Qoro v R

Court of Criminal Appeal (NSW)|2020-09-25|Before: Rothman J, Bellew J

Solicitors: Aboriginal Legal Service (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2018/272752 Decision under appeal Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 06 December 2019 Before: Woods QC ADCJ File Number(s): 2018/272752

Facts and Procedural Background

As already stated, the applicant pleaded guilty to the offence with which he was charged and the matter was before the District Court only for sentence. For the purpose of those sentencing proceedings, the Crown tendered a bundle of documents, which included a Statement of Agreed Facts (hereinafter "Agreed Facts") as part of Exhibit A on Sentence. The sentencing judge referred to and summarised the Agreed Facts from which the following summary is taken.
The applicant hired a taxi on the night of 1 September 2018. He sat in the back seat and directed the driver to various locations around Orange, purportedly attempting to find different people. The taxi driver became concerned at the cost of the fare. The applicant provided her with a card as security, but when the driver eventually stopped, turned off the meter and began to process the transaction, the applicant produced a 25 cm long knife that he had kept up his sleeve. He lent forward between the front seats and said, "Sorry lady. This is a stickup. Give me the money!"
When the victim refused to give him any money, the applicant told her that he needed the card back, because it was stolen. The victim saw the knife and the applicant put his right hand on her left shoulder. At the time, he was holding the knife about an arm's length away from her with his left hand. She screamed for help on the taxi's two-way radio and the applicant told her to give him the money or "I'm going to stick ya".
The applicant moved the knife closer to the victim's throat, grabbed the microphone for the radio communication system from her hand and cut the cord with his knife. When the victim tried to reach for the alarm button on the taxi's computer screen, the applicant told her that he would stab her if she touched it.
At this time, the applicant was pinning the victim in her seat and the victim was struggling with him. The victim was fearful of being injured by the knife. She heard other drivers on the radio trying to locate her and she told the applicant to run.
The applicant alighted the taxi, still holding the knife. He opened the driver's side door; went through the victim's jacket pockets; and found her wallet in the door pocket. The wallet contained personal cards and $435 in cash. The applicant took the wallet and walked off. The victim was assisted, a short time later, by other taxi drivers.
Several days later, the applicant was arrested. He has been in custody since 6 September 2018.

Subjective Circumstances

The applicant was born in November 1986 and is, at the time of these proceedings, about to turn 34 years old. He is of Bundjalung descent (on his maternal side) and, on his father's side, of Fijian background. He is single and has two children, a daughter aged 10 and a son aged 4 to an ex-partner. His children live in Orange with their mother and grandmother.
Prior to his arrest, he was living in Orange with his then partner's parents, his partner and their children.
The Sentencing Assessment Report [3] refers to the fact that the applicant became homeless some two weeks before the offences in question and was, at the time of the offending, living a transient lifestyle. It was as a consequence of that circumstance that, according to the applicant, he ceased taking his medication, to which reference will be made later in these reasons.
For his existence, prior to incarceration, the applicant relied upon a disability support pension; he received negative work reports in custody during remand, but has a stated intention of obtaining employment as a labourer after release.
As earlier stated, the applicant has an extensive criminal history spanning from 1999, much of which relates to aggression and violence and almost all of which relates to substance abuse. The offence in question is not the first time that the applicant has committed an armed robbery.
At the time of the offence, the applicant was under the influence of crystal methamphetamine, which he recommenced abusing as a result of being homeless and reuniting with a number of former associates. There is a degree to which the applicant displays a motivation to offend in order to remain in prison. The Sentence Assessment Report refers to him being institutionalised.
According to the applicant, he did not commit the offence in question for the purpose of obtaining the money or any financial gain, but in the hope that his behaviour would result in a custodial sentence and allow him to reside in gaol.
While the applicant recognised the impact of his offending on himself and his family, particularly his children, he has no insight into the impact of the offending on the victim and the wider community. Notwithstanding that lack of insight, the applicant was able to express the changes he would like to see occur in his behaviour in order to cultivate a prosocial lifestyle, at least according to that which he told the Community Corrections Officer responsible for the Sentence Assessment Report.
The applicant also expressed willingness to engage in intervention to address his substance abuse and management of stress. The applicant was, at the time of the sentence, illiterate.
His childhood was deprived and he suffered from significant violence, although he was not prepared to share the details of some of that with his psychiatrist, Dr Ellis.
Dr Ellis' Report is Exhibit 1 on Sentence and Dr Ellis diagnosed the applicant as suffering from schizophrenia, substance use disorder and antisocial personality disorder. Dr Ellis, in his report, noted that the applicant had been treated with the long-acting antipsychotic injection, Risperidone.
The applicant reported to Dr Ellis that when he felt unwell, he, the applicant, believed that people were looking at him in a "funny" manner and this made him angry. During periods of that kind, he developed rapid speech, jumbled up thoughts and he became paranoid.
The applicant also engaged in self-harm and cut himself when stressed out. He had been doing this since childhood but it had stopped some four years earlier than reporting to Dr Ellis, which coincided with the period when he commenced injections of the medication. [4]
There had been admissions to psychiatric units earlier in his life, both in Orange and Dubbo. One of the catalysts for the applicant's earlier admission to psychiatric facilities was his self-harm and attempted suicide by hanging. The applicant was first diagnosed with schizophrenia while in juvenile detention. This diagnosis was reached by Professor David Greenberg.
His substance abuse has been long-standing. He commenced using tobacco at the age of 13 and continues to smoke. While he has tried alcohol, the applicant says he does not like it and does not drink regularly. The applicant commenced utilising cannabis from between the ages of 13 and 15 and continued using it thereafter. The applicant commenced smoking heroin between the ages of 15 and 18 and used crystal methamphetamine ("ice") between the ages of 21 and 33. He used ice intravenously every day, which had the effect of significantly worsening his mental symptoms.
As earlier stated, Dr Ellis diagnosed the applicant with schizophrenia (a diagnosis which accorded with the earlier diagnoses); substance use disorder; and antisocial personality disorder. The Report notes the applicant's non-compliance with antipsychotic treatment and the use of ice at the time of the offending. At the time, the applicant was suffering persecutory delusions that police were chasing him. He reported depression and a hope that the police would shoot him.
Dr Ellis opined that the appropriate treatment should be continuation of long-acting injection antipsychotic medication to which the applicant has shown a good response and which, when used, eliminated any active symptoms of schizophrenia. He will require treatment in the long-term, according to Dr Ellis.
Further, Dr Ellis notes, with which it is difficult to argue, that, given the history of the applicant's non-compliance, consideration should be given to a community treatment order on his release from custody and he would benefit from case management by a mental health service and ongoing education about substance use and strategies to prevent relapse.
The applicant had been off medication for at least a month before the offence for which he was being sentenced.
The Sentencing Assessment Report expressed the opinion that the applicant presented "a high risk of reoffending". [5]
Significant during the course of the sentence proceedings was the question from the sentencing judge relating to what assurances there could be that the applicant would follow medical treatment once he was in the community upon his release. In response to that question, the applicant gave evidence as to why he had stopped medication. That evidence was to the effect that he had been "kicked out" of his house and had "start[ed] hanging around with my old mates" and "I just ran amuck pretty much". [6]
The applicant also referred to the suicide of his sister while he had been incarcerated and expressed the hope that: "when I get out I'll go straight to rehab and learn more skills about ways I can handle things about life, and handle my - what's it called - my offending behaviour". [7]
As already indicated, the applicant has a significant criminal history which was tendered as part of Exhibit A. Part of the criminal history shows an offence of intimidate police officer in execution of duty without actual bodily harm.
This last-mentioned offence was committed five days after the offence to which the impugned sentence relates and to which this appeal relates. For this offence, he was sentenced in the Orange Local Court [8] to 18 months' imprisonment, with a non-parole period of 13 months, commencing on 6 September 2018, being the date the applicant returned to custody, and expiring on 5 October 2019.
There was a successful appeal to the Orange District Court which reduced the non-parole period for that offence to 9 months, concluding 5 June 2019. [9] The head sentence was not altered.
The expiry of that 9-month non-parole period coincided with three other wholly concurrent sentences imposed by Orange Local Court, each with 12-month head sentences and 9-month non-parole periods for failure to appear (two counts) and common assault. Each of those other sentences also commenced on 6 September 2018 and were not disturbed by the Orange District Court on appeal.

Remarks on Sentence

The sentencing judge found, taking into account all the relevant considerations, including the Henry guideline and the applicant's subjective case, an appropriate starting point for the sentence was imprisonment for 5 years. [10] His Honour determined that the applicant was entitled to a reduction of his sentence of 25% for his plea of guilty at the earliest opportunity. [11]
His Honour noted that the applicant had a history of a violent upbringing, suffered schizophrenia and that the Bugmy [12] principles would seem to be applicable. The combination of drug taking and his mental illness had rendered him institutionalised to a significant degree, according to the sentencing judge. [13]
His Honour found special circumstances. The finding of special circumstances was said to be on account of the applicant's history of schizophrenia and the need for that condition to be carefully managed and supervised in the community. [14]
The sentence fixed for this offence is a head sentence, as stated, of 3 years and 9 months and a non-parole period of 2 years and 6 months which is a ratio between the non-parole period and the head sentence of two-thirds or, by comparison with the statutory ratio, a ratio between the non-parole period and the remainder of term of 2:1. That ratio implemented the sentencing judge's finding that special circumstances were warranted, as already stated in these reasons, for the "history of schizophrenia" and the necessity for that to be carefully managed and supervised in the community.
In the sentence proceedings, the initial submission to the sentencing judge was that the commencement date of the sentence should be between 6 September 2018 and 5 June 2019. [15]
The proceedings on sentence were heard over a number of days, each for a short period. It was heard on 19 August 2019 and adjourned; it was then heard on 14 October 2019, 23 October 2019, and 31 October 2019, with adjournments; and finally heard on 6 December 2019, when there was short evidence adduced from the applicant and very short submissions, mostly relying upon the written submissions already filed.
His Honour imposed the sentence immediately after the conclusion of the proceedings on 6 December 2019. In the course of the proceedings on 6 December 2019, his Honour was informed that the appeal, to the District Court in relation to the previous offences to which earlier reference has been made, had reduced the non-parole period applicable for the previous offences such that they would conclude on 5 June 2019 and his Honour was informed that the bar table were agreed that an appropriate starting point for the sentence was 5 June 2019. [16] There was a reference to reliance upon the written submissions, but no cavilling with that which his Honour expressed as the agreed starting point for the sentence.
The effect of commencing the sentence at the conclusion of the sentences already being served was that the overall effective sentence imposed upon the applicant for all of the offences implemented a sentence that commenced on 6 September 2018 and, as a head sentence was to have concluded on 4 March 2023, with the non-parole period concluding on 4 December 2021. In terms of the overall sentence this implemented a ratio of 72.2%, being the ratio between the overall or effective non-parole period of 3 years and 3 months and the overall head sentence of 4 years and 6 months.
No comment was made by his Honour as to the effect of accumulation on his stated intention of implementing a ratio of 66.7% (or two-thirds).

