Denniss v The Queen
[2019] ACTCA 26
•4 October 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Denniss v The Queen |
Citation: | [2019] ACTCA 26 |
Hearing Date: | 6 August 2019 |
DecisionDate: | 4 October 2019 |
Before: | Burns, Loukas-Karlsson and Wigney JJ |
Decision: | Appeal dismissed and sentences confirmed. See [27] |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – one charge of aggravated robbery – one charge of failing to return to custody – whether the sentence was manifestly excessive |
Cases Cited: | Dalton v The Queen [2015] ACTCA 48 Heard v The Queen [2015] ACTCA 6 Taylor v R [2014] ACTCA 9 |
Parties: | Tian-Jarrah Denniss (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) T Hickey (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 53 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 20 August 2018 Case Title: R v Denniss Citation: [2018] ACTSC 239 |
THE COURT:
This was an appeal from a sentence imposed by Justice Mossop on 20 August 2018. The sentence imposed was as follows:
(a) In relation to one charge of aggravated robbery (CC2018/6974), the appellant was sentenced to imprisonment for a period of three years, from 3 August 2018 until 2 August 2021.
(b) In relation to one charge of failing to return to custody (CC2018/6973), the appellant was sentenced to imprisonment for a period of nine months, from 3 March 2021 until 2 December 2021.
(c) These periods of imprisonment were to be concurrent from 3 March 2021 until 2 August 2021.
(d) The non-parole period was to commence 3 August 2018 and end 2 December 2020.
(e) The aggregate head sentence came to three years and four months’ imprisonment.
The appellant has appealed from the sentence on the basis that the head sentence and the non-parole period were manifestly excessive.
It is necessary to provide some background to the charges for which the appellant was originally sentenced. In May 2018, the appellant was remanded in custody on other charges. He was granted day bail on 24 May 2018, to give him the opportunity to make accommodation arrangements in the event that he gained a place at a rehabilitation program. He was due to return to the Alexander Maconochie Centre by 5 pm that day, which he did not do. This formed the basis of the charge of failing to return to custody.
On the night of 24 May 2018, after failing to return to custody, the appellant robbed a Celebrations Liquor store with the aid of a broken glass bottle which he had broken himself. He stole cigarettes, between $1,000 and $2,000 in cash, and alcohol. This formed the basis for the charge of aggravated robbery.
While the appellant bent down to pick up his bag, an employee of the store locked the appellant inside the store. The police were alerted at this point and the appellant was found by police a short time later inside the roof cavity of the store.
In sentencing the offender, the primary judge assessed the offending as just below the mid-range of objective seriousness. In making this assessment, the primary judge said, at [5] of his sentencing remarks:
The offending conduct was unsophisticated. The weapon was improvised. It was obviously of a less serious nature than other forms of weapon. The robbery involved some immediate threat to the employee. It did not involve any application of force. The value of the items stolen was significant. It was committed whilst the offender was on conditional liberty.
The primary judge also considered the subjective circumstances of the offender, noting in particular at [32]:
His criminal history leaves little room for leniency. His criminal record and life history leaves little room for optimism. I have taken into account his deprived childhood and his early introduction to drugs and alcohol. He does have some insight into his offending conduct, but his history is such that it is not clear that he has the capacity to change course. It may be that age or further time in custody results in a change of approach, but his history to date has been inconsistent with a capacity to live lawfully outside of prison...
Issues on appeal
On 17 September 2018, a solicitor from ACT Legal Aid filed a notice of appeal in this matter on behalf of the appellant. According to that notice of appeal, the appellant appealed from all orders made by the primary judge at sentence, on the ground expressed singularly as the “head sentence and the non-parole period are manifestly excessive in all of the circumstances”.
On 6 August 2019 the matter came before the Court of Appeal for hearing. No submissions had been filed by the appellant by that date. At the hearing the appellant advised the Court that Legal Aid was no longer representing him and he was proceeding with the appeal self-represented. During the appellant’s brief oral submissions, it became clear that his concern was narrower than that which is stated in the notice of appeal. His concern was restricted to the ratio between the non-parole period and the head sentence.
It was made clear by the appellant at the hearing of the appeal that the appellant no longer took issue with the head sentence. The appellant did maintain the concern expressed in the notice of appeal in relation to the non-parole period, which stands at 70 per cent of the head sentence, being manifestly excessive.
Manifest excess: Non-parole period
The principles that apply in relation to assessing whether a sentence is manifestly excessive were summarised by Refshauge, Penfold and Wigney JJ, in Dalton v The Queen [2015] ACTCA 48 at [18]:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
The Crown took the Court to multiple authorities on manifest excess in relation to non‑parole periods.
One such authority was Henry v The Queen [2019] ACTCA 5 (‘Henry’) in which, at [14] and citing authorities, the Court noted that the “usual” proportion of the non-parole period to head sentence was somewhere between 50 to 75 per cent. In that matter the appellant, Henry, had been sentenced to a term of imprisonment with a non-parole period that equated to 83.33 per cent of the head sentence. Henry submitted that a non-parole period of this length called for scrutiny, given that the period was substantially outside the usual range and the sentencing judge had not provided specific reasons for setting the non-parole period at this length. Henry also submitted that a purpose of a parole period in a sentence of imprisonment is to mandate support for the offender’s rehabilitation for an initial period after the offender is released into the community.
The appellant in Henry took the Court to the Victorian authority of Kumova v The Queen [2012] VSCA 212; 37 VR 53, where the following passage from R v Detenamo [2007] VSCA 160 at [26] was quoted:
A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error…
In Henry, the Court noted that a ‘usual range’ of non-parole period ratios may be identifiable, but that a non-parole period falling outside this range does not in itself indicate error. However, the Court did agree that an absence of reasons for fixing a non-parole period outside that range will invite appellate scrutiny. In that matter, the Court considered that the sentencing judge’s consideration of the appellant’s prospects for rehabilitation, the seriousness of the attack and the injuries sustained, explained the lengthy non-parole period: Henry at [47].
The Crown in the present appeal also relied on the statement in Heard v The Queen [2015] ACTCA 6 (‘Heard’) at [51], where the Court stated the following:
What constitutes an appropriate relationship between the head sentence and the non-parole period depends on the circumstances of the particular case. Non-parole periods are not assessed mathematically by reference to some norm or usual ratio to the head sentence. In fixing a non-parole period, a sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence, but the weight attached to these factors and the way in which they are relevant will differ. Generally speaking, an offender’s prospects of rehabilitation will be given significant weight in the determination of a non-parole period.
Additionally, the Crown referred the Court to the decision in Taylor v R [2014] ACTCA 9 (‘Taylor’), where at [18]-[19] Murrell CJ, with whom Refshauge and Penfold JJ agreed, summarised the “proper approach” to be taken in fixing a non-parole period as:
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7 [of the Crimes (Sentencing) Act 2005 (ACT)], 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, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v 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: Inge v 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 v The 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 concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
In the present appeal, the Crown argued that the appellant has not shown that the non‑parole period imposed was manifestly excessive or that the sentencing judge had otherwise erred in principle. The Crown emphasised the sentencing judge’s consideration that due to the appellant’s poor track record in the area, rehabilitation was not to be a principle consideration and that a non-parole period shorter than 70 per cent would have been inappropriate.
It is clear that the primary judge paid particular attention to the appellant’s prospects for rehabilitation, a factor that this Court has emphasised as important in the consideration of non-parole periods: Heard; Taylor. We agree with the submission that the non-parole period was set after clear consideration of the appellant’s prospects for rehabilitation. The sentencing judge said the following in the sentencing remarks, at [32]:
…He has not had the capacity to take the benefit of rehabilitation programs, but rather, seems to have cynically exploited the possibility of entry into rehabilitation programs in order to get out of custody. While rehabilitation must always be hoped for, in the circumstances of the offender, it cannot be a principal consideration because of his past history.
The Courts have been very clear on the point that non-parole periods should not be assessed mathematically by reference to a norm or usual ratio to the head sentence, but rather by reference to the relevant features of that particular matter: Heard. However, to the extent necessary, we note that the non‑parole period imposed by the primary judge was within the appropriate range suggested by this Court in Henry (see above at [13]). It may be that the non-parole period in this case, being set at 70 per cent of the head sentence, is in the upper end of this range, nonetheless, the sentencing judge gave consideration to the offender’s prospects for rehabilitation and seriousness of the crime. It was on this basis that the sentencing judge decided, at [39], that “[t]he offender’s history of offending makes any shorter non-parole period inappropriate”.
We are satisfied that the non-parole period that was set by the sentencing judge was not manifestly excessive.
Manifest excess: head sentence
Although it was conceded by the appellant during his brief oral submissions that he no longer takes issue with the head sentence, we will briefly address the Crown’s submissions on that point.
It was put by the Crown that the appellant had not made out that the sentence was unreasonable or unjust. The Crown pointed to the sentencing judge’s considerations as detailed in the sentencing remarks, specifically highlighting that the sentencing judge had assessed the seriousness of each individual offence, applied discounts for early entries of pleas of guilty, considered the subjective circumstances of the appellant, and observed the appellant’s poor track record with rehabilitation programs. The Crown also noted that the primary judge had considered that the predominant objective factor in the sentencing exercise, while including specific deterrence, was the protection of the community and punishment.
The primary judge’s consideration of the relevant factors was thoughtful and thorough. A reduction was made to reflect that the appellant’s mental health condition was likely to make his time in custody more burdensome, and the structure of the sentences were made partially concurrent to reflect the temporal relationship between the offending.
To the extent that it is necessary, we agree that the sentencing judge did not approach the formulation of the sentence in such a way as to produce an unreasonable or unjust result. We agree that the sentencing remarks show a careful consideration of the factors to be considered in the matter.
We are satisfied that the head sentence was not manifestly excessive.
Decision
In our opinion, there has been no error on the part of the sentencing judge and the non‑parole period is not manifestly excessive. To the extent necessary, we find that the head sentence is also not manifestly excessive. The appeal should be dismissed and the sentence confirmed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Burns, Loukas-Karlsson and Wigney. Associate: Date: |
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