Tammer-Spence v R

Factual background

1. The sentencing judge found the facts as follows: "At the time of the offences both the victim and the offender were inmates in gaol… the victim was transferred from Silverwater Gaol to Long Bay Gaol. … His cell mate was the offender. They introduced themselves and spoke briefly that night. The next morning … the offender approached the victim and told him that he had to put $1,000 into an account the details of which were written down on a piece of paper that the offender handed to the victim. At the time he did this the offender indicated, referring to another man in the yard called 'Baz', that it was 'his yard', (meaning Baz's yard). The victim told the offender that he could only get $500. The offender then went away to find out if this was all right and a short time later Baz himself came over and spoke to the victim and impressed upon him that it was 'his yard'. The victim understood from the conversations with the offender and Baz that if he did not pay the money he would be bashed."
2. I pause here to note that these circumstances provide background in relation to count 1 (the s 99(2) offence). His Honour went on to recount the facts as follows: "On the night of 27 November 2016, when the offender and the victim were both in their cell together the offender warned him that something would happen to him if he did not pay the protection money for his safety. They also spoke about the offender's girlfriend. In that conversation about the offender's girlfriend the offender told him that his girlfriend had cheated on him. The victim responded that, 'if she is cheating on you she doesn't love you'. There was then a gap of silence which the victim described in his evidence being about 20 seconds, after which the offender stood up, then stood on the stool in the cell, grabbed a kettle containing extremely hot water and knocked the top of[f] it. He then poured the contents over the victim's head, scalding him badly."
3. This assault was the subject of count 2. The third count of detaining the victim arose from what the applicant did after the assault: "In order to prevent the victim from raising the alarm and reporting the offence, the offender told him not to scream and threatened him that if he pressed the emergency button in the cell he would stab him with a 'shank' he had. The offender also pulled out storage boxes which were stacked under the bed to block the victim's path to the emergency button. He further jammed a knife or fork in the cell door to hinder Correctional officers entering the cell. The offender gave the victim some … buprenorphine, to reduce the victim's sense of pain. … The victim gave evidence which I accept that he did not try to raise the alarm and seek assistance because he was frightened of what the offender might do. … The next morning when Correctional officers did a 'head count' of the people in each cell the offender stood between the Correctional officer who stood at the open cell door and the victim who sat on a chair at the back of the cell. … At about 8.30 to 9am, when the offender and the victim left the cell to go out to the exercise yard, the offender told him to wear a jumper and to put a towel over his head to hide his injuries. They went into the yard together. CCTV footage of the exercise yard that was tendered in evidence depicted the victim wearing the jumper with a towel draped over his head. The jumper he wore and the towel draped over his head hid his injuries … When they were in the yard the offender tailed the victim around the yard which had an intimidating effect upon him. Whilst in the exercise yard, the offender organised for the victim to go to the front of the queue of the those waiting to use one of the telephones so that he could ring his mother about putting money into the bank account, the details of which the victim had been given. The offender threatened the victim that he had better organise for the money to be paid into the account, 'otherwise Baz would not be happy', putting fear into the victim that if he did not comply with the demand he would be stabbed or bashed. At 10.01am the victim rang his mother whilst the offender stood next to him. He asked her to urgently put $500 straight away into the account explaining to her, 'I'm scared they're going to kill me and…I've got third degree burns'. She drove straight to the Commonwealth Bank and deposited $500 into the bank account provided to her by her son. He later made a second telephone call to his mother to obtain the receipt number of the deposit and passed this information on to the offender who was standing with him at the phone. … The offender then went to the showers in the exercise yard. Whilst he was in the shower block the offender and Baz came in and threatened him not to tell anyone about what had happened. They told him that when they knew the money had been paid into the account they would allow him to seek medical attention. Another inmate informed a prison guard that the victim had been 'jugged' and had serious burns. After the shower the victim spoke to one of the guards at the gate and told him he had been burnt. The victim had burns down the right side of the his face, just missing his eye, down the front and back of his neck on the right hand side, down his right shoulder and arm, down the top right hand side of his chest and stomach, as well as halfway down his back on the right hand side. He was taken to the gaol medical clinic and then [to hospital]."
4. The threats to the victim in relation to paying money to "Baz" were the subject of count 1 in the indictment.
5. The applicant's conduct was violent and unprovoked leaving the victim with permanent scarring. The victim was diagnosed with burns to 15% of his total body surface area. He was required to undergo a number of surgeries to remove the burned and dead skin. He remained in hospital for three months. Although he recovered from the burns to his face with no visible scarring, he has been left with scarring to his right shoulder and arm, stomach, chest and back.

Proceedings on sentence

1. A Crown bundle was tendered on sentence comprising the applicant's custodial history, antecedents and inmate profile. The applicant did not give evidence and relied instead on a report prepared by Ms Bianca Frahm, consultant psychologist.
2. Submissions on sentence addressed, inter alia, the question of the commencement date of the sentence given the terms of s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), which is discussed in further detail below.
3. At the time of the commission of the offences, the applicant was serving a sentence of 6 years imprisonment imposed on him in the Sydney District Court on 17 August 2012 for a number of armed robberies. That sentence was backdated to commence on 24 November 2011. A non-parole period of 3 years 6 months was imposed, to expire on 23 May 2015. An appeal to this Court against the severity of this sentence was unsuccessful: Tammer-Spence, Jacob v R [2013] NSWCCA 297.
4. In September 2014, the applicant was sentenced in the Downing Centre District Court to a fixed term of imprisonment of 2 years 6 months, expiring on 23 July 2015 for a further offence of armed robbery. In effect, this added a further 2 months to his non-parole period.
5. The applicant became eligible for parole on 23 July 2015 but for reasons not apparent at the hearing, he was not released on parole at that time. He was charged in relation to the index offences on 16 January 2017, at which time he was serving his balance of parole for the armed robberies.
6. Significantly for the first ground of appeal, it was submitted on behalf of the applicant that the sentence should commence on the date the applicant was charged with the index offences (16 January 2017) whereas it was submitted on behalf of the Crown that the sentence should be imposed to commence at the expiration of the parole period being served (23 November 2017).

Remarks on sentence

1. After finding the facts as set out above his Honour observed that there was uncontested evidence (from a recorded telephone call) that prior to the assaults the applicant had become angry with his girlfriend because he believed she was interested in another person. His Honour was satisfied that this provided an explanation as to why he became so upset and lost his temper when the victim made what might otherwise have been a reasonably innocuous comment that if his girlfriend was cheating on him "it must mean she did not love him".
2. His Honour went on to assess the objective seriousness of the offence contrary to s 99(2) of the Crimes Act as falling "a little below the mid-point between the middle of the range and the lower end of the range of seriousness for offences of this type". His Honour assessed the seriousness of the offence contrary to s 35(2) of the Crimes Act as falling "into the middle of the range of objective seriousness for offence of this type". His Honour had regard to the fact that the victim's face and upper body were badly burned and there had been no element of provocation. Finally, his Honour assessed the seriousness of the offence of aggravated kidnapping contrary to s 86(2)(b) of the Crimes Act as of "significant gravity" falling into the middle of the range of seriousness for offences of this type. No issue was taken with any of these findings in this Court.
3. His Honour then turned to consider the applicant's subjective case. The offender was 23 years old at the time of the offence and 25 years old at the date of sentence. He is of Anglo and Afro-Caribbean descent. He has an extensive criminal history in the Children's Court involving a number of control orders in addition to the offences he has committed as an adult.
4. His Honour noted that the applicant experienced physical, psychological and sexual abuse as a child. His parents separated when he was about two years old. When he was 10 years old his mother met his stepfather who was violent towards him and his mother. He has maintained a positive relationship with his father and stepbrothers and sisters as well as, more recently, his mother but he has a poor relationship with his stepfather.
5. At the age of 11 years old the applicant commenced using cannabis and would smoke daily when he was not in custody. When he was 13 years old he commenced using heroin and from the age of 14 years old he commenced using crystal methamphetamine. He has also used MDMA. When not in juvenile detention he resided at various places but would invariably abscond. When he was 14 years old he was sexually assaulted by a stranger which increased his substance abuse. He completed Year 10 while in custody with Juvenile Justice.
6. Medical records show that prior to 2012 he was admitted to hospital after pouring kerosene over his body and threatening self-immolation. Although the hospital records suggested a drug induced psychotic episode, the applicant denied this. There is evidence of other suicide attempts and disturbing paranoid thoughts when under the influence of methamphetamines.
7. His Honour was satisfied that the applicant suffers from the effects of profound childhood deprivation and observed: "He suffered significant hardship and both physical and psychological harm in his developmental years, witnessing violence against his mother and being sexually assaulted by a stranger at age fourteen. I am satisfied that his moral culpability for the present offences is reduced by reasons of these factors. In Bugmy v R [2013] HCA 37, the High Court said the effects of profound deprivation do not diminish over time and with repeated offending and should be given full weight in determining the sentence in every case. A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience. That has been the case here."
8. His Honour accepted that there was a risk of the applicant becoming "institutionalised" given that he had spent nearly half his life inside a correctional setting of some sort. It was noted that the applicant had not demonstrated any remorse or contrition for the present offences. His prospects of rehabilitation were assessed as "guarded".
9. As for the commencement date of the sentence, his Honour observed the following: "Section 56 of the Crimes (Sentencing Procedure) Act provides that sentences for offences involving assault or any other offence against a person, committed by an offender while a convicted inmate at a correctional centre, are to be served consecutively with the sentence or sentences being or to be served unless the sentencing judge gives a direction that it is to be served concurrently or partly concurrently with that other sentence. The Crown submitted the sentence for the present offences should commence from 23 November 2017. This is the concluding date of the 6 year aggregate sentence that was imposed for the robbery and armed robbery offences in the Sydney District Court. I agree with the Crown submissions for these reasons. Quite independently of the present offence of pouring boiling water over the victim on 27 November 2016 the offender had for reasons unknown to me not been granted bail at that time. The Courts have noted the importance of maintaining discipline within the prison system and protecting other inmates from criminal assaults by fellow inmates which is reflected in the general requirement contained in s 56 for such offences to be the subject of cumulative sentences: see R v Windle [2012] NSWCCA 222. Considering the serious nature of what I have found to be the unprovoked act of pouring boiling water over the head of the victim there should be some significant additional term added on from the date of 27 November 2016." (emphasis added)
10. His Honour stated that he would take into account that the applicant was placed in segregation following the commission of these offences. His Honour went on to explain the basis for his finding of special circumstances as follows: "I find special circumstances in the need upon his release from custody for a high level of supervision for his transition into the community due to the risk of his being institutionalised, his anger and frustration at the world and his life circumstances, for assistance with employment, accommodation, family relationships, substance use problems, mental health, antisocial attitudes and the accumulation of sentences." (emphasis added)
11. His Honour then went on to impose the aggregate sentence extracted above at [6].

Applicant's submissions

1. Counsel for the applicant submitted that the sentencing judge erred in fixing the commencement date of the current sentence at the end of the parole period for the armed robberies rather than 16 January 2017, being the date on which the applicant was charged with the current offences.
2. It was submitted that the sentencing judge erred in failing to take into account the applicant's young age, his disadvantaged background, his likely institutionalisation, the fact that the applicant had been placed in segregation for a year after the index offences, and the total sentence that the applicant would serve.

Crown submissions

1. The Crown submitted that the above factors were properly taken into account in determining the aggregate sentence and the length of time spent on parole. The sentencing judge expressly had regard to the applicant's disadvantaged background in reducing his moral culpability and noted the risk of institutionalisation. The time spent in segregation was also taken into account on the applicant's subjective case.
2. The Crown submitted that the seriousness of the offences committed in custody, the applicant's lack of remorse, high risk of re-offending and the need for specific and general deterrence would have outweighed the factors referred to by the applicant in determining the commencement date of the sentence.

Consideration: Ground 1

1. This ground contends for error in the commencement date of the sentence imposed on the applicant. As Hoeben CJ at CL observed in Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581 at [60]: "The commencement date for a sentence has always been a matter of discretion for the sentencing judge. If appropriate reasons have been given, it is necessary for a party challenging that decision to identify a House v R [1936] HCA 40; 55 CLR 499 error if the challenge is to be successful."
2. Gleeson CJ, Gummow and Callinan JJ restated the nature of such error in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] when their Honours observed: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."
3. The error under this ground is said to flow from the exercise of the general discretion in s 47(2) of the Sentencing Act which provides that: (2) A court may direct that a sentence of imprisonment - (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.
4. Section 47(3) provides that: (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.
5. Basten JA (with whom Price and Campbell JJ agreed) considered the operation of s 47(3) in circumstances similar to the present case in R v Windle [2012] NSWCCA 222, a decision cited by Arnott SC DCJ in his sentencing reasons. This Court confirmed the approach of the sentencing judge in that matter to commence the sentence at the expiration of the parole period being served. At [14], Basten JA observed that both ss 24 and 47(3) of the Sentencing Act impose an obligation on the Court to take into account any period for which the offender has been held in custody "in relation to the offence" for which sentence is being imposed. After noting the difficulties arising from the words "in relation to" in that statutory context, his Honour observed the following at [15]: "It may seem curious that the scope of a mandatory obligation should be unclear and unresolved. There are, however, two factors which explain why that is so. The first is a legal consideration, namely that, although such custody must be taken into account, the Sentencing Procedure Act does not specify how it should be taken into account. Case law demonstrates that there is no fixed rule as to how it is to be taken into account: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 (Simpson J, James and Hall JJ agreeing). The second factor which partly explains the established practice, is that circumstances may differ and the Court may not have precise information as to the circumstances in a particular case. For example, if a person were held in custody following arrest, it might be necessary to consider whether the arrest was solely in respect of the offence for which the person was being sentenced, or whether there were other offences involved. Similarly, where parole has been revoked, the court may not know whether it was revoked solely because of the further offence, or for that and other reasons, or for entirely separate reasons."
6. Another relevant statutory provision regarding the commencement date of the sentence raised in the proceedings on sentence in this matter was s 56 of the Sentencing Act. That section makes special provision for the commencement date of sentences imposed for assaults committed by convicted inmates whilst in custody. Relevantly, pursuant to s 56(1), the provision applies to: (a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or …. (emphasis added)
7. Section 56(2) of the Sentencing Act provides that: (2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender - (a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence. (emphasis added)
8. The term "sentence of imprisonment" is defined in s 56(5) of the Sentencing Act as follows: (5) In this section, a reference to a sentence of imprisonment is taken to be a reference to - (a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.
9. The Crown could not invoke s 56(2)(a) in this matter as the applicant was not serving the non-parole period at the time of the commission of the offences. Rather, s 56(2)(b) was relied upon. This would have permitted the sentencing judge to have accumulated the s 35(2) offence on the sentences he imposed on the other two offences. His Honour ultimately imposed an aggregate sentence for all three counts instead.
10. In the applicant's written submissions, the House v The King error (House v The King (1936) 55 CLR 499; [1936] HCA 40) contended for under this ground was a failure by the sentencing judge to have regard to five specified factors when determining the commencement date of the sentence. These factors were: 1. The applicant's young age; 2. His disadvantaged background; 3. His likely institutionalisation; 4. The period in segregation following the index offences; and 5. The length of the total sentence.
11. The difficulty for the applicant is that, as is evident in the extracts from his Honour's remarks on sentence extracted above, his Honour expressly had regard to these factors in the sentence imposed. His Honour clearly noted the applicant's age in his reasons, applied the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, expressed concern as to the risk of institutionalisation, noted that he had had regard to the period in segregation and significantly varied the statutory ratio given the fact of accumulation.
12. In oral submissions, counsel for the applicant submitted that the specific error under this ground is in the approach taken by his Honour in the last paragraph of the passage extracted above at [27]. It was contended that after the reference to the case of Windle in that paragraph, his Honour erred in using his assessment of the objective seriousness to fix the commencement date. I do not accept that this is what his Honour did. Rather, in that passage, his Honour stated the uncontroversial principle that it is important to maintain discipline in the custodial environment thus general deterrence is important. It was in that context that his Honour went on to find that the applicant's unprovoked act of violence warranted a significant additional term being added to what he was already serving. It was conceded on behalf of the applicant in oral submissions that if that was indeed what is Honour found in that paragraph of his Honour's remarks then no error would be disclosed.
13. It cannot be doubted that there is a particular need for general deterrence in sentencing for violent offences committed in the custodial environment. In R v Jeremiah [2016] NSWCCA 241 this Court (Meagher JA, Davies and Fagan JJ) considered a Crown appeal against a sentence for such conduct which had been imposed to be served concurrently with the sentence then being served. In that context the Court observed the following: "[5] The effect of his Honour's orders is that the whole of the non-parole period for the [assault committed in gaol] is concurrent with the non-parole periods for the [offences for which he was in custody] … [6] As a result of the adoption of these commencement dates, the very serious assault [committed in gaol] has for all practical purposes gone unpunished. The principle of totality requires the Court to consider whether an aggregation of sentences to be imposed is a 'just and appropriate measure of the total criminality involved' … The imposition of an entirely concurrent term by the learned sentencing judge produced an outcome which is unjust and inappropriate. It fails to recognise or to reflect that the circumstances in which this assault against a fellow inmate took place were different from and unconnected with the circumstances of the prior offences. … [9] … A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence of any degree (and, if so, what degree) will be consistent with the imposition of a sufficient penalty overall. Namely, the sentence must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts …" (citations omitted, emphasis added).
14. Judge Arnott reflected these broad principles in his decision as to the commencement date of the aggregate sentence he imposed. No error is disclosed in that approach.
15. The applicant's central complaint does not disclose House v The King error. Rather, the nub of it is that his Honour should have exercised his discretion differently. It was no doubt open to the sentencing judge to have commenced the sentence on 16 January 2017, but this is a Court of error. No error is disclosed in the fact that his Honour did not do so.

