R v Gray

Court of Criminal Appeal (NSW)|2018-03-26|Before: Bathurst CJ, Schmidt J, Hamill J

Judgment

BATHURST CJ: On 2 May 2017, Mr Christopher Kevin Gray (the respondent) pleaded guilty to the charge of assault with intent to rob while armed (the First Count) and to the charge of robbery armed with an offensive weapon (the Second Count), both contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty in respect of each count is 20 years imprisonment.
On 17 November 2017, the respondent was sentenced on the First Count to a non-parole period of three years, to commence on 30 April 2016 and to expire on 29 April 2019, with an additional term of one year to commence on 30 April 2019 and to expire on 29 April 2020. On the Second Count, he was sentenced to a non-parole period of two years and six months to commence on 30 April 2017 and to expire on 29 October 2019, with an additional term of three years and six months to commence on 30 October 2019 and to expire on 29 April 2023. In sentencing the respondent on the Second Count, the sentencing judge took into account an offence on a Form 1, namely, to be carried in a conveyance without the consent of the owner, contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW). Both sentences were arrived at after a discount of 25% for an early plea of guilty.
The respondent was thus sentenced to an effective term of seven years to commence on 30 April 2016 and expire on 29 April 2023, with a non-parole period of three years and six months expiring on 29 October 2019.
At the time of the offences in question, the respondent was on parole for three previous offences of armed robbery. The sentence imposed in respect of those offences was a term of imprisonment for five years commencing on 16 December 2012 with a non-parole period of three years expiring on 15 December 2015. The respondent had been released to parole on 15 December 2015. His parole was revoked on 19 May 2016 as from 30 April 2016. Following his arrest for the present offences, he was imprisoned with bail refused from 30 April 2016.
The Crown has appealed against the sentences pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal is that the sentences were manifestly inadequate.
There was no dispute about the facts of the offences to which the respondent had pleaded guilty or the material relied upon to establish the respondent's subjective circumstances. The following description of the facts is largely taken from the remarks of the sentencing judge.

The factual background

The offence the subject of the First Count took place in the evening of 30 April 2016, after the victim had reversed his car into the driveway of his house at Annandale. As he was walking towards his front door, he turned around after hearing a noise and saw the respondent standing near the car. The respondent was wearing a "grey hooded jumper with the lower part of his face concealed by a white piece of fabric and was wearing gloves".
The respondent approached the victim and pulled a chisel-headed hammer out of his bag. The respondent demanded the victim's keys while standing at arm's length from him, and the victim held them out and said "take them". The respondent then demanded the victim's wallet while holding the hammer out in front of his body. The victim refused, ran away and then called the police. The respondent fled the scene, but was subsequently arrested later that evening.
So far as the Second Count is concerned, between 11:30pm on 9 March 2016 and 10:30am on 10 March 2016, a Porsche was stolen from an address in Newtown. At about 4:40pm on 17 March 2016, the Porsche stopped near the intersection of King Street and Pitt Street in Sydney. The respondent got out of the vehicle, which was being driven by an accomplice. The respondent ran into a Montblanc store at the intersection. At the time, he was wearing a grey hooded jacket, yellow gloves and was holding a bag containing a wooden-handled hammer.
The respondent entered the store and said "I've got a gun, open the safe". The store attendant had difficulty opening the cash register, and the respondent then yelled "It's too late, I'm going to pull out a gun now". He then walked around behind the cash desk and waited for the cash register to open. Once it was open, he grabbed approximately $200 in cash and placed it into his bag.
The respondent then went to a glass cabinet containing watches and said "Open the drawers for me now". The store attendant went into the back of the store to get a key. On the way back, she heard glass smashing and saw that the respondent had smashed the watch counter and was grabbing multiple watches. The respondent then ran out of the store. CCTV footage showed the respondent getting into the vehicle and fleeing the scene. It was agreed that the total value of the watches stolen was $80,620, but that there was damage to other watches and glass cabinets estimated to a value of $232,820.

