Tompkins v R

Court of Criminal Appeal (NSW)|2019-02-13|Before: Hoeben CJ, Schmidt J, Adamson J

Solicitors: Aboriginal Legal Service - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2016/89071; 2016/158989 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 21 November 2017 Before: King SC DCJ File Number(s): 2016/89071; 2016/158989

JUDGMENT

HOEBEN CJ at CL: The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him by his Honour Judge King SC on 21 November 2017 in the District Court at Sydney.
The applicant entered pleas of guilty in the Local Court in respect of one charge of armed robbery (offence 1) contrary to s 97(1) of the Crimes Act 1900 (NSW) (Crimes Act) and one charge of attempt aggravated taking of a motor vehicle with assault (armed with an offensive weapon) (offence 2) contrary to s 154C(2) of the Crimes Act.

Ground 1 - The sentencing judge erred in his approach to the principle of totality; and

Ground 2 - The sentencing judge erred in the exercise of his discretion to determine the commencement date of the sentence.

The grounds of appeal arise out of the fact that the applicant had been serving the balance of parole of an earlier sentence and that his Honour commenced the aggregate sentence on the day on which he imposed it. This was more than a year after the applicant had pleaded guilty and after he had served 20 out of 23 months of the balance of his parole for the earlier sentence.

Factual background

At the time of this offending, the applicant was the subject of parole, having been released to parole on 26 January 2016 in respect of an offence of robbery in company for which he had received a sentence of 4 years imprisonment with a non-parole period of 2 years.
Offence 1 occurred on 24 February 2016, approximately one month after the applicant had been released on parole.
The victim was working in a store in the Mid City Arcade in George Street, Sydney and just before 6pm, was counting the day's takings. The victim was aged 30 and was alone in the store. There was $300 in notes and coins in a tray on the counter.
The applicant entered the store and approached the victim. He moved close to her and she looked at him. She observed that he was missing numerous teeth. The applicant said "I have a knife. I want all the money". He moved his jacket to show that he had a knife tucked into the top of his pants. The knife was around 8cm in length.
The victim moved the tray containing the $300 towards the applicant. He picked up all the notes and coins and then demanded the victim's money. She said she did not have any, and he then ran from the store and out of her sight.
As a result of CCTV footage, police were able to identify the applicant. On 22 March 2016, police attended his residence and arrested him. When they searched his residence, clothing matching that of the person on the CCTV footage was found.
The second offence occurred approximately two weeks later on 9 March 2016. The victim was aged 55 at the time. At about 10am on 9 March 2016, the victim was driving her car, a silver Porsche Cayman, south on the Pacific Highway at St Leonards. She stopped at a red light at the intersection with Herbert Street. She was in the lane closest to the median strip. The Pacific Highway at that point comprised multiple lanes.
The applicant approached the passenger side of the victim's vehicle, opened the door and began to get into the car. The victim tried to push him out and screamed at him to get out. Despite this, the applicant forced his way into the car. He was holding a knife with a black handle and a 15cm silver blade. He held the knife towards the victim and yelled "drive".
The victim screamed. She was terrified. She grabbed the applicant's hand which was holding the knife and pressed the horn on her car for around 10 seconds. Another driver, who was nearby, and whose car was also stationary at the lights, saw the applicant enter the victim's car and heard the victim screaming. He moved to the passenger side of the victim's car, opened the door and pulled the applicant out.
