Stines v R

JUDGMENT

1. WARD P: I agree with Rothman J.
2. MCHUGH JA: I agree with Rothman J.
3. ROTHMAN J: The applicant, Robert Stines, seeks leave to appeal, and appeals the sentence imposed upon him by the District Court. He pleaded guilty to the offence of aggravated robbery, contrary to s 95(1) of the Crimes Act 1900 (NSW), the maximum penalty for which is 20 years imprisonment. The applicant pleaded guilty at the earliest opportunity, being in the Local Court, and the sentence hearing before the District Court occurred on 30 October 2023.
4. The District Court sentenced the applicant to a term of imprisonment of 5 years and 3 months, including a non-parole period of 3 years and 4 months. The sentence commenced on 17 September 2022, and the applicant is, under the sentence imposed, first eligible for parole on 16 January 2026.

Grounds of Appeal

1. The applicant raises two grounds of appeal against the decision imposed upon him. Those grounds are: 1. Her Honour failed to consider the hardship of the offender's incarceration; and 2. The sentence imposed is manifestly excessive and a different sentence is warranted at law.

Facts

1. Between 19 January 2018 and 28 January 2018, the applicant committed the following offences: break, enter and steal (H67081904); aggravated robbery with wounding (H66955956); and robbery (H69278277). The aggravated robbery with wounding occurred sometime after 3.00am on 28 January 2018.
2. The applicant rode his bicycle to a train station, where he approached a 56-year-old man who was seated alone. He struck the victim over the head at least six times with the serrated edge of a metal pole, causing bleeding. He then took the victim's wallet and backpack.
3. The robbery offence involved the offender robbing a woman while he rode his bicycle. The applicant grabbed the woman by the shoulder strap of her backpack, pulling her towards him. While the victim screamed for help, the offender took a phone from her right hand, as well as her headphones, before riding off.
4. The applicant was then in custody from 29 January 2018 with respect to the break and enter offence. The sentence for the aggravated robbery was imposed on a partly concurrent basis with the sentence for the break and enter. The sentence for the robbery was imposed on a partly concurrent basis with the sentence for the aggravated robbery. On 23 May 2022, the applicant was released to parole, which was to have expired on 23 November 2023.
5. The applicant committed the present offence of aggravated robbery on 17 September 2022, whilst he was on parole. He was arrested and refused bail on 20 September 2022. His parole was subsequently revoked, with effect from 17 September 2022.
6. The aggravated robbery, to which this appeal relates, was in the aggravated form because of the circumstance that the applicant recklessly inflicted actual bodily harm. In the afternoon of 17 September 2022, the victim, a 61-year-old woman, was on her way back from a walk near Casula train station. As the victim walked along a walking track, the applicant rode his bike past her, riding in the same direction.
7. About two to three minutes later, the applicant rode back towards the victim. The applicant stopped and crouched next to his bike. The victim approached the applicant and walked past him. The victim heard a loud noise and turned around.
8. The applicant had dropped his bike and approached the victim. He pushed her and struggled with her to take her shoulder bag. The applicant ripped the bag from the victim's shoulder, and she fell to the ground. The fall caused the victim to become dizzy and suffer a blackout.
9. The applicant took the victim's bag and its contents, being a mobile phone, house keys, $25 in cash and the victim's drivers' licence. The victim was taken to Liverpool Hospital and was found to have suffered a mild concussion, a grazed left elbow and a bruised ring finger.

Submissions of the Applicant

1. In relation to Ground 1 of the Appeal, the applicant submits that her Honour failed to consider the hardship of the applicant's incarceration. During the sentencing proceedings, the applicant provided to the learned sentencing judge a copy of the judgment in the Court of Criminal Appeal (CCA) concerning the earlier offences and invited her Honour to consider the material to which the Court referred in the judgment relating to the applicant being "bashed in gaol". The circumstances of the assault in gaol were described by the sentencing judge in the remarks relating to the earlier offences and cited by the Court in the earlier appeal. [1] The earlier judgment of the Court is in the following terms: "9 The sentencing judge summarised an assault suffered by the applicant while in custody, to which prominence was given when the appeal was heard, as follows: 'The offender was the victim of an assault by a correctional officer whilst in custody in around December 2013. As a result of the attack, the offender suffered a broken jaw, which required surgery, and he had a metal plate inserted. He reports ongoing pain in relation to the injury and also reported concern as to whether he suffered a brain injury as a result of the attack. Ms Naismith of Legal Aid outlined the ways in which this attack has affected the offender throughout his time in custody. She stated that the offender is transferred between prisons more often than is usual due to medical appointments and for being at the risk of harm. As a result of being a Crown witness against his attacker he has been called a 'dog' or a 'Crown witness' in custody. He is also not able to engage in services and programs to the same extent as those inmates who are not transferred as regularly. The offender has also not been able to engage in buy-ups as he has been transferred so often that he cannot take advantage of the buy-up system.' 10 Later in her remarks, the sentencing judge referred to the fact that the applicant had been removed from Parklea Correctional Facility after he had been placed there while giving evidence in the trial against his attacker, and that he was being called 'a dog' by the guards for giving evidence against one of the correctional officers. Her Honour referred to his reports that he had suffered from flashbacks and that the plate in his face permanently reminded him of the attack, and that he experienced pain, mostly when he was cold. … The affidavit evidence concerning the attack upon the applicant in prison 16 Perhaps the most remarkable aspect of the evidence before the sentencing judge was the uncontested evidence, in an affidavit prepared by a solicitor employed by Legal Aid NSW, concerning the serious assault suffered by the applicant on 26 December 2013 while in custody. Her evidence was uncontroversial. It contains many details omitted from the summary given by the sentencing judge, and for that reason is best reproduced verbatim: 'Robert was punched to the left side of the face several times by Simon Waterfall. The assault left him with a shattered jaw requiring surgery. Surgery was performed at Westmead Hospital and was described in the records as an 'open reduction internal fixation of the fractured left angle mandible and wisdom teeth removed.' Robert now has a permanent plate with screws in his face holding his jaw together. Robert was not taken to hospital until 27 December 2013. He had originally not told the truth about what happened to him. He told me words to the effect of: I buzzed about 20 times that night, I was in a lot of pain. Officers said 'just say you slipped over in the shower'. The nurse said 'don't lie to us, tell me the truth' so I did. Simon Waterfall was charged with 'Causing grievous bodily harm with intent', 'reckless grievous bodily harm' and 'assault occasioning actual bodily harm'. On 7 April 2017 Simon Waterfall was found guilty by a jury of Reckless Grievous Bodily Harm. On 6 July 2017 Simon Waterfall was sentenced to 5 years and 9 months imprisonment with a non parole period of 3 years and 9 months. Mr Waterfall was not the only person charged after the assault. By letter dated 29 April 2014, I received notification from GEO that four officers had been summarily dismissed and three out of four officers had been charged with offences relating to either assault or accessories to the incident. In addition they were all challenging their dismissals in the Fair Work Commission. In February 2015 Robert was summonsed at the request of GEO to give evidence at the Fair Work Commission, although the matter did not end up proceeding at that time. After the assault Robert encountered a few more problems in prison that he would have if the assault had not occurred. For example: a. Being transferred from different prisons more than usual, such as for medical appointments, to be available for Court in the Waterfall prosecution or because he was at risk of harm; b. As a result of transfers, not being able to engage in services and programs to the same extent as if he was not transferred; c. As a result of transfers, not being able to engage in buy ups because he was never in one place long enough to use the buy up system; d. Being called 'crown witness' and a 'dog" e. Being placed on SMAP (Special Management Area - Placement) because of his vulnerability and high risk that other inmates would assault him. f. Being placed back at Parklea several times, including when the trial of Simon Waterfall was listed but not reached in May 2015. Robert also told me, in a face to face interview in February 2015, words to the effect of: I had to be moved from Parklea again because I was copping it every day, guards called me a dog for 'charging our officers'. I had my appendix removed while at Parklea. I kept asking for help and they kept denying it and saying I was lying and only had a headache. I collapsed on the floor vomiting. Robert also reported to me that: I have flashbacks and dreams a lot the plate being there permanently reminds me it's hard to sleep I think about what happened. I have pain mostly when it's cold' 17 There was no challenge to any of that evidence. The references to 'GEO' are to GEO Australia Group Pty Ltd, which is the private company which operates the Parklea Correctional Centre."
2. Further to the foregoing, the applicant relied upon the report of Dr Calvin, [2] which diagnosed the applicant as suffering, amongst other things, post-traumatic stress disorder (PTSD), which, in part, arises from the assault suffered by the applicant in prison. The applicant also relied upon other earlier reports, which had been compiled for the purposes of earlier proceedings. The Crown relied upon a report of 18 October 2023 by Dr Gordon Elliott, consultant psychiatrist for Justice Health and Forensic Mental Health Network. This latter report seems to have been commissioned in response to the report of Dr Calvin of 12 October 2023.
3. Relying on the report of Dr Calvin and his diagnosis of PTSD, the applicant submitted that her Honour did not factor into the sentence the "added component to his mental capacity and disadvantage". While accepting that her Honour referred to the applicant's disability and drug abuse and the report of Dr Calvin at [40] to [47], the applicant submitted that there was no reference to PTSD, the source of which was at the hands of correctional officers.
4. The submission was to the effect that her Honour did not refer to the effect of this condition, nor apparently consider it, on an intellectually impaired person and the circumstances of his custody. Further, even if one disregarded the PTSD, the applicant submits that the custodial sentence will weigh more heavily on a person with a mental illness. The cumulative effect on the applicant of the PTSD and his other disabilities was not considered by her Honour, and, as a consequence, her Honour fell into error.
5. Ground 2 seeks to appeal on the ground of manifest excess. Notwithstanding the different ground of appeal, the submission that the sentence imposed was manifestly excessive, rests largely on the mental condition and cognitive impairment of the applicant, as well as the failure of her Honour to apply the principles of totality correctly.
6. The applicant refers to the comments of the High Court in Muldrock, [3] in which the High Court discussed the effect of an offender's mental illness and cognitive impairment on moral culpability and the consequential effect on retribution and denunciation. The applicant also submitted that the sentence imposed upon him was, on a comparison with the statistics available, inconsistent with a finding that the offence was in the low range of criminality.
7. In relation to totality, the sentence now under appeal, because it was to be served partially cumulatively with the earlier sentence, results in a non-parole period of approximately 81% of the head sentence and does not give effect to the sentencing judge's optimism as to the rehabilitation of the applicant and the considerations necessary to counter extensive institutionalisation.

Submissions of the Crown

1. The Crown opposes the appeal. Before the sentencing judge, there were agreed facts and, as indicated above, additional evidence. The Crown referred the Court to the principles applicable to a ground of appeal raised in circumstances where it was not raised at first instance.
2. The submission of the Crown referred to the written and oral submissions before the learned sentencing judge, each of which address the applicant's mental condition, his diagnosis by Dr Calvin and his mild intellectual disability to submit that the applicant was not a suitable vehicle for general deterrence and supported a finding of special circumstances. Nevertheless, there was no submission to the sentencing judge that the applicant was subject to hardship in custody or that there was a risk of such hardship in the future.
3. There was no evidence that the applicant, who was in custody at the time of the sentence hearing, was experiencing ongoing hardship. As to the sentencing judge not referring explicitly to PTSD, the Crown referred to the reference by her Honour to the report of Dr Calvin at the paragraphs which refer to PTSD and attribute the diagnosis, in part, to the assault in prison. It was unnecessary in ex tempore reasons to refer to the diagnosis and circumstances in any greater detail.
4. Further, the Crown submits that the evidence before the Court did not support a finding, even on the balance of probabilities, that the applicant would suffer additional hardship in custody as a result of his mental condition. Error, according to the submission of the Crown, has not been established.
5. Again, in relation to Ground 2, the Crown has referred to well-known authority on the principles to be applied. In so doing, and particularly in dealing with the use of statistics, the Crown refers to the caution that must be taken when applying a statistical analysis or a mathematical approach to the sentence to be imposed.
6. The Crown provided a number of comparable cases and submitted that, in the absence of details associated with the instances giving rise to the statistics, such comparable cases are a much better guide to an appropriate sentence than bare statistics. The sentence imposed by her Honour was neither unreasonable nor plainly unjust.
7. Similarly, the Crown submits that the mathematical analysis by the applicant of the overall ratio is erroneous and does not refer to a period of continuous custody.
8. As to the circumstances that her Honour did not refer to the additional hardship as a result of COVID-19, the Crown points out that there was no evidence before the sentencing court as to the additional conditions or onus attributable to COVID-19. Lastly, the Crown made submissions on resentencing.

