55 CLR 499
PWB v R [2011] NSWCCA 84
R v Lulham [2016] NSWCCA 287
R v Markarian [2005] HCA 25
2023/47810
Source
Original judgment source is linked above.
Catchwords
55 CLR 499
PWB v R [2011] NSWCCA 84
R v Lulham [2016] NSWCCA 287
R v Markarian [2005] HCA 252023/47810
Judgment (2 paragraphs)
[1]
REMARKS ON SENTENCE
Mr Stuart Rycroft is before the Court today for sentence in respect of 6 property offences. He entered guilty pleas in the Local Court on 20 July 2023 and was committed for sentence in this court, where he maintains his pleas. It is common ground that Mr Rycroft should have, and I will allow, a discount of 25% on sentence for each offence on account of his early pleas.
The matters for sentence are 5 counts of break enter and steal, contrary to s 112(1)(a) of the Crimes Act and one count of attempt break and enter with intent, contrary to s 113(1) of the Crimes Act. The offences are split between two sets of offences and nominated sequences 1, 3, 5 and 6 of H92419632 and sequences 1 and 3 of H93067958. 958/1 is the attempt offence.
Each of the offences is serious, as indicated by the maximum penalty prescribed by Parliament, which, for each of the five s 112(1)(a) offences is 14 years imprisonment and for the s 113(1) offence is 10 years imprisonment. Each of the offences was capable of being dealt with in the Local Court, and perhaps more frequently are than in this Court, as is evidenced by the want of a meaningful sample for this offending within the statistics maintained by the Judicial Commission.
In addition to the matters for sentence, Mr Rycroft asks that when I sentence him for the offence nominated sequence H632/3, I take into account 3 matters on a Form 1 attaching to it. I consider it appropriate to, and will, take those matters into account when sentencing him for the offence to which they correspond. The offences on the form are 1 offence of enter dwelling with intent to steal, one offence of enter enclosed lands and one offence of possession of testosterone.
Aside from other matters which will be addressed shortly, it is notable that the offending was aggravated by reason of the fact that Mr Rycroft was subject to conditional liberty at the time of the commission of the offences. The present offences were committed whilst Mr Rycroft was subject to parole for break and enter offences charged by reference to H62260025 and H64842822. For that offending, he had been sentenced to an aggregate head sentence of 5 years, 6 months, commencing 4 November 2017 and expiring on 3 May 2023. The non-parole period fixed was 4 years, which expired on 3 November 2021, on which date he was released to parole. On 20 March 2022 he committed a further break and enter offence for which he was arrested on 1 July 2022. He was then incarcerated until 10 November 2022, when he was released into the community on the Drug Court program. Following his arrest for the present offending, on 29 January 2023, his Drug Court parole was revoked and he was resentenced for the March 2022 offence (H328) on 9 March 2023. The sentence then imposed was a sentence of 23 months commencing 23 September 2022 with a non-parole period of 14 months expiring 22 November 2023. Also during this period, from 29 January 2023 until the expiry date of 2 June 2023, Mr Rycroft was serving the balance of his revoked parole in respect of the H025 and H822 offences.
After expiry of the non-parole period for the H328 offence, Mr Rycroft remained bail refused, solely in respect of the present offending, until, over the opposition of the prosecution, he was granted bail by me pursuant to s 11 of the CSPA on 14 December 2023. He has remained on bail since that time.
The total time spent in custody between the date of his arrest and being granted s11 bail was 319 days.
Among other salient considerations in this quite unusual sentencing exercise is the fact that, between 19 May 2017 and the date he first appeared before me for sentence in October 2023, a period of almost 6 and ½ years, Mr Rycroft had been serving a sentence in one form or another - in prison or on parole. Most significantly, within that extended period, he had spent only 11 months and 18 days in the community.
The present offences were variously committed over a period of a month, respectively on 29 December 2022 and 8, 10, 18 and 29 January 2023. The facts related to the offending are set out in a Statement of Agreed Facts tendered with the prosecution materials. It provides as follows.
At 9.20am on Thursday 29 December 2022, the occupant of a unit at Military Rd Neutral Bay locked, secured and closed all doors and windows before leaving the unit.
At 2.21pm that day, the offender was captured on CCTV walking into bushes directly underneath the unit window. The offender removed a flyscreen and opened the previously closed window, thereby gaining entry into the unit.
Once inside, the offender searched the unit and stole a jar containing $150AUD (632/1).
At 3.20pm on Thursday 29 December 2022, the occupant of a unit at Falcon St Crows Nest locked and secured the majority of the unit's doors and windows before leaving it with his family. The kitchen window was unlocked.
At 3.39pm that day, the offender was captured on CCTV entering the unit complex. The offender utilised a small bucket to boost himself up onto the unit balcony. The offender entered the unit via the unlocked kitchen window.
The offender searched the unit. He left with no proceeds. The offender entered the unit with the intent to steal (632/2 - Form1).
At 7.07pm on 8 January 2023, the offender was captured on CCTV attending a unit block at May St Eastwood.
The offender climbed over and onto the balcony of Unit 1, removed the flyscreen of the balcony window and attempted to gain entry into the unit via the window. The offender's attempted break-in was thwarted by the locked window. The owner was not inside the unit at the time of the attempted break and enter. The offender attempted to break into Unit 1 with the intention of stealing property therein (958/1).
The offender then climbed onto the balcony of Unit 2. The offender removed the flyscreen of the balcony and entered into the unit by opening the unlocked window. Whilst inside, the offender stole and removed a gold necklace and $300AUD. The offender left the unit in possession of the stolen items (958/3). The occupant of the unit was not inside the unit at the time of the break and enter.
At 1.30pm on Tuesday 10 January 2023, the occupant of a unit at Rangers Rd Cremorne left the unit to go shopping. She locked and secured the unit's doors and windows.
At 4.18pm that day, the offender was captured on CCTV entering the unit complex. He broke and entered into the unit via a ground floor window.
Whilst inside the unit, the offender searched two bedrooms. The offender stole and removed $2000AUD and 400,000 Japanese Yen from a bedroom. The offender further stole and removed $350 from the unit's second bedroom. The offender left the unit in possession of the stolen moneys (632/3).
At 6.05pm on Wednesday 18 January 2023, the offender was captured on CCTV entering a residential unit block situated at Hampden Road, Artarmon. The offender walked into the stairwell attached to four of the units in the complex and used a torch light on his mobile phone to peer into the balcony of one of the units.
The offender does not reside at the location. He did not have a lawful excuse to enter the in closed lands described. (632/4 - Form 1)
At 10.30am on Sunday 29 January 2023, the owner of a unit at Doomben Ave, Eastwood locked and secured the unit's doors and windows before leaving the premises.
Between 10.30am and 10.00pm that day, the offender utilised a chair to reach the unit's window. The offender removed a flyscreen and opened the previously closed window, thereby gaining access inside the unit.
Whilst inside, the offender searched the unit. He stole and removed a golden ring and golden necklace, valued at a combined $1700AUD. The offender left the unit in possession of these items. (632/5).
At 6.55pm on Sunday 29 January 2023, the owner of a unit at Ethel St Eastwood left the unit to go out for dinner with his wife and child. He locked and secured a majority of the unit's doors and windows, save for the balcony sliding door. The sliding door was closed yet unlocked.
Between 6.55pm and 7.35pm, the offender entered the unit via the unlocked balcony sliding door. Once inside, the offender searched the unit and stole a gold money bag pendant with the word 'happiness' engraved and a gold trinket with the word 'safe' engraved, worth a combined $3000AUD. The offender left the unit in possession of these items (632/6).
At 10.00pm on Sunday 29 January 2023, the offender was stopped by police outside his Barangaroo unit. Police held a reasonable suspicion that the offender was in possession of stolen property. The offender was subjected to a lawful and valid search of his person.
During the search, police located and seized the gold moneybag pendant with 'happiness' engraved and the gold trinket with 'safe' engraved, a gold ring and a gold necklace from the offender's right sock. These items were previously stolen from the units described above.
The offender told police that the jewellery items belonged to him and he had owned the items for the past five years. The offender was placed under arrest after the items were confirmed stolen.
At 3.35am on Monday 30 January 2023, police executed a search warrant at the offender's residence. During the search, police located a container, which contained 10ml of Testosterone labelled "Genesis". Testosterone is a prohibited drug as per Schedule 1 of the DMTA (632/8 - Form 1).
Police further located various items of clothing worn by the offender during the commission of the offences.
As the facts outlined reasonably reveal, in my assessment, the objective gravity of each of the offences is properly characterised as towards the lower end of the broad spectrum of conduct caught by these serious offence provisions. They are matters which could have been, and perhaps but for Mr Rycroft's history, likely would have been dealt with in the Local Court. The only offence about which there was any demur in respect of the characterisation of this offending related to sequence 632/3. With respect to the prosecution submission that the offending in respect of that offence falls within a notional mid-range, I am not satisfied that there is anything substantial which distinguishes it to that extent from the other offending, which is all conceded to be within what is described, I think reasonably and fairly, as "the low range". Although the value of the property stolen is greater than in respect of the other offences, it is still very low within the applicable range, the upper threshold of which is $60,000.
Without in any way intending to downplay the seriousness of the offending, which represents a serious and unwarranted intrusion into the sanctity of the homes and interference with the property of each of the victims, they are all fairly described as particularly unremarkable instances of offending against the relevant provisions. They are reasonably characteristic of this type of offending when, as it frequently is, it is associated with long standing problems with the abuse of illicit substances and an impulsive or spontaneous attempt to fund that abuse.
Uncharacteristically, certainly in contrast to Mr Rycroft's earlier offending, the present offences were motivated by circumstances of financial distress which, as I will shortly explain in a little more detail, he was too proud to reveal to those who may have been able to help in those circumstances, in particular people associated with the Drug Court program in which he was then participating, not for the purposes of obtaining money to buy drugs. This does not excuse the offending, or operate in mitigation, but it does give context which is ultimately important in determining the appropriate resolution of these matters.
Each offence was committed at a time when the premises were unoccupied. No damage was caused at the break-in point. In general, entry was gained by removing a flyscreen and/or going through an open or unlocked window or sliding door. The sole occasion on which he was met with a locked window (958/1), Mr Rycroft abandoned his attempt to break in. There was no vandalism or ransacking evident in respect of any of the offences. The monetary value of the property taken was not great (particularly viewed against the upper threshold of the range for the offence), although as one might reasonably expect some of the personal effects taken likely had significant value to the victims. There was little if any planning in respect of each offence, they were all quite impulsive.
In addition to the matter already mentioned, the commission of the offences whilst on conditional liberty, there are two further matters which aggravate the offending: the first is Mr Rycroft's extensive criminal history for similar matters and the fact that the offending occurred within the home of each victim. The fact that there were a number of offences, which might otherwise aggravate the offending, coincides in my mind closely with the criminal history and it is appropriate not to double penalise the offender. In any event, that head of aggravation recognised by the statute, I apprehend is intended to meet the instance of rolled up offences, not the situation where there are a number of offences each individually intended to be the subject of this sentencing exercise.
Mr Rycroft gave evidence on sentence and several times additionally on the adjourned hearing of the proceedings, appointed from time to time to check on his progress on s 11 bail. I found him to be a frank, insightful and a carefully considered witness. In addition to his own evidence, given when he first appeared before me on 27 October 2023, and in subsequent appearances, his subjective situation was illuminated through a report of a psychologist, Ms Clair Baker, dated 16 October 2023 and a number of references and letters. It has also been supplemented in the time since his initial appearance with material confirming his participation in and completion of various programs as well as the results of reasonably regular urinalysis tests. The psychologist appears to have formed a similar impression of Mr Rycroft to my own. She described him as having presented as sincere and straightforward, with no apparent attempt to engage in what could be described as self-serving behaviours.
Mr Rycroft is now aged 54. He was 52 at the time of the offending. As has been noted, he has an extensive history of similar offending, all of which appears to have been committed against the backdrop of long-standing problems with illicit drug use.
Save for one incident of assault by a teacher in Year 5, which appears to have had a substantial impact upon him, Mr Rycroft's developmental background is relatively unremarkable. He had a positive early childhood and comes from a happy supportive family. His parents and brother continue to offer positive support. He appears to have a network of positive pro-social connections in the community, in addition to the support of his family.
He was first introduced to illicit drugs at the age of 19, commencing with cannabis and moving from drug to drug throughout his twenties, rapidly progressing from recreational use in each case to addiction/abuse with each drug to which he was successively introduced. This illicit drug use was punctuated with periods of incarceration. Following his release from a period of incarceration he was first introduced to heroin in 2009. He descended into daily use of that drug, by smoking half a gram of the substance per day. He maintained that use consistently up until the time of his arrest for the H328 offence in mid 2022. It was during his time on remand for that offence that he was introduced to the Drug Court program. Since that time, he has remained abstinent.
