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(3) A non-parole period of three years is fixed. IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2013 ) No. SCA 60 of 2013 AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2010 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN Appellant AND: FLOWERS Respondent

Judge: Refshauge, Penfold and Ross JJ Date: 8 May 2014 Place: Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

1. I have had the considerable advantage of reading the reasons for judgment of Ross J. I agree with them and the orders he proposes, though I would wish to add a few remarks of my own.

2. I agree that it is not appropriate to assess whether a non-parole period has been appropriately set by mere attention to the mathematical relationship it bears to the head sentence. That not only fails to give effect to the obligation of sentencers to set a sentence by an instinctive synthesis of all the relevant factors and circumstances, as required by the High Court in decisions such as Wong v The Queen (2001) 207 CLR 584 at 611; [75], it fails to recognise the particular requirements that the setting of a non-parole period requires the sentencer to take into account. See Bugmy v The Queen (1990) 169 CLR 525 at 536-7. It is also, as Ross J notes, expressly disapproved by the High Court in Hili v The Queen (2010) 242 CLR 520 at 535; [43].

3. In this case, the non-parole period that Ross J proposes should be set, while somewhat less than would ordinarily be set for the head sentence imposed, is nevertheless just and appropriate, especially having regard to the factors his Honour mentions, namely Mr Flowers’ limited criminal history, his prospects of rehabilitation, his plea of guilty and remorse and his brain injury. I would, however, briefly comment on three matters.

4. In the first place, it recognises the seriousness of the offences and the circumstances under which they were committed, especially that of aggravated robbery, as must be required on setting a non-parole period.

5. Secondly, it makes due allowance for the mental condition of Mr Flowers which, on the basis of Dr Sullivan’s Report, which was unchallenged, was relevant to the commission of the offences. As decided by the Victorian Court of Appeal in R v Verdens (2007) 16 VR 269 at 274-5; [23]-[26], this is relevant to sentencing such offenders.

6. Finally, it appears to me that it is highly likely that Mr Flowers will, at the end of his incarceration still require drug rehabilitation, which may need to be undertaking in a residential facility. He appears to have, as Ross J has noted, some positive prospects of achieving such rehabilitation. This cannot be guaranteed while he is in custody (see Muldrock v The Queen (2011) 244 CLR 120 at 140; [57]) and may have to be a condition of his parole. That involves an element of deprivation of liberty which is also relevant to the length of the non-parole period.

7. The reflection of these matters results in the proposed non-parole period being, in my view, just and appropriate. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge. Associate: Date: 8 May 2014 IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2013 ) No. SCA 60 of 2013 AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2010 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN Appellant AND: FLOWERS Respondent

Judge: Refshauge, Penfold and Ross JJ Date: 8 May 2014 Place: Canberra

REASONS FOR JUDGMENT

PENFOLD J:

8. I have read the judgment of Ross J in draft. I agree with his Honour, and for the reasons that his Honour gives, that the non-parole period fixed by the sentencing Judge was manifestly inadequate. The non-parole period was extremely lenient having regard to the nature and circumstances of the offending and even having regard to the respondent’s subjective circumstances. This is not to say that such a short non-parole period could never have been justified, only that the sentencing Judge did not justify it in this case, and his Honour’s reference to the appropriate disposition being “a just and appropriate sentence” was not a substitute for reasons explaining why such a short non-parole period was just and appropriate.

9. I also agree that a new non-parole period of three years, still a lenient non-parole period on a head sentence of six and a half years, would satisfy both the purposes of a non-parole period as explained by Ross J and the need for the respondent to spend a substantial period on conditional liberty while being supported in relation to his significant rehabilitation needs.

10. Finally, I am satisfied that the finding of manifest inadequacy in this case requires the respondent to be re-sentenced, and that there is no basis in the Crown’s conduct of the proceedings to justify consideration of any available “residual discretion”. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold. Associate: Date: 8 May 2014 IN THE SUPREME COURT OF THE ) No. ACTCA 32 of 2013 ) No. SCA 60 of 2013 AUSTRALIAN CAPITAL TERRITORY ) No. SCC 239 of 2010 ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: THE QUEEN Appellant AND: FLOWERS Respondent

Judge: Refshauge, Penfold and Ross JJ Date: 8 May 2014 Place: Canberra

REASONS FOR JUDGMENT ROSS J: Introduction

11. On 28 May 2013 Higgins CJ imposed the following sentences on the respondent:

(i) for the offence of recklessly inflict grievous bodily harm, imprisonment for two years and six months; (ii) for the offence of assault occasioning actual bodily harm, imprisonment for six months, to be served wholly concurrently with the offence of recklessly inflict grievous bodily harm; and (iii) for the offence of attempted aggravated robbery, imprisonment for five years.

12. The sentences for recklessly inflict grievous bodily harm and assault occasioning actual bodily harm were ordered to be served cumulatively as to eighteen months upon the sentence for attempted aggravated robbery, resulting in a head sentence of six and a half years imprisonment. His Honour imposed a non-parole period of eighteen months.

