• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 42 of 2016

Decision under appeal: Court/Tribunal: ACTSC Before: Elkaim J Date of Decision: 25 August 2016 Case Title: R v NC Citation: [2016] ACTSC 245

THE COURT:

1. On 30 December 2001, the appellant entered a TAB betting store in Dickson in the ACT. He threatened a staff member with a gun and stole $36,000, before fleeing in a stolen vehicle.

2. On 25 May 2016, over fourteen years after he had committed the offences, the appellant pleaded guilty to one count of armed robbery contrary to s 101 of the Crimes Act 1900 (ACT) (Crimes Act) and one count of riding in a vehicle without authority contrary to s 129(1) of the Crimes Act.

3. The appellant was sentenced by Elkaim J on 25 August 2016. Relevantly, at the time that he committed the offences, the appellant was on a good behaviour recognizance for a separate armed robbery committed in the ACT in 1997. Miles CJ handed down a four year suspended sentence for that armed robbery on 10 May 2001, on condition that the appellant enter into the good behaviour recognizance. The sentencing judge was therefore required to re-sentence the appellant in respect of the earlier separate armed robbery.

4. The appellant was sentenced to a total head sentence of ten years’ imprisonment with a nonparole period of six years. The appellant was in custody in the ACT at the time of sentencing, having been transferred from NSW where he was already serving a sentence for separate armed robbery and firearm offence convictions. As things presently stand, the appellant will be eligible for parole on 24 August 2022.

5. The appellant appealed the sentences, pursuant to an Amended Notice of Appeal dated 8 September 2016, on the grounds that the head sentence and nonparole period were manifestly excessive in the circumstances, and that the sentencing judge failed to have regard to “considerations of totality”.

6. For the reasons that follow, the appeal should be allowed, and the appellant re-sentenced.

The offences

7. As at 30 December 2001, armed robbery was an offence contrary to s 101 of the Crimes Act. That offence carried a maximum penalty of imprisonment for 25 years.

8. As at 30 December 2001, riding in a vehicle without authority was an offence contrary to s 129(1) of the Crimes Act. That offence carried a maximum penalty of imprisonment for 5 years.

9. It should be noted that ss 101 and 129(1) have since been repealed. Equivalent offences, with the same maximum penalties, now exist under the Criminal Code 2002 (ACT).

10. The separate armed robbery, for which the appellant was sentenced by Miles CJ, occurred on 31 July 1997. At about 3.25 pm, the appellant entered the Advance Bank in Dickson in the ACT and threatened bank staff with an imitation handgun. He removed $14,680 from the teller bays, before fleeing in a getaway car.

11. The extant TAB armed robbery occurred on 30 December 2001. At some time on either 29 December or 30 December 2001, a white Ford Fairlane with NSW registration XNL942 was stolen from a used car dealership in Tumut, NSW. At about 8.00 pm on 30 December 2001, the appellant drove the stolen vehicle to the Dickson shops and parked it in front of the TAB. The only person inside the TAB at that time was a TAB employee, who was in the process of closing the store. The appellant exited the stolen vehicle and ran towards the TAB front doors. He banged on the locked doors, pointed the gun at the TAB employee with his left hand, and demanded that she open the doors. The TAB employee immediately pressed a ‘hold up’ alarm button, and then made two brief phone calls. The first was to the ACTTAB Control Centre. The TAB employee spoke to a woman named Pam and advised her of the situation. She then dialled 000. At this moment, the appellant managed to kick open the front doors. The TAB employee was able to have a brief conversation with the 000 operator, before the appellant forced her to hang up the phone.

12. The appellant demanded that the TAB employee open the safe. The TAB employee retrieved the safe code from her mobile phone. The appellant stood behind the TAB employee as she knelt to open the safe. The appellant touched the TAB employee’s hair and told her that he did not want to hurt her. When the TAB employee accidentally entered the wrong code, the appellant placed the barrel of the gun against the right side of her head. The TAB employee began crying and shaking. The appellant told the TAB employee to hurry up, and that he would count to three. The TAB employee managed to open the safe on her second attempt. She pulled the money tin out of the safe, which contained $36,000, and gave it to the appellant. The TAB employee then attempted to stand up, but the appellant pushed her back down and told her to lie on the ground. The appellant then exited the TAB store, and fled in the stolen Ford Fairlane. The Fairlane was later found by police abandoned in the carpark of the Dickson Premier Inn.

Procedural history

13. Over 14 years passed between the TAB armed robbery and the appellant’s sentencing on 25 August 2016. Some but not all of that delay is explained by the appellant’s extensive history of criminality and incarceration in various States and Territories. It is therefore necessary to set out a number of these other criminal convictions and the sentences served, as they bear on the timeline of when the appellant was interviewed about, charged with and ultimately sentenced for the TAB armed robbery.

14. Before the sentencing judge, the Crown tendered lengthy criminal history reports prepared by the Victorian, New South Wales and Australian Federal Police. Those criminal history reports, particularly those prepared by the New South Wales police, are often difficult to read and are apt to confuse. At the request of the Court, the parties prepared and filed a detailed chronology after the hearing of the appeal. What follows is a summary of that chronology.

15. Between August and October 1990, the appellant was convicted on three separate charges of armed robbery in Queensland. The relevance of those offences will be apparent later. On 31 July 1997, the appellant committed the ACT armed bank robbery outlined above. Just over one month later, on 9 September 1997, he was charged with being an accessory after the fact to an armed robbery in NSW. On 15 May 2000, he was sentenced to imprisonment for two years in respect of the accessory charge in the District Court of New South Wales. On 6 February 2001, after serving ten months, the appellant was released on parole.

