Attorney General for New South Wales v CMB

[2015] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Attorney General for New South Wales v CMB [2015] NSWCCA 166
Hearing dates:	12 June 2015
Decision date:	25 June 2015
Before:	Leeming JA; Simpson JA; Hamill J
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - Crown appeal against sentence - residual discretion - guilty pleas to aggravated sexual assault and indecent sexual assault - offender’s earlier guilty pleas to sexual assaults upon same complainant at same time disposed of under Pre-Trial Diversion of Offenders Act 1985 (NSW) - procedure not available in respect of later offences - offender sentenced to bonds - Crown appeal allowed and custodial sentence imposed - offender served almost a year in prison - High Court allowed further appeal and remitted matter to this Court and restored original orders of District Court - appellable error in original sentence established - having regard to the offender’s time in custody and other subjective circumstances, Crown appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 61J, 61M Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 Criminal Appeal Act 1912 (NSW), s 5D Interpretation Act 1987 (NSW), s 30 Pre-Trial Diversion of Offenders Act 1985 (NSW), ss 2A, 3A, 11, 14, 23, 24, 30, 30A Pre-Trial Diversion of Offenders Regulation 2005 (NSW) Subordinate Legislation Act 1989 (NSW), ss 10, 11 Subordinate Legislation (Postponement of Repeal) Order (No 2) 2011
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 88 ALJR 372 CMB v Attorney General for New South Wales [2014] HCATrans 206 CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Environment Protection Authority v Condon [2014] NSWCA 149; 86 NSWLR 499 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 Mickelberg v The Queen (1989) 167 CLR 259 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45 R v CMB [2014] NSWCCA 5 R v Ellis (1986) 6 NSWLR 603 R v Smith [2007] NSWCCA 100
Category:	Principal judgment
Parties:	Attorney General for New South Wales (Appellant) CMB (Respondent)
Representation:	Counsel: N Adams SC, BK Baker (Appellant) C Loukas SC, B Dean (Respondent)   Solicitors: Crown Solicitor (NSW) (Appellant) Legal Aid NSW (Respondent)
File Number(s):	2012/348981
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: 4 April 2013 Before: Ellis DCJ File Number(s): 2011/34336

Judgment

1. THE COURT: The Attorney General has, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against sentences imposed in the District Court on the respondent, CMB, following his pleas of guilty to five counts of sexual offences. For the reasons that follow, the appeal should be dismissed. That such an outcome is the result required by law following the extremely serious criminality of the respondent, which was rightly regarded by the sentencing judge as “absolutely appalling” and which has had the most serious consequences upon his victim, can only be explained by reason of the highly unusual history of these proceedings since CMB was charged almost three years ago, and the evidence now available to this Court.

2. These reasons first summarise the factual and procedural background. They then deal with the grounds of appeal, and why the sentence originally imposed discloses error. They then explain why, notwithstanding that error, this is a case where an erroneous sentence should, in the circumstances which prevail now, nevertheless stand. It should be made clear immediately that CMB has now served a term of imprisonment although a non-custodial sentence was originally imposed upon him.

Background

The first set of charges against CMB

3. CMB sexually assaulted his daughter (“the complainant”) on numerous occasions between 2004 and 2007, when she was aged between around 9 and 13. She will not be identified in this judgment (this is the reason for anonymising CMB). The complainant reported some but not all of those assaults in 2011, when she was aged 17, to the police. CMB was interviewed by police on 27 October 2011. He admitted the assaults. On that day he was charged with 22 sexual offences committed against the complainant between 2004 and 2007. Later those charges were reduced to five counts of aggravated sexual assault, two counts of attempted aggravated indecent assault and three counts of aggravated indecent assault. (Some of the primary documents suggest that there were four counts of aggravated sexual assault, and three counts of attempted aggravated indecent assault; nothing turns on this.) CMB pleaded guilty to those charges at the earliest opportunity.

The Pre-Trial Diversion of Offenders Act and the Cedar Cottage Program

4. Because he pleaded guilty to offences which amounted to “child sexual assault offences” within the meaning of the Pre-Trial Diversion of Offenders Act 1985 (NSW), CMB became potentially eligible for referral to the Pre-Trial Diversion of Offenders Program. The purpose of the Act is described in s 2A (which was in force at all relevant times):

“The purpose of this Act is to provide for the protection of children who have been victims of sexual assault by a parent or a parent’s spouse or de facto partner. The Act provides for the establishment of a program administered by the Department of Health. In the implementation of the Act, it is intended that the interests of a child victim are to prevail over those of a person pleading guilty to a charge of sexual assault in relation to the child.”