13. This is a Crown appeal in which sole ground of appeal is that the sentence was manifestly inadequate. The following particulars are set out in the notice of appeal in support of that ground of appeal: (i) The sentence imposed in respect of the charge of recklessly inflict grievous bodily harm was manifestly inadequate; (ii) The sentence imposed in respect of the charge of assault occasioning actual bodily harm was manifestly inadequate; (iii) There was an inappropriate concurrency in the sentences, in particular his Honour erred in making the sentence in respect of the charge of assault occasioning actual bodily harm wholly concurrent with the sentence imposed in respect of the charge of recklessly inflict grievous bodily harm; (iv) The total head sentence was manifestly inadequate; (v) The non-parole period was manifestly inadequate as to its length; (vi) The non-parole period was manifestly inadequate as a proportion of the head sentence.

14. The appellant has abandoned particulars (i) to (iv) and seeks to press only (v) and (vi). The essential complaint is that the non-parole period was ‘inappropriately low’; lacks an appropriate relationship to the head sentence, and fails to reflect the minimum period of actual incarceration required after taking into account the purposes of sentencing.

15. It is convenient to deal first with the background facts before turning to the considerations relating to the appeal and the setting of a non-parole period. His Honour summarised the sets of facts for both offences in his sentencing reasons, no challenge was made to that summary. The 7 March 2010 incident - (SCC 239 of 2010)

16. At approximately 12:50 am on 7 March 2010, the respondent encountered Messrs McQualter and Murphy on Condamine Street, Turner. All three were intoxicated and the respondent had not met either McQualter or Murphy before. After a brief conversation, a scuffle broke out between the respondent and Murphy. McQualter intervened and pulled Murphy away from the respondent. McQualter and Murphy then walked away from the respondent.

17. A short time later, the respondent caught up with McQualter and Murphy. The respondent produced a Swiss Army knife and stabbed McQualter in the back, causing a five centimetre laceration to his lower back for which McQualter was admitted to the emergency department at the Canberra Hospital. This act constituted the charge of assault occasioning actual bodily harm.

18. A fracas ensued between Murphy and the respondent, during which the respondent stabbed Murphy a number of times causing life-threatening injuries, including stab wounds to the neck, chest and stomach and an eviscerated small bowel which protruded through an abdominal wound. Murphy’s small bowel was damaged to the extent that it had to be surgically removed and the scarring from the surgical procedures is likely to be permanent. The acts of the respondent during the fracas constituted the charge of recklessly inflict grievous bodily harm.

19. The respondent pleaded guilty to the following three charges (SCC 239 of 2010 and SCC 246 of 2012); (i) (SCC 239 of 2010) a charge that on 7 March 2010, the respondent recklessly inflicted grievous bodily harm on Paul Murphy, contrary to s 20(1) of the Crimes Act 1900; (ii) (also SCC 239 of 2010) a charge that on 7 March 2010 the respondent assaulted Robert McQualter and thereby occasioned to him actual bodily harm, contrary to s 24(1) of the Crimes Act 1900; and (iii) (SCC 246 of 2012) a charge that on 31 October 2012, the respondent attempted to commit robbery and at the time had an offensive weapon with him, contrary to s 310(1)(b) of the Criminal Code 2002.

20. In his sentencing reasons Higgins CJ recounts the facts and makes a number of observations about the respondent’s mental state at the time the offences were committed: All persons, it appeared, had been at least drinking if not consuming other substances, but certainly Mr McQualter and Mr Murphy had been drinking. The offender, it appeared from later statements, had apparently taken some drugs as well. They walked off and the offender followed them. For some reason Mr Murphy attacked the offender. There was no apparent reason for that and they fell and wrestled. Mr McQualter intervened, pulling Mr Murphy off the offender. He and Mr Murphy then walked off and the offender after a short lapse of time followed them, and, again for some unknown reason, produced a knife. It was a Swiss Army Knife. The offender stabbed Mr McQualter in the back with it. Now this was obviously an irrational act because Mr McQualter had been the person who assisted him by taking Mr Murphy off him. Mr Murphy then grappled with the offender and was himself then stabbed a number of times. Mr McQualter intervened and subdued the offender by punching him and pushing him to the ground. The offender when later spoken to by police, was clearly in a dazed state. Mr Murphy’s wounds were quite serious, Mr McQualter’s less so. The offender had no recollection of the matter subsequently, that and the charged indictment permit him to be 1 treated as making an early plea of guilty. 1 Appeal Book 14 and 15

21. The respondent was arrested for the offences of 7 May 2010 on that day and charged in the Magistrates Court with the offences of intentionally inflicting grievous bodily harm on Murphy and intentionally inflicting actual bodily harm on McQualter. The respondent pleaded not guilty to each charge and was committed for trial on 24 June 2010 (SCC239 of 2010). The Crown presented an indictment containing four 2 counts, two of which were alternatives as follows: First Count—Intentionally inflicting actual bodily harm on Robert McQualter. Second Count—Assault occasioning actual bodily harm on Robert McQualter. Third Count—Intentionally inflicting grievous bodily harm on Paul Murphy. Fourth Count—Assault occasioning actual bodily harm on Paul Murphy.

22. On 9 July 2012, which was to be the first day of his trial, the respondent entered pleas of guilty to assault occasioning actual bodily harm and recklessly inflicting grievous bodily harm. The plea was accepted by the Crown in full satisfaction of the indictment.

23. The respondent appeared for sentencing before Higgins CJ on 5 October 2012 in respect of the offences committed on 7 May 2010. His Honour then made a deferred sentence order for six months to allow the respondent to attend Odyssey House residential rehabilitation program. Pursuant to the order he was released on bail on condition that he attend Odyssey House as soon as he was able, and remain in the program.

24. His Honour indicated the sentence he had in mind, being two years imprisonment on the recklessly inflict grievous bodily harm charge and twelve months on the assault

2 Appeal Book 24 occasioning actual bodily harm charge, the sentences to be concurrent. His Honour continued: the issue is what part of that you would serve or whether you should be released immediately upon a good behaviour order. Should your attendance at Odyssey House be satisfactory, and the result be, in turn satisfactory, then I would think it appropriate to impose a good behaviour order rather then require you to serve 3 a term of imprisonment.

25. Some seven months earlier, in March 2012 the respondent had obtained admission to Odyssey House where he had remained until 13 August 2012. He was discharged due to his forming a relationship while in the program and Odyssey House imposed a 3 month ‘cooling off’ period during which he was not eligible to return to Odyssey House. When the respondent appeared for sentence in the Supreme Court on 5 October 2012 the cooling off period had not concluded and he was ordered by the Court to attend Odyssey House ‘as soon as he is able to’ and to resume their 4 5 program. It was contemplated that this would happen on 11 November 2012. However, on 31 October 2012 the respondent committed the attempted aggravated robbery offence and was arrested on that date. He has remained in custody since that 31 October 2012. The 31 October 2012 incident - (SCC 246 of 2012)

26. At approximately 8:45pm on 31 October 2012, the respondent entered the Delissio Brassiere in Braddon holding a syringe filled with red liquid. The respondent demanded money from staff and attempted to open the restaurant’s cash register before being challenged by the manager and fleeing. The respondent was followed by the restaurant’s manager who identified the respondent to police and he was arrested shortly afterwards. At the time of the offence, the restaurant was trading

3 Appeal Book 48 4 Appeal Book 47 at line 42 5 Presentence Report, Appeal Book 137 and a number of staff and patrons were present. This act constituted the charge of aggravated robbery.

27. The respondent was charged with the attempted aggravated robbery in the Magistrates Court on 1 November 2012 and entered a plea of guilty on 3 December 2012. The matter was then committed to the Supreme Court for sentencing.

28. All matters, that is the attempted aggravated robbery and the matters that had been the subject of the deferred sentence order SCC 239 of 2010, were listed for sentence on 7 February 2013 before Higgins CJ. The following exhibits were tendered: 6 (i) Statement of facts (SCC 246 of 2010) 7 (ii) Updated Pre-Sentence Report 8 (iii) CADAS report 9 (iv) Letter from the manager of Canberra Recovery Services 10

29. The Pre-Sentence Report author was also called to give evidence and the respondent also gave evidence and was cross examined.

30. The proceedings were then adjourned to allow a psychiatric report to be prepared by 11 Dr Danny Sullivan. On 24 May 2012, Dr Sullivan’s report (the Sullivan Report) 12 was tendered, as well as a report from Karalika House and the matter was further adjourned to allow for consideration of the Sullivan Report. On 28 May 2012, the respondent was sentenced.

31. I now turn to the considerations relevant to the appeal and to the setting of a non-parole period.

6 Appeal Book 139 7 Appeal Book 143 8 Appeal Book 147 9 Appeal Book 150 10 Appeal Book 34 - 37 11 Appeal Book 153 12 Appeal Book 151 The Appeal

32. The appellant does not allege that his Honour made any specific error (such as acting upon the wrong principle; allowing extraneous or irrelevant matters to guide or affect him; mistaking the facts or not taking into account some material consideration), rather it is submitted that his Honour made an error of the last kind 13 mentioned in House v King, in that it was to be inferred from the result that there was a ‘failure properly to exercise the discretion which the law responses in a court of first instance.’ In essence it is submitted that the non-parole period is ‘manifestly inadequate.’ 14

33. As was stated in Dinsdale v The Queen ; ‘[m]anifest inadequacy of sentence, like 15 manifest excess, is a conclusion’ and, as the plurality pointed out in Wong v R , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases’. Rather, as the plurality in Wong went on to say: [i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not 16 apparent from the statement of reasons.

34. The Court’s power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that his Honour’s discretion miscarried in the result, that is that his Honour imposed a sentence that was below the range of sentences that

13 (1936) 55 CLR 499 at 505 14 (2000) 202 CLR 321 at 325; See applied in Hili v The Queen [2010] HCA 45 at 49 15 (2001) 207 CLR 584 at 605 [58] 16 Ibid 17 could be justly imposed for the offences consistently with sentencing standards. In this case the Crown contends that the non-parole period was manifestly inadequate.

35. Before turning to the Crown’s submission it is convenient to deal with the considerations relevant to the setting of a non-parole period.

36. The purpose of a non-parole period was referred to by Barwick CJ and Menzies, 18 Stephen and Mason JJ in Power v The Queen , in these terms: To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum period that the judge determines justice requires that he must serve having regards to all the circumstances of the offence. 19 In R v Strestha the majority said: “The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of the sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority, the parole system allows for a review of the offender’s case after he has actually served a significant part of the custodial sentence, for the purposes of decided whether he should be released on parole at that stage.”

37. Sentencing judges have a wide discretion in the setting of a non-parole period. The sentencing task is to set an ‘appropriate relationship’ between the head sentence and

17 Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; 306 per McHugh J; Lacey v Attorney General (Qld) (2011) 242 CLR 573 at 581 [15] - [16] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen [2013] HCA 37 at [25] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ 18 (1974) 131 CLR 623 at 629 19 (1991) 173 CLR 48 at 67-68 20 21 the non-parole period . In Inge v The Queen Kirby J discussed the requirement of a ‘proper proportionality’ between the non-parole period and the head sentence, in these terms; In the ordinary case, where a head sentence comprises a determinate period in the prison, the non-parole period will constitute a substantial part of that sentence. . . The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. However, even in the majority of cases where the head sentence is one for a determinate period it is recognised that proportionality is something that cannot be reduced to a mathematical formula (footnotes omitted).

38. The non-parole period of 18 months in this case reflects a period of slightly over twenty-three per cent of the head sentence. The appellant's submission is not that the proportion of head sentence constituted by the non-parole period is inappropriate by virtue of the numerical disparity alone. It is rather that the significant difference demonstrates inconsistency between the non-parole period and head sentence and it is submitted that this leads to two interrelated conclusions:

(i) the non-parole period lacked an appropriate relationship to the head sentence, meaning that one of the two terms is likely to have been inappropriate; and

(ii) in the circumstances of this matter, the non-parole period failed to require the respondent to serve the minimum time justice required.

39. It is the appellant's submission that the brevity of the non-parole period resulted in a sentence that was manifestly inadequate as it failed to properly address the purposes of sentencing in the circumstances. The general proposition advanced by the appellant is that the sentence imposed failed to properly reflect the objective

20 Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibb CJ, Wilson J agreeing; Brennan J and Sawson J making similar comments at 620 and 625 respectively. 21 (1999) 199 CLR 295 at 316 seriousness of the offending and placed undue weight on the respondent’s subjective circumstances. Four discrete points are advanced in support of this proposition:

(i) Notwithstanding the wide discretion of a sentencing judge, the requirement of an appropriate relationship between a non-parole period and head sentence will require a significant or substantial part of the sentence to be served before 22 eligibility for parole arises. (ii) The head sentence (six and a half years’ imprisonment) is characterised as ‘if anything low’ and that is said to reinforce the point about the lack of proportionality between the non-parole period and the head sentence. (iii) The respondent had ‘poor prospects of rehabilitation’ and as a consequence the appropriate weight to be afforded to rehabilitation was significantly attenuated. (iv) Despite the presence of an acquired brain injury there was no evidence to suggest that the offending conduct was caused by anything other than the respondent’s intoxication.

40. It is convenient to deal with the four discrete points before turning to the appellant’s general proposition.

41. As to the first point, I am not persuaded that the proposition advanced is a correct statement of principle. The authorities clearly speak of the need for an ‘appropriate relationship’ between the non-parole period and the head sentence. But the proposition that an ‘appropriate relationship’ requires that ‘a significant or substantial part of the sentence be served before eligibility for parole arises’, is incorrect. There is no general rule that a ‘significant’ or ‘substantial’ part of the head sentence must be served before eligibility for parole arises. While Kirby J in

22 Appellant’s summary of argument at paragraph 61. Inge speaks of the non-parole period constituting a ‘substantial part’ of the head sentence his Honour’s observation is prefaced by the words ‘in the ordinary case’. As I observe later, this is no ordinary case. The ‘appropriate relationship’ between a non-parole period and head sentence will depend on the circumstances of the particular case. The non-parole period is not to be assessed mathematically by 23 reference to some ‘norm’ or ‘usual’ ratio to the head sentence. As Gibbs CJ stated 24 in Lowe v The Queen : No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.

42. Turning to the second proposition, the appellant submits that the head sentence was ‘if anything low in the light of the objective seriousness of the offences, the generosity of the twenty per cent discount, and the failure to accumulate the two assault counts to any degree’. This submission amounts to a collateral attack on the adequacy of the head sentence in circumstances where the appellant abandoned its appeal on this issue. The appellant made no reference to comparable cases to make good its contention that the head sentence was ‘low’ and I am not persuaded that it can be so characterised.

43. As to the third point, it is submitted that the respondent had ‘poor prospects at rehabilitation’ given the length and extent of his substance abuse, his failures to address that abuse in the past and his reoffending while subject to a deferred sentence order designed specifically to address that issue. This point is related to the

23 Hili v The Queen (2010) 242 CLR 520 at 532 - 534; Muldrock v The Queen (2011) 244 CLR 120 at 131 - 132 24 Lowe v The Queen (1984) 154 CLR 606, at 610, Wilson J agreeing and Dawson J making similar comments at 625 appellant’s submission that his Honour’s consideration of the non-parole period was wrongly ‘overwhelmed by the issue of rehabilitation’.