Applicant's submissions

1. The applicant submitted that the sentencing judge failed to take into account the finding of special circumstances and the need for the applicant to reintegrate into society following a lengthy period in custody commencing at the age of 18. It was accepted that following the sentencing judge's finding of special circumstances his Honour adjusted the statutory ratio to 57%. Despite this, it was contended that his Honour failed to consider the effect of accumulation. This submission was based on the fact that the total effective sentence, including the sentences for the armed robberies, was 13 years imprisonment with a non-parole period of 3 years, amounting to a total effective ratio of 76.9%.
2. It was contended that, whether by inadvertence or otherwise, the finding of special circumstances was not reflected in a practical way in the applicant's total sentence, having regard to the aggregate sentence, the commencement date, and issues of totality.

Crown submissions

1. The Crown submitted that the total effective ratio of 76.9% was not the result of inadvertence or miscalculation given the considerable variation of the statutory ratio to 57% for the aggregate sentence as well as reference to "the accumulation of sentences" in his Honour's reasons for finding special circumstances.

Consideration: Ground 2

1. This ground alleges error in the manner in which the sentencing judge approached the question of "special circumstances" in s 44(2) of the Sentencing Act. The principles to be derived from the decisions of this Court addressing s 44(2) are well settled. They have been summarised in numerous decisions including Caristo v R [2011] NSWCCA 7 at [27]-[31] and Calhoun (a pseudonym) v R [2018] NSWCCA 150 ("Calhoun").
2. As was observed by Spigelman CJ, with whom Mason P, Grove and Sully JJ and Newman AJ agreed, in Regina v Simpson [2001] 53 NSWLR 704; [2001] NSWCCA 534 at [63], the ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality of the offence: Power v The Queen (1973) 131 CLR 623; [1974] HCA 26. Similarly, in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) observed at [57], "[f]ull-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody".
3. A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Calhoun at [30]; Bentley v R; Davies v R; Thomas v R; Tilley v R [2021] NSWCCA 18 at [35]. The applicant must establish House v The King error (see above at [35]). As the language of s 44(2) makes clear, the degree or extent of any adjustment of the statutory ratio is a matter for the discretion of the sentencing judge: Calhoun at [30].
4. Relevantly, although "special circumstances" are not defined in the Act, it has been held that the accumulation of a sentence upon a pre-existing sentence may constitute special circumstances allowing a sentencing judge to reduce the non-parole period to less than 75% of the sentence being imposed: Simpson v R (1992) 61 A Crim R 58 at 60-61 per Hunt CJ at CL, Grove and Sharpe JJ agreeing.
5. The nub of the complaint under this ground is that even though his Honour varied the statutory ratio down to 57% for the aggregate sentence he imposed, the total ratio when combined with the term he was already serving was 76.9% which, it is contended, does not reflect his Honour's finding of special circumstances.
6. In support of the contention that his Honour must have intended a result in which the total ratio between the time to be served and the head sentence for both the aggregate sentence and his existing sentence was less than 75%, the applicant relied upon the decision of Thorpe v R [2010] NSWCCA 261 in which Simpson J (as her Honour then was) observed this at [4]: "… Where the basis for a finding of special circumstances is to foster rehabilitation, it is the overall term, not the terms of individual sentences, that must be adjusted. If that is not the result, the finding of special circumstances is ineffective to achieve its objective. The applicant is entitled to the benefit of that finding in a practical, not merely theoretical, way."
7. This passage by her Honour was considered by Fullerton J (with whom Bathurst CJ agreed) in Gray v R [2013] NSWCCA 169. In doing so her Honour observed that Simpson J's comments need to be considered in the context of the circumstances of that case. Fullerton J then observed at [41]: "… I do not interpret her Honour to have intended to express that in every case where individual sentences have been accumulated and special circumstances have been found on the basis of the need to provide for an offender's rehabilitation, a variation in the ratio in the overall term will inevitably result. As I see it, the question in any particular case is whether a finding of special circumstances has been effectively translated into the sentencing outcome in a 'practical, not merely theoretical, way' by providing for a parole period that allows for an adequate period under supervision in the community which remains proportionate to the non-parole period as the mandatory period an offender is to serve in custody without inappropriate emphasis on that mandatory period."
8. I agree with Fullerton J. I do not understand Simpson J to have suggested in Thorpe v R that in every case where special circumstances have been found on individual sentences to provide for an offender's rehabilitation the variation in the overall ratio should be less than 75%.
9. The proper approach in appeals where it is contended that a sentencing judge has erred in the manner in which a finding of special circumstance has been applied was explained by Gleeson JA (with whom Johnson and Hall JJ agreed) in MD v R [2015] NSWCCA 37 at [42]-[43]: "Generally speaking where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Examples can be found in the cases collected by McClellan CJ at CL in Fina'i v R [2006] NSWCCA 134 at [31]-[40]. The starting point with appeals asserting such error is to ascertain 'what can be gleaned of the judge's intention from the sentencing remarks': Maglis v R [2010] NSWCCA 247 at [24] (Howie AJ)."
10. In Elwood v R [2019] NSWCCA 315 at [61] Fullerton J observed: "…. a sentencing judge who makes a significant finding of special circumstances not based solely on the fact of accumulation, should either carry that finding into effect on accumulation or give an explanation for why that was not done (see the cases cited by Hamill J at [84] in [Sabongi [2015] NSWCCA 25])."
11. Thus, the approach for this Court when such a ground of appeal is relied upon is to examine the findings of the sentencing judge in order to ascertain whether the result is what he or she intended. As R A Hulme J observed in CM v R [2013] NSWCCA 341 at [40]: "Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing Judge specifically intended, or it may be the result of inadvertence or miscalculation."
12. It seems to me that there are two categories of complaint arising from the exercise of the discretion in s 44(2) of the Sentencing Act when sentencing an offender who is already serving a sentence. The first category of complaint is that although the statutory ratios for individual sentence has been varied, when the sentences are accumulated (or an aggregate sentence imposed), the overall ratio remains at 75%. The second category is where the overall ratio exceeds 75% and it is unclear as to whether that was the sentencing judge's intention.
13. There is no statutory requirement to provide reasons for imposing a sentence in which the non-parole period is greater than the statutory ratio. Despite this, as Hoeben CJ at CL observed in Maglovski v R [2014] NSWCCA 238 at [28], the need for the judge to explain why a ratio in excess of 75% was selected usually applies to cases "where it could be inferred that an oversight might have occurred": see also Barrett v R [2011] NSWCCA 213 at [29]; R v Wakefield [2010] NSWCCA 12 at [26] and Brennan v R [2018] NSWCCA 22 at [38].
14. I have had regard to cases where this Court has been satisfied that the fact of accumulation appears to have been overlooked by the sentencing judge. In GP v R [2017] NSWCCA 200 at [23] the partial accumulation by a sentencing judge of the sentence that was imposed on a pre-existing sentence increased the total combined non-parole period to 81.5%. In upholding the appeal, Hamill J (with whom Macfarlan JA and Button J agreed) was unable to infer that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period.
15. In CM v R [2020] NSWCCA 136 this Court (Payne JA, Beech-Jones and I) upheld a ground of appeal contending that the sentencing judge erred in failing to consider the totality of the effective sentence given the sentence accumulation upon the prior sentence. The total ratio in that matter was 87.5% in circumstances where there was no reference made to this result in the sentencing reasons.
16. In Qoro v R [2020] NSWCCA 276 Rothman J (with whom Simpson AJA and Bellew J agreed) observed at [53] that "[w]here, as here, the sentencing judge makes no mention of the effect of the accumulation, the Court can only assume that the effect is unintended." His Honour then set out at [54] the principles in Elwood v R about the importance of stating that intention.
17. On the other hand, in Tuivaga v R [2015] NSWCCA 145 such a ground was dismissed. The statutory ratio for the index offence was varied but when it was accumulated onto the existing sentence the ratio increased to 75%. Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) found that the sentencing judge was clearly aware that he was accumulating a sentence on a previous sentence. In fact, the sentencing judge had specifically stated that the non-parole period was the "minimum period" that the applicant should spend in custody to appropriately reflect the criminality of the manslaughter offences: at [37]-[40].
