TL v R

Court of Criminal Appeal (NSW)|2017-11-21|Before: Hoeben CJ, Davies J, Adamson J

Solicitors: R Cummins (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/28863; 2013/114255; 2013/77961 & 2013/200778 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 17 December 2015 Before: Culver DCJ File Number(s): 2013/28863; 2013/114255; 2013/77961 & 2013/200778

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was found guilty of four offences following three back to back jury trials heard before her Honour Judge Culver as follows:

Trial One: Offence 1: Break and enter a dwelling house and commit a serious indictable offence therein, namely larceny, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 14 years' imprisonment. Offence 2: Break and enter a dwelling house and commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely that he was in company with another person contrary to s 112(2) of the Crimes Act. The maximum penalty for this offence is 20 years' imprisonment. There is a standard non-parole period of five years.

Trial Two: Offence 3: Break and enter a dwelling house and commit a serious indictable offence therein, namely larceny, in circumstances of aggravation, namely that he was in company with another person, and in circumstances of special aggravation, namely that he was armed with a dangerous weapon contrary to s 112(3) of the Crimes Act. The maximum penalty for this offence is 25 years' imprisonment. There is a standard non-parole period of seven years.

Trial 3: Offence 4: Wound a person with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act. The maximum penalty for this offence is 25 years' imprisonment. There is a standard non-parole period of seven years.

On 17 December 2015 he was sentenced by Judge Culver to an aggregate sentence of imprisonment of 13 years and six months commencing 7 February 2015 and expiring 6 August 2028 with a non-parole period of eight years and six months expiring 6 August 2023. The indicative sentences were as follows: Offence 1: 18 months with a non-parole period of 12 months; Offence 2: 22 months with a non-parole period of 15 months; Offence 3: Eight years and six months with a non-parole period of five years and six months; Offence 4: Seven years with a non-parole period of four years and six months.
The applicant now seeks leave to appeal against the sentence imposed on the following grounds:
The sentencing judge erred in taking into account that the applicant was on parole when considering the objective seriousness of the offences.
The applicant has a justifiable sense of grievance by reason of the disparity between his sentence and that imposed on co-offender Andy Le.
The sentence imposed was manifestly excessive.

Offence 1:

Sometime between 11.00am and 4.30pm on Thursday, 15 November 2012 an unknown co-offender gained entry to a house in Green Valley via a rear window. The unknown co-offender was described by a witness as being of Asian appearance, young looking and wearing a black baseball cap, black long sleeved jacket and long black pants. The unknown co-offender was seen running from the property holding something to his chest with both hands. The unknown co-offender got into the front passenger's seat of a waiting car. The applicant then drove the car away. The car was described by the witness as a grey or silver coloured Toyota Camry with the registration plate AR92FR. The car was observed to have a rear spoiler and the driver's side door was "a little bit smashed".
The house had been ransacked and two white envelopes were stolen from underneath drawers in a closet in the main bedroom. One contained $5,000 cash and the other contained $4,000 in cash. Investigations revealed the car was registered to Huu Doi Ta of 316 Polding Street, Fairfield. Huu Doi Ta is the applicant's uncle. The applicant lived at that address at that time.
On the morning of Friday, 16 November 2012, police conducted surveillance of the applicant's address and observed the car referred to above parked in the driveway of the premises. At approximately 9.45am the applicant entered the driver's seat of the car and drove from the premises. Police followed the car for a short period before pulling it over. The applicant was arrested and taken to Fairfield Police Station. The police noticed on the Toyota Aurion a dent in the driver's side door and P plates positioned on the car.
At Fairfield Police Station the applicant participated in an electronically recorded interview with police. The applicant denied committing the offence or being anywhere near Green Valley on 15 November 2012. He said that: (a) he used the car because his uncle does not; (b) the car was with him on 15 November 2012; (c) he had possession of the only set of keys to the car; (d) he attended the KFC at Villawood on 15 November 2012 at approximately midday to purchase lunch for his girlfriend, Jennifer Ly; and (e) he sent her a text message asking her what she wanted from KFC.
Police obtained CCTV footage from Villawood KFC on 15 November 2012. The car can be seen entering the drive-thru at 12.20pm. The applicant was driving the car with a passenger in the front seat. The passenger wore black clothing and an aqua coloured baseball cap.

Offence 2:

About one month later at approximately 2.15pm on Tuesday, 11 December 2012, a silver car pulled up on the grass outside a house in St John's Park. A neighbour went outside and spoke to the applicant. The neighbour described the applicant as being of Asian appearance, approximately 170 cm tall, medium build, 20 to 25 years old, well-groomed and fit-looking with light brown skin, nice cut black short hair, broad shoulders and wearing a light coloured t-shirt with a white number 3 in the centre. The neighbour saw a pair of hands from the unknown co-offender on the other side of the fence lifting up a thin black television. The unknown co-offender was wearing black/grey gloves.
Another witness, being a delivery truck driver, also saw the unknown co-offender pass the television from over the fence to the applicant. The delivery truck driver described the applicant as being of Asian appearance, medium build and standing near a car. The applicant took the television, opened the back door of the car and put the television inside. The neighbour walked back into her house and quickly wrote down the number plate of the car being AR92FR. The delivery truck driver saw the unknown co-offender run from the direction of the house. The truck driver described the unknown co-offender as a young Asian male, wearing a hat and long pants, with a small bag across his shoulder. The witness telephoned the owner of the house who returned home.
The owner reported a 60 inch 3D LED Smart television, its remotes, wallets and jewellery having been stolen from his home. The total value of that stolen property was approximately $16,000.
Police attended and observed that entry to the house had been gained through a rear window. Investigations revealed the car that was described by the neighbour was registered to Huu Doi Ta of 316 Polding Street, Fairfield.
On 12 December 2012 police pulled over the car with the applicant driving it at the time. The applicant was taken to Fairfield Police Station where he participated in an electronically recorded interview. He denied knowledge of the stolen television and denied committing the offence. He stated that there was "no way" his vehicle would ever be around the St Johns Park or Bonnyrigg area. The applicant stated that he used the vehicle because his uncle does not really drive it and that he had possession of the only set of keys. He stated that he had the vehicle all day on 11 December 2012 and that he and his girlfriend, Jennifer Ly, were shopping all day. He recounted their movements.
The applicant declined to participate in an identification parade. Police seized the applicant's phone. The locations recorded on the phone for 11 December 2012 did not support the applicant's version of his movements on that day.
On 12 December 2012 police were granted a search warrant for the premises in Polding Street. At approximately 2.50pm on that date they executed the warrant. The police located the stolen television and remotes in the applicant's uncle's bedroom. The applicant and his uncle were cautioned and questioned about the stolen television and remotes. They said that the applicant had purchased the television and remotes for the uncle for $700 from a friend in Canley Heights a couple of days earlier. The applicant stated he collected the television and remotes in his car.
The television and remotes were seized by police and identified by the owners as the ones that were stolen, and then returned to them.

Offence 3:

At approximately 12.30pm on 16 October 2012 the applicant and Andy Ly (also referred to as Andy Le), the co-offender, together with another unknown co-offender, gained entry to a house in Fairfield. Jennifer Vo, the victim, was home alone asleep in her bedroom located on the second storey of the house with her bedroom door locked. The three offenders gained entry to the victim's bedroom by the unknown co-offender kicking the bedroom door open. The victim described the applicant as being of Asian appearance, muscular, tanned and armed with a dark brown-handled knife with a silver blade approximately 25 cm long.
The victim stated that the applicant "seemed pretty arrogant". The victim described the co-offender, Andy Ly, as of being Asian appearance, pale and armed with a light brown handled knife with a silver blade approximately 25 cm long. The victim further described the unknown co-offender as being of Middle Eastern appearance, approximately 185 cm tall with "a bit of scruff on his face", armed with a black gun and wearing thick gloves. The three men were wearing similar yellow and orange work t-shirts and work boots.
The three men entered the victim's bedroom. The unknown co-offender pointed the gun at the victim in his right hand and told her to get up. He demanded to know the whereabouts of a safe. The victim led the three men to her father's bedroom, also located on the second storey of the house. The victim showed the three males a safe which was bolted to a cabinet inside a closet in her father's bedroom. The unknown co-offender told the victim to lie face down on the bed. The victim complied and laid face down on her father's bed.
The applicant walked around the house and went through items of property. He tipped the contents of the victim's bag on her bed. The co-offender, Andy Ly, stood near the victim and went through papers on the victim's father's desk. The unknown co-offender attempted to remove the safe from the cabinet to which it was bolted. At one point the applicant told the victim "we're not gonna hurt you".
The unknown co-offender asked the victim if she had any tools. The victim told him that they were in the garage. The unknown co-offender went down to the garage and returned with a tool bag. The unknown co-offender shuffled through the tool bag before going back downstairs and then returning to the victim's father's bedroom.
The applicant entered the victim's father's room and examined the safe. The applicant told the unknown co-offender that they needed a spanner. The unknown co-offender and the applicant looked through the tool bag and located a spanner. They unscrewed the safe from the cabinet and picked it up. The three men then told the victim to go downstairs. The men accompanied the victim downstairs whilst the unknown co-offender carried the safe.
The unknown co-offender told the victim to tell her father words to the effect of "not to mess with the wrong people" or that "he had pissed the wrong people off". The unknown co-offender told the victim not to call the police and to lie face down again on the floor, which she did.
The co-offender stood near the victim whilst the applicant and the unknown co-offender opened the front door of the house and looked outside for a few minutes. The three men then ran from the house through the front door whilst carrying the safe. A black Samsung Galaxy mobile phone, charger and case were also stolen.
The victim called her brother, Brian Vo. The victim closed the gate, the roller shutters and checked all doors were locked. Brian Vo telephoned the victim's father who telephoned the police emergency line. Police attended and observed an open red metallic toolbox on the floor of the father's bedroom.
The victim participated in a number of photo line-ups at Fairfield Police Station. On 15 February 2013 the victim selected the co-offender, Andy Ly, as a perpetrator of the offence. On 4 March 2013 the victim selected a person and nominated him as the unknown co-offender. The person selected by the victim was in custody at the time of the offence. On 6 March 2013 the victim selected the applicant as one of the perpetrators of the offence.
Investigations revealed that the co-offender, Andy Ly, was using the stolen mobile phone. The phone charger and case were ultimately pawned by another person.
The applicant was the boyfriend of Andy Ly's sister.
Juvenile Justice Centre call records and visitor records were available to the police to reflect the close relationship between the applicant and the co-offender, Andy Ly.
On 14 March 2013 the applicant was arrested and taken to Parramatta Police Station. He was offered the opportunity to participate in an electronically recorded interview with police but he declined.

Offence 4:

On 10 December 2012 at approximately 9.30pm Jestin Nguyen arrived at City Hunter at Burwood to play computer games with six others. The group had been playing games for about an hour when one of the group, Tommy Ha, received a call on his mobile phone from a number he did not recognise. Andy Ly identified himself on the phone to Tommy Ha and asked to speak to Jestin Nguyen.
The victim knew Andy Ly as they attended high school together. At that time they lived close to one another and were friends on Facebook. The victim described Andy Ly as always wearing a brown coloured Gucci cap.
The victim called Andy Ly back on his mobile phone. Andy Ly identified himself on the phone to the victim and asked him to come and talk to him face to face. The victim hung up and spoke with his friends. The victim then called Andy Ly back on his mobile phone and agreed to meet him at Bass Hill Plaza.
At approximately 11.00pm Sandeth Chea drove the victim and another person in his car. Tommy Ha drove with three others in his parents' car. Alan Heng drove with two others in his parents' car. The victim's group initially parked at Bass Hill Plaza car park near Target and waited. During this time the victim got out of Sandeth Chea's car and entered Alan Heng's parents' car. The victim's group then drove and parked at the car park located between the Twin Willows Hotel and Hungry Jacks. The applicant, Andy Ly, and a third unknown male drove in a car described by witnesses as a fairly new looking whitish/grey silver/grey coloured four door sedan which looked similar to a 2006 Toyota Camry. That car was depicted in CCTV footage from the Twin Willows Hotel at the relevant time. The registration plate was not visible and none of the witnesses noted it.
The description of the car was consistent with the applicant's car, being a silver/grey coloured 2007 Toyota Aurion sedan registration AR92FR. That car, as noted earlier, was registered to Huu Doi Ta with whom the applicant lived at the Polding Street address. The car was photographed parked at the applicant's address on 7 and 10 January 2013 with green P plates displayed. A form of demand had been placed on Huu Doi Ta and he confirmed that the applicant had used the car in the past.
The applicant's car arrived at the car park located between the Twin Willows Hotel and Hungry Jacks. The victim observed Andy Ly in the front passenger seat through the car window which was open. The victim observed that Andy Ly was wearing his Gucci cap, as previously described.
The victim got out of Alan Heng's car and walked over to the applicant's car. Andy Ly got out of the car and asked the victim if he was "trying to get with Annie". Annie Tran was the girlfriend of Andy Ly and a friend of the victim. The three communicated with each other through Facebook.
A conversation ensued which concluded with Andy Ly asking the victim to go with him to Annie Tran's house to talk with her face to face. The victim felt worried but described Andy Ly as talking normally and he did not think anything was going to happen. In those circumstances the victim agreed to go with Andy Ly. The applicant was the driver of the car in which Andy Ly was travelling. The victim returned to his friends and told him he was going to see someone. The victim then got into the applicant's car and sat in the back seat on the driver's side. Andy Ly continued trying to speak with the victim about Annie Tran.
The applicant drove the car through Fairfield to Endeavour Park. The victim recognised the park as he had played sports there during high school. The applicant drove on the roadway into the park and stopped about halfway down into the park. Andy Ly told the victim to get out. The victim got out and walked to the front of the car. The car lights were turned off. The victim heard the car door open from Andy Ly's side and straight away felt a hit in his back with something solid. The victim felt immediate pain. The victim looked behind him and saw Andy Ly wearing his cap. He attempted to run but only got a few steps before he was tackled to the ground. The victim landed on his right side and put his left arm up in an attempt to protect himself. All three offenders then assaulted the victim. He felt punches and kicks across his face and body and cuts from something "big and sharp". The victim was bleeding and thought he was going to die. The offenders then drove away in the applicant's car.
The victim picked himself up and tried calling people on his mobile phone. He managed to tell a friend that he was at Endeavour Park. The victim waited for his friends and kept calling them to see how far away they were. Two of the victim's friends picked him up and Alan Heng drove the victim to Liverpool Hospital. He remained in hospital for five days and received treatment for numerous injuries including stab wounds to his left arm and scapular region.
The victim sustained tendon and muscle lacerations from wounds penetrating the dermis and epidermis. He required operative management for repair of several structures. These wounds became infected necessitating further treatment in hospital. Dr Naran Prasad expressed the opinion that "the injuries were potentially serious in nature as upper limb vascular injury can be limb or life threatening".
The victim told his friends not to tell the police because he was scared that the three men would come back to him or do something to his family. The victim originally told the police that the offence was committed by three people he did not know in Cabramatta Park because he was scared for himself and his family. The victim's friends were similarly afraid and followed suit in not giving further details to the police initially.
On 9 January 2013 the applicant attended Cabramatta Police Station voluntarily. He participated in a further electronically recorded interview. He said that he had lived at the Polding Street address for about six months. Before that he lived in Darwin. He said he had been in a relationship with Jenny Ly for about six months. He only met Andy Ly, Jenny Ly's brother, when the applicant started dating Jenny Ly. He said that when he would go to Jenny Ly's house he would say, "hi" to Andy Ly. He had also taken Andy Ly to McDonald's once or twice. Otherwise he had nothing to do with him, they never went out together and Jenny Ly did not hang around with Andy Ly as she was always with the applicant.
The applicant told the police that the last time he had seen Andy Ly was on 14 December 2012 when he went to pick Jenny Ly up from her house and take her out for dinner. Prior to that he had not seen Andy Ly for maybe two months. He said he did not communicate with Andy Ly at all. He just said "hi" when he saw him and that was it. He said he did not call Andy Ly and Andy Ly did not call him. He said there is no way Jenny Ly would have given Andy Ly the applicant's number as the applicant is really strict on people having his number. He said only Jenny Ly had his mobile phone number. Even his mother did not have his mobile phone number. He said he did not like people contacting him. He said he used his phone to speak with Jenny Ly when she was at work but he did not use his phone for anything else. He furthermore said that he and Jenny Ly were the only people who knew how to access the passcode to access his phone.
The applicant said he did not drive because his licence had been suspended and Jenny Ly had to drive him around. He said he only drove the car maybe twice, "most recently in September or something". The applicant said that the car was black. He said that his uncle had sold the car in November and he had not seen the vehicle lately. He believed that his uncle may have sold it. He said he did not know where his uncle lived beyond "somewhere around here". The applicant also said that none of his family lived with him at Polding Street. He said that he did not know the victim.
Police extracted phone evidence. Call charge records revealed extensive contact between the applicant's phone and Andy Ly's phone including contact in the hours leading up to the offence.
On 10 December 2012 between 8.00pm and midnight the applicant's mobile phone was highly active and transmitted to numerous cell towers which provided mobile coverage in particular areas. The applicant's phone was picked up on the Bass Hill cell tower at 11.13pm, 11.15pm, 11.16pm, 11.17pm, 11.18pm and 11.26pm. The applicant contacted his girlfriend's phone at 10.42pm, 10.50pm and 11.55pm. Jenny Ly's phone contacted the applicant's phone at 8.37pm, 10.30pm and 10.37pm.
A number of incriminating words and phrases were extracted from the user dictionary on the applicant's phone. They included "needs his address hangs around that guy", "need your assistance tonight", "need your help tonight", "hostage right now", "got machete", "visit someone need sharp one for tonight", "want use big one", "home within half an hour babe stressing out miss you", and "mention anything your sister".
All of the text messages sent from or received by the applicant's mobile phone on 10 December 2012 had been deleted prior to seizure by police. Police provided expert evidence that there was a correlation between the words and phrases appearing in the user dictionary of the mobile phone and the words and phrases typed into the virtual keyboard of that mobile phone. The expert evidence furthermore indicated that these words appeared in the user dictionary of the applicant's mobile phone between 6 December and 12 December 2012.
On 23 August 2013 Andy Ly pleaded guilty to this offence at Parramatta District Court.

Remarks on Sentence

After setting out the factual background, her Honour discussed the general nature of the offences with particular reference to general deterrence and the decision of this Court in R v Ponfield (1999) 48 NSWLR 327.
The next section of the Remarks on Sentence (ROS), section 5, was headed "Particular severity of the offences". Her Honour then considered for each of the four offences where each lay in the range of objective seriousness with particular attention to offences 2, 3 and 4, each of which carried a standard non-parole period.
In the course of so doing the sentencing judge noted that, at the time of each of the offences, the applicant was on parole for a Commonwealth offence of importing a commercial quantity of a border controlled precursor. The applicant had been sentenced on 12 January 2012 in the Northern Territory for that offence to a period of imprisonment for three years and one month with a non-parole period of ten months. The applicant was released on parole on 11 April 2012. The four offences charged were committed on four days in October, November and December 2012 before the expiration of the parole period on 11 July 2014.
In relation to offence 1, her Honour found that it was not a particularly severe example of such an offence and, if dealt with alone, it might have been disposed of summarily. In relation to offence 2, her Honour found that it fell below the middle of the range of seriousness as referred to in s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour found that offence 3 fell above the middle range of seriousness as did the offending in offence 4.
The ROS then dealt with the applicant's criminal history and the significance of the breach of parole for the Commonwealth offence.
Her Honour dealt with subjective matters relating to the applicant. Her Honour found that the applicant was 20 years old at the time of the offences, and that young age enhanced his prospects of rehabilitation and caused the Court to place emphasis on that purpose of sentencing.
The applicant did not give evidence at the sentencing hearing. Her Honour was dependent, therefore, on two pre-sentence reports dated 21 April 2015 and 1 September 2015 and two psychological reports from Tim Watson-Munro of 27 August and 14 October 2015, together with letters to the Court from members of the applicant's family, his girlfriend and the applicant himself.
The evidence disclosed that the applicant completed year 12 at school. He thereafter commenced, but did not finish, some TAFE programs, and had undertaken casual work within the air conditioning repair industry.
He started gambling at the age of 18 years and that became problematic. He accumulated a gambling debt of approximately $5,000 and borrowed money from "loan sharks" to fund his gambling. It was the need to repay the loan sharks which, he told the author of the pre-sentence reports, led to the commission of the break and enter offences.
The applicant denied using illicit drugs or abusing alcohol. He said that he had been gang raped in prison in the Northern Territory, and in May 2015 whilst on remand for the present matters had been forced to engage in sex with his cell mate who held a blade to his head. That led to the applicant being placed in protective custody after he reported that sexual assault.
The sentencing judge found that the applicant had good prospects of rehabilitation.
Her Honour then went on to consider the co-offender Andy Ly and the sentences imposed on him. Those matters will be discussed in greater detail when ground 2 is later considered.
Finally, her Honour concluded that there should be a degree of accumulation and partial concurrency between the sentences, noting that the offences were unrelated to each other and involved discrete episodes of criminality. Her Honour found special circumstances because of the applicant's youth, the impact of his experience in custody and need for rehabilitation particularly with regard to counselling for gambling addiction.

Ground 1: The sentencing judge erred in taking into account that the applicant was on parole when considering the objective seriousness of the offences

Submissions

The applicant drew attention to the discussion by the sentencing judge of the fact that the applicant was on parole at the time of the offences when her Honour was addressing the objective seriousness of those offences. The applicant submitted that it is an error, when assessing the objective seriousness of the offence, to take into account a matter personal to an offender such as that the offending occurred while an offender was subject to conditional liberty. Reference was made to Boney v R [2015] NSWCCA 291 at [18] - [20]; Sharma v R [2017] NSWCCA 85 at [65]-[67]; and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].
The Crown submitted that since the introduction of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) it was well recognised that the fact that an offender was on conditional liberty is not relevant to the assessment of the objective gravity of an offence. The Crown submitted, however, that a close reading of the ROS disclosed that her Honour did not fall into error.
The Crown drew attention to the written submissions provided to the sentencing judge by counsel who appeared for the applicant. Under the heading "Enhancement of seriousness or aggravation of the offence" it was said that the offences were committed while on parole and while the applicant was on conditional liberty. Reference was made to Ponfield. The written submissions then went on to say this: These two concepts above, one and two, overlap and the court must not doubly aggravate the offence, also they do not affect the assessment of objective seriousness of the offence.
Further on in those written submissions where offence 2 was being dealt with, reference was again made to the offence being committed whilst the applicant was on parole and on conditional liberty. Again, the written submissions said this: These two concepts above, one and two, overlap and the court must not doubly aggravate the offence, also they do not affect the assessment of objective seriousness of the offence.
The Crown relied on this to support its submission that the sentencing judge would not, in the light of those submissions, have wrongly regarded the commission of the offences while on parole as aggravating the objective seriousness of the offending.
In relation to offence 1 the Crown submitted that it was in the context of discussing the circumstances or factors referred to in Ponfield that her Honour made reference to the moral culpability of the applicant by the fact that he was on parole at the time of the offence.
The Crown said that, when discussing the other offences, her Honour again referred to moral culpability in relation to the breach of parole. In that way the matter was distinguishable from the position in Boney and Sharma.

Consideration

As the Crown correctly asserts, it is well recognised that the fact that an offender is on conditional liberty at the time of offending is not relevant to the assessment of the objective gravity of the offence: Muldrock at [27]; Sharma at [65]-[67].
Although the Crown relied on the sentencing judge's constant reference to moral culpability to argue that the assessment of the objective seriousness did not include the fact that the offender was on conditional liberty at the time, I consider that on a proper reading of the ROS her Honour did regard the breach of conditional liberty as an aggravating factor when assessing objective seriousness. Her Honour's reliance on R v Ponfield without reservation as to its continuing status as an authority (see Simpson J as her Honour then was in Mapp v R [2010] NSWCCA 269; 206 A Crim R 497 at [10]) strengthens that view.
As appears from Boney and Dickinson v R [2016] NSWCCA 301 at [13]-[19], both cases involving the same issue as in the present case, it is necessary to read the ROS as a whole, making allowance for the fact that the ROS may be delivered ex tempore. However, that was not the case here.
In my opinion, a fair reading of the ROS leads to the conclusion that the sentencing judge has wrongly included the breach of conditional liberty as a factor informing the objective seriousness of the offending. The particular matters that support that view are these: (1) The sentencing judge has considered the decision in Ponfield without regard to what has subsequently been said about its status as an authority, and with no reference to Muldrock, Sharma and other similar decisions; (2) Section 5 of the ROS is headed "Particular severity of the offences", and in respect of each offence the sentencing judge came to a conclusion about the objective seriousness of the offence having also discussed the breach of conditional liberty. That matter is heightened in relation to offences 2, 3 and 4 where there was a standard non-parole period for those offences, and the judge assessed the objective seriousness by reference to the middle range of seriousness as contemplated by s 54A(2) of the Sentencing Act; (3) The sentencing judge discussed other matters which went to the moral culpability of the offender when dealing with subjective matters pertaining to the offender such as his gambling addiction. (4) Although the defence submission to the sentencing judge, relied on by the Crown in this Court ([67] and [68] above), made clear that the aggravation from committing the offences whilst on parole did not go to objective seriousness, it cannot be assumed that the submission was accepted by the sentencing judge when no mention of it was made by her Honour, and when her Honour's basis for reference to that aggravating feature was the decision in Ponfield.
In my opinion, this ground is made out.

