Brennan v R

[2018] NSWCCA 22

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Brennan v R [2018] NSWCCA 22
Hearing dates:	16 November 2017
Decision date:	23 February 2018
Before:	Bathurst CJ at [1] Hoeben CJ at CL at [6] Button J at [7]
Decision:	(1) Leave to appeal granted. (2) Appeal against sentence allowed. (3) The indicative sentences provided by Judge Barnett in the Drug Court on 9 December 2016 are confirmed. (4) The aggregate sentence imposed by Judge Barnett in the Drug Court on 9 December 2016 is quashed. (5) The applicant is sentenced to an aggregate head sentence of three years six months expiring on 21 May 2019, with an aggregate non-parole period of two years seven months 15 days, each to date from 22 November 2015. (6) The first date upon which the applicant is eligible for possible release to parole is 6 July 2018.
Catchwords:	CRIMINAL LAW – appeal against sentence – aggregate sentence imposed in the Drug Court – aggregate non-parole period significantly greater than 75% of the aggregate head sentence – prosecutor did not seek that outcome, and sentencing judge did not foreshadow it – defence advocate sought a finding of special circumstances, and therefore an aggregate non-parole period that was less than 75% of the aggregate head sentence – whether incumbent upon sentencing judge to find special circumstances before imposing such a sentence – whether sentencing judge gave reasons for imposing such a sentence – whether in all the circumstances the applicant was denied procedural fairness by the imposition of such a sentence – appeal against sentence upheld
Legislation Cited:	Crime Sentencing Procedure Act 1999 (NSW), ss 44(2), 44(2A), 44(2B) Drug Court Act 1998 (NSW), s 7A
Cases Cited:	Baroudi v R [2007] NSWCCA 48 Barrett v R [2011] NSWCCA 213 Button v R [2010] NSWCCA 264 Connelly v R [2012] NSWCCA 114 Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Maglovski v R [2014] NSWCCA 238 Milsom v R [2014] NSWCCA 142 Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424 Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 Parker v DPP (1992) 28 NSWLR 282 R v Fidow [2004] NSWCCA 172 R v Wakefield [2010] NSWCCA 12 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 Veen (No.2) [1988] HCA 14 Weir v R [2011] NSWCCA 123 Zreika v R [2012] NSWCCA 44
Texts Cited:	Judicial Commission of New South Wales, “Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999” (2013) 42 Sentencing Trends & Issues
Category:	Principal judgment
Parties:	Shane McLeod Brennan (Applicant) Regina (Respondent)
Representation:	Counsel: S Kluss (Applicant) B Baker (Respondent)   Solicitors: SJT law (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/00017521
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Drug Court Date of Decision: 9 December 2016 Before: Judge Barnett File Number(s): 2015/00002020

JUDGMENT

1. BATHURST CJ: I have had the advantage of reading the judgment of Button J in draft. I agree with the orders which his Honour proposes and, subject to what I have written below, with his reasons.

2. Section 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), obliges a court to fix a non-parole period when imposing an aggregate sentence on an offender. As Button J points out, s 44(2B) requires a court to state the reasons for its decision if it determines that there are special circumstances justifying a reduction in the ratio of 75% that the non-parole period bears to the aggregate term of imprisonment. There is no requirement to state reasons if the court increases the ratio.

3. In the present case, as Button J points out, although counsel for the applicant sought a finding that there were special circumstances to justify a reduction in what might be called the “base ratio” set out in s 44(2B), there was no suggestion from the Crown or the sentencing judge that the base ratio should be increased. All that was said by the Crown was that an “appropriate non-parole period” should be imposed.

4. In these circumstances, counsel for the applicant had no reason to consider the possibility that consideration was being given by the sentencing judge to increase the base ratio. It seems to me that, if it was proposed to increase the base ratio, it should have been raised and an opportunity afforded to the applicant’s counsel to address on the matter. Thus, in the particular circumstances of the present case, there was unfairness to the applicant in the sense explained by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [35]-[36]. Therefore, the sentencing discretion miscarried.

