Vincent v R

Judgment

1. WARD P: I have had the advantage of reading in draft the respective judgments of Davies J and Fagan J. I agree with the conclusions reached by their Honours that the grounds of appeal should be rejected and that orders should be made granting leave to appeal and for the appeal to be dismissed. I also agree with their Honours' respective reasons although (as it is unnecessary in view of the conclusion reached that there was not House v The King error in relation to ground 1 of the appeal), I would prefer not to express a view on the apparent disconformity between Kerr v R [2008] NSWCCA 201 and CM v R [2020] NSWCCA 136, as identified in Davies J's reasons (see in particular at [44]-[46] below).
2. DAVIES J: The applicant pleaded guilty in the Local Court at Wellington on 18 September 2020 to four counts of using a carriage service to menace, harass or offend, contrary to s 474.17(1) of the Criminal Code (Cth). The maximum penalty for this offence is three years' imprisonment.
3. He was committed for sentence to the District Court. On 18 June 2021 he was sentenced by Judge N Williams to an aggregate term of imprisonment of 3 years and 7 months commencing 18 September 2020 and expiring 17 April 2024 with a non-parole period of 2 years and 4 months expiring 17 January 2023.
4. The indicative sentences were imprisonment for 1 year in respect of counts 1, 5 and 10, and imprisonment for 1 year and 2 months for count 2.
5. The applicant now seeks leave to appeal against that sentence on two grounds: Ground 1: The sentencing judge erred by failing to correctly apply the principle of totality. Ground 2: The sentence is manifestly excessive.

The offending

1. The applicant was sentenced on the basis of a statement of agreed facts. Those facts disclosed that throughout the period of the offending the applicant was an inmate at various prisons. The offences arose out of his use of the prison phone, using the accounts of other inmates to make harassing and offensive calls to various entities, being Quitline, 1800 RESPECT, Family and Community Services NSW, and Crime Stoppers.
2. It is not necessary to detail what was said in these calls. It is sufficient to note that in each of them he said to the operator to whom he spoke that he had sexually abused his young daughter and other girls under the age of ten years. In each case he would describe sexual acts he had purportedly committed on these young girls.
3. Count 1 involved a single call to Quitline on 16 October 2018. The applicant admitted to making the phone call while being incarcerated at Long Bay Correctional Centre. He admitted that what he did was done for sexual gratification.
4. Count 2 involved some 20 calls made between 27 October 2018 and 3 November 2018 to 1800 RESPECT. The applicant admitted that the content of the calls was fictitious and that it was done for the purpose of sexual gratification.
5. Count 5 involved a number of calls (in excess of 10) made on 1 and 2 December 2018 to 1800 RESPECT. The applicant admitted that the content of the calls was fictitious.
6. Count 10 involved three calls made on 8, 9 and 14 August 2019 to Family and Community Services NSW, and a call on 20 August 2019 to Crime Stoppers. The applicant admitted that the content of the calls was fictitious and that the calls were made for the purpose of sexual gratification.
7. A number of the operators at 1800 RESPECT came to recognise the applicant when he called, with the result that they would terminate the calls. However, the applicant would ring again and speak to a different operator.
8. On 14 October 2019, the applicant took part in a recorded interview. He made the following admissions: (a) He made phone calls from prison using the accounts of other inmates; (b) He did this because Community Corrections had suspended his ability to make phone calls from his account owing to similar offences committed; (c) He has a daughter then aged about ten years old whom he had not seen since she was two or three years old. He did not know where she lived; (d) He made some calls for sexual gratification and he made some calls in an attempt to get people to "see him". The distinction, he said, could be determined by the level of deviant detail he included. He said that if he gave a false name there was a good chance that the call was made for sexual gratification purposes; (e) He admitted to being sexually attracted to female children under the age of five years; (f) He chose to speak with female operators because it was more sexually gratifying. If he made a call and a man answered he would hang up.
9. He also said that his intention in making the calls was to stay in gaol.

Applicant's criminal history

1. The applicant has a history of similar offending and, in recent times, it is that criminal history which gives rise to the issue of totality raised by the first ground of appeal.
2. On 14 November 2007, the applicant was given a two-year s 9 bond for two counts of using a carriage service to menace, harass or offend.
3. On 5 September 2008 he was given a community service order for 50 hours for the same offence.
4. On 21 April 2010 the applicant was sentenced to 6 months' imprisonment for the same offence and an offence of giving false information about a person or property being in danger.
5. On 25 February 2015 the applicant was convicted of having sexual intercourse with a person aged between 14 and 16. He was sentenced to 15 months' imprisonment with a non-parole period of 10 months. Some other matters were taken into account on a Form 1 including using a carriage service to menace, harass or offend.
6. Of particular relevance to the issue of totality, the applicant was sentenced on 2 February 2018 in the Campbelltown Local Court to imprisonment for 6 months commencing 29 May 2017 and expiring 28 November 2017 for using a carriage service to menace, harass or offend. He was also sentenced to 14 months' imprisonment commencing 29 May 2017 and expiring 28 July 2018 with a non-parole period of 11 months expiring 28 April 2018 for failing to comply with the terms of an interim supervision order imposed by Fagan J on 28 March 2017.
7. On 30 June 2017 an extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) was made for a period of five years: State of NSW v Vincent [2017] NSWSC 858.
8. Whilst in custody on remand for the offences for which he was sentenced in Campbelltown Local Court on 2 February 2018, the applicant made four calls to the State Debt Recovery Office, Care Navigation Support Hot Line and Forensic Mental Health Hotline on 17 July 2017 and 11 September 2017. Those calls led to three further charges of using a carriage service to menace, harass or offend. On 29 June 2018 he was sentenced by Judge Noman SC in the District Court to an effective sentence of 3 years' imprisonment commencing 28 April 2018 and expiring 27 April 2021 with a non-parole period of 2 years expiring on 27 April 2020. Her Honour made a recognizance release order commencing on 27 April 2020.
9. On 23 April 2020 the applicant signed a document saying that he did not wish to be released from custody, as I believe that I remain a threat to the community. I do not believe that I deserve to be released and I will refuse to accept the supervision of Community Corrections.
10. At the time of the sentence hearing before Judge N Williams on 23 April 2021, the applicant was serving out the final part of his sentence imposed by Judge Noman SC. However, that sentence expired on 27 April 2021. The applicant remained in custody on remand for the sentences in respect of which he was to be sentenced by Judge Williams. The sentence was imposed by Judge Williams on 18 June 2021 and was backdated to commence on 18 September 2020.

Ground 1: The sentencing judge erred by failing to correctly apply the principle of totality

Submissions

1. The applicant submitted that, although s 16B of the Crimes Act 1914 (Cth) did not apply in the present case, the principle of totality was implicit in the provisions of s 16A of the Crimes Act. The applicant submitted that there were three reasons why the sentencing judge erred in applying principles of totality to ensure that, pursuant to s 16A(1), the sentence was one "of a severity appropriate in all the circumstances of the offence".
2. First, the applicant submitted that the sentencing judge did not account for the total effective and accumulated non-parole period as a proportion of the total effective and accumulated sentence. The applicant's accumulated term of custody began with a period of incarceration commencing 29 May 2017, followed by the sentence imposed by Judge Noman SC commencing 28 April 2018, and thereafter the term of imprisonment for the index offences.
3. By the date the applicant is first eligible for release to parole, being 17 January 2023, the applicant will have been imprisoned for a period of five years, seven months and 18 days. The parole period imposed by the sentencing judge was a further 15 months. In those circumstances, the total effective accumulated non-parole period amounts to almost 81.9% of the total effective accumulated sentence. The applicant submitted that in those circumstances her Honour's concerns about the applicant's risk of institutionalisation and the need for an extended period of time under supervision were largely nullified by the sentence she imposed.
4. Secondly, the applicant submitted that the manner in which the sentencing judge backdated the commencement of the sentence failed properly to apply the principles of totality. The applicant submitted that it was wrong not to backdate the sentence to the date the applicant became eligible for release to recognizance, being 27 April 2020. The applicant submitted that although her Honour said there was a need to avoid a crushing sentence and the need to take into account the significant period of time the applicant had already been in custody, the backdating of the sentence only to 18 September 2020 failed fully to account for either of those matters.
5. Thirdly, the applicant submitted that having regard to the similarity of the offending between the index offences and the prior custody offences, the total effective sentence was disproportionate to the applicant's overall criminality for each of the matters.