Ground 2: The applicant has a justifiable sense of grievance by reason of the disparity between his sentence and that imposed on co-offender Andy Le

Co-offender - Andy Ly

Andy Ly was born on 10 September 1995 and was aged 17 years at the time of the offending. He was charged with three offences. Two of those offences related to the offending in what has been described as offences 3 and 4 above. However, in relation to the offending the subject of offence 3, Andy Ly was charged with break and enter and commit a serious indictable offence, namely robbery (as opposed to larceny) in circumstances of aggravation but he was not charged with an offence under s 112(3) involving circumstances of special aggravation. The applicant was charged under s 112(3). An offence under s 112(3) carries a 25 year sentence with a seven year SNPP whereas the offence under s 112(2) carries a 20 year sentence with a SNPP of 5 years.
In relation to offence 4 of wounding with intent to cause grievous bodily harm each of the applicant and Andy Ly were charged with the same offence.
Andy Ly was also charged with a separate offence not involving the applicant, namely, an offence of reckless wounding which took place on 13 December 2012. That offence carries a maximum penalty of seven years' imprisonment with a standard non-parole period of three years.
Andy Ly was sentenced by Judge Hanley on 6 September 2013 to an aggregate sentence of imprisonment for seven years with a non-parole period of four years. The indicative sentences were as follows: For the offence of aggravated break and enter and commit a serious indictable offence, a term of four years with a non-parole period of two years and four months; For the offence of wounding with intent to inflict grievous bodily harm, a sentence of five years with a non-parole period of two years and ten months; For the offence of reckless wounding, a sentence of two years with a non-parole period of one year and two months.

Submissions

The applicant accepted that there were significant differences between the circumstances of the applicant and those of Andy Ly. However, the applicant drew attention to what had been said in Boney and endorsed in Ersman v R [2007] NSWCCA 161, that there is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately with dealt with, one in the Children's Court and the other as an adult.
The applicant submitted that there was a significant disparity in both the head sentence and the non-parole period even allowing for the 25% discount for Andy Ly's plea of guilty in relation to offence 3. In a similar way, there was a significant difference even allowing for the 25% reduction for offence 4. The applicant drew attention to the fact that both he and Andy Ly committed the offences whilst on conditional liberty. The applicant submitted that even allowing for the differences between the two offenders, the disparity in the sentences were such as to engender a justifiable sense of grievance.
The Crown submitted that, at the time of sentencing the applicant, the sentencing judge was provided with the Remarks on Sentence of Hanley DCJ. The Crown submitted that when sentencing the applicant the sentencing judge undertook a comparison of the differing roles of the applicant and Andy Ly and distinguished their subjective cases. The Crown pointed to the difficulty of establishing a justifiable sense of grievance where the sentencing judge was fully aware of the sentence imposed on the co-offender and the reasons for that sentence, and where the sentencing judge indicated in the ROS why she was departing from the co-offender's sentence.
The Crown prepared a table identifying the distinguishing matters between the two offenders in terms of both objective seriousness, and subjective and other factors.

Consideration

Since error has been found in relation to Ground 1 it is not strictly necessary to consider the issue of parity. However, parity is a consideration in relation to the re-sentencing exercise and in deference to the submissions made I should express a view about the issue.
The principles applicable to the determination of a ground asserting a justifiable sense of grievance by reason of disparity of sentence between co-offenders were recently summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261: [39] The reference in this ground of appeal to a "justifiable sense of grievance" invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, "Lowe"). The parity principle holds that there should not be a "marked disparity" between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford "equal justice" (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, "Green"). [40] Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that "are relevantly identical". It also seeks "different outcomes in cases that are different in some relevant respect" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, "Wong"). Thus, in this case, the applicant accepts that his overall sentence was not materially different from that imposed on Choy but contends that his circumstances were relevantly different to those of Choy. [41] Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed "by considerations of substance rather than form" (Green at [30]). Nevertheless, the "greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]" (Green at [30]). These "practical difficulties" can be compounded in a case such as this where the two offenders are sentenced under two different statutory regimes, namely the Crimes Act 1914 in the case of Choy and the Sentencing Act in the case of the applicant. [42] In DS v R [2014] NSWCCA 267 at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows: "The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be 'gross', 'marked' or 'glaring'….."
In Gill v R [2010] NSWCCA 236 McColl JA (with whom RS Hulme and Latham JJ agreed) said: [58] Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences: Tatana (at [28]).
Similar remarks have been made in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96] where the authorities are gathered, and in Lam v R [2014] NSWCCA 50 at [42].
In the present case the sentencing remarks of Judge Hanley, who sentenced Andy Ly, were before the sentencing judge in the present matter. Her Honour devoted a whole section of her judgment (section 12) to a discussion of Andy Ly and the sentences that were imposed on him.
The sentencing judge noted that there were significant features that distinguished Andy Ly from the present applicant. They were:

