a non-parole period of 4 years. The sentencing judge calculated the commencement date by allowing for the entirety (100%) of Period 1 and half (50%) of Periods 2 and 3. In accordance with s 47(2)(a) of the Sentencing Act, his Honour directed that the sentence of imprisonment be backdated to commence on 28 December 2021. The applicant sought leave to appeal against sentence on three grounds: Ground 1: The sentencing judge erred by failing to consider all pre-sentence custody; Ground 2: The sentencing judge erred by imposing a sentence that was manifestly excessive; or, in the alternative to Ground 2 Ground 3: The disparity between the sentences of the applicant and his co-offender, Andrew Nath, gives rise to a justifiable sense of grievance. The Court (McNaughton J, Garling J and Weinstein J agreeing) held, granting leave to appeal and allowing the appeal: During Period 2, the applicant was in custody for both the subject offence and unrelated offending. During Period 3, the applicant was only in custody in relation to the subject offence. The sentencing judge was led into error by treating both periods as partly referable to the unrelated offending and apportioning both periods by 50%: [21], [76]. It is not possible to know how the sentencing judge would have dealt with Period 2 had they been informed of the sentencing remarks of the Local Court Magistrate. The error made is more than a mere arithmetical error that can be rectified by a simple mathematical adjustment. In this case, approaching the sentencing exercise afresh is appropriate: [89]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 47, applied. The mandatory s 24(a) provision of the Sentencing Act has a general effect and is independent from s 47(3). Part 3 of the Sentencing Act applies to all custodial sentences, non-custodial alternatives and fines. One purpose of sentencing is to ensure the offender is adequately punished for the offence. When combined with s 24(a), pre-sentence custody is a relevant matter to consider in determining, if it is a borderline determination, whether a non-custodial penalty is appropriate. The phrase "must take into account" in s 24 of the Sentencing Act has a general meaning (i.e., "must consider" or "must have regard to"), rather than any necessary arithmetical meaning: [90]-[93], [95], [97]. Park v The Queen (2021) 273 CLR 303; [2021] HCA 37; R v Eckersley [2021] NSWSC 562; Mandranis v R [2021] NSWCCA 97, referred to. It is accepted that the authorised and preferred albeit not mandatory approach is that s 47(3) of the Sentencing Act means that a judicial officer may back-date a sentence to account for time spent in custody in relation to the offence. Further, the accepted approach is that pre-sentence custody should be taken into account only once. In circumstances where pre-sentence custody is difficult to quantify, it may be necessary to examine the remarks associated with the imposition of a penalty to determine the allowance made: [104]-[105]. Hunt v R [2021] NSWCCA 192; Klijaic v R [2023] NSWCCA 225; Huynh v R [2024] NSWCCA 61, applied. The Magistrate had previously taken Period 2 into account when sentencing the applicant for the unrelated offending. In accordance with ss 24(a) and 47(3) of the Sentencing Act, the applicant is to have the full benefit of Periods 1 and 3 by backdating the sentence imposed: [107], [131].

JUDGMENT

GARLING J: I agree with the orders proposed by McNaughton J and with her Honour's reasons.
McNAUGHTON J: The applicant, Alan McMillan, has applied for leave to appeal against a sentence of imprisonment of 6 years and 6 months with a non-parole period of 4 years, having been found guilty by a jury, on 12 August 2022, of a single charge of robbery in company (an offence contrary to s 97(1) of the Crimes Act 1900 (NSW)). The robbery took place at a suburban liquor store in Epping, a suburb of Sydney. Cash in the sum of $460 and five bottles of rum were taken during the course of the robbery.
The sentence was handed down by Wilson SC DCJ on 9 December 2022, in the District Court of New South Wales at Sydney. The sentence commenced on 28 December 2021, and is set to expire on 27 June 2028, with the non-parole period to expire on 27 December 2025. The sentencing judge found special circumstances resulting in a ratio of 61.5% between the head sentence and the non-parole period.
The applicant's co-offender, Andrew Nath, had earlier pleaded guilty during committal proceedings and was sentenced on 14 December 2021, to the same offence by a different judge, Robison DCJ, to a sentence of imprisonment of 5 years and 3 months with a non-parole period of 3 years. Absent the 25% discount for the plea of guilty, Mr Nath's head sentence would have been 7 years' imprisonment.
The maximum penalty for a contravention of s 97(1) is 20 years' imprisonment. There is no standard non-parole period.

Grounds of appeal

The applicant relies on three grounds of appeal, as follows: 1. The sentencing judge erred by failing to properly consider all pre-sentence custody. 2. The sentencing judge erred by imposing a sentence that was manifestly excessive. OR, in the alternative to Ground 2 1. The disparity between the sentences of the applicant and his co-offender, Andrew Nath, gives rise to a justifiable sense of grievance.

Evidence on appeal

In addition to the usual material, the Crown also read, without objection, an affidavit of James Loosley affirmed 14 February 2024, annexing an updated copy of the applicant's convictions obtained by the Crown on 27 November 2023 containing details of his convictions in relation to unrelated summary offences with which he was charged in June 2022 ("unrelated summary offences"). It also set out other relevant information, including information in relation to the applicant's breach of bail in June 2022, and annexed the bench sheet and police facts relating to the breach of bail, as well as the transcript from the sentencing proceedings in relation to the unrelated summary offences. The Crown relied on this material on the appeal proper, as well as on any resentencing exercise undertaken by this Court.
Affidavit evidence on behalf of the applicant was received on the usual basis in the event of resentence.

Sentencing proceedings

Sentencing proceedings took place on 9 December 2022. The Crown tendered a Crown bundle containing the Crown Sentence Summary (which included details of custody purportedly in relation to "this matter only"); the trial indictment; the applicant's NSW criminal history; the applicant's NSW custodial history; the remarks on sentence for co-offender Andrew Nath; and the victim impact statement. Also tendered by the Crown was a document setting out the agreed facts after trial; a bail report; the curriculum vitae of Anthony Diment, consultant psychologist; and the CCTV footage of the offending.
The applicant tendered a report of Mr Diment, a letter from the Ryde Community Mental Health Centre Outreach Team, a letter from the applicant's mother, a letter from the applicant, a sentencing assessment report by Sara Lindsay, and a letter of attendance of a number of different behaviour and vocational oriented courses in custody.
The applicant's mother's letter set out the difficulties she has had in maintaining contact with the applicant in custody for a period of several months. She also stated that she would support him on release to help him keep on track with his medications and rehabilitation.
The applicant's letter set out his "sincere remorsefulness & regrets for [his] past actions", that he has "taken responsibility" and was "truly sorry for the crime committed wholeheartedly, & sympathetic to the victim".
The sentencing assessment report had been prepared for the unrelated summary offences dealt with at Hornsby Local Court on 7 September 2022. It was noted that the applicant had been staying in stable accommodation with his parents at the time of the arrest, but due to an Apprehended Domestic Violence Order protecting his mother, he was no longer able to reside at their address. He has a pro-social friend who has offered him accommodation when he is released from custody. He has two school aged children who he visited monthly when in the community. He has been in receipt of the Disability Support Pension for the past 10 years due to his mental health issues.
The sentencing assessment report further noted that the applicant had first come into contact with Community Corrections in 2003, and was supervised again in 2007 and 2012, with each period being noted as satisfactory.
The applicant's criminal history was noted to be lengthy, having commenced in 2002 with juvenile offences and continued in a pattern of mainly assault and property destruction related offences which were associated with ongoing mental health and substance abuse issues.
The CCTV footage was played to the court. Written and oral submissions were made on behalf of the applicant and the Crown.
In oral submissions, the applicant's counsel accepted the offending was in the mid-range.
Between the period of his conviction on 12 August 2022 and the date of the sentencing proceedings, it was submitted that the applicant took responsibility and acknowledged the position taken by the jury. It was noted by the sentencing judge in the course of the hearing that the Crown conceded that prima facie there was an expression of remorse towards the victim. It was put that the applicant was not a good vehicle for general deterrence, or specific deterrence because of his mental health difficulties. It was acknowledged that this offence was the most serious on his criminal history. It was noted by the sentencing judge in the course of the hearing that the Crown had conceded that there remained some prospects of rehabilitation.
In the course of the sentencing hearing the applicant submitted the following in relation to pre-sentence custody. The first portion of custody, until being granted bail in December 2021, was solely referable to this offence. This was correct. He then submitted: "The second part of […] remand from June until now is also by virtue of the fresh offence that he has now been sentence[d] for in the Local Court". (Emphasis added.)
The sentencing judge then confirmed this with the applicant, and it was confirmed as correct.
Unfortunately, this submission was incorrect, or at least, incomplete, given the sentence in the Local Court had occurred earlier - on 7 September 2022 - and he was sentenced to non-custodial penalties on that day. I will return to this issue below.
The sentencing judge then indicated that his usual approach to the discretion in relation to the apportionment of dual pre-sentence custody was 50%. He turned to the sentencing assessment report which referred to the unrelated summary offences and noted that they were for fail to comply with the request for signal to stop vehicle, possess unauthorised prohibited firearm (a gel gun), and two times custody of knife in public place (subsequent offences), one of which was a machete and one was a knife. His Honour commented that it was probably unlikely (in the absence of the current proceedings) that the applicant would have been bail refused in respect of those summary matters. His Honour further noted that the reason he was returned to custody and was bail refused following a revocation of bail seemed to be attributable to this matter and the subsequent less serious offending.
The consultant psychiatrist, Mr Diment, recorded in his report that the applicant told him that he had been drinking at a fairly high level at the time, and was drunk. The applicant further stated that the guy he was with was not a good influence on him. He claimed to have gone along not knowing he would do what he did or what would happen.
The report also included the following quote from the applicant: "I feel horrible about all this (offences) and I do regret what happened. I feel sad and stupid because I know what I am capable of. Never done anything this bad before. I also have thought of the guy in the bottle shop a lot and realise he must have been scared. Do feel bad about that too."
Mr Diment's report also included an opinion that the applicant's offending was against the background of anxiety and depression (compounded by regular illicit drug use (ecstasy, and amphetamines) and alcohol). He stated: "Both anxiety/depression have the strong potential to impair an individual's usual decision-making and thought processes especially in a situation of heightened emotional arousal which likely existed at the time of the offences. This provides a nexus for his behaviour at the time although this is somewhat confused by his state of intoxication (alcohol affected) and prior use of various illicit drugs."
Mr Diment noted that the applicant's schizoaffective disorder appeared to be currently stable and he had been receiving monthly depot injections of an anti-psychotic medication.
As to parity, it was submitted that the co-offender had committed the offence whilst subject to a community correction order arising from a shoplifting matter, whereas the applicant was not on conditional liberty when he committed the offence. The other distinguishing factor relied upon by the applicant was the role played by the applicant in the offending which was contended to be a lesser role.
It was further put that the applicant's mental health difficulties meant that there was a decrease in his moral culpability, albeit that the sentence for the co-offender also recognised reduced moral culpability on a similar basis.
In its oral submissions on parity before the sentencing judge, the Crown highlighted that the offenders' initial approach to the liquor store was led by the applicant, but acknowledged the co-offender's carrying of the sword was a point of distinction in relation to moral culpability between the co-offenders, but only a slight one.
The Crown also highlighted the distinction brought about by the applicant's plea of not guilty as against the co-offender's plea of guilty.
The Crown conceded the general history of mental illness shown by the letter from the Area Health Service, and reflected by the discharges on the applicant's criminal history under the Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed) and the fact he was in hospital when he was arrested. There was no contest as to the diagnoses of schizoaffective disorder and polysubstance abuse. Issue was taken with the with the diagnosis made by Mr Diment of a major depressive illness with anxiety, and the link between the offending and intoxication related to the depression.
The Crown accepted that the sentencing judge was entitled to make adjustments in relation to the applicant's moral culpability and the extent to which he is a good vehicle for deterrence.

