Bell v The Queen; Jelisavac v The Queen
[2009] NSWCCA 206
•19 August 2009
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Bell v R; Jelisavac v R [2009] NSWCCA 206
FILE NUMBER(S):
2007/9143
2007/8934
HEARING DATE(S):
10 June 2009
JUDGMENT DATE:
19 August 2009
PARTIES:
Michael Robert Bell (Applicant)
Michael Jelisavac (Applicant)
Regina (Respondent)
JUDGMENT OF:
Allsop P Price J Harrison J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER:
Knox DCJ
LOWER COURT DATE OF DECISION:
11 August 2008
COUNSEL:
C Nash (Applicant Bell)
T Watts (Applicant Jelisavac)
N Noman (Crown)
SOLICITORS:
Ford Criminal Laywers (Applicant Bell)
Burston Cole & Mulock (Applicant Jelisavac)
S Kavanagh Public Prosecutions
CATCHWORDS:
Criminal Law
sentencing
parity
different charging of offenders
medical condition
special circumstances not found
finding of no real prospects of rehabilitation
repeat offender
leniency extended previously
serious offences committed whilst on parole
starting point of sentence.
LEGISLATION CITED:
Crimes Act 1900 s 33B, s 33B(2), s 97(2),
s 112(2),
Crimes (Sentencing Procedure) Act 1999 s 44(2)
Criminal Appeal Act 1912 s 6(3)
CATEGORY:
Principal judgment
CASES CITED:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Callaghan v The Queen (2006) 160 A Crim R 145
House v The King (1936) 55 CLR 499
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Formosa [2005] NSWCCA 363
R v Gill [2002] NSWCCA 93
R v Hammoud (2000) 118 A Crim R 66
R v Kerr [2003] NSWCCA 234
R v Fidow [2004] NSWCCA 172
R v Miranda (2002) 128 A Crim R 362
R v So [2004] NSWCCA 362
The Queen v Hoar (1981) 148 CLR 32
Trindall v The Queen (2006) 171 A Crim R 87
TEXTS CITED:
DECISION:
Bell: 1.Leave to appeal against sentence granted. 2. Appeal dismissed. Jelisavac: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/9143
2007/8934ALLSOP P
PRICE J
HARRISON J19 August 2009
Michael Robert BELL; Michael JELISAVAC v R
Judgment
ALLSOP P: I agree with Price J.
PRICE J: Michael Robert Bell and Michael Jelisavac seek leave to appeal against the severity of the sentences imposed upon them by Knox DCJ (the Judge) in the District Court at Sydney on 11 August 2008. For the sake of convenience, the appeals were heard together. With no disrespect to the applicants, I will refer to them by their surnames.
Bell and Jelisavac were co-offenders and pleaded guilty to the same offences on 12 November 2007 which was the first day of their trial. The first count was an offence of robbery when armed with a dangerous weapon that was committed at Pritchard’s Hotel in Mount Pritchard on 20 February 2006 (the Mt Pritchard robbery). This offence contravened s 97(2) of the Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment. The second count was an offence of conspiracy to commit a serious indictable offence, namely an aggravated break and enter between 1 March 2006 and 27 March 2006 (the conspiracy). As this was an offence of conspiracy, the maximum penalty for the substantive offence of aggravated break and enter contrary to s 112(2) of the Crimes Act of 20 years imprisonment was the relevant yardstick: The Queen v Hoar (1981) 148 CLR 32 at 39. A standard non-parole period of 5 years imprisonment has been prescribed for a s 112(2) offence.
Each of the applicants asked the Judge to take into account on sentence three offences which had been included on a Form 1. Two of these matters were offences of whilst in company using an offensive weapon with intent to commit an indictable offence contrary to s 33B(2) of the Crimes Act that were committed at Mount Pritchard on 20 February 2006. An offence contrary to s 33B(2) is punishable by 15 years imprisonment. The third matter was an offence of aggravated break and enter contrary to s 112(2) of the Crimes Act which was committed at Guildford on 27 March 2006 (the Guildford break and enter).
The following sentences were imposed on Bell:
Count 1 (the Mt Pritchard robbery)
(including matters on Form 1) Imprisonment for 6 years 8 months to commence on 10 December 2006 and to expire on 9 August 2013, with a non-parole period of 5 years to commence on 10 December 2006 and to expire on 9 December 2011.
Count 2 (the conspiracy) Imprisonment for 4 years to commence on 10 December 2009 and to expire on 9 December 2013, with a non-parole period of 3 years to expire on 9 December 2012.
As a result of partial accumulation the total effective sentence was 7 years to commence on 10 December 2006 and to expire on 9 December 2013 with a non-parole period of 6 years to expire on 9 December 2012.
The following sentences were imposed on Jelisavac:
Count 1 (the Mt Pritchard robbery)
(including matters on Form 1) Imprisonment for 6 years 8 months to commence on 11 August 2008 and to expire on 10 April 2015 with a non-parole period of 5 years to commence on 11 August 2008 and to expire on 10 August 2013.
Count 2 (the conspiracy) Imprisonment for 4 years to commence on 11 August 2011 and to expire on 10 August 2015 with a non-parole period of 3 years to expire on 10 August 2014.
As a result of partial accumulation the total effective sentence was 7 years to commence on 11 August 2008 and to expire on 10 August 2015 with a non-parole period of 6 years to expire on 10 August 2014.
The Judge had reduced the sentences of each applicant by 10 per cent for the utilitarian value of the pleas of guilty.
Justin Quarta (Quarta) was sentenced by the Judge at the same time as the applicants. As his sentence does not give rise to a parity argument, it is unnecessary to consider the sentence here. Robin Leslie Martin (Martin) was sentenced by Armitage DCJ (the sentencing judge) on 23 February 2007. As issues of parity with Martin’s sentence arise in the appeals, it is convenient to detail the sentence imposed upon him.
Martin had pleaded guilty to two counts on an indictment. The first count was the Mt Pritchard robbery. The second count was the Guildford break and enter. This was offence 3 on the Form 1 for Bell and Jelisavac.
Martin also asked that the conspiracy be taken into account on a Form 1. This offence was the second count to which Bell and Jelisavac had pleaded guilty. Martin had entered pleas of guilty in the Local Court and the sentencing judge discounted his sentence by 25 per cent for the utilitarian effect of his pleas. A further discount of 25 per cent was allowed for his assistance to authorities. Martin was sentenced as follows:
Count 1 (the Mt Pritchard robbery):
(including matter on Form 1) Imprisonment with a non-parole period of 18 months to commence on 27 March 2006 and to expire on 26 September 2007 with a parole period of 18 months to expire on 27 March 2009.
Count 2 (the Guildford break and enter):
Imprisonment with a non-parole period of 18 months to commence on 27 September 2006 and to expire on 26 March 2008 with a parole period of 18 months to expire on 26 September 2009.
As a result of partial accumulation the total effective sentence imposed on Martin was 3 years 6 months with a non-parole period of 2 years.
FACTS
The facts of the offences were not in dispute and a statement of agreed facts was tendered. The Judge summarised the facts of the Mt Pritchard robbery as follows (ROS at 3-4):
“The police evidence in relation to each of the offenders on both counts arose from telephone intercepts of mobile phones used by Quarta and Jelisavac, as well as records of conversations which took place at Quarta’s home.
