Simmons v R

Court of Criminal Appeal (NSW)|2020-02-05|Before: Macfarlan JA, Adamson J, Beech-Jones J, MacFarlan JA

Solicitors: Legal Aid NSW (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2016/325678; 2017/26842 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 02 November 2018 Before: Robison DCJ File Number(s): 2016/325378; 2017/26842

Judgment

MACFARLAN JA: I agree with Adamson J.
ADAMSON J: Fletcher Simmons (the applicant) applies for leave to appeal against an aggregate sentence imposed by Robison DCJ on 2 November 2018 of ten years' imprisonment with a non-parole period of 5 years and 6 months. The sentence commenced on 26 October 2016, being the date of the applicant's arrest.
The applicant pleaded guilty to seven offences and indicated, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that he wanted the sentencing judge to take into account a further six offences which were contained on a Form 1. The sentencing judge allowed the maximum discount of 25% for the applicant's plea of guilty. All of the offences (those of which the applicant was convicted and those on the Form 1) were committed in a period of about three weeks from 4 October 2016. They arose from the applicant's drug addiction, which led him to commit violent acts to obtain cash for drugs.
There are four grounds of appeal, as follows: His Honour erred by taking into account the applicant's record of previous convictions in his assessment of the objective seriousness of the offences. His Honour erred by taking into account that the applicant was on conditional liberty in his assessment of the objective seriousness of the offences. His Honour erred in his application of the principle of proportionality. The aggregate sentence was manifestly excessive in the circumstances of this case.

The proceedings on sentence were heard on 1 November 2018. The Crown tendered a bundle which included the court attendance notices, the Forms 1, the statement of agreed facts and the applicant's criminal history in New South Wales and Queensland. The Crown also tendered a pre-sentence report dated 24 April 2018. The defence tendered medical reports from Dr Martin, Dr Farrar and Dr Seidler; a Concord Hospital assessment record and references from Carol Simmons (the applicant's mother) and Jessica Henderson (the applicant's former partner). The defence bundle also contained an affidavit affirmed by the applicant in which he deposed to his conditions of custody and to the truth of statements he had made to Dr Martin. He neither gave oral evidence nor was cross-examined. Both parties relied on written submissions. In each set of submissions, matters germane to subjective matters were included under a heading entitled "objective seriousness". It was said, as will appear further below, that the parties led his Honour into error (this is relevant to grounds 1, 2 and 3).
The Crown agreed that a discount of 25% for the plea of guilty was warranted and that it would be appropriate for the sentence to commence on 26 October 2016, being the date of the applicant's arrest. It was common ground that the applicant was subject to a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act at the time of the subject offending. These charges caused the bond to be called up.
Defence counsel before the sentencing judge accepted that a custodial sentence was required. He submitted that "full accumulation" would be "crushing" and that there should be a "degree of concurrency". The Crown confined his oral submissions to the applicant's prospects of rehabilitation and relied on six instances of institutional misconduct since the applicant has been in custody. The proceedings on sentence concluded at about 4pm on 1 November 2018. The sentencing judgment was delivered ex tempore at 10am on 2 November 2018.

The sentencing judgment

His Honour recounted the offences for which the applicant was to be sentenced and the offences on the Forms 1. His Honour noted that the applicant was on conditional liberty at the time of the offences, as a result of which the bond was called up and the applicant was sentenced to a fixed term of imprisonment for one month. The sentencing judge noted that the applicant had been in custody since his arrest on 26 October 2016.

Factual narrative

His Honour recounted the agreed facts (which are summarised in the table set out above), in the narrative which is substantially extracted below. The sequence numbers are set out in square brackets. [4 October 2016: sequence 1 and Form 1 (sequences 2 and 3)] "Zaki Gas resides in a unit complex at Vine Street, Fairfield, and at approximately 12am on 4 October she parked her Holden Astra hatchback in an off-road communal parking behind the unit complex. She locked the vehicle before entering her apartment, where she remained until later in the afternoon of that day. Between 12am and 1pm on that day the offender smashed the driver's side window of the vehicle and damaged the door handle in attempting to gain entry to that vehicle. When he managed to open the driver's side front door, he removed the victim's handbag and left behind a burgundy-handled screwdriver on the driver's seat. He stole the sum of $500 from her handbag, as well as her ANZ debit card and her Commonwealth Bank Mastercard. Later, she returned to her vehicle and undoubtedly noticed the damage to the car and the missing items. The police were contacted and attended the scene. DNA swabs were taken from the screwdriver and the profile recovered from the swab was consistent with the offender's DNA profile." [6 October 2016: sequence 13] "… [O]n 6 October 2016 Vera Radonjic resided at XXX Mount Pritchard. At 2.30am on 6 October she walked outside her home to her bin which was on the street. At that point, she noticed a male in dark clothing standing nearby another property, but she went back inside her home. Later the offender approached the house and removed the flyscreen from a street-facing window as well as causing chips to the wooden frame of the sliding window pane. She noticed the damage to her property on the afternoon of 6 October 2016. Later, crime scene officers attended and dusted for fingerprints and it was noted that the offender had deposited finger and palm prints on the exterior glass pane of the bottom sliding window." [11 October 2016: sequence 11] "… [T]he taxi driver Mohumud Ismail was employed by Combined Taxi Service and at approximately 1am on 11 October 2016 Mr Ismail commenced a driving shift and began driving towards Greenacre, as he was receiving a job to pick up a person named 'Jimmy' from outside the Greenacre public school on Waterloo Road. As it turned out, "Jimmy" was in fact the offender. So Mr Ismail picked up the offender and, according to Mr Ismail, the offender appeared to be drug affected as he was making strange noises and his body was making small jerking movements. The victim picked up the offender and asked if he was Jimmy to go to Villawood. He replied in the affirmative. Then the victim began driving towards that location, in other words, Villawood. After about ten minutes the victim asked the offender about his address. The offender said that he would show him and the victim continued driving towards Villawood while the offender was facing the window, shaking. The offender asked the victim what time did he start, and the victim's reply was, 'Just now.' "… [A]s the taxi arrived in the Villawood area the offender began directing the victim until they turned into a dead-end cul de sac in Derribong Street, Villawood and at that point the offender produced a 10 centimetre knife and held it over the victim's head in his right hand. He moved towards the victim until the knife was approximately 5 centimetres from the victim's throat. The offender reached into his top left pocket and removed the victim's cash, totalling approximately $70 to $80. The offender then said to the victim, 'Give me money. Give me your money.' The victim replied that he did not have any money. That did not stop the offender because then he demanded that he be given the victims' phone. The victim said, 'I'm not giving you my phone.' He added that he had five children and asked if the offender was going to kill him. The victim removed his seatbelt and, as he did, the offender moved back to his seat and then grabbed the victim's wallet out of the centre console and exited the vehicle. The victim drove the vehicle approximately 100 metres up the road, where he contacted police and waited for them to attend. Whilst he was waiting, he noticed that the offender left his sunglasses behind. These sunglasses were in the front passenger seat of the taxi and were tested by crime scene officers and a fingerprint deposited by the offender was identified on the inside lens of the sunglasses. There was also CCTV footage retrieved from the taxi which depicted the offender seated in the front passenger seat immediately prior to the robbery." [26 October 2016: sequences 1 and 3] "…Dennis Mascarello resides at XXX, Cabarita with his wife and three children. This was a house which had a shop frontage attached from which the family ran their hairdressing salon and a gift shop. At approximately 6.15am on 26 October 2016 the offender was captured on CCTV in the immediate vicinity of that address and could be seen outside the hairdressing salon at the address. At the same time, Mr Mascarello was just waking up and was about to get out of bed ready for work but he heard a noise from the rear door which he had previously locked. Initially he heard the dog door swing open and then heard the same rear door shake as if someone was trying to open it. He went to investigate the noise and as he reached the back door he observed the offender halfway through the dog door, crawling into his residence. He stopped crawling through that door and at that point he was inside the residence up to his stomach and, not surprisingly, the victim shouted at the offender, "What are you doing? Get out." The offender then crawled all the way through and stood up. Certainly at that point the offender did not get out, despite the demands legitimately made by the victim. Something was seen by that victim and he suspected it was a knife being held by the offender in his left hand. As it turned out, it was not in fact a knife but that was what the victim thought at that time. The victim continued yelling at the offender to get out, and the offender held the so-called silver object towards him. The victim inched forward, yelling at the offender to leave. The victim feared he was going to be stabbed and continued yelling at the offender to get out. That did not stop the offender, who stayed in place, holding the metal object towards the victim. Then the victim's wife came to the scene and stood behind him, and the two of them continued to yell at the offender to leave, pointing down the hallway towards the shopfront. The offender then began walking towards the front door down the hallway and at that point the victim realised that the silver object which was in the offender's hand was in fact a gardening tool for weed removal. It had two sharp prongs on one end and a scroll underneath it. Understandably, Mrs Mascarello was concerned about the children and yelled out, 'The kids. The kids.' Three of the children were in their bedrooms along the hallway and the offender was about to go past them. Mr Mascarello grabbed a long kitchen knife from a knife block in the pantry and at that point his wife saw a long thin steel object in the offender's hand. She suspected it was a screwdriver. When Mr Mascarello returned from the kitchen, the offender was at the door leading to the shopfront and he was grabbing at the door, trying to force it open. The two victims called out to him, saying, "Don't break anything. We'll let you out. There's a key in the door. Just use it and go." He walked towards the main shop door, opened it and walked through it. Not surprisingly, in order to secure the house, no doubt, Mr Mascarello ran up to the door and slammed it shut behind the offender, but he heard the offender rummaging through items in the shop. Whilst this was occurring, one of their daughters had contacted the police and, after one to two minutes, the noises from within the shopfront ceased and Mr Mascarello entered the shop and observed that watches had been stolen. When the police attended the premises, they observed damage to two side windows to the property. One window had a ripped flyscreen in the bottom left corner. The flyscreen had been totally removed on a second window. They searched the area on the driveway outside the property XXX and they located a garden tool. This was shown to Mr Mascarello, who identified it as the metal object the offender had threatened him with inside the home. So it is clear that that metal object was something brought to the home by the offender. At least three watches were stolen from the premises. [26 October 2016: sequences 16 and 17] "…Nicole O'Sullivan resided at XXX Mortlake with her daughter, her mother-in-law and her grandmother. This was a duplex premises with three floors, owned by [her in-laws]. … …Ms O'Sullivan recalls returning home at 5pm on 25 October 2016 and locking her car in the driveway of the duplex. At approximately midnight that night she went to her bedroom on level 2 of the duplex, she checked that the window beside the sliding glass doors was closed, she went out onto her balcony to have a cigarette and when she re-entered her bedroom she shut the glass sliding door behind her. At approximately 6.45am on Wednesday 26 October … she awoke and observed the offender entering her bedroom via the glass sliding doors that she had closed prior to going to sleep and the blinds she had pulled down has been pulled upwards. Immediately prior to this, CCTV footage from the area depicted the offender walking around the outside of the address known as XXX Mortlake. She said to the male, no doubt the offender, who was he and he replied, 'Shut up.' He walked over to a storage container within the bedroom containing Ms O'Sullivan's handbag. He commenced rummaging through the handbag, demanding, 'Where's the money? Where's the money?' She replied that there was none. At that point, her two year old daughter awoke and began crying. He said to the baby, 'Shut the fuck up.' … The offender then opened Ms O'Sullivan's bedroom door and walked downstairs to the ground floor. She remained at the top of the stairwell, undoubtedly having her primary concern for her daughter's safety. Whilst she stood there, she heard her grandmother scream, 'Who are you? Who are you? Diana, Diana.' The grandmother would have been very distressed. Diana Towers [the mother-in-law] then ran down towards the garage. The offender went to the garage, where he held a key ring full of keys saying, 'Let me out. Let me out.' The grandmother said to him, 'Give me the keys.' Ms Towers said, 'Give me the keys. What's in your pockets?' The offender replied that he had nothing. The offender then walked towards Ms Towers, causing her to stumble back towards the wall and out of his way, with Ms O'Sullivan yelling, 'Don't fucking touch her.' The offender then jumped over a child's safety gate in the hallway and walked towards the rear glass sliding door but he stopped by the kitchen going through storage containers on the kitchen bench which contained a number of keys. By this point, Ms O'Sullivan called triple 0 and while she was speaking to an operator, she saw the offender take the handbag from the lounge. She went outside via the garage and noticed that the doors to her white Hyundai motor vehicle were partially opened. She looked inside and saw that her car had been ransacked. There was an uncapped syringe which sat on the back seat of the car, along with two wristwatches that did not belong to anyone at the Mortlake residence. The police attended and inside the car they located watches stolen from the Cabarita address. Fiel's [the grandmother's] handbag was located in the rear garden of XXX Mortlake. The offender at least initially was not co-operative. He began to run away from the police and had to be chased down and taken to the ground. Whilst he was on the ground, he thrashed around, using his upper body and rolled onto his stomach, reaching for his waistline. Clearly he did not comply with the directions from the police to remove his hands from the waistline of his shorts and continued attempting to reach into his pocket and undoubtedly physically force had to be used by the police to restrain the offender and handcuff him. During that altercation, two of the officers suffered grazing and bruising to their limbs. When he was arrested and searched, there were some items found on him, namely, a hammer, a screwdriver, five watches, 0.94 grams of methylamphetamine and 0.33 grams of heroin."

Other matters addressed in sentencing judgment

The sentencing judge described the applicant's criminal history as "serious and lengthy". His Honour referred to the pre-sentence report and noted that, notwithstanding the extent to which the applicant had been supervised over the years he has been unable to rehabilitate himself and has re-offended. His Honour also noted the six institutional misconduct charges in the current period of custody and the applicant's admission to the author of the pre-sentence report that he has continued to use drugs in custody, including non-prescribed buprenorphine. The sentencing judge referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and accepted that the principles were relevant, having regard to the applicant's "traumatic" family and social circumstances. His Honour found that, at best, the applicant had "some glimmer of insight" of the effect of his conduct on his victims and that this fell short of remorse, contrition or empathy. His Honour also referred to Dr Martin's report and his opinion about the applicant's "chaotic development history". The sentencing judge accepted Dr Martin's opinion that the applicant's judgment was impaired but also found that the offending was "relatively goal driven, presumably in order to obtain money to fund his drug use".
Because of what is alleged in grounds 1, 2 and 3 (which are related), I propose to set out extracts from the sentencing judgment in which it is said that his Honour elided the distinction between those matters relevant to objective seriousness on the one hand and subjective matters (such as the applicant being on conditional liberty and his criminal history) on the other. "…It is important to assess the objective seriousness of each of the offences for which he is to be sentenced. … [4 October 2016: sequence 1] The offence being sequence 1, the offence of larceny, it is submitted by the offender that that is at the lower end of criminality but it should be borne in mind, of course, that there are prior convictions, as well as the fact that he was on a bond at the time. So those matters do need to be taken into account as aggravating factors. Coming back to the offence overall, I would be of the view that this falls somewhat below the mid-range of objective seriousness. I am mindful of the extent of the damage to the vehicle and I am mindful of the quantity of cash and the two bank cards which were taken. But, at the end of the day, I consider that it is fair to assess that as towards the lower end of the range of objective seriousness. … [6 October 2016: sequence 13] … I now turn to sequence 13, the offence of destroy/damage property. This would be at the lower end of the range as well but the aggravating features, namely the previous record as well as the fact that he was on conditional liberty at the time, needs to be taken into account as aggravating factors and I do so. … [11 October 2016: sequence 11] In my view when one takes into account all of those matters, the offence falls around the mid-range of objective seriousness, although I accept minds may differ. The Court needs to be mindful as well of the aggravating feature that he was on conditional liberty at the time of the offence. All in all, the serious nature of that offence should be recognised and reflected in an appropriate sentence. … [26 October 2016: sequence 1] The facts in my view give rise to a finding as far as this court is concerned that this does indeed fall in the mid-range of objective seriousness and the aggravating features must also be taken into account, being on conditional liberty and a record of similar offences. … [26 October 2016: sequence 3] ... that was in the mid-range of objective seriousness. … [26 October 2016: sequence 16] The offence of aggravated break and enter and commit serious indictable offence, this is the further offence of this kind with people there, sequence 16, again, this offence was committed in the home of the victim. Indeed, another aggravating feature. I am mindful that he was on conditional liberty at the time. … … Returning to the objective seriousness, there is ample evidence to find that that offence, that is, sequence 16, falls comfortably within the mid-range in my view. [26 October 2016: sequence 17] … it is somewhat below the mid-range of objective seriousness … the Court should be mindful that given his criminal history of similar offences and the fact that he was on conditional liberty at the time, both of those being aggravating features, that must be taken into account when setting an appropriate sentence for that matter. …"

Grounds 1, 2 and 3: alleged failure to distinguish between objective seriousness and subjective aggravating factors of conditional liberty and criminal history

The grounds of appeal are set out above. Ms Wasley, who appeared for the applicant, accepted that grounds 1, 2 and 3 are related in that, if this Court is satisfied of ground 1 or 2, ground 3 will be made out, but otherwise it will not be made out. Each of these grounds turns on whether the applicant has established that the sentencing judge erroneously took either the applicant's conditional liberty or his criminal history into account in assessing objective seriousness. It was accepted that if either of those matters had been taken into account in such assessment, this would amount to an error which would cause the sentencing discretion to miscarry, and require this Court to re-sentence in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The relevant principles can be shortly stated. The assessment of the objective seriousness of an offence is an important part of the sentencing process. It is relevant to the sentence overall and also to the non-parole period. The first principle is that, as its name implies, an assessment of objective seriousness is confined to objective matters and not matters pertaining to the individual offender. Plainly, whether the offender is on conditional liberty at the time of the offending and the offender's criminal history are subjective matters and are not to be taken into account in the assessment of objective seriousness. The distinction between matters which can be taken into account in the assessment of objective seriousness and those which cannot is not an arcane one. It is required to be drawn whenever a sentence is imposed. The second relevant principle is that a sentence is arrived at by taking into account all relevant objective matters (such as objective seriousness) and subjective matters (such as whether the offender was on conditional liberty at the time of the offending and the offender's criminal history). This process has been described as "instinctive synthesis": Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).
The other matter of significance is that the sentencing judgment was delivered ex tempore, albeit after an overnight adjournment at 4pm to permit the sentencing judge to read the material and commence the reasons at 10am the following morning. As any judicial officer who is accustomed to give ex tempore judgments knows, elegant segregation of topics into strictly quarantined categories is unlikely to be achieved, even if it were desired. What is required is the clear expression of the reasons for decision. In the case of sentencing, this requires an articulation of the relevant findings, an assessment of objective seriousness and a consideration of all relevant aggravating and mitigating factors. Some aggravating factors, such as whether the offence occurred in the home of the victim, will be relevant to objective seriousness but others, such as that the offence was committed while the applicant was on conditional liberty, will not be. Further, it is desirable that each offence be addressed in sequence, which requires a consideration of all relevant factors for each. This will be the case whether individual sentences are imposed for each offence (taking into account, where relevant, offences on a Form 1) or whether an aggregate sentence is imposed for more than one offence, as occurred here.
It can be seen from the passages extracted above that his Honour ranged over both objective and subjective matters in a manner which was, at times, discursive. However, I am not persuaded that his Honour elided the distinction between matters germane to objective seriousness and those aggravating matters of conditional liberty and criminal history which are the subject of grounds 1 and 2. Indeed, there are several passages which indicate that his Honour had firmly in mind the difference between the two concepts.
For example, in the passages extracted above for sequence 1 on 4 October 2016, his Honour used the conjunction "but" when turning from objective seriousness to subjective aggravating factors (conditional liberty and criminal history). His Honour used the prefatory words "[c]oming back to the offence overall" at the beginning of the next paragraph before returning to an assessment of objective seriousness. These words are consistent with the maintenance of the distinction. A similar formulation was used by the sentencing judge for sequence 13 on 6 October 2016 when his Honour addressed objective seriousness in the same sentence as the subjective aggravating factors but separated the clauses with the word "but" to indicate the distinction. His Honour adopted a different formulation with respect to sequence 11 on 11 October 2016 by separating the concepts by commencing a new sentence. His Honour flagged the distinction between objective seriousness on the one hand and subjective aggravating factors on the other by the use of the words "as well" in the second sentence from the extract.
In the extract from the passage addressing sequence 1 on 26 October 2016, his Honour used the conjunction "and" when linking the clause concerning objective seriousness with the clause concerning subjective aggravating factors. However, his Honour signalled the distinction by the words "must also be taken into account" in the second clause. In the extract from the passage concerning sequence 16 on 26 October 2016, his Honour raised objective seriousness and an objective aggravating matter (that the offence was in the home of the victim), before turning to a subjective aggravating matter (conditional liberty). His Honour then indicated that there had been a departure from objective seriousness by commencing a subsequent sentence with the words, "[r]eturning to the objective seriousness". In the extract from the passage regarding sequence 17 on 26 October 2016, his Honour addressed both concepts in a single sentence and stated, uncontroversially, that all matters (including objective seriousness, conditional liberty and criminal history) needed to be taken into account in sentencing.
I regard these passages (which were also the ones on which the applicant relied) as being sufficient to indicate the sentencing judge's appreciation of the distinction between an assessment of objective seriousness, which is confined to objective matters, and the subjective aggravating features of conditional liberty and criminal history. Although there was some ambiguity in the parties' written submissions as to the categorisation of these concepts and the distinction between them which was occasioned by the heading, "objective seriousness", I do not discern otherwise in the parties' submissions any misapprehension as to the distinction.
In these circumstances, I am not persuaded that either ground 1 or ground 2 has been made out. It was accepted that ground 3 depended on the plaintiff establishing either or both of grounds 1 and 2.

Ground 4: alleged manifest excess

The applicant submitted that the sentence imposed was manifestly excessive. Ms Wasley accepted that the indicative sentences are not susceptible to appeal but contended that the starting points for three of the indicative sentences were too high, having regard to the discount of 25% which had been applied to them by reason of the plea. She submitted that this explained, at least in part, what she contended to be a manifestly excessive aggregate sentence.

Challenge to the indicative sentence for sequence 11 on 11 October 2016

First, the applicant submitted that the starting point for the indicative sentence for sequence 11 on 11 October 2016 (robbery armed with offensive weapon) was 6 years and 8 months and that this was too high having regard to this Court's guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. In R v Henry, this Court said that for armed robbery characterised by certain features (young offender with little or no criminal history; weapon such as a knife capable of inflicting serious injury; limited degree of planning; limited, if any, actual violence but a real threat thereof; victim in a vulnerable position such as a shopkeeper or taxi driver; small amount taken; and a plea of guilty, in circumstances of a strong Crown case) the sentence imposed should fall within the range of 4-5 years.
While sequence 11 on 11 October 2016 corresponds with many of the features in R v Henry, notable differences included that the applicant was almost 27 years old at the time of offending and had a substantial criminal history. Since the plea of guilty is one of the features in R v Henry, the indication in the guideline judgment is that the sentence ought be within the range of 4-5 years, not that the starting point (undiscounted for the plea) ought be in that range. In these circumstances I am not persuaded that the indicative sentence for sequence 11 reveals any error such as would cause the aggregate sentence to be excessive.

Challenge to the indicative sentence for sequence 1 on 26 October 2016

Secondly, Ms Wasley submitted that the starting point of 8 years for the 6-year indicative sentence for sequence 1 on 26 October 2016 (aggravated break and enter, commit serious indictable offence) was too high and that this error infected the aggregate sentence and made it manifestly excessive. She relied on the circumstances that the serious indictable offence was larceny and that the possession of the garden tool with intent to intimidate was the subject of a separate charge, sequence 3 on 26 October 2016 (armed with intent to commit an indictable offence) for which the indicative sentence was only 1 year and 4 months.
The gravamen of the offence was break and enter. The aggravating circumstance was that the applicant knew that persons were present. The residence into which the applicant broke and entered was the home of a family of five. The two parents were awake and their three children were asleep at the time the applicant broke into their residence through the dog door and threatened them with a gardening tool, which was originally thought to be a knife or a screwdriver. The maximum penalty for the offence was 20 years' imprisonment, with a standard non-parole period of 5 years. In the circumstances of this offence, I do not regard the indicative sentence as revealing any excess.

Challenge to the indicative sentence for sequence 17 on 26 October 2016

Ms Wasley contended that the circumstances of the common assault (sequence 17 on 26 October 2016) were such as to make the indicative sentence of 11 months (which equated to a starting sentence of 1 year and 2 months) excessive. She submitted that the agreed facts were that although the applicant had caused Ms Towers to stumble back towards the wall out of his way and fall, the applicant had not made physical contact with her.
One of the difficulties with this submission is that it fails to have regard to the effect of the four additional matters on the Form 1, to which his Honour was entitled to have regard when indicating the sentence for sequence 17: s 33(2) of the Crimes (Sentencing Procedure) Act. The effect of s 33(2) is that the sentence indicated for sequence 17, having regard to the four offences on the Form 1 may be greater than would be warranted if the sentence was indicated merely for sequence 17 without the matters on the Form 1: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[43] (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing).
Another difficulty with the submission is that the context in which the offence was committed is highly significant. The applicant approached Ms Towers after she had asked him for the keys. His movement led Ms Feil to tell him not to touch Ms Towers. Ms Towers' movements (stumbling backwards) were in response to his and designed to put distance between him and her. It was a highly charged situation where the three women, who were at home at the time the applicant broke in, were endeavouring to deal with the applicant and keep him away from the two-year old child who was also there. In these circumstances, the fact that there was no physical contact between the applicant and Ms Feil, while relevant, does not make the indicative sentence excessive, particularly having regard to the matters on the Form 1.
In addition to the challenge based on the indicative sentences, the applicant submitted that the degree of accumulation was too great and that the aggregate sentence was excessive having regard to Bugmy factors and the applicant's alleged willingness to address his addiction and mental health issues.
A claim of manifest excess requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust. There is no single "correct" sentence. Sentencing judges are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process.
As referred to above, counsel appearing for the applicant at the proceedings on sentence accepted that some degree of accumulation was appropriate. The sum of the indicative sentences is 21 years and 5 months; the aggregate sentence had a total term of 10 years. It can thus be seen that there was both accumulation and concurrency. Although Ms Wasley criticised the sentencing judge for not quantifying the accumulation, the imposition of an aggregate sentence does not require any such specificity since only one sentence is actually imposed thereby obviating the need to specify the commencement and expiry dates of individual sentences. There was a significant allowance for special circumstances, in that the statutory ratio of 75% was reduced to 55%.
The offending conduct took place over a period of about three weeks. The applicant broke into three residential premises, in two of which the occupants were at home. The occupants were understandably fearful when they came into contact with the applicant. The offence against the taxi driver caused the victim to fear for his life. I am not persuaded that the aggregate sentence was manifestly excessive. Ground 4 has not been made out.

Proposed orders

I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.
BEECH-JONES J: I agree with Adamson J.

Amendments 17 February 2020 - [21] - "excessive" substituted for "inadequate" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2020

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