Remarks on Sentence

The sentencing judge delivered his remarks on sentence ex tempore immediately following the sentencing hearing.
The remarks commenced with details of the charge and the maximum penalty, followed by the well-known passage from R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry") at [99] (Spigelman CJ): "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment".
His Honour then noted that the applicant had been arrested whilst attending hospital on 29 March 2021, the offending having taken place on 21 March 2021. The applicant was initially bail refused and remained in custody until 11 December 2021, at which time he was granted bail. I interpolate here that this period of custody which is solely referrable to this offence is correctly referred to in the remarks. The sentencing judge then stated "[h]e was then remanded back into custody on 15 June 2022 following unrelated offending and he has remained in custody since that time". This is also correct.
The sentencing judge noted that there was a co-offender and that there was a parity issue.

Overview of facts

The sentencing judge determined it was appropriate for the applicant to be sentenced in accordance with facts which had been agreed by the parties after the conclusion of the trial. As noted, the CCTV footage was also tendered and played on sentence. Those facts are in essence as follows.
On Sunday 21 March 2021 at about 5:20pm, the applicant and Mr Nath exited a white station wagon parked off Boronia Avenue, Epping whilst an unknown driver remained in the vehicle. The applicant exited the front passenger seat carrying a black backpack over his shoulder, and Mr Nath exited the rear passenger seat. At about 5:22pm, the two men walked away from the parked car. They approached a store named Easy Liquor Epping, around the corner on Midson Road. The store is located in a quiet suburban neighbourhood. The victim was working alone at the store doing paperwork in an office behind the counter area, having acquired ownership of the business around 14 weeks prior to the offending.1
The men walked towards the location and stopped briefly. The applicant looked into the store before he and Mr Nath retreated towards the location from which they had come. A camera from a nearby business captured audio as well, and the two men can be observed having a discussion. The applicant walked into a phone box and picked up a telephone while Mr Nath stood nearby.
The two men then entered the store. Prior to entry Mr Nath pulled on a balaclava. As they walked into the store, Mr Nath pulled up his shirt, revealing the top portion of a Samurai sword. The two men walked towards the back of the store and looked around for a short time.
An entry buzzer alerted the victim to the presence of the men. He checked the CCTV. After about five seconds he walked out of his office, and by this point the men were midway into the store. The victim exited the office and stood behind the counter.
The two men walked from the back of the store towards the front. As they did this, the applicant tied a dark coloured bandana-like piece of material, folded into a triangular shape, around the bottom half of his face.
Mr Nath pulled the Samurai sword from his pants, removing it from its sheath as he continued to walk forward.
The victim described both the offenders as thickset men, slightly shorter than six feet. The applicant was carrying a black gym bag.
The victim saw the Samurai sword when the two men were approximately one metre away from him. He realised he was being robbed and that he was trapped behind the counter. Mr Nath threatened the victim with the Samurai sword while the applicant stood behind him. Mr Nath said: "[g]ive me the money, open the till". The victim unlocked the cash register and took a step back. Mr Nath removed all the notes stored in the cash register, amounting to approximately $460. As this occurred, the applicant placed five bottles of rum from the store inside his backpack. The victim was fearful and felt that his life was in acute danger.
After removing the notes from the register, Mr Nath told the victim to open the safe which was located in the office behind the victim. The victim told the men "[r]ight, I'm going to do it. Guys, the keys are at the back of the shop, I'm going to get the keys", pointing towards the back of the store.
The victim walked past Mr Nath who was still holding the Samurai sword, and then sprinted out the front of the store, turning left and running along the footpath. He then stopped a woman to use her phone to call triple 0. Whilst speaking to the triple 0 operator the victim walked to the corner to see if the two offenders were still at the store. When police arrived a short time later, they found him in a distressed state.
After the victim had escaped, Mr Nath finished taking the money and the two men ran out of the store, heading back to the direction from where they had come. The applicant dropped a bottle of rum as he was leaving the store and paused briefly to pick it up. At 5:25pm, the two offenders re-entered the white station wagon. Mr Nath entered the front passenger side, while the applicant entered the rear passenger side. The car then drove off.

Criminal history

The sentencing judge noted the applicant's criminal history was reasonably extensive. His Honour put aside his juvenile offending and noted that his first adult offending commenced in 2003 with destroy or damage property offences. There were also a number of domestic violence offences and offences of assault police officer in the execution of duty in 2003 and 2005. There were a number of instances of common assault, and a further instance of destroy or damage property. In 2009, there was a call up of a previous destroy or damage property charge, which was dealt with by way of s 10A Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") conviction with no other penalty. In 2009, he was charged with wound person with intent to cause grievous bodily harm which was dealt with following a plea to an alternative charge of affray, accepted in full discharge of the indictment. There were further instances of assault in 2009. The sentencing judge then referred to more recent offences of custody of knife in a public place and possessing an unauthorised prohibited firearm on 14 June 2022.
I note that his Honour did not mention another 2022 offence sentenced on 9 June 2022, to which I will return below.
His Honour held that the criminal history did not aggravate the offending but that it disentitled him to a finding of good character and to any leniency that may flow from such a finding.

