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[2013] NSWCCA 157
Court of Criminal Appeal (NSW)
2013-06-17
Hoeben CJ, McCallum J, Hulme J, Ms J, Blanch J
Original judgment source is linked above.
Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J and the orders he proposes. 2McCALLUM J: I agree with R A Hulme J. 3R A HULME J: Darren John Taylor applies for leave to appeal in respect of sentences imposed upon him in the District Court at Newcastle. He was sentenced for a multitude of offences by the late Judge Coolahan on 16 June 2011. There were errors in the manner in which his Honour approached the sentencing task and these were corrected pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the Chief Judge of the District Court, Blanch J, on 23 January 2012. 4The applicant's primary contention is that the initial sentencing exercise was infected by "jurisdictional error" and so there was no power to correct the errors pursuant to s 43. Other errors were also asserted in respect of both sentencing exercises which I will mention in due course. 5The sentencing task was complex. The applicant was sentenced in respect of 7 offences set out on 3 indictments. There was a further offence set out in a court attendance notice for which he had been committed for sentence. There were also 23 further offences listed on 6 Form 1 documents to be taken into account. The nature of the offences was diverse and they were against both Commonwealth and New South Wales law.
Errors in the initial sentencing exercise 6The problem with the sentences imposed by Coolahan DCJ was that his Honour imposed an aggregate sentence for all of the State offences in the mistaken belief that s 53A of the Crimes (Sentencing Procedure) Act applied. This is the provision that allows for aggregate sentencing and it came into operation three months earlier on 14 March 2011. His Honour took the precaution of checking with the representatives of the applicant and the Crown shortly before he delivered his remarks on sentence but, regrettably, they both assured him that s 53A applied. However it did not, because the applicant's pleas had been entered prior to the provision coming into effect: Pt 21 of Sch 2 of the Crimes (Sentencing Procedure) Act. 7The other problem was that his Honour sought to accumulate the aggregate sentence upon the minimum custodial component of the individual sentences he imposed for the Commonwealth offences. But he expressed the commencement date of the aggregate sentence to be 21 May 2010 when it should have been 11 May 2010. This was contrary to s 47(4) of the Crimes (Sentencing Procedure) Act, pursuant to which his Honour's power only extended to specifying the commencement date no later than the earliest day on which the applicant would become entitled to be released from custody in respect of another sentence. 8Both errors involved Coolahan DCJ doing things that he was not authorised by the applicable legislation to do. But counsel for the applicant contends that the imposition of the aggregate sentence constitutes "jurisdictional error" while accepting that the other error does not. Why such a distinction should be made was not explained. 9In correcting these errors pursuant to s 43, Blanch J brought back the commencement of the State offences to 11 May 2010 and imposed individual sentences for each offence, guided by what Coolahan DCJ had said were the sentences he would have imposed if he had not imposed an aggregate sentence.
The offences and the sentences 10The total effective sentence imposed by Coolahan DCJ was 12 years 10 days with a minimum custodial component of 8 years 6 months 10 days. 11The total effective sentence imposed by Blanch J was 12 years with a minimum custodial component of 8 years 6 months. 12It is apparent that all that Blanch J did was to re-impose the same total effective sentence, less the erroneous 10 days that resulted from the miscalculation by Coolahan DCJ of the commencement of sentences for the State offences.
Possession of endangered species 13On two separate dates in September 2008 and January 2009 the applicant was found to be in possession of a North American corn snake and two chameleons. These creatures were the subject of the Convention on International Trade in Endangered Species ("CITES") and the applicant's possession of them was contrary to s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The maximum penalty for such an offence is imprisonment for 5 years and/or a fine of 1,000 penalty units. 14Concurrent sentences of 10 months were imposed with a recognizance release order after 6 months. The sentences were specified by Coolahan DCJ to commence on 11 November 2009. These sentences and the commencement date were not disturbed in the s 43 exercise carried out by Blanch J.
Dishonesty offences 15In February and March 2008 the applicant received, and later disposed of, a stolen Harley Davidson motor cycle, contrary to s 188(1) of the Crimes Act 1900 (NSW). The maximum penalty for these offences is imprisonment for 12 years. 16Coolahan DCJ said that for these offences he would have imposed sentences of 3 years 9 months and 2 years 8 months respectively. Blanch J imposed sentences of 3 years and 2 years 9 months, specifying that they each commence on 11 May 2010. He set a non-parole period of 2 years for the first of these sentences and no non-parole period for the second. Why his Honour varied the terms of the indicative sentences announced by Coolahan DCJ is not apparent. However, given the accumulation of sentences, this made no practical difference to the end result. 17Taken into account on two Form 1 documents in sentencing for these offences were offences of disposing of another stolen motor cycle, receiving a stolen helmet, dealing with $12,770 which was the proceeds of crime, possession of two different prohibited drugs, and possession of a prescribed restricted substance. The sentences for the two offences were different on account of the relative seriousness of the Form 1 offences that were taken into account in each case.
