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LOUKAS-KARLSSON J Ground of Appeal

1. The appellant, who will be referred to in this judgment as the prosecution for the sake of clarity, appeals against the sentence imposed by the sentencing judge on the sole ground of manifest inadequacy of the non-parole period. There is no appeal against the head sentence of four years.

2. The particulars of the appeal are as follows: 1) The non-parole period is manifestly inadequate as to its proportion to the head sentence and the minimum term it required the respondent to serve; and 2) To the extent the sentencing judge relied on considerations of the respondent’s prospects of rehabilitation, potential deportation and period of time in custody to justify the non-parole period, undue weight was placed on those factors.

3. The prosecution does not take issue with the aggregate or individual sentences imposed.

4. The prosecution submitted appellate correction is required in order to achieve the broader purpose of consistency in sentencing and the maintenance of public confidence in the administration of justice (Munda v Western Australia [2013] HCA 38; 249 CLR 600 (Munda)).

5. For the reasons that follow, I am not persuaded that the non-parole period of 12 months is manifestly inadequate. His Honour, a highly experienced judge in the criminal law, determined a lenient but not manifestly inadequate non-parole period.

6. Accordingly, the prosecution appeal should be dismissed for the reasons that follow.

Background

7. In November 2021, the respondent entered pleas of guilty to three offences: burglary, contrary to s 311(1)(a) of the Criminal Code 2002 (ACT) (Criminal Code); theft, contrary to s 308 of the Criminal Code; and aggravated robbery, contrary to s 310(b) of the Criminal Code.

8. The respondent committed the burglary and theft offences on 9 January 2021 at a small business in Canberra City. On 5 August 2021, after being granted bail for those offences, the respondent committed an aggravated robbery by stealing a laptop from a vehicle and, while attempting to escape the scene, striking the owner of the vehicle several times with a chisel.

9. The offences were committed to the ACT Supreme Court for sentence and were referred to the Drug and Alcohol Sentencing List (DASL). The respondent was assessed as eligible in a report dated 12 January 2022, and was further assessed as suitable for a Drug and Alcohol Treatment Order (DATO); however, that suitability was dependant on the respondent’s proposed accommodation being approved. In a later assessment report dated 18 January 2022, the respondent was assessed as unsuitable. The respondent was granted bail on 6 April 2022 for the purpose securing approved accommodation and commencing drug rehabilitation prior to sentencing. The respondent breached that bail, was remanded in custody on 8 May 2022, and has remained in custody since this time.

10. On 30 June 2022, the respondent to this appeal was sentenced to a head sentence of four years’ imprisonment. The sentencing judge imposed a non-parole period of 12 months, expiring 1 March 2023.

11. The sentence was comprised of 11 months’ imprisonment for the burglary, six months’ imprisonment for the theft, and three years and three months’ imprisonment for the aggravated robbery. The sentence for the theft was accumulated on the sentence imposed for the burglary by one month. The sentence for the aggravated robbery was cumulated on that sentence by three years.

12. In determining the sentences of imprisonment, Refshauge AJ, the learned sentencing and DASL judge, declined to make a DATO under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

Prosecution appeals: the principles

13. A prosecution appeal is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT).

14. The principles applicable to prosecution sentence appeals are not in dispute and may be briefly stated. It is well accepted, to the point of being trite, to observe that criminal sentencing is discretionary and the principles in House v The King (1936) 55 CLR 499 at [504]-[505] apply on appeal.

15. The principles that apply to prosecution appeals alleging manifest inadequacy were usefully summarised by this Court in R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas; Palmer) at [66]-[68]. In reaching a conclusion of manifest inadequacy, an appellate court must afford respect to the wide discretion vested in a sentencing judge (Nicholas; Palmer at [66]). It is not sufficient that an appellate court would have imposed a different sentence. That is not how error is demonstrated.

16. The primary and limiting purpose of prosecution appeals is ‘to lay down principles for the governance and guidance of courts with the duty of sentencing convicted persons’: Green v The Queen (2011) 244 CLR 462 at [1], [36], quoting Griffith v The Queen (1977) 137 CLR 293 at 310. This was affirmed by the High Court in CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 (CMB) at [35].

17. The essential questions for determination by this Court are whether appealable error has been demonstrated and, if so, whether the prosecution has negated the residual discretion not to intervene: CMB at [56]. Non-parole periods

18. The principles relating to the fixing of non-parole periods are also well settled. The proper approach to determining a non-parole period in this jurisdiction was succinctly summarised by this Court in Taylor v The Queen [2014] ACTCA 9 (Taylor) at [19]: 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 at 615, Bugmy v The Queen (1990) 169 CLR 525 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 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.

19. I pause at this juncture to underline that the proportion of the sentence to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical equation to be applied automatically in every case.

20. Prospects of rehabilitation are significant in the fixing of a non-parole period. The relevance of these prospects arises both in respect of the benefit conferred on an offender of the opportunity for early release and, conversely, in reinforcing the need for protection of the community where those prospects are poor (see Bugmy v The Queen (1990) 169 CLR 525 (Bugmy (1990)) at 531-532). Notwithstanding the importance of rehabilitation, the other purposes of sentencing remain relevant considerations (see Taylor at [19]). As stated in Power v The Queen (1974) 131 CLR 623 (Power) at [10], the purpose of legislative provision for parole orders is: To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. (emphasis added)

21. In determining what constitutes an ‘appropriate relationship’ between the non-parole period and the head sentence, regard must be had to the sentencing purposes listed in s 7 of the Sentencing Act and ‘the circumstances of the case’ (Lowe v The Queen (1984) 154 CLR 606 at 610).

22. Where a non-parole period is “unusually low” the sentencing court should explain why that non-parole period bears an appropriate relationship to the head sentence (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [103]).

23. All the matters which are relevant to the setting of the head sentence are relevant to the setting of the non-parole period, although they will have different weight (Bugmy (1990) at 531).

Reasons of the sentencing judge

24. The facts relevant to sentence, set out in R v Ruwhiu [2022] ACTSC 290 (Ruwhiu) at [9]- [19], expressly referred to and adopted the facts set out in the agreed Statement of Facts tendered by the prosecution at first instance.

25. The sentencing judge considered the objective seriousness of each offence in Ruwhiu from [29]-[44].

26. In relation to the aggravated robbery, his Honour stated the following at [31]-[32]: There were, in this case, some relevant factors. The owner was someone vulnerable, being asleep in his car parked on the street in the early hours of the morning, though Mr Ruwhiu did not know that he was there and his presence was reasonably unexpected. The weapon, though not a knife, was quite similar, which is an aggravating factor. There was no evidence of any planning or pre-meditation, other than that the chisel was, at least, an unusual weapon to have, but may have been for the purposes of another burglary. The injuries inflicted were properly described by the Crown as “superficial”, nevertheless they were injuries to the victim. There was actual violence, though not at the time of the robbery, but when the owner tried to recover his property and to restrain Mr Ruwhiu. There was no evidence as to the value of the property, but it would not have been large, though certainly not trivial. The property stolen was a laptop, but no evidence was given of its value. While of a significant, though unlikely very great, monetary value, its loss may well have also caused inconvenience. As the owner did not provide a Victim Impact Statement and there was no other relevant evidence, it cannot be a significant consideration as a factor of aggravation in this case. In this case, while recovered, it was damaged and unlikely to have been able to be used again.

27. And concerning the burglary, his Honour stated at [34], [36]-[38]: While an offence of dishonesty, it also involves a trespass into someone else’s property, whether business premises or a residence. It can engender feelings of lack of safety, even violation, by the victims and disturbs the peace and the harmony of the community. It causes victims and others to feel worried about their property which is the target of this kind of theft and it can have wider effects, as insurance premiums for all are increased as a result. … Making the offence somewhat less serious, the premises that were the subject of the burglary were commercial premises. No one was on the premises and, at the time, it was unlikely that this would be so. There was damage on entry, but none while Mr Ruwhiu was inside the premises. It is clear from the evidence, as in the unchallenged report in the Alcohol and Drug Service Suitability Assessment, that Mr Ruwhiu's purpose was to gain funds to buy drugs. While Mr Ruwhiu did loiter and reconnoitre the target premises, there was no evidence of particular planning or pre-meditation, nor that the premises had been targeted or the subject of earlier burglaries by Mr Ruwhiu or anyone associated with him. As the Crown properly accepted, “the offending in this instance appears to be opportunistic”. The Crown asserted in written submissions that the burglary caused inconvenience and referred to the owner's Victim Impact Statement in which the victim identified the extra time and resources he and his staff had to expend, the extra security that he had to install, the unsettling effects of making statements to police and the cost of repairs. He estimated the costs at over $1,000.

28. And finally, in relation to the offence of theft, his Honour discussed at [40], [42]-[43]: Thus, the central issue was the value of the property and this is not limited to monetary value, which, in other cases, can encompass the sentimental or inconvenience values: see R v John [2017] ACTSC 144 at [44]-[45]. This probably does not have much effect here. The property was cash, neither an insignificant nor a very large sum. … Inconvenience can also be relevant in other ways, especially where there is some need for the victim to make insurance claims, as explained in R v Forrest (No 2) [2017] ACTSC 83 at [76], [145]. There was no mention of that here. It does not seem particularly relevant. Again, also, the level of premeditation or planning and the nature of the consequences of such thefts can also be important: see R v Leighton [2016] ACTSC 354 at [22]. That does not play a large part here.

29. The sentencing judge detailed Mr Ruwhiu’s background and addressed the respondent’s subjective circumstances from [45]-[73]. A summary follows.

30. The respondent was born in New Zealand and identifies as Māori. The respondent’s childhood was marred by violence, abuse, and an absence of supervision and care. The impact of this environment led to the respondent attempting to take his own life at 13 years of age.

31. The respondent is estranged from his family, with the exception of a sister who lives in Perth. The respondent had one significant relationship lasting 14 years and has two adult children who reside in Brisbane. The relationship was affected by the use of alcohol by both partners. The respondent also has a grandchild, whom he has not met.

32. The respondent’s formal education ceased at age 15 after he was expelled from school for cannabis use. The respondent then entered the workforce as a logger and forester, before relocating with his employer to Australia in 2012. The respondent was admitted under a special category of visa which did not afford him access to Centrelink and unemployment benefits until he had resided in Australia for 10 years, being November 2022. The respondent eventually considered himself too old for forestry employment and sought other work including labouring, construction, and stone masonry. When the COVID-19 pandemic hit, the respondent no longer had work and was without income, leading to homelessness.

33. The respondent’s substance abuse began at an early age, with the respondent dating his use of alcohol and cannabis to as early as 13 years of age. The respondent reported problematic alcohol consumption, however ceased drinking alcohol five years ago. The respondent was not introduced to methylamphetamine until he was 42 years of age, reporting ‘[i]t allowed him to “focus”’, and that he would ‘smoke before work and get everything done really well’ (Ruwhiu at [61]). Before his arrest, the respondent was using an estimated ‘few thousand dollars worth’ of methylamphetamine each week. At the time of sentencing, the respondent had not accessed treatment for alcohol and other drug dependencies. The respondent’s access to treatment was limited by his inability to acquire more-than-transient housing to meet suitability requirements for a DATO, and the lack of available residential rehabilitation programs in the alternative.

34. It is noted that the respondent faced significant challenges to overcome in a short time frame to address this issue of homelessness, notably the inability to access public housing.

35. The respondent has a ‘not insignificant’ criminal history, commencing in 2020. The sentencing judge indicated in Ruwhiu at [64] that: ‘of the 19 offences on his record, the evidence shows, apart from two entries for unlawful possession of stolen property and two recent offences of failing to appear in accordance with a bail undertaking, all are for traffic offences.’ The respondent has served time in custody for these offences. The respondent has also breached every grant of conditional release on a Good Behaviour Order to which he has been sentenced.

36. The respondent demonstrated some level of remorse, however it was not deemed by the sentencing judge to be ‘by any means, sufficiently ample to justify a significant effect on sentence’ (Ruwhiu at [70]).

37. The respondent presented as ‘enthusiastic, motivated and engaged’ towards rehabilitation (Ruwhiu at [67]). The respondent is supported by his sister, who authored a letter to the court indicating that ‘violence and aggressiveness were not in his character’ (Ruwhiu at [71]). Family was identified as prosocial factor in the respondent’s prospects of rehabilitation, discussed later in the judgment.

38. It was accepted by the sentencing judge, and by counsel on appeal, that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy (2013)) applied and reduced the respondent’s moral culpability to a degree. The sentencing judge succinctly stated in Ruwhiu at [86]: Mr Ruwhiu’s childhood was affected by violence, exposure to alcohol abuse and by the disruption to his schooling that this caused. While he has, especially while employed in a job he enjoyed, been able to rise above that, it is not unreasonable to see that when his life became very tough because of the COVID-19 pandemic, he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime. The overarching competing arguments on appeal

39. As stated earlier, the non-parole period imposed by the sentencing judge on the respondent to this appeal is a period of 12 months, expiring 1 March 2023. Prior to the hearing of this appeal, the respondent adjourned his parole hearing to 4 May 2023. I interpolate to note, therefore, that the non-parole period is now extended by force of the respondent’s adjournment to 14 months, in any event. Of course, whether or not parole is granted on that day is a matter for the Sentence Administration Board. The prosecution submitted, by reference to length and the “usual range” in the ACT, 12 months constitutes an ‘unusually low’ non-parole period, unjustified by the circumstances of the case.

40. The prosecution asserted that a determination of the conclusion as to manifest inadequacy arises from consideration of two key factors: namely, an assessment of the objective seriousness of the offending, and the balancing of the relevant purposes of sentencing arising in the sentencing exercise.

41. As referred to earlier, the prosecution further submitted that the sentencing judge erred in placing undue weight on the subjective factors, consideration of the prospects of deportation, and time spent in custody. Taken together, the prosecution submitted these factors did not provide sufficient justification for the ‘unusually low’ proportion of non-parole period to head sentence.

42. Counsel for the respondent submitted that, in this instance, there is a clear case for an ‘unusually low’ non-parole period. Further, that it is justified by reference to the same considerations identified by the prosecution.

Consideration Objective seriousness

43. The prosecution submitted that the objective seriousness was considered by the sentencing judge in relation to the head sentence imposed, but not sufficiently considered in the determination of the non-parole period. In my view, this prosecution submission assumes an air of artificiality in circumstances where the sentencing judge discussed objective seriousness at some length earlier in the very same judgment. It did not require repeating.

44. The sentencing judge observed that the offences of burglary and theft are, by virtue of the maximum penalties, serious offences – although less serious than the third offence of aggravated robbery. In this case, both the burglary and theft occurred in a commercial premises. Inconvenience was caused to the business owner, including the cost of repairs to a damaged lock on a door. The value and nature of the property stolen is relevant in determining the seriousness of the theft offence. Here, the property stolen was cash which was “neither an insignificant nor a very large sum” (Ruwhiu at [40]).

45. Further, the sentencing judge accepted that the NSW guideline judgment in relation to armed robbery R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry) was relevant insofar as it relates to the identification of aggravating and mitigating factors for aggravated robbery. A number of the features identified in Henry existed in the present matter. Relevantly, the victim was in a vulnerable position, being asleep in his campervan in the early hours of the morning; a laptop was stolen and was also damaged by the respondent; the respondent had a knife-like weapon, namely, a chisel; and there was a limited degree of planning, motivated by a desire to fund the purchase of drugs.

46. I note the violence occurred in the context of the victim trying to recover his property and the respondent attempting to flee the scene, rather than the robbery itself.

47. The prosecution contended the objective seriousness of the offences not being considered in the determining of the non-parole period is evidenced by the limited reasons given by the sentencing judge as to the non-parole period.

48. The sentencing judge’s succinct concluding reasons in relation to the non-parole period were set out in Ruwhiu at [130]-[132]: Accordingly, the Court must then consider whether to set a non-parole period under s 65 of the Sentencing Act. There is no reason not to do so. The length of that period must be considered carefully. Relevant considerations are his expressed commitment to rehabilitation, though these words have yet to be translated into action; the support, including an offer of financial support from his sister; the possibility of employment on release; the burden that the prospects of deportation would impose on his imprisonment; and the length of time he has already been incarcerated continuously, even though serving other sentences. Accordingly, a relatively short non-parole period should be set and, in the circumstances, a recommendation under s 67 of the Sentencing Act should also be made. (emphasis added)

49. It is clear that the sentencing judge expressly referred to the careful consideration that must be given, and was given, to the non-parole period.

50. Relevantly, the sentencing judge also directly addressed the offender immediately thereafter in the judgment at [133]-[142]. At [135]-[142], his Honour stated: Mr Ruwhiu, that is the sentence I have imposed. It is not the one that you wanted, but I have tried to craft it to recognise the very serious offences that you have committed in the context, however, of your relatively short criminal history. I have tried to craft it also to allow you, if you are committed to rehabilitating from the dreadful drug addiction that has blighted your last few years, to do so. Firstly, I have set a relatively short non-parole period, which will end in about nine months time. Secondly, I have recommended that you engage in the Solaris Therapeutic Community in the Alexander Maconochie Centre. It is a program that is based on proper therapeutic principles and should assist you, although it is more difficult in custody, but should assist you to be able to address your drug addiction, if you are genuinely able to do so. Thirdly, I have encouraged the Sentence Administration Board to make it a condition that you continue that, so that, when you return to the community, you can actually make sure that your rehabilitation is complete, and that will give you the possibility of returning to what appears to be a relatively drug-free and crime-free lifestyle, despite these really serious and bad lapses and crimes that you have committed. I cannot affect the migration status at the end of the day, and you are at risk. That will be a burden for you, but it is not an absolute risk. There is some possibility of avoiding that. Given your circumstances, it may be possible, particularly with what appears to be a changing relationship between Australia and New Zealand in that area, it may be possible for you, if you show genuine and achievable rehabilitation, to show that, in the circumstances of your children being here and your sister being here, that that should not happen. That, however, is not something that I can affect, other than to note that these are important matters that are important for the community. I regret that I have not been able to see my way clear to granting a Treatment Order to you in all the circumstances, but some of it comes back to you and your inability, in the recent past, to be able to translate that wish into real commitment in action. Nevertheless, I hope that this sentence will enable you to address those issues and to live a proper life in the community, and even if you are deported, there is the possibility of being a useful, productive, civilised member of the community in New Zealand. (emphasis added)

51. The prosecution submitted that these reasons contain no explicit reference to the objective seriousness of the offending, instead only articulating subjective circumstances. The prosecution submitted that, from this, it may be inferred that his Honour took an erroneous approach where consideration was only given to an offender’s subjective case in determining the non-parole period (R v Hall [2017] NSWCCA 313; 271 A Crim R 162 at [86]-[90]). Again, in my view this submission is artificial in the circumstances where the judgment discusses all relevant sentencing factors, including objective seriousness, at length. It is a narrow analysis of the judgment to assert that because objective seriousness is not mentioned again later that an experienced criminal sentencing judge has somehow forgotten about objective seriousness in determining the non-parole period. This prosecution submission appears to be an argument for laborious and otiose repetition. Purposes of sentencing

52. As stated above, I do not accept the prosecution’s submission that the sentencing judge did not adequately consider objective seriousness in determining the non-parole period.

53. The sentencing judge indicated that the seriousness of the respondent’s offending required a sentence to impose adequate punishment on the respondent (Ruwhiu at [81]). His Honour referred to the importance of both general and specific deterrence, denunciation, recognition of harm to the victims, protection of the community and rehabilitation at [82]-[83]: Of course, the sentence must denounce the conduct constituted by the offending, which is inconsistent with a peaceable and civilised community. Thus, Mr Ruwhiu will be held accountable. The sentence should also deter him from committing any further such offences, though recognition of the need for rehabilitation will be an important element, because Mr Ruwhiu is recognising the need for that and, if addressed, will benefit not merely himself but also the wider community. The possibility of rehabilitation is a very relevant consideration, as described in Director of Public Prosecutions v Herrmann [2021] VSCA 160 at [112]. These matters will, of course, protect the community and, thus, the sentence will promote that objective. Finally, the sentence must recognise the harm done to the victims. Though a Victim Impact Statement was provided from the victim of the burglary and not of the more serious offence of aggravated robbery, the Court can, from the evidence adduced before it, understand in general terms the harm done to each victim: R v Lam (No 3) [2014] ACTSC 362 at [93]. It would not, however, allow the Court to speculate or identify special harm unless other evidence allowed such an inference to be drawn to the requisite degree.

54. Unsurprisingly, rehabilitation was described by the sentencing judge as “a very relevant consideration” (Ruwhiu at [82]). His Honour, in the context of discussing s 10 of the Sentencing Act and determining that no sentence but a sentence of imprisonment was required, stated the following in Ruwhiu at [92]: The Court must take into account the nature and circumstances of the offending, and this has been described, as well as the personal circumstances of Mr Ruwhiu. It is also required that account be taken of his plea of guilty, the childhood disadvantage he suffered and that he was on conditional liberty when he committed the offences. The fact that he is enthusiastically seeking rehabilitation, which he has not previously had access to, is also relevant.

55. The prosecution submitted that while it is accepted that rehabilitation is relevant, “the proposition that the fixing of a non-parole period is a matter that is to be determined solely, or primarily, by reason of considerations of rehabilitation has long since been rejected” (R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (Simpson) at [59]). That is, of course, correct. Considerations of general and specific deterrence and adequate punishment are relevant to the non-parole period, as they are to the head sentence. It is also correct that the “need for rehabilitation had to be balanced against the overarching requirement … that the sentence be of a severity appropriate in all the circumstances of the offence” (Toumo’ua at [99]). It is further correct to state that ‘mere enthusiasm’ for rehabilitation, without more, is not enough.

56. Taking into account the punitive purposes of sentencing, including general deterrence, protection of the community, denunciation, and recognition of harm, the 12 month non-parole period is undoubtedly lenient. Nevertheless, leniency in and of itself does not bespeak manifest inadequacy. Leniency and manifest inadequacy are not equivalent concepts in the criminal law.

57. Further, the respondent correctly submitted that, given that it was open to the sentencing judge to make the factual finding concerning deportation, its relevance to the non-parole period was appropriate because of the burden of the expectation of deportation.

58. The offending, while undoubtedly serious, does not inevitably lead to the requirement of a longer non-parole period on the facts of this individual case.

59. Finally, the respondent correctly pointed to instances where the sentencing judge denied the respondent leniency including in the following ways: (a) despite the respondent’s short criminal history and unique financial difficulties, the sentencing judge denied the imposition of a DATO. This was primarily due to the respondent’s homelessness; (b) the sentencing judge could have suspended the entirety of the sentence (see, for example, R v Parker (No 2) [2022] ACTSC 13), thereby placing great weight on rehabilitation over other sentencing objectives; (c) each sentence was partially cumulative upon the others even though it was open to the sentencing judge to impose greater concurrency; and (d) a head sentence of four years imprisonment was imposed.

60. It was open to the sentencing judge to find the respondent to have prospects of rehabilitation, even in the face of difficulties with addiction to illicit substances. Counsel for the respondent correctly submitted the respondent’s prospects of rehabilitation needed to be assessed with regard to the fact that the respondent does not have any underlying mental health issues, that he has a strong history of employment and a supportive sister. These were accurately described as pro-social factors that outweigh the respondent’s single criminogenic risk; illicit drug dependency. Counsel for the respondent underlined that the respondent was able to overcome his alcohol addiction, the use of which commenced at the age of 13, because it interfered with his ability to work.

61. Further to this, the respondent’s prospects of rehabilitation were assessed by the sentencing judge in the context of the unprecedented nature of the COVID-19 pandemic, and the circumstances of the respondent’s forced lack of income. Counsel for the respondent suggested this unusual mix of difficult circumstances is unlikely to be replicated in the future and is not indicative of how the respondent would fare in rehabilitation if he were to try again without the burden of the pandemic. It was these unique circumstances which deprived the respondent of an income as he was not entitled to Centrelink during the pandemic and, thereby, deprived the respondent of housing. The respondent correctly reiterated the sentencing judge’s comments that the respondent demonstrated an ‘enthusiastic, motivated and engaged’ attitude towards rehabilitation in Ruwhiu at [67]: …Mr Ruwhiu was described as enthusiastic, motivated and engaged. He asked many questions about Treatment Orders and appeared highly motivated to participate. Is there justification for the ‘unusually low’ non-parole period?

62. It is clear on the authorities that a comparatively short non-parole period relative to the head sentence invites appellate scrutiny. So much is obvious: see Romero v R [2011] VSCA 45; 32 VR 486 at [5], see also DPP v Josefski [2005] VSCA 265 at [45]; R v Flowers [2014] ACTCA 13 at [55]).

63. A very short non-parole period may be justified by special factors, as stated in DPP v Josefski [2005] VSCA 265; 13 VR 85 at [45]: A very short non-parole period… may be justified by special factors… but on some occasions it suggests that too little weight has been given to mitigating factors in determining the head sentence or that too much weight has been given to them in fixing the non-parole period. (emphasis added)

64. As stated earlier, the prosecution submitted the non-parole period of 12 months is ‘unusually low’, and was without sufficient justification, by reference to the subjective circumstances of the respondent, the respondent’s potential deportation and totality.

65. The court in R v Newby [2022] ACTCA 20; 367 FLR 122 (Newby) underlined that there is no statutory requirement to impose a particular non-parole period, and that a lower proportion for a “very serious offence” calls for careful examination and consideration of the adequacy of reasons. The Court of Appeal in Newby went on to say at [69]: “…generally speaking, the more serious the crime, the harder it is to justify a lower non-parole period or a lower proportion of the head sentence as a non-parole period”. It is important to note at this juncture that in Newby the offence was murder, not aggravated robbery.

66. The prosecution conceded the utility of comparative cases is somewhat limited (see Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [46], [54]), however the prosecution pointed to the significant departure from non-parole periods imposed in similar matters. This will be discussed under the heading of ‘Comparable and comparative cases’.

67. The sentencing judge stated that a 12 month minimum term was “a relatively short non-parole period” (Ruwhiu at [132], [136]). As referred to earlier, his Honour held at [131]: Relevant considerations are his expressed commitment to rehabilitation, though these words have yet to be translated into action; the support, including an offer of financial support from his sister; the possibility of employment on release; the burden that the prospects of deportation would impose on his imprisonment; and the length of time he has already been incarcerated continuously, even though serving other sentences.

68. The prosecution submitted that the sentencing judge placed too much weight on subjective factors that should not have been attributed with that weight, in particular: prospects of rehabilitation, potential deportation and period of time in custody. These factors will be further discussed below.

Subjective factors

69. In oral and written submissions, the prosecution underlined the general submission that subjective factors had been afforded excessive weight by the sentencing judge.

70. The prosecution accepted the sentencing judge found Bugmy principles applied as a result of the respondent’s childhood trauma and disadvantage, though the prosecution cavilled with the weight this reduction in moral culpability had on determining the non-parole period.

71. Counsel for the respondent submitted, and the prosecution accepted, that the respondent’s formative years were marred with violence, abuse, and failure by his parents to provide adequate supervision and care. As stated earlier, the distress caused by his home life led the respondent to attempt to take his own life at age 13, around the same time the respondent began to use alcohol, tobacco and cannabis.

72. As referred to earlier, the respondent was expelled from school for cannabis use at age 15 and participated no further in formal education. The respondent entered the workforce as a logger and forester in New Zealand, before relocating to Australia to follow his employer in 2012. The respondent held a special category visa which prohibited him from accessing Centrelink and other unemployment benefits until November 2022. He was permitted to work under this visa, and continued to do so in the Australian forestry industry until a number of workplace injuries encouraged a transition into labouring and construction work.

73. As a result of COVID-19, the respondent lost work and was ineligible for social security payments. The respondent became homeless as a result, and had no family or support network in the ACT. The respondent began using methylamphetamine in 2016, and developed an addiction to the same. The sentencing judge found the offences were motivated by the respondent’s desire to feed his drug addiction (Ruwhiu at [108]).

74. Ultimately, counsel for the respondent submitted that, with full weight being given to the compelling mitigating factors, it was open to the sentencing judge to impose a non-parole period of 12 months when exercising a function that is inherently discretionary.

75. It cannot be gainsaid that matters of weight are ‘very much matters for the sentencing judge’: Carr v R [2020] NSWCCA 214 at [47].

Prospects of rehabilitation

76. The prosecution submitted that the respondent’s prospects of rehabilitation ‘seem to be the dominant factor in the non-parole period’.

77. The prosecution emphasised the findings of the respondent’s Drug and Alcohol Treatment Assessment (DATA), in particular the following comment: Whilst he appeared motivated to participate in the interview process, Mr Ruwhiu failed to identify his use of illicit substances as being problematic and requiring intervention until prompted and appeared to primarily associate participation with the opportunities instead to seek employment and gain stable accommodation.

78. The prosecution also noted the observations above were reflected in the respondent’s history, including his failure to attend his first supervision, failure to attend the Canberra Recovery Services program, and failure to attend sentencing in the Magistrates Court on 29 April 2022. The prosecution submitted the respondent’s prospects of rehabilitation could more accurately be described as ‘quite poor’ and that the respondent’s supposed ‘enthusiasm for rehabilitation’ was not borne out in likely prospects of rehabilitation sufficient to justify a 12 month non-parole period.

79. The DATA report discussed above indicated ‘Mr Ruwhiu presented as enthusiastic, motivated and engaged’ and that the respondent continues to be ‘enthusiastically seeking rehabilitation’. Counsel for the respondent correctly submitted that the measures for progress towards rehabilitation should be assessed in their existing context. Counsel for the respondent submitted that the examples put forward by the prosecution are not indicative of the respondent’s prospects of rehabilitation if he were to try again in the post-pandemic world with support, income and housing. Further, counsel for the respondent submitted that the value placed on the day programs offered to the respondent must be viewed in the context of the respondent’s preference for a stable place to live while working to overcome his addiction. The need for a stable place to live is not an irrational desire in all the circumstances of this case. Prospect of deportation

80. The Full Court of the Supreme Court of the Northern Territory in The Queen v Calica [2021] NTSCFC 2; 43 NTLR 7 exhaustively considered the intersection between potential deportation and criminal sentencing proceedings. Grant CJ, Kelly, Blokland and Barr JJ found at [15]-[18]: The question of whether a court sentencing a foreign offender to imprisonment in this country may or should take into account the prospect of the offender being deported has been considered in Australian courts in three different contexts: First, courts have considered whether it is proper to take the prospect that the offender may be deported into account in determining whether to fix a non-parole period (“the non-parole cases”). Second, courts have considered whether it is proper to take the prospect of deportation into account so as to impose a sentence designed to avoid such a consequence (“the threshold cases”). Third, courts have considered whether a sentencing judge may or should take the prospect of deportation into account in mitigation of sentence as one aspect of the offender’s personal circumstances (“the mitigation cases”).