The applicant, when trying to escape, ran into the side of a bus that was slowing to a stop. He then ran away carrying a cardboard box. He ran through the North Shore Hospital where he discarded the box. The box was seized by police and the applicant's DNA was subsequently located on it.
As indicated, on 29 January 2014 the applicant was sentenced to a term of imprisonment for 4 years with a non-parole period of 2 years, commencing 27 January 2014 for an offence of robbery in company. The facts of this earlier offence were not before the sentencing judge in the present matter. The date of the offence is not apparent, but it was likely committed during a short period of parole in August 2012. According to the applicant's criminal history, he was charged with the offence on 19 November 2012 which was at a time when he was already in custody. The non-parole period for the robbery in company was wholly accumulated upon the effective non-parole period of a number of sentences imposed by the Campbelltown Local Court on 27 August 2012.
The applicant was arrested on 22 March 2016 for the offences the subject of this appeal. On 16 April 2016 the State Parole Authority revoked his parole on the robbery in company offence, effective from 24 February 2016 (the date of the armed robbery the subject of these proceedings). An adjustment for the "street time" between the date of the effective revocation and the applicant's return to custody meant that the balance of parole was determined to be 1 year 11 months and 3 days expiring 24 February 2018. The applicant had a parole review date of 13 June 2017.
On 17 November 2016, the applicant pleaded guilty to the offences, the subject of this appeal, in the Central Local Court and was committed for sentence to the Sydney District Court. On 25 November 2016, on the application of both parties the matters were adjourned for two weeks to 9 December 2016. On that day, the parties requested a date for sentence and the court allocated 2 June 2017 - nearly six months later. This was apparently the first available date which the court could offer. There is no suggestion that the applicant contributed in any way to the length of this adjournment.
On 24 May 2017, the applicant was seen by a forensic psychiatrist, Dr Kerri Eagle, for the purpose of preparing a psychiatric report for sentence. Given the seriousness of the offences, the applicant's very significant criminal history and his deprived background, the obtaining of such a report was clearly necessary.
On 1 June 2017, the day before he was due to be sentenced, the applicant's solicitor applied to vacate the applicant's sentence date. From the transcript of proceedings on that day, it would seem that Dr Eagle was meant to have seen the applicant somewhat earlier to enable her to complete her report by 2 June. It is also apparent that there had been some logistical failure by the applicant's solicitor, Corrective Services or both, which prevented this from happening. Nevertheless, it is clear that whatever the precise problem was, it was not attributable to the applicant.
This led to the matter being adjourned to 21 November 2017.
The following exchange occurred between Conlon ADCJ and the applicant's solicitor on 1 June 2017 when the adjournment application was being made: "HIS HONOUR: … The difficulty Mr Elliott, as you understand, is that I'm restricted to what is available - ELLIOTT: Yes. HIS HONOUR: … and what is available is not until November. ELLIOTT: Yes my clients understand that your Honour and I would consider they're not disadvantaged."
What seems to have occurred is that the District Court was not in a position to provide a sentencing date before November 2017. It can also be inferred that the applicant had not been advised about any disadvantage to him from a lengthy adjournment. It is also clear that there was a real disadvantage to the applicant in having his sentence hearing further delayed for almost six months. The nature of that disadvantage was explained by Simpson JA in White v R [2016] NSWCCA 190; 261 A Crim R 302 190 at [116]-[124]. The sentencing hearing proceeded on 21 November 2017 and his Honour imposed the aggregate sentence commencing on that day.