Andy Ly was 17 years old at the time of offences whilst the applicant was 20;
Section 6 of the Children (Criminal Proceedings) Act 1987 (NSW) set out the main provisions relating to criminal proceedings against children that were applicable to Andy Ly;
Andy Ly pleaded guilty to his offences and received a discount of 25% in his sentences;
Andy Ly was consuming the drug ice at the time of the offences;
The applicant had a history of violence and committed offences 1 and 2 without any connection with Andy Ly; and
Standard non-parole periods did not apply as statutory guidelines to Andy Ly.

The sentencing judge did not overlook the similarities in relation to the offending nor differences that might have favoured the applicant. Her Honour noted, for example, that Andy Ly was subject to an order of probation at the time of the offending and her Honour noted that it was Andy Ly who wielded the weapon in offence 4 and lured the victim into the car. Her Honour said that a consideration of all the matters justified different sentences being imposed as between the two offenders.
The notional starting point for the sentence imposed on the co-offender was 9 years and four months with a non-parole period of five years and four months. The sentence imposed on the applicant was 13 years and six months with a non-parole period of eight years and six months. When account is taken of the differences between them, all of which were fully canvassed by the sentencing judge, I do not consider there is a marked disparity which could give rise to a justifiable sense of grievance.

Re-sentence

However, since error has been found in relation to ground 1 it is necessary to re-sentence the applicant. Submissions made about ground 3 (concerning a manifestly excessive sentence) will be considered in relation to the re-sentencing exercise.

Submissions

The applicant pointed to the following matters as indicating the sentence imposed upon him was a crushing sentence for a young offender:

The applicant's gambling addiction and the serious and traumatic sexual assault upon him reduced, to a limited extent, his moral culpability, reduced the weight that ought to be given to general deterrence, retribution and denunciation, and pointed to appropriate directions for rehabilitation;
The sexual assaults committed upon him would make custody more onerous;
The sentencing judge had appeared to accept as genuine the letter written by the applicant to the Court accepting responsibility for the offences and as an expression of remorse. It was submitted that this Court should so regard the letter;
The applicant had good prospects of rehabilitation and the pre-sentence report assessed him at a medium to low risk of re-offending;
Not only did the applicant have a gambling addiction but there were factors pointing to mental health issues.

The matter principally relied upon in the re-sentencing exercise was a confidential report from Detective Sergeant Christian Olivares of the NSW Police detailing the assistance the applicant has provided in relation to an unsolved homicide that took place on 3 November 2010. The victim was shot at the front door of his property. Despite extensive investigations and a coronial inquest there was insufficient evidence to charge any person and the investigation was suspended in April 2012 as there was no prospect of solving the crime. The matter was subsequently referred to the Unsolved Homicide Squad.
The report discloses that the evidence provided by the applicant identified the two principal assailants in the homicide. The police officer said that the applicant provided information and facts which could only have been known to those directly involved in the murder. The evidence has been found to be reliable, credible and accurate when compared to other evidence available to investigators. The evidence of the applicant will have a significant impact on the strength of the Crown case against those responsible for the homicide. The applicant has given an undertaking to investigators to give evidence on behalf of the Crown. The police officer said that without the evidence of the applicant the murder would have remained unsolved and it was highly likely that no person would ever be charged. The Crown does not dispute that this evidence is regarded by police as significant and useful.
It is reasonable to infer that the significant information provided by the applicant will place him at risk both in custody and outside custody. The Crown accepts that the applicant may have to be placed into protective custody. That is likely to make custody more onerous for him over and above the present position as a result of the sexual assault more recently committed upon him. Further, in the affidavit provided to the Court the police officer says that the applicant is committed to giving evidence on behalf of the Crown knowing that he will be ostracised from his family, friends and community.
Were it not for the confidential information provided to the Court I would have been of the opinion, after considering the objective seriousness of the four separate offences and all of the subjective matters in favour of the applicant, that no lesser sentence than the one ordered by the sentencing judge should be imposed. In particular, the offending in counts 3 and 4 were serious examples of offences of that type precisely for the reasons given by the sentencing judge. Both of those offences included a significant degree of planning and were carried out in a manner calculated to terrorise the victims. Although the applicant was not apparently the offender in offence 4 who wielded the machete and other implements, the extent of his involvement, including in the planning, indicates that he must have known what was to be inflicted upon the victim. In addition he actually assaulted the victim when the victim was on the ground.
Making every allowance for his relative youth and the other subjective matters including his gambling addiction, the sexual assaults and his mental health issues, I would have considered that the sentences imposed were not crushing and that no lesser sentence should be imposed.
I have taken into account the sentence imposed on the co-offender Andy Ly, and I have had regard to the similarities and differences with the applicant as the sentencing judge has identified and as I have discussed when dealing with ground 2.
Nevertheless, error has been demonstrated in relation to ground 1. That has the fortunate result for the applicant that the confidential material provided to the Court is able to be taken into account in the re-sentence process. I consider that the level of assistance disclosed in that material is of a high order. I have considered the matters in s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I consider that there should be a discount of 25% pursuant to s 23 of that Act. I would apportion 15% of that to assistance already given and 10% to the undertaking to give evidence against those responsible.
Where an aggregate sentence is imposed and a discount is given, the discount is applied to the indicative sentence or sentences: Elsaj v R [2017] NSWCCA 124 at [56]; PG v R [2017] NSWCCA 179 at [74] to [94]. It may be accepted that those decisions concerned pleas of guilty and the discount therefor, and that some of the reasoning of Button and N Adams JJ in PG dealt specifically with pleas of guilty. However, s 23 is also in Part 3 of the Act to which s 53A(2)(b) refers. A number of the matters discussed by Button and N Adams JJ concern more general matters than guilty pleas - see for example [78], [80] (in the sense that the purpose of s 23 is also to encourage offenders to provide assistance where they can do so), and [90].
Two other matters suggest that a s 23 discount should be applied to the indicative sentence or sentences. First, s 23 refers to imposing a "lesser penalty for the offence". That points to consideration of each of the offences for which an aggregate sentence might be imposed under s 53A. Secondly, it would be inimical to the simplified sentencing process brought about by s 53A if there was not consistency in the approach to discounting sentences for whatever reason. Authority now points strongly to a s 22 discount being applied to indicative sentences. The same approach should be adopted in relation to a discount under s 23.
The next question is whether the discount should apply to all of the offences or to some lesser number of them. Bearing in mind particularly the likelihood that the applicant is likely to be held in some form of protective custody for the period of his sentence as a result of the assistance provided and to be provided, I consider that the discount should apply to reduce the sentence for all of the offences.
However, that is qualified by the terms of s 23(3) in respect of offences 1 and 2. I consider that the appropriate starting point for the indicative sentences for offences 1 and 2 is respectively 18 months with a non-parole period of 12 months, and 22 months with a non-parole period of 15 months as the sentencing judge determined. I consider that applying a discount of 25% to each of those sentences would result in the indicative sentences being unreasonably disproportionate to the nature and circumstances of those offences. Accordingly, I consider that the appropriate indicative sentence for offence 1 is 15 months' imprisonment with a non-parole period of 10 months, and, for offence 2, a sentence of 18 months' imprisonment with a non-parole period of 12 months.
For offence 3, I consider the appropriate starting point is imprisonment for eight years and six months with a non-parole period of five years and six months. I would discount this under s 23 so that the indicative sentence is six years and four months with a non-parole period of four years and two months. For offence 4, I consider the appropriate starting point to be imprisonment for five years and three months with a non-parole period of three years and four months.
I would impose an aggregate sentence of ten years' imprisonment commencing 7 February 2015 and expiring 6 February 2025 with a non-parole period of six years and three months expiring 6 May 2021.

Conclusion

I propose the following orders: 1. Leave to appeal granted. 2. Allow the appeal. 3. Quash the sentence imposed by Judge Culver in the District Court on 17 December 2015. 4. In lieu, the appellant be sentenced to an aggregate sentence of ten years imprisonment commencing 7 February 2015 and expiring 6 February 2025 with a non-parole period of six years and three months expiring 6 May 2021.
ADAMSON J: I have had the benefit of reading the draft reasons of Davies J with which I agree apart from the reasons and conclusion with respect to ground 1. I am not persuaded that a fair reading of her Honour's remarks on sentence leads to the conclusion that her Honour took the applicant's moral culpability into account in assessing objective seriousness. The reasons for my view that ground 1 was not made out can be expressed briefly.
Moral culpability is quintessentially a subjective matter and does not bear on objective seriousness. The obviousness of its character as a subjective matter may lead sentencing judges to be less vigilant about expressing the category to which it belongs. However, this circumstance ought not lead this Court to infer error simply on that basis. Where the error alleged is that a matter irrelevant to objective seriousness was taken into account in the assessment of objective seriousness, generalisations derived from other decisions of this Court are inappropriate. In every case, the remarks on sentence need to be read fairly as a whole: Kaddour v R [2017] NSWCCA 294 at [18]-[19] and [24]. In the present case, the sentencing judge referred to certain matters as enhancing the applicant's moral culpability, as it may be accepted they did. That these observations were contained in a section of the judgment to which objective seriousness was also mentioned, does not, in my view, result in a conclusion that these matters were taken into account in assessing objective seriousness. I do not regard her Honour's reference to Ponfield as altering this conclusion.
Re-sentencing is required, given Hoeben CJ at CL's agreement with Davies J's conclusion on ground 1. I agree with the re-sentence proposed by Davies J and in particular his Honour's observations about the value of assistance and the desirability of the proposed discount.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (23)

Cited By (11)