Mr Rycroft described himself as never having been part of a "heroin scene". He kept his use secret from those around him, he was ashamed of it, but was able to use it and yet still function. Ms Baker opines that Mr Rycroft used illicit substances to manage psychological discomfort, to feel more at ease around others and to reduce his anxiety. In addition to intermittent symptoms of low mood and anxiety, for which he receives medication, Ms Baker opines that Mr Rycroft meets the diagnostic criteria for an Opioid Use Disorder, namely Opioid Dependence.
Whilst on remand for the H025 and H822 offences Mr Rycroft moved into shared accommodation; he rented the second room in an apartment at Barangaroo. He did so with the express wish to remove himself from anti-social influences in the area in which he had previously lived. His flat mate, the owner of the unit at Barangaroo, was a professional, pro-social woman with whom he got on well. Throughout his first period living at that unit, he continued his daily use of heroin. He describes everything at that time as going really well. He told his flatmate about his heroin use. She was the first person he had ever told. He said he had wanted to stop using heroin for a long time, however had not had the courage to tell anyone about it as he was too ashamed. He felt that being able to tell his flat mate was a positive step forward. He said telling her was a turning point, in that he was talking about it for the first time ever. His flat mate was supportive. Two days after telling her about his heroin use, he was arrested for the H328 offence.
Mr Rycroft was eager to address his heroin use and wanted to do the Drug Court program. He wanted to retain his Barangaroo accommodation, which he knew placed him in the Drug Court catchment, unlike Coogee where he had previously lived, so he continued to pay his rent. That rent, when he was arrested in 2022, was $700 per week. It increased by a further $200 p/w whilst he was on remand. Concerned that it might otherwise jeopardise his acceptance on or position in the program, Mr Rycroft told those administering the Drug Court program that he wouldn't be paying rent when he moved back into the community. He was concerned that they would reject him on the basis that the rent was too expensive. Four months into his remand for the H328 offence he was placed on the Drug Court program.
Mr Rycroft loved the program and was inspired and motivated by it. He responded well. He felt that being accountable to others, in the way the program required, had a positive impact on him. Everything was going well, until he ran out of money on account of the expense of his rent. He said he had about $10,000 saved when he was released. He said he knew the whole time he was on remand that having adequate funds to live was going to be a problem once he was released, but he didn't tell anyone because he didn't want it to jeopardise the Drug Court program, which he knew he needed to assist his rehabilitation.
He said in his evidence that he desperately wanted to be in the Drug Court program but was too proud and insufficiently emotionally educated and was not able to be honest and open about his problems. He said that once his money ran out, that is when his problems started. He wishes now he had just been honest and forthright with the Drug Court about his problems. It was that financial difficulty that motivated the present offending, not, as had been the pattern of the past, the need for money to fund his illicit drug abuse.
I earlier described this as an unusual sentencing exercise. The reason I so describe it is because in my assessment it is a case that tests the bounds of the exercise of the sentencing discretion. It also raises serious questions about what it is, as a community, we expect and require when sentencing an offender and what collectively we hope to achieve by any particular sentencing result.
Sentencing, as expressed by the Crimes (Sentencing Procedure) Act 1999, involves the imposition of a penalty for an offence. The purposes for which a penalty may be imposed are articulated, without any priority among them, in s 3A of the relevant Act. Punishment is but one of the prescribed objects of sentencing. There is no articulation of "purposes of punishment" and no prescription of a bottom line in their achievement (cf R v Lulham [2016] NSWCCA 287, at [49]). Section 5 of the Act contains a proscription against imprisonment absent satisfaction that no other penalty is appropriate. Matters in mitigation or aggravation that must be taken into account in determining the appropriate penalty are outlined in s 21A in a non-exhaustive fashion. With an exception in the case of aggregate sentences, s 44 of the Act requires that the court first set a non-parole period, representing the minimum period for which the offender must be kept in detention in relation to the offence. There is nothing in that scheme that warrants any particular qualification upon, or departure from, the statements of sentencing principle that have emanated from the High Court from time to time concerning the instinctive synthetic approach to the exercise of the discretion.
In addition to being apparently outside the language and policy of the relevant legislative scheme, any approach that necessarily gives predominance to punishment or deterrence (or indeed any object or objects) over another or other objects or which necessarily gives predominance to the objective gravity of the offending ahead of other relevant considerations, would in my understanding of them be contrary to those statements of principle by the High Court. In Markarian, at [37], the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) made the following observations and reference:
"In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong [30]: [emphasis added]
'… there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which... balances many different and conflicting features.
...
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.'" (emphasis in original)
Instinctive synthesis is perfectly amenable to transparency and necessarily requires accessible reasoning (Markarian at [39]); it must if it is to be properly contained by the strictures of House v R ([1936] HCA 40; 55 CLR 499 at 505).
As McHugh J observed in Markarian (at [84]):
"The acceptance of the role of instinctive synthesis in the judicial sentencing process is not opposed to the concern for predictability and consistency in sentencing that underpins the rule of law and public confidence in the administration of criminal justice. The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case. The instinctive synthesis approach does not prevent the use of adjectives or adverbs or indications that this or these factors makes or make the case more or less serious than other cases or are the critical features of the case. And judicial instinct does not operate in a vacuum of random selection. On the contrary, instinctive synthesis involves the exercise of a discretion controlled by judicial practice, appellate review, legislative indicators and public opinion. Statute, legal principle and community values all confine the scope in which instinct may operate."
I apprehend that the consistency of which his Honour speaks in that passage is concerned with consistency of approach, rather than necessarily consistency of result. All of what his Honour has to say on the topic of sentencing in that case (and elsewhere for that matter) expressly recognises the individualised nature of the exercise of the sentencing discretion and the capacity accordingly for vastly differing outcomes between cases that might in limited respects otherwise appear similar.
As is evident from Veen [No 2], the principle of proportionality is primarily intended to mark the outer limits of the imposition of penalty ((1988) 164 CLR 465 at [8] per Mason CJ, Brennan, Dawson and Toohey JJ). Whilst it must be accepted that sentencing outcomes (including minimum and maximum periods of imprisonment) should bear a degree of proportionality to the objective gravity of the offending, notions of proportionality are not as I perceive the relevant pronouncements of the High Court, intended to undermine in any respect the requirement that in fixing an appropriate penalty in any particular case, regard must be had to all the circumstances of the case. Proportionality is not a principle that dictates predominance must be given to the objective gravity of the particular offending over and above any other relevant features and circumstances of the case, nor does it dictate that particular objects of sentencing necessarily or inevitably predominate over others.
Distilled in combination, the scheme of the Act and the various articulations of principle by the High Court appear to require that the proper exercise of the sentencing discretion involves a careful balancing, not simply of the subjective matters against the objective seriousness of the offending (cf R v Lulham [2016] NSWCCA 287, at [49]) with priority accorded the objective considerations, but rather a balancing of all considerations relevant to determining the appropriate penalty in the individual circumstances of the particular case.
Properly understood, that approach might result, in the circumstances of a particular case, in greater significance attaching to the objective gravity of the offending than to other considerations. In a different case, the just imposition of an appropriate penalty might necessitate priority being given to subjective considerations, notwithstanding the gravity of the offending and might attract prominence to some objects of sentencing ahead of others. Two things are certain. One is that the task is rarely, if ever, easy. The other is that in the case of any individual sentencing exercise, minds might reasonably differ as to the appropriate balance and the weight properly to be accorded the multitude of considerations relevant to that exercise. The corollary of the latter proposition is that the ultimate synthesis of those considerations will likely be amenable to a range of outcomes in terms of the penalty appropriate in a given case.
In terms of the appropriate penalty in all of the circumstances of the present case, there appear to me to be a number of important considerations. Significant among them, to my mind, is the fact that after decades of illicit drug abuse and associated offending of a type similar to the present, Mr Rycroft has achieved some stability and sobriety which provides an optimistic foundation for breaking the cycle of offending and incarceration that have repetitively punctuated his adult life. Of course, offending of this character must be punished and denounced. There must also be deterrent work, both general and individual, to be done by the result, as well as acknowledgment of harm to the victims. Ultimately, and with a view to the long term, the best interests of the community, and to my mind the interests of justice accordingly, lie in doing whatever reasonably can be done, within the bounds of all the other operative constraints, to ensure Mr Rycroft never again offends.
There has been some delay in the disposition of these matters. Part of that delay has involved extending to Mr Rycroft the opportunity to demonstrate through the terms of the conditional liberty afforded by s 11 bail, what I determined, after seeing and hearing his evidence, was a genuine desire to reform. That desire has existed for some time. He was, I apprehend, genuinely grateful for the opportunity to participate in the Drug Court program. His participation in that program, with the motivation with which he came to it, has had the significant result that he has now been sober for some considerable time.
My original contemplation, when it was first raised with the parties in October last year, was that Mr Rycroft may have been able to access a residential rehabilitation program over an extended period. As it turned out, through the regrettable limits on the resources available to people in his position, the only program Mr Rycroft was able to access was the month-long program offered by 'the retreat', a drug and alcohol education and rehabilitation centre. Between mid-December, when he was released on bail to the program, and mid-January, Mr Rycroft was reported to be "an enthusiastic and committed participant in all parts of the program". In light of the positive progress in that program and the engagement with NA, I extended to Mr Rycroft further opportunity to demonstrate stability and sobriety in the community by continuing his bail from January until today. The opportunity provided by the s 11 mechanism has allowed something in the nature of an analogue for the Drug Court program. In the present case it has depended substantially more upon Mr Rycroft's discipline and attendance to the requirements for his rehabilitation than upon the concentrated supervision the Drug Court program might provide. He has to date not disappointed in my assessment of his determination and capacity to reform.
With frankness and insight Mr Rycroft recognises and concedes that prior to his participation in the Drug Court program, he had a mentality of not wanting to be involved in rehabilitative programs.
He said that being in the Drug Court program brought him the insight both that he needed to be and wanted to be in a program. In addition to what he learned in that program, in his most recent time on remand, and since being released to bail, he has engaged with Narcotics Anonymous (NA) and acquired, for a time, a sponsor in that program. This has brought with it further insight and progress in his aspirations to a sober and law-abiding stable existence in the community. He said in evidence that he wished he had known when he was doing the Drug Court program what he has learned from NA.
As I have already recorded, he said that although he wanted to be in the Drug Court program, he was then still too proud and insufficiently educated to be completely honest and open about his circumstances with the people overseeing the program. Again, as already recorded, as it turned out, and what he failed to reveal to those responsible in the Drug Court program for his supervision, was that his financial resources were inadequate to cover his rent over an extended period.
It was those financial difficulties that motivated the present offending. For the first time he was not stealing to obtain the money to purchase drugs, he resorted to old habits in this form of offending to meet the financial needs of remaining in the community so he could continue in the Drug Court program without revealing the difficulties he was experiencing. He says quite openly that he now wishes he had just been honest with the Drug Court about his problems but recognises now he was too embarrassed and not emotionally equipped to be frank with them about his difficulties. He says he doesn't have that problem anymore. After his experience of the retreat program and NA he says he is equipped to speak frankly and openly with strangers about his problems.
Notwithstanding the present offending, committed in the circumstances in which it was, Mr Rycroft has through the combination of his participation in the Drug Court program, the retreat residential program and by engagement with NA in the community achieved considerable progress. He has remained sober, without any further offending, for an extended period. It was his lack of sobriety that historically has been the principal, if not only, contributing factor to his long history of offending.
Accordingly, the delay in the resolution of these matters has enabled some considerable personal development that must have favourable account.
It seems to me to be no exaggeration to say that the offender has in the meantime turned his life around and taken substantial steps to removing the one significant risk factor in terms of the likelihood of any re-offending. As I have already intimated, as a witness he impressed me as a man with a genuine, strong determination to do all in his power to ensure that he lives a law-abiding life in the future. He strikes me as having the insight, the intelligence and the capacity generally to give effect to those wishes.
His determined efforts in addressing his problems with addiction are a concrete example both of his willingness and his capacity for change. They also represent a substantial manifestation of his insight and his remorse. The only interference in his positive progress since commencing the Drug Court program was the offending represented by the present matters. He has explained that stumble frankly and I assess he has learned a salutary lesson as a consequence.
The offender is not young. I think through the experience of the Drug Court Program, his expulsion from it in the circumstances of this offending, and the efforts he has made since, Mr Rycroft recognises that he was, when he was arrested for these offences, at a cross-roads. There is a credible basis in the progress he has made to say that he has moved past that cross-roads and is well on the road to rehabilitation. That is something that must in all the circumstances of this case assume considerable significance. The protection of the community is best contributed to by the successful rehabilitation of offenders.
Mr Rycroft has demonstrated not only prospects of rehabilitation but also actual progress towards his rehabilitation. Notwithstanding his history, everything I have recounted leads me to conclude that properly supported and supervised the prospect of his re-offending is low. In my view it is right to conclude that he is very unlikely to re-offend if nothing occurs to disturb the progress he has already made. He has strong protective factors towards maintaining the progress he has made. Those factors reside in his intelligence, his insight and, significantly, the active pro-social support he has garnered in the community. He enjoys not just the love and support of his parents; he has the additional support of NA which has been significant in ensuring Mr Rycroft's stability and progress in the community during this period on bail. He also has a network of pro-social friends.