5. The Pre-Trial Diversion of Offenders Act applied only to a person charged with a child sexual assault offence upon the person’s own child or the child of the person’s spouse or de facto partner: s 3A. An offender who was permitted to enter into the Program and who gave an undertaking pursuant to s 23 would have a conviction recorded, but would not otherwise be sentenced or dealt with in respect of the offence: s 24. After the offender had complied with the undertaking, and any other requirements under the Act or Regulation, no further proceedings could be taken against the person in respect of the offence: s 30. Hence the “diversion” effected by the regime established by the Act of a small class of serious offenders from the ordinary sanctions imposed by the criminal justice system.

6. It was necessary, in order to participate in the Program, for the respondent to be referred by the Director of Public Prosecutions (“the DPP”) for assessment (s 11), and assessed by the Program Director as suitable (s 14).

7. In 2011, the Program approved by the Minister for Health in consultation with the Attorney General and Minister for Community Services in accordance with s 30A of the Act was conducted at Cedar Cottage in western Sydney. No place was available in the Program when inquiries were first made in April 2012. A place became available in August 2012. The DPP had formed the view that CMB was suitable. However, he had not then been assessed by the Program Director. On 7 November 2011 the Program Director notified the DPP that CMB had been assessed as suitable for the Program.

8. Ancillary provisions setting out the guidelines in accordance with which prosecutors would recommend entry into the Program, and the procedure for assessment, were made by the Pre-Trial Diversion of Offenders Regulation 2005 (“Regulation”).

9. Generally speaking, all New South Wales regulations are taken to be repealed on 1 September following the fifth anniversary of the date on which they were published: Subordinate Legislation Act 1989 (NSW), s 10(2)(b). That Act contains a procedure whereby the automatic repeal may be postponed by an order made by the Governor (on advice from the Executive Council): s 11. That power may be exercised repeatedly, thereby extending the life of a regulation by up to five years.

10. By the Subordinate Legislation (Postponement of Repeal) Order (No 2) 2011, made in August 2011, the repeal of the Regulation was postponed by a year. However, because the power under s 11 was not exercised in the following year, the Regulation was repealed on 1 September 2012. That is not the end of its operation. No differently from any other primary or delegated legislation, accrued rights and obligations under the Regulation are not affected: Interpretation Act 1987 (NSW), s 30. At no time in these proceedings has this been controversial.

11. The Pre-Trial Diversion of Offenders Act remains a statute in force in this State. However, the Regulation has been repealed, and no replacement has been made. It has at all times (including in the High Court) been common ground that the Act alone cannot sustain offenders being dealt with by the diversionary regime contemplated by it. We proceed on the basis of that assumed state of affairs.

12. The upshot is that it has at all material times been common ground that, by reason of the transitional provisions contained in s 30 of the Interpretation Act, the Program continued to be available in respect of charges laid before 1 September 2012, but was not available in respect of charges laid subsequently.

The second set of charges against CMB

13. In the course of being assessed for entry into the Program by the Program Director, CMB disclosed further sexual offences against the complainant, not referred to in her statement. He had been encouraged by Program staff to make those disclosures as a sign of positive commitment to change, and to do so before entering the Program. He was re-interviewed by police on 2 November 2012. Police cautioned him at the commencement of the interview, and he indicated that he was making the disclosures as “a result of the assessment process at Cedar Cottage”. He described a series of further serious sexual assaults upon the complainant in Australia between 2005 and 2006, and at an earlier time, in the United Kingdom. As a consequence, he was charged with nine further sexual offences committed against the complainant in 2005 and 2006 in Australia.

14. The DPP later reduced those charges to four counts of aggravated sexual assault contrary to s 61J(1) of the Crimes Act 1900 (NSW) and one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act. In each case, the circumstance of aggravation was that the complainant was under the age of 16, being aged 11 or 12 at the time. The agreed facts disclosed that the four charges of sexual intercourse without consent, with knowledge that the complainant was not consenting, took place when she was 11 and 12, and involved cunnilingus. The indecent assault, which involved digital touching of the complainant’s vagina and clitoris, took place when she was 11. The uncharged criminality in the United Kingdom was also oral abuse of the complainant.

15. The maximum penalty for the aggravated sexual assaults was imprisonment for 20 years, with a standard non-parole period of 10 years imprisonment. The maximum penalty for the aggravated indecent assault was 7 years, with a standard non-parole period of 5 years.

16. CMB pleaded guilty to those additional charges on 23 November 2012. It is those five charges, to which CMB pleaded guilty at the first available opportunity, which were the subject of the original sentence imposed at first instance, and three subsequent appeals (including the present appeal).

Sentencing

17. Both sets of charges came before the District Court in Gosford on 31 January 2013. CMB entered pleas of guilty to all charges. In respect of the first set of charges, Ellis DCJ accepted his undertaking to participate in the Program for 2 years from 14 November 2012. He did not (as required by s 24 of the Pre-Trial Diversion of Offenders Act) record convictions. Because the second set of charges was laid after 1 September 2012, the course taken in respect of the earlier charges was no longer available. Those charges were stood over to a later date for sentencing.

The sentence imposed in respect of the second set of charges

18. During the hearing on 31 January 2013 there was debate as to what should occur in relation to the second set of charges. Counsel for the Crown stated that “the fresh charges do call, in my view, for a custodial sentence” but added that “given that he disclosed those as part of the Program and had not that lapse of regulation been on 1 September they would’ve been incorporated into the Program” and said:

“so your Honour it’s just a difficult situation and in fairness I guess the Crown would have to say it would be against the spirit of the Program”.

If there were any ambiguity in what the Crown was there indicating, it was made clear by what followed. The sentencing judge asked, “Well why wouldn’t I give him some type of bond. … Condition it that he complete the Cedar House Program.” The Crown indicated that “I’d be content with that course”. Counsel for CMB added that if CMB failed to complete the Program, he would return to the Court for sentencing.

19. The sentencing judge made it plain that he wished to give the complainant “an opportunity to understand all of that”, noting that “part and parcel of the purpose of the Cedar Cottage Program is to try and assist the victims too”. The Crown added that it would be a useful thing for her to be able to put a victim impact statement before the Court. Proceedings were adjourned for sentence on 4 April 2013. During this time, CMB remained on bail, a condition of which was participating in the Cedar Cottage Program, consistently with the regime established by the Act and Regulation.

20. On 4 April 2013, the Court was closed but the proceedings were conducted in the presence of CMB, his wife and the complainant. The complainant’s statement was read to the Court. She said that she had not found writing her statement easy. She explained why she chose to separate herself from her natural parents. She said that what she regarded as the leniency offered to her father caused her to doubt the effectiveness of the legal system. She explained details of her subsequent life which could not fail to cause the listener or reader to appreciate how awfully she had been treated. She concluded:

“The impact of my father’s choices and actions continue to affect every aspect of my life. I feel ripped off for being left with managing the consequences of his behaviour and frustrated that my future will always revolve around management strategies.”

21. CMB’s counsel asked for a sentence which would allow CMB to continue in the Cedar Cottage Program by giving him a bond conditioned upon his compliance with the Program. His Honour asked what the Crown’s attitude was, and was told:

“Well it seems like a sensible course of action. I can’t put before your Honour the penalty that normally would be invoked by these offences given that that’s against the spirit of the program and it is not the accused’s fault that in fact the Regulation lapsed as much as the Crown would like to submit otherwise.”

22. The sentencing judge was aware of the complainant’s attitude, and said:

“[O]n the other hand I’m more attracted to these programs when it is the desire of the victim that that be the program, I am not as attracted to it when it is not the desire of the victim. I understand this is a little different because things happened in a certain way and you know he was trying to do the right thing when he made these additional disclosures and it is only that that has led him here. Had he not done the right thing he would not be here and that is the only reason that I am considering what you have said because frankly if he was here before me with all these charges he would be looking at a lengthy term of imprisonment.

DAY: He knows.

HIS HONOUR: Because I regard his conduct as absolutely appalling and it is pretty clear he knows and is acknowledging at least, to his credit, the impact that it has had”.

23. His Honour then imposed sentences upon CMB for the second set of charges by way of a bond to be of good behaviour for three years pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and to accept conditions including that he comply with the treatment agreement undertaking he had signed on 14 November 2012, to comply with all directions of the Cedar Cottage Program Director, and to remain in the Cedar Cottage Program until released from the Program by the Program Director. While deferring the sentence under s 9(1), Judge Ellis acknowledged that the offending would ordinarily result in “a lengthy sentence of imprisonment”.

The appeal to the Court of Criminal Appeal

24. No appeal has been brought against the disposition of the first set of charges. This appeal is confined to the second set of charges. The criminality reflected in the first set of charges has been addressed by orders purportedly made in accordance with the Pre-Trial Diversion of Offenders Act. (In fact, as appears below, s 24 of the Pre-Trial Diversion of Offenders Act required that a conviction be recorded, and this was not done.)

25. Section 5D of the Criminal Appeal Act permits either the Attorney General or the DPP to appeal from a sentence. Crown appeals have long been regarded as exceptional: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [24]. Their purpose is different from the purpose of an appeal by an offender against sentence. The purpose of an ordinary sentence appeal focusses on the particular case. The purpose of a Crown appeal is to achieve consistency in sentencing and to establish sentencing principles. That purpose “can be achieved to a very significant extent by a statement [by the Court of Criminal Appeal] that the sentences imposed upon the [offender] were wrong and why they were wrong”: Green and Quinn at [37], citing R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [70].

26. Although no time is prescribed in which a Crown appeal must be commenced, having regard to the impact on an offender of a potential increase in sentence, it is expected that any such appeal will be notified to the offender and commenced with due expedition, following the imposition of a sentence said to be manifestly inadequate. Delay on the part of the Crown in challenging an allegedly manifestly inadequate sentence is a factor that may be relevant to the outcome of the appeal, in the exercise of the residual discretion to dismiss an otherwise valid appeal. In this case, due expedition was lacking. Nor was there, so far as the appeal books disclose, an intimation from the Attorney General or the DPP that a Crown appeal was being contemplated, for more than three months.

27. It seems that on 17 July 2013, the DPP announced that he had declined to institute a Crown appeal against sentence. By letter dated 18 July 2013, the Attorney General notified CMB that he was himself considering lodging an appeal pursuant to s 5D. A document illegibly signed by an unidentified employed solicitor in the Crown Solicitor’s Office filed on 26 July 2013 purported to seek an extension of time within which to appeal. The document was misconceived; there is no limitation period for Crown appeals. An actual appeal was filed on 6 August 2013.

28. That appeal was heard by this Court (differently constituted) on 10 December 2013, and allowed by a joint judgment delivered on 19 March 2014: R v CMB [2014] NSWCCA 5. In light of what follows, it will not be necessary to summarise the 111 paragraphs of reasoning of the Court, save to say that their Honours followed what had been said in R v Smith [2007] NSWCCA 100 to the effect that the onus lay upon CMB to establish that the residual discretion to dismiss the prosecution appeal ought to be exercised in his favour. Their Honours said at [110]:

“The respondent in this case has identified and analysed an impressive collection of factors pertinently informing the exercise of that discretion. The identified matters do not satisfy us, however, that his Honour's sentencing discretion did not wholly miscarry in a way that mandates correction in this Court. It is correspondingly wholly inappropriate in this case to exercise the available discretion not to intervene.”

29. The Court accordingly allowed the appeal, quashed the sentences imposed at first instance, and sentenced CMB to an aggregate sentence of 5 years and 6 months, commencing on that day, with a non-parole period of 3 years.

30. CMB was taken from the courtroom to police cells in Surry Hills, and, on the following day, to the Metropolitan Remand and Reception Centre at Silverwater. He was transferred in early April to the Long Bay Correctional Centre, and in June to Nowra. He spent almost a year in prison.

31. CMB did not therefore complete the Cedar Cottage Program. When he was taken to prison, he had completed 16 months of the 24 month Program. The decision of the Court of Criminal Appeal caused CMB to breach the undertaking he had given pursuant to s 23 of the Pre-Trial Diversion of Offenders Act, and the High Court and this Court were told that there were pending proceedings in the District Court in respect of that breach. We return to this below.

CMB’s appeal to the High Court of Australia

32. CMB sought special leave to appeal to the High Court of Australia, which was granted on 12 September 2014: CMB v Attorney General for New South Wales [2014] HCATrans 206. The appeal was heard on 5 December 2014. On 11 March 2015, the High Court unanimously allowed the appeal: CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407. The effect of its orders setting aside the orders made by the Court of Criminal Appeal was to reinstate the bond and conditions which had been ordered on 4 April 2013 at first instance. CMB was released from prison on that day.

33. The High Court unanimously found error in the approach taken by the Court of Criminal Appeal as to the residual discretion. Their Honours decided that the statement in Smith to the contrary was erroneous, and concluded that this Court had been wrong to impose an onus on CMB to establish that the residual discretion should be exercised in his favour: at [36] and [66]. Importantly for present purposes, the Court rejected the Attorney’s submission that nothing turned on the question of onus, and held that this Court’s error was not immaterial: at [36]-[38] and [67]-[69].

34. Further, a majority (Kiefel, Bell and Keane JJ; French CJ and Gageler J dissenting) held that the Court of Criminal Appeal had misapplied s 23(3) of the Crimes (Sentencing Procedures) Act 1999 (NSW) and the principle in R v Ellis (1986) 6 NSWLR 603 concerning the significant leniency which is available to an offender who voluntarily discloses criminal conduct which is otherwise unknown. In R v Ellis, Street CJ (with whom Hunt and Allen JJ agreed) said at 604:

“The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”

35. Section 23(3) provides:

“A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.”

36. The majority in the High Court said, consistently with s 23(3), that it was open to the primary judge “to impose penalties that were disproportionate to the nature and circumstances of the offences in light of [the] finding that without CMB’s honest compliance with the Program the offences would have remained undetected”: at [77]. Their Honours added at [78]:

“The mandate of s 23(3) is that a lesser penalty imposed to take account of the offender’s assistance to the authorities must not be unreasonably disproportionate to the nature and circumstances of the offence. The term ‘unreasonably’ in this context has been given a wide operation. Whether a sentence is unreasonably disproportionate necessarily is a judgment about which reasonable minds may differ. In determining whether the sentences imposed by Ellis DCJ were manifestly inadequate, the issue for the Court of Criminal Appeal was not whether it regarded non-custodial sentences as unreasonably disproportionate to the nature and circumstances of the offences but whether, in the exercise of the discretion that the law reposed in Ellis DCJ, it was open to his Honour upon his unchallenged findings to determine that they were not” (original emphasis, footnotes excluded).

The remittal to this Court

37. However, noting that it was not a sentencing court, the High Court remitted the matter to this Court for determination. That has an important consequence for present purposes. The nature of an appeal to the High Court, pursuant to s 73 of the Constitution, is a strict appeal. It is settled law that there is no power to admit further evidence: Mickelberg v The Queen (1989) 167 CLR 259; Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [104]. The High Court cannot do other than to make the orders which the court below should have made on the basis of the material before it. On the other hand, although the precise nature of an appeal to this Court may not be free from controversy, it is well established that further evidence may be adduced, at least insofar as is relevant to a discretion to be exercised when the appeal is determined. The short point is that the High Court could not, but this Court can and must, have regard to what has occurred subsequently to CMB being imprisoned on 19 March 2014 and his release on 11 March 2015.

38. Those are the circumstances in which the still undetermined Crown appeal against the sentence imposed by the primary judge on 4 April 2013 falls to be resolved.

Issues on the remitted appeal

39. Four issues arise on the remitted appeal. In the order of the Attorney General’s oral address, the first was whether appellable error was disclosed by the primary judge’s understanding of how CMB’s disclosure of additional criminality would have been dealt with had the Regulation not been repealed. The second was whether the original sentence was manifestly inadequate. The third was whether the Crown had discharged its onus of demonstrating that the residual discretion should not be exercised in CMB’s favour. The fourth, which only arose if this Court concluded that CMB should be resentenced, was the appropriate sentence.

40. We deal with those issues in that order.

Was there House v The King error in relation to the treatment of the second set of charges?

41. The first decision of this Court had held that the sentencing judge had erroneously taken into account how CMB’s disclosures of the additional offences would have been dealt with had the Regulation not been repealed. This had been ground 1A of the appeal. That aspect of the earlier decision of this Court was outside the scope of the special leave to appeal granted by the High Court.

42. CMB formally accepted that the sentencing judge had erred in that respect. However, CMB contended that the statements were “obiter dicta and did not ‘guide or affect’ his exercise of the sentencing discretion”, so as to amount to House v The King [1936] HCA 40; 55 CLR 499 error. This amounted to a repetition of the submission which had been made without success to the Court of Criminal Appeal.

43. The Crown accepted, in accordance with what had been said in R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45 at [29], that it was open to CMB to take that course, because the High Court set aside the whole of the orders made by this Court, and remitted the entire appeal for determination in accordance with law.

44. The sentencing remarks by the primary judge occupy less than five pages. The matters which are conceded to be erroneous are sentences on pages 2 and 3 of his Honour’s remarks in the following terms:

“Originally, the regulations that deal with the pre-trial diversion of offenders program had a provision which allowed for full disclosure to be made and for a person to continue in the course without further charges or the matter being relayed back to the Court. That is in fact what has occurred in the past for all those who have been diverted to the program and who have complied with the program. That is, further charges could not have been laid and the accused would not have been brought to this Court for sentence.

…

Effectively, that means that his outcome will be identical to that of all other offenders who have been honest and made admissions of other acts as part of their involvement in the Pre-Trial Diversion Program. As I say but for the lapse of the regulation this offender would never have appeared in this Court.”

45. Nothing in the regime established under the Act and Regulation, either before or after 1 September 2012, relieved persons of their obligation to report criminal conduct, or gave some immunity from the laying of charges based on what was disclosed by participating in the Program. Moreover, the regime imposed an obligation upon the Court to convict any person who gave an undertaking under s 23. Section 24 was and is as follows:

“If a person gives an undertaking at the request of a court under section 23, the court is (subject to sections 25 and 28) to proceed to conviction of the person for the offence concerned but is not to sentence or otherwise deal with the person in respect of the offence.”

46. The words “is to” in s 24 are mandatory words imposing an obligation: cf Environment Protection Authority v Condon [2014] NSWCA 149; 86 NSWLR 499 at [31]. It is plain from the passages reproduced above that his Honour fell (or was led) into error in his application of s 24.

47. Ground 1A was addressed by the previous Court of Criminal Appeal at [82]-[84]. Their Honours rejected the submission that had been made (see at [64]) that the error was not material. Their Honours said at [84]:

“As unfortunate as that combination of failings may have been, it nonetheless bespeaks error. We are unable to accept that the error was not material or merely technical. It underpinned and characterised the whole sentencing process. So much is apparent from his Honour’s references to the fact that the offences would ‘otherwise’ have attracted significant custodial terms. The assumption of, and reliance upon, factors otherwise permitting a departure from what the circumstances warranted, which his Honour described as ‘a lengthy sentence of imprisonment’, was erroneous.”

48. We do not accept CMB’s submission that his Honour’s references did not “guide or affect” the exercise of the sentencing discretion. On a fair reading of the brief remarks on sentence, his Honour was concerned that the criminality with which CMB had been charged after 1 September 2012 should be addressed in the same way as the criminality with which he had been charged prior to 1 September 2012. That concern was understandable. However, his Honour misapprehended how the regime operated, and in a way which directly informed the discretion his Honour was exercising. We entirely agree with the conclusion expressed by the earlier judgment of this Court reproduced in the previous paragraph that the error “underpinned and characterised the whole sentencing process”.

49. Once it is established that House v The King error has been made out, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome: Kentwell v The Queen [2014] HCA 37; 88 ALJR 947 at [43]. This ground is made out.

Was the sentence manifestly inadequate?

50. The issue remitted for determination by this Court was framed by Kiefel, Bell and Keane JJ at [78], in the passage reproduced above. The question is not whether this Court forms the view that the sentences were unreasonably disproportionate to the nature and circumstances of CMB’s offending. The question is whether in the exercise of the sentencing judge’s discretion it was open to his Honour to conclude that the good behaviour bonds imposed were not unreasonably disproportionate to the nature and circumstances of CMB’s offending. The distinction is a fine one, but one which we do not pause to analyse.

51. His Honour’s sentencing remarks were relatively brief, but it must be observed, in fairness, that there was no substantial dispute before his Honour as to the appropriate sentence to be imposed. As Kiefel, Bell and Keane JJ said at [65], the remarks on sentence will commonly reflect the issues that were live at the sentencing hearing. Here, there were none, and so there was no occasion to outline those issues and the way in which they were resolved.

52. It is no small thing to conclude that it was not open to the sentencing judge to conclude that his proposed sentence was not unreasonably disproportionate to the nature and circumstances of the offending, in circumstances where counsel for the offender and the Crown accepted that the sentence was appropriate.

53. First, the necessary consequence of such a conclusion is that the stances advanced by both the Crown and the offender were also unreasonable.

54. Secondly, in the present case, both the DPP and the Program Director had determined that CMB should be afforded a non-custodial option with respect to the earlier offences, and this decision had been made with full knowledge of the offences subsequently charged.

55. Thirdly, as it happens, the fact that there was, originally, no place available for CMB meant that the DPP considered the eligibility of CMB twice. The letter dated 23 August 2012 from the Office of the DPP indicated that CMB was considered to fall within the scope of the Program in April 2012, and then again in August 2012 following an approach made by CMB’s wife asking if he could be referred again. There can be no suggestion that the determination, made twice by the DPP, was hasty or otherwise taken without the benefit of reflection.

56. However, whether or not the sentence imposed was outside the limits of the discretion conferred upon a sentencing judge falls to be assessed not on the subjective and erroneous views of the Crown and the sentencing judge as to the operation of the Act and Regulation, but in accordance with a correct view of the law. As much follows from what was said in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 88 ALJR 372. Once that is appreciated, the considerations in the previous three paragraphs fall away. The fact that the sentencing judge did not receive the assistance to which he was entitled from those appearing before him explains why the sentence imposed was as lenient as it was, but that fact does not of itself mean that it was open to his Honour (on the facts and the law properly understood) to determine that it was not unreasonably disproportionate to the nature and circumstances of the offences.

57. However, there is a fourth matter, quite separate from the above, which was not the subject of submissions to this Court. This turns upon the inevitable effect of a custodial sentence for the second set of charges upon the disposition in respect of the first set of charges. It is to be borne in mind that no challenge was made to that disposition which (partially, other than with respect to the entry of convictions) accorded with the regime established under the Act and the Regulation.

58. The effect of imposing a custodial sentence in respect of the second set of charges would be to cause CMB to breach the undertaking given in respect of the first set of charges. In a sense, the breach would be technical – his inability to comply would be a consequence of something outside his control. However, in a substantive sense, there is a real difficulty with the imposition of a full-time custodial sentence. Such a sentence would subvert the earlier disposition. A custodial sentence would preclude CMB from fulfilling the rehabilitative objectives of the Cedar Cottage Program which were the subject of the first and unchallenged disposition.

59. It is clear that considerations of this nature informed the sentencing judge. His Honour said that “Had he not been sent to the Cedar Cottage program, which this Court had nothing to do with, he would in the normal course of events [have] been committed to this Court for sentence and a lengthy sentence of imprisonment would have followed”.

60. Whether in those exceptional circumstances, which would seem unlikely ever to be repeated, it was not open to the sentencing judge to form the view that a non-custodial sentence was other than unreasonably disproportionate, is a question which is finely balanced. If anything turned on this point, we would have given consideration to permitting the parties to be heard further on it.

61. In the ordinary case, it would be perfectly clear – as the sentencing judge himself recognised – that a lengthy period of full-time imprisonment would be warranted by the criminality to which CMB had pleaded guilty, notwithstanding the principles in Ellis and s 23(3). Nothing in these reasons should be read as suggesting that anything short of a lengthy sentence of full-time custodial imprisonment is warranted by the criminality of the type shown in this case, where a diversion program is not available. However, because appellable error has already been established, and nothing turns on the foregoing, it is not necessary finally to determine the question, which as we have noted was not fully argued. In the highly unusual circumstances of this appeal, the preferable course is to turn to the residual discretion, which, unlike the question of manifest inadequacy, is relatively straightforward.

Residual discretion

62. The Crown accepted that there were powerful considerations telling against resentencing CMB, but maintained that the criminality was so serious that he should be returned to full-time imprisonment.

63. The exercise of discretion by this Court now, in June 2015, is materially different from the position in March 2014. In its earlier judgment, this Court’s conclusions were stated at [103]-[110].

64. The earlier Court of Criminal Appeal accepted that CMB’s affidavit evidence in which he described the anxiety and distress to which he was subjected upon hearing of the Attorney General’s appeal was “both truthful and reasonable”: at [104].

65. The Court distinguished, at [105], the prejudice suffered by a respondent who faces a return to prison following his release upon completion of the original sentence, and the circumstances which then obtained, being the prospect of imprisonment for the first time. Their Honours said that the prejudice was likely to be significant and considerable.

66. The Court also dealt with the fact that it was the Crown representative who was largely if not predominantly responsible for the erroneously lenient sentence imposed at first instance. Their Honours stated (at [106]):

“It is probable that his Honour would not have placed the respondent on bonds if it had been apparent to him that the respondent was not eligible for consideration as a candidate for admission to the Program. But for that error, the respondent would, and should, have been sentenced to terms of imprisonment.”

67. The Court had regard to the fact that the Cedar Cottage Program had been dismantled, such that this Court’s determination had a more limited effect than would otherwise be the case in terms of guiding courts or practitioners in relation to the Pre-Trial Diversion of Offenders Act. Indeed, the Court considered that the significant aspect of the case, namely, the disclosure of offences in the course of complying with the requirements for entry in the Program, was unlikely ever to arise again: at [108].

68. Finally, the Court had regard to CMB’s apparent progress within the Program so far and his accepted rehabilitative achievements: at [109].

69. Those considerations produced a powerful case for the exercise of the discretion to refrain from resentencing. CMB advanced in December 2013 what was acknowledged by this Court to be an “impressive collection of factors” tending against resentencing: at [110].

67. Moreover, all members of the High Court considered that the erroneous allocation of onus in respect to the residual discretion could not be characterised as an immaterial error. This was the subject of submissions in the High Court, and was squarely addressed in the reasons for judgment. Indeed, were this not so, the principal ground of appeal would not have been determined as it was. French CJ and Gageler J expressly rejected the Attorney’s submission that the error was immaterial at [36]. Kiefel, Bell and Keane JJ said at [69] that “[i]t is not possible to conclude that, had the Court of Criminal Appeal applied the correct test and considered whether the Attorney General had negated any reason why it should decline to intervene, it would have arrived at the same decision”. That is to say, the judgment of the High Court establishes that even on the material available in December 2013, the countervailing considerations were sufficiently evenly balanced that the question of onus was at least arguably determinative.

68. All of those factors tending against resentencing remain operative in 2015. And there is now very substantial additional material, not previously available, which reinforces the position.

69. First and foremost, there is the fact that CMB has now served almost 12 months in prison. What is more, for much of the balance of the time since April 2013 when CMB has not been imprisoned, he has been subject to the uncertainty of an undetermined Crown appeal.

70. Secondly, the conditions of his imprisonment have been, in some respects, relatively arduous, including in ways which could not have been anticipated in 2014. Unsurprisingly, given the offences to which he pleaded guilty, CMB was placed in protection and for much of his imprisonment had relatively limited access to facilities available to other offenders. That was foreseeable. Much more important in this respect are medical conditions which affect CMB and which were exacerbated by his imprisonment. These relate to his cardiac health, the chance that he has bowel cancer, and an eye condition. These things could not be foreseen in 2014.

71. Because of blood in his stools, CMB was concerned prior to his imprisonment that he suffered from bowel cancer, to the extent that he had applied under the National Bowel Cancer screening program. The testing did not take place while in prison. After being released, he was tested and returned a positive result in April 2015. A colonoscopy was arranged for 19 May 2015. On 13 May 2015, CMB attended hospital for a pre-surgery examination. Later that evening, CMB felt nauseous and dizzy and was taken to hospital by ambulance. The cardiologist said that he was having a heart attack. CMB was admitted and taken for immediate surgery at 9.30pm that night. His cardiologist identified an occluded right coronary artery leading to acute myocardial infarction, which was treated, successfully, with a stent. He requires certain follow-up treatment and “would benefit” from a period of cardiac rehabilitation. There is evidence that if CMB returned to custody, his access to cardiac rehabilitation and specialist follow-up would be “somewhat limited”. His cardiologist said that although there is a cardiology clinic at Prince of Wales hospital which is dedicated to people in custody, he would not there have access to cardiac rehabilitation.

72. In the meantime, the colonoscopy has been deferred by reason of CMB’s heart condition, and so it remains unknown whether in fact CMB suffers from bowel cancer. CMB gave unchallenged evidence, which we accept, that he is not only worried that he might have bowel cancer but also that the longer it takes for a colonoscopy to take place, the worse his prognosis may be.

73. CMB also gave uncontroverted evidence of difficulties with his eyes. He suffers from an eye condition. From time to time his eyes have become infected. In prison, CMB was unable to obtain the prescription medication with which they had previously been treated.

74. Thirdly, notwithstanding the formal conclusion of the Cedar Cottage Program, CMB has taken steps to resume the treatment which had been interrupted by his imprisonment, including by attending upon one of the psychologists who had worked on the Program and who was familiar with his case. He did this at his own expense.

75. Moreover, since being released from prison, CMB has been offered part-time employment by his former employer, and has found accommodation in the same boarding house he had been living in before he went into custody. Both his employer and his landlady are aware of the nature of his offences and the fact that he has been in prison.

76. There is unchallenged evidence, which we accept, that CMB’s rehabilitative process would be interrupted by a return to prison.

77. The unchallenged evidence at all times has been that CMB’s risks of reoffending are “low to non-existent” (see, for example, the forensic psychiatrist’s report dated 9 July 2012, p 7).

78. The residual discretion calls for an evaluation between the competing aims of correcting error and establishing sentencing principles on the one hand, and injustice to the individual on the other. In Green and Quinn at [43], the High Court said:

“Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”

82. Each of those considerations is directly applicable to the present case.

83. In R v Carroll; Carroll v R [2010] NSWCCA 55; 77 NSWLR 45, Allsop P and Johnson J, with whom Spigelman CJ, Kirby and Howie JJ agreed, referred to the fact that “Mr Carroll has been buffeted by the operation of the legal system in a manner which must be recognised” (at [65]). That, like the present case, was one where an initial sentence falling short of full-time imprisonment was imposed, followed by full-time incarceration for seven months after a Crown appeal, followed by his release after a successful appeal to the High Court. Those matters were stated by their Honours as being recognised as “not to be of his making (other than through the commission of the offence)”. They are matters which must be recognised.

84. The “buffeting” in the present case is more extreme, because of the nature of the original sentence (conditional bonds), the length of full-time incarceration pending the High Court appeal, and the fact that the incarceration has prevented the fulfilment of the conditions of the original sentence. As in Carroll, it has not been of CMB’s making. And although it was deeply wrong for him to have assaulted the complainant, it remains the case that the second set of charges would not have been laid save for CMB’s voluntary disclosure.

85. Whether or not to exercise the residual discretion when the Crown appeal was first heard in December 2013 was indubitably contestable. All of the matters referred to above make it clear that there is now an even more powerful case for this Court not to resentence. We conclude that the Crown has not discharged the onus it bears for CMB to be resentenced, notwithstanding his extremely serious criminality.

86. We turn to CMB’s daughter, the victim of CMB’s criminality, who has suffered severe psychological and physical harm. She too has, in a sense, been “buffeted” by the different sentences imposed over the protracted history of these proceedings. We wish to acknowledge that she is entitled to a sense of grievance as to how her father’s criminality has been treated by the legal system. We are particularly conscious of the fact that she may be dissatisfied with this Court’s decision, that the legal error in the original sentence will not, as a matter of the exercise of the residual discretion, lead to a different sentence being imposed. Against that, this Court’s duty is to apply the law, which contemplates the inevitability that mistakes will be made in the sentencing process, not all of which will be corrected on appeal. We would add that the fact that CMB has now served almost a year in prison, before the High Court allowed his appeal, has made the task of determining whether the Crown has discharged its burden considerably easier than would otherwise have been the case. This Court’s task in 2015 is significantly easier than was the case when the Crown appeal was heard in 2013.

87. Given its procedural history and all of the evidence available to this Court, the Crown appeal must be dismissed. The result is to leave in place bonds containing conditions with which CMB can no longer comply. However, that is a matter which is the subject of pending proceedings in the District Court, which, this Court was told, will review the position. Both parties asked this Court to leave this issue to that Court. Accordingly, the only order that need be made is that the Crown appeal be dismissed.

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Decision last updated: 25 June 2015