16. On 10 May 2001, Miles CJ handed down the four year suspended sentence and imposed the good behaviour recognizance for the ACT armed bank robbery. On 17 August 2001, the appellant was again sentenced, this time by Williams DCJ in the District Court of NSW sitting in Wagga Wagga, for charges of entering a dwelling or house and assault occasioning actual bodily harm. Williams DCJ sentenced the appellant to 18 months and 12 months imprisonment for the respective charges, however both sentences were again suspended on condition of the appellant entering good behaviour bonds.

17. The appellant was, however, far from well behaved whilst at liberty subject to the bonds. Indeed, quite the contrary. Between 7 December 2001 and 18 January 2002 he had a particularly active period of criminality. This commenced with a malicious wounding in Tumut, NSW, on 7 December 2001. On 30 December 2001, the appellant committed the ACT TAB armed robbery. Somewhat curiously, the chronology also records that the appellant committed an offence of receiving property stolen outside NSW on the day before he committed the ACT TAB armed robbery. Less than three weeks later, on 18 January 2002, he committed a further armed robbery in Marrickville NSW. The appellant’s criminal streak came to an end when he was arrested by police immediately after the Marrickville armed robbery, apparently after he was tackled and restrained by a member of the public. The appellant was subsequently remanded in custody.

18. Shortly thereafter, on 31 January 2002, the appellant was interviewed by NSW Police at Parramatta Police Station. During the taped interview, the appellant was asked, and declined to answer, questions about the ACT TAB robbery.

19. It is tolerably clear that, by this point in early 2002, the appellant was at the very least a person of interest in the investigation of the TAB armed robbery. Following the robbery, ACT Police had collected fingerprint impressions from the TAB store and the exterior of the stolen Ford Fairlane. The fingerprints were subsequently matched to the appellant, though it is unclear precisely when. The TAB employee had provided a description of the armed robber, and two witnesses also told police they saw a man of similar description carrying a gun and entering the TAB store, and later driving the Fairlane. The same witnesses saw the vehicle turn into the Dickson Premier Inn carpark, where the car was subsequently found by police. Significantly, a cigarette butt was also found in the centre console of the vehicle.

20. The appellant was sentenced in respect of the malicious wounding, receipt of stolen property and Marrickville armed robbery offences by Berman DCJ in the NSW District Court in Sydney on 20 September 2002. He was also re-sentenced for the suspended sentences imposed by Williams DCJ in the Wagga Wagga District Court. Berman DCJ imposed a sentence of imprisonment for 18 months for the suspended sentences. For the extant charges, his Honour imposed fixed term sentences of imprisonment for three years and one year respectively for the malicious wounding and receipt of stolen property offences, to date from 6 April 2002. For the armed robbery offence, Berman DCJ sentenced the appellant to imprisonment for six and a half years, to commence on 6 April 2004, with a nonparole period of three and a half years. The overall effect of these sentences was a term of imprisonment of eight years and six months. The appellant would be eligible for parole on 5 October 2007.

21. On 8 October 2002, shortly after the appellant was sentenced in the Sydney District Court, a warrant for the appellant’s arrest was issued by the ACT Magistrates Court for breach of the recognizance imposed by Miles CJ. The ostensible basis of the warrant was the appellant’s criminal conduct in NSW. The warrant was not issued in relation to the TAB armed robbery.

22. As noted earlier, the appellant became eligible for parole in October 2007. However, any aspirations of liberty were short-lived. On 8 October 2007, without being released, the appellant was extradited to Queensland to serve the balance of his sentence for the 1990 armed robbery charges. He spent a further one year in prison, and was released on 6 October 2008.

23. Again, regrettably, it did not take long for the appellant to re-offend following his release. Back in NSW, he committed two armed robberies in quick succession. The first occurred on 19 January 2009 in Kings Cross. The second, on 25 January 2009 in Newtown, followed shortly thereafter. The appellant was arrested the following day. As it turned out, this brief period of just less than four months, from 6 October 2008 to 26 January 2009, was the appellant’s only period of liberty between 18 January 2002 and the present.

24. Importantly, while in custody for those armed robberies, the appellant consented to a DNA sample being taken in relation to his suspected involvement in the ACT TAB armed robbery. That sample was taken by way of a buccal swab on 17 August 2009. That DNA sample was compared with DNA obtained from the cigarette butt found in the Ford Fairlane. That examination revealed that the DNA on the cigarette butt was almost certainly that of the offender.

25. The appellant was sentenced for the two NSW armed robberies, in addition to other firearm offences (as well as certain other minor offences listed on a schedule), on 2 July 2010 in the NSW District Court at Sydney. The ultimate effect of the partly concurrent sentences imposed, the first of which commenced on 26 January 2009, was a total head sentence of 12 years and six months’ imprisonment to conclude 25 July 2021, with a nonparole period to conclude on 25 January 2018.

26. Matters finally came to a head in respect of the offences the subject of this appeal when, on 13 July 2011, the appellant took part in a recorded interview with police while in Goulburn prison. The appellant made a full admission regarding his involvement in the ACT TAB armed robbery. He admitted to stealing the Ford Fairlane from the dealership in Tumut, NSW, driving it to the ACT, robbing the TAB store in Dickson, arming himself with a replica firearm during the robbery and fleeing in the Fairlane.

27. Relatively soon thereafter, on 14 September 2011 the ACT Magistrates Court issued a warrant for the appellant’s arrest in respect of the TAB armed robbery.

28. It may be observed that the interview occurred, and the warrant was issued, almost ten years after the offences were committed; over 9 years after the appellant was first interviewed by the police in relation to these matters (noting that it would appear that the police had fingerprint evidence connecting the appellant with the offences at that time); over 8 years after a warrant for the appellant’s arrest was sought and issued by the ACT Magistrates Court in respect of his breach of the recognizance order made by Miles CJ; and 2 years after the DNA swab connecting the appellant with the offences was taken.

29. Perhaps even more importantly, despite the delays that had already occurred, even after the warrant was issued the relevant authorities took no positive steps to have the appellant dealt with in relation to these matters.

30. The Australian States and Territories have enacted uniform interstate prisoner transfer legislation, allowing law enforcement officers or incarcerated prisoners to request that the prisoner be transferred to a participating State or Territory: see Prisoners (Interstate Transfer) Act 1982 (NSW) (Interstate Transfer Act) and interstate equivalents. Despite the issue of the arrest warrant on 14 September 2009, ACT law enforcement officials never made any application for the appellant to be transferred to the ACT to face charges relating to the TAB armed robbery. The appellant himself first applied to be transferred to the ACT in 2011. There appears to have been no response to that application. It is not clear why. A further 3 years passed. The appellant then made a further transfer application on 15 October 2014, on the grounds that he wished for the ACT offences to be dealt with while he was in custody so that there were no outstanding matters upon his release. That appears to have been an eminently sensible and reasonable request considering what had occurred to the appellant in October 2007, when he was extradited to Queensland shortly prior to his release from prison in NSW.

31. The NSW Attorney-General eventually consented to the appellant’s second transfer application on 9 December 2014. Nearly a year later, on 23 November 2015, the ACT Attorney-General in turn consented to the transfer application. On 19 February 2016, a Magistrate of the Sydney Local Court in NSW ordered the transfer of the appellant to the Alexander Maconochie Centre in the ACT.

32. On 4 May 2016, the appellant finally appeared before the ACT Magistrates Court in relation to the charges arising from the TAB armed robbery. On 25 May 2016, at the second return date before the Magistrates Court, the appellant entered a plea of guilty and was committed for sentence to the ACT Supreme Court. As outlined above, the sentencing judge sentenced the appellant on 25 August 2016 to a total head sentence of ten years’ imprisonment, with a nonparole period of six years.

The sentencing judge’s reasons

33. The sentencing judge delivered his remarks on sentence ex tempore. His Honour began by noting that the maximum penalties for armed robbery and riding in a vehicle without authority were 25 years’ and five years’ imprisonment respectively. His Honour also stated that the appellant’s guilty pleas, which were entered on the second occasion the matter was mentioned in the ACT Magistrates Court, should be regarded as early pleas.

34. Following a recital of the facts of the offence, his Honour devoted a brief discourse to the TAB employee’s victim impact statement. His Honour noted that the TAB employee was clearly still suffering effects from the armed robbery 15 years later. In particular, his Honour referred to the fact that the she required ongoing medication, had a stress-related skin condition, and had been diagnosed with post-traumatic stress disorder. Understandably, his Honour suggested that the use of a gun to terrorise an innocent victim, including placing the barrel of the gun to the victim’s head, meant that the objective seriousness of the offence was severe.

35. His Honour then considered the appellant’s circumstances. The appellant was a 49 year old man with a very long criminal record, and a background “replete with tragedy and deprivation.” In particular, his Honour accepted evidence which demonstrated that: the appellant was exposed to alcohol and violence from a young age; his father left home when the appellant was seven years old; a short time later his mother was murdered by her new partner; his father provided the appellant little care, despite his mother’s murder; the appellant’s cousin and his cousin’s family were also murdered in 1984; the appellant was placed in a boy’s home in Sydney at age 12; he left school in Year 7; and the appellant was in and out of juvenile detention from the age of 14.

36. Turning to the appellant’s adult life, his Honour noted that the appellant denied having a problem with alcohol, but concluded that the appellant clearly had an addiction to illicit substances, particularly heroin. His Honour noted that the appellant had expressed aspirations of continuing with an addiction treatment program; however his Honour opined that, considering the appellant’s record, this was unlikely. Finally, his Honour concluded that the documents tendered by the appellant’s counsel to demonstrate the appellant’s tragic past had the dual effect of confirming that the appellant was unlikely to stop reoffending, and that rehabilitation was almost futile.

37. In considering the appellant’s mental and emotional circumstances, the sentencing judge extracted and endorsed an observation in the 2002 sentencing remarks of Berman DCJ that it was “of particular concern that the offender has demonstrated a willingness to arm himself with weapons in order to commit offences”. His Honour also extracted elements of a psychologist’s report which had been tendered at the sentencing hearing in 2002 before Berman DCJ. That report stated, inter alia, that the appellant had a strong need for attention and praise, a low tolerance for boredom, and was predisposed to substance abuse if praise, attention, stimulus or variety were unavailable or removed from him. Finally, his Honour noted evidence which showed the appellant to have a low range of intellectual functioning.

38. When it came to sentencing the appellant, the sentencing judge noted the importance of having regard to the objects of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) contained in s 6, and the purposes of sentencing as stated in s 7. His Honour also observed that s 10 provided that a term of imprisonment should not be imposed by the Court unless no other penalty is appropriate. His Honour concluded that, taking into account the nature of the offence, the appellant’s record, the effect of the offence on the TAB employee and the absence of any real prospect of rehabilitation, imprisonment was an inevitable result.

39. In determining the appropriate sentence, Elkaim J considered a number of factors which were said to “both mitigate and militate against mitigation of sentence”. Those factors included the appellant’s tragic upbringing (citing Bugmy v The Queen [2013] HCA 37; 249 CLR 571) and the early age at which the appellant became a drug addict (citing Douglas v The Queen (1995) 56 FCR 465). His Honour also took into account the nature of the offence, noting Spigelman CJ’s observation in R v Henry [1999] NSWCCA 111; 106 A Crim R 149 regarding the seriousness of the offence of armed robbery:

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.

40. Relevantly to one of the grounds of appeal, the sentencing judge stated that he also took the delay in the matter being dealt with into account (citing Blanco v The Queen [1999] NSWCCA 121; 106 A Crim R 303 (Blanco)). However, beyond that, his Honour gave no real indication of how the delay weighed on his consideration of the appropriate sentence, or how that consideration impacted on the sentence he ultimately imposed.

41. The remainder of his Honour’s sentencing remarks focussed largely on the methodology with which the sentencing exercise should be approached in the appellant’s unique circumstances. His Honour agreed, on the suggestion of one or both of the parties, that he should endeavour to approach the sentencing exercise as if the appellant was being sentenced by Berman DCJ in September 2002, when Berman DCJ sentenced the appellant for similar offences committed at a similar time. It is not entirely clear, however, from either the transcript or the remarks on sentence, exactly what the parties, or his Honour, meant by this. Nor is it readily apparent how this approach or consideration was ultimately taken into account, or reflected, in the sentences imposed by his Honour.

42. His Honour also noted that provisions of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) required him, if appropriate, to reset the nonparole period in respect of the matters for which the appellant was already in prison. His Honour ultimately did so, ordering that the nonparole period for the existing sentences be reset to align with the nonparole period set for the current sentence. As will be seen, however, it would appear that the parties and his Honour gave insufficient consideration to what the relevant legislation in fact required in relation to the setting of a nonparole period in cases where an offender was already serving a term of imprisonment.

43. Relevantly for the second ground of appeal, his Honour also said that he intended to “achieve appropriate totality” by commencing the sentences that he was imposing, including that arising from the breach of the recognizance, from the date of sentencing. It is apparent that his Honour did not have regard to any potential issue concerning totality arising from the fact that the appellant was already serving a term of imprisonment.

44. Finally, his Honour stated that the total sentence should be discounted for the appellant’s early guilty plea, and that the sentence in respect of riding in a vehicle without authority should be served concurrently with that for the armed robbery, as they were part of the same criminal enterprise.

45. The sentencing judge made the following orders:

(i) For the offence of armed robbery contrary to s 101 of the Crimes Act, 1900 (ACT), the offender is sentenced to a term of imprisonment of 10 years, to commence today [25 August 2016] and to expire on 24 August 2026; (ii) For the offence of riding in a vehicle without authority contrary to s 120(1) of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of one year to commence today [25 August 2016] and to expire on 24 August 2017; (iii) In respect of the breach of the recognizance entered into on 15 May 2001, the offender is re-sentenced to a term of imprisonment of 4 years to commence today [25 August 2016] and expire on 24 August 2020. (iv) The non-parole period for the offences for which the offender is currently in prison is reset to align with the non-parole period in respect of which the appellant is being sentenced today. (v) I set a non-parole period of 6 years to expire on 24 August 2022.

46. As the sentences were to be served concurrently, the appellant’s effective head sentence was ten years’ imprisonment, from 25 August 2016 to 24 August 2026. As noted, his Honour imposed a nonparole period of six years, to expire on 24 August 2022.

47. The fourth order made by his Honour, involving the “reset” of the existing nonparole period, requires some further consideration. While it is not immediately apparent from his Honour’s remarks on sentence, it would appear that in making this order his Honour was intending in some way to deal with s 66 of the Sentencing Act. The operation of s 66 of the Sentencing Act will be considered later in the context of the appellant’s appeal grounds. Suffice it to say at this stage that it would appear that his Honour was led into error concerning the operation of that and other sections of the Sentencing Act that should have been utilised to take into account the fact that the appellant was already serving a sentence of imprisonment. That raises an issue in relation to the effective nonparole period set by his Honour.

The grounds of appeal

48. The appellant’s grounds of appeal are:

(a) The head sentence and the non-parole period are manifestly excessive in the circumstances; and

(b) His Honour failed to have regard to considerations of totality in imposing the sentences that he did.

49. The appellant seeks orders that the appeal be upheld, the convictions be confirmed, and that the appellant be re-sentenced.

Consideration

50. There could be little doubt that the learned sentencing judge was presented with a very difficult sentencing exercise given the complex chronology of the appellant’s offending and interaction with law enforcement agencies and the courts. Regrettably, and with the greatest of respect, given the complexity of the sentencing exercise, it does not appear that his Honour received the assistance from the parties that he was entitled to expect.

Ground 1 – manifest excess

51. The applicable principles in relation to this ground are well-known. They were summarised in the following terms in Dalton v The Queen [2015] ACTCA 48 at [18]:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:  Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 2002 CLR 321 (Dinsdale).  The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].  In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].  It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

52. The appellant’s submissions in relation to this ground were scant. Putting aside the specific issue concerning totality and delay, which is dealt with separately in ground 2, the appellant did little more than point to the fact that the sentence imposed in respect of the armed robbery, if the discount for the plea of guilty is ignored, was twice the sentence imposed by Berman DCJ in 2002 in respect of the offence of armed robbery, and two and a half times the sentence imposed by Miles CJ in 2001 in respect of the offence of armed robbery.

53. That submission may be given short shrift. The fact that many years ago other judges imposed lower sentences in respect of separate and distinct offences in different circumstances does not demonstrate that the sentence imposed by the sentencing judge in relation to the armed robbery in this matter was unreasonable or unjust and therefore manifestly excessive. The sentences imposed by Berman DCJ and Miles CJ well over 10 years ago no doubt turned on their own facts, including not only the different facts and circumstances surrounding the offending conduct, but also the appellant’s particular subjective circumstances at the time that he was sentenced on those occasions. It may also be the case that, for whatever reason, those sentences were particularly lenient sentences.

54. The appellant’s submissions were, in a sense, similar to submissions that are frequently put by appellants based on a small selection of sentences imposed in supposedly comparable cases. Comparable cases may be useful in two ways: first, if it is possible to discern from them any unifying sentencing principles that should be applied; and second, if an analysis of the cases discloses discernible sentencing patterns or a range of sentences. However, the cases may not establish any relevant range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]–[55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59] (per Gaudron, Gummow and Hayne JJ); R v Pham [2015] HCA 39; 256 CLR 550 at [26]– [27] (per French CJ, Keane and Nettle JJ). Much will depend on the number of cases referred to and whether they are truly comparable. As Hoeben CJ at CL (Schmidt J and Barr AJ agreeing) said in Frahm v The Queen [2014] NSWCCA 10 at [19] in relation to submissions of that sort:

As a matter of principle, submissions based on a small selection of cases [that] produce a result favourable to an applicant, is not an approach which has found favour in this Court. It is, of course, always possible to find cases which favour a particular outcome. This selection of cases is so small that it cannot demonstrate a sentencing trend. Each case of necessity depends on its own particular facts and a selection of cases in this way does no more than demonstrate that a particular outcome occurred in each of the nominated cases. A small selection of cases such as this does not and cannot demonstrate that a particular sentence was manifestly excessive.

55. The appellant appeared to rely on the fact that the sentencing judge indicated that he would endeavour to deal with the matter as if the appellant was being sentenced by Berman DCJ when he was sentenced for similar offences committed at a similar time. As already indicated, it is not entirely clear what his Honour meant when he said that he would endeavour to take that course. In any event, the appellant submitted, in that context, that the sentencing judge did not indicate why the sentence imposed was longer than the sentence imposed by Berman DCJ or why the sentence imposed “merited that outcome”. The short response to that submission is that his Honour was not required to explain why the sentence he imposed was longer than the sentence imposed by Berman DCJ. His Honour was required to explain why a sentence of 10 years’ imprisonment was an appropriate sentence in all the circumstances. That his Honour did, albeit in brief terms. In any event, even if the appellant’s complaints in this regard had some merit, which they do not, they do not relevantly bear on the question of whether the sentence imposed in respect of the armed robbery was manifestly excessive.

56. As has already been indicated, armed robbery was an offence that had a maximum penalty of imprisonment for 25 years at the time the offence was committed by the appellant. The facts and circumstances of the offence demonstrate that it was objectively a very serious offence. While the appellant had some subjective circumstances that weighed in his favour, including his tragic past, early drug addiction and plea of guilty, equally he had a lengthy criminal record and his prospects of rehabilitation were poor. The primary judge weighed all these considerations in the balance. Putting to one side, for the moment, the specific issues which are the subject of the second ground of appeal, it cannot be concluded that a sentence of imprisonment of 10 years was manifestly excessive. While a sentence of 10 years imprisonment could perhaps be said to be a harsh sentence, it could not be said to be unreasonable or plainly unjust.

57. It should also be noted that the sentence imposed in respect of the armed robbery should not be looked at in isolation. His Honour also imposed a sentence of imprisonment in respect of the offence of riding in a vehicle without authority and re-sentenced the appellant for the 2001 armed robbery which was the subject of breach of the recognizance. Those sentences were ordered to be served concurrently with the armed robbery sentence. The fact that the re-sentence arising from the breach of recognizance was ordered to be served concurrently, in circumstances where the underlying offence in respect of which that order was made was an entirely discreet armed robbery, showed an element of leniency that should not be ignored in assessing the overall impact of the sentences imposed on the appellant.

58. The appellant appeared to contend, in his written submissions at least, that the re-sentence imposed in respect of the breach of the recognizance was manifestly excessive because his Honour gave no credit for the assistance that had justified the suspension of that sentence in the first place. There is no merit in that submission, which perhaps explains why it was not pursued in oral submissions. While the assistance provided by the appellant may have justified the suspension of the four year sentence when it was imposed by Miles CJ, it was open to the sentencing judge to re-sentence the appellant to the original four year term, without the benefit of the suspension. A four year term of imprisonment for that offence was not manifestly excessive in all the circumstances. In any event, the sentence imposed in relation that offence was entirely subsumed by the 10 year sentence imposed in respect of the TAB armed robbery.

59. It follows that, putting aside the specific error the subject of the second appeal ground, there is no merit in the appellant’s contention that the sentences imposed by the sentencing judge were manifestly excessive.

