Gray v R
[2013] NSWCCA 169
•19 July 2013
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Gray v R [2013] NSWCCA 169 Hearing dates: 6 May 2013 Decision date: 19 July 2013 Before: Bathurst CJ at [1]
Fullerton J at [2]
Campbell J at [46]Decision: 1) Grant Leave to Appeal;
2) Appeal dismissed
Catchwords: CRIMINAL LAW - sentence appeal - whether sentencing judge erred by failing to give practical effect to a finding of special circumstances in the context of the total effective sentence to be served by the applicant - whether sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57; 194 CLR 610 Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Sentencing Act 1989 (NSW) (Repealed)Cases Cited: Abbas v R [2013] NSWCCA 115
Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146, 137 A Crim R 180
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Kalache v R [2011] NSWCCA 210
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Argent [2004] NSWCCA 270
R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299
R v Hampton (1998) 44 NSWLR 729
R v Henry (1999) 46 NSWLR 346
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Moffitt (1990) 20 NSWLR 114
R v Sharrock [1999] NSWCCA 289
R v Simpson (1992) 61 A Crim R 58
R v Street [2005] NSWCCA 139
R v Thornbury [2000] NSWCCA 526
R v Tran [1999] NSWCCA 109
R v Walker [2005] NSWCCA 109
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Thorpe v Regina [2010] NSWCCA 261
Veen [No. 2] v The Queen [1988] HCA 14; 164 CLR 465Category: Principal judgment Parties: Christopher Kevin Gray (applicant)
Regina (respondent)Representation: Counsel:
A. Francis (applicant)
R. Herps (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)
File Number(s): 2009/220092 Decision under appeal
- Date of Decision:
- 2010-12-16 00:00:00
- Before:
- Judge Solomon
- File Number(s):
- 2009/220092
Judgment
BATHURST CJ: I agree the appeal should be dismissed for the reasons given by Fullerton J.
FULLERTON J: I have read the draft judgment circulated by Campbell J. I agree that the appeal should be dismissed but prefer to express my own reasons for coming to that view.
The applicant seeks leave to appeal against the sentence imposed in the District Court on 16 December 2010 after pleas of guilty were entered in the Local Court on 28 September 2010 to eight offences (each of which attracted a discount of 25 per cent). Two further offences were taken into account on the Form 1.
The offences on indictment comprised six counts of armed robbery contrary to s 97(1) of the Crimes Act1900 (NSW) ("Crimes Act") for which a maximum penalty of 20 years is provided, and two counts of taking and driving a motor vehicle without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act which, by operation of s 117 of that Act, attract a maximum sentence of 5 years imprisonment.
The offences on the Form 1 included a further armed robbery and take and drive conveyance committed within the same time frame as the offences on the indictment. Those offences were said by the sentencing judge to have been taken into account in the imposition of sentence on the first count of armed robbery. I note that the same sentence was imposed on that count as was imposed on each of the remaining five counts of armed robbery. Since there is no Crown appeal, the fact that his Honour's approach to dealing with the Form 1 offences would appear to be contrary to the principles applied in Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146; 137 A Crim R 180 (most recently endorsed in Abbas v R [2013] NSWCCA 115) does not arise.
The applicant was on parole at the time of the offending the subject of the sentence under challenge. On 27 May 2004 he was sentenced in the District Court to a term of imprisonment of 7 years with a non-parole period of 4 years for armed robbery in a sentencing exercise which involved the imposition of fixed terms of imprisonment for three further offences of armed robbery. He was released to parole on 16 January 2009. Following his arrest on 24 September 2009 his parole was revoked. He was serving the balance of parole at the time of sentence.
On each of the first three counts of armed robbery, committed respectively on 6, 9 and 10 September 2009, and after a finding of special circumstances, non-parole periods of 3 years were imposed with an additional term of 2 years, reflecting a variation in the statutory ratio to 66 per cent. The sentence on each count was ordered to date from 16 December 2009, his Honour having accepted that were the sentence to commence at the expiration of the parole period in March 2012 it would be "crushing".
On each of the remaining counts of armed robbery, committed respectively on 14, 18 and 20 September 2009, and also following a finding of special circumstances, non-parole periods of 3 years with an additional term of 2 years were also imposed. The sentence on each of these counts was ordered to date from 16 December 2012, by which date the applicant would have served the balance of parole.
Fixed terms of imprisonment of 1 year were imposed for the take and drive conveyance offences. Given the structure of the sentencing order for the armed robbery offences, the sentencing judge considered that it was inappropriate to fix a non-parole period for the take and drive offences. The fixed terms were ordered to be served concurrently with the sentence imposed on the first three armed robbery counts.
In the result, an effective sentence of 8 years was imposed which comprised a non-parole period of 6 years to expire on 15 December 2015 with an additional term of 2 years to expire on 15 December 2017. The structure of the sentence preserved, or reinstated, the statutory ratio provided for under s 44 of the Crimes (Sentencing Procedure) Act1999 (NSW) ("Crimes (Sentencing Procedure) Act").
The ground of appeal
There is no challenge to any of the individual sentences or the way they were structured. The sole ground of appeal concerns what is said to be the failure to give practical effect to the beneficial finding of special circumstances in the total effective sentence. It was submitted that the reasons for sentence make it clear that his Honour intended that the finding of special circumstances, which disturbed the statutory ratio on the two sets of armed robbery offences, was also to be reflected in the structure of the total sentence since that finding was made, in large part, for the express purpose of affording the applicant the opportunity to attend a residential drug rehabilitation unit upon his release from custody, thereby fostering his ultimate reintegration into the community.
The facts for sentencing purposes
An agreed statement of facts was tendered on sentence. In light of the limited basis upon which the sentence is challenged the following summary of the facts upon which sentence was imposed is sufficient for present purposes.
Take and drive conveyance: 19 August 2009
The applicant entered a Volkswagen dealership at Five Dock and was observed by an employee to show an interest in a 2005 Touareg vehicle. When approached the applicant asked to speak to the manager and appeared to follow the directions offered by an employee to that end. He was later seen driving the vehicle from the premises. It was recovered by police on 27 August 2009 in Glebe, a short distance from where the applicant was residing.
Take and drive conveyance: 1 September 2009
The applicant entered the premises of a car repair business at Artarmon and removed keys to an Audi A6 which was parked outside. He gained entry to the car and drove it from the premises. It was recovered by police on 12 September 2009, again a short distance from where the applicant was residing.
Armed robbery: 6 September 2009
The applicant entered the Subway fast food outlet at Ultimo at about 3.50pm where three employees and two customers were threatened, first with a bread knife the applicant grabbed from the counter and then with a knife he removed from his jacket. The applicant demanded they surrender their wallets. One of the customers handed over his wallet containing $50 in Australian currency and some Indian currency. The applicant ran from the store and left the scene in the stolen Audi.
Armed robbery: 9 September 2009
The applicant entered the Australia Post Office in Rozelle at 11.57am where he threatened a postal officer with a knife demanding that he and his colleague open the safe. He stole $1667 cash in total comprised of money from the safe, together with $100 from the service counter and a purse belonging to a customer which contained a further $100 cash.
Armed robbery: 10 September 2009
The applicant entered the Australia Post Office at Artarmon at 2pm where he threatened a postal officer with a knife demanding money. He stole $835 from one cash register operated by an employee, a further $740 from another cash register operated by a second employee and $40 from a third cash register. The robbery was witnessed by a customer.
Armed robbery: 14 September 2009
The applicant re-entered the Australia Post Office at Artarmon at 3.42pm. On this occasion he removed a knife from his clothing demanding money from the same three officers who had been the subject of the robbery four days earlier. A total of $1100 in cash was stolen.
Armed robbery: 18 September 2009
The applicant entered a newsagency at Gladesville and, whilst armed with a knife, threatened the shop assistant before taking a total of $1200 in cash. A customer entered the store during the course of the robbery.
Armed robbery: 20 September 2009
The applicant entered the Subway fast food outlet at South Point Shopping Centre, Hillsdale. Whilst armed with a knife he threatened a shop assistant before stealing $700 from the cash register. An off-duty police officer witnessed the robbery and chased the applicant but was unable to arrest him.
The Form 1 offences
The armed robbery offence the subject of the Form 1 was committed on 8 September 2009 and involved the applicant entering a pet store at Paddington and demanding money under the threat of a gun he claimed was in his pocket. On that occasion he stole $600 in cash. The vehicle the subject of the take and drive offence committed on 14 September 2009 was a Toyota Corolla that was being detailed at a car wash. The car was located by police near the applicant's address. On 23 September, following his arrest, the applicant was found in possession of the key to the Toyota taken on 14 September 2009.
The applicant's criminal antecedents
The applicant was aged 32 at the time of sentence. He had a lengthy criminal record having been sentenced in the Local Court to imprisonment for multiple offences of break, enter and steal in 1996 and 1997, with non-custodial penalties imposed for offences of a similar kind both preceding that date and at various intervals thereafter. He had also been sentenced to imprisonment in the District Court on successive occasions from 1999 for offences involving violence and robbery, of graduating seriousness, culminating in the sentences imposed in the District Court in May 2004. As noted above, following his arrest in September 2009 for the subject offences he was returned to custody to serve the balance of the sentence imposed in May 2004.
There is no challenge to his Honour's assessment of each of the offences as serious, or that they were aggravated by being committed while the applicant was subject to conditional liberty on parole. Although his Honour did not refer specifically to whether and, if so, how the applicant's criminal record impacted on sentence (see R v Walker [2005] NSWCCA 109 at [42]) he did refer to the need to have regard to the protection of the community in the imposition of sentence which, given the extent and length of the applicant's criminal history, was a consideration in the sentencing exercise which necessarily carried significant weight.
The applicant's subjective circumstances
The applicant tendered a report from Ms Nasr, forensic psychologist, and a discharge summary from the manager of "The Peppers", a residential drug rehabilitation service where the applicant spent three months following his release to parole in January 2009. The applicant's father gave evidence.
His Honour made a number of factual findings drawn from this evidence which had a direct and material bearing on whether the applicant was capable of being rehabilitated which, in turn, impacted on his finding of special circumstances.
