Fabre v The Queen

[2018] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Fabre v R [2018] NSWCCA 133

Hearing dates:

27 June 2018

Decision date:

29 June 2018

Before:

Basten JA

Decision:

Confirm the aggregate sentence imposed on the appellant on 8 September 2017 by the Drug Court and dismiss the appeal.

Catchwords:

APPEALS – appeal from sentence imposed by Drug Court – appeal pursuant to Criminal Appeal Act 1912 (NSW), ss 5AA and 5AF – whether appeal should be heard by single judge – leave to appeal not required

 

CRIMINAL PROCEDURE – probation and parole –sentencing judge failed to direct release at conclusion of non-parole period – judgment prior to repeal of Crimes (Sentencing Procedure) Act 1999 (NSW), s 50 and introduction of Crimes (Administration of Sentences) Act 1999 (NSW), s 158 – whether Court should make direction on appeal

 

SENTENCING – mitigating factors – plea of guilty –aggregate sentence imposed in respect of 30 offences – sentencing judge failed to apply discount for utilitarian value of pleas to four indicative sentences – whether error could have affected aggregate sentence  

  SENTENCING – appeal against sentence – where aggregate sentence imposed by Drug Court exercising jurisdiction of Local Court – where indicative sentences close to maximum penalty allowed for offences in Local Court – whether indicative sentences excessive

Legislation Cited:

Crimes (Administration of Sentences) Act 1999 (NSW), s 158; Sch 5, Pt 23
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 43, 50, 53B
Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 5AF
Drug Court Act 1998 (NSW), ss 7A, 10, 11, 12
Interpretation Act 1987 (NSW), s 30

Cases Cited:

Canzius v R [2017] NSWCCA 177
Douglass v The Queen [2012] HCA 34; 86 ALJR 1086
Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302
Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56
Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326
Mundine v R [2017] NSWCCA 97
Kerr v R [2016] NSWCCA 218
Lee, Matthew v R [2016] NSWCCA 146
Moses v R [2015] NSWCCA 218; 253 A Crim R 467
PG v R [2017] NSWCCA 179
R v Keyte (2000) 78 SASR 68
R v Robinson [2014] NSWCCA 12
Regina v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
Willmott v R [2016] NSWCCA 256
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Category:

Principal judgment

Parties:

Joseph Clive Fabre (Appellant)
Regina (Respondent)

Representation:

Counsel:
J Paingakulam (Appellant)
P McGrath SC (Respondent)

    Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/300554

 Decision under appeal 

Court or tribunal:

Drug Court

Date of Decision:

8 September 2017

Before:

Barnett DCJ

File Number(s):

2016/00000397

Judgment

1. BASTEN JA: On 8 February 2017 the appellant, having entered pleas in relation to 16 offences, was sentenced by Judge Barnett in the Drug Court at an “initial sentence hearing”. The judge imposed an aggregate sentence of 20 months imprisonment, which was suspended pursuant to s 7A(5)(b) of the Drug Court Act 1998 (NSW). The suspension constitutes a form of diversionary program to permit treatment and rehabilitation. In those circumstances no non-parole period is imposed. [1] However, if the court is satisfied that the offender has failed to comply with the program the court may terminate the program pursuant to s 10(1) and s 11(1) of the Drug Court Act. Where a program is terminated, the court must reconsider the initial sentence and determine a final sentence. [2]

   1. Drug Court Act, s 7A(4).

   2. Drug Court Act, s 12.

2. The appellant’s compliance with the program did not last long: he absconded on the first day. An order terminating his program was made on 9 March 2017. On 18 April 2017 he was apprehended pursuant to a warrant. His apprehension resulted in two further charges, one of resisting an officer in the execution of duty and a second of assaulting an officer.

3. The matter came back before the Drug Court on 25 August 2017, at which time the appellant was facing charges for 30 separate offences, including those laid as a result of his April 2017 arrest. On 8 September 2017 the appellant was sentenced by Judge Barnett to an aggregate sentence of 30 months with a non-parole period of 20 months. Taking into account time served, the sentence was backdated, by agreement, to 12 February 2017. The appellant is due to be released on parole on 11 October 2018.

4. It is common ground that, in imposing the final sentence, the judge erred in advising the offender that he would be “eligible for supervised parole from 11 October 2018.” Section 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), as then in force, required that “the court must make an order directing the release of the offender on parole at the end of the non-parole period”, where the sentence is for a period of 3 years or less. Since the commencement on 26 February 2018 of the Parole Legislation Amendment Act 2017 (NSW), a similar effect is achieved by a new s 158 inserted in the Crimes (Administration of Sentences) Act 1999 (NSW); s 50 of the Sentencing Procedure Act was repealed. New s 158 relevantly provides:

158   Statutory parole order

(1)   An offender who is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, is taken to be subject to a parole order (a statutory parole order) directing the release of the offender on parole at the end of the non-parole period.

Note. The provisions of Divisions 1, 3A and 5 of this Part and of Part 7 applying to parole orders, including provisions relating to conditions, revocation and release, apply to statutory parole orders (see definition of parole order in section 3(1)).

5. Whether this provision applies to persons sentenced prior to its commencement is unclear; if it were to apply to cases where a judge had made a direction for release on parole under s 50(1), one might expect that reference would be made to such a case. It may be that such a direction is to be treated as a parole order for the purposes of the transitional provisions,[3] although no such direction was given in the present case. Where the judge failed to make such an order, the matter might have been (and arguably might still be, despite the repeal of s 50) dealt with under s 43 of the Sentencing Procedure Act. Indeed, if that power is not preserved by s 30(1) of the Interpretation Act 1987 (NSW), this Court may lack the power to give a direction on appeal which should have been made by the sentencing judge. In any event, in a joint note to the Court following the hearing the parties agreed no order was necessary, so no order will be made.

   3. Administration of Sentences Act, Sch 5, Part 23 “Provisions consequent on enactment of Parole Legislation Amendment Act 2017”, cl 130.

6. The District Court’s jurisdictional limit with respect to an aggregate sentence was that of the Local Court, namely 5 years, as provided by s 53B of the Sentencing Procedure Act.

Nature of appeal

7. The submissions for the appellant, without demur from the Director of Public Prosecutions, identified the application as one seeking leave to appeal against sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). That was not correct; the offender was not “convicted on indictment” for the purposes of s 5(1). Rather, the jurisdiction is that conferred by s 5AA(1), by virtue of the separate provisions with respect to appeals from sentences imposed by the Drug Court, contained in s 5AF.

8. In the present case the aggregate sentence was imposed for a series of summary offences. The sentencing judge expressly noted that, “[a]ll matters are being dealt with by this Court exercising the jurisdiction of the Local Court.” [4] In that circumstance, this Court is to be constituted by a single judge, unless that judge considers that a matter of principle arises, or it is in the interests of justice for the matter to be dealt with by a full Court of Criminal Appeal and notifies the Chief Justice accordingly. [5] The present case, as the parties agreed, involves no issue of principle, nor is it in the interests of justice for the matter to be dealt with by a full Court. Accordingly the appeal was heard by and is to be determined by a single judge.

   4.    Sentencing judgment, 8 September 2017, p 1.

   5. Criminal Appeal Act, s 5AF(3)(b).

9. No leave is required to appeal against a sentence pursuant to s 5AA and s 5AF of the Criminal Appeal Act. [6] (Earlier suggestions to the contrary are in error. [7] )

   6. Hunter Quarries Pty Limited v Morrison; Badior v Morrison [2017] NSWCCA 326 (Walton, Rothman, and Harrison JJ) at [65]; Dyno Nobel Asia Pacific Pty Ltd v Environment Protection Authority [2017] NSWCCA 302 (Simpson JA, R A Hulme and Wilson JJ agreeing) at [3]; Erector Group Pty Ltd v Burwood Council; Liverpool Developing Pty Ltd v Burwood Council [2018] NSWCCA 56 (Bathurst CJ, Hoeben CJ at CL and Button J agreeing) at [63].

   7. Moses v R [2015] NSWCCA 218; 253 A Crim R 467 at [5]; Willmott v R [2016] NSWCCA 256 at [5].

Ground 1: failure to consider maximum penalties

10. Ground 1 alleged that the sentencing judge failed to consider the maximum penalties for the offences. The appellant’s written submissions had stated that “the Court made no reference either to having taken into account the maximum penalties for the various offences … [n]or were they set out in the Crown bundle, to allow an inference that his Honour took them into account.” [8] However, as counsel for the appellant accepted at the commencement of her argument, the latter part of that proposition was erroneous. Accordingly, the ground was properly abandoned.

    8.    Appellant’s written submissions, filed 1 May 2018, par 26.

11. In fact, all of the sentences complied with the stated maximum penalties. The inescapable inference was that the trial judge had regard to the maximum penalties in considering the putative individual sentences. The mere failure to refer to the relevant maximum penalties was not an error. [9]

    9. R v Robinson [2014] NSWCCA 12.

Ground 2: discount for pleas of guilty

12. Section 22 of the Sentencing Procedure Act imposes an obligation on the court to take into account a guilty plea when sentencing an offender. As explained in PG v R,[10] this provision is to be applied in indicating putative sentences for the individual offences.

    10. [2017] NSWCCA 179 at [56] (in my judgment) and [71] (Button and N Adams JJ).

13. Ground 2 concerned matters 14, 15, 18 and 19. All of the offences were committed on 4 December 2016. The offences, and the indicative sentences, were as follows:

Matter 14 – escape police custody – 4 months;

Matter 15 – resist/hinder police – 4 months;

Matter 18 – goods in custody – 3 months;

Matter 19 – custody of a knife – 3 months.

14. The circumstances of the offending were outlined by the judge in his initial sentence decision, noting that in other respects the offender had been “very remiss in relation to appearances at court”, resulting in the entry of guilty pleas for those offences; but in relation to the four matters identified above “he has indicated that in all matters he has pleaded guilty and he was convicted of those matters today.” The judge then stated that he would take the pleas into account “as a sign of his contrition.” [11] The appellant’s contention is that these observations indicate that, although the subjective element of contrition was recognised, the appellant was not given the benefit of a discount for the utilitarian value of the pleas.

    11.    Initial sentencing judgment, p 4.

15. In the final sentence judgment, after setting out some procedural background, the judge referred to the various charges dealt with at the first hearing. At the end of the recitation of those matters, the judge said: [12]

“I will take those pleas into account as a sign of the offender’s contrition and as having a high utilitarian value and he will receive the maximum benefit.”

12.    Final sentence judgment, p 3.

16. There was an ambiguity in this passage: it followed a reference to matters 13 and 17, with respect to each of which pleas were entered at the initial sentence hearing, but were not the subject of indicative sentences. Thus it is unclear whether the apparent reference to the discount for the utilitarian value of the pleas extended to the four matters identified in ground 2 on the appeal, or only to the two matters discussed in the immediately preceding passage in the final sentence judgment.

17. In Lee, Matthew v R [13] the appellant was entitled to a discount of 25% for his early pleas of guilty to each count in the indictment. However, the judge had made no reference to a discount in the sentencing judgment, delivered ex tempore. On appeal, the Director had submitted that the Court should infer that relevant discounts for the pleas had been taken into account, as they had been discussed in the course of submissions; the appellant had submitted that the absence of express reference to them in the judgment demonstrated that they had not been taken into account. The Court identified this as “unresolvable uncertainty which demonstrates error in failing to deal with the matter in the judgment.”[14] After referring to a passage in the reasons of Doyle CJ in R v Keyte,[15] the reasoning in Lee continued:

“[26]   Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real ‘possibility’ that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.”

13. [2016] NSWCCA 146.

14. Lee at [21].

15. (2000) 78 SASR 68 at 76, approved in Douglass v The Queen [2012] HCA 34; 86 ALJR 1086 at [14].

18. In the present case, the better view is that the judge, in the passage set out at [16] above, was referring only to matters 13 and 17, for which he indicated individual sentences for the first time in the final sentence judgment. With respect to the matters dealt with at the initial sentence hearing, the judge expressly adopted the sentences indicated on the prior occasion. [16] The failure to advert, in the initial sentence judgment to a discount under s 22 of the Sentencing Procedure Act indicates that he may well not have allowed such a discount in circumstances where it was patently appropriate.

    16.    Final sentence judgment, p 11.

19. Accordingly, error is established, but only in relation to the putative individual sentences, which were not the sentences ultimately imposed, but fed into the aggregate sentence adopted in the final sentence judgment. An appeal does not lie against an indicative sentence for an individual offence in circumstances where an aggregate sentence has been imposed. Thus, to determine whether any error is significant, it is necessary to consider how the error might possibly have affected the aggregate sentence.

20. In the present case, the putative individual sentences indicated by the sentencing judge in the final sentence judgment totalled 176 months; the aggregate sentence imposed was 30 months. The indicative sentences for the four charges under consideration totalled 14 months. On the assumption that, in each case, there had been a failure to apply a 25% discount, the total of the four sentences should have been reduced by 3.5 months. However, as a proportion of the aggregate sentence, the reduction would be 0.6 months, or some 2 weeks. That variation is insignificant having regard to the extent of the imprecision inherent within the evaluative judgment required to fix an appropriate aggregate sentence with respect to 30 separate offences. The errors in formulating the four putative individual sentences could not have materially affected the aggregate sentence and, accordingly, the ground of appeal should be dismissed.

Ground 3: manifest excess

21. Ground 3 was not pressed, but the submissions in support were relied upon (with other material, including evidence of the appellant’s progress whilst in custody) if the court were to resentence. No relevant error having been established the Court will not embark on that exercise; nevertheless, one point may be made in this regard.

22. There was an attempt to challenge the indicative sentences as excessive. While acknowledging that no appeal is available with respect to the “indicative sentences”,[17] the appellant submitted that, with respect to a number of charges, the sentences were close to the maximum penalty available after the prescribed maximum had been reduced by 25% on account of the pleas of guilty. For example, the appellant drew attention to three matters for which the judge had indicated individual sentences of 16 months, the offences carrying a maximum in the Local Court of 2 years imprisonment.

    17. Cf Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing)

23. In addressing the length of the putative individual sentences, it would not be correct to approach the sentences as if the maximum penalty available in the Local Court were the maximum penalty for the offence, so that only the most serious offence of its kind should approach the maximum penalty available in the Local Court. The question is, rather, whether the jurisdiction of the Local Court was properly invoked in relation to matters which called for a higher penalty. Less serious offences of a kind which may properly be dealt with in the Local Court may attract a sentence at or close to the limit of the Local Court’s jurisdiction. [18]

    18. Regina v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27] and [35] (Grove J, Spigelman CJ and Kirby J agreeing); Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [98]-[99] (Johnson J, McClellan CJ at CL and Rothman J agreeing); Canzius v R [2017] NSWCCA 177 at [62] (Gleeson JA, Harrison and Fullerton JJ agreeing); Mundine v R [2017] NSWCCA 97 at [92] (Adamson J, Campbell J agreeing).

Conclusion

24. The appeal, brought as of right, must be dismissed. The following order is made:

Confirm the aggregate sentence imposed on the appellant on 8 September 2017 by the Drug Court and dismiss the appeal.

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Endnotes