There is no issue in the present case, and I agree, that in all the circumstances of the offending and the offender there is no penalty appropriate other than a sentence of imprisonment.
Considerations of totality, and in particular bearing in mind the amount of time over the last seven or eight years which Mr Rycroft has spent in custody, avoiding what must be a substantial risk of institutionalisation justify back dating any sentence for the present offending well into the period of revoked parole referable to the earlier offending. It is appropriate in all the circumstances of this case, accordingly, to commence a sentence from the date of arrest for the present offences.
An important matter that the Act and the authorities require that I address is to determine (including in respect of an aggregate sentence, which I intend to impose) what, in all the circumstances, is the minimum time that the offender must be kept in detention.
In Bugmy v R [1990] 169 CLR 525 (particularly at [17] - [21]), the Chief Justice and Justice McHugh provide an insightful analysis of the complexity in setting a non-parole period. At [18] and [20] their Honours said:
"… although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan (1980) 7 A Crim R 146. In that case Jenkinson J., with whom Kaye J. agreed, pointed out (at p 155) that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community "will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice".
A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members… Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence (Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at p 477), whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment [emphasis added]."
In the same way that juries are regularly encouraged to bring their common sense and experience of the world and human affairs to bear in the fulfilment of their duty, a judge exercising the sentencing discretion must likewise bring to bear her or his own experiences, both professional and personal, in assessing the likelihood of particular outcomes. The circumstances in the present case point powerfully to the real likelihood of this offender never again offending and of him making a substantial, law abiding contribution to the community in the future. That likelihood needs to be fostered in the community's interest.
Having regard to all the circumstances of this case, but in particular the various subjective matters in his favour which I have outlined, I am satisfied that the minimum period that Mr Rycroft must be kept in detention in respect of the present offences should be much shorter than the period the objective gravity of the offending might otherwise compel were it not for the powerful, and indeed in my view exceptional, combination of the various subjective factors. Those factors being, in summary: the fact of his demonstrated insight and rehabilitation; the limited risk of him ever again offending; the existence of supportive factors against that risk; and, finally, the need, in the interests of the community's protection, to ensure that the progress he has made is not unwittingly and unnecessarily disturbed in the pursuit of other objects.
The community is entitled to expect that any sentence for offending of this character would carry an element of denunciation and punishment, in recognition of the circumstances of the crimes committed and acknowledgement of the harm to the victims. I think the community's expectation also properly would be that any penalty might include some component of full-time custody.
Were there greater scope available in the imposition of alternatives to full time custody than the present limitation of 3 years (for multiple offences), this case would in my assessment be disposed of most appropriately by an order that any term of imprisonment be served by way of an Intensive Corrections Order. However, even on the most favourable view of all the circumstances, which are exceptional in many respects in favour of leniency, I do not consider the justice of the case could sustain a conclusion that a sentence of 3 years imprisonment, in aggregate for all this offending, was adequate.
However, where an offender has made such a compelling demonstration of remorse and rehabilitation, to the point that the likelihood of him ever re-offending is reasonably assessed as being low, and considerations of community protection accordingly diminished, I also consider that the community would reasonably expect and understand that the courts would in all those circumstances extend leniency proportionate to the exceptionality of those particular circumstances.
Other than in recognition of the need for appropriate denunciation, punishment, and acknowledgement of the harm done to the victims, I consider that in light of the progress he has made the community gains nothing from Mr Rycroft's further incarceration. Also, in light of that progress, the need for protection of the community does not feature in this exercise, save to the extent that the community is protected by ensuring maintenance of his very real rehabilitative progress. For so long as the offender is incarcerated, the community is denied in the meantime his capacity to make a meaningful contribution. There is also the risk that his substantial progress will be interrupted and his motivation and capacity to make a positive return to the community will be defeated if he is denied that opportunity for too long. Indeed, in this matter, Mr Rycroft's capacity fully to engage in community life, including by attempting to arrange permanent or long-term employment, has been disturbed already to some degree by the knowledge that whatever the ultimate outcome, he will have to return to prison for a period of time. In R v Moon ((2000) 117 A Crim R 497 at [81]), Howie J made the following observations, later endorsed in PWB v R ([2011] NSWCCA 84 at [80]), which in my view are appropriate to the just determination of the present case and to addressing considerations of punishment and denunciation in particular. His Honour said that where there has been delay in a matter's disposition and there has been demonstrated rehabilitation in the meantime then:
"… it is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct"
In the light of the foregoing, I consider that the exceptional circumstances of the present case justify a conclusion that the minimum period which must be spent in detention in respect of this offending will necessarily involve the ratio between the parole and non-parole periods departing substantially from the statutory ratio. However, I consider that the circumstances of the present case are properly described as exceptional, not just special. Notwithstanding the legislative prescription in NSW of a ratio which is to apply absent a finding of special circumstances, short periods of full-time detention relative to a substantially longer head sentence are not unknown to the jurisprudence of the criminal law in Australia. Frequently in sentencing for Commonwealth offences, offenders, even in respect of serious offending, are conditionally released on a recognisance, either immediately or after a short period of full-time custody, if that best meets the individual circumstances of the particular case.
