Portelli v R

Court of Criminal Appeal (NSW)|2018-02-21|Before: Hoeben CJ, Simpson JA, McCallum J

Solicitors: Peter Murphy (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2016/68210 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 September 2016 Before: Buscombe DCJ File Number(s): 2016/68210

Judgment

HOEBEN CJ at CL: I agree with Simpson JA and the orders which she proposes.
SIMPSON JA: On 21 June 2016 the applicant and another man (Scott Hardy) were arraigned in the Penrith District Court on an indictment that jointly charged them with four counts of offences committed on or about 14 November 2012. The counts were as follows:

Count 1: take and drive a conveyance without the consent of the owner;
Count 2: aggravated break, enter and steal in circumstances of special aggravation (the circumstance of special aggravation alleged being that the offenders were armed with a dangerous weapon);
Count 3 (pleaded as an alternative to Count 2): break, enter and steal in circumstances of aggravation; and
Count 4: assault with intent to take a motor vehicle in circumstances of aggravation, and attempt to take and drive that motor vehicle without consent. The circumstance of aggravation pleaded in relation to Counts 3 and 4 was that the offence was committed in company. Two further counts against Hardy alone alleged possession of, and the threat to use, a firearm.

The facts of the offences

Since the applicant and Hardy were convicted after trial, it was necessary, for sentencing purposes, that the judge determine the relevant facts, consistent with the jury verdicts. This he did as follows.
Between 9:00pm on 13 November 2012 and 4:00am the following morning, at Emu Plains, the offenders stole a Ford Falcon utility, the property of Robert Black. One of them, with the other as passenger, drove the vehicle to Richmond Marketplace Shopping Centre in Richmond, arriving there some time before 4:00am (Count 1). They alighted from the utility, wearing masks, gloves, dark clothing and with torches strapped to their heads. They proceeded to a jewellery store in the shopping complex, with two wheeled garbage bins and a milk crate. They broke into the store, placed jewellery from the store into the bins, and wheeled them to where the utility was parked (Count 3). The total value of the jewellery removed from the store was about $300,000, of which all but $51,530 was eventually recovered. Substantial damage was done to glass cabinets and shelving in the store.
The break in had been observed by the owner of a nearby donut shop, who immediately alerted police. Police attended. The offenders ran from the area, leaving behind the bins containing some of the jewellery. Police pursued them. Aware of the police pursuit, the offenders ran to a nearby service station. A vehicle belonging to Mr Peter Davis was parked at a petrol bowser, from which he had refuelled the vehicle. Mr Davis left his keys in the ignition and walked towards the cashier to pay for the fuel. He heard the sound of running, turned and observed one of the offenders (who the sentencing judge was satisfied was Hardy). He stood between Hardy and his vehicle and attempted to reach his keys. Hardy kicked Mr Davis in the stomach. The applicant punched Mr Davis to the head four or five times (Count 4). Mr Davis saw Hardy lying across the front seat of the vehicle.
Mr Davis gave evidence that Hardy had pointed a gun at him, but, since the jury acquitted him of the firearms counts on the indictment, that must be disregarded.

The proceedings on sentence

A joint sentencing proceeding took place on 16 September 2016. Evidence of the applicant's personal circumstances was put before the sentencing judge. From that the following emerges.
The applicant was born in September 1975. He was almost 37 years of age at the time of the offences. He has a lengthy criminal history that (disregarding an offence of offensive language) commenced in 1994 (when he was 19 years of age) with a conviction for assault. That has been followed by a number of convictions for assault, numerous drug convictions, repeated motor vehicle offence convictions, offences of dishonesty and offences of possession of housebreaking implements. The most serious offences are of robbery whilst armed with an offensive weapon, and robbery in company, committed on 14 September 2004, in respect of which he was sentenced to concurrent terms of imprisonment of 2 years and 6 years respectively, with a non-parole period of 3 years and 6 months. The applicant was on parole for these offences, and for an offence of escaping lawful custody, at the time of the present offences. Evidence adduced by the Crown included a number of "breach of parole" reports (in 2010 and 2011) and orders revoking parole, in 2011 and 2012.
Also before the court was a letter directed to the sentencing judge written by the applicant, and a comprehensive psychological report, the author of which was Ms Ruth Allen.
In his letter the applicant made two points. The first concerned what he called "my medical issue". He wrote: "My medical issue, Your Honour, after the verdict, i requested bail so i could be admitted to hospital, but your Honour was of the opinion i would receive apropriate treatment while in custody. Your Honour apart from being written up for Panadol (wich im allergic to Paracetmol) ive had no help or treatment to date. I have lodged over 20 requests to be seen, ive even made formal written Complaints to the Complaints Comission. Im in a bad way your Honour and since my trial i feel my health has got even worse. I fear that if i dont receive apropriate treatment soon ill be unable to walk."
The second point the applicant made concerned his custodial arrangements. He wrote: "Your Honour, there is also the issue of my classification. Your Honour due to association problems with certain bike groups (O.M.C.G) ive been placed in strict Protection against my will, and this classification will remain in the future or unless i request N/A (Non-Assosiation). Since returning to Custody im housed in a secure section of the prison, away from the normal population. My time has never been this hard. Your Honour i only receive one hour per day outside of my cell with 23 hours locked in my cell. As you can see your Honour im no stranger to prison, but my situation regarding both my back injury and the way i have been classified i hope you can take this into Consideration when deciding my sentence."
Ms Allen recorded in her report a dysfunctional family history. According to the history given to her by the applicant, the applicant was the second son of a father of Maltese origin (but who had lived in Australia since childhood) and an Australian mother. The family lived on a farm in the Windsor/Richmond district, but the applicant's father worked in road construction which took him away from home during the week. The relationship between the applicant's father and mother was "troubled", and his father remained away at weekends as well as during the week. The applicant and his brother frequently joined him on weekends. His mother was also largely absent from the home during the week.
The history recorded by Ms Allen reveals a degree of ambivalence on the part of the applicant, particularly where his relationship with his mother is concerned. In his perception, at least, his mother clearly favoured his older brother, and mistreated the applicant both physically and emotionally. Eventually, the relationship between his parents terminated, when the applicant was 11, and he initially went to live with his mother out of pity for her. However, she was "never at home" and he was alone in the unit they occupied. This was when his misbehaviour began. He returned to the farm and lived there while his father was away at work, and spent weekends with his father. He "ran away from home" at 15, and lived "in the bush", but continued to attend school until he could leave at age 15. He was taken in for a time by a friend's mother, but, while she showed him affection, she dealt in cannabis. He himself began to get into "pub fights", to grow marijuana, and develop a reputation with police.
The applicant has had a number of relationships, one of which ended in the suicide of his partner after the pair separated. Another "left" while he was in gaol, having had his parole revoked, because she understood the Australian Federal Police were looking for her.
The applicant told Ms Allen that he began developing back pain prior to Christmas 2015, and this worsened when police arrested him and threw him on the ground on Christmas Eve. He said that he attended a hospital on his release, and investigations identified "lesions to his spine". He said that symptoms of Attention Deficit Hyperactivity Disorder had been "identified" (whether this was a firm diagnosis was not clear), and that he had had medication for anxiety. He began using marijuana at age 14, and was introduced to heroin while in gaol. After Naltrexone treatment, he has shaken off the opioid dependence, but continues intermittently to use a variety of other prohibited drugs.
Ms Allen administered personality tests that showed the applicant scored significantly on anti-social, aggression and self-defeating patterns, and for paranoid personality pathology. She also recorded "significant scores" for anxiety and bi-polar disorder and drug dependence. She assessed the applicant as "in the high risk group for further offending".
The applicant did not give oral evidence in the sentencing proceedings and no evidence was called on his behalf. No medical evidence concerning his asserted back condition was provided. However, during the course of the sentencing hearing, when the applicant's letter was tendered, the judge said that he recalled that, during the trial, the applicant had "difficulty … in terms of his back" and that he had been in pain.
The applicant's legal representatives then made reference to a bail application, which had, apparently, been made after the jury verdicts, and in which "medical material" had been tendered, indicating that the applicant had attended a hospital. No evidence of that application is before this Court.
Nor was there any confirmatory (or otherwise) evidence directed to the claim in the applicant's letter that he was unwillingly held in protection.

The Remarks on Sentence

The sentencing judge began his Remarks on Sentence by recording the offences for which the offenders were to be sentenced. With respect to Count 3, the aggravated break, enter and steal offence, he said: "That is an offence under s 112(2) of the Crimes Act and has a maximum penalty of 20 years imprisonment with a standard non-parole period of seven years." (italics added) It was common ground that this was an error; for an offence of aggravated break, enter and steal the standard non-parole period is 5 years. A standard non-parole period of 7 years is applicable to the specially aggravated form of the offence, of which the applicant was acquitted.
The sentencing judge proceeded to make specific findings of fact concerning the offences. These are as set out above and are not the subject of criticism on this application. He assessed the aggravated break, enter and steal offence as being in the mid-range of objective seriousness; the offence against Mr Davis as below mid-range. He was unable to differentiate between the offenders with respect to their participation or moral culpability.
He recounted the personal circumstances of each of the offenders. With respect to the applicant's back condition, he said: "I received on a bail application that followed upon the jury's verdicts, details concerning the condition that the offender suffers from. There is before me on sentence a letter from the offender stating that apart from receiving Panadol, he has received no other treatment for his back condition since the jury's verdicts. He fears that if he does not receive appropriate treatment soon he will be unable to walk. … In terms of his health, while I accept that he has a difficulty with his back, the responsibility to ensure that he receives appropriate medical treatment within the gaol system lies with the Department of Corrective Services."
With respect to the circumstances of incarceration, he said: "He also states in his letter that against his will he has been placed in strict protection. He sets out in his letter that he spends 23 hours a day in his cell. … … his classification within that system is a matter for that Department. I have had, however, regards to the contents of his letter in imposing sentence."
The sentencing judge expressly accepted that the principles stated by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 "do have a role to play in his sentence". (In Bugmy, the High Court reaffirmed that childhood deprivation is a relevant sentencing consideration.)
The sentencing judge declined to find special circumstances pursuant to s 44(2) of the Sentencing Procedure Act. (By s 44(2), unless special circumstances warranting variation are found, the non-parole period of a sentence is to be not less than 75 per cent of the total term.)
He then said: "I have regard to the maximum penalties and the standard non-parole period applicable to count 3, in accordance with the High Court's decision in R v Muldrock [2011] HCA 39." and, shortly after, repeated: "I have had regard to the maximum penalties and the standard non-parole period in relation to the aggravated break and enter offences legislative guide posts as explained by the High Court in Muldrock …"

The grounds of the application

Four grounds of appeal were identified. They were formulated as follows: "1. His Honour erred in having regard to the wrong standard non-parole period for the offence of 'Aggravated Break, Enter & Steal'. 2. His Honour erred in failing to take into account the additional hardship to the Applicant arising from his back injury or condition. 3. His Honour erred in failing to take into account that the Applicant would serve his sentence in protection. 4. The sentence is manifestly excessive."

Ground 1: error in stating the standard non-parole period (Count 3)

It is not (and could not be) in contest that, in the opening of his sentencing remarks, the judge misstated the standard non-parole period applicable to Count 3 as imprisonment for 7 years, when the correct standard non-parole period is imprisonment for 5 years. The contest between the parties is whether this should be treated as an error that affected the exercise of the sentencing discretion, or whether, as the Crown submits, it was a mere slip of the tongue, corrected in the later passages extracted above.
The relevant legislation in New South Wales is s 54B of the Sentencing Procedure Act, which is in the following terms: "54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period and must identify in the record of its reasons each factor that it took into account. (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. (6) A requirement under this section for a court to make a record of reasons for setting a non-parole period that is longer or shorter than a standard non-parole period does not require the court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable. (7) The failure of a court to comply with this section does not invalidate the sentence."
It has been held in this Court that the standard non-parole period is applicable to offences proved at trial (not those where a plea of guilty has been entered): R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. That part of the decision in Way is unaffected by the later decision of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, which held that other aspects of Way were wrongly decided.
The standard non-parole period of 5 years was therefore applicable to the sentencing of both the applicant and Hardy in relation to the aggravated break, enter and steal offence in the way set out in sub-s (2) of s 54B. Sub-section (2) makes it plain that the specified standard non-parole period is not prescriptive. The standard non-parole period is not "the starting point in sentencing for a mid-range offence after conviction" (Muldrock at [31]); it is one of two "legislative guideposts", the other being the maximum penalty prescribed (Muldrock at [27]).
The Crown argued that it could be seen, from the differential sentencing of the two offenders in respect of this count, that the sentencing judge was fully aware, not only of the correct standard non-parole period, but also of his need to give reasons for departure from it. The Crown relied on the passage in the Remarks on Sentence in which the judge was sentencing Hardy for this offence, when he gave reasons for imposing a non-parole period lower than the standard of 5 years. He made no such observations in sentencing the applicant to a sentence the non-parole component of which matched the standard non-parole period. From this, the Crown argued, it could be inferred that he intended to impose the standard non-parole period applicable to the offence of which the applicant was convicted.
Although the sentencing judge did, on two further occasions, refer to the standard non-parole period in general terms, he did not, on either occasion, nominate what that was. That the 7 year period is the standard non-parole period applicable to the specially aggravated offence of which the applicant was acquitted cannot be overlooked. I recognise the logic of the Crown's argument, and I accept that it is possible that the sentencing judge did have in mind the correct standard non-parole period when he sentenced the applicant, but I am unable to be confident that that was so. In those circumstances I would uphold this ground of appeal. It will therefore be necessary that the applicant be resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. A resentencing exercise by this Court presents problems, to which I will come after considering Grounds 2 and 3.

Grounds 2 and 3

The sentencing judge did have before him the applicant's own statement concerning his back condition and the circumstances of his custody. He had no confirmatory evidence of either. He had himself observed that the applicant suffered from a back condition.
One might have expected that the applicant's legal representatives would have presented some medical evidence with respect to his back condition. It was not in issue that circumstances that render prison life more onerous are relevant sentencing considerations. It was asserted during the sentencing hearing that medical evidence had been adduced on the bail application following conviction and the judge made express reference to that in the remarks extracted above. It may be that the applicant's legal representatives wrongly believed that that was sufficient and that the evidence on the bail application was properly before the judge for sentencing purposes. In any event, it seems clear that his Honour gave little, if any, weight to the applicant's back condition.
Ordinarily, an offender is bound by the way in which the proceedings are conducted at first instance. Failure on the part of an offender's legal representatives to advance an argument (or to adduce evidence) may be fatal: R v Birks (1990) 19 NSWLR 677 at 683-685; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44.
That is not always the case. When the interests of justice so dictate this Court will entertain an appeal ground that raises questions or issues that have been overlooked by the applicant's legal representatives at first instance: Lambert v R [2015] NSWCCA 22. See also Renshaw v R [2012] NSWCCA 91.
In my opinion that is here applicable. The applicant may not have been well served by his legal representatives; or there may be good reasons why no evidence either of his medical condition or the circumstances of his custody were put before the court. But I am left with the uncomfortable feeling that justice may not have been done.
The problem in resentencing to which I adverted earlier is this. In response to the applicant's complaint under Ground 3 (failure to take account of the circumstances of the applicant's custody) the Crown adduced affidavit evidence that appears directly to contradict the applicant's assertion that he is being held "in strict protection" against his will. A letter from a Senior Assistant Superintendent at the prison in which the applicant is held stated that he is currently "on a Special Management Area Placement (SMAP) at his own request". The letter did not elaborate upon the nature of a SMAP placement, nor any differences between that and "strict protection" (if there is such a classification).
There is, at best, a lacuna in the evidence concerning the applicant's custodial arrangements and, at worst, a conflict that cannot be resolved by this Court on the present state of the evidence. That is a reason for remitting the matter to the District Court for resentence.
In these circumstances it is unnecessary to address Ground 4.
The orders I propose are: (1) Leave to appeal granted; (2) Appeal allowed; sentence imposed in the District Court on 22 September 2016 set aside; (3) The matter be remitted to the District Court for resentencing.
McCALLUM J: I agree with Simpson JA.

Amendments 07 March 2018 - Correction to name of counsel (coversheet) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2018

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Judgment (9 paragraphs)

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Legislation Cited (2)

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