R v Chandler

Court of Criminal Appeal (NSW)|2019-09-30|Before: Hoeben CJ, Brereton JA, Cavanagh J

Date of Decision: 30 May 2019 Before: Bourke SC DCJ File Number(s): 2018/188750

Offences and sentence The respondent pleaded guilty in the Local Court to an offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 (NSW) (Crimes Act). The maximum penalty for this offence is imprisonment for 20 years. The respondent asked that three offences be taken into account on a Form 1 - one offence of intentionally damage property, contrary to s 195(1)(a) of the Crimes Act and two offences of dishonestly obtain property by deception, contrary to s 192E(1)(a) of the Crimes Act.

Offences of intentionally damage property and unlicensed driving were placed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
The respondent was sentenced to imprisonment for 4 years with a non-parole period of 20 months. The sentence commenced on 18 June 2018 and the non-parole period will expire on 17 February 2020. For the offences on the s 166 certificate, the respondent was convicted without the imposition of any further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence was imposed by Judge Bourke SC at the Parramatta District Court on 30 May 2019.
The Director of Public Prosecutions (DPP) has appealed against that sentence pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). A Notice of Appeal, dated 10 July 2019, was served upon the respondent on 12 July 2019. The DPP contends that the sentence is manifestly inadequate.

Factual background

On 11 June 2018, the victim was standing outside his home. The respondent, armed with a hammer, and with his face covered by a balaclava, ran at him with the hammer raised above his head and demanded the victim's wallet. The respondent had been driven to the victim's house by a co-offender, Hanna Rasmussen. The victim handed over his wallet. The respondent then demanded the victim's phone, which was also handed over. The respondent said "Give me your bag, give me your bag". The victim refused because the bag contained his MacBook and university application. The victim ran and hid inside a garage before going to his residence and contacting police.
The respondent returned to the vehicle being driven by Ms Rasmussen and gave her the victim's credit and bank cards.

Form 1 - dishonestly obtain property by deception ($77.94)

At 10.32pm Ms Rasmussen entered a service station store and purchased a packet of Winfield Blue cigarettes and a 20 litre jerry can for $77.94 using the PayPass feature on the victim's debit card. The respondent was present at the time of the transaction.

Form 1 - dishonestly obtain property by deception ($27.13)

The respondent filled the jerry can with fuel to the value of $27.13. Ms Rasmussen then re-entered the store to pay for the fuel on the victim's debit and credit card. The respondent left the service station and walked towards where the car was parked with the jerry can and fuel. By this time, the victim's bank cards had been cancelled and Ms Rasmussen was unsuccessful when she tried to pay for the fuel. Ms Rasmussen told the service station attendant that she would obtain her wallet and return to pay. She and the respondent did not return to pay for the fuel.

Form 1 - Intentionally damage property (Smart Tag)

The Smart Tag was removed from the respondent on 21 June 2018 while he was in custody. It was found to be heavily scratched and the internal components were visible.

Section 166 Certificate - intentionally damage property (police vehicle)

The respondent was on parole at the time of committing the offences. As a result, he was fitted with an electronic monitoring bracelet (Smart Tag). He was arrested by police on 18 June 2018 and placed into the rear of a police caged vehicle.
En route to the police station, the respondent kicked the rear door from the inside causing the top of the door to become loose. As a result of further kicks, the rear door came off its hinges causing the door to bend and the paint to be damaged. The total damage to the vehicle caused by the respondent was $5,589.16.

Section 166 Certificate - unlicensed driving

CCTV footage and the Smart Tag showed the respondent driving. The respondent had never held a NSW licence.

Sentence proceedings

On behalf of the respondent, the following material was tendered:

psychological report of Mr Luke Brabant;
Health Problem Notification form and clinical notes;
two character references;
Corrective Services case notes;
Corrective Services "Change of Placement" document; and
Corrective Services "Review of Classification" document.

The respondent entered pleas of guilty in the Local Court on 29 November 2018 and a 25 percent discount was allowed in his favour.
The sentencing judge noted that an essential part of the sentencing process was to assess the objective seriousness of the offence and identify any aggravating and mitigating factors. His Honour found that the robbery offence involved a threat to use actual violence in that the respondent ran at the victim with the hammer raised above his head. His Honour accepted that this would have caused significant fear in the victim that the hammer was about to be used to assault him. His Honour considered that this made the offence more serious than one where the offender was armed with an offensive weapon which was a mere element of the offence. Accordingly, his Honour found as an aggravating factor that this offence involved a specific threat to use the hammer to injure the victim.
His Honour then made the following findings: "Secondly in relation to aggravating factors, I note that the offender has a record of previous convictions for offences of a similar nature. In February 2014 he was sentenced to imprisonment for a number of robbery offences and for an offence of aggravated assault with intent to rob. Thirdly I note that the robbery offence was committed while the offender was on conditional liberty, having been released to parole only about six weeks earlier on 29 April 2018 in relation to a sentence for the offences of steal property in dwelling house and take and drive conveyance." (Sentence judgment 3.6)
When considering mitigating matters, his Honour said: "In terms of matters going to mitigation I take into account that there is evidence of remorse in that firstly, the offender told the psychologist who prepared a report for the purposes of these proceedings that he "feels like a scumbag" for having threatened the victim with a hammer and expressed concern for the psychological impact his offending may have had. … As to the offender's prospects of rehabilitation and likelihood of reoffending it is difficult to conclude with confidence that he is unlikely to reoffend, given his history and the fact that the robbery was committed while he was on parole. Nonetheless the offender did show some degree of insight into his behaviour when he gave evidence. … As I have said, this shows in my view some degree of insight, and provides some hope that, especially with some further maturity, the offender will turn his life around and stop committing offences. I note also that he has the continued support of his partner and his grandmother. Overall I think there is some prospect of rehabilitation although it is difficult to attach a lot of weight to these prospects given the offender's history and the fact that any expressed change of attitude is of relatively recent origin." (Sentence judgment 3.9 - 4.8)
Having reviewed those matters, his Honour assessed the robbery offence as "being just below the midrange of objective seriousness". (Sentence judgment 3.9)
His Honour then took into account "subjective matters" as follows: 1. The respondent had a deprived background. He was taken into State care when he was eight years old. His father was absent from his early life and his mother abused drugs and died from a drug overdose when the respondent was fourteen years of age. His Honour took this into account in accordance with Bugmy v The Queen [2013] HCA 37; 249 CLR 571. His Honour was, however, mindful of the competing factor that the respondent's impulsive behaviour meant that the protection of the community also deserved weight. 2. While the psychologist opined that the respondent met the criteria for a generalised anxiety disorder with panic attacks, his Honour did not attach "any significant weight to this given the diagnosis was not made by a psychiatrist and there was no suggestion of a connection between the disorder and the offending". (Sentence judgment 5.8) 3. The respondent's past drug use was taken into account as part of his "general background" but was not treated as a mitigating factor. 4. The respondent's brother was in custody for a driving offence which resulted in the death of a young child. The respondent gave evidence that he had been subjected to threats from other inmates as a result and had to change correctional centres. His Honour commented: "Nonetheless I accept that he has in the past been subject to threats and that this has led to some hardship in that it has been more difficult for him to form relationships with other inmates and staff in a stable placement. It is reasonable to assume that these threats may continue into the future although I am not able to form any firm view as to the impact that this may have on the offender's custodial experience. I do however have regard to the difficulties he has already experienced in custody and that he may in future experience although I give less weight to future potential difficulties given the speculation involved." (Sentence judgment 6.5)
The sentencing judge made a finding of special circumstances due to "the additional risk to the offender's safety while in custody due to his brother's offence and also the desirability of there being a lengthy period of supervision on parole" (Sentence judgment 7.7).
The Crown representative on sentence conceded that it was open to his Honour to find special circumstances but submitted that "such a finding doesn't need to be overly generous since the offender has had the benefit of such findings in the past and has still re-offended." (Sentence transcript 26.4.19 at 61).
The Crown also accepted that it was open to his Honour to find that some threats had been made to the respondent on account of his brother's offending and that this might be taken into account in terms of his custodial situation to date.
The respondent had been released to parole six weeks before the commission of the current offences. His Honour backdated the commencement of sentence for the armed robbery offence (and the Form 1 offences) to 18 June 2018, which was the same date that parole was revoked. The sentence of imprisonment for which parole was revoked, due to the commission of these offences, was imprisonment of 16 months with a non-parole period of 4 months. As a result, the balance of parole was served entirely concurrently with the index sentence and the respondent will serve only 8 months imprisonment solely referable to the current offending.
The sentencing judge referred briefly to the guideline judgment of this Court in Regina v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111; 46 NSWLR 346 ("Regina v Henry"): "Turning then to the guideline judgment in the Court of Criminal Appeal decision in Henry v R which is of some relevance and indicates that for a typical offence of robbery of this kind a head term of between 4 and 5 years will generally be appropriate. In the instant case involving Mr Chandler many of the common elements referred to in Henry are present although it cannot be said that this offender has no or little criminal history which is a matter that does not assist him." (Sentence judgment 7.3)

DPP's submissions

Although the DPP relied upon a single ground of appeal, it particularised four errors which gave rise to a sentence which was manifestly inadequate: 1. His Honour's assessment of the objective seriousness of the offence. 2. The finding of "special circumstances" in part on the basis of future threats in custody. 3. The reduction of the non-parole period to 41.6 per cent of the head sentence. 4. Commencing the index sentence on the same date as the revocation of the respondent's parole.
In relation to the first matter, the DPP submitted that apart from the threat to use actual violence in the robbery the matters taken into account by way of both aggravation and mitigation by his Honour were matters personal to the respondent and not matters which should properly have been taken into account when assessing objective seriousness. Those matters were the respondent's record of previous convictions, that he was on conditional liberty at the time of the offending, that there was evidence of remorse and that there were some prospects of rehabilitation and a possibility of him not re-offending. His Honour also took into account the support provided to the respondent by his partner and grandmother.
The DPP submitted that by grouping these subjective matters together when considering objective seriousness meant that his Honour gave little consideration to those matters when considering the respondent's subjective case.
The DPP submitted that this was apparent when one considered how his Honour took into account the guideline judgment in Regina v Henry. In that judgment, the existence of an offender's previous criminal record was an important consideration. The DPP submitted that that matter was not given appropriate consideration by his Honour (at [24] hereof).
On that issue, the DPP specifically referred to the oft quoted passage from Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 at 477-478: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
The DPP submitted that the overall non-parole period was plainly unjust resulting in a sentence that was manifestly inadequate. The DPP submitted that this resulted from a combination of reasons, including: 1. the extent of the finding of special circumstances resulting in a non-parole period which was only 41.6 per cent of the head sentence; and 2. backdating the sentence to commence on the same date as the balance of parole.
The DPP noted that the basis for the finding of special circumstances was the respondent's safety while in custody and the desirability of there being a lengthy period of supervision on parole. The DPP further noted that the Crown's representative on sentence accepted that it was open to his Honour to find special circumstances but that "such a finding doesn't need to be overly generous since the offender has had the benefit of such findings in the past and has still re-offended".
The DPP submitted that his Honour's findings on this issue were internally inconsistent. After saying that he would give "less weight to future potential difficulties given the speculation involved" one of the two bases upon which his Honour found special circumstances was "the additional risk to the offender's safety while in custody due to his brother's offence".
While accepting that a finding of special circumstances involved an exercise of discretion by the sentencing judge, the DPP submitted that the discretion was constrained by the principle that a sentencing judge cannot reduce a non-parole period below that which is necessary to reflect the purposes of sentencing, including the objective seriousness of the offence and the offender's rehabilitation and subjective circumstances (Caristo v R [2011] NSWCCA 7 at [27]). The DPP submitted that a non-parole period is imposed to reflect that period justice requires an offender to serve in custody (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]).
The DPP noted that the respondent had been released to parole only six weeks before the commission of the current offences. The DPP further noted that the backdating of the commencement of the sentence for the armed robbery offence to 18 June 2018 meant that the balance of parole was served entirely concurrently with the index sentence and resulted in the respondent serving only 8 months imprisonment solely referrable to the current offences. The DPP submitted that such backdating was unduly lenient and contributed to the manifest inadequacy of the sentence.
The DPP submitted that it was well settled that a non-parole period needed to reflect all the objective and subjective circumstances of the index offence, including the objective gravity of the offence and the need for general deterrence. On that issue, the DPP relied upon R v GWM [2012] NSWCCA 240 where Johnson J (with whom McClellan CJ at CL and Bellew J agreed) said: "118 As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]."
The DPP submitted that the conclusion that the sentence is manifestly inadequate was reinforced when one had regard to the Form 1 offences. When sentencing the respondent for the armed robbery offence, the three Form 1 offences were to be taken into account with a view to increasing the penalty that would otherwise be appropriate. This was done by greater weight being given to considerations of personal deterrence and the community's entitlement to extract retribution (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42]).

Respondent's submissions

The respondent submitted that the assessment of objective seriousness was "quintessentially" an evaluative exercise to be undertaken by the sentencing judge (Mulato v Regina [2006] NSWCCA 282 at [37], [46]). He submitted that in the present case the sentencing judge did not err in his assessment of objective seriousness despite his erroneous use of aggravating and mitigating factors in his assessment.
The respondent submitted that while his Honour may have incorrectly referred to matters personal to him as part of his consideration, in assessing the objective seriousness of the offences the DPP made no submission as to what specific effect this error played in the sentencing discretion. The respondent submitted that his Honour's assessment of "just below the midrange of objective seriousness" was justified given the low level of planning and the impulsive nature of the offence. The respondent submitted that the use of a hammer as opposed to a potentially more threatening weapon and the fact that the value of the stolen items was relatively small also provided support for that proposition. The respondent submitted that in general terms the robbery was amateurish and impulsive with no physical violence, albeit there was a real threat of it.
The respondent submitted that although his Honour may have incorrectly referred to his criminal history when assessing the offences' objective seriousness, it did not necessarily follow that his Honour gave little weight to that history when determining the sentence to be imposed. The respondent submitted that while it was true that his Honour did not give a great deal of specific attention to the Regina v Henry judgment, nor to the Crown's submissions on sentence, that finding did not support the DPP's overall submission that the sentence was manifestly inadequate. The respondent submitted that while it was incorrect for his Honour to take a number of aggravating and mitigating factors into account in his assessment of the objective seriousness of the offence, consideration of those matters was nonetheless relevant to the correct assessment of the appropriate overall penalty. The respondent submitted that these errors did not lead to an assessment of the objective seriousness which was in error and that the sentence itself was not one that clearly demonstrates error.
In relation to the backdating of the sentence, the respondent submitted that the effect of subs 47(3) and (4) of the Crimes (Sentencing Procedure) Act provides a sentencing court with a wide discretion as to the commencement date of a sentence which was required to be served consecutively, or partly consecutively, upon some other sentence, as occurred here. The respondent submitted that the backdating of a sentence to commence on the same date that an offender is returned to custody for breaching parole was entirely discretionary and not controversial. On that issue, the respondent relied upon the observations of Simpson J in Callaghan v R [2006] NSWCCA; 160 A Crim R 145 at [22]-[23]: "22 ...There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole."
The respondent submitted that the length of the non-parole period was also a matter within the discretion of the sentencing judge and represented the minimum period which an offender must spend in custody for the particular offence he or she committed. The respondent accepted that the risk of re-offending was a factor which must be taken into account in setting that minimum term.
The respondent accepted that the sentence for these offences clearly resulted in a degree of concurrence with the existing parole periods, i.e. the parole period for the previous offence expired on 29 April 2019 and the non-parole period for the robbery offence expires on 17 February 2020. As a result, 10 months of the sentences were concurrent and 9 months and 18 days purely referable to these offences.
The respondent accepted that in arriving at a conclusion about concurrency, his Honour was required to consider the overall criminality involved in all of his offences, including the sentences he was still serving. That consideration had to be undertaken in order to determine what, if any, downward adjustment was necessary in the further sentences imposed on him.
The respondent accepted that his Honour had not expressed any justification or explanation for the sentence structure. The respondent nonetheless submitted that the backdating of the sentence commencement date to the date on which the offender was bail refused was clearly within the available discretion of the sentencing judge and, having found special circumstances, where the respondent was serving the balance of an existing sentence, totality of the sentence was a proper consideration.
The respondent noted that ss 44(2) and 44(2B) of the Crimes (Sentencing Procedure) Act provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the term of the sentence unless there is a finding of special circumstances. Relying upon Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 the respondent submitted that a finding of special circumstances is a finding of fact involving an exercise of a discretionary judgment with which this Court would be slow to interfere.
The respondent relied upon the observations of Spigelman CJ (with whom the other members of the Court agreed) in Regina v Simpson where his Honour said: "73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."

Principles relating to Crown appeals

A claim of manifest inadequacy requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single "correct sentence, and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach" (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 538 [58].)
Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306, per McHugh J).
The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act, the court retains a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] "Green and Quinn v R"). The Crown must negate any reason why the residual discretion of this Court not to interfere, should be exercised: Griffiths v The Queen [1977] HCA 44; 137 CLR 293; Green and Quinn v R at [36].
However, it was also observed in Green and Quinn v R, at [42], that cases might arise where the court concludes that the inadequacy of the sentence appealed from is so marked, that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case the court is justified in interfering with the sentence.
A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error (Dinsdale v R at [6]). In R v Harris [2015] NSWCCA 81 Adamson J (with whom Basten JA and RA Hulme J agreed) observed that where there is in substance only one ground of appeal, namely, manifest inadequacy, identification of specific error is not required. However, her Honour also observed that identification of specific error may assist to explain why a sentence is manifestly inadequate.
The principles relevant to Crown appeals were set out by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows: "52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a "limiting purpose" for such appeals and, by contrast with the Court's jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is "plainly unjust" by reason of its manifest inadequacy) for the mere "correction of error in the individual sentencing proceedings" - Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8). 53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is "plainly unjust") the Crown must: (i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]); (ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]); (iii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed). … 55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R."
The present Crown appeal is brought for the purpose of engaging the discretion of this Court to intervene and set aside the sentence imposed on the respondent because it is "plainly unjust", being so far below the range of sentences that could be imposed, and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders for violent crimes.
The DPP's submission that his Honour erroneously took into account in his assessment of objective seriousness matters personal to the respondent is clearly made out and has in effect been conceded by the respondent. That having been said, the ultimate conclusion as to objective seriousness arrived at by his Honour, i.e. "just below the midrange of objective seriousness", was well open to him had he taken into account objective matters relevant to the seriousness of the offending. Accordingly, it cannot be said that his Honour's assessment of the objective seriousness of the offending was in error.
As the DPP pointed out, his Honour's approach of taking into account subjective matters when considering the objective seriousness of the offending gave rise to other problems in the sentencing process. Because his Honour took into account the respondent's criminal record, prospects of re-offending and rehabilitation when assessing objective seriousness, he did not again refer to or take those matters into consideration in the sentencing process. These were, however, important matters which needed to be properly taken into account and given appropriate weight when assessing the respondent's subjective case. Had those matters been taken into account at that stage of the sentencing process it would have been clear that leaving aside the application of the Bugmy principle, the respondent's subjective case was weak.
As his Honour set out in his analysis and conclusions in relation to these subjective matters, the respondent's criminal history, which was replete with crimes of this kind and which on occasions had been committed while he was on conditional liberty, meant that his prospects of rehabilitation were modest and there was a considerable risk of re-offending. His second hand complaint to the psychologist was the only evidence of remorse and was given only moderate weight by his Honour.
It was properly conceded by counsel for the respondent that his Honour provided no explanation for the structure of the sentence ultimately imposed by him. Such an explanation was necessary because of the very substantial leniency which the sentence gave rise to, i.e. not only was there considerable concurrency with the parole period fixed for the earlier offending but the statutory ratio of the non-parole period to the parole period for the index offence was reduced from 75 per cent to 41 per cent. None was forthcoming.
An examination of the structure of the sentencing judgment shows that it comprises a series of findings, none of which are particularly favourable to the respondent, followed by a conclusion which does not seem to follow from those findings.
It is true that the respondent was able to rely upon the Bugmy principle in that he undoubtedly had a difficult upbringing which would have contributed to his past and present offending. In fact, the application of the Bugmy principle was the only significant mitigatory factor available to the respondent. Even the application of that principle was qualified by his Honour because of the need to protect the public from the impulsive nature of the respondent's offending.
In the sentence proceedings, the Crown referred his Honour in some detail to the guideline judgment in Regina v Henry. The effect of the Crown submission was that many of the factors identified in that decision applied to the respondent and that in a number of respects the respondent's offending was more serious than that of the hypothetical offender in Regina v Henry. The Crown submitted that his Honour should use the narrow range specified in Regina v Henry as the starting point and then increase the sentence to have regard to particular aggravating features which affected the respondent. That submission was properly made and reflected the conclusions of Spigelman CJ (with whom Wood CJ at CL, Newman and Simpson JJ agreed) where his Honour said: "162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: (i) Young offender with no or little criminal history (ii) Weapon like a knife, capable of killing or inflicting serious injury (iii) Limited degree of planning (iv) Limited, if any, actual violence but a real threat thereof (v) Victim in a vulnerable position such as a shopkeeper or taxi driver (vi) Small amount taken (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall. 164 There are two principal reasons why a sentencing range is appropriate for this offence: (i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise. (ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi). … 169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point. 170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. … 209 I reiterate that the process of imposing penalties for the commission of crimes, has its primary deterrent effect through its operation as a structural phenomenon of the criminal justice system. That is not capable of being assessed from the perspective of what particular penalties, or increases in penalty, may have in the case of individuals. 210 In any event, the reasons for the guideline propounded in this judgment do not relate merely to an increase in the size of penalty. The guideline is particularly directed to overcoming the very significant proportion of cases in which non custodial sentences have been imposed. Henceforth, such sentences should be restricted to the exceptional cases to which the authorities have always referred. 211 The deterrent effect of a sharp reduction in the proportion of non-custodial sentences which, as a result of this judgment, become custodial sentences, may well be much more significant than the deterrent effect from an increase in the level of custodial sentences. …"
Earlier Spigelman CJ said in relation to guideline judgments generally: "29 A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with a guideline is not itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such departure. … 31 Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction."
Despite that guidance and the submissions of the Crown on sentence, his Honour's treatment of the Regina v Henry guideline judgment was brief and somewhat dismissive. Most particularly, as indicated above, no explanation was offered for why if his Honour had taken as the starting point a sentence of between four and five years, such a substantial reduction in the non-parole period as occurred here, was appropriate or justified.
The above quotations from Regina v Henry raise another issue in this Crown appeal. An important principle to which the courts should have regard when sentencing is that of deterrence, both personal and general. It is not without significance that his Honour made no mention in his sentence judgment of the application of that principle. It is clear that general deterrence was relevant for the reasons referred to by Spigelman CJ and in this case personal deterrence was also important given the respondent's criminal record and the nature of the offending which constituted that record. It is not at all clear that his Honour considered the issue of deterrence.
Another reason why it was necessary for his Honour to explain why it was that the non-parole period should be reduced in the way in which it was, is that in sentencing the non-parole period must be the minimum period of actual incarceration which is appropriate to the offending (Power v The Queen [1974] HCA 26; 131 CLR 623 at 627; Regina v Simpson at [57]). This is particularly so when regard is had to the reasons given by his Honour for his finding of special circumstances. As the DPP submitted, those reasons appear to conflict with earlier findings, i.e. the speculative nature of future difficulties which might be encountered by the respondent while in custody and the desirability of there being a lengthy period of supervision on parole in circumstances where considerable doubt surrounded the respondent's rehabilitation and the propensity to re-offend.
It is for the above reasons that I have concluded that the sentence imposed by his Honour was unreasonable or plainly unjust. This was not only because the sentence ultimately imposed was inadequate but because of the failure by his Honour to reconcile his unfavourable findings in relation to the respondent with the significant features of leniency which the sentence contained. Put another way, one has a series of adverse and equivocal findings in relation to the respondent which are not reflected in the sentence ultimately imposed.
This is one of those matters where not only is the sentence unreasonable and plainly unjust but there has been an erroneous application of the principles to be taken into account when sentencing convicted persons.
That does not end the matter. The DPP must also satisfy the court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised in the present case (CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 per French CJ and Gageler J at [33] and per Kiefel, Bell and Keane JJ at [54]; Bugmy v The Queen at [24]).
In support of its position, the DPP relied upon the following matters: 1. the imposition of a manifestly inadequate sentence was not caused by any conduct of the Crown at first instance; 2. the notice of appeal was filed six weeks after sentence and the hearing of the appeal took place within four months of the sentence being handed down; 3. the respondent's earliest date for release from custody is still five months away; 4. there is no post-sentence evidence to suggest that the court should exercise its residual discretion not to intervene. On the contrary, there have been breaches of gaol discipline by the respondent (affidavits of Susanne Porter of 10 September 2019 and of Phillippa Winston, 27 September 2019).