In all the circumstances of this offending and this offender, I assess that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment which might otherwise compel greater recognition.
Balanced against those considerations that feature prominently in informing the determination of the non-parole period, and pulling in a different direction, which likely gives greater recognition to the objective gravity of the offending than to considerations otherwise compelling leniency, a head sentence should be fixed that necessarily carries with it an implicit incentive to the offender, through conditional freedom and supervision in the meantime, to maintain his good progress with the prospect of the obvious sanction in the event, which I assess as highly unlikely, that he fails in that regard.
Given that they likely have even greater application in the circumstances of an offender who has demonstrated actual rehabilitation, the comments of King CJ in R v Osenkowski ((1982) 5 A Crim R 394) are noteworthy in the circumstances of the present case. His Honour there said that there is a place for the exercise of mercy and leniency, even for offenders with bad records, when leniency at that stage of the offender's life might lead to reform. One might add to those remarks the words: or might lead to the maintenance of demonstrated reform or ensure no more potential disturbance than is otherwise warranted to its progress.
In a similar vein, one of his Honour's predecessors, Napier CJ, said in Webb v O'Sullivan ([1952] SASR 65 at 66) that the courts should endeavour to make the punishment fit both the crime and the offender and added that the first concern was the protection of the community. Subject to that his Honour said:
"[T]he court should lean towards mercy. We ought not to award the maximum which the offence will warrant but rather the minimum which is consistent with due regard for the public interest."
In the present case, the public interest favours ensuring this offender's continued good progress and being astute to do nothing that might disturb that progress. As I have indicated already, the balance of all the foregoing considerations will require an adjustment to the statutory ratio in order to do justice in the individual circumstances of this case, that is quite properly described not just as special, but exceptional. I consider that the balance of all the circumstances of this case warrants that exceptional consequence. Indeed, this case in my assessment fairly meets the description of "most extraordinary circumstances".
I intend to impose an aggregate sentence. In doing so, I make clear that there should be some implicit accumulation among the offences. There is separate criminality attaching to each. However, a degree of implicit or notional concurrence is also appropriate to recognise the connections between the offences which represented a course of conduct over a period of weeks which was all identically motivated in the manner I have outlined.
Had I not done so, in each case taking into account the discount for the plea of guilty and in the case of 632/3 also the Form 1 attaching to it, with some rounding in some cases to avoid sentences indicated in days, the sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are as follows:
1. For 632/1, a sentence of 1 year 2 months.
2. For 958/1, a sentence of 9 months.
3. For 632/3, a sentence of 2 years 5 months.
4. For 958/3, a sentence of 1 year 2 months.
5. For 632/5, a sentence of 1 year 11 months.
6. For 632/6, a sentence of 2 years 3 months.
I consider that the exceptional circumstances of the present case justify a conclusion that the minimum period which must be spent in detention corresponds with the period between arrest and release to s 11 bail. In the circumstances where the head sentence will exceed 3 years, it is inevitable that Mr Rycroft must return to custody in order to have his situation assessed by the Parole Board, hopefully in light of the various matters I have outlined.
For the foregoing reasons, I make the following orders.
Orders:
For all six matters for sentence, the offender is convicted.
The aggregate sentence I impose is a sentence of 4 years and 6 months imprisonment commencing from 29 January 2023. I fix a non-parole period of 10 months 14 days commencing from that same date. On the information presently available to the Court the earliest date on which the offender became eligible to be released to parole in respect of the present offending was 12 December 2023.
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Decision last updated: 29 October 2024