In mid-February 2006, Bell informed a co-offender, Robin Martin, that about $180,000 would be at the Pritchard’s Hotel following the delivery of money by Armaguard as part of regular ATM deliveries.
Martin approached Quarta to assist in the armed robbery. Quarta in turn brought in Jelisavac to assist in the robbery.
Martin, together with the three offenders went to the hotel on 20 February 2006 to reconnoitre and assess the hotel. There, they located the offices and noted the access and egress routes. They then discussed how the offence would be carried out. Bell, by arrangement, obtained a firearm and provided it to Quarta. Martin was to provide, and did provide, a stolen car.
All four then met at Bell’s residence in Canley Vale where they changed clothes. Bell gave Quarta a sawn off .22 calibre rifle to be used in the robbery. Martin drove them in the stolen car to the hotel and the three offenders got out at the hotel. Quarta put a magazine in the rifle at that time. Martin then drove off to a pre-planned pick-up point.
It is clear from all those matters that there was considerable planning and premeditation involved in the offences by all offenders.
Events inside the hotel
The three offenders entered the hotel, Bell was carrying a knife with a 30 centimetre blade.
Quarta yelled at the crowd “get on the ground”. The crowd consisted of six or seven patrons and three staff including a security officer.
Jelisavac took the hotel manager, Mr Tran, to an office yelling at him “take me to the fucking safe”. Inside the office, Jelisavac pushed Tran inside and yelled at him to open the safe. Quarta then joined them in the office and pointed the gun at Tran’s head also yelling at him to open the safe. One of the offenders threatened to shoot Tran if he didn’t open the safe.
Tran opened one of the two safes in the office. One of the offenders then placed $39,500.00 into a bag. Tran was ordered to open another combination safe but could not remember the precise combination. As he tried to open the safe, one of the offenders kicked Tran in the right side of his ribs.
While this was happening, Bell stood outside the office door and kept guard. He was holding the 30 centimetre long knife.
All these matters are clearly visible on the video which was tendered and played in these sentencing proceedings.”
The facts of the two offences contrary to s 33B(2) of the Crimes Act (count 1 Form 1) were summarised by the Judge as follows (ROS at 4):
“In terms of the factual basis for the form one matters; when the three offenders were leaving the hotel security officer, Mr Brown, threw a glass ash-tray at Jelisavac. Quarta then fired one round of the rifle in Brown’s direction.
This forms the first offence on the Form 1 common to all offenders.
Another patron threw a glass at Quarta and Quarta fired another shot.
This forms the second offence on the Form 1 common to all offenders.
All three offenders fled the hotel and were collected by Martin in the car.
The offenders went back to Bell’s residence where they changed clothes and divided the cash, each receiving about $10,000.00.
The Police intercepts indicating the preparation and planning for the offence was consistent with the CCTV footage of the events.”
The Judge summarised the facts of the conspiracy (count 2) as follows (ROS 4-5):
“In March 2006, Bell told Martin that he knew of a person called “Min” who had information about a drug dealer living in Canley Vale. The dealer was thought to keep a large quantity of heroin and about $250,000.00 in cash in his house.
Martin spoke to Jelisavac and Quarta about a proposed robbery. On a number of occasions Martin, Bell, and Jelisavac went to look at the house.
On 20 March 2006 Quarta was involved in a motorcycle accident whereby he sustained injuries. It was then determined that he would not take part in the robbery but that he would still get a share of whatever the others got.
On 24 March 2006 Jelisavac and Martin went to Quarta’s house where their conversation planning the robbery was recorded.
Subsequent planning was directed to obtaining a vehicle, a glass-cutter, bolt cutters and firearms. The conversations also indicated not only the presence of cash and drugs on the premises but that the occupants would be assaulted in the course of the break and enter.
Jelisavac and Quarta were recorded having a conversation about the amount of money involved, the possibility that the dealer might have a gun with him, and what they should do in terms of their balaclavas to be worn and the language to be used.
Jelisavac and Martin met at Quarta’s home on 26 March 2006. Quarta gave them advice on taking a sledgehammer, wearing balaclavas and offering them a machete and meat cleavers.
Martin and Jelisavac left Quarta’s unit and, driving in Martin’s car, or the car he had taken, went to collect another person said to be a co-offender, David L’Estrange. They then collected Bell at his home in Canley Vale and drove to the premises at Butters Street, Canley Vale.
Martin telephoned the woman known to Bell to ask someone to go to the premises so that the premises would be opened up. It is a matter of inference that that would be someone going to the drug dealer’s premises.
After waiting a period of time the offenders decided not to go ahead with this robbery.
It does not appear from the agreed facts why the offenders did not carry out these plans. Nevertheless, they were in an advanced stage of pursuit of these plans at the time particular enterprise was called off.
Further, it cannot be said that this was a case of remorse or reconsideration leading to the withdrawal by them from the plans. What the offenders then did was to transfer their attention to the Guildford premises where Mr Bell knew, or thought that there would be, substantial amounts of money in the premises having been collected by his former employer.
That being the case it does seem to me that the conspiracy matter should be the subject of a significant penalty.”
The facts of the Guildford break and enter (count 1 Form 1) were summarised by the Judge as follows (ROS 6):
“The offenders, Bell, Martin, Jelisavac and L’Estrange, then decided instead to rob another house at Guildford where they expected there would be substantial cash. Bell knew about those premises and the intended target. They drove to the premises at 229A Fowler Road, Guildford at about 12.30am on Monday 27 March, 2006.
The occupier of those premises, Perry Koelmeyer, had employed Bell for a six month period as a labourer. Bell knew from that experience that Koelmeyer retained cash which he had collected from his Coca Cola deliveries prior to depositing the money through the bank.
The premises were occupied by three mates – Koelmeyer, Luke Barker and another.
Bell remained outside in the car as he did not want Koelmeyer to recognise him. Martin, Jelisavac and L’Estrange wore clothing including bandanas and balaclavas to disguise themselves. Jelisavac was armed with a meat cleaver with a six inch blade.
Martin kicked in the front door. The three entered. Jelisavac handed L’Estrange the meat cleaver while he and Martin searched the kitchen. When Koelmeyer appeared Jelisavac punched him in the face with a closed fist in the mouth causing bleeding. Martin ran upstairs. He entered Koelmeyer’s bedroom and started searching it. He located a number of mobile phones and other items, including a Samurai sword which he took.
Jelisavac went upstairs and realised one of the bedroom doors was locked. Martin kicked the door in and saw Luke Barker in bed. Martin then searched the bedroom and located a Samurai sword, a wallet, and other items.
Five of six associates of the occupants came to the premises. The three offenders fled and joined Bell in the car and drove off.”
Bell’s Subjective Circumstances
Bell was born on 31 January 1970. He was 36 years old at the time of the offending and 38 years old when sentenced. Bell did not give evidence during the proceedings on sentence. The Probation and Parole pre-sentence report disclosed that his parents separated when he was 12 years old and being the second eldest of five children took it upon himself to become the provider for his sisters and mother. Prior to leaving school at the age of 14 years he had been a good student. He reported a history of polydrug abuse commencing at that age.