The applicant had a fractured family life after his parents separated when he was six, largely as a result of his mother's alcoholism and her mental illness. He has no relationship with his mother. His father remarried during the applicant's early adolescence but that family unit was also punctuated by frequent arguments as a result of which the applicant left the family home. During this period the applicant commenced his association with illicit drugs which developed over his late teens and into adulthood into a drug dependence with heroin as his drug of choice. He had learning and behavioural difficulties during his schooling where he was assessed as developmentally disabled. Upon leaving school he obtained an apprenticeship as a spray painter which he did not complete.
On psychometric testing by Ms Nasr the applicant's intelligence was assessed as falling into the extremely low range with his performance being above only 0.2 per cent of the normative sample commensurate with a person with a mild intellectual disability. She identified a long history of depressed mood characterised by an intense sense of helplessness and hopelessness which together with a range of risk factors, including chronic drug abuse, impulsivity and vulnerability to peer pressure, have shaped the applicant's developmental trajectory where almost his entire adult life has been spent in a custodial environment. In her view, the applicant has become institutionalised to such an extent that he is lacking many of the basic coping and independent living skills that are required for mature and stable community living. He has twice tried to take his own life whilst in custody and has been bullied by other inmates as a result of his disability. Despite being offered programs catering to his specific needs whilst in custody in the past, he did not obtain any lasting benefit.
The applicant's active participation in the various programs offered at The Peppers on his release to parole in January 2009, and his family support and the support of his Probation and Parole officer at that time and upon his release from that treatment program in April 2009, did result in his gaining employment and secure accommodation. Regrettably, however, this was short lived when, after suffering a fracture to his wrist in a football game, some months later the applicant lost his job and ultimately returned to Sydney where he reconnected with a drug milieu in the context of which he reoffended.
Ms Nasr's report was extensive. His Honour referred to her remarks in summation, with which he wholly agreed, in the following passage:
In sum, this is a sad case of a vulnerable, disadvantaged and intellectually disabled man, who has been institutionalised, with limited experience of adaptive functioning within the community. As such, [the applicant] will require a high level of supervision, coordinated support and comprehensive intervention if he is to be able to make a meaningful transition to the community and lead an offence-free life. Without this, his prognosis is poor.
His Honour was ultimately satisfied that the applicant was capable of being rehabilitated and that his attitude to his rehabilitation was encouraging. His Honour noted that the applicant asked that he be housed in the Developmentally Disabled Unit at the Long Bay Correctional Centre as a sentenced prisoner. A recommendation was made to that effect. His Honour also identified the applicant's need for rehabilitation in the community on his ultimate release from custody as one of two bases upon which he found special circumstances, the other reason being his intention that some of the sentences to be imposed would be partially accumulated.
The applicant's submissions on the appeal
On the appeal the applicant's counsel acknowledged that were his Honour to have limited his finding of special circumstances to the fact that the number and range of offences for which the applicant was to be sentenced would inevitably attract an order for partial accumulation, and that the ratio between the non-parole period and the balance of term on the individual counts required adjustment for that reason, then the preservation of the statutory ratio after accumulation would not have been indicative of error. However, as counsel sought to emphasise, the finding of special circumstances was not made solely because of the need for partial accumulation but, additionally and importantly, because of his Honour's favorable finding as to the applicant's prospects of rehabilitation. Despite the applicant's lengthy criminal record and his breach of parole three months after his release from custody, counsel submitted that the evidence supported that finding and, when considered in the context of the applicant's compromised intellectual functioning, should have been reflected in a more beneficial sentencing outcome by a modest reduction in the total non-parole period in favour of an extension of the time under close supervision on parole.
Whether through oversight or a failure to comply with the principled approach to sentence mandated by the High Court in Pearce v R [1998] HCA 57; 194 CLR 610, counsel submitted that the ultimate sentencing order did not achieve that result and that this Court should move to re-sentence.
The error of principle upon which counsel relied was said to be evidenced in one part of his Honour's exchange with the Crown and the applicant's solicitor in the sentencing hearing in the following extract:
Well I suppose what I could do I could lump three, the first three together and then partially accumulate on top of those for the next three. I think that's the only way in which I can sensibly deal with it. It's a bit of a fiction but I think it will comply with the spirit of Pearce, and it will also comply with what you would like as some acknowledgement of accumulation because of the different offences.
Counsel submitted that this extract revealed that the sentencing judge had effectively settled on a non-parole period of 3 years for each of the two sets of armed robbery offences, instead of considering the sentence to be imposed for each offence (or set of offences) and only then turning to consider the ratio of the non-parole period to additional term referable to the operation to s 44 of the Crimes (Sentencing Procedure) Act (again both for each offence or set of offences) and then, after the order for partial accumulation, undertaking that same exercise. This error in approach was said to have either masked the error in the sentencing result or explained it, or both.
It is an uncontroversial statement of sentencing principle that where a sentence of imprisonment is to be imposed it ought not be inflated to accommodate a finding of special circumstances. It is also well settled that, subject to the operation of s 53A of the Crimes (Sentencing Procedure) Act, sentences for multiple offences are to be imposed consistent with the approach mandated in Pearce. In my view, there is nothing in the above extract, or in the frank exchanges with counsel that preceded and followed it, that suggested an error of either kind. To the contrary. In what was a difficult and delicate sentencing exercise his Honour referred more than once to the need to comply with Pearce - an approach which finds eloquent expression in his sentencing remarks.
