(2007) 173 A Crim R 284
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1
(1936) 55 CLR 499
JM v R [2014] NSWCCA 297
(2014) 246 A Crim R 528
Jones v R [2015] NSWCCA 180
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Lehn v R (2016) NSWLR 205
Source
Original judgment source is linked above.
Catchwords
(2007) 173 A Crim R 284
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1(1936) 55 CLR 499
JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528
Jones v R [2015] NSWCCA 180
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Lehn v R (2016) NSWLR 205
Judgment (13 paragraphs)
[1]
Judgment
SIMPSON AJA: The facts and circumstances of this application for leave to appeal against sentence are set out in the judgment of Wilson J, which I have had the advantage of reading in draft. This judgment assumes a familiarity with that of her Honour.
The applicant has pleaded four grounds of appeal. I agree, for the reasons given by Wilson J, that grounds 3 and 4 should be rejected. I find it necessary to address separately grounds 1 and 2, which are based upon the same asserted error. Each of those grounds concerns statements made by the sentencing judge to the effect that, at the time of the offending, the applicant was subject to conditional liberty in that he was on parole. The proposition that underlies both grounds is that it was factually and legally incorrect to say that the applicant was on parole at the time the offences were committed. That proposition will be examined below. By ground 1 the applicant also complains of the manner in which the erroneous finding was used. That, too, will be examined below.
Notwithstanding the comprehensive outline of the facts of the offences contained in the judgment of Wilson J, it is convenient to state the facts material to these issues.
The present offences were committed over a period commencing on 4 September 2016 and concluding on 19 December 2016 (the last offence having been committed while the applicant was in custody following his arrest on 2 November 2016). These were not the first offences committed by the applicant against the complainant.
On 1 June 2015, he was sentenced, in relation to another set of violent offences against the complainant, to an 18 month term of imprisonment made up of a non-parole period of 12 months and a balance of term of 6 months, which commenced on 18 March 2015. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") the applicant was released on parole at the expiration of the non-parole period on 17 March 2016. The balance of term continued in force, and, but for subsequent events, would have expired on 17 September 2016.
On 8 July 2016 parole was revoked. The applicant was not, however, then taken into custody and remained at large. It is not apparent that he was notified of the revocation of parole. All the present offences were committed after the parole had been revoked. The offences of using a carriage service to threaten to kill, and one of the contravene apprehended domestic violence order offences (referred to in the table at the commencement of Wilson J's judgment as "Sequence 2" and "Sequence 5" respectively) and part of the "Stalk/Intimate offence" ("Sequence 3") were committed prior to 17 September 2016, the nominal expiry date of the balance of term of the sentence imposed on 1 June 2015. The remainder were committed after that date.
The sentence did not, however, expire on that date. Section 171 of the Crimes (Administration of Sentences) Act 1999 (NSW) ("the Administration of Sentences Act") relevantly provides:
"(1) …
(2) A parole revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on any earlier date that the Parole Authority thinks fit.
(3) The earliest date on which a parole revocation order resulting from a breach of the obligations of the offender under the parole order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender's obligations under the parole order.
(4) If an offender is not taken into custody until after the day on which the parole revocation order takes effect, the term of the offender's sentence is, by this subsection, extended by the number of days the person was at large after the order took effect."
There is no evidence that the parole revocation order was specified to take effect at any earlier date than the date it was made (see subs (2)), 8 July 2016. It may therefore be taken to have taken effect on that date. As the applicant was not taken into custody on that date, subs(4) has effect.
Accordingly, notwithstanding the nominal expiration of the head sentence, the sentence to which the applicant was subject remained current for an indeterminate period depending on the date on which the applicant was taken into custody (which was 2 November 2016). Certainly, the sentence remained current during the whole of the period of offending.
Section 21A of the Sentencing Procedure Act sets out relevant aggravating (subs(2)) and mitigating (subs(3)) factors a sentencing judge is required to take into account. Section 21A(2)(j) identifies as an aggravating factor:
"(j) The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence."
In sentencing the applicant the sentencing judge said:
"64. Further, I accept the following aggravating factors pursuant to s 21A(2) of the [Sentencing Procedure Act], as relied on by the Crown, namely:
(i) …;
(ii) …;
(iii) The offences were committed whilst the offender was on conditional liberty, namely parole, pursuant to s 21A(2)(j);
(iv) …;
(v) …
65. I accept the Crown's submission that the objective seriousness of the offending in sequence 4 was within the mid-range of objective seriousness of an offence pursuant to s 113(1) of the Crimes Act 1900, break and enter with intent to commit serious indictable offence (stalking/intimidation). Having regard to all of the circumstances here, and in particular the fact that it occurred whilst the offender was on parole in respect of multiple domestic violence offences concerning the same victim, it was towards the higher end of the mid-range for an offence of this type." (italics added)
His Honour then stated his intention of sentencing in accordance with s 53A of the Sentencing Procedure Act which permits, where multiple offences are charged, the imposition of a single aggregate sentence (with the indication of the individual sentences that would have been imposed for each offence). His Honour imposed separate aggregate sentences in relation to the State offences and the Commonwealth offences. He then said:
"80. Before doing so however, I am required to set out the indicative sentences in respect of each offence as a matter of transparency in the sentencing process. In setting out the indicative sentences, I have taken into account the findings I have set out above as to the objective seriousness of the offending, the fact that the offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty, and representing some remorse, the fact that the offences were committed while he was on parole, and the further aggravating factors set out above. (italics added)
[The "further aggravating factors set out above" were the applicant's record of previous convictions, the fact that one of the offences ("Sequence 4") was committed in the complainant's home and the fact that the applicant committed the offence in abuse of a position of trust and authority.]
…
90. As the offending arises out of the same course of conduct, there is a strong argument for concurrency of sentences here. However, the offending was carried out over a number of months, whilst the offender was on parole, and in breach of his parole which was subsequently revoked. In those circumstances there must be some accumulation of the two aggregate sentences. …"
The offence constituting "Sequence 4", to which the sentencing judge referred in para 65, related to the offence committed by the applicant between 3 and 4 October 2016, when he broke and entered the complainant's home during her absence, contacted her from inside her premises and sent her a photograph to confirm his presence there. He also sent a number of text messages to the complainant's mother and telephoned the complainant's sister, threatening to remain in the premises until the complainant and the children arrived home.
With that background, I turn to grounds 1 and 2 of the proposed appeal, which are framed as follows:
"1. The sentencing judge erred in finding that the objective criminality of Sequence 4 was aggravated by the application of s 21A(2)(j) of the [Sentencing Procedure Act] because the applicant was on parole when he committed the offence.
2. The sentencing judge erred in finding that the offences were committed while the offender was on parole and in breach of his parole which was subsequently revoked."
Although, as indicated above, the two grounds are based on the same asserted error, there are differences in the complaints that thereby arise. Ground 1 is specifically directed to the use that was made of the asserted fact that the applicant was on parole at the time of the break and enter offence in the assessment of the objective criminality of that offence. The sentencing judge explicitly said that that circumstance elevated the objective seriousness of the offence constituting "Sequence 4": see para 65 of the Remarks on Sentence, extracted at [11] above.
Ground 2 is more broadly directed and asserts error in the observations (at para 80 and 90) that the applicant was on parole at the time of the offending. These findings are not limited to the occasion when the offence constituting "Sequence 4" was committed, nor are they clearly limited to offences committed before 17 September 2016.
The Crown accepted (correctly) that, although commission of an offence while at conditional liberty is, by s 21A(2)(j), an aggravating factor for sentencing purposes, it is not a circumstance that aggravates the objective criminality of the offence: Simkhada v R [2010] NSWCCA 284 at [25]; Martin v R [2011] NSWCCA 188 at [17]; Elhassan v R [2018] NSWCCA 118 at [12]-[16]. While the distinction may seem, to some, to be a fine one, an essential part of the sentencing process is the assessment of the objective seriousness of an offence. Objective seriousness is not determined by an offender's personal circumstances.
The Crown therefore expressly acknowledged that ground 1 is made out. The concession must be accepted. Its consequences will be considered below.
With respect to Ground 2, two points were made on behalf of the applicant. First, it was said that, by reason of the revocation of parole, it was an error to say that the applicant was at conditional liberty subject to a parole order at the time of the offending, and that, therefore, s 21A(2)(j) had no application. Second, it was said that the majority of the offences (including the last, committed from custody) were committed after 17 September 2016, when the applicant's sentence would have expired had parole not been revoked in July. Accordingly, the applicant would not have perceived himself to be on parole and subject to conditional liberty. In framing the submissions in this way counsel for the applicant may be taken to have recognised the consequences of s 171 of the Administration of Sentences Act.
The Crown did not accept that the applicant was not on conditional liberty for the purposes of s 21A(2)(j). It asserted (correctly, in my opinion) that he was "at liberty conditional upon the authorities locating and arresting him". This, the Crown asserted, should provide no assistance to the applicant. The Crown urged, therefore, that Ground 2 be rejected.
The debate raises an issue about the meaning of the words "while the offender was on conditional liberty" as they appear in s 21A(2)(j). While it may, technically, be correct that the applicant was not, after 8 July 2016, at liberty on parole, it does not necessarily follow that he was not, for the purposes of s 21A(2)(j), on conditional liberty. Section 21A does not define what is meant by "conditional liberty". It is most often taken to refer to an offender's bail or parole status, or to a sentence that is to be served in one of the non-custodial forms made available under sentencing legislation from time to time. It has also been taken to refer to circumstances in which an offender is subject to orders, for example, under the Child Protection (Offenders Prohibition Orders) Act 2004, or orders under the Crimes (Domestic and Personal Violence) Act 2007: Sivell v R [2009] NSWCCA 286 at [29]-[30].
In this case it is not far-fetched to say, as the Crown says, that the applicant's liberty was conditional upon his apprehension following the revocation or parole orders, and that therefore the aggravating factor specified in s 21A(2)(j) was properly taken into account. It is true that, technically, the sentencing judge was wrong to identify the nature of the conditional liberty as parole, but it was correct to say that the applicant was at large on conditional liberty. But even if that were not correct, the facts are not to be ignored. The list of aggravating features specified in subs (2) of s 21A is not exhaustive: see s 21A(1)(c). It was perfectly open to the sentencing judge to take into account the applicant's status at the time of the offending. That he mistook the nature of the conditional liberty could have made no material difference to the outcome. Indeed, it is at least arguable that commission of an offence (or a series of offences) whilst at liberty following revocation of parole is more serious than commission of the same offence or offences whilst on parole.
In R v King [2003] NSWCCA 352 (with respect to an offence committed prior to the enactment of s 21A) this Court treated an offence committed by an offender whilst at large after escaping from lawful custody as aggravated by that circumstance. In Jones v R [2015] NSWCCA 180 it was accepted that that applicant was not lawfully at liberty after a parole order had been "cancelled" and that that circumstance afforded no assistance to the offender.
I therefore do not accept that any material error is demonstrated in this respect. This means that, in only one respect, has error been shown. That is in treating the commission of an offence while on conditional liberty as aggravating the objective seriousness of the offence. That error applies only to the offence constituting "Sequence 4". As can be seen from para 65, extracted above, of the Remarks on Sentence, it was used to elevate the offence, in the mind of the sentencing judge, from "within the mid-range of objective seriousness" to "towards the higher end of the mid-range" of objective seriousness for offences of its kind.
That finding could only impact on the indicative sentence in relation to one of the numerous State offences in relation to which the sentencing judge was imposing an aggregate sentence of four years with a non-parole period of three years. It had no impact on the selection of the aggregate sentence for the Commonwealth offences.
The question then arises whether, in these circumstances, it is necessary for this Court to resentence. Section 6(3) of the Criminal Appeal Act 1912 (NSW) provides:
"6(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
In R v Simpson [2001] 53 NSWLR 704; [2001] NSWCCA 534 Spigelman CJ said:
"79. Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale [Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54] to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense."
In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, the Chief Justice explained par [79]. His Honour said:
"19. The import of par [79] of Simpson was to ensure that submissions to the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on an assumption that the sentencing judge was presumptively correct, when the court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides."
That formulation received the express endorsement of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. The High Court went onto say:
"42. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act] and any other Act or rule of law require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence."
The High Court went on to allow for limited exceptions, where an identified error does not vitiate the exercise of discretion. It gave as an example error in failing to comply with statutory directions as to the sequence in which the non-parole period and the balance of term of a sentence are to be set. Such an error, the High Court said, does not affect the exercise of the sentencing discretion.
The Court then (at [43]) recognised that the appeal court is not required to resentence where, in the exercise of its independent discretion, it concludes that the same or a greater sentence is the appropriate sentence.
After the decision in Kentwell an issue arose concerning its parameters, and, in particular, the extent of the recognised exceptions. That controversy was the subject of decision by a five-judge bench of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255. The error in that case, acknowledged by the Crown, was in the quantification of a reduction in sentence allowed for the utilitarian value of the plea of guilty. The sentencing judge had allowed a reduction of 20%, although sentencing practice would have suggested that 25% was appropriate, and the Crown had made no submission to the contrary.
The Crown, accordingly, contended that the error could be rectified without this Court embarking on a resentencing exercise, merely by correcting what it maintained was effectively a mathematical calculation. It subsequently accepted that the error went further than that and had a potential impact on the proportionality of the sentence imposed. It nevertheless contended that the appeal could be disposed of by adjusting the allowance for the plea of guilty because the error was in respect of "a discrete part of the process".
This Court rejected that contention. Bathurst CJ, with whom Beazley P and Schmidt J (the latter with additional observations) agreed said:
"68. … it seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence."
R A Hulme J also agreed, apparently not without reservations. His Honour did not accept that the error in that case only affected a discrete component of the sentence but considered that it potentially had an impact on determinations of concurrence, accumulation and totality and therefore affected the exercise of the sentencing discretion.
Returning to the present case, the error was, in my opinion, all but inconsequential. As indicated above, it affected the assessment of the objective gravity of one of a number of offences, in respect of none of which was an individual sentence imposed. But it cannot be said with confidence that it did not affect the exercise of the sentencing discretion. It must be taken to have had some (although, in my opinion, minimal) bearing on the overall assessment of the totality of the applicant's conduct and the determination of the aggregate sentence in relation to the State offences. Baxter, Kentwell and Lehn therefore dictate that this Court proceed to exercise an independent sentencing discretion.
On one reading of s 6(3) of the Criminal Appeal Act, this Court should not interfere in a sentence unless satisfied of the two components there mentioned - (i) that some other sentence is warranted in law, and (ii) that that sentence should have been passed. On that reading, it would be insufficient to find that a lesser sentence is warranted in law. Given that, as the plurality of the High Court said in [42] of Kentwell, any sentence within the available range is "warranted in law", such a conclusion could only be reached in respect of a sentence at the bottom of the available range.
In this context, it is necessary to mention some other paragraphs in the judgment of Spigelman CJ in Baxter. His Honour said:
"8. The dominant and active verbs in s 6(3) are both in the present tense, ie if the Court of Criminal Appeal 'is of opinion' and 'some other sentence … is warranted in law'. The employment of the past tense in the phrase 'should have been passed' is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence.
9. This interpretation is consistent with the reference in s 6(3) to s 5(1). That section permits an appeal 'against the sentence passed on the person's conviction'. The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s 6(3) should not be understood as saying 'should have been passed by the sentencing judge'. It should be understood as an institutional reference, ie 'should have been passed by the Court'.
10. When the Court of Criminal Appeal turns its mind to forming the opinion which s 6(3) requires, it must do so by reference to the fact as they exist at that time, in so far as the Court permits evidence of those facts to be placed before the Court."
These passages did not receive the express endorsement of the High Court (nor were they disendorsed). They are explicable because an issue that arose in Baxter was whether, on resentencing, additional evidence was permissible. Nevertheless, they are authority that, when resentencing, this Court does not direct its attention to the sentence that should have been passed at first instance, but rather to the sentence that ought to be passed.
Notwithstanding my view that the identified error was all but inconsequential, it is plain, from the above analysis, that the decisions in Baxter, Kentwell and Lehn dictate that this Court proceed to exercise an independent sentencing discretion. In order to do so, it is necessary to put aside the sentence imposed at first instance. The High Court recognised that the exercise of an independent sentencing discretion might result in the same sentence as was imposed at first instance. That is not the same thing as concluding that the sentence imposed was within the available range and therefore ought not to be disturbed.
In Kentwell, in the passage extracted above, the High Court pointed out that, in any case, a range of sentences may be said to be "warranted in law". However, a sentence that happens to be within the available range that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal comes to the view that that is the appropriate sentence for the offender and the offence.
In Davis v R [2015] NSWCCA 90, I said (with the concurrence of Basten JA and Adamson J) that a contention (frequently made by the Crown) that "no lesser sentence is warranted in law" following identification of error is apt to mislead, unless it is intended to convey that the sentence imposed lies at the bottom of the range properly open.
In Thammavongsa v R [2015] NSWCCA 107, Hulme J noted the frequency with which the Crown makes the submission that "no lesser sentence is warranted in law" and agreed that it can be seen to carry the implication that the sentence imposed was at the bottom of the available range. If it is not correct that the sentence imposed was the minimum that would satisfy sentencing requirements, the submission cannot be accepted.
In my opinion, where error has been established, the duty of this Court to exercise an independent sentencing discretion is not discharged merely by adopting the sentence imposed at first instance and concluding that "no lesser sentence is warranted in law". This Court must, as was made clear in Kentwell, take into account the purposes of sentencing and any relevant legal sentencing requirements, the agreed or determined facts, its assessment of the criminality involved, together with factors personal to the offender that may bear upon the selection of the appropriate sentence. That includes, as was made clear in Simpson and Baxter, and restated in Kentwell, any post sentencing factors of which evidence has been admitted. It is appropriate to adopt relevant findings of disputed fact made by the sentencing judge. And where assessments or evaluations (for example, of objective gravity or of the offender's prospects of rehabilitation) have been made that have not been the subject of challenge, they also may be adopted and acted upon.
I accept that this imposes a significant burden on this Court, particularly so where the identified error is minor, and the resultant sentence is not shown to be manifestly excessive. However, that is what Baxter, Kentwell and Lehn require.
I have, accordingly, attempted to put out of my mind the sentences imposed by the sentencing judge.
The offences for which the applicant is to be sentenced are:
State offences:
(a) break and enter with intent to stalk or intimidate, committed between 3 and 4 October 2016, and subject to a maximum penalty of imprisonment for 10 years (no standard non-parole period specified); in respect of this offence the applicant asked, pursuant to Part 3, Division 3 of the Sentencing Procedure Act that a further offence, of intimidate with intent to cause fear of harm, committed between 4 September and 12 November December 2016, and (if charged separately) subject to a maximum penalty of imprisonment for 5 years be taken into account;
(b) four offences of contravening prohibition/restrictions in apprehended domestic violence orders, committed between 4 September 2016 and 12 November 2016, and each subject to a maximum penalty of imprisonment for 2 years.
Commonwealth offences:
two offences of using a carriage service to threaten to kill, offences against the Criminal Code 1995 (Cth), s 474.15(1), the first committed between 4 September 2016 and 6 September 2016, the second on 12 November 2016, each subject to a maximum penalty of imprisonment for 10 years. Pursuant to s 16BA of the Crimes Act 1914 (Cth) the applicant asked that a further offence, of using a carriage service to menace/harass/offend be taken into account. If charged separately, that offence would be subject to a maximum penalty of imprisonment for 3 years.
The account contained in the judgment of Wilson J gives an accurate picture of the unrelenting and persistent campaign of vitriolic abuse directed by the applicant at the complainant, also involving their two young children. The most serious of the offences, on one view, was the breaking and entry of the complainant's home during her absence, and his contact with her while he was present in the house in order to let her know where he was. Also of significant seriousness were the Commonwealth offences of threatening to kill the complainant, and threats made against the children. Each carries a maximum penalty of imprisonment for 10 years.
There was some evidence concerning the applicant's personal circumstances that ameliorates his culpability.
He had a troubled early life, with difficulties in his relationship with his parents. He was admitted to hospital for psychiatric care following the termination of his relationship with the complainant. He has been diagnosed as suffering from depression and anxiety.
As against that, the objective criminality was grave and, as I have indicated, persistent.
The most favourable evidence for the applicant was that of his friend, Ian Murray, a former policeman, who was prepared to offer the applicant a home on his release. This generous offer affords some, unquantifiable, optimism for rehabilitation. So too, does the applicant's post sentencing affidavit (admitted for the purpose of resentencing) in which he asserted that he is "appalled and ashamed" of his behaviour, and that he does "not want to be a person who behaves like that" and is "sincerely committed to doing whatever is necessary to change myself".
It is not possible to make any assessment of the genuineness of these assertions, nor of their realistic prospect of signalling change. It cannot be overlooked, in this context, that these offences were not the first of their kind that the applicant had committed against the complainant, nor that he had served a term of imprisonment for offences of the kind. Nevertheless, it is appropriate to take into account the expressions of regret and good intentions.
The objects of sentencing are set out in s 3A of the Sentencing Procedure Act. They are uncontroversial and include recognising the need for adequate punishment, deterrence, accountability, denunciation, and recognition of harm to victims. All of these are pertinent in the present case. It is plain that no sentence other than a term of imprisonment would be appropriate in relation to these offences.
No reason was advanced why this Court ought not to take the course adopted by the sentencing judge, of imposing separate aggregate sentences in respect of the State and Commonwealth offences.
The sentencing judge selected 11 January 2017 as the date of commencement of the sentences. This date appears to have been selected by reference to the revocation of the applicant's parole, although it is difficult to reconcile the dates with the period during which the applicant was at large, after his parole had been revoked. Since no issue was taken by either party about that commencement date, it ought to be adopted.
The sentences I would impose are:
(a) State offences:
an aggregate sentence of 4 years and 6 months commencing on 11 January 2017.
I see no reason to depart from the statutory proportions stated in s 44(2) of the Sentencing Procedure Act between the head sentence and the non-parole period. In round figures that would give a non-parole period of 3 years and 4 months.
In reaching that sentence I have considered that the appropriate sentence in relation to the offence of break and enter with intent should be 3 years and 6 months. In relation to each of the first and second offences of contravening apprehended domestic violence orders, committed in September and October 2016, I would record an indicative sentence of imprisonment for 12 months. As the seriousness of the offending escalated by reason at least of repetition and persistence I would indicate, in relation to the third and fourth of those offences, sentences of imprisonment for 15 months.
These sentences exceed those imposed by the sentencing judge. My assessment does not mean that there was any error in the exercise of sentencing discretion by the sentencing judge. It is illustrative of the established principle that there is no single correct sentence for any offence.
Since both the indicative sentence and the aggregate sentence that I would impose are lengthier than the sentence imposed, it is appropriate not to disturb the sentence, as was acknowledged in Kentwell.
(b) Commonwealth offences:
an aggregate sentence of 4 years with a non-parole period of 3 years accumulated by 1 year on the sentence in relation to the State offences, to commence on 11 January 2018.
In reaching that sentence I have considered that the appropriate sentence for the first offence of using a carriage service to threaten to kill, is imprisonment for 3 years. For the second such offence and taking into account the offence of using a carriage service to menace, harass or offend, I would impose a sentence of 3 years and 6 months. These sentences, both indicative and aggregate, happen to accord with those imposed at first instance.
The result is that I would grant leave to appeal against sentence but dismiss the appeal.
WILSON J: On 8 June 2018 the applicant, Garrath Turnbull, was sentenced by his Honour Judge Mahony SC sitting in the District Court at Sydney, for a number of State and Federal domestic violence related offences, to which he had earlier entered pleas of guilty in the Local Court. Two aggregate sentences, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), were imposed.
For the State offences an aggregate sentence of imprisonment for 4 years, with a non-parole ("NPP") of 3 years was fixed, commencing on 11 January 2017 and expiring on 10 January 2020. For the Federal offences a term of 4 years, with a NPP of 2 years and 6 months, was imposed. That sentence commenced on 11 January 2018, and expires on 10 January 2022. The NPP expires on 10 July 2020. The overall sentence is thus one of 5 years imprisonment, with a NPP of 3 years and 6 months.
The offences, and the indicative sentences, are set out below.
[2]
Sequence Offence Date of offence Maximum Penalty Indicative Sentence
Seq. 2 Use carriage service to threaten to kill 4.9.2016 - 6.9.2016 10 years imprisonment 3 years imprisonment
s 474.15(1) Criminal Code Act 1995 (Cth)
Use carriage service to threaten to kill
s 474.15(1) Criminal Code Act 1995 (Cth) 2.11.2016 10 years imprisonment
Seq. 12 Taking into account pursuant to s 16BA Crimes Act 1914 (Cth): 3.10.2016 - 4.10.2016 5 years imprisonment 3 years 6 months imprisonment
Seq. 11 Use Carriage Service to Menace
s 474.17(1) Criminal Code Act 1995 (Cth)
Break and Enter with Intent to Stalk / Intimidate
Seq. 4 s 113(1) Crimes Act 1900 (NSW) 3.10.2016 - 4.10.2016 10 years imprisonment
Seq. 3 Taking into account pursuant to s 33 Crimes (Sentencing Procedure) Act 1999 (NSW): 4.9.2016 - 19.12.2016 5 years imprisonment and / or fine of 50 penalty units 3 years imprisonment
Stalk / Intimidate
s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Related Offences dealt with pursuant to s 166 Criminal Procedure Act 1986 (NSW)
Seq. 5 Contravene ADVO 4.9.2016 - 9.9.2016 2 years imprisonment and / or fine of 50 penalty units 9 months imprisonment
s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Seq. 7 Contravene ADVO 3.10.2016 - 4.10.2016 2 years imprisonment and / or fine of 50 penalty units 9 months imprisonment
s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Seq. 9 Contravene ADVO 31.10.2016 2 years imprisonment and / or fine of 50 penalty units 9 months imprisonment
s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Seq. 10 Contravene ADVO 19.12.2016 2 years imprisonment and / or fine of 50 penalty units 9 months imprisonment
s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
[3]
The applicant seeks leave to appeal against those sentences, advancing four proposed grounds of appeal:
"Ground One: The sentencing judge erred in finding that the objective criminality of sequence 4 was aggravated by the application of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 because the applicant was on parole when he committed the offence.
