Banks v R

[2018] NSWCCA 41

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Banks v R [2018] NSWCCA 41
Hearing dates:	30 January 2018
Date of orders:	21 March 2018
Decision date:	21 March 2018
Before:	Simpson JA R A Hulme J Hidden AJ
Decision:	Leave to appeal granted. Appeal allowed. The sentence in the District Court is quashed and, in lieu, the applicant is sentenced to imprisonment for a non-parole period of 2 years and 9 months, commencing on 31 March 2024 and expiring on 30 December 2026, and a balance of term of 1 year, commencing on 31 December 2026 and expiring on 30 December 2027.
Catchwords:	CRIMINAL LAW – sentence appeal – reckless wounding in company – challenge to sentencing judge’s assessment of objective gravity of the offence – sentence wholly accumulated upon lengthy sentences applicant already serving – proportion of effective non-parole periods to overall sentence – re-sentence – partial accumulation ordered.
Legislation Cited:	Crimes Act 1900 (NSW) ss 35, 59 Crimes (Sentencing Procedure) Act 1999 s 56
Cases Cited:	Jinnette v R [2012] NSWCCA 217 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v Jeremiah [2016] NSWCCA 241 Salafia v R [2015] NSWCCA 141
Category:	Principal judgment
Parties:	Regina Ben Christopher Banks
Representation:	Counsel: N Adams – (Crown) G Jones – (Applicant)   Solicitors: Solicitor for the Director of Public Prosecutions George Sten & Co
File Number(s):	2016/84848
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 9 March 2017 Before: McLennan DCJ File Number(s): 2016/84848

Judgment

1. THE COURT: The applicant, Benjamin Christopher Banks, seeks leave to appeal against the sentence imposed upon him after he pleaded guilty in the District Court to reckless wounding in company, an offence under s 35(3) of the Crimes Act1900 which carries a maximum sentence of 10 years imprisonment and a standard non-parole period of 4 years. He was sentenced to imprisonment for 4 ½ years, comprising a non-parole period of 3 years and 3 months and a balance of term of 15 months, commencing on 31 December 2025. The offence took place at Parklea Correctional Centre, and at the time he was sentenced he was serving another sentence in respect of which he is eligible for release on parole on that date.

Facts

2. The agreed facts were that in the early afternoon of 15 July 2015, the applicant, Brandon Moussa and Michael De Gruchy (the victim) were out of their cells during a recreational period. They were standing in a corridor, where there was a public phone box. At the end of the corridor, near the phone box, Moussa pushed De Gruchy up against the wall and punched him several times. While this was happening, the applicant walked towards the victim and stabbed him with a gaol made weapon known as a “shiv”. He then handed the weapon to another inmate, who disposed of it in a nearby bin.

3. The victim called for assistance, and a guard escorted him to the clinic. When asked by officers what had happened, he said that he had been stabbed. When asked who had done it, he said that it was Moussa.

4. The applicant was identified as being involved with Moussa through CCTV footage. He admitted to an officer that it was he who used the “shiv”, and disclosed where it could be found. It was later recovered. When asked why he had done it, he said, “I had to because he did a home invasion on my house and my missus and kids were home.”

5. The victim was taken to Westmead Hospital, where a single stab wound just above the left iliac crest was identified. The wound was sutured, he was treated with antibiotics, and was discharged the next day in a stable condition.

Subjective case

6. The applicant was 37 years old at the time of the offence, and is now 39. He has a formidable criminal history, commencing in the Children’s Court at the age of 14. It consists primarily of offences of dishonesty and of violence, including armed robbery and attempted murder. He received several control orders between 1993 and 1995, and has been sentenced to numerous prison terms since 1997. He told Mr Jason Borkowski, a forensic psychologist who prepared a report for the sentence proceedings, that he has spent most of the past 20 years in custody for various offences, calculating that since the age of 18 he has spent approximately 16 years in gaol. An inspection of his criminal history bears this out.

7. To Mr Borkowski, the applicant described a disturbed upbringing, which need not be set out but which was characterised by periods of homelessness during his childhood and adolescence, an unsatisfactory response to schooling which came to an end in year 7, minimal employment thereafter, association with undesirable peers and, from the age of 14, escalating abuse of alcohol and illicit drugs. Mr Borkowski noted that he attributed much of his offending to the need to support his drug dependence.

8. The applicant’s contact with his family in his adult years has been sporadic, during periods when he has not been in custody. He had been in an “on and off” relationship with his current partner for the past 10 years. According to him, she has abused illicit substances and has also spent numerous periods in custody.

9. The applicant has been in the Institutional Violence Intervention Unit at Lithgow Correctional Centre, where he receives psychological counselling. He spoke to Mr Borkowski appreciatively of the support he receives from counselling staff, and acknowledged the benefits of engaging with them. After noting the anti-social attitudes and the “maladaptive self-protective and problem solving mechanisms” which the applicant had developed for most of his adult life, Mr Borkowski reported:

“Mr Banks’ demonstrated insight into his maladaptive methods of coping and problem-solving, and expressed a willingness to engage in any intervention services available as a way of altering his pervasive patterns of behaviour. His insight and motivation to change bodes well in terms of prognosis for treatment, and his potential for establishing effective coping mechanisms to deal with any future challenges he may face.”

10. Mr Borkowski’s report concluded with various treatment recommendations.

11. His Honour reduced the sentence he would otherwise have passed by 25% in recognition of the utilitarian value of the applicant’s plea of guilty. He noted that the co-accused, Brandon Moussa, had pleaded not guilty to the same offence and was yet to be tried.

The application

12. Counsel for the applicant, Mr Jones, argued that the sentencing judge fell into error in three respects:

1. in concluding the offence was in the mid-range of objective seriousness;

2. in imposing a sentence wholly consecutive with the sentences, the applicant was then serving;

3. in not finding special circumstances warranting a departure from the ratio between the non-parole period and the total term of the sentence set out in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentence Procedure Act”).

(1) Objective seriousness

13. In his reasons for sentence, his Honour noted that the offence was “clearly motivated by revenge,” and had the “hallmarks of vigilantism.” He observed that the attack was planned, and that the victim was “softened up” by the co-offender, prior to being stabbed by the applicant. He described the wound as “not severe”, noting that the weapon was not used to attack any vital organ. However, while the victim was stabbed only once, he noted that it was at a time when he was “clearly defenceless”. Balancing those factors, he assessed the offence as within the mid-range of objective seriousness.

14. As to the applicant’s motive for the offence, his Honour quoted the passage from Mr Borkowski’s report setting out the applicant’s explanation for the offence:

“Mr Banks said he believed the victim had previously stolen property from his partner’s home. He also believed the victim was also someone who carried weapons when in custody. Mr Banks said his actions were motivated by the fact that the victim had stolen from his partner and his use of weapons was to ensure he protected himself, believing the victim may have also had a weapon.

Mr Banks said his offences were motivated by “pride,”, explaining his belief that if people knew they could get away with stealing or harming his girlfriend worse things could happen to her in the future and, further, that he would be perceived as “weak” for not doing anything about it. He added that he feels he needs to uphold an image in gaol for his safety and the safety of those close to him, and that he would potentially be vulnerable if he did not stand up for himself.”

15. His Honour commented that while “the psychological drivers for his conduct can be understood, they cannot be endorsed by the Court.” He said that they could not mitigate his conduct on this occasion, citing the observation by this Court in R v Jeremiah [2016] NSWCCA 241 at [9] that “violence and disorder between prisoners in custody will not be tolerated by the courts.”

16. The approach of this Court to a complaint about a sentencing judge’s assessment of the objective gravity of an offence is well established by authority. That approach, by reference to that authority, was restated by Wilson J, with whom Hoeben CJ at CL and Hall J agreed, in Salafia v R [2015] NSWCCA 141 at [88]-[90], as follows:

88. Complaints concerning error in the assessment of objective seriousness cannot be made good simply by pointing to some differing assessment that could arguably have been made. The question is whether or not the characterization of the gravity of the crime was open to the sentencing judge

89. In Ali v R [2010] NSWCCA 35, this Court said at [33]:

“This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R, at [37], [46]-[47].”

90. A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively “correct” answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.

17. His Honour’s assessment of the objective gravity of the present offence was open for the reasons which he articulated. Neither in written or oral submissions did Mr Jones develop an argument identifying any relevant error.

18. In written submissions he compared the present case to Jeremiah, in which this Court on a Crown appeal imposed a more modest sentence in respect of a prison assault which could be seen as more serious. He acknowledged that in Jeremiah the charge was assault occasioning actual bodily harm in company, an offence under s 59(2) of the Crimes Act which carries a maximum sentence of 7 years and no standard non-parole period. In addition, as the Crown Prosecutor pointed out in written submissions in this Court, the Court had to consider an issue of parity with a sentence passed upon a co-offender. The primary issue in Jeremiah was the fact that the sentence for the prison assault was entirely concurrent with the non-parole periods of the sentences which the respondent had been serving at the time of the offence.

19. In any event, error in a judge’s assessment of the objective gravity of an offence could not be established simply by comparing the sentence that the judge passed with a sentence passed for a similar offence on another offender by another court. This ground is not made out. Indeed, in oral argument Mr Jones, while not withdrawing the ground, acknowledged the force of the Crown’s submissions.

(2) Consecutive sentence

(3) Special circumstances

20. As the argument developed at the hearing of the appeal, the issues of total accumulation of the sentence and declining to find special circumstances became linked, and it is convenient to deal with them together.

21. At the time of the offence, on 15 July 2015, the applicant was serving a sentence of imprisonment for 20 months with a non-parole period of 15 months, commencing on 2 October 2014. That non-parole period expired on 1 January 2016. He was also on remand in respect of several charges of armed robbery and other related offences. For those he was dealt with on 15 April 2016, and was sentenced to an aggregate term of 14 years, with a non-parole period of 10 years, dating from 1 January 2016. It is that non-parole period which expires on 31 December 2025, the commencement date of the sentence the subject of this application.

22. On 28 August 2016, he was sentenced to imprisonment for 8 months for assaulting an officer in the execution of his duty. That sentence dated from the day it was imposed and expired on 24 April 2017.

23. Section 56 of the Sentencing Procedure Act deals with sentencing for offences involving assaults by convicted inmates. Relevantly for present purposes, it provides:

(1) This section applies to:

(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, ...

(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:

(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.

(3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.

...

24. His Honour took the view that the applicant was not strictly speaking a “convicted inmate” for the purpose of that provision because at the time of the offence he was on remand for the offences for which he subsequently received the aggregate sentence. He said however that “the legislative policy underlying s 56(2)... means that a full accumulation of any sentence I impose should be the starting point of any discussion concerning the outcome in this case.” His Honour referred to Jeremiah at [12], where the Court determined on the facts of that case that the full accumulation of the sentence “would be consistent with the legislative policy underlying s 56(2)...”. The Court took that course having determined that the sentence appealed from was “manifestly inadequate by reason of its concurrence with the pre-existing term of imprisonment”: [11].

25. In the present case, having decided that he should “proceed by way of complete accumulation”, his Honour observed that it became necessary "to have regard to the totality principle to ensure, firstly, that the sentence imposed is not crushing and, secondly, to ensure that the overall effect of the accumulation is not inadequate either.”

26. In fact, the applicant was a convicted inmate at the time of the offence because of the term of imprisonment imposed in respect of larceny, the non-parole period for which did not expire until 1 January 2016. It appears that this was overlooked in the sentence proceedings, as it had been in the applicant’s written submissions in this Court. It was brought to light by the Crown’s written submissions in response. In any event, it is clear enough from what his Honour said that he saw the question of accumulation as a discretionary one, although guided by the policy underlying s 56.

27. Given that s 56(2) did in fact apply, his Honour’s misapprehension that it did not was put aside in oral argument, which was directed to the discretion conferred by subs (3) to pass a sentence which was wholly or partly concurrent with the existing sentence. It was in this context that the issues of concurrency and special circumstances became intertwined.

28. The effect of s 44(2) of the Sentencing Procedure Act is that the non-parole period of a sentence must be not less than 75% of the total sentence unless the court finds that special circumstances exist for departure from that ratio (and explains why it has done so).

29. His Honour expressed the view in his reasons that there were no special circumstances. Counsel appearing before him for the applicant (who did not appear in this Court) did not submit that there were. Nevertheless, in written submissions Mr Jones argued that special circumstances should have been found, in particular because of the applicant’s age and the danger of his becoming institutionalised. However, in the course of oral argument the issue of special circumstances changed direction.

30. The Court raised the issue of the relationship of the non-parole period set by his Honour to the overall head sentence constituted by the existing aggregate sentence and the accumulated sentence for the reckless wounding offence. The existing aggregate sentence was 14 years with a non-parole period of 10 years. It was upon that non-parole period that his Honour accumulated the sentence he passed, 4 ½ years with a non-parole period of 3 years and 3 months. Viewed in that way, the applicant faced an overall head sentence of 14 ½ years and an effective non-parole period of 13 years and 3 months. That effective non-parole period is (in round figures) 91% of that overall head sentence.

31. That proportion is high indeed, and would depart from the usual approach, where sentences are accumulated, of fixing a non-parole period for the cumulative sentence so as to maintain an overall proportion of around 75%. This is sometimes achieved by finding special circumstances because of the accumulation and reducing the non-parole period for the accumulated sentence. Even though no submission was made about special circumstances in the District Court, and this basis for finding special circumstances was not put forward in Mr Jones’ written submissions, the Crown Prosecutor in this Court fairly raised no objection to the sentence being examined in the light of this issue.

32. The disproportion is even more stark if one adds to the equation the sentence the applicant had been serving for larceny, 20 months with a non-parole period of 15 months commencing on 2 October 2014. As noted, the 14 year aggregate sentence was wholly accumulated upon that sentence, so as to commence at the expiration of that non-parole period, 1 January 2016. That sentence for larceny should be included in assessing the overall head sentence the applicant now faces.

33. The 14 year aggregate sentence expires on 31 December 2029. Calculating, then, from 2 October 2014, the existing sentences at the time the applicant was dealt with for the present offence totalled 15 years, 2 months and 30 days. The effective non-parole period for those sentences, expiring on 31 December 2025, was 11 years, 2 months and 30 days. The effect of the sentence for the reckless wounding, 4 ½ years commencing on 31 December 2025, is to extend the existing head sentence by 6 months, so as to produce an overall head sentence of 15 years, 8 months and 29 days (expiring on 30 June 2030). The non-parole period of 3 years and 3 months leads to an effective non-parole period of 14 years, 5 months and 29 days (expiring on 30 March 2029). The proportion of that effective non-parole period to that overall head sentence is (again in round figures) 92%.

24. The effect of this is that, after serving a continuous period of at least 14 ½ years in custody, the applicant’s reintegration into the community could be monitored under parole supervision for only 15 months at the most. It would be in the interests of the community, as well as the applicant, that a longer period of supervision be available. Moreover, if the applicant were not released on parole when eligibility first arises, it is likely that parole would not be reconsidered until the remainder of the sentence was almost negligible. It is apparent that his Honour was aware that the sentence he was imposing would allow for 15 months of parole supervision after the applicant had served at least 3 years and 3 months of imprisonment. It is not apparent that he had regard to the practical reality that this 15 months would follow a period of 14 ½ years of continuous incarceration.

25. In this respect, the sentencing process has miscarried and this Court should intervene. The Court’s discretion to resentence is enlivened: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 per Bathurst CJ at [68]. In so doing, it would be necessary to ensure that there is not an undue disproportion between the effective non-parole period and overall head sentence. This could be achieved either by backdating the sentence to be imposed or by finding special circumstances and reducing the non-parole period which the statutory proportion would otherwise attract.

Resentence

36. For the purpose of re-sentence, three affidavits were read: an affidavit of Ms Bianca Barnes, the applicant’s solicitor and two affidavits of Ms Jennifer Ramsey, the solicitor instructing the Crown Prosecutor. Ms Barnes’ affidavit asserts that the applicant has been confined at Lithgow Correctional Centre and classified as “extreme high security” for the last 2 years because of an outstanding allegation of assault against him yet to be dealt with in the Local Court. It is said that that classification could impose significant restrictions upon persons entitled to visit him, and has led to his cellular confinement for 24 hours a day.

37. This is put in issue by the affidavit of Ms Ramsey of 29 January 2018, to which is annexed an email from the General Manager of the prison. Put shortly, that email denies that he is classified as an extreme high security prisoner (although he has been designated as an “extreme threat inmate” because of a lengthy history of violent behaviour). His current classification is E1, and the email asserts that he has access to exercise yards on a daily basis and is not confined to his cell 24 hours a day.

38. Otherwise, Ms Barnes’ affidavit reveals that the applicant wants to maintain contact with his parents, his partner and his daughter. For various reasons his parents and his daughter are unable to visit him and his partner is currently in custody. Ms Ramsey’s other affidavit, filed 17 January 2018, reveals that he has been dealt with for various breaches of prison discipline, which do not appear to be of any significance for present purposes. The Court has had regard to all this material, although its bearing upon the determination of the appropriate sentence is limited.

39. The sentencing judge’s finding that the offence is at the mid-range of objective seriousness is appropriate. However, his starting point was an undiscounted sentence of 6 years which, against the maximum sentence of 10 years, is high. Applying the statutory ratio, that sentence would attract a non-parole period of 4 ½ years, more than the standard non-parole period. The appropriate starting point is imprisonment for 5 years. The utilitarian value of the plea of guilty justifies a reduction of 25%, leading to a head sentence of 3 years and 9 months. A non-parole period of 75% of that figure, rounded down, would be 2 years and 9 months.

40. More than one approach is available to preserve an appropriate proportion between overall head sentence and effective non-parole period. However that is achieved, it is necessary that there be a significant increase in the pre-existing non-parole period to reflect the criminality of the reckless wounding offence. The Court has determined that this can be best achieved by backdating the sentence of 3 years and 9 months but maintaining the non-parole period of 2 years and 9 months.

41. The head sentence will commence on 31 March 2024 and expire on 30 December 2027, so as to be wholly concurrent with the existing overall sentence. However, the non-parole period will expire on 30 December 2026, extending the existing effective non-parole period by 1 year. In that event, the proportion between effective non-parole period and overall sentence becomes roughly 80%, but is acceptable. This will leave a period of parole eligibility of 3 years, during which it may be that the early signs of maturation on the applicant’s part recognised in Mr Borkowski’s report could be developed.

42. Accordingly, leave to appeal is granted and the appeal is allowed. The sentence in the District Court is quashed and, in lieu, the applicant is sentenced to imprisonment for a non-parole period of 2 years and 9 months, commencing on 31 March 2024 and expiring on 30 December 2026, and a balance of term of 1 year, commencing on 31 December 2026 and expiring on 30 December 2027. He will be eligible for release on parole on 31 December 2026.

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Decision last updated: 21 March 2018