Allred v The Queen
[2015] ACTCA 21
•27 May 2015
COURT OF APPEAL
Case Title: | Allred v The Queen |
Citation: | [2015] ACTCA 21 |
Hearing Dates: | 17 February 2014 |
DecisionDate: | 27 May 2015 |
Before: | Refshauge, Penfold and Burns JJ |
Decision: | 1. The appeal be upheld. 2. Mr Allred be sentenced to imprisonment for four years and six months to commence on 6 January 2013. 3. The sentences handed down in Allred v Burnett [2014] ACTSC 22, to commence on 6 July 2018, be adjusted under s 74 of the Crimes (Sentencing) Act 2005 (ACT) by directing that each of them commence one year earlier than specified in that decision and as set out in [77] of the reasons for judgment in this appeal. 4. A nonparole period be set to commence on 6 January 2013 and to end on 6 January 2017. |
Category: | Principal Judgment |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Conspiracy to commit aggravated robbery – Appeal against sentence – Proper grounds of appeal – Manifest excess – Available range of sentences – ‘Crushing’ sentence – Offender already re-sentenced – Reduction of head sentence – Statutory restriction on change to the nonparole period |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 66, 74 Criminal Code 2002 (ACT), ss 48, 310(a) |
Cases Cited: | Allred v Burnett [2014] ACTSC 22 Barbaro v The Queen (2014) 88 ALJR 372 |
Parties: | Jackson Allred (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms T Warwick (Appellant) Mr J Lundy (Respondent) |
| Solicitors Darryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | ACTCA 28 of 2013 |
Decision under appeal: | Court: Supreme Court Before: Nield AJ Date of Decision: 24 May 2013 Case Title: The Queen v Jackson Allred Court File Number: SCC 330 of 2011 |
THE COURT:
Introduction
Jackson Allred, the appellant, was recorded having telephone conversations with Shane Cringle, a detainee at the Alexander Maconochie Centre, between 10 and 17 May 2011, in which it was alleged that Mr Allred and Mr Cringle were conspiring to commit an offence of aggravated robbery.
An indictment for that offence was filed in the Supreme Court on 20 March 2012 charging Mr Allred and Mr Cringle with that offence and an alternative offence of conspiring to commit robbery. Both Mr Allred and Mr Cringle pleaded not guilty. After a trial before a jury, both were convicted of the offence of conspiring to commit the offence of aggravated robbery.
Aggravated robbery is an offence against s 310(a) of the Criminal Code 2002 (ACT) which provides for a maximum penalty of 2500 penalty units (which was, at the time, a fine of $275,000) and imprisonment for 25 years. Under the principles in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31], it is to be regarded as a very serious offence.
By virtue of s 48 of the Criminal Code , the offence of conspiring to commit an offence is punishable as if the offence conspired had been committed. Mr Allred and Mr Cringle were, therefore, liable to the maximum penalty for the offence of aggravated robbery.
Both offenders were sentenced on 5 June 2013 for the offence by Nield AJ. Mr Allred was sentenced to imprisonment for five years and six months from 6 January 2013 to 5 July 2018 with a nonparole period of three years from 6 January 2013 to 5 January 2016. Mr Cringle was sentenced to imprisonment for six years and six months with a nonparole period of three years.
The Appeal
Mr Allred now appeals against the sentence. The grounds of the appeal were:
i.The sentence was manifestly excessive;
ii.His Honour erred in failing to impose a sentence that properly reflects the principles of parsimony or minimality;
iii.His Honour erred in failing to give adequate weight to the Appellant’s subjective circumstances;
iv.His Honour erred in failing to impose a sentence that properly reflects the principles of totality;
v.His Honour erred in the determination of concurrency and cumulation of sentences;
vi.His Honour erred in that the sentence is crushing;
As this Court has pointed out on a number of occasions, grounds such as those pleaded here, except ground (i), are not proper grounds of appeal. They are not matters that enliven the appellate jurisdiction of the court. See, for example, R v Ang [2014] ACTCA 17 at [13]; R v Williams [2014] ACTCA 30 at [10]-[19].
The imposition of a sentence is the judicial exercise of a discretion. The principles upon which an appellate court will interfere with such a judicial decision are well-known.
In Cranssen v The King (1936) 55 CLR 509 at 520, Dixon, Evatt and McTiernan JJ summarised the approach of an appellate court in sentencing appeals as follows:
In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.
Earlier, in House v The King (1936) 55 CLR 499 at 505, their Honours had identified two bases for appellate intervention. One is where there is specific error, such as taking into account irrelevant considerations, failing to take into account relevant considerations, mistaking the facts or acting on a wrong principle. The other is where the court cannot identify such a specific error but the sentence is what is now called manifestly excessive or inadequate and the court may infer that there has been an error such that the discretion has not been properly exercised.
This court is bound to apply these principles, but, as has been frequently said before in cases such as Eisenach v The Queen [2011] ACTCA 2, the multiplication of grounds of appeal which are not specific errors does not assist in showing that the sentence was manifestly excessive.
In Eisenach v The Queen, this Court said at [42]-[44]:
42.Where the ground of an appeal against sentence is manifest excess (or inadequacy), by necessary implication no specific error is being identified. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale v The Queen) (at 325-326):
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.
43.To multiply the grounds, which can be no more than speculative suggestions as to areas where the sentencer may have failed to take a factor into account in the proper way, is generally a fruitless exercise in such an appeal and hardly helpful to the appellate court, save perhaps to particularise the areas where the appellant will address argument. They may, of course, be in the nature of particulars of factors on which the appellant wishes to place emphasis in the appeal, but they are no more than that.
44.In order to succeed in the appeal, then, the appellant must make good, in the way identified in Dinsdale v The Queen that the sentence was manifestly inadequate.
In particular, a ground of appeal that the learned Sentencing Judge failed to have proper regard to a matter or give it proper weight does not constitute a proper ground of appeal. As this Court said in R v Ang at [22]:
... appeal grounds framed to assert ‘failures’ by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters by the sentencing judge, do not properly invoke either category of appellate intervention.
Gageler J explained in Bugmy v The Queen (2013) 249 CLR 571 at 597-8; [53], when considering the grounds of appeal by the Director of Public Prosecutions to the NSW Court of Criminal Appeal:
The Director's three ‘additional grounds of appeal’ to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure ‘properly’ to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of ‘weight’. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.
Insofar as ground (vi) might be said not to fall within the categories to which Gageler J referred, it will be dealt with below. The other grounds may be regarded in the nature of particulars of what might conceivably be the source of the alleged error of manifest excess, though even that is doubtful as it is difficult to identify in the instinctive synthesis that is the sentence what weight has been given to various discrete factors.
The result is that, in reality, there is only one ground of appeal, namely that the sentence was manifestly excessive.
The facts
The learned sentencing judge, who presided at the trial, summarised the facts of the offence in his Honour’s reasons for sentence: R v Allred and Cringle (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC 330 of 2011, SCC 3 of 2012, 5 June 2013). Neither party challenged the summary.
His Honour said:
(3)Between 10 May 2011 and 17 May 2011 conversations by telephone between Mr Cringle, who was an inmate at the AMC, and Mr Allred, who was at large, were recorded by Corrective Services staff. There were six such conversations, being two on 10 May 2011, one on 11 May 2011, two on 16 May 2011 and one on 17 May 2011.
(4)Also, a voice message left by Mr Cringle for Mr Allred on Mr Allred’s mobile telephone on 17 May 2011 was recorded.
(5)Furthermore, between 16 May 2011 and 18 May 2011 conversations by telephone between Mr Cringle and his partner, Ms Amber Haber, were recorded. There were four such conversations, being one on 16 May 2011, two on 17 May 2011 and one on 18 May 2011.
(6)It must be noted that every telephone call made by an inmate at the AMC is recorded, with the recipient of a call being told that
You are about to receive a telephone call from a prisoner at an ACT Corrective Services Facility. This call may be monitored and recorded. It is requested that this call not be transferred. The maximum duration of a telephone call is 10 minutes. Please hold the line call if you wish to accept the call. Go ahead, please.
(7)The early telephone calls between Mr Cringle and Mr Allred which were recorded were thought by Corrective Services staff to indicate that Mr Cringle wanted Mr Allred to bring or arrange to be brought a prohibited drug into the AMC for him. Accordingly, the calls were referred to police.
(8)However, the telephone call made by Mr Cringle to Mr Allred at 10.38 am on 17 May 2011 was thought by police to indicate that Mr Cringle was arranging with Mr Allred for him, when in the company of another person named Brad, to rob Mr Cringle’s former partner, who is known as ‘Shonks.’
(9)Then the telephone call by Mr Cringle to Mr Allred at 11.07 am on 17 May 2011 was not answered by Mr Allred and, therefore, Mr Cringle left the following message for Mr Allred,
hey, can you hear me? Oi. I can’t hear ya. Listen, ring Amber today and ask her if she remembers where Steve lives, the one in Florey, and get her to show ya. If she can’t remember the exact house, I think it’s number 6, and it’s got a white mail box. The gate that, like, the driveway, drives into the backyard. There’s a gate there. And ask her if she knows where it is. Get her to show ya and drop her off. And instead of – when you see Shonk, just ask her. Don’t go there and do that. Ask her if she knows anyone to do. Might be better off for ya. That way, you won’t have any dramas. I’ll try and ring you up after lunch. See if your phone’s working or not. See you, mate”.
This message was thought by police to indicate that the intended target of the proposed aggravated robbery had changed from Mr Cringle’s former partner Shonks to someone named Steve, who lived at an address in the suburb of Florey.
(10)Then, at 2.45 pm on 17 May 2011, Mr Cringle made a telephone call to Ms Haber in which this was said, and there follows some of the conversation.
(11)Later at 3.31 pm on 17 May 2011, Mr Cringle made a telephone call to Ms Haber in which this was said, and there follows the conversation.
(12)Police determined from Mr Cringle’s telephone calls at 11.07 am, 2.45 pm and 3.31pm on 17 May 2011 that the intended target of the proposed aggravated robbery to be committed by Mr Allred and Brad in the presence of Ms Haber on the night of 17 May 2011 was Mr SAW [sic], who lived at an address in Byram Place, which was a cul de sac off Tattersall Crescent in the suburb of Florey.
(13)Therefore, at 7.15 pm on 17 May 2011 police commenced surveillance of Ms Haber’s address, unit 5, 25 O’Neill Street, Spence. At 8.13 pm a white coloured Holden Commodore sedan, being driven by Mr Uarota David Amosa, with Mr Allred as the front seat passenger, and Brad and his younger brother as the rear seat passengers, arrived at 25 O’Neill Street. Mr Allred left the vehicle, went to Ms Haber’s unit and then returned to the vehicle with Ms Haber. Ms Haber entered the vehicle and sat on the front passenger seat and Mr Allred entered the vehicle and sat on the rear passenger seat behind the driver alongside Brad and his brother. Mr Amosa drove the vehicle from O’Neill Street, Spence, via a number of streets, as detailed in the police surveillance running sheet, Exhibit F, and as shown on the street map, Exhibit G, to Byram Place, Florey, arriving there at 10.25 pm.
(14)When the vehicle being driven by Mr Amosa was in the turning circle at the end of the cul de sac, police vehicles arrived in the cul de sac, stopping the vehicle being driven by Mr Amosa. Police then arrested Mr Allred, Ms Haber, Mr Amosa and Brad. After arresting Mr Allred, police took him to the City Police Station, at where he was interviewed, see Exhibit V, after which he was charged with the offence of conspiracy to commit aggravated robbery. After arresting her, police took Ms Haber to the City watch house, at where she was charged with conspiracy to commit aggravated robbery.
Subjective Circumstances of Mr Allred
Mr Allred was born in 1992, the youngest of his parents’ three children. When he was about six, his parents separated and he lived with his father until a “week-on week-off” arrangement for his care was made by his parents. This arrangement continued until Mr Allred was 16 years old.
Mr Allred has contact with both his parents and his two brothers and his father said that he would provide accommodation for him on his release from prison.
His primary and secondary education was in the ACT but he did not like school. He was suspended from time to time for verbal abuse, physical abuse, intimidation, bullying, vandalism and absenteeism and was expelled from two high schools for serious misconduct. He finally left school during Year 10 when he was aged fifteen. At age seventeen, he started, but did not continue, studies in Year 11.
He has, since leaving school, been employed as a house painter and a metal worker, though he has had periods of unemployment.
Mr Allred started drinking alcohol when he was sixteen and using illicit drugs, cannabis, methylamphetamine, ecstasy and cocaine, when he was seventeen. He started using heroin when he was nineteen and has also used steroids. When he was imprisoned at the Alexander Maconochie Centre, he was admitted into a methadone program, but has been found to have used illicit drugs while in custody.
While his physical health is good, he has been treated for depression, for which he has been prescribed Valium.
Mr Allred is single and never married. He has no dependants.
He has a criminal record, having been dealt with by the courts for twenty-six offences. [Redacted for legal reasons] Since 2010, he has been convicted of offences of common assault, trespass, assault occasioning actual bodily harm and aiding and abetting an assault occasioning actual bodily harm, as well as some traffic offences. He has served two sentences of imprisonment. On the charge of aiding and abetting an assault occasioning actual bodily harm, he was, on 5 March 2013, sentenced to twelve months imprisonment, to commence on 6 July 2012 to take into account pre-sentence custody, a sentence he was serving when he was sentenced by Nield AJ.
Although not relevant to the grounds of appeal, a further matter is relevant to the disposition of the appeal. On 22 July 2013, after being sentenced for this matter, Mr Allred was sentenced to imprisonment in the Magistrates Court for six traffic offences, two offences of violence and three dishonesty offences. The effect of the later sentencing was to extend Mr Allred’s head sentence by 18 months (from five years and six months to seven years) and to increase the nonparole period by 21 months (from three years to four years and nine months). He appealed against the Magistrates Court sentence and, on 14 February 2014, Ross J upheld the appeal in part, only as to the nonparole period. In resentencing Mr Allred, his Honour set a new nonparole period of four years from 6 January 2013 and to end on 5 January 2017. See Allred v Burnett [2014] ACTSC 22.
Manifest Excess
For the reasons set out above (at [7]-[16]), all the appeal grounds can only properly be considered as a challenge that the sentence was manifestly excessive. Accordingly, this is the only ground that we need to address.
The approach of the courts to this ground of appeal has been set out in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61] as follows:
59. Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called ‘the collective wisdom of the judges’: per Hunt CJ at CL in R v Ellis(1993) 68 A Crim R 449 at 460.
60. In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]):
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder[1983] 3 NSWLR 245 per Street CJ (at 254).
47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn[2010] ACTCA 10 (at [33]).
33.As was said by Hunt CJ at CL in R v Ellis(1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse(1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35.The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen[2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.
It is relevant in this context to refer to what French CJ, Hayne, Kiefel and Bell JJ said in Barbaro v The Queen (2014) 88 ALJR 372, at 379; [38], when their Honours described the assistance to be provided to a sentencing judge by counsel in the sentencing process as follows:
If a sentencing judge is properly informed about the parties’ submissions about what facts should be found, the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.
The reference to “available range” refers to what their Honours had earlier said at 377; [24]-[28]:
[24]To expose the error in principle, it is necessary to begin by examining what is meant by an ‘available range’ of sentences for an offender.
[25]Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law ...
[26]Reference to an ‘available range’ of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
[27]The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some ‘substantial wrong has in fact occurred’ in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
[28]Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an ‘available range’ of sentences, stating the bounds of an ‘available range’ of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall.
(footnotes omitted)
Consideration
Ms T Warwick, counsel for Mr Allred, prepared a helpful table which set out the sentences imposed by the Supreme Court on forty-two offenders for the offence of aggravated robbery and associated offences of conspiracy to commit an aggravated robbery and attempting to commit such a crime.
The summaries were divided by reference to whether the offender was a young person (under the age of eighteen years), a young adult or more mature adult, and then by whether the offender had a significant criminal history or a limited, unknown or no criminal history. A short summary of the facts and some subjective considerations were also given.
As is clear from what fell from the High Court in Barbaro v The Queen, referred to above (at [30]-[31]), such information is useful but it has significant limitations. Recently, in Bui v The Queen [2015] ACTCA 5 at [36]-[39] this Court identified the relevant principles with reference to relevant authorities and said:
36. There is no doubt that consistency in sentencing is fundamental in a rational and fair system of criminal justice, as pointed out by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610-1. Consistency, however, does not require numerical equivalence. See Hili v The Queen (2010) 242 CLR 520 at 535; [48]-[49] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:
Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.
The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form.
37.There is, however, no prohibition on the use of sentencing statistics or, as in Roma v The Queen [2006] ACTCA 25, schedules of what are said to be comparable sentences. The use of this material, however, must be placed into its proper place.
38.As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 606; [59]:
... recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.
39.As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ also said in Hili v The Queen at 537; [54]:
In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned’.
(footnotes omitted)
It is helpful when considering such comparable cases to have regard to the comments in Hili v The Queen at 544; [76]-[77] where Heydon J addressed the use of such cases by sentencers:
... Mere excessiveness or inadequacy will not reveal that there is an error of either an identifiable or an unidentifiable nature. The difficulty which the principles in House v The King create for appellants in sentencing appeals – whether defendants complaining of ‘manifest excessiveness’ or the prosecution complaining of ‘manifest inadequacy’ – is that they give sentencing judges ‘a wide measure of latitude which will be respected by appellate courts’. But it does not follow that, when a sentencing judge in one case looks back on the reasons for judgment of an earlier sentencing judge in a similar case, the later judge should give the earlier one ‘a wide measure of latitude’ in the sense of not departing from the outcome unless it is plainly wrong.
Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for ‘error’ merely because of those differences.
It may be accepted from the information provided that the sentences imposed on a young adult (18 to 26 years old) with a limited, unknown or no prior criminal history for an offence of aggravated robbery offences ranged from a good behaviour order to six years imprisonment. What was relevant was that, in the two cases where the longest sentences were imposed, there were particularly serious aspects of the offence; in one case a gun was used and in the other case a metal pipe was used to inflict actual violence. The amount stolen in one case was also very substantial. In both cases, the offender pleaded guilty.
For young adults, where the offender has a significant prior criminal history, the sentences for the offence of aggravated robbery ranged from one year to six years imprisonment. Again, the longest sentence was for an offence that involved the use of a gun and was committed in company. The amount stolen in that case was also substantial and the offender pleaded guilty.
It is difficult to draw conclusions from such a conspectus, though it can identify some principles. It shows that the use of guns and actual violence call for a more severe sentence and that the stealing of a substantial amount of property involved is likely also to require a heavier sentence.
In this case, of course, there was no actual money or other property stolen, little information as to the amount likely to have been stolen and no weapons found when Mr Allred was arrested. There was no information provided by the Crown as to what property could be in contemplation that Mr Allred was intent on stealing in the robbery.
As Ms Warwick submitted, the conspectus showed a difference in sentencing approach depending on the nature of the circumstance of aggravation for the offence. That is to say, sentences where the offence was committed in company were appreciably shorter than those where a weapon or actual violence was used. That the latter circumstances are more serious is in accordance with principle as identified in cases such as R v McFarland (1993) 2 Tas R 201 at 210. In principle, more severe sentences should be imposed for more serious offences, subject to other relevant considerations.
Ms Warwick also submitted, based on the tables she provided, that, as a general rule, the length of sentences imposed on young adults were shorter than those imposed on older adult offenders. Again, this accords with principle, where a young person, though over the age of eighteen and not a minor, may be entitled to recognition of this factor in the sentence imposed. See R v PM [2009] ACTSC 24 at [52]-[54], approved in R v CV (2013) 233 A Crim R 67 at 78; [42]. In R v Gordon (1994) 71 A Crim R 459 at 469, it was pointed out that appropriate moderation of penalty for youth does not simply end when a person turns 18 years of age, though the statutory regime no longer applies.
While Ms Warwick’s schedule is of some value, especially as to identifying relevant principles, it is, as indicated earlier, of limited value.
Mr Allred had been in custody at the date of sentence for approximately thirty months over the previous forty months, at a time when he was still quite youthful. His other offences since he was an adult have been in the mid to low range of seriousness.
That he was already serving a sentence of imprisonment required the court to take into account the principle of totality in ensuring that the total period of custodial confinement was appropriate to his circumstances. See Harland-White v The Queen [1998] TASSC 999 at p 4.
As Dawson and Gaudron JJ described in Postiglione v The Queen (1997) 189 CLR 295 at 303-4, the task to be faced by a sentencing judge in these circumstances is “to have regard to the total effect of the sentences imposed [on the appellant and his co-accused], not merely the period by which their prior sentences were increased” and to “ensure that [the appellant] is not subjected to a ‘crushing sentence’ not in keeping with his record and prospects”.
In that sense, the issues raised in grounds (iv) and (vi) of the Notice of Appeal are elements of the same consideration.
Various approaches have been taken to what is a “crushing sentence”. The sentence at issue in Postiglione v The Queen was a sentence of 18 years imprisonment partially concurrent with a sentence that the offender was then serving of 12 years imprisonment so as to impose a total sentence of 24 years and two months imprisonment.
The Victorian approach has been to emphasise that a crushing sentence is one that “connotes the destruction of any reasonable expectation of useful life after release”: R v Yates (1984) 13 A Crim R 319 at 326 per Young CJ, Clarke, Crockett and Hampel JJ. The offender there was sixty-eight years old and sentenced to a total term of ten years. That case was followed in Crowley and Garner (1991) 55 A Crim R 201 at 206 where it was pointed out that a crushing sentence is not, of itself, manifestly excessive.
On the other hand, Dixon, Evatt and McTiernan JJ in Cranssen v The King at 521 described a crushing sentence as a punishment that bears “no proportion either to the impropriety of the [offender’s] conduct or the kind of penalty that would suffice as a deterrent”.
This Court has considered the notion of a “crushing” sentence in Holliday v The Queen [2013] ACTCA 31. Higgins CJ said at [26]:
I would advert to the submission that the sentence is, and ought not to be, ‘crushing’. It is far from clear what that term is intended to convey beyond the accepted principles involved in adjusting sentences down to the level of a just and appropriate sentence for the over-all criminality reflected in the several offences.
Later, at [61], Penfold J suggested that the concept, as explained in Yates, may not be relevant to a youthful offender with an ordinary life expectancy, where he or she will still be relatively young when the sentence expires and it cannot reasonably be said that the sentence will destroy the offender’s expectation of a useful life after release.
For a different view, Kearney J held in Gollan v Bourne & Thomson (1989) 42 A Crim R 22 at 29 that a sentence of 18 months imprisonment imposed on a 16 year old was crushing because the imposition of such a sentence leaves “little hope ... to a detainee for his reformation”.
Despite its regular use, even, as noted above (at [47]), in the High Court, it may be that the term “crushing” has no great utility and is better avoided, relying instead on the notion of manifest excess and the requirement for a proper relationship between the sentence and the objective circumstances of the offence and the subjective circumstances of the offender.
Ms Warwick also referred to the “principle of parsimony or minimality”. The formulation of the ground did not suggest that what was alleged was a specific error. In that event, it was, in reality an aspect of the complaint of manifest excess.
The “principle” of parsimony can be traced to a decision of Napier CJ in Webb v O’Sullivan [1952] SASR 65 where His Honour said (at 66):
The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
In Beniamini v Stormon [2014] ACTSC 2 at [88]-[93], Refshauge J analysed some of the authorities concerning the “principle” and its status in sentencing. His Honour pointed to the considerable difficulties with its application as a principle in the terms described by Napier CJ. His Honour then concluded at [93]:
If, however, the principle is rather a recognition of matters such the basic principles of proportionality, that a sentence should never exceed that what is proportionate to the gravity of the offence (Hoare v The Queen (1989) 167 CLR 348 at 354), and the statutory requirements such as that imprisonment is the sentence of last resort (as in s 10(2) of the Crimes (Sentencing) Act 2005 (ACT)), then there can be no real complaint about such a principle.
Mr Allred’s subjective circumstances have been set out earlier, as has a detailed description of the offence.
It was not a gravely serious example of the offence, which is, however, a serious one in itself. There was no use of a weapon or actual violence. Mr Allred is relatively youthful and, while his criminal record is lengthy, the offences are, for the most part, not very serious, and his adult criminal record is not extensive.
The fact that Mr Allred was serving a sentence at the time he was further sentenced needs also to be taken into account.
In having regard to sentencing practice in the Territory, as required by s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), (Sentencing Act), the sentence appears to show a disparity that is not easily explained.
We conclude that the sentence is manifestly excessive. In our view, the appropriate head sentence for the offence would be four years and six months to commence on 6 January 2013. An appropriate nonparole period would then be set.
Disposition
Ordinarily, such a finding would require that the sentence be set aside and the sentencing discretion thereby enlivened should be exercised or the matter be re-mitted for re-sentencing. We have indicated, in general terms, the sentence that should be imposed.
In this case, however, there is a difficulty in re-sentencing.
As noted above (at [27]), Mr Allred was re-sentenced, in Allred v Burnett, shortly before the hearing of this appeal. It is difficult to accept that neither party knew of that, yet it was not drawn to the attention of the Court on the hearing of this appeal.
That re-sentence had the effect of setting aside the nonparole period under s 66 of the Sentencing Act and substituting a new period not subject to this appeal.
If this Court were to set aside the sentence imposed by Nield AJ as indicated, it would require this court to impose a fresh sentence on Mr Allred when he is already serving a sentence. That would, under s 66 of the Sentencing Act, set aside the most recent nonparole period and require the court to set a further nonparole period. That section provides:
66 Nonparole periods—setting if sentence currently being served
(1) This section applies if—
(a) the offender is serving a sentence of imprisonment (the existing sentence); and
(b) the offender is sentenced to a further term of imprisonment (the primary sentence).
Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence.
(2) Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
Most significantly, ss 66(4) would not permit the court to set a nonparole period that would expire earlier than that imposed in Allred v Burnett.
It is to be expected that there is some power in the Sentencing Act to address issues that arise when an appeal is upheld which has an effect on an existing sentence. That power is given by s 74 of that Act .
Under s 74 of the Sentencing Act, the court may adjust other sentences when required to give effect to the outcome of an appeal. Section 74 provides:
74 Amendment of start of sentences on setting aside or amending other sentences
(1) If a court sets aside or amends a sentence of imprisonment imposed on the offender (whether on appeal or otherwise), the court may amend the starting day of any other sentence that has been imposed on the offender by the court or another court.
(2) If the offender is subject to 2 or more sentences, this section applies to each of them.
(3) The court may amend the starting day of a sentence under this section on its own initiative, or the application of a party to the proceeding on the setting aside or amendment of the other sentence.
(4) An appeal does not lie only because the starting day of a sentence is amended under this section.
(5) The term of a sentence, or the nonparole period of a sentence, must not be amended under this section.
As can be seen, the restriction on any change to the nonparole period as provided in s 66(4) of the Sentencing Act is maintained and not overcome by s 74(5) of that Act.
All this Court can do, therefore, is to reduce the head sentence imposed. It will then be required, when remaking the nonparole period (that set in Allred v Burnett having thereby been automatically cancelled under s 66(3) of the Sentencing Act) to re-impose the same or a longer nonparole period despite reducing the head sentence. A longer nonparole period cannot be justly made.
Thus, Mr Allred will now serve a total term of imprisonment of six years (6 January 2013 – 5 January 2019), with a nonparole period of four years, despite Ross J’s view that a nonparole period of four years was appropriate for the total sentence of seven years and despite this court’s view that a total sentence of now only six years imprisonment is adequate for Mr Allred’s offending. Thus, this court’s inability to reduce the nonparole period means that Ross J’s decision has been futile.
This is a most unsatisfactory situation. Where a sentence earlier imposed is set aside on appeal, the court should be able to give full effect to the court’s decision. If, for whatever reason, a later sentence, imposed prior to the determination of an appeal against an earlier sentence, has re-set a nonparole period by reference to that earlier sentence, an appellate court that reduces the earlier sentence should be able to re-set the nonparole period so as to reflect the reduced sentence it has imposed appropriately without, of course, disturbing the element of the nonparole period set for the later sentence.
This is not the first case where this problem has been encountered and which has the potential adversely and unfairly to affect the interests of an offender. In Islam v Wasley and Ross [2014] ACTSC 127, the same situation was encountered. It was, ultimately, able to be addressed in a rather complex way and only with the co-operation of the parties. In that decision, Refshauge J called, at [48], for legislative intervention. That has not, so far, been heeded.
As a result, Mr Allred will have to serve the full period of the nonparole period set for the later sentence, even though it was based on an earlier sentence that has been significantly reduced in overall length.
Proposed Orders
We would uphold the appeal, set aside the sentence imposed by Nield AJ and, in lieu, sentence Mr Allred to imprisonment for four years and six months to commence on 6 January 2013 and end on 5 July 2017.
The sentences dealt with in Allred v Burnett (the later head sentences), however, were imposed to commence on 6 July 2018, as that was the date on which the sentence imposed by Nield AJ (the earlier head sentence) ended. As the decision on this appeal means that the earlier head sentence will now end sooner, it will be necessary to adjust the later head sentences to provide for the later head sentences to commence from 6 July 2017 when the sentence we now impose will end. The adjusted sentence will, therefore end on 5 January 2019. This is to be achieved by virtue of an order under s 74(1) of the Sentencing Act. The sentences will be amended as follows:
Charge Ref Short Description Present Sentence Altered Sentence CC 2013/8412 Common assault
Breach of GBO on suspended sentence of 4 months
Start: 6 July 18
End: 24 Aug 18
Start: 6 July 17
End: 24 Aug 17
CC 2013/2468 Assault occasioning actual bodily harm
Breach of GBO on suspended sentence of 2 months
Start: 6 July 18
End: 5 Nov 18
Start: 6 July 17
End: 5 Nov 17
CC 2013/1472 Obtain property by deception Start: 6 Nov 18
End: 5 May 19
Start: 6 Nov 17
End: 5 May 18
CC 2013/1473 Obtain property by deception Start: 6 Nov 18
End: 5 May 19
Start: 6 Nov 17
End: 5 May 18
CC 2013/1474 Possess property suspected stolen/unlawfully obtained Start: 6 Nov 18
End: 5 Dec 18
Start: 6 Nov 17
End: 5 Dec 17
CC 2012/8107 Drive speed dangerous Start: 6 May 19
End: 5 Aug 19
Start: 6 May 18
End: 5 Aug 18
CC 2012/8059 Unlicensed driver – never held licence – repeat offender Start: 6 May 19
End: 5 Aug 19
Start: 6 May 18
End: 5 Aug 18
CC 2012/10128 Drive in way dangerous Start: 6 Aug 19
End: 5 Jan 20
Start: 6 Aug 18
End: 5 Jan 19
CC 2012/10129 Unlicensed driver – never held licence – repeat offender Start: 6 Aug 19
End: 5 Nov 19
Start: 6 Aug 18
End: 5 Nov 18
Finally, since the nonparole period set by Ross J to commence on 6 January 2013 and to end on 6 January 2017 cannot be reduced and it is inappropriate to extend it, it should, therefore, be re-imposed.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Refshauge, Penfold and Burns JJ. Associate: Date: 27 May 2015 |
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