16 April 2007: The two offences in the aged care home.
21 May 2007: The stealing offence at the Rushcutters Bay unit.
24 July 2007: Ms Thorpe arrested and incarcerated in respect of the April 2007 charges.
19 August 2007: Ms Thorpe's fingerprints at the Rushcutters Bay unit identified.
24 January 2008: Donovan DCJ sentenced Ms Thorpe in respect of the April 2007 charges.
22 October 2008: Ms Thorpe charged in respect of the May 2007 Rushcutters Bay offence.
11 August 2009: Ms Thorpe sentenced by Sorby DCJ to imprisonment for 3 years in respect of the Rushcutters Bay offence.
37 That delay was capable of producing a serious injustice. In R v Todd (1982) 2 NSWLR 517, the offender and a companion committed a number of serious offences in Sydney in January 1974. They then made their way to Queensland where, eight days later, they committed further offences. They were arrested in Queensland and Todd was ultimately put on trial in December 1974. He was convicted and, having served his sentence, was released to parole in January 1979. Upon release, he was arrested and extradited to New South Wales to face trial in respect of the earlier offences. Having been convicted in New South Wales, he was then sentenced. The sentencing Judge took the view that the sentences served in Queensland were irrelevant to his task. On appeal, Street CJ (Moffitt P and Nagle CJ at CL agreeing) said this: (at 519)
"I have formed the conclusion that his Honour fell into error in thus placing aside the sentences served by the appellant in Queensland as having no relevance except in so far as they may shed some light upon his present state of rehabilitation. The fact that the crimes were committed in Queensland operated, of course, to expose the appellant to the processes of the Queensland criminal law. This involved an inevitable deferment of the processes of the New South Wales criminal law being put into effect and carried through against him in this State. But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. With a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. ..."
38 His Honour added: (at 519)
"If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes . It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character ."
(emphasis added)
39 His Honour then dealt with the impact of such an approach upon the non parole period. He said: (at 519)
"In the matter of the non-parole period a second sentencing judge must adjust, or give consideration to the adjustment of, the non-parole period in the light of the totality of the criminality involved in both the offences for which the person is currently in custody as well as the charges currently before the court. This flows directly from the statute. ..."
40 The same issue arose a decade later in the High Court in Mill v The Queen (1988) 166 CLR 59. Again, it was a case involving offences committed in different states (Victoria and Queensland). On release to parole in Victoria, the offender was extradited to Queensland. The High Court gave a joint judgment in which it reaffirmed the totality principle, commending a statement of that principle that was in these words: (at 63)
"... The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
41 The Court then considered the application of that principle in R v Todd (supra [37]). It said this: (at 65/66)
"... In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. ... The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence ... "
42 The Court identified the question that the sentencing Judge should ask where a sentence has been deferred. It said this: (at 66)
"In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. ..."
43 The same principle should be applied where the reason for deferment is delay in prosecution, rather than an interstate crime. Here, plainly it would have been better and fairer had Ms Thorpe been charged with the s 148 offence before the sentencing hearing conducted by Donovan DCJ in January 2008, so that all offences were dealt with at the one time. Had that been done, the sentence under appeal (which had a 7 year maximum penalty) would probably have been dealt with by a fixed term with partial accumulation upon the sentences imposed in respect of the more serious charges.
44 However, that having not occurred, it was important that the second Judge address the question identified by the Court in Mill v The Queen (supra [40]). Here, no complaint was made concerning the sentence determined by his Honour (3 years imprisonment) or the overall term (5½ years). The complaint was directed to the non parole period. The consequence of the structure selected by his Honour (that is, the degree of accumulation and the commencement date) was a non parole period which represented 81.8% of the overall term. That, I believe, was an unintended consequence and ultimately unfair.
45 Section 44 of the Crimes (Sentencing Procedure) Act is headed "Court to set non-parole period". It is framed in terms of sentencing an offender for "an offence" (singular). It does not, as such, deal with multiple offences. Nonetheless, the section, including the heading, evinces a legislative intention that there should be a particular relationship between a sentence imposed and the non parole period (not less than 3:1) unless there are special circumstances, in which case there is a requirement to give reasons (s 44(2)). You would expect the same relationship (3:1) in the context of multiple offences. You would also expect reasons, were it thought necessary to depart from that relationship.
46 There can be no doubt that, had Ms Thorpe been sentenced for all offences at the one time, she could have expected, at the very least, that the statutory relationship (3:1) would be maintained. Asking the question identified by the High Court in Mill v The Queen (supra [40]), the approach by Sorby DCJ should have been no different. Accordingly, there was, in my view, a need to adjust the sentence.
47 However, there was also the finding of special circumstances "to deal with the drug addiction problem" of the applicant. The words of James J (Giles JA and Hislop J agreeing) in Cicekdag v Regina [2007] NSWCCA 218, are apposite: (at [47]-[49])
"47. It was submitted by counsel for the applicant that, when all the sentences were taken into account, the sentencing judge had failed to carry into effect an intention to vary the usual ratio between non-parole periods and balances of terms, so as to take into account both of the two factors the sentencing judge had identified as requiring such a variation, namely the applicant's mental condition and the consequent need for rehabilitation and supervision, and the accumulation of sentences.
48. In my opinion, this submission by counsel for the applicant should be upheld.
49. If the only factor identified by the sentencing judge as requiring a variation of the usual ratio had been the accumulation of sentences, then the imposition of a collection of sentences in which the total parole period was only slightly less than one-third of the total of the non-parole periods might well have been regarded as a sufficient implementation of his Honour's sentencing intention. However, his Honour also identified as a factor requiring a variation of the usual ratio the applicant's mental condition and his consequent need for rehabilitation and supervision and the sentences imposed by his Honour, when considered in their totality, did not make any allowance for this factor."
48 Here, counsel for the applicant in submissions sought a small departure from the statutory ratio to reflect the finding of special circumstance (72% cf 75%), rather than the 66.6% that his Honour had used in fashioning the sentence that he imposed for the May 2007 offence. Such a departure would reduce the non parole period by about 4 months (24.1.10 to 23.7.11 cf 24.1.10 to 23.1.12). That reduction would allow a parole period of 18 months. In my view, that submission represents a modest reduction and is reasonable. It gives expression to the finding of special circumstances. The argument of the Crown that such an adjustment would deplete the non parole period, so that the punishment for the May 2007 offence would be inadequate, was answered by the Court in Mill v The Queen. The Court in that case addressed the same consequence when it adjusted the sentence after allowing the appeal. It said this: (at 67)
"... It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries."