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AND: THE QUEEN

Respondent

Judges: Murrell CJ, Refshauge and Penfold JJ

Date: 11 April 2014

Place: Canberra

REASONS FOR JUDGMENT

MURRELL CJ:

The appeal

1. The appellant appeals against a sentence imposed on 16 July 2013 for the offence that on 24 August 2012 he aided and abetted Leigh Coulter (the co-offender) in the armed robbery of a console operator working at the Caltex Service Station in Kaleen.

2. The offence contravenes s 310 of the Criminal Code 2002 (ACT). The maximum penalty is 25 years imprisonment, or a fine of up to $275,000 or both.

3. Following an early plea of guilty in the Magistrates Court, the appellant was committed to this Court for sentence.

4. The sentencing judge sentenced the appellant to imprisonment for two years and four months, to commence on 16 July 2013. A non-parole period of one year and eight months was set, backdated to 27 June 2013, when the appellant had commenced serving a sentence imposed in the Magistrates Court. As a consequence, the appellant was to serve a total period of two years, four months and nineteen days and was eligible for release on parole after serving one year and ten months, or just under 70% of the total period. Grounds of appeal

5. The Notice of Appeal filed on 25 July 2013 contains four grounds. The appellant abandoned grounds (ii) and (iii) (which related to parity with the co-offender). The remaining grounds of appeal are: (i) The sentence is manifestly excessive because the non-parole period comprises 70% of the head sentence and is disproportionately long, having regard to the sentencing purposes of a non-parole period. (ii) The sentencing judge failed to give sufficient weight to the appellant’s prospects of rehabilitation. Circumstances of the offence

6. At 11pm on 24 August 2012 the victim was working at the Caltex Service Station in Kaleen. The automatic locking mechanisms to the office/console area had been activated; the sliding doors automatically locked when shut and could be opened only when manually activated by the console operator. The appellant came to the door of the Service Station and the victim activated the door opener and let him in. The appellant purchased an item and then walked back to the sliding doors and stood in the doorway. Because he was standing in the doorway, the doors remained open. The co-offender then ran into the service station armed with a cross bar tyre iron. He jumped over the counter, raised the tyre iron towards the victim and demanded that the victim open the cash register. The victim did so. The co-offender removed about $300 from the cash register. Without provocation, the co-offender struck the victim on the back of the head with the iron and then hit the victim’s face several times before running away. Meanwhile, the appellant remained in the doorway preventing the doors from shutting and locking. A passerby confronted the co-offender as he was running from the Service Station. The passerby attempted to apprehend the co-offender, who dropped most of the money and fled. The appellant walked off. The victim was treated for injuries at Calvary Hospital.

7. The appellant was identified from CCTV footage. He made admissions to police. He was released on bail and spent no time in custody in relation to this matter until he was sentenced on 16 July 2013. The sentencing hearing

8. The appellant was 28 years old when the offence was committed.

9. The appellant had a minor criminal history. In January 2009 he was convicted of possessing a knife without reasonable excuse and failing to appear, and was fined for each offence. On 27 June 2013 he was sentenced for failing to appear and for driving offences to two months imprisonment commencing on 27 June 2013, to be suspended after one month. When he was sentenced in this Court, he was serving that sentence.

10. The appellant was raised in a difficult home environment, where he was the victim of physical and verbal abuse at the hands of his stepfather. His mother suffered from mental health problems.

11. The appellant has a long history of polysubstance abuse. He commenced cannabis use at age 12 and heroin use at age 18. As a result of drug abuse, when the appellant was in his early 20s he lost his employment. Thereafter, his drug use increased. The appellant asserted that he had been abstinent since April 2013 when he was granted bail. However, urinanalysis in June 2013 disclosed the presence of cannabis and morphine. Further, he informed the author of a CADAS Report that he had consumed opiates as recently as 27 June 2013, the day that he went into custody. Apart from a brief period in 2011 when he was on a methadone program, the appellant had undertaken no other drug rehabilitation program. The appellant believed that he could control illicit drug use without the support of others, limiting heroin use to occasional use only.

12. At the time that he was sentenced, the appellant was suffering from a major depressive disorder and borderline personality disorder. The condition of depression had been diagnosed only recently, but the appellant had probably suffered from depression for a long time.

13. The author of the Pre Sentence Report assessed the offender as having a medium to high risk of re-offending. The psychologist who reported on behalf of the offender assessed him as having a low to moderate risk of re-offending.

14. On 6 March 2013, the co-offender was sentenced by Refshauge J for the aggravated robbery of the Caltex Service Station and other matters. He had a significant prior criminal history. He had taken important steps towards managing substance abuse and had made a commitment to rehabilitation. For the aggravated robbery offence, he received a sentence of three years and six months’ imprisonment. The total sentence that was imposed was five years and nine months’ imprisonment with a non-parole period of two years and ten months. The grounds of appeal

15. Grounds (i) and (iii) are related and it is convenient to deal with them together. In relation to ground (i), the appellant contends that the non-parole period is manifestly excessive, having due regard to the sentencing purposes of a non-parole period. In relation to ground (iii), the appellant argues that the length of the non-parole period demonstrates that the sentencing judge must have failed to give sufficient weight to the appellant’s prospects of rehabilitation. The appellant contends that, given his subjective circumstances, particularly the facts that he had not been incarcerated previously and had a relatively insignificant criminal history, the non-parole period was disproportionate to the total period of imprisonment and demonstrates a failure to give due weight to the sentencing purpose of rehabilitation. It is submitted that: ... in the circumstances of this case, which involved an offender with a minor criminal history, who had not previously been to jail, a non-parole period of 71.42% of the head sentence, crosses the line and results in the sentence imposed being manifestly excessive.