81. There is a divergence in the approaches taken by various Australian jurisdictions.

82. In Ngata v The Queen [2020] ACTCA 18 (Ngata), the court found no error in the sentencing judge taking into account deportation as a mitigating factor. There are a number of ACT Supreme Court decisions which reinforce the approach favouring deportation as a mitigating factor. The position in the ACT is that the prospect of deportation can be taken into account as a mitigating factor but not in a way designed to circumvent migration laws.

83. The issue discussed in this case was not the prospect of deportation per se, but rather “the burden that the prospects of deportation would impose on his imprisonment”, which the sentencing judge identified as a key factor in determining the non-parole period (Ruwhiu at [131]).

84. The respondent was sentenced to a term of imprisonment (head sentence) of more than 12 months, constituting a ‘substantial criminal record’ under s 501(7)(c) of the Migration Act 1958 (Cth) (Migration Act). The respondent therefore does not pass the character test under s 501(6)(a) of the same.

85. It is clear in R v Butters [2019] ACTSC 143 (Butters) that a court cannot craft a sentence to avoid the operation of the migration legislation (see Butters at [95]). The effect of deportation may be relevant in considering hardship to third parties under s 33(1)(o) of the Sentencing Act or in considering the experience of imprisonment for an offender who knows they will be deported (Ngata at [35]).

86. In my view, in so far as the burden of the prospect of deportation provokes fear or anxiety, no error has been demonstrated in the finding of the sentencing judge and in thereby attributing weight to that factor.

87. Counsel for the respondent correctly submitted the sentencing judge found there were real prospects of the respondent being deported at the expiry of the custodial portion of the respondent’s sentence (Ruwhiu at [140]). Further, counsel for the respondent submitted that, if deported, the respondent will be separated from the only close familial support he has (being his sister in Perth).

88. The sentencing judge found that the respondent genuinely wished to develop his relationship with his children further, including meeting his grandchild for the first time (Ruwhiu at [50]).

89. In considering the burden of this likelihood of deportation on the conditions of the respondent’s imprisonment, the loss of such an opportunity has been described as a ‘punishing consequence’ (Guden v R [2010] VSCA 196 at [27]).

90. Finally, the court notes that there are a number of authorities where the mandatory cancellation of an offender’s visa under s 501(3A) of the Migration Act was considered sufficient to meet the evidentiary threshold without further evidence proving the likelihood of deportation (see R v Atai (No 2) [2021] ACTSC 272 at [25]; Allouch v The Queen [2018] VSCA 244 at [40]-[42]; R v GBD [2018] QCA 340 at [14], [51]-[54] and R v Leka [2017] SASCFC 77 at [20]-[23], [30]). Time in custody

91. The sentencing judge indicated the length of time spent in custody by the respondent prior to the sentence was relevant to determination of the non-parole period (Ruwhiu at [131]). The respondent’s total period in custody and the sentence imposed in the Magistrates Court must be taken into account in applying the principles of totality (O’Brien v The Queen [2015] ACTCA 47 at [26]). It was agreed the respondent had served 119 days referable to these offences.

92. Ultimately, the prosecution submitted, while the period in custody could be taken into account, the circumstances were insufficient to justify this consideration resulting in a markedly short non-parole period. The prosecution contended the failure of the non-parole period to bear an appropriate relationship to the head sentence is indicative of undue weight being placed on this consideration, contributing to manifest inadequacy.

93. In response, the respondent proffered that this substantial period of time in custody further indicated the respondent’s rehabilitation should not be unduly delayed any further.

94. It is clear that the sentencing judge was entitled, and in fact obliged, to take into account the period of time in custody as a matter of totality. I am not persuaded that undue weight was placed on this factor in determining the non-parole period.

Comparable and comparative cases

95. For the sake of completeness, it is important to discuss comparable or comparative cases.

96. In relation to the comparative cases provided by the prosecution it was submitted that the cases demonstrate the extent that the sentencing judge ‘departed from sentencing practice’. The prosecution identified the following comparable cases: (a) R v Lutze [2020] ACTSC 121: a head sentence of four years’ imprisonment, with a non-parole period of two years. (b) R v Lau [2020] ACTSC 120; a head sentence of five years’ imprisonment, with a non-parole period of three years and four months. Mr Lau was the co-offender of Mr Lutze. (c) R v Chifuntwe (No 3) [2017] ACTSC 220; a head sentence of two years and one month’ imprisonment, with a non-parole period of 15 months; and (d) R v Flowers [2014] ACTCA 13: at first instance, a head sentence of six years and six months’ imprisonment, with a non-parole period of 18 months. The non-parole period was increased on appeal to three years.

97. The comparative cases referred to by the respondent were submitted to demonstrate that the non-parole period imposed was not ‘plainly unjust’, emphasising the principles of comity (see Hicks v Minister for Immigration [2003] FCA 757 at [76]). The comparative cases the respondent referred the court to were: (a) R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27; a head sentence of four years’ imprisonment, wholly suspended; and (b) R v Abdi [2016] QCA 298; a head sentence of 3 years’ imprisonment, with a non-parole period of 6 months. On appeal, the sentence was varied and the sentence of imprisonment was suspended on that date.

98. The sentencing process is not a mathematical exercise based on numerical equivalence. The correct approach is to ascertain whether there has been ‘a consistent application of legal principles’: see The Queen v Omari [2022] ACTCA 4 at [56]. As noted by the plurality in Hili at [53], in seeking consistency, sentencing judges must have regard to what has been done in other cases for the purpose. However, sentences imposed in the past do not fix ‘the boundaries within which future judges must, or even ought, to sentence’ (Munda at [39], Hili at [54]). Rather, what is important is the “unifying principles which those sentences both reveal and reflect” (Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [41]). As stated above at [66], the prosecution correctly conceded the utility of comparative cases is somewhat limited in this case.

Conclusion: purposes of a non-parole period

99. A non-parole period ‘is imposed because justice requires that the offender serve that period in custody’: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. The non-parole period represents the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including ‘rehabilitation, the objective seriousness of the crime, and the offender’s subjective circumstances’: Power at 628-629.

100. These principles set a lower limit to any reduction that might be thought appropriate on the basis of converting punishment into an opportunity for rehabilitation: R v MA [2004] NSWCCA 92 (MA) at [33]. However, the majority of the High Court in Bugmy (1990) cautioned that a judicial officer should not fix a minimum term solely or primarily in accordance with the offender’s prospects of rehabilitation (Bugmy (1990) at 311).

101. Therefore, other purposes of sentencing, as would be accounted for in determining the head sentence, are relevant in fixing a non-parole period. However, while the factors the court must take into account when fixing the non-parole period are likely to be the same as those applicable to fixing the head sentence, the weight attached to these factors and the manner in which they are relevant will differ as a result of the distinct considerations when fixing a non-parole period: Power at 627-629. See also Hili at [40]; Simpson at [59]; R v Ogochukwu [2004] NSWCCA 473 at [33]; R v Cramp [2004] NSWCCA 264 at [34]; Caristo v R [2011] NSWCCA 7 at [27]; MA at [34].

102. In conclusion, for the reasons stated in this judgment, in my view the sentencing judge has not determined a non-parole period that is contrary to the proper application of the relevant principles stated above. This appeal should be dismissed.

Orders

103. The appeal is dismissed.

BAKER J Introduction

104. I have had the advantage of reading in draft the judgment of Loukas-Karlsson J. For the reasons which follow, I agree with the orders proposed by her Honour.

105. In his oral and written submissions, the Director made some complaints about aspects of the sentencing judge’s reasons (in particular, whether the sentencing judge had adequately addressed the objective seriousness of the offending). However, the Director’s Notice of Appeal did not allege that there was any patent error in the decision. In this judgment, I propose to only address the pleaded ground of appeal, namely that the non-parole period imposed by the sentencing judge was manifestly inadequate.

106. The respondent pleaded guilty to a charge of aggravated robbery, a charge of burglary and a charge of theft. Taking into account the respondent’s early pleas of guilty, the sentencing judge imposed an overall sentence of four years’ imprisonment, with a non-parole period of imprisonment for one year: R v Ruwhiu [2022] ACTSC 290. The respondent’s offending was serious and justified a head sentence of imprisonment for four years. The sole issue in this appeal is whether it was open to the sentencing judge to impose a non-parole period of one years’ imprisonment given the seriousness of that offending.

107. I am of the view that, in the exceptional circumstances of the present case, the non-parole period imposed by the sentencing judge, whilst lenient, was open.

Relevant principles

108. The law in relation to the imposition of non-parole periods is well-established. There are three aspects of these principles that are of particular relevance to the present application.

109. First, the purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom: Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367 at 766. The non-parole period is the minimum period of actual incarceration that “justice requires having regard to all of the circumstances of [their] offence”: Power at 627. For this reason, in determining both the head sentence and the non-parole period, the sentencing court must have regard to each of the sentencing purposes listed in s 7 of the Crimes (Sentencing) Act 2005 (ACT): Taylor v The Queen [2014] ACTCA 9 at [19(1)]. These sentencing purposes include the need to punish the offender, to denounce the offending conduct, to recognise the harm to the victim, and to deter the offender and others from engaging in similar offences.

110. Second, two consequences flow from the fact that the same s 7 factors are taken into account in setting both the head sentence and the non-parole period. First, it follows that there must be an “appropriate relationship” between the head sentence and the non-parole period: Lowe v The Queen (1984) 154 CLR 606 at 610 (Gibbs CJ, Wilson J agreeing), see also at 625 (Dawson J). Second, it follows the non-parole period will “ordinarily” constitute a substantial part of the total sentence: Inge v The Queen [1999] HCA 55; 199 CLR 295 at [59] (Kirby J).

111. However, the purposes of sentencing may operate differently with respect to the determination of a head sentence as against the determination of a non-parole period. For this reason, it may be appropriate for a sentencing court to give different weight to different factors when setting the non-parole period as opposed to the head sentence. For example, an offender’s perceived prospects of rehabilitation may be of greater importance in setting the non-parole period as compared to the head sentence: Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J, dissenting but not on the issue of principle). (Indeed, it may be noted that the non-parole period of one years’ imprisonment as against a head sentence of imprisonment was not considered to be “disproportionate” in all of the circumstances in the High Court’s decision in Lowe: see at 625, per Dawson J). Nonetheless, because the purposes of punishment and denunciation must also be taken into account, the non-parole period “must not be shortened beyond the lower limit of what might be reasonably regarded as condign punishment”: R v Shrestha [1991] HCA 26; 173 CLR 48 at 63 (Brennan and McHugh JJ, dissenting but not on the issue of principle).

112. Third, there is no mathematical formula by which the length of a non-parole period, or its proportion to the head sentence, is fixed: R v Flowers [2014] ACTCA 13 at [2] and [41]; Henry v The Queen [2019] ACTCA 5 at [34]. In contrast to New South Wales, there is no legislative requirement that there should be any specific ratio between the head sentence and the non-parole period; cf Pt 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Accordingly, whilst some authorities speak of a ratio of 50 to 70 percent being the norm within the ACT (R v Newby [2022] ACTCA 20; 367 FLR 122 at [66] and Taylor at [20]) such a ratio is not a hard rule and those cases should not be used to fix an ‘available range’ for non-parole periods in this Territory: Taylor at [19(4)].

113. In this respect, it is also important to note that where the head sentence is a long period of imprisonment, the non-parole period of a sentence with an ‘unusual’ ratio will differ from a more ‘usual’ sentence by years. In comparison, where the head sentence is a relatively shorter term of imprisonment, the difference may be measured in months. For this reason, when assessing the adequacy of a non-parole period, the actual period of full-time imprisonment will often be more important than its mathematical relationship with the head sentence.

Is a non-parole period of imprisonment for one year manifestly inadequate in the present case?

114. In view of the principles outlined above, I consider that, rather than asking whether it was open to the sentencing judge to impose a non-parole period that is one quarter of the head sentence, it is more appropriate to ask whether it was open to the sentencing judge to impose a term of full-time imprisonment for one year. It is to this question that I now turn.

115. Assessment of the adequacy of the non-parole period must take into account each of the purposes of sentencing. Such purposes include the need to ensure that the offender is adequately punished for the offence in a way that is just and appropriate; to deter the offender and others from committing the same or similar offences; to protect the community; to promote the offender’s rehabilitation; to make the offender accountable for his actions; to denounce his conduct; and to recognise the harm done to the victim of the crime and the community. In the present case, this assessment requires consideration of the objective seriousness of the offending and the respondent’s subjective circumstances, including his moral culpability for the offending. Objective seriousness of the offending

116. As the sentencing judge observed, the offending, particularly the aggravated robbery, was serious in nature. In particular: (a) The victim of the aggravated robbery was vulnerable. He was asleep in his van at the time of the offending; (b) The respondent smashed a window of the vehicle to gain entry; (c) A weapon, namely a chisel, was used by the offender as he fled from the robbery; (d) The aggravated robbery involved both threatened and actual violence; (e) The potential for the infliction of serious injury was high. The respondent initially swung the chisel at the victim and threatened to stab him. When the victim tried to protect himself by continuing to strike at the victim with the chisel, the respondent struck the victim with the chisel several times, cutting the victim’s chest and the back of the victim’s neck; and (f) Although there was no victim impact statement, it is apparent from the agreed facts that the item stolen, a laptop, was important to the victim, who pursued the respondent in order to retrieve it. The respondent threw the laptop to the ground, smashing it, rather than returning the laptop to the victim.

117. Importantly, the offences were committed in breach of conditional liberty. During the offending of 9 January 2021 (the burglary and theft offences), the respondent was subject to four good behaviour bonds. During the offending on 5 August 2021, the respondent was subject to those four good behaviour bonds as well as an additional six good behaviour bonds.

118. However, it must also be borne in mind that: (a) There is no evidence that the respondent knew that the van was occupied at the time that he broke into the vehicle. Indeed, the actions of the respondent strongly suggest that the respondent was not aware that the van was occupied; (b) The offence did not involve planning. The offending was opportunistic in nature; and (c) The injuries sustained by the victim, whilst not insignificant, were not of the most serious nature for offences of this type. They consisted of 10-15 centimetre gashes to various parts of the victim’s body. The most serious injury was a deep graze to the victim’s knee. The police arranged for the victim to attend hospital, but he was not admitted.

119. As the Director properly accepted, the remaining offences, namely the burglary and the theft (which related to the 9 January 2021 offending) were less serious than the armed robbery. These occurred in commercial premises. No one was on the premises at the time. A victim impact statement was provided in respect of this offending. The victim impact statement described the additional time and resources that the victim and his staff had to expend in response to the robbery, including the installation of further security, as well as the unsettling effects of making statements to police: Ruwhiu at [38]. The respondent’s moral culpability

120. As the respondent’s counsel submitted, the respondent’s background is an important aspect of the sentencing exercise. The respondent identifies as Maori and was born in a rural area of Murupara, New Zealand. Both of his parents were violent and abusive. The respondent’s father was violent towards him on a daily basis “without warning or cause”. His mother was also abusive, although she directed most of her abuse to the respondent’s sisters. Both of his parents were alcoholics, and provided him with little supervision. The respondent attempted suicide at age 13 years. He also commenced using alcohol, tobacco and cannabis at this time. By age 15, the respondent was expelled from school and received no further formal education after that time.

121. Despite his deprived background, the respondent was able to become a contributing member of society. He gained employment as a logger and forester in New Zealand, where he worked for 23 years until November 2012. In November 2012, the respondent followed his employer to Australia, where he continued to work as a forester. After suffering some significant injuries in the course of this employment, the respondent transitioned to labouring jobs in dairy factories and the construction industry.

