Mundine v R

Mundine v R - [2017] NSWCCA 97 - NSWCCA 2017 case summary — Zoe

The applicant contended, and the Crown accepted, that the sentencing judge had no power to order the applicant's immediate release on 27 September 2016 since the sentence exceeded three years and therefore s 50 of the Act had no application. Mr Wilson argued that this error revealed that the sentencing judge had approached the task of sentencing the applicant "in reverse" because his Honour wanted both to ensure the release of the applicant on the day the sentence was imposed and also to impose a total term well in excess of three years.
Mr Wilson relied on what Simpson J (McClellan CJ at CL and Price J agreeing) said in Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21 at [44]: "That the non-parole period is now, by s 44(1), required first to be set does not necessarily mean that it must first be determined: see Moffitt at 122, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs (2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period."
Mr Wilson submitted that the sentencing judge had committed the error identified by Simpson J and contended that his Honour had determined the non-parole period first, (by reference to the date of the sentence hearing) and then found special circumstances which had the effect of elongating the total term beyond that which would have been appropriate. He submitted that his Honour ought to have addressed the total term first; then made a judgment on whether there were special circumstances and, if so, by how much the statutory ratio ought be altered; and, finally, set the non-parole period.

[7]

Ground 2: manifest excess

Mr Wilson contended that the length of the sentence was such as to indicate error. He also relied on specific errors which he submitted contributed to the manifest excess. He argued that manifest excess in one or more of the indicative sentences could indicate that the aggregate sentence was manifestly excessive. He also argued that there was excessive accumulation (which was also the subject of ground 3).
He submitted that the indicative sentence of 9 months for the common assault was excessive, having regard to the maximum penalty of two years' imprisonment. He submitted that the conduct underlying the offence was not particularly serious as it involved no more than the applicant grabbing the collar of his partner's shirt and pulling her, albeit with such force that she fell to the ground. He relied on comparative statistics to show that it was relatively rare for a custodial sentence to be imposed for common assault and that a more serious assault, although not one occasioning actual bodily harm, such as a punch or a kick, would be required to arrive at a sentence such as the one indicated by the sentencing judge. He referred to McCarthy v R (2011) 206 A Crim R 131; [2011] NSWCCA 64 as an illustration of the use that can be made of such statistics. He contended that the starting point for the indicative sentence of one year (before the discount of 25% for the plea was applied) was too high since the objective seriousness was well below the mid-range for such offences.
Further, Mr Wilson argued that the indicative sentence of 2 years and 3 months for the assault occasioning actual bodily harm was, of itself, erroneous because it exceeded the jurisdictional limit of the Local Court to impose sentences of no more than 2 years. He contended that, as the offence was the subject of a certificate issued under s 166(1) of the Criminal Procedure Act, the indicative sentence could not exceed the jurisdictional limits of the Local Court.
The Crown accepted that the indicative sentence for the assault occasioning actual bodily harm revealed an error in that the sentencing judge failed to appreciate the applicable jurisdictional limit. However, it contended that this did not render the aggregate sentence manifestly excessive. The Crown contended that the aggregate sentence reflected the criminality of all of the offences and that this Court ought not disturb it.

[9]

Criminal Procedure Act

Chapter 3 of the Criminal Procedure Act provides, as its title indicates, for "Indictable Procedure". Part 3 of Chapter 3, entitled "Trial Procedures", provides, in Division 7, that certain summary offences may be dealt with in the course of proceedings on indictment.
Section 165(1) defines "related offence" as follows: "related offence, in relation to an indictable offence, means an offence: (a) that is: (i) a summary offence, or (ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and (b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen, but does not include a back up offence."
Section 166 relevantly provides for "certification and transfer" of related offences. Where a person is being committed for sentence for an indictable offence, the prosecutor must inform the Magistrate whether the person has been charged with any related offence and, if so, must produce to the court a certificate specifying each related offence. The Magistrate is obliged to transfer to the court to which the person has been committed for sentence, the proceedings on each related offence along with the certificate.
Under s 167, a court dealing with a person who has been committed for sentence may deal with any related offence "unless to do so would not be in the interests of justice". Section 168 provides that the court dealing with the indictable offence is to deal with the related offence without a jury. In sentencing a person for a related offence, the court has the same functions, and is subject to the same restrictions and procedures as the Local Court: s 168(3).
Table 2 to Schedule 1 of the Criminal Procedure Act applies to indictable offences that are to be dealt with summarily unless prosecutor elects otherwise. Part 1 of Table 2, entitled "Offences against the person under Crimes Act 1900" includes, in cl 1, "offences against the person" and lists an offence under s 59 of the Crimes Act (assault occasioning actual bodily harm).
Section 268 of the Criminal Procedure Act relevantly provides: "268 Maximum penalties for Table 2 offences (1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 2 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law. (1A) The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term. . . ."