Consideration

There is only one ground of appeal and it relates to the effect of accumulation on the stated intention to find special circumstances and to implement a ratio of two-thirds between the non-parole period and the head sentence. It is notorious that the effect of accumulation of a sentence will usually, mathematically, be to alter, sometimes significantly, the ratio between the overall effective non-parole period and the head sentence.
Where, as here, the sentencing judge makes no mention of the effect of the accumulation, the Court can only assume that the effect is unintended. This Court has, on a number of occasions, intervened in such circumstances. [17]
In Elwood, [18] Fullerton J, with whom Gleeson JA and Walton J agreed, said: "[55] The error contended for by the applicant is that in the absence of any indication from the sentencing judge that he intended that the effective non-parole period would not reflect the finding of special circumstances that had been given effect to in the appointment of the aggregate sentence, error is made out. [56] The applicant acknowledged that had the sentencing judge made clear his intention that the total effective non-parole period would increase after accumulation (or, to put it another way, that the parole period would reduce), the applicant would have difficulty, having regard to the authorities, establishing a sentencing error (see the authorities referred to by Hamill J in Sabongi v R [2015] NSWCCA 25). [57] That was an approach that was recently adopted and applied in CC v R [2019] NSWCCA 229 (per Fullerton J at [37]-[45], Payne JA and Bellew J agreeing). In that case, in contrast to the present case, the sentencing judge expressly rejected the proposition that the order for partial accumulation was a basis for a finding of special circumstances. His Honour's reasons for sentence in that case made it clear that upon further reviewing the basis upon which his Honour was satisfied special circumstances were found, he expressly considered the length of the parole period as an appropriate period of supervision in the community. Additionally, this Court observed that although after accumulation the ratio between the non-parole period and the balance of term increased and, significantly, the period during which the applicant would be subject to supervision in the community did not change. [58] The applicant further submitted that it would have been difficult to establish a sentencing error were the sentencing judge to have said something similar to 'on accumulation the statutory ratio will not reduce substantially' (see Houri v R [2013] NSWCCA 279 at [34]) or that the increase in the period of potential parole would 'not be much' (see Caristo v R [2011] NSWCCA 7 at [37]). However, in the absence of anything in the sentencing judge's reasons to indicate he had given fresh consideration to the relationship between the non-parole period and the balance of term upon accumulation such that, despite the order for partial accumulation being a basis for a finding of special circumstances, he intended that the degree of amelioration of the statutory ratio would be modified from 66.6% to 70%, the applicant submitted that error has been established. [59] In the Crown's submission, because the finding of special circumstances was given effect in the ultimate sentencing order (by reducing the statutory ratio of 75% to 70%) and where, as a matter of sentencing principle, his Honour was not obliged to preserve the statutory ratio of 66.6% in the fixing of the aggregate sentence when the overall effective sentence was imposed, no error has been demonstrated. [60] The Crown further submitted that in all the circumstances, not the least being the fact that the applicant had completed six months on parole for contravention of an ADVO and an offence of stalk/intimidate two months before he committed the sexual offence, together with his criminal history which included repeat offending of that kind and offences of domestic violence, it was open to the sentencing judge to collapse the parole period by a period of two months, that is, from the parole period reflected in the aggregate sentence of 1 year and 6 months to the effective parole period of 1 year and 8 months, after accumulation. [61] The difficulty with that submission, is that it fails to address what the authorities referred to above make plain, namely that a sentencing judge who makes a significant finding of special circumstances not based solely on the fact of accumulation, should either carry that finding into effect on accumulation or give an explanation for why that was not done (see the cases cited by Hamill J at [84] in Sabongi). [62] In my view, it is no answer to the sentencing error the applicant complains of for the Crown to submit that there might have been a justification for the ultimate sentencing order, where there is nothing in the structure of the sentence or his Honour's sentencing reasons to suggest that was what he intended."
With respect, I adopt and endorse the comments of Fullerton J, which reflects the attitude of the Court over a significant period of time.
In circumstances where the sentencing judge decided for reasons other than the accumulation of the sentence to fix a ratio of two-thirds and then, as a consequence of the accumulation, the ratio fixed is 72%, and there is no explanation as to this being a deliberate effect, it must be assumed to be a result of oversight. It seems that the oversight may have been caused by the indication to his Honour, at the very last minute, of agreement from the bar table on a different starting point than might otherwise have been the subject of submissions. Whatever be the reason, the effect of the accumulation has been overlooked and the ground of appeal should be upheld.

Resentencing

As a consequence of the foregoing and subject to the Court coming to the view that it should confine its task to the correction of the oversight, the Court is required to resentence. [19] Further evidence has been adduced to be relied upon in the circumstance that the Court comes to resentence.
The applicant relies upon his own Affidavit of 8 September 2020; the Affidavit of his solicitor, Wes Burton, of 11 September 2020; and a further Affidavit of Wes Burton, of 17 September 2020. The Crown relies upon an Affidavit, also on the same basis, being the Affidavit of a solicitor in the employ of the Office of the Director of Public Prosecutions, Steven Thompson, of 14 September 2020.
Dealing with the evidence adduced on behalf of the Director of Public Prosecutions first, that evidence annexes prison conduct records and notes the applicant's infringements for possessing drug implements, amongst other things.
The applicant's Affidavit of 8 September 2020 indicates that he is Aboriginal (a fact already in evidence); that the pandemic has made the conditions of custody more onerous; the fact of his sister's suicide in October 2019, while he was incarcerated; the effect of his sister's death, which made the applicant realise that the applicant needs to be there for his family, cease using drugs, which he says he has done in custody, and stop offending. It also attests to the applicant having completed courses in reading and writing and having obtained employment in custody.
The second Affidavit of Wes Burton, of 17 September 2020, notes a minor correction to the applicant's Affidavit of 8 September 2020 in relation to the courses completed and the first Affidavit of Wes Burton, dated 11 September 2020, annexes the applicant's records in relation to his behaviour in prison; and states that the applicant behaved poorly until May 2020, in particular acting aggressively towards staff, but there has been noteworthy improvement from that time onwards.
The successful completion of 3 of 11 sessions in the reading course is a commendable improvement in the attitude of the applicant and points to his desire for rehabilitation. Further, a sign of improved prospects of rehabilitation is the proactive and unsolicited attempt at the correction of an inaccuracy in his Affidavit of 8 September 2020. Each of these provide objective material to support the view that the applicant is genuinely desirous of rehabilitation and allows a greater degree of confidence in the prospects that it may be successful.
There are a number of other matters that should be noted. First, this is an armed robbery in contravention of s 97(1) of the Crimes Act for which there is a maximum penalty of 20 years' in prison.
There is no standard non-parole period. At least in part, that may be explained by the Second Reading Speech that introduced standard non-parole periods and expressly declined to introduce standard non-parole periods for any offence for which a guideline judgment had been delivered. In this matter there is a guideline judgment in Henry to which I have regard.
The applicant in this case is not young, as was the situation in Henry, but otherwise a number of the factors were present. It was a robbery with a knife; there was no occasioning of actual violence, but the threat of violence; the victim was in a vulnerable position; there was little or no planning; the amount taken was small; and there was a plea of guilty, in this case at the earliest opportunity.
The guideline judgment in Henry includes a late plea of guilty, which has been estimated at 10%. [20] The Court in Henry fixed a guideline for the offence there described as one that should generally be imprisonment for between 4 and 5 years for the full term. [21]
The guideline judgment should be used as a yardstick against which to examine a proposed sentence, in a similar way to the pattern of past sentencing. In Henry, the Court expressly referred to the range that was indicated as being the accumulated wisdom of the judges on the Court and bearing in mind the past pattern of sentencing that had occurred. The Henry guideline, to the extent applicable, is a check on the sentence that might otherwise be imposed.
Otherwise, the guidepost is the maximum sentence and the degree of objective seriousness, coupled with the subjective circumstances of the offender. It is unnecessary to rehearse the purposes of sentencing or any discussion on intuitive synthesis that is necessary to achieve those purposes. [22] As earlier indicated, the guideline judgment should be used as, and is consistent with the approach of, the accumulated wisdom of sentencing judges and appellate courts and as a yardstick against which to examine a proposed sentence. [23]
The range indicated in Henry of 4 to 5 years has, as has been stated, taken into account a plea of guilty and a discount of 10%. Adjusting the range for the 10% reduction, the undiscounted range in Henry would be between 4 years and 5 months and 5 years and 6 months.
The objective seriousness of the offence is below the mid-range of offending for an offence of this kind. The foregoing comment does not denigrate the seriousness of the offence from the point of view of the victim, but assesses the offence relative to other offences under s 97(1) of the Crimes Act. It is, in terms of objective seriousness, on a par with the examples to which the Court referred in Henry.
The applicant has a significant criminal history and is not entitled to the leniency that might be afforded a first offender or person who has not previously been incarcerated. The seriousness of the offence in question means that the only appropriate sentence is one of full-time imprisonment.
The subjective circumstances of the offender are significant. He comes from a deprived background in which violence pervaded the environment and was normalised. He is entitled to consideration of those issues in terms of his moral culpability and also in terms of the subjective features of the offender. [24]
Further, the applicant, as stated, has significant psychiatric conditions which were, at least in part, causative of the offending. Those conditions are medicated, but the offending was caused during the time when the applicant had voluntarily ceased the medication. He has shown genuine remorse and a developing insight into his criminal behaviour.
On the basis of the additional material tendered on re-sentence, I take the view that the applicant has, assuming appropriate and relatively lengthy supervision in the community, reasonable prospects of rehabilitation. As earlier indicated, I accept that the applicant pleaded guilty at the earliest opportunity and is entitled to a reduction in his sentence of 25% on account of the utilitarian value of the plea of guilty.
I would commence a head sentence with a starting point of 4 years and 8 months imprisonment. I do so on the basis of my assessment of the objective seriousness of the offence and the subjective circumstances of the offender. On checking with the guideline judgment in Henry, that is below the midpoint in the undiscounted range to which the Court referred in that judgment, but above the bottom of that indicative range.
I apply to the starting point a discount of 25% and take the view that there are, on account of the need for supervision and rehabilitation over a lengthier period than would otherwise be the case and on account of the psychiatric issues suffered by the applicant, special circumstances which should be reflected in the sentence to be imposed. I note that the sentence will be imposed cumulatively on the non-parole period of the pre-existing sentences being served and take the view that the overall ratio should reflect the need for the extended period of supervision and the need for rehabilitation in the community such that, for the total accumulated sentences being served, there should be a non-parole period approaching two-thirds of the entire sentence.
For the foregoing reasons, I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. The sentence imposed on the applicant by the District Court on 6 December 2019 for the offence of one count of armed robbery committed at Orange on 1 September 2018 be quashed; 3. The applicant be sentenced, for armed robbery committed at Orange on 1 September 2018 to a head sentence of 3 years and 6 months, commencing 5 June 2019 and concluding 4 December 2022, with a non-parole period of 2 years and 1 month, concluding 4 July 2021. The applicant will be first eligible for parole on 4 July 2021.
BELLEW J: I agree with Rothman J

Endnotes

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.
Remarks on Sentence, at p 7.
Exhibit B.
Report of Dr Ellis, Exhibit 1, p 3.
Exhibit B, p 3.
Tcpt, 6 December 2019, pp 6(48) and 7(42).
Tcpt, 6 December 2019, p 7(30).
Exhibit A, p 16.
Exhibit A, p 17.
Remarks on Sentence, p 6.
Ibid.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Remarks on Sentence, p 3.
Remarks on Sentence, p 7.
Applicant's Written Submissions below, at Appeal Book, p 77, [7] and [9].
Tcpt, 6 December 2019, p 1(49-50).
Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25.
Elwood v R [2019] NSWCCA 315.
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 per Bathurst CJ at [72].
R v Hemsley [2004] NSWCCA 228, at [30].
Henry, supra, at [165].
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, per Simpson J at [304].
Kennedy v R [2010] NSWCCA 260; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 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: 23 October 2020

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