Biddle v Gatherer
[2021] ACTSC 236
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Biddle v Gatherer |
Citation: | [2021] ACTSC 236 |
Hearing Date: | 30 August 2021 |
DecisionDate: | 20 September 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [44] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – section 64(2)(e) of Crimes (Sentencing) Act 2005 (ACT) – mistake of law – remittal |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 375(10) Crimes (Sentencing) Act 2005 (ACT) pt 5.2, ss 61, 64, 64(2)(e), 65, 66, 72 Magistrates Court Act 1930 (ACT) pt 3.10, s 208(1)(d)(i) |
Cases Cited: | Adams v R [2018] NSWCCA 139 Dwayhi v The Queen [2011] NSWCCA 67; 205 A Crim R 274 Noble v Rappel [2020] ACTMC 8 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v AC [2015] ACTSC 240 R v AJ (Unreported, ACTSC, 29 July 2013) R v Beroukas [2021] ACTSC 172 R v BO (No 3) [2016] ACTSC 175 R v Brown [2017] ACTSC 284 R v Chevalier [2021] ACTSC 14 R v Davies (Unreported, ACTSC, 17 July 2013) R v Denniss [2018] ACTSC 239 R v Denniss [2019] ACTSC 283 R v Denniss [2021] ACTSC 15 R v DD (No 2) [2016] ACTSC 178 R v Dunn [2019] ACTSC 75 R v Holliday [2015] ACTSC 22 R v Islam [2015] ACTSC 99 R v JJ [2014] ACTCA 23 R v JJ (Unreported, ACTSC, 8 October 2013) R v KN [2020] ACTSC 218 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 R v Lembke [2020] NSWCCA 293 R v MT [2020] ACTSC 339 R v NQ [2019] ACTSC 51 R v PM [2009] ACTSC 24 R v PM (No 2) [2015] ACTSC 358 R v Potts [2018] ACTSC 299 R v QH; R v CR [2020] ACTSC 178 R v Raeyers (Unreported, ACTSC, 26 November 2010) R v Rappel [2019] ACTCA 11 R v Roberts [2020] ACTSC 296 R v Shearer [2020] ACTSC 100 R v Tate (Unreported, ACTSC, 16 December 2010) R v Winters [2019] ACTSC 245 R v Yuen [2019] ACTSC 70 R v Yuen (Unreported, ACTSC, 21 May 2013) TM v Karapanos and Bakes [2011] ACTSC 74 Usher v R [2016] NSWCCA 276 Will v The Queen (No 2) [2021] ACTCA 14 |
Texts Cited: | Crimes (Sentencing) Bill 2005 (ACT) |
Parties: | Bradley Matthew Biddle (Appellant) Mikaela Gatherer (Respondent) |
Representation: | Counsel J White SC (Appellant) R Christensen (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 20 of 2021 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 4 June 2021 Case Title: Mikaela Gatherer v Bradley Matthew Biddle Court File Number: CC2021/760 |
LOUKAS-KARLSSON J:
Introduction
On 7 May 2021, Bradley Biddle (the appellant) was sentenced by Magistrate Campbell for assault occasioning actual bodily harm, by way of joint commission, contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act) (CC2021/760). The maximum penalty for this offence is imprisonment for 5 years. As the prosecution elected for the offence to be disposed of summarily in the Magistrates Court, pursuant to s 375(10) of the Crimes Act, the maximum penalty that could be imposed was imprisonment for 2 years.
The appellant was sentenced to 18 months imprisonment, reduced from 24 months in recognition of his early plea. The sentence was made consecutive on the appellant’s existing sentence, which resulted in a sentence of 40 months and 21 days, to commence on 11 February 2020 and expire on 2 July 2023. The magistrate reset the non-parole period to expire on 6 August 2022.
Subsequently, on 11 May 2021, s 64 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) was brought to the magistrate’s attention. The issue was the non-parole period and the question of the offence having been committed while in custody.