Ground 2 – Totality

60. While it is not readily apparent from the terms of the appellant’s second ground of appeal, the appellant’s complaint concerning totality does not relate to the totality of the three sentences imposed by the sentencing judge. Rather, the complaint relates to the total effective sentence and nonparole period arising from the sentences imposed by his Honour when considered together with the sentences of imprisonment that the appellant was already serving.

61. The appellant contended, in short, that the sentencing judge failed to have regard to the total effective term of imprisonment, and the effective ratio of the nonparole period to that effective head sentence, having regard to the sentences of imprisonment that the appellant was serving as a result of the sentences imposed on him in 2010. He also submitted, in that context, that his Honour failed to properly take into account the delay in dealing with the “stale” offences.

62. There is considerable merit in those contentions. That is particularly the case having regard to the terms of ss 63, 65 and 66 of the Sentencing Act.

63. As noted in brief terms earlier, on 2 July 2010 in the NSW District Court in Sydney, the appellant was sentenced in respect of a number of offences. Those offences included two offences of robbery whilst armed with a dangerous weapon and a number of firearms offences. Some other minor offences listed on a schedule were also taken into account. The total effective head sentence was a sentence of imprisonment for 12 years and six months commencing on 26 January 2009 and ending on 25 July 2021. A series of overlapping nonparole periods were set, with the final nonparole period of four years and six months concluding on 25 January 2018.

64. As also noted earlier, in 2016 the appellant was transferred from custody in NSW to the ACT pursuant to the Interstate Transfer Act. The effect of ss 243 and 244 of the Sentence Administration Act is, in general terms, that when a person is brought into the ACT under an Interstate Transfer Act, sentences of imprisonment that were imposed on that person, and nonparole orders that were made, by an interstate court in relation to that person are taken to have been lawfully made and imposed on the person by a corresponding ACT court. Thus, once the appellant was transferred to the ACT, the sentences that were imposed on him, and the nonparole order that was made by the NSW District Court on 2 July 2010, were taken to have been imposed or made by the ACT Supreme Court.

65. The sentencing judge was plainly aware of the sentences that had been imposed on the appellant in July 2010. His Honour noted, in the remarks on sentence, that it was common ground that the provisions of the Sentence Administration Act required him, if appropriate, to “reset the nonparole period in respect of the matters for which the offender is currently in prison”. His Honour then ordered that the “non-parole period for the offences for which the offender is currently in prison is reset to align with the non-parole period in respect of which [the appellant] is being sentenced today”.

66. What his Honour was required to do, in the first instance, was to apply the terms of ss 65 and 66 of the Sentencing Act, having regard to the fact that the provisions of the Sentence Administration Act previously referred to meant that the sentences imposed by the NSW District Court in 2010 were to be treated as if they were imposed by the ACT Supreme Court. Sections 65 and 66 of the Sentencing Act provide as follows:

65 Nonparole periods—court to set (1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer. (2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole. Note If the offender is released on parole, the sentence is not discharged unless the parole is completed without the parole order being cancelled (see Crimes (Sentence Administration) Act 2005, s 140 and s 160). (3) When the court sets the nonparole period, the court must state when the nonparole period starts and ends. Note A sentence may be backdated to account for time already held in custody (see s 63). (4) However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents. (5) If the offender is subject to a sentence of life imprisonment, the court must not set a nonparole period for any sentence of imprisonment that is imposed on the offender. (6) If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.

66 Nonparole periods—setting if sentence currently being served (1) This section applies if— (a) the offender is serving a sentence of imprisonment (the existing sentence); and (b) the offender is sentenced to a further term of imprisonment (the primary sentence). Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence. (2) Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence. (3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence. (4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed. (Emphasis added).

67. The effect of ss 65 and 66 was: first, the nonparole period in respect of the 2010 sentences was automatically cancelled once his Honour imposed sentences for the three matters that were before him; and second, his Honour was then required to set a nonparole period as if the appellant was being sentenced to imprisonment for a term equal to the total of the terms of the 2010 sentences and the sentences his Honour was imposing.

68. It is readily apparent that the sentencing judge did not approach the setting of the nonparole period in the manner prescribed by ss 65 and 66. Rather, it appears that his Honour simply set a nonparole period in respect of the sentences he imposed, being a nonparole period of 6 years, or 60 percent of the effective head sentence. He then “reset” the nonparole period in respect of the 2010 sentences to “align” with the nonparole period he was setting. That approach was erroneous.

69. The effective total of the terms of the “existing sentence” (the sentence imposed in 2010) and the “primary sentence” (the sentence imposed by his Honour) was, for the purposes of s 65 of the Sentencing Act, a term of imprisonment for 17 years and seven months (or 211 months): the period from 26 January 2009 (the start date for the sentences imposed in 2010) to 24 August 2026 (the expiry date of the sentences imposed by the sentencing judge). The nonparole period set by his Honour was for six years starting on 25 August 2016 and ending on 24 August 2022. The effective nonparole period for the combined sentences, however, was 13 years and seven months (or 163 months): the period from 26 January 2009 to 24 August 2022. That amounts to a high ratio of just over 77 percent of the total effective term of imprisonment.

70. It would appear from his Honour’s remarks on sentence that he intended to impose a nonparole period of 60 percent of the head sentence. It is not readily apparent that he intended to fix a nonparole period which was 77 percent of the effective head sentence. Certainly no reasons were given for fixing what would appear to be a high ratio in all the circumstances.

71. The sentencing judge did note in his remarks on sentence that delay was a factor he was required to take into account. His Honour did not, however, indicate how he took the considerable delay in this matter into account. Perhaps more significantly, the structure of the sentence and the nonparole period do not appear to acknowledge the considerable delay between the date the offences were committed, December 2001, and the date that the appellant was brought before the court in relation to the offences, May 2016: a delay of over 14 years. While it is clear that the appellant was in custody interstate during much of that period, that does not fully explain why the appellant was not charged until September 2011 and why no step was taken by the ACT authorities to have the appellant transferred to the ACT. It was left up to the appellant to apply for his transfer under the Interstate Transfer Act. In those circumstances, the appellant would feel a legitimate sense of grievance about the severity of the effective head sentence.

72. In R v Todd [1982] 2 NSWLR 517 (Todd), the appellant committed offences in NSW in 1974. He then went to Queensland, where he committed further offences for which he was in due course prosecuted, convicted and sentenced to terms of imprisonment. Upon his release from custody in Queensland, he was extradited to NSW in respect of the offences committed in 1974. The sentencing judge essentially regarded the appellant’s incarceration in Queensland to be irrelevant. The NSW Court of Criminal Appeal held that he was wrong to do so. Street CJ, with whom the other members of the court agreed, said (at 519B-E):

I have formed the conclusion that his Honour fell into error in thus placing aside the sentences served by the appellant in Queensland as having no relevance except in so far as they may shed some light upon his present state of rehabilitation. The fact that the crimes were committed in Queensland operated, of course, to expose the appellant to the processes of the Queensland criminal law. This involved an inevitable deferment of the processes of the New South Wales criminal law being put into effect and carried through against him in this State. But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.

73. The decision in Todd was referred to with approval by the High Court in Mill v The Queen (1988) 166 CLR 59 (Mill). In Mill, the offender committed three armed robberies in Victoria and one in Queensland within a period of six weeks in December 1979 and January 1980. He was eventually tried and convicted in Victoria and sentenced to an effective head sentence of 10 years and a non-parole period of eight years. Upon his release on parole, he was arrested and returned to Queensland and eventually sentenced in respect of the armed robbery he committed there. The High Court referred to and approved the principles espoused in Todd and said (at 65–66):

This, then, is the background against which the applicant’s submission falls to be evaluated. In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

74. The question of delay generally was also considered by the New South Wales Court of Criminal Appeal in Blanco. The sentencing judge in this matter referred to Blanco in the context of delay in his remarks on sentence. In Blanco, there was an inexplicable delay between the date the relevant offence was committed and the date that the offender was first interviewed by the police. Wood CJ at CL, with whom Bell J and Smart AJ agreed, said (at [16]–[17]): The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: See, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (Court of Criminal Appeal NSW, 24 February 1998). The present was not a case where the applicant had been arrested and had spent a long time awaiting sentence, or in a state of suspense as to whether he might be charged; nor is it a case where he had shown any commitment towards rehabilitation after having realised the error of his ways. However, it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account on sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.

75. There are differences between the facts and circumstances of this matter and the facts of both Todd and Mill. Both Todd and Mill concerned multiple offences committed within a short space of time and apparently in a single course of conduct, albeit in different States. Here, the offences that are the subject of the appeal were committed in December 2001. Very shortly thereafter, the appellant committed an armed robbery in Marrickville, NSW and other offences. Those offences were the subject of sentences imposed by Berman DCJ in September 2002. If the appellant had been prosecuted for the current offences shortly after he was released from the term of imprisonment imposed by Berman DCJ, this matter would be on all fours with Todd and Mill. However that did not occur. The appellant was extradited to Queensland, where he served a further term of imprisonment and, upon release, the appellant then committed a series of further offences in NSW before being apprehended in January 2009.

76. There are also obvious differences between this matter and the facts and circumstances in Blanco. There could, for example, be no suggestion that in the period between committing the offences and being dealt with by the Court in this matter, the appellant had demonstrated any progress towards rehabilitation. Indeed, quite the contrary.

77. Nevertheless, and despite those differences, the principles enunciated in Todd, Mill and Blanco remain applicable to this matter. As Wood CJ at CL said in Blanco (at [16]), the fact that the appellant was being sentenced for a “stale crime” called for “a measure of understanding and flexibility of approach”. Nothing in the sentencing judge’s remarks on sentence, and nothing in the sentences that were imposed, demonstrates that the sentencing judge approached the difficult sentencing exercise which he faced with the required understanding and flexibility of approach. While delay, and the considerations referred to in Todd, Mill and Blanco, are not expressly referred to in the list of relevant considerations in s 33(1) of the Sentencing Act, s 33(3) makes it clear that the list in s 33(1) is not exhaustive and that the court may take other considerations into account.

78. In light of the relevant principles, the sentencing judge should have had regard to the following matters in the imposing the sentences and fixing the appropriate nonparole period.

79. First, his Honour should have had regard to the fact that the appellant had already served a substantial period of imprisonment for offences that were closely related in time and character to the offences for which he was sentencing the appellant. That period of imprisonment was the period of imprisonment served as a result of the sentences imposed by Berman DCJ. As the chronology of events set out earlier reveals, the armed robbery at the TAB store in Dickson was committed less than three weeks before the armed robbery in Marrickville, which was one of the offences dealt with by Berman DCJ. One of the offences that Berman DCJ sentenced the appellant for, the offence of receiving property stolen outside NSW, was said to have been committed on the day before the TAB armed robbery.

80. Second, even putting aside the operation of ss 65 and 66 of the Sentencing Act referred to earlier, his Honour should have had regard to the fact that, at the time of being sentenced, the appellant was already serving terms of imprisonment as a result of the sentences imposed in 2010. His Honour should have had regard to the totality of the sentences that he was imposing together with the existing sentences, and set an appropriate non-parole period having regard to the total effective term of imprisonment from the totality of the sentences.

81. Third, the sentencing judge should have taken into account the fact of the uncertain suspense in which the appellant was left given the unexplained delays referred to earlier. That might at first blush appear to be an unusual proposition given the appellant’s appalling criminal history and the amount of time that he had spent in prison prior to being sentenced for these offences. However, importantly, in 2011 the appellant himself applied to be transferred to the ACT so that these offences could be dealt with while he was in custody and so there were no outstanding matters upon his release. His application appears to have been largely ignored. There is certainly no explanation for why it was not dealt with and why he had to make a further application three years later in 2014. Even then, it took over a year for the authorities to act on his application and a further few months again before he was eventually transferred. There is no reason to suppose that the appellant would not have been in a state of uncertain suspense during that period, particularly given what had occurred to him in October 2007 when he was extradited to Queensland on the eve of his release from prison in NSW.

82. These three considerations, individually and collectively, should have led his Honour to impose a lower sentence or, at the very least, to consider backdating the start of the sentence. His Honour was permitted to do so by s 63 of the Sentencing Act, despite the fact that it could not be said that the appellant had been held in custody in relation to the relevant offences. There is no indication that his Honour gave any consideration to the backdating of the sentence, or otherwise had regard to any of the three considerations that a proper application of the principles in Todd, Mill and Blanco indicated should have been taken into account. His Honour erred in not taking those matters into account.

83. It follows that the appellant’s second appeal ground has been made out. The sentencing judge erred in failing to properly apply ss 65 and 66 of the Sentencing Act and failing to apply the principles in Todd, Mill and Blanco. It is accordingly necessary to resentence the appellant.

Re-sentence

84. A just and appropriate sentence, that properly takes into account all the matters taken into account by the sentencing judge, together with the considerations referred to in Todd, Mill and Blanco, and in particular the lengthy and unexplained delay in dealing with the appellant’s application to be transferred to the ACT so these offences could be dealt with, is as follows:

85. First, for the armed robbery in respect of which Miles CJ originally imposed a sentence of 4 years imprisonment, fully suspended, but in respect of which the appellant breached the recognizance, the appellant should be sentenced to imprisonment for 4 years. That sentence should commence on 26 January 2018, being the day after the expiry date of the existing non-parole period set when the appellant was sentenced on 2 July 2010.

86. Second, in respect of the armed robbery committed on 30 December 2001, the appellant should be sentenced to a period of imprisonment for 6 years, reduced from 8 years having regard to the appellant’s plea of guilty and the assistance he provided by giving a DNA sample. That sentence should be served partly concurrently with the 4 year sentence arising from the breach of the recognizance. The appropriate commencement date is 26 January 2019, meaning that the period of accumulation is 1 year.

87. Third, in respect of the offence of riding in a motor vehicle without authority, the appellant should be sentenced to a period of imprisonment for 1 year. That sentence should be served partly concurrently with the 6 year sentence imposed for the armed robbery. The appropriate commencement date would be 26 July 2024, meaning that the period of accumulation is 6 months.

88. The total effective head sentence for these three sentences is therefore 7 years and 6 months imprisonment, to commence on 26 January 2018 and end on 25 July 2025.

89. It is then necessary to set a nonparole period pursuant to s 65 of the Sentencing Act in the manner specified in s 66(2). In that regard, the total of the effective terms of imprisonment of the existing sentence (the sentences imposed in July 2010) and the primary sentence (the further term of imprisonment arising from these sentences) is 16 years and 6 months (26 January 2009 to 25 July 2025). An appropriate nonparole period in respect of that total term of imprisonment would be a nonparole period of 9 years and 6 months, which is just under 60 percent (57.5 percent) of the total effective period of imprisonment. It should be noted in that regard that the sentencing judge appeared to proceed on the basis that a nonparole period of 60 percent of the effective head sentence would be appropriate. There is no reason to doubt the appropriateness of that assessment. Even if that was not the sentencing judge’s intention, a nonparole period of just under 60 percent of the total effective period of imprisonment is appropriate in all the circumstances.

90. It is therefore appropriate to make the following orders:

91. Appeal allowed.

92. The orders made by Elkaim J on 25 August 2016 be set aside and in lieu thereof order that:

(a) For the armed robbery in respect of which Miles CJ originally imposed a sentence of 4 years’ imprisonment, fully suspended on the appellant entering into a recognizance on 15 May 2001, but in respect of which the appellant breached the recognizance, the appellant is re-sentenced to a term imprisonment of 4 years to commence on 26 January 2018 and expire on 25 January 2022;

(b) For the offence of armed robbery contrary to s 101 of the Crimes Act 1900 (ACT) committed on 30 December 2001, the offender is sentenced to a term of imprisonment of 6 years, to commence on 26 January 2019 and expire on 25 January 2025;

(c) For the offence of riding in a vehicle without authority contrary to s 120(1) of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of one year to commence on 26 July 2024 and expire on 25 July 2025;

(d) A nonparole period of 9 years and 6 months is set, such nonparole period to start on 26 January 2009 and expire on 25 July 2018.

I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Judgment of Chief Justice Murrell, Justice Mossop and Justice Wigney.

Associate:

Date: 31 July 2017