The question that remains to be considered is whether the applicant has made good the contention that his Honour intended that the finding of special circumstances should translate into a reduction in the overall non-parole period but, by inadvertence, did carry his intentions into effect. A related question is whether this Court should move to re-sentence to correct that error were it found established.
Counsel referred to a number of cases where this Court has intervened and re-sentenced in what were said to be like circumstances: Thorpe v R [2010] NSWCCA 261; R v Argent [2004] NSWCCA 270; R v Sharrock [1999] NSWCCA 289; R v Thornbury [2000] NSWCCA 526; R v Keen [2004] NSWCCA 86; R v Street [2005] NSWCCA 139; R v LWP [2003] NSWCCA 215.
In the last mentioned case, said to be analogous to this case, the sentencing judge structured each of a number of individual sentences so as to reflect a finding of special circumstances on the basis of the offender's rehabilitation. In each case, the non-parole period was 66 per cent of the sentence. However, when the sentences were accumulated, the statutory ratio of 75 per cent under s 44 of the Crimes (Sentencing Procedure) Act was preserved. This Court was satisfied that the sentencing judge had intended to give effect to his finding of special circumstances in the total sentence imposed, and that his sentencing discretion has miscarried for that reason. Importantly, the Court was also ultimately satisfied that, in accordance with s 6(3) of the Criminal Appeal Act1912 (NSW), a less effective sentence was warranted in law and re-sentenced the applicant to carry the sentencing judge's intention into effect.
Counsel accepted that even were we satisfied that his Honour did intend a variation in the ratio between non-parole period and additional term in the effective sentence, we would need to be satisfied that a lesser effective sentence was warranted at law. I do not understand that on re-sentence any alteration in the total effective sentence is sought. Rather, what was proposed was that the ratio of 66 per cent be applied to the total sentence (that is, the ratio that is applied to the sentences for both two sets of armed robbery offences) which would result in a non-parole period of 5 years and 3 months with a balance of term of 2 years and 9 months.
The applicant's counsel also placed particular reliance upon the observations of Simpson J in Thorpe where her Honour said at [4]:
...Where the basis for a finding of special circumstances is to foster rehabilitation, it is the overall term, not the terms of individual sentences, that must be adjusted. If that is not the result, the finding of special circumstances is ineffective to achieve its objective. The applicant is entitled to the benefit of that finding in a practical, not merely theoretical, way.
Her Honour's views were expressed in the context of the complexities of the case under consideration which involved a review of two sentencing exercises before different judges of the District Court, and where the sentence under appeal, the subject of the second sentence proceeding, was committed prior to the offences the subject of the earlier proceeding. I do not interpret her Honour to have intended to express that in every case where individual sentences have been accumulated and special circumstances have been found on the basis of the need to provide for an offender's rehabilitation, a variation in the ratio in the overall term will inevitably result. As I see it, the question in any particular case is whether a finding of special circumstances has been effectively translated into the sentencing outcome in a "practical, not merely theoretical, way" by providing for a parole period that allows for an adequate period under supervision in the community which remains proportionate to the non-parole period as the mandatory period an offender is to serve in custody without inappropriate emphasis on that mandatory period.
While there is no fixed criterion referable to which a finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act might be made, the need for the structure of a sentence to reflect a favourable finding as to an offender's prospects of rehabilitation, and the corresponding need to foster rehabilitation as a recognised sentencing objective, is commonly invoked. The fact of accumulation across a number of separate sentences is also invoked in order to accommodate and reflect the principle of totality (see the observations of Simpson J in Kalache v R [2011] NSWCCA 210 at [20] and the remarks of Allsop P at [2] and Buddin J at [45] as to the significance of the operation of s 44 of the Crimes (Sentencing Procedure) Act in promoting rehabilitation as an important part of the sentencing exercise).
In this case, I acknowledge that the sentencing judge specifically found that both rehabilitation and aggregation warranted a finding of special circumstances. I also note that when his Honour appointed the expiration dates of both the effective non-parole period and the total effective sentence in the sentencing order, he stated that he had "not complied with the 75/25 per cent ratio" when, in fact, the statutory ratio was applied. This lends some support for the applicant's claim that it was through inadvertence that the statutory ratio in the overall sentence was not varied. However, as the Crown emphasised in submissions and, in my view, not without significance, the sentencing reasons in this case were delivered ex tempore. It is not suggested by the Crown that there is any lack of order or structure in his Honour's sentencing remarks. It was submitted, however, that the precision in expression or refinement which might be incorporated into a sentencing judgment delivered after the luxury of time to prepare it may explain why his Honour stated in his sentencing reasons that he had not complied with the statutory ratio when, in a robust exchange with counsel in the sentencing hearing that immediately preceded the pronouncement of the sentencing order, he made it clear to the parties that he intended that the minimum period the applicant should spend in custody was 6 years.
At one point in the exchange with counsel, which in my view accurately reflects his Honour's intention which he carried into effect in the sentencing order, he said:
...about six years, on the bottom I'm talking about, expire about six years away. That's the sort of figure I'm thinking about. I think it reflects, it does three things, it reflects the seriousness of the offence, (2) it's going to give him the opportunity within the prison system hopefully of re-adjusting his mindset and thinking. And number (3), it's going to in that period of time protect the community from - that's the sort of figure I've got in mind and any more would be crushing, any much less would be - would not reflect the criminality.
For my part, I am not persuaded that the error the applicant contends for has been made out. While it is true that the progressive accumulation of the two sets of sentences for the six armed robbery had the effect of restoring the statutory proportion between non-parole period and additional term to the aggregate sentence, and whilst that might on one view of the cases to which we were referred be an unusual result, I am not satisfied that it was an unintended result. To the contrary. I am satisfied that his Honour's very favourable findings as to the applicant's prospects of rehabilitation were not only reflected in the structure applied to the individual armed robbery offences but, in addition, they were also fairly reflected in the 2 year parole period applied to the aggregate sentence. This structure had the ultimate effect of not only addressing principles of totality, it also left the non-parole period of 6 years to reflect the serious criminality comprehended by each of the eight offences the subject of sentence, each of which was aggravated by being committed whilst the applicant was on parole.
CAMPBELL J: The applicant seeks leave to appeal against the sentence passed upon him by his Honour Judge Solomon in the District Court of New South Wales on 16th December 2010. He was sentenced for six armed robbery offences and two offences of taking and driving a car without the consent of the owner. Two additional offences were taken into account in sentencing for the first armed robbery offence, occurring on 6 September 2009, on a Form 1. These were a further armed robbery and a further taking and driving a car.
The sentencing judge imposed an effective sentence of eight years imprisonment, consisting of a non-parole period of six years and an additional term of two years.
The offending occurred in what might be regarded as a one-man crime wave between 19th August and 14th September 2009. The applicant was then on parole for previous offences, including a number of armed robberies, being part of a sentence imposed on him by the District Court on the 27th of May 2004.
His offending was related to his heroin addiction. The applicant pleaded guilty at the first available opportunity.
Grounds of appeal
In the appeal papers the applicant advanced one ground:
The sentencing judge erred by failing to give practical effect to his finding of special circumstances in the context of the total effective sentence to be served by the applicant.
But, in oral argument an additional challenge was mounted on the basis of "Pearce error".
The structure of the sentences
The sentencing judge imposed sentences in the following terms (reasons pp 8 - 9).
As to the take and drive offence of 19 August, 2009 and take and drive conveyance offence of 1 September 2009, Christopher Kevin Gray you are convicted, sentenced to imprisonment for one year to date from 16 December 2009 to expire on 15 December 2010. I decline to set a non-parole period for the reason of the structure of the sentences imposed makes it inappropriate to do so (sic).
Christopher Kevin Gray, in respect of the armed robbery offences of 6 September 2009, 9 September 2009, 10 September, 2009 you are convicted. The offender is sentenced as follows, I set a non-parole period of 3 years commencing on 16 December 2009, expiring on 15 December, 2012. I impose a further period of imprisonment of two years, commencing upon the expiration of the non-parole period and expiring 15 December 2014. The total sentence is therefore five years comprising a non-parole period and a balance of the sentence.
I find special circumstances. Eligible to be considered for release to parole at the expiration of the non-parole period. The Form 1 is taken into account when I sentenced the offender in respect to the offence of 6 September, 2009.
Christopher Kevin Gray in respect of the offences of robbery of 14 September, 2009, 18 September, 2009 and 20 September, 2009 you are convicted. The offender is sentenced as follows, I set a non-parole period of 3 years, commencing 16 December, 2012 and expiring on 15 December 2015. I impose a further period of imprisonment of two years to commence upon the expiration of the non-parole period and expiring 15 December 2017. Total sentence is therefore five years, comprising a non-parole and the balance of the sentence. I find special circumstances. Eligible to be considered to release to parole at the expiration of the non-parole period.
The effect of that Mr Gray is that you will be eligible for release to parole on 15th December 2015.
The applicant's 2009 parole
The applicant had been released to parole under the 2004 sentence on 16th January 2009. Upon his release he was admitted to a residential drug and alcohol treatment centre. He "completed" his treatment episode - perhaps terminated may be a better word - on 16th April 2010, with the approval of the Probation and Parole Service (Exhibit 2). Regrettably, he must have relapsed into drug use soon thereafter for he was returned to custody on 18th May 2009. The reason for this is not clear on the evidence. He was released to parole again on 24th July 2009, and after only one month the current spate of drug related offending began. He was arrested for the current offences on 25th September 2009 and the parole authority again revoked his parole. He became liable to serve the balance of his parole, a period of 2 years, 5 months and 17 days, expiring on 11th March 2012.
In this regard, the Crown argues, with justification, the sentencing judge's partial accumulation of the first sentences imposed by him from 16th December 2009, antedating their imposition by twelve months, was lenient.
The nature of the offending
The armed robbery counts were laid under s 97(1), and the "car stealing" offences under s 154A(1)(a), of the Crimes Act. Each armed robbery offence carried a maximum penalty of 20 years imprisonment; the "car stealing", five years. Neither offence is a standard non-parole period offence. That the series of offences occurred in breach of the applicant's parole provides significant context to his offending.
The facts may be adequately summarised as follows. I have drawn upon the sentencing judge's reasons and the Crown's written submissions:
(a) The first offence was a take and drive conveyance committed on 19th August 2009. An employee of a Volkswagen dealership at Five Dock noticed the applicant looking at a 2005 model VW Toerag. When questioned the applicant asked to speak to the manager and then seemed to follow the directions offered by the employee. A short time later he returned to the car and drove off when no one was looking. It was recovered on 27th August 2009, a short distance from the applicant's accommodation at Glebe;
(b) The second take and drive conveyance was committed on 1st September 2009. At about 6 p.m. on 1st September 2009, apparently undetected, the applicant entered the upstairs office of Atlas Bodyworks of Artarmon and removed the keys to an Audi A6, which was parked outside in a secured state. He gained entry to the car with the key and drove off in it. It was not recovered until 12th September 2009, again in Glebe.
(c) The applicant committed the first four offences of armed robbery on the 6th, 8th, 9th and 10th of September 2009 at Ultimo, Paddington, Rozelle and Artarmon respectively. The Paddington offence, committed on two staff members of a pet shop and involving $600, was dealt with on the Form 1 appurtenant to the first armed robbery count. It is not without significance that after committing this offence he made good his escape in the stolen Audi. The offence on the first count was committed at a Subway fast food outlet at Ultimo. Three employees and two customers were threatened with a knife. The proceeds of the crime were modest indeed. The next armed robbery occurred at the Rozelle post office. Two employees and one customer were threatened with a knife and $1667 in cash was stolen. The fourth armed robbery (third count) occurred at the Artarmon post office. Three employees and one customer were threatened with a knife and $1615 was stolen.
(d) The armed robberies committed on the 14th, 18th and 20th of September (counts four, five and six) were also dealt with together by the sentencing judge. On 14th September 2009 the applicant committed a third car stealing offence, dealt with on the Form 1. He stole a Toyota Corolla car from a car rental company at Artarmon. Soon thereafter he robbed the Artarmon post office a second time, armed with a knife. He jumped the counter threatening the same three employees with his knife. He stole $1100 and escaped in the stolen car.
(e) Police located the stolen car the following day at Glebe. The officers kept it under surveillance. They approached the applicant as he entered the car, but he escaped by driving off at speed.
(f) On 18th September 2009 the applicant robbed the Monash Park Newsagency at Gladesville. Again, he jumped the counter threatening one employee and one customer with a knife. He stole $1200.
(g) The final offence was committed on 20th September 2009 at a Subway fast food outlet at Hillsdale. The applicant threatened one employee with a knife and stole $700. An off duty police officer gave chase, unsuccessfully.
The applicant was arrested on 25th September 2009 at Glebe, in possession of the keys for the Corolla.
The learned trial judge properly regarded the consideration that the applicant was on conditional liberty at the time of the commission of the offences as an aggravating factor. As the Crown points out, his Honour might also have had regard to the fact that each offence was part of a planned criminal activity and that the victims, particularly the post office and shop employees, were vulnerable.
Moreover, the applicant has a lengthy criminal record including prior offences of a similar nature. These extend to ten car stealing offences between 1995 and 1998, seven other stealing offences over approximately the same period, breach of recognisance in 1996, revocation of parole in 2000, and five offences of either robbery or armed robbery. These last matters are the offences already mentioned for which he was sentenced in 2004, and in respect of which he breached his parole by committing the present offences. He has served numerous short terms of imprisonment over the years, as well as a term of 2 years (non-parole period of 18 months) imposed by the Sydney District Court on 4th October 2001. The 2004 sentence involved an effective term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months.
The applicant's subjective case
The sentencing judge acknowledged the early plea and allowed a discount of 25 per cent for its utilitarian value. His Honour accepted also that the plea indicated a degree of contrition, and he accepted the views of Ms. Rima Nasr, a psychologist whose report is Exhibit 1, that the applicant was remorseful and understood the consequences of his actions upon his victims.
The applicant was born on 23 April 1978. He was accordingly 31 years old at the time of the offences, and 32 when sentenced. His parents separated when he was six. He then lived with his father, and did not bond with his stepmother upon his father's remarriage.
He had learning and behavioural difficulties at school where he was assessed as developmentally disabled. Ms. Nasr, through psychometric testing, assessed the applicant's intelligence as falling into "the extremely low range, with his performance [on the tests] being above only 0.2 per cent of a normative sample". Ms. Nasr expressed the view that the psychometric results were commensurate with a person with a Mild Intellectual Disability. She recorded that the applicant received little by way of formal schooling and has difficulty with literacy and numeracy.
The applicant used to absent himself from home for days at a time. The sentencing judge found that he left home permanently at an early age. He obtained an apprenticeship as a spray painter but did not persist with it.
After leaving home he fell into the way of using illicit drugs. He first used heroin at the age of nineteen and quickly developed a dependence on the substance. Heroin had remained his drug of choice.
He twice tried to take his own life whilst in custody and had been bullied by other inmates because of his slowness.
According Ms. Nasr, when previously in correctional facilities he had been assessed as "developmentally disabled" and underwent programs catering to his particular needs. He did not obtain lasting benefit from his participation. As I have recounted, he received some initial benefit from the residential rehabilitation program he had undertaken upon his release to parole in January 2009. He relapsed after a wrist injury interfered with his work and other prospects.
Reasons for sentence
The sentence was passed ex tempore immediately following the completion of the proceedings on sentence. During those proceedings, it is fair to say, the learned sentencing judge engaged in a very open discussion with counsel appearing for the applicant and the Crown about the nature of the case, and what his Honour then had in mind fixing as the appropriate sentences for each offence for this offender. What is said in argument is no substitute for reasons. I record this only because it was part of the argument advanced in this Court that the nature of the procedure adopted by his Honour may in part explain what the applicant says are the errors in his approach. It is not necessary to use the exchanges between the sentencing judge and counsel to supplement his Honour's reasons, which in any event, were clear and comprehensive enough.
His Honour did not make specific reference to the applicant's long criminal history. But as I have said, he emphasised that the current spate of offences were committed whilst on parole. His Honour cannot have overlooked the other aspects of the applicant's record because he considered the protection of the community was a salient consideration in the sentencing task before him. In this regard, his Honour clearly had in mind Veen [No. 2] v The Queen [1988] HCA 14; 164 CLR 465 at 476 - 7. I infer that he kept in mind that this consideration is subject to the principle of proportionality.
Moreover, as he drew upon the evidence of the applicant's father, and of Ms. Nasr (with whose evidence he expressed complete agreement) when considering the applicant's subjective circumstances, it may be taken that he considered that the applicant's moral culpability was reduced by reason of the diagnosis of a Mild Intellectual Disability. Likewise, the significance of general deterrence. His Honour, I think appropriately, found it unnecessary to refer to these objects of sentencing specifically.
Given the number of offences with which he had to deal, his Honour had "regard to the totality principle", and was well aware of the requirements of "the principles contained in Pearce's case" (Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623 [45] - 624 [48]).
His Honour "totally agree[d]" with Ms. Nasr's conclusion, which was in the following terms (Exhibit 1 at [47]):
In sum, this is a sad case of a vulnerable, disadvantaged and intellectually disabled man, who has been institutionalised, with limited experience of adaptive functioning within the community. As such, Mr Gray will require high level of supervision, coordinated support and comprehensive intervention if he is able to make a meaningful transition to the community and lead an offence-free life. Without this, his prognosis is poor.
His Honour said (reasons pp. 6 - 7)
As to the offender's present incarceration he is in a Limited Association classification, which means he spends some twenty-three hours per day in his cell and is allowed one hour per day out of his cell for exercise. The offender's interest in rehabilitation is pleasing and I do find special circumstances for the reason that the offender requires rehabilitation in the community on his release from custody. I further find special circumstances for the reason that it is my intention to accumulate some of the sentences. [Emphasis added].
The sentencing judge then outlined the sentences he proposed to impose and, following his reference to Pearce's case, he "note[d]" that he was not complying with the statutory ratio in s 44(2) Crimes (Sentencing Procedure) Act, at least in respect of the individual sentences he was imposing. His Honour said he was taking into account the Form 1 offences in dealing with the armed robbery offence of 6 September 2009.
His Honour made particular reference to the fact that both the Crown and counsel for the applicant submitted that the sentences should not be crushing. His Honour made clear that he had designed the structure of the sentences he was about to impose with that in mind.
His Honour then imposed the sentences set out above. His Honour recommended that the applicant be transferred to the Developmentally Disabled Unit at Long Bay and that a copy of Ms Nasr's report be provided to Justice Health (as soon as practicable).
I interpolate that it is clear, at least to my mind, that: back-dating the commencement of the sentences for twelve months, so they were accumulated leniently on the balance of term yet to be served for the previous sentence; "batching" the six armed robbery offences into groups of three; accumulating the concurrent sentences so produced for each group upon the expiration of the non-parole period for the first; and extending the statutory ratio for the individual sentences, but not the effective sentence, were all measures that his Honour took to comply with the sentencing legislation, and the general law principles relating to sentencing, including Pearce.
Submissions of the parties
Ms A. Francis of counsel, who appeared for the applicant, argued that the preservation of the statutory ratio in the total effective sentence betrayed an error of principle. In particular reliance was placed upon the dictum of Simpson J in Thorpe at [4]:
Where the basis for a finding of special circumstances is to foster rehabilitation, it is the overall term, not the terms of individual sentences, that must be adjusted. If that is not the result, the finding of special circumstances is ineffective to achieve its objective. The applicant is entitled to the benefit of that finding in a practical, not merely theoretical, way.
Ms Francis referred to other cases where the failure to give proper effect to a finding of special circumstances warranted re-sentencing on appeal.
Learned counsel also argued, although no ground, nor written submission, had been filed in support, that the learned sentencing judge had offended Pearce by omitting to fix the total sentence for each offence first, and then considering concurrency, accumulation and totality, before adjusting the non-parole period by increasing the statutory ratio to give effect to the finding of special circumstances in the final result.
The Crown reminded the Court that the sentencing judge was obliged to take into account the requirements of the guideline judgment which calls for consideration of a stern sentencing range: R v Henry (1999) 46 NSWLR 346. The Crown argued that his Honour was correct that a lesser non-parole period would not adequately reflect the objective seriousness of the offending. The breach of parole, and the rejection by the offender of the opportunity it provides for rehabilitation, is regarded very seriously: R v Tran [1999] NSWCCA 109 at [15]; R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299. It was a legitimate exercise of the discretion for the judge to find special circumstances when minimum terms are accumulated for the purpose of preserving the statutory ration in the effective term: R v Simpson (1992) 61 A Crim R 58 at [61].
