R v Primmer

Court of Criminal Appeal (NSW)|2020-03-13|Before: Leeming JA, Harrison J, Hamill J

The prosecution appeal

The Director raised one ground of appeal namely that the sentence imposed on Mr Primmer was manifestly inadequate. Under the umbrella of that ground, the appellant asserted three specific errors namely: 1. His Honour failed properly to assess the objective seriousness of the principal offence. 2. His Honour erred in assessing the respondent's role in the principal offence as "rather minor". 3. His Honour imposed a non-parole period that failed to reflect the objective seriousness of the principal offence.
The practice of asserting a general ground of manifest excess or inadequacy, whilst relying on specific errors, was questioned by the High Court in the case of Carroll v The Queen [2009] HCA 13; 254 ALR 379 at [8] where the Court said, referring to the kinds of errors identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40: "…The Director's allegation in his notice of appeal to the Court of Criminal appeal, that the sentence passed was 'manifestly inadequate', was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged: the sole ground of appeal was manifest inadequacy of sentence."
However, the Court went on to say at [24]: "In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood."
When the case was remitted to this Court, leave was granted to allow the prosecution to amend its notice of appeal to assert the specific errors it contended for: R v Carroll, Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55. The High Court's observations eschewing reliance on specific grounds or errors where an appellant raises a single ground asserting manifest inadequacy or excess appear to be honoured more in the breach than the observance. However, it is unnecessary to say more about the issue here. The respondent, properly and sensibly, took no point in relation to the issue and the appeal was conducted on the basis that it was open to the Director to argue the appeal in the way that they did.
In written submissions, the respondent conceded that the sentence was manifestly inadequate. However, he disputed the specific errors alleged by the Director. His principal submission was that the Court should exercise its residual discretion to dismiss the prosecution's appeal.

The facts of the offences

The facts of the principal offence were extremely serious. They were set out in a document titled "Agreed Facts on Sentence". The same agreed facts were tendered in relation to each of the four co-offenders in separate tender bundles. The agreed facts encompassed one offence in which Mr Primmer was not involved and one in relation to which he was charged with concealing the offence, a matter that was not charged separately but placed on a Form 1 to be taken into account.
The facts commenced with a narrative of an armed robbery offence committed by Matthew Moore, David Jones and Terry Egan at a Building Society in East Maitland on 4 January 2018. It then detailed another offence of armed robbery committed by the same three offenders at the Newcastle Permanent Bank on 13 June 2018. Mr Primmer was aware of this offence and his actions concealing that offence formed the basis of the offence on the Form 1.
The circumstances of the principal offence were summarised commencing at page 6 of the agreed facts. By 13 June 2018, investigating police had installed listening and tracking devices in a car used by one of the co-offenders. They also had in place other electronic surveillance of Moore, Jones and Egan. On 13 June 2018, there was a conversation between a number of the offenders, including Mr Primmer, about robbing a local drug dealer at his home. Mr Primmer was involved in the conversation. For example, he said "How are we playing it? Going to Mayfield and divvy it up? Drop Tez home?" The listening device recorded the group discussing how they would approach the premises and enter the home. It recorded the sounds of the group leaving the car, presumably approaching the house, and then the sounds of gunshots. Thirty eight seconds after they left the car, the group returned in a state of panic. It is obvious, at least by inference, that two of the offenders (Egan and Moore) had been shot. After summarising the listening device recording, the agreed facts provided the following narrative of events: "35. Shortly after the car arrived, neighbours heard arguing in the street and one witness heard a male voice say 'there's the cunt'. A confrontation had erupted. Closely followed by the sound of a loud explosion followed by a second loud explosion. 36. The offenders ran to the door and busted it open. One of them took a step inside. The Crown cannot establish who fired the first shot, however the following shots were fired: a. MOORE fired a round from his .22 calibre weapon towards Jennings. b. Van Gestel fired the shotgun, striking MOORE and EGAN who were retreating into the front yard. c. Van Gestel fired a second shot at the group who were fleeing back to vehicle AL85CZ. At some stage during the above, MOORE dropped his weapon. MOORE was initially detained in the street by someone, where he was beaten. MOORE is let go and he got back into vehicle AL85CZ. Someone smashed the rear windscreen of vehicle AL85CZ, before MOORE, David JONES, PRIMMER and EGAN fled in the vehicle and returned directly to JONES' residence at [ADDRESS REDACTED] Mayfield."
In spite of the respondent's involvement in the offence, it seems from the recordings and surrounding circumstances that he was taking directions from one or more of the co-offenders. The Prosecutor's submission at first instance noted that Moore was the "ringleader" who recruited the respondent who was the "youngest of the offenders". The submissions noted the evidence that he ran back to the car after shots were fired, locking Moore outside the car. The fact that the respondent was the least culpable was confirmed by what was said in a police interview by Michael Jones, the father of David Jones, who was charged as an accessory after the offence. He was not present at the time of the offence, but his hearsay statements were included in the agreed facts and were generally consistent with the prosecution's allegations. The summary of his recorded interview with police included the following: "q. [Michael Jones] said there was someone else there but initially didn't want to name them. He said that person was a sheep and got led. [Michael Jones] confirms the other person was PRIMMER. PRIMMER was supposed to be the third person through the door but when everything went shit he ran back to the car and locked the doors."
No issue was taken with the factual findings of the sentencing Judge who summarised the events in the following way: "In respect of the specially aggravated break and enter the facts are these. After the attempted robbery of the Newcastle Permanent Bank Jones complained to Moore about the planning of it. Moore said 'That's okay, we'll go out and do the dealer again tonight'. The dealer was Brandon Jennings. Later the same evening Moore and Terry Egan exchanged text messages with Moore arranging to collect Egan at 9:00pm to 9:30pm and asking him to bring clothes. At around 10pm on 13 June 2018 Moore; Jones and the offender [Mr Primmer] drove in Jones's car, collected Egan and went to Jennings home in Waratah West. On the way there, there was a discussion about how to go about the robbery. At this time Jennings', the target of the robbery, was at home with Christian Stokes. Stokes had a double-barrelled shotgun. After the car arrived at Waratah West the four left the car. They ran to the door and broke it open. One of them took a step inside. The following shots were fired. Moore fired one round from his .22 calibre weapon towards Jennings. Stokes fired the shot gun, hitting Moore and Egan, who were retreating into the front yard. Stokes fired a second shot at the group. Moore returned to the car and drove to Jones's house where Jones's father Michael Jones took Egan to the hospital and then left him there. The offence took place in the victim's home and although it turned out to be very brief indeed it was planned, although quite poorly. The main motivation was financial gain. Overall the offending was well above the mid-range of objective seriousness."
Mr Primmer was on conditional liberty for three separate bonds at the time of the commission of the offence. This was a significant aggravating feature of the case and the sentencing Judge correctly identified it as such.
Each of the bonds was imposed on 7 June 2018, just a week before the principal offence was committed. The first involved an offence of assault occasioning actual bodily harm committed on his girlfriend on 17 March 2018. In the course of a physical fight, Mr Primmer pulled the victim down some stairs, punched her and choked her. The Magistrate imposed a sentence of 7 months but the sentence was suspended upon the offender entering a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999. The other two offences dealt with on 7 June 2018 involved breaches of an apprehended violence order relating to the same victim. Mr Primmer approached the victim in her home and made threats. For those offences, Mr Primmer was placed on good behaviour bonds under s 9 of the Crimes (Sentencing Procedure) Act 1999.
In relation to the two s 9 bonds, the sentencing Judge noted the breach but took no action. In relation to the suspended sentence, the bond was revoked and the applicant was sentenced to 7 months imprisonment commencing on 15 August 2018 and expiring on 15 March 2019. The 3 year sentence for the principal offence was ordered to commence on 16 February 2019, so that it was made largely cumulative (that is, to the extent of six of the seven months) upon the sentence for the assault occasioning actual bodily harm. The total effective cumulative sentence was 3½ years with a non-parole period of 2 years.