On 4 June 2021, the magistrate re-opened proceedings under s 61 of the Sentencing Act. The appellant was sentenced to 18 months imprisonment, consecutive on the existing sentence with no non-parole period.
Grounds of Appeal
Originally, the appellant relied upon the following grounds of appeal:
(1) That the sentence was manifestly excessive; and
(2) That the sentencing magistrate erred in her application of s 61 of the Sentencing Act.
On 30 August 2021, the appellant amended the Notice of Appeal, in court, to the sole ground that the magistrate erred in her application of s 64(2)(e) of the Sentencing Act.
Jurisdiction
The Court’s jurisdiction to hear the matter is derived from Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), in particular s 208(1)(d)(i).
Background
The background to this matter is somewhat convoluted so it is appropriate to set out the chronology, before dealing with the ground of appeal:
· On 24 June 2020, the appellant was sentenced by Magistrate Taylor for two offences, a burglary and a theft. The head sentence of the appellant in relation to these offences concluded on 30 October 2021. The non-parole period concluded on 30 April 2020.
· On 2 November 2020, the appellant was sentenced by Magistrate Campbell for an offence of minor theft. The sentence concluded on 26 November 2021. The non-parole period concluded on 1 December 2020.
· On 15 November 2020, the appellant, while in custody, committed the offence of assault occasioning actual bodily harm that is the subject of the current appeal. The offence was committed against a fellow prisoner. There is a co-offender.
· As referred to in the introduction, on 7 May 2021, the appellant was sentenced for this offence to 18 months imprisonment, reduced from 24 months, with the sentence to expire on 2 July 2023. The non-parole period was to expire on 6 August 2022. The appellant, on this occasion, was unrepresented.
· On 11 May 2021, the matter returned to court on the initiative of the magistrate. The appellant was represented on a duty basis by Legal Aid ACT. The prosecutor brought s 64 of the Sentencing Act to the magistrate’s attention. This section precludes the setting of a non-parole period where offending has occurred whilst in lawful custody. The matter was adjourned to allow for the parties to consider their positions.
· On 4 June 2021, the matter returned to court before the magistrate. Submissions were made by the parties in respect of ss 61 and 64 of the Sentencing Act. The magistrate re-opened the proceedings under s 61 and sentenced the appellant to 18 months imprisonment, consecutive with the existing sentences.
· The effect of this sentence is that the appellant is imprisoned until 2 July 2023 with no prospect of parole.
Consideration: Section 64(2)(e) of the Sentencing Act
This appeal raises for consideration the imposition of a non-parole period for an offence committed in lawful custody. Specifically, the appeal is concerned with the interpretation and application of s 64(2)(e) of the Sentencing Act.
This appeal therefore turns on the question of whether the magistrate erred in her application of s 64(2)(e) of the Sentencing Act.
Relevant legislation
Non-parole periods are dealt with in Part 5.2 of the Sentencing Act.
Section 65 of the Sentencing Act relevantly provides:
65 Nonparole periods–court to set
(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
(2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.
Note If the offender is released on parole, the sentence is not discharged unless the parole is completed without the parole order being cancelled(see Crimes (Sentence Administration) Act 2005, s 140 and s 160).
(3) When the court sets the nonparole period, the court must state when the nonparole period starts and ends.
Note A sentence may be backdated to account for time already held in custody (see s 63).
(4) However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents.
(5) If the offender is subject to a sentence of life imprisonment, the court must not set a nonparole period for any sentence of imprisonment that is imposed on the offender.
(6) If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.
Section 66 of the Sentencing Act requires that a court, when sentencing an offender serving an existing sentence of imprisonment, reset the non-parole period. A non-parole period will be automatically cancelled upon the imposition of a new sentence:
66 Nonparole periods–setting if sentence currently being served
(1) This section applies if –
(a) the offender is serving a sentence of imprisonment (the existing sentence); and
(b) the offender is sentenced to a further term of imprisonment (the primary sentence).
Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence.
(2) Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
Importantly, s 64 of the Sentencing Act provides that Part 5.2 does not apply to an excluded sentence of imprisonment:
64Application—pt 5.2
(1)This part applies to the following:
(a)a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment;
(b)full‑time detention ordered under the Crimes (Sentence Administration) Act 2005, section 65 (2) (b).
NoteUnder the Crimes (Sentence Administration) Act 2005, s 65 (2), an offender’s intensive correction order may be cancelled, and a court may order any remaining sentence of the offender to be served by full-time detention.
(2)In this section:
excluded sentence of imprisonment means—
(a)a sentence of imprisonment that is fully suspended; or
(b)a sentence of imprisonment suspended under the custodial part of a drug and alcohol treatment order; or
(c)a sentence of imprisonment to be served by intensive correction; or
(d)a sentence of imprisonment imposed in default of payment of a fine; or
(e)a sentence of imprisonment imposed for an offence committed while in lawful custody; or
(f)a sentence of life imprisonment; or
(g)a sentence of imprisonment imposed on a young offender.
fine—see the Crimes (Sentence Administration) Act 2005, section 116A.
(emphasis added)
Relevantly here, an excluded sentence of imprisonment includes, pursuant to s 64(2)(e), “a sentence of imprisonment imposed for an offence committed while in lawful custody”. The effect of this, is that where a sentenced prisoner commits an offence in custody, a non-parole cannot be set.
Further, pursuant to s 72 of the Sentencing Act, where an offence has occurred while in custody, and in the absence of a direction under s 72(3), the primary sentence must be served consecutively with the existing sentence of imprisonment. No such direction was made in this matter, resulting in the primary sentence being entirely cumulative upon the existing sentence.
Statutory interpretation
The principles of statutory interpretation that apply in the Australian Capital Territory (ACT), are summarised in KN v The Queen [2019] ACTCA 37 at [23] (see also: Will v The Queen (No 2) [2021] ACTCA 14 at [116] to [125]):
This dilemma must be resolved having regard to the following principles that are applicable to statutory interpretation in this jurisdiction.
(a) Common law presumptions operate in conjunction with the statutory provisions in Chapter 14 of the Legislation Act 2001 (ACT) (Legislation Act): ss 137(3) and (4) Legislation Act.
(b) In working out the meaning of an Act (including resolving ambiguity, confirming or displacing apparent meaning, or finding meaning where the apparent meaning results in absurdity or unreasonableness), the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation: ss 138 and 139 Legislation Act.
(c) Non-legislative material may be considered, but in deciding whether it should be considered and the weight that should be given to it, account must be taken of the desirability of being able to rely on the ordinary meaning of the provision in question, having regard to its purpose and read in the context of the Act as a whole: ss 141(1) and (2)(a) Legislation Act.
(d) Non-legislative material that may be considered includes any relevant report of a Royal Commission and any explanatory statement relating to the bill as well as the presentation speech made to the Legislative Assembly during the passage of the bill: s 142 and Table 142 Legislation Act.
Legislative history
The Sentencing Act was introduced in 2005. It contained an identical subsection in s 64(3)(d), providing that ‘a sentence of imprisonment imposed for an offence committed while in lawful custody’ was an excluded sentence of imprisonment for Part 5.2 and the setting of a non-parole period.
Relevantly, the Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT) contained the following:
e 64 – Application of part 5.2Claus
Clause 64 establishes the scope of sentences that can have non-parole periods set. A sentence of imprisonment can have a non-parole period set, unless it is an excluded sentence in clause 64(3). The excluded sentences are: life imprisonment; imprisonment served by way of periodic detention; imprisonment for offences committed in custody (usually in prison); imprisonment for not paying a fine; and a suspended sentence. (A suspended sentence is a sentence that is not executed: see clause 12 above).
(emphasis added)
The Explanatory Statement does not expand on why particular excluded sentences were included. In relation to parole it states that:
The purpose of parole is to moderate a sentence of imprisonment to enable the offender to rehabilitate. In R v Shrestha (1991) 173 CLR 46 (at [67]), Justices Deane, Dawson and Toohey said:
The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.
The Sentencing Act as enacted in 2005 included, in s 72, a provision in identical terms to the current s 72, which provides for particular orders where an offence is committed whilst in custody. The Explanatory Statement provides that “for sentences imposed for offences committed in custody (such as in prison) or involving escape from custody, the default position is that they are served consecutively with existing sentences.”
Conclusion
Applying relevant statutory interpretation principles to the legislation, the only conclusion is that the legislative intent is that a non-parole period is not an available sentencing order for offending while in custody.
In summary:
· Section 65 obliges the court to set a non-parole period for a sentence of imprisonment longer than one year. Section 66, in the usual course, requires the court sentencing an offender serving an existing sentence of imprisonment to reset the non-parole period, as the imposition of the new sentence will automatically cancel any non-parole period set for the existing sentence: s 66(3).
· However, by virtue of s 64, those provisions do not apply to an “excluded sentence of imprisonment”, defined to include s 64(2)(e):
(e) a sentence of imprisonment imposed for an offence for an offence committed while in lawful custody.
The legislature has imposed clear limitations on sentencing powers in dealing with offending that has occurred in custody.
The respondent, therefore, correctly conceded the specific error in relation to the order of 7 May 2021 being the misapplication of s 64(2)(e).
Ultimately, it was correctly submitted by both counsel for the respondent and counsel for the appellant, that the only conclusion available is that the legislative intent is for non-parole periods to not be an available sentencing order for offending of the type engaged in by the appellant. As a matter of statutory construction this appears to be the clear legislative intent.
The respondent and the appellant submitted that counsel for the prosecution and counsel for offenders have routinely submitted on the availability of non-parole periods where offending occurred in custody. It is similarly clear that courts have routinely made non-parole period orders where offending occurred in custody.[1] This is contrary to s 64(2)(e) of the Sentencing Act. The respondent provided an attachment that outlined matters where a non-parole period had been imposed when sentencing for an offence that had been committed whilst in lawful custody:[2]
[1] T11.26-27.
[2] Nevertheless, counsel have submitted and courts have applied s 64(2)(g) correctly as it relates to young offenders, see, for example: R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23; R v MT [2020] ACTSC 339; R v KN [2020] ACTSC 218; R v QH; R v CR [2020] ACTSC 178; R v NQ [2019] ACTSC 51; R v DD (No 2) [2016] ACTSC 178; R v BO (No 3) [2016] ACTSC 175; R v PM (No 2) [2015] ACTSC 358; R v AC [2015] ACTSC 240; R v JJ [2014] ACTCA 23; R v JJ (Unreported, ACTSC, 8 October 2013); TM v Karapanos and Bakes [2011] ACTSC 74; and R v PM [2009] ACTSC 24.
· R v Beroukas [2021] ACTSC 172[3]
[3] This matter was re-opened pursuant to s 61 of the Sentencing Act after the current matter the subject of this appeal drew the s 64(2)(e) issue to the attention of the courts.
· R v Denniss [2021] ACTSC 15
· R v Chevalier [2021] ACTSC 14
· R v Roberts [2020] ACTSC 296
· R v Shearer [2020] ACTSC 100
· Noble v Rappel [2020] ACTMC 8
· R v Rappel [2019] ACTCA 11
· R v Denniss [2019] ACTSC 283
· R v Winters [2019] ACTSC 245
· R v Dunn [2019] ACTSC 75
· R v Yuen [2019] ACTSC 70
· R v Potts [2018] ACTSC 299
· R v Denniss [2018] ACTSC 239
· R v Brown [2017] ACTSC 284
· R v Holliday [2015] ACTSC 22
· R v Islam [2015] ACTSC 99
· R v AJ (Unreported, ACTSC, 29 July 2013)
· R v Davies (Unreported, ACTSC, 17 July 2013)
· R v Yuen (Unreported, ACTSC, 21 May 2013)
· R v Tate (Unreported, ACTSC, 16 December 2010)
· R v Raeyers (Unreported, ACTSC, 26 November 2010)
It is tolerably clear that counsel and the Courts have proceeded without observing s 64(2)(e).
