Tuvunivono v R

Judgment 1BASTEN JA: The applicant sought leave to appeal with respect to sentences imposed upon him for 10 offences of armed robbery or attempted armed robbery to which he had pleaded guilty. Fourteen further offences, including 11 of armed robbery and one attempted armed robbery, were included on a Form 1, to be taken into account in sentencing for the first count. 2The background circumstances, the sentences and the grounds of appeal are all fully set out in the judgment of Price J and need not be repeated. I agree with Price J that there should be a grant of leave to appeal in respect of each sentence and agree, with one exception, with his reasons for rejecting each ground. 3The exception is ground 3. That ground asserted that the individual sentences were manifestly excessive, the primary focus being upon the fact that on each sentence (other than for count 1) the trial judge had imposed a fixed term of imprisonment of four years (for each of counts 7, 8 and 10), four years and six months (for each of counts 4, 5, 6 and 9) and five years (on counts 2 and 3). On count 1 the applicant was sentenced to a non-parole period of six years and four months, with an additional term of four years. 4There was a degree of accumulation in respect of each sentence. Thus, the second and third four year terms were each accumulated by one month on the previous term; the four year and six month terms were each accumulated by two months on the previous sentence; the five year terms were each accumulated by three months on the previous sentence and the final sentence on count 1 was accumulated by four months on the previous sentence. In the result, the final sentence commenced one year and eight months after the commencement of the first sentence imposed. The final sentence having a non-parole period of six years and four months, the total period of mandatory custody was eight years. The balance of parole on the final sentence was four years, giving a total sentence of 12 years imprisonment. As argued, ground 3 was primarily directed to the length and accumulation of the fixed term sentences. 5The judgement on sentence referred explicitly to the guidelines for sentencing for offences of armed robbery having certain common characteristics in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. In that case, Spigelman CJ (with the concurrence of Wood CJ at CL, Newman and Simpson JJ) held that "sentences for an offence of the character identified above should generally fall between four and five years for the full term": at [165]. After dealing with other authorities and the need for a degree of accumulation, the trial judge stated (judgment, p 24): "Each of the robberies, as well as the attempted robberies, come within the Henry factors in terms of that guideline judgment. Each would warrant the imposition of a sentence of the range suggested in that decision." 6It is not possible to read that statement as referring to some of the offences, but not others: such an approach would require identification of which offences the trial judge was referring to, but no basis for such an exercise is revealed by the reasons. 7It does not follow that the sentence on each offence was to fall within the range suggested in Henry; given the significant number of serious offences contained in the Form 1, it was inevitable that a greater sentence would be imposed in respect of count 1. Nevertheless, the offence in count 1 was clearly one of the offences which, taken in isolation, was held to fall within the Henry guidelines. 8Further support for that conclusion derives from the fact that each of the nine fixed terms fell within the range identified in Henry, namely four years to five years. The error, if there were one, lay in equating a fixed term with a full term of imprisonment. 9The trial judge was not imposing an aggregate sentence of imprisonment, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Nor was he sentencing for offences carrying a standard non-parole period. Accordingly, it was open to him to decline to set a non-parole period: Sentencing Procedure Act, s 45(1). In a case involving the imposition of numerous sentences with elements of accumulation, that course is entirely appropriate. Nevertheless, subject to any question of totality, it is necessary to impose sentences which are appropriate to each offence: Pearce v The Queen [1998] HCA 57; 194 CLR 610. It is also a fundamental principle of sentencing that the non-parole period is the minimum period of imprisonment which the offender must serve for the specific offence: Power v The Queen [1974] HCA 26; 131 CLR 623 at 628. Because there is no power to release a prisoner during a fixed term, the fixed term should also be understood to be the minimum period which the sentencing judge deems appropriate in the circumstances of the specific offence. Finally, it is necessary that any period of accumulation be fixed by reference to the non-parole period of the sentence or the term of the sentence where there is no non-parole period: Sentencing Procedure Act, s 55(2) and (4). 10As explained in Lipchin v R [2013] NSWCCA 77 by Hidden J (Bathurst CJ and Button J agreeing) a fixed term sentence is usually to be equated with a non-parole period: at [16]; Collier v R [2012] NSWCCA 213 at [56] (R A Hulme J); R v Dunn [2004] NSWCCA 346 at [161] (Handley JA, James and Howie JJ). Once it is understood that an appropriate sentence must be imposed for each offence, it is clear that the fixed term must equate with an appropriate minimum period of imprisonment. Were it otherwise, and each of the other convictions were set aside on appeal, the offender would serve in custody more than the minimum term appropriate to that offence. 11In the present case, the sentencing judge had expressly (and correctly) identified the range for sentencing to be that prescribed by Henry. He imposed sentences within that range: they were, in accordance with the language of Henry, to be treated as full terms of imprisonment. If they were to be treated as equivalent to non-parole periods, the full terms (absent special circumstances, which were not found) would have ranged from five years four months to six years eight months, being a range commencing just beyond the Henry range, but extending well beyond it. It is improbable that the trial judge intended such sentences, absent any indication that he was sentencing within such a range. 12It follows that each of the sentences imposed on counts 2-10 was manifestly excessive and the applicant should be resentenced accordingly. For each sentence of four years imprisonment, a non-parole period of three years would have been appropriate and a fixed term should be imposed of that duration. In respect of each sentence of four years six months, an appropriate non-parole period is three years four months and a fixed term of that duration should be imposed. In respect of the sentences of five years imprisonment, the appropriate fixed term is three years and nine months. 13There remains a question as to whether the periods of accumulation should be varied. The difficulty facing the applicant is that each period of accumulation was a very small proportion of the sentence imposed. Even in respect of the five year sentence imposed on count 2, the period of accumulation with respect to count 1 was only four months, or less than 7% of the fixed term. After reduction of the relevant fixed term, it is still less than 9%. The percentages in respect of other sentences are even smaller. Further, looked at in absolute terms, notionally increasing the period of mandatory custody by four months for an armed robbery carrying a full term of five years is not by any means excessive. Nor is the period of one year and eight months imprisonment referable to nine separate offences of armed robbery or attempted armed robbery manifestly excessive, taking into account the principle of totality. 14Accordingly, although it is appropriate to resentence the applicant to appropriate fixed terms of imprisonment, the overall result does not reduce the eight year period which he must serve in custody before becoming eligible for parole. 15There should be a grant of leave to appeal, the appeal should be upheld with respect to counts 2-10 and the applicant should be resentenced as indicated. However, as this is a minority view, there is no need to set out the precise terms of the proposed sentences. Each, in any event, commences on the date fixed for that offence by the trial judge. 16PRICE J: Maxwell Tuvunivono (the applicant) seeks leave to appeal against the sentences imposed on him by Knox DCJ (the judge) in the District Court at Sydney on 8 April 2010. He also seeks leave to appeal out of time. 17The applicant pleaded guilty before the judge to seven counts on an indictment being counts 1 to 6 and count 9. Counts 1, 3 to 6 were offences of robbery, armed with an offensive weapon (armed robbery) whereas count 2 was an offence of attempted armed robbery. 18Pleas of guilty had earlier been entered in the Local Court by the applicant to counts 7, 8 and 10 on the indictment. Counts 7 and 8 were offences of armed robbery and count 10 was an offence of attempted armed robbery. The offensive weapon in each count, with the exception of count 9, was a knife. 19All of the offences to which the applicant had pleaded guilty were contrary to s 97(1) Crimes Act 1900 (and s 344A(1) in the case of an attempt) and are punishable by a maximum penalty of 20 years imprisonment. 20The applicant asked the judge to take into account on sentence 14 offences that had been included on a Form 1. Eleven of these were offences of armed robbery contrary to s 97(1) Crimes Act and one an attempted armed robbery. There was also on the Form 1 an offence of stealing, contrary to s 94 Crimes Act and an offence of providing false information contrary to s 24 Pawnbroker and Second-hand Dealers Act 1996. 21The offences on the Form 1 were taken into account by the judge in the sentence imposed for count 1. 22During his sentencing remarks, the judge stated that because of the relatively complicated sentencing exercise, it was appropriate to categorise the offences into four different categories in descending order. His Honour said (ROS at 24-25): Category D offences, for which there was a plea and to which there is a twenty percent discount to be applied includes counts 10, 8 and 7. The appropriate period of accumulation for these offences is one month's imprisonment. Category C offences, for which there was a plea at a later date, include counts 9, 6, 5 and 4. A ten percent discount is applicable to these offences and the appropriate period of accumulation is two months. Category B offences refer to the offences committed while the offender was on parole and to which there was a later plea, namely counts 3 and 2. A ten per cent discount is appropriate to these offences and the appropriate period of accumulation is three months. ... Count 1 is a unique count constituting the Category A offence. The offender was on parole when this offence was committed and there was a late plea in relation to this count. There are also the Form 1 matters to be attached to this count. A period of four months' accumulation is appropriate on this count. 23The division of the offences into four categories by his Honour indicated the percentage of the discount for a plea of guilty and the extent of accumulation for an offence for which the applicant was to be sentenced. 24The judge sentenced the applicant as follows: Category D offences Count 10: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 March 2008 and expiring on 19 March 2012; Count 8: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 April 2008 and expiring on 19 April 2012; Count 7: Sentenced to a fixed term of imprisonment of 4 years commencing on 20 May 2008 and expiring on 19 May 2012; Category C offences Count 9: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 July 2008 and expiring on19 January 2013; Count 6: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 September 2008 and expiring on 19 March 2013; Count 5: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 November 2008 and expiring on 19 May 2013; Count 4: Sentenced to a fixed term of imprisonment of 4 years and 6 months commencing on 20 January 2009 and expiring on 19 July 2013; Category B offences Count 3: Sentenced to a fixed term of imprisonment of 5 years commencing on 20 April 2009 and expiring on 19 April 2014; Count 2: Sentenced to a fixed term of imprisonment of 5 years commencing on 20 July 2009 and expiring on 19 July 2014; Category A offence (Including offences on Form 1). Count 1: Sentenced to a non-parole period of 6 years and 4 months commencing on 20 November 2009, with an additional term of 4 years to date from 19 March 2016 and to expire on 18 March 2020. 25The total effective sentence imposed by the judge was 12 years imprisonment comprising of a non-parole period of 8 years commencing on 20 March 2008 and expiring on 19 March 2016 with a balance of term of 4 years commencing on 19 March 2016 and expiring on 18 March 2020. The application for an extension of time 26The applicant was sentenced on 8 April 2010. On 2 August 2010, he filed a notice of intention to appeal. On 5 August 2010, the court received a request for an extension of time, which was granted by the registrar for six months and expired on 2 February 2011. 27An application for extension of time for notice of intention to appeal was received by the court on 26 July 2012. The registrar refused the application as the time to appeal had expired some 18 months previously. 28The Crown opposes the extension of time being granted. The Crown says that the delay of 18 months is significant and has not been adequately explained. 29The only explanation for the delay is provided by the applicant's affidavit. According to the applicant, he received a letter about the appeal from whom he thought was Legal Aid NSW some time after the extension of time was granted. He understood that they were agreeing to represent him. 30The applicant was transferred to the mid North Coast Correctional Centre in about February 2011. He attempted to contact Legal Aid through the Welfare Officer and with her assistance made some telephone calls about his appeal. The applicant stated that he was unable to speak to a solicitor despite leaving messages that he would call back at a certain time. The Welfare officer went on leave for 8 months but resumed helping him in July 2012. He received some correspondence from Legal Aid NSW that they would consider his application in September 2012. By a letter dated 13 March 2013 the applicant was advised that he was granted legal aid for his appeal against sentence. 31I am satisfied that the applicant always intended to appeal his sentence but had difficulties contacting Legal Aid as he was in custody. The appeal raises matters of substance and the applicant faces a lengthy term of imprisonment for serious offences. 32In these circumstances, I conclude that the extension of time should be granted and it is appropriate for this court to consider the appeal on its merits. The Grounds of Appeal 33The notice of appeal identifies three grounds: