(2013) 231 A Crim R 413
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
[2002] NSWCCA 518
DL v The Queen (2018) 265 CLR 215
[2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357
Source
Original judgment source is linked above.
Catchwords
(2013) 231 A Crim R 413
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146[2002] NSWCCA 518
DL v The Queen (2018) 265 CLR 215[2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604[2022] NSWCA 209
Muldrock v The Queen (2011) 244 CLR 120
Judgment (7 paragraphs)
[1]
JUDGMENT
FAGAN J: I agree with Sweeney J that error is shown in relation to ground 1 but I do not consider that any lesser sentence than that imposed by the learned sentencing judge is warranted in law. I agree with Sweeney J that the appeal should be dismissed.
By s 45(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentencing judge was obliged to give reasons for declining to set a non-parole period and her failure to do so is an error, obliging this Court to consider whether any lesser sentence is warranted in law. That said, the ground of appeal has no practical merit. It would have been futile for the learned judge to impose a non-parole period and a balance of term, in accordance with the default requirement under s 44.
For the assault occasioning actual body harm committed on a fellow prisoner in custody on 9 December 2020, whatever sentence was imposed could not commence any later than the expiry of the non-parole period that the applicant was already serving for offences of violence and sexual intercourse without consent, committed on 22 December 2019. The constraint upon commencement date is prescribed by s 47(2)(a) and (4)(b) of the Crimes (Sentencing Procedure) Act. The pre-existing non-parole period is to expire on 22 June 2026, following which the applicant will be eligible to be released for parole for a further 2 years and 6 months through to 22 December 2028. On any view the head sentence for the prison assault would be less than that balance of term. From a commencement date on or before 22 June 2026, the whole sentence for the prison assault, including any period intended to be served on parole, would expire within the currency of the pre-existing head sentence. Thus, if her Honour had fixed a sentence that included a non-parole period it would have been served either while the applicant was still in custody on his pre-existing sentence (if he should not be granted parole) or while he was on conditional liberty during the balance of the earlier sentence.
The adoption of a fixed term was a practical solution. Backdating its commencement to provide some concurrence with the existing non-parole period was a fair way of ensuring that the applicant's time served without eligibility for parole was not unduly extended, in a situation where it was not practical to provide for a period on parole in relation to the prison assault. The applicant complains that his time without eligibility for parole will now be 78% of his total effective sentence, whereas before the passing of sentence for the prison assault it was 72%. Implicitly, ss 47 and 56 of the Crimes (Sentencing Procedure) Act contemplate that the ratio of the non-parole period to the balance of term may be increased by a sentence passed for an offence committed in custody. It is unavoidable in this case.
Considering the objective seriousness of the offence and taking into account the applicant's subjective circumstances, I agree with Sweeney J that no lesser sentence is warranted in law than the 18 months head sentence that the learned sentencing judge imposed. There is no way of providing for a portion of that sentence during which the applicant may be released to statutory parole. His release, or otherwise, will be subject to the decision of the State Parole Authority under the earlier sentence. There is no better way of fairly limiting the non-parole impact upon him than to adopt a fixed term and backdate it to commence within the period of his pre-existing non-parole period. The backdating should be no more than 50% of the fixed term because no lesser sentence is warranted than one which would extend his time without parole by 9 months.
CHEN J: I agree with the reasons of, and orders proposed by, Sweeney J, whose judgment I have had the advantage of reading in draft. I also agree with the additional remarks of Fagan J.
As Sweeney J has pointed out, error having been demonstrated, it falls upon this Court to re-exercise the sentencing discretion and determine the sentence to impose. If, following the re-exercise of the sentencing discretion, the Court is satisfied that a lesser sentence than that imposed by the sentencing judge should be imposed, then the appeal should be allowed: s 6(3) of the Criminal Appeal Act 1912 (NSW); Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].
In exercising the sentencing discretion, the sentencing court is required to be mindful of the legislative guidepost - being the maximum sentence for the offence (which has been set out in the reasons of Sweeney J) - and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]. Further, the sentencing discretion is exercised without regard to the sentence imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [81]-[89].
As neither party sought different findings from those made by the sentencing judge, the exercise of the sentencing discretion proceeds upon that basis, together with "any relevant evidence of the offender's post‑sentence conduct": DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9].
The applicant's affidavit affirmed 11 October 2024 was read on appeal and it is clear, as Sweeney J has found, that the applicant has used his time positively.