The sentencing Judge's assessment of the objective gravity of the offence and the applicant's role in the offence

Having assessed the facts globally as "well above the mid-range of objective seriousness", the sentencing Judge did not, in clear, specific or relative terms, make an assessment of the objective gravity of the respondent's offence. Rather, his Honour said: "Having regard to the statutory guidelines the break, enter offence was serious. The need for punishment and to protect the public carries significant weight in this case. That said, the offender's criminality is reduced by reason of his background and youth and also his rather minor role in the offending. In addition this will have been his first term of imprisonment."
I am unable to accept the appellant's submission that the categorisation of the respondent's role as "rather minor" was erroneous. It was a relative assessment based on the established participation of the four co-offenders. It took into account that the co-offenders were involved in earlier offences of a not dissimilar kind. The remark was made in the course of a judgment delivered ex tempore shortly after the close of the evidence and submissions. The agreed facts established that Mr Primmer was the least culpable of the four offenders, was much younger than the others and the assessment agreed with Michael Jones' description that the respondent was "a sheep" who "got led". This is not to understate the gravity of the offence, the fact that Mr Primmer was involved to the point of attempting to enter the house in the company of a man he knew was armed with a rifle, or the fact that the escapade resulted in the discharge of two firearms in a suburban street. Even within that context, the description of the respondent's role as "rather minor" was apt in relative terms. In coming to that conclusion, I have taken into account the fact that the sentencing Judge had the opportunity to assess the applicant who gave evidence in the proceedings and the general reluctance of intermediate appellate courts to interfere with evaluative assessments such as these.
However, I accept the Director's submission that the sentencing Judge fell into error in his approach to the assessment of the objective gravity of the offending. Because the case involved a standard non-parole period, there needed to be a clearer engagement with the question of whether Mr Primmer's offence, "taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness": Crimes (Sentencing Procedure) Act 1999, s 54A(2). It was not sufficient to state that the offence itself was "well above the mid-range" without considering the gravity of the offence once Mr Primmer's role and involvement was taken into account. Because the case involved a joint criminal enterprise, each of the offenders was criminally responsible for the actions of the others. That is not to say each was equally culpable but some assessment needed to be made beyond the observation that his role was "rather minor". It was not sufficient for the sentencing Judge to make a global assessment that the offence was well above mid-range but not to make a finding as to the seriousness of the offence insofar as it concerned the respondent himself.
Further, in light of the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, a question arises as to whether his Honour erred when he said "the offender's criminality is reduced by reason of his background and youth". In Muldrock, the High Court said at [27]: "Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as 'the non-parole period for an offence in the middle of the range of objective seriousness'[50]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
The Director did not contend that the sentencing Judge erred by taking into account "Mr Primmer's youth and background". Both counsel made reference to decisions such as Tepania v R [2018] NSWCCA 247 at [112] where Johnson J held that factors personal to the offender may be taken into account in determining the objective seriousness of an offence where those features are causally connected to the commission of the offence: see BM v R [2019] NSWCCA 223 at [15]-[17]; see also R v AA [2017] NSWCCA 84 at [55].
I accept the submission made by Mr Styles of the Aboriginal Legal Service who appeared for Mr Primmer that this raised a question that is "far bigger than this appeal". If there is any tension between the decision in Muldrock and the subsequent cases decided in this Court, that tension need not be resolved in this case in view of the stance taken by the Director. In any event, a number of features of Mr Primmer's personal circumstances were highly relevant to an assessment of his moral culpability and were critical to the conclusion that he was entitled to a sentence that was far more lenient than the objective criminality of the principal offence would otherwise warrant.

The respondent's personal circumstances

The evidence of Mr Primmer's personal circumstances was tragic and compelling. He was still a young man - 20 years old - at the time of the offence and had endured an extremely troubled childhood. A report of Dr Susan Pullman, psychologist, set out his personal circumstances and Mr Primmer gave evidence that the history provided to Dr Pullman was true. There was no challenge to his evidence, to the background set out in Dr Pullman's report or to the opinions expressed by the expert.
Mr Primmer's parents were both heroin addicts and separated when he was 10 years old. He had childhood memories of visiting his father in gaol and taking early morning drives to Cabramatta where his father would source heroin. His father was a "bad drinker" and his parents were constantly arguing. He was exposed to domestic violence at a young age, although he denied being the victim of such violence. He lived with his father after his parents' separation and he and his father lived in refuges, boarding houses and hotels. He was supposed to have fortnightly contact with his mother and sisters but this only occurred on an irregular basis.
The respondent had a history of "self-harming behaviour" and Dr Pullman noticed scars on his forearm. He said the self-harm commenced when his parents separated. He commenced drinking alcohol and "smoking pot" when he was in Year 7. He was referred to a psychiatrist because he was having blackouts and was diagnosed, perhaps unsurprisingly, with post-traumatic stress disorder (PTSD). Dr Pullman said that he exhibited many symptoms of PTSD including: "…feeling distant or cut off from other people, feeling emotionally numb or being unable to have loving feelings for those close to you, being 'super alert' or watchful on guard, feeling jumpy or easily startled, having difficulty concentrating, feeling irritable or having angry outbursts."
At the time of the assessment, Mr Primmer reported poor sleep, loss of appetite, continuing nightmares and "flashbacks of his childhood and shouting and fighting at home between his parents". Dr Pullman said that PTSD was "associated with risky behaviours". She said a diagnostic criterion for PTSD in DSM-5 was "reckless and self-destructive behaviour". [1] She provided an opinion that the PTSD "would impact upon Mr Primmer's ability to self-regulate his behaviour". It was also associated with "aggression, substance use and deficits in impulse control". Dr Pullman said that Mr Primmer's deprived and dysfunctional childhood would have had a significant impact on his behaviour through adolescence and early adulthood. She concluded that his "developmental trauma has contributed to his offending behaviour at least to some extent".
Pre-sentence reports prepared for the domestic violence cases were tendered by the prosecution. These established that Mr Primmer had no fixed place of abode around the time of the offences and this was described as "a presenting issue" although no further information was provided.
Mr Primmer gave evidence that he was assaulted while in gaol and suffered a broken nose. As a result of the assault he was placed on protection, or "limited associations." This involved being locked in his cell 24 hours a day, three days per week. He had completed a domestic violence course and obtained a qualification to be a Rugby League referee. In a letter to the sentencing Judge Mr Primmer expressed remorse and apologised to the victims.
These were significant matters in determining the appropriate sentence to be imposed on an offender who was 20 years old at the time of the offence, 22 years old at the time of sentence and who was serving his first gaol sentence. The sentencing Judge accepted these matters and gave them the considerable weight to which they were entitled. This was consistent with the judgment of Simpson J (as her Honour was then), with whom Bathurst CJ and Adamson J agreed, in the prosecution appeal of R v Millwood [2012] NSWCCA 2 at [69]: "I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a 'normal' or 'advantaged' upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been 'tragic and dysfunctional'. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court."
This approach was confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. For example, at [40] it was said: "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
Mr Primmer's youth, deprived and dysfunctional childhood and its psychological sequelae were of a kind where these well-established principles had a substantial role to play in the sentencing process.

Was the sentence manifestly inadequate?

