Cole v The Queen
[2019] ACTCA 3
•21 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cole v The Queen |
Citation: | [2019] ACTCA 3 |
Hearing Date: | 15 February 2019 |
DecisionDate: | 21 February 2019 |
Before: | Murrell CJ and Elkaim, Charlesworth JJ |
Decision: | See [46] |
Catchwords: | APPEAL - GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – nonparole period – manifest excess – principles of totality |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 65, Pt 5.2 |
Cases Cited: | Bugmy v The Queen [1990] HCA 18; 169 CLR 525 Dalton v The Queen [2015] ACTCA 48 |
Parties: | Scott Cole (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S McLaughlin (Appellant) Ms M Jones (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 29 of 2018 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 15 December 2017 Case Title: R v Cole Citation: [2017] ACTSC 404 |
THE COURT:
The Appeal
On 29 February 2016 the appellant murdered Mr Jason Hollingshed (the deceased). On 2 March 2017 he pleaded guilty to this offence. On 15 December 2017 the appellant was sentenced by Burns J. The sentence was as follows:
(a)A term of 21 years’ imprisonment commencing on 29 February 2016 and ending on 28 February 2037.
(b)A nonparole period of 17 years and nine months’, commencing on 29 February 2016 and expiring on 28 November 2033.
The appellant has no complaint with the primary term of imprisonment. His appeal is concerned only with the nonparole period. He says there are two flaws:
(a)The sentencing judge did not give reasons for selecting the nonparole period; and
(b)The nonparole period is manifestly excessive.
The nonparole period is 84.5% of the head sentence.
At the commencement of the hearing counsel for the appellant said that he was not pressing Ground 1 of the appeal.
When questioned about this he said that, in effect, he was merging the two grounds of appeal.
Accordingly, it was an integral part of Ground 2 that there was no adequate explanation for the asserted excessive nonparole period.
Background
Although there is no dispute about the head sentence, and the primary judge acted on an agreed Statement of Facts, it is nevertheless appropriate to summarise the background to the murder.
The appellant and the deceased lived in separate units in the same block at Stuart Flats in Griffith in the Australian Capital Territory. A friendship they had once enjoyed ceased in 2015 apparently after the deceased made an unseemly comment to the appellant about his partner.
Consistent with the animosity between the appellant and the deceased, the appellant from time to time made derogatory remarks about the deceased to a another person, referred to as DH.
On 29 February 2016 the deceased went to Canberra Hospital to collect his dose of methadone. The appellant also received his methadone dose on the same day, but from a different source. During the day the screen door to the deceased’s unit was damaged.
At about 3:30pm on the same day the deceased returned to the flats and saw the damage to the screen door. He confronted the appellant, accusing him of damaging the door. After an exchange of un-pleasantries the appellant returned to his unit and obtained a kitchen knife with a 20cm blade. He went to the deceased’s unit and repeatedly stabbed the deceased, in particular to his upper body. The deceased, unable to weather the storm, fell to the ground. The appellant stabbed him in the neck. The deceased died as a result of the attack.
The appellant returned to his unit where he washed the knife and the blood from his face. He changed his clothes and inflicted cuts to his arms and face so as to present as having been attacked by the deceased. The police arrived at about 4:30pm. Following short questioning, the appellant said to one of the officers: “I fucking stabbed him. I hope he’s dead”.
Nonparole periods generally
The setting of a nonparole period is an important part of the sentencing procedure. Often the length of the nonparole period will be as important to an offender, and the public at large, as the overall term of imprisonment. It follows that nonparole periods are equally susceptible to arguments of manifest excess or inadequacy as are head sentences.
It is not necessary here to repeat the well-known principles that attach to an examination of whether a sentence is manifestly too long or too short. Suffice to say that these principles rely on the basic proposition that a sentence will not be interfered with, on the basis of adequacy, unless it is unreasonable or plainly unjust (see for example Dalton v The Queen [2015] ACTCA 48 and, more recently, Parker v The Queen [2018] ACTCA 58).
Nonparole periods are governed by Part 5.2 of the Crimes (Sentencing) Act 2005 (ACT). Section 65 of the above Act says a nonparole period must be set if an offender is sentenced to a term of imprisonment of one year or longer. The Act does not dictate the length of any nonparole period nor does it state that a nonparole period must equate to any particular percentage, or fall within a range of percentages, of the head sentence.
In Lowe v The Queen (1984) 154 CLR 606 at 610, Gibbs CJ stated this general principle:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
R v Toumo’ua [2017] ACTCA 9 was a Crown appeal. One of the grounds argued was that the sentencing judge had applied a practice of setting an inadequate nonparole period based on the offender not presenting a direct danger to the community. The court referred to a number of authorities concerning the setting of nonparole periods and summarised, from [95], the principles in this way:
95. The Sentencing Act says nothing about the length of a nonparole period, its purpose or its relationship to the total head sentence, although s 65(4) provides:
However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender’s antecedents.
Section 65(4) may be invoked, for example, in an extreme case where an offender has committed a very serious personal violence offence and has a history of such behaviour. In that case, the sentencing court may conclude that the absence of rehabilitation prospects and the continuing risk of serious harm to the community warrant the withholding of a nonparole period.
96. In Power v The Queen [1974] HCA 26; 131 CLR 623 at 629 the plurality (Barwick CJ, Menzies, Stephen and Mason JJ) said that the purpose of providing for parole in the legislation thereunder consideration was:
... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
That approach was applied by this Court in Millard v The Queen [2016] ACTCA 14.
97. There must be an “appropriate relationship” between a head sentence and the associated nonparole period. In Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, Gibbs CJ (Wilson J agreeing) said:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
98. In Inge v The Queen [1999] HCA 55; 199 CLR 295 at [57], Kirby J said:
The Court’s approach in Deakin constituted a rejection of the view that all the judge was doing was to fix a minimum term after which it would be proper to transfer the evaluation of the prisoner’s prospects of rehabilitation to agencies of the Executive Government.
At [59] his Honour said:
... the non-parole period must necessarily bear a relationship to the sentence of imprisonment which is imposed ... It represents that portion of the sentence which, in the opinion of the court imposing the sentence, must actually be served in custody by the prisoner. In the ordinary case, where a head sentence comprises a determinate period in prison, the non-parole period will constitute a substantial part of that sentence ... The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. (citations omitted)
99. Recently, in Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47], Hoeben CJ at CL (Latham and Price JJ agreeing) emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Further, the need for rehabilitation had to be balanced against the overarching requirement (in that case, found in s 16A(1) of the Crimes Act 1914) that the sentence be of a severity appropriate in all the circumstances of the offence.
100. In Taylor v The Queen [2014] ACTCA 9 at [19], this Court summarised the proper approach to fixing a nonparole period as follows:
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakinv The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmyv The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Ingev The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods.
The court continued at [102]:
102. In fixing a nonparole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low nonparole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
103. Ordinarily, a nonparole period should constitute a substantial part of the total sentence. In some cases, a nonparole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low nonparole period is set, the sentencing court should explain why, in the particular case, it considers that the low nonparole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.
The appellant, in written submissions, has quoted extensively from R v Flowers [2014] ACTCA 13. This was a Crown appeal in which it was submitted, inter-alia, that a nonparole period was manifestly inadequate. The primary judge had imposed a head sentence of six and a half years. The nonparole period was 18 months, which is about 23% of the head sentence.
The appeal in Flowers was successful. The court found that the nonparole period was manifestly inadequate and reset it to three years (about 46%). Ross J, with whom Refshauge and Penfold JJ agreed, said this, at [50]:
In determining whether the non-parole period set was manifestly inadequate we must consider all of the matters that are relevant to fixing the non-parole period. To do so invariably requires an assessment of all relevant purposes of sentencing. Though the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
Ross J continued at [55]:
It may be accepted that the non-parole period fixed in this case was unusual and that reasons for taking that course should have been given. The absence of reasons specifically addressing what may be characterised as a very short non-parole period relative to the head sentence invites appellate scrutiny.
The just quoted passage from Flower is effectively no more than a statement that a judge, reaching a particular decision which is central to the matter before him or her, must give reasons for that decision.
The need to give reasons was stressed in Millard v The Queen [2016] ACTCA 14. The Court said at [65] that “….it is helpful to the court on appeal if a sentencing court articulates the reasons for setting a nonparole period, or at least for setting an unusual nonparole period.”
The Court in Millard went on to state a number of propositions arising from the assessment of an unusual nonparole period. The court quoted with approval from Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 at 194-5; at [43]:
(1)When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.
(2)A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive.
(3)Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny.
(4)The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom.
(5)The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release.
(6)The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case.
(7)It follows from (5) and (6) that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.
(8)All the relevant factors have to be taken into account. They are many and varied, but they include —
(a)that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.
Both parties referred to this passage from the High Court’s decision in Bugmy v The Queen (1990) 169 CLR 525 at 530 (Mason CJ and McHugh J, albeit dissenting in the final result):
17. It has been said that "(t)he intention of the legislature is that a minimum term is a benefit to the prisoner": Iddon & Crocker v. The Queen (1987) 32 A Crim R 315, at pp 325-326; and so it is. The effect of fixing a minimum term is that the Parole Board may thereafter, in the exercise of its discretion, grant parole: Corrections Act 1986 (Vict.), s.74(1); Community Welfare Services Act 1970 (Vict.), s.195(1), since repealed. But that does not mean that the sentencing judge, in fixing the minimum term, approaches the task on the footing that he or she is solely or primarily concerned with the prisoner's prospects of rehabilitation. Power v. The Queen[1974] HCA 26; (1974) 131 CLR 623 put paid to that notion. Barwick C.J., Menzies, Stephen and Mason JJ. observed (at p 628):
"In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention."
After pointing out (at p 628) that the fixing of the non-parole period was concerned with deterrence, their Honours went on to say (at p 629):
"To read the legislation in the way we have suggested fulfills the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
That comment was repeated in the unanimous judgment of the Court in Deakin, at p 367; p 766 of ALR. See also Reg. v. Paivinen[1985] HCA 39; (1985) 158 CLR 489, at p 495; Reg. v. Watt[1988] HCA 58; (1988) 165 CLR 474, at p 481. Although Power concerned different legislation, no relevant distinction with the Victorian law is suggested.
18. Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan (1980) 7 A Crim R 146. In that case Jenkinson J., with whom Kaye J. agreed, pointed out (at p 155) that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community "will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice".
19. Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.
20. A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence (Veen v. The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, at p 477), whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.
21. In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation. If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term.
This nonparole period
Consistent with Taylor the mere fact that the nonparole period is out of the norm of 50% to 70% does not of itself indicate error. The appellant’s submission, however, is that it is so far above the 70% that the sentencing judge should have, at the very least, given an explanation for applying such a high percentage.
There can be little doubt that 84.5% is an “unusual nonparole period”. Consistent with the principles taken from Josefski, the nonparole period “invites appellate scrutiny”.
The first mention of a “nonparole period” in the primary judge’s sentencing remarks is in the final orders, at [38].
The Chief Justice observed in Taylor that where there were limited prospects of rehabilitation “the sentencing judge was entitled to impose a relatively substantial nonparole period”. The nonparole period in Taylor was a little short of 70% of the head sentence.
As already quoted from Taylor, “an offender’s prospects of rehabilitation are important to the fixing of the nonparole period”.
In this matter the sentencing judge said the following about rehabilitation at [36]:
It is difficult to assess your prospects for rehabilitation, particularly as you are not likely to be released from prison for many years. At the present time, bearing in mind your age, your history and your lack of engagement with appropriate services in custody, I would assess your prospects for rehabilitation as poor. I acknowledge, however, that over the period which you will be required to serve in custody that may change. At the present time you clearly present as a danger to the other members of the community, particularly when affected by alcohol and drugs.
This passage about rehabilitation certainly justifies a nonparole period which might be regarded as generally high. This court does not suggest that all nonparole periods should be within a particular range but does recognise that a nonparole period in excess of 70% of the head sentence would be unusual and, if in excess of say 75%, would be most unusual.
If prospects of rehabilitation were the only matter relevant to the setting of a nonparole period the comments made by the primary judge would not amount to sufficient reasons for setting a period in excess of 80% of the head sentence.
However, as the above passage from Bugmy shows, rehabilitation, although very influential, is not the only matter which dictates the length of the nonparole period. To the contrary Bugmy states that “the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence”. Rehabilitation may play a greater part in setting the minimum term but it should not be regarded as the factor which solely dictates the nonparole period.
Thus, the respondent submitted, all of the sentencing remarks made by the primary judge could be seen as forming part of the reason for his ultimate assessment of the nonparole period. It was pointed out that his Honour dealt with all of the matters that would normally be considered in the sentencing of an offender. They included the details of the offence, the objective seriousness of the offence, the appellant’s subjective factors and all of the other matters that the Crimes (Sentencing) Act 2005 (ACT) states are considerations important to the sentencing of an offender.
It did not matter, said the respondent, that his Honour did not specifically state that the selected nonparole period was a product of particular considerations. This was not necessary because, as stated in Bugmy, the considerations “will be the same as those applicable to the setting of the head sentence”. On this basis the primary judge had given detailed reasons for his conclusion about both the head sentence and the nonparole period.
There is force in this argument but it omits this ingredient: while his Honour may have considered and referred to all the relevant features, he does not explain why he decided upon such an unusually high nonparole period.
The Crown further submitted that it had made submissions to the primary judge about the appellant’s criminal record consistent with the comments of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 and which, if accepted, would have provided further reason for the nonparole period. There are two difficulties with this submission: firstly if his Honour did rely on anything said in Veen, he made no reference to it in his sentencing remarks, and secondly and more importantly, the nature and extent of antecedents referred to in Veen do not exist in this case.
Referring to the offender’s record, the Crown particularly described the 2010 offence as revealing disturbing similarities with the subject offence. It was submitted that this history supported a lack of prospects of rehabilation. It is to be noted however that the sentence imposed for the 2010 offence was 1 year and 9 months, suggesting significant mitigating factors.
Had the nonparole period been, say, between 70% and 75% of the head sentence, the respondent’s argument would probably have succeeded. However at 84.5% it is the opinion of this Court that his Honour should have specifically stated the basis upon which he reached his nonparole period.
Having identified error the question arises as to whether or not the nonparole period should be adjusted.
As already noted, his Honour provided a comprehensive analysis of the crime and a full description of the appellant and his background. His Honour assessed the objective seriousness of the offence as in “the medium to upper range of such offences”. He said the offence was one “which calls for a very lengthy term of imprisonment”. His Honour took into account the plea of guilty and reduced the head sentence from 24 years to 21 years to reflect a discount for the plea. This is about a 12.5% reduction.
Paragraph 36, in which His Honour discusses the prospects of rehabilitation, has been set out above. The prospects were rated as “poor”. Nevertheless his Honour accepted the possibility that time in custody could mitigate this assessment.
All of the objective and subjective matters accurately listed by his Honour combine to suggest that the nonparole period might be higher than would otherwise be expected. However they do not do so to an extent which justifies a nonparole period as high as the present one. This nonparole period may be classified as unreasonable and unjust. His Honour’s contemplation of a change in the prospects of rehabilitation is effectively blunted by the lack of incentive which is derived from the length of the nonparole period.
Adopting all of the factors, including prospects of rehabilitation, taken into account by the primary judge, and recognising that a longer than usual nonparole period is appropriate, this Court is of the view that the nonparole period should be 15 years. This equates to just over 71% of the head sentence. On this basis the nonparole period will expire on 28 February 2031.
Orders
The court makes the following orders:
(a)The appeal is allowed.
(b)The sentence of 21 years’ imprisonment commencing on 29 February 2016 and ending on 28 February 2037 is confirmed.
(c)A nonparole period of 15 years is set, commencing on 29 February 2016 and ending on 28 February 2031.
| I certify that the preceding forty six [46] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Elkaim and Justice Charlesworth. Associate: Date: 21 February 2019 |
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