The applicant's ultimate submission was that, upon resentence, this Court would pass a lesser sentence. The Crown submitted that, undertaking a separate and independent exercise of the sentencing discretion, this Court would not form the opinion that a less severe sentence is warranted in law.
During submissions in this Court (directed to the ground of appeal that the sentence imposed was manifestly excessive), the applicant placed emphasis upon his age (the applicant was 23 at the time of sentencing, and was 21 when he committed the offence), and the subjective case that was put. They are, of course, matters of importance in the exercise of the sentencing discretion, as are the key findings of the sentencing judge to which Sweeney J has referred, including the applicant's deprived upbringing.
However, not all findings made by the sentencing judge favoured the applicant: there was a somewhat qualified finding of remorse and, given the applicant's "serious criminal history", her Honour found the applicant was "not entitled to leniency". Further, it is to be recalled that the applicant had a related offence of larceny placed on a Form 1. In that situation, the sentencing court takes into account the matters for which guilt has been admitted "with a view to increasing the penalty that would otherwise be appropriate for the particular offence" - which it does by giving greater weight to the need for personal deterrence and retribution: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23] and [35].
There is an additional matter. In my view, given the offending occurred in custody in what Sweeney J appropriately described as "a calculated preying by the applicant and another inmate on a young vulnerable inmate to steal his 'buy ups'", any sentence imposed was required to be strongly deterrent: it "must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts": R v Jeremiah [2016] NSWCCA 241 at [9]. That matter "is reflected in the general requirement for such offences to be the subject of cumulative sentences": R v Windle [2012] NSWCCA 222 at 56 and s 56 of the Crimes (Sentencing Procedure) Act.
Thus, I consider that, like Sweeney J, no lesser sentence is warranted in law.
SWEENEY J: Damien Pritchard, the applicant, seeks leave to appeal against the sentence imposed upon him by her Honour Judge Flannery SC on 26 October 2022 in the District Court of New South Wales at Port Macquarie for an offence of assault occasioning actual bodily harm in company. The applicant was sentenced at the same time as a co-offender. The maximum penalty for the offence was imprisonment for seven years. The applicant had pleaded guilty to the offence for sentence in the Local Court. There was also to be taken into account an offence of stealing on a Form 1.
At the time the applicant was sentenced by Judge Flannery SC he was serving an aggregate sentence of imprisonment of 9 years, which had commenced on 23 December 2019 and is due to expire on 22 December 2028, with a non-parole period of 6 years and 6 months, due to expire on 22 June 2026. That sentence was in respect of three offences, of inflicting actual bodily harm with intent to have sexual intercourse, aggravated entering of a dwelling house with intent to use violence and carrying out a sexual act with another person without consent.
Following the sentence hearing, which was recorded as having commenced at 2:33pm on the afternoon of Wednesday, 26 October 2022, her Honour delivered ex tempore sentence remarks in respect of the applicant and his co-offender, who was also sentenced for an offence of armed robbery in addition to the assault occasioning actual bodily harm in company offence.
The applicant was sentenced to a fixed term of 18 months imprisonment, commencing on 22 September 2025 and expiring on 21 March 2027. That sentence therefore commenced nine months before the expiration of the aggregate non-parole period of his previously imposed sentence and added nine months to his effective total non-parole period.
The applicant seeks to rely on three grounds of appeal:
1. Her Honour erred in failing to provide reasons for a "fixed term" of imprisonment.
2. The sentencing judge erred in her approach to the length of the sentence imposed on the applicant by failing to consider principles of totality.
3. The sentence imposed was manifestly excessive and a different sentence is warranted at law.
[2]
Remarks on sentence
The facts of the offence, which her Honour took into account, were as follows. On 9 December 2020, the applicant and his co-offender were inmates at the Mid North Coast Correctional Centre. The victim, aged 20, was housed in the cell next to the co-offender. Before the offence, the victim and co-offenders were not known to each other. The victim had arrived at the Correctional Centre on 27 November 2020. On 9 December, just after 2:00pm, the two offenders entered the victim's cell. Before they did, the co-offender Mr Lardner placed a towel over the top of the victim's cell door, which hung down and covered the cell's window, preventing Correctional Officers from seeing inside. Mr Lardner closed the door. The applicant and Mr Lardner then took possession of the victim's buy up bag. When he attempted to retrieve his property the two offenders punched him with closed fists to his body and head. Mr Lardner left the cell holding the buy up bag but dropped it when he was confronted by the victim. The applicant picked up the buy up bag and went to a nearby cell. Shortly thereafter, the victim retrieved his property intact. The next day detectives spoke to the victim. He had sustained actual bodily harm, consisting of bruising and swelling to his right eye and facial area, right elbow and a superficial laceration to the left thoracic region of his middle back.