The Judge noted that Bell had been in and out of gaol since he was eighteen and had accurately described himself as a habitual offender. The Judge remarked upon Bell’s difficult upbringing and that he had initially been a good student until his expulsion in Year 9 which had led to his drug and behavioural problems. Bell had been in a relationship for nine years and has two young children. The Judge said (ROS at 9):
“Bell has had a relationship out of which he and his partner had a stillborn child, which traumatised him. He and his partner had two other children who are now about the age of five and three. For five years he stayed out of trouble with the law but then ended up resuming his association with people that he had met in gaol, losing his job and reverting to substance abuse and then crime.”
Bell had been operated on for cancer of the left kidney in April 2008. The left kidney is his solitary functioning kidney as his right kidney is atrophic and non-functioning. Material placed before the Judge as to Bell’s medical condition included reports from Dr Stuart Eshman and Dr David Gracey. Bell’s medical condition is detailed at [57-59] below.
Bell has an extensive criminal record which as an adult commenced in 1988. The Judge remarked (ROS at 12-13):
“These include assaults, at least ten, or thereabouts, break and enter offences, as well as stealing and receiving charges.
Bell, as I have said, has been extended a variety of sentencing options including counselling, fines, recognisances.
Bell received a sentence of imprisonment in the District Court in 1997 for breach of recognisance. He has also had opportunities extended to him by his participation in the Parramatta Drug Court. He also has a number of driving offences. It was submitted on his behalf that his record was essentially a “Local Court record”. While it is true that many of his offences were dealt with in the Local Court, he has also had a number of sentences imposed in the District Court and the Drug Court including sentences of imprisonment.
The record indicates an escalating degree of criminality whereby the offender, Bell, has not recognised any of the opportunities which have been extended to him. I do not regard his record as entitling him to any leniency whatsoever.”
The Judge referred to Bell’s record within the correctional system and particularly noted that he had failed a urine test which related to him taking anti-depressant drugs. His Honour considered that it indicated a degree of recalcitrance in Bell’s refusing to accept the appropriate authorities and their regime.
At the time of the offending Bell was on bail. He had been sentenced in the Fairfield Local Court on 7 November 2005 to imprisonment for 12 months with a non-parole period of 9 months for driving whilst disqualified. He appealed to the District Court and bail was imposed. The appeal was dismissed and the conviction confirmed by the District Court on 29 March 2006. In sentencing Bell for the present offences, the Judge found the commission of the offences whilst Bell was subject to conditional liberty to be an aggravating factor. Bell’s sentence commenced on 10 December 2006 which was accepted as the date that his custody was solely referrable to the present offences.
Jelisavac’s subjective circumstances
Jelisavac was born on 7 July 1979. He was 25 years old at the time of the offending and 28 years old when sentenced. During the proceedings on sentence two Probation and Parole pre-sentence reports were tendered as was a report from Anita Duffy, a psychologist. Jelisavac has a longstanding problem with addiction to prohibited drugs. Mike Ryan, the author of the pre-sentence reports, reported that Jelisavac whilst in custody had attended alcohol and drug counselling regularly and had recently completed a relapse prevention course. He had participated in a number of education courses to improve his reading, writing and computer skills. Mr Ryan recounted that Jelisavac had expressed his remorse and regret for the harm he caused his victims, and would like an opportunity to say sorry to them. Ms Duffy in her report noted that the applicant expressed immense remorse and sorrow at his behaviour and frankly acknowledged he had “stuffed up”.
References were tendered from Reverend Liva Tukutama and Herman Kim, a ministry leader of the Presbyterian Church. Reverend Tukutama referred to Jelisavac having come to terms with what he had done and his desire to show his remorse. Mr Kim related a change in the applicant’s demeanour, character and outlook. He stated that he had seen him truly express remorse for the things that he had done and was changing for the ‘good’.
Jane Kim, Mr Kim’s sister, told the Judge that she had been in a relationship with Jelisavac for about thirteen and a half years and had discussed with him the possibility of marriage upon his release. She gave evidence that the applicant had shown “deep remorsefulness” for what he had done and had found his Christian faith. She spoke of his wishing to move forward through the initiatives undertaken by him whilst in custody.
A letter to the Judge from the applicant was also tendered in which he expressed his regret and remorse for his offending and took full responsibility for his actions. He stated that whilst in custody he was taking advantage of the resources in helping him find out where he had gone wrong and to fix the problem. An Alcohol and Other Drug report confirmed the applicant’s regular attendance at alcohol and drug counselling and that he had “continued to display honesty, insightfulness and empathy to family, friends and victims of his offence”. The applicant had been placed in a position of clerk at the carpenter’s shop which required “a high level of trust and responsibility”. Jelisavac did not give evidence during the sentencing proceedings.
The Judge noted that Jelisavac came from a mixed Serbian/Italian family where there was dysfunctionality involving his father’s alcohol abuse and domestic violence. He also had a difficult relationship with a physically violent mother, running away from home at fourteen and ending up living on the streets.
His Honour recounted that Jelisavac had been involved in drugs since the age of ten graduating from marijuana to heroin and cocaine. He was using methylamphetamine and cocaine at the time of the offences. The Judge remarked that Jelisavac had a gambling problem and the offences were used to support “his chosen lifestyle”. Jelisavac has hepatitis C.
Jelisavac had, the Judge noted, a substantial criminal record as an adult. His Honour said (ROS at 15):
“When I come to his record in the Local Court he has convictions for goods in custody; assaulting police officers; larceny; resisting police officers; break and enter; possess housebreaking implements in 1999; larceny. The opportunities afforded to him for periodic detention were not observed or taken up by him. There was a cancellation of his periodic detention. He was imprisoned for a period of forty-five weeks.
That record of non co-operation, or abusing the privileges extended to him and the opportunities he had with periodic detention are relevant and were clearly relevant to the parole authority…
His record also included offences of resisting an officer in the execution of his duty; obtaining money by deception; various offences of dishonesty; break and enter in the District Court in 2002; an aggravated break and enter with committing a felony for which was subject to terms of imprisonment.”
The applicant had appeared for sentence in the District Court on 24 May 2002 on two counts of obtaining money by deception, two counts of breaking, entering and stealing in circumstances of aggravation, one count of breaking and entering with intent to commit a crime in circumstances of aggravation and four counts of breaking, entering and stealing. Sixteen other offences were taken into account on a Form 1, five of which were breaking, entering and stealing and two were obtaining a benefit by deceit. The other offences were escaping lawful custody, possessing housebreaking implements, resisting arrest, having goods in custody suspected of having been stolen or dishonestly obtained, stealing a motor vehicle and being carried in a stolen motor vehicle. An overall effective sentence of imprisonment of 7 years 6 months with a non-parole period of 4 years 6 months was imposed in the District Court. Jelisavac appealed to this Court against the severity of the sentences imposed. In R v Jelisavac [2003] NSWCCA 107, Adams J with whom Smart AJ agreed, granted leave to appeal, quashed the sentences and re-sentenced the applicant. The effective head sentence remained the same but the non-parole period was reduced by 1 year. Jelisavac was eligible for release to parole on 1 February 2005.