Ground Two: The sentencing judge erred in finding that the offences were committed while the offender was on parole and in breach of his parole which was subsequently revoked.
Ground Three: The sentencing judge erred in finding, in relation to the State offences that the applicant abused a position of trust and authority in relation to the victim, pursuant to s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999.
Ground Four: The sentences are manifestly excessive."
The facts found by the sentencing judge, which were drawn from a statement of agreed facts, are set out below.
[4]
Background to the Offences
The applicant and the victim of each of the offences before the sentencing court commenced a de facto relationship in about 2006. They subsequently had two children, boys aged, at the time of sentence, seven and six years old. The relationship ended in October 2014, after a period of about four years during which the applicant had become increasingly abusive towards the victim. He was also using prohibited drugs, methylamphetamine and cannabis, in that period.
After the relationship broke down, the applicant threatened the victim, telling her on 14 November 2014, during a telephone call,
I'm going to come down there and ram the garage, gut you like a pig and take the kids from you, you cunt.
An [interim] apprehended domestic violence order ("ADVO") was granted that day for the protection of the victim. In January 2015, the application for a permanent order was dismissed after the victim said that she held no fears of the applicant.
In March 2015 the applicant was convicted of a number of domestic violence related offences against his former partner, including having possession of a shortened shotgun and ammunition. He was sentenced to a term of 18 months imprisonment, with a NPP of 12 months. An ADVO was imposed upon the applicant for the protection of the victim and her two children, enforceable until 31 May 2017. One condition of it prohibited the applicant from contacting the victim.
The applicant was released to parole on 17 March 2016.
[5]
The Offences
On 4 September 2016 the applicant contacted the victim by telephone on numerous occasions; twenty-four missed calls to her phone were noted, together with many text and voicemail messages.
Police were contacted by the applicant that day, raising the welfare of his children. When police officers attended the victim's home, they found her in a very apprehensive state. When the attending officers were still at the premises, a call was received by the victim from the applicant, and partially recorded by police. During the call the applicant threatened the victim with death, (charged as sequence 2):
You've taken my fucken kids, you do that to a man's fucken sons and you will get buried.
Further abuse was directed towards the victim, including calling her a "lame ass mother fucker".
Prior to that date, there had been constant breaches of the ADVO, which had not been reported by the victim to the authorities. She told police in an interview on 4 September 2016 that she believed the applicant had a gun and her life was in danger. He had told her in one telephone call that he could get in through her front door and, in the "8 or 10 minutes" he said it would take the police to respond, the applicant would have "finished what [he] needed to do".
On 5 September 2016 the applicant telephoned the victim more than 60 times, leaving voicemail messages and sending some text messages. In the messages the applicant threatened to destroy the victim's life. He also threatened every member of her family. The messages were extremely abusive.
The calls continued into the following day, 6 September 2016. In a voice mail left that day the applicant told his former partner, "you are going to die", saying "they'll never catch me but I'll catch you". In another message left that night he threatened her,
I'll keep ringing every night, I'll keep coming to find you.
The calls continued until mid-September 2016, with the victim receiving 204 missed calls between 4 September and 14 September 2016. That conduct was reflected by sequences 5 and 3.
On 3 October 2016 when the victim was away from her home, the applicant contacted her, telling her that he was inside her house. He sent her a photograph of her wardrobe to confirm his presence there. He did not have keys to the premises, and nor did he have permission to be there. The premises had been secured when the victim left them; necessarily, the applicant broke into and entered the house.
He remained inside the premises for many hours, making numerous calls from there, using a mobile telephone that belonged to the victim to contact members of his own family, to whom he said he was inside the victim's house.
The applicant wrote an abusive note to the victim, impaling it into a rockmelon using a screwdriver, and leaving it for her in the kitchen.
This conduct is reflected by sequence 4 and sequence 7. Sequence 11 charged the applicant's conduct in sending a number of photographs from inside the victim's home to members of her family, with accompanying abuse.
The victim and the children were too frightened to return home.
On 7 October 2016 police attended the premises. They found signs of the applicant's attendance there, including a mobile phone belonging to the victim, used by the applicant to send many threats of violence, and recording one message directed to police in which the applicant said he would not be caught.
On 29 October 2016 the applicant again telephoned the victim many times, leaving a number of threatening voice messages. There were also 10 missed calls. Sequence 9 reflects this conduct, in breach of the ADVO.
Sequence 12 occurred on 2 November 2016 when the applicant telephoned his father. During a forty minute telephone call he told his father repeatedly that he was going to kill his former partner and their children, and then himself. He said at one point,
It all ends today dad. I've bought a new gun and I'm going to kill the kids and strangle every last breath out of [the victim].
The applicant's father alerted the police to the threats, and the applicant - who had been actively avoiding police since September 2016 - was located and arrested later that same day. Once charged, he was remanded in custody, not least because of the revocation of the parole the applicant had entered on 17 March 2016.
From prison, the applicant again breached the ADVO, sending the victim a Christmas card containing a derogatory poem, and a five page letter. This contact was charged as sequence 10.
[6]
Other Evidence before the Sentencing Court
A copy of the ADVO that had been issued against the applicant, and which he had breached consistently, was before the sentencing court. It included the standard conditions prohibiting the applicant from assaulting, threatening, intimidating, or stalking his former partner and children, together with specific orders forbidding him from approaching or contacting the victim, or going within 500 metres of her residence or place of work.
A statement of the applicant's criminal antecedents was before the sentencing court. It recorded convictions for driving with a high range prescribed concentration of alcohol in 1999, for which a recognisance was imposed, together with a breach of that recognisance from 2000, and a conviction for driving whilst disqualified in that same year. In 2001 the applicant was dealt with for failing to appear, and in 2004 offences of resisting police and assaulting police were penalised by fine.
Otherwise, his criminal history consisted of entries for some twenty four offences dealt with on 1 June 2015, which all related to conduct against the victim, or associated with that offending. There were convictions recorded for possessing an unauthorised firearm, not keeping a prohibited firearm safely, possessing ammunition, three counts of stalking or intimidation, seven counts of common assault, taking action resulting in injury, four counts of resisting police, four counts of assaulting police, and two counts of destroying or damaging property. The details of the 2015 offences were provided to the court. That information revealed a campaign of threats and violence directed towards the victim, her children, her dog, and her possessions, over a number of months in early 2015, together with violence directed to police officers when they sought to apprehend the applicant.