The subjective circumstances

The respondent gave evidence at the sentencing hearing. His evidence was accepted by the sentencing judge. He stated that he had had issues with drugs over the years and had been in gaol on a number of occasions. He said that, at the time of the offences, he was using methylamphetamine, or "ice". He said that he had previously used heroin and cannabis and had commenced using amphetamines at the age of 19, but that it was not until about the age of 34 that he began to use ice.
The respondent gave evidence that he wanted to stop committing offences and was concerned about the effect that it was having on his father. He said that he had undertaken a number of courses in relation to managing relationships, problem solving and anger management.
The respondent's evidence was that he was a "wing sweeper" in prison, which was a position of trust. He described himself at the sentencing hearing as needing to learn how to "live life on the outside". He accepted that he had previous opportunities on parole, but that he had found it very difficult to take advantage of them.
In his evidence, the respondent accepted that there was some assistance available to him, but he stated that it was not enough. He said that he had contacted community corrections at the time of "falling off the rails" on the last occasion. He had also taken steps to register for the National Disability Insurance Scheme (NDIS) and had recently been told that his application was successful. The respondent told the Court that he found life very stressful in the community and had difficulty coping.
The respondent's father also gave evidence at the sentencing hearing. He said that he knew that the respondent was looking for support and needed help to readjust. The respondent's father said that he intended to move to the north coast when he retired in about three years, and that he was hopeful that, should the respondent come to live with him on the north coast, he would be away from his associates and reminders of his previous life that had led to his offending conduct.
At the sentencing hearing, the respondent also relied on two psychological reports, one prepared by Ms Julie Dombrowski dated 27 October 2017, and the other prepared by Ms Rima Nasr dated 28 October 2010. He also relied on an intellectual assessment by Anne Langford which had been prepared in 1997.
In her report, Ms Dombrowski had noted that the respondent's criminal history went back to the age of 17 and that there had been a progressive increase in the level of violence used in his offending since 1998. Her report stated that the respondent grew up in the Hills District of Sydney with his parents and two younger siblings. His mother experienced depression and was an alcoholic. His parents separated when he was six years old and he had always remained under his father's care. Her report stated that the respondent had not previously resided independently in the community and that he relied on others to cook, shop and perform complex household tasks, such as doing the laundry.
The report stated that the respondent had struggled at school as a result of his intellectual ability. He left high school in year 8 and was unable to read on leaving school or complete mathematical calculations beyond simple addition or subtraction. On leaving school, he completed two and a half years of his apprenticeship as a spray painter before serving his first term of imprisonment in 1996. Ms Dombrowski stated that it was estimated that the respondent had lived in the community for a total of about 18 months to two years over the past 21 years.
The report stated that, at about the age of 20, the respondent commenced sporadic methylamphetamine use and that the respondent acknowledged the he engaged in regular methylamphetamine use in the months leading up to his current incarceration. At the age of 19, he started injecting heroin, and he had been on a methadone programme since the age of 30. The report stated that the respondent started drinking and smoking cannabis at about the age of 16. It stated that the respondent was diagnosed with a development disability when he came into contact with corrective services in about 1997. It stated that he had been diagnosed with anxiety, panic attacks and depression in about 2007 while in custody. It stated that he had been housed in an assisted support unit in Long Bay, given his previously diagnosed intellectual disability.
The report stated that psychometric testing revealed an overall level of intellectual functioning that was extremely low. It stated, however, that while the respondent clearly has "limited intellectual and literacy/numeracy skills", the extent of those limitations remained unclear and "more detailed testing" was required. However, it described him as presenting as a "psychologically vulnerable individual with an anxious/fearful predisposition who has difficulty solving problems (because of his limited intellectual skills) and regulating his emotions". It described him as "vulnerable to social exploitation because of his limited intellectual skills" and stated that he used illicit substances "in large part to manage his negative emotions".
Reliance was also placed on the report of Ms Nasr. The sentencing judge noted that, in 2010, Ms Nasr made a series of detailed recommendations as to a support structure that needed to be put in place to ensure the respondent's success in the community. He found that not many of those matters had in fact been put in place.

The remarks on sentence

The sentencing judge set out the facts and the respondent's subjective circumstances in the manner which I have outlined above. He accepted as accurate what was contained in the reports of Ms Dombrowski and Ms Nasr and concluded that the time the respondent had spent in prison over the past 21 years with his limited vocational skills indicated a need for additional support.
The sentencing judge concluded that the objective seriousness of the First Count was in the "lower range", and stated that while "there was some threat of violence there was no actual violence" and that the offence was not planned and was probably a result of the respondent's level of intoxication.
In relation to the Second Count, the sentencing judge said that he took into account the matters referred to in the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (the Henry guideline judgment). He noted that the respondent had a "significant criminal record" and could not be described as a young person. He noted that the "incursion into the premises occurred for some period of time" and that, while he told the shop assistant that he had a gun, he made no attempt to produce any item that looked like a gun. He said that the hammer which the respondent had was "clearly to be used to smash the cabinets".
The sentencing judge accepted that there was "some considerable planning involved" in the matter as there had been at least some liaison with his accomplice for him to be waiting in the stolen getaway car. He noted that the offence was committed for financial gain in order to support a drug habit and described the offences in the "mid-range of objective seriousness".
The sentencing judge stated that general deterrence was "of significance" and that people should understand from penalties given for these types of offences that "they will meet with significant punishment [if] they intend to commit offences of this type". He said that specific deterrence also "loomed large" having regard to the respondent's extensive criminal record. He said, however, that the respondent perhaps had "better prospects of rehabilitation" than in the past, but that whether those opportunities will be taken advantage of was a matter "still to be seen".
The sentencing judge noted, as an aggravating factor, that the offences were committed while the respondent was on conditional liberty. He noted that the respondent had a significant record of prior convictions, which was a further aggravating factor to be taken into account.
The sentencing judge noted that the respondent had expressed remorse. He accepted the respondent's expressions of remorse as genuine, and described him as a "fairly impressive witness". The sentencing judge made a finding of special circumstances in relation to the respondent on the basis of his need for support for his mental conditions, as well as to minimise the effects of institutionalisation that had occurred over many years. As I indicated, the sentencing judge allowed a discount of 25% for the plea of guilty.
In those circumstances, the sentencing judge imposed the sentences the subject of this appeal.

The ground of appeal

The sole ground of appeal was that the sentence was manifestly inadequate. The Crown sought to argue the appeal by reference to three matters: first, "the complete backdating of the commencement date for the sentences has contributed to a manifestly inadequate sentence"; second, that there was "an excessive allowance for special circumstances, resulting in manifestly inadequate individual non-parole periods and a manifestly inadequate effective non-parole period"; and third, what was described as a "significant disparity between the sentences actually imposed and what is necessary to reflect the objective gravity of the offences".
In particularising the ground of appeal in this manner, the Crown stated that it was not seeking to raise separate grounds of appeal. The Crown recognised manifest inadequacy is "a conclusion and does not depend [on] the establishment of specific error". In considering the specific matters raised by the Crown, it must be borne in mind that the task for the Court is to consider whether the sentence arrived at was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22].

The relevant legislation

To understand the basis of the first matter relied on by the Crown, namely, the backdating of the sentence, it is necessary to have regard to the provisions of s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW). At the relevant time, it was in the following terms: "47 Commencement of sentence (1) A sentence of imprisonment commences: (a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or (b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. (4) The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender: (a) will become entitled to be released from custody, or (b) will become eligible to be released on parole, having regard to any other sentence of imprisonment to which the offender is subject. (5) A direction under subsection (2)(b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if: (a) a non-parole period has been set for that other sentence, and (b) the non-parole period for that other sentence has expired, and (c) the offender is still in custody under that other sentence. (6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires."
At the hearing of this appeal, it was common ground between the parties that the latest commencement date available to the sentencing judge to commence the sentence was the date on which the sentence was imposed, namely, 17 November 2017.

The Crown

In relation to the first particular, the Crown referred to the fact that the sentencing judge backdated the commencement of the sentence to the date of his arrest, notwithstanding that his parole had been revoked. The revoked parole period was 1 year 7 months and 16 days commencing on 30 April 2016.
The Crown pointed out that, in these circumstances, the period of revoked parole was "wholly subsumed" by the non-parole period in respect of the sentence for the offence of assault with intent to rob (the First Count). The Crown also pointed out that the three armed robberies in respect of which parole was revoked were also committed while the respondent was on parole.
The Crown accepted, referring to Callaghan v The Queen [2006] NSWCCA 58 (Callaghan), that the commencement date for an offence committed in breach of parole was a "discretionary matter, taking into account the period and timing of the revoked parole period". However, the Crown submitted in the present case the respondent had an "appalling record of breach of parole for the same type of offending and the revoked parole period ought to have been treated as being wholly referable to that earlier offending".
The Crown acknowledged that it was open to the sentencing judge to backdate the sentence, notwithstanding the revocation of the parole for the previous offence, but submitted that, in the present case, there should at least have been "some accumulation on the unexpired period of parole".
In relation to the second particular, namely, the excessive allowance for special circumstances, the Crown submitted in its written submissions that, even if it was open to find special circumstances and make some adjustment on the basis of the accumulation of the sentences, the Court would intervene where "it is demonstrated that the non-parole period is manifestly inadequate". The Crown submitted that the adjustment in the ratio to "just 50 per cent of the effective head sentence was unduly generous", having regard to the respondent's record of breach of parole for similar offending.
At the hearing, the Crown accepted that the suggestion by Ms Nasr as to the regime that should be put in place to assist the respondent on his previous release to parole had not been adopted, as I have noted at [23] above. The Crown accepted that, in those circumstances, it was open to the sentencing judge to find special circumstances, but maintained that the adjustment to the statutory ratio meant that the effective non-parole period was manifestly inadequate. The Crown did accept that accumulation warranted some adjustment to the ratio.
Finally, in relation to the third particular, the Crown submitted that the armed robbery offence was "much more serious than a common offence of armed robbery" referred to in the Henry guideline judgment. In relation to the Second Count, the Crown submitted that the respondent was not young, that the planning of the offence included a getaway car, wearing a hooded jacket and gloves and taking a bag containing the hammer, and that there were "serious threats" to a staff member and a "significant amount" of stolen property and damage to the store. In relation to the First Count, the Crown noted that the respondent concealed the lower part of his face with a piece of fabric, was wearing gloves, pulled out a hammer from the bag and demanded the keys to the victim's vehicle.
The Crown emphasised the fact that the offence was committed while the respondent was on parole. The Crown noted the extensive criminal record of the respondent, which included a conviction for an armed robbery offence in 1999, a conviction for five robbery offences in 2002 and 2003, and six more in 2009. The Crown also noted his parole had been revoked in 2000 and 2009, as well as the revocation consequent upon the commission of the offences in question in the present case.
So far as the residual discretion was concerned, the Crown pointed to the fact that there was no excessive delay involved in the filing of the notice of appeal, that the imposition of a manifestly inadequate sentence was not caused or perpetuated by representatives of the Crown, and that the non-parole period was not due to expire until 29 October 2019.
The Crown contended that there was nothing in the psychological reports which would indicate that the respondent's intellectual disability in any way contributed to the commission of the offence. The Crown also submitted that the particular subjective circumstances of the applicant did not mean that the case was an inappropriate vehicle for giving guidance to the courts on the appropriate manner to exercise the discretion to backdate.

The respondent

Counsel for the respondent pointed out that the sentencing judge had found that the offence of assault with intent to rob was at the "lower end" of objective seriousness. He submitted that this finding was justified having regard to the level of planning, the impulsive nature of the offence and the fact that the respondent ran off with nothing but a set of car keys. He submitted that the sentence was much higher than one which might be expected for an offence which fell at the lower end of objective seriousness. He also pointed to the fact there was an early plea of guilty. In these circumstances, he submitted that the sentence imposed for the First Count was a heavy one.
In relation to the Second Count, counsel for the respondent noted that the element of planning was the arrangement of a getaway car. He submitted that this was "hardly exceptional" and "not indicative of substantial planning". He accepted that the value of the property stolen, the fact that the respondent was on parole, and his substantial criminal record, were relevant to the sentence to be imposed. However, he submitted that a sentence of six years after a 25% discount for the early plea of guilty could not, on a comparison with the Henry guideline judgment, be said to be manifestly inadequate, even for an offence which fell in the "middle of the range" of objective seriousness.
In relation to the non-parole period, counsel for the respondent emphasised that the overall non-parole period was 50% of the overall sentence, which he submitted was not such as to make the non-parole period manifestly inadequate.
In that context, counsel for the respondent referred to the evidence relating to the respondent's medical condition, which established that he was suffering from a development disability which put him "in an extremely low range of intellectual functioning". He referred to what was said by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54] (Muldrock), to the effect that a low level of intellectual capacity will in most cases "substantially lessen the offender's moral culpability for the offence" and that the "retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community".
Equally, counsel for the respondent accepted the same factors may increase the need for community protection and specific deterrence. Counsel for the respondent also referred to the "guarded hope" by the sentencing judge about the respondent's prospects of rehabilitation, and noted that the sentencing judge accepted the respondent's evidence that he wished to do something about his drug offending.
Counsel for the respondent submitted that, in comparing the respondent's case to the hypothetical offender in the Henry guideline judgment, there were some cases where the respondent's position was worse than that of the offender, but on the other side, was the fact that he suffered from cognitive impairment and his early guilty plea.
Counsel for the respondent also referred to the fact that the respondent self-reported a breach of parole on 28 April 2016 to the effect that he had relapsed into using methylamphetamine and wanted to enter a residential rehabilitation programme. He submitted that this was consistent with the respondent seeking to rehabilitate himself.
Counsel for the respondent also submitted that one factor relevant to the decision to backdate was whether the parole was revoked simply because of the fresh offending or for any other reason. He submitted the report on the revocation of the parole stated the parole was also revoked because of the respondent's self-reported methylamphetamine use. However, I think that there is little doubt that the armed robbery offence of itself would have led to revocation of parole.
Counsel for the respondent also submitted that an approach which did not backdate the sentence during the revocation of parole took no account of the fact that the respondent "but for" the further offences could have had his position reviewed and subsequently be granted parole again during the course of the balance of his sentence.
Counsel for the respondent submitted that his client's case was "reasonably unique", referring to his intellectual disability and the fact that he was heavily institutionalised. He referred to the summary of the respondent's formative years by Ms Nasr, namely, that the respondent described his father as being verbally loud and abusive to his stepmother and that he hated being at home so he was often out of home. He noted that the respondent had a mother who had effectively abandoned him at the age of five and that he left school in year 8.
Counsel for the respondent also submitted that, in dealing with the residual discretion, having regard to the respondent's intellectual disability, dysfunction and clear history of institutionalisation, the case was not an appropriate vehicle to provide guidance to lower courts in respect of the issues in question in the present case.

