Barry v The Queen

[2021] NSWCCA 209

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Barry v R [2021] NSWCCA 209

Hearing dates:

28 July 2021

Date of orders:

3 September 2021

Decision date:

03 September 2021

Before:

Macfarlan JA at [1]
Davies J at [2]
Beech-Jones J at [3]

Decision:

(1)   Leave to appeal against sentence granted.

(2)   Appeal dismissed.

(3)   Any application by either party for an order under the Court Suppression and Non-Publication Orders Act 2010 in respect of any part of this judgment to be filed and served within 14 days.

Catchwords:

SENTENCING – possession of firearms and ammunition – receipt of stolen goods – possession of stolen motor vehicle – pervert course of justice – aggregate sentence – whether sentencing judge erred in concluding applicant was on a bond at time of offending – bail conditions as quasi custody – whether form 1 offence of not stop in police pursuit should have been charged as lesser offence – post sentence assault in custody – effect of pandemic restrictions – comparable cases – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Firearms Act

Cases Cited:

Betts v R (2016) 258 CLR 240; [2016] HCA 25

Frionov v R [2018] NSWCCA 267

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoang v R [2020] NSWCCA 324

House v R (1936) 155 CLR 499

Johnston v R [2019] NSWCCA 108

Kelly v R (2018) NSWCCA 44

Lee v R [2020] NSWCCA 244

R v Campbell; R v Smith [2019] NSWCCA 1

R v Hommoud (2000) 118 A Crim R 66

R v Lachlan [2015] NSWCCA 178

R v Middlebrook [2004] NSWCCA 49

R v Munday (19821) 2 NSWLR 177

Small v R [2018] NSWCCA 290

Springer v R (2007) NSWCCA 289

Taylor v R [2013] NSWCCA 157

Taylor v R [2018] NSWCCA 50

Toller v R [2021] NSWCCA 204

Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402

R v Webb [2004] NSWCCA 330

Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Justin Johann Barry (Applicant)
Regina (Crown)

Representation:

Counsel:
In person (Applicant)
Ms C Dodds (Crown)

Solicitors:
Unrepresented (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2018/103011

Publication restriction:

See [81]

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

11 October 2019

Before:

Gartelmann QC DCJ

File Number(s):

2018/103011

Judgment

1. MACFARLAN JA: I agree with Beech-Jones J.

2. DAVIES J: I agree with Beech-Jones J.

3. BEECH-JONES J: This is an application for leave to appeal against an aggregate sentence imposed in the District Court for firearms and other offences.

4. Following his entry of pleas of guilty to an indictment containing four counts, on 11 October 2019, the applicant was sentenced by his Honour Judge Gartelmann SC to an aggregate sentence of imprisonment of 6 years and 6 months with a non-parole period of 4 years and 3 months. The sentence commenced on 3 February 2019. Associated with three of the four counts were offences included in a document filed pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999) (a “Form 1” and the “Sentencing Act” respectively).

5. The counts on the indictment, the Form 1 offences, their respective maximum penalties, any applicable standard non-parole periods, as well as the discounted and undiscounted indicative sentences his Honour would have imposed had an aggregate sentence not been imposed are specified in the following table.

Offence	Maximum	Standard Non-Parole	Indicative Sentence	Pre-discount indicative sentence
Count 1- possess unregistered firearms – Firearms Act 1996, s 51D(2)	20 years imprisonment	10 years imprisonment	Imprisonment for 4 years and 6 months with a non-parole period of 3 years	Imprisonment for 7 years and 6 months with a non-parole period of 5 years
Form 1 – not keep prohibited firearm safely – Firearms Act, s 39(1)(a) (four offences)	2 years imprisonment	Not applicable
Form 1 – Possess ammunition – Firearms Act, s 65(3)	50 penalty units	Not applicable
Count 2 – receive stolen property being a motor vehicle – Crimes Act 1900, s 188(1)(a)	10 years imprisonment	Not applicable	Imprisonment for 3 years and 6 months	Imprisonment for 5 years and 10 months
Form 1 – Drive conveyance without consent of owner – Crimes Act, s 154A(1)(b)	5 years imprisonment (s 117)	Not applicable	Not applicable
Count 3 – receive stolen property not being a motor vehicle – Crimes Act, s 188(1)(b)	10 years imprisonment	Not applicable	Imprisonment for 2 years	Imprisonment for 3 years and 4 months
Count 4- do an act with intent to pervert the course of justice – Crimes Act, s 319	14 years imprisonment	Not applicable	Imprisonment for 2 years	Imprisonment for 3 years and 4 months
Form 1 – not stop during police pursuit and drive at – Crimes Act, s 51B(1)	First offence: 3 years imprisonment	Not applicable	Not applicable

6. The applicant represented himself on this application. He made a number of complaints of error on the part of the sentencing judge including that the aggregate sentence imposed was manifestly excessive. Before I address those complaints, it is necessary to describe the facts of his offending and the relevant findings of the sentencing judge.

The Offences

7. Placed before the sentencing judge was a statement of agreed facts and some accompanying photographs. The following is taken from that material.

8. As at 2017, the applicant was 26 years of age. For at least some of that year, the applicant was a member of the Finks Outlaw Motorcycle Gang (the “Finks”). In his capacity as a member of the Finks he stored stolen property, unregistered firearms and money in a shed on a property owned by his close friends (the “property”). In late December 2017, the applicant was ejected from the Finks. On 2 January 2018, three members of the Finks attended at the property searching for the firearms, stolen property and money, but did not locate them.

9. On 10 January 2018, police executed a search warrant at the property. On the underside of a caravan parked near a shed at the rear, they found four rifle bags containing a shortened 12-gauge single barrel shotgun, a 12-gauge repeat action shotgun, 16 shotgun rounds, a 30:30 Winchester calibre rifle, a .222 Remington calibre bolt action rifle with a magazine containing .222 calibre rounds, a .22 Winchester repeating bolt action rifle and a magazine containing rounds of a calibre for that rifle. Within the shed at the rear of the property, police also located a large amount of .22 magnum rounds ammunition, three boxes of “143.22 rounds” and other items.

10. The possession of the five firearms constituted count 1 on the indictment. The manner in which they were kept was the basis for the four Form 1 offences of not keeping a prohibited firearm safely associated with count 1. The possession of ammunition was the basis for the other Form 1 offence associated with count 1.

11. During the search the police inspected the applicant’s motor vehicle. Within that motor vehicle they found a bag containing a large number of valuable items of computer equipment, including a “Mac Book Pro Laptop”, an Apple “iPad” an “X Box console”, a PlayStation 3 console, various electronic games, underwater camera gear, a Makita power tool, and registration papers for his vehicle in the name of his father. A search of another shed on the property located a BMW motorcycle, a mountain bike, and a motorcycle helmet. The agreed facts note that all of these items were stolen and they were received by the applicant between 1 October 2017 and 10 January 2018, knowing they were stolen. The receipt of these items other than the BMW motorbike were the basis for count 3 on the indictment.

12. In October 2017, these items, as well as the blue BMW motorcycle, an Audi motor vehicle, and a KTM 450 motorcycle were stolen from an address in Merriweather. CCTV footage recorded the applicant driving the Audi motor vehicle on 23 November 2017. The agreed facts record that at the time he drove it, he knew it had been stolen. The agreed facts also record a telephone conversation which confirmed that, between 1 October 2017 and 9 December 2017, the applicant received the unregistered KTM 450 motorcycle. The receipt of the three motorcycles by the applicant were the basis for count 2 on the indictment. His conduct in driving the stolen Audi motor vehicle on 23 November 2017 was the basis for the Form 1 offence associated with count 2.

13. The agreed facts also record that on 9 December 2017, the applicant was involved in a police pursuit while driving his vehicle but the pursuit was terminated by police due to the dangerous manner of his driving. According to the agreed facts, on that day and the following day, in recorded telephone conversations the applicant “telephoned his father and instructed him to call the police and make a false report that his vehicle had been stolen from outside his house, with the intention of stymieing the police investigation of the police pursuit offence”. His conduct in doing so was the basis for count 4 on the indictment.

14. On 12 January 2018, the applicant attended the police station and participated in an interview in which he admitted storing the firearms and ammunition in his shed “in his capacity as a member of the Finks”. He also admitted possession of the stolen items. Subsequent police testing of the firearms is said to have “provided no inculpatory evidence regarding ‘the applicant’” which I understand to mean no evidence that he had used the firearms.

The Sentencing Judgment

15. In his sentencing judgment, his Honour summarised the above facts. His Honour found that count 1 was “medium range seriousness”, count 2 was in the “upper medium range seriousness”, count 3 was in the “lower medium range” and count 4 was in the “lower medium range”. His Honour then addressed the applicant’s subjective case and the other sentencing factors with care. Eight further matters should be noted about his Honour’s judgment.

16. First, his Honour noted that the applicant had prior convictions which, with one exception, his Honour considered could be disregarded as they concerned driving offences. The exception was an offence of participate in a criminal group referable to the period November 2016 to June 2018 for which he received an Intensive Correction Order (“ICO”) of 12 months commencing 15 October 2018, and originally expiring on 14 October 2019. His Honour noted that the ICO had been revoked and was being served by way of full time imprisonment. His Honour also found that count 1 was committed “whilst subject to good behaviour bonds” and this is “an aggravating factor in respect of this offence”. This finding is the subject of ground 1 of the application.

17. Second, his Honour noted that the applicant had a traumatic childhood and early adulthood in which he was exposed to domestic violence, alcoholism and drug abuse, but had still progressed through school and demonstrated a capacity to obtain employment.

18. Third, his Honour noted the applicant had a significant history of substance abuse and that by 2016 he had been diagnosed with anxiety and depression for which he was being medicated. The sentencing judge noted that a psychologist considered that he continued to suffer psychological symptoms and was psychologically vulnerable. His Honour made that finding. However, his Honour was not satisfied that there was any causal relationship between his mental condition and the commission of the various offences so as to reduce his moral culpability or warrant less weight for general deterrence. Nevertheless, his Honour considered that his vulnerability would make his time in custody more difficult, especially where “he is fearful of reprisals” from the Finks and other inmates.

19. Fourth, his Honour addressed his relationship with the Finks. His Honour accepted that his “ties to it had been permanently severed” as a consequence of his provision of assistance to authorities. His Honour noted the assistance that the applicant had provided, that the applicant said he perceived himself to be at risk and that he was in protective custody. Having regard to those considerations, his Honour allowed a discount of 15% for assistance in addition to an allowance of 25% discount for his plea of guilty.

20. Fifth, in assessing his remorse and prospects of rehabilitation, his Honour gave close consideration to the fact that the applicant was no longer associated with the Finks. His Honour found that the applicant had “accepted responsibility for his actions and acknowledged their consequences such as to warrant a finding of remorse”. His Honour noted he had support from his mother and a new partner and the report of a psychologist to the effect that he would benefit from mental health treatment and drug and alcohol counselling. His Honour concluded that the applicant’s “prospects of rehabilitation are reasonable and … the likelihood of his re-offending is relatively low, subject to interventions on his release to monitor his abstinence and associations” as well as assistance with reintegration into the community.

21. Sixth, his Honour noted that he determined the aggregate sentence having regard to “accumulation or concurrency, taking into account the principle of totality”.

22. Seventh, his Honour made a finding of “special circumstances” which warranted the proportion of 65% between the non-parole period and the total sentence (Sentencing Act; s 44(2A)). In making that finding, his Honour had regard to the fact that there was some partial accumulation reflected in the aggregate sentence, the likelihood the applicant would suffer greater hardship in custody because of his mental condition, and the necessity for him to be monitored upon his release for the purposes of rehabilitation.

23. Eighth, his Honour addressed the commencement date of the sentence. His Honour noted that the applicant had been bail refused for the offences the subject of this application for 123 days from 3 April 2018 to 3 August 2018. His Honour also noted that the applicant then resumed custody from 6 June 2019 but for the first four months, one week and two days of that period of custody he was also serving the balance of the ICO for the offence of participating in a criminal group. In relation to that, his Honour noted that some period of that participation overlapped with the period of possession of firearms that is the subject of count 1, a matter I will return to. His Honour determined the sentence for this matter should be wholly concurrent with the period that he served following revocation of the ICO. Accordingly, his Honour backdated the commencement date of the sentence to 123 days prior to 6 June 2019 being 3 February 2019.

Appeal Ground 1: Count 1 and Good Behaviour Bonds

24. Ground 1 of the application contends that the sentencing judge erred in concluding that the applicant committed count 1 while he was subject to a bond under s 9 of the Sentencing Act for 6 months.

25. In his written submissions the applicant contended that the sentencing judge made a “judicial error” when he stated “the [applicant …] commit[ed] count 1 while subject to good behaviour bonds”. The applicant contended that, as a result of this error, the sentencing judge wrongly considered this to be an aggravating factor and a lesser sentence would be warranted.

26. Count 1 of the indictment identified a charge period for the possession of firearms as between 1 March 2017 and 10 January 2018. In his evidence before the sentencing judge, the applicant said that he received the firearms from the Finks “not long” after he joined and that he joined sometime before his birthday on 25 March 2017. When he was asked to give an estimate of the timeframe, he said the first receipt of firearms “would have been late April, early May”. He said he received a second batch of firearms about “a month or so” later and he had possession of those firearms from that time onwards.