A custodial history and a determination from the State Parole Authority showed that the parole that the applicant had been subject to from 17 March 2016 had been revoked on 8 July 2016. The details of the breaches that had led to revocation included the applicant's refusal to co-operate with Community Corrections or accept reasonable directions, aggressive conduct towards his parole officer, and his use of prohibited drugs (amphetamine, methylamphetamine and cannabis). As a consequence of the revocation of parole, the applicant was at large, wanted under a warrant for his committal to prison to serve the balance of parole at the time of the commission of all offences.
In a victim impact statement admitted before, and read to, the sentencing court pursuant to s 28(1) of the Criminal Procedure Act 1986 (NSW), the applicant's former partner described the terror that his conduct had caused to her and her children, and the lasting impact it had had upon them.
The applicant did not give evidence.
He tendered a report from Marlene Headington, a psychologist, who had been asked by his legal representatives to provide a psychological assessment of the applicant for use during the sentence proceedings.
Ms Headington interviewed the applicant and administered a number of psychological tests over a four hour period in March 2018. She noted that the applicant was a [then] 37 year old man who was able to give a comprehensive history of his circumstances, despite "wanting to talk about [assertions about his former partner] and to explain his version of events".
He described a "proper" upbringing in an intact family of adequate means, although one without a great deal of display of affection towards him. The applicant regarded himself as the odd one out of the three sons of the family. From about age 15 years the applicant said that he spent most of his time at the home of a school friend, having only limited contact with his family. He had no contact with family after he moved into independent accommodation at age 17 years, not seeing his parents until he was 29 years old. His mother died at around that time.
The applicant said that he had frequently gotten into trouble at school, leaving in Year 10, although reportedly finishing his School Certificate. He was generally employed in unskilled positions thereafter, although drug use escalating in his mid-twenties led to unemployment prior to his incarceration in 2015.
The applicant and the victim began a relationship when he was aged about 27 years, and the couple had two children. The relationship broke down in 2014, and the applicant was subsequently admitted to hospital due to suicidal ideation. He remained an inpatient of a psychiatric ward for a week. On discharge his mood was given as "stable". From the symptoms the applicant described to Ms Headington, and by comparing them with those given in the Diagnostic and Statistical Manual of Mental Disorders 5th Edition ("DSM-V"), she thought he had suffered from a Major Depressive Disorder at that time. She also thought - from his description of his childhood conduct - that he may have had Attention Deficit Hyperactivity Disorder.
The applicant told Ms Headington that he had regular access to his children until his incarceration in 2015, and then again on release to parole in March 2016. That situation changed, he said, when his former partner became aware that his parole was to be revoked, after which she refused further contact. He claimed that his mental health further deteriorated and he became "fixated" on a desire to see his children.
From the applicant's account of his abuse of illicit drugs, commencing with cannabis at about age 12, and progressing to regular use of amphetamines and later methylamphetamines, and comparing it to symptoms listed in the DSM-V, Ms Headington suggested that the applicant had a Substance Use Disorder.
The applicant claimed that he had never intended to harm his former partner, and denied ever threatening their children. He was reluctant to acknowledge that she could have been frightened by his behaviour. The applicant blamed the victim for his conduct, attributing it to her refusal to allow him to see the children (after it was known his parole was to be revoked). He said he was not a violent person, rather being generally "calm" and a "hippie". Ms Headington observed that the applicant remained angry with the victim, and became agitated when he discussed her. He justified his conduct as "fighting for [his] kids".
Psychometric testing suggested that the applicant had feelings of worthlessness, and a depressive personality pattern. Despite his offending conduct, Ms Headington suggested that the applicant had a dependent and submissive personality, with a vulnerability to being exploited. He was likely to be depressed. She concluded that the applicant is of average intelligence, with no cognitive impairment.
Ms Headington opined that the applicant showed little to no insight into the consequences of his conduct, and he would not accept that he had threatened his children. She concluded that his "denial and lack of insight" presented as "an ongoing risk of reoffending".
The applicant also tendered and relied upon a reference from a friend of 22 years who thought his conduct was "uncharacteristic", and documents to establish that he had attended "Remand Addiction" sessions in custody.
A friend from school years, Ian Murray, was called to give evidence for the applicant. Mr Murray had been a police officer for ten years. He told the sentencing court that he had maintained contact with the applicant since his incarceration, and had observed a change in him in that time. He thought that the applicant had come to realise that his actions had been wrong, and he understood that he needed help to address his drug use. He had expressed remorse. Mr Murray said that he was willing to provide the applicant with accommodation upon his release from prison.
In cross-examination Mr Murray conceded that the applicant had said that he blamed his former partner for what had happened, and denied that he had ever intended to hurt her, or that he had threatened his children.
[7]
The Conclusions of the Sentencing Judge
Having summarised the evidence and submissions of the parties in his remarks on sentence, the sentencing judge turned to consider the gravity of the offences. In relation to sequence 4, the State offence of break and enter with intent to intimidate, his Honour concluded that it fell "towards the higher end of the mid-range" for an offence of like nature. He referred to a number of features specified in s 21A(2) of the Crimes (Sentencing Procedure) Act as aggravating features present in this case, being the applicant's record for previous convictions (s 21A(2)(d)); the fact that the offence occurred in the victim's home (s 21A(2)(eb)); that the applicant was "on conditional liberty, namely parole" at the relevant time (s 21A(2)(j)); that he was in a position of trust and authority to the victim (s 21A(2)(k)); and that there had been a series of criminal acts involving multiple victims (s 21A(2)(m)).
His Honour similarly concluded that the two Commonwealth offences, sequences 2 and 12, fell at about the middle of the range of objective gravity, having regard to the fact that the offences occurred within the context of a domestic relationship during which there had been earlier offending violence; that the charged offences were part of an ongoing course of conduct over a period of months; that more than one person had been threatened with death; that the victim had been prevented from returning to her home due to fear of the applicant; and that the offences had caused harm.
His Honour noted that there were two other offences, to be taken into account when imposing sentence for sequences 4 and 12, necessarily leading to an increase in the sentences to be imposed, in the circumstances of the case. He also had regard to the strong need for both specific and general deterrence, the early pleas of guilty, and the guidepost provided by the statutory maximum penalties for the offences (although, in relation to sequence 11, his Honour was in error as to the maximum sentence, wrongly recording it as a term of 3 years imprisonment, for an offence that carries a maximum sentence of 5 years imprisonment).
A discount on sentence of 25% was specified for the State offence in recognition of the early plea of guilty, and a similar figure was awarded to reflect the utilitarian value of the early pleas in the Commonwealth matters.
The sentencing judge was cognisant of the requirement to observe the principle of totality, and gave careful consideration to the question of concurrency / accumulation of sentence.
His Honour referred at length to the report of Ms Headington, but noted that little weight could be given to the hearsay recorded in it, in the absence of any evidence from the applicant. He did not accept that the applicant was remorseful, observing that, to Ms Headington, the applicant:
[…] blamed the victim, and showed little insight into the impact of his criminal conduct on his children. This gives the court little reassurance that he will not reoffend, and speaks little for any remorse or contrition outlined by the psychologist.
[…]
[…] his lack of insight and denials of harm mean that the court must assess him as being a serious risk of reoffending and as having little remorse for his conduct.
The sentencing judge concluded that there had been "a substantial emotional impact" on the applicant's former partner and his children as a consequence of the offences. His Honour did not accept that the applicant had not intended to harm his children, or his former partner.
His Honour declined to make a finding of special circumstances with respect to the State offences, pursuant to s 44 of the Crimes (Sentencing Procedure) Act, observing that the sentence to be imposed would give a sufficient period of supervision by operation of the ordinary statutory ratio.
[8]
Grounds 1 and 2
Grounds 1 and 2 can conveniently be dealt with together, since they rely upon the same complaint, being that the sentencing judge erred in finding that the offending was aggravated because the applicant was subject to conditional liberty on parole at the time of the offending conduct.
The sentencing judge found that the State offence of break and enter with intent to intimidate was aggravated by the fact that the applicant "was on conditional liberty, namely parole". Although there was no comparable finding with respect to the Commonwealth offences, it is clear that his Honour had regard in a general sense to the fact that the applicant had previously been dealt with for domestic violence offences, and had exhibited a continuing disregard for the law, when fixing the aggregate sentence imposed for these offences.
To describe the applicant as having been at liberty subject to parole at the time of the commission of the offences was an error, but it was error of a very technical nature; it was not one which wrongly elevated the sentences imposed upon him.
The evidence before the sentencing judge showed that the applicant had been admitted to parole after serving the NPP of the 2015 sentences, on 17 March 2016. On 8 July 2016 his parole was revoked. All of the offences were committed after that date, when the applicant was at large, with a warrant of commitment extant for his committal to prison.
Although there is a difference between being "at liberty" and being "at large", it is a difference that in the circumstances of this case may well have favoured the applicant. Arguably, the commission of a crime by a person at large and wanted by warrant of commitment carries greater moral culpability than the commission of a crime by a person who (other than by the commission of the offence) is lawfully at conditional liberty.
Further, although there was evidence before the sentencing court that the applicant was aware that his parole had been or was about to be revoked, the sentencing judge did not take that into account, adverse to the applicant as it was. The agreed statement of facts recorded that the applicant had "actively evaded police for about 2 months" prior to his arrest. The applicant told Ms Headington that,
[…] he had been visiting his children on weekends and his ex-partner ceased visits once she heard that he had breached his parole and would be returning to custody.
The sentencing judge did not refer to this feature of the matter, but simply treated the applicant as being at liberty. This was not an error that adversely affected the applicant's position; it was either neutral, or favourable to the applicant.
Nevertheless, because of the error identified in grounds 1 and 2, and no matter how technical, the applicant submits, and the Crown accepted, that these grounds have been made out, and it was necessary for this Court to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. At [42] of that decision the High Court said,
When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law".
Although the error complained of here barely merits the name, it represents a mistake of the facts as referred to in Kentwell.
Leave should be granted to advance grounds 1 and 2, and each must be upheld. In these circumstances, it is not strictly necessary to consider the remaining grounds. However, since they may be of some relevance to the question of whether some other sentence is warranted in law for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW), I turn to them.
[9]
Ground 3
By this proposed ground the applicant complains that the sentencing judge erred in finding, in relation to the State offence contrary to s 113(1) of the Crimes Act 1900 (NSW), that the applicant abused a position of trust and authority relevant to the victim. His Honour said,
[…] I accept the following aggravating factors pursuant to s 21A(2) of the CSPA, namely:
[…]
(iv) The offender abused a position of trust and authority in relation to the victims pursuant to s 21A(2)(k).
This was a formal finding by the sentencing judge, that the aggravating feature referred to in s 21A(2)(k) of the Crimes (Sentencing Procedure) Act was made out. Another feature to which his Honour referred in this regard was "that there were multiple victims of the substantive offence".
The applicant contends that, given that the applicant and the victim were separated at the time of the commission of the offence, it was not open to the sentencing court to conclude that he held a position of trust or authority with respect to her. The decisions of Suleman v R [2009] NSWCCA 70 per Howie J at [22]; and Cowling v R [2015] NSWCCA 213 per Leeming JA at [10] are relied upon in that regard.
Suleman sets out the relevant principle, applied in Cowling. It is,
The relevant factor is that there was at the time of the offending a particular relationship between the offender and the victim that amounted to "a position of trust". It is a special relationship existing between them and transcends the usual duty of care arising between persons in the community in their everyday contact or their business and social dealings. The position of trust may reside in only one of the persons, such as between parent and child. But there may be situations where each stands in a position of trust to the other. The relationship is one recognised by the common law as imposing upon one of the participants a particular responsibility not to act to the detriment of the other because of their peculiar relationship.
The applicant's argument is advanced on the basis that the existence of an ADVO that prevented the applicant from contacting his former partner and children dissolved the relationship of trust and authority he formerly held to them, and thus the sentencing judge was in error in finding the aggravating feature made out.
This contention must be rejected.
The fact that a court has had to intervene in a domestic relationship by issuing an order to protect some of those involved in it, does not terminate the obligations of a father to his children, or the position he holds towards them. The applicant continued to hold a position of trust to his sons, and authority over them, regardless of the ADVO that sought to regulate his behaviour.
In finding the statutory feature of aggravation made out, it is clear that the sentencing judge was referring to a position of trust and authority that the applicant held with respect to all of the victims of the s 113(1) offence, inclusive of his sons. There can be no question that the applicant had such a relationship to his children. This alone was sufficient to provide a proper basis upon which it was open to the sentencing court to make the finding it did.
Although the applicant had separated from his former partner, and an ADVO regulated his conduct towards her, he similarly continued to have a position of trust with respect to her, albeit of a less significant nature. The applicant had privileged access to his former partner's life as a consequence of his previous relationship to her that a stranger, or a person with only a slight acquaintance to her, would not have had. It extended to knowing where she lived, knowing how to contact her mother, knowing that she had a second mobile phone in her home, and the like. Whilst this is a relationship involving a much lesser degree of trust than the relationship between a father and his children, it did impose a responsibility not to act to her detriment. I would not conclude that it is erroneous to treat it as such.
I would dismiss this ground.
[10]
Ground 4
By this proposed ground the applicant asserts that the sentences imposed upon him are manifestly excessive.
In arguing this ground, the applicant places considerable weight upon the psychological assessment prepared by Ms Headington. Referring to her suggestion that the applicant had a personality construct which impacted upon his capacity to cope with intense emotional distress, he contends that,
In determining the appropriate sentences the sentencing judge does not appear to have considered that the applicant's emotional relationship to his failed relationship was so extreme, at least in part, because of his psychological deficits.
There are a number of observations to be made about the reliance placed by the applicant upon the report of Ms Headington.
Firstly, Ms Headington's conclusions and observations were substantially based upon the applicant's account to her of relevant events, an account that she largely accepted. The applicant's account was not given or confirmed on oath, and it was not able to be tested by the Crown. In those circumstances, it was incumbent upon the sentencing judge to approach the psychological report with considerable circumspection, as his Honour did.
The approach taken by the sentencing judge was entirely in accord with proper principle. In Regina v Qutami [2001] NSWCCA 353, Smart AJ said, at [58]-[59]:
There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
Spigelman CJ agreed at [79], saying,
I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings.
In all of these circumstances, it was open to the sentencing judge to give the report limited weight in determining the sentences to be imposed. There was no obligation upon his Honour to accept without reservation that the applicant's personality was at the heart of the offences.
Secondly, in giving her opinion that the applicant was likely to have experienced feelings of anger and frustration at the break down of his relationship with the victim, Ms Headington does not appear to have considered the fact that the relationship had ended about two years prior to the offending conduct, with the applicant gaoled in the interim for similar offences. This provided a further basis for the sentencing judge to give limited weight to any conclusions advanced by Ms Headington that potentially mitigated the criminality of the applicant's conduct.
Finally, at first instance the applicant relied upon intoxication as being a significant feature in the commission of the offences, rather than upon any argument about his asserted personality defects. It was submitted that,
It's not an excuse but at the time of the index offences he was under the influence of drugs. There's obviously a serious drug problem, an ongoing problem, which is identified in the psychologist's report of Ms Headington.
Counsel for the applicant went on to submit that, since the applicant had acknowledged to Ms Headington and to Mr Murray that he needed rehabilitative treatment for his drug use, "there is light at the end of the tunnel". It was submitted that, whilst the applicant needed to learn "coping skills and relapse strategies", his prospects of rehabilitation were strong. Drug abuse and rehabilitation from that abuse was the focus of the applicant's case in the District Court, not causative psychological disorder.
An appeal before this Court is not an opportunity to recast the case presented at first instance: Zreika v R [2012] NSWCCA 44 at [81] per Johnson J, with whom McClellan CJ at CL agreed.
In support of this ground the applicant also complains that an inadequate degree of concurrency was allowed in fixing the aggregate terms of imprisonment.
It is difficult to see how this submission can be made good in circumstances where the sentencing judge correctly referred to the relevant principles (citing R v Van Ryn [2016] NSWCCA 1 at [228]-[230]; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, at [27]; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, at [39]-[40]; and Berryman v R [2017] NSWCCA 297) and imposed sentence in such a way that there was only 12 months of accumulation between the two aggregate sentences. Bearing in mind that this was an ongoing course of conduct that terrorised the applicant's former partner and children over a period of months, this level of accumulation is relatively modest.
As the applicant acknowledged before this Court, the degree of concurrency and accumulation is a discretionary matter for the sentencing judge, and some misapplication of principle or other error as contemplated in House v The King [1936] HCA 40; (1936) 55 CLR 499 must be identified to make good the complaint. I am unable to identify such error.
The principles to be applied in determining whether a sentence is manifestly excessive were summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R [2017] NSWCCA 221 at [443], as follows:
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
Having regard to these principles, I do not conclude that they were out of the range of the proper exercise of the sentencing discretion. The applicant subjected his former partner and young children to a veritable campaign of terror over a period of months, culminating in them being so frightened as to be unable to return to their home. He did that in circumstances where he had a criminal history of having subjected his partner to violence in the past, and where his conduct constituted regular and ongoing breaches of a court order issued for the very purpose of protecting his family from him. Specific deterrence loomed large, as did general deterrence. Those who would treat their spouses and children with violence, or threats of violence and intimidation, must see that there will be a heavy price to pay in indulging such criminal conduct. That is particularly so where court orders have been issued to prohibit domestic violence, lest such orders are seen to be, and become, wholly futile.
I would dismiss this ground.
[11]
The Question of Re-sentencing
Error having been established with respect to grounds 1 and 2, the Court must exercise the sentencing discretion afresh and re-sentence the applicant, unless no other sentence is warranted in law.
On this question, the applicant read his own affidavit of 6 March 2019, and an affidavit from his solicitor, Janet Witmer, of 8 March 2019.
The applicant deposed that he is presently incarcerated at Cooma Correctional Centre. He is prescribed medication for depression and anxiety. He is employed, ordinarily for five days each week, in textiles and says he has been told that he is a good worker.
The applicant says that he has been given a date upon which he can commence rehabilitative courses (EQUIPS Foundation / Addiction / and Domestic Violence) that he is looking forward to undertaking. He presently attends AA meetings.
The applicant is relatively isolated at Cooma, in part because he does not want family and friends to have to attend a prison to visit him. He maintains contact with his grandmother by letter and telephone, and has other contact with friends. He writes occasionally to his father.
On release he plans to work interstate in the mining industry. He would like a relationship with his children, but accepts that it will take time to restore it. He says that he is "appalled and ashamed" of his behaviour towards his partner, and is "sincerely committed" to change.
Ms Witmer has obtained copies of Corrective Services file notes that confirm that the applicant is well regarded at his work, and is in receipt of treatment for depression.
Taking this evidence into account, and having regard to all of the evidence that was before the sentencing court, I am not persuaded that another, lesser, sentence is warranted in law.
These offences represent a serious campaign of terror by the applicant against his former wife and young children, in flagrant disregard of an ADVO issued for their protection, that has done lasting damage, and at a time when the applicant was in breach of parole and actively evading police. Like the sentencing judge, I would give little weight to the matters of mitigation in the psychological report, based as they were upon the applicant's hearsay account to the author.
Having regard to the applicant's record for violence against his former wife, specific deterrence must be given full weight. General deterrence also requires that a stern sentence be imposed. Particularly after giving consideration to what sentence is required to reflect the need for general and specific deterrence, punishment, denunciation of the offences, and recognition of the harm done by them, I cannot conclude that a lesser sentence is warranted in law.
[12]
Conclusion
I would dismiss the appeal.
IERACE J: I also agree that the leave to appeal against sentence be granted but that the appeal is dismissed. In relation to the reasons for dismissal of Grounds 1 and 2, I agree with the reasoning of Simpson AJA.
[13]
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Decision last updated: 24 May 2019