Campbell v R

[2018] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Campbell v R [2018] NSWCCA 17

Hearing dates:

27 October 2017

Date of orders:

14 February 2018

Decision date:

14 February 2018

Before:

Latham J
Bellew J
Campbell J

Decision:

(1)    Grant leave to appeal and allow the appeal;

(2)    Quash the sentence passed in the District Court on 14 December 2016 and instead sentence the applicant to a term of imprisonment, having a non-parole period of 2 years and 2 months commencing on 1 April 2016 and expiring on 31 May 2018 with an additional term of 2 years and 8 months commencing on 1 June 2018 and expiring on 31 January 2021.  The applicant will be first eligible for parole after the expiration of the non-parole on 31 May 2018.

Catchwords:

CRIMINAL LAW – appeal against sentence - misstatement of maximum penalty - whether sentencing judge acted on wrong maximum - evidence of progress toward rehabilitation since sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 33B, 51B, 61, 112, 154A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 33, 53A
Road Rules 2014 (NSW), reg 287
Road Transport Act 2013 (NSW), ss 53, 117

Cases Cited:

Andreata v R [2015] NSWCCA 239
Attorney General’s Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Builders Licensing Board v Mahoney (1986) 5 NSWLR 96
Donaghey v R [2015] NSWCCA 119
House v R [1936] HCA 40; 55 CLR 499
Kilgannon v Sharpe Brothers Pty Limited (1986) 4 NSWLR 600
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Newton v R [2009] NSWCCA 128
Zaky v R (Cth) [2017] NSWCCA 141

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Craig Campbell (Applicant)
Regina (Crown)

Representation:

Counsel:
T Quilter (Applicant)
M Cinque SC (Respondent)

  Solicitors:
F Cavadini (Aboriginal Legal Service)
C Hyland Solicitor for Public Prosecutions (Respondent)

File Number(s):

2015/273771; 2015/285582

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 December 2016

Before:

Judge Bennett SC

File Number(s):

2015/273771

Judgment

1. LATHAM J:    I agree with Campbell J

2. BELLEW J:    I agree with Campbell J.

3. CAMPBELL J:  On his pleas of guilty entered in the Local Court the applicant was convicted and sentenced in the District Court on 14 December 2016 to an aggregate term of imprisonment of 5 years and 6 months dating from 1 April 2016 and expiring on 30 September 2021 with a non-parole period of 2 years and 9 months expiring on 30 December 2018.  He was also disqualified from driving for 2 years.

4. The applicant seeks leave to appeal from the sentence relying upon the sole ground that in passing sentence the learned sentencing judge “erred by applying the wrong maximum penalties”. The error was said to be applying a maximum of 15 years for an offence of knowingly driving a stolen conveyance contrary to s 154A(1)(b) Crimes Act 1900 (NSW) (“Crimes Act”) when the correct maximum is 5 years. The same error is said to have been made in relation to similar admitted offending contrary to s 154A(1)(a) which was taken into account on a Form 1 appurtenant to the first count for which sentence was passed. That was an instance of break, enter and steal contrary to s 112(1)(a) of the Crimes Act.

Indicative sentences and statutory maximums

5. In passing sentence, his Honour indicated in accordance with s 53A(2) Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”), the following sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence (the non-consecutive sequence numbers reflect the way the matter was put at first instance):

Sequence 1 – break, enter and steal contrary to s 112(1)(a) Crimes Act  (Maximum penalty 14 years); indicative sentence 4 years imprisonment;

Sequence 2 – break, enter and steal contrary to s 112(1)(a) Crimes Act (Maximum penalty 14 years); indicative sentence 3 years imprisonment;

Sequence 3 – negligent driving contrary to s 117(1)(c) Road Transport Act 2013  (Maximum penalty is fine of $1,100); indicative sentence conviction recorded without further penalty (s 10A Sentencing Act);

Sequence 9 – police pursuit contrary to s 51B(1) Crimes Act  (Maximum penalty 3 years); indicative sentence 1 year 8 months imprisonment;

Sequence 19 – knowingly drive stolen conveyance contrary to s 154A(1)(b) Crimes Act (Maximum penalty 5 years, misstated as 15 years); indicative sentence 2 years imprisonment.

6. When dealing with the applicant for sequence 1, the learned sentencing judge, at the applicant’s request, took into account the following further five offences under s 33 Sentencing Act:

Sequence 5 – take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act.  (Maximum penalty, 5 years; misstated to be 15 years);

Sequence 10 – driving whilst never licensed contrary to s 53(1)(a) of the Road Transport Act 2013. (Maximum penalty, 18 months or a fine of $3,300.);

Sequence 11 – assault police officer contrary to s 61 of the Crimes Act. (Maximum penalty, 5 years.);

Sequence 14 – not giving particulars to other driver after collision contrary to regulation 287(1) of the Road Rules 2014. (Maximum penalty, fine of $2,200.);

Sequence 16 – threaten to use offensive weapon contrary to s 33B(1) Crimes Act. (Maximum penalty, 12 years.)

7. I repeat, and there is no dispute about this, that when referring to the s 154A(1)(b) offence the revised transcript of his Honour’s reasons records him as saying “the maximum penalty is imprisonment for 15 years” (Reasons p 1). Likewise there is no dispute that when referring to the s 154A(1)(a) offence on the Form 1, the transcript records his Honour as saying the “maximum penalty” is “15 years” (Reasons p 2). There is no record of his Honour having referred to the maximum penalty for any offence again in the balance of his reasons.

8. As I have said there is a single ground of appeal and none of the other facts, matters and circumstances relevant to sentencing for the offences before the learned sentencing judge was challenged on appeal.

The nature of the offending

9. The facts underpinning the offending were agreed below.  The summary I am about to recount is drawn from the statement of facts in the reasons of the learned sentencing judge.  The first offence was committed on Sunday, 6 September 2015.  The family occupying the home left their house at Glebe at about 8:50 am, securing the premises before they did so.  The applicant entered the rear courtyard of the premises via a lane, breaking in by smashing a window and unlocking it from the inside.  He ransacked the bedrooms on the lowest level; drank soft drinks from the fridge on the central level; and stole an Apple MacBook Pro computer, another Apple MacBook computer, an iPad, a silver fob, two other laptops belonging to the children of the house, an iPhone and a set of keys.  The offending was discovered upon the family’s return.  Crime scene examination recovered fingerprints and DNA samples matching the applicant.  The stolen keys and the iPhone were the only property recovered, being located nearby.

10. The second break, enter and steal offence was committed on 15 September 2015 at Pagewood. The home owner had left home at about 9:00 am that day, securing the premises before she did so. The home was protected by a closed-circuit television camera network. This system recorded images of the applicant apparently “casing” the home before entering the property down a side passage. He was recorded attempting to break in by using a screw driver to prise open a window before smashing a glass panel on the back door to gain entry. He stole an Apple iPad mini, a motorbike helmet, a leather motorbike jacket, keys to a motorbike, keys to a motor vehicle and the motorcycle which he located parked in the garage. Riding the motorcycle after quitting the curtilage of the home constitutes the s 154A offence included on the Form 1.

11. The third offence for which he was sentenced of negligent driving occurred at about 11:20 am on 17 September 2015.  I infer he was then driving the stolen black Audi S5 which was used for the commission of the police pursuit offence.  He was involved in a minor collision with another motor vehicle in the Sydney Harbour tunnel.  His failure to stop and exchange particulars with the other driver is the fourth Form 1 offence.

12. At about 11:40 am on the same day he committed the police pursuit offence. He had been observed by police while he was turning right contrary to a traffic sign, narrowly missing a collision with another vehicle. The police sought to pull him over, but he continued to drive in an attempt to evade apprehension. This constitutes the police pursuit. To his knowledge the Audi was stolen and driving it in the pursuit constitutes the s 154A offence for which he was sentenced.

13. Police activated the siren as the applicant attempted to accelerate away, initiating the pursuit.  The applicant collided with a parked Holden, dislodging its rear offside wheel which travelled some 20 metres onto Crown Street, obviously creating additional danger.  Because of the significant nearside front damage suffered by the Audi in that collision it went into a slide colliding with two other parked vehicles before coming to a halt in the intersection of Crown and Burton Streets, Darlinghurst. 

14. The offender took further flight on foot before attempting to hide in a construction site into which he was followed by pursuing police.  In a futile attempt to avoid arrest he thrust his right hand down the front of his trousers screaming at police “I have a gun, I have a gun, I’m going to shoot”.  This constitutes the threatening to use an offensive weapon charge on the Form 1.  I interpolate that given what his Honour regarded as the low level of relative criminality involved for that type of offence, his Honour decided it could be appropriately taken into account as a Form 1 offence. The pursuing officers were undeterred and were able to arrest and caution the applicant. 

15. While his custody was being processed at Kings Cross Police Station he became aggressive, striking one of the officers. This is the assaulting a police officer charge on the Form 1.  Routine police checks revealed that the applicant had never held a driver’s licence and his driving the Audi with that status is also a Form 1 offence.

16.  Importantly the learned sentencing judge noted that the subject offending occurred while the applicant was subject to parole, a significant aggravating factor.  He had been released to his parole on 26 August 2015, that is to say only two weeks before the commission of the first offence. He was therefore serving a sentence in the community for what the learned sentencing judge regarded as “comparable offending” (Reasons p 2) when the subject offending occurred.  His Honour’s impression of the similarity of the offending was based upon the agreed Statement of Facts for that previous offending.

Applicant’s subjective circumstances

17. The learned sentencing judge acknowledged that the applicant had entered a plea of guilty at the first available opportunity in the Local Court, adhering to that plea thereafter.  He determined that the applicant “shall have the discount of 25 per cent for utility applied to the indicative sentences that would otherwise have been specified for the individual offences after bringing into account the objective seriousness and the subjective case that was presented on behalf of the offender, including the extent to which he has demonstrated contrition and remorse” (Reasons p 3). 

18. The applicant was born on 29 May 1994 and was 22 years of age when sentenced, 21 at the date of the subject offending.  He is a young indigenous man whose parents had their own difficulties with substance abuse and the law.  He was raised by his grandparents of whom his grandmother was a very strict disciplinarian.  He last attended a general stream primary school in year 5, being placed in what the sentencing judge referred to as “a behaviour school in year 6”.  He continued to misbehave, leaving school in year 9.  He has never received any vocational education or training, and indeed has never had a job.

19. His substance abuse commenced at age 13 with cannabis, escalating to hallucinogens and ecstasy.  By 15 he was using methamphetamines which developed into a daily habit.  He was using that drug during the short period of conditional liberty preceding the subject offending and the applicant admitted to problems resisting drugs in prison when sentenced.  He was apparently also using cocaine on a daily basis, the illicit drug GHB weekly; and was misusing Xanax to come down from the methamphetamines.  He had begun drinking alcohol also at age 13.  He had undergone a period of residential drug and alcohol rehabilitation tailored for adolescence of six months duration which he said provided 12 months of abstinence only. Exposure to his former associates led him to, relapse and, follow “his old pattern” (Reasons p 12).

20. The learned judge accepted the views expressed by Ms Caroline Hare, forensic psychologist, in her report dated 1 December 2016.  His Honour also received the Justice Health clinical records relating to the applicant’s incarceration from September 2015 which were summarised in a memorandum prepared by his solicitor.  On the basis of this material, his Honour accepted a history of head injury when previously struck by a metal bar, but noted there was no neurological opinion about any ongoing effects.  His Honour did accept the diagnosis made when the applicant was in a mental health unit at the Metropolitan Remand and Reception Centre of schizophrenia and bipolar disorder. These mental illnesses were treated by anti-psychotic, anti-depressive and anti-anxiety medications while the applicant was on remand.

21. The psychiatric diagnosis was made against a family history of schizophrenia and a background of symptoms including command hallucinations, visual hallucinations and “delusional paranoid thoughts” (Reasons p 13).  The command hallucinations gave rise to thoughts of causing self-harm and harm to others.  The applicant’s criminal record was a poor one running to some 18 pages and commencing at age 14.  There was an on-going pattern of offending similar to the subject offending.  His Honour was aware that when sentenced on 14 December 2016 he had spent more than half of his then adult life in custody.

Relevant findings

22. His Honour accepted that the applicant’s background was one of profound deprivation engaging the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. He accepted the following opinion expressed by the psychologist (paragraph 11):

“In summary, [the applicant] is exposed to a range of developmental risks, including changes in primary care givers, harsh physical disciplining [by the grandmother], parental criminality, inadequate emotional support, and poor guidance and boundaries from his adolescence, and these factors will have negatively influenced his developmental projector.”

His Honour also said that the previous criminal history did not aggravate the objective gravity of the offending, but did inform the extent to which specific deterrence should be brought to bear (Reasons p 15).  His Honour accepted the applicant’s profound social deprivation explained his offending and reduced his moral culpability.  His Honour found that:

“there is no doubt that his background has been the reason why he is as he is and why he has formed his attitudes and committed his crimes” (Reasons p 15). 

His Honour accepted at least in general terms that the offending was unsophisticated involving limited planning or pre-meditation and “committed in circumstances where he was bound to be detected” (Reasons p 14). Also in general terms, his Honour accepted that the applicant’s history of offending was borne of his need to support himself and feed his drug habit. Leaving aside the motor vehicles, the property stolen was of limited value and the serious driving offences were of short duration; did not involve excessive speed; and were impulsive albeit involving significant damage and risk to the community.

23. The learned sentencing judge correctly referred to the principles engaged when sentencing a person suffering from a mental condition. In particular his Honour brought to mind the reduction in moral culpability involved, and the increased burden of the custodial sentence.  However, his Honour was not then satisfied that the applicant’s prospects for rehabilitation were good, notwithstanding a sincere demonstration of contrition and remorse.  The finding about rehabilitation was based upon the applicant’s continued drug use in custody, an important criminogenic factor for him.  This gave rise, bearing in mind his mental condition, to the need to make adequate provision for community protection.  His Honour also referred to the need when arriving at an aggregate sentence to properly take account of both aspects of the totality principle, extending to the need to take account of the offending the subject of the earlier sentence and its duration.  His Honour reminded himself that the Form 1 offending increased the need for denunciation and specific deterrence in relation to the principal offending in sequence 1 when considering the indicative sentence for that offending.

24. Finally his Honour exercised his discretion to commence the sentence on 1 April 2016, notwithstanding the applicant going into custody upon his arrest on 18 September 2015 because his earlier parole had then been revoked.

25. A finding of special circumstances was made because of the need for appropriate supervision to promote the applicant’s continuing rehabilitation upon release from custody into the community.

Applicant’s submissions

26. Mr Quilter of Counsel relied primarily on the judgment of Beech-Jones J (Ward JA and Adams J agreeing) in Andreata v R [2015] NSWCCA 239 at [28]. After analysing relevant authorities his Honour formulated the test as whether the sentencing judge had acted upon the erroneous maximum, which Beech-Jones J categorised as the species of House v R error of acting upon the wrong principle.  With reference to Markarian v R (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [31], Beech-Jones J said at [28]:

“Given the significance of the maximum penalty to the sentencing process … it is difficult to conceive of a circumstance in which the misstatement of the maximum sentence would not result in House v R error except perhaps, for example, if the balance of the reasons demonstrated that the sentencing judge in fact acted on the basis of the correct maximum penalty.”

Mr Quilter also referred to a number of other cases where this Court had intervened because of the application of an incorrect maximum penalty, including Donaghey v R [2015] NSWCCA 119. Counsel acknowledged cases where notwithstanding misstatement no error had been made out: Zaky v R (Cth) [2017] NSWCCA 141 ("Zaky”) and Newton v R [2009] NSWCCA 128 (“Newton”).  It was argued that there was nothing in the circumstances of this case to suggest the learned sentencing judge had not acted on the misstatement.

27. Mr Quilter also read an affidavit of the applicant affirmed on 23 October 2017 on the usual basis detailing his progress towards rehabilitation whilst in custody in case it was necessary for the court to re-exercise the sentencing discretion.  Mr Quilter addressed the Court very eloquently on the importance of the correct application of the totality principle in a case involving a young indigenous man from a socially deprived background.

The Crown submissions

28. Ms Cinque SC for the Crown submitted, first, having regard to the careful comprehensive reasons given below it should be inferred that the misstatements of the maximum penalties on the face of the judgment were mis-transcriptions. It was unlikely the judge would have made such an obvious error. Secondly, if not mis-transcriptions they may have been mere verbal slips given the sentence was passed orally on an ex tempore basis and the Crown summary provided to the Court set out the correct maximum. Thirdly, it was submitted that the sentence indicated for sequence 19 (the s 154A offence) was more consistent with the correct maximum of 5 years having regard to the applicant’s record for driving related offences. Fourthly, there was no suggestion that the Crown had led his Honour into error as to the maximum. Fifthly, the references to the 15 year maximum were at the beginning of the judgment and were not repeated. By reference to Newton v R it was argued the misstatement could have had no bearing on the exercise of the sentencing discretion. Ms Cinque also argued that no other, lesser sentence was warranted in law having regard to the seriousness of the offending particularly bearing in mind that the s 154A offending was part of a series of related offences involving the police pursuit.

Decision

29. I am satisfied that the learned sentencing judge fell into House v R error by acting on the erroneous maximum penalty stated in his judgment for sequence 19, the s 154A(1)(b) offence. In arriving at this conclusion I have relied upon what Beech-Jones J said in Andreata v R at [28] set out above (at [26]), and also the judgment of Bellew J (Bathurst CJ and Simpson J agreeing) in Donaghey v R [2015] NSWCCA 119 at [19]-[21]. There his Honour said of arguments advanced by the Crown in that case which were similar to those advanced here:

“In my view the position taken by the Crown invites impermissible speculation.  The simple fact is that the maximum penalty stated by the sentencing judge was incorrect…. The terms of the judgment reflect careful preparation, a circumstance which tends completely against the position taken by the Crown.”

In my judgment his Honour’s observations are equally apposite to the case at hand.  Although the judgment was ex tempore, as I have said, it was obviously the product of careful thought and preparation by his Honour and was indeed, otherwise comprehensive. It was also said to have been “revised” which makes it unlikely that the error was either a mis-transcription or a mere slip. Such matters would in all probability have been picked up and corrected during revision. 

30. I appreciate that Latham J in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 (“Baxter”) at [84] acknowledged that where only one maximum penalty is misstated among many offences carrying significantly higher maximum penalties, it will be difficult to say that the sentencing judge has acted upon the error.  In the present case, the maximum as misstated by the sentencing judge was higher than the maximum for any of the other offences.  Moreover, her Honour expressed the general rule (at [83]) as depending upon whether the error has the capacity to infect the sentencing discretion, “regardless of whether it can be demonstrated that the error has in fact influenced the outcome”.  And Baxter itself was a case where the relevant error was a misstatement of a maximum penalty for one of two serious offences each of which carried other serious offending on a Form 1.  The error requiring intervention was the misstatement of the maximum in respect of one only of the two principal offences.  Her Honour agreed with the other judges (Spigelman CJ and Kirby J) that the error there required intervention.

31. In Markarian at [30]-[31] the plurality emphasised the importance of the maximum penalty in the following way:

“Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance.

……

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”

As Beech-Jones J recognised in Andreata, this passage makes it difficult to assume that a sentencing judge has not acted on a stated maximum penalty unless the contrary is clearly shown by reference to materials properly before the Court.

32. Zaky and Newton demonstrate that a review of all of the material before the Court may satisfy it that notwithstanding a misstatement of the maximum on the face of the reasons for sentence, the error was not operative in the sense the Court can be confident the sentencing judge in fact bore in mind and applied the correct maximum.  For the reasons given by Hoeben CJ at CL (Garling J and Bellew J agreeing) at [54]-[60] Zaky was a very clear case; Newton perhaps somewhat less so.

33. In the absence of such clarity on the materials, given the duty of the Court to avoid speculation and as it is not for the Court to assess “whether and to what degree the error influenced the outcome”: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42], I am of the view that error has been made out. I am not persuaded by the circumstance that the s 154A maximum was mentioned once only at the outset offsets this impression in this case. The same mistake was made twice; each time a s 154A offence was mentioned. All other maximums were mentioned only at the outset also, but each one correctly. That the Crown summary contained the correct maximum does not persuade me that the learned judge in fact acted on the correct maximum.

Some points of practice

34. Given a certain prevalence of appeals on this ground, I consider it very important that legal practitioners appearing on proceedings on sentence should be very astute to correct such misstatements when they occur. If a sentencing judge in giving his or her reasons orally in open court, through mistake or by inadvertent slip, misstates the maximum penalty it is the duty of the practitioners appearing to correct the error, I would say immediately, even by interrupting the judge to draw his or her attention to the matter; or if not immediately then as soon thereafter as it can be done before the proceedings are concluded and preferably before sentence is passed.  By that means a slip can be corrected and a mistake may be expunged, even if in the case of the latter it is necessary for the judge to review the decision in his or her own mind to decide whether the mistake has made a difference. A judge could only be grateful to have the matter drawn to his or her attention then and there so that an unnecessary appeal may be avoided.

35. In cases where it is to be argued that there has been a mis-transcription of the judge’s reasons, the established practice in the Court of Appeal should be followed: Kilgannon v Sharpe Brothers Pty Limited (1986) 4 NSWLR 600 (“the Kilgannon Case”) at [611D], [633D]; Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 (“the Builders Licensing Board Case”) at [93E]-[93F].  In Kilgannon at [611] Kirby P said:

“Where parties contend that the transcript is imperfect and where there is no agreement between counsel as to what

transpired, so that this can be placed before the Court and acted upon by it,

the party alleging a defect or error in the transcript should file and serve

affidavits, so that the issue can be dealt with in a regular way: see Builders Licensing Board v Mahoney (1986) 5 NSWLR 96.”

The absence of affidavit evidence from a person or persons present at the proceedings on sentence is very likely to leave this Court with the conviction that it is being asked to indulge in impermissible speculation. 

Misstatement of the maximum of the Form 1 offence

36. As I have said already, the same error by misstatement was made in respect of the s 154A(1)(a) offending to be taken into account on the Form 1. Having regard to the nature of the procedure prescribed by s 33 of the Sentencing Act  I am not persuaded that this constitutes an error of principle acted on by the sentencing judge.  It is axiomatic that the maximum penalty is relevant to punishment and there may be no punishment without conviction:  Attorney General’s Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (“Attorney General’s Application”) at [23] and the cases there referred to. It is impermissible under the statute to impose punishment for the Form 1 offences: Attorney General’s Application at [29]. That a court sentencing for a principal offence takes the Form 1 matters into account with a view to increasing the penalty that would otherwise be appropriate does not mean that the sentence is being imposed for the Form 1 offences:  Attorney General’s Application [42]-[45].

37. I acknowledge that the maximum penalty for a Form 1 offence may be relevant to the question whether the s 33 procedure should be adopted for that offence. But that is a different question. Once the s 33 procedure is embarked upon notwithstanding a likely unquantified and unquantifiable increase in the sentence for the principal offence, it cannot be said legally that the sentencing judge has acted on the maximum for the Form 1 offence whether it has been misstated or not.

Is a lesser sentence warranted?

38. Given my conclusion in relation to appellable error, it is incumbent on me to re-exercise the sentencing discretion to determine whether a lesser sentence than that passed by the sentencing judge is warranted. As I have emphasised there is no other challenge to the facts, matters and circumstances found and taken into account by the learned sentencing judge. Except for one matter, it is therefore appropriate that I should approach the re-exercise of the discretion on the same basis. I will not set them out again. I have fully summarised them at [7]-[25] above. The one exception relates to the applicant’s prospects of rehabilitation. As I have said at [23] above, the learned sentencing judge was not satisfied that the applicant’s prospects of rehabilitation were good mainly because of his continued drug use in custody. Taking into account the contents of the applicant’s affidavit of 23 October 2017, I have formed a more positive view about this matter: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [11].

39. From the affidavit I accept that there has been improvement in his prospects during his time in custody.  This relates to his compliance with his anti-psychotic, anti-depressant and anti-anxiety medication, and because I accept that he is now on a methadone program. Since its commencement at about the beginning of 2017 he has not used illicit drugs.  This statement is corroborated by the custodial history annexed to the affidavit of his solicitor, Ms Francesca Cavadini affirmed on 23 October 2017. The record demonstrates an absence of infringements of prison discipline relating to illicit drug use and an absence of infringements of any type since March 2017.  As a result of this compliance with his medication, it has been possible to reduce its dosage. 

40. He is now being held in the Junee Correctional Centre, but because of a previous conviction for escaping from police custody as a juvenile, he has a relatively restricted classification which prevents him from gaining employment in gaol and restricts his access from various sections of the gaol.  He expresses a commendable desire for a fresh start when released from custody.  He will be able to live with a relative outside of Sydney and away from his previous criminal associates. He fully appreciates the need to continue taking his medication and stay clear of drugs.  The symptoms of his schizophrenia have diminished; he no longer suffers hallucinations and his paranoia is greatly reduced. 

41. Doubtless one should, given his record, accept this evidence with a degree of circumspection and he will require close supervision if released on parole. However, given his relative youth and the progress he seems to have made in relation to treatment for his mental illness and his drug addiction, I am satisfied on the balance of probabilities that if he continues on this path, with adequate supervision, and living in a place where he is not under the influence of his former associates that he has reasonable prospects of rehabilitation.

42. Given all of these matters and bearing in mind the mitigation of moral culpability provided by his background of profound social deprivation and mental illness, I am satisfied that a lesser sentence than that imposed by the learned sentencing judge is warranted.

43. Having regard to the objective seriousness of the offending, his previous record and the aggravating circumstance of the commission of these offences while on parole there can be no question but that no other sentence than fulltime custody is appropriate.

44. Bearing in mind the matters summarised, in particular at [22]-[27], above, adjusting the finding in relation to prospects of rehabilitation, and having regard to the guidepost provided by a maximum penalty of 5 years imprisonment for sequence 19, I would have imposed the following sentences, making an allowance of 25 per cent for the early plea, were I to impose separate sentences rather than an aggregate sentence:

1. sequence 1: break, enter and steal contrary to s 112(1)(a) Crimes Act taking into account the offending on the Form 1, a sentence of 3 years and 6 months imprisonment;

2. sequence 2: break enter and steal contrary to s 112(1)(a) Crimes Act, a sentence of 2 years and 8 months imprisonment;

3. sequence 3: negligent driving contrary to s 117(1)(c) Road Transport Act 2003, record a conviction under s 10A Sentencing Act without further penalty;

4. sequence 9: police pursuit contrary to s 51B(1) Crimes Act, a sentence of 1 year and 8 months imprisonment;

5. sequence 19: knowingly drive stolen conveyance contrary to s 154A (1)(b) Crimes Act, a sentence of 1 year and 4 months imprisonment.

45. I would maintain the finding of special circumstances made by the learned sentencing judge substantially for the reasons he gives. And I would maintain the commencement date of 1 April 2016, having regard to the unexpired additional term of the previous sentence to which he was subject at the time of the commission of these offences.

46. I would fix an aggregate sentence of 4 years and 10 months with a non-parole period of 2 years and 2 months.  I appreciate the non-parole period I have fixed is about 45 per cent of the maximum term.  This is a smaller proportion than the 50 per cent fixed by the sentencing judge.  In fixing the sentences, as I have said, I have taken into account the evidence that suggests that the applicant’s prospects of rehabilitation are better than they appeared when he was first sentenced. I have had regard to his compliance with treatment in custody which has controlled and much reduced the symptoms of his schizophrenia. This circumstance lessens somewhat the need for community protection to be reflected in the length of the minimum term he must serve in custody.  At the same time, his record, his previous substance abuse and the tendency for him to become non-compliant with medication when at large bespeak the need for a longish period of presumably fairly close supervision to assist him to achieve his rehabilitative potential.  That he should do so is, of course, in the community’s interest.

47.  For these reasons the orders I propose are:

1. Grant leave to appeal and allow the appeal;

2. Quash the sentence passed in the District Court on 14 December 2016 and instead sentence the applicant to a term of imprisonment, having a non-parole period of 2 years and 2 months commencing on 1 April 2016 and expiring on 31 May 2018 with an additional term of 2 years and 8 months commencing on 1 June 2018 and expiring on 31 January 2021.  The applicant will be first eligible for parole after the expiration of the non-parole on 31 May 2018.

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Decision last updated: 15 February 2018