Jelisavac was released to parole on 1 February 2005 and the present offences were committed before the parole period had expired. The commission of the offences whilst subject to parole the Judge found to be a factor of aggravation.
Bell’s Appeal
Ground 1: The learned Sentencing Judge erred in relation to the degree of partial accumulation.
Ms Nash, counsel for Bell, submitted that the Judge erred by imposing a period of partial accumulation of 12 months in respect of the individual sentences. Ms Nash contended that consistent with the findings of Armitage DCJ in sentencing Martin the period of accumulation should have been 6 months. It was argued that the second count to which Martin had pleaded was the more serious count of the Guildford break and enter whereas the conspiracy was the second count to which the applicant had pleaded, the Guildford break and enter being one of the matters on the Form 1. Ms Nash referred to what was said by Armitage DCJ (Martin ROS at 21) as to the conspiracy that:
“The Form 1 matter, while serious, did not result in an offence actually going through to completion. It was serious and organised criminal conduct, but not as serious by any means as the robbery offence.”
The bulk of the criminality, Ms Nash submitted, was adequately reflected in the first individual sentence and the period of accumulation of 12 months exceeded that which was warranted to reflect the total criminality of the two offences. Ms Nash noted that in counts 1 and 2 his Honour provided a non-parole period for each individual sentence at 75 per cent of the total term but because of the partial accumulation of sentence the proportion of the effective non-parole period (6 years) to the effective overall term of the sentence (7 years) was 85.7 per cent which supported the contention that the Judge erred.
Martin was sentenced before Bell, Jelisavac and Quarta and submissions were made to the Judge during the proceedings on sentence by Ms Nash (who was Bell’s counsel at first instance) and counsel for the co-offenders on parity of sentence. In particular it was put to the Judge by Ms Nash that Martin had been charged with what was said to have been the more serious offence of the Guildford break and enter and the extent of accumulation of sentence for count 2 should be 6 months.
The agreement to rob the house at Canley Vale which had reached an advanced stage was undoubtedly a serious offence. When analysing the conspiracy, his Honour took into account:
1. That all offenders were contemplating a robbery of drug premises in which there was heroin and substantial amounts of cash;
2. The steps taken by the offenders to make arrangements to be armed with various items including a sledgehammer and meat cleaver and to take clothing such as balaclavas which could be used to conceal their identities and to terrify and intimidate the occupants; and
3. What the offenders did to carry out the conspiracy stopping as they did, almost on the front door of the premises. His Honour observed that all of the offenders went to the premises in the car and remained outside. Martin telephoned “Min” who was known to Bell to attempt to have the premises opened up so they could carry out their plans.
The Judge carefully considered the submissions that had been made to him by counsel. The Judge said (ROS at 20):
“Counsel for all three offenders submitted on at least ten occasions that there would be a justifiable sense of grievance if the offenders and each of them were not sentenced or subject to the same head sentence as the co-offender Martin. It was further submitted that Martin had in fact been charged with a more serious offence namely aggravated break and enter in relation to the Guildford property rather than a conspiracy to commit an aggravated break and enter. I have already indicated that the conspiracy which was almost carried out but stopped short when the offenders were indeed outside the relevant premises.”
The Judge’s evaluation of the seriousness of the conspiracy was one of fact and is reviewable by this Court only on the principles stated in House v The King (1936) 55 CLR 499. His Honour was not bound by the assessment of Armitage DCJ of the comparative seriousness of the conspiracy and the Guildford break and enter. I am not persuaded that his Honour’s assessment of the seriousness of these offences was not open to him on the evidence.
His Honour recited the submissions concerning the roles of the co-offenders in the Mt Pritchard robbery and noted there was a difference in Martin’s role by virtue of the fact that he had remained outside in the stolen vehicle. His Honour found that there was a “marginal difference” in Martin’s role as Martin had been “clearly aware that there was a weapon to be taken into the premises”. The principal difference the Judge found between Martin and his co-offenders (Bell, Jelisavac and Quarta) was that Martin had good prospects of rehabilitation.
The Judge said (ROS at 21):
“This is in marked contradistinction to my own view of these three offenders and each of them and the evidence which is that there is nothing on which I can find for each of them that there are any real prospects of rehabilitation.”
Armitage DCJ had found that Martin had expressed sincere remorse, was a person who impressed him “as a person sincerely bent on reforming himself” and had “a strong likelihood of not re-offending and of rehabilitating himself”.
His Honour went on to consider “the extent of any questions of accumulation or concurrence as well as totality, and particularly having regard to the consideration of that matter by Judge Armitage in his sentence of the co-offender Martin”. (ROS at 31)
The Judge said (ROS at 31):
“There is a difference as I have said in Martin’s role, although of a relatively minor nature, but in particular in relation to the finding of rehabilitation and to some extent there needs to be a consideration of those matter against the principles of totality.
Here the two counts represent two kinds of offences committed on separate occasions with different victims and premises and separated in times. There are different kinds of criminality involved in each of the offences.
Normal principles are that the discrete features of the individual offences or criminality of different orders requires at least partial accumulation of the sentences and that is referred to in the decisions of Harrigan v R [2005] NSWCCA 449; R v VAA [2006] NSWCCA 44; Cahyadi v R (2007) 168 A Crim R 41 at [27].
The specific issue is there, whether the period of six months partial accumulation meets that consideration.
In my view it does not. I need to consider this matter afresh in relation to these particular offenders but also have regard to the appropriate period of accumulation bearing in mind my assessments of these particular offences and the earlier matters concerning parity which I have set out earlier and which I will not repeat.
The Crown submits that there appears to have been some confusion at the sentencing proceedings before Judge Armitage, at least as far as the then Crown was concerned, as to whether the six month partial accumulation period was the relevant period.
It is not for me to say whether there was or was not that confusion. I need to focus on what is an appropriate period of partial accumulation, and here, having regard to the different kinds of offences, the different victims, the different premises, and the nature of the criminality involved, there should be a greater degree of partial accumulation than the six months referred to earlier and in my view the period of accumulation should be twelve months.”
The applicant complained that his Honour’s reference to “different victims” in the passage at [42] above indicated error as there were no victims in the conspiracy. It seems to me that when the Judge made this remark he was doing no more than acknowledging the actual victims of the criminality in count 1 and the three Form 1 matters and the intended victims of the conspiracy. The Judge was plainly aware that the agreed crime had not been carried out.
It is evident from all of the Judge’s sentencing remarks that he approached his sentencing task by fixing an appropriate sentence for each offence and then considered questions of cumulation or concurrence as well as totality: Pearce v The Queen (1998) 194 CLR 610. His Honour was aware of the recent statements of the law as to accumulation or concurrence and cited relevant decisions of this Court including Cahyadi v R. His Honour was mindful of the principle of parity and expressly referred to Postiglione v The Queen (1997) 189 CLR 295.
The parity principle is “an aspect of equal justice”: Postiglione v The Queen at 301. As was pointed out by Dawson and Gaudron JJ “like should be treated alike, but that, if there are relevant differences, due allowance should be made for them”.
Although it is recognised that the parity principle is of wide application and is not to be applied in a technical or pedantic way: R v Kerr [2003] NSWCCA 234, the different charging of offenders may present difficulties for complaints of marked disparity which are said to give rise to a justifiable sense of grievance: see R v Formosa [2005] NSWCCA 363. The considerations which apply to sentencing an offender where an offence is included on a Form 1 are not the same as when that offence is charged discretely. The focus of the sentencing court is the primary offence and the Form 1 matter is taken into account by greater weight being given to personal deterrence and to retribution. The extent to which greater weight may be given to these considerations is limited by the maximum penalty for the primary offence and the principle of totality: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ at [39]-[42].
The conspiracy (count 2) was a primary offence when the Judge came to sentence Bell. At Bell’s request, three matters were placed on a Form 1 including the Guildford break and enter when the sentence for the Mt Pritchard robbery (count 1) was considered. The other two matters on the Form 1 (s 33B(2) of the Crimes Act) each of which concerned the firing of a rifle shot by Quarta were serious matters in their own right. Martin was not charged with the s 33B(2) of the Crimes Act offences nor were they included on a Form 1. The conspiracy was not charged as a primary offence but was included on a Form 1 to be taken into account when Martin was sentenced for the Mt Pritchard robbery (count 1). No other Form 1 matters were taken into account. The Guildford break and enter (count 2) was charged as a primary offence.
Dissimilarity in the charging of Bell and Martin necessarily gave rise to different considerations which included the extent of accumulation of the primary offences and the totality principle. The applicant’s argument that the extent of the partial accumulation should be determined by Martin’s sentence is in my opinion not to be accepted. All things were not equal between the applicant and Martin. In any event they had different prospects of rehabilitation and the Judge had found that Bell’s criminal offending indicated “a continuing attitude of disobedience” and greater weight was to be given to retribution, deterrence and protection of society (ROS at 15-16). Martin was to serve his sentence in protective custody and special circumstances were found justifying an adjustment in the statutory relationship between the non-parole period and balance of term. No finding of special circumstances was made in the applicant’s case nor was he required to serve his sentence in protection.
The Judge was not obliged to partially accumulate the sentence for count 2 by six months. The extent of accumulation was a discretionary matter for the Judge which his Honour applied according to well established principle: R v Hammoud (2000) 118 A Crim R 66. He was entitled to consider when applying the principle of totality that the separate criminality in the offending required a partial accumulation of sentence of 12 months.
As a consequence of partial accumulation of the individual sentences, the overall non-parole period was 85.7 per cent of the overall sentence or in the language of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 the balance of the term of the overall sentence was one sixth of the overall non-parole period. It is apparent from the Judge’s comprehensive consideration of his sentencing task that he deliberately did not preserve the statutory ratio of 75 per cent to ensure for a period of partial accumulation of 12 months.
When special circumstances are not found, there is no obligation upon a sentencing judge to fix a balance of term of the sentence which is not less than one third of the non-parole period: R v Gill [2002] NSWCCA 93; Trindall v The Queen (2006) 171 A Crim R 87; R v So [2004] NSWCCA 362. This was not a case, in my opinion, where the Judge overlooked the “statutory” proportion between the balance of term and the non-parole period.
During oral argument Ms Nash raised the issue of parity with the sentence imposed on David L’Estrange (L’Estrange). L’Estrange had pleaded not guilty to the conspiracy and the Guildford break and enter and was found guilty of each count by the jury. Woods DCJ sentenced L’Estrange on 27 March 2009 as follows:
Count 1 (the conspiracy) Imprisonment for a fixed term to commence on 27 May 2007 and expire on 26 May 2009.
Count 2 (the Guildford
break and enter) Imprisonment with a non-parole
period of 4 years to commence on 27 November 2007 and expire on 26 November 2011 with a balance of term of 2 years to expire on 26 November 2013.
The overall effective sentence imposed on L’Estrange was 6 years 6 months with a non-parole period of 4 years 6 months.
The degree of partial accumulation of the individual sentences was 6 months. L’Estrange, however, was not charged with the Mt Pritchard robbery nor with the offences contrary to s 33B(2) which were included on the Form 1. The extent of Bell’s criminality was more than that of L’Estrange. Moreover, L’Estrange’s role in the offending for which he was charged was described by Woods DCJ as “that of a willing and violent follower of those who had organised both these enterprises”, whereas Bell was characterised as an initiator: see [68] below.As in the case of Martin all things were not equal and the difference in the sentences imposed upon Bell and L’Estrange does not give rise to a justifiable sense of grievance.
I am not persuaded that the Judge erred in partially accumulating the sentence for the conspiracy by 12 months on the sentence for the Mt Pritchard robbery. This ground has not been established.
Ground 2:
(a)The learned Sentencing Judge erred in failing to find special circumstances on the basis of the applicant’s medical condition;
(b)The learned Sentencing Judge erred in failing to find that the applicant’s medical condition was a mitigating factor.
Ms Nash submitted that the Judge erred in failing to find Bell’s medical condition to be either special circumstances or a mitigating factor. It was contended that Bell’s medical condition was sufficiently special to justify a variation in the statutory ratio between the non-parole period and the head sentence, particularly when there was evidence of imprisonment adding a degree of complexity to Bell’s health. Ms Nash argued that Bell’s medical condition rendered the period of imprisonment more burdensome for him than for the average prisoner.
Bell’s medical condition
There was undisputed medical evidence before the Judge that Bell in April 2008 whilst in custody prior to being sentenced had undergone surgery at the Prince of Wales Hospital for the removal of a cancerous lesion in the left kidney. Dr Ehsman, the urological surgeon, felt confident that the operation had totally excised the cancer and there was no evidence that the cancer had spread. Dr Ehsman opined that Bell had a 1-2 per cent chance of developing another cancer of the kidney in his life time. Bell’s right kidney was, however, atrophic and non-functional. Post-operative testing of Bell’s left kidney demonstrated moderate renal failure with approximately 40 per cent of renal function remaining. Dr Gracey, the consultant nephrologist, opined:
“Because of his solitary functioning left kidney, Mr Bell is at high risk of acute renal failure from any catastrophic injury or other significant pathology to the left side (such as a stab wound). Loss of function of the left kidney would mean dialysis dependence in a short space of time.”
Bell’s other medical history includes hepatitis C the treatment for which is more complicated in the presence of renal failure. Bell’s multiple medical co-morbidities required ongoing monitoring and intervention through specialised clinics. Dr Gracey stated:
“Mr Bell’s status as an inmate adds a degree of complexity to the process of follow up and coordination of his care.
Mr Bell’s renal failure and solitary kidney place him at risk of significant future morbidity. This requires careful monitoring with intervention to attempt to slow the progression of his renal failure, as well as treat any complications. Generally, such care is undertaken in a specialised nephrology clinic (such as at Prince of Wales). It is possible that, despite any intervention, Mr Bell may progress to develop dialysis-dependent End-State Renal Failure. We would need to prepare for dialysis in a timely fashion, if this were the case. Monitoring, follow up, arranging appointments and arranging investigations are all made more difficult given his status as an inmate of Long Bay Jail. We have several patients on dialysis from Long Bay Jail at our centre.
Cigarette smoking is associated with more rapid progression of renal failure and would place Mr Bell at higher long-term risk of progressive disease.
Another consideration is the importance of avoiding trauma to the left kidney. Any catastrophic injury to that side would almost certainly mean he would require dialysis.”
An affidavit of the applicant’s solicitor was tendered in this Court. Bell has informed his solicitor that he continues to be monitored by the Kidney Care Centre and Urology Clinic and because of his requirement for ongoing treatment and monitoring had been told that he is to remain in the hospital area of Long Bay Correctional Centre. Bell had also been informed by medical staff that there is a high risk of renal failure and because of this he has to be extremely careful when interacting with other inmates. His prison classification was C1 but because of the need for ongoing monitoring had to stay in the hospital area of Long Bay Correctional Centre which was an “A” or maximum security classification gaol.
In oral submissions, Ms Nash said that whilst there was no new development in the applicant’s medical condition, the material in the affidavit re-emphasised the dangers to his health. Ms Nash submitted that there is always a danger in a maximum security prison of being stabbed by other inmates. Furthermore, Bell’s medical condition forced him to remain at Long Bay Correctional Centre which meant family visits are curtailed because of the maximum security classification.
The medical evidence established that Bell had a cancerous lesion in the left kidney surgically removed. Whilst there is a small chance that the cancer will re-emerge, he remains at risk of re-occurrence. Only 40 per cent of renal function of the left kidney remains. The left kidney is his sole functioning kidney. Bell is at high risk of acute renal failure from any significant injury to the left side (such as a stab wound). Loss of function of the left kidney would mean dependence on dialysis. Bell has a history of several traumatic injuries (stab wounds). The treatment of Bell’s hepatitis C is made more difficult in the presence of renal failure.
There was no evidence before the Judge that Corrections Health could not adequately care for Bell’s medical condition other than in the case of acute renal failure.
Submissions had been made to the Judge that Bell’s sentence should be mitigated because of the applicant’s ongoing medical condition as imprisonment would be a greater burden upon him. The Judge was also urged to find special circumstances for the same reason.
The Judge recognised that the applicant’s medical condition was a factor which impacted upon his sentencing task. During his sentencing remarks the Judge referred to the medical evidence and to the applicant’s submissions. His Honour said (ROS at 17):
“Ill health will be a factor tending to mitigate punishment only when it appears that the imprisonment will be a greater burden to the offender by reason of his state of health or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health, the principle is set out in R v Smith (1987) 27 A Crim R 315.
Here there is evidence that the offender, Bell, has the problems and issues I have outlined above. It is the responsibility of the prison authorities to ensure that the prisoner is not subject to undue hardship as established by R v Zappalla NSWCCA (1993).
After some consideration of the medical reports and the actuality of what Bell is suffering from, and the extent of the treatment being afforded to him, I do not regard that as a mitigating factor for Bell let alone for the other offenders.”
In those sentencing remarks, his Honour cited R v Smith in which King CJ authoritatively considered the relevant principles whereby the health of an offender is properly taken into account on sentence. King CJ said at 317:
“The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.” See also Bailey v DPP (1988) 62 ALJR 319, R v Vachalec (1981) 1 NSWLR 351, R v Badanjak [2004] NSWCCA 395.
In R v Badanjak Wood CJ at CL (with whom McClellan AJA and Smart AJ agreed) considered at [11] that it is only in a relatively rare case that the Smith principle is applicable.
It appears from his Honour’s remarks quoted at [64] above that he considered that the applicant’s state of health neither provided a greater burden for the applicant whilst in custody nor were the prison authorities unable to adequately manage it.
During his consideration of the roles of Bell, Jelisavac, Quarta and Martin in the offences, the Judge observed that Bell’s involvement appeared to have been the “critical instigating factor” resulting directly from the information he had received about the delivery of the money to the hotel in the Mt Pritchard robbery, the amount of the money he knew the heroin dealer would have at Canley Vale in the conspiracy and his former employer would have had at Guildford (the Guildford break and enter). His Honour found that Bell was the person who had the “main initiating role” in the selection of the other offenders and to an extent in the planning. The Judge said (ROS at 19):
“I have given considerable thought to Mr Bell’s role as on one view as I say, he might be regarded as being the initiator and recruiter of the others. He was an older person with obviously some sources of criminal intelligence on the premises he seems to have been instrumental in selecting.
… I was at one stage minded to consider that he deserved a higher sentence given that role, but I consider that, balancing all the matters out, that I would not approach the matter by way of a different sentence given the medical condition that he has and the possibility of a difficult time in prison. To some extent that is an artificial running together of the two matters but I think that the overall result needs to be the same given my findings in that regard.
…
Subject to the balancing factors, as I say I have thought about at some length in relation to Bell, I find in relation to both matters that the offenders had an equal though different role in the respective joint criminal enterprise.” (italics added).
These remarks reveal that notwithstanding what was said by the Judge in the passage quoted at [64] above, the Judge has mitigated the sentence that could otherwise have been imposed on Bell because of his ill health and the hardship he may experience in prison. If Bell had been sentenced as being at a higher role in the joint criminal enterprise, I have no doubt that his sentence would have been significantly longer than that imposed.
When considering special circumstances, the Judge said (ROS at 29):
“Firstly, that his medical condition warranted a finding of special circumstances given that he has to have repeated medical examinations and treatment relating to his medical condition and the risks of further kidney complications.
This is a matter to which I have given some considerable thought. It is clear that there may be dangers to Mr Bell from his position as an inmate, particularly if he was involved in any further acts of violence which might be inferred he was involved in earlier in his period of incarceration on other matters. However, the circumstances of his incarceration and continuing care are very much matters for the Corrective Services department. He has a position in the prison library and, if his counsel’s submissions from the bar table are accepted as the inaccuracy of his correctional record, subject to the matters raised this morning, and the offences while in gaol in earlier years are irrelevant, given that they occurred prior to this sentence, then there appears to be no recent recurrence of the earlier acts of violence which marked his earlier incarceration.
I see nothing in his record or the material tendered on his behalf which would warrant a finding of special circumstances sufficient to justify a reduction in the normal statutory ratio by which the non-parole period should bear to the head sentence.”
From those remarks, it appears that the Judge determined that whilst there may be dangers to Bell from his position as an inmate, the evidence did not demonstrate that there was a serious risk of further violence to Bell. Although the realities of prison life are not to be ignored when considering the exercise of the sentencing discretion: R v Miranda (2002) 128 A Crim R 362 at 367, it seems to me to establish a serious risk of further violence there must be more than mere reliance on the assertion of the danger of being stabbed by other inmates whilst in a maximum security prison. Bell did not give evidence. The Judge considered the evidence of the prior stabbings (such as it was) and Bell’s custodial conditions. His Honour was entitled to reach the conclusion that he did upon a consideration of the material before him. The affidavit of the applicant’s solicitor discloses that Bell is required to stay in the hospital area of the Long Bay Correctional Centre. There is nothing which suggests that Bell is at a serious risk of being stabbed or otherwise assaulted because of the conditions of his present incarceration.
In my opinion, by failing to find special circumstances, the Judge did not err in the exercise of his discretion.
His Honour in any event had expressly taken into account Bell’s ill health and the possibility of a difficult time in prison in fixing the head sentence. In R v Fidow [2004] NSWCCA 172, Spigelman CJ observed at [18]:
“’Double counting’ for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period must be avoided… Almost all matter capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing Judges should ensure that double counting does not occur.”
A finding of special circumstances founded on Bell’s medical condition would in my opinion have involved erroneous double counting.
The Judge did not fail to find that the applicant’s medical condition was a mitigating factor. The Judge did not err in failing to find special circumstances on the basis of the applicant’s medical condition.
Ground 2 has not been established.
Ground 3: The sentence was manifestly excessive.
Before considering this ground it is necessary to relate that Ms Nash was permitted in oral submissions to informally raise as a ground of appeal a complaint that the Judge erred by confining the extent of the utilitarian discount for the pleas of guilty to 10 per cent. Ms Nash argued that the discount could have been as much as 15 per cent.
Bell pleaded guilty on the first day of his trial. The Judge observed that all of the offenders (Bell, Jelisavac and Quarta) had maintained their pleas of not guilty at committal and the Crown was ready to proceed with their trial. His Honour was informed by the Crown Prosecutor that all the victims had been contacted and were available to give evidence. In my opinion, his Honour’s assessment that the utilitarian value of the pleas was limited and the discount should be 10 per cent for each offender was appropriate. The utilitarian value of the pleas had been significantly diminished and the Judge did not err in the application of the discount.
The complaint in ground 3 that Bell’s sentence was manifestly excessive, in my view, has no merit. All of the offences which were taken into account by the Judge in sentencing Bell were offences of the utmost gravity which were committed whilst Bell was subject to conditional liberty. Anything less than a non-parole period of 6 years would not have appropriately reflected the objective gravity of Bell’s criminality and no other sentence was warranted: s 6(3) of the Criminal Appeal Act 1912.
This ground of appeal fails.
I propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Jelisavac’s Appeal
Ground 1: The Sentencing Judge erred in his consideration of the evidence relating to the applicant’s contrition and remorse, and steps taken by him whilst in custody, when determining that the applicant has no real prospects of rehabilitation.
Mr Watts, counsel for Jelisavac, submitted that the Judge paid no real regard to the considerable amount of evidence suggesting that the applicant was genuine in his remorse and had changed significantly in the period of his incarceration from the date of his arrest on 27 March 2006 to the commencement of the proceedings on sentence on 7 August 2008. Mr Watts contended that those changes were such that to find no realistic prospect of rehabilitation was to fall into error. The material placed before the Judge by the applicant which was of relevance to his Honour’s consideration of rehabilitation has been summarised at [24-27] above.
During his sentencing remarks, the Judge referred to the evidence relevant to remorse and rehabilitation on a number of occasions. When considering the testimony of Jane Kim, his Honour remarked (ROS at 8):
“It is clear that Miss Kim had had little impact on Mr Jelisavac and those aspects of his associated criminal behaviour including larceny and various crimes of dishonesty and violence, his prior imprisonment as well as his associates and drug usage. Given that history, I do not regard her as being someone who could with confidence assist in his rehabilitation to any significant extent.”
His Honour referred to Ms Duffy’s report and to the report of the drug and alcohol counsellor. The Judge observed (ROS at 11):
“Jelisavac participated in counselling, alcohol and drug counselling and found permanent employment on his release. Previously he had limited employment or employability and supported himself through dishonesty. None of those actions taken under the auspices of the various authorities apparently assisted him in any effective rehabilitation on any level. He reverted to his old associates to drug usage. He also has hepatitis C.
These matters are confirmed in the report of Dr Anne Duffy who also referred to his dependency characteristics and the need for long term, lengthy and close supervision.
The Alcohol and Drug counsellor’s report refers to his supportive family and the extent of his counselling and other programmes while he has been incarcerated on this occasion and before.”
When referring to all the co-offenders (Bell, Jelisavac and Quarta), his Honour said (ROS at 11):
“All have been offered substantial opportunities and alternative sentencing options in the past. All have participated in counselling programmes while in prison of varying lengths. All have reverted to contact with their former associates.
The Judge went on to consider the references which had been tendered for Jelisavac, Bell and Quarta and said (ROS 11-12):
“…there is nothing in that or the other material tendered which can overcome the combined effect of the offenders’ respective track records exemplified by their prior police and custodial records and their reversion to prior associates, frequently drug usage and associated lifestyle and then the crimes which have been brought about the charges.
Despite the pleas made on their behalf by their counsel and particularly by those who are either dependent on them or associated with them, I cannot find that there are any realistic prospects for rehabilitation for them or any of them.”
When considering the letters written to him by each of the co-offenders (Bell, Jelisavac and Quarta) the Judge remarked (ROS 25-26):
“Absent the offenders’ preparedness to be cross-examined, I put very little weight on their respective letters expressing their remorse and contrition, particularly in circumstances where their pleas of guilty were entered on the first day of their trial in the face of a very strong Crown case.
I do accept them as being genuine in their letters but I have real concerns to the point of view of despair that they will be able to carry out their expressed intention on the evidence before me.”
Earlier in his sentencing remarks, the Judge referred to R v Jelisavac (ROS at 15):
“He again has had a number of opportunities extended to him which has not … been recognised by him. When he had had the benefit of lesser matters being imposed on him as a result of appeals to the Court of Criminal Appeal they do not seem to have had the slightest impact on him.
In that regard, what was tendered was a decision of New South Wales Court of Criminal Appeal R v Jelisavac…, whereby he was successful in obtaining a lesser fixed term of imprisonment. By virtue of the findings that the sentencing judge in that instance did not give sufficient discount to the contrition and remorse expressed by the offender, and that is evident in para 10 of the remarks of Adams J.
It is against that background and the background of what has happened since that time that the offender asks me to take into account the remorse and contrition which he expresses. Included in that obviously is his background set out in his record.”
In Jelisavac (see [31] above), there was evidence before the sentencing Judge that since the applicant’s incarceration Jelisavac had stopped taking drugs without medical assistance, had undertaken counselling and “engaged enthusiastically” in a number of rehabilitation courses. A pre-sentence report was tendered which indicated that the applicant’s prospects of rehabilitation were good. Adams J considered at [10] that the sentencing judge erred “in his consideration of the impact of the obvious contrition and remorse demonstrated by the applicant.” As a result, the non-parole period of Jelisavac’s sentence was reduced by 1 year. The present offences were committed whilst Jelisavac was on parole.
In the present case, the Judge comprehensively considered the evidence of remorse and rehabilitation. He was entitled to consider that evidence with a deal of circumspection. Repeat offenders of serious crime cannot expect that sentencing judges will accept without reservation expressions of regret for offending and steps taken in custody towards rehabilitation whilst awaiting sentence. This will particularly be the case where leniency has been extended by courts on prior occasions on the promise of rehabilitation and crimes of considerable gravity continue to be committed. Notwithstanding the importance of the promotion of the rehabilitation of an offender in the exercise of sentencing discretion, a sentencing judge will be entitled to conclude that any prospects of rehabilitation are unrealistic.
His Honour carefully evaluated the applicant’s subjective case and history of re-offending. It was open, in my opinion, for the Judge, who had heard the evidence first hand, to conclude that Jelisavac has no real prospects of rehabilitation and no error has been demonstrated.
Ground 1 has not been established.
Ground 2: The sentencing Judge erred in not finding special circumstances, and in imposing a total sentence in which the parole period was inappropriate in all of the circumstances.
Mr Watts referred to the Probation and Parole report dated 29 July 2008 in which Mr Ryan opined that Jelisavac “will need to seek assistance when released to put relapse prevention strategies into place” and to the opinion of the psychologist, Ms Duffy, that the applicant following release would need “very lengthy close supervision from the Probation and Parole Service.” Mr Watts submitted that all of the material before the Judge required a parole period of more than 12 months and if the statutory ratio in s 44(2) of the Crimes (Sentencing Procedure) Act had been adopted by the Judge then the parole period would have been 18 months. It was contended that in all the circumstances special circumstances should have been found and the period on parole should have been longer than 18 months. If the statutory ratio had been set then the balance of term would have been 21 months.
The Judge concluded that there was nothing in Jelisavac’s record and the material tendered which warranted a finding of special circumstances. His Honour remarked (ROS at 30):
“I see nothing in his record which would justify any confidence in any finding that he would cooperate with the parole authorities.”
The Judge had concluded that Jelisavac had no reasonable prospects of rehabilitation. Jelisavac’s history of non-compliance with the Probation and Parole Service was disclosed in the pre-sentence reports and by his criminal record. It was open to the Judge to have little confidence in the applicant’s future co-operation with the parole authorities upon his release to parole. In failing to find special circumstances, the Judge did not err in the exercise of his discretion.
The impact of the partial accumulation of the individual sentences was that the proportion of the effective non-parole period (6 years) to the effective overall term of the sentence (7 years) was 85.7 per cent which was the same as the overall sentence imposed upon Bell. As has been discussed in Bell’s appeal at [50-51] the statutory ratio was deliberately not preserved by the Judge to ensure for a period of partial accumulation of 12 months and no error has been demonstrated.
Ground 2 has not been established.
Ground 3: The sentence imposed is excessive by virtue of the principle of parity.
This ground of appeal raises the issue of parity relative to the sentence imposed upon Martin. Mr Watts referred to the undiscounted starting points of Martin’s sentence for the Mt Pritchard robbery and the Guildford break and enter which Armitage DCJ considered to be 6 years whereas the undiscounted starting points of Jelisavac’s sentence for the Mt Pritchard robbery was 7 years 5 months (round figures) and the conspiracy was 4 years 5 months (round figures). Mr Watts pointed out that Martin had been on parole at the time he had committed the offences but had his sentences backdated to the day of his arrest (26 March 2006) whereas Jelisavac’s sentence was backdated to 11 August 2008. It appears that Martin had been released to parole on 30 November 2005 and as at the date of his arrest had until 30 July 2007 for that parole period to conclude.
During the sentence proceedings Mr Watts (who was Jelisavac’s counsel at first instance) made submissions to the Judge on parity of sentence which his Honour did not accept for the same reasons that the submissions on parity made for Bell were rejected.
Jelisavac was charged in the same way as Bell giving rise to the same considerations of dissimilarity in the charging of Martin which have been discussed at [45-48] above. Furthermore, Jelisavac and Martin had different prospects of rehabilitation and the Judge found that Jelisavac’s criminal offending indicated “a continuing attitude of disobedience” and greater weight was to be given to retribution, deterrence and protection of society (ROS at 15-16). Martin was to serve his sentence in protective custody and special circumstances were found justifying an adjustment in the statutory relationship between the non-parole period and balance of term. No finding of special circumstances was made in Jelisavac’s case nor was he required to serve his sentence in protective custody. Although Armitage DCJ did not expressly state why he backdated Martin’s sentence to the time of his arrest, Armitage DCJ had been impressed by Martin’s likelihood of not re-offending and of rehabilitating himself whilst the Judge determined that Jelisavac had no real prospects of rehabilitation. The backdating of a sentence is a matter of discretion and Jelisavac did not have the advantage of the findings made in favour of Martin. All things were not equal between Jelisavac and Martin. I am not persuaded that the difference in the sentences involves a marked disparity giving rise to a justifiable sense of grievance.
Ground 3 has not been established.
Ground 4: The commencement date of the sentence should have been earlier than that imposed.
Mr Watts contended that Jelisavac’s sentence should have been backdated to commence on the date of his arrest or if not on that date, then to a date which would have the effect of the sentence being partially concurrent with the balance of his parole. It was argued that Jelisavac was unduly punished for a second time by the finding that the offences were aggravated by being committed whilst on parole and by the revocation of parole and the subsequent accumulation of sentence.
The applicant had been released to parole on 1 February 2005 but was arrested on 26 March 2006 after the commission of the present offences. His parole was revoked by the parole authority and was due to expire on 1 February 2009. During the sentence proceedings the Judge was urged by Mr Watts to commence Jelisavac’s sentence on the day he went into custody. In rejecting this submission the Judge said (ROS at 32):
“The offender has what can only be described, and I have described earlier as an appalling record, both in terms of prior convictions as well as his correctional record. He has been given a series of benefits and privileges which he has abused both in terms of sentencing options, and in particular, parole periods. The conditional liberty he was on at the time of the offence is a privilege which he abused. It indicates an attitude to the law generally and the sentencing process in particular. The action taken by the parole authorities was for the earlier offences which are unrelated to the current offence. He was released to parole that he be of good behaviour, simply and comprehensively while he was on liberty. That was referred to by the Court of Criminal Appeal in R v Wallace [2007] NSWCCA 6. I do not see this sentence as constituting a crushing burden, rather it must be a method of bringing it home to him that if he is ever given another parole opportunity, he must not abuse it. To accede to the submission made would not, in my view, give proper recognition to the purposes of sentencing as are specified.”
His Honour, it appears, commenced Jelisavac’s sentence on 2 February 2009. As this was the day after the expiration of the applicant’s balance of parole, the Judge corrected the sentence on 22 August 2008. The sentence was then fixed to commence on 11 August 2008 which the Judge said “was to be served concurrently with the remainder of the revoked parole period.”
It was a matter for the Judge’s discretion to make the sentence wholly or partly cumulative upon the sentence being served by Jelisavac as a consequence of the revocation of parole: Callaghan v The Queen (2006) 160 A Crim R 145. The Judge during his sentencing remarks considered the principle of totality and had remarked that by wholly accumulating the sentence upon the parole period a “crushing burden” was not being imposed. The sentence which his Honour ultimately fixed was backdated to commence on 11 August 2008 and was partially accumulated by almost 6 months upon the sentence being served.
No error, in my view, has been demonstrated in the exercise by the Judge of his discretion. This ground of appeal has not been established.
In any event all of the offences which were taken into account by the Judge in sentencing Jelisavac were offences of the utmost gravity which were committed whilst Jelisavac was subject to conditional liberty. Anything less than a non-parole period of 6 years would not have appropriately reflected the objective gravity of Jelisavac’s criminality and no other sentence was warranted: s 6(3) of the Criminal Appeal Act.
I propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
HARRISON J: I agree with Price J.
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LAST UPDATED:
20 August 2009
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