Director of Public Prosecutions (NSW) v Cornwall - [2007] NSWCCA 359

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v CORNWALL [2007] NSWCCA 359

FILE NUMBER(S):
2007/3238

HEARING DATE(S): 28 August 2007

JUDGMENT DATE: 19 December 2007

PARTIES:
Director of Public Prosecutions (NSW) – Appellant
Paul Geoffrey Cornwall - Respondent

JUDGMENT OF: Basten JA Latham J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 05/21/2067

LOWER COURT JUDICIAL OFFICER: Quirk DCJ

LOWER COURT DATE OF DECISION: 14 March 2007

COUNSEL:
G Rowling – Appellant
H Dhanji - Respondent

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions) – Appellant
S O’Connor (Legal Aid Commission of NSW) - Respondent

CATCHWORDS:
CRIMINAL LAW – Crown appeal against sentence – sentence manifestly inadequate – sentences failed to reflect objective gravity of offences – whether error in imposing concurrent sentences – specially aggravated detain for advantage – aggravated break enter and steal – obtain financial advantage by deception – cultivate prohibited drug[ ][ ]CRIMINAL LAW – Crown appeal against sentence – discretion of Court in re-sentencing in Crown appeal – principle of restraint in re-sentencing in Crown appeal – double jeopardy[ ][ ]SENTENCING – Crown appeal against sentence – sentence manifestly inadequate – sentences failed to reflect objective gravity of offences – whether error in imposing concurrent sentences – principle of totality - specially aggravated detain for advantage – aggravated break enter and steal – obtain financial advantage by deception – cultivate prohibited drug[ ][ ]SENTENCING – Crown appeal against sentence – discretion of Court in re-sentencing in Crown appeal – principle of restraint in re-sentencing in Crown appeal – double jeopardy

LEGISLATION CITED:
[Crimes Act] 1900 (NSW), ss 86, 97, 112, 178BA
[Crimes (Sentencing Procedure) Act] 1999 (NSW), ss 21A, 44, 47
[Criminal Appeal Act] 1912 (NSW), s 5D
[Drug Misuse and Trafficking Act] 1985 (NSW), s 23

CASES CITED:
[Allpass] (1993) 72 A Crim R 561
[Callaghan v The Queen] [2006] NSWCCA 58; (2006) 160 A Crim R 145
[Dinsdale v The Queen] (2000) 202 CLR 321
[Everett v The Queen] (1994) 181 CLR 295
[Postiglione v The Queen] (1997) 189 CLR 295
[R v Holder and Johnston] [1983] 3 NSWLR 245
[R v Rossi] (SA CCA, 20 April 1988, unrep)
[R v Tadrosse] [2005] NSWCCA 145
[R v Wall] [2002] NSWCCA 42
[Whittaker v The King] (1928) 41 CLR 230

DECISION:
Appeal allowed. Respondent re-sentenced as follows:[ ][ ]Indictment Count 1 – Taking into account the offence on the Form One, a sentence of 11 years imprisonment, comprising a non-parole period of 7 years, to date from 13 December 2008, expiring 12 December 2015 with a balance of term of 4 years, expiring 12 December 2019.[ ][ ]Indictment Count 2 - A sentence of 6 years imprisonment, comprising a non-parole period of 4 years, to date from 13 December 2008, expiring 12 December 2012, with a balance of term of 2 years, expiring 12 December 2014.[ ][ ]Committal Count 1 - A sentence of 18 months imprisonment, to date from 13 December 2007, expiring 12 June 2009.[ ][ ]Committal Count 2 – A fixed term of imprisonment for 2 years, to date from 13 December 2007, expiring 12 December 2009.[ ][ ]Committal Count 3 – Taking into account the offences on the Form One, a sentence of imprisonment for 3 years, comprising a non parole period of 2 years to date from 13 December 2005, expiring 12 December 2007, with a balance of term of one year, expiring 12 December 2008.[ ][ ]The respondent is eligible for release to parole on 13 December 2015.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/3238
DC 05/21/2067
BASTEN JA
LATHAM J
ROTHMAN J
19 December 2007

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v Paul Geoffrey CORNWALL

Judgment

BASTEN JA: On 14 March 2007 the Respondent was sentenced in the District Court for a number of offences which, in their aggregation, resulted in a non-parole period of 5 years and 6 months, to date from 13 December 2005 with an additional term of 2 years and 4 months, giving a total sentence period of 7 years and 10 months.
On 30 April 2007 the Director of Public Prosecutions (NSW) filed a notice of appeal against “a sentence” pronounced in the District Court, on the sole ground that “the said sentence is manifestly inadequate”.
In written submissions filed on 28 June 2007 the Director sought to challenge not merely the individual sentences imposed for particular offences, but also the manner in which the trial judge had structured the sentences. The Respondent took exception to the apparent expansion of the basis of complaint from manifest inadequacy of a “sentence”, to the manner in which the various sentences were or were not accumulated, giving rise to the overall structure of the aggregated sentence period.
The period of approximately 6 weeks taken to file the notice of appeal was not, in the circumstances, excessive, but there is some cause for complaint in the sense that the notice provided no real indication of the manner in which it was said that the sentencing exercise had miscarried. There was, in effect, a period of 3 and a half months before the Respondent was given full notice of the extent of the challenge. However, because the notice of appeal identified the starting dates of each sentence, and referred to the manifest inadequacy of “the said sentence” it might reasonably be inferred that the Director sought to challenge the manner in which the aggregate period was structured.
In Everett v The Queen (1994) 181 CLR 295 at 299 the joint judgment of the High Court stated:
“An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.”
Caution must be exercised in relying upon the reasoning in Everett in considering the operation of s 5D of the Criminal Appeal Act 1912 (NSW). Pursuant to the Criminal Code (Tas) under consideration in that case, the right of appeal against sentence given to the Attorney-General was available only with leave of the Court.
Although no leave is required by the Director in the present case, it has long since been established that the power of the Court to intervene is no less constrained than in relation to an appeal by the person subject to the sentence: see Whittaker v The King (1928) 41 CLR 230 at 238 (Isaacs J). Rather, it has been said that this Court “has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal”: R v Wall [2002] NSWCCA 42 at [70](d) (Wood CJ at CL, Meagher JA and Bell J agreeing). Even where the Court decides to intervene, the same principle of restraint is reflected in the fact that the Court “ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance”: see Allpass (1993) 72 A Crim R 561 at 562 (Gleeson CJ, Hunt CJ at CL and McInerney J); see also R v Holder and Johnston [1983] 3 NSWLR 245 at 256C (Street CJ, O’Brien CJ of Cr D agreeing) and Dinsdale v The Queen (2000) 202 CLR 321 at [62] (Kirby J).
There are, however, other principles to be considered. As explained by McHugh J in Everett (p 306):
“The jurisdiction to hear a Crown appeal against sentence is conferred on a court of criminal appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes.”
To this, his Honour might have added that others sentenced more severely for similar offences may (absent unusual altruism) also feel a sense of grievance against the beneficiary of the manifestly inadequate sentence.
Although it is common to speak of sentencing on a prosecution appeal at “the lower end of the range” that is a concept of no great precision. It may be understood to identify the lowest sentence which, if imposed by the trial judge, would have withstood intervention on appeal. On the other hand, that approach involves a level of uncertainty in that the court will not intervene to “tinker” with a sentence and may not intervene for discretionary reasons not entirely related to the range of appropriate sentences. There is an additional qualification in that a sentencing judge should always seek to impose the lowest appropriate sentence consistent with proper sentencing principles and the circumstances of the case. In addition, the appeal court is unlikely to be as conversant as the trial judge with all of the circumstances, especially where sentence was imposed after a trial, or even in a case where oral evidence has been given on sentence: see Isaacs J in Whittaker at 248-250.
In the present case, I agree with Latham J that the sentencing exercise miscarried in the ways that her Honour identifies. Both the individual sentences imposed and the aggregation of the sentences require the intervention of the Court.
Further, it can hardly be doubted that the conduct of the Respondent reveals a deliberate and serious flouting of the criminal law over a number of years. The sentences proposed by her Honour and the structure indicated would all be appropriate at trial. This Court should properly indicate its views in that regard so as to give effect to its function in maintaining uniformity of sentencing and confidence in the administration of justice.
I further agree that each of the sentences must be increased and, subject to what follows, to the extent indicated by her Honour. However, in my view the fact that the Respondent is standing to be re-sentenced, in circumstances where he had no real notice of the complaints of the Director until 3 and a half months after he was sentenced and 1 and a half years into his non-parole period, requires that a lesser aggregation of the sentence period should be achieved than would otherwise be appropriate. In three respects I would also depart from the sentences her Honour has proposed.