Victim Impact Statement

The sentencing judge stated that he had regard to the Victim Impact Statement. He stated: "There is no doubt that the victim has been greatly impacted by the subject offending. He goes into some considerable detail as to the personal harm which he has suffered as well as the emotional suffering and distress. He also refers to harm that has been caused to his relationship with other persons and the economic cost of the offending. It is also apparent from viewing the CCTV images that the victim appeared to be concerned for his welfare, raising his arms and running from the store when the opportunity presented itself".

Objective seriousness

The sentencing judge concluded that the offending fell at the mid-range of objective seriousness.
Referring to the guideline judgment of Henry, the sentencing judge noted a number of factors in this matter which were consistent with those identified in Henry. In particular his Honour noted this matter involved: 1. a weapon capable of inflicting serious injury was used by the applicant's co-offender; 2. a limited degree of planning, but the use of a Samurai sword and face coverings were "plainly" indicia of planning; 3. limited, if any, actual violence, but there was a real threat thereof; 4. the victim, as a shop keeper trapped behind the counter, being in a vulnerable position; and 5. a small amount of money and alcohol were taken from the store.
The sentencing judge also noted that unlike Henry, the applicant had not pleaded guilty, but had been found guilty following a jury trial.

Aggravating factors

In accordance with s 21A(2) of the Sentencing Act, the sentencing judge considered the following to be aggravating factors of the offending: 1. a weapon was used; 2. the Victim Impact Statement established to the requisite degree that the injury, emotional harm, loss or damage was substantial; and 3. as noted, the victim was a vulnerable person.
The sentencing judge declined to find the degree of planning was such as to constitute an aggravating factor. His Honour further noted that whilst he found the offence was committed for financial gain, that being the very nature of the offence, it did not separately aggravate it.

Mitigating factors

The sentencing judge considered the applicant had demonstrated remorse as a mitigating factor through his history to the psychologist and the letter to the Court. His Honour accepted that the applicant has some prospects of rehabilitation, although found those prospects to be guarded.

Other subjective factors

His Honour noted the following factors. The applicant was 37 years old at the time of offending, and 38 years old at the time sentence was imposed.
The applicant has a diagnosis of schizoaffective disorder and polysubstance abuse. The Ryde Community Mental Health Centre Outreach Team report referred to a number of attendances at emergency departments and mental health facilities and set out the care plan, including regular appointments with a psychiatrist.
As to the report from Mr Diment, his Honour noted that it set out information including that the applicant "generally comes from a supportive family and his childhood was generally unremarkable. He commenced using drugs as a teenager and that continued into adulthood". His Honour noted that the applicant reported that his mental health was now better than it had been for a long time.
The sentencing judge accepted the applicant's account that he was drunk at the time of the offending, and that he was influenced by the co-offender to some extent. However, his Honour did not accept, "that he simply went along with the other co-offender and did not know what he would do or what would happen".
As to the submission that the applicant was unaware Mr Nath was carrying a weapon, his Honour found this "extremely improbable".
The sentencing judge found that the applicant's psychoaffective disorder which was diagnosed whilst he was in the community impacted on his moral culpability in relation to the subject offending, and also rendered him an inappropriate vehicle for general deterrence. The applicant's display of some symptoms of anxiety and depression also moderated his moral culpability and affected the need for general deterrence.
The need for specific deterrence was moderated as the subject offending was the most serious offending engaged in by the applicant and because of the applicant's mental health condition. However, his criminal history meant that there was a need to not only protect the community but, more importantly, a need to promote his rehabilitation.
The sentencing judge made a finding of special circumstances due to the applicant's mental health conditions, and the more onerous and harsh circumstances in custody during the COVID-19 pandemic.

Parity

The judge who sentenced Mr Nath had assessed his offending as falling "fairly and squarely within the mid-range of objective seriousness". As noted, Mr Nath had been sentenced to 5 years' and 3 months' imprisonment, with a non-parole period of 3 years after a discount of 25% for an early plea of guilty. Prior to the discount, the head sentence was 7 years' imprisonment with a non-parole period of 5 years and 3 months.
In sentencing the applicant, the sentencing judge acknowledged that the applicant's liability was derived from his participation in a joint criminal enterprise with his co-offender. His Honour noted only two points of distinction between them, those being: 1. Mr Nath's offending was aggravated as he was on conditional liberty at the time; and 2. Mr Nath had a more serious role in the offending than the applicant, as he concealed and carried the Samurai sword by way of threat whilst stealing from the victim.
The cases of the two offenders were otherwise "strikingly similar", in that they both had psychiatric conditions and received Disability Support Pensions. The judge who sentenced Mr Nath found that, although there was no specific evidence of a causal connection between the offending and his mental health condition, his mental health condition tempered the sentence to be imposed. Both offenders were found to have displayed remorse and contrition.
The sentencing judge accepted that by reason of his more passive role in the offending - that is, he was not wielding the sword, the applicant deserved a sentence slightly less than the sentence imposed on Mr Nath. His Honour also accepted that the conditional liberty of the co-offender also warranted a distinction between the two offenders.

Pre-sentence custody

The sentencing judge calculated the commencement date by allowing for the entire period in custody from 29 March 2021 to 11 December 2021, and then 50% of time in custody from 15 June 2022 "to date, being time spent in custody bail refused, following unrelated offending in June 2022". Prior to sentence, the applicant had been remanded in custody for two distinct periods, totalling 437 days, which was agreed to result in a commencement date of 28 December 2021.

