252 CLR 601 Lehn v R [2016] NSWCCA 255
MD v R [2015] NSWCCA 37
Muldrock v The Queen [2011] HCA 39
244 CLR 120
R v Henry [1999] NSWCCA 111
46 NSWLR 346
R v Ponfield [1999] NSWCCA 435
48 NSWLR 327
Regina v Simpson [2001] NSWCCA 534
Source
Original judgment source is linked above.
Catchwords
252 CLR 601 Lehn v R [2016] NSWCCA 255
MD v R [2015] NSWCCA 37
Muldrock v The Queen [2011] HCA 39244 CLR 120
R v Henry [1999] NSWCCA 11146 NSWLR 346
R v Ponfield [1999] NSWCCA 43548 NSWLR 327
Regina v Simpson [2001] NSWCCA 53453 NSWLR 704
Sabongi v R [2015] NSWCCA 25
Soames v R [2014] NSWCCA 158
Trad v R [2009] NSWCCA 56
Judgment (9 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/127931
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 5 December 2014
Before: Hanley SC DCJ
File Number(s): 2013/127931
[2]
Offences and sentence
On 3 April 2014 after a five day trial before his Honour Judge Hanley SC and a jury, the applicant was convicted of the following two counts:
Count 1 - Robbery in company causing grievous bodily harm, contrary to s 98 Crimes Act 1900 (NSW). The offence carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years.
Count 2 - Aggravated break and enter and commit serious indictable offence (intimidation), contrary to s 112(2) of the Crimes Act. The offence carries a maximum penalty of imprisonment of 20 years and a standard non-parole period of 5 years.
On 5 December 2014 the applicant was sentenced by the trial judge to an aggregate term of imprisonment of 15 years with a non-parole period of 11 years. The sentence was backdated to commence on 24 April 2013. Accordingly, the non-parole period is due to expire on 23 April 2024. The non-parole period is 73.3 per cent of the total term, i.e. the adjustment to the statutory ratio resulted in a reduction to the non-parole period of 3 months.
The sentencing judge set out the indicative sentences as follows:
Count 1 - Imprisonment for 13 years with a non-parole period of 9 years.
Count 2 - Imprisonment for 7 years with a non-parole period of 4 years 9 months.
The ratio of the non-parole period to the head sentence for each indicative sentence was 69.2 per cent (Count 1) and 67.9 per cent (Count 2) respectively.
The applicant was sentenced on 5 December 2014. No Notice of Intention to Appeal (NOA) or Notice of Intention to Apply for Leave to Appeal (NIA) was given within 28 days of sentence. An NOA was filed by the applicant on 20 July 2017.
The applicant thus requires leave to appeal out of time. The applicant filed his NOA, along with a request for an extension of time on 4 June 2018. The applicant provided an affidavit in support of his application for extension, along with that of his solicitor, Ms Janet Witmer.
The applicant relies upon a single ground of appeal. There is no challenge to any of his Honour's fact finding.
[3]
Ground of Appeal - The sentencing judge erred in failing to give effect to his finding of special circumstances
[4]
Application for extension of time
The Court has a discretion to extend the time within which a NOA or NIA is to be filed (s 10(1)(b) Criminal Appeal Act 1912 (NSW)).
The Court has emphasised the need to pay proper regard to the time limits imposed by the Criminal Appeal Act (Hornhardt v R [2017] NSWCCA 186 at [12]). Ultimately the question as to whether an applicant should receive an extension of time is determined by a consideration of the interests of justice. The prospects of success of the appeal is one of the relevant considerations (Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Lehn v R [2016] NSWCCA 255 and Hornhardt v R at [13]).
According to the affidavits of the applicant and his solicitor, there was a misunderstanding between the applicant and his then solicitors as to whether a NIA or NOA had been filed. The applicant thought that his then solicitors were dealing with that matter, when in fact such was not the case.
Approximately 18 months after he was sentenced, the applicant contacted his then solicitors and asked what was happening in relation to his appeal against sentence. He was told that they were waiting for a date. He assumed that this was normal and that matters were proceeding appropriately. Thereafter, the applicant experienced difficulty in contacting those solicitors so that he was compelled to ask his brother to assist. The applicant's brother learned that the solicitors had done nothing about the appeal.
The only evidence before the Court on this issue is the affidavit of the applicant affirmed 30 March 2018 to the effect that the delay in filing the NIA and NOA was due to a misunderstanding between him and the solicitors.
The affidavit of Ms Witmer of 31 May 2018 picks up the narrative from August 2017 when the first NIA was received by the Court. Her affidavit goes on to explain how a delay in obtaining the transcript of the sentence proceedings and trial exhibits further delayed the matter coming to court.
Although the explanation is not altogether satisfactory, I note that there is some substance in the ground of appeal relied upon, i.e. it does not appear to reflect the finding of special circumstances by the sentencing judge. Accordingly, I propose to grant an extension of time to the applicant within which to bring his NOA.
[5]
Factual background
On 30 October 2012 the applicant and another male arrived at the home of the victims in Leumeah. They had lived in that property for over 20 years.
The applicant and his co-offender were parties to a joint criminal enterprise to commit each of the offences of which the applicant has been found guilty. The applicant was identified as "the main guy". His co-offender has not been identified.
The applicant and the co-offender were each wearing a construction helmet and safety vest and posed as staff from Energy Australia. Victim 1 had a discussion with the applicant through a locked screen door. She was told that he was there "to do a safety check on the solar power system and the mains connection". She went outside to show the men the electrical mains box. She locked the front door behind her.
As she was returning to the house before she could go back inside, the applicant tried to grab her keys. The two men then commenced to assault her. During the assault she fell to the ground and was punched in the face by both men. She screamed out in pain and yelled "help, help".
Victim 1 felt what she thought was a stick or something similar to a pen against her hip and it left a small cut. She was dazed and confused. The front door was opened and the men continued to assault her as she was dragged into the house. She remembers lying on the hallway floor. She was held down and punched continuously. She heard one of the men say "hold her down".
Victim 2, who was disabled, was awakened by victim 1's screams for help. Shortly thereafter the applicant opened the door to his bedroom. The applicant stepped into the bedroom and said "I'm with the Rebels". "I've got a gun. I'll waste you. Where's the f---ing money?" Victim 2 explained that he did not have any money to which the applicant respondent "Stay in the f---ing room. If you come out of the door I'll f---ing shoot you".
While these threats were being made, he could hear victim 1 crying out in pain, as well as a number of thud noises coming from her direction. He heard her moaning after each thud. He was intimidated.
After the applicant left the room, victim 2 used a cordless landline phone and called triple-0. A short time later, he left the bedroom and found victim 1 curled up into a foetal position, lying on top of a mess in the dining room area. She was bleeding profusely from a number of injuries. He tried to comfort her while he made a second call to the ambulance service.
He walked around the house to ensure that the applicant and his co-offender had gone. He saw a black-handled knife, approximately 15 centimetres long, and a white construction helmet. Neither of these items belonged to the victims. The only property taken was the house keys.
An ambulance and police arrived at the house. The ambulance officers attended to victim 1. She was taken to hospital. There she was found to have suffered numerous injuries. The injuries sustained were serious and some were permanent.
Victim 1 sustained a fracture to her left cheekbone that resulted in a permanent bruise to that area and extensive trauma to the top of her head that caused a subdural haematoma revealed on a CT scan. A repeat CT scan of the brain showed a resolving haematoma and it appears that there is no permanent head injury.
As a result of the assault, victim 1 also suffered broken ribs, bruising and swelling to her face, head, shoulder, arms, legs, back and chest areas. She experienced constriction of movement in her left side. Her left shoulder needed treatment and she has ongoing pain down her arm. She also suffered a large laceration to her forehead and a three centimetre cut to her right thigh along with small cuts to the same area.
As a result of the beating which she received, the vision in her left eye progressively deteriorated until she lost sight in that eye. She is now blind in her left eye. Although she can still see with her right eye, the loss of binocular vision is a significant injury that affects depth perception, co-ordination and the enjoyment that comes with normal vision.
