Berryman v R

[2017] NSWCCA 297

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Berryman v R [2017] NSWCCA 297
Hearing dates:	4 August 2017
Decision date:	08 December 2017
Before:	Leeming JA, Bellew J, Lonergan J
Decision:	1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed by the District Court on 12 October 2016 and in lieu thereof sentence the Applicant for an aggregate sentence of 10 years commencing on 12 July 2015, with a non-parole period of 6 years. The applicant is eligible to apply to be released on parole on 11 July 2021.
Catchwords:	APPEALS - procedure - application for hearing before a court constituted by 5 judges - application based on recent divided decision of Court of Criminal Appeal - application made orally when appeal heard - point not taken at first instance - point not developed in written submissions - application refused CRIMINAL LAW - sentencing - manifest excess - aggregate sentence - Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A - whether indicative sentences manifestly excessive - whether notional accumulation led to manifestly excessive sentence - appeal allowed and offender resentenced
Legislation Cited:	Crimes Act 1900 (NSW), ss 61, 61M, 97, 111, 195 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 33, 53A Criminal Appeal Act 1912 (NSW), s 3
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Cahyadi v R [2007] NSWCCA 1 Clinch v R (1994) 72 A Crim R 301 Elsaj v R [2017] NSWCCA 124 JM v R [2014] NSWCCA 297 Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kerr v R [2016] NSWCCA 218 Krivosic v R [2017] NSWCCA 167 Linggo v R [2017] NSWCCA 67 McGeown v R [2014] NSWCCA 314; 247 A Crim R 206 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Obeid v R [2017] NSWCCA 221 PG v R [2017] NSWCCA 179 R v Holder; R v Johnston [1983] 3 NSWLR 245 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345 Xue v R [2017] NSWCCA 137
Category:	Principal judgment
Parties:	Craig Wiremu Berryman Crown
Representation:	Counsel: L Fernandez (Applicant) F Veltro (Crown)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2015/203802
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 12 October 2016 Before: Traill DCJ File Number(s): 2015/203802

Judgment

1. THE COURT: The applicant, Craig Wiremu Berryman, pleaded guilty at the Central Local Court on 8 March 2016 to two counts of indecent assault with a person under 16 years, one count of robbery armed with an offensive weapon, one count of aggravated entering a dwelling knowing people were there, one count of common assault and one count of destroy or damage property. He was sentenced by her Honour Judge Traill on 12 October 2016 to an aggregate sentence of 11 years and 3 months, with a non-parole period of 7 years and 4 months, backdated to reflect pre-sentence custody.

2. Those offences to which the applicant had pleaded guilty attracted the following maximum penalties:

1. Aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW): 10 years’ imprisonment with a standard non-parole period of eight years;

2. Robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act: 20 years’ imprisonment;

3. Aggravated enter dwelling with intent contrary to s 111(2) of the Crimes Act: 14 years’ imprisonment;

4. Common assault contrary to s 61 of the Crimes Act: two years’ imprisonment; and

5. Destroy or damage property contrary to s 195(1)(a) of the Crimes Act: five years’ imprisonment.

3. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour stated indicative head sentences of three years nine months for each indecent assault, three years for the offence of armed robbery, four years six months for the offence of enter with intent, nine months for the offence of common assault and nine months for the offence of destroy property. In respect of each indicative sentence her Honour indicated that she had separately taken into account a 25% discount for an early guilty plea. Her Honour also took into account, in accordance with s 33 of the Crimes (Sentencing Procedures) Act 1999 (NSW) on a “Form 1” an offence of enclosed land without lawful excuse in imposing sentence for robbery armed with an offensive weapon.

4. On 30 May 2017, having previously obtained an extension of time, the applicant sought leave to appeal against his sentence upon the sole ground that the sentence was manifestly excessive. However, at the outset of the hearing of the appeal, his counsel made an oral application for the matter to be adjourned to a court constituted by five judges. Shortly before 11pm on the previous evening, counsel had forwarded an email drawing the Court’s attention to PG v R [2017] NSWCCA 179, and in particular, the dissenting view of Basten JA to the effect that the utilitarian discount for a plea of guilty was required to be applied to the sentence in fact imposed – the aggregate sentence – rather than to the indicative sentences. It was submitted that the matter was an important question of principle of wide applicability, which directly arose in the present case.

5. The Court heard the entirety of counsel’s submissions in support of the application for the appeal to be heard by a court constituted by five judges and the Crown’s opposition in response and indicated that it would reserve on the application, and, if it acceded to it, the appeal would continue before a court so constituted. The Court then heard the substance of the appeal.

Background

6. The applicant was sentenced in accordance with detailed Agreed Facts, supplemented by short evidence in chief from the applicant. There was no issue taken on appeal with any aspect of her Honour’s summary of the factual background, from which the following has been drawn.

7. The applicant arrived in New South Wales on 8 July 2015 and was living with relatives in suburban Sydney. On 11 July 2015 the applicant attended a funeral of his nephew. The applicant consumed a large amount of alcohol, and also a drug, (probably a Xanax), before returning for the night to his relations’ house.

8. The complainant of the indecent assaults, then aged 13, lived with her parents and her two siblings. The complainant and the applicant were blood relatives. On the evening of 11/12 July 2015, the complainant went to sleep, shutting the door of her bedroom but not locking it. At about 2am, the applicant entered her bedroom whilst she was asleep, laid down on the bed next to her and got under a blanket. The complainant awoke to the applicant placing his hands under her sweatpants and touching her vagina over her underwear with his fingers and then grabbing her breasts with his hand under her sweatshirt but over her sports bra.

9. The complainant pushed the applicant away from her and repeatedly told him to “get out”. The applicant asked her, “Are you going to tell on me?” The complainant again told him to “get out”. The applicant walked out of the bedroom and the complainant locked the bedroom door behind him.

10. The second incident took place at about 1.30pm on 12 July (the same day as the indecent assaults). The applicant entered a convenience store and approached the front counter of the store, which was being attended by Ms Jenny Lim. He had wrapped a black jumper with two eye holes cut out over his face, and was holding a butter knife in his hand.

11. The applicant walked around the counter and stood about a metre away from Ms Lim, pointing the butter knife towards her and said, “Give me the money or I will hurt you.” The applicant then pulled out a second knife which was, according to Ms Lim, “very sharp and scarier”. The knife was approximately 30 centimetres in length. Ms Lim then opened the till as she said she was scared the applicant would harm her. Ms Lim took out the $20 and $5 notes from the till. The applicant said, “What about the $10?” Ms Lim then also took out the $10 notes.

12. The applicant held out a plastic bag and told Ms Lim to put the money in it, which she did. Ms Lim handed the applicant between $200 and $300 cash. The applicant asked Ms Lim for some cigarettes. Ms Lim opened the cabinet behind her and the applicant looked at the Winfield cigarettes and said, “Oh, they are my favourite”, and then grabbed a number of packets. He placed the packets inside his plastic bag. The applicant said, “I'm sorry, this is the first time I’ve done this”, and put his arms around Ms Lim and hugged her. The applicant walked to the other side of the counter and said to Ms Lim, “Give me two lighters.” Ms Lim put two lighters onto the counter, which the applicant took, and then walked out of the store. He turned left as he walked out of the store and Ms Lim saw him take his black jumper off his face.

13. The third incident took place about 30 minutes later, and relates to the offences of aggravated enter dwelling knowing people were there, the common assault and the damage property offence. At 2pm, the applicant entered nearby residential premises.

14. The premises at the time were occupied by Mr Mohamed Malik, Mr Cornelis De Kroom, his wife Ms Olivia De Kroom and their two children aged eight and one. At about 2pm Mr Malik approached the door to his bedroom and noticed it was closed. Mr De Kroom was behind Mr Malik in the hallway. Mr Malik opened the door and saw the applicant inside the room walking towards him. The applicant at the time was wearing Mr Malik’s blue jumper. Mr Malik asked the applicant who he was.

15. The applicant stated he had a knife and was going to get it out. The applicant began feeling the front of his pockets of his pants, looking for his knife. Mr De Kroom, fearing for the safety of his wife and children, told the applicant to get out. The applicant did not move, so Mr De Kroom grabbed the applicant by the shirt and pulled him out into the hallway. The front door was wide open but the applicant would not leave. Mr Malik and Mr De Kroom continued to push the applicant towards the front door. Mr Malik told Olivia De Kroom to call the police, which she did.

16. The applicant started to throw punches, several of which connected with Mr De Kroom’s face and upper body. One of the punches grazed his glasses and knocked them off his face. Mr De Kroom managed to get the applicant out of the front door and closed the front door. The applicant then tried to push the front door open to come back into the house. Mr Malik locked the door from the inside, and Mr De Kroom ran out the back to his wife and told her to lock the door and stay inside. Ms De Kroom had her one year old daughter with her at the time.

17. The applicant took a broom and began smashing the frosted glass panels of the front door using the end of the broom. The applicant was yelling out, “I want the black bag.” Mr Malik said, “I will get you whatever you need”, but could not locate the black bag. The applicant broke the frosted glass next to the door handle and reached in to try and twist the handle. He then began to smash the other glass panels. Mr Malik said, “Do you mean the suitcase?”. The applicant replied, “Yes”. Mr Malik, who did not want to open the door, said, “I am not opening the door for you, I am sorry.” The applicant asked Mr Malik to give him $200 and not to worry about the bag. The applicant then asked Mr Malik to give him the cigarettes. Mr Malik saw there was a box of cigarettes on the floor of the hallway. The applicant continued breaking the glass panels with the broom.

18. Mr De Kroom returned to join Mr Malik. When Mr De Kroom arrived at the front door the broom handle came through the front door and struck him on the left side of the face causing a cut to his nose. Mr Malik managed to get hold of the broom from his end. Mr Malik and Mr De Kroom both managed to pull the broom from their side. Mr De Kroom, as a result, cut his finger. The applicant then grabbed a piece of timber about a metre long and began smashing it against the door, which caused the door to move.

19. Mr Malik then heard the police sirens and said, “The police are coming. Leave us alone. Just go. Just go.” The applicant ran off.

20. Police arrived soon after and began securing a perimeter in order to locate the applicant. At about 3pm they found him walking from the rear yard of another nearby premises. The owner of the premises had not given the applicant permission to be there. This last incident was the offence considered on the Form 1.

The Sentencing Judgment

21. Her Honour first addressed the objective seriousness of each offence as follows:

1. In relation to the two indecent assaults: in the mid-range for offences of that type, having regard to the nature of the conduct, the vulnerability of the complainant, the family relationship between the applicant and the complainant, and the significant breach of trust involved in committing the offences.

2. In relation to the offence of robbery with an offensive weapon: just below the mid-range for that type of offending, having regard to the threat of violence, the use of a weapon and elements of premeditation, but also to the applicant’s apology at the scene and the fact that the property stolen was not of significant value.

3. In relation to the offence of entry with intent, as well as the destroy and damage property and common assault offences: below the mid-range for offences of those types, having regard to the violence, the bizarre nature of the offending and the fear which the offending would have caused the occupants of the house to feel.

22. Next, her Honour considered the applicant’s subjective background. Once again, no issue was taken with her Honour’s summary.

23. The applicant was born in New Zealand in 1973 as the youngest of ten siblings. His father died when he was 12 and his mother died when he was 14. His parents’ deaths affected the applicant greatly, and at one stage he contemplated suicide. Following the death of his parents, he did not have a stable home life, was passed between relatives and shifted between schools, and over a two year period in which he lived with his aunt was sexually abused approximately four to five times. The applicant left school at age 17, and prior to the commission of the offences had been working in road maintenance, a job which he had maintained for 13 years.

24. In adulthood, the applicant had been close to his family and had on many occasions looked after the complainant and her siblings. Since the commission of the offences, which took place after the funeral of a family member, the applicant had been estranged from his family, with the exception of one of his sisters who contacts him occasionally. He had had two serious relationships, the first of which produced a son who was 13 years old at the time of sentencing, and the second of which produced a daughter who was three years old at the time of sentencing. The applicant had been cut off from contact with his son prior to his offending. Since the offending he has also been cut off from his daughter.

25. Her Honour also discussed the applicant’s history of drug and alcohol use, which she described as being out of control at times. Her Honour noted that he had stopped using drugs when he began working in road maintenance and had not drunk for three years before the offending. However, on the evening before committing the offences, the applicant drank “a huge amount of vodka and became heavily intoxicated” and also consumed a tablet which he thought was a Xanax.

26. Next, her Honour referred to the applicant’s remorse, which she accepted as genuine. Her Honour said that the applicant seemed to be aware of the complainant’s trauma, and was sorry for, and embarrassed and ashamed of, all of his offending. Her Honour noted the applicant’s stated desire to access individual counselling in relation to his own offending, as well as in relation to his history of sexual abuse, the deaths of his parents and his alcohol use.

27. Her Honour stated that she had determined to impose an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour addressed accumulation and totality as follows:

“In sentencing the offender I have taken into account the totality principle. In relation to accumulating the sentences I have had regard to the decision of Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41. As the offences involve distinct violent and protracted conduct with separate and unrelated victims there will be a degree of accumulation between each of the sentences.”

28. Her Honour determined that, having regard to the need for general deterrence and protection of the community, “only a lengthy period of imprisonment is appropriate.” Her Honour imposed an aggregate sentence of 11 years three months with a non-parole period of seven years four months, backdated to 12 July 2015 to give effect to the time the applicant had served in custody prior to sentence. As noted above, her Honour gave indicative sentences for each offence and stated that in respect of each indicative sentence a 25% discount had been taken into account.

The application for a five-judge bench

29. The application should be refused. There is a preponderance of authority in support of the approach expressly taken by the sentencing judge, which was to apply the discount to the indicative sentences. That the law is as such is not merely established by the decision – albeit by majority – of this Court in PG v R. The position accords with what has been said in a number of other cases, including in Elsaj v R [2017] NSWCCA 124 at [56] by Hoeben CJ at CL, Bathurst CJ and McCallum J agreeing:

“Section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that discounts for a guilty plea are to be applied to the indicative sentences, not the aggregate sentence. To the extent that there is any doubt on that issue, it has been resolved by such cases as R v Nykolyn [2012] NSWCCA 219, Subramaniam v R [2013] NSWCCA 159, JM v R [2014] NSWCCA 297 and R v Cahill [2015] NSWCCA 53.”

30. True it is that Basten JA’s judgment in PG v R draws attention to the way in which that conclusion has been reached and to the textual arguments in support of a different conclusion. The force of his Honour’s reasons may be accepted. However, it is to be noted that the majority of the Court in PG v R (constituted by Button J and N Adams J) observed at [76]:

“We accept that no previous decision of this Court has expressly considered how it is that ss 22 and 53A(2)(b) of the Act are to be read together. Despite this, all of the decisions of this Court since JM v R are to the effect that a discount must be applied to the starting point of each indicative sentence and that there should be no explicit discount applied to the aggregate sentence. We believe that many judges of this Court have concurred in that analysis, and no doubt many hundreds of aggregate sentences have been imposed in accordance with it. We feel bound by that line of authority unless we consider those decisions to be ‘plainly wrong’ (adopting the test posited by Heydon J in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 490-491 [84]-[85] and applied by this Court in Hampton v R [2014] NSWCCA 131 at [32]).”

31. Their Honours thereafter gave reasons, which with respect are persuasive, why the construction which has been applied on countless occasions is not “plainly wrong”.

32. There are other circumstances which contribute to the conclusion that the matter should not be adjourned to an expanded bench.

1. First, this is not a point that was taken before the primary judge (in light of the authorities binding her Honour, the submission could only have been formal).

2. Secondly, it is not a point that arises on the existing notice of appeal, where the sole ground is that the sentence is manifestly excessive.

1. Thirdly, it is a point that was raised less than 12 hours before the hearing of the appeal, and was undeveloped by any written or oral submissions (in fairness, it should be said that counsel advised, candidly, that he only came upon the decision very recently, and it is indeed a very recent decision, delivered a week before this appeal was heard). It is important to the efficient operation of the Court that any such application be made as early as possible, as was noted in Linggo v R [2017] NSWCCA 67 at [41]. Ultimately, the composition of this Court is a matter for the Chief Justice: Criminal Appeal Act 1912 (NSW), s 3(1).

33. Those considerations make this particular appeal singularly inappropriate as the vehicle for consideration of the point by a court constituted by five judges, if indeed that is to occur at some stage. (In reaching that conclusion in this appeal, we should not be taken to be implying that arguing such a course might in some other case be either desirable or appropriate.)

34. Mr Fernandez, who appeared for the applicant in this Court but not at first instance, constructively proceeded on the basis that this Court would follow PG v R if this application were refused, and that in any event the point was outside the notice of appeal. Accordingly, it is necessary now to turn to the ways in which it was said that the sentence was manifestly excessive.

Manifest excess

35. The principles to be applied in determining whether a sentence is manifestly excessive were recently summarised by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R [2017] NSWCCA 221 at [443], and are not in doubt. They include:

1. Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

2. It is not to the point that this Court might have exercised the sentencing discretion differently.

3. There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

4. It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

36. Counsel for the applicant observed that “a sentence which is unreasonable or plainly unjust for no reason other than that is manifestly too long is a sentence which is erroneous in point of principle, because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].” He also pointed to Bathurst CJ’s discussion in Kerr v R [2016] NSWCCA 218 at [114]:

“As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive.”

37. In oral submissions, the applicant emphasised two matters which he said demonstrated that the sentence was manifestly excessive. First, he pointed to the fact that her Honour accumulated the sentences rather than ordering that they be served concurrently. Secondly, he said that attention should be given to the undiscounted starting point of the indicative sentences when considered together, and that this starting point was too high. It will be convenient to address the second matter first.

38. Where there is no dispute as to the discounts to be applied, it may be appropriate to have regard to the starting point “lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence”: McGeown v R [2014] NSWCCA 314; 247 A Crim R 206 at [13]. In Xue v R [2017] NSWCCA 137, Bathurst CJ, with whom McCallum J agreed, said that what Simpson J had said, to similar effect, in TYN v R [2009] NSWCCA 146; (2009) 195 A Crim R 345, stated the correct position.

39. However, if the matter is approached by considering the undiscounted starting points of each indicative sentence, the starting points in this case were not manifestly excessive. The starting points of the indicative sentences for each offence were all below half of the maximum penalties prescribed for those offences:

1. In relation to the armed robbery offence: the maximum penalty is 20 years’ imprisonment and the undiscounted starting point for her Honour’s indicative sentence was 4 years.

2. In relation to the offence of aggravated enter with intent: the maximum penalty is 14 years’ imprisonment and the undiscounted starting point for her Honour’s indicative sentence was 6 years.

3. In relation to the offences of indecent assault: the maximum penalty is 10 years’ imprisonment with a standard non-parole period of 8 years, and the undiscounted starting point for her Honour’s indicative sentence was 5 years for each offence.

4. In relation to the common assault: the maximum penalty is 2 years’ imprisonment and the undiscounted starting point for her Honour’s indicative sentence was 12 months.

5. In relation to the offence of destroy or damage property: the maximum penalty is 5 years’ imprisonment and the undiscounted starting point for her Honour’s indicative sentence was 12 months.

40. The applicant contended that “The indicative sentences, themselves, are not consistent with the sentencing judge’s findings in relation to objective seriousness.” However, when considered against the maximum penalties, the indicative sentences accord with her Honour’s assessment of each offence as mid-range (aggravated enter dwelling with intent, indecent assault), just below the mid-range (robbery armed with offensive weapon) and below the mid-range (common assault, destroy or damage property), bearing in mind the favourable subjective findings made by her Honour. This submission is not made out.

41. In respect of the first matter, the applicant said that the decision to impose partially cumulative sentences reflected a “misapplication of [the] principle of totality” because of two things:

“Firstly, the underlying reason for the commission of the offence … and, secondly, the very close relationship in time in which these offences took place.”

42. The starting point is the two indecent assaults committed in the early hours of the morning of 12 July. Her Honour dealt with these together, saying “For the offences of indecent assault, taking into account a 25% discount, I indicate a head sentence of 3 years 9 months and a non-parole period of 2 years 6 months”. It was common ground on appeal that the primary judge specified the same indicative sentence for each offence.

43. The remaining offences occurred between 1.30pm and some time after 2pm that day. (The offender was found trespassing in another residential backyard at 3pm.) The indicative sentences were 3 years, 4 years and 6 months, 9 months and 9 months. The last and second last (the offences of common assault and destroying property) took place as part of the offence of entry with intent.

44. Her Honour did not specify (nor was there any obligation upon her to do so), the level of accumulation implicit in the aggregate sentence. However, in order to assess the complaint based on the notional accumulation in the sentence imposed, it is helpful to consider how the indicative sentences contributed to the outcome.

45. It is clear that there should be a very high measure of concurrency in relation to the two indecent assaults, committed at the same time upon the same victim.

46. It is also clear that the there should be a very high measure of concurrency in relation to the serious offence of aggravated entry into a dwelling with intent, and the offences of common assault and destroy property that took place during the entry into that property.

47. One way in which the aggregate sentence of 11 years 3 months could be reached would be by:

1. ordering the sentences for each indecent assult to be wholly concurrent (3 years and 9 months);

2. ordering the sentence for the armed robbery (3 years) to be wholly accumulated upon the sentences for the indecent assaults;

3. ordering the sentence for the aggravated entry into a dwelling with intent (4 years and 6 months) to be wholly accumulated upon the sentence of armed robbery, and treating the sentences for the common assault and destroy property as being served wholly concurrently within that term.

48. Of course, there are other ways in which the same effective sentence could have been achieved, which involved a notional partial accumulation of the other sentences.

49. A high degree of flexibility is to be afforded in determining questions of accumulation and concurrency when an offender is sentenced for multiple offences. Indeed, it has been said that “Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected”: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26]. More recently, in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64], Gageler, Nettle and Gordon JJ observed that the sentencing exercise “involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case”.

50. At one point, the applicant’s submissions suggested that the primary judge should have disclosed the precise degree of accumulation which had been applied. That submission must be rejected. Any such requirement would undermine the legislative purpose of aggregate sentencing, which is to obviate “the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or “stairway” sentencing structure’ when the principle of totality requires some accumulation of sentences”: JM v R [2014] NSWCCA 297 at [39].

51. However, even so the conclusion is irresistible that a greater degree of notional concurrency should have been provided in relation to the four offences which occurred in the afternoon.

52. The matter is best tested by considering the principal offences committed at 1.30pm and 2pm that afternoon. Although sentences of 3 years for the armed robbery and 4 years and 6 months for the aggravated enter dwelling with intent were not manifestly excessive, a sentence of 7 years and 6 months for both those offences, committed at 1.30pm and 2pm on the same day, would be unreasonably excessive.

53. In Clinch v R (1994) 72 A Crim R 301, Malcolm CJ said at 307:

“... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.”

54. That passage has regularly been applied, including in this Court by Spigelman CJ, Whealy and Howie JJ in R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]. Similarly, Street CJ said in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260:

“Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. "

55. What Malcolm CJ said of separate sentences of 7 years and 8 years is equally applicable to sentences of 3 years and 4 years 6 months.

56. In Cahyadi v R [2007] NSWCCA 1, Howie J said at [27] that:

“… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

57. Although the sentencing judge referred to Cahyadi, more than the very modest degree of notional accumulation of the offences committed in the afternoon of 12 July reflected in the aggregate sentence is required. The offending conduct was discrete, occurred in two separate places, and with different victims. However, this is plainly a case of a course of conduct within a short time frame. All four offences were committed in what was at most a 90 minute period and in all probability less than 60 minutes. All occurred after the abuse of alcohol and a prescribed drug following the applicant attending the funeral of a family member. That is not to excuse the conduct or to minimise its criminality, but to explain that it is fairly to be seen as a single course of conduct.

58. The reasons of the sentencing judge do not suggest that regard was had to the fact that the severity of a sentence increases at a greater rate than its length as stated in Clinch and the decisions referred to above. Nor do they suggest that the primary judge took “a last look at the total just to see whether it looks wrong”: see eg Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70. Further, her Honour described the offences as involving “distinct violent and protracted conduct with separate and unrelated victims”. “Protracted” is, with respect, inapt to describe any of the offences, all of which occurred within a 13 hour period, and especially inapt to describe the series of offences which occurred between 1.30 and 3pm on the afternoon of 12 July.

59. Although by reason of the fact that her Honour imposed an aggregate sentence, it is not possible to know precisely how the various indicative sentences contributed to that sentence, that sentence is manifestly excessive. This ground is made out.

Resentencing

60. It is necessary for the Court to exercise its sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]. As observed by R A Hulme J in Krivosic v R [2017] NSWCCA 167 at [61], it is open to the Court to act upon findings made by the primary judge which were not challenged. We accept the findings made by the sentencing Judge set out in paras [23]-[26] of this judgment.

61. Further material tendered by the Applicant on this appeal comprised an affidavit of the Applicant affirmed on 28 July 2017 which refers to his compliance with a medication regime for depression and that he has undertaken a 2-day work readiness course which has led to a job as sweeper in the protection wing. He also deposed to having completed a voluntary course in the “Positive lifestyle” program which he described as assisting in focussing on life issues such as coping with anger and depression and how to make positive plans in life. The Applicant referred to enrolling for various other courses but had been told that his participation in those courses is likely to be deferred to closer to his earliest possible release date. He also mentioned that he does not receive visitors at Junee, his friends and family are too far away. He noted that there are some limitations on course availability because of his SMAP protection status.

62. Although generally positive, the additional material does not have any particular persuasive role in relation to resentencing. However, it contains nothing to detract from the favourable subjective findings made by the sentencing Judge. No submission was made that any of the findings of the sentencing Judge as to subjective matters or special circumstances should be revisited by this Court, and we see no reason to undertake that task.

63. The sentencing Judge made a finding that there were special circumstances as it would be the offender’s first time in full-time custody. We agree with and adopt that finding.

64. The 25% reduction on account of the Applicant’s early plea of guilty should remain. So too should the indicative sentences of three years and nine months with non-parole periods of two years and six months for each indecent assault, three years for the offence of armed robbery, four years and six months for the offence of enter with intent, nine months for the offence of common assault and nine months for the offence of destroy property.

65. Applying the principles in Cahyadi, we are of the view that a shorter aggregate sentence should be imposed taking into account the total criminality of the offences.

66. The Court imposes an aggregate sentence of 10 years, with a non-parole period of 6 years, to commence on 12 July 2015. The full term of the sentence will expire on 11 July 2025. The offender will be first eligible for parole on 11 July 2021.

Orders

67. The following orders should be made:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed by the District Court on 12 October 2016 and in lieu thereof sentence the Applicant for an aggregate sentence of 10 years commencing on 12 July 2015, with a non-parole period of 6 years. The applicant is eligible to apply to be released on parole on 11 July 2021.

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Decision last updated: 08 December 2017