Consideration

1. It is clear from the Remarks on Sentence (ROS) that the sentencing judge was mindful of issues of totality. Her Honour said: The offender submitted that the Court must take into account the principle of totality. In doing so the Court would consider that the offender went into custody on 30 (sic) May 2017.
2. A little later, the sentencing judge said: Issues of totality and concurrency loom large. The structure of the sentence must be designed to avoid a crushing sentence - see R v Mack. Nonetheless the sentence must reflect that there are a number of discrete charges and a number of different victims. The exercise is complicated by the fact that the offender has already spent a significant time in custody whilst limited time only referable to this nonetheless there has been custody I am told since 30 (sic) May 2017 interceded (sic) by sentences from her Honour and a period of possible release which the offender chose not to accept. The backdate in my view is a critical point to allow this not to be a crushing sentence. I confirm that I have taken issues of totality, concurrency and accumulation into account in constructing the sentence.
3. Earlier in the ROS, the sentencing judge had noted the charges leading to the sentences imposed in the Local Court on 2 February 2018, and the sentences in respect of which he was sentenced by Judge Noman SC on 29 June 2018. In that regard, the sentencing judge noted that the head sentence for the convictions in respect of which he was sentenced by Judge Noman SC expired on 27 April 2021. Her Honour noted, therefore, that the time in custody solely referable to the index offending was some 52 days from 27 April 2021, and her Honour said that she had taken that time in custody into account.
4. Her Honour then imposed an aggregate sentence which she backdated to commence on 18 September 2020.
5. In Mill v R (1988) 166 CLR 59 at 63, the joint judgment said that the totality principle may be dealt with: …either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
6. That was the course adopted by the sentencing judge in the present case. In noting that the applicant had been in custody since 30 (sic) May 2017, her Honour said: The backdate in my view is a critical point to allow this not to be a crushing sentence. I confirm that I have taken issues of totality, concurrency and accumulation into account in constructing the sentence. … Given the fact that it is a matter for this Court in its discretion I am of the view that the appropriate backdate is not a midway point but perhaps a point more generous to the offender taking into account the need to avoid a crushing sentence and taking into account the significant period of time this man has already been in custody.
7. The applicant accepted that no submissions were made to the sentencing judge in relation to the sentence imposed on him in the Local Court, he accepted that the sentencing judge adverted to matters of totality and that the sentencing judge had considered that he needed a longer period on parole to deal with issues such as institutionalisation. The complaint was, however, that the end result meant that the overall time spent in custody was too high when compared with the total of the overall sentences.
8. In my opinion, no House v The King error is demonstrated. The sentencing judge, who was cognisant of the issue of totality, adopted the entirely orthodox approach of backdating the sentence to make it partly concurrent with the sentence the applicant had been serving. The extent to which her Honour did that was within her discretion. At the same time, her Honour noted that the offending was identical to that which he had been sentenced by Judge Noman SC.
9. Her Honour was also aware that an extended supervision order had been made for a period of five years. Because that order had been suspended whilst the applicant was in custody, whatever the period the applicant will spend on parole, he will be under the close supervision afforded to a person who is the subject of an extended supervision order for a period of five years on his release.
10. Although the applicant relied upon the decisions in GP v R [2017] NSWCCA 200 and CM v R [2020] NSWCCA 136, those decisions provide no assistance. In GP, it was held that the sentencing judge had not turned her mind to the impact of the accumulation of the non-parole period on a prior sentence. That was not the present case. Further, the appeal in GP was put on the basis that the sentencing judge should have found special circumstances to reduce the non-parole period. The present appeal involves sentencing for Commonwealth offences where special circumstances are not a consideration.
11. In CM, the Crown conceded that the sentencing judge had erred by unintentionally imposing a non-parole period that constituted 87.5% of the total of a prior sentence and the sentence being imposed, also involving sentencing principles under the Crimes (Sentencing Procedure) Act 1999 (NSW).
12. The Crown submitted, in reliance on what was said in Kerr v R [2008] NSWCCA 201 at [29] that the totality principle did not apply in the present case because at the time the applicant was sentenced he was not serving an existing sentence. His existing sentence had expired on 27 April 2021, and he was sentenced on 18 June 2021.
13. In Kerr the offender had been sentenced in respect of a prior offence to a non-parole period which expired on 8 June 2006 with the full term of the sentence expiring on 8 October 2006. He was sentenced for the index offences on 14 June 2007. In the meantime, he had remained in custody after 8 June 2006 bail refused for the index offences.
14. The offender appealed and one of the grounds was a failure to consider and apply the principle of totality.
15. Justice Price (with whom Spigelman CJ and Simpson J agreed) said in relation to totality, having noted that the sentence imposed was not a crushing one, said: [29] In any event, the totality principle, in my view, did not apply as the applicant was not serving an existing sentence when he came to be sentenced by the Judge. The full term of the Local Court sentence had expired on 8 October 2006. He had from that time been in custody for the offence for which he was to be sentenced because bail had been refused on 24 October 2005. [30] This Court has previously considered the application of the principle of totality to a sentence that had commenced and expired during an offender's time in custody on remand for an offence for which he was to be sentenced. [31] In Huntington v Regina [2007] NSWCCA 196, the applicant was convicted of one count of assault contrary to s 61 of the Crimes Act and one count of commit an act of indecency contrary to s 61L of the Crimes Act. On 1 September 2006, the applicant was sentenced in the District Court to imprisonment for a fixed term of 80 days in respect of the first offence and to imprisonment for a non-parole period of 15 months with an additional period of 5 months in respect of the second offence. Each sentence was backdated to commence on 8 May 2006. The applicant had been arrested on 8 January 2006 and had remained in custody bail refused since that time. On 19 May 2006, he was sentenced to 12 months imprisonment with a non-parole period of 6 months for use offensive weapon. The non-parole period commenced on 9 November 2005 and expired on 8 May 2006. It was agreed by both parties at the sentencing hearing that the applicant's custody in relation to the offences for which he was to be sentenced dated from 8 May 2006, from which date the sentencing Judge commenced the sentences. It was argued on appeal that the sentencing Judge erred in failing to take into account the pre-sentence custody and in failing to apply the principle of totality. Hislop J (with whom Giles JA and James J agreed) in rejecting this ground of appeal said at [26]: "Save in exceptional cases, the general principle is that although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account - R v Niass (unreported NSWCCA 16 November 1988); R v John David (unreported NSWCCA 20 April 1995). The present is not an exceptional case."
16. Although the totality principle did not apply in Kerr, I do not read what the Court said at [29] as a statement of general principle, that the totality principle does not apply if an offender is not serving an existing sentence at the time he comes to be sentenced for further offending. In the present case, for example, at the time of the sentence hearing, the applicant was in fact serving an earlier sentence although by the time the sentencing judge came to sentence him that sentence had expired. It is not apparent that the totality principle would cease to apply merely by the happenstance of the earlier sentence coming to an end in such circumstances, particularly when the earlier offending was of exactly the same character and resulted in the same charges as the offending for which the earlier sentence had been served.
17. In CM, the offender's prior sentence expired two days before he was sentenced for the subsequent offences which were the subject of the appeal. That was a not a matter which this Court considered precluded the totality principle from applying. I note, however, that Kerr was apparently not drawn to the Court's attention.
18. In the present case, it cannot be overlooked that the applicant was entitled to be released on a recognizance on 20 April 2020. He chose to remain in custody consistently, no doubt, with what he said in his recorded interview, that he committed these offences in order to stay in gaol. That decision cannot then be used to argue that he ought to receive a lesser sentence than would otherwise be appropriate.
19. The applicant's counsel accepted that the totality issue could have been adequately dealt with by the sentencing judge backdating the applicant's sentence more than she did. That concession highlights the difficulty for the applicant in establishing a House v The King error. The issue of the backdating of sentences, whether to take account of totality or simply of concurrency of a number of sentences, is within the discretion of the sentencing judge: Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581 at [60]. If the only issue is the date at which the sentence should commence, the applicant cannot establish a House v The King error.
20. I would reject this ground of appeal.