Section 64(2)(e) has clearly been overlooked by counsel and the Courts. It has, it appears, been more honoured in the breach.
Re-sentence or remit?
It was further correctly conceded by the respondent that in light of this specific error, concerning s 64(2)(e), remittal to the Magistrates Court or re-sentence by this Court was called for.
The respondent submitted, the court may, for the following reasons, consider that remittal for sentence to the Magistrates Court is the more appropriate course rather than re-sentence in the Supreme Court:
(1) The co-offender of the appellant is listed for sentence on 21 September 2021 and the parity principle would dictate that it is desirable that the offenders are sentenced together; and
(2) The expedited nature of the appeal proceedings has meant there is limited information before this court as to the nature of the offending and the subjective circumstances of the offender.
The respondent submitted that this matter be remitted for sentence according to law.
Counsel for the appellant submitted that parity was relevant but did not necessarily require the same judicial officer to sentence. In the submission of the appellant, re-sentence could occur in the Supreme Court.
In my view, due to the expedited nature of the appeal, there is a paucity of material before me on re-sentence. It is therefore appropriate to remit the matter for sentence according to law.
The proper administration of justice dictates that the matter be remitted to another magistrate for re-sentencing. It is regrettable that the matter has to take this course but, in my opinion, it is the course which justice dictates: see Middleton v The Queen [2020] ACTCA 6 at [7].
The sentence should not proceed before the magistrate who determined the original sentence. It is therefore desirable that another magistrate deal with both this matter and the matter of the co-offender, taking into account the principles of parity discussed below.
Authorities on parity and the same judge sentencing co-offenders
The relevant principles have been eloquently summarised in Dwayhi v The Queen by Johnson J at [33] – [46] and bear repeating:
Different courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same judge, and the problems which may arise where that practice is not followed.
In Lowe v The Queen[1984] HCA 46; 154 CLR 606 at 617, Brennan J said that to “facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time”.
In Postiglione v The Queen at 320, Gummow J referred to Brennan J's comment and, after mentioning the facts, observed that:
“ … this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders where they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences.”
Dawson J said in Lowe v The Queen at 622:
“No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J was so informed in this case.”
In R v Mercieca[2004] VSCA 170 at [6], Winneke P observed that the sentencing of co-offenders by different judges “creates the potential for differing views being taken by different judges of sentencing facts which are common to all co-offenders”.
In R v Rodden[2005] VSCA 24 at [28], Vincent JA stated succinctly the problems arising in this context:
“Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned.”
Where the usual practice is followed and related offenders are dealt with by the same judge at the same time, there are significant advantages to the administration of the criminal law. In R v Swan[2006] NSWCCA 47 at [71], Barr and Howie JJ said:
“This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes.”
This statement was applied in Gurney v The Queen; Willetts v The Queen at [82].
The observations of Brennan J and Dawson J in Lowe v The Queen and Barr and Howie JJ in R v Swan were cited by the Court of Appeal of the Australian Capital Territory where co-offenders had appeared before the same sentencing judge, and the Court observed that the judge “was in the best position to assess the relative criminality of the offenders and to distinguish the circumstances relevant to each of the offenders” and that “an appellate court will exercise caution before determining that the disparities between two sentences are unjust”: Pavicevic v The Queen at [20]-[21] (Gray P, Refshauge and Ryan JJ).
Similar sentiments were expressed by Winneke P in R v Spizzerri[2001] VSCA 49 at [10]:
“ … an appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent the Court is constrained in rectifying a disparity which it perceives. Because of those constraints, it runs the risk of ‘tinkering’.”
In R v Nguyen; R v Pham [2010] NSWCCA 238 at [13], this Court referred to the “strong desirability of sentencing proceedings concerning co-offenders going ahead before the same judge, and preferably at the same time”. It was said, at [24], that the listing of the proceedings in that case added a layer of complexity before this Court, and served to underline the desirability of related offenders being “dealt with by the same judge following a single sentencing hearing”.
More recently, this Court has emphasised the desirability of related offenders being sentenced together and the problems which may arise where this is not done: Gurney v The Queen at [81].
It is necessary for sentencing Courts and prosecutorial bodies to take steps to ensure, so far as it is reasonably possible, that related offenders are sentenced by the same judge, and preferably at the same time following a single sentencing hearing. To reinforce this message, creation of relevant Practice Notes (by the Courts) and amendment to prosecution guidelines (by the Commonwealth and New South Wales Directors of Public Prosecutions) may be considered appropriate to give effect to the statements of Courts referred to above.
It ought be appropriate, as well, for sentencing and appellate courts to enquire of counsel for an offender, who seeks to rely upon the parity principle, as to the steps taken by that offender or his legal representatives to ensure that he or she was sentenced by the same judge, and at the same time, as any related offender, if the case is one where there were different sentencing judges.
In my view, procedures of this type will serve the public interest in consistent and transparent sentencing of related offenders which forms, after all, part of the rationale for the parity principle itself.
(emphasis added)
In summary, sentencing courts, prosecutorial bodies, and defence counsel should take steps to ensure related offenders are sentenced by the same sentencing judge: see Dwayhi v The Queen [2011] NSWCCA 67; 205 A Crim R 274 (Dwayhi v The Queen) at [44]–[45]. As a matter of practice, it is highly desirable that co-offenders be sentenced by one judge: see Postiglione v The Queen [1997] HCA 26; 189 CLR 295. The judge is then in a position to consider the interrelationship between the objective and subjective features of the offenders in an overarching way: see Usher v R [2016] NSWCCA 276 at [73]. The importance of this practice has been repeatedly emphasised on the basis that it serves the public interest in consistent and transparent sentencing of related offenders: see Dwayhi v The Queen at [33]–[43], [46]; Ng v R [2011] NSWCCA 227 at [77]–[78]; Adams v R [2018] NSWCCA 139 at [81]; R v Lembke [2020] NSWCCA 293 at [55].
Submissions of appellant regarding non-parole period and suspended sentence
The appellant made submissions concerning a suspended sentence. It is proper, for completeness, that I refer to this.
A suspended sentence may be appropriate, while at the same time it is important to recognise that a non-parole period and a suspended sentence are not subject to the same principles. This has been recently noted by the Court of Appeal in MT v The Queen [2021] ACTCA 26 at [96]:
The exercise of setting the unsuspended part of a suspended sentence order does not parallel the exercise of setting a non-parole period.
Addendum
The imposition of a non-parole period is a sentencing option that has been undertaken by the courts where offending has occurred in lawful custody. That has been contrary to s 64(2)(e).
Section 64(2)(e) may require some legislative attention as to whether greater flexibility in sentencing is appropriate in this context. As observed by counsel and the court at [26], it has been overlooked.
It will be a matter for the legislature whether any steps are taken to reflect a different legislative intent in respect of the availability of parole for offending occurring in custody.
Orders
I make the following orders:
(1) The appeal is allowed.
(2) The orders made by Magistrate Campbell on 7 May 2021, and the related orders of 4 June 2021, are set aside.
(3) The matter is remitted to the Magistrates Court for sentence according to law and to proceed before another magistrate.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Madeline Lehmann Date: 20 September 2021 |
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