122. In 2016, when 42 years of age, the respondent began using methylamphetamine and quickly became addicted. Before his arrest, the respondent was using approximately a few thousand dollars of methylamphetamine each week. Despite this addiction, the respondent did not engage in any criminal behaviour beyond that relating to his drug use. However, in 2020, when the COVID-19 lockdown procedures were implemented, the respondent’s work “dried up” and he lost his only source of income. The respondent’s visa prohibited him from accessing Centrelink or other unemployment benefits at the time. He had no family or other support networks in the ACT. He was unable to support himself financially and became homeless.

123. The respondent committed his first offence in June 2020 (driving with a prescribed drug in his oral fluid). From this time, he went on to commit a number of further offences. These offences included two offences of unlawful possession of stolen property, two offences of stating a false name and two offences for failing to appear with a bail undertaking. The remaining offences were all for traffic violations, many of which are consistent with his drug use (such as driving with a drug in his oral fluid, and refusing a breath test), as well as offences of driving while disqualified and driving with a suspended licence.

124. In the proceedings at first instance, both counsel accepted that the respondent’s background was such as to enliven the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (“Bugmy (No 2)”): see Ruwhiu at [87]. The sentencing judge accepted this submission and held that those principles “reduce [the respondent’s] moral culpability to a degree”: Ruwhiu at [87]. In particular, the sentencing judge found at [86]: Mr Ruwhiu’s childhood was affected by violence, exposure to alcohol abuse and by the disruption to his schooling that this caused. While he has, especially while employed in a job he enjoyed, been able to rise above that, it is not unreasonable to see that when his life became very tough because of the COVID-19 pandemic, he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime.

125. In his oral submissions on the appeal, the Director confirmed that he did not challenge the sentencing judge’s finding of reduced moral culpability, acknowledging that the respondent’s background was “clearly relevant and clearly applied to the head sentence”. However, he noted that whilst there was evidence of childhood trauma, the respondent’s offending occurred late in life, and “the triggering factor seems to be the loss of a job through COVID.” In essence, I understood the Director’s submission to be that, in view of the gap in time between the respondent’s childhood and his offending, any reduction of moral culpability was limited, and not such as to justify a non-parole period of one years’ imprisonment. In view of this submission, it is necessary to address this finding in more detail, even though it was not the subject of challenge.

126. The concept of moral culpability refers to an offender’s ‘moral blameworthiness’ for an offence: Paterson v R [2021] NSWCCA 273 at [29], per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing). An offender will be less morally blameworthy for an offence where their disadvantaged background in some way ‘explains’, is connected with, or otherwise sheds light on the offending. For the reasons I stated in R v Hagen [2022] ACTSC 362 at [42] – [43], a reduction in moral culpability does not require a strict causal connection between an offender’s disadvantaged background and the offending. However, where there is a strong causal connection (such as was the case in Bugmy (No 2)), an offender’s moral culpability may be “substantially reduced”: Bugmy (No 2) at [44].

127. The link between childhood exposure to domestic violence and alcohol abuse and offending is well documented: see the ‘Early Exposure to Alcohol and Other Drug Abuse’ Chapter of The Bar Book Project (Bugmy Bar Book Committee, 1997), which was tendered by the respondent’s counsel in the sentencing proceedings at first instance.

128. It was to the respondent’s credit that he was able, with apparently little support, to overcome his background and become a law-abiding and productive member of society for over two decades. However, the respondent’s childhood was not erased when he overcame his first addictions and commenced employment as a forester. His background remained an important part of his “make-up” which was relevant to all aspects of the sentencing discretion: Bugmy (No 2) at [43]. In particular, as the sentencing judge found, when the respondent lost the structure and financial wellbeing that his employment provided during the COVID-19 pandemic, “he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime”. For these reasons, there was a connection between the respondent’s disadvantaged background and the offending.

129. In these circumstances, it was well open to the sentencing judge to find that the respondent’s moral culpability was reduced by reason of his background. The relevance of this reduction to each of the purposes of sentencing will be addressed further below. Comparative cases

130. Although the limits of comparative cases are well known, analysis of comparative cases may nonetheless be informative: R v Kilic [2016] HCA 48; 259 CLR 256 at [22]; Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]. In particular, comparative cases can provide guidance to both sentencing judges and appellate courts, and may be used as a “yardstick” against which the adequacy of the sentence imposed may be assessed: see Kilic at 259 .

131. The Director and the respondent each drew the Court’s attention to a number of comparative cases, which were said to provide guidance in assessing the adequacy of the ratio between the non-parole period and the head sentence in the present case. For the reasons outlined above, I do not consider that it is helpful to compare the ratios of the non-parole period to the head sentence in comparative cases. Rather, what is more significant for comparative purposes is the actual period of full-time custody imposed in each case.

132. The respondent cited two decisions of the Queensland Court of Appeal, namely R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27 and R v Abdi [2016] QCA 298. While decisions of the appellate courts of other jurisdictions deserve respectful consideration for the guidance they may provide, a sentence imposed in another jurisdiction does not stand as an appropriate comparator. As McCallum CJ recently held in Director of Public Prosecutions v Earle [2023] ACTSC 93 at [19]: There is a single common law of Australia which includes common law principles of sentencing concerning, for example, general deterrence, proportionality and totality. However, each State and Territory (and indeed the Commonwealth) has its own statutory sentencing regime and consequently its own individualised sentencing jurisprudence.

133. Further, the offender in Norris was charged with very different (drug production and supply) offences. Accordingly, neither of the decisions cited by the respondent is of any assistance in determining the appropriateness of the non-parole period imposed in the present case.

134. The Director drew the Court’s attention to the decisions in R v Lutze [2020] ACTSC 121, R v Lau [2020] ACTSC 120, R v Chifuntwe (No 3) [2017] ACTSC 220 (acknowledging that Mr Chifuntwe’s sentence was set aside when his appeal against conviction was allowed in R v Chifuntwe [2018] ACTCA 12) and Flowers. The Director submitted that each of these cases “indicate that both the length of the non-parole period and its proportion to the head sentence are unusually low”.

135. The offending in Flowers is not comparable to the offending in the present case. In Flowers, the offender was sentenced for reckless infliction of grievous bodily harm, as well as for an aggravated robbery and assault occasioning actual bodily harm. The offender inflicted injuries upon two victims. The first victim sustained a five centimetre laceration to his lower back. The second victim sustained “life-threatening injuries, including stab wounds to the neck, chest and stomach and an eviscerated small bowel which protruded through an abdominal wound”. The second victim’s small bowel was “damaged to the extent that it had to be surgically removed and the scarring from the surgical procedures is likely to be permanent.” Where serious harm is inflicted on a victim or victims, the need for denunciation will be considerably higher, as will the need to recognise the harm caused to the victims. For this reason, the three year non-parole period imposed on appeal in Flowers is of little comparative guidance to the present case, which did not involve the infliction of such serious injuries.

136. The offending in each of the remaining three cases cited by the Director was more comparable to the present offending. In particular, the offenders in Lutze and Lau were sentenced for offences of aggravated burglary and aggravated robbery by joint commission. These offenders broke into residential premises to steal an amplifier. When an occupant confronted the offenders, Mr Lutze held a sharpened screwdriver on the offender’s stomach and threatened the victim. There was no actual violence. Mr Lau had a lengthy criminal history, including for similar offences. Mr Lutze did not have a lengthy criminal history. Mr Lutze had longstanding drug and alcohol issues. He expressed remorse and had reasonable prospects of rehabilitation, provided that he addressed his mental health issues and his drug and alcohol abuse. Mr Lau did not express any real indication of remorse. He expressed interest in residential rehabilitation but had not taken any steps to pursue that option. In Lutze, the non-parole period was imprisonment for two years, as against an aggregate sentence of four years’ imprisonment. In Lau, the non-parole period was imprisonment for three years and four months, as against an aggregate sentence of five years’ imprisonment.

