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[2010] NSWCCA 20
Court of Criminal Appeal (NSW)
2009-12-09
James J, Hulme J, Hidden J
Original judgment source is linked above.
The application 16 Ms Wells SC, who appeared for the applicant, pursued the application on three grounds. They were that the sentencing judge failed: (1) to give adequate weight to the applicant's mental condition; (2) to properly take into account parity of sentences with co-offenders; and
(3) to give effect to a finding of special circumstances.
Special circumstances 17 It is convenient to deal with the first and third grounds together, as they are related. A comprehensive written submission concerning his Honour's approach to the psychiatric evidence was refined at the hearing to an argument that he had failed to give it the weight it deserved as a subjective factor and, in particular, had failed to take into account the fact that the applicant's custodial sentence would weigh more heavily upon him because of his mental illness. As to that last matter, as the Crown prosecutor in this Court pointed out, there was simply no evidence of any effect of the applicant's illness upon his conditions of custody. Moreover, as I have said, the last report of Dr Allnutt revealed that his course of medication had improved his condition markedly by September 2008. 18 However, the manner in which his Honour did take into account the psychiatric evidence requires closer examination. It is here that the two grounds intersect. His Honour appears to have had regard to the evidence primarily, if not entirely, as a basis for a finding of special circumstances warranting an adjustment of the statutory proportion between sentence and non-parole period. He saw the partial accumulation of the sentences as another basis for that finding. 19 After specifying the sentence which he had arrived at for the first and the second counts, his Honour said of the applicant: "Whilst he has lost consideration for leniency because he was on parole at the time of the offence following an earlier serious offence, I cannot overlook what the psychologists (sic) say about his mental condition and the need for a longer period of supervised parole. And further, this sentence will be cumulative on the sentence for the other count. So on the principle of totality I must allow an appropriate period on parole following an accumulation of sentences." 20 His Honour reflected the finding of special circumstances in the sentence on the second count, 4 ½ years with a non-parole period of 3 years. The sentence on the first count, 3 years with a non-parole period of 2 years and 3 months, preserved the statutory proportion. In round figures, that proportion was also preserved in the aggregate sentence of 6 ½ years with a non-parole period of 5 years. 21 Of course, sentencing judges frequently adopt that approach when accumulating sentences, a practice sanctioned by long standing authority: see Clarke v R [2009] NSWCCA 49, per McClellan CJ at CL at [14]. It is also true that, in all cases, the extent of an adjustment of the statutory ratio after a finding of special circumstances is a matter very much within the discretion of the sentencing judge, a discretion with which this Court would not lightly interfere: Clarke at [13] and the cases to which the Chief Judge there referred. Nevertheless, I think that there is force in Ms Wells' submission that the aggregate sentence fails to give effect to his Honour's finding of special circumstances, based, as it was, not only on the accumulation of the sentences but also on the psychiatric evidence. That evidence, particularly the passages from Dr Allnutt's last report quoted above, clearly demonstrated the desirability of a lengthy period of parole eligibility to encourage the applicant's maintenance of a course of medication and abstinence from illicit drugs.
22 Obviously, it was his Honour's intention to structure the sentences in such a way as to foster the applicant's rehabilitation. In my view, that intention would not be given effect by requiring the applicant to serve 5 years in custody followed by a period of parole eligibility of only 18 months. I am satisfied that in the circumstances the effective non-parole period is excessive and, on that basis alone, this Court should intervene.
Parity 23 Although the ground concerning parity was expressed to relate to the sentences of all four co-offenders, the focus was upon the sentence passed upon King. His Honour was aware of the sentence of King, who had earlier been dealt with by another judge. 24 King pleaded guilty to the aggravated attempted break and enter with intent at the Coonamble RSL on 8 December 2006, the offence the subject of the first count in the applicant's case. In his case there were the same two matters on the Form 1: the offences of aggravated break, enter and steal at the Peak Hill RSL Club on 9 October 2006 and at the pathology premises at Coonamble, also on 8 December 2006. He was sentenced to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 4 months. The applicant, it will be remembered, was sentenced to 3 years with a non-parole period of 2 years and 3 months. 25 King is a much older man than the applicant. He was almost 41 at the time of the offences, and is now 44. His criminal history is longer than the applicant's, and it also discloses a pattern of offences of dishonesty, for some of which he was sentenced to custodial terms. He was on parole for disqualified driving at the relevant time. He had a long-standing drug habit, but the judge who sentenced him was satisfied that he had a genuine desire to rehabilitate himself, particularly so as to support his partner and be a positive influence on his young son, and found special circumstances accordingly. Like the applicant, his sentence was arrived at after a 25% discount for his plea of guilty. 26 In sentencing the applicant, his Honour did not expressly consider the relativity between the sentence to be passed upon him and the sentences of the co-offenders. In particular, he made no specific reference to the sentence passed upon King and did no more than note that "co-offenders" had previously been dealt with, adding that in the case of the applicant he also had to consider "matters on Forms 1 which in themselves are separate serious offences". 27 The difference between the sentences passed upon the two men for the offences common to them is 6 months as to the head sentence, and 11 months as to the non-parole period. The question is whether that disparity is such as to enliven this Court's discretion to intervene on the basis that it engenders in the applicant a legitimate sense of grievance. The difference between the head sentences, although not insignificant, is not great. Ms Wells' submission was directed primarily to the more marked difference between the non-parole periods. However, some justification for that distinction could be found in the finding of the judge who sentenced King about his prospects of rehabilitation which, as they were assessed, were more favourable than those of the applicant. In King's case, this appears to have been reflected primarily in the non-parole period, which was only a little more than 50% of the sentence. 28 Further, on the question whether this Court should intervene on the ground of disparity, there are other matters to be considered. As the Crown prosecutor before us pointed out, the sentence passed on King, making all due allowance for his subjective case, was very lenient. Moreover, the applicant's sentence on the first count cannot be viewed in isolation. He also stood for sentence for other offences in which King was not involved, and his Honour's task was to structure those sentences in accordance with the principle of totality. In so doing, his Honour directed that the sentence on the first count be served partly concurrently with that on the second count and reflected the finding of special circumstances in the sentence for the second count, rather than the first, with an eye to the resultant aggregate sentence. 29 Taking all these matters into account, I am not persuaded that the disparity is such as to call for this Court's intervention. This ground is not made out.
Orders 30 In the event, I am satisfied that this Court should intervene to the extent of adjusting the non-parole period for the second count. For the purpose of re-sentence, we received material on affidavit disclosing that while in custody the applicant has pursued educational courses and undertaken a methadone programme. He enjoys the continuing support of his father, who visits him regularly. 31 I would reduce the non-parole period for the second count to 2 years and 3 months. Ms Wells made no complaint about the degree of accumulation of the two sentences, and there is no reason to disturb it. The aggregate sentence, then, would be imprisonment for 6 ½ years with an effective non-parole period of 4 years and 3 months. That non-parole period, in my view, remains sufficient to reflect the applicant's serious criminality, including the fact that the earlier offences were committed while he was at conditional liberty. The total sentence would expire on 3 May 2013, and he would be eligible for release on parole on 3 February 2011. 32 Accordingly, I would grant leave to appeal and allow the appeal. I would confirm the sentence on the first count. I would quash the sentence on the second count. On that count, taking into account the matter on the second Form 1, I would sentence the applicant to a non-parole period of 2 years and 3 months, commencing on 4 November 2008 and expiring on 3 February 2011, and a balance of term of 2 years and 3 months, commencing on 4 February 2011 and expiring on 3 May 2013.
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Robert Edwin DONN
R
CITATION: Robert Edwin DONN v R [2010] NSWCCA 20