Submissions

1. The applicant submitted that a number of matters together resulted in the sentence being manifestly excessive. The first was the relationship between the indicative sentences and the corresponding findings of objective seriousness for each of the offences, and the accumulation of those indicative sentences which resulted in the aggregate sentence. It was submitted that although some level of accumulation was called for, the accumulation in the aggregate sentence overstated the totality of the applicant's criminality.
2. Secondly, the applicant relied on the totality principle.
3. Thirdly, the applicant submitted that although he had committed previous similar offences it did not follow, as the sentencing judge said, that the index offending prima facie called for a more significant sentence than what Judge Noman SC gave. The applicant submitted that specific deterrence did not require such an outcome.
4. Fourthly, the sentencing judge had a different subjective case from that which had been put before Judge Noman SC.
5. Fifthly, as the sentencing judge noted, there was risk of institutionalisation.
6. Finally, sentences imposed in comparable cases put before the sentencing judge involved substantially lighter sentences than was imposed in the present case.
7. The applicant submitted that if her Honour had backdated the sentence to an earlier time it would have been difficult to submit that the sentence was manifestly excessive. However, what made the sentence manifestly excessive was the total accumulated time the applicant spent in custody from May 2017.

Consideration

1. The principles to be applied when considering a ground of manifest excess have been restated in a number of cases including Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. Those principles have also been referred to in cases involving aggregate sentences such as Burke v R [2022] NSWCCA 6 at [32]-[33].
2. The following matters indicate clearly that the aggregate sentence in the present case was not manifestly excessive.
3. First, the maximum penalty for this offence is three years' imprisonment. Her Honour found that counts 1, 5 and 10 were respectively below the mid-range, at the mid-range and just below the mid-range. Her Honour indicated an undiscounted sentence of 16 months' imprisonment for those offences. For count 2, which her Honour found to be just above the mid-range, her Honour indicated an undiscounted sentence of about 18.5 months.
4. Secondly, the index offending was the latest manifestation of a course of conduct that was persisted in by the applicant notwithstanding earlier gaol sentences and was committed whilst serving sentences for the same behaviour. Further, he had engaged in similar behaviour in earlier years.
5. Thirdly, it was not inappropriate for the sentencing judge to take the view that, in the circumstances of the offending, a more severe sentence than Judge Noman SC had imposed was prima facie indicated. The offences were committed less than four months after Judge Noman had sentenced the applicant for identical offending and for the same offending for which he had been sentenced in the Local Court.
6. Fourthly, despite there being little evidence of subjective matters, apart from the applicant's own evidence, the sentencing judge made favourable findings concerning remorse and progress towards rehabilitation.
7. Finally, the notional accumulation which resulted in the aggregate sentence of three years and seven months was well within the sentencing judge's discretion, having regard to the indicative sentences and the persistent offending over a number of years.
8. I would reject this ground of appeal.

Conclusion

1. I propose the following orders:
2. Grant leave to appeal.
3. Dismiss the appeal.
4. FAGAN J: I agree with Davies J. For the purpose of considering ground 2, in which it is contended that the sentence was manifestly excessive, I have considered first whether the length of the head sentence and non-parole period were proportionate to the objective circumstances of the offending and the subjective attributes of the applicant. I defer until consideration of ground 1 the question whether greater backdating of the commencement, or reduction of the term, was required in order to allow for the overall effect of the sentence being, in effect, continuous with other sentences passed for earlier convictions.
5. Objectively, the applicant's criminal conduct was serious. All four counts to which he pleaded guilty were of the same kind but committed in discrete episodes separated by significant intervals of time. The numerous harassing and disturbing calls in counts 1 and 2 occurred between mid October and early November 2018. The applicant returned to this behaviour a month later with a spate of calls in early December (count 5). Nine months later he was making more calls of a similar nature throughout August 2019 (count 10).
6. This was persistently repetitive offending. The objective gravity of each offence was exacerbated by the factor of recurrence. When this consideration was taken together with the applicant's record, a measure of specific deterrence was called for. As Davies J has recorded in detail, the applicant had committed an offence of the same kind in May 2017, for which he was subsequently sentenced to 6 months imprisonment. While on remand for that matter he had committed three further such offences on 17 July 2017 and in mid September 2017, all by way of calls from a prison phone. It was the July and September 2017 offences that had resulted in her Honour Judge Noman SC passing the sentence of 3 years that the applicant was serving when he made these further calls, again from prison, in October-December 2018 and August 2019. I respectfully agree with Davies J that it was open to the learned judge to conclude that a more severe sentence than that of Judge Noman SC was required.
7. Allowing for the learned judge's favourable findings on the subjective matters of remorse and rehabilitation, an aggregate term of 3 years and 7 months with a non-parole period of 2 years and 4 four months was not manifestly excessive.
8. The applicant's arguments in support of ground 1, summarised by Davies J at [25]-[29], simplistically assume that his numerous offences of using a carriage service to harass or offend, committed between May 2017 and August 2019, constituted a single episode of criminality. A more accurate characterisation is that there have been a series of episodes, separated by intervals during which the applicant has been arrested and punished. The discrete episodes have been followed, in each case, by a renewal of the activity notwithstanding detection and imprisonment. Recidivist offending of this nature is not apt to engage the principle of totality to any great benefit in reduction of sentence.
9. The totality principle is summarised in the following passage from the judgment of Beech-Jones J in Haak v R [2022] NSWCCA 28: [15] The totality principle obliges a judge "who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved" (Postiglione v R (1997) 189 CLR 295 at 307-308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70). It is most commonly given effect to by a sentencing judge imposing sentences that are appropriate for the individual offences and then making them partially, or sometimes wholly, concurrent (Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]) or adopting an analogous approach for indicative and aggregate sentences. However, that is not the only means of applying the totality principle (Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]). For example, where an offender has previously served a sentence for an offence and is later sentenced for one or a number of offences of similar character committed in the same episode of criminality to their original sentence and the sentence for the latter offences cannot be backdated, then the only course available may be "to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody" (Mill v The Queen at 66-67; Wu v R [2011] NSWCCA 102 at [53]). Depending on the legislative context, both the approach adopted in Pearce v The Queen and the approach of lowering the sentence discussed in Mill v The Queen are open to sentencing judges when applying the totality principle. The approach discussed in Mill v The Queen is not confined to circumstances where the offender had already been sentenced by another court and the sentence to be imposed cannot be backdated (Johnson v The Queen at [26]; see for example Humphries v R; Ponfield v R [2016] NSWCCA 86).
10. Where an offender has served a term of imprisonment for a series of crimes of a particular kind and then comes to be sentenced for another series of similar offences, committed after sentence has been passed for the first group, the principle of totality does not dictate that he or she is entitled to have all matters considered as one event or a unified course of conduct. There is no such inflexibility in the principle. This is apparent from the authorities cited in the above passage. In fixing a sentence for the last of the matters dealt with, the combined effect of all sentences, that will result from whatever sentence is passed, must be taken into account. Her Honour did take that into account. It was not incumbent upon the learned judge to ensure that the period for which the applicant would be eligible to serve out the end of his sentence on parole would be any particular proportion of the overall duration of his incarceration under the successive sentences that resulted from his resumption of offending, on a more or less annual basis, over three years.

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