137. In Chifuntwe, Mr Chifuntwe and a co-offender awoke the victim, who was sleeping in a Mercedes-Benz, in the early hours of the morning. Mr Chifuntwe threatened the victim, who ran away. The offender then drove the victim’s vehicle away. Mr Chifuntwe had a lengthy criminal history, with serious offences. He also had a long history of alcohol problems and drug abuse. A non-parole period of imprisonment for 15 months was imposed, as against an aggregate sentence of imprisonment for two years and one month.

138. The offending by Mr Lau and Mr Chifuntwe was the most similar to that of the respondent, although no actual harm was caused in either case, whereas the offender in the present case did inflict injuries upon the victim of the armed robbery (albeit not serious injury). The offending in Lau and Lutze concerned residential premises, in circumstances where the offenders should have realised that there was a prospect that the occupants would be at home.

139. Whilst the non-parole periods to which Mr Lau, Mr Lutze and Mr Chifuntwe, were higher than that imposed on the respondent (three years and four months, two years, and 15 months respectively) it must be borne in mind that in contrast to the respondent, who received unchallenged discounts in the realm of 20 per cent for each of his pleas of guilty, Mr Lau and Mr Lutze entered pleas of not guilty, and received no such discount. Importantly, neither Mr Chifuntwe, nor Mr Lau had a background of disadvantage. Whilst Mr Lau had a history of mental health issues, it was not the subject of formal diagnosis. Mr Lau told a probation officer that he experienced symptoms of ADHD, depression and anxiety, and Mr Lau’s mother wrote a letter in which she stated that she believed that his alcohol and drug use were self-medication for undiagnosed mental health conditions. Mr Chifuntwe had no reduction of moral culpability for any reason.

140. Bearing these differences in mind, I do not consider that the comparative cases provide support for the Director’s contention that a non-parole period of imprisonment for one year is manifestly inadequate. Conclusion

141. Each of the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act are relevant to the imposition of the non-parole period in the present case.

142. As the sentencing judge recognised, the offence of armed robbery is a very serious offence, which “almost invariably” causes harm, both physical and mental, and which deprives victims “of property they have worked hard to obtain”: Ruwhiu at [29], citing R v Coleman [2021] ACTSC 349 at [31]-[32]. The sentencing judge also correctly recognised that, whilst the offences of burglary and theft were not as serious as the offence of aggravated robbery, they too “involved a trespass into someone else’s property, whether business premises or a residence”: Ruwhiu at [34]. Those offences may also “engender feelings of lack of safety, even violation, by the victims and disturbs the peace and harmony of the community”: Ruwhiu at [34]. It is necessary for the non-parole period to recognise the harm caused by each of the offences, to denounce the respondent’s conduct, to ensure that the offender is punished for his actions and made accountable for what he has done, and to ensure that the sentence imposed is of sufficient gravity to deter him and others from engaging in similar conduct.

143. However, it must also be borne in mind that the punishment to be imposed must be “just and appropriate”: s 7 of the Crimes (Sentencing) Act. Where, as here, an offender’s moral culpability is reduced by reason of his or her early experiences, the weight to be given to punishment or denunciation may be less than that required for an offender whose offending has no connection with those early experiences: Bugmy (No 2) at [44]. This is not to say that the respondent bears no moral responsibility for his actions. However, in view of the offender’s background, and its connection with the offending conduct, it was open to the sentencing judge to conclude that the need for punishment, denunciation and general deterrence were each reduced to some extent.

144. The respondent’s background is also relevant to his prospects of rehabilitation. As the respondent’s counsel acknowledged, since the respondent first started committing criminal offences in 2020, he has breached every form of conditional liberty which he has been afforded. This is a serious matter, which must be taken into account when assessing the offender’s prospects of rehabilitation.

145. In respect of another offender, such breaches may have been fatal to a positive finding concerning prospects of rehabilitation. However, the respondent’s prospects of rehabilitation need to be assessed as against his entire history, and not just his conduct since he lost the support and structure that had been provided to him by his employment. That history demonstrates that the respondent was able to overcome his background of abuse and addiction as a young person, and to live a productive life for over two decades. In those circumstances, it was open to the sentencing judge to conclude that, with the assistance of supervised release, he may again be able to overcome his drug addiction and to again live as a productive member of the community. It was open to the sentencing judge to consider that the respondent’s enthusiasm for rehabilitation, and the support that he received from his sister, provided a sufficient basis for rehabilitation to carry real weight in the sentencing process.

146. The form of conditional liberty granted by the sentencing judge, namely, a non-parole period rather than a suspended sentence, is also relevant to an assessment of whether it was open to the sentencing judge to conclude that the sentence imposed meets the purposes of sentencing. There is no guarantee that the respondent will be granted parole after serving twelve months of imprisonment. Whether the offender is granted parole at a time after the expiry of the non-parole period will be a decision for the Sentence Administration Board. That decision will be made with the benefit of contemporaneous information concerning the respondent’s prospects of rehabilitation, including his conduct in custody and whether he has successfully participated in any appropriate programs to address his offending behaviour whilst in custody. (The Court received evidence in respect of these matters in the event that the appeal was allowed. This evidence cannot be taken into account in determining whether the sentence imposed was manifestly inadequate.)

147. Finally, in assessing the weight to be given to the various sentencing purposes, it was also open to the sentencing judge to consider the time that the respondent had been incarcerated in respect of unrelated offending. As the Director properly acknowledged, the respondent’s total period in custody was required to be taken into account in applying principles of totality: see O’Brien v The Queen [2015] ACTCA 47 at [26]. To do so was not to “artificially add” the respondent’s period in custody for unrelated offending to the sentences to be imposed in respect of the present offending (as was submitted by the Director). Rather, as the sentencing judge emphasised, the effect of this consideration was to “moderate” the sentences for the present offending, so as to ensure that the sentence did not “overwhelm [the respondent’s] growing sense of the need for rehabilitation”: Ruwhiu at [98] – [99].

148. It clear both from the sentencing judge’s decision, and the additional explanation that his Honour provided to the respondent concerning his reasons for imposing the particular sentence, that the sentencing judge was striving to craft a sentence which balanced the need for denunciation, punishment and general deterrence with the need to support the respondent’s rehabilitation. In balancing these competing purposes, it was open to the sentencing judge to place greater weight on the need for rehabilitation, and less weight on punishment, denunciation and deterrence, when determining the non-parole period as compared to the head sentence.

149. The non-parole period imposed, of one years’ imprisonment, was undoubtedly lenient. Other judges may have imposed a higher non-parole period. The Director’s appeal was understandable in view of the objective seriousness of the offences, particularly the aggravated robbery. However, the setting of a non-parole period “remains very much in the discretion of the sentencing judge”: Lowe at 625. In the exceptional circumstances of this case, I am not satisfied that a non-parole period of imprisonment for one year is “so unreasonable or plainly unjust” that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505; see also Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] (Gleeson CJ and Hayne J) and [58] (Kirby J, Gaudron and Gummow JJ agreeing).

150. In so finding, I have not found it necessary to consider the respondent’s submission that, where an offender is to be deported, less weight should be given to general deterrence and the protection of the community because the release of such an offender poses no risk to the Australian community.

151. The sentencing judge only took into account “the burden that the prospects of deportation would impose on [the respondent’s] imprisonment”: Ruwhiu at [131]. In other words, the sentencing judge did not purport to mitigate the sentence on the basis that the respondent would in fact be deported. His Honour’s finding was limited to the subjective impact of the respondent’s apprehension that he might be deported. The Director did not allege that there was any patent error in this finding. Rather, the Director submitted that the sentencing judge had afforded too much weight to this consideration. I consider that it was open to the sentencing judge to impose a non-parole period of imprisonment for one year, even if this consideration is given relatively little weight.

152. In all of the circumstances, the Director has not established that the non-parole period imposed was manifestly inadequate. Accordingly, the appeal should be dismissed. RANGIAH J

153. For the reasons given by Loukas-Karlsson J and Baker J, the appeal should be dismissed.

I certify that the preceding one hundred and fifty three [153] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 3 May 2023