18. In Calhoun it was contended that the sentencing judge erred in failing to find special circumstances on the basis of the effect of accumulating the sentence to be imposed upon a pre-existing sentence. The overall ratio in that matter was 77.9%. The appeal was dismissed on the basis that the court (Price J with whom Bathurst CJ and Basten JA agreed) was not persuaded that the judge had overlooked the impact of the accumulation on the existing sentence and failed to take it into account in the consideration of special circumstances.
19. Similarly, in Islam v R [2020] NSWCCA 236, Wilson J (with whom Ward CJ in Eq and Ierace J agreed) observed at [59]-[60] that: "His Honour was also well aware of the circumstances of the applicant's earlier crimes, and of the details of the sentence imposed by Armitage A/DCJ. The Crown had tendered all of the material relating to the first set of offences, and the criminal and custodial histories clearly recorded the length of the sentence and the relevant dates. It is very unlikely that, with the benefit of that information, and after having heard from the parties and referred himself in his remarks to the question of totality, his Honour could overlook that aspect of the matter."
20. A recent example of where the court was satisfied that there was a simple arithmetic error is Bentley v R; Davies v R; Thomas v R; Tilley v R. In that matter the sentencing judge expressly made a finding of special circumstances and yet the ultimate ratio was 73.3%. The Court was satisfied that an arithmetic error was the explanation and allowed the appeal on that ground. In that context Bathurst CJ (with whom Price J and I agreed) observed the following at [147]: "… in a number of cases where the effect of the cumulation has led to an increase in the non-parole period beyond the statutory ratio or beyond what otherwise appeared to be the express intention of the sentencing judge, and the judge has made no reference to this consequence, it has been concluded that the sentencing discretion miscarried: see Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167 at [90]; Dawson at [45]-[48] (where the error was conceded); Elwood at [61]-[63]."
21. A survey of these decisions reveals that a ground of appeal such as ground 2 will be unsuccessful if this Court is satisfied that the result is what the sentencing judge actually intended.
22. Turning to the reasons of Arnott SC DCJ, the difficulty with the applicant's argument is that his Honour expressly stated that one of the bases upon which he made the finding of special circumstances was "the accumulation of sentences" (see above at [28]). In those circumstances it could not be found that his Honour failed to have regard to the effect of the accumulation of the aggregate sentence onto the existing sentence. Having regard to the principles derived from the decisions I have referred to above, I am satisfied that the closeness of the total ratio to 75% reflects the sentencing judge's intention and no inadvertence or arithmetic error is disclosed.
23. Finally, I note that implicit in the applicant's argument under this ground is that the non-parole period should have been reduced even lower than it was. Had his Honour not found special circumstances, the non-parole period for the sentence of 7 years would have been 5 years and 3 months reflecting a ratio of 75% between the non-parole period and head sentence. Instead, his Honour varied the ratio to 57%, reducing the aggregate non-parole period down to 4 years. The extent to which his Honour could have reduced that aggregate non-parole period even further was restricted by the principle that the non-parole period must appropriately reflect the criminality of the offences.
24. These offences were very serious and have left the victim with permanent scarring. The applicant showed no remorse and could not be afforded any discount for a plea of guilty. It is to be accepted that the applicant had a childhood of deprivation and is at risk of being institutionalised and his Honour expressly had regard to those factors, but if he is released on parole when he becomes eligible to be he will still have three years of supervision on parole. Had the sentencing judge commenced the sentence any earlier (such as from 16 January 2017 as was contended under ground 1) that period of supervision would have been reduced. This is a further factor that leads me to conclude that the aggregate sentence imposed reflected the sentencing judge's intention in this matter.
25. The orders I would propose are: 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 07 May 2021