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[2007] NSWCCA 14
Court of Criminal Appeal (NSW)
2007-02-07
Sully J, Howie J, Price J
Original judgment source is linked above.
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Nguyen
Regina
R v Nguyen [2002] NSWCCA 507 CASES CITED: R v MMK [2006] NSWCCA 272 Cahyadi v R [2007] NSWCCA 1 R v MAK and MSK [2006] NSWCCA 381
Having regard to the fact that both offences were committed on the same day I am prepared to order that the sentences be served concurrently. 12 It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least, partially cumulative. There is no rule that sentences for offences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R v MMK [2006] NSWCCA 272. The position was explained in Cahyadi v R [2007] NSWCCA 1 as follows:
27 ….. there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 13 During the course of argument the Presiding Judge put to the applicant's counsel a proposition to the following effect. The applicant and his co-offender having committed the armed robbery had two courses available to them. They could have decided that they had accomplished what they had set out to do by the robbery and could thereupon leave the premises with the property they had obtained. In any such case they would both have stood for sentence for that offence. Alternatively, they could have decided to take the opportunity to commit a further offence, this one of personal violence against their hapless victim and so they sexually assaulted her. Why then should they receive the same sentence as if they had left the premises after committing the robbery and without violating the complainant? Or to put the issue in terms of totality, how could it be thought that the criminality involved in the robbery could encompass the further serious criminality involved in the rape? The offences committed were of a completely different nature and each was individually of extreme gravity. The mere fact that they occurred in the same criminal episode or on the same day could not justify concurrent sentences. 14 The Judge gave the applicant the benefit of having no prior offences and of being of prior good character. Judge Morgan, also, sentenced the applicant on the basis that he was of previous good character. The applicant on the face of it received the benefit of that finding, whatever it meant in real terms, twice. This situation was considered in R v MAK and MSK [2006] NSWCCA 381. The Court held that, where after the offences for which sentence was being passed, the offender had committed other serious offences of a similar nature, little or no significance could be given to the fact that the offender had no prior convictions at the time of the commission of the offences for which he was being sentenced. In the circumstances of that case it was held that the fact that the offender had no prior offences could not be considered as a mitigating factor. 15 So it was here. In light of the fact that the applicant had committed another serious home invasion about three weeks later meant that there was no relevance in the fact that he was of prior good character before he committed the offences before his Honour. The present offences could not be considered as being aberrations or, in any other sense, foreign to the applicant's character. Rather, the existence of the later offence militated against the applicant's receiving leniency to which he might otherwise been entitled by reason of the fact that these were his first criminal offences. 16 In my opinion a sentence of 8 years with a non-parole period of 6 years was probably inadequate. This is so notwithstanding the applicant's age and the delay in the matter's being dealt with. That delay was due to the fact that the applicant's guilt of the offences had to be discovered and then proved. There was no evidence to show that this delay had in anyway prejudiced the applicant. The applicant had no remorse and was entitled to no benefit that would have been the case had he pleaded guilty. Any advances he had made in his rehabilitation had to be seen in the light of his refusal to accept responsibility for these offences and that fact ought to have detracted from any favourable assessment of his prospects of rehabilitation and the unlikelihood of further offending. There was nothing in his personal circumstances that could explain, let alone mitigate, the offences he committed, particularly the sexual assault. 17 I accept the submission there was a further error by the Judge in failing to have any regard to the principle of totality so far as the accumulation of these sentences with the sentence imposed by Judge Morgan was concerned. The Judge ought to have taken into account the criminality involved in that offence and the fact that it was committed three weeks after the offences for which he was sentencing the applicant. The Judge also should have had regard to the overall non-parole period the applicant was to serve as a result of the accumulation of sentences and how that should affect a finding of special circumstances in order to result in an appropriate parole period. The ultimate sentence imposed resulted in a parole period that was out of proportion to the non-parole period particularly in light of the fact that the applicant was a young man with some issues that could be addressed by assistance on parole. This was a result of the failure of the Judge to consider whether the accumulation of sentences should itself have resulted in a finding of special circumstances, at least to preserve the statutory relationship between the overall non-parole period and the total term to be served by the applicant. 18 I would uphold the first two grounds of appeal. The issue then arises as to whether any lesser sentence was warranted: see s 6(3) of the Criminal Appeal Act 1912. I am of the view that the sentencing discretion of the Judge miscarried in a number of ways. But I believe that overall the errors were significantly to the advantage of the applicant. Were I to resentence him the only possible result would be that the overall sentence would be increased to provide for a longer period on parole but I would specify an overall non-parole period of at least ten years. Notwithstanding the applicant's young age and personal circumstances the offences for which he was before Judge Morgan and Judge Hughes were extremely serious and warranted a condign sentence for all the purposes of punishment including both personal and general deterrence. As the Court should not increase the sentence to provide for a longer period on parole the appeal should be dismissed. 19 The sentence as imposed by Judge Hughes did not comply with the provisions of the Crimes (Sentencing Procedure) Act operative at the time the offences were committed. Section 44 of that Act had been amended since the date of the offences but that amendment only applied to offences committed after 1 February 2003. It has been held that errors of this kind are formal in nature but should be corrected by this Court. 20 I propose the following orders: