Murda v R

Leave to appeal on proposed ground 3 should not be granted

1. Ground 3 is readily resolved. A complaint that inadequate weight was given when exercising the sentencing discretion is an unpromising basis for establishing House v The King error. Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [11] that the circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined; see also Yang v R [2012] NSWCCA 49 at [25] and Vaiusu v R [2017] NSWCCA 71 at [29]. It is well established that merely claiming that insufficient weight, or excessive weight, was given to one factor is normally not a proper ground: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16].
2. During oral address, counsel confirmed that "I am not submitting to this Court that the sentencing judge did not take into account the applicant's youth". His Honour plainly did take into account the applicant's youth. Pages 23 and 24 of the transcript of the reasons for sentence are directed to that topic. The applicant's youth would have been obvious during the sentencing proceedings, and in any event, his Honour had regard to his youth repeatedly and expressly. He stated "I also take into account he is a young person. He was born in 2000. At the time of the commission of these offences he was 19". He gave three references to the applicant's immaturity ("I am satisfied the offences indicate that he was an immature 19 year old and susceptible to the other immature influences of the peer group he was associating [with]"; "He was, as I have noted, immature" and "young offenders are far more malleable and susceptible to being encouraged to embrace rehabilitation …"). There is nothing to suggest that his Honour was not conscious of the applicant's youth as reducing the applicant's moral culpability and enhancing the prospects of rehabilitation. His Honour expressly said that the finding of special circumstances and the significant departure from the statutory ratio was informed by a concern that "a young person of that age group" was "going into a custodial environment where he will be exposed to hardened criminals".
3. When the defects in proposed ground 3 were raised during the hearing, counsel did not seek to advance any point based on the applicant's youth, but instead was content to rely on his written submissions (transcript, 6 April 2022, p 13). This proposed ground was not advanced in the applicant's written submissions separately, but rather it was treated collectively with ground 4.
4. There is no basis for interfering with his Honour's exercising of discretion on the basis of his treatment of the applicant's youth. I would not grant leave to appeal on proposed ground 3.

Grounds 1, 2 and 4

1. The applicant was taken into custody on 4 December 2019. He had been continuously in custody thereafter until sentence. Each of grounds 1, 2 and 4 require attention to the applicant's custodial history in 2018 and 2019, and the other sentences he was serving throughout 2020 prior to the imposition of the back-dated sentence from which this application for leave is brought. Sadly, the position after September 2018, when the applicant turned 18, is quite complicated.
2. First, on 13 December 2018, the Local Court at the Downing Centre had imposed an intensive correction order for 14 months commencing 13 December 2018 and expiring on 12 February 2020. That sentence was imposed following his conviction on an account of affray committed on 21 October 2018. Thus in late November and early December 2019, when the offences giving rise to this appeal were committed, the applicant was still serving the final 3 months of the intensive correction order.
3. Secondly, on 1 April 2019, the Local Court at the Downing Centre imposed a 9 month community correction order, commencing on that date, following his conviction for two offences of being carried in a conveyance taken without the owner's consent. Those offences took place in October 2018. That order was also in place when the offending giving rise to this appeal occurred.
4. Thirdly, on 2 October 2019, the applicant was sentenced to a term of imprisonment for 9 months with a non-parole period of 6 months, back-dated to commence 1 March 2019, for stealing property in a dwelling house. That offence was committed on 20 September 2018.
5. Fourthly and most importantly for present purposes, the applicant was sentenced by the Local Court at Parramatta on 1 May 2020 to an aggregate sentence of 25 months imprisonment, with a non-parole period of 12 months, for seven offences involving driving in a stolen car and breaking and entering in company with intent to steal. The offending took place between 8 and 12 December 2018, and on 26 December 2018. The sentence was back-dated to commence on 2 September 2019. This sentence had not been imposed when the offending giving rise to the present appeal occurred. However, it had been imposed when the applicant came to be sentenced for the offending which is the subject of this appeal. Its effect was that the applicant was serving the non-parole period of that sentence for the period after his arrest on 4 December 2019 until 1 September 2020.
6. It will be seen that the complexity in the sentencing history comes about because while the applicant committed a series of offences in September, October and December 2018, sentences were imposed for that offending over the period December 2018 until May 2020, and for the most part involved back-dating the commencement of those sentences.
7. The custodial history is also a little complicated. The first time the applicant was taken into full-time custody was when he was charged with the offending which ultimately led to the 25 month aggregate sentence imposed on 1 May 2020. The applicant was charged with those offences on 28 February 2019 and taken into custody on 1 March 2019. He was held in custody for the ensuing 4 months until being released to serve an intensive correction order on 4 July 2019. However, on 8 July 2019 he was taken back into custody when he was charged with possessing or using a prohibited weapon. He was sentenced at Liverpool Local Court for a period of imprisonment for 12 months commencing that day, with a non-parole period of 7 months expiring 7 February 2020. However, he was released on 2 October 2019, in circumstances which so far as I can see were not explained in the materials. Some two months later, on 4 December 2019, the applicant was admitted into custody following his arrest for the offending giving rise to this appeal.
8. For present purposes, three things emerge from the applicant's criminal and custodial history. 1. The first, which bears directly on the grounds of appeal concerning totality and manifest excess, is that from the applicant's first admission to custody on 1 March 2019, he has been continuously in prison save for 5 days (4-8 July 2019) and a further 63 days (2 October 2019 and 4 December 2019). 2. Secondly, by the time the present sentence was imposed, the applicant was serving the 25 month sentence imposed on 1 May 2020 for separate offending. That sentence had been back-dated to commence on 2 September 2019, and had a non-parole period of 12 months. (That might be seen itself to have been a highly favourable exercise of discretion, because for the period from 2 October 2019 to 4 December 2019, the applicant was in fact at liberty.) 3. Thirdly, if one proceeded on the basis that the applicant would have the benefit of a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) after 1 September 2020 when the non-parole period of the 25 month sentence expired, then the position at 17 December 2020 was that irrespective of any back-dating by the District Court in imposing the sentence giving rise to this appeal, the applicant had been serving another sentence of full-time imprisonment between 4 December 2019 and 1 September 2020.
9. Accordingly, sentence was to be imposed on 17 December 2020 in circumstances when (a) the applicant had been continuously in custody following his arrest on 4 December 2019, but (b) for the large majority of that time in custody, he had been serving the non-parole period of a separate sentence of imprisonment imposed for separate offending, (c) only for the period after 1 September 2020 was the applicant entitled to statutory parole under that separate sentence and thus (d) any back-dating earlier than 1 September 2020 was of direct benefit to the applicant, because it would permit the concurrent service of two non-parole periods of two separate sentences for separate offending.
10. The back-dating of the sentence imposed on 17 December 2020 by the District Court to 5 June 2020 produced the result that the almost three month period from 5 June 2020 until 1 September 2020 would be taken to have been served both under that sentence and also as part of the non-parole period for the 25 month sentence imposed on 1 May 2020 for separate offending.
11. Bearing that background in mind, I turn to the individual grounds.