[10]

Crimes (Sentencing Procedure) Act

Section 43 of the Act provides that a sentencing court may, on its own initiative or on the application of a party, re-open proceedings to correct sentencing errors and, if necessary, amend any order or impose a penalty that is in accordance with the law. Section 43(3) provides that a court may issue a warrant for a person's arrest if it calls on that person to appear before it for the purposes of re-opening the proceedings.
Section 47 provides for commencement of sentences. Where more than one sentence is imposed, the following subsections relevantly apply: "(2) A court may direct that a sentence of imprisonment: . . . (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. . . . (4) The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject."
Section 48 provides for information to be given about the release date when a sentence is imposed. Section 48(1)(b) relevantly provides that, when imposing an aggregate sentence, the court must specify the earliest day on which it appears that the offender will be eligible to be released on parole.
Section 50(1) provides that when a court imposes a sentence of imprisonment for a term of 3 years or fewer and there is a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period.
The sentencing judge's power to impose an aggregate sentence was governed by s 53A of the Act, which relevantly provides: "53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. . . . (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
Section 62 of the Act provides: "62 Warrant of commitment (1) As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre. (2) The warrant must be signed by an authorised officer. (3) A warrant under this section is sufficient authority: (a) for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and (b) for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence. (4) This section does not apply: (a) while action is being taken under Part 5 or 6 in relation to the making of an intensive correction order or home detention order, or (b) to a sentence of imprisonment the subject of an intensive correction order or home detention order."

[11]

Ground 1

The sentencing judge was in error in directing the release of the applicant on 27 September 2016 since the sentence he imposed was in excess of three years and therefore s 50 of the Act had no application. It was open to the sentencing judge, under s 43, to vary the order made on 27 September 2016 by deleting the direction that the applicant be released to parole immediately and by substituting a notation specifying that the applicant was first eligible for parole on 27 September 2016 (as required by s 48(1)(b) of the Act, set out above). Although his Honour made an order on 12 December 2016 that the matter be re-opened under s 43, the sentencing judge did not correct the error. Accordingly, the sentence imposed on 27 September 2016 remains in place and uncorrected.
I reject the Crown's submission that his Honour ought be taken to have revoked the applicant's parole and notionally returned the applicant to custody on 12 and 14 December 2016. His Honour had no power to direct the applicant's release to parole. It was, accordingly, not for his Honour to revoke it. His Honour's power was, relevantly, confined to deleting the direction that the applicant be released to parole in order to impose a sentence that was in accordance with law.
Ground 1 has been made out. I do not, however, regard this error as necessarily resulting in the conclusion that the sentencing judge's discretion miscarried. The question arises whether the sentencing judge's purported direction under s 50 is simply an error which could have been corrected by the sentencing judge, or by this Court, following an order under s 43. The "correction" required would involve deletion of the direction that the applicant be released to parole on 27 September 2016 and insertion of a notation specifying 27 September 2016 as being the earliest date on which the applicant became eligible for release on parole, as required by s 48(1)(b). There is, for the reasons identified by Basten JA at [6]-[7], a real question whether such a correction would be authorised by s 43. However, this question does not need to be decided in the present case since, for the reasons which follow, I consider that the sentence imposed by the sentencing judge ought be set aside and the applicant re-sentenced by this Court.

[12]

Ground 3: alleged excessive accumulation

The applicant's argument that there has been excessive accumulation relied on the proposition that the limitation in s 47(2)(b) ought be applied to an aggregate sentence even though it does not, in terms, apply since an aggregate sentence is, by definition, a single sentence. A sentencing court is obliged, by s 53A(2)(b), to indicate the sentences that it would have imposed had separate sentences been imposed instead of an aggregate sentence. However, only the length of an "indicative" sentence, and the non-parole period where there is a standard non-parole period for the offence, need be indicated: ss 44(2C) and 54B(4). One of the benefits of an aggregate sentence is that the specification of commencement and expiry dates is not required, although the length of indicative sentences must be specified.
I note that the sentencing judge did not indicate the non-parole period when recording the indicative sentence for the offence of reckless wounding, although there is a standard non-parole period for that offence. This omission does not invalidate the aggregate sentence: s 54B(7).
Because an aggregate sentence imposed pursuant to s 53A is the only actual sentence imposed, s 47(2)(b) does not have any application in the present case, since s 47(2)(b) provides for a court to direct that a sentence of imprisonment commence on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly consecutively) with some other sentence of imprisonment.
Thus, a sentencing judge who imposes an aggregate sentence under s 53A has greater flexibility than one who chooses to impose separate sentences for each offence, since s 47 does not apply to an aggregate sentence. The practical effect of the difference in the present case is that it was open to the sentencing judge, who imposed an aggregate sentence, to adjust the statutory ratio in s 44(2) (so as to have a lower ratio between the non-parole period and the total term of the sentence) to a greater extent than would have been possible had separate sentences been imposed, by reason of the operation of s 47 where consecutive sentences are imposed.
In my view, ground 3 has not been made out. However, the length of the individual indicative sentences is relevant to ground 2 and therefore will be considered in that context below.

[13]

Ground 2

It is open to an applicant to point to one or more indicative sentences which are alleged to be excessive to support an argument that an aggregate sentence is manifestly excessive.
I am not persuaded that the indicative sentence for the offence of common assault was excessive. The applicant's partner was vulnerable at the time as she was pregnant and suffering from morning sickness, as a result of which she wanted to be taken to hospital. Although the force the applicant used when he grabbed her collar may not have been particularly great, it was enough to bring her to the ground. The seriousness of common assault is to be adjudged by reference to all the circumstances, including the characteristics of the victim. I am not persuaded that there was any error in the sentencing judge's assessment of the common assault as being a "mid-range" offence in terms of its seriousness.
Moreover, any confidence that a bond was sufficient to fulfil the purposes of sentencing was shown to have been misplaced in light of the applicant's subsequent conduct, which led to his being called up on the bond and re-sentenced.
The other indicative sentence which was the subject of criticism was the one imposed for the assault occasioning actual bodily harm on the certificate given under s 166(1) of the Criminal Procedure Act. I discern no error in the sentencing judge's exercise of the sentencing discretion to arrive at a figure of 2 years and 3 months. The error was in not reducing this figure to 2 years, being the jurisdictional limit of the Local Court, which was applicable by reason of ss 168(3) and 268 of the Criminal Procedure Act. As this Court has explained in R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing), a provision such as s 268 of the Criminal Procedure Act is to be treated as a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. Accordingly, a sentence of two years' imprisonment need not be reserved for a worst case and might be appropriate notwithstanding that a plea of guilty was entered at the earliest opportunity and that, accordingly, a discount of 25% was called for.
Although it does not follow from a finding that a particular indicative sentence is excessive that an aggregate sentence is manifestly excessive, I am satisfied that the sentencing judge's discretion miscarried when his Honour failed to have regard to the jurisdictional maximum which would have applied to the sentence indicated, had individual sentences rather than an aggregate sentence been imposed.

[17]

Subjective circumstances

The material before this Court is the same as that which was before the sentencing judge. The applicant is an indigenous Australian who was born in November 1994. His parents separated before he was born. He does not know his natural father. The applicant had, until he was 20, a supportive grandmother and aunts who have cared for him.
Dr Adams, psychiatrist, prepared a report for the sentence hearing dated 16 February 2016. He noted that the applicant had been physically and sexually abused on one occasion as a child, although no details were given as the applicant told Dr Adams that he had blocked it out. The applicant had problems with concentration from an early age. His schooling was disrupted. He was frequently suspended and expelled from school. He began smoking cannabis when he was about 10 years old and was sent to a "behavioural school" for a year when he was about 11.
The applicant continued to use cannabis throughout his teenage years. He began drinking alcohol when he was 17. He formed a relationship with Ms Kellcurcy. The offence of common assault which was committed on 28 April 2014 was committed while she was pregnant and suffering from morning sickness. In late 2014 their daughter was born shortly after the applicant's twentieth birthday. His grandmother died in early 2015, which greatly affected the applicant. He began to take methamphetamine, otherwise known as ice. At the time he committed the offences in March 2015 he was suffering from a drug-induced psychosis.
The applicant told Dr Adams that he wanted to rehabilitate himself from his substance abuse and wished to be involved in the Tribal Warrior program which is conducted in Redfern for indigenous males to assist with rehabilitation. Dr Adams opined that, at the time of the interview in February 2016, the applicant was oriented in time, place and person. Dr Adams said: "With regards Mr Mundine's level of insight, in my view, he manifested a good overall level of insight into his background of emotional dysregulation and the negative impact his longstanding history of illicit substances had had."
The applicant's uncle, Cyril Mundine, provided a letter to the sentencing judge in which he set out his involvement with the Tribal Warrior program and what it involved, including a morning exercise program on Mondays, Wednesdays and Fridays; a regeneration project for areas of bushland; and scheduled weekly meetings with police and mentors (of whom Cyril Mundine is one) at the Redfern Police Station.
When the applicant was released by the sentencing judge on 27 September 2016 he returned to live with Ms Kellcurcy and their daughter, who was by that time almost two years old. He participated in the Tribal Warrior program and worked at the National Park at Lane Cove doing land clearing. He also undertook a literacy program.

[26]

Proposed orders

I propose the following orders and notation: 1. Grant leave to appeal against sentence. 2. Allow the appeal against sentence. 3. Quash the aggregate sentence imposed by Colefax DCJ on 27 September 2016 and the order directing the applicant's release on 27 September 2016. 4. For the offence of common assault, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 March 2015 and expiring on 27 September 2015. 5. For the offence of contravene apprehended violence order, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 June 2015 and expiring on 28 December 2015. 6. For the offence of assault occasioning actual bodily harm, impose a sentence of imprisonment of 2 years, commencing on 28 June 2015 and expiring on 27 June 2017, with a non-parole period of 1 year and 3 months, commencing on 28 June 2015 and expiring on 27 September 2016. 7. For the offence of reckless wounding, impose a sentence of 2 years and 3 months, commencing on 28 June 2016 and expiring on 27 September 2018, with a non-parole period of 3 months, commencing on 28 June 2016 and expiring on 27 September 2016. 8. Direct that the applicant be released to parole on 27 September 2016.
CAMPBELL J: I have had the considerable advantage of reading in draft the judgments of Basten JA and Adamson J. I agree with the orders proposed by Adamson J substantially for the reasons her Honour gives. I agree with what her Honour has written in relation to Grounds 2 and 3. I would have upheld Ground 1 on the basis that s 43 of the Sentencing Procedure Act would have empowered the learned sentencing judge to have revoked the parole order he pronounced under s 50 of that Act when he "re-opened" the sentencing proceedings on 12 December 2016. I am of the view that the expression "impose a penalty" in s 43 of the Act, which includes the expression "impose a sentence of imprisonment," extends to, in cases to which s 50 applies, the making of a parole order under s 50(1). I acknowledge the difficulty of working through what would have followed from his Honour taking that step in December 2016 as discussed by Basten JA. In my view these difficulties were not a bar to his Honour correcting the record. With respect, I also agree with what Basten JA has written about the application of Parker v Director of Public Prosecutions at [26]. Given her Honour's approach to the question of resentencing Mr Mundine with which I agree, the issue does not arise in this case.

At a glance

Court

Decision date

Before

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (16)

Cited By (9)