Stewart v R

Court of Criminal Appeal (NSW)|2013-05-08|Before: Beazley P, Fullerton J, Campbell J

Judgment 1THE COURT: The applicant seeks leave to appeal from the sentences passed on him in the District Court of New South Wales by his Honour Judge Garling on 13 April 2012. 2The applicant pleaded guilty to seven counts on an indictment. He asked the court to take into account four additional offences on a Form 1 when dealing with him for the third count. 3After sentencing the applicant at the conclusion of a careful explanation of all the facts, matters and circumstances which his Honour considered bore upon fixing the appropriate sentences for the offences and this offender, the sentencing judge said: "You have been sentenced to a total term of imprisonment of sixteen years with a non-parole period of ten years." 4In fact, his Honour was mistaken as to the effect of the sentences he had imposed. As became apparent from the Crown's particulars of trial filed on 6 May 2013, two days before the hearing of the appeal, the total effective sentence imposed by the learned sentencing judge was not imprisonment for 16 years but imprisonment for 14 years and 6 months commencing on 24 November 2010 and expiring on 23 May 2025, with a non-parole period of 10 years expiring on 23 November 2020. 5A co-offender (the principal co-offender) who pleaded guilty to the same counts as the applicant was sentenced to a total effective term of imprisonment of 15 years with a non-parole period of 9 years. A second co-offender who pleaded guilty to four of the counts, but whose criminality was of a much lesser order, was sentenced by a different judge. This sentence was not the subject of submissions by the applicant and may be put aside.

The grounds of appeal 6When the ramifications of the error in the learned sentencing judge's sentencing order became apparent at the hearing of the application, the grounds of appeal were amended, with leave, there being no objection by the Crown. The grounds ultimately pressed are in the following terms: "Ground 1A: The applicant is entitled to relief because he did not receive parity in relation to the non-parole period as between himself and the co-offender. Ground 3A: The non-parole period is crushing upon the offender, who is for the first time in gaol."

The offences 7The offences related to two home invasions and other criminal conduct committed by the applicant in the course of those home invasions. The first home invasion occurred between 11 pm on 5 November 2010 and 2 am 6 November 2010. This was the subject of the first count on the indictment. Counts 2 to 7 arose out of a second home invasion, which occurred between 11 pm on 15 November 2010 and 3 am on 16 November 2010, as did the four Form 1 offences. The objective seriousness of each offence was of a high order. As the learned sentencing judge recognised, by the structure he adopted involving accumulation and concurrence of various sentences, the six counts arising out of the second home invasion contained common elements. The care his Honour took in devising this structure was directed to the avoidance of double punishment for the common elements: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [40]. 8The counts and the respective sentences imposed were as follows: Count 1: Aggravated break and enter and commit serious indictable offence, Crimes Act 1900, s 112(2). Maximum penalty: 20 years imprisonment; standard non-parole period: 5 years imprisonment. Sentence: Imprisonment for 6 years and 3 months commencing on 24.11.10 and concluding on 23.2.17, with a non-parole period of 4 years concluding on 23.11.14. Count 2: Specially aggravated break and enter and commit serious indictable offence, Crimes Act 1900, s 112(3). Maximum penalty: 25 years imprisonment; standard non-parole period: 7 years imprisonment. Sentence: Imprisonment for 9 years commencing on 24.11.11 and concluding on 23.11.20, with a non-parole period of 5 years and 6 months concluding 23.5.17. Counts 3 & 4: Aggravated sexual assault in company, Crimes Act 1900, s 61JA. Maximum penalty: life imprisonment; standard non-parole period: 15 years imprisonment. Form 1: Aggravated indecent assault x 4, Crimes Act 1900, s 61M(1). Appurtenant to count 3. Maximum penalty: 7 years imprisonment. Sentence (Form 1 taken into account on count 3): On each, imprisonment for 12 years commencing 24.5.13 and concluding 23.5.25, with a non-parole period of 7 years and 6 months concluding on 23.11.20. Count 5: Specially aggravated kidnapping, Crimes Act 1900, s 86(3). Maximum penalty: 25 years imprisonment. Sentence: Imprisonment for a fixed term of 4 years commencing 24.11.10 and concluding 23.11.14. Counts 6 & 7: Aggravated kidnapping, Crimes Act 1900, s 86(2). Maximum penalty: 20 years imprisonment. Sentence: On each, imprisonment for a fixed term of 3 years commencing on 24.11.10 and concluding 23.11.13. Total effective sentence: Imprisonment for 14 years and 6 months commencing on 24.11.10 and concluding on 23.5.25, with a non-parole period of 10 years concluding on 23.11.20, on which date he is eligible to be released to parole. 9The structure of the sentences may be represented diagrammatically as follows:

Summary of facts 10The male occupier of the home invaded was a drug dealer who grew cannabis hydroponically for the purpose of supply on the retail market. The applicant and the principal co-offender were armed with a metallic baseball bat and a jemmy bar respectively. They roused the occupier from sleep by banging at the back door. They wore dark clothing and sought to hide their appearance with motorcycle helmets. 11The offenders removed a screen door and ordered the occupier to open the back door threatening to knock it in with their weapons. The occupier obeyed the order. When the offenders entered the home, the applicant knocked the occupier to the ground by striking him on the head with the baseball bat. Both offenders kicked, punched and, with their weapons, struck the victim demanding money, goods and drugs. The applicant stood guard over the victim while the co-offender ransacked the house. The applicant threatened to tie the victim up and cut off his finger. The offenders also threatened to sexually assault him if he did not disclose the location of the money and drugs. Whilst attempting to extract this information, the applicant armed himself with a hunting knife pushing the victim against a wall with the knife to his face, which lacerated his cheek. 12In their ransacking search, the offenders came across a second occupant, a female, hiding behind the cupboard in her bedroom. She was not harmed on this occasion. Both occupants were detained in the bedroom. The telephone lines were cut. The offenders decamped with $15,000 in cash, the hunting knife and some other personal property. 13The male victim did not report the incident to the police or seek medical attention for fear of exposure of his criminal enterprise. 14The applicant and principal co-offender returned to the same premises on 15 November 2010 having co-opted the third offender to assist them. This time the applicant was armed with a sawn-off shotgun and the principal co-offender with a baseball bat. The male and female who were the subject of the earlier offences were at the premises as was another woman who was visiting. Once again the offenders sought to disguise themselves with motorcycle helmets. 15Upon arrival at the premises the three offenders forced their way in by ripping the front screen-door completely off its hinges. The applicant knocked the male to the ground with the butt of the shotgun and forced the barrel into his mouth demanding money and valuables. He was punched and kicked, and bound with duct tape and repeatedly threatened that his fingers would be cut off. The male and the two women were held hostage in the dining room and again the house was ransacked. The applicant and the principal offender threatened the women with sexual violence. 16An antique shotgun was located on the premises. One of the co-offenders loaded the shotgun with a cartridge from the sawn-off shotgun, and pointed it at the male whilst making further demands for valuables. 17The applicant indecently assaulted one of the women by pulling her underwear between her buttocks and cutting her blouse open with a knife. These are the first two offences on the Form 1. Later the other woman was indecently assaulted when her breasts and crotch were grabbed on the outside of her clothing. These are the third and fourth offences on the Form 1. 18Meanwhile, the principal co-offender was in the kitchen threatening the male occupant. It appears that the applicant joined the principal co-offender, as the sentencing judge next recorded that the offenders held a knife against the male victim's fingers and threatened to cut them off. One of his fingers was dislocated. 19One of the offenders said the male victim's fingers would not be cut off if the woman who was visiting the premises agreed to perform sexual acts. She agreed. Non-consensual oral and penile penetration were then committed by the applicant and the principal co-offender. These acts comprised the third and fourth counts respectively on the indictment. The third offender did not participate in these offences and sought to protect the woman from the other two offenders. After the sexual assaults, the applicant stabbed the male victim in the right arm. 20The offenders decamped with a crossbow, the antique shotgun, $200 in cash and a purse. 21The sexual assaults were reported to the police by the woman who was visiting the premises. From her complaint, police learned of the home invasion and attended the premises, obtaining an account from the male victim of both home invasions and an admission of his own criminal activity. 22The police identified the principal co-offender and arrested him on 20 November 2010. Apparently he did not inform on the applicant or the third co-offender but provided information and assistance to the police about unrelated matters. 23The applicant surrendered to police on 24 November 2010 and made full admissions. 24In her victim impact statement, the sexual assault victim who complained to the police spoke of the severe emotional effects she suffered as a result of what happened to her. All of her major personal relationships, with her mother, her daughter and her new partner were, and are, severely disrupted.

Applicant's personal circumstances 25The applicant was aged 24 years and 11 months at the time of the offending. He and his long time partner have three children. Two other children were stillborn. 26The applicant had an extremely disadvantaged upbringing. He had a violent father who had a significant criminal history. The applicant's mother left the relationship when the applicant was about 11 years of age. After that, the applicant mainly lived with his father, but sometimes with other relatives. 27The applicant left school during Year 7. Although his employment history was somewhat sporadic, evidence from persons with whom he had been employed indicated that he was a hard working, conscientious and reliable employee when in work. 28The applicant had a criminal record, although the trial judge considered it was not significant, being mostly 'destroy or damage property' offences. His previous offending had not attracted a term of imprisonment. At the time of this offending, the applicant was abusing alcohol and cannabis, but he was unaccustomed to the "ice" the principal co-offender had supplied to him prior to the second home invasion. At his age, voluntary intoxication does not mitigate his offending, but may help explain it: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at 382 [178] per Spigelman CJ, at 396 [265] per Wood CJ at CL, at 409 [331] per Hulme J, and at 413 [348]-[349] per Simpson J. 29His Honour found that the applicant had shown remorse, and had apologised to his victims. However, as his Honour noted, the evidence from a psychologist was that the applicant had a moderate to high risk of re-offending. 30His Honour also noted that the applicant had been diagnosed with a major depressive disorder. His Honour referred to the applicant's early plea of guilty and allowed a 25 per cent discount for the plea. His Honour found special circumstances on the basis of his need for rehabilitation and the consideration that this would be his first time in gaol. 31The principal co-offender was also allowed a 25 per cent discount for the plea and an additional 15 per cent for his assistance to police.

The sentencing judge's consideration of the parity issue 32In sentencing the applicant, the sentencing judge stated, at 11: "The offenders must be punished in such a way that they realise that they cannot act in this way but, more importantly, that others in the community realise that if they act in this way they will be sentenced to lengthy terms of imprisonment. Each of the offences is very serious. One only needs to look at the maximum sentence laid down by Parliament for each of these offences." 33His Honour then stated, at 13: "I have to assess the part played by each of the offenders and the difference, particularly in subjective matters. The two offenders acted jointly and each is responsible for what happened. When I looked at the facts and the various actions, each of them acted in a very cruel way, each of them, on various occasions, carried out acts the subject of the offences, each of them had, in my view, a similar degree of criminality. When I read what went on, I concluded that there was not a lot of difference between what they did. The sexual assault by [the main co-offender] would be usually defined at a higher category than the sexual assault by [the applicant], but they were both involved in each." The applicant does not challenge these findings. 34At 13-14, his Honour further remarked: "... when I turned to the subjective matters, then if I was just sentencing on those alone, without the fifteen per cent discount [afforded the principal co-offender for assistance], I would have given [the principal co-offender] a higher sentence, significantly because of his previous offence, the fact that it is aggravated by him committing this offence whilst on parole, and his significantly different criminal antecedents which bring with it the fact he had served [a] gaol term before. [The applicant] had not. In formulating these sentences I have had to have regard to the principle of totality. They are most difficult sentences to formulate keeping that principle in mind. In addition, I have to look at the parity question between the two offenders and attempt to sentence in accordance with that principle. The end result is that some of the non-parole periods are different to those which I may have imposed had I been sentencing for a single offence but, in the end, I believe I have achieved who I set out to do, that is, to sentence to an overall head sentence and non-parole period which I believe is appropriate in each case." In effect, his Honour indicated that the difference in the effective sentences to be imposed was to be attributed to the additional discount afforded the main co-offender for his assistance to authorities.

Submissions on appeal 35The grounds of appeal raised two short points. First, Mr P Segal of counsel, who appeared for the applicant, submitted that notwithstanding the care taken in structuring the sentences, the disparity between the effective non-parole periods for the applicant and the principal co-offender was not explained by the 15 per cent discount afforded to the principal co-offender. 36He submitted that the principal co-offender's criminal antecedents and the fact that he had committed the various offences whilst on parole justified a finding that the objective seriousness of his offending was aggravated in a way that the applicant's was not. It was submitted that, at best, when regard was had to the applicant's criminal antecedents, which, as mentioned, the sentencing judge found were not significant, the discount for assistance operated to produce some relative parity. This was reflected in the total effective sentences of 15 years for the principal co-offender, and 14 years and 6 months for the applicant (absent the error identified in [4] above). That parity was, however, lost in fixing the effective non-parole period for each offender, because the non-parole period was wrongly set against a total sentence of 16 years and not the correctly calculated sentence of 14 years 6 months, resulting in the applicant having a justifiable sense of grievance. Counsel submitted that, if anything, the applicant's stronger subjective case might have been expected to attract additional leniency in fixing the non-parole period. 37The second matter was that raised in Ground 3A. Mr Segal argued that ten years in jail was "too long" and the sentence was "crushing". The submission, in substance, was that the sentence was manifestly excessive and, accordingly, "unreasonable or plainly unjust". 38The Crown accepted that the error in the pronouncement of the sentencing order made it necessary for this court to re-sentence the applicant. The Crown Prosecutor accepted that the judge's sentencing remarks and the structure of the sentences imposed strongly suggested that his Honour intended to alter the statutory proportion between the effective non-parole period and the total effective sentence in a roughly even way as between the applicant and the principal co-offender: Crimes (Sentencing Procedure) Act 1999, s 44(2). 39In the case of the principal co-offender, the relationship between the effective non-parole period and the balance of term was 60 per cent, and in the case of the applicant, but with the error, approximately 62.5 per cent. This was reflective of his Honour's statement "there will be a difference in sentences, mainly because of the percentage I have to deduct from [the main co-offender's] sentence". The Crown submitted that this statement explained why the principal co-offender received a slightly more favourable outcome in terms of the statutory proportion. The Crown accepted that the non-parole period for the applicant ought to be 62.5 per cent of the true total effective sentence of 14 years and 6 months. The Crown contended that a minimum effective term of 9 years approximated that arithmetical outcome. 40In relation to the second ground, the Crown argued the sentence was not crushing. The Crown submitted that the need for a necessary proportion between crime and punishment demanded a relatively long period of imprisonment, notwithstanding the applicant's subjective case.

Consideration 41Given the summary of the offending conduct, it could not be gainsaid that the objective seriousness of the offending of each of the applicant and the principal co-offender called for stern and condign punishment regardless of their subjective circumstances. To put it another way, the necessity for "reasonable proportionality between a sentence and the circumstances of the crime", whatever the strength of the subjective case of the offenders, required stern punishment: R v Geddes (1936) 36 SR (NSW) 554 at 556; R v Dodd (1991) 57 A Crim R 349 at 354. 42In view of the concession made by the Crown, it is necessary that leave to appeal be granted, that the appeal be allowed (at least in part) and that this Court proceed to re-sentence the applicant, so as to take account of the sentencing judge's mathematical error. The question remains, however, whether the applicant has made out any of his grounds of appeal and, if so, what effect, if any, that will have on the sentence that ought to be imposed. 43Ground 1A was directed to the parity principle. The parity principle is an aspect of equal justice: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at 472 [28]; 474 [31]; 476 [33] per French CJ, Crennan and Kiefel JJ. In Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 Gibbs CJ said: "The reason why the court interferes in such a case is that it considers that the disparity is such to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." 44In Green and Quinn, the plurality, having cited this passage, added: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (Citations omitted). 45The parity principle is one of the pillars underpinning sentencing law: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 128 [18]. These pillars support the whole sentencing task. To put it another way, the principles permeate the whole process. As the Court put it in Muldrock, at 128 [17]: "It ... remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence ..." 46The non-parole period represents the minimum period which the sentencing court adjudges that justice requires an offender to spend in gaol for his or her other offending. But, subject, importantly, to the Crimes (Sentencing Procedure) Act, s 44, the length of the non-parole period may be fixed by reference to subjective factors of a kind that may justify disparity between sentences imposed upon offenders who committed the same offence. Nonetheless, all other things being equal, disparity in the non-parole period, or indeed, in the relationship between the non-parole period and the total effective term, may give rise to the requisite justifiable sense of grievance, such as to call for appellate intervention. General sentencing principles guide all relevant steps in the sentencing process: R v Hampton (1998) 44 NSWLR 729 at 732. 47Reading the sentencing judge's reasons as a whole, it appears that in general terms his Honour intended to treat the applicant and the principal co-offender more or less equally, notwithstanding the language highlighted by the Crown as suggesting reasons for a slightly lower sentence for the principal co-offender. His Honour was well aware, and stressed, that the applicant's subjective case in the ordinary course entitled him to somewhat more leniency than the principal co-offender. What made a difference to this assessment was the additional discount to which the principal co-offender was entitled for his assistance. Reading the reasons as a whole, it appears that this factor, not present in the applicant's case, brought the sentence imposed upon the principal co-offender into parity with the sentence imposed upon the applicant. 48For that reason, the Court has concluded that his Honour did not intend to differentiate between the applicant and the principal co-offender so as to fix a total non-parole period that was 60 per cent of the total effective sentence in the case of the principal co-offender and 62.5 per cent of the total effective sentence in the case of the applicant. Rather, we consider that his Honour intended that each of them was to have the opportunity of spending 6 years on parole. This explains the non-parole period of 9 years fixed against a total sentence of 15 years in the case of the main co-offender, and the 10 year non-parole period fixed against a total of 16 years pronounced in the case of the applicant. To work on the basis of a 2.5 per cent difference imbues the exercise with an artificial air of precision which should be eschewed. We would add that the finding of special circumstances in the case of the principal co-offender was, in the Court's view, a most favourable one. However, there is no appeal against that finding so that the Court is obliged to act upon the sentence that was imposed. That sentence was not one which could be characterised as so inadequate so as not to be an appropriate comparator for the purposes of these principles: see Green and Quinn especially at [33]. 49Accordingly, the applicant has established error in respect of this ground of appeal, although the error is essentially a function of his Honour's mathematical error.

Ground 3A 50In support of Ground 3A, Mr Segal referred to R v Rossi (1988) 142 LSJS 451. In that case, King CJ referred to a very long head sentence of almost 30 years as being "so long indeed ... to be properly characterised as a crushing head sentence". His Honour explained the relevant principle in the following terms: "There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention of the court by way of reducing the total effect." (Citation omitted) 51The Court is not persuaded that the individual sentences or the total effective sentence are manifestly excessive. 52The sentences imposed are certainly stern, but not so stern as to merit the description "crushing". The sentence imposed is the product of an instinctive synthesis, by which is meant, as McHugh J explained in Markarian v R [2005] HCA 25; 228 CLR 357 at 378: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." His Honour's approach was unanimously approved and applied by the High Court in Muldrock at [26].

Re-sentencing the applicant 53By way of correction of his Honour's mistake, the 6 year period for parole should remain intact. It follows from this that the same finding as to special circumstances should be made as was made by the sentencing judge. Six years is a long time on parole and the period of effective parole supervision will be 3 years: see the Crimes (Administration of Sentences) Regulation 2008, cl 228. But doubtless the sentencing judge had in mind, given the relative youth of each of the offenders, to enhance his prospects of rehabilitation, that he should be given an opportunity of demonstrating his capacity to be of good behaviour over that extended period. The Court considers there is merit in that approach in the applicant's case, as an ongoing incentive in his personal rehabilitation. 54Accordingly, the Court proposes to re-sentence the applicant so that he first becomes eligible for parole after a period of 8 years and 6 months, leaving the total effective sentence actually fixed, but not pronounced, at 14 years and 6 months. This can best be achieved by reducing the non-parole period for the concurrent sentences for counts 3 and 4 from 7 years and 6 months to 6 years. To be clear, the head sentence will remain one of 12 years. 55This approach leaves the overall structure of his Honour's approach intact. In particular, the degree of accumulation and concurrency between the sentences for counts 3 and 4 and count 2 remains. The overlap is still one of 4 years, in accordance with the sentencing judge's structure. As stated above, at [7], this takes account of the need to avoid double punishment for the common elements of these respective counts. Bearing in mind the principle of totality there remains a minimum, additional period of 2 years which must be served in prison for counts 3 and 4. 56Whilst the question of whether the applicant will be granted parole after the expiration of the non-parole period is one for the executive branch of government, one should not overlook the consideration that it is not a foregone conclusion. At the same time, if the applicant is granted parole when first eligible, any serious breach of parole (in particular, offences of violence) would likely see the parole order revoked with the consequence that he will be at risk of being returned to gaol to serve the balance of his term. For the reasons stated at [53], it will be salutary for the applicant to face that reality for a period as long as six years. 57The Court makes the following orders:

Leave to appeal granted;
Appeal allowed in part;
Confirm the sentences imposed in the District Court in respect of count 1, count 2, count 5, count 6 and count 7;
Quash the sentences imposed for counts 3 and 4 and instead sentence the applicant, taking into account the Form 1 offences on count 3, to a non-parole period of 6 years imprisonment commencing on 24 May 2013 and expiring on 23 May 2019, with a balance of term of 6 years imprisonment commencing on 24 May 2019 and expiring on 23 May 2025; the earliest date for release on parole being 24 May 2019.

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: 09 August 2013

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