First, in relation to one count of obtaining a financial advantage by deception, for which he was committed for sentence, the Respondent was sentenced to a fixed term of imprisonment of 6 months by the trial judge, which was to be wholly concurrent with a second fixed term of imprisonment for a similar offence, but for a longer period. Because, under the proposed sentencing scheme, the first sentence will remain wholly concurrent, it will not affect the overall period to be served in custody. Nevertheless, in my view the proposed increase is excessive. The offence of making a false statement in relation to his employment on a loan application form, resulting in the provision of financial accommodation by a bank, but no ultimate loss, does not in the circumstances warrant a proposed period of imprisonment of 1 year 6 months. I would not increase the sentence on that count.
The second specific sentence in relation to which I have concerns is the sentence for cultivation of a prohibited drug, namely cannabis. This was the subject of a discrete error on the part of the trial judge in failing to take into account a number of other offences. It is proposed that the fixed term sentence imposed by the trial judge of 6 months should be increased to 3 years, with a non-parole period of 2 years. While I accept that such a sentence would have been appropriate at trial, I do not think such a major increase in sentence is necessary or appropriate on an appeal by the Director. Nor is there any reason to vary the statutory proportion of the non-parole period and the additional term. On that matter, I would sentence the Respondent to a non-parole period of 18 months and an additional term of 6 months.
Thirdly, in relation to the most serious offence under s 86(3) of the Crimes Act (specially aggravated kidnapping), in respect of which a further charge of armed robbery with an offensive weapon was taken into account, I accept that the proposed sentence involving a 7 year non-parole period and an additional term of 4 years would have been entirely appropriate at trial. Nevertheless, the sentencing statistics in relation to s 86(3) indicate that over a period of some 5 years, in a total of 18 cases, the highest non-parole period or fixed term was 8 years and the highest sentence (out of 24 cases) was 12 years. This was a serious offence of its kind and, taking into account the further offence, I would impose a sentence of 10 years imprisonment. If the statutory proportion were to be applied, that would include a non-parole period of 7 years 6 months. However, because in my view the overall non-parole period would then be excessive, taking into account the appropriate commencing dates, which will be noted below, I would find special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and increase the proportion of the additional term to approximately 54% of the non-parole period, setting the non-parole period at 6 years 6 months and the additional term at 3 years 6 months.
While it is important that an offender should generally not escape separate and effective punishment for independent acts of criminality, the accumulation of sentences for a number of separate offences may result in an aggregate sentence period which “becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect”: see King CJ in R v Rossi (SA CCA, 20 April 1988, unrep) quoted by McHugh J in Postiglione v The Queen (1997) 189 CLR 295 at 308. That principle has a particular and potentially greater application in the case of an appeal by the Attorney or the Director of Public Prosecutions. That is so because the particular aspect of the principle of double jeopardy which is engaged has immediate effect when considering the consequences of the re-sentencing on the individual offender.
In these circumstances, accepting the structure proposed by the trial judge and adopted by Latham J, the period of imprisonment for the cultivation offence should commence on 13 December 2005. It should run for a period of 1 year before the commencement of other sentences. The two sentences for obtaining financial advantage by deception should commence on 13 December 2006. They, in turn, should run for a period of 1 year until the commencement of the most serious offence of specially aggravated kidnapping, which, together with the aggravated break, enter and steal, should commence on 13 December 2007. The non-parole period of 6 years 6 months for the most serious offence would expire on 12 June 2014, giving an aggregate non-parole of 8 years 6 months. The effective additional term would be 3 years 6 months, imposed for the specially aggravated kidnapping offence. The total sentence period would be 12 years, with the additional period expiring on 12 December 2017.
LATHAM J: This is a Crown appeal against sentences imposed upon the respondent on 14 March 2007 by her Honour Judge Quirk (the Judge) in respect of five offences. It is pertinent to note that the Notice of Appeal sought to appeal “a sentence”, yet nominated the several sentences received for the various offences and their respective commencement dates. In the course of oral submissions on the hearing of the appeal, the Crown clarified its position, in so far as it contended that the individual sentences, and the aggregate sentence, were manifestly inadequate. It would have been desirable for the Notice of Appeal to conform to the Crown’s argument in this Court.
The respondent pleaded guilty on 25 August 2006 to an indictment containing the following two charges:-
Count 1 – Specially Aggravated Detain for Advantage (s 86(3) Crimes Act 1900), carrying a maximum penalty of 25 years imprisonment. A charge of Armed Robbery with an Offensive Weapon (s 97(1) of the Crimes Act) was to be taken into account on a Form One.
Count 2 – Aggravated Break Enter and Steal (s 112(2) Crimes Act), carrying a maximum penalty of 20 years imprisonment.
In addition, the respondent stood for sentence in respect of the following three charges upon which he had been committed for sentence on 21 July 2006:-
Counts 1 and 2 – Obtain Financial Advantage by Deception (s 178BA Crimes Act) carrying a maximum penalty of five years imprisonment.
Count 3 – Cultivate Prohibited Drug (s 23(1)(a) Drug Misuse and Trafficking Act 1985) carrying a maximum penalty of 10 years imprisonment. A further six offences were to be taken into account on another Form One. They consisted of two counts of Obtain Financial Advantage by Deception, one count of Make False Instrument and another of Use False Instrument, and two counts under the Electricity Supply Act 1995 relating to the unauthorised use of electricity and interference with a meter.

The respondent was sentenced as follows:-
Indictment Count 1 – Taking into account the offences on the Form One, a non parole period of four years, six months commencing 13 December 2006, expiring 12 June 2011, with a balance of term of two years and four months, expiring 12 October 2013.
Indictment Count 2 - A fixed term of imprisonment for three years, commencing 13 December 2006, expiring 12 December 2009.
Committal Count 1 - A fixed term of imprisonment of six months, commencing 13 June 2006, expiring 12 December 2006.
Committal Count 2 – A fixed term of imprisonment for 15 months, commencing 13 June 2006, expiring 12 September 2007.
Committal Count 3 – A fixed term of imprisonment for six months, commencing 13 December 2005, expiring 12 June 2006.
The effective aggregate non parole period was therefore one of five years and six months, with a balance of term of two years and four months. The total sentence was one of seven years and ten months. As I have already noted, the Crown maintains that the individual sentences are, and the aggregate sentence is, manifestly inadequate. The substance of the Crown’s complaint is that her Honour failed to reflect the objective gravity of the offences in the sentences she imposed, particularly given that they were aggravated by a number of factors, and that her Honour erred in making several of the offences almost wholly concurrent with each other and with the balance of the respondent’s parole.

The Offences

It is pertinent to set out the offences in chronological order, given the fact that the respondent committed all of the offences, but for the Cultivate Cannabis offence, whilst subject to parole, and committed Counts 2 and 3 of the committal document whilst on bail for the offences the subject of the indictment.
On 7 October 2002, the respondent was one of three men who assaulted and robbed the bar manager of a hotel, the Adam’s Tavern at Blacktown, late at night in the victim’s home. Each of the offenders was wearing a balaclava and was armed with a weapon. The respondent brandished a tomahawk, the others a handgun and a knife. One of the co-offenders said to the victim "We're here to do over the Tavern, co-operate with us and you won’t get hurt”. The victim was asked questions about the Tavern, its security system and access to the safe. The keys to the Tavern were taken from him, constituting the offence of Armed Robbery. This offence was the subject of one of the Form One documents.

The co-offender armed with the handgun held it to the victim's head and said to him "Don't fuck up. Your life depends on this". He swapped weapons with the respondent and struck the victim's head causing it to bleed. The victim's legs were tied together with a piece of rope and the co-offenders left, leaving the respondent armed with the handgun, saying to him "If he moves or fucks up, shoot him". Later the respondent gave the victim a towel and said "Here, keep the pressure on it". The respondent went to the victim's bedroom, obtained a doona or blanket and wrapped the victim in it. Over the following hours, the respondent received a number of calls from his co-offenders, informing him of their progress. This constituted the offence of Specially Aggravated Detention for Advantage.
The co-offenders went to the Tavern which had ceased trading for the day and was locked and secured. They entered the Tavern using the key obtained from the victim and disabled the security system. One of them opened the safe in the office area and removed about $21,000 in cash. This was recorded on CCTV footage. While the offence was being committed, the respondent sat with the handgun pointed at the victim. After receiving a telephone call, the respondent said to the victim "They had a problem with the alarm but succeeded, so you don't get a bullet tonight. You’re going to have to give us at least 10 minutes, don't fuck up, we know where you live and we know your name." After the respondent left, the victim untied his legs and telephoned a friend. A short time later an ambulance and police officers attended. The head injury inflicted upon the victim required four stitches. This constituted the offence of Aggravated Breaking, Entering and Stealing.
A DNA profile consistent with that of the respondent was identified from a cigarette butt left at the victim's home.
On 2 March 2003 the respondent made an application for finance addressed to the St George Bank Ltd in which he sought a residential loan. He stated that he was employed by a company known as "Jomar Investments Pty Ltd". On 2 May 2003 he was offered a loan in the amount of $250,000 which he received. He made repayments from May 2003 until December 2005 but made no repayments after 5 December 2005. The respondent was not employed by any such company. The bank took possession of the premises to which the loan related, sold them and accordingly suffered no loss. This constituted the offence of Obtaining Money by Deception, being Count 1 of the committal charges.
On 29 March 2004, the respondent voluntarily attended Blacktown police station and was arrested in relation to the offences committed on 7 October 2002. In the course of an interview the respondent made full admissions, saying that he had initially thought his role was to be that of a “cockatoo”. The respondent said that he had received $3,500 for his part in the offences. He was granted bail.
In May 2004 the respondent and his wife were joint proprietors of a vacant lot of land at Cooma. They applied to the bank for finance to enable them to erect a dwelling on it. In the application the respondent stated that he worked for Wynstan Blinds and Doors. The respondent was not so employed. On 29 August 2004, the respondent supplied to the bank a builder’s contract signed by him and his wife, which contained particulars that were false. Between that date and February 2005, the respondent made a number of progress payment applications to the bank, which were false, and received a total of $172,912. The loss to the bank was between $60,000 and $100,000. This constituted the offence of Obtaining Money by Deception, being Count 2 of the committal charges. The respondent did not build a house upon the land but built a large shed in which cannabis plants were grown.
On 16 July 2005, the respondent obtained a credit card from the Commonwealth Bank of Australia by falsely representing that he was employed by Wynstan Security Doors and Blinds. The respondent supplied false documents relating to that company. The respondent incurred a debt of approximately $6,000, which was never paid. Further, in August 2005 the respondent obtained a Mastercard from Citibank by falsely representing that he was employed by Wynstan Security Doors and Blinds. The respondent incurred a debt of approximately $14,800, which was never paid. These offences were represented on a Form One as two counts of Obtain Financial Advantage by Deception. The offences of Make and Use False Instruments on a Form One related to the fabrication and use of false pay slips in support of the credit card applications.
During the respondent’s cultivation of 57 cannabis plants in the shed on the Cooma land in mid 2005 (the subject of the Cultivate Cannabis charge, being Count 3 of the committal charges), the respondent interfered with the electricity meter to the property and obtained $2000 worth of electricity to which he was not entitled. Offences relating to this conduct appeared on a Form One.
Meanwhile, the respondent's trial for the offences committed on 7 October 2002 had been fixed for 19 September 2005. On 13 September 2005, the respondent left Australia on a flight to Fiji. On 20 October 2005, the respondent’s parole in respect of a sentence imposed on 13 December 1999 was revoked. The balance of parole of two years, nine months and eight days commenced on 13 December 2005, the day the respondent returned to Australia and was taken into custody. That sentence expires on 20 September 2008. Relevantly, the 1999 sentence was imposed for armed robbery offences.