Coloured photographs of the victim, taken shortly after the attack, show very extensive bruising to the face, head, torso, eyes and a cut to the right leg. Victim 1 was aged 53 at the time of the offence.
Other injuries suffered by victim 1 were concussion, from which she has since fully recovered, and permanent facial disfigurement to her left cheek. At the time of sentencing, victim 1 had developed severe migraine-like headaches and her co-ordination had been adversely affected by her loss of binocular vision. She feels anxious at times, particularly when she sees workers in fluoro-safety gear. She is uncomfortable when she is at home alone.
His Honour accepted that the assault had a very substantial adverse impact upon victim 1.
[6]
Proceedings on sentence
His Honour had regard to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. By reference to that judgment, his Honour took into account the following factors:
There was no use of a weapon established.
The property taken was not substantial.
The robbery, whilst not sophisticated, was clearly well planned. His Honour reached this conclusion by having regard to the ruse used by the applicant and his co-offender to gain access to the house.
His Honour made note of the following factors, which distinguished this matter from the Henry guideline judgment and made it more serious:
The offender could not be termed "young", being aged 35 at the time of sentence and 33 at the time of the offence.
The applicant had a long criminal history, including offences of this type.
The actual violence involved was great in that the assault was sustained, malicious and caused grievous bodily harm.
There was no plea of guilty.
His Honour also took into account the impact on the victims. In relation to victim 1, this has already been set out in detail in the factual background to the offending.
His Honour accepted that the motivation for the offences was probably to fund the applicant's drug habit, as outlined in the report of the psychiatrist, Dr Richard Furst, dated 26 June 2014. His Honour noted that this did not excuse the applicant's behaviour but his Honour was prepared to take it into account when assessing the applicant's state of mind and his capacity to exercise judgment.
His Honour assessed the offending in Count 1 as falling well above the middle range of objective seriousness. His Honour made that finding on the basis of the Henry guideline, the severe impact that the offence had on victim 1 and because the attack on victim 1 was completely unnecessary for the commission of the robbery. His Honour found it difficult to identify any reason why victim 1 was subjected to such a savage and unprovoked beating.
In relation to Count 2, his Honour noted that it was the applicant who had gone to victim 2's bedroom and made demands for cash with terrifying threats. Victim 2 then had to listen to victim 1's screams for help as the applicant and his co-offender horrifically assaulted her. His Honour concluded that the panic that he must have felt, not only for himself but also for her, was chilling.
In relation to Count 2, his Honour noted that five of the six circumstances of aggravation set out in s 105A of the Crimes Act applied, i.e. the applicant was armed with a knife, the offence was committed in company, corporal violence was used, actual bodily harm was maliciously inflicted and the applicant knew that victim 1 was home when he entered the property. His Honour accepted that the intimidation occurred over a relatively short period.
His Honour had before him the Victim Impact Statement of victim 2. That statement highlighted the following:
When he thinks about that day, he goes into "emotional overload".
He regularly thinks about the threats that he received - that he could be shot to death in his own home.
Victim 1 is both his partner and carer. After the assault, he was forced to care for her which has been very difficult.
He feels guilty that he could not protect his partner and that he let her down.
He had to clean up his partner's blood in the front hallway which was very upsetting.
He has trouble sleeping and has nightmares about his partner's face and the blood.
He used to assist people when they were in need, such as when he saw a car broken down, but now he ignores people who ask for help because he has lost his trust.
He feels that people on the street think that he caused victim 1's injuries.
He no longer feels safe at home.
In relation to Count 2, his Honour had regard to the guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327. His Honour took into account the following matters in respect of Count 2.
1. The applicant was on conditional liberty at the time.
2. The offence was the result of some planning.
3. The applicant had a criminal record (his Honour did not take that into account as an aggravating factor but as a matter which disqualified the applicant from any leniency that might be extended to an offender who had no criminal record).
4. The offence was committed at the home of a physically disabled man and in that regard, victim 2 was vulnerable.
5. There was no vandalism or damage to the property.
6. There were two offences that occurred during the break in.
7. The offence was not the result of repeated incursions into the premises.
8. The value of the property stolen was minimal.
9. The offence was committed at a time when it was likely that the premises would be occupied.
10. There were several threats of force.
His Honour was satisfied that five of the ten Ponfield factors were present and that Count 2 was properly characterised as "about the mid-range for objective seriousness".
The sentencing judge noted the applicant's lengthy criminal custodial history:
Between 1993 -1997 he was convicted in the Children's Court on six occasions. Pursuant to s 15 of the Children's (Criminal Proceedings) Act 1987 (NSW) (his Honour did not take those matters into account).
In August 1999 he was convicted of possess prohibited drug.
In October 1999 he was convicted of two offences of possess prohibited drug and an offence of enter premises without lawful cause.
In November 2002 he was convicted in the Campbelltown Local Court of three charges of stalk/intimidate with intent to cause fear, physical/mental harm and received three concurrent s 12 bonds with supervision.
In February 2007 he was convicted and sentenced to 5 years imprisonment with a non-parole period of 2 years 6 months for an offence of firing a firearm in a manner likely to injure a person/property.
In December 2010 he was sentenced to 2 years imprisonment with a non-parole period of 12 months for possessing an unregistered firearm/prohibited firearm. On the same day, he was also sentenced for an offence of supply a prohibited drug and given a sentence of 12 months imprisonment to be served concurrently with the firearm offence.
The applicant was on conditional liberty for the offence of possess the unregistered firearm when he committed the offences against the victims.
The applicant had been convicted of a large number of driving offences.
His Honour found that these offences disentitled the applicant to any leniency and indicated a need for specific deterrence to be reflected in the sentence which was imposed.
His Honour had regard to the applicant's subjective case. Although the applicant did not give evidence, his Honour relied upon the psychiatric report of Dr Richard Furst to provide him with background material relating to the applicant.
The applicant was aged 35 at the time of sentence (born March 1979). He had four brothers and three sisters, being the fourth eldest child from his parents' union. His earlier childhood was difficult, with his father having been incarcerated when he was about five and only released when he was aged 10 or 11. The applicant found it difficult not having his father around and had no guidance. He often felt depressed and different to other children because of the absence of his father. His mother was busy raising the other seven children which left him with little attention. He was expelled from Eagle Vale High School at the age of 14.
His father was often drunk and abusive and neglected him when he lived with him for a six month period around the age of 14. The applicant accepted that "his mother couldn't handle him". There was an early onset of drug use and criminal behaviour. As well as smoking cannabis between the age of 10 and 14, he also used ice on one occasion.
The applicant was sent to Syria and Lebanon to live with his grandparents when he was aged 14 years as part of an attempt to reform him and offer him more positive guidance. He returned to Australia when he was aged 16 or 17 and obtained a job at the Flemington Markets between 1996 and 2003 as a forklift driver. The applicant later relapsed into using drugs and was unemployed at the time when he committed these offences.
His Honour noted that the applicant was married for five years, separating in 2005. He had an 11 year old boy, who is blind and suffers from cerebral palsy. He also has a 14 year old daughter. Neither child lived with him. At the time of his arrest, the applicant was living with his mother at Eagle Farm.
His Honour summarised the applicant's psychiatric, drug and alcohol history. This information was also obtained from the report of Dr Furst. The applicant used heroin between the ages of 17 and 20. He also used amphetamines and MDMA. There was ongoing use of heroin in his 20s. There was ongoing use of drugs until his arrest in 2013. The applicant drank alcohol when he went out, but this was not problematic. The applicant had completed the Opioid Substitution Program (OSP) having been prescribed methadone and buprenorphine for the last seven years under the supervision of his long term GP.