In any event, even if the Court was satisfied of the applicant's arguments as to error, the Crown submitted that no lesser sentence was warranted in law.
Resolution
As frequently occurs in sentencing matters, in the circumstances of a particular case, the relevant considerations may overlap, and "guideposts to the appropriate sentence [may] sometimes ... point in different directions": Veen [No. 2] at 476. In my judgment, that has occurred in this case. It is true enough that the learned sentencing judge found special circumstances partly on the basis of the applicant's need for rehabilitation in the community on his release from custody. This consideration may lead to a sentencing judge increasing the statutory ratio provided for by s44(2) for the total effective sentence, but not necessarily. In simple terms the period of two years provided for that purpose by the structure of the sentence imposed here is a long time for community based supervision. Nor will the need for extended supervision necessarily lead to a reduction in the minimum period for which the offender must be kept in custody. It should not be overlooked that the non-parole period constitutes "the minium time that a judge determines justice requires that [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 at 629; Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 536.
In any event, the consideration that points in the opposite direction to the finding based on the need for rehabilitation in the present case is the finding that the need to accumulate the sentence itself constituted special circumstances. That such a consideration may constitute special circumstances is clearly established: R v Moffitt (1990) 20 NSWLR 114 at 121, 136 per Badgery-Parker J; R v Simpson at 60 per Hunt CJ at CL. At 61 in the latter case, Hunt CJ (Grove and Sharp JJ agreeing) added:
I am satisfied that, by a logical extension of that principle, special circumstances may also exist in an appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and the effective additional term - even if it is only to produce an effective additional term equal to, or roughly equivalent to, one-third of the total term which the prisoner is to serve.
Moffitt and Simpson, of course, were decisions under s 5 of the former Sentencing Act 1989 (NSW). That legislation was to the same legal effect as ss 44(1)-(2) of the current legislation: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 190 [108] - [113]. In the circumstances his Honour was entitled to reconcile the competing claims of rehabilitation and accumulation as he did.
Having regard to the applicant's very long criminal history, as well as the objective seriousness of the one-man crime wave instituted by him over the period of about one month in August - September 2009, involving ten offences (two on a Form 1) whilst he was on parole for a previous spate of robberies, some of them whilst armed, his Honour's conclusion that the principal object of sentencing for which he had to provide was the protection of the community, subject, of course, to the principles of totality and proportionality, was amply justified. In my view the considerations of proportionality and totality are not offended by the sentence imposed. I would reject this ground of appeal.
As I understood the additional ground advanced orally, it was that the well known passage in Pearce cited above, because of the finding of special circumstances by a reference to the need for rehabilitation, necessitated the sentencing judge first fixing the total effective term of imprisonment, and working from there to produce an overall result that increased the statutory ratio favourably to the applicant. This would have had the effect of reducing the minimum period the applicant would be required to serve. I would reject this argument also.
The present case does not provide any occasion for a close analysis of the principles expounded in the well-known passage from Pearce cited above. Suffice it to say, subject to the provisions of the sentencing legislation (Pearce at 624 at [47]), a sentencing judge is required to first "fix an appropriate sentence for each offence and then consider questions of cumulation and concurrence, as well, of course, as questions of totality". With respect, that is exactly the process followed by the sentencing judge in the present case, and I can detect no error in his approach based on Pearce.
Section 44(1) is expressed in terms that "the court is first required to set a non-parole period". However, it is well established that the statutory language does not itself dictate a sequence to be followed in fixing an appropriate sentence. In Moffitt at 117 - 8 Samuels JA expressed the idea that provisions of this type do not "lay down an intellectual sequence of any kind by which the sentencing judge's reasoning was to be rigorously ordered in every case". His Honour said:
In my opinion... there is nothing ... which compels theview that the court must in every case first determine a minimum term which, once selected, is immutable; so that a sentencing judge who in the course of the reasons for sentence has postulated a minimum term and calculated the additional term which the statute would require, has made some irrefragable order. On the contrary, I would have thought that it would be appropriate practice for the court first to consider the range within which an appropriate minimum might lie, having considered, at least in a general way, the relevant factors, and then to look at the linked range of additional terms which would ordinarily follow.
Badgery-Parker J (at 134) said:
What [the section] does is to prescribe that a sentence must be composed of a minimum term and an additional term and that when it comes to the actual imposition of sentence, the sentence must be expressed as comprising first a minimum term and then an additional term; but the section does not necessarily require that the judge apply his mind first to the minimum term and secondly to the additional term.
(Section 45, of course, in the circumstances to which it applies, permits a court to decline to set a non-parole period).
In R v Hampton (1998) 44 NSWLR 729 at 732 Spigelman CJ pointed out that the legislation neither required "a sequential two-step process" nor the giving of primary consideration to the total sentence. As "general sentencing principles guide all relevant steps in the [sentencing] process... [t]he two approaches may go on simultaneously" (citations omitted). In my opinion the approach contended for by the applicant is required by neither Pearce nor the sentencing legislation.
I would only wish to add that I do not understand his Honour's recommendation that the applicant receive treatment whilst in prison as offending the principle discussed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139 - 40 [57].
Conclusion
I am not of the opinion that another sentence is warranted in law. Accordingly, the orders I propose are:
1. Grant Leave to Appeal;
2. Appeal dismissed.
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Decision last updated: 19 July 2013
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