Arnaout v R

[2008] NSWCCA 278

Reported Decision: 191 A Crim R 149

New South Wales

Court of Criminal Appeal

CITATION:	Arnaout v R [2008] NSWCCA 278
HEARING DATE(S):	25 August 2008
JUDGMENT DATE:	27 November 2008
JUDGMENT OF:	Basten JA at 1; Hislop J at 28; Price J at 29
DECISION:	(1) Grant the applicant leave to appeal in respect of the sentences imposed by Sorby DCJ in the District Court at Campbelltown on 14 September 2007. (2) With respect to each sentence other than that for the offence of escape lawful custody, dismiss the appeal. (3) In respect of the offence of escape lawful custody, quash the sentence imposed in the District Court and in substitution therefor sentence the applicant as follows: The applicant is sentenced to imprisonment for three years nine months, with a non-parole period of two years. The sentence will commence on 25 January 2012, the non-parole period will expire on 24 January 2014 and the balance of the term of the sentence will expire on 24 October 2015. The earliest date on which the appellant will be eligible for release to parole is 24 January 2014.
CATCHWORDS:	SENTENCING – appeal – when Court of Criminal Appeal should decline to intervene where error established – whether s 6(3) permits Court of Criminal Appeal to form opinion about aggregation of sentences passed – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - SENTENCING – early plea of guilty – whether judge gave utilitarian discount for pleas of guilty – whether trial judge had to quantify the discount or specify an undiscounted starting point - SENTENCING – multiple offences – totality – whether excessive sentence for escape from lawful custody – whether sentencing judge sentenced for accumulation of sentences, rather than for each offence – questions of total concurrency of sentences – whether sentences, as accumulated, failed to make sufficient allowance for totality – whether sentencing judge gave proper weight to offences contained on Form 1 – whether there was double counting by judge for offences committed whilst on parole – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 44, 45 - STATUTORY CONSTRUCTION – sentence – whether singular imports plural – whether ‘sentence’ in s 6(3) means aggregation of sentences or individual sentence – Criminal Appeal Act 1912 (NSW) ss 6(3), 7(1A) - WORDS & PHRASES – “sentence”
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 33, s 44, s 44(1), s 44(2), s 45, s 45(2), s 57(2) Crimes Act 1900 s 94, s 95, s 59(1), s 112(1), s 154C(2), s 310D(a), Criminal Appeal Act 1912 s 5D, s 6(3), s 7(1A),
CATEGORY:	Principal judgment
CASES CITED:	Callaghan v The Queen [2006] NSWCCA 58 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kerr v Regina [2008] NSWCCA 133 Marinellis v Regina [2006] NSWCCA 307 Mill v The Queen (1988) 166 CLR 59 Neal v The Queen [1982] HCA 55; 149 CLR 305 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Piper v Corrective Services Commission (NSW) (1986) 6 NSWLR 352 R v Bottin [2005] NSWCCA 254 R v Butler [2000] NSWCCA 525 R v Georgiou [2005] NSWCCA 237 R v Huynh [2005] NSWCCA 220 R v Kaiva (Court of Criminal Appeal 9 November 1998, unreported) R v Kitchener [2003] NSWCCA 134 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v Simpson [2001] NSWCCA 534 R v Smith [2005] NSWCCA 339 R v Tobar (2004) 150 A Crim R 104 R v Thomson (Court of Criminal Appeal, 21 May 1986 unreported) R v Van Hong Pham [2005] NSWCCA 94 R v Waqa (No 2) [2005] NSWCCA 33 R v Wilson [2005] NSWCCA 219 Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 34 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193
PARTIES:	Hilal Arnaout Regina
FILE NUMBER(S):	CCA 2007/4435
COUNSEL:	A Haesler (Applicant) J Girdham (Respondent)
SOLICITORS:	S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	14 September 2007

2007/4435

BASTEN JA
HISLOP J
PRICE J

27 November 2008

ARNAOUT v R

Judgment

1 BASTEN JA: As explained by Price J, on 14 September 2007, the applicant was sentenced by Sorby DCJ in the District Court at Campbelltown in respect of seven separate offences, together with two further counts contained on a Form 1 and taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).

2 The applicant sought leave to appeal against all of the sentences on three grounds. The first was that the sentencing judge had failed to provide an appropriate benefit for what were described as “early pleas of guilty”. I agree with what Price J has said in respect of this ground.

3 Secondly, the applicant complained that the sentences, as accumulated, failed to make sufficient allowance for “totality”, namely that the total period of mandatory custody, being seven years, together with an available period on parole of a further three years, was an excessive sentence having regard to the total criminality in issue. For the reasons given by Price J, that submission should be rejected.

4 I note in particular his Honour’s discussion of the failure by the sentencing judge to give proper weight to the offences contained on Form 1 in sentencing on count 3. That count was one of aggravated robbery which itself carried a maximum penalty of 20 years imprisonment. After taking into account the offences on Form 1, each of which carried a maximum penalty of 14 years imprisonment, his Honour imposed a sentence on count 3 of two years imprisonment, 18 months of which were to be served concurrently with other sentences. No explanation for this degree of leniency was provided in the judgment on sentence and, as Price J has noted, his Honour did not trouble to set out the details of the offences on Form 1. There was, however, no appeal by the Director against what might have been treated as a manifestly inadequate sentence, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).

5 Thirdly, and specifically with respect to the escape from lawful custody, the applicant contended that the sentence was excessive. Again, I agree with what Price J has written with respect to this sentence. In substance, his Honour has held that the sentence was excessive and that, after allowing a discount for an early plea of guilty, an appropriate sentence would have been three years and nine months. In fact, the applicant was sentenced to a non-parole period of two years for this offence with an additional term of three years, giving a total sentence with respect to the offence of five years imprisonment.

6 Because error has been demonstrated in respect of this sentence, it is necessary to consider whether the Court should intervene and, if so, to what effect.

Error in sentence for escape

7 It is necessary first to identify the basis upon which his Honour arrived at the sentence for the escape. He stated in his judgment (p 12), correctly, that he was required to “set individual sentences for each offence before considering questions of totality and whether the sentences are to be concurrent, cumulative or partly both”, following Pearce v The Queen [1998] HCA 57; 194 CLR 610. His Honour then did something curious: he first identified the sentences appropriate for each offence, as a fixed term. Thus, in relation to the escape lawful custody he identified the sentence as “two years”: Judgment at 14. The reasons then continued:

“Having weighed up the objective seriousness of all the offences, the need for general deterrence, the overall criminality of the offences including the three matters on the form 1 together with the subjective mitigating factors in the offender’s favour and applying the principle of totality I consider the appropriate period of non parole to be a period of seven years with a further period of parole of three years.”

8 His Honour then sentenced the applicant, structuring the terms for each offence so as to produce a seven year period of mandatory custody. In doing so, each fixed term was described as a term or period “of non parole”.

9 In my view this approach was erroneous in three related respects. First, a sentence of imprisonment must be imposed “for an offence” and not for an accumulation of offences: Sentencing Procedure Act, ss 44 and 45. Further, as defined in s 3:

“ sentence means:
(a) when used as a noun, the penalty imposed for an offence, and
(b) when used as a verb, to impose a penalty for an offence.”

10 Section 44 applies to a court when sentencing an offender to imprisonment for an offence: it requires that the court first set a non-parole period for the sentence; the balance of the term of the sentence is the period during which the offender is eligible for parole. The term “non-parole” is defined as “the minimum period for which the offender must be kept in detention in relation to the offence”: s 44(1). One cannot have a non-parole period which is the same as the term of the sentence; to do so is, in effect, to decline to set a non-parole period, which invokes the operation of s 45. If the court so declines, it must record its reasons for taking that course: s 45(2). That requirement was not addressed, presumably because his Honour did not think that he was declining to fix non-parole periods. Nevertheless, that constituted error.

11 Secondly, and in explanation of the nature of the error just identified, having determined the appropriate length of the sentences for each offence, it would not have been appropriate then to increase those sentences by specifying an additional term because that would extend the sentence beyond that which had been held to be appropriate. However, when he came to sentence the applicant his Honour described each of these terms as a “non-parole period”, rather than a fixed term. It is not possible to divide a sentence into non-consecutive parts and treat an additional term imposed at a time commencing after the completion of the non-parole period as part of the sentence to which the non-parole period relates.

12 Thirdly, his Honour was in error in purporting to fix a non-parole period with respect to an accumulation of minimum periods of custodial detention. Because each fixed term was two years or less, and thus the longest was no longer than the entirely (and mandatorily) cumulative sentence for escape, his Honour presumably considered it futile to impose additional terms in respect of those other offences because each such term would have been swallowed up in the continuing period of mandatory detention on other counts, not least that for escape.

13 His Honour’s reasoning, set out at [7] above, reveals that the additional term of three years was in fact calculated by reference to the accumulation of seven years of fixed terms, and was not calculated by reference to the sentence upon which it was additional, namely the two year non-parole period for the escape. The appropriate sentence for the escape was, as is indicated by Price J, three years nine months, which should comprise a non-parole period of two years with an additional term of one year nine months. The additional term exceeds one-third of the non-parole period, a course which is permissible and appropriate in the light of his Honour’s finding of special circumstances.

Contention against intervention

14 The Director contended that, pursuant to s 6(3) of the Criminal Appeal Act, even if the Court identified error, it would nevertheless be appropriate for the Court not to intervene. This submission invites attention to the terms of s 6(3):

“ 6 Determination of appeals in ordinary cases
…
(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

15 Section 6(3) does not apply in respect of a Crown appeal against sentence, which must be brought pursuant to s 5D of the Criminal Appeal Act. Accordingly, the possibility that the Court may impose a more severe sentence than that imposed by the trial judge, even on an appeal by the offender, is clearly an intended effect of the provision. It is, however, only exercisable on an appeal and must follow a grant of leave. In those circumstances, it would be inappropriate for an appeal court to grant leave and then increase the sentence without providing the applicant with an opportunity to withdraw his or her application upon an indication that such a course was contemplated: see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 296 (Kirby P, Handley and Sheller JJA agreeing); Neal v The Queen [1982] HCA 55; 149 CLR 305. Procedural fairness would require no less: there was no suggestion in the present case that, absent an appeal by the Director, any individual sentence would be increased. Nevertheless, a refusal to intervene, pursuant to s 6(3), would remain a course open to the Court.

16 In Marinellis v Regina [2006] NSWCCA 307 at [66] Adams J made the following comments on the operation of s 6(3):

“It has been the frequent practice of this Court to regard s 6(3) of the Criminal Appeal Act 1912 as requiring dismissal of an appeal where the overall sentence of a group of sentences is such that no less severe aggregate sentence is warranted in law, even though one or more of the individual sentences included in the group are manifestly excessive: see, for example, McCabe [2006] NSWCCA 220; Georgiou [2005] NSWCCA 237 (per Hidden J); Nightingale [2005] NSWCCA 147 and MM [2002] NSWCCA 431. The notion of an overall or aggregate sentence is useful for discussion, but … to my mind it has no warrant as a [legal] entity and I respectfully doubt that the word ‘sentence’ in s 6(3) can be interpreted to encompass such a meaning. The insertion of the ameliorating provisions of s 7(1A) and the principles authoritatively enunciated in Pearce … reinforce that doubt.”

17 The reference to s 7(1A) was not in order to invoke its operation, but by way of assistance in understanding s 6(3). Section 7(1A) relevantly provides:

“ 7 Powers of court in special cases
…
(1A) If on an appeal against a sentence under section 5(1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:
(a) in relation to any offence charged in any other count or part of the same indictment, or
(b) in relation to any offence charged in any count or part of any other indictment, or
(c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986 , or
(d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986 ,
and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.”

18 In Marinellis, McColl JA (Latham J agreeing) found no need to consider the application of s 6(3). However her Honour noted at [13]:

“I would merely observe having regard to Justice Adams’ remarks on that issue that s 7(1A) was not inserted in the Criminal Appeal Act to deal with any perceived deficiency of s 6(3) in a case, such as the present, where the applicant appeals all sentences imposed upon him or her. It came about to address the issue which arose in R v Itamua [2000] NSWCCA 502 where, (at [54]-[55]) Smart AJ (with whom Sheller JA agreed, and Dowd J relevantly agreed) observed that s 6(3) did not empower this Court ‘to intervene in respect of sentences in respect of which no appeal is brought by either the appellant or the Crown’, a situation his Honour described as anomalous and calling for remedial legislation.”

19 As a matter of legislative history, that may be so; but the reference by Adams J, though elliptical, was by way of confirmation for the conclusion that “sentence” in s 6(3) identified a specific sentence in relation to a particular offence and not an overall aggregation of sentences, a construction which obtains support from the separate identification in s 7(1A) of each sentence for any other offence. It is not necessary to rely upon s 7(1A), inserted in 2001, to interpret longstanding provisions of the Act; rather s 7(1A) reveals a further application of the meaning of “sentence” as defined in s 2(1) of the Criminal Appeal Act which, relevantly, includes “any sentence of imprisonment … imposed under Part 2 of the Crimes (Sentencing Procedure) Act1999”. That in turn picks up the definition of “sentence” in s 3 of the Sentencing ProcedureAct, set out at [9] above.

20 It follows that the use of the singular form of “sentence” in s 6(3) does not mean an aggregation of sentences, merely because use of the singular may import the plural. No doubt an appeal under s 5(1) may relate to more than one conviction or sentence; but if an offender appeals against one only of three convictions, the court is not empowered to consider the validity of other convictions. The same is true of sentences. The question is not whether separate “appeals” are required in relation to separate sentences – see [80] below – but rather to identify the matter with respect to which an applicant has sought to invoke this Court’s jurisdiction. In fact, in the present case, separate grounds challenged the sentencing which achieved the aggregate term of mandatory incarceration (ground 2) and the sentence for the escape (ground 3). In relation to ground 2, a complaint as to the degree of accumulation of one or more sentences would be an appeal in respect of each sentence. Despite finding error, the Court could (and does) decline to intervene: that is separate from the proper approach in addressing ground 3.

21 As a matter of statutory construction, the approach adopted by Adams J in Marinellis is correct. In its terms, s 6(3) is concerned with an individual sentence (or sentences, if more than one is challenged). It requires that this Court form a view as to whether some other sentence, whether more or less severe, is “warranted in law and should have been passed”. If the Court is of that opinion, it is obliged to quash the sentence and impose such other sentence in substitution: if it is not of that opinion, it is obliged to dismiss the appeal. Section 6(3) neither requires nor permits the Court to form an opinion about some other sentence, let alone an aggregation of sentences passed in respect of a variety of offences; nor is its dual obligation conditioned upon the existence of an opinion other than with respect to a sentence for a particular offence. Section 6(3) gives an appellate court no mandate to impose a sentence otherwise than according to law. It allows a discretion where different results are available in exercise of the power to sentence. It does not provide any authority to exceed powers elsewhere conferred. If the error were in imposing an additional term commensurate with the total period of incarceration, rather than that appropriate to the only relevant conviction, for this Court not to intervene would be to repeat the jurisdictional error. Accordingly, if this Court is satisfied that some other sentence was warranted in law with respect to the offence of escape from lawful custody, it is the obligation of the Court to impose that sentence.

22 Further, if there is some doubt or uncertainty about the proper construction of that provision (contrary to the views expressed above), that doubt or uncertainty should be resolved in favour of applying the rule of law and correcting legal error, an approach which conforms to the principle that, where the liberty of the individual is in issue, uncertainty or ambiguity should be resolved in a manner which favours the liberty of the individual: see Smith v Corrective Services Commission (NSW) [1980] HCA 49; 147 CLR 134 at 139 (Stephen, Mason, Murphy, Aickin and Wilson JJ); Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 at [45] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Piper v Corrective Services Commission (NSW) (1986) 6 NSWLR 352 at 361D (Kirby P, Hope and Samuels JJA).

23 The proper construction of s 6(3) does not, however, necessarily resolve questions relating to the application of the principle of totality and interference with the structure of multiple sentences. That exercise should be carried out in this Court, as it would be by a trial judge, by fixing an appropriate sentence for each offence, determining whether in principle they should be served concurrently, cumulatively or partly cumulatively and then considering whether the overall aggregation imposes a total effective period of imprisonment which requires adjustment downwards. The appropriate practice in this regard permits a degree of flexibility: see, eg, Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [18]-[26] (Gummow, Callinan and Heydon JJ). No doubt the reduction of any particular sentence is a variation of the sentence; a variation of the date of commencement of the sentence (and hence its termination date absent variation in length) is also a variation of a sentence. Whether such variations are now to be undertaken in the case of multiple sentences pursuant to s 6(3) or s 7(1A) need not be determined in the present case. It is a practice frequently undertaken and its validity can be addressed when necessary.

24 On the other hand, having determined that another sentence is appropriate with respect to a particular offence on an appeal by an offender, it would seem to be inappropriate to decline to intervene because the overall period of imprisonment could have been restructured so as to achieve the same result. That is not what s 6(3) requires or permits, for reasons given above. If the approach adopted in Kerr v Regina [2008] NSWCCA 133 (McCallum J, Beazley JA and Johnson J agreeing), at [36] is to be read as taking a different approach, both it and the other authorities adopting a similar view, may need to be reconsidered. However, it is not necessary to resolve that issue in the present case, because a relevant restructuring could not achieve an appropriate variation to give the present result.

25 As explained by Price J, the degree of leniency accorded by the trial judge in various respects affected directly only the period of mandatory imprisonment. (The term of two years imposed on count 3, taking into account the offences on Form 1, might have been increased or the extent to which it was to be served concurrently with other sentences reduced.) However, no restructuring is possible which could give rise to a variation in the additional term. The additional term must be that appropriate to the sentence for which it is imposed, namely escape from lawful custody. Once the Court is satisfied that a different minimum additional term is warranted in law and should have been passed, it is obliged to quash the sentence for escape from lawful custody and pass the alternative sentence.

26 The result will be a diminution in the period available for the applicant to serve under supervision. That period will now be approximately 20% of the period of mandatory imprisonment. Although the period available for supervised parole is almost half the sentence imposed for escape, (a relationship which is justified by the unchallenged finding of special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act) it is, for practical purposes, a small proportion of the overall period of imprisonment. That result flows from the operation of the statutory scheme, which may not be consistent with what might otherwise be seen as the requirements of sound sentencing principles. It is not permissible to expand the sentence for the escape beyond that which is otherwise warranted by the offence, in order to provide a longer period of supervised release.

27 The appropriate orders should be as follows:

(1) Grant the applicant leave to appeal in respect of the sentences imposed by Sorby DCJ in the District Court at Campbelltown on 14 September 2007.

(2) With respect to each sentence other than that for the offence of escape lawful custody, dismiss the appeal.

(3) In respect of the offence of escape lawful custody, quash the sentence imposed in the District Court and in substitution therefor sentence the applicant as follows:

The applicant is sentenced to imprisonment for three years nine months, with a non-parole period of two years.
The sentence will commence on 25 January 2012, the non-parole period will expire on 24 January 2014 and the balance of the term of the sentence will expire on 24 October 2015.
The earliest date on which the appellant will be eligible for release to parole is 24 January 2014.

28 HISLOP J: I agree with the orders that Basten JA proposes, generally for the reasons that his Honour and Justice Price give, save that I prefer to express no opinion as to the proper construction of s 7(1A) of the Criminal Appeal Act, 1912 and its relation to s 6(3) of that Act.

29 PRICE J: Hilal Arnaout, the applicant, seeks leave to appeal against the severity of the sentences imposed upon him in the District Court at Campbelltown on 14 September 2007. He had pleaded guilty to the following offences:

(1) An offence of break, enter and steal on 5 December 2005 contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for such an offence is 14 years imprisonment. For this offence, the applicant was sentenced to imprisonment consisting of a non-parole period for 2 years to date from 25 January 2008 and to expire on 24 January 2010.

(2) An offence of steal from the person on 13 December 2005 contrary to s 94 of the Crimes Act . The maximum penalty for such an offence is 14 years imprisonment. For this offence the applicant was sentenced to imprisonment consisting of a non-parole period of 12 months to date from 25 January 2007 and to expire on 24 January 2008.

(3) An offence of aggravated robbery on 20 December 2005 contrary to s 95 of the Crimes Act . The maximum penalty for such an offence is 20 years imprisonment. For this offence, the applicant was sentenced to imprisonment consisting of a non-parole period of 2 years to date from 25 January 2009 and to expire on 24 January 2011.

(4) An offence of robbery on 21 December 2005 contrary to s 94 of the Crimes Act . The maximum penalty for such an offence is 14 years imprisonment. For this offence, the applicant was sentenced to imprisonment consisting of a non-parole period of 18 months to date from 25 July 2010 and to expire on 24 January 2012.

(5) An offence of steal from the person on 21 December 2005 contrary to s 94 of the Crimes Act . For this offence, the applicant was sentenced to imprisonment consisting of a non-parole period of 12 months to date from 25 January 2007 and to expire on 24 January 2008.

(6) An offence of assault occasioning actual bodily harm on 26 December 2005 contrary to s 59(1) of the Crimes Act . The maximum penalty for such an offence is 5 years imprisonment. For this offence, the applicant was sentenced to imprisonment consisting of a non-parole period of 18 months to date from 25 July 2010 and to expire on 24 January 2012.

(7) An offence of escape lawful custody on 26 December 2005 contrary to s 310D(a) of the Crimes Act . The maximum penalty for such an offence is 10 years imprisonment. For this offence, the applicant was sentenced to term of imprisonment consisting of a non-parole period of 2 years to date from 25 January 2012 and to expire on 24 January 2014 with a period of parole of 3 years to date from 25 January 2014 and to conclude on 24 January 2017.

The Judge found special circumstances permitting an adjustment in the statutory ratio of the non-parole period and balance of term being the applicant’s efforts to stay off drugs whilst in custody and undertaking to further rehabilitation on his release and the fact that the applicant would be serving his sentence in maximum security.

30 The overall effective sentence was 10 years with a non-parole period of 7 years.

31 Two matters on a Form 1, namely an offence of aggravated carjacking on 11 December 2005 contrary to s 154C(2) of the Crimes Act, the maximum penalty for which is 14 years imprisonment and an offence of robbery on 14 December 2005 contrary to s 94 of the Crimes Act, were taken into account on the sentence imposed for offence 3.

32 The applicant relies upon the following grounds:

1. His Honour failed to give the promised benefit for the early pleas of guilty.

2. The sentences as accumulated failed to make sufficient allowance for totality; and

3. The escape sentence was excessive.

Facts

33 An agreed statement of facts was placed before the Judge which may be summarised from his Honour’s sentencing remarks as follows:

“ Offence 1 break enter and steal on 5 December 2005

At the end of trade on Sunday 4 December 2005 the David Jones department store in Bankstown was left locked and secured and it was alarmed. At about 4.37am on 5 December the alarm was activated by movement in sections 25 and 44 and the prevention officer was notified at about 5am. The prevention officer and a Bankstown Centro security guard entered the store and heard alarms sounding in the home office department located on level 3.

The prevention officer and security guard walked upstairs into that department. They noticed that there were two large lap top computers missing. Further into the department they saw a glass display cabinet had been smashed and a number of digital cameras were missing from this cabinet.

They then moved around inside the store to check the security of each entry/exit door. It was noticed a point of entry alongside the exit doors in the furniture department. Alongside was a glass window which has a gyprock wall constructed behind it. The window was also protected by a roller shutter. The roller shutter had been forced open from the side, the glass window smashed and a hole forced through the gyprock to gain entry into the store.

Police were contacted and the theft reported…
…

A stock audit was subsequently undertaken to identify what had been stolen and the costs associated. It was found that thirty three digital cameras were stolen at a cost price of $16,051.37, [19 camcorders] were stolen at a cost price of $19,055.16 and three lap top computers stolen at a cost price of $6,659.17. The total cost price of stock stolen was $41,765.70 with a retail value of $46,768.

The second offence steal from the person on 13 December 2005

The facts are that at about 1.30pm on Tuesday 13 December 2005 [the victim] was walking north [along] Waterloo Road Chullora in possession of her handbag and shopping items. The offender has approached [the victim] from behind and grabbed her handbag that was over her right shoulder. The offender has pulled the handbag downwards causing [the victim] to lean forwards [sic] to the right and the handbag was pulled from her right shoulder and arm.

[The victim] turned around and saw the offender running along Waterloo Road in possession of her handbag.

…

Property within the handbag the offender stole included a Sagem mobile telephone, about $470 in Australian currency, a pair of diamond earrings, car keys and other personal items. [The victim] suffered no physical injuries.

Offence number 3 aggravated robbery on 20 December 2005

The facts are at about 10.10am on 20 December 2005 [the victim] walked south along Dora Street, Hurstville towards the CBD of Hurstville. At the intersection with Queens Road [she] had to stop to wait for the traffic lights. While she was waiting for the traffic lights to change, the offender approached her from behind and took hold of her handbag which was over her right shoulder. [The victim] attempted to grab hold of the bag strap but was pulled off balance by the offender. This caused her to fall to the ground where she sustained grazing to her left ring finger and lower back.

The offender took hold of the bag and ran north along Dora Street to the vehicle VQY 412 which had previously been stolen from Bankstown. He entered the front passenger seat of the vehicle and was last seen by the witness driving south along Dora Street.

Offence number 4 on 21 December 2005 robbery offence

The facts are that at about 1am on Wednesday, 21 December [the victim] left her home en route to the Bankstown Railway Station. As she walked north on Vimy Street she heard the sound of heavy footsteps coming from behind her. At this time, she had her black leather handbag over her right shoulder.

She felt a strong tug on her handbag. She grabbed hold of the bag and resisted the offender as he pulled on the bag. The offender swung [the victim] around in a circle. The offender pulled hard on the bag and [she] let go. Her momentum caused her to fall to the ground where she hit her head on the footpath. As [the victim] fell she looked up and saw the offender. The offender ran north on Vimy Street.

As a result of the incident, [the victim] had various items stolen including a Medicare card and cash. She received a bump on the head which resulted in a headache as a result of what happened.

Offence number 5 steal from person on 21 December 2005

The facts are about 7.30am on Wednesday 21 December [the victim] parked her friend’s vehicle on the Boulevard at Punchbowl and walked to the newsagent. At this time the offender came from behind [the victim] and grabbed her handbag which was over her shoulder. The offender pulled on the straps hard causing them to separate at the point where the straps meet the bag. The offender ran from the location. The victim later described the offender’s clothing.

[The victim] had numerous items in her bag including her driver’s licence, Medicare card and her friend’s car keys. She was not injured during the incident.

Offence 6 assault occasioning actual bodily harm and escape lawful custody

On Monday 26 December the offender was being treated for injuries at Auburn Hospital. The offender was under guard by two New South Wales Corrective Services prison officers in room 402 on the fourth floor of the hospital. He was handcuffed to the hospital bed by his left wrist.

At 1.10pm the prison officer Mr Lozidies unlocked the handcuff on the wrist of the offender to allow him to use the toilet. Lozidies and prison officer Smith escorted the offender to a nearby bathroom. The offender was under the supervision of Lozidies whilst using the toilet. Smith was standing at the doorway of the bathroom and the ward.

The offender suddenly stepped into the toilet and slammed the cubicle door closed. Lozidies called for assistance from Smith while demanding the offender open the door. A short time later the offender used the hospital gown to protect his hand and smashed out a window. Lozidies and Smith continued to try and force entry to the cubicle.

Lozidies and Smith gained entry to the cubicle and saw the offender standing on the window ledge with his upper torso outside the broken window and his feet on the inside ledge of the window ledge. Lozidies grabbed the offender around the waist and Smith grabbed the offender around the hips and legs while both trying to pull the offender back into the cubicle. The offender was struggling to get away from both of them.

At this time the offender took hold of a shard of glass in his right hand and made a number of stabbing motions towards Smith and Lozidies. The offender stabbed Lozidies four times in the back of his right hand using a shard of glass and stabbed him once in the back of his left hand. There were also a number of abrasions on the hands of Lozidies caused by the offender slashing at him with the glass.

Smith sustained an injury to his right arm while trying to pull the offender back from the window ledge. Both Smith and Lozidies lost their grip on the offender who pushed off from the window ledge and fell three floors landing face first onto the roof of the hospital laundry. He stood up and left the area. A search of the area was unable to locate the offender who had fled.

About 8pm Senior Constable Blair and Constable Gewargis attended … Street Villawood …

[The offender’s brother] allowed the police into this home and was informed that the offender had escaped from corrective services custody that afternoon and was in need of urgent medical attention due to the injuries he had sustained as a result of the escape.

[The offender’s brother] had a conversation with a person via his mobile phone and then informed the police that he had spoken to his brother and that arrangements had been made that the offender attend that location to surrender himself to police.

The police conducted an armed and dangerous vehicle stop of motor vehicle … and located the offender lying down in the rear of the vehicle and he was taken into custody. He was in considerable pain from the injuries and from the fall. He was then charged.”

34 His Honour’s recitation of the facts did not include the offences on the Form 1. His Honour said that he had read the facts for these offences carefully and had taken them into account. It is necessary to detail the facts of the offences on the Form 1 to appreciate the seriousness of each of these offences.

35 The circumstances of the aggravated carjacking on 11 December 2005 were that the applicant approached the victim who was sitting in the driver’s seat of her vehicle in an underground car park at Lakemba, telling her to “unlock the club lock and give it to me.” The victim had never met or seen the applicant before. She replied, “What are you talking about?” The applicant said, “Give me the steering lock or I will kill you.” The applicant and the victim had a lengthy conversation during which he claimed the victim’s husband was sleeping with the applicant’s wife. He further stated that his wife had pointed the victim out some weeks back in the Plaza. The victim’s husband was in Macedonia at the time and had never been in Australia. The victim had been divorced from her husband in 2002. After some time, the applicant pushed the victim into the vehicle, placed his hand over her mouth and said, “Don’t scream or I will kill you.” He forced the keys from the victim’s hands and removed the steering lock. He pulled her from the vehicle and threw her onto the ground. There followed a struggle during which she was thrown to the ground again and kicked in the stomach. She suffered pain to her back, head, knees, rib and shoulder and grazing to her elbow and fingers. The applicant drove off in the victim’s vehicle.

36 The circumstances of the second offence on the Form 1 being a robbery on 14 December 2005 were that the applicant approached the victim from behind and grabbed her handbag. The force used by the applicant caused the bag strap to break and come away from the bag. With the force of the pulling, the victim was pulled downward with the bag and when the strap broke, the handle of the bag scratched her arm. The applicant ran off and was seen entering the passenger side of a parked vehicle with an unknown driver. The vehicle with the applicant in it drove off. Inside the stolen handbag were the victim’s mobile phone, wallet, personal cards, $10 in cash and other personal items.

37 At the time the applicant committed offences 1 to 5 he was on parole.

Subjective circumstances

38 During the proceedings on sentence, the applicant gave evidence. A report from Anna Robilliard, a psychologist, and a Probation and Parole pre-sentence report were also tendered. The Judge summarised the applicant’s subjective circumstances (ROS at 10-11):

“He was born on 17 January 1977 and is now thirty years of age. He was born in Lebanon. He grew up in a family of one of eight children. He attended school in Australia to year 9. Since leaving school, he has had short periods of employment interspersed with periods of gaol. He has no qualifications. He did spend eighteen months in the Lebanese Army at one stage but said from the witness box that he did not enjoy the experience.

The offender has a significant history of drug usage. He started using cannabis at the age of twelve and progressed to heroin at the age of sixteen. To fund his habit he committed robbery and other offences, went to gaol and relapsed and committed more offences.
Drugs and the need to fund the supply was the reason according to the offender that he committed the offences which brought him before me. Drug use and dependency might explain his offending but it cannot excuse it.
Since he has been in custody for these offences he said in the witness box that he had remained drug free. He said this compared to other times in custody when he continued to use drugs when you can get them. He said that he had seven clean urine tests whilst in custody and there was some [independent] evidence before me to support that [sic] his assertion that he has remained off drugs.
The offender has never undertaken any drug rehabilitation programs in the past but said in the witness box that he would if he was offered one in prison or on his release from [sic] parole he would be prepared to attend a live in program. He said in the future he wanted to stay clear of drugs and plans to stay close to his supportive family and work with them to stay off drugs.”

Prior criminal history

39 The applicant’s criminal history included an offence of armed robbery for which he was sentenced to imprisonment in the District Court in September 1995 to a minimum term of 2 years with an additional term of 2 years; an offence of break, enter and steal in March 1995 for which a sentence of imprisonment with a minimum term of 5 months and 10 days with an additional term of 18 months was imposed; two counts of robbery in company for which he was sentenced in the District Court on 27 March 1998 to a minimum term of imprisonment of 5 years with an additional term of 3 years. Two counts of robbery; and counts of break, enter and steal; possession of implements and malicious damage were taken into account on a Form 1.

40 The applicant has also been sentenced to imprisonment for offences of assault and possession of a prohibited drug.

Dealing with the appeal

Ground 1: His Honour failed to give the promised benefit for the early pleas of guilty.

41 The applicant submitted that the Judge said that he would give the applicant the benefit of his early pleas of guilty but erred when he described which of the matters attracted a full 25 per cent discount. The sentence imposed, the applicant pointed out, for the escape charge was one of the matters he erroneously said did not attract the full 25 per cent discount. Furthermore, his Honour did not allocate a percentage to the matters where the plea was given when the applicant was first arraigned. It was contended that when the Judge came to sentence for each offence no indication was given that the early pleas of guilty had been taken into account at all. The applicant argued that his Honour’s failure to set out the discount actually compounded his error in not giving the full 25 per cent discount for the escape charge.

42 The Court was referred to the following passage in the Judge’s remarks on sentence (ROS at 11):

“The offender pleaded guilty at the Burwood Local Court at the first opportunity to the first five offences on the indictment and will receive the full discount of twenty five per cent for this (sic) offence. Offences 6 and 7 were not at the first opportunity. The pleas indicate contrition on his part and have a utilitarian value.”

43 The Crown concedes that the Judge erred in his identification of the offences to which pleas of guilty had been entered in the Local Court. There were four offences (not five) included on the indictment being offences 2, 3, 4 and 5 which were the offences to which the applicant had pleaded not guilty in the Burwood Local Court on 21 March 2007 and had been committed for trial. Pleas of guilty had been entered to these offences upon the applicant’s arraignment in the District Court on 13 June 2007 and not in the Local Court. The utilitarian value of a plea of guilty after committal for trial will not normally attract a discount at the top of the range of 10-25 per cent. His Honour’s mistaken attribution of a 25 per cent discount for these offences was an error which favoured the applicant.

44 The applicant had pleaded guilty in the Burwood Local Court to the first offence and offences 6 and 7. His Honour was mistaken when he said that the pleas to offences 6 and 7 “were not at the first opportunity”. It is apparent that the Judge had intended to discount by 25 per cent the sentences imposed for the offences to which pleas of guilty had been entered in the Local Court. His Honour was in error in not discounting the sentences for offences 6 and 7 by the intended discount of 25 per cent. Offence 7 was the escape from lawful custody.

45 His Honour did not quantify a discount for the pleas of guilty for counts 6 and 7. The failure of the Judge to quantify a discount does not of itself constitute an error: R v Simpson [2001] NSWCCA 534 at [82-83]. This Court, however, continues to encourage sentencing Judge’s to make the process of giving credit for pleas of guilty transparent. As was said by Dunford J in R v Waqa (No 2) [2005] NSWCCA 33 at [13]:

“This is best achieved, in my opinion, by the judge specifying a notional starting point before specifying the discount or discounts allowed, otherwise the offender may get the impression that although a percentage discount has been specified, no such discount had been in fact…allowed: R v Mako [2004] NSWCCA 90 at [21], R v Lynn [2004] NSWCCA 222 at [13], R v Sutton [2004] NSWCCA 225 at [16]-[17].”

46 Although his Honour neither quantified the utilitarian discount for offences 6 and 7 nor specified an undiscounted starting point for the sentences imposed for these offences, it is clear that he considered that all of the pleas had utilitarian value when he said in the passage I have quoted at [42] “the pleas indicate contrition on his part and have a utilitarian value.” I am not persuaded that his Honour did not take into account the pleas of guilty when he came to sentence the applicant.

Ground 2: The sentences as accumulated failed to make sufficient allowance for totality.

Ground 3: The escape sentence was excessive .

47 Grounds 2 and 3 may be conveniently considered together.

48 The applicant contended as to ground 2 that the overall sentence was too much because there was general acceptance that the applicant was at a “crossroads” in terms of coming to grips with his serious drug addiction and there was a danger that a long sentence would put at risk any incentive he might have to apply himself to his rehabilitation. Furthermore, the sentences were accumulated totally on the existing non-parole period for other matters although the Judge took into account that the offences were committed whilst the applicant was on parole. There was, the applicant argued, an element of double counting. The applicant also submitted there was a real risk of double counting other aggravating factors that were common to all the offences.

49 The Judge was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. His Honour was required to impose an overall aggregate sentence that fairly and justly reflected the totality of the criminality involved: see Pearce v The Queen (1998) 194 CLR 610. The principle of totality also applies where a sentence is being served: see Mill v The Queen (1988) 166 CLR 59. At the time of sentence the applicant was serving the balance of a sentence following the revocation of parole. An added complication for his Honour was that s 57(2) of the Crimes (Sentencing Procedure) Act 1999 required that the sentence for the offence of escape (offence 7) be served consecutively upon any sentence that had yet to expire, or upon any other sentence that was imposed in the same proceedings.

50 His Honour was mindful of these principles when he said (ROS at 12):

“Following Pearce I have to set individual sentences for each offence before considering questions of totality and whether the sentences are to be concurrent, cumulative or partly both. Pursuant to s 57(2) of the Crimes (Sentencing Procedure) Act 1999 the sentence I impose for the offence of escape from lawful custody must be served consecutively with the other sentences imposed.”

And (ROS at 13):

“The fact that the offender was on parole at the time of the offence is a further important factor I have to take into account in the sentencing exercise.”

And (ROS at 14-15):

“The overall sentence will involve structuring it in such a way that there will be some overlapping and concurrence as between sentences making them some wholly concurrent and others partly so.”

51 His Honour made some sentences cumulative and others partly concurrent or totally concurrent to arrive at the total sentence. Offences 2 and 5 were totally concurrent with each other but cumulative on the existing sentence. Offence 1 was cumulative on offences 2 and 5. Offence 3 was partially cumulative on offence 1. Offences 4 and 6 were totally concurrent with each other but partially cumulative on offence 3. Offence 7 was cumulative on the preceding sentences for offences 4 and 6. The applicant submitted that the overall result was a potentially crushing sentence.

52 In R v M.A.K, R v M.S.K [2006] NSWCCA 381, the Court (Spigelman CJ, Whealy and Howie JJ) said at [17]:

“The second matter that is considered under the totality principle is the proposition that an extremely long total sentence maybe ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.”

53 A close examination of the sentences imposed is required in order to consider this issue. Totally concurrent sentences consisting of a non-parole period of 12 months imprisonment were imposed for offences 2 and 5 which were offences of stealing from the person on 13 December 2005 and 21 December 2005 respectively. For offences 4 and 6 totally concurrent sentences consisting of non-parole periods of 18 months imprisonment were imposed. Offence 4 was the offence of robbery on 21 December 2005 and offence 6 the offence of assault occasioning actual bodily harm on 26 December 2005 to the prison officer.

54 The Judge appositely said as to offences 2 and 5 (ROS at 13):

“The penalties imposed for what is known as bag snatching type offences also reflect the community’s concern at the prevalence of such offences. These offences represent direct attacks upon the security of individuals in the community and their property which the law exists to protect.”

And as to offence 6 (ROS at 13-14):

“The offence of occasioning actual bodily harm involved the offender stabbing a prison officer four times to the back of his hand with a shard of glass and the back of his left hand as well. This offence was carried out on a prison officer carrying out his duties and it warrants condign punishment.”

55 The Crown argued that total concurrency for these offences was clearly lenient and a greater degree of accumulation was open to his Honour whereas the applicant contended that what was said in Pearce does not mean that sentences cannot be wholly concurrent.

56 Each of the offences 2, 5, 4 and 6 involved separate offending with different victims. Whilst his Honour had in mind the principle of totality the sentences, in my opinion, should have been partially accumulated on each other. At the very least the sentence for offence 6 should have involved a degree of accumulation on the sentence for offence 4. As was said by Simpson J in R v Wilson [2005] NSWCCA 219 at [38]:

“To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims.”

The imposition of concurrent sentences for these offences favoured the applicant.

57 The Crown next submitted that the sentence imposed for offence 3 did not meet the objective seriousness of the offence taking into account the matters on the Form 1.

58 For offence 3 the aggravated robbery on 20 December 2005, the applicant was sentenced, taking into account the offences on the Form 1, to imprisonment consisting of a non-parole period of 2 years. The effective sentence for this offence when partial accumulation on offence 1 is considered was 12 months imprisonment. The maximum penalty for the offence was 20 years imprisonment. The offences on the Form 1 which included the aggravated carjacking on 11 December 2005 were taken into account by the Judge upon sentence for this offence. The facts of the aggravated carjacking which have been recounted at [35] reveal a serious offence which should not have been dealt with, in my view, by the prosecutorial authorities on a Form 1. The applicant’s criminality in committing the offence was more serious than some of the other offences for which the applicant was separately prosecuted. The maximum penalty for this offence was 14 years imprisonment. In committing the offence the applicant forced the car keys from the victim’s hands, pulled her from the vehicle and threw her onto the ground. During the struggle which followed she was thrown to the ground again and kicked in the stomach. Before being forced from the vehicle, the applicant threatened to kill her on two occasions if she did not comply with his demands. It was a terrifying experience for the victim whose vehicle was driven off by the applicant. The second offence on the Form 1 being an offence of robbery was punishable by 14 years imprisonment.

59 The criminality involved in the Form 1 offences was such that the sentence for the primary offence which was itself serious should have been significantly increased notwithstanding the advantages that the Form 1 procedure might provide to the administration of justice. Whilst recognising that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted, it is well established that the sentence for the primary offence should not be only slightly increased if the offences to be taken into account on a Form 1 are serious in their own right. The sentence imposed for offence 3 did not adequately reflect the need for personal deterrence and the community’s entitlement to exact retribution from a serious offender: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Spigelman CJ at [42]. His Honour’s approach to offence 3 was, to my mind, particularly generous to the applicant and the sentence imposed was inadequate. The totality principle required that an appropriate sentence be fixed for each offence before questions of cumulation, concurrence and totality were considered.

60 It was submitted by the applicant that there was an element of double counting when the Judge took into account that the offences were committed whilst on parole and accumulated the sentences upon the expiration of the parole period. The Judge said (ROS at 15):

“The offender has been in custody for these offences since 25 January 2007. He was serving the balance of parole for the weeks between his date of arrest and 25 January 2007. His sentence will be backdated to 25 January 2007.”

61

62 It appears that the applicant had been released to parole on 7 June 2002 for the sentence imposed on him in the District Court on 27 March 1998. The Parole Board revoked the grant of parole in 2003 which did not take effect until 5 March 2005 when he was returned to custody. He was released to parole for a second time on 17 March 2005. He was arrested for the present offences on 21 December 2005. The Parole Board revoked his parole once again and he served the balance of the sentence which expired on 25 January 2007. Whilst the reason that his parole was revoked for the second time is unclear, the Judge was told by the Crown during the proceedings on sentence that the revocation had nothing to do with the commission of the present offences. The applicant’s legal representative did not demur. No material was adduced in this Court which established that the position was otherwise than that stated by the Crown to the Judge.

63 During oral submissions, the applicant referred to R v Kaiva (Court of Criminal Appeal 9 November 1998, unreported) where the offender in that case had committed an offence whilst on parole. At the time of sentencing the offender’s parole had not been revoked. The commission of the offence whilst on parole was regarded as an aggravating factor by the Judge, however, the sentence was not backdated to commence from the date that the offender went into custody. Kirby J with whom Simpson J agreed considered that to be an error. Simpson J noted, however, in R v Kitchener [2003] NSWCCA 134 at [55] that it was “of some significance that, in Kaiva, the revocation of parole was attributable solely to the commission of the offence for which the offender was being sentenced.”

64 The backdating of a sentence where parole has been revoked is a discretionary matter: see Callaghan v The Queen [2006] NSWCCA 58 per Simpson J (with whom James and Hall JJ agreed) at [22]. In the present case the revocation of parole cannot been seen as attributable to the commission of the present offences and the time spent in custody prior to 25 January 2007 was not punishment for those offences. I am not persuaded that there was an element of double counting. The commencement of the sentence upon the expiration of the parole period was a legitimate exercise of the Judge’s discretion.

65 The argument that there was a ‘real risk’ of some double counting of factors of aggravation was confined by the applicant to the way that the sentences were accumulated. In my opinion, there is no merit in this argument.

66 One of the applicant’s contentions was that the overall sentence was ‘too much’ because there was general acceptance that the applicant was at a “crossroads” in terms of coming to grips with his serious drug addiction. The Judge did not find that the applicant was at the “crossroads” nor does it seem that any finding was made as to his prospects of rehabilitation. The Judge did, however, find that “there was some independent evidence…to support …his assertion that he has remained off drugs” whilst in custody. The Judge was entitled to be cautious about the applicant’s future prospects upon release. Submissions are commonly made to sentencing Judges that offenders are at the “crossroads” and subsequent offending establishes that the wrong road was taken. In the applicant’s case, the offences for which he came to be sentenced were committed whilst he was on parole. Furthermore, parole had been previously revoked. In any event, the Judge found that the efforts made by the applicant in custody and his drug rehabilitation were special circumstances.

67 As to the third ground of appeal, the applicant submitted that the sentence for the offence of escape (offence 7) of 5 years imprisonment consisting of a non-parole period of 2 years was excessive. The applicant contended that his Honour appears first to have established that a 2-year non-parole period was required, then neither made an adjustment for totality nor the guilty plea at the earliest opportunity. His Honour, it was argued, appears simply to have added a 3-year balance of term by reference to the total accumulated sentences and his findings relating to special circumstances. The findings of special circumstances, the applicant contended, appear to have extended the term of the sentence which was impermissible. It was further said that, whilst it was a serious example of escape, the offence was mitigated somewhat by the offer to surrender brokered by the applicant’s brother.

68 It would have been an error for the Judge to extend the head sentence to enlarge the period of eligibility to release to parole: R v Huynh [2005] NSWCCA 220 at [39]; R v Tobar (2004) 150 A Crim R 104. I am not persuaded, however, that the Judge extended the term of the sentence for the escape because he found special circumstances. Sentencing Judges are required by s 44(1) of the Crimes (Sentencing Procedure) Act to first set a non-parole period for the sentence. It is evident that the Judge considered the offence of escape warranted a sentence of 5 years with a non-parole period of 2 years. His Honour said (ROS at 14):

“The final offence of escape lawful custody is also a grave offence. Both specific and general deterrence are important, it being essential that offenders such as Mr Arnaout understand that any offence of escape will result in a meaningful increase in their period of detention.”

69 His Honour as mentioned at [44] was in error in failing to attribute a 25 per cent discount for the plea of guilty to this offence. It seems that the Judge made allowance for a discount in the order of 10 to 15 per cent for the plea. Assuming a discount of 10 per cent, the undiscounted starting point of the sentence would be about 5 years 7 months whereas for a discount of 15 per cent about 5 years 11 months. The undiscounted starting point of the sentence after an allowance of 25 per cent is made for the plea is about 6 years 6 months.

70 At the time of the escape, the applicant was attending hospital for treatment. The Judge correctly regarded the offence as serious and that both personal deterrence and general deterrence were of importance. It is well recognised that prisoners must understand that any offence of escape or attempted escape will result, as the Judge said, in a meaningful increase in their detention: see R v Butler [2000] NSWCCA 525; R v Van Hong Pham [2005] NSWCCA 94 per Wood CJ at CL at [18].

71 This Court was referred to Judicial Commission sentencing statistics which indicated that for the period from October 2000 to September 2007 only 3 per cent of offenders for the offence of escape contrary to s 310D(a) had been sentenced to 5 years imprisonment. Ninety seven per cent of offenders had received sentences of 3 years or less. The Court was told that these statistics did not differentiate between the earlier period when the maximum penalty for the offence was lower than the present maximum. The maximum penalty of 7 years has been increased to 10 years. Whilst the statistics are of limited assistance for this reason and for the reason that sentencing depends upon the individual circumstances of the offender to be sentenced, they provide some guidance of an appropriate sentencing range. In Van Hong Pham Wood CJ at CL noted at [17] Street CJ’s observation in R v Thomson (Court of Criminal Appeal, 21 May 1986, unreported) that the ordinary sentence for an unremarkable escape “could be expected to approximate two years” (at a time when the maximum penalty for the offence was imprisonment for 7 years).

72 In the applicant’s case, there was some mitigation in the arrangements that had been made for his surrender to police.

73 In the circumstances of the prisoner’s escape, the undiscounted starting point of the sentence, in my opinion, should not have been more than 5 years. When allowance for a 25 per cent discount for the plea is made, the head sentence would be 3 years 9 months.

Intervention?

74 Although error has been established, the question remains whether any lesser sentence is warranted: s 6(3) of the Criminal Appeal Act 1912. In considering that question, it is necessary to have regard to the applicant’s affidavit sworn 20 August 2008 whereby he maintains his commitment to overcoming his drug addiction and affirms that he has not committed any offences against gaol discipline. Nevertheless, I have indicated the ways in which his Honour’s approach to his sentencing task was unduly favourable to the applicant.

75 Basten JA is of the opinion that s 6(3) of the Criminal Appeal Act does not permit this Court to form an opinion about the aggregation of sentences passed in respect of a variety of offences and in its terms the sub-section is concerned with an individual sentence.

76 A similar approach to the operation of s 6(3) was taken by Hulme J in R v Smith [2005] NSWCCA 339 at [37] when his Honour said:

“Having reflected on the matter, I regret to say that I am unable to agree with the view expressed in R v Bottin as to the operation of s 6(3). To my mind “sentence” in that sub-section refers to the order made or sentence imposed in respect of one offence and not to the overall effect of a combination of sentences...”

77 In R v Bottin [2005] NSWCCA 254 Studdert J with whom Kirby and Howie JJ agreed remarked at [37] that:

“Section 6(3) of the Criminal Appeal Act is to be read, where appropriate, in conjunction with s 7(1A) of that Act. There is a need to consider the total criminality of the appellant, and when this is done, it seems to me that the overall effect of the sentences passed, namely a non parole period of seven years and an available parole period of four years, affords appropriate punishment for the offences committed. In my opinion, punishment no less than that was warranted, and I would therefore not be disposed to interfere with the sentences as structured: see R v Carr [2002] 135 A Crim R 171 at para 35 and R v Shankley [2003] NSWCCA 253 at para 20.”

78 Hidden J in Smith, however, considered at [52] that the approach expressed in the passage quoted from Bottin was “generally appropriate”. Bell J at [54] preferred not to express a view on the correctness of the approach that found favour in Bottin as to the construction of s 7(1A) and its relation to s 6(3) was not the subject of detailed argument on the hearing of the application.

79 To my mind, the view expressed in Bottin as to the operation of s 6(3) is to be preferred. Section 6(3) is as follows:

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

80

81 Although “sentence” in the section is in the singular, the presumption is that words in the singular will include the plural unless the contrary intention appears. There is no indication that plurality is to be excluded. The opening words “On an appeal under section 5(1)” suggest on the other hand that the singular includes the plural. Section 5 (1)(c) relevantly provides:

“A person convicted on indictment may appeal under this Act to the Court:
…
(c) with the leave of the court against the sentence passed on the person’s conviction.

82 Where an offender has been convicted of more than one offence and more than one sentence is imposed, there is one appeal to this Court although that appeal may be founded on a number of grounds. As in the present appeal, separate appeals are not required for the individual sentences imposed. “Sentence” in that subsection refers, it seems to me, to the total sentence and not, where there is more than one sentence, to the sentence imposed in respect of one offence. It follows, in my opinion, that on an appeal under s 5(1) that the operation of s 6(3) is not confined to the sentence imposed in respect of one offence and that “sentence” includes the overall effective sentence. As was said by Hidden J at [65] in R v Georgiou [2005] NSWCCA 237:

“…For the purposes of s 6(3) of the Criminal Appeal Act, the focus should be upon that global sentence and, unless it is more severe than is warranted in law, this Court normally should not intervene at all.”

83 I am, however, in agreement with Basten JA that it is not necessary in the present case to resolve this issue as a restructuring of the sentences by this Court could not achieve the same overall sentence of 10 years with a non-parole period of 7 years as imposed by the Judge.

84 I agree with the orders proposed by Basten JA.

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