CM v R

[2020] NSWCCA 136

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	CM v R [2020] NSWCCA 136
Hearing dates:	15 May 2020
Date of orders:	15 May 2020
Decision date:	19 June 2020
Before:	Payne JA at [1] Beech-Jones J at [2] N Adams J at [3]
Decision:	(1) Leave to appeal granted. (2) Appeal allowed. (3) Vary the sentence of Weber SC DCJ delivered on 8 November 2019 in the following way:  The non-parole period is to be 18 months, to commence from 6 November 2018, and to expire on 5 May 2020.
Catchwords:	CRIMINAL LAW – appeal against sentence – break into dwelling house and committing indictable offence – accumulation – statutory ratio between parole and non-parole period – special circumstances – mental health and drug use – effect of finding – resentencing
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5(1)(c), Crimes Act 1900 (NSW), s 112(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), s 23, s 44(1)(2)
Cases Cited:	Brennan v R [2018] NSWCCA 22 Calhoun v R (a pseudonym) v R [2018] NSWCCA 150 Choi v R [2007] NSWCCA 150 GP v Regina [2017] NSWCCA 200 House and The King (1936) 55 CLR 499: [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 2 McKinnon v R [2020] NSWCCA 106 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Bolamatu [2002] NSWCCA 454 R v Close (1992) 31 NSWLR 743; (1992) 65 A Crim R 55 R v Gill [2002] NSWCCA 93 R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Category:	Principal judgment
Parties:	CM (Applicant) Regina (Respondent)
Representation:	Counsel: Ms R Rodger (Applicant) Ms C Curtis (Respondent)   Solicitors: Ryan & Payten Criminal Law Specialists (Applicant) NSW Solicitor for Public Prosecutions (Respondent)
File Number(s):	2018/286608
Publication restriction:	Pursuant to the order of Weber SC DCJ on 10 October 2019 made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) there is to be no publication of material that identifies or is likely to lead to the identification of the applicant.
Decision under appeal	Court or tribunal: District Court Date of Decision: 8 November 2019 Before: Weber SC DCJ File Number(s): 2018/286608

Judgment

1. PAYNE JA: I have read the decision of N Adams J in draft. I agree with her Honour’s reasons which encapsulate my reasons for joining in the order on 15 May 2020.

2. BEECH-JONES J: The judgment of N Adams J encapsulates my reasons for joining in the orders made on 15 May 2020.

3. N ADAMS J: On 15 May 2020, the Court made the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Vary the sentence of Weber SC DCJ delivered on 8 November 2019 in the following way:

The non-parole period is to be 18 months, to commence from 6 November 2018, and to expire on 5 May 2020.

4. The applicant had sought leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Weber SC DCJ sitting in the Sydney District Court on 8 November 2019. As will be seen, the Crown conceded error and that concession was accepted by the Court.

5. These are my reasons for joining in the Court’s orders on that day.

Facts

6. As at 31 August 2018, the applicant was an inmate at the Compulsory Drug Treatment Correction Centre at Parklea Correctional Centre. On that date, he was granted day release to attend a Narcotics Anonymous meeting at Pilgrim House in Pitt Street in the Sydney CBD. He was required to travel by the most direct route to the meeting and then return directly. At 1.25pm that day, he was captured on CCTV entering the foyer of the Summit Apartments on George Street in the Sydney CBD.

7. The applicant managed to exit the lift on Level 11 and entered a unit on that floor. Between 1.28pm and 1.59pm he stole a number of items from the unit. They were a pair of Asics shoes; a navy blue coloured "Sketchers" drawstring bag; a grey/green coloured "G-shock" branded watch; an orange coloured document folder containing various currencies including approximately $500 USD, Indonesian Rupiah to the value of approximately $200-$300 (AUD), together with Singapore dollars, Malaysian Ringgit, and Saudi Riyal notes and coins; and approximately $20-$30 (AUD) in coins from a plastic teddy bear jar.

8. When police officers subsequently searched the applicant on 7 September 2018, the Asics shoes were found in his locker, the bag was found in his cell and he was wearing the stolen watch.

Proceedings on sentence

9. The applicant pleaded guilty in the Central Local Court on 14 March 2019 to one count of breaking into and entering a dwelling house and committing a serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is 14 years imprisonment.

10. On 10 October 2019, the applicant came before Weber DCJ SC for sentence. On that day, the Crown tendered the Crown sentence bundle which comprised an agreed statement of facts, the applicant’s criminal history and the applicant’s custodial history. Material was also tendered relevant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”).

11. On behalf of the applicant, a psychiatric report from Dr Richard Furst was tendered. The applicant also gave evidence on his proceedings on sentence. He expressed remorse and disclosed that he had become a “born-again” Christian. He also explained that he had taken a significant quantity of Xanax on the day of the offence. He suffered from cirrhosis of the liver and required a liver transplant.

12. The Crown provided written submissions on sentence. One of the submissions made by the Crown was that: “a period of strict supervision (either in custody or otherwise) would provide the offender with an opportunity to pursue rehabilitation. It would also benefit community protection while he did so”.

13. During the proceedings on sentence, the applicant’s counsel made the following submission.

“Your Honour will find some special circumstances based on his mental health and drug use”.

14. The applicant had a lengthy criminal history. At the time of the proceedings on sentence, he was serving the balance of the revoked Compulsory Treatment Order imposed by the Parramatta Drug Court on 31 March 2017, namely, an aggregate term of imprisonment of 4 years to date from 7 November 2015 and expiring on 6 November 2019 with a non-parole period of 3 years to expire on 6 November 2018. As a result of his re-offending, the applicant’s Compulsory Treatment Order was revoked on 26 September 2018 and he was transferred from the Compulsory Drug Treatment Correctional Centre within Parklea Correctional Centre back into the general prison population.

Remarks on sentence

15. His Honour sentenced the applicant on 8 November 2019.

16. After summarising the relevant facts, his Honour noted that the parties had agreed that the offence fell within the mid-range of objective seriousness and that imprisonment was the only appropriate sentencing option. He then noted at least five other occasions where the applicant had been convicted of similar offences. He agreed with the Crown submission that the Court should place greater weight on the sentencing purposes of retribution, deterrence and protection of the community, consistent with Veen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

17. His Honour then referred to self-reported brain injuries that the applicant had suffered as a child and which he had spoken about with Dr Richard Furst. In a report dated 7 June 2019 Dr Furst concluded that he may subsequently suffer from a neurocognitive disorder. His Honour did not accept this contention as it was not based on medical evidence.

18. His Honour noted that an aggravating feature of the offence was that it was committed while the applicant was on day release from a Corrective Centre. His Honour emphasised the need for general deterrence in break and enter matters, citing R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130. It was noted that, while the value of the goods stolen was “not insignificant”, the offending was opportunistic.

19. When addressing the mitigating factors, his Honour noted that the applicant pleaded guilty to the offence at an early stage and accordingly applied a 25% discount. He had also indicated matters relevant to s 23 of the Sentencing Act and discounted the applicant’s sentence by a further 15%.

20. His Honour accepted that the applicant had expressed genuine remorse and was “disgusted with himself”. He also observed that the applicant had given evidence of becoming a born again Christian, suffering from cirrhosis of the liver and that he "wished to do good before [his] time comes”. His Honour did not take any alleged self-induced intoxication into account and noted the requirements of instinctive synthesis outlined by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 2.

21. Under the heading “The Appropriate Start Date for any Sentence” his Honour stated the following at [34]:

“At the time of the offence, the offender had been serving a sentence of a final aggregate sentence of 4 years imprisonment, with a non-parole period which ended on 6 November 2018. In my view therefore, the true time already served in respect of the offence before the Court is since the time of the expiry of his non-parole period, namely 6 November 2018, and as such I propose to commence the offender's sentence from that date”.

22. His Honour went on to impose a term of imprisonment of 3 years with a non-parole period of 2 years and 3 months to commence from 6 November 2018.

23. Given the commencement date of the sentence and the ratio between the non-parole period and head sentence (75%), the applicant was serving an “effective” non-parole period of 5 years and 3 months and an “effective” head sentence of 6 years with the ratio between them of 87.5%.

GROUNDS OF APPEAL

24. The applicant relied upon the following two related grounds of appeal:

Ground 1: His Honour erred in failing to consider the totality of the effective sentence given the sentence accumulation upon the prior sentence;

Ground 2: His Honour erred in failing to consider special circumstances.

Special Circumstances

25. Section 44(1) of the Sentencing Act relevantly provides that, when sentencing an offender to imprisonment for an offence, the court must first set the non-parole period, being that portion of the sentence which the offender is required to serve in custody. Section 44(2) then provides that:

(2)  The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, 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).

26. The requirement in s 44(2) that, unless “special circumstances” are found, the “balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence” has been variously described for convenience as either “the one third rule” or the “statutory ratio.” I propose to refer to it as the statutory ratio. In practical terms, if the one third rule is applied, the non- parole period would not be less than 75% of the head sentence”. To put this another way, the statutory ratio between the non-parole period and the head sentence, in the event that special circumstances are not found, would not be less than 75%/25%.

Applicant’s submissions

27. The applicant contended under Ground 1 that the totality principle is applicable where an offender is serving an existing sentence when being sentenced by a second court: Mill v The Queen (1988) 166 CLR 59 at 66; [1988] HCA 70, Choi v R [2007] NSWCCA 150 at [157].

28. It was submitted that there was nothing to warrant a non-parole period that was greater than 75% of the head sentence being imposed and if that is what his Honour had intended he ought to have invited submissions from the parties on that point: Brennan v R [2018] NSWCCA 22 at [69].

29. As for the question of special circumstances, there was evidence before the sentencing judge outlining the applicant’s long-term drug addiction. There was the evidence of Dr Furst and the applicant also gave evidence on sentence. The applicant’s criminal record is consistent with him having had a long-term drug addiction since 2003. The custodial record also shows that the applicant has not been out of custody for any period longer than 16 months and that many of the sentences he served during that time were for short periods of between only one and three months.

30. Finally, it was submitted that error having being established a lesser sentence was warranted in law having regard to, in particular, the Judicial Commission statistics.

Crown submissions

31. The Crown submitted that there is no absolute rule that an accumulated non-parole period must be 75% of the head sentence. Nor is there any statutory requirement that reasons must be given when imposing a sentence with a non-parole period greater than the statutory ratio. Despite this, it was acknowledged that an absence of reasons for such a result may tell of error. It was submitted that when a s 23 discount is awarded there is a restraint on reducing the non-parole period lest it no longer bear any reasonable relationship with the objective seriousness of the offence: Calhoun v R (a pseudonym) [2018] NSWCCA 150 at [39]-[40].

32. The Crown noted that, although considerable attention had been given to the commencement date of the sentence, there was no reference to the question of special circumstances in the context of accumulation. The Crown conceded that there was nothing in either the Reasons or the transcript of proceedings on sentence to suggest that a ratio of 87.5% was intended by his Honour. On this basis, the Crown conceded that the sentencing judge had erred.

33. It was also submitted that it was too late for this Court to intervene and reduce the non-parole period for the sentence imposed by Weber SC DCJ given how much of that non-parole period the applicant had already been served. Despite this, if the ratio between the head sentence and non-parole period of the sentence imposed by his Honour was varied to 50% the “effective” ratio would be reduced from 87.5% to 75% and the applicant’s non-parole would expire on 5 May 2020, which was 10 days prior to the hearing in this Court.

Consideration

34. I am satisfied that the Crown’s concession was properly made in this matter. That concession was that the sentencing judge erred in failing to have regard to the fact that by maintaining the statutory ratio between the non-parole period and head sentence in the sentence he imposed, the applicant would be serving an “effective” non-parole period which was 87.5% of the head sentence. I accepted that concession was properly made for the following reasons.

35. Although s 44(2) of the Sentencing Act provides that reasons must be given for finding special circumstances and varying the statutory ratio so as to reduce the non-parole period, there is no statutory requirement to provide reasons for imposing a sentence in which the non-parole period is greater than the statutory ratio: GP v Regina [2017] NSWCCA 200 at [15]. Despite this, in Brennan v R this Court held that if a sentencing judge proposes to vary the statutory ratio so that the non-parole period is greater than the statutory ratio, notice should be given to the offender of an intention to do so, as a matter of procedural fairness. Furthermore, Button J (with whom Bathurst CJ and Hoeben CJ at CL agreed) observed at [69]:

“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.”

36. It had been submitted on the applicant’s behalf at the proceedings on sentence that a finding of special circumstances should be made in this matter on the basis of the applicant’s mental health and drug use. The Crown made no submission to the contrary and in its written submissions noted that a period of strict supervision was warranted. Regrettably, neither the DPP nor the applicant’s solicitor made any submission to his Honour as to the impact the accumulation of the sentence imposed by his Honour would have on the ratio between the “effective” non-parole period and “effective” head sentence.

37. It has been held that the accumulation of a sentence upon a pre-existing sentence may constitute special circumstances allowing a sentencing judge to reduce the non-parole period to less than 75% of the sentence being imposed. In GP v Regina, Hamill J (with whom Macfarlan JA and Button J agreed) observed the following at [16]:

“It was held at an early stage that accumulation of sentences may amount to special circumstances. In R v Simpson (1992) 61 A Crim R 58 Hunt CJ at CL said at 60-61 that ‘where the minimum term is accumulated upon an existing minimum term, that fact may of itself constitute special circumstances justifying a departure from the one third rule’. His Honour went on to say at 61:

‘I am satisfied that, by a logical extension of that principle, special circumstances may also exist in the appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and ineffective additional term – even if it is only to produce an effective additional term equal to, or roughly equivalent to, one third of the total minimum term which the prisoner is to serve’.” (Emphasis added.)

38. Hamill J went on in GP v Regina at [17] to note that similar statements have been made in a large number of other cases citing as examples: R v Close (1992) 31 NSWLR 743; (1992) 65 A Crim R 55, R v Bolamatu [2002] NSWCCA 454 and R v Gill [2002] NSWCCA 93.

39. Despite the fact that Judge Weber SC was clearly aware of the applicant’s previous sentence and submissions had been made on behalf of the applicant, unopposed, that special circumstances should be found, his Honour made no mention of special circumstances in his sentencing reasons and imposed a sentence in which the non-parole period was 75% of the head sentence.

40. I have had regard to his Honour’s reasons and I am not satisfied that his Honour intended a result which would require the applicant to spend 87.5% of the “effective” term of imprisonment in custody. On the contrary, I am satisfied that the issue was not brought to his Honour’s attention and was overlooked by his Honour. House v The King (1936) 55 CLR 499; [1936] HCA 40 error has been established.

41. Error having been established, the Court was required to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. As Payne JA recently observed in McKinnon v R [2020] NSWCCA 106 at [17], when error is established this court does not turn to assess “whether and to what degree the error by the sentencing judge influenced the outcome”. Rather, this Court’s power to intervene is enlivened and it becomes its duty to independently exercise its sentencing discretion: Kentwell v The Queen at [35].

42. By the time that this matter came on for hearing in this Court, the applicant had already served just over 75% of the “effective” non-parole period. There was no suggestion of undue delay on the part of the applicant’s lawyers. Rather, this situation arose because the commencement date of the sentence imposed by Judge Weber SC had been backdated. This meant that, by the time of the hearing in this Court, it was too late to impose a lesser sentence and vary the statutory ratio.

43. Given this time imperative, counsel for both the applicant and the respondent advanced a joint submission that a pragmatic approach would be for the Court to vary the 75% ratio for the sentence imposed by Judge Weber SC to 50%. This would mean that a 75% ratio would be achieved for the “effective” total term, the applicant could be released immediately and the applicant would still have a period of supervision available to him to assist in his rehabilitation. This was the course ultimately taken by the Court.

38. The fact that the Court accepted this practical approach to do justice to the applicant in the unusual circumstances of this case should not be seen as in any way derogating from the clear principle in Kentwell v The Queen that the Court must exercise its own independent sentencing discretion once error is established, rather than simply adjusting the sentence already imposed to correct the specific error that has been established.

Decision last updated: 19 June 2020