R v Flowers [2014] ACTCA 13 - ACTCA 2014 case summary — Zoe

R v Flowers [2014] ACTCA 13 - ACTCA 2014 case summary — Zoe

[47]

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.
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] HCA 64; (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] HCA 18; (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] HCA 45; (2010) 242 CLR 520 at 535; [43].
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.
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.
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] VSCA 102; (2007) 16 VR 269 at 274-5; [23]- [26], this is relevant to sentencing such offenders.
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] HCA 39; (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.
The reflection of these matters results in the proposed non-parole period being, in my view, just and appropriate.

[154]

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.
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 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.
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.
The principles governing Crown appeals against sentence are well established and were conveniently summarised by Refshauge J in R v TW[52], drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke[53]. It is unnecessary to repeat everything his Honour said in that case, but three points are apposite.[54]
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.
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.
Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error (the 'residual discretion').
The residual discretion has survived the abolition of 'double jeopardy'.[55] As the Victorian Court of Appeal observed in DPP (Vic) v Karazisis: