El-Afchal v The Queen
[2015] NSWCCA 112
•25 May 2015
|
New South Wales |
Case Name: | EL-AFCHAL v R |
Medium Neutral Citation: | [2015] NSWCCA 112 |
Hearing Date(s): | 20 April 2015 |
Decision Date: | 25 May 2015 |
Before: | Hoeben CJ at CL at [1]; |
Decision: | (1) The applicant be granted leave to amend the Notice of Appeal in accordance with the amended Notice of Appeal dated 18 May 2015 to include Ground 2. |
Catchwords: | CRIMINAL LAW – appeal against sentence – whether the sentencing judge erred in his consideration of the evidence regarding applicant’s rehabilitation and delay between arrest and sentence –delay between arrest and sentence on the subject charges in part attributable to the applicant’s offending in Queensland and subsequent proceedings – relating thereto – sentencing judge took delay and rehabilitation into account as interrelated matters – delay and rehabilitation was taken into account and sentence reduced accordingly – sentencing judge found that the applicant had achieved some progress towards rehabilitation – whether the sentencing judge erred by not finding ‘substantial’ progress towards rehabilitation – the sentencing judge made a factual error as to the period over which the application’s progress towards rehabilitation took place – this did not give rise to error – appeal dismissed |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 |
Cases Cited: | House v The King (1936) 55 CLR 499 |
Category: | Principal judgment |
Parties: | Housam El Afchal (Applicant) |
Representation: | Counsel: |
File Number(s): | 2008/90705 |
Decision under appeal: | |
Court or Tribunal: | District Court |
Date of Decision: | 21 November 2013 |
Before: | Colefax J |
File Number(s): | 2008/90705 |
JUDGMENT
HOEBEN CJ at CL: I agree with Hall J.
HALL J: The applicant, Housam El-Afchal, seeks leave to appeal against an aggregate sentence imposed on him by his Honour Judge Colefax SC in the District Court, on 21 November 2013 in respect of three offences, namely:
(1)Receiving, contrary to s 188(1)(a) of the Crimes Act 1900. The maximum penalty for such an offence is 12 years imprisonment. There is no prescribed standard non-parole for such an offence.
(2)Knowingly facilitating an organised car rebirthing activity contrary to s 154G of the Crimes Act 1900. The maximum penalty prescribed for such an offence is 14 years imprisonment. There is no prescribed standard non-parole period for such an offence.
(3)Possession of a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998. The maximum penalty for such an offence is 14 years imprisonment. There is no prescribed non-parole period for such an offence.
The receiving offence and the possess prohibited weapon offence were committed on 7 March 2007. The car rebirthing offence was committed between 1 October 2006 and 7 March 2007. The applicant was charged on 9 August 2007 and released to bail that day.
The offences were aggravated by reason of the fact that the applicant was on bail at the time of the offences.
The applicant entered pleas of guilty to the subject offences in the Local Court on 21 March 2013 and was committed for sentence.
The sentencing judge in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 stated that the indicative sentences that he would have imposed in respect of the individual offences were as follows:
The Receiving offence: a sentence of 3 years imprisonment which after a discount of 20% for the applicant’s guilty plea would result in a sentence of 2 years 5 months;
The Rebirthing offence: a sentence of 4 years and 6 months. Application of the 20% discount for the applicant’s guilty plea produced an indicative sentence of 3 years and 7 months. His Honour indicated that there would have been a partial accumulation of sentences in respect of these first two offences.
The Prohibited Weapons offence: a sentence of 6 months imprisonment. After the application of the discount for the applicant’s guilty plea the sentence would have been a period of 4 months. This sentence, his Honour stated, would have been wholly concurrent with the other offences.
Ground of Appeal
The single ground of appeal relied upon was in the following terms:
“His Honour erred in his consideration of the evidence regarding the applicant’s rehabilitation and the relevance of the delay.”
The Order on Sentence
The sentencing judge, as indicated above, allowed a 20% discount for the utilitarian value of the applicant’s guilty pleas. The commencement of the sentences was backdated to take account of custody solely referable to the offences for which he was to be sentenced.
The applicant was sentenced to an aggregate period of imprisonment of 4 years with a non-parole period of 2 years imprisonment to commence on 18 August 2013 and to expire on 17 August 2015. Under the aggregate sentence the applicant would be eligible for release to parole on 18 August 2015. The total term of the sentence will expire on 17 August 2017.
The Issue of Delay
It is necessary to clarify the “delay” referred to in the ground of appeal. The applicant relied upon a period of delay from February 2009 (at which time he was released to bail in respect of offences committed in Queensland as discussed below) until the imposition of the aggregate sentence by the District Court being a period of approximately 4 years and 9 months.
In the submissions before the sentencing judge “delay” was referred to by the applicant in a more expansive sense than the delay associated with the issue of the applicant’s rehabilitation. At [25] of the Applicant’s Submissions on the present application, reference was made to a period of at least 6.5 years of delay before the date of sentencing.
As discussed below, in his submissions to this court Mr Barrow, for the applicant, focused upon that period during which the applicant was on bail pending the disposition of offences he had committed in Queensland as well as the period of twelve months during which the applicant was serving the non-parole period of his sentence for the Queensland offences being a period of approximately 4 years and 9 months (February 2009 – May 2012).
The applicant’s case is that the sentencing judge failed to appreciate or take into account that period as a basis for determining the extent of the applicant’s rehabilitation. It was submitted on the applicant’s behalf that the sentencing judge should have found on the evidence that during the relevant period of delay identified by the applicant the offender’s progress on rehabilitation had been “substantial”.
In the event that this Court finds there had been error as propounded in the Ground of Appeal then it was contended that a lesser sentence in law is warranted.
Factual Circumstances Relevant to Delay
In order to understand the background and the events relating to the issue of delay it is noted that at the time of the subject offences (7 March 2007) the applicant was on bail in respect of two charges. One was a charge of conspiracy to steal a large sum of money. The relevant date for that charge was 5 September 2005. The other was a charge of stealing a motor vehicle also alleged to have occurred on 5 September 2005. In respect of those two charges, his Honour Colefax DCJ observed that the Agreed Facts tendered on sentence included references to the use of stolen cars, as well as stolen Fire Brigade and Police radios – facts that his Honour observed were similar to the offences for which the applicant was to be sentenced by him: ROS at p 10. In respect of the 2005 offences His Honour, Cogswell DCJ, sentenced the applicant on 23 May 2008 imposing a term of imprisonment of 22 months for the first offence which was suspended pursuant to s 12 of the Crimes (Sentencing Procedures) Act. In relation to the second offence, of steal motor vehicle, the applicant was sentenced to a period of imprisonment for 6 months which was also suspended.
On 6 December 2008, the applicant committed further offences in Queensland for which he was bail refused until release on bail on 9 February 2009. He was sentenced by the Queensland District Court to imprisonment for the Queensland offences on 6 May 2011 on the basis of a total term of imprisonment of 4 years with a non-parole period of 1 year.
On 6 May 2012 the applicant was released on parole in Queensland and extradited to New South Wales with regard to the outstanding charges, the subject of this appeal. Accordingly, a substantial period (approximately 2 years 6 months) in respect of the “delay” related to the Queensland proceedings. He remained in custody, bail refused on the New South Wales charges until obtaining bail on 14 August 2012.
In considering the issue of delay his Honour Colefax DCJ took into account that shortly after the applicant commenced his sentence in Queensland, New South Wales Police had made requests for his transfer to New South Wales so that the present matters could proceed. However, as his Honour observed, no response to the request was forthcoming.
The sentencing judge found that a substantial, if not the predominant, factor in the delay was “the Government of Queensland” having ignored the extradition requests made by New South Wales Police. His Honour described this as a “highly unsatisfactory attitude for a responsible government department to adopt”: ROS at p 12. However, as noted above, a period of approximately 2 years and 6 months delay was not due to governmental delay, but occurred as a result of the delay between arrest, plea and sentencing in the Queensland Court. To that extent the applicant had the benefit of a favourable finding which did not completely reflect all the actual reasons for the delay period to which I have referred above.
The period of delay with which his Honour was concerned was the period following the applicant’s sentencing for the Queensland offences on 6 May 2011 until imposition of the aggregate sentence on 21 November 2013, the subject of the present application. To that extent there is a discrepancy between the period of delay considered by his Honour and the relevant period identified by the applicant as discussed above at [12_Ref418863220].
The Remarks on Sentence
At the sentence hearing a Statement of Crown Facts was tendered (part of Exhibit 1 at those proceedings). An additional statement was tendered (Exhibit A-1 at those proceedings) setting out Supplementary Agreed Facts. These documents, as well as the submissions of each party in relation to this appeal, set out the relevant events resulting in the applicant’s 2007 charges.
In respect of the receiving charge, items of property were located in the course of execution of a search warrant on 7 March 2007. The items seized had previously been stolen and were in the possession of the accused, he knowing that they had been stolen or believing that they may have been stolen. The property consisted of five groups of items conveniently summarised in the applicant’s Written Submissions at [27] as follows:
● 125 vials of human growth hormone that were part of a larger quantity of the drug stolen from the premises of Serona Limited on 5 February 2007;
● 22 DVD players and a number of CD players and associated items that were stolen from Strathfield Car Radios in December 2006;
● Three 2 way radios belonging to the police and fire brigade;
● A VHF radio;
● Two carpet cleaners, each the property of Coles Supermarkets and each worth $3,000.
In respect of the car rebirthing offence, the sentencing judge identified seven matters concerning the offence. These were also conveniently summarised in the applicant’s Written Submissions at [28] as follows:
● At the time of the search four new and unused Mazda compliance build plates were located in the offender’s home. Compliance plates indicate whether a vehicle complies with Australian Standards.
● A large number of parts were located that came from a Subaru Impreza that had been stolen in December 2004.
● Five Subaru engines were located. Two engines had their engine numbers removed. A third was from a Subaru stolen in January 2007.
● A Subaru motor vehicle that had originally been purchased by the applicant’s wife in January 2003 and then stolen on 31 December 2004 (in circumstances where the offender’s wife was reimbursed $52,000.00) was located in an altered condition at the applicant’s home. It had a different engine that originated from a Subaru stolen in June 2005.
● A red Subaru WRX was also located that had been substantially modified. The original VIN had been destroyed. Parts of the vehicle were identified as having been stolen.
● A green Toyota Landcruiser that had been stolen in November 2006. The engine number, the build plate and compliance plate had all been altered.
● The applicant and others had stolen a 1971 Mazda Capella worth $4000 and a 1976 Mazda 929.
The possess prohibited weapon offence related to the finding of a black steel extendable baton in a tool kit during execution of the search warrant on 7 March 2007. The sentencing judge rejected the applicant’s explanation as to how he came to be in possession of that item.
His Honour noted that as at 7 March 2007 the applicant had been on conditional bail with regard to other offences involving similar conduct to the subject offences, in particular, the use of stolen cars, and stolen Fire Brigade and Police radios (as discussed in para [15_Ref418516064] above).
His Honour also noted that the applicant had been arrested in Queensland on 9 December 2008, five months into the suspended sentence imposed by Cogswell DCJ for the 2005 offences and whilst still on bail for the subject offences. He was never called up with regard to the breach of the suspended sentences. As earlier noted, the applicant remained in custody in respect of the Queensland offences until 9 February 2009 when he was released to bail.
The sentencing judge observed that upon completion of the non-parole period in Queensland the applicant was extradited to New South Wales with regard to the subject offences and that he remained in custody until 14 August 2012 when he was granted bail. His Honour noted that he had remained on bail in Queensland until the date of the sentence.
As at the date of sentence the applicant was 35 years of age. He did not give evidence at the sentence hearing. The sentencing judge considered that the evidence as to his subjective case was very limited. His Honour noted that he had sought to minimise his culpability in respect of the subject offences on the occasion when he was interviewed for the purposes of the pre-sentence report prepared by the Queensland Department of Corrective Services dated 28 June 2013, written by Ms Lisa Freshney. That report was tendered in evidence and became Exhibit B in the sentence proceedings.
His Honour stated that “in the absence of sworn evidence from the applicant and noting amongst other things his swift re-offending after receiving the two s 12 bonds, I do not accept on the balance of probabilities those reported expressions of remorse”: ROS at p 12.
His Honour also noted the reference in the pre-sentence report to the fact that the applicant had developed a heroin habit for a period in 2008 but that he had refrained from that habit after his arrest in Queensland in December 2008.
His Honour took into account that the applicant had commenced working for a Queensland property development company after his release from custody in May 2012. However, as discussed below, there was a factual error made by his Honour in this respect as the evidence indicated that in or about February 2009 the applicant obtained employment with a Queensland development company and remained in its employment for over two years – that is, from approximately February 2009 until approximately May 2011 when he commenced his sentence in respect of the Queensland offences.
In respect of the applicant’s prospects of rehabilitation, his Honour observed:
“Assessing the offender’s prospects for rehabilitation is not a straightforward matter. One factor of course often relevant to assessing rehabilitation is an offender’s expression of genuine remorse. For reasons I have already indicated, I am unable on the evidence before me to find that in the present case there is such a genuine expressions. (sic) Moreover, in assessing the prospects of rehabilitation it is appropriate for me to have regard to the attempt by the offender to minimise his moral culpability in relation to these offences whilst on conditional liberty, and the fact of the convictions and sentence by Cogswell DCJ and the Queensland District Court for other serious criminal activity. As against this, there is the not lengthy history of employment following his parole in Queensland, together with the support he has from his wife and family.
On balance, I am unable to accept the submission by Mr Boulten that his prospects of re-offending are low and that he has turned a corner. I do however think that his prospects for rehabilitation are reasonable.” (ROS 15)
His Honour also observed that the offences were “extremely serious”: ROS 15. His Honour stated that receivers of stolen property should receive “condign punishment” and that in relation to car rebirthing offences, general deterrence was an important matter. His Honour referred to relevant decisions of this Court in relation to the lastmentioned offences.
In respect of the submissions made on behalf of the applicant to the sentencing judge that this was a case where delay justified a degree of leniency that might otherwise be unwarranted, his Honour stated:
“In the present case the offender has only been on conditional liberty since May 2012 and in circumstances where he was aware of this sentencing process. Whilst he has not offended in that period I am not satisfied in all the circumstances that there is proved substantial progress towards rehabilitation, although there clearly is some.” (ROS 16-17)
His Honour stated that he would give the applicant “a degree of lenience he would otherwise not be entitled to because of the conduct of the Queensland authorities”: ROS at [17].
His Honour then determined to aggregate the sentence and reduce each individual sentence in the way specified above because of the delay. His Honour also found that there were special circumstances by reason of the delay.
Submissions for the Applicant
In his written submissions, Mr Barrow observed that the applicant came before the sentencing judge with a criminal record that disclosed that he had not offended since the commission of the Queensland offences on 6 December 2008, a period of almost five years. The offences, he noted, for which he stood for sentence had been committed more than six and a half years earlier.
The ground of appeal in support of the application for leave to appeal was argued upon the basis of an asserted House v The King (1936) 55 CLR 499 error. The error was, in effect, argued as one involving the interrelationship between an extensive period of delay and the facts concerning the applicant’s rehabilitation.
As to the mitigatory significance of rehabilitation in circumstances of delay, it was contended for the applicant on the present application, that his Honour proceeded, erroneously, upon the basis that the applicant had only been on conditional liberty from May 2012 whereas in fact he had been on parole for a period in excess of 2 years and 3 months during which it was submitted he had pursued a productive life without any further offending.
The submission was that his Honour failed to take into account the period between 9 February 2009 and 6 May 2011, during which the applicant had been on bail in Queensland for two years and three months and had been in productive employment. Further, it was submitted that there had been a failure to take into account the 12 months non-parole period of the Queensland sentence which was completed without incident and that the applicant had been paroled immediately when he became eligible for release. It was also noted that during the non-parole period he had also been approved for various forms of day release: Applicant’s Written Submissions at [48].
His Honour’s rejection of the proposition that the application had made substantial progress towards rehabilitation, it was argued, was flawed by reason of that error. In his oral submissions, Mr Barrow stated;
“… he rejected the submission that there has been substantial progress towards rehabilitation. It is that conclusion that’s the subject of complaint in this appeal because what it failed to take into account was the long period of time that this man had been on bail in Queensland, two years and three months. He had been on bail in Queensland from February of 2009 until May of 2011.” (T 3-4)
Mr Barrow relied upon the evidence at the sentence hearing which was favourable to the applicant on the issue of his rehabilitation both during the non-parole period served in respect of the Queensland offence and subsequently when released to parole. The evidence included:
(1)Six character references, including that given by Mr Con Bassilli. These were supportive of the applicant’s diligent attention to his employment duties as well as his personal qualities based on their knowledge of him from 2009. Mr Bassilli also gave favourable oral evidence at the sentencing hearing before Colefax DCJ.
(2)The fact that the applicant had married, purchased a home in Queensland, and had abstained from drugs and alcohol.
(3)During his 12 months in custody in respect of the sentence imposed for the Queensland offences, the evidence indicated that he had been granted day leave, confirming that he had satisfied the requirements of the Queensland Correctional authorities.
Mr Bassilli’s evidence was relevant to the applicant’s progress towards rehabilitation from early 2009. Other testimonials, it was contended, supported the applicant on the issue of rehabilitation.
In paragraph [56] of the Applicant’s Written Submissions Mr Barrow submitted:
“The totality of the evidence on sentence should have led his Honour to conclude that the applicant’s progress on rehabilitation had been substantial. The reasons for this included:
● The period of two years three months on bail in Queensland from early 2009 and the evidence that the applicant had not committed further offences in this period or subsequently.
● The applicant was in employment since early 2009, apart from the fifteen months he had spent in custody.
● The incident free period of imprisonment in Queensland that followed in 2011, for offences committed in late 2008.
● His co-operation in being extradited to New South Wales in May 2012.
● Despite the effective period of 15 months imprisonment in 2011-12, the further period of parole supervision in Queensland from August 2012 until November 2013 pending sentence in the subject proceedings.
● The positive contents of the Queensland Probation and Parole Service report regarding his conduct whilst on parole.
● The applicant’s stable family situation, together with the evidence that he was a committed parent to his two young children.
● That he had purchased a home in Queensland.
● The absence of any evidence that the applicant continued to have a drug or alcohol problem.
● The fact that he was sufficiently well regarded for a number of people to write references on his behalf for use in the sentence proceedings.”
Mr Barrow submitted that, in the event that error was established, a lesser sentence is warranted in law. In that respect it was submitted that greater emphasis should have been given to the impact of the delay and the finalisation of the subject charges and to “the long-standing and impressive rehabilitation achieved by the applicant”: Written Submissions at [57].
It was noted that this Court in exercising the discretion to resentence the applicant, would take into account that the sentence served in Queensland was the applicant’s first sentence of full-time imprisonment.
Whilst Mr Barrow acknowledged that the applicant had minimised his offending behavior in giving a history to the author of the pre-sentence report, and that he did not give evidence at the sentencing hearing, as against that, he emphasised that the pre-sentence report expressed a positive picture in that the history established that during the lengthy period he was on conditional liberty, including the period of February 2009 to May 2011, the applicant had returned to having a lawful life in the community: T 6.
In the event that this Court accepted that sentencing error had been established the applicant relied upon the affidavit of his solicitor, Mr William Paul O’Brien affirmed 15 April 2015 including, in particular, the documents annexed to it. That evidence, it was contended, supported the proposition that a lesser sentence was warranted. The evidence, it was contended in the applicant’s submissions, established that the process of rehabilitation had been very impressively pursued by the applicant. He had been granted a C3 classification after about 12 months of the non-parole period served in Queensland and he had pursued education at TAFE. Surveillance performed on him confirmed that he had been compliant whilst at liberty. The material referred to in the affidavit, it was contended, established that the applicant had done well since being sentenced: T 8.
Crown Submissions
The Crown in its written and oral submissions referred to the history of delay and submitted that his Honour had taken it into account and determined that the applicant had made progress towards rehabilitation although not to the extent that had been contended for on his behalf: Crown’s Written Submissions at [14]-[22]; at T 10:4-15.
The Crown referred to the fact that the sentencing judge took that matter into account in reducing the head sentence for each offence and also took into account delay as the basis for the finding of special circumstances: Crown’s Written Submissions at [20].
Accordingly, it was submitted that the way in which the issue of delay was applied to the sentence could be considered generous: Crown’s Written Submissions at [21]. No further reduction in sentence, the Crown contended, would be appropriate even if there was evidence of substantial rehabilitation: Crown’s Written Submissions at [21]. In oral submissions it was stated:
“… his Honour dealt with those aspects of progress towards rehabilitation. He did not find there was none. He took into account various parts of the evidence including that he had not only committed the offences whilst on bail but had committed further offences shortly after being granted bail for these matters and whilst he was on suspended sentences.
So his Honour had material which that series of offending would leave him somewhat guarded together with responses that he took from the reports from the applicant. So his Honour had a number of sources of material which his Honour relied on and then came to a determination and it’s really what is being asked is for [sic] the court, it’s not being suggested that he did not give attention to aspects of rehabilitation, rather he did not find as substantial progress towards rehabilitation.” (T 10:5-16)
In summary, the Crown submitted that even if it could be said that there had been a higher level of rehabilitation than that assessed by the sentencing judge, he having reduced the sentence by reason of delay, both in terms of the head sentence and in the finding of special circumstances, no lesser sentence would be warranted than the aggregate sentence that was imposed upon the basis that there had, in fact, been some progress in the applicant’s rehabilitation: T 11:5-15.
Decision
The central issue in the context of the history of delay, was whether the evidence, taken as a whole, necessarily established as has been argued, that the applicant had achieved “substantial” rehabilitation and, if so, whether, on the basis of sentencing error being established, that would warrant the intervention of this Court. If error is established, the critical issue then becomes whether some lesser sentence ought to be imposed taking into account all relevant circumstances including the evidence as to delay and rehabilitation.
The sentencing judge clearly considered the issue of delay and the applicant’s rehabilitation as interrelated matters which were central to his subjective case on sentence. His Honour reviewed the evidence bearing upon that issue and made findings:
Firstly, that whilst his Honour was not satisfied that there had been substantial progress towards rehabilitation “there clearly is some”: ROS at p 17.
Secondly, that, as to the future, the applicant’s prospects of rehabilitation were “reasonable”: ROS at p 15.
In reaching his ultimate conclusion on the issues of delay and rehabilitation, his Honour observed, as noted above, that assessing the applicant’s prospects of rehabilitation was “not a straightforward matter”. In that respect, his Honour noted that the genuineness or otherwise of an offender’s expressions of remorse is a relevant matter in making that assessment. In this case, his Honour rejected the applicant’s expressions of remorse as genuine (ROS at p 15). He also considered that the applicant’s attempt to minimise his moral culpability in relation to the subject offences was an additional matter that affected the assessment to be made as to the level of rehabilitation that had been achieved.
In a case such as the present, where there has been a past history of offending of some significance and factors exist which are considered as reducing an offender’s reliability, the cogency or the strength of the evidence put forward to support a submission of substantial rehabilitation may also be reduced. A sentencing judge is in the best position to make a judgment of whether such a finding can be reached in the absence of evidence from the offender himself or herself.
The applicant’s account to Ms Freshney, the author of the pre-sentence report, concerning the car rebirthing offences, it is to be noted, was one that not only minimised his responsibility, but was misleading. The pre-sentence report records the applicant’s account that the offence involved “one car” and that this was purchased by his cousin.
As the written submissions of each party accurately state, the car rebirthing activities of the applicant involved a number of vehicles as well as parts (including engines) of cars. The evidence indicated that over the relevant six‑month period of offending, the applicant had played a significant role in an organised car rebirthing activity or enterprise.
As earlier stated, the maximum penalty for that particular offence with which the applicant was charged (knowingly facilitating an organised car rebirthing activity contrary to s 154G of the Crimes Act), is, and was at the time of the applicant’s offence, 14 years imprisonment. The seriousness of an offence under s 154G including the risks of “rebirthed” vehicles and the potential dangers of the same, were the subject of close consideration in R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243, in particular by Basten JA (Hall and Beech‑Jones JJ agreeing) at [39]-[40] and [42]. In that case, Basten JA observed at [34]:
“The gravity of the activities constituting car rebirthing are reflected in the available penalties, being a maximum sentence of 14 years imprisonment, with a standard non-parole period of four years. Nevertheless, because the section encompasses a wide range of criminal activity, it is necessary to focus on the particular offending conduct in identifying an appropriate punishment: Ibbs v R [1987] HCA 46; 163 CLR 447 at 451–452; Hamieh at [50]. On the other hand, the section envisages that rebirthing activities may be carried out on an organised basis by a network of individuals carrying out specific functions for profit or gain, without there being a hierarchical organisation: s 154G(5)(b).”
As noted above, application of the discount of 20% resulted in an indicative sentence of 3 years and 7 months for the car rebirthing offence alone. The aggregate sentence in respect of the three charges together of 4 years imprisonment with a non-parole period of 2 years I consider reflects a degree of leniency, over and above the discount allowed for the applicant’s guilty plea and the finding of special circumstances. I accept, as the Crown submitted, that the finding of special circumstances must have been based upon the fact of delay, there being no other basis in the evidence upon which such a finding is likely to have been made. Finally, it is clear that the sentencing judge in sentencing the applicant did build in an allowance for the progress achieved in his rehabilitation.
In my opinion, the sentencing judge’s refusal to find a “substantial” level of rehabilitation did not involve appellable error. An assessment of the progress or level of rehabilitation achieved by an offender over a period of time involves consideration of a number of matters many of which are not always susceptible to anything approaching fine measurement or estimation. In this case, the sentencing judge identified the bases upon which he considered a finding of “substantial” rehabilitation could not be made. There has been no demonstrated error in the matters that were taken into account in reaching that conclusion.
Whilst it may be accepted that his Honour proceeded wrongly upon the basis that the applicant’s progress towards rehabilitation commenced upon his release to parole in May 2012, and that, in particular, it appears that his Honour did not have regard to the period of February 2009 – May 2011 which the applicant submits is a relevant period, the significance of that period to determining the applicant’s rehabilitation is the issue of importance. The fact that the applicant did not offend between February 2009 and May 2012 may be consistent with the applicant’s progress towards rehabilitation but it does not mandate a finding that the progress that had been made to that date was ‘substantial rehabilitation.’ Rehabilitation is not a finite concept that is susceptible to measurement. It involves an evaluative judgment. His Honour was required to consider a range of positive and negative factors. The latter in the applicant’s case included his history of criminal offending including the Queensland offences committed whilst on conditional liberty.
Even if sentencing error had been established, it would be necessary for this Court in exercising the sentencing discretion afresh, to take into account the evidence adduced at the sentencing hearing, the evidence in the affidavit of William Paul O’Brien, solicitor, affirmed 15 April 2015, that would be relied upon for the purpose of resentencing as to events that have occurred since the applicant was sentenced on 21 November 2013, the purposes of sentencing and the relevant factors under s 21A of the Crimes (Sentencing Procedure) Act.
As the High Court observed in Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 at [43], in cases involving error of the kind described in House v The King (1936) 55 CLR 499, this Court may conclude, as an independent exercise of discretion, taking into account all relevant matters, including events since the sentence hearing, that the same sentence is the appropriate sentence in which case the Court is not required to resentence.
The evidence, as noted above, established the fact, as the sentencing judge accepted, that the applicant had achieved a level of rehabilitation. The affidavit evidence of Mr O’Brien and the annexures to it, establish the applicant’s ongoing progress and achievement in constructive activities for which he is to be commended. There would, however, in a resentencing exercise, need to be brought into the balance all relevant matters, in particular those to which reference has been made in the discussion above. Certain of those matters contain conflicting or contradictory elements which would potentially bear upon sentence in the event of this Court intervening.
I consider that, taking into account all such matters, the aggregate sentence imposed, comprising a non-parole period of two years with a balance of two years, to be an appropriate aggregate sentence. In my opinion, any lesser sentence would not result in a sentence that reflects the objective seriousness, in particular, of the offence under s 154G of the Crimes Act and the purposes of punishment.
The Issue of Allowance for Pre-Sentence Custody
At the commencement of the hearing before this Court, Mr Barrow stated his belief that the sentencing judge may have been incorrectly informed that the applicant had served 3 months and 3 days of pre-sentence custody and the sentence imposed was backdated to that extent: T at p 1. In that respect it was observed during the hearing in this Court, that the proper amount of pre-sentence custody was 3 months and 14 days. The difference was said to have been attributable to a period following arrest, of between 16 and 21 March 2007 which the applicant spent in custody (5 days where bail had been refused) and a period following his release to parole in Queensland (in respect of a sentence for the Queensland offences), on 6 May 2012 following which he was held in custody until 14 August 2012. On this basis Mr Barrow observed that eleven days of pre-sentence custody had not been taken into account.
Following the hearing the Court was provided with the following information:
The Crown accepts that the applicant was in custody in relation to this matter for a total of 3 months and 16 days, between the following dates, before he was sentenced:
16.03.07 – 22.03.07 (7 days)
6.05.12 – 14.08.12 (3 months, 9 days)
The applicant was sentenced on 21.11.13. His sentence should have been backdated by 3 months and 16 days. However the Sentencing Judge only backdated his sentence by 3 months and 3 days, to commence on 18.08.13.
The correct starting date for the applicant’s sentence is 5.08.13 with the non-parole period expiring on 4.08.15. His additional term should expire on 4.08.17.
On 11 May 2015, the Registrar, at the direction of the Court, wrote to the applicant’s solicitors and to the Office of the Director of Public Prosecutions as to the procedure to be followed in order for the Court to be in a position to make any necessary order relating to established error in the backdating of the aggregate sentence. To that end, the Registrar raised with the parties the need for an amendment to the application for leave to appeal as a separate ground of appeal.
The Registrar subsequently received Amended Grounds of Appeal which included a second ground in the following terms:
“As a consequence of inaccurate information, his Honour erred in failing to take into account all of the pre-sentence custody served by the applicant.”
Consent Orders dated 18 May 2015 signed by the solicitor for the applicant and the solicitor for the respondent were also received by the Registrar. The Consent Orders were in the following terms:
“1. It is agreed that Ground 2 of the Amended Grounds of Appeal should be upheld.
2. It is agreed that the applicant actually served 3 months and 17 days pre-sentence custody.
3. Subject to any change to the total sentence being served by the Applicant should Ground 1 of the Applicant’s appeal be upheld, it is accepted for the purposes of re-sentence that the aggregate sentence to be served by the Applicant should commence on 4 August 2013 and not from 18 August 2013.”
Accordingly, the orders I propose are as follows:
(1)The applicant be granted leave to amend the Notice of Appeal in accordance with the amended Notice of Appeal dated 18 May 2015 to include Ground 2.
(2)The application for leave to appeal be granted.
(3)The aggregate sentence imposed by the District Court on 21 November 2013 be amended so that the non-parole period of the sentence is taken to have commenced on 4 August 2013 and is to expire on 3 August 2015. The balance of term of 2 years is to commence on 4 August 2015 and is to expire on 3 August 2017.
(4)The appeal be otherwise dismissed.
R A HULME J: I agree with Hall J.
**********
2
5
3