Ground 1: The sentencing judge erred by failing to properly consider all pre-sentence custody

It can be noted at the outset that the Crown accepts that error has been established in respect of this ground. The Crown does not, however, accept in full the applicant's contentions as to the reasons for, and extent of, the error. Both parties submit that if the Court is satisfied that the error occurred, it would be necessary for the Court to exercise the sentencing discretion afresh.
It is useful to set out a chronology of the offences and relevant pre-sentence custody. The following dates emerge not only from the material before the sentencing judge, but also the additional material tendered on the appeal. Date Event Days in custody 21 March 2021 Subject robbery in company offence committed 29 March 2021 Applicant arrested and charged for robbery in company when at Royal North Shore Hospital 258 days in custody (from 29 March to 11 December 2021) 30 March 2021 Applicant admitted into custody 11 December 2021 Applicant released on bail 9 June 2022 Applicant committed offences of: 1 x custody of knife in public place (subsequent offence) ("summary offence 1") and 1 x fail to comply with request or signal to stop vehicle ("summary offence 2") Applicant committed offences of: 14 June 2022 1 x custody of knife in public place (subsequent offence) ("summary offence 3") and 1 x possess unauthorised prohibited firearm (gel blaster) ("summary offence 4") 86 days in custody (from 14 June to 7 September 2022) Applicant arrested for failure to comply with bail conditions 15 June 2022 Applicant charged with summary offences 3 and 4 Applicant's bail revoked - admitted into custody 28 June 2022 Applicant charged with summary offences 1 and 2 27 July 2022 Applicant fined $200 at Hornsby Local Court for summary offence 2 9 - 12 August 2022 Trial for robbery in company offence - guilty verdict returned by jury 7 September 2022 Applicant sentenced to Community Correction Order ("CCO") x 3 at Hornsby Local Court for summary offences 1, 3, and 4 93 days in custody (from 8 September to 9 December 2022) 9 December 2022 Sentence hearing and imposition of sentence for robbery in company

As can be seen from the above table, the applicant had been in custody fully referable to this offence between 29 March 2021 and 11 December 2021, amounting to 258 days of pre-sentence custody. This was credited in full by the sentencing judge, and no error is alleged in relation to this period.
The second period of custody commenced on 14 June 2022 when the applicant was arrested for the unrelated summary offences, and bail was revoked. As noted above, the applicant was sentenced to a fine in relation to one of the unrelated summary offences on 27 July 2022, and was sentenced to three concurrent CCOs in relation to the remaining three unrelated summary offences on 7 September 2022. Community Correction Orders are non-custodial penalties (see Huynh v R [2024] NSWCCA 61 at [28], [60]-[61], [64]).
Between 14 June 2022 and 7 September 2022, therefore, the applicant was in custody both for this offence and the unrelated summary offences. However, from 7 September 2022, the applicant was in custody fully referable to this offence from 8 September 2022 to 9 December 2022 (93 days). This latter point was not recognised by either of the parties in the sentence below, nor the sentencing judge, who was led into error. Rather, the whole of the applicant's period of custody between 14 June 2022 and 9 December 2022 (179 days) was erroneously treated as being referable to both the unrelated summary offences and this offence, and the sentencing judge exercised his "usual practice" of apportioning 50% of the pre-sentence custody this offence.
As a consequence, the sentencing judge determined that the applicant's sentence would be backdated to 28 December 2021 in recognition of the time spent in pre-sentence custody. This equated to 347 days credited to the applicant, reflecting the entirety of the applicant's first period in custody (258 days) and 50% of the applicant's second period in custody (89 days).
It is conceded that this was an error. Opposing submissions have been made, however, as to the effect of the error. It is agreed that the error is more than a mere arithmetical error which can be rectified by a simple mathematical adjustment. Rather, it is agreed that a fresh sentencing exercise is appropriate in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601 [2014] HCA 37 because certain material was not before the sentencing judge. This has obvious implications for the exercise of his Honour's discretion and prevents this Court from making a simple mathematical adjustment.
The applicant drew the Court's attention to s 47 of the Sentencing Act which firstly begins with a presumption in s 47(1) that a sentence of imprisonment commences on the day on which the sentence is imposed, but that a Court may direct that a sentence of imprisonment is taken to have commenced on a day occurring (relevantly) before the day on which the sentence is imposed. The applicant pointed to s 47(3) which provides that in exercising the discretion under s 47(2), "the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates".
It is contended that the sentencing judge only had a discretion in relation to how much credit to give for the 86 days between 14 June 2022 and 7 September 2022. It is further contended that the sentencing judge should have given full credit for the days between 7 September 2022 and 9 December 2022, a period of 43 days.
As to the exercise of discretion in relation to the 86 day period, the applicant noted that the sentencing judge took into consideration the likelihood that the applicant was only refused bail on the unrelated summary charges because of his status on bail for robbery. The applicant contended further, however, that the sentencing judge did not consider, but should have, another relevant consideration - that non-custodial penalties were imposed for those fresh charges. The applicant's argument is that given the acknowledgement that the unrelated summary charges alone were unlikely to result in bail refusal and the fact that a non-custodial penalty was imposed, a proper exercise of discretion would have allowed full credit for that 86-day period on remand.
The respondent submitted the opposite, that is, it would be open to this Court to find that the applicant was not entitled to have any of the period of custody between 14 June 2022 and 7 September 2022 taken into account.
This contention is based on material before this Court but not before the sentencing judge, that being the sentencing remarks of the Magistrate who imposed penalties in relation to the unrelated summary offence on 7 September 2022.
Relevantly, the transcript of the hearing before the Magistrate at Hornsby Local Court on 7 September 2022 included a discussion about the applicant's conviction of the robbery matter ("the instant offence") and how that was set down for sentence on a subsequent date. The applicant's solicitor noted that the majority of the applicant's matters had been dealt with under the mental health provisions, that he had had support while he was in the community from the Ryde mental health team, and that he has injections of Abilify for his mental illness which is long-standing. It was noted that he still had the support of his parents and a brother, albeit there was an AVO in relation to his mother.
The transcript included the following: "HIS HONOUR: […] look there is no utility - they are clear underlying issues. Do you want to be heard about a CCO? APPLICANT'S SOLICITOR: No, your Honour. HIS HONOUR: 12 months can deal with it. The subsequent knife offences, the problem is that it is getting up there in the period. I can take into account the period that he has been in custody. APPLICANT'S SOLICITOR: The knife offences, it was in the car. It is charges of public affray - HIS HONOUR: Yeah, but it is second, third now. That's all. APPLICANT'S SOLICITOR: Yes, and those prior, your Honour, knife offences were all dealt with under s 32 or s 33 [of the Mental Health (Forensic Provisions) Act (repealed)]. I think the first one was in 2014, second one was 2018, but I accept what your Honour says of course. […] HIS HONOUR: What I am dealing with Mr McMillan are two matters. They are separate charge groups. There are two matters where you are in custody of a knife in a public place and then I am dealing with the possession of prohibited firearm. What I am going to do is the following: you have pleaded guilty in relation to these matters, I am going to take into account that as a result of another matter - in any event, you have been in custody, bail refused, I think, on this matter since 15 June. It is probably triggered by the other matter that was contested in the District Court. The fact that I have had regard to your sentence assessment report - it doesn't excuse the offences but it puts them into a bit of context - just so I can understand a little bit better about you and your circumstances. I have also had a look at your record which - you don't need me to tell you - is not good. I'm also mindful about the conditions that you have and that you are today being supported by mum again. […] You have the support of your father. I note that you are facing some other sentencing proceedings in November. What I am going to do, Mr McMillan, is impose what is known as a community correction order or 'bond', if you have heard that term before. It is a period of 12 months. […] And that is in relation to each of the matters […]". (Emphasis added.)
The respondent submitted that contrary to the applicant's submission that the Local Court matters were not serious enough to warrant a custodial sentence, the Remarks on Sentence for the unrelated summary offences indicate that the Magistrate was concerned with the seriousness of the offending, but took into account, in the applicant's favour, that he had already been in custody since 15 June 2022 in respect of those matters, warranting a less severe Local Court sentence.
The respondent further contended that the applicant was not entitled to have the entirety of his period of custody between 15 June 2022 and 7 September 2022 taken into account twice; once in relation to the instant offence and again in relation to the unrelated summary offences. The respondent contended that unbeknown to the sentencing judge, the applicant had already received credit for that custody when sentenced for the unrelated summary offences.
The respondent submitted that as it cannot be known with certainty how his Honour would have structured the sentence had he been aware of the true position, it is not possible to undertake a mathematical adjustment of the sentence to reflect his Honour's intention on sentence.

Consideration of Ground 1

It is clear that the sentencing judge was led into error about what pre-sentence custody was solely referable to the instant offending, and the sentence was affected by that error. It is appropriate to proceed to sentence afresh as it is not possible to know how the sentencing judge would have dealt with the correct portion of dual custody had he been informed of the sentencing remarks of the Magistrate in relation to the unrelated summary offences: Kentwell.
There are two provisions in the Sentencing Act dealing with pre-sentence custody: ss 24(a) and 47(3). Whilst often referred to together when the issue of pre-sentence custody is discussed in the authorities, it should be remembered that those provisions are found in different parts of the Sentencing Act. As discussed below, s 24(a) has a more general effect than, and can be read independently from, s 47(3). It can be observed that whilst ss 24(a) and 47(3), when read together, have been the focus of discussion in the authorities, s 24(a) standing alone appears to have been the subject of less attention.
Section 24(a) is to be found in Pt 3 of the Sentencing Act headed "Sentencing procedures generally". It reads (relevantly): 24 Court to take other matters into account In sentencing an offender, the court must take into account - (a) any time for which the offender has been held in custody in relation to the offence […]
It is important to note that Pt 3 (which includes s 24(a)) "applies to the imposition of all penalties imposed by a court, whether under this Act or otherwise" by virtue of s 4(3) of the Sentencing Act which is within Pt 2 of the Sentencing Act, headed "Penalties that may be imposed".
The term "all penalties" includes custodial sentences dealt with under Pt 2 Div 2 headed "Custodial Sentences", as well as non-custodial alternatives dealt with in Pt 2 Div 3 headed "Non-custodial alternatives", and "Fines" dealt with in Pt 2 Div 4 (so far as that Division relates to natural persons). The non-custodial alternatives set out in Div 3 are community correction orders (s 8); conditional release orders (s 9); dismissal of charges and conditional discharge of offender (s 10); conviction with no other penalty (s 10A); and deferral of sentencing for rehabilitation, participation in an intervention program or other purposes (s 11).
Accordingly, if an offender has been held in custody in relation to any offence and a court is considering an appropriate penalty, including a non-custodial option, the sentencing court must take into account any pre-sentence custody.
It can be remembered that one of the purposes of sentencing set out in s 3A of the Sentencing Act is "to ensure that the offender is adequately punished for the offence". When this provision is combined with the mandatory provision in s 24(a), that is, that pre-sentence custody is to be taken into account "in sentencing an offender", it can readily be seen that pre-sentence custody is a relevant matter to take into account in determining, if it is a borderline determination, whether a non-custodial penalty is appropriate (that is, whether or not the s 5 threshold for a custodial penalty has ultimately been passed): see generally Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [16]. Pre-sentence custody is also properly to be taken into account in determining the type or length of a non-custodial sentence, and also in relation to the amount of a fine.
I note that s 24(a) was not the subject of explicit consideration in relation to pre-sentence custody in R v Eckersley [2021] NSWSC 562 at [84] a case where a non-custodial penalty was imposed, and nor was it the subject of separate attention in the line of cases dealing with pre-sentence custody in the context of the imposition of an Intensive Correction Order: see Mandranis v R [2021] NSWCCA 97.
In my view, given the phrase "must take into account" when used in s 24 applies to non-custodial as well as custodial sentencing options, it must have a general meaning, akin to, for instance "must consider" or "must have regard to", rather than any necessary arithmetical meaning.
Accordingly, the Magistrate was entitled to take into account the applicant's pre-sentence custody in determining that three simultaneous 12 month community correction orders (which commence on the day on which they are made: s 86, and which can be up to 3 years in length: s 85(2)) were appropriate in light of, amongst other things, the pre-sentence custody to which the applicant had been subject. I agree with the respondent's submission that the Local Court transcript indicates that the Magistrate was concerned with the seriousness of the offending and appeared to justify (albeit with brief reasons, commensurate with the very busy workload of a Local Court) the otherwise more lenient sentence his Honour imposed (given the number of previous knife related offences the applicant had on his criminal record) partly by reference to the pre-sentence custody.
I turn now to s 47(3) which applies only to custodial penalties.
Section 47 is to be found in Div 1 of Pt 4 of the Sentencing Act which deals with setting terms of imprisonment.
It provides that a sentence of imprisonment commences on the day on which the sentence is imposed subject to (relevantly) subs (2).
Section 47(2)(a) provides that a court may direct that a sentence of imprisonment is taken to have commenced on a day occurring before the day on which the sentence is imposed.
Section 47(3) provides that in deciding whether or not to make a direction under subs (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.
When read with s 24(a), s 47(3) is accepted to mean that a judicial officer may back-date a sentence to take account of time spent in custody in relation to the offence. This method is both authorised and preferred albeit not mandatory: Hunt v R [2021] NSWCCA 192 at [29] (Wright J, McCallum JA and Rothman J agreeing). See also Kljaic v R [2023] NSWCCA 225 at [16] and [23].
The accepted approach is that pre-sentence custody should be taken into account only once: Huynh at [19]. Pre-sentence custody is of course difficult to quantify where time is spent on remand, bail refused, for an offence which ultimately results in a non-custodial penalty as observed in Huynh at [37] by Basten AJA. In these circumstances, it is necessary and appropriate for the remarks of the judicial officer who imposed the penalty to be examined to see what allowance was made: Huynh at [27].