Sentence proceedings

His Honour found that the two offences were "relatively common examples of such offences and each fell within the mid-range of objective seriousness for such an offence". His Honour regarded the fact that the applicant was on parole at the time of the offending as a "significant aggravating circumstance". His Honour cited R v Moffatt (1990) 20 NSWLR 114 as authority for the proposition that an offender should not only suffer the revocation of his parole and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole.
His Honour noted that the date of revocation of parole was 24 February 2016 (the date of the commission of the offence) and the reason for revocation was a breach of condition 1 (be of good behaviour) by the commission of offence 1, and condition 15 (must not use or be in possession of a prohibited drug or substance except those which have been prescribed).
When the applicant was arrested on 22 March 2016 for offence 1, the subsequent Breach of Parole Report, dated 31 March 2016, indicated that "further drug use was detected shortly after" the breach notification of 2 March 2016 despite the intervention measures in place at that time.
His Honour observed that at the time of the offending, the then 43 year old applicant was residing at Rainbow Lodge where he was able to access programs on life skills, education, drug and alcohol abuse and was provided with transport services to attend Community Corrections appointments and methadone dosing at a local hospital.
The applicant's subjective material was considered and his Honour noted what the applicant had told Dr Eagle about his history of drug use. His Honour cited some of the opinions expressed by Dr Eagle, including her diagnoses of "a severe polysubstance use disorder" and anti-social personality disorder, and her opinion that the applicant's background had "resulted in a number of psychological vulnerabilities, including emotional instability, low self-esteem, inadequate coping skills, lack of problem solving skills and poor social and vocational skills". She found these "have likely precipitated and maintained Mr Tompkins' use of illicit substances" and his movement in and out of custody had "prevented him from developing the necessary vocational, psychological and social skills to function in society".
In relation to the risk of further violent offending, his Honour recited Dr Eagle's observations and opinion that the applicant "has a high loading of historical factors for future offending". His Honour took into account that the applicant "has a significant criminal history" dating back to 1985 in the Children's Court covering a range of offending as a juvenile and that he had been dealt with for numerous offences as an adult.
His Honour also noted that the applicant had spent "the vast proportion of his adult life in custody with only short periods on parole before re-offending or being returned to custody". His Honour considered that while the applicant's criminal history and periods in custody were indicative of him having become institutionalised "they also led to a conclusion that he has demonstrated both as a juvenile and as an adult a contumelious disregard for the law and for the property and person of others". His Honour found that the applicant "must be regarded as a significant ongoing risk to the community".
His Honour found no evidence of remorse or contrition and that any prospects of rehabilitation were "extremely guarded". His Honour rejected the submissions of the applicant's counsel that he had reached a "cross roads" and had broken the cycle of the past and that there was now a good prospect of rehabilitation. His Honour found that the prospect of re-offending was high. In altering the statutory ratio for the non-parole period, his Honour said that he had "significantly reduced the non-parole period from the statutory relationship" to allow for the three year maximum period of supervision.

Ground 1 - The sentencing judge erred in his approach to the principle of totality.

The applicant accepted that his Honour had delivered his sentencing judgment ex tempore and for that reason, was not critical of the fact that his Honour failed to refer specifically to the principles of totality. The applicant accepted that it was apparent that the aggregate sentence reflected a degree of notional partial accumulation since it was one year longer than the longer of the two indicative sentences. Accordingly, the applicant accepted that it might safely be inferred that his Honour took into account in determining the length of the aggregate sentence the totality of the criminality involved in the two offences for which he was sentencing the applicant.
The applicant submitted, however, that the principles of totality required his Honour to consider not only the criminality involved in the offences for which he was imposing sentence but the criminality of the offence for which the applicant was already serving a sentence, i.e. the robbery in company. The applicant submitted that his Honour was required to consider the totality of the criminality including that offence, at least when determining the commencement date for the aggregate sentence.
The applicant submitted that there was no indication that his Honour considered either the criminality of the earlier offence or the full amount of time which the applicant had already served in respect of that earlier offence when determining the commencement date of the aggregate sentence. The applicant noted that the time that he had already served included not only the period since the revocation of his parole but also the two years already served by way of the non-parole period. The applicant submitted that in failing to turn his mind to those considerations, his Honour had erred.

Consideration

It is apparent from his Honour's reasoning that he was fully aware that the applicant was serving a balance of parole at the time of the sentence proceedings and was fully aware of his discretion to make any sentence imposed in this matter concurrent, partially concurrent or wholly cumulative upon the sentence which the applicant had served as a consequence of the revocation of parole.
On that issue, his Honour referred to the judgment of Simpson J (with whom James and Hall JJ agreed) in Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 where her Honour said: "21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. … 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. 25 Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. …"
Here his Honour appears to have intended that there be little concurrency with the revocation of the parole period and that the sentence should commence on the date on which it was handed down. When delivering sentence, his Honour stated in clear terms "I intend to date the sentence from today" and when making the finding of special circumstance said "[a]lthough I have dated the sentence from today …".
Although not expressly stated by his Honour, it is implicit from his reasoning that he considered the totality of the criminality, which included the offence the subject of the revocation of parole, in the sentencing process. The finding of special circumstances was made because of the substantial, partial accumulation of the sentence for offences 1 and 2 upon the sentence, the subject of the revocation of parole. In doing so, his Honour was exercising the discretion identified by Simpson J in Callaghan v R.
His Honour referred in his reasons to the first offence (on 24 February 2016) as occurring "approximately one month after he had been released on parole". His Honour observed that this had been a common theme in the applicant's criminal history: "… he has spent the vast proportion of his adult life in custody with only short periods on parole before re-offending or being returned to custody."
This pattern of behaviour informed his Honour's findings that, inter alia, specific deterrence and the protection of society were "significant matters" to be taken into account.
The offences for which the applicant was to be sentenced by his Honour and the revocation offence involved distinct episodes of criminality. They were committed a number of years apart. Furthermore, the Crown in oral submissions in the sentence proceedings addressed the court on this issue in the context of totality submissions: "… there is a need to have at least a stand-alone period where he is serving his breach of parole in relation to the other offences …" (POS 23.14) "… there should be some significant differentiation between the parole and each of the offences in your Honour's sentence." (POS 23.39)
The applicant's submissions in relation to totality acknowledged that it was open to his Honour to do as he did: "… what needs to be taken into account is the offence whilst he is currently on parole. It is submitted that your Honour could start the sentences from today and then the cumulation, but it is also available to your Honour to go back in time. He did come into custody on 22 March, so it is available to start that sentence or sentences from a date within that timeframe" (POS 18.21) Significantly, the applicant's submissions did not urge the court to adopt one option over the other.
This ground of appeal has not been made out.