Dr Furst reported that the applicant had been assaulted on two occasions - in April 2012 and October 2012. He had received serious head injuries in each of those attacks. Dr Furst opined that these two attacks had had a major impact upon the applicant's mental health. There were a number of presentations at the Campbelltown Community Mental Health Team in Browne Street. His treatment there had been on a voluntary basis. The applicant was admitted to the Waratah Unit, which is the psychiatric unit at the Campbelltown Hospital in March 2013.
Substance use disorder (cannabis, opiates, benzodiazepines).
Personality disorder (anti-social traits).
Possible acquired head injury.
Anxiety disorder not otherwise specified.
Despite these findings, Dr Furst found that the evidence suggested that the applicant was aware of his actions and their wrongfulness.
His Honour concluded that the applicant's substance dependency, dysfunctional personality structure and negative peer associations might well have been factors at the time of the offending. His Honour was not prepared to find that these factors excused his actions, although they did help to explain his behaviour. His Honour noted that, generally, drug addiction did not mitigate a serious offence and that a crime motivated by the need for money to buy drugs to feed an addiction should not be assessed at the lower end of moral culpability.
His Honour took into account that the applicant's criminal history revealed that on a number of occasions, courts had given him opportunities to participate in drug rehabilitation programs and offered support. The applicant had failed to take advantage of those opportunities. Dr Furst recorded that the applicant had now taken steps towards rehabilitation while in custody.
His Honour accepted that addiction was relevant as a subjective circumstance. This was in accordance with what was said in the guideline judgment of R v Henry.
His Honour found no contrition or remorse for the offending and noted that the applicant continued to deny the offences.
His Honour took into account by way of mitigation that the applicant had signed extensive "agreed facts", which had narrowed the issues for consideration at trial, and had avoided the calling of numerous witnesses. Although his Honour was prepared to impose a lesser penalty because of that consideration, he noted that he was constrained by the requirement that any such lesser penalty must not be unreasonably disproportionate to the nature and circumstances of the offence.
His Honour found that the applicant's prospects of re-offending and rehabilitation were difficult to assess because he continued to deny the offences. His Honour noted that Dr Furst was of the opinion that the applicant's risk of relapsing into using drugs in the future was high, and that the risk of re-offending was moderate to high. His Honour also noted that the applicant had told Dr Furst that he planned to complete his year 10 certificate after his sentence and work in the family cleaning business when he was released from custody. His Honour regarded these as positive ambitions which showed that the applicant might be motivated to address his offending behaviour. On the basis of the whole of that material, his Honour was satisfied that there was a moderate to high risk of the applicant re-offending.
The applicant's criminal antecedents, his history of substance abuse, his employment history and lack of remorse caused his Honour to be cautious in finding good prospects for rehabilitation. As a result, his Honour found that the applicant's prospects of rehabilitation were not good. In relation to denunciation, punishment and deterrence his Honour concluded:
"The selfish and mindless arrogance of those who perpetrate extreme levels of violence with complete disregard for others warrants the strongest condemnation. It is necessary in the assessment of the sentence to denounce the offender's conduct. It must be made clear to him and others who contemplate action in such a way that such conduct will be met with condign punishment." (Sentence judgment 30.8)
[7]
The sentencing judge erred in failing to give effect to his finding of special circumstances
Section 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:
"(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)."
His Honour made a finding of special circumstances. His entitlement to do so has not been challenged by the Crown. The basis for his Honour's finding of special circumstances can be reduced to two factors:
1. The need for extended supervision in relation to drug and general rehabilitation; and
2. The risk of institutionalisation.
The applicant submitted that each of those special circumstances was capable of justifying an extension of the potential time on parole. The applicant noted that if his Honour had applied the usual statutory ratio of 75 per cent, the non-parole period for the 15 year aggregate sentence would have been 11 years and 3 months. The applicant submitted that the fact that the non-parole period actually imposed was 11 years indicated a variation of only 3 months, or expressed in percentage terms, a variation from 75 per cent to 73 per cent of the head sentence.
The applicant submitted that had his Honour made clear an intention to vary the non-parole period by only 3 months, or vary the statutory ratio by only 2 per cent, he would have had difficulty in establishing error. Such is apparent from the authorities in relation to appeals concerning this type of error (Caristo v R [2011] NSWCCA 7 and the cases referred to by Hamill J in Sabongi v R [2015] NSWCCA 25). The applicant submitted that this had not happened in this case.
The applicant submitted that what had occurred in this case was that his Honour had found special circumstances, which would normally call for a significant variation in the statutory ratio between the head sentence and the non-parole period, but had made a very small adjustment. He had not given reasons for such a small adjustment. The applicant submitted that in accordance with the bulk of authority, this was indicative of error (Heron v R [2006] NSWCCA 215 at [30]-[32]).
The applicant submitted that what had occurred here is that which was referred to by R A Hulme J (Ward JA and Harrison J agreeing) in CM v R [2013] NSWCCA 341 at [40] where his Honour said:
"40 Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflect in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. …"
The applicant submitted that in this case there was no expression of an intention, either directly or indirectly, to suggest that his Honour meant to allow such a small adjustment as occurred to the non-parole period.
The applicant also relied upon what was said in DG v R [2017] NSWCCA 139 by Hoeben CJ at CL (with whom Garling and Bellew JJ agreed) at [56]-[57]:
"56 While there is substance in the Crown submissions, I have not been able to determine from the sentencing judge's reasons why it was that, having made a finding of special circumstances, the adjustment to the non-parole period was so modest and in real terms involved a reduction of 3 months. Such a modest adjustment would not appear to justify a finding of special circumstances.
57 It is true that when one looks at the individual factors which were taken into account by his Honour, they are not matters of particular significance. What needs to be looked at, however, is the total effect of the three matters taken together. Looked at in that way, they are not factors of a kind that can be substantially ignored, which is the effect of the Crown's submission."
The Crown submitted that the extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge (Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33]; MD v R [2015] NSWCCA 37 at [40]). It submitted that even where special circumstances exist, a sentencing judge is not obliged to alter the ratio of the non-parole period to the head sentence (Soames v R [2014] NSWCCA 158). The Crown submitted that it is a question of fact in respect of which this Court would be slow to intervene (Jiang v R [2010] NSWCCA 277 at [83]; Caristo v R at [28]; Allen v R [2015] NSWCCA 113 at [33].
The Crown relied upon the observations of Spigelman CJ (with whom Mason P, Grove J, Sully J and Newman AJ agreed) in Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [63] where his Honour said:
"63 …. the ultimate constraint [is] that the non-parole period must itself appropriately reflect the criminality involved in the offence."
His Honour continued at [73]:
"73 … As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."
The Crown submitted that ultimately the non-parole period that is set is what the Court concludes in all the circumstances ought to be the minimum period of incarceration: Regina v Simpson at [59]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57].
The Crown submitted that in this case a small downward adjustment in the non-parole period was justified by his Honour's findings as to the applicant's poor prospects of rehabilitation and the likelihood of him re-offending. The Crown submitted that this was apparent when one had regard to the bases identified by his Honour for his finding of special circumstances. The Crown submitted that there was no finding by his Honour, nor was there evidence of any significant positive signs which would show that if the applicant were allowed a longer period on parole, rehabilitation was likely to be successful.
The Crown submitted that his Honour would have been well aware that there was a practical limit of 3 years upon parole supervision which the applicant might receive (Clause 228 - Crimes (Administration of Sentences) Regulation 2008 (NSW); AM v R [2012] NSWCCA 203; 225 A Crim R 481 at [90]; Collier v R [2012] NSWCCA 213 at [37]; Jinnette v R [2012] NSWCCA 217 at [107]. The Crown noted that the parole period imposed by his Honour was in excess of that practical consideration by 1 year.
The Crown relied upon the observations of Simpson JA (with whom Bathurst CJ and R A Hulme J agreed) in BR v R [2015] NSWCCA 255 where the overall ratio was 74 per cent, despite a finding of special circumstances by the sentencing judge. There the court held that this period did not undermine the basis for the finding of special circumstances on the basis of a need for sustained supervision. Her Honour said:
"63 By this ground, the applicant complains that, although her Honour expressly found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, the sentence imposed did not truly reflect that finding. The ratio prescribed by s 44(2) between the non-parole period and the head sentence is 75 per cent; a finding of special circumstances permits a sentencing judge to vary that proportion, by reducing the non-parole period. In this case, the non-parole period imposed is almost 74 per cent of the head sentence. That is a very small reduction on the statutory proportions. On that basis, this ground appears to have some superficial substance. However, when regard is had to the reason given for the finding of special circumstances, the concern dissipates. As stated above, the reason given for the finding was the applicant's need for sustained supervision on his eventual release. On any view, if released on the expiration of the existing non-parole period, the applicant will have 6 years at liberty on parole (of which part may not be subject to supervision). In those circumstances, it could hardly be concluded that the underlying reason for the stated finding of special circumstances was undermined."
The Crown submitted that there were no submissions made in the sentencing proceedings, nor was there any evidence adduced, which was directly related to the issue of the applicant's need for assistance with reintegration into the community so as to avoid institutionalisation. The Crown noted that the applicant's custodial record showed that the first lengthy period of imprisonment he served (of more than a year) was not until July 2006 when he was aged 27. The Crown submitted that any risk of "institutionalisation" in the present case can be distinguished from those cases where the offenders had spent very considerable periods of their adult lives in custody such that they could be at risk of becoming so conditioned to an institutional environment that their release into society would lead to a heightened risk of re-offending. The Crown submitted that there was no evidence of such a circumstance in this case.
[8]
Consideration
The relevant principles pertaining to finding "special circumstances" were restated in MD v R [2015] NSWCCA 37 by Gleeson JA (with whom Johnson and Hall JJ agreed):
"38 The principles applicable to the setting of the non-parole period of a sentence under s 44 of the Sentencing Act are well settled. A non-exhaustive statement of principles may be found in Caristo v R [2011] NSWCCA 7 at [26]-[31] (R A Hulme J; Giles JA and Adams J agreeing). Three matters are of particular relevance in the present case.
39 First, the non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v R [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].
40 Secondly, simply because there are circumstances which are capable of constituting special circumstances, does not compel the Court to make such a finding and reduce the non-parole period: R v Fidow [2004] NSWCCA 172 at [22]. The decision to find special circumstances is first, one of fact, to identify the circumstances and secondly, one of judgment, to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio: R v Simpson at [73]. The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp at [31]; Trad v R [2009] NSWCCA 56; 194 A Crim R 20 at [33].
41 Thirdly, in setting an effective a non-parole period for more than one offence the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term: "the actual periods involved are equally, and probably more, important" (Caristo v R at 42 (R A Hulme J)).
42 Generally speaking where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Examples can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]."
The application of those principles to the facts of this case is not without difficulty. The offending was objectively very serious and no challenge has been made to his Honour's finding to that effect. Accordingly, the non-parole period of imprisonment, being the minimum period of actual incarceration that the offender must spend in custody, needs to be substantial.
On the other hand, his Honour made a finding of special circumstances which does not seem to have been reflected in the non-parole period in that only a very modest downward adjustment was made to the statutory ratio. This brought about an effective reduction of only 3 months. His Honour could have easily justified such a modest reduction by explaining why it was so, either because of the seriousness of the offending or the applicant's poor prospects of rehabilitation. Regrettably, his Honour did not provide such an explanation. The matter is further complicated by the inclusion ,as one of the reasons for the finding of special circumstances, the need for a period of time to allow the reintegration of the applicant into society. That involves a different factor to those considered by his Honour in relation to rehabilitation and re-offending in relation to which his Honour made adverse findings against the applicant.
In those circumstances, and not without some reservation, I have concluded that his Honour's failure to give reasons for the small downward adjustment in the non-parole period has occurred as the result of "inadvertence or miscalculation" on the part of his Honour. Accordingly, the applicant's ground of appeal has been made out and it will be necessary to resentence him.
In resentencing the applicant, it is necessary for this Court to re-exercise the sentencing discretion. In this case, that has to be done against the factual findings made by his Honour which have not been challenged by either the applicant or the Crown. Those findings make it clear that not only were the offences objectively very serious, but that only a limited allowance should be made for the applicant's prospects of successfully being rehabilitated. The amount of time on parole allowed in the existing sentence is already substantial and there is nothing in the findings of his Honour, nor the evidence in the sentence proceedings, to suggest that any more time would produce a better result for the applicant's rehabilitation.
In relation to the issue of institutionalisation, there is considerable force in the Crown's submission that until this offending, the applicant had spent very little time in custody, except for a period of 2 years for a firearms offence. One is therefore required to look at the offending with a view to determining what is "the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances" (MD v R at [39]). When one carries out that exercise and has regard to the seriousness of the offending, as found by his Honour, and the relative paucity of mitigating circumstances, the sentence I would impose on the applicant would be higher than that imposed by his Honour. It follows, therefore, that even though the ground of appeal has been made out, the appeal should be dismissed. That is on the basis that no lesser sentence than that imposed by his Honour is warranted in law.
The orders which I propose are:
1. Leave to appeal against sentence out of time is granted.
2. Leave to appeal is granted.
3. The appeal is dismissed.
PRICE J: I agree with Hoeben CJ at CL and the orders which he proposes.
HARRISON J: I agree with Hoeben CJ at CL. In my opinion it is important to bear in mind that any variation of the ratio of parole to non-parole periods is necessarily informed, among other things, by an understanding of what might realistically be achieved upon release to parole in the particular case being considered. In cases where the head sentence is relatively long, as in the present case, minor adjustments to the parole period are unlikely to be of any significance in achieving, or in assisting the prisoner to achieve, a better or different outcome in the community. The parole period nominated by the sentencing judge is, in my view, entirely appropriate for its intended purposes having regard to all of the factors unique to the present applicant that his Honour took into account in assessing it.
[9]
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Decision last updated: 07 September 2018
Parties
Applicant/Plaintiff:
Sefian
Respondent/Defendant:
R
Legislation Cited (5)
Children's (Criminal Proceedings) Act 1987(NSW)
Crimes (Administration of Sentences) Regulation 2008(NSW)
The applicant's buprenorphine was discontinued and he was changed to methadone after his arrest. This had continued in custody, as had the prescription of anti-psychotic medication, Olanzapine, and the anti-depressant medication Avanza (Mirtazapine). He had gained 40 kilograms on those medications, with a plan to change his medication to one with a more favourable metabolic profile. The applicant said that he was feeling depressed, fearful, was hearing "voices" and was largely isolating himself at home in the weeks and months preceding these offences. He said that he had paranoid thinking, believing that the police and others wanted to kill him and was using .5 grams of ice (methylamphetamine) per day, 3 grams of cannabis per day and about 5 Xanax pills per day at the time.
His Honour noted that according to the report of Dr Furst, the applicant met the criteria for a diagnosis of the following mental disorders:
On the question of special circumstances, his Honour said:
"I am satisfied that this is a case in which special circumstances should be found in accordance with s 44(2B) of the Crimes (Sentencing Procedure) Act. His rehabilitation generally will benefit from a significant extended period of supervision during which he can receive assistance in developing and maintaining strategies to ensure he does not re-offend and remains drug free, and also after a considerable period of time in custody he will require considerable assistance in re-entering the community.
1. His rehabilitation generally will benefit from a significant extended period of supervision during which he can receive assistance in developing and maintaining strategies to ensure he does not re-offend and remains drug free.
2. After a significant period of time in custody he will need assistance to re-acquire an ability to live within the community and so avoid institutionalisation; and
3. There is a convention of sentencing practice of finding special circumstances in cases where sentences imposed for multiple offences are served consecutively in order to apply the totality principle: Hejazi v R [2009] NSWCCA 282 at [36]. I note that accumulation of the sentence does not automatically give rise to a finding that special circumstances exist, however in this case special circumstances should be found." (Sentence judgment 32.1)