As noted, this Court has now been provided with material from the Magistrate who sentenced the applicant in relation to the unrelated summary offences which was not before the sentencing judge.
In my view, it is sufficiently clear that the Magistrate took into account the 86 day period of pre-sentence custody between 14 June 2022 and 7 September 2022 to determine that three CCOs of one year in length, rather than, for instance, a CCO of a longer term, or a more severe penalty type was appropriate. Accordingly, it would be inappropriate to take that period of 86 days into account further when this Court undertakes the resentencing exercise.
Ground 1 is thus made out, albeit the result contended for is not that sought by the applicant.
As Ground 1 has been made out, and the Court will proceed to sentence afresh, it is not necessary to consider the other grounds. It is appropriate, however, to treat the submissions in relation to the other grounds as if they were submissions on re-sentence.

Submissions on the other grounds to be treated as submissions on re-sentence

The applicant acknowledges the seriousness of the offence, given the 20 year maximum penalty. The applicant further acknowledges that the offence was aggravated by the fact the co-offender was armed, and the victim was vulnerable. That the applicant was in company, was not young and has prior convictions are features which are recognised by the applicant as going beyond those contemplated in the guideline judgment.
The applicant contends, however, that a key purpose of the guideline judgment was general deterrence which was of less significance in the applicant's case. It is further contended that the role of the applicant was limited, and that more limited conduct reduced his culpability.
The applicant submitted that he has a compelling subjective case: 1. this was his first offence of this kind and the most serious of his offending; 2. he has demonstrated remorse; 3. he has a significant history of mental health problems, had been subject to Community Treatment Orders in the past, had been in receipt of the Disability Support Pension and had a diagnosis of schizoaffective disorder; and 4. he has been in custody during the height of the COVID-19 restrictions, and had experienced other onerous conditions including major difficulties having contact with his mother, a key support person.
As to the effect on the victim, the submission was made that the extent of any harm beyond that expected from an offence of this seriousness could only have been slight.
As to the parity point, the applicant points to the difference in the co-offender's antecedents which included a prior conviction for robbery armed with an offensive weapon and that the co-offender had been on conditional liberty when the instant offence was committed. The co-offender's more serious antecedents should be regarded, submitted the applicant, as having had an appreciable impact on the significance of specific deterrence for him, as opposed to the applicant's case where specific deterrence did not require full weight in the sentencing exercise.
The applicant acknowledged that while the co-offender had pleaded guilty, the difference brought about by that discount was moderated by the applicant's lesser role, the absence of the aggravating feature of being on conditional liberty and the overall lesser need for specific deterrence.
The respondent submitted that whilst the applicant had a more passive role in the robbery, the difference between the two offender's roles was not substantial and is isolated to the fact that it was the co-offender who wielded the weapon. Otherwise, the evidence clearly established that the applicant was both aware the robbery would take place and that his co-offender was armed with a sword.
The respondent submitted that the effect of the applicant's subjective case on the sentencing outcome was constrained by the objectively serious nature of the offence. Further, the applicant's subjective case was not overlooked in the sentencing exercise and the mental health condition and the onerous nature of custody on him underpinned the finding of special circumstances resulting in a significant reduction of the statutory ratio between the head sentence and non-parole period.
The subjective case, the respondent contended, was neither unique nor exceptional, and was observed by the sentencing judge to be "strikingly similar" to that of the co-offender.
The finding of substantial harm to the victim was also open, not only on the basis of the Victim Impact Statement, to which no objection was taken, but also by the fact that the sentencing judge had the opportunity to observe the victim give evidence in the course of the trial. The respondent noted that the victim here was trapped in a position where a sword had been drawn, and he felt he had nowhere to escape to and believed he was going to be killed. The ongoing effects of the robbery caused prolonged strain on his familial relationships and on his fledgling business. He requires ongoing psychological treatment for the severe effect of the robbery on him and now leaves the business frequently for such treatment, requiring the employment of additional staff and consequent financial strain.
The respondent submitted that the following features of the sentence are such that no lesser sentence is justified: 1. no objection is taken to the finding of the offending as falling within the mid-range of objective seriousness; 2. the offending was aggravated by the fact the co-offender was armed and by the vulnerable position of the victim; 3. the maximum penalty is 20 years imprisonment; 4. no leniency was justified because of the applicant's criminal antecedents, notwithstanding this was the most serious offence committed by the applicant to date; and 5. the applicant was convicted after trial and was not entitled to any discount on sentence.
Accordingly, the respondent contended, the custodial sentence imposed on the applicant after trial for a serious offence was not unreasonable or plainly unjust.
The applicant and the respondent also made submissions in relation to parity. This is, of course, a matter to be borne in mind by this Court when it comes to resentence.