Consideration

1. It is necessary to deal with the evidence before the sentencing judge, the principles to be applied in dealing with remarks on sentence of this kind, and the principles applicable. First, it is necessary to recite the admonition of the High Court as to the manner in which courts on appeal or judicial review ought to treat judgments at first instance.
2. It is inappropriate for the Court on appeal to concern itself with "looseness of language" or "unhappy phrasing". Nor, in the words of the High Court, should a court construe the judgment below "minutely and finely with an eye keenly attuned to the perception of error". [4] Where the Court is dealing with remarks on sentence delivered ex tempore and immediately at the conclusion of submissions, the foregoing admonition is even more apposite.
3. The remarks on sentence need to be viewed and read as a whole and assessed considering the circumstances that the facts and submissions are fresh in the mind of the sentencing judge. A judicial officer in such circumstances is entitled to inform the parties and legal representatives of the factors being considered by reference to that which is also fresh in the minds of the parties and the legal representatives.
4. Her Honour expressly referred to, and accepted, the report of Dr Calvin at paragraphs 40 to 47 inclusive. [5] The report of Dr Calvin refers at [40] to a diagnosis of PTSD; Stimulant, Cannabis and Opioid Use Disorder; and Mild Intellectual Disability. PTSD was not the primary psychiatric diagnosis, which was significant substance use disorder.
5. At [43], the report refers to the applicant's "complex psychiatric history that intertwines early-life adversities with substance misuse and traumatic experiences". At [44], Dr Calvin, referring to the history given to him by the applicant, refers to the assault by an officer "culminating in a diagnosis of" PTSD. Overwhelmingly, the diagnosis and formulation on which Dr Calvin expressed an opinion related to the substance use disorder.
6. Nevertheless, to the extent that the evidence recounted that the assault by the officer culminated in the PTSD, the learned sentencing judge referred to it by reference. Moreover, in so doing, the learned sentencing judge was not required to accept the aforesaid diagnosis. In the psychiatric report compiled by Dr Elliott, the view was expressed that the applicant displayed no evidence of a major mental illness; no evidence of a chronic psychotic illness such as schizophrenia or major mood disorder; but displays significant antisocial personality traits and has received a diagnosis of an intellectual disability. Her Honour's acceptance of Dr Calvin and reference to his findings was to the benefit of the applicant.
7. This Court has clarified that the weight to be given to particular factors in arriving at an appropriate sentence is a matter for the sentencing judge and in the sentencing judge's discretion. An appeal is "not the occasion for the revision and reformulation of the case presented below". [6]
8. While one can imagine that PTSD caused by an assault by officers of correctional services might create some difficulty in returning to prison, there are two reports by psychiatrists, neither of which mentions any particular hardship associated with incarceration, as a result of the partial cause of the PTSD. Given that it is for the applicant to establish, on the balance of probabilities, the factor upon which he seeks to rely, it would have been extremely easy, in circumstances where the applicant has commissioned a psychiatric report, for the psychiatrist to address such an issue.
9. The evidence before the sentencing judge did not require her to find that the cause of the PTSD was substantially the assault by officers or that such a cause created additional hardship or onerousness on the applicant as a result of his incarceration. Further, as the Crown submits, the applicant was represented by counsel and did not put such a submission. This ground must fail.
10. It is now trite that sentencing is an intuitive or instinctive synthesis. A sentencing judge must seek to achieve each of the purposes of sentencing prescribed by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Some of those purposes point in different directions, but each is a guidepost in arriving at a sentence to be imposed on an offender. Her Honour referred to the choice of victim as an older woman and his decision to return to assault her.
11. Nevertheless, her Honour found that there was no significant planning, and that the victim was not seriously injured. Her Honour referred to the two aggravating features of the circumstance that the offence was committed on conditional liberty and the applicant's criminal history.
12. Her Honour's finding that the applicant's background did not give rise to Bugmy considerations is not the subject of appeal. Her Honour found that the intellectual disability suffered by the applicant reduced general deterrence to a moderate extent and that moral culpability was reduced somewhat. However, her Honour found that specific deterrence was relevant because of the escalating seriousness of the offending over recent years.
13. There was a finding of remorse, albeit limited, and her Honour expressed guarded optimism as to rehabilitation and considered there was a need for an extended period of parole to allow for intervention and supervision. Some of the findings of her Honour were generous. None of her Honour's comments disclosed identifiable error.
14. Before dealing with a ground of manifest error, it is necessary to rehearse briefly some applicable principles. Ordinarily, in order for a court on appeal to intervene in the exercise of discretion, particularly in the exercise of the sentencing discretion, it is necessary for there to be an error of the kind warranting such intervention. Such an error is disclosed when the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the exercise of discretion, mistakes the facts, or fails to take into account some material consideration. In such circumstances, there is identifiable error.
15. Where, notwithstanding the inability to identify error of the foregoing kind, a result is reached which, upon the facts and evidence before the Court, is "unreasonable or plainly unjust", the court on appeal is capable of inferring that, in some way, there has been a failure properly to exercise the discretion. Such an error is manifest error, a species of which is manifest excess or manifest inadequacy in sentencing. [7]
16. The Court has adopted and applied the foregoing principle on a number of occasions. Classically, the Court said: "443 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." [8]
17. The applicant relies upon statistics presented by the Judicial Commission. The sample size in those statistics is extremely small, which indicates that all sentences have not been included in the statistics. Further, in the absence of an indication of the circumstances giving rise to each sentence upon which the statistics rely, it is impossible to determine whether there is any comparability. Statistics, even when reliable and even when there is a significant pool from which the statistics are drawn, inform the Court of the sentences that have been imposed, not the range of sentences that are applicable. Such statistics are a tool for checking a result by a sentencing judge, but do not dictate and cannot dictate the sentence to be imposed.
18. Every sentence is unique. Each sentence depends upon a unique combination of objective circumstances and subjective features. The guideposts, apart from the purposes of sentencing, are the maximum sentence and, if there be one, a prescribed standard non-parole period. Beyond that, the fact, if it were the fact, that a judge on appeal (or all the judges on appeal) would have imposed a different sentence is not sufficient to intervene in a sentence that has been imposed below. It is necessary for the sentence below to be "plainly unjust" or "unreasonable". The applicant relies upon three particulars of unfairness.
19. On the issue of totality, the applicant's calculations are incorrect. The applicant has, in deriving those calculations, included a period during which the applicant was at liberty. When one calculates the ratio between head sentence and parole, by reference to the period spent in prison, the ratio is that the parole period represents 69% of the total period of incarceration for all of the sentences relevant to the calculation. Her Honour allowed 23 months of parole and, in relation to the sentence imposed by her Honour, the non-parole period was approximately 63% of the head sentence, plainly reflecting her Honour's finding of special circumstances.
20. Neither the length of the head sentence nor the length of the non-parole period disclose manifest error. Nor do either manifest a result that is "plainly unjust" or "unreasonable". Similarly, the structure of the sentence and the totality of the period of incarceration relating to the sentence in this matter, coupled with the sentences imposed in previous matters, do not reflect or disclose any manifest error. The overall non-parole period as a ratio of the overall period of incarceration is less than the ratio initially set for the earlier sentences imposed.
21. Notwithstanding the applicant's escalating seriousness of the offending, the head sentence imposed by her Honour was the same as the sentence imposed for the previous offences. In my view, the applicant has failed to show manifest excess. Ground 2 of the appeal must also fail.
22. As a result of the foregoing, I propose that the Court issue the following orders: 1. Leave to appeal granted; 2. Appeal dismissed.

Endnotes

1. Stines v R [2019] NSWCCA 115 at [9].
2. AB 164 and following.
3. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54].
4. Minister for Immigration and Ethnic Affairs v Wu Shan Liang ("Wu Shan Liang") (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ).
5. Remarks on Sentence at p 4, Appeal Book p 11.
6. Zreika v R [2012] NSWCCA 44 at [81].
7. House v The King (1936) 55 CLR 499 at 505.
8. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. 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: 19 February 2025