52 It is convenient to commence with ground 3, under which discussion about pre-sentence detention was addressed.
Ground 3
53 Although Judge Morgan-Payler declared 75 days pre-sentence detention (which ought to have been 90 days, in fact) there were additional periods in which the applicant had been in custody prior to the date of his Honour's sentencing which also had to be considered. In the first place, the applicant had been remanded in custody on 5 October 2003 with respect to the offences dealt with later by Judge Sexton and remained in custody until bailed on 10 December 2003. That was a period of 66 days. Mr Holdenson agrees that Judge Morgan-Payler should have added those 66 days to the period of pre-sentence detention under s 18(1) that he declared, but he failed to do so.
54 In addition to those 66 days there was a period from 4 February 2004 to 17 January 2005 during which the applicant was in custody but which did not qualify as pre-sentence detention under s 18(1), as Judge Morgan-Payler rightly concluded. He held that he had had regard to that period of detention by applying the principle stated in R v Renzella.[8] He did not specify the extent to which the sentence he imposed had thereby been reduced.
55 After his Honour had sentenced the applicant and declared pre-sentence detention, counsel for the applicant drew to Judge Morgan-Payler's attention the additional 66 days which had not been declared under s 18(1). His Honour declined to treat that period as pre-sentence detention but said that the period had been taken into account in applying Renzella.
56 As the judgment of Kellam, AJA in Watts, Black and Black demonstrates, it is improbable that Judge Morgan-Payler reduced the sentence by 66 days upon application of the Renzella principle. In fact, Judge Duckett later declared that to be a period of pre-sentence detention when he imposed sentence in the case before him. Mr Holdenson submitted that that amounted to double counting, but I am confident that the 66 days were not taken into account by Judge Morgan-Payler. Thus, if the Court now re-sentences the applicant with respect to the matters dealt with by Judge Duckett we should ensure that the 66 days declaration of pre-sentence detention is confirmed.
57 There then remains the question of the extent to which the period of eleven months and thirteen days in custody from 4 February 2004 and 17 January 2005 was taken into account on a Renzella basis by Judge Morgan-Payler when he sentenced the applicant. As Kellam, AJA has explained in Watts, Black and Black, a total effective sentence of 12 months' imprisonment for the applicant, though severe, should not be interfered with. If, however, the whole of the eleven months and thirteen days had been taken into account when his Honour fixed that sentence, so that his Honour intended, in effect, to impose a sentence on the applicant of about 2 years' imprisonment, or even more, then there must have been sentencing error, at least on parity grounds. It is, however, more likely, for the reasons stated by Kellam, A.J.A., that despite having taken that period into account for the two co-offenders and having also intended to take it into account for Steven Black, Judge Morgan-Payler could not have given full weight to that factor when sentencing Steven Black. What, then, is now to be done about that situation? The applicant has completed the sentence imposed by Judge Morgan-Payler, and the precise extent to which the Renzella principle was applied in his case is not known.
58 The applicant is subject to a re-trial of the matters heard before Judge Sexton and the period of eleven months and thirteen days could be considered upon re-sentencing for those offences, if he was again convicted. However, since this Court must in any event re-sentence the applicant on the matters dealt with by Judge Duckett the more appropriate course, in my opinion, is that upon re-sentencing the applicant for the Judge Duckett matters, this Court should apply the Renzella principle with respect to the period of eleven months and thirteen days.[9] That consideration will, therefore, be addressed later, upon re-sentencing.
59 In addition to the Renzella question there are other issues raised under the grounds of appeal that will be relevant to re-sentencing by this Court.
Ground 1 - Parity
60 On count 1 the applicant's co-accused, Sexton, was sentenced to two years' imprisonment and on count 3 he was sentenced to 12 months' imprisonment. Judge Duckett ordered that 6 months of the sentence on count 3 be served concurrently with the sentence on count 1. The total effective sentence for Sexton was 2 years and 6 months' imprisonment, and a non-parole period of 12 months was fixed.
61 As to the applicant, Steven Black: on count 1 he was sentenced to 3 years' imprisonment; on count 3, to 12 month's imprisonment. Twelve months of the sentence on count 1 was ordered to be served concurrently with the sentence then being served and also with the sentence on count 3; and 6 months of the sentence on count 3 was ordered to be served concurrently with the sentences then being served and also with the sentence on count 1. The total "cumulative" sentence (as his Honour described his sentence) was two years and 6 months' imprisonment. A new non-parole period of "an additional two years minimum" was fixed, which Judge Duckett said resulted "in a minimum period of three and a half years from today", i.e. from 9 February 2006.
62 For the reasons discussed above, there is some confusion evident in these orders of Judge Duckett, but the complaint about parity does not turn on those matters, but relates to a comparison of the actual terms of imprisonment for each offence which his Honour ordered for the two offenders.
63 Mr Boyce submitted that the applicant had a justifiable sense of grievance as to the disparity between his sentence and that of Sexton and that the respective sentences offended principles of parity so as to give the appearance to an objective bystander that justice had not been done.[10] He submitted that although Sexton played a far more serious role than the applicant, the applicant received a sentence of imprisonment on count 1 that was one year longer, and received the same sentence on count 3.
64 As Callaway JA noted in R v Taudevin,[11] when complaint is made on grounds of parity (or disparity) the circumstances in which the court will intervene require that emphasis be placed on the following matters: the difference between the two sentences must be "manifestly" excessive and in addition the disparity must be such as to engender a "justifiable" sense of grievance on the part of the appellant, and to create the appearance of injustice in the mind of an "objective" bystander.
65 As to their respective roles, his Honour found that Sexton led the applicant into the house, after breaking the lock on the door, and punched Stearman to the ground, then kicked him when he was unconscious on the ground. His Honour made no finding that the applicant had personally physically assaulted the victim, but he had been present, shouting threats, and shared Sexton's purpose to attack and injure Stearman.
66 The disparity was even more glaring, Mr Boyce submitted, when regard was had to the differences in age and prior convictions of the two offenders. Sexton was aged 36 at the time of sentencing, with 10 previous court appearances, including convictions for recklessly causing injury and burglary. He had been convicted of assault with intent to rob, and robbery, in 1991, and had been sentenced to four months' imprisonment, wholly suspended. In contrast, submitted counsel, the applicant was only 21 at the time of sentencing, had only one prior court appearance, which resulted in convictions and fines for burglary, theft and possession of cannabis. He submitted that the convictions and sentences for the April 2003 incident occurred after the present offences were committed, thus they ought not have been treated as prior convictions for sentencing purposes.
67 In response, Mr Holdenson submitted that the difference in the sentences of the two offenders on count 1 was to be explained by a number of factors. The applicant was on bail for offences arising out of the first episode when the present offences, relating to the second episode, occurred; Sexton had not been present earlier in the day when the applicant, among others, had been inflaming the situation; Sexton reacted to what he perceived was the endangerment of his child; Sexton's last conviction for a violence offence was more than 10 years earlier; Sexton had not previously been imprisoned.
68 In my view, the significantly greater physical role of Sexton on count 3 does not diminish the fact that throughout the assault, as his Honour found, the applicant was fully supporting him. Furthermore, although Sexton led the trio into the house the applicant, having engaged in just such conduct in the recent past, in the first episode, was right behind him. In my view, the judge was entitled to take the view that the applicant's conduct was every bit as serious as that of Sexton, added to by the fact that he was on bail for the past similar incident. There could not be a "justifiable" sense of grievance on the part of the applicant, in my opinion, nor can the difference in the respective sentences be regarded as manifestly excessive in the circumstances: see R v Taudevin.[12]
69 Thus, the sentences imposed by Judge Duckett did not offend parity principles. That does not mean that this Court should simply impose the same sentences: we must exercise our own sentencing discretion. However, the analysis and rejection of the parity complaint serves at the same time as an indicator of the factors that bear upon the appropriate relationship between the sentences for the applicant and Sexton.
Ground 2
70 Mr Boyce submitted that his Honour, in effect, sentenced the applicant to an additional term of imprisonment by reference to his offences, concerning the same victims, that occurred in April 2003. That conduct had already been dealt with by Judge Morgan-Payler, and in consequence the applicant, so it was said, had been punished twice for that earlier conduct. It is unnecessary to deal with this complaint in any detail. I am quite satisfied that in the sentencing remarks that were highlighted by counsel his Honour did not constitute error. His Honour rightly noted that the terror experienced by the victims on this occasion was exacerbated by their experience on the previous occasion. In my opinion, the fact that the applicant had committed very similar offences against the same victims was a relevant aggravating factor for sentencing as to the subsequent offences. That bore on questions of rehabilitation prospects and remorse and was an aggravating factor that this Court is also entitled to take into account, as is the fact that the applicant had been on bail for the earlier offences when he committed the October offences.
Ground 5: Totality
71 This ground was based upon consideration of the sentences imposed by the two other judges in addition to that ordered by Judge Duckett, who ordered cumulation of part of the sentences upon sentences already being served by the applicant. For the reason earlier discussed, this ground of appeal is no longer relevant, because Judge Sexton's sentence has been set aside. The totality principle is nonetheless of continuing relevance upon re-sentencing, as I shall later discuss.
Ground 4: Manifest excess
72 If we put to one side the sentence imposed by Judge Sexton, and also put to one side the order of cumulation upon that sentence, of two years and six months, ordered by Judge Duckett, then the sentence imposed by Judge Duckett may be regarded as having been three years and six months' imprisonment (three years' imprisonment on count 1, twelve months' imprisonment on count 3; with six months of the sentence on count 3 to be served cumulatively with the sentence on count 1).
73 It may be that that sentence represents a longer period of additional and actual imprisonment than Judge Duckett intended to result, because he intended that 12 months of the sentence on count 1 would be served concurrently with the previous sentences that had been imposed and were then being served.
74 It is no longer necessary to resolve the question whether Judge Duckett's sentence was manifestly excessive, but the submissions made concerning the sentence raise the mitigating factors relevant to re-sentencing.
75 Mr Boyce relied on the following factors: the youth of the applicant at the time of the offences; his limited prior convictions (having appeared on one occasion only, in January 2003 and been fined on counts of burglary, theft and possession of cannabis); his lesser role, and the absence of actual violence on his part; his prospects of rehabilitation, although like his Honour, I would not regard his prospects of rehabilitation as being particularly favourable.
76 As against those mitigating factors, there were a number of aggravating features, most importantly the fact that he was on bail for similar offences committed against the same people. The impact on the offenders was very great. So fearful were they of reprisal that they abandoned their home, which was owned by Ms Kerrs under a mortgage. She was unable to maintain the property and to keep up mortgage payments and the property was sold by the bank at considerable loss to the victim. It is to be kept in mind too, that whereas the applicant was acquitted on the offence of aggravated burglary with respect to the episode dealt with by Judge Morgan-Payler, in this case he was convicted of that serious offence, which carried a 25 years' maximum sentence.
77 In all the circumstances, however, and notwithstanding the seriousness of his conduct while on bail, the sentence imposed by Judge Duckett on count 1 was greater than was appropriate, in my opinion, having regard to the youth of the applicant and his lack of significant prior convictions. Thus, I would reduce the sentence imposed on count 1, but not significantly so. I would not have imposed a different sentence on count 2. In determining the appropriate sentences to be imposed for these offences it is also now appropriate to have regard to the application of Renzella, with respect to the period of eleven months and thirteen days in custody prior to being sentenced by Judge Morgan-Payler, that was not fully taken into account by his Honour.
78 In both Renzella[13] and Stares[14] the Court held that the discount to be made by reference to this principle should be achieved by reducing both the head sentence and the non-parole period that would otherwise have been imposed. In R v Heaney,[15] which was approved in Renzella,[16] Brooking JA allowed that detention in custody that was doubly warranted could be taken into account "in a broad way", and in R v Chimirri[17] Winneke P agreed that application of the Renzella discount does not involve a mathematical exercise, but may be taken into account "generally". In Stares, Charles JA held that while it would ordinarily be appropriate to reduce sentence by reference to the whole of the period of detention applicable under the Renzella principle, there may be some reason why a sentencing judge would take a lesser period into account in the exercise of the sentencing discretion.
79 The situation here is unusual. Judge Morgan-Payler expressly said that he took into account on Renzella principles a period which apparently included the period of eleven months and thirteen days. If that was so then it rendered his sentence on the applicant a severe one. In the circumstances the applicant ought to receive substantial allowance for the period, but in light of what his Honour said it must be taken that some portion at least of the eleven months and thirteen days was in fact allowed in reduction of the total effective sentence he imposed. How much that was is not now known.[18] Whilst there is a risk that by now allowing a substantial reduction on account of the Renzella principle the applicant will have gained a double benefit, it is appropriate to err in his favour. He should not be disadvantaged by the fact that confusion has arisen by virtue of the cases being dealt with by different judges and not in the order in which the offences occurred.
80 In R v Wade[19] Maxwell P with whom Charles and Nettle JJA agreed, held that where something less than the full period of Renzella detention is not allowed the precise period so allowed should be specified so that any judge later called on to sentence the offender would know if any period remained to be taken into account on Renzella principles. So as to avoid later uncertainty, I make it clear that it is my intention that the whole of the period of 11 months and 13 days Renzella pre-sentence detention will have been addressed and taken into account by the combined effect of the sentencing orders of Judge Morgan-Payler (for the reasons explained both in this judgment and in the judgment of Kellam AJA in Watts, Black and Black) and the orders in this case upon re-sentencing. To achieve that objective I have reduced what would otherwise have been the appropriate total effective sentence and non parole period by nine months.
81 Thus, if the applicant falls to be re-sentenced on the matters previously dealt with by Judge Sexton then no portion of the pre-sentence detention that has been addressed in this judgment would be relevant to sentencing on that occasion. There may however, be "dead time" which would need to be taken into account being the time served after the expiry of the non-parole period which will be substituted by this Court upon re-sentencing the applicant.
82 I would set aside the sentences on count 1 and 3 and substitute the following sentences, which are discounted not only by virtue of the mitigating factors identified in my judgment but also for the Renzella factor.
83 On count 1, I would substitute a sentence of 18 months' imprisonment. On count 3, I would sentence the applicant to 12 months' imprisonment. I would order that six months of the sentence on count 3 be served cumulatively with the sentence on count 1. That produces a total effective sentence of 24 months' imprisonment.
84 By virtue of s 11(2) of the Sentencing Act the Court may fix a non-parole period. Applying the Renzella principle with respect to time spent in custody which has not otherwise been taken into account, I would order that the applicant not be eligible to be released on parole for the present offences before serving twelve months' imprisonment**.**
85 By virtue of s 16(3C) this sentence must be served cumulatively with any uncompleted sentence imposed on the applicant or other sentences imposed on him. There are no such sentences presently relevant. Given the brazen disregard for the bail order that these offences constituted I would not, in any event, have made an order ameliorating the effect of s 16(3C).
86 The applicant was sentenced by Judge Duckett on 9 February 2006. The declaration of 66 days pre-sentence detention under s 18(1) was appropriately made by Judge Duckett. The sentence we now impose commenced at 9 February 2006, thus the applicant would have been eligible for release before today. That is unfortunate. The complexity of the sentencing and appellate process that has arisen out of the multiple incidents that gave rise to charges against the applicant, and other offenders, has been largely attributable to the fact that three judges were
involved[20] and that the sentencing sequence was unhelpful. As noted earlier, should the offender be sentenced again for the matters dealt with by Judge Sexton then any "dead time" should then be taken into account.
87 Finally, I acknowledge that taking the Renzella pre-sentence detention into account in the way I have proposed, produces sentences which on their face do not reflect the seriousness of the offending. In addressing a similar situation in R v Arts and Briggs[21] Phillips CJ with whom Callaway JA and Harper AJA agreed, proposed that the final orders of the Court should record that the sentences reflect a significant reduction on account of time already spent in custody. It would be appropriate to make a similar statement in the orders in this case.