Consideration

It is important to bear in mind that the task of the Court is to determine whether the effective sentence ultimately imposed for the two offences is manifestly inadequate: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] (Bugmy). It is not enough that the Court, had it been exercising the sentencing discretion afresh, would have imposed a different sentence: Bugmy at [24]; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. Nor is it enough that the Court might have structured the sentence differently. Thus, while it is important to consider the individual sentences imposed for each offence, the ultimate focus must be on the effective sentence.
The structure of the sentences is of importance in the present case as the manner in which they were structured was somewhat unusual. In respect of the First Count, there was no departure from the statutory ratio of 75% in setting the non-parole period, while the ratio for the Second Count was reduced to 41%. However, the ratio in respect of the overall sentence was 50%.
I do not think that the individual head sentences imposed were manifestly inadequate. The sentencing judge assessed the First Count at the "lower range" of objective seriousness and the armed robbery offence at the "mid-range". The assessment of objective seriousness is "quintessentially" an evaluative exercise to be undertaken by the sentencing judge: Mulato v The Queen [2006] NSWCCA 282 at [37], [46]. As Basten JA pointed out in Lee v The Queen [2016] NSWCCA 66 at [8], it is "similar to the exercise of a discretionary power, with respect to which this Court will be slow to intervene".
In the present case, I do not think the sentencing judge erred in his assessment. The First Count was a somewhat amateurish and impulsive attempted robbery, no physical violence was in fact affected and nothing of particular value was stolen. So far as the Second Count was concerned, it was plainly more serious, but it seems to me that it was correctly categorised as falling in the "mid-range". In reaching this conclusion, I have taken into account the fact that the offences were committed while the offender was on parole.
In these circumstances, I do not think that the head sentence for the individual offences or the effective head sentence were manifestly inadequate. It must be remembered that they were arrived at after a discount of 25% for an early plea of guilty. Taking that into account, they could not be said to be "unreasonable or plainly unjust", particularly having regard to the respondent's subjective circumstances.
In reaching this conclusion, I have had regard to the Henry guideline judgment. It has not affected my conclusion. I should add that I do not regard it as a productive approach to consider each element of the hypothetical offender referred to in Henry at [162] and assess what may be said to be positive or negative deviations of the circumstances set out in that paragraph, compared with the circumstances of the offender being sentenced in determining the sentence. A similar approach in relation to standard non-parole periods was held to be incorrect in Muldrock, overruling R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131.
The real difficulty in the present case arises from the significant reduction in the statutory ratio for the non-parole period coupled with the significant backdating of the sentence in circumstances where the respondent was imprisoned consequent upon revocation of his parole. It was not disputed that the question of special circumstances and the length of the non-parole period is a matter within the discretion of the sentencing judge: R v GWM [2012] NSWCCA 240 at [118]-[119] (GWM). So also is the backdating of the sentence where the offender is serving a sentence consequent upon revocation of parole: Callaghan at [22]; White v The Queen [2016] NSWCCA 190 at [117]-[122] (White).
It is also well established that the non-parole period must reflect the minimum period the offender must spend in custody for the offence in question: Power v The Queen (1974) 131 CLR 623 at 627-629; [1974] HCA 26 (Power); R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [56]-[57] (Simpson).
Having regard to the manner in which the sentences were structured, the period of imprisonment which was solely referable to the present offences was a period from 16 December 2017 (the date of expiry of the sentence for the previous offence for armed robbery) to 29 October 2019 (the date of the expiration of the non-parole period for the Second Count the subject of this appeal). This was a total period of 1 year 10 months and 14 days. That result of the exercise of the sentencing judge's discretion does not seem to have been expressly considered by him.
There are three matters which may provide some justification for the approach of the sentencing judge. The first is that, during the period that the respondent was serving the sentence for the previous offence, he was also imprisoned with bail refused in respect of the present offences.
The second is that s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can operate somewhat randomly in cases such as the present. The effect of the section in the present case is that the sentences for the fresh offences cannot commence any later than the date of sentence. For example, in the present case, had the respondent been sentenced on the day he pleaded guilty, which was 2 May 2017, the sentences could not have been commenced any later than that day. The disadvantage to an offender to whom s 47(5) applies from a delay in sentencing is self-evident but was explained by Simpson JA in White at [122]. As her Honour pointed out in that case, it would have been appropriate for the sentencing judge to notionally determine at what point the respondent could reasonably be expected to have been sentenced, having regard to the date of his plea, and direct the sentence commence no later than that date.
Further, having regard to the fact that the discount for the plea of guilty was referable to a plea given at the first available opportunity, there is no material as to what occurred between the date of the respondent's arrest on 30 April 2016 and 4 May 2017, which was a period of over 12 months. If he had entered his plea at any time during that period, the sentence would have run from the date that occurred.
None of these matters appear to have been explored at the sentencing hearing. In light of these uncertainties, and having regard to the respondent's strong subjective case, I am unable to conclude that the sentence imposed, although lenient, was manifestly inadequate. Even if I had come to the contrary conclusion, in the exercise of the residual discretion, I would not have resentenced the respondent. There is no need for guidance to be given to sentencing judges as to the approach to be taken to fixing a non-parole period: see GWM; Power; Simpson. Further, the decisions in Callaghan and White provide sufficient guidance to sentencing courts as to the exercise of the discretion under s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The only additional direction which could be made is to emphasise the need to give reasons for the exercise of the discretion under the section.
Further, the unusual circumstances of the case, including the strong subjective case of the respondent, the delay in sentencing and the fact that the issues to which I have referred were not explored, make the case an inappropriate vehicle to provide guidance to sentencing courts in any event.
In the result, the appeal should be dismissed.
SCHMIDT J: At the heart of what lies in issue between the parties is whether the effective sentence which the respondent has been sentenced to serve, referable only to the two armed robberies which he committed in 2016, is manifestly inadequate. That arises for determination in circumstances where only 1 year, 10 months and 14 days of the non parole period imposed on the respondent was solely referable to that serious offending.
I agree with the Chief Justice's outline of the evidence as to the circumstances of the respondent's offending and of Scotting DCJ's reasons for judgment. Accordingly, I do not repeat what his Honour has explained about those matters. For reasons which follow I have concluded, however, that the Crown's appeal must succeed, because the sentences imposed on the respondent were manifestly inadequate.
It was on 17 November 2017 that Scotting DCJ sentenced the respondent for his early plea to two offences contrary to s 97(1) of the Crimes Act 1900 (NSW), with a 25% discount given for the pleas. Both of those offences attracted maximum penalties of 20 years imprisonment.
The respondent committed these two offences soon after he was released to parole on 15 December 2015 for three previous offences of armed robbery. Count two was committed on 17 March 2016 and count one on 30 April 2016, the date of the respondent's arrest. It was in May 2016 that his parole for his earlier offending was revoked as from 30 April 2016. The sentences for that earlier offending did not expire until 15 December 2017.
On count 1, the offence involving the demand of the victim's wallet while the respondent was armed with a hammer, which his Honour assessed as falling in the low range, the total sentence imposed was 4 years, with a non parole period of 3 years. Before discount this reflected a total term of 5 years 4 months.
This sentence did not, however, reflect his Honour's finding of special circumstances, the ratio being the statutory 75%: s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That was not explained, nor was the date of commencement of the sentence on 30 April 2016, on the date of the respondent's arrest, from which his parole for his earlier offending was later revoked.
On count 2, the respondent's more serious offence involving the stolen Porsche in the robbery of the Montblanc store, in respect of which an offence under s 154A(1)(b) of the Crimes Act of being carried in a conveyance without the consent of the owner, was also taken into account on a form 1, the total sentence imposed was 6 years, commencing on 30 April 2017, with a non parole period of only 2 years and 6 months. The form 1 offence attracted a maximum penalty of 5 years. This sentence, before discount, commenced at 8 years. In this case the finding of special circumstances was reflected in a ratio of 41.6 %. Why the non parole period imposed for this offence was less than that imposed for count one was not, however, explained.
As the result of the application of the principle of totality, the total effective sentence imposed on the respondent was thus 7 years imprisonment, with a non parole period of 3 years and 6 months. Before discount this reflected a total sentence of 9 years 4 months. It thus reflected an overall ratio of 50%.
The considerable concurrency involved in this sentencing exercise was not explained in his Honour's reasons and is also not apparent from the cases which either party advanced on sentence.

The parties' cases on appeal

The Crown's case was in essence that both the two individual sentences and the total effective sentence imposed on the respondent were so far below the range of sentences which could have been imposed for his offences, consistently with appropriate sentencing standards, that the sentences were manifestly inadequate and plainly unjust, so as to undermine public confidence in the proper administration of criminal justice. The commencement of the sentences on the date of the respondent's arrest on 30 April 2016, the date of the revocation of his parole, had contributed to that result.
Further, excessive allowance had been made for the finding of special circumstances, which had contributed to the final result, manifestly inadequate individual non-parole periods for the respondent's offences, as well as a manifestly inadequate effective total non-parole period of 3 years and 6 months. In the circumstances the Crown had met the onus falling upon it to establish that the Court's residual discretion not to resentence should not be exercised.
The respondent's case was that the backdating of the sentence to the date on which he was bail refused and had his parole revoked, 30 April 2016, was within the available discretion. Further, that its exercise had not resulted in a manifestly inadequate sentence, even though Scotting DCJ had not given reasons as to why a wholly concurrent sentence was imposed for the period of the revoked parole, when the re-offending had occurred only some 4 months into the parole period imposed for his earlier offending, when the balance of parole still had more than 1 year and 7 months to run.
Rather, this exercise of the sentencing discretion had reflected the circumstances in which the respondent, a highly institutionalised man with an intellectual disability and no life skills, had returned to the community and offended again. Further, that the accumulation of the Montblanc offence by 12 months on the earlier sentence had also established that proper account had been taken of applicable principles of accumulation.
In the result there was no excessive allowance made for the respondent's special circumstances, that also being a matter of discretion for a sentencing judge. While the sentence for the Montblanc offence reflected a finding with a resulting ratio of 41.6%, the accumulation of the sentences led to a final overall ratio of 50%, that properly reflecting the respondent's complex difficulties with drug abuse, extremely low intelligence and institutionalisation.
There were valid bases for those findings and a reduced need for general deterrence in the respondent's case, because of his mental condition, his chronic drug abuse history and his need for substantial assistance to overcome it, his Honour having found that he had better prospects of rehabilitation than in the past.
In that context, the outcome arrived at was not a manifestly inadequate sentence, the conclusions his Honour had reached as to the objective seriousness of the two offences being justifiable and the sentences imposed reflecting those conclusions. The result did not demonstrate significant disparity between the sentences imposed and what was necessary to reflect the objective gravity of the offences, but rather a careful and considered balance between all of the purposes of sentencing and imposition of sentences which were within the available ranges.
Accordingly, while the total effective non parole period was at the lower end of the appropriate range, it was not manifestly inadequate. Even if manifestly inadequacy was found, the Crown had not established a basis for the Court not to exercise its residual discretion to decline to intervene, neither governance and guidance for lower courts being required, nor the sentence imposed being likely to undermine public confidence in the proper administration of justice.

Error is established

In my view, while there was no error in his Honour's conclusions that count one fell at the lower end of objective seriousness of such offending; that count two fell within the mid-range of such offending; and that given the respondent's difficult subjective circumstances, there should be a finding of special circumstances, the Crown's appeal must succeed. That conclusion flows from a combination of factors which resulted in sentences which were manifestly inadequate, given the seriousness of the two offences for which the respondent was sentenced, offences committed while he was on parole for other similar, serious offending.
Those factors begin with the consideration that the non parole period imposed on an offender is the minimum period which he or she must spend in custody for the particular offence he or she committed: Power v The Queen (1974) 131 CLR 623 at 628-629; [1974] HCA 26. The risk of re-offending, is a factor which must be taken into account in setting that minimum term: Bugmy v The Queen (1990) 169 CLR 525 at 537; [1990] HCA 18.
In this case it was also necessary to take into account that what the respondent was being sentenced for included, in the case of count two, the form one offence. This required that the sentence which would otherwise have been imposed for that offence, had to be increased: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42].
As discussed in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] and [13], while there is a discretion to fix concurrent sentences on the respondent, that discretion is "circumscribed by a proper application of the principle of totality". Proper consideration had to be given to whether the sentence for the respondent's earlier offending could comprehend and reflect the criminality of the offences for which he was being sentenced. It was thus necessary to take into account all of the offending which the respondent had committed against his different victims and the separate courses of criminality for which he was being sentenced.
That proper account was not taken of these necessary considerations is in my view apparent from the result of his Honour's approach and the reasons which his Honour gave for those outcomes.
There was no explanation given as to why the non parole period imposed for count two was six months less than that imposed for the less serious offending involved in count one. Nor for the unusual approach adopted to the effect his Honour gave to the finding of special circumstances, in the ratios fixed for the two sentences, which the Chief Justice has explained.
When that is considered together with the result of the approach which his Honour adopted to the application of the principle of totality, in my view it must be accepted that the effective total non-parole period imposed for the two offences which the respondent committed while on parole for other serious offending, which was so short as to be manifestly inadequate. That is because this non parole period did not adequately reflect the minimum period which the respondent should spend in custody, for his further serious offending.
The sentences for the respondent's earlier offending did not expire until December 2017. Despite this, the sentence for count one commenced on the same day as his parole for that offending was revoked, 30 April 2016, and that for count two on 30 April 2017.
His Honour gave no explanation for the conclusion that there should be such a long period of concurrency. There is no obvious explanation for that conclusion, either in the cases which the parties advanced on sentence, or in the evidence as to the circumstances in which the respondent's further offending occurred or of his subjective circumstances.
These further robberies were but the latest in a line of other similar offending which the respondent has committed in the past. They were committed not long after his release on parole for his earlier armed robberies. As his Honour found, that situation aggravated the seriousness of the offences for which he was being sentenced. In my view it also thus left little room for the exercise of the discretion to impose concurrent sentences on the respondent, for his further offending.
In arriving at a conclusion about concurrence, what was required to be considered was what Street CJ discussed in R v Holder; R v Johnston (1983) 3 NSWLR 245. Namely, the overall criminality involved in all of the respondent's offences, including that involved in the sentences which 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 the respondent. That consideration had to achieve an appropriate relativity between the totality of the respondent's criminality and the totality of the sentences imposed upon him.
The result of his Honour's approach was a 3 years and 6 months effective further non parole period for the two offences. Only 1 year, 10 months and 14 days of that was, however, solely referable to those offences, that is from 16 December 2017, the day after his earlier sentence expires, until 29 October 2019.
I consider that this result establishes that the sentence imposed on the respondent was manifestly inadequate, notwithstanding his difficult personal circumstances, given the seriousness of the offences for which he was being sentenced.
As Scotting DCJ observed, the respondent has a significant prior criminal record of similar offending. While count one was found to be impulsive, not planned and committed probably as the result of a level of intoxication, count two was found to have involved considerable planning. The value of the stolen property involved in that offence was significant, as was the damage caused during the robbery, estimated at $232,820. This was also found to be an offence committed for financial gain, to support the respondent's drug habit.
In my view, the short further non-parole period which his Honour imposed for that offending was not available as the result of the proper exercise of the sentencing discretion involved in the application of the principle of totality, notwithstanding the finding of special circumstances.
While the respondent undoubtedly required a longer than usual period on parole for his further offending, it could not be overlooked that these offences had been committed so soon after his release on parole for similar earlier offending. Pertinently, his Honour concluded that general deterrence could be afforded less weight in the respondent's sentence, because of his mental condition, but that specific deterrence loomed large, because of his extensive record. He also considered, however, that the respondent's offences were aggravated because they were committed while on parole and because of the respondent's very lengthy criminal record, over the course of his adult life.
The finding of special circumstances rested on the respondent's need for support for his mental condition, to minimise the effects of institutionalisation and the benefit which a longer period on parole would provide, to reintegrate him into the community and to develop appropriate living skills.
The end result of his Honour's weighing of these considerations was, however, that for his further serious offending, not only was a short overall further non-parole period referable only to the offences for which he was being sentenced imposed upon him, the non parole period imposed for the more serious offence was less than that imposed for the less serious offence. I consider that this unexplained result did not properly reflect the view which his Honour reached about the importance of specific deterrence in the respondent's case.
As discussed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14 the evidence about the respondent's record and subjective circumstances was relevant to a consideration of the weight which had to be given to the different purposes of punishment. They include protection of society, deterrence of the respondent and others who might be tempted to offend, as well as retribution and reform.
In the respondent's case these considerations certainly pointed in different directions. While they required a consideration of discretionary matters, the Crown's case, that the outcome of his Honour's exercise of the sentencing discretion resulted in error must be accepted, that being established by the shortness of the effective sentence finally imposed on the respondent, referable only to the offences for which he was being sentenced.
In my view neither the constraints imposed by s 47 of the Crimes (Sentencing Procedure) Act, nor the fact that as from his arrest in April 2016 the respondent was in custody both bail refused for the offences for which he was being sentenced and for the offences for which his parole was revoked, provides an explanation for how Scotting DCJ applied the principle of totality to arrive at such a short non parole period referable only to the offending for which he was being sentenced. Certainly his Honour did not provide one.
The concurrency involved in the sentence which his Honour imposed, I consider, did not properly reflect the minimum period which justice required that the respondent spend in custody, for his further serious offending. In the result, it was manifestly inadequate.
In the light of all of these difficulties with this unusual sentencing exercise and the manifestly inadequate sentence which resulted, I also consider that the Crown has met the onus falling upon it to establish that the Court should not exercise its residual discretion not to intervene.
I would thus uphold the appeal and following application of the 25% discount for the respondent's plea and a finding of special circumstances, reflective of the evidence as to his mental health and institutionalisation problems, I would resentence the respondent, imposing a ratio of around 60% for both offences. The sentence I would impose would involve a longer non parole period for count two than that imposed for count one and with less concurrency with the sentences imposed for the respondent's prior offending, than that which his Honour adopted.
Prior to discount of 25%, I would thus commence the sentence for count one at 5 years 4 months and that for count two at 9 years. The sentence for count one would commence on 30 April 2017 and the sentence for count two on 30 October 2017. The result would be a total effective non parole period of 4 years 6 months, expiring on 29 October 2021 and a total effective sentence of 7 years 3 months, expiring on 29 July 2024.
The orders I would accordingly make are as follows: 1. The appeal is upheld; 2. The sentence is set aside and the respondent is resentenced as follows: 1. On count one the respondent is sentenced to a non parole period of 2 years 5 months to commence on 30 April 2017 and to expire on 29 September 2019 and a balance of term of 1 year and 7 months, expiring on 29 April 2021, that being a total term of 4 years; 2. On count two the respondent is sentenced to a non parole period of 4 years commencing on 30 October 2017 and to expire 29 October 2021 and a balance of term of 2 years 9 months, expiring 29 July 2024, that being a total term of 6 years 9 months.
HAMILL J: I have had the benefit of reading the draft judgments of Bathurst CJ and Schmidt J. Their Honours come to different conclusions as to the outcome of this Crown appeal. I agree with the orders proposed by the Chief Justice substantially for the reasons his Honour has articulated. I would only add the following observations.
The matters raised in the judgment of Schmidt J are matters of substance. The effective sentence imposed on Mr Gray for two serious offences was a very lenient one. The extent of concurrency, the large adjustment made for special circumstances and the selected commencement date of the sentences mean that the total effective sentence is at or toward the very bottom of the range of sentences that could, legitimately, be imposed. However, each of those matters involved decisions and judgments peculiarly within the sentencing judge's broad discretion. This Court will not lightly interfere with such decisions.
There were certain aspects of Mr Gray's personal circumstances that took his case outside the ordinary case where an offender has breached parole by committing similar and serious offences. These unusual features of the case called for a lenient sentencing outcome.
When the respondent was sentenced in 2010, a report was tendered under the hand of a forensic psychologist, Rima Nasr. That report described Mr Gray as a person "of high needs and extremely vulnerable". He required "extensive and co-ordinated supervision and support in order to have a chance of community living". The author went on to make a detailed series of recommendations calculated to give Mr Gray the best chance of complying with the conditions of his parole and assimilating into the community. The sentencing judge found that "really not many of those things were done for him on the last occasion."
Mr Gray was described appropriately in his counsels' written submissions as a "highly institutionalised man with an intellectual disability and no life skills". It was noted that he had spent most of the last 20 years in some form of custodial sentencing. His intellectual functioning was in the "extremely low range". Notwithstanding these difficulties, the sentencing judge found that "[Mr Gray] shows good insight in relation to the fact that he needs support." Indeed, and unusually, the Breach of Parole Report recorded Mr Gray had "self-reported" his relapse into drug use while on parole. This occurred on 28 April 2016. He did not, at the same time, disclose to his parole officer that he had committed the offence in count 2 about six weeks earlier (17 March 2016). It was only two days after his self-reported relapse into drug use that he committed the offence in count 1 (30 April 2016). It is a matter of significance that he sought some assistance before he committed the second offence in time.
In light of these compelling subjective features of the case, and in spite of the seriousness of the instant offending and ongoing breaches of parole for similar offences, it was open to the sentencing judge to attempt to fashion a sentence that was not crushing and which maximised Mr Gray's prospects of rehabilitation. As King CJ said in The Queen v Osenkowski (1982) 30 SASR 212 at 212-213: "There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."
There are two further matters on which I should comment in light of the legitimate concerns raised in the judgment of Schmidt J.
The first concerns the fact that the non-parole period for count 2 (which was the more serious offence) was shorter than the non-parole period imposed on count 1. The reason for this ostensibly unusual outcome was that the sentencing judge applied his finding of special circumstances to the sentence on count 2 which commenced twelve months after the sentence imposed for count 1. His Honour did not make any adjustment for the sentence in respect of count 1. To do so would have had no practical impact because the relevant portion of the sentence was to be served concurrently with the sentence imposed on count 2. The total sentence imposed on count 2 (6 years after a 25% discount for an early guilty plea) was substantially longer than that imposed on count 1 (4 years after the discount). Thus, the total sentence reflected the greater seriousness of the facts giving rise to count 2. The structure of the sentence, and the adjustment made to the second sentence, does not disclose error.
The second matter relates to the concern that only 1 year, 10 months and 14 days is solely referable to the present offences. That calculation is based on the fact that the pre-existing sentence (non-parole period and additional term) did not expire until 16 December 2017. While that is true, it is impossible to know whether the respondent would have been required to serve the whole of that term upon revocation of parole. Because bail was refused in relation to the present matters, there was little point in seeking relief to be released again to parole. As the Chief Justice explains, by reference to this Court's decision in Callaghan v R and White v R, when an offender is serving a sentence consequent upon a breach of parole the sentencing judge has a discretion whether to backdate the sentence, and to what extent it should be backdated. In Callaghan v R, Simpson J (as her Honour then was) explained the reasons there is a discretion to back-date a sentence in such circumstances. For example, her Honour pointed out at [23]: "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."
See also White v R at [117]-[123] (Simpson JA, Bathurst CJ agreeing).
I agree with the Chief Justice that the sentence, while lenient, is not plainly wrong or unjust. It is not manifestly inadequate. The Crown appeal should be dismissed.

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