Proposed ground 1

1. An elaborate submission of some 14 paragraphs was advanced in the District Court as to the applicant's criminal and custodial history. The complaint in ground 1 is that "[a]t no point in the remarks on sentence did his Honour refer to the fact that the applicant had spent most of his adult life in custody". The submissions go so far as to say that "[t]he distinct impression that one is left with after reading the remarks on sentence is that his Honour had absolutely no regard for those periods of time spent in custody". This was said to amount to a failure to have regard to an important submission, and even to give rise to a failure to afford natural justice.
2. I do not accept this submission. The remarks on sentence include a section headed "Prior Criminal Record" under which is said: "The offender has some similar and serious other offences involving violence, possession of a weapon, being carried in a conveyance and an offence of affray. He received an Intensive Correction Order in 2018 and Community Correction Orders. He has been imprisoned in 2018 and 2019. At the time of the offences he was on conditional liberty. In respect to the first offence, he was on parole in relation to the subsequent offences. He was on an Intensive Correction Order, two Community Corrections Orders for nine months and on bail. In relation to his custodial history I note there were some offences of custodial regulations proven by dismissed on 24 January 2020."
3. His Honour also said: "I take into account he was taken into custody on 4 December 2019. The time he has spent in custody in relation to this particular offence, according to Ms Hatch, is some three months and a number of days up until today."
4. His Honour also referred to the applicant's time in custody again when summarising the Sentence Assessment Report: "I note in the prior supervision of the Intensive Correction Order there were three breaches which finally resulted in a revocation and there was a revocation of the Statutory Parole Order."
5. When explaining why he would impose an aggregate sentence, his Honour said: "I propose to deal with him by way of an aggregate sentence. In doing so, it will take into account the application of the principle of totality in relation to two headings: 1. The totality of the sentence to be applied in relation to the previous offending for which he is serving sentences; and 2. Totality in respect of the current offences which were committed over a period of criminality of just over a week."
6. Finally, the fact that the applicant had been serving other sentences of full-time imprisonment was clear from the reasons given for back-dating the sentence; "I propose to commence the sentences, in my discretion, from 5 June 2020 which will be partially concurrent in relation to the penalties imposed that he is currently serving."
7. The Crown submitted that his Honour: "…both implicitly and expressly had regard to the applicant's time in custody both for the present offences and earlier offences, as well as their impact on totality. The fact that the period in custody comprised most of his adult life was implicitly a matter considered by his Honour in light of the applicant's age, his youth and immaturity and the dates when he was in custody."
8. It is true that the sentencing judge did not set out a complete history of the criminal and custodial history at the level of detail given above. Nor did his Honour refer in terms to the applicant's submission that there had only been short periods since his 18th birthday when he had not been in custody.
9. However, there can be no doubt that his Honour was alert to the fact that the applicant was just over 20 when sentence was imposed. There can be no doubt that his Honour was aware that he had been taken into custody on 4 December 2019, slightly more than a year before. There can also be no doubt that his Honour well appreciated that in the year after the applicant turned 18, he had had his conditional liberty revoked, had his statutory parole order revoked, and had been returned to custody following offending committed while he was serving an intensive correction order. All those points were expressly stated by his Honour when imposing sentence. The inevitable consequence of that history was that he had spent most of the year following his 18th birthday in custody. In those circumstances, there is no proper basis to infer that there was any failure to consider what was sadly so obvious that it went without saying, namely, that this young man who had committed offences of increasing seriousness in the short windows of time when he had been released into the community had spent most of his adult life in gaol.
10. This ground is not made out.