Ground 2 - The sentencing judge erred in the exercise of his discretion to determine the commencement date of sentence.

The applicant submitted that his Honour erred in the exercise of his discretion in that he failed to take into account that through no fault of the applicant there had been a considerable delay in the sentence proceedings being finalised and that this had disadvantaged him in a significant way. This was important in circumstances where his Honour simply announced that he intended to "date the sentence from today" without giving any reasons for doing so.
The applicant submitted that the extent of the delay was substantial and that it constituted an important factor which the judge overlooked. The applicant submitted that had he been sentenced without undue delay, the likely commencement date for his sentence would have been in February or March 2017. As explained by Simpson JA in White v R (at [119]): "… the delay in sentencing extended the period of accumulation available to the sentencing judge. The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him."
The applicant submitted that the fact of this delay was a matter of significance for the judge's exercise of his discretion in determining to what extent, if any, to backdate the sentence. The applicant submitted that his Honour ought to have considered it but did not.
The applicant accepted that as in White v R, no such argument was put to the sentencing judge. The applicant submitted that this should not be decisive in that it is clear that both the applicant's solicitor and the sentencing judge overlooked the delay in the applicant's sentencing proceedings as a factor relevant to the exercise of the judge's discretion. He submitted that the failure by his Honour to take this factor into account caused his discretion to miscarry. The applicant submitted that for the reasons explained by Simpson JA in White v R (at [125]-[127]), the principles in Zreika v R ought not cause this Court to refrain from intervening to correct this error.
The Crown submitted that this ground of appeal, like Ground 1, also challenged the exercise of the broad discretion which his Honour had, to choose the starting date for the sentence he was imposing. The Crown submitted that it was a matter for his Honour, taking into account all relevant considerations, to fix a commencement date for the sentence of the more recent offences. That was so even though that commencement date might be 20 months into the 23 month parole period. The Crown relied on the following factors:

The re-offending occurred within a very short time (one month) of the applicant's release on parole;
The re-offending was of a similar type to the offending, the subject of the revocation offence; and
The reasons for the revocation were twofold and only one of which related to the commission of the fresh offence, i.e. Count 1.