27. According to the applicant’s criminal record which was tendered before the sentencing judge, on 20 March 2017 he was made subject to a bond under s 9 of the Sentencing Act for an offence of driving while disqualified and being in possession of goods suspected to have been stolen. Before the sentencing judge, the applicant’s solicitor conceded that he committed count 1 while subject to conditional liberty by virtue of a s 9 bond. In light of the applicant’s evidence about when he first received possession of the firearms, that concession was correct.

28. I would reject ground 1.

Ground 2: Manifest Excess

29. Ground 2 of the applicant’s grounds of appeal contends that his sentence is manifestly excessive. In relation to this ground, the applicant makes nine distinct complaints each of which will be addressed in turn.

Totality

30. The applicant contended that the sentencing judge did not properly apply the principle of totality in considering the extent to which the sentence for these offences should be made concurrent with the sentence for the offence of participate in criminal group. As part of this complaint, the applicant contended that the only element of criminal activity outlined in the brief of evidence for that charge was the storing of firearms for the Finks. The “brief of evidence” relating to that charge was not placed before the sentencing judge. The material that was placed before the sentencing judge concerning that charge listed the period of the offence as commencing in November 2016 which is four months prior the commencement of the time period the subject of count 1. In particular, the statement of the facts sheet that was tendered before the Magistrate for that offence was before the sentencing judge. It is relatively vague in terms of identifying the acts of the applicant said to constitute the offence, but there is nothing to suggest it was confined to his conduct from around April 2017 onwards in receiving firearms.

31. In the course of submissions before the sentencing judge his Honour noted that when the applicant was sentenced by the Magistrate for participation in the criminal group, the Magistrate took into account as part of the facts of that offence his possession of firearms. Neither the prosecutor, nor counsel for the applicant, queried that statement.

32. I have already noted that the sentencing judge expressly addressed the totality principle and expressly addressed the extent to which the sentence imposed for this offence should be made concurrent with that of the sentence imposed by the Magistrate. A determination of whether, and if so to what extent, sentences should be accumulated is ultimately a question of discretion, albeit a discretion which must be exercised in accordance with principle (see R v Hommoud (2000) 118 A Crim R 66 at [7] per Simpson J). The approach taken by his Honour in this case was well open.

33. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Bail Conditions as Quasi-Custody

34. The applicant’s second complaint in relation to manifest excess is that in imposing sentence his Honour failed to consider the period from 3 August 2018 when he was released on bail to when he resumed in custody on June 2019 and was subject to bail conditions which included daily reporting and a nightly curfew. The curfew was subject to exceptions, including that he could leave his home in the company of his partner or could travel to and from his employment.

35. In general, a sentencing judge may, but is not necessarily obliged to, take into account a period of time prior to sentence during which an offender is constrained by bail conditions which are sometimes described as being “quasi-custodial” (see Kelly v R [2018] NSWCCA 44 at [8]). The usual circumstance in which pre-trial bail conditions is taken into account are where the circumstances are such as to amount to the “notional equivalent of custody” (Frionov v R [2018] NSWCCA 267 at [24], citing R v Webb [2004] NSWCCA 330 at [18]).

34. In this case, no submission was made to the sentencing judge that allowance should be given on account of his bail conditions. A failure to do so makes it that much more difficult to establish error (see Zreika v R [2012] NSWCCA 44), although it is not determinative (Small v R [2018] NSWCCA 290 at [35]). However, at least in this case, the bail conditions that were imposed on the applicant were not so onerous that, at least in the absence of any express submission that they should be considered, it can be concluded that his Honour erred in failing to expressly address the topic.

35. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Discount for Assistance

38. In his written submissions the applicant contended that the 15% discount that was provided to him on account of his assistance to authorities was insufficient. He contended that, since the time of sentencing, the police had “made further significant arrests of people” that the applicant provided information about. He also noted that an investigator had advised the sentencing judge that he did not consider the applicant to be at risk. The applicant contends that was incorrect given that, as described below, he was the subject of a serious assault in custody when he was burnt.

39. Placed before the sentencing judge and before this Court, was the usual form of material documenting the applicant’s assistance. Before the sentencing judge, the applicant’s counsel submitted that the applicant was entitled to a total discount of 40%, that is, 25% on account of his plea of guilty and 15% on account of his assistance. His Honour accepted that submission. His Honour stated as follows:

“A further discount is appropriate for the offender’s assistance to authorities. The evaluation of an investigator in exhibit B discloses the offender’s assistance has been significant and useful, resulting in prosecution of offenders for firearm and drug supply offences. It also discloses that the offender was willing to participate in further investigations and controlled operations, although they did not eventuate and no further investigation or prosecution of those matters is presently envisaged. The timeliness of the offender’s assistance varied as is manifest in these differing outcomes from it.

The offender has gained no benefit to date from his assistance. The investigator did not consider the offender to be at risk as a result of his assistance at the time of the evaluation. However, the offender gave evidence that he perceived himself and his family to be at risk as a consequence of it, particularly since news of his interview with authorities had spread in custody following circulation of it. The offender is in protective custody as a result. He gave evidence of significant restrictions in the custodial environment as a consequence. It is not apparent that these conditions will likely change in the foreseeable future. Having regard to all these considerations, a further discount of 15 per cent is warranted. Accordingly the total discount will be 40 per cent.”

40. It is evident from this passage that the sentencing judge gave careful consideration to the level of discount that was to be afforded to the applicant on account of the applicant’s assistance and did so in a manner consistent with s 23 of the Sentencing Act. His Honour ultimately accepted the very figure nominated by his counsel. While it is true that an investigator discounted the likelihood of there being reprisals against the applicant, the sentencing judge also noted the offender’s evidence as to the potential for that to occur. It is not capable of being proved on this application whether the attack that did occur on the applicant after sentencing was on account of his assistance, but even if it was, regrettably that was only the materialisation of the circumstance that the sentencing judge expressly considered.

41. In these circumstances, there is no basis for complaint of error on the part of the approach of the sentencing judge to this topic. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Form 1 Offence Associated with Count 4

42. In his written submissions the applicant contends that since he has been in custody, he has been able to view “in car dashcam footage” of the police pursuit, the subject of the Form 1 offence associated with count 4, which was previously unavailable to him. He contends that the footage reveals the relevant police officer saying “that she in fact did not initiate a pursuit”. He contends that had this been known it would have warranted the laying of a “lesser charge of failure to stop instead of a police pursuit”.

43. If accepted, this contention would in effect amount to the applicant traversing his concession that it was appropriate to include the offence under s 51B of the Crimes Act on the Form 1 associated with count 4. If it was accepted, that would require a reconsideration of the entire sentencing process. In any event, the contention has no substance. An offence is made out under s 51B by a driver who either knows, or ought reasonably to know, or has reasonable grounds to suspect that the police are in pursuit of the vehicle, that they are required to stop but does not stop and drives recklessly or at a speed in a manner dangerous to others. In his agreed statement of facts the applicant conceded that he was involved in a police pursuit and that the pursuit was terminated by the police due to the dangerous manner of driving by the applicant. The fact that the pursuit may not have been initiated by the police is not necessarily inconsistent with his commission of the offence or the agreed facts. No basis for allowing the applicant to withdraw from his agreement to the inclusion of this offence on the Form 1 associated with the count 4 has been shown.

44. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Potential to Deal with Counts 2 to 4 Summarily

45. This complaint concerns the following part of his Honour’s sentencing judgment.

“All but count 1 could have been dealt with summarily where a jurisdictional limit of 2 years’ imprisonment would have applied. This should be borne in mind in determining the sentence appropriate for the offences the subject of these counts.”

46. As the table set out in [5] makes the clear, the indicative terms for counts 2, 3 and 4 were imprisonment for 3 years and 6 months, 2 years and 2 years respectively.

47. The applicant contends that by specifying an indicative sentence of 3 years and 6 months for count 2, his Honour has contradicted the observation in the above extract.

48. Accepting for the present the proposition that it is open to a sentencing judge to consider the possibility that the offence they are dealing with could have been dealt with in the Local Court, there is no contradiction revealed by his Honour’s reasoning in indicating a sentence of greater than 2 years for count 2. All that his Honour stated in the above extract was the fact that it might have been dealt with in the Local Court was a matter to be considered. It is not the case that the District Court, in sentencing for such an offence, is restricted to imposing a sentence of 2 years at the Local Court is. Further, his Honour found count 2 was a serious instance of receiving stolen property in that it was in the “upper medium range seriousness”. Attached to it was a Form 1 offence of some significance.

49. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Post-Sentence Assault in Custody

50. In his written submissions, the applicant noted that, since he was sentenced in October 2018, he had been subjected to an “unprovoked and vicious assault [in] January 2019 where he had boiling hot water poured over his entire back, part of his neck and left arm by another inmate” and then he was stabbed with a metal spike while he lay on the ground. He said that after he received medical treatment, he was housed in segregation two cells down from his attacker. He contends that he has since been diagnosed with post-traumatic stress disorder by a private psychologist. He says he is in constant fear of another attack.

51. At the hearing of the appeal, the Crown read an affidavit from the solicitor employed in the Office of the Director of Public Prosecutions attaching Justice Health and Corrective Services records concerning the applicant. Those records confirm that, on 9 January 2020, the applicant was transported in an ambulance to hospital for treatment for burns which appear to be related to scalding. He was discharged from the care of the burn’s unit on 24 January 2020.

52. The Crown submitted that, as this was an event occurring after sentence was imposed, it could not be considered (see Douar v R (2005) 159 A Crim R 154). Some of the principles concerning whether and how this Court can consider events that occurred after an applicant for leave to appeal was sentenced were recently described in Toller v R [2021] NSWCCA 204 at [20]-[25]. The general rule is that, absent the demonstration of error of the kind set out in House v The R (1936) 155 CLR 499 at 504 to 505, events affecting the circumstances of incarceration post-sentence will not be considered and evidence of those events will not be received (see R v Munday [1981] 2 NSWLR 177 at 178). Nevertheless, it has been accepted that the Court can receive and consider evidence concerning such events where it is necessary to avoid a miscarriage of justice (Betts v R (2016) 258 CLR 240; [2016] HCA 25 at [10]). Thus, in some circumstances, evidence concerning the medical condition or medical treatment of a prisoner in custody after they were sentenced has been received and considered (see Hoang v R [2020] NSWCCA 324 at [16]-[22]).

53. In Springer v R [2007] NSWCCA 289 at [3], McClellan CJ at CL summarised the effect of some of the cases concerning these exceptions as follows:

“However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v R [2006] NSWCCA 261 at [8]-[12] (see also Perkins v R [2007] NSWCCA 80, (2007) 169 A Crim R 516 at [25]-[27]). Examples include:

Evidence which shows that the applicant’s treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted.

Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233).

Evidence of circumstances relevant to the sentence which, although in existence at the time of sentencing, were not discovered until after the sentence had been imposed. For example, where the offender was only found to be suffering from AIDS after sentence but was obviously infected at the time of sentence (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Bailey (1988) 35 A Crim R 458 at 462). A similar approach may be taken when, although symptoms may have been present their significance may not have been appreciated at the time of sentencing (Iglesias).

Evidence of facts or events occurring after sentencing, which show the true significance or provide the basis for a full appreciation of facts in existence at the time of sentencing (R v Smith (1987) 44 SASR at 588 per King CJ; R v P [2003] NSWCCA 298 at [19]; R v MJM [2004] NSWCCA 66 at [46]).

Evidence which demonstrates that the sentencing judge has drawn inferences on a misunderstanding of tendered medical evidence. (R v Swindale, Court of Criminal Appeal, 22 June 1998, unreported; R v Goodwin (1990) 51 A Crim R 328).

Evidence indicating that the offender knew of the existence of facts, but did not realise their significance at the time of sentencing and could not inform the legal advisers of them (R v Goodwin (1990) 51 A Crim R 328 at 330 per Hunt J; R v Cartwright (1989) 17 NSWLR 243 at 257; R v W [2001] NSWCCA 172 at [23]; R v MJM [2004] NSWCCA 66 at [46]).

54. Similarly, in Turkmani v R [2014] NSWCCA 186; 244 A Crim R 402 at [66], I noted three categories of case where evidence concerning an offender’s medical treatment or condition in custody was received as follows:

“66   Three examples of the application of this principle are as follows. Firstly where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462). Secondly where, although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261 ("Iglesias"); see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL) ("Springer"). Thirdly where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer id).”

55. The application of these principles, or at least their analogues, to the circumstance of a prisoner who is assaulted in custody, has not been fully developed. At one extreme it can be stated that, simply because a prisoner is assaulted in custody after they were sentenced, then that is not of itself a basis for interfering with their sentence and generally evidence concerning such assaults will not be received absent the demonstration of House v R error. On the other hand, either by the application of the above principles, or by their analogue, it may be that a prisoner who has provided assistance and been sentenced on the basis that a certain level of protection against retribution for that assistance would be provided, may be able to demonstrate a relevant miscarriage of justice if they can show that that expected level of protection was not made available. It is not necessary to consider this further because that has not been shown to be the case here.

56. Assuming in the applicant’s favour on this point that his being burnt in custody was retribution for the assistance he provided, I do not accept that a basis for interfering with his sentence has been shown. The passage from the sentencing judgment set out above contemplates that, at the time he was sentenced, the applicant was fearful of the possibility of revenge attacks. I regard the sentencing judge as having sentenced him on the basis that such a possibility could ensue. Hence, the sentencing judge accepted the applicant’s counsel’s submission that a discount of 15% would be provided. Even though an unfortunate assault has occurred, that does not necessarily mean that the level of protection that was anticipated by the sentencing judge was not provided.

57. I would reject this complaint and the evidence concerning it.

No Access to Courses in Custody

58. In his written submissions the applicant stated that he has persistently enquired about enrolling or participating in drug and alcohol programs in custody as well rehabilitation programs, but he says he has been told he is “ineligible to participate due to his low risk of re-offending”. The applicant contends that he would “benefit more from a shorter time in custody and a longer parole period to monitor his behaviour and pro-social lifestyle change”.

59. The short answer to this compliant is that, to an extent the sentencing judge, agreed with the applicant. It was for that reason that his Honour made a finding of special circumstances and imposed a sentence in which the ratio of the non-parole period to the aggregate sentence was 65%.

60. I do not accept that this contention raises either any error in its own right or supports the suggestion that the sentence imposed was manifestly excessive.

Pandemic Restrictions

61. In his written submissions the applicant outlined the effect of the pandemic restrictions on his time in custody, specifically that he has not seen his partner or any member of his family for a period of almost 12 months. He notes that his gaol is many hours travel from his family which will make it difficult to receive visits once they are reinstated. He contends that the onerous conditions should be taken into mitigating circumstances on sentence.

62. This matter was recently addressed in Toller. While it can be accepted that sentencing judges are entitled to consider the impact on prisoners of the restrictions imposed as a result of the COVID-19 pandemic and the potential imposition of those restrictions in the future, those matters are not a basis for interfering with a sentence that was imposed prior to the pandemic restrictions coming into force (at [25] citing Cabzuela v R [2020] NSWCCA 107; and Borg v R; Gray v R [2020] NSWCCA 67).

Comparable Cases and Sentence Otherwise Manifestly Excessive

63. The remaining complaint raised by the applicant is that, having regard to the above matters, and a consideration of what he contends are comparable cases, his sentence is simply too long.

64. The relevant statement of principle concerning a contention that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”):

“….. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; “Wong”], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

65. Further, in relation to a contention that an aggregate sentence is manifestly excessive, in Lee v R [2020] NSWCCA 244 at [32], with the agreement of Payne JA and Fagan J, I stated:

“… with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; “JM”). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; “Beale”). ...The “principle”, or even ultimate, “focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved” (JM at [40]).

66. In addition to the matters set out above, in contending that his sentence was manifestly excessive the applicant pointed to various sentences imposed or considered by this Court for the same or similar offences. Although manifest excess will not be established by a mere favourable comparison between the sentence imposed on the applicant and the sentences imposed or considered in those cases, I will nevertheless address them.

67. Hence, in relation to count 1, the applicant referred to two decisions of this Court concerning possession of firearms. In R v Middlebrook [2004] NSWCCA 49, this Court resentenced an offender to 2 years imprisonment with a non-parole period of 1 year for firearm possession in respect of a person accepted as being a “law abiding citizen and upstanding member of the community” (at [20]). Middlebrook is of little relevance as it was decided long before the enactment of the standard non-parole period offences.

68. The other decision referred to by the applicant is R v Campbell; R v Smith [2019] NSWCCA 1 which concerned a Crown appeal in respect of sentences imposed on two offenders where one of the offenders (Smith) was sentenced for four offences of manufacturing methylamphetamine and two firearms offences, one for possession of a firearm contrary to s 74(1) of the Firearms Act and another being in possession of more than three unregistered firearms contrary to s 51D(2) of the Firearms Act [31]. In respect of the s 51D(2) offence, Smith was found in possession of seven unregistered firearms, six of which were prohibited. He had them in his capacity as a member of a motorcycle gang in that he was “responsible for the security of weapons including firearms” (at [61]).

69. The Crown appeal was upheld and Smith was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 10 years and 6 months. The indicative sentence for the s 51D(2) offence was 7 years and 6 months imprisonment with a non-parole period of 4 years and 10 months (at [220]). Prior to the discount that was allowed to Smith for his plea of guilty, the starting point for this indicative sentence was 10 years imprisonment with a non-parole period of 6 years and 5 months which is well above the undiscounted sentence indicated for count 1 for the applicant.

70. In its submissions, the Crown referred to various other sentences under s 51D(2), including some where the non-parole period was applicable (Taylor v R [2013] NSWCCA 157; R v Lachlan [2015] NSWCCA 178; Taylor v R [2018] NSWCCA 50). None of them provide any support for the applicant’s intention that his indicative sentence for count 1 was excessive, bearing in mind that the ground is ultimately directed to the overall aggregate sentence.

71. In relation to count 2, the applicant referred to two judgments of this Court which considered sentences for receiving stolen goods, namely, Mason v R [2007] NSWCCA 32 (“Mason”) and R v Strbik [2004] NSWCCA 212 (“Strbik”). In Mason, this Court rejected an offender’s challenge to his sentence of 2 years and 6 months with a non-parole period of 16 months for three counts of receiving stolen property, specifically, motor vehicles which were found to be in various stages of the “rebirthing” process. The applicant had the benefit of a finding of prior good character ([19]). The only complaint on appeal was the failure of the sentencing judge to consider the alternative of imposing a sentence to be served by way of periodic detention. In those circumstances, this Court’s decision says little about the appropriate sentence for an offence such as that involving the applicant.

72. Strbik involved offences of stealing motor vehicles and possession of stolen property as part of a suite of offences relating to the involvement of the applicant in a car re-birthing racket. Some offences under s 188 of the Crimes Act were included on a Form 1 attached to one of the offences of car stealing (at [3]). The applicant was sentenced to a fixed term of 2 years imprisonment for the offences of possess stolen property (at [4]). That sentence was maintained on appeal but the starting and commencement dates were altered to allow the applicant a longer time on parole (at [19]). Strbik predated the enactment of the regime allowing the imposition of aggregate sentences.

73. With count 3, the applicant referred to three sentences imposed or considered by this Court for receiving stolen goods all of which concerned the relevant offender having committed other offences, namely, Tazelaar v R [2009] NSWCCA 119 (fixed term of 6 months), Luckenic v R [2008] NSWCCA 250 (fixed term of 1 year and 9 months after guilty plea), and R v Bala [2004] NSWCCA 345 (18 months with non-parole period of 10 months after 20% allowance for guilty plea). In one of those cases, the property received was described as “very modest items” (Tazelaar at [33]). The sentences imposed in the other cases do not support a contention that there was anything manifestly excessive about the indicative sentence for the receiving count.

74. In relation to count 4 the applicant referred to three cases that came before this Court concerning the crime of acting with intent to pervert the course of justice contrary to s 319 of the Crimes Act. In one of those cases, R v Johnston [2019] NSWCCA 108, a police officer was sentenced after trial to 1 year and 4 months imprisonment for improperly using her authority to avoid being breath tested. This Court only considered an appeal against conviction. There was no consideration of the sentence imposed.

75. In R v Pearce [2020] NSWCCA 61, this Court dismissed a Crown appeal against a sentence of 18 months imprisonment to be served by way of an ICO in respect of an offender who gave a false alibi to a friend being investigated for sexual assault. The offender was not found to be the instigator of the provision of the false alibi and he was found to have presented an exceptionally strong subjective case (at [79]).

76. Lastly, the applicant relied on R v Poe [2020] NSWCCA 129, where this Court rejected an appeal from a sentence of 3 years imprisonment with a non-parole period of 1 year and 6 months in respect of an offender who pleaded guilty. The offender had intimidated a witness in sexual assault proceedings against his stepson. He had a strong subjective case including good character as well as a finding that his mental health condition affected his behaviour (at [17] to [18]).

77. These cases do not assist in establishing that there is anything excessive in the indicative sentences for counts 3 and 4. Of all the indicative sentences, it can be accepted that the indicative sentence for count 2 was stern given the level of discount that was applied. However, as noted, the sentencing judge found that it was in the “upper medium range of seriousness”. This finding was well open to his Honour given the length of time the applicant possessed the property and that it was held by him as part of organised criminal activity.

78. As noted above, the ultimate issue is whether the aggregate sentence was manifestly excessive. In considering that, it is necessary to consider the total criminality involved which was significant. Having regard to that, the level of discount that was afforded and the finding of special circumstances, I am not satisfied that the aggregate sentence was manifestly excessive.

79. Accordingly, I would reject ground 2.

Proposed Orders

80. Throughout this judgment there are refences to the fact that the applicant has provide assistance to the authorities and received a discount on his sentence. There are similar references in Judge Gartlemann SC’s sentencing judgment. Even though no order was made under the Court Suppression and Non-Publication Orders Act 2010 in relation to his Honour’s reasons, I consider it appropriate to at least give the parties the opportunity to consider and, if thought appropriate, make such an application. To facilitate that occurring I proposed that the parties be afforded two weeks to make such an application with this judgment not to be published on Caselaw in the meantime.

81. The orders that I propose are:

1. Leave to appeal against sentence be granted.

2. Appeal dismissed; and

3. Any application by either party for an order under the Court Suppression and Non-Publication Orders Act 2010 in respect of any part of this judgment to be filed and served within 14 days.

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Decision last updated: 04 September 2023