5. I agree with the remarks of Button J on resentence.

6. HOEBEN CJ at CL:    I agree with Button J and the orders which he proposes.

7. BUTTON J:

Introduction

8. Shane McLeod Brennan (the applicant) was sentenced by Judge Marsden in the Drug Court of New South Wales on 28 May 2015. Twelve matters were listed for sentence on that occasion, all of which the applicant had committed in the period between 12 September 2014 and 16 March 2015. They may be summarised as repeated property offences, none of which were of the utmost gravity, but many of which used a modus operandi that had a degree of cleverness to it. There was also a related fail to appear.

9. The property offences were committed in order to obtain funds for prohibited drugs, in particular heroin, which the applicant had first used at the age of 24, and to which he had been addicted for many years.

10. At the time of imposition of that first sentence, the applicant was 42 years of age. His criminal record was extensive, and had begun in the Children’s Court in 1987 by way of an assault. Most but not all of his convictions were for offences against property, though there was a slight flavour of violence as well. By the end of the first decade of the 21st century, the applicant was being sentenced to periods of imprisonment that were becoming more substantial: the longest was a head sentence of 18 months with a non-parole period of 12 months.

11. The applicant had pleaded guilty at an early stage to all of the offences that were before Judge Marsden. All of the sentences were subject to the jurisdictional limit of the Local Court, not the maximum penalty for the offence when dealt with on indictment in the superior courts.

12. In the event, his Honour imposed an aggregate sentence of two years two months, which was thereafter suspended (pursuant to s 7A of the Drug Court Act1998 (NSW)) so that the applicant could take part in the Drug Court program. Indicative sentences were provided for each of the 12 charges; due to the nature of the proposed grounds of appeal, they do not need to be recounted here.

13. Regrettably, the applicant returned to the Drug Court on 9 December 2016 to be sentenced by Judge Barnett. That was because he had failed the program, and committed further offences. Additionally, offences that he had committed before the imposition of the suspended sentence and the entry of the applicant into the programme on 28 May 2015 had also come to light.

14. Again, all of that need not be discussed in detail; suffice to say it was incumbent upon Judge Barnett to sentence the applicant for a plethora of property offences, committed over an extended period, all of which had been committed by a middle-aged man who was unable to beat his addiction to heroin.

15. Two of the offences were placed on an indictment, with the effect that the maximum penalty of imprisonment for each of them applied, as opposed to the jurisdictional limit of the Local Court.

16. In the remarks on sentence, Judge Barnett recounted the objective features of the “old” and “new” offending in detail, and relied upon the remarks on sentence of Judge Marsden with regard to the offending that had led to the suspended sentence.

17. Judge Barnett regarded the fact that the applicant was on conditional liberty by way of the suspended sentence as seriously aggravating the “on program” offences.

18. His Honour noted that, at first, the applicant did reasonably well in the Drug Court program. There were some sanctions for breaches, but they were waived as a result of compliance on the part of the applicant. Although the applicant served a period of two weeks in custody for accumulated sanctions in October 2015, he progressed to the second phase of the program in December 2015. Unfortunately, at around that time he returned to regular use of heroin. Eventually, the applicant failed to appear in court on 24 March 2016, and a warrant was issued for his arrest. His involvement in the program was terminated in his absence on 21 April 2016, and he re-appeared in court from custody on 16 June 2016.

19. Judge Barnett summarised some positive aspects of the evidence on sentence: since the imposition of the suspended sentence, there had been periods when the applicant was free from prohibited drugs; he had seemingly engaged well with professionals who were trying to help him; he had enrolled in TAFE; and had also been doing volunteer work.

20. Judge Barnett quoted from the first set of remarks on sentence, to the effect that Mr Brennan left school in year 11 and commenced work after training as a financial consultant. In late adolescence and early adulthood, everything had progressed well for the applicant. There was some kind of “incident” with his then-fiancé, for which the applicant continued to blame himself. That led to him turning to heroin. Even before his acceptance into the Drug Court program, the applicant had tried to stop using prohibited drugs, including by way of living at a residential rehabilitation program. There had been some periods throughout his adult life when he was free from prohibited drugs, and free from criminality as a result.

21. His Honour referred to character references that spoke highly of the potential of the applicant, and his good attributes. His Honour also referred to the oral evidence of the applicant, in which the applicant had sought to chart a way forward after this most recent failure.

22. In light of the criminal record of the applicant and his further offending, his Honour remarked that the principle in Veen (No.2) [1988] HCA 14 applied to the offences committed whilst the applicant was on the Drug Court program. That approach was not impugned on appeal.

23. With regard to special circumstances, his Honour said “[n]ow I have been asked to find special circumstances however the fact remains the Offender is very resistant to treatment for his long standing drug addictions and importantly there is no plan whatsoever before me as to the Offender’s future management in the community. The defence simply requests special circumstances and leave it there. Already the Offender has had the opportunity at a very intense supervision in the community realistically to a very small avail. Accordingly I will not grant special circumstances and further though, I will only be prepared to allow a short period on parole.”

24. His Honour provided a further discount pursuant to statute with regard to matters that were separate from the utilitarian value of the pleas of guilty. That does not found a ground of appeal, and does not need to be discussed further.

25. As Judge Marsden had done, Judge Barnett imposed an aggregate sentence. Remarkably, 48 indicative sentences (including for the original twelve matters, because of the further discount to be applied) needed to be provided; again, they do not need to be detailed.

26. Ultimately, his Honour imposed an aggregate head sentence of imprisonment for three years six months to date from 22 November 2015. An aggregate non-parole period of three years was also imposed, with the result that the first date upon which the applicant is eligible for possible release is 21 November 2018.

27. It can be seen that the aggregate non-parole period is almost 86% of the aggregate head sentence.

Grounds of appeal

28. The first ground, as amended at the hearing, was:

His Honour’s sentence did not comply with s 44(2B) of the Crime Sentencing Procedure Act 1999 (NSW).

29. The second ground, which was the subject of a grant of leave permitting it to be added at the hearing, and was the subject of subsequent written submissions from each party, was:

His Honour erred by not according the applicant procedural fairness in the conduct of the sentence in that his Honour did not afford the applicant’s solicitor an opportunity to be heard in relation to the upward departure from the statutory ratio as provided in s 44(2B) of the Crimes Sentencing Procedure Act.

30. It was made clear by counsel for the applicant at the hearing that neither ground should be understood as impugning the aggregate head sentence imposed. Furthermore, if error were established and this Court came to re-sentence, counsel had no opposition to the aggregate head sentence being replicated. The whole thrust of the appeal was an attack on the aggregate non-parole period.

The first ground

His Honour’s sentence did not comply with s 44(2B) of the Crime Sentencing Procedure Act 1999 (NSW).

31. Section 44(2B) is the analogue of s 44(2) that applies to aggregate sentences. It is as follows:

The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

32. At first, I understood the ground from its terms to assert that it was contrary to the statute for his Honour to impose an aggregate non-parole period that was greater than 75% of the aggregate head sentence, without having found special circumstances.

33. But the words of the section, on analysis, are not to that effect; having said that, the section is perhaps a little confusingly expressed, focusing as it does (as does s 44(2)) on the length of the parole period, not the non-parole period.

34. Separately, a long line of authority confirms that that is the correct way to read both s 44(2) and s 44(2B) of the Act: Connelly v R [2012] NSWCCA 114 at [31]; Barrett v R [2011] NSWCCA 213 at [29]; Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178 at [17], [19]; Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424 at [40]-[41].

35. In my opinion, the seeming import of the ground cannot be sustained: it is not the case that, pursuant to either section, a sentencing judge or magistrate needs to find special circumstances in order to impose a non-parole period that is more than 75% of a head sentence.

36. At the hearing, counsel for the applicant placed greater emphasis on the submission that Judge Barnett had not provided reasons for imposing an aggregate non-parole period that was greater than 75% of the aggregate head sentence.

37. Despite the fact that the ground was expressed as a failure to comply with statute, counsel relied upon judgments of this Court to the following effect. If a sentencing judge or magistrate decides to impose a non-parole period that is greater than 75% of the relevant head sentence, for abundant caution and to make clear that it had not been done unintentionally, he or she should give reasons for doing so: Maglovski v R [2014] NSWCCA 238 at [28]; Barrett v R [2011] NSWCCA 213 at [29]; R v Wakefield [2010] NSWCCA 12 at [26].

38. In my opinion, the first part of that submission was well founded: speaking generally, a sentencing judge or magistrate should provide such reasons. But it cannot be said that, in this case, his Honour failed to do so. They are to be found in the extract that I have provided from the remarks on sentence.

39. To re-state that extract, Judge Barnett explained that not only did he reject the application for special circumstances that would reduce the non-parole period, but also he proposed to impose a non-parole period greater than 75% of the head sentence. That was because the applicant had longstanding drug addictions; he was very resistant to treatment for them; there was no plan at all for the future; and the offender had been given an opportunity to be supervised very intensely, but, after a small measure of success, had failed badly, not least by committing very many offences.

40. Contrary to the submission of counsel for the applicant, in my opinion Judge Barnett provided short but adequate reasons why the aggregate non-parole period was to be greater than 75% of the aggregate head sentence.

41. Accordingly, in my opinion, whichever aspect of it is emphasised, ground one should fail.

The second ground

His Honour erred by not according the applicant procedural fairness in the conduct of the sentence in that his Honour did not afford the applicant’s solicitor an opportunity to be heard in relation to the upward departure from the statutory ratio as provided in s 44(2B) of the Crimes Sentencing Procedure Act.

42. This proposed ground of appeal raises deeper questions, and calls for consideration not only of sentencing theory, but also sentencing in practice in New South Wales.

43. To expand a little upon the forensic background relevant to this ground, the transcript of the proceedings on sentence does not suggest that any written submissions were provided to Judge Barnett by either party. Nor does the appeal book contain such material in any event.

44. In oral submissions on 11 November 2016, the lawyer for the Crown spoke of the need for “…at least partial accumulation”.

45. She also said “[t]he Crown ultimately would ask your Honour to confirm his Initial Sentence; impose an appropriate non-parole period.”

46. She concluded her oral submissions by emphasising the need for a degree of accumulation, in particular in order to address the “…objective seriousness of the conduct”.

47. In his plea in mitigation, the defence advocate spoke of the efforts that the applicant had made that ultimately resulted in failure. He also spoke of the degree of insight that the applicant had gained through the program, and the proposition that the applicant would continue to seek to rehabilitate himself for “…the rest of his life”. He submitted that the applicant should not be regarded as “…a lost cause”. He concluded by submitting “[a]nd I’d ask your Honour to find special circumstances in those circumstances when you’re imposing your sentence.”

48. At the conclusion of the oral submissions of both parties, Judge Barnett said “I will need to consider those issues that have been put to me today”, and went on to discuss a suitable date for imposition of sentence.

49. In summary, it can be seen that the lawyer for the Crown said nothing specific about the ratio between the non-parole period and the head sentence. She certainly did not seek a ratio that was greater than 75%. Indeed, she did not explicitly resist a finding of special circumstances.

50. The defence advocate asked for a finding of special circumstances (which would, of course, reduce the ratio), but in doing so largely relied upon all of the sad features of the matter, without being particularly specific. He said nothing to try to forestall a ratio that was greater than 75%.

51. Finally, at no stage during the tender of documents, the receipt of oral evidence, or the making of oral submissions, did his Honour foreshadow the possibility of a ratio that was greater than 75%.

Submissions for the applicant

52. In her written submissions filed after the hearing, counsel for the applicant emphasised that at no time during the proceedings on sentence did his Honour indicate that a ratio greater than 75% was under consideration.

53. Reference was made to decisions of this Court that confirm that procedural fairness must be extended to an offender in proceedings on sentence, amongst them Weir v R [2011] NSWCCA 123 at [64].

52. Council accepted that practical injustice needed to be demonstrated for this error to be established: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 at [34], [37].

53. She went on to submit that, for the applicant to be required to serve a mandatory minimum period of incarceration of greater than 75% of his head sentence, without his lawyer having been given the opportunity to argue against that outcome, constituted a practical injustice.

Submissions of the Crown

56. The written submissions for the Crown about this ground accepted that an offender is entitled to procedural fairness during a sentencing hearing, in accordance with Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 472-473 per Mason CJ and Brennan J. But it was said that the content of the duty to provide procedural fairness varies according to context. It was also submitted that what is sought to be avoided is practical injustice, not some theoretical failing.

57. Attention was drawn to decisions of this Court in which a complaint of denial of procedural fairness in proceedings on sentence has been upheld: Baroudi v R [2007] NSWCCA 48; Milsom v R [2014] NSWCCA 142 and Button v R [2010] NSWCCA 264, amongst others. The point was made that all of those were cases in which either the sentencing judge, or the Crown, or both, had led the advocate for the offender to understand that a certain course would be adopted, but in the event a sentence was imposed on the basis of a different course, adverse to the offender.

58. Reference was also made to the well-known decision of the Court of Appeal in Parkerv DPP (1992) 28 NSWLR 282 at 296. The submission was made that the duty to warn with regard to the possibility of the imposition of a longer sentence after an appeal by an offender was said in that decision to arise from an already “established practice”, itself said to be founded on a “species of the double jeopardy principle”.

59. The Crown submissions go on to say that those cases show that something in the nature of an “actual unfairness” is required to demonstrate a denial of procedural fairness, “…not whether there has been a disappointment because an expectation has not been fulfilled”.

60. It was re-emphasised that the majority of the cases feature dissuasion of the defence advocate from making a particular submission because of something done by the sentencing magistrate or judge, the prosecutor, or both.

61. As for the need for a warning identified in Parker, that was said to arise from “established practice, founded on principle”.

62. It was submitted that, in this case, the applicant could not point to a representation by the Crown or the sentencing judge upon which the applicant relied to his disadvantage, nor to any established practice with regard to an increase in the ratio beyond 75%.

63. It was accepted by the Crown that it is comparatively common for special circumstances to be found that reduce the ratio below 75%, and comparatively uncommon for the ratio to be above that point. But it was said that the statute imposes no fetter on the latter outcome, a factor that surely plays a role in determining whether a failure to warn about the contemplation of that outcome constitutes a denial of procedural fairness. Nor does the common law mandate any such ratio: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 was relied upon in that regard.

64. Separately, it was said that for this Court to impose a requirement that sentencing magistrates and judges warn offenders and their lawyers about the contemplation of such an outcome would present practical difficulties.

65. It was also said that, in this case, the lawyer for the applicant was given an untrammelled opportunity to address on all aspects of the ratio. Indeed, it was submitted, he did raise (in support of special circumstances) the very matters that are now to be relied upon by counsel for the applicant in submitting that a lesser aggregate non-parole period would be appropriate on any re-sentence.

66. The relevant part of the written submissions of the Crown conclude with the proposition that nothing unfair to the applicant occurred in the proceedings on sentence; accordingly, there was no denial of procedural fairness to him.

Determination of second ground

67. To my mind, important aspects of the theoretical and practical background to resolution of this ground are as follows.

68. First, it is perfectly true that the sections do not impose a structural fetter on imposing a non-parole period that is greater than 75% of the head sentence. The prohibition in both s 44(2) and s 44(2B) is on imposing a non-parole period that is less than 75% of the head sentence, unless special circumstances are found.

69. Secondly, it is also true that this Court has spoken of the advisability of providing reasons for imposing a sentence with a ratio greater than 75% largely so that it can be clear that that was indeed intended, and not the result of a slip, mathematical oversight (especially in the context of cumulative sentences), and so forth. And that course, born of abundant caution, is not some sort of fetter either.

70. Thirdly, and in contrast to those matters of statutory structure, research by the Judicial Commission of New South Wales has shown that the practical reality is that it has been extremely common for a finding of special circumstances to be made.

71. As long ago as 2004, Spigelman CJ said in R v Fidow [2004] NSWCCA 172 at [20]-[21]:

“There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing “special” about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament’s intention that the statutory proportion apply unless “special circumstances” exist that justify departure from it, is not being carried out…The present study found that this is not the case and it is indeed something of a rarity for a sentence to reflect the statutory norm. Of all sentences of imprisonment imposed by the District and Supreme Courts in 2002, only 12.9% of sentences included a non-parole period of 75% or more of the full term, including 2.9% of fixed term sentences. It would appear, therefore, that ‘special circumstances’ must have been found in up to 87.1% of cases where imprisonment was ordered. A further finding is that departure from the statutory norm was not only frequent but also quite pronounced: The most common non-parole period/full term ratio was 50%, which occurred in almost a quarter of cases (23.7%)”.

72. Separately, in Sentencing Trends & Issues No 42 – “Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999”, published in June 2013, the following five salient aspects of sentencing in practice were noted.

73. First, previous studies by the Judicial Commission had shown that findings of special circumstances were “very common”.

74. Secondly, sentences of full-time imprisonment for State matters featuring a non-parole period in the District and Supreme Courts of New South Wales over a period of more than seven years were analysed in the study.

75. Thirdly, special circumstances were found in more than 91% of outcomes.

76. Fourthly, over 65% of sentences featured a ratio of 60% or less.

77. Fifthly, as one would expect, the Supreme Court more rarely found special circumstances than the District Court (no doubt because of the inevitable length of parole periods of murder sentences).

78. To my mind, there is nothing to suggest that those practical outcomes of longstanding in the criminal justice system as it actually operates have changed since 2013.

79. Nor is there anything to suggest that outcomes in the Local Court would be markedly different from those in the District Court (although I do accept that, due to the jurisdictional limits in the Local Court, it is possible that special circumstances reducing the non-parole period are more rarely found).

80. Nor is there anything to suggest that sentencing practice in the Drug Court is different to that in the District Court; indeed, one might perhaps expect a finding of special circumstances to be more common in the former Court than the latter, simply because of the subjective feature of addiction that is the pre-condition for an offender being dealt with in that jurisdiction.

81. In other words, I think one can confidently say that a finding of special circumstances is not rare. It occurs in a majority of cases. And it occurs in the overwhelming majority of cases in New South Wales Courts, other than the Supreme Court.

82. Fourthly, I am aware of no research about the proportion of cases in New South Wales in which a sentencing structure is imposed with a ratio above 75%.

83. But (as I have said) the most recent research shows that a sentence with a ratio of 75% or greater is imposed in approximately one in 10 cases in the superior courts.

84. One cannot know what proportion of that 10% of cases resulted in a ratio of 75%, and what proportion resulted in a greater ratio. But I would have thought that, in the vast majority of such cases, sentencing magistrates and judges do not go beyond the ratio that is mentioned in the statute, except unintentionally by mathematical error, cumulation, and so forth.

85. Adopting a conservative approach to that factual question for abundant caution, I proceed on the basis that fully half of the sentences in which special circumstances were not found featured a ratio that was greater than 75%. To be clear, I do not by any means think that that is the reality; to the contrary, I think that number of cases in which the ratio is greater than 75% would be a very small subset of that 10% of all sentences, perhaps 1 or 2 in 10. But I proceed on that basis, as I have said, to build in a margin for error in my analysis.

86. Fifthly, that leads to the following overview of practical sentencing outcomes. In about 90 out of 100 of sentences imposed in the Local Court, the Drug Court, and the District Court of New South Wales, special circumstances reducing the ratio are found. In no less than 5 out of 100 of such cases, a sentence is imposed in which the ratio is 75%. In no more than 5 out of 100 of such cases, the ratio is greater than 75%.

87. Sixthly, in other words, a finding of special circumstances is overwhelmingly common (18 out of 20 cases). In sharp contrast, the imposition of a sentence with a ratio greater than 75% is very rare (1 in 20 cases).

88. Seventhly, as a matter of statutory structure and sentencing theory, those two outcomes may be said to be merely different points on the same spectrum, or answers – differing by degree only – to the same question as to what the ratio should be. As a practical matter, however, and bearing in mind the overwhelming frequency of one and the rarity of the other, I think that they should be seen as sharply distinct outcomes.

89. Eighthly, it is true that the lawyer for the applicant had an unfettered opportunity to address the sentencing judge about all aspects of the ratio. That included, of course, speaking against a ratio that could be greater than 75%. But nothing had been said on behalf of the Crown to alert the defence advocate to the possibility of a ratio greater than 75%. Nor had anything been said by his Honour to alert him to that possibility. In light of the fact that an application had been made for a finding of special circumstances and a ratio that was less than 75%, the possibility of the imposition of a ratio greater than 75% would surely have been firmly resisted by the defence advocate, if he had been placed on notice that that could be the outcome.

90. Ninthly, with regard to the authorities relied upon by the Crown in this Court, I think that the situation here is more akin to that which arose in Parker than that which arose in cases in which either the Crown or the sentencing judge or both made an explicit or implicit representation that was ultimately relied upon adversely by the defence advocate. That is because the outcome here, as in Parker, was adverse, un-foreshadowed, and surely objectively and subjectively unexpected.

91. Tenthly, it is true that in Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318, this Court warned against imposing requirements for the provision of procedural fairness in proceedings on sentence that would render the criminal courts unworkable.

92. In the circumstances of this case, however, I do not think that the provision of notice by his Honour to the defence advocate of the possibility would have been unduly onerous or logistically unworkable.

93. If the possibility had struck his Honour during the hearing, a succinct statement to the effect that not only was it difficult to accept that special circumstances should be found, but also that his Honour was considering the possibility of a non-parole period that was greater than 75% of the head sentence, and inviting submissions on that topic, could readily have been made.

94. If the possibility had only struck his Honour after judgment had been reserved, it would not have been unduly onerous for his Honour’s associate to contact each of the lawyers by email, inviting very concise written submissions within a tight time-frame about the possibility that his Honour was considering.

95. Another alternative would have been a further hearing with further oral submissions, but I would be very surprised if that would have been necessary.

96. In short, as the Crown submitted in this Court, the requirement to provide procedural fairness depends on the particular circumstances of each case. As the Crown also submitted, the focus must be on the avoidance of practical, not theoretical, injustice.

97. I do not purport to suggest some inflexible rule of practice that sentencing magistrates and judges must, in every single case, have raised with the defence advocate the possibility of imposing a sentence with a ratio greater than 75% before doing so. Nevertheless, in the circumstances of this particular case – the silence of the Crown about the topic; the subjective features that could, depending upon one’s point of view of them, “cut both ways”; the recitation of matters by the defence advocate said to found special circumstances; the inference that the adverse outcome would have been firmly resisted by him if foreshadowed; the silence of his Honour; and the fact that judgment was reserved (permitting opportunity for further submissions, at the least in written form) – I consider that there has been a denial of procedural fairness to the applicant to the extent that the ratio between the non-parole period and the head sentence was substantially greater than 75%. I say that because there was a practical injustice done to him by the imposition of an aggregate sentence with that attribute, without his lawyer having been made aware that that was a possibility. That constitutes an error of law that should lead this Court to consider re-sentence.

98. Finally, I trust that what I have written above cannot be understood as a derogation from the important principles discussed in Zreikav R [2012] NSWCCA 44. That is because the principle for which that case stands is that appeals against sentence that are based upon the omission from the remarks on sentence of a factor that was not mentioned in the oral or written submissions of the defence advocate at first instance should seldom succeed. This unusual case, on the other hand, is founded upon the failure at first instance to mention the possibility of an exceptional and adverse outcome by the sentencing judge or the Crown, not the defence advocate, and yet that outcome occurred.

Re-sentence?

99. In a nutshell, counsel for the applicant submitted that, exercising the sentencing discretion afresh, this Court would not go beyond a ratio of 75%, and would impose a parole period of not less than 10 months, and accordingly a non-parole period of not more than 32 months, or two years eight months.

100. On the other hand, counsel for the Crown submitted that this Court would impose no lesser aggregate non-parole period than that imposed by Judge Barnett, in light of the multiplicity of offences, the fact that two of them were on an indictment (and one of which carried a standard non-parole period of five years), and the comprehensive failure of the applicant whilst having the benefit of the Drug Court program.

101. Turning to my determination of the question of re-sentence, as I have said, the aggregate head sentence of three years six months was not impugned by counsel for the applicant on re-sentence. In my opinion, bearing in mind the multiplicity of offences calling for sentence, the criminal record of the applicant extending over many years, the comprehensive failure of the applicant within the program, and his nebulous plans for the future, no lesser head sentence is warranted in law in any event.

102. In the same vein, counsel for the applicant did not submit that any of the indicative sentences imposed by Judge Barnett showed error and required adjustment. Nor do I see any call for such a step: they were neither directly nor indirectly impugned on appeal, and the aggregate head sentence founded upon them was not impugned either.

103. As for the aggregate non-parole period, I would not find special circumstances reducing it below 75% of the aggregate head sentence of 42 months (as I have said, that was not sought on behalf of the applicant in any event). That is because I see no reason to do so, in light of all of the factors referred to above.

104. On the other hand, nor do I see any call on re-sentence for the imposition of an aggregate non-parole period that is greater than 75% of the aggregate head sentence. In fact, to have the applicant incarcerated for a minimum period of three years, to be followed by less than six months of conditional liberty, is not just against his own interests. To my mind, it is against the interests of the community as a whole. That is because, in my opinion, such a sentence structure would do little or nothing to help the applicant address the underlying criminogenic factor that is the real subject of these proceedings: drug addiction.

105. Separately and finally, because the aggregate head sentence is greater than three years, the release to parole of the applicant at the end of his aggregate non-parole period is not automatic in any event. And I see no reason to prohibit the possible release of the applicant after he has completed three quarters of his head sentence, if that is judged to be appropriate by the State Parole Authority.

Proposed orders

106. I propose the following orders:

(1)   Leave to appeal granted.

(2)   Appeal against sentence allowed.

(3)   The indicative sentences provided by Judge Barnett in the Drug Court on 9 December 2016 are confirmed.

(4)   The aggregate sentence imposed by Judge Barnett in the Drug Court on 9 December 2016 is quashed.

(5)   The applicant is sentenced to an aggregate head sentence of three years six months expiring on 21 May 2019, with an aggregate non-parole period of two years seven months 15 days, each to date from 22 November 2015.

(6)   The first date upon which the applicant is eligible for possible release to parole is 6 July 2018.

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