The DPP submitted that the sentence, particularly the length of the non-parole period and the date of its commencement, significantly failed to reflect the criminality encompassed in the respondent's offending. The DPP submitted that there was a need to give effect to both general and special/specific deterrence in circumstances where the offence was committed while on parole and when the respondent had a history of like offending. The DPP relied upon the principle that in making a finding of special circumstances the sentencing judge must not reduce the non-parole period below that which is necessary to reflect the purposes of sentencing (Thach v R [2018] NSWCCA 252 at [42] R A Hulme J - Bathurst CJ and Davies J agreeing).
The respondent submitted that it was not sufficient that this Court, had it been exercising the sentencing discretion afresh, would have imposed a different sentence (Bugmy at [24]). The respondent submitted that the Bugmy principle is particularly relevant in this case because of the effect of the respondent's difficult upbringing on him and the fact that: "The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence notwithstanding that the person has a long history of offending".
The respondent submitted that his Honour was well aware of the importance of the Bugmy principle and that its application to the facts of this case provided a compelling reason why this Court should exercise its residual discretion not to interfere with the judgment.
I have concluded that the Court should intervene and proceed to re-sentence the respondent. The appeal raises issues of principle which will assist in the governance and guidance of courts having the duty of sentencing convicted persons.
No challenge has been made to any of the specific findings by his Honour. Rather, the challenge to the sentence judgment is to its failure to properly reflect those findings. Accordingly, I have taken into account the findings by his Honour in my independent re-exercise of the sentence discretion.
Taking into account that the objective seriousness of the offending was just below midrange and having regard to the subjective features of the respondent's case, in particular the application of the Bugmy principle and allowing for the 25 per cent discount for the early plea, I would impose a sentence of imprisonment with a non-parole period of 2 years and 8 months commencing 18 June 2018 and expiring 17 February 2021 with a balance of term of 1 year and 10 months expiring 17 December 2022, i.e. a total sentence of 4 years and 6 months.
It follows from the proposed sentence that I have made a finding of special circumstances in favour of the respondent which is reflected by a ratio of 60 per cent between the head sentence and the non-parole period. I regard the period of 2 years and 8 months commencing 18 June 2018 as the minimum period which justice requires the respondent to serve in custody.
The orders which I propose are: 1. Crown appeal allowed. 2. The sentence imposed by his Honour Judge Bourke SC at the Parramatta District Court on 30 May 2019 in respect of the respondent is quashed. 3. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 2 years and 8 months, commencing 18 June 2018 and expiring 17 February 2021, with a balance of term of 1 year and 10 months expiring 17 December 2022. 4. The respondent will be eligible for parole on 17 February 2021.
BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hoeben CJ at CL, which comprehensively sets out the relevant facts and principles and relieves me from doing so.
I agree that, substantially for the reasons given by Hoeben CJ at CL, the sentencing process miscarried and the appeal must succeed.
For my part, having regard on the one hand to the sentencing judge's finding (which I would not disturb) that the offending fell just below the mid-range of objective seriousness and occurred while he was on parole, the range described in the guideline judgment in Regina v Henry, [1] and the need to take into account the Form 1 matters; and on the other to the respondent's plea of guilty, and the powerful Bugmy considerations [2] in his favour (notwithstanding the absence of other subjective factors), I would not regard the head sentence of four years' imprisonment as manifestly inadequate. However, the ultimate result of the generous allowance made for "special circumstances" (such that the non-parole period was only 41.6% of the head sentence), and the backdating of the sentence to date from when he was taken into custody upon revocation of parole for his earlier sentence, would have seen him serve only eight or nine months referable solely to the subject offences, which is manifestly less than the minimum period of actual incarceration appropriate to the offending.
Notwithstanding his Bugmy case, the respondent's claim to "special circumstances" was much diminished by the fact that he had previously had the benefit of such a finding. And while it is correct, as the respondent submitted, that the backdating of a sentence to commence on the same date that an offender is returned to custody for breaching parole is discretionary and a sentencing court has a wide discretion as to the commencement date of a sentence which was required to be served consecutively, or partly consecutively, upon some other sentence, [3] this was not the first occasion on which the respondent had breached his parole, and he was entitled to little leniency in this respect.
Thus while I might not have interfered with the head sentence of four years, my allowance for special circumstances would have been significantly moderated, to about 60%, and I would not have backdated it to commence when his parole was revoked but only to six months thereafter, so that it was concurrent with the previous sentence only for its last three months. The result would have been a non-parole period referable exclusively to this offending of about two years. The orders proposed by Hoeben CJ at CL achieve substantially the same effect - namely a non-parole period referable exclusively to this offending of a little under two years.
I therefore agree with the orders proposed by Hoeben CJ at CL.
CAVANAGH J: I agree with the orders proposed by Hoeben CJ at CL and with his Honour's reasons.

Endnotes

[1999] NSWCCA 111; 46 NSWLR 346.
Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [22]-[23] (Simpson J). 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: 21 October 2019

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