Consideration

There is considerable similarity between the facts of this case and those in White v R. In particular, the applicant had committed the more recent offences within one month of his release from the sentence he was serving. There was also a considerable delay between the apprehension of White (June 2013) and his ultimate sentencing (April 2015). This produced consequences which disadvantaged him. The delay was not due to fault on the part of White.
It was against that background that Simpson JA in White v R (Bathurst CJ agreeing) carried out the following analysis: "118 By s 47(2)(b) of the Sentencing Procedure Act, a court is permitted to post-date the commencement of a sentence, but only if the sentence is to be served consecutively or partly consecutively with another sentence of imprisonment. By sub-ss (4) and (5), a sentence may not be post-dated to a date later than the earliest date on which the offender will become entitled or eligible to release on parole having regard to any other sentence of imprisonment being served. 119 At all material times, notwithstanding the revocation of parole, the applicant was eligible to be released on parole in relation to the 2008 sentences. The sentence imposed in respect of the 2013 offences could therefore not be post-dated beyond the date on which it was imposed. That being so, the delay in sentencing extended the period of accumulation available to the sentencing judge. That is, the sentencing judge had a vastly wider range of options for the commencement date selection than would have been available to her had sentencing taken place on, or shortly after, say 4 September 2014 (or earlier). The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him. 120 No argument in these terms was addressed to the sentencing judge. Such argument as there was (and it was limited) concerning the extent of backdating was directed to the issue considered in R v Kaiva (NSWCCA, 9 November 1998, unreported) and Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, and which was also ventilated in this application. … 122 There is, in my opinion, considerable force in the argument, advanced in this Court, but not advanced before the sentencing judge, that the delay in sentencing caused the applicant to lose a significant advantage. It would have been appropriate for the sentencing judge notionally to determine at what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date. The latest such date would have been 4 September 2014, when the matter was first listed but not reached, but it would have been open to consider any date after the date of the applicant's plea of guilty. … 124 I have, somewhat reluctantly, come to the conclusion that the effect of the delay in sentencing was, in this instance, a circumstance relevant specifically to the commencement date of the sentence, and that the failure of the sentencing judge to take it into account represented error in the sentencing process. That this was a failure brought about by the omission of counsel to draw it to the attention of the sentencing judge does not detract from its significance. 125 In saying this, I am conscious of the observations of Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81] and [82]. Johnson J referred to a number of decisions of the Victorian Court of Appeal in such a fashion as to indicate that he adopted and endorsed the principles there stated … … 127 The judgment of Johnson J is carefully worded so as not to preclude the intervention of this Court where justice demands that it intervene. Conclusion 128 I have concluded that this is a case where justice does demand intervention. Two errors are to be found in the sentencing process, each of which is of the kind referred to by Johnson J in [81] of Zreika, but also comes within the exception referred to in [82] of that judgment. 129 It is necessary, therefore, to exercise the sentencing discretion afresh: Kentwell."
I have reached a similar conclusion to that of her Honour, i.e. that error has occurred in the sentencing process and that this Court should re-exercise the sentencing discretion. That error was his Honour's failure to take into account an important factor, i.e. the effect of delay on the applicant's sentence in that he was significantly disadvantaged by that delay. Although his Honour was aware of the delay, his failure to take it into account in any way except in relation to a finding of special circumstances, is strongly suggestive that his Honour otherwise failed to take it into account.
This is the sort of circumstance envisaged by Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [82] where his Honour (with whom McClellan CJ at CL and Rothman J agreed) said: "82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance."
In the appeal proceedings, the applicant did not challenge the findings of the sentencing judge and in particular, his Honour's identification of the various factors which pulled in different directions. In particular, the applicant accepted that on the one hand the offences were in the mid-range of objective seriousness and they were committed on parole by a middle-aged offender with a very lengthy criminal history, very limited prospects of rehabilitation and a high likelihood of re-offending. On the other hand, the applicant's deprived background and institutionalisation respectively called for some mitigation of sentence and a need for an extended period of supervision. None of those matters were challenged, nor did the applicant challenge his Honour's determination to allow no more than the maximum period of supervision (3 years) as the potential period of the applicant's parole.
In those circumstances, and given the limited issues raised on the appeal, the primary matter for determination by this Court, in the re-exercise of the sentencing discretion, is the commencement date of the sentence. Having regard to those unchallenged findings by his Honour, but also having regard to the fact of the 12 month delay in sentencing, and the likely date on which sentence would have been imposed had the delay not taken place, I would backdate the commencement of the sentence by six months to 21 May 2017.
Accordingly, the orders which I propose are: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant in the District Court on 21 November 2017 is quashed. 4. In lieu thereof, the applicant is sentenced to an aggregate sentence with a non-parole period of 5 years, commencing 21 May 2017 and expiring 20 May 2022, with a balance of term of 3 years expiring 20 May 2025. The applicant will be first eligible for parole on 20 May 2022.
SCHMIDT J: I agree with Hoeben CJ at CL.
ADAMSON J: I have had the benefit of reading the draft judgment of Hoeben CJ at CL. I agree with the orders which his Honour proposes, including the sentence to be imposed in lieu of the sentence set aside, and, with one exception (referred to below), with his Honour's reasons. I respectfully adopt his Honour's summary of facts and add the following reasons for my agreement with these orders.
As Simpson JA explained in White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 at [118], the effect of ss 47(2)(b) and 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) is to permit a sentence to be post-dated only if it is to be served consecutively or concurrently with another sentence of imprisonment, the non-parole period of which has not expired. A court may direct a sentence to commence before the date on which the sentence is imposed: s 47(2)(a) of the Act. Thus, had the sentence been imposed on the applicant prior to 21 November 2017 (because the sentence hearing had been conducted earlier), it would not have been open to the sentencing judge to commence the sentence imposed on 21 November 2017, or any other date later than the date on which the sentence was imposed. In that event the latest date on which the sentence could have commenced would have been the (earlier) date on which the sentence was imposed. It would, however, been open to the sentencing judge to back-date the sentence.
Accordingly, the delay in the sentence hearing and the corresponding imposition of the sentence on 21 November 2017 deprived the applicant of the right to have his sentence commence on the (earlier) date on which the sentence would have been imposed but for the delay.
The sentencing judge's reasons demonstrated that his Honour was aware of the prior offending and the chronology (as to the prior offending and sentence, the arrest for the index offences, the revocation of parole, the plea of guilty and the period of a year between the plea and the imposition of the sentence). However, no submissions were made by either party about the need to take into account the loss of this right (to have the sentence commence on an earlier day) by reason of the delay. Although the applicant's legal representative referred to White v R in his written submissions at the sentence hearing, the passage in which the reference was contained was a verbatim reproduction from [7-547] of the Sentencing Bench Book which did not address the importance of delay to the commencement date of the sentence in circumstances such as the present. Further, the applicant's representative at the sentence hearing informed the sentencing judge, correctly, that it was open to his Honour to date the sentence from the date of imposition of the sentence which may have diverted his Honour from the relevance of delay. That the same legal representative informed another judge (Conlon ADCJ) on 1 June 2017, when the matter was listed for mention, that the applicant was not disadvantaged by the delay in allocating a hearing date for sentence is consistent with the applicant's legal representative not having appreciated the gravamen of White v R. The applicant's submissions were, in any event, insufficient to alert his Honour to the need to take account of delay, specifically in the context of the commencement date and not merely for the purposes of determining whether to find special circumstances.
The commencement date was, in the context of the present case, important to the sentencing exercise. In this Court the Crown contended that, although the sentencing judge had not specifically addressed delay in the context of the commencement date, this Court should assume that it had been taken into account for that purpose. I am not persuaded that any such assumption is warranted. One of the purposes of the requirement for reasons is to demonstrate that all relevant matters have been taken into account. The effect of delay on the commencement date, while fundamental, is not so obvious, nor is the decision of White v R so well-known, that any assumption can be made that it was taken into account.
In these circumstances, the absence of any mention of the effect of delay on the commencement date leads to the conclusion that it was not taken into account or that there is a significant risk that it was not taken into account. It was erroneous for the sentencing judge not to consider back-dating in the context of the delay (see White v R at [8] (Bathurst CJ), [35] (Basten JA) and [124] (Simpson JA)). His Honour's failure to consider back-dating in this context (and record such consideration in the sentencing judgment) led to the sentencing discretion miscarrying. For the reasons given above, the present case is similar to White v R.
There is an analogy between, on the one hand, the present case and White v R and, on the other hand, cases where a sentencing judge has failed to take into account sentences already imposed for offences committed during the same period as the index offending. In such cases, the failure of the parties to provide the sentencing judge with appropriate assistance has been held to be no impediment to this Court correcting the error on appeal and re-sentencing: see, for example, Warwick v R [2016] NSWCCA 183 at [26]-[34].
I am satisfied that the sentence must be set aside. I agree with the re-sentence proposed by Hoeben CJ at CL and that it should be back-dated to 21 May 2017. However, my reasons for agreement arise from my view as to the need for a greater concurrency between the previous sentence and the present sentence and do not depend on an estimate as to when the sentence hearing might have occurred, but for the delay.

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: 27 February 2019

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