44. It is important to observe at the outset that no submission about the respondent’s prospects of rehabilitation was put by the Crown in the proceedings at first instance. This Court is reviewing the exercise of a discretionary judgment, not conducting a rehearing of the plea. An appeal is not the occasion to revise and reformat the case presented below and an Appeal Court will not lightly entertain submissions that 25 could have been, but were not, advanced on the plea. It is sufficient to observe that absent exceptional circumstances a party will ordinarily be held to the position adopted on the plea. As the High Court held in University of Wollongong v Metwally 26 (No 2) : Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

45. There is a separate principle which is also relevant namely that the Crown is not a passive spectator to the exercise of the sentencing judge’s discretion, but has a duty to assist the sentencing judge to establish the correct foundation upon which 27 that discretion ought properly to be exercised. As the majority of the High Court 28 recently observed in Barbaro v The Queen , the role and duty of the prosecution in a sentencing hearing is:

25 DPP v Bourozikas [2009] VSCA 29, [30] (Vincent, Nettle JJA and Vickery AJA); R v CAK [2009] QCA 23 [19] (Atkinson J with whom Muir JA and P Lyons J agreed). See also, R v Casey & Wells (1986) 20 A Crim R 191, 195 (Crockett, McGarvie and Southwell JJ); DPP (Vic) v Bulfin [1998] 4 VR 114; DPP v Arvanitidis [2008] VSCA 189 [38]-[40] (Redlich JA); MacNeil-Brown [14]-[20] (Maxwell P, Vincent and Redlich JA). 26 (1985) 59 ALJR 481 at 483. Also see Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28]-[29]; Zreika v R [2012] NSWCCA 44 at [81]. 27 See Davey v R [2010] VSCA 346 [22] per Redlich JA; DPP (Cth) v Gregory [2011] VSCA 145 [76] 28 Barbaro v The Queen [2014] HCA 2 [39] per French CJ, Hayne, Kiefel, and Bell JJ ... to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases.

46. The Crown did not fulfil its duty to assist the sentencing judge to establish the correct foundation upon which the sentencing judge’s discretion could properly be exercised. On the plea the Crown made no submissions at all about the offender’s prospects for rehabilitation. Given the Crown’s silence below it should not now be permitted to submit that the offender’s prospects for rehabilitation were poor.

47. The fourth point advanced by the appellant is that there is no evidence that the respondent’s acquired brain injury was related to his offending. The Sullivan Report notes that the respondent has an acquired brain injury affecting his frontal lobes which was likely due to his history of severe polysubstance abuse. At paragraph [49] of his report Dr Sullivan states: At the time of the alleged offences on both occasions, acute intoxication was associated with impaired capacity to think clearly or make calm and rational choices, and his judgment was impaired. There was a causal association between his intoxication and the alleged offending on both occasions. He was clearly disinhibited, and his acquired brain injury is associated with a marked predisposition to disinhibition.

48. During the course of oral argument the appellant’s counsel was taken to paragraph [49] of the Sullivan Report and on that basis accepted that it was not correct to say that there was no evidence to suggest that the offending conduct was caused by anything other than the respondent’s intoxication.

49. The central proposition advanced by the appellant is that the sentence imposed failed to properly reflect the objective seriousness of the offending and placed undue weight on the respondent's subjective circumstances. I now turn to consider this proposition.

50. In determining whether the non-parole period set was manifestly inadequate we must 29 consider all of the matters that are relevant to fixing the non-parole period. To do so invariably requires an assessment of all relevant purposes of sentencing. Though the weight to be attached to these factors and the way in which they are relevant will 30 differ due to the different purposes behind each function. In Bugmy v The 31 Queen , Mason CJ and McHugh J, though dissenting in the result, said: [T]the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function. A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v. The Queen [No.2] (20), whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment. (citations omitted) 51. It also needs to be borne in mind that parole is a conditional release from custody, subject to conditions. Importantly, s 140 of the Crimes (Sentencing Administration) Act 2005 provides that while on parole an offender is taken to be under the sentence of imprisonment for which the parole was granted and not to

29 Hili v The Queen [2010] 242 CLR 5205 NOTE: Not sure of this citation? per French CJ, Gummow, Hayne, Crennan, Kiefer and Bell JJ 30 See Bugmy v The Queen (1990) 169 CLR 525 at 531-2 per Mason CJ and McHugh J. 31 Bugmy v The Queen (1990) 169 CLR 525 at 531-2 have served any period of imprisonment that remained to be served unless, relevantly, the parole ends without the parole being cancelled. Hence the effect of the cancellation of an offender’s parole is that no time spent on parole is regarded as time served in respect of his term of imprisonment. 52. In the context of this case it is likely that if the appellant was granted parole it would be to a residential rehabilitation facility. If he breached his parole - for example by leaving this facility - and his parole was ended then the period he was on parole would not count towards the completion of his head sentence, by virtue of s 140. This constitutes a powerful incentive to comply with the terms attached to parole.