Her Honour did not have a Victim Impact Statement but expressed no doubt that the event would have been extremely traumatic for the victim.
Her Honour assessed the offence as in the lower range of objective seriousness for such offences, having regard to the relatively minor injuries to the victim and that each offender was only in the company of one other person.
Her Honour accepted the parties' position that the two offenders were equally liable for the assault occasioning actual bodily harm offence.
The applicant gave evidence in the sentence proceedings. Her Honour took into account the following matters about him. He was 21 when he committed the offence and 23 when being sentenced. He had "quite a serious criminal history" and so was not entitled to leniency. His being in custody at the time of the offence aggravated the offending.
He is an Aboriginal man. He grew up with his parents, who fought and used drugs. His father was described as a bad alcoholic and "ice" user for 15 to 20 years. His mother drank alcohol and smoked cannabis during the applicant's childhood. He began using drugs and alcohol when he was 15, and more serious drugs as he became older.
Her Honour took into account that the applicant was young, as "not an insignificant manner", that his plea of guilty was some evidence of remorse; that he had a difficult background of some disadvantage; that he had been in custody during COVID and that he was in segregation for a month as a result of the offence. (This appears to have been based on the applicant's evidence to that effect and was not reflected in his punishment details in his custodial history). He has a health issue which requires surgery.
Her Honour afforded the applicant a discount of 25% for the utilitarian value of his plea of guilty in the Local Court.
Her Honour indicated that for each of the applicant and Mr Lardner she considered that no penalty other than imprisonment was appropriate. The Crown had submitted that s 56 of the Crimes (Sentencing Procedure) Act applied to the sentencing of the applicant for the offence in custody. Section 56 provides, in summary, that a sentence of imprisonment imposed for an offence of assault, committed by a convicted inmate of a correctional centre is, in the absence of a direction under the section, to be served consecutively on the non-parole period of a sentence previously imposed and yet to expire. The applicant's legal representative asked her Honour to direct, pursuant to s 56(3), that the sentence be served concurrently or partly concurrently with the sentence the applicant was serving. Her Honour stated "I am not persuaded that the section applies here and I propose to commence the sentence I impose on 22 September 2025. The sentence is one of 18 months imprisonment and that sentence will expire on 21 March 2027."
Her Honour asked the legal representatives if there was anything further and they all answered "No".
Her Honour indicated a sentence of 18 months imprisonment for the assault occasioning actual bodily harm in company offence by the co-offender, Mr Lardner.
[3]
The applicant's submissions
In respect of ground 1, counsel for the applicant accepted that Judge Flannery SC had a discretion to impose a fixed term of imprisonment but submitted that her Honour erred by not giving reasons for so doing. Counsel accepted the practical effect of the asserted error was probably minimal. Counsel submitted the applicant's non-parole period was extended by nine months and his period on parole reduced to 21 months, such that his total effective non-parole period was 80% of his total sentence.
In respect of ground 2 counsel submitted that her Honour erred in making no reference to totality, not considering totality and not giving reasons for directing that the sentence imposed be served partially concurrently and partially consecutively. Counsel accepted that the structure of the sentence, being partially concurrent and partially cumulative by nine months each, reflected principles of totality. Counsel submitted that the co-offender Mr Lardner received a non-parole period of about 50% of his aggregate sentence for his two offences.
In respect of ground 3 counsel submitted that the pre-discounted starting sentence of two years imprisonment was not consistent with the low range of objective seriousness of the offence, that the injuries were of low seriousness, and the applicant's plea of guilty, his youth, his mental health and his disadvantaged upbringing.
Counsel submitted that there was a wide range of sentences imposed for the offence of assault occasioning actual bodily harm and that the offence could have and should have been dealt with in the Local Court, and therefore that the starting sentence was too high and the non-parole period was excessive in all the circumstances. Counsel relied on the extra curial punishment of one month in segregation for the same offence (which her Honour did take into account although the basis for so doing appears to be doubtful). Counsel accepted the nine months partial concurrency was generous.
[4]
The Crown's submissions
The Crown relied on the offence having been committed in custody, and submitted that no further explanation was required for her Honour imposing a fixed term of imprisonment, having regard to the non-parole period of the extant sentence, with which the sentence imposed was made partially concurrent. The Crown submitted that her Honour's discussion with the legal representatives in the sentence proceedings about the application of s 56 of the Crimes (Sentencing Procedure) Act showed her Honour was aware of the sentence the applicant was already serving.
The Crown submitted her Honour took into account the applicant's youth. The Crown submitted that backdating the commencement of the sentence was a generous finding in favour of the applicant given the legislative intent of s 56. The Crown submitted that her Honour properly applied principles of totality because the prior sentence could not reflect the additional criminality of the later offence.
The Crown submitted that the sentencing statistics for the offence were not useful. The Crown submitted it was not realistic that the offence could be dealt with in the Local Court given the prior sentence being served by the applicant. The Crown submitted that as against a maximum penalty of seven years imprisonment the sentence of 18 months imprisonment for this offence in custody was not unreasonable or plainly unjust.
[5]
Consideration
In the circumstances of this case I consider it is not necessary to re-state at length the applicable principles, which are well-known. A sentencing judge may decline to set a non-parole period for a sentence of imprisonment, but must record reasons for so doing: s 45(1) Crimes (Sentencing Procedure) Act. The judicial duty to give adequate reasons for a decision was discussed recently in Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209. The principle of totality was recently considered in Murray v R [2024] NSWCCA 107. There the Court confirmed that a sentencing judge is required to consider the total criminality involved in the offences for sentence and any offences for which the offender has already been sentenced. A sentence will be manifestly excessive if it is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
Judge Flannery SC was sentencing the applicant in a busy circuit court, heard the matter in the afternoon and sentenced the applicant immediately after the sentence proceedings. It is clear from her sentence remarks that her Honour was aware of the lengthy sentence the applicant was already serving and the issue of the application of s 56 of the Crimes (Sentencing Procedure) Act and those matters had been raised with her Honour in the sentencing proceedings, just before her Honour delivered her remarks.
Her Honour's sentencing remarks were in some respects economical, which is explicable in the circumstances in which she was required to sentence the applicant. It may be accepted that she was too economical in not at least briefly explaining why she imposed a fixed term of imprisonment. The reasons may be apparent given the unexpired non-parole period of the previously imposed lengthy sentence. As counsel conceded, the practical effect of her Honour not giving reasons for imposing a fixed term of imprisonment was minimal.
The applicant conceded through his counsel's written submissions in the appeal that he was a convicted inmate. Therefore s 56 applied. The legislative policy behind s 56 is that a sentence for an offence of assault by a convicted inmate while in custody should ordinarily be consecutive on the pre-existing non-parole period. Thus the section contemplates that the offender's existing non-parole period will be extended. This reflects the principle of totality that the total sentence is just and appropriate to the total criminality. By not applying s 56, the commencement date her Honour chose for the sentence she imposed was favourable to the applicant. It had the effect that 9 months of the 18 months fixed term was equivalent to a 9 month non-parole period.
In that her Honour did not state any reasons for imposing a fixed term of imprisonment ground 1 is made out. I am not persuaded that ground 2 is made out. Although her Honour did not state the principles of totality I am not persuaded she did not consider them. Error having been found, it is the Court's duty to re-sentence the applicant: Kentwell. In so doing I will take into account the matters raised by the applicant in support of his claim that his sentence was manifestly excessive.
[6]
Resentencing
I have taken into account the applicant's affidavit as to the courses he has completed in custody, his employment in custody, his immersion into his culture while in custody and his time locked in his cell since August 2023. Clearly he has spent his time in custody positively.
The offence occurred in custody and was not a reactive act of violence, but was a calculated preying by the applicant and another inmate on a young vulnerable inmate to steal his "buy ups", no doubt valuable to him. The theoretical possibility that this offence could be dealt with in the Local Court did not mean that it was appropriate in the circumstances of the offence and the offender that it be so dealt with.
I will proceed on the basis of her Honour's statement of the agreed facts, her finding of objective seriousness and all the personal circumstances of the applicant which her Honour took into account, none of which were challenged. I will also proceed on the unchallenged finding by her Honour that both the applicant and his co-offender were equally liable for the offence they committed in company.
Taking into account the circumstances of the offence and all of those matters, the sentence I have reached is not less than that imposed by Judge Flannery SC. I would maintain the fixed term of imprisonment because its commencement date has the effect of a 50% non-parole period.
Therefore I would grant leave to appeal but dismiss the appeal.
[7]
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Decision last updated: 27 November 2024