Resentence

Having found error, it is necessary to exercise the sentencing discretion afresh. No challenge has been made to the sentencing judge's factual findings, and I adopt those findings. Other than the matter involving the finding of substantial harm to the victim, there has also been no challenge to the findings by the sentencing judge in relation to the objective seriousness of the offence, the aggravating factors, the applicant's mental health diagnosis and his guarded prospects of rehabilitation. I adopt the sentencing judge's findings in relation to those unchallenged findings. In addition, I find that the injury, emotional harm, loss or damage caused by the offence was substantial.
From the material tendered to the Court it can be seen the applicant has been making good progress in custody. He has been participating in a drug and alcohol treatment program, and he has completed various courses both behavioural and vocational. He has no custodial infringements and appears to be using his time in custody to be making healthy changes to his life. He is receiving pharmacological treatment both for mental illness and his drug dependence, and he continues to enjoy the support of his mother.
As this Court has emphasised, the strength of an offender's subjective case cannot subsume a proper consideration of the objective gravity of the offence which must be reflected in both the head sentence and the non-parole period: R v Wasson [2014] NSWCCA 95 at [33] (per RA Hulme J, Gleeson JA and Campbell J agreeing).
However, in this case it is critical to note the applicant's longstanding diagnosis of schizoaffective disorder and polysubstance abuse. As set out above, I have adopted the findings of the sentencing judge who found that the applicant's schizoaffective disorder impacted on his moral culpability in relation to the subject offending and rendered him an inappropriate vehicle for general deterrence. Further, the applicant's display of some symptoms of anxiety and depression were also found to have moderated his moral culpability and affected the need for general deterrence. Not only this, but the sentencing judge found that the need for specific deterrence was also moderated. His criminal history meant not only that the community needed protection, but more importantly, the applicant's rehabilitation needed to be promoted.
As noted above, the co-offender was sentenced to 5 years 3 months with a non-parole period of 3 years. Before the 25% discount, the head sentence would have been 7 years. The applicant's sentence was 6 years 6 months with a non-parole period of 4 years, that being 61.5% of the head sentence. However, parity is an ameliorative principle: R v FF [2023] NSWCCA 186 at [63] - [65] per Beech Jones CJ at CL, Fagan J and R A Hulme AJ agreeing. The parity principle cannot be relied upon to justify a heavier sentence than would otherwise be warranted. Whilst a co-offender's sentence is a relevant point of comparison, it does not automatically mean that it is correct, nor does it necessarily provide a binding comparator just because it has not been the subject of an appeal: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55].
Acknowledging factors including the maximum penalty, the objective seriousness of the offending, the subjective circumstances of the applicant, the protection of the community, the recognition of the harm done to the victim of the crime and the community, and importantly that general and specific deterrence are of less weight in this matter because of the applicant's longstanding mental illness, in my view a lesser severe sentence is warranted.
I would make a finding of special circumstances by reason of the applicant's mental health conditions, together with the more onerous and harsh circumstances in custody during the COVID-19 pandemic.
I would grant the applicant leave to appeal and allow the appeal. I would impose a sentence of 4 years 6 months with a non-parole period of 2 years 9 months.
In my view, pursuant to ss 24(a) and 47(3) of the Sentencing Act, the applicant should have the full benefit of 351 days of pre-sentence custody taken into account (that is, 258 days between 29 March 2021 to 11 December 2021, plus 93 days between 8 September 2022 to 9 December 2022). It is appropriate for the sentence to be backdated from 9 December 2022 which makes the starting date 23 December 2021.
The orders I propose are therefore as follows: 1. Grant leave to appeal. 2. Allow the appeal. 3. Set aside the sentence imposed by Wilson SC DCJ on 9 December 2022. 4. In place thereof impose a non-parole period of 2 years 9 months and an additional term of 1 year 9 months. The sentence is directed to commence on 23 December 2021. The non-parole period expires on 22 September 2024, and the sentence expires on 22 June 2026.
WEINSTEIN J: I agree with McNaughton J.

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: 31 May 2024

Mental Health (Forensic Provisions) Act 1990(NSW)

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