Domestic violence offences 18The applicant recklessly inflicted grievous bodily harm upon his partner in February 2008. This is an offence against s 35(2) of the Crimes Act. The maximum penalty is imprisonment for 10 years and there is a standard non-parole period of 4 years. 19The applicant and his partner had been in a relationship for about 16 years and had 5 children. On the occasion in question he assaulted her in the presence of two of the children. This involved him pushing her to the ground and stomping on her wrist which caused a very serious fracture. Taken into account in sentencing for this offence were five offences of assault occasioning actual bodily harm and three offences of assault, all concerning the same victim and constituted by violent conduct towards her on eight separate occasions between August 2006 and September 2009. 20Coolahan DCJ would have imposed a sentence for this offence of 3 years imprisonment. Blanch J imposed a sentence of the same length, specifying that it commence on 11 May 2012. He set a non-parole period of 2 years.
Firearms, prohibited weapons and proceeds of crime offences 21Another indictment charged the applicant with offences of possessing firearms and prohibited weapons as well as dealing with the proceeds of crime. 22One count concerned the applicant's unauthorised possession of more than three unregistered firearms, any one of which was a prohibited firearm or pistol, contrary to s 51D(2) of the Firearms Act 1996 (NSW). The maximum penalty for such an offence is imprisonment for 20 years and there is prescribed a standard non-parole period of 10 years. 23The applicant was found to be in possession in January 2009 of more than three firearms; he was in fact in possession of 30. Thirteen of them were prohibited firearms and three were pistols. They were all found at his home, many of them in a hidden room. Most of them were operable but some of them were not. One was a .22 calibre rifle found leaning against a wall in the lounge room. It had a silencer affixed. Underneath the applicant's bed were a large pistol within a leather holster and a .22 calibre shortened rifle with a loaded magazine attached. A quantity of .22 calibre ammunition was also found within the bedroom. 24The offences on a Form 1 attaching to this count were possession of ammunition without a permit (about 700 rounds of various calibre found in the bedroom and the hidden room), not keeping a firearm safely (the loaded gun under the bed) and possession of a firearm barrel without a permit (a shotgun barrel with no serial number). 25Coolahan DCJ said that he would have imposed a sentence for this offence of 8 years. Blanch J imposed a sentence of 7 years 6 months, with a non-parole period of 4 years, dating from 10 May 2014. (The commencement date should have been 11 May 2014, but nothing turns on this.) 26The second count on this indictment was an offence of possessing prohibited weapons, an offence against s 7(1) of the Weapons Prohibition Act 1998 (NSW) for which the maximum penalty is imprisonment for 14 years. There is also prescribed a standard non-parole period of 3 years. 27The prohibited weapons comprised two crossbows, a number of imitation pistols, a Taser-like device, a set of knuckle dusters, a push dagger and a slingshot. These were found at the applicant's home on the same occasion as the firearms. Taken into account in sentencing for this offence was one of not keeping a prohibited weapon safely (a crossbow found in the hidden room, next to a cache of arrows). 28Coolahan DCJ would have imposed a sentence for this offence of 5 years. Blanch J imposed a sentence of 5 years with a non-parole period of 3 years but he specified that it would be concurrent with the firearms sentence. 29The third count was one of dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act. The maximum penalty for this offence is imprisonment for 15 years. 30The applicant was, on the same occasion at his home, found to be in possession of two stolen firearms and a variety of other stolen property (televisions, identity cards and documents, jewellery, watches and power tools). Taken into account in sentencing for this offence were five offences of possessing protected fauna (frogs, bearded dragons, water dragons and turtles). 31Coolahan DCJ would have imposed a sentence of 5 years. Blanch J imposed a sentence of 5 years, with a non-parole period of 3 years, concurrent with the other sentences on this indictment.
Subjective and other matters relevant to sentence 32The applicant was aged 40 at the time of sentence. He had a criminal history but not one of great significance except that he was on two 2-year good behaviour bonds at the time of all of the offences, an aggravating feature that Coolahan DCJ did not mention in his sentencing remarks. His Honour did take into account that the applicant was on bail for some of the offences at the time others were committed. 33There was evidence to the effect that the applicant had descended into a life of drug abuse when he started smoking "ice" in 2005. Financial difficulties followed. The applicant gave evidence in the sentence proceedings and it included a claim that he had since turned away from drugs. There was evidence that he had sought out drug rehabilitation programs; he was seeing a counsellor about drug and alcohol issues as well as domestic violence; he had the support of his family; and he had been, in effect, a model prisoner which included his mentoring of other inmates. 34His Honour was only prepared to find that "to some degree" the applicant was remorseful. He accepted that he had good prospects of rehabilitation. He said that he would allow a discount for the utilitarian value of the applicant's pleas of guilty of 25 per cent for the domestic violence offence and 10 per cent for all of the other offences (there was a difference in the timing of the pleas). 35It was conceded by Queen's Counsel on the applicant's behalf that the most serious of the offences were those involving his possession of firearms. The applicant claimed that he had developed an interest in such items from when he was raised in a country farming environment; he acquired a collection. His Honour was not satisfied beyond reasonable doubt that the applicant was dealing in firearms, and was not prepared to accept that they were linked to drug dealing or other unlawful activity. He did find, however, that there was no evidence of any "innocent" explanation for the applicant's possession of these items. 36Coolahan DCJ was unimpressed with the applicant's evidence. He found that he was evasive and had not yet accepted the seriousness of his offences or taken full responsibility for them. He said that he did not take this into account in favour of the prosecution; but it was relevant to the applicant's remorse, prospects of rehabilitation and likelihood of re-offending. 37Towards the end of his remarks on sentence his Honour explained how he would approach the question of concurrence and accumulation of sentences. This was theoretical, given that he imposed an aggregate sentence, but it served to explain how the individual sentences he indicated he would have imposed transformed into the total term and the non-parole component. It can be inferred that his Honour's reasons assisted Blanch J in the correction exercise pursuant to s 43. 38Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act for setting a non-parole period less than the usual proportion of the total term of the sentence were found, but only to a modest degree and for the reason that "this will be the offender's first time in custody".
Grounds of appeal 39Eighteen grounds of appeal were notified. Many overlap and some were abandoned. In the following paragraphs I have isolated the essential complaints that were raised.
"Jurisdictional error" 40As I indicated earlier, the primary contention by counsel who appeared on the application, and who did not appear in the court below, was that there was jurisdictional error in the imposition of an aggregate sentence because Coolahan DCJ had proceeded "in excess of jurisdiction". It was submitted that the only manner in which the error could be rectified was by way of appeal to this Court and the remedy was for the sentences to be quashed and the matter remitted to the District Court for re-sentencing. It was also submitted that s 43 "presumes the jurisdiction to sentence" and so had no application. 41Section 43 provides, relevantly, as follows: 43 Court may reopen proceedings to correct sentencing errors (1) This section applies to criminal proceedings (including proceedings on appeal) in which a court has: (a) imposed a penalty that is contrary to law, or (b) failed to impose a penalty that is required to be imposed by law, and so applies whether or not a person has been convicted of an offence in those proceedings. (2) The court may reopen the proceedings (either on its own initiative or on the application of a party to the proceedings) and, after giving the parties an opportunity to be heard: (a) may impose a penalty that is in accordance with the law, and (b) if necessary, may amend any relevant conviction or order. ... 42The applicant was represented by very experienced counsel when he appeared before Blanch J and there was no suggestion that his Honour did not have the power to correct the sentencing errors by Coolahan DCJ in the manner in which he did. 43The ambit of s 43 was recently considered by a five-judge bench in Achurch v R (No 2) [2013] NSWCCA 117. There is nothing to be served by any detailed review here of the various judgments. Suffice to say that the discussion of numerous authorities on s 43 is replete with examples of the section being accepted to apply in situations in which sentencing judges have imposed a sentence that was beyond their statutory power. This is precisely what s 43 and its predecessors were intended to do. See, for example, the various cases discussed in the joint judgment of Bathurst CJ and Garling J at [24]-[39]. Those cases, and the legislative history of s 43, led to the majority conclusion in Achurch that even the narrowest possible reading of "contrary to law" extended at least to the imposition of penalties which there was no power to lawfully impose (at [59]). 44There is no doubt that the aggregate sentence imposed by Coolahan DCJ was "contrary to law" and was amenable to the correction effected by Blanch J. Indeed, an important purpose of s 43 is to avoid the need to appeal or seek judicial review: Ho v Director of Public Prosecutions (1995) 82 A Crim R at 90. There is no merit in the grounds of appeal on this subject.
Failure to apply discounts for pleas of guilty to the sentences imposed 45It was contended in written submissions, and not developed further at the hearing of the application, that whilst Coolahan DCJ had announced that he would allow discounts to reflect the utilitarian value of the applicant's pleas of guilty, he failed reduce the sentences accordingly. There is no merit in this contention. 46Coolahan DCJ said: So far as the pleas are concerned, in all but the domestic violence offence I would allow a discount of 10 per cent. For that offence I would allow a discount of 25 per cent. (ROS 35) 47A short time later he announced the sentences he imposed for the Commonwealth offences and the sentences he "would have imposed" for the State offences if not for the fact that he was imposing an aggregate sentences. The individual sentences imposed by Blanch J largely correlated with what Coolahan DCJ indicated he "would have imposed". There is nothing from which a conclusion could be drawn that the discounts were not applied.
The sentences for the firearms offences and the domestic violence offence are manifestly excessive and the non-parole period for the State offences is manifestly excessive 48It was asserted in written submissions, and not developed further at the hearing of the application, that there were a number of features that should lead to a conclusion that the sentences for the firearms offences (presumably including the prohibited weapons offence) were manifestly excessive. These were that a number of the firearms were inoperable; that "they were (essentially) secured"; the types of firearms/weapons; the finding that the applicant's possession of these items was not linked to drugs or other unlawful activity and that he was not involved in dealing in them; and the finding that the firearms offences were "around the mid range of seriousness". 49These were all matters that Coolahan DCJ considered. But also for consideration were the sheer number of firearms and weapons; their nature; the fact that some were not secured; and that they included a rifle with a silencer affixed found in the lounge room and a shortened, loaded rifle found under the applicant's bed. There were also the Form 1 offences that the applicant asked be taken into account. 50It was also contended that the sentence for the domestic violence offence was manifestly excessive but no attempt was made to justify the contention. It seems to me that the sentence was relatively modest, particularly given the number and nature of the assaults that the applicant asked to be taken into account, the majority of which involved the infliction of actual bodily harm. 51In relation to the effective non-parole period of 8 years for the State offences, it was contended that it was manifestly excessive on account of the applicant's good prospects of rehabilitation, prior criminal record, the finding that he was currently "drug free" and the finding that he was "to a degree remorseful". These were all matters taken into account by Coolahan DCJ. But he was also required to set a non-parole period that reflected other matters relevant to the sentencing task. I observed in Caristo v R [2011] NSWCCA 7, with the concurrence of Macfarlan JA and Adams J, at [27]: The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34]. 52The offences for which the applicant was sentenced reflected a staggering range of criminal activity, some of it of considerable seriousness. I am not persuaded that there is any merit in the contention of manifest excess in any of the sentences or non-parole periods, either as initially imposed or as corrected.
Failure to take into account pre-sentence custody 53A complaint raised in the context of the manifest excess grounds is that there was an error in not taking into account pre-sentence custody. The point is unclear in the written submissions and nothing further was said about it at the hearing. It has been left for the Court to deduce whether any error occurred. 54The Particulars of Trial document filed by the Crown indicates that the applicant was in custody from 29 September 2009 until he was released on bail on 27 January 2010. He returned to custody on 18 February 2010 and remained there until sentenced. Accordingly, he was at large for a period of 21 days in the period since 29 September 2009. His sentences should have been specified to commence on 20 October 2009, not 11 November 2009. This calculation closely accords with the agreed position put to Coolahan DCJ at the sentence hearing when counsel for the Crown and the applicant indicated that the sentences should be backdated to 21 October 2009 (19.5.11 at T 42). 55In his sentencing remarks, Coolahan DCJ at first said: [I]t has been agreed that if the sentence or sentences are to take into account all such pre-sentence custody, they should commence on 21 November 2009. (ROS 4) 56But later when announcing the sentences, for a reason not apparent, his Honour specified that the earliest sentence would date from 11 November 2009. Blanch J was not asked to correct the error and so, as would be expected, adopted the same date.
Conclusion 57In my view this application for leave to appeal is entirely unmeritorious. If it were not for the technical error in the commencement dates for the sentences I would have proposed that leave to appeal be refused. However, because of that error it is necessary that leave be granted so as to enable the Court to make the necessary correction.
Orders 58I propose the following orders:
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Taylor
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