Proposed grounds 2 and 4

1. Both of these grounds turn on the back-dating in the sentence imposed by the District Court. In support of ground 2, it was said that the principles of totality required the court to have regard to his time in custody from 28 February 2019 to date, despite the two periods of 5 and 63 days when he was at liberty in 2019. It was said that the failure to consider the fact that the applicant had been in custody from 28 February 2019 to 4 July 2019 and 8 July 2019 to 2 October 2019 was in itself a breach of the totality principle, notwithstanding the fact that there were two very short gaps of being at liberty during that period.
2. The applicant relied upon Waugh v The Queen (2013) 38 VR 66; [2013] VSCA 36 where it was said that: "the principle of totality requires the Court sentencing the offender for the later offences to have regard to the 'parole sentence' in its entirety. The Court must take account of the offence or offences to which the parole sentence relates, the length of the parole sentence, and the offences on which the prisoner now falls to be sentenced, in order to determine what total effective sentence - together with the parole sentence - is no more than necessary to reflect the prisoner's overall criminality."
3. The applicant submitted "[t]here is no reason why the principles of totality would not apply by reason of the applicant's short periods of being at liberty between 28 February 2019 and 4 December 2019."
4. I do not accept the premise of this submission. It is factually true that there were only two gaps in the period from 28 February 2019 until 4 December 2019. The 63 days from 2 October 2019 until the applicant's arrest on 4 December 2019 was not a "very short gap". Throughout October and November 2019, the applicant was at liberty. True it is that his liberty was highly conditional. He was simultaneously serving an intensive correction order and a community correction order. But he had been at liberty for slightly more than 2 months before being arrested for the offending giving rise to this appeal.
5. It is also true that afterwards, on 1 May 2020, a back-dated full-time custodial sentence was imposed commencing on 2 September 2021. As noted above, the back-dating of that sentence so that part of it was taken to have been served during the period when the applicant was at liberty may be regarded as generous. But that fact did not, for the purposes of the principle of totality, alter the fact that he was at liberty during this period. The principles of totality turn on the actual experience of a series of custodial sentences, not the after-the-event back-dating of a sentence.
6. I do not see why this is a case where the principles of totality required regard to be had to an earlier sentence, the full-time custodial aspects of which had already been served, some two months before the further spate of offending occurred. Ground 2 is not made out.
7. Turning to ground 4, as the Crown submitted, no such submission was made to the sentencing judge. To the contrary, the applicant accepted that "there must be some degree of concurrence between the current sentence and the sentence of 1 May 2020", that "[t]he earliest date the current sentence should commence is 4 December 2019" and "the latest date the present sentence should commence is 2 September 2020".
8. Proposed ground 4 is squarely inconsistent with what was submitted to the sentencing judge. Proposed ground 4 is that there was appellable error in not back-dating the sentence to 4 December 2019. But the applicant submitted to the sentencing judge that there was a range of dates from which the sentence should commence, between 4 December 2019 and 2 September 2020. The sentencing judge chose a date within that range.
9. The fact that a submission was not made to the sentencing judge is not necessarily fatal to an appeal, although it will be difficult to establish House v The King error through failing to have regard to a point that was not made. But it is with respect not tenable to say that there was appellable error unless the District Court back-dated the sentence to 4 December 2019. The Court was exercising a discretion, and there was no error in partially accumulating it upon the sentence imposed on 1 May 2020 for separate offending.
10. Further, acceding to the submission in proposed ground 4 would have the practical effect that the sentence imposed on 1 May 2020 with a commencement date of 2 September 2019 for entirely separate offending would have no separate penalty whatsoever. That may be seen as follows: 1. For the period from 2 September 2019 until 1 October 2019, the applicant was in full-time imprisonment following the revocation of his earlier statutory parole order and his arrest on a charge of possessing or using a prohibited weapon. 2. For the period from 2 October 2019 until 4 December 2019, the applicant was on conditional liberty. 3. Accordingly, if the sentence for the present offending were back-dated to 4 December 2019, then it would be wholly concurrent with the 25 month sentence imposed on 1 May 2020 except for the period from 2 September 2019 until 4 December 2019, and during the previous 3 months, the applicant was imprisoned on another basis or else was at liberty.
11. There may be occasions where it is appropriate for a new sentence to be back-dated so that the effect is that an earlier sentence imposed for separate offending is wholly subsumed within the new sentence, although ordinarily that would be unusual. But I cannot accept that the failure to back-date a sentence so as to wholly subsume the sentence imposed on the applicant on 1 May 2020 of itself amounts to appellable error. Determining the starting date of a sentence involves the exercise of a discretion: see for example Dellow v R [2020] NSWCCA 301 at [54] and the authorities there cited. This was not a case where pre-sentence custody was solely referable to the offending for which sentence was imposed; far from it.
12. Finally, it was submitted that while the sentence imposed was not manifestly excessive, it was made manifestly excessive by a failure to back-date it to 4 December 2019. I do not agree. The nature of the offending, the maximum penalties and the standard non-parole period are reproduced above. The offences were committed while the applicant was subject to conditional liberty. The sentencing judge was correct to say that: "This type of offending, particularly the serious assaults upon Mr Pham and Mr Nguyen, requires a degree of general deterrence to dissuade other young, like-minded offenders from committing such horribly violent offences which are abhorred by the community. The nature of the offences also underlines a need for the protection of the community from this type of violence."
13. Nothing in the applicant's subjective case made the sentence which was imposed, back-dated so as to commence on 5 June 2020, one that was manifestly excessive. It was unsurprising that very little was said, either in writing or in oral address to develop this proposed ground.
14. While there should be a grant of leave, these grounds are not made out.
15. I propose the following orders:
16. Grant leave to appeal against the sentence imposed by the District Court on 17 December 2020, confined to grounds 1, 2 and 4.
17. Appeal dismissed.
18. HAMILL J: I agree with Leeming JA.
19. IERACE J: I also agree with Leeming JA.

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