Given the accumulation of the sentence imposed for the assault offence upon revocation of the s 12 bond, the fact that this was the respondent's first custodial sentence and his need for a lengthy period of supervision upon release, there was nothing remarkable in the sentencing Judge's decision to make a substantial adjustment to the non-parole period. Unless the total sentence imposed for the principal offence is manifestly inadequate, I would not accept the Director's third specific contention that the sentencing Judge erred by imposing a non-parole period that failed to reflect the objective gravity of the offence.
Even so, the sentence imposed on Mr Primmer was extremely lenient. A particularly troubling feature of the case was the use of the firearm and the fact that guns were discharged in a suburban street. Whilst some of the shooting came from a man within the victim's house, none of it would have occurred were it not for the serious and planned home invasion and criminal escapade in which the respondent involved himself. A further matter of aggravation was the fact that the respondent was placed on bonds, including a suspended sentence for an offence of violence, just a week before he committed the principal offence.
The co-offenders received substantially higher aggregate sentences. That is not surprising given their age, involvement in the offending and the fact that they were to be sentenced for other serious offences in the days and weeks leading up to the principal offence. A comparison with their sentences is not helpful. Those sentences cannot be used to increase the sentence to be imposed on the respondent who presented a compelling subjective case, was a younger man and who was led into the criminal enterprise by his older confederates.
The question of whether to accept the respondent's concession that the sentence imposed on him was manifestly inadequate is a difficult one. As I have said, by reference to cases such as Bugmy v The Queen, Mr Primmer's history of childhood abuse and neglect was a crucial feature of his case on sentence. It was appropriate that he receive a sentence well below the range that would ordinarily be expected for a case of this kind. Before accepting the concession it must be established that the sentence was manifestly wrong or plainly unjust. However, I am satisfied that the respondent's concession should be accepted in view of the seriousness of the offence, the greater weight to be afforded to personal deterrence and retribution as a result of the concealing offence on the Form 1, [2] and noting that the principal offence was aggravated by the breach of bonds imposed a very short time earlier. As I have said, there was also an error in the sentencing Judge's approach to the assessment of objective gravity and it may be, as the Director submitted, that this error led to the imposition of a sentence that was manifestly too lenient.

The residual discretion

The question then is whether the Court should allow the appeal and increase the respondent's sentence at this stage. It is for the Director to establish that the Court should not invoke its "residual discretion" by declining to intervene.
Prosecution appeals serve the particular purpose of clarifying the law, laying down principles for the guidance of sentencing courts and interfering with sentences that are an affront to the administration of justice: see for example Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1] and [36]; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1. While error has been demonstrated, the case is not one where significant principles of law need to be clarified. The approach to be taken when sentencing co-offenders is well-established, as are the principles applicable to an assessment of objective criminality and the operation of the standard non-parole period.
Further, the respondent provided an affidavit setting out his personal anxiety and distress when he heard about the appeal and the prospect that his sentence may be increased. This may be contrasted with the anxiety and distress inherent in any prosecution appeal which is not to be taken into account following the abolition of the principle of double jeopardy as it previously applied to prosecution appeals. As to this distinction, see, for example, R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, R v Carroll, Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
The respondent's affidavit was refreshing and persuasive because of its candour. He said that he was aware that the sentence was a lenient one, especially given the sentences imposed on the co-offenders. He also said that he was "shattered" by the fact that the prosecution had appealed but that he "kind of expected it". He said that an increase in the sentence "will kill me but I've got to cop it I suppose, if that happens".
Another significant factor is that the respondent is still only 22 years of age and is due for release in August this year. He said in his affidavit that his release date is just a week after his daughter's third birthday and that he also missed her first two birthdays because he was in custody. His affidavit sets out the plans he has made to get on with his life upon his release. Those plans include moving to a location where he will be away from bad influences and near family and friends who will support him. It is a location where he says "there is no chance I will use drugs or abuse alcohol". He will be motivated by his attempt to have contact with his daughter. He says the Department of Family and Community Services will only allow him access if he remains drug free. He says he will "find a job and better [himself]" and that he has a few options in that regard. These post-release plans would be interfered with, or at least delayed, if there was any substantial increase in the sentence imposed on him.
Taking all of those matters into account, I am not satisfied that the Director has established that this is an appropriate case to increase the sentence on the prosecution appeal. I would exercise the residual discretion not to interfere with the sentence.

Conclusion

Accordingly, and for those reasons, I propose that the Director's appeal be dismissed.

Endnotes

American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (5th edition, 2013, American Psychiatric Association).
See, for example, Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 and Abbas & Others v R [2013] NSWCCA 115; 231 A Crim R 413 at 425 [22]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2020

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