Consideration

16. Section 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) sets out the sentencing purposes for which a court may impose a sentence, articulating the position at common law: 7 Purposes of sentencing (1) A court may impose a sentence on an offender for 1 or more of the following purposes: (a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; (b) to prevent crime by deterring the offender and other people from committing the same or similar offences; (c) to protect the community from the offender; (d) to promote the rehabilitation of the offender; (e) to make the offender accountable for his or her actions; (f) to denounce the conduct of the offender; (g) to recognise the harm done to the victim of the crime and the community. (2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

17. Section 10(2) applies where a court is sentencing an offender for an offence punishable by imprisonment. It provides: 10 Imprisonment ... (2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

18. Part 5.2 of the Sentencing Act concerns the fixing of non-parole periods but leaves the assessment of an appropriate length of non-parole period to the sentencing judge.

19. The proper approach to fixing a non-period is well established and can be summarised as follows. 1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536. 2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532. 3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625. 4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed: ... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

In sentencing the appellant, the sentencing judge said:

You have had no prior counselling and treatment for drug abuse. You expressed to the author of the Pre-Sentence Report the belief that you can control your drug abuse without help, and you contemplated being able to use heroin on an infrequent basis without problems in the future. It appears to me that such beliefs are utterly naive.

I note that you expressed some regret to the author of the Pre-Sentence Report for your offending behaviour, and also expressed some understanding of how your behaviour might have affected your victim. The author of the Report assessed you as having little insight into the seriousness of your drug abuse and its consequences. He assessed you as being at medium to high risk of re-offending, an assessment with which I agree.

20. Having concluded that the appellant had limited prospects of rehabilitation and was at a medium to high risk of re-offending, the sentencing judge was entitled to impose a relatively substantial non-parole period. Sentencing, including the fixing of a non-parole period, is a quintessentially discretionary exercise, albeit one that must be conducted by applying relevant principles. Although, in the ACT, non-parole periods generally fall within the range of 50 – 70% of the total term, error is not established by showing that a non-parole period falls outside this range, even in the case of an offender with a minor prior criminal history and no prior experience of imprisonment. In this case, others may have taken the view that, as the offender was being imprisoned for the first time, the deterrent effect of imprisonment could not be predicted, and that it was best to afford the Sentence Administration Board a wide discretion in relation to the appropriate release date. However, it is not for an appellate court to interfere with the discretion of a sentencing judge, except where clear error is shown: Balthazaar v The Queen [2012] ACTCA 26 at [61], approving R v Abbott (2007) 170 A Crim R 306 at 309.

21. The appeal is dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.

Associate:

Date: 2014

IN THE SUPREME COURT OF THE ) No. ACTCA 49 of 2013

) No. SCC 44 of 2013

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RYAN TAYLOR

Appellant

AND: THE QUEEN

Respondent

Judges: Murrell CJ, Refshauge and Penfold JJ

Date: 11 April 2014

Place: Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

22. I have had the advantage of reading the reasons of Murrell CJ and I agree that the appeal must be determined generally for the reasons her Honour gives.

23. I would simply add that, for the reasons identified by the High Court in Hili v The Queen (2010) 242 CLR 520, especially at 532-4; [36]-[45], it is deceptive to approach the setting of a non-parole period as a ratio of the head sentence.

24. The factors that are required to be considered in setting a non-parole period are well-known and must lead to a result that is appropriate for the particular offender who has committed the particular offence.

25. In this case, there is no error shown in the instinctive synthesis of these factors which resulted in the non-parole period that was set by the learned sentencing judge.

I certify that the preceding paragraphs numbered twenty-two (22) to twenty-five (25) are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 11 April 2014

IN THE SUPREME COURT OF THE ) No. ACTCA 49 of 2013

) No. SCC 44 of 2013

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: RYAN TAYLOR

Appellant

AND: THE QUEEN

Respondent

Judges: Murrell CJ, Refshauge and Penfold JJ

Date: 11 April 2014

Place: Canberra

REASONS FOR JUDGMENT

PENFOLD J:

26. I agree that this appeal must be dismissed, and in general terms for the reasons set out by the Chief Justice, being that, having regard to what the sentencing judge found were the appellant’s limited prospects of rehabilitation and his medium to high risk of re-offending, a non-parole period of roughly 70% of the head sentence did not indicate error on his Honour’s part, either specific or such as may be inferred from or demonstrated by a finding that a sentence is manifestly excessive. I certify that the preceding paragraph numbered twenty-six (26) is a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 11 April 2014

Counsel for the Appellant: Mr R Livingston

Solicitor for the Appellant: Craig Lynch & Associates

Counsel for the Respondent: Ms M Jones

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 13 February 2014

Date of judgment: 11 April 2014

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