Consideration and decision
33I agree with Ms. Cinque's argument that an important starting point here - and indeed on all sentence appeals, especially those dealing with ex tempore reasons in a busy list - is the avoidance of the temptation to analyse the remarks too finely. To the cases referred to by Ms. Cinque I would add Simpson at 722 [90]; R. v. Majors (1991) 27 NSWLR 624 and 628; and R. v. Salameh (1991) 55 A Crim R 384 at 394 per Lee CJ at CL. These decisions in my judgment are a manifestation in this area of discourse of a broader principle which applies to judges as well as administrative decision makers: The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error (see Collector of Customs v. Pozzolanic [1993] FCA 456; 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v. Wu [1996] HCA 6; 185 CLR 259 at 287; Hall v. Van der Poel [2009] NSWCA 436 at [54].
34It may be better to say that Pozzolanic, and the other decisions referred to, mandate an approach rather than establish a principle. As Hayne J said in Waterways Authority v. Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129] - [130] (citations omitted):
Reference was made in argument to the "sufficiency" of the primary judge's reasons. When it is said that a judge did not give "sufficient" reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of the judicial officer "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision". To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.
35Moreover, in the present case, dealing as it does with an offence subject to a standard non-parole period, the general judicial obligation to state reasons is entrenched, as it were, by s.54B(4) of the Sentencing Act invoked by Ground 2. As Ms Francis correctly, with respect, pointed out, the content of that obligation extends beyond the mere grammatical meaning of the expression ma[king] a record of its reasons for increasing or reducing the standard non-parole period. In Muldrock at 132[29] to [30] the unanimous Court said:
A central purpose of Div. 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. ...[s.54B(4)] does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed...
The full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process (footnote omitted).
By reference to this passage, I conclude that the Pozzolanic approach must yield in an appropriate case to the legal obligation of the judge to identify fully the considerations which bore upon the sentence actually passed in the sense discussed by Hayne J in Fitzgibbon: by this I mean, applying the Pozzolanic approach, a court of criminal appeal will not fill in any gaps which appear from a balanced and fair review of the reasons actually expressed by a judge for the sentence in fact passed.
36Bearing in mind the approach I have described, I am not satisfied that the learned primary judge either misapprehended the facts or erred in principle in his treatment of the applicant's background and his antecedent criminal history. About the latter, the adjective "bad" was fairly open. Moreover, the proper principle discussed in Veen No. 2 was fairly engaged. His Honour was entitled to conclude by a reference to the record that the applicant has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. Accordingly, that consideration engaged the sentencing purposes of retribution, deterrence and protection of society (cf s.3A Sentencing Act) and accordingly warranted a more severe penalty (Veen [No. 2] at 477). Section 21A (2)(d) entitled the primary judge to reason in this way.
37And the reasoning in Fernando did not undermine the legitimacy of this approach to the applicant's antecedent criminal history.
38As Muldrock establishes, s.54B read as a whole requires of a sentencing judge the instinctive synthesis approach described by McHugh J in Markarian v. the Queen [2005] HCA 25; 228 CLR 357 at 378 [51]. His Honour, in my opinion, applied this approach. I am not satisfied that he failed to have regard to the subjective features upon which Ms. Francis, appropriately, placed emphasis before us. In my judgment, his Honour's two references to the "Fernando principles" make this clear notwithstanding that he did not quote from the pre-sentencing report or the psychologist's report. The phrase "Fernando principles" was, in an ex tempore expression of reasons for sentence, a permissible shorthand for the type of factors advanced on behalf of the applicant before us, especially given, with respect, trial counsel's palpable diffidence of expression before the learned primary judge.
39Adopting Pozzolanic, I would give full weight to his Honour's shorthand. In my judgment he did not overlook the applicant's subjective case.
40Some of the applicant's arguments on Ground 1 seemed to invoke "youth" as a relevant mitigating factor, which, it was said, the sentencing judge overlooked. In R. v. Mills [1998] 4 VR 235 at 241 Batt JA emphasised that youth, particularly for a first offender, should receive primary consideration by a sentencing judge; that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence; and that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The applicant was 28 at the date of the offences and 29 when sentenced. The observations of Rothman J in BP v. R. [2010] NSWCCA 159; 201 A Crim R 379 at [108] notwithstanding, I am not satisfied that the considerations identified by Batt JA have any application to the present case. 28 generally should be regarded as an age of maturity.
41I now turn to Ground 2. I have set out what I regard as the relevant principles already. I accept the accuracy of the applicant's arguments as to principle. At [22] hereof, I identified the factors that the learned trial judge considered bore upon the appropriate sentence to be passed for each offence. In my judgment, his Honour did not fail to observe the requirement imposed by s.54B (4), as expounded in Muldrock at 132 [29], to identify fully the facts, matters and circumstances which [his Honour] conclude[d] [bore] upon the judgment that he reached about the appropriate sentences to be imposed. I would reject Ground 2.
42Now is not the occasion to expound the full import of a successful argument that a sentence appealed from is affected by manifest excess. The authorities to which I have referred in summarising the arguments of the parties point out that a successful argument depends upon the Court of Criminal Appeal concluding that there is latent error. In Wong at 605 [58] the plurality said that such a conclusion depends upon the appellate court finding that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It is apposite to refer to such a matter as latent error. For the reasons I have already given, I am not satisfied that either sentence passed in relation to the individual offences the subject of this appeal is plainly unjust, or wholly erroneous, or outside the bounds of a sound discretionary range. I would reject this ground.
43This then leaves the question of the Pearce error. I think it worth setting out the whole of the passage at 623[45] - 624[49] from Pearce:
To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.
Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences.
Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against "a sentence" it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the Court "is of opinion that some other sentence ... is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor" (Emphasis added).
44For the reasons already given, I could not form a positive opinion in respect of the individual sentences that fall for consideration that some other sentence ... is warranted in law and should have been passed. However, a question remains about their overall effect, or to put it another way, the questions of concurrency and accumulation.
45In my judgment, when one considers the passage from his Honour's remarks on sentence that I have emphasised at [24] above in the light of [45] of Pearce, it is clear that by first directing himself by the question "how long?" his Honour fell into error.
46The error is that his Honour inverted the process mandated by the concluding sentence to [45] of Pearce. He did not first fix an appropriate sentence for each offence and then consider the questions of cumulation or occurrence, and totality. Rather, his Honour first fixed a total or overall sentence and then, by an impermissible process of top-down reasoning, fashioned individual sentences for each offence to justify a result already arrived at.
47It was certainly open to his Honour to conclude that the relevant offences involved were incidents of an overall episode of criminality which engaged the totality principle, but by inverting the sequence in which the questions were to be addressed, I am of the view that his Honour failed to give due consideration to the appropriate sentence for each offence individually and also to the question of concurrence or cumulation separately. His Honour's approach impermissibly gave totality precedence over the logically anterior questions.
48I would reject Ms Cinque's argument that his Honour was aggregating the sentences under s53A of the Sentencing Act. He did not say he was proceeding in that way, and in fact pronounced two sentences rather than an aggregate sentence. He did not comply with s53A (2).
49Notwithstanding that I have found that the learned sentencing judge made an error of principle by inverting what might be referred to as the Pearce process, I am not of the opinion that any other sentence is warranted in law. As I have said, in my view, the individual sentences imposed were warranted. And even though the separate counts were each incidents in an overall episode of criminality they represented, nonetheless, separate offences: R. v. Merrin (2007) 174 A Crim R 100 at [38] - [43]; R v. XX (2009) 195 A Crim R 38 at [52] (especially sub par. [11]). It was clearly necessary that the sentence for the Count 1 offence also reflected the incorporation of the Form 1 offence; to that extent it needed to be somewhat more severe: R. v. Harris (2007) 171 A Crim R 267 at 274 [32]. His Honour sought to differentiate the sentences by imposing a longer non-parole period for the first. This was a permissible approach. Moreover, to punish the additional criminality inherent in the second count, some accumulation of sentences was required: Harris 275 [39] - [40]; and it was appropriate that the accumulation should be effected by extending somewhat the time that must be spent in prison. Otherwise there would be no effective extra punishment for the further offending.
50For these reasons, the orders I propose are:
- Leave to appeal granted.
- Appeal dismissed.