The Respondent’s Subjective Circumstances and Criminal History

In the course of 1990, at the age of 19, the respondent committed five armed robberies in company, one assault with intent to rob whilst armed and in company, one armed robbery, one robbery, an offence of larceny motor vehicle and an offence of discharge loaded weapon with intent to prevent his lawful apprehension, all on the north coast of NSW. The respondent was not charged with these offences until 1994, when he was transferred to NSW from Queensland where he was serving sentences for four armed robberies whilst in company in that State.
Whilst awaiting committal, the respondent was granted parole on the Queensland sentences and then bail in respect of the NSW offences. Ultimately, after a number of delays, the offences came on for trial at Grafton District Court on 21 September 1998. The respondent did not appear and a bench warrant issued. The respondent was arrested on the Bench warrant in July 1999 and pleaded guilty on 15 November 1999 to the 1990 offences. The respondent was sentenced in December 1999 and was released to parole on 14 July 2002. The explanation for what appears to be an extremely light sentence (an aggregate minimum term of three years, with an additional term of one year) for such a significant number of serious offences is no doubt the extensive delay between the respondent’s first acknowledgement of guilt in January 1991 in relation to the 1990 offences and the final disposition of the matter. Thus, the instant offences were committed within three months of his release to parole.
The respondent was 36 years of age at the time of sentence. His subjective circumstances were considered at length by her Honour, who was assisted by a report prepared by a psychologist. The respondent was born in Queensland and was raised by his mother and stepfather. The respondent left home in his late teens and made contact with his father, who introduced the respondent to amphetamines. The respondent continued to abuse amphetamines until 2003 when he married. (The respondent’s wife committed suicide whilst he was in custody awaiting sentence.)
When not in custody, the respondent maintained employment as a truck driver. He was able to make periodic payments on the loan from the St George bank for over two years from his legitimate earnings. He had been diagnosed as bipolar and was receiving medication for that disorder, but that was no longer thought appropriate by the author of the psychological report. The respondent’s personality type was said to be “schizoid”. The respondent is not otherwise intellectually or psychologically impaired.

The Judge’s Approach to Sentence

At the beginning of the remarks, the Judge erroneously attributed all of the offences on both Form Ones to the Specially Aggravated Detain for Advantage offence. This error was acknowledged by the respondent’s representative, yet it was submitted that the sentences for Count 1 on the Indictment and for the Cultivate Cannabis offence were nevertheless properly within the Judge’s sentencing discretion.
The criminal history and the respondent’s subjective case were canvassed by the Judge. The respondent gave evidence consistent with what he had told the psychologist, namely that when he was released from gaol he was abusing amphetamines and finding it difficult to integrate back into the community. He claimed that he ran into some of his former associates and that they had planned the offences and offered him payment for his role. The Judge found that this evidence was consistent with his account to the police and was consistent with the amount which the respondent received from the proceeds of the robbery, namely approximately 16% of the takings. The respondent gave evidence of his remorse, claiming that he did not know that the victim was going to be hurt.
Acknowledging that the offences on indictment were “most serious”, and that they called for a significant custodial sentence, the Judge took into account in assessing the respondent’s criminality the fact that he was not the instigator of the offence and that he did not anticipate or plan actual violence against the victim. The Judge referred to the fact that the victim was detained for a period of hours and that the actual bodily harm suffered by the victim was not at the upper end of seriousness. Taking these matters into account, the Judge determined that “the offence lies somewhat less than midway on the spectrum of objective seriousness for this specially aggravated form”. It appears that this relates solely to the Specially Aggravated Detain for Advantage offence, albeit the Judge commences this analysis by referring to both of the offences on indictment.

There is a lack of precision in the Judge’s treatment of the aggravating circumstances relied upon by the Crown, immediately after the remarks summarised at [23]. As to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (actual or threatened use of violence), the Judge noted that actual violence was a circumstance of aggravation charged against the respondent (as was the fact that the offence was committed in company), so that the threats of violence added little by way of aggravation to the Detain for Advantage offence. Next, the Judge accepted that the use of weapons was an aggravating factor (s 21A(2)(c)) of “the offence”. It would appear that the Judge was once again referring to the Detain for Advantage offence, since there was no evidence before the court as to the possession by the co-offenders of the tomahawk and knife during the commission of the Aggravated Break Enter and Steal offence. The circumstances of aggravation relied upon for that charge was the commission of the offence in company.
The Judge then noted that the loss of $20,000 caused by “the offence” was substantial (s 21A(2)(g)). The loss of approximately $20,000 could only have been referable to the Aggravated Break, Enter and Steal offence, but that factor was also an incident of Count 2 of the committal charges, yet there was no mention of it in this context.
By way of contrast, when dealing with s 21A(2)(j) (offence committed while on conditional liberty) the Judge said “that is so of this offence and indeed of all of the offences for which he is to be sentenced”. Lastly, the Judge noted s 21A(2)(n) (planned or organised criminal activity) and accepted that the respondent was involved in some limited planning, but that “most of the planning was carried out by his co-offenders”. This was an aggravating feature of both of the offences on indictment and of Counts 2 and 3 on the committal document, but her Honour appears to have confined her remarks to the offences on indictment. There was no further discussion of s 21A(2) in the remarks on sentence.
In R v Tadrosse [2005] NSWCCA 145, Howie J (with whom Grove J and Hall J agreed) emphasised the importance of isolating those aggravating factors that apply to each individual offence, where the court is sentencing an offender on a number of offences. Howie J said at [22] – [23]:-
If there was a general aggravating feature that applied to all the offences, then it operated in determining the sentence to be imposed for each of the offences. As the principle enunciated in Pearce v The Queen has been taken as requiring that the court determine the appropriate sentence for each offence before considering the question of totality, so his Honour was required to consider the effect of any aggravating or mitigating factor when determining the appropriate sentence to be imposed for each offence before him. If an aggravating factor applied to one or more of the offences but not all of them, then clearly his Honour was required to indicate in respect of which offence or offences that aggravating feature was being taken into account.
The aggravating or mitigating factors do not necessarily apply globally to all the offences for which sentence is being passed: they may do so or they may not.
Her Honour did refer to Pearce later in the remarks on sentence, but only in the context of considering totality. After determining a discount of 15% for the offences on indictment and a discount of 25% for the offences the subject of the committal, on account of the respondent’s pleas of guilty, the Judge dealt at length with the respondent’s subjective case and then came to a consideration of the sentences to be imposed.
The Judge’s response to the Crown submission, namely, that the respondent’s significant criminal history dictated that greater weight be placed upon the principles of deterrence, retribution and protection of the community, was to highlight the period between 1991 and 2002 when the respondent abstained from criminal behaviour and to accept the respondent’s assertion that he had been drug-free since 2003. As to the former, the respondent was at liberty for a period of four and a half years out of those eleven years, a fact acknowledged by the Judge. As to the latter, the respondent continued to commit offences after 2003, albeit not offences of violence, a fact also acknowledged by the Judge. In summary, the Judge said “Obviously the seriousness of the crimes require adequate punishment and deterrence, but rehabilitation plays a part in the manner in which the sentences are constructed.”
The Judge then indicated that, because the offences on indictment were committed on the same day and at the same time, the sentences for those offences would be concurrent. As the Crown submissions made clear, that was a course that was open to her Honour in the exercise of her discretion, but the full text of the Crown submissions bears repeating:-
The other matters …the Cooma matters, the Crown says are in themselves serious matters. But nowhere near as serious as the matters involving Adam’s Tavern. Yet your Honour will have to – when your Honour ultimately comes to sentencing, in accordance with Pearce, give every offence a sentence and then your Honour will come to a consideration of accumulation and concurrence and the Crown submits that … some degree of accumulation is required in relation to those other matters, the fraud and drug matters committed by this offender.
In relation to the offence at Adam’s Tavern, particularly ... the specially aggravated detain for advantage. Because I think your Honour is aware of the authorities of both Pearce and … Hammoud, that says there’s no bar on your Honour running offences committed at the same time concurrently. And it might be ultimately what your Honour wants to do in this situation. Because the Crown says that the most serious of those offences is the specially aggravated detain. … But it’s a particularly serious offence because the 25 year maximum penalty come into play because of the fact that there was an assault occasioning actual bodily harm, the fact that they were in company.
Later, the Crown submitted:-
[If] at the end of your Honour’s consideration of the sentences and whether or not they should be concurrent or accumulated your Honour feels that the sentence your Honour imposes is one that will be excessive or crushing, it’s at that point that your Honour then brings the totality principle to bear upon your Honour’s judgment.
The clear thrust of these submissions, which were undoubtedly correct, was that her Honour was required to fix sentences befitting the objective and subjective criminality of each offence, taking into account the Form One offence in relation to the Specially Aggravated Detain for Advantage, the further Form One offences in relation to the Cultivate Cannabis, and the relevant aggravating circumstances in so far as they applied to individual offences. Then, and only then, could questions of accumulation or concurrency be addressed. However, the Judge determined that fixed terms would be imposed for the fraud and cultivate offences, and that those sentences would be subsumed into the sentences to be imposed for the offences on indictment, before the individual sentences for each offence were assessed.
The Judge then proceeded to nominate “the starting point” for each offence. A sentence of eight months for the Cultivate Cannabis offence was reduced to six months after applying the discount for the plea of guilty. A sentence of this order, having regard to six offences on a Form One, before the application of the discount, for a relatively sophisticated, planned operation, committed whilst on bail for other serious offences was wholly inadequate. The respondent had established a sizable plantation with the assistance of heat lamps, chemicals, ventilation devices and a watering system. There is nothing in the remarks on sentence that indicates where on the spectrum of objective gravity this offence lies. A sentence of less than four years at first instance would be, in my view, lenient. The respondent’s subjective circumstances were not so compelling that a reduction to less than a quarter of that penalty could be justified.
A sentence of twenty months was nominated for Count 2 of the committal charges, the more serious of the Obtain Financial Advantage by Deception charges. The Judge acknowledged the loss to the bank and the degree of planning inherent in the offence, but a sentence of less than half the maximum penalty, before the application of the discount for the plea of guilty, for an offence displaying these characteristics and committed whilst on conditional liberty is nonetheless excessively lenient.
A sentence of six months was then fixed for Count 1 of the committal charges, but no reduction from this sentence was made for the plea of guilty. Assuming that her Honour had already applied the discount, the starting point of eight months also appears unduly lenient for an offence committed whilst on conditional liberty. Whilst there was no loss to the bank in this instance, the respondent received a substantial sum on the strength of his deception, namely, that he was employed full-time with a reputable company and was therefore capable of meeting his commitments.
Her Honour then turned to the offences on indictment. A sentence of eight years imprisonment was nominated for the Specially Aggravated Detain for Advantage, reduced to six years and ten months after the application of the discount for the plea of guilty. The Judge fixed a non-parole period of four years and six months, after finding special circumstances. Despite stating that account was taken of the Form One offences when arriving at this sentence, with respect to her Honour, it could not have been a realistic appraisal of the criminality represented by those offences. The Form One documents contained a number of serious offences in their own right, yet the starting point was in the lower third of the range available for this offence.

Accepting that the Judge should only have taken into account one offence, that of Armed Robbery of the keys, I am nevertheless of the view that the sentence on this count was manifestly inadequate. The Judge’s recounting of the aggravating factors in relation to this offence earlier in the remarks was not, in my view, translated into a sentence that properly reflected its objective gravity, particularly when the respondent’s subjective factors did little to mitigate his criminality.
This was an offence that objectively warranted a sentence in the order of half the maximum penalty, before account was taken of the offence on the Form One. The respondent played a direct and pivotal role. He held a gun at the victim while his co-offenders broke into the Tavern, only leaving after threatening the victim. The respondent’s attention to the victim’s wound did very little, if anything, to ameliorate the victim’s plight. Nor can the respondent’s protestations to the psychologist, that he did not expect anyone to be hurt, justify the extension of any leniency, given that the respondent went to the victim’s home in the company of other offenders who were armed with various weapons. A sentence of 14 years imprisonment, before the application of a discount for the plea of guilty, would have been well within the sentencing discretion.
The Judge then fixed a term of three years imprisonment for the Aggravated Break Enter and Steal to be served concurrently with the detention offence. Once again, this sentence was well below what was appropriate to reflect the objective gravity of such an offence, committed whilst on conditional liberty, exhibiting a high degree of planning and involving the loss of a substantial sum. The respondent’s claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning. Given the 20 year maximum penalty for this offence, a sentence of 8 years imprisonment at first instance would have been more than justified.
Her Honour then said:-
Under the Pearce principles of totality, I then have to consider to what extent the sentences are to be served concurrently or cumulatively and the start date of the sentences. … In the circumstances of this case, and taking into account principles of totality, and the manner in which the sentences have been constructed, in the exercise of my discretion I have determined that his sentences should start from the date on which he was arrested, which is 13 December 2005 (see R v Callaghan [2006] NSWCCA 58).
The Judge’s stated approach overlooks the fact that her Honour had already determined that the sentences would be served concurrently and had fixed individual sentences in order to achieve that result. Only the sentence for the Cultivate offence was fixed to commence on 13 December 2005. The sentences for Counts 1 and 2 of the committal document were made wholly cumulative upon that sentence, but concurrent with each other. Both sentences for the offences on indictment were fixed to commence on 13 December 2006, so that the net effect was an aggregate sentence of 21 months imprisonment for the offences on the committal document and an aggregate sentence of six years and ten months for the offences on indictment. The latter aggregate sentence was made partly concurrent with the former to the extent of 9 months.
Such an outcome for four quite discrete periods of offending represented by these offences did not comply with the requirements of Pearce. The respondent’s offending occurred in October 2002, early 2003, the latter half of 2004 and mid 2005. The overall result, a total non parole period of five and a half years and a balance of term of two years and four months, failed to reflect the respondent’s significant and extensive offending. Both the individual sentences for the various offences and the aggregate sentence are manifestly inadequate. The extent of the inadequacy is so great that I do not consider this an appropriate matter for the exercise of this Court’s discretion to refuse to intervene.

Re-Sentencing

I have already noted above the appropriate sentences in respect of each offence. The individual sentences and the aggregate sentence will however be less than ought to have been imposed at first instance, because of the double jeopardy inherent in Crown appeals.
The respondent’s subjective case remains unchanged. The Crown took no issue with the extent of the discount allowed on account of the pleas of guilty, nor with the Judge’s finding as to special circumstances.
I would propose the following sentences, after the application of a discount of 15% with respect to the offences on indictment, and after the application of a 25% discount with respect to the offences on the committal document:-

Indictment Count 1 – Taking into account the offence on the Form One, a sentence of 11 years imprisonment, comprising a non parole period of 7 years and 4 months, with a balance of term of 3 years and 8 months.
Indictment Count 2 - A sentence of 6 years imprisonment, comprising a non parole period of 4 years and a balance of term of 2 years.
Committal Count 1 - A sentence of 18 months imprisonment.
Committal Count 2 – A sentence of imprisonment for 2 years.
Committal Count 3 – Taking into account the offences on the Form One, a sentence of imprisonment for 3 years.

It should be observed that, prima facie, a sentence commences on the date of imposition (s 47(1) of the Crimes (Sentencing Procedure) Act). The Crown submitted that the Judge ought to have commenced the sentences from 14 March 2007, in order to avoid effectively nullifying the respondent’s balance of parole. The mandatory terms of s 47(3) relate to taking account of a period of custody “in relation to the offence to which the sentence relates.” Arguably, the respondent had been in custody since 13 December 2005 in relation to the balance of parole, not in relation to the offences for which he stood to be sentenced. However, the course I would propose recognises the fact that the respondent is to be re-sentenced after a successful Crown appeal and that the discretion to backdate the sentences was nonetheless available to the Judge.
An aggregate non parole period of 10 years and an aggregate sentence of 14 years, which is the least that should be imposed in the circumstances of this case, is achieved by the following proposed orders:-
Indictment Count 1 – Taking into account the offence on the Form One, a sentence of 11 years imprisonment, comprising a non parole period of 7 years, to date from 13 December 2008, expiring 12 December 2015 with a balance of term of 4 years, expiring 12 December 2019.
Indictment Count 2 - A sentence of 6 years imprisonment, comprising a non parole period of 4 years, to date from 13 December 2008, expiring 12 December 2012, with a balance of term of 2 years, expiring 12 December 2014.
Committal Count 1 - A sentence of 18 months imprisonment, to date from 13 December 2007, expiring 12 June 2009.
Committal Count 2 – A fixed term of imprisonment for 2 years, to date from 13 December 2007, expiring 12 December 2009.
Committal Count 3 – Taking into account the offences on the Form One, a sentence of imprisonment for 3 years, comprising a non parole period of 2 years to date from 13 December 2005, expiring 12 December 2007, with a balance of term of one year, expiring 12 December 2008.
The respondent is eligible for release to parole on 13 December 2015.
ROTHMAN J: I agree with the sentence proposed by Latham J. I have had the benefit of reading in draft the reasons of her Honour and generally I agree with them.
I agree that the discretion to backdate the sentence was available to the sentencing judge and should not be disturbed. The balance of parole was served because there was a breach. That breach was the commission of the offence for which the appellant was sentenced and is now to be re-sentenced.
In those circumstances the “ordinary rule” is neither “ordinary” nor a “rule”. Especially in circumstances where the breach of parole is taken as an aggravating feature, as it was here and as it should be, not allowing some credit for the additional time in prison may appear to be a double counting, even if in truth it were not. There is a discretion embodied in s 47(2) of the Crimes (Sentencing Procedure) Act 1999. This is not the occasion to deal fully with the principles, but I consider that the appropriate approach is that described by Simpson J (with whom James and Hall JJ agreed) in Callaghan v The Queen [2006] NSWCCA 58; (2006) 160 A Crim R 145 especially at [21]-[23] (but see also the analysis of the cases therein).
These offences were most serious and have been treated inappropriately by the sentencing judge. Given Mr Cornwall’s history of offending and disregard for the law, condign punishment is required. I agree with the sentence proposed by Latham J.

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LAST UPDATED: 19 December 2007