53. Section 33 of the Crimes (Sentencing) Act 2005 (the Act) sets out the considerations relevant to how an offender should be sentenced, including: − the nature and circumstances of the offence; − any injury, loss or damage resulting from the offence; − the effect of the offence on victims; − the degree of responsibility of the offender for the commission of the offence; − a plea of guilty by the offender; − the cultural background, character, antecedents, age and physical or mutual condition of the offender; − whether the offender is voluntarily seeking treatment for any physical or mental condition that may have contributed to the offence; − whether the offender has demonstrated remorse; and − current sentencing practice.

54. In his sentencing reasons his Honour did not specifically address why he set a non-parole period of eighteen months. The appellant submits that it was incumbent upon his Honour to provide reasons for what it described as a ‘significantly short’ non-parole period. It was submitted that the following summary of the relevant 32 principles by Callaway JA in DPP (Vic) v Josefski are apposite to that instant case: 1. When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given. 2. A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive. 3. Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny. 4. The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner's rehabilitation through conditional freedom. 5. The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release. 6. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case. 7. It follows from 5 and 6 that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence. 8. All the relevant factors have to be taken into account. They are many and varied, but they include- (a) That a non-parole period has a penal element; (b) That, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and (c) That the prisoner's prospects of rehabilitation are almost always a significant consideration.

55. It may be accepted that the non-parole period fixed in this case was unusual and that reasons for taking that course should have been given. The absence of reasons specifically addressing what may be characterised as a very short non-parole period relative to the head sentence invites appellate scrutiny. It is for that reason that we have carefully examined the material before his Honour.

32 (2005) 158 A Crim R 185 at 194-195

56. Before turning to the material before his Honour it is important to note that while his Honour did not specifically address the reasons for fixing an eighteen month non-parole period, the following extracts from his Honour’s reasons may be said to be relevant to this issue in that they relate to the respondent’s prospects for rehabilitation: He has made some attempts at ceasing drug use, including a number of admissions to rehabilitation programs. Odyssey House staff report that he had responded well to their program until distracted by the female resident, but they would be glad to have him back. In my view the appropriate disposition is that, with a just and appropriate sentence, the offender complete the Solaris program at AMC, and depending on that being successfully treated, he should then be enabled to be considered for parole. Entry into Odyssey House might well then be appropriate or, perhaps, to Karralika. In respect of the sentences to be imposed I have taken account of a 20% discount approximately for each period of imprisonment that is represented by these sentences... I will just say to you Mr Flowers, you obviously have some difficulties adjusting to your drug and alcohol problems and quite clearly after I have released you on the last occasion on a Deferred Sentence Order I expected that you might well have been able to come to terms with that by attendance at the Odyssey House. Unfortunately, and I think it apparent that your problems overwhelmed you and you broke the conditions of that Deferred sentence order I think there is definitely hope for you but you plainly need a great deal of therapy and I am hoping you will get that in AMC, the first phase of it being the Solaris Program, and after you complete that program and the non-parole period you can then apply for parole, and, if that parole is granted , it may well be on terms, as I said, that you attend on a longer rehabilitation program, but this is clearly necessary for you to get away from this pattern of offending you have just fallen into. Because, as I have said, you did not offend much before 2010, you seemed to manage what was obviously a very serious drug and alcohol problem, you seemed to manage it without offending, and that has fallen apart since that time. Hopefully you can get on track without the dependence on drugs and alcohol which is always a risk factor for you.

57. The proceedings at first instance took place over a number of days: 5 October 2012; 7 February 2013; 24 and 28 May 2013. The proceedings on 7 February 2013 were adjourned to 24 May so that the respondent could be assessed by Dr Sullivan. The Sullivan report was tendered on 24 May and the proceedings were then adjourned to 28 May to enable his Honour to have a ‘closer look’ at the report. The respondent also gave evidence in the proceedings before his Honour on 28 May 2013. It is apparent from the respondent’s evidence that he had no recollection of the offending but did have some insight into the impact of his offending on those affected. The respondent was sentenced on 28 May.

58. At the time of offending, the maximum penalty for the offence of recklessly inflict grievous bodily harm was ten years imprisonment; for assault occasioning actual bodily harm it was five years; and for aggravated robbery is was twenty-five years.

59. It was apparent from his Honour’s reasons that he had regard to the objective seriousness of the offending and the fact that the aggravated robbery was committed while the offender was released on a deferred sentence order. In particular, his Honour said: Aggravation stems from the serious injuries suffered by Mr Murphy in particular, but also the injuries suffered by Mr McQualter and the terror caused to staff and patrons at the Delissio Brasserie ... In respect of the first of the matters, he was released on 5 October 2012 on a deferred sentence order ... Clearly he failed to adhere to the terms of his release. The second offence is also aggravated by his breach of the conditions of that release ...

60. The material before his Honour included the following: 33 (i) Statement of facts (SCC 239 of 2010) 34 (ii) Criminal history 35 (iii) Medical report of Dr Vanita Parekh 36 (iv) Statement of Robert McQualter 37 (v) Statement of Elisha Norrie 38 (vi) Pre-Sentence Report 2012 33 Appeal Book 112 34 Appeal Book 115 35 Appeal Book 116 36 Appeal Book 120 37 Appeal Book 128 39 (vii) Statement of facts (SCC 246 of 2012) 40 (viii) Updated Pre-Sentence Report 2013 41 (ix) CADAS Report 42 (x) Letter from Manager of CRS 43 (xi) A Psychiatric Report of Dr Danny Sullivan

61. As previously mentioned, the respondent has an acquired brain injury affecting his frontal lobes which is likely due to his history of severe polysubstance abuse.

62. One of the distinguishing features of this case is the respondent’s relatively short criminal history, given his extended polysubstance abuse. In the proceedings at first instance the Crown characterised the respondent’s criminal history as ‘almost no criminal record’ and ‘virtually unrecorded’. Other than traffic offences, he was charged with illegal use of a motor vehicle in 1990, which was dismissed with a caution, and was convicted of drug possession in 2005, for which he was fined $150. There is no prior offending involving violence. During the course of the sentencing hearing his Honour observed that the respondent’s extensive polysubstance abuse has not resulted ‘in the kind of criminal record that others similarly afflicted seem to possess’. His Honour indicated that the respondent was entitled to some leniency on 44 account of his limited criminal history.

63. His Honour characterised the fact that the respondent had managed his drug and alcohol problem for about twenty years without offending as ‘amazing’, ‘quite extraordinary’ and ‘unusual’.

38 Appeal Book 134 39 Appeal Book 139 40 Appeal Book 143 41 Appeal Book 147 42 Appeal Book 150 43 Appeal Book 153 44 Appeal Book 15.9

64. The respondent pleaded guilty to the offences and his Honour also found that the 45 respondent was remorseful for his actions. As I have mentioned, the respondent’s evidence showed that he had some insight into the impact on his offending on those affected.

65. Various aspects of the evidence before his Honour emphasised the need for long term residential rehabilitation. The updated pre-sentence report of 5 February 2013 states: Mr Flowers appears to have reacted in a self indulgent and self destructive way to his discharge from the Odyssey House program. His inability to continue his rehabilitative journey in the community underpins the need for him to undertake a long term residential program with a supported return to the community at its completion. As noted in the Pre Sentence Report of September 2012 Mr Flowers is assessed as high risk of further offending and will remain so until he addresses his substance abuse issues. Mr Flowers did demonstrate his ability to commit to a residential program during the five months he was at Odyssey House. His immediate relapse and subsequent offence make it clear that any release to the community should be directly to a residential program with orders he complete the program, if he is to reduce his risk of further offending.

66. The author of the first pre-sentence report, Ms Bartlett, gave evidence about contacting Odyssey House to discuss the respondent’s progress during his time there: They said that while he was there he was very engaged. They said that the only issue they had was the relationship he had formed with another 46 resident. They said they would be very glad to take him back.

67. Ms Bartlett supported the respondent’s intention to return to complete the Odyssey House program: I think it would be very beneficial for him . . . if he can address both his substance abuse and mental health issues at the same time, that would 47 significantly reduce his risk of reoffending.

45 Appeal Book 16.3 46 Appeal Book 36 lines 3-5 47 Appeal Book 36 lines 35-40

68. The CADAS Assessment report of 22 January 2013 states: Mr Flowers presented as transparent and motivated to commit to long term residential treatment as indicated by taking his own initiative to contact treatment service providers prior to CADAS involvement. CADAS can confirm that while Mr Flowers was in the community, after being exited from Odyssey House he was seeking to return to residential treatment.

69. Dr Sullivan report refers to the respondent’s ‘severe, relapsing polysubstance dependence’ and notes that ‘[h]is is an unusually severe case’. Dr Sullivan’s recommendation is set out at paragraph [50] of his report: Mr Flowers does not require acute psychiatric follow up but may benefit from ongoing neuropsychiatric review in the future. He is stable on the current medication and there is no benefit to altering it. His short, medium and long term needs are to remain abstinent from substance use. To this end I concur that the only measure is long term residential rehabilitation.

70. During the course of oral argument the appellant did not demur from Dr Sulivan’s recommendation and accepted that the only viable rehabilitation strategy was long term residential rehabilitation. It was also conceded that this was relevant to the 48 determination of the length of the parole period.

71. As to current sentencing practice, the appellant made no reference to comparable cases in support of its contention that the non-parole period fixed by his Honour was manifestly inadequate. However, I note that in two of the authorities cited in Josefski (which was referred to by the appellant) the Victorian Court of Appeal fixed a non-parole period that was relatively short, in proportion to the head sentence. In 49 Tsiaras the court sentenced the offender to a total effective sentence of eighteen months and fixed a non-parole period of six months. The court had regard to the offender’s schizophrenic illness and that prison would disrupt his medical treatment and would weigh more heavily on him than it would on a person in normal health.

48 Transcript p 16 49 [1996] Vic Rep 26 50 In Bullen the court sentenced the offender to a total effective sentence of two years’ imprisonment with a non-parole period of eight months. In doing so the court had regard to the fact that the offender had good prospects of rehabilitation; enjoyed a level of support in the community; had insight into his behaviour and would find it very difficult to adapt to a prison environment. As Callaway JA put it: The prolonged incarceration of a vulnerable young man in an adult prison will not promote his rehabilitation, in which the State, and not just the appellant, has an interest. We should fashion a sentence that will not impede, or set back, the rehabilitation that the appellant has achieved. I agree with the judge that that sentence should include a shorter than usual non-parole period, or to put the matter in positive terms, an extended 51 period of supervision on parole.

72. I do not refer to Tsiaris and Bullen because they are comparable to the present case but rather to demonstrate that the particular circumstances of a case may warrant the fixing of a very short non-parole period (both in absolute terms and as proportion of the head sentence). These cases serve to illustrate the proposition that the ‘appropriate relationship’ between a non-parole period and the head sentence will depend on the circumstances of the particular case.

73. There are a number of factors which support the imposition of a shorter than usual non-parole period. One of the distinguishing features of this case is the respondent’s relatively short criminal history, given his extended polysubstance abuse. This factor is relevant to specific deterrence and to the respondent’s prospects for rehabilitation. Given his recent experience at Odyssey House - where he was very engaged - I would assess his prospects of rehabilitation as positive, taking into account his previous unsuccessful attempts to deal with his polysubstance abuse. The fact that he pleaded guilty, was remorseful and had some insight into the impact of his offending on his victims all tell in favour of a degree of leniency. It is also 50 [2005] VSCA 206 51 Ibid at [15] relevant that the respondent has an acquired brain injury affecting his frontal lobes which is likely due to his history of severe polysubstance abuse. But the factors supporting a short non-parole period must be balanced against the objective seriousness of the offending, the fact that the aggravated robbery was committed while the respondent was released on a deferred sentence order and considerations of general deterrence.

74. A non-parole period has a penal element and must bear an appropriate relationship to the head sentence. The imposition of an eighteen month non-parole period in this case undermines the objective of general deterrence and fails to adequately reflect the objective seriousness of the offending. Looking at all of the circumstances of this case I am satisfied that the non-parole period fixed was so low as to be manifestly inadequate. In my view a non-parole period of three years would have been appropriate. In light of that conclusion a question arises as to the proper disposition of the appeal , bearing in mind that it is a Crown appeal.

75. The principles governing Crown appeals against sentence are well established and 52 were conveniently summarised by Refshauge J in R v TW , drawing on the analysis 53 by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke . It is unnecessary to repeat everything his Honour said in that case, but three points are 54 apposite.

76. First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.

52 (2011) 6 ACTLR 18 at [4] - [6] 53 [1996] 2 VR 501 at 522 54 See The Queen v CV [2013] ACTCA 22 at [9] - [12]

77. Secondly, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King.

78. Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error (the ‘residual discretion’). 55

79. The residual discretion has survived the abolition of ‘double jeopardy’. As the Victorian Court of Appeal observed in DPP (Vic) v Karazisis: We find it unnecessary to determine whether the term ‘double jeopardy’ in both ss 289 and 290 is to be confined to ‘anxiety and distress’, in the sense spoken of in JW or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion. That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the Court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in the House sense, and the Court is satisfied as well that a different sentence ought to have been passed... Among the factors that might be relevant to the exercise of the Court’s discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown... The right given to the Crown to appeal against sentence is not designed to permit it to raise, for the first time, matters that should have been ventilated 56 at first instance ... 57

80. I note that in R v Chatfield this Court held that the approach adopted by the High 58 Court in Bui v DPP should be adopted in the Australian Capital Territory and as a consequence double jeopardy was abolished as a consideration in resentencing.

55 R v JW [2010] NSWCCA 49 at [95], [205] and [209]; DPP v Karazisis [2010] VSCA 350 and Munda v Western Australia [2013] HCA 38 at [64] - [78] and [88] - [90] 56 Ibid at [99]-[100] and [104]. Cited with approval in Munda [2013] HCA 38 at [72] 57 [2012] ACTCA 32

81. The conduct of the Crown is among the considerations which may lead an appellate court to dismiss a Crown appeal notwithstanding that the sentence is manifestly 59 60 inadequate . As Charles JA observed in Clarke : An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentence process. In this connection, the conduct of the Crown at the original sentence proceedings may be a matter of significance.

82. As mentioned earlier, the Crown did not fulfil its duty to assist the sentencing judge to establish the correct foundation upon which the sentencing judge’s discretion could be properly exercised. In particular the Crown made no submissions at all on the plea about the offender’s prospects for rehabilitation. This Court is not conducting a rehearing of the plea and an appeal is not the occasion to revise and reformat the case presented below. The Crown’s failure to run a proper case on the plea has been addressed in the appeal by not permitting the Crown to now advance a submission not put below. Given that this issue has been addressed I am not persuaded that the Crown’s conduct was so egregious as to warrant the exercise of the residual discretion. Nor was any other basis for the exercise of the residual discretion advanced.

58 (2012) 284 ALR 445 59 Munda v Western Australia [2013] HCA 38 at [72] per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ, and [90] per Bell J 60 [1996] 2 VR 501 at 522

83. I would uphold the appeal and resentence the respondent by fixing a non-parole period of three years. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ross. Acting Associate: Date: 8 May 2014 Counsel for the appellant: Mr J White Solicitor for the appellant: Director of Public Prosecutions (ACT) Counsel for the respondent: Mr R Livingston Solicitor for the respondent: Rachel Bird & Co Date of hearing: 14 February 2014 Date of judgment: 8 May 2014