Green (a pseudonym) v The Queen

[2018] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Green (a pseudonym) v R [2018] NSWCCA 146

Hearing dates:

04 April 2018

Date of orders:

20 July 2018

Decision date:

20 July 2018

Before:

Basten JA at [1];
Rothman J at [29];
Garling J at [85]

Decision:

(1)   Leave to appeal be granted;

 

(2)   Appeal be granted;

 

(3)   The sentence imposed upon the applicant by the District Court (Judge Lerve DCJ) at Dubbo District Court on 31 March 2017 be quashed and the applicant be sentenced to a non-parole period of 4 years’ and 3 months’ imprisonment, commencing 30 October 2014 and concluding 30 January 2019, and a remainder of term of 2 years and 9 months, concluding 30 October 2021;

 (4)   The applicant be first eligible for parole on 30 January 2019.

Catchwords:

CRIMINAL LAW – Sentence – Appeal – principle of totality – regard for sentence imposed in another State – appeal granted

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Crimes Act 1900 (NSW), ss 86, 97, 112, 195

Cases Cited:

Hejazi v The Queen (2009) 217 A Crim R 151; [2009] NSWCCA 282
Mill v The Queen (1988) 166 CLR 59, [1988] HCA 70
R v Fidow [2004] NSWCCA 172
R v Todd [1982] 2 NSWLR 517

Category:

Principal judgment

Parties:

Green (a pseudonym) (Applicant)
The Queen (Respondent)

Representation:

Counsel:
C Wasley (Applicant)
D Kell SC with M Pulsford (Respondent)

  Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2011/411783

Publication restriction:

Non-publication order pursuant to s 8 of the Court Suppression and Non Publication Orders Act 2010 in relation to the name of the applicant and any information identifying him or his custodial location which includes material identifying the co-offenders named in the indictment on which he was convicted. For the purposes of the proceedings, the applicant will be known as “Green (a pseudonym)”

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

31 March 2017

Before:

Lerve DCJ

File Number(s):

2011/403713

Judgment

1. BASTEN JA: On the evening of 28 August 2011 the applicant, in company with two co-offenders, carried out an armed robbery with a firearm at Cobar Bowling and Golf Club. There was significant planning involved. The first element in the offending involved driving to the home of the manager of the Club, breaking into his home, threatening him with a firearm (with which he was struck on the side of the head causing a laceration and bleeding), binding his hands and taping his mouth and then transporting him back to the Club where the robbery took place. In the course of the robbery, two female employees of the club were threatened and bound and money of the Club taken from them.

2. The applicant entered pleas to an indictment containing four counts, being (a) break and enter being armed with a dangerous weapon and assaulting the manager, occasioning him actual bodily harm; (b) detaining the manager for advantage and causing actual bodily harm; (c) armed robbery of an employee at the Club while armed with a firearm, and (d) armed robbery of the second employee at the Club while armed with a firearm. Each of the offences carried a maximum penalty of 25 years imprisonment; the first carried a standard non-parole period of 7 years.

3. A little over two months later, the applicant and a co-accused travelled to Victoria, where they planned an armed robbery of a bar in a country town. The robbery was timed to coincide with the running of the Melbourne Cup. Two cars were stolen for use in the robbery (one was recovered by its owner before it could be used). By that time, the applicant and his co-accused were the subject of police surveillance; the cars in which they were travelling to the scene of the proposed robbery were stopped by police and the applicant was arrested. He pleaded guilty to charges including conspiring to commit armed robbery and possessing an unregistered firearm (a loaded revolver) whilst a prohibited person, together with lesser offences of theft and burglary, including the theft of the vehicles.

4. The applicant was sentenced in Victoria to a total effective sentence of 6 years and 3 months, with a non-parole period of 4 years and 3 months. The sentence involved a 25% discount for an early plea. The applicant’s Victorian sentence apparently commenced on 31 October 2011; the non-parole period expired on 30 January 2016.

5. The New South Wales police did not charge the applicant in relation to the Cobar Club offences until 9 December 2015. The applicant entered early pleas with respect to the four counts on the indictment and was committed for sentence in the District Court. On 31 March 2017 the applicant was sentenced by Judge Lerve at Dubbo. The judge imposed an aggregate sentence of 7 years, comprising a non-parole period of 4 years 6 months and an additional term of 2 years 6 months. The sentence incorporated a 25% discount for the early guilty pleas and a further 25% discount (applied to the putative sentences for the individual offences), appropriately apportioned, for past and promised assistance to law enforcement authorities.

6. Critically for the purposes of the present application, the judge backdated the New South Wales sentence to 9 December 2015, thus allowing a period of a little under 2 months concurrency with the Victorian sentence. The sole issue on the present application for leave to appeal concerns the adequacy of the backdating of the sentence.

Background circumstances

7. There is no doubt that the sentencing judge was aware of the fact of the Victorian sentence and the need to take it into account. The judge said in the course of the sentencing proceeding on 31 March 2017, when Mr Hay was appearing for the offender: [1]

“HIS HONOUR: … Is there also going to be an issue of totality with the sentence in Victoria, Mr Hay?

HAY: Yes, I believe there will be some issue.

HIS HONOUR: You’ll be asking for backdating to take into account totality, Mr Hay?

HAY: Yes.”

1.    Tcpt, 31/03/17, pp 2-3.

8. After the offender gave evidence, the judge returned to the issue with counsel (Mr Tran-Dinh appeared for the Crown): [2]

“HIS HONOUR: Thank you, Mr Hay. … You were going to argue some type of backdating totality for the period in Victoria?

HAY: Yes.

HIS HONOUR: What do you say the commencement date should be, Mr Crown?

TRAN-DINH: Your Honour, in my submission, any backdating should begin on 9 December 2015 … when this offender was charged and arrested in relation to the case. Your Honour would note from the criminal history that the non-parole period for the Victorian matter would have ended on 30 January 2016.

HIS HONOUR: All right, thank you. What do you say, Mr Hay?

HAY: I simply say, your Honour, and I don’t take it too far, that the New South Wales authorities were aware of his involvement in this offending. They were aware of his location. The charges could have been entered at an earlier date. … [I]f your Honour were of the view that the date of charging was in any way significant, I would simply ask you to take into account that it is open to you to exercise your discretion to take a start date before that, allowing for this knowledge on the part of New South Wales authorities.

… If your Honour were to take the view that the start date should be the date of charging, then I couldn’t say that there was any discernible error in that. It’s certainly within your discretion to use that as the start date … but it seems to me … that if the authorities in New South Wales knew that he was involved in this offending, they knew where he was, could get [access] to him at any time after late 2011, there should be some allowance made … for that fact in the sentence imposed here.”

2.    Tcpt, pp 18-19.

9. After the luncheon adjournment, the judge returned to this issue: [3]

“HIS HONOUR: Mr Hay, Mr Crown, in the matter of [Green], I’m sorry, I should have raised this with you before I adjourned …. On the issue of special circumstances, it seems to me that it would be appropriate to make a finding of special circumstances for two reasons. One is there’s the accumulation of sentence on the sentence imposed in Victoria and also it seems to me there may well be, given the time he’s spent in custody, a need for an extended period of supervision to ensure a successful reintegration into the community.

HAY: Yes, I would accept that.”

3.    Tcpt, p 21.

10. It will be appropriate to return to the way the matter was put to the sentencing judge shortly; first it is necessary to indicate how it was dealt with in the judgment on sentence. The judge referred to the arrest of the applicant and a co-offender in Victoria on 2 November 2011, because the Victorian police investigation resulted in the recovery of some items of property taken from the Cobar Club manager’s premises. Further, in referring to the applicant’s criminal record, the judge noted that “he was convicted in Victoria of conspiracy to commit armed robbery.” [4] The judge concluded that his record denied the offender any entitlement to leniency. No issue could be taken (or is taken) with that observation.

    4.    Sentencing judgment, p 12.

11. The judge referred to the specific issue in two further passages: [5]

“… it seems to me that one of the reasons why I should make a finding of special circumstances is to allow for an extended period of supervision to ensure as best as can be done the reintegration of the offender into the community. On the issue of special circumstances there is also the issue of the accumulation of sentences imposed in Victoria.

…

The Crown submitted that any sentence in this matter should date from 9 December 2015 which is when the offender was charged with this offence. Mr Hay argued, although not particularly strongly, that it was within the Court’s discretion to backdate the sentence beyond that to make allowance for totality given the substantial sentence that was imposed in Victoria. I am not prepared to backdate the sentence before 9 December 2015. I am prepared to make a finding of special circumstances based partly on the issue of accumulation of that sentence in Victoria and accordingly it seems to me that would take adequate care of that issue.”

5.    Sentencing judgment, pp 14 and 19.

Error in sentencing

12. The purpose of a finding of special circumstances is to allow a sentence in which the balance of the term exceeds one-third of the non-parole period. [6] The purpose of the finding is not to permit the judge to impose a longer or shorter sentence, but to reduce the proportion of the sentence which must be served in custody, pending eligibility for release on parole. It follows that, so far as the question of totality relates to the overall sentence, it cannot be adjusted by way of a finding of special circumstances. It is possible, perhaps probable, that in referring to special circumstances and the Victorian sentence together the judge had in mind the practical effect of complying with s 44 in relation to the sentence he was proposing to impose; namely that the non-parole period would be a smaller proportion of the overall period of incarceration than of the new sentence. It is common practice to make a finding of special circumstances to avoid (or reduce) that effect.

    6. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2).

13. Where the applicant is to be sentenced for more than one offence, totality must be addressed, at least in part, by one of three mechanisms, namely (a) reducing the otherwise appropriate sentence, (b) increasing the otherwise appropriate degree of concurrency or (c) backdating the commencement of the sentence. Generally, reducing the sentence is not the preferred option because the sentence then imposed fails to reflect the seriousness of the offending. With respect to multiple offences dealt with on the one occasion, the principle of totality may, as in this case, be addressed by imposing a single aggregate sentence.

14. However, the need to consider the principle of totality arose in the present case for an additional reason, namely that the new sentence would be accumulated on the Victorian sentence. The Victorian offences occurred within a reasonably short period after the New South Wales offending, but apparently before the NSW police had identified the applicant as one of the offenders. Thus, had all the offences been committed within New South Wales, the applicant might have expected to be sentenced for all at the same time. It would then have been necessary to consider whether fairness required that there be some reduction in the total effective period of imprisonment, albeit the offending involved two separate and serious incidents.

15. This application of the principle of totality was established in this Court in 1979 in R v Todd. [7] The application was approved by the High Court in Mill v The Queen. [8] For present purposes, two matters of importance may be derived from those authorities. First, in Mill, the High Court stated: [9]

“In our opinion, the proper approach which [the sentencing judge] should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.”

This matter could not properly be addressed by considering only the length of the non-parole period.

7. [1982] 2 NSWLR 517 (Street CJ, Moffitt P and Nagle CJ at CL).

8. (1988) 166 CLR 59; [1988] HCA 70 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).

9.    Mill at 66.

16. It is true that the judge backdated the commencement of the New South Wales sentence by a period of some 16 months, but the effect was to allow only 2 months concurrency with the non-parole period on the Victorian sentence. Such a short element of concurrency required some explanation. The explanation is to be found in the adoption of the date on which charges were laid for the New South Wales offences. The adoption of that date may have reflected a somewhat different principle, namely that pre-sentencing custody should be taken into account in fixing the commencement date of a sentence. However, that was not the principle of totality required to be addressed in accordance with Mill.

17. Although the sentencing judge correctly referred to the principle of totality, it was an error to adopt the proposal put forward by the prosecutor, namely backdating to the date of charge (or, as defence counsel would have had it, an earlier date on which the police could reasonably have laid charges). That date did not answer the question as to the degree of concurrency which would have been allowed had the two sentences been imposed by the one court at the same time. Accordingly, the approach of the sentencing judge was, in this respect, erroneous.

18. It should be added that counsel for the offender provided little assistance in this respect. Although he cast doubt, in muted terms and without explanation, on the use of the date of charging, he failed to identify the proper application of the principle of totality, which would have required specific reference to the terms of the Victorian sentence.

19. The second matter which arises from the authorities concerns the underlying rationale of the principle. In Todd, three particular matters were relied upon, namely: (a) the weight to be given to the progress of the offender with rehabilitation during the term of the earlier sentence, (b) the fact that the offender may have been left in a state of uncertain suspense as to the later sentencing, and (c) the need to take into account the fact that the offender is being sentenced for a “stale crime”. [10]

    10.    Todd at 519F-G (Street CJ).

20. Of these three considerations, the matter of greatest significance in the present case was the first, namely the progress of rehabilitation. That factor was reflected in two elements. First, although neither party put the relevant evidence before the sentencing judge, it now appears that the offender had made serious attempts to address his drug and alcohol problems whilst in custody in Victoria. In considering his appeal, the Victorian Court of Appeal noted:

“[Green] attended Odyssey House drug clinic for one month when he was 24. He also completed the New South Wales drug court program at the age of 26. Whilst on remand, he completed a three-month drug and alcohol course, called ‘breaking the cycle’, at the Melbourne Remand Centre. [Green] began a methadone program, starting at 140 mg per day, reduced to 70 mg, and apparently even further reduced his daily intake to 40 mg. The opinion of a forensic psychologist was that [Green] presented with an impaired ability to cope with life’s stresses and had dysphoric mood states. He showed symptoms of depression and grief and loss related to the death of his father.

The judge assessed [Green]’s prospects for rehabilitation as ‘guarded because [he is] wrestling with drug and alcohol problems and all of the health problems that flow therefrom’. However, he considered that the prospects for rehabilitation, ‘whilst guarded, may be good subject to [him] continuing [his] drug rehabilitation programs that [he had] commenced in prison’. The negative drug screens tendered on the plea indicated [Green] was abstaining from drugs.”

21. The evidence before this Court, which included an affidavit from the offender, indicated that he is ineligible to do further similar rehabilitative courses because he completed an intensive course on drug abuse in Victoria. However, he also stated that he was on a waiting list to do the “EQUIPS aggression course”. He said that he had not been using drugs since coming to New South Wales and his only drug test was “clean.”

22. The second element was the willingness of the offender to give assistance to law enforcement authorities in New South Wales. This element tends to confirm that his rehabilitation is well established. The evidence before this Court indicated that the promise of future assistance identified by the sentencing judge has, so far as appropriate, been provided.

23. These matters give practical importance to the rationale for some reduction in the overall period of imprisonment identified in Todd.

24. It is possible that the sentencing judge took the view that sufficient allowance had been made with respect to issues of totality through the findings of remorse [11] and “good prospects of rehabilitation.” [12] However, no such reasoning was exposed in the sentencing judgment and there is a real possibility that the judge did not adequately address the issue of totality by reference to the total effective sentence, including the Victorian sentence. Accordingly, I agree with Rothman J that error has been demonstrated and that this Court must resentence the applicant.

    11.    Sentencing judgment, p 16.

    12.    Sentencing judgment, p 19.

Resentencing

25. I agree with the reasoning of Rothman J with respect to resentencing and agree that a sentence of 7 years imprisonment is appropriate for the very serious offending at Cobar. I also agree that a finding of special circumstances should be maintained to allow for a significant period of supervised liberty on parole, and that a non-parole period of 4 years 3 months should be imposed. Applying the s 44 requirement that the balance of term not exceed one-third of the non-parole period, the non-parole period for a 7 year sentence would be 5 years 3 months. The finding of special circumstances allows an adjustment, by way of a 12 month reduction of the non-parole period and an equivalent addition to the parole eligibility period.

26. In taking account of the elements of remorse and the good prospects of rehabilitation, as they appeared in March 2017 on sentencing for the Cobar offences, a result was achieved which gave credit for rehabilitation achieved in Victoria. It would not be appropriate to double count that element by backdating the commencement of the New South Wales sentence for too lengthy a period. I agree with Rothman J that a greater period of mandatory custody should be assigned to the New South Wales offences, which, even if only because of the early intervention of the Victoria police, inflicted far greater physical and psychological harm on its victims and greater expense to both the Cobar Club (and by inference its members) and its insurer, than did the unconsummated Victorian conspiracy. Absent the discounts for assistance and the early plea, the NSW sentence would have been 14 years, and the non-parole period 8 years 6 months.

25. The effect of backdating the sentence to 31 October 2014 is to allow accumulation on 3 years of the Victorian non-parole period; put differently the effect is that 1 year 3 months of the Victorian non-parole period will be served concurrently with the New South Wales non-parole period. On the basis of a 4 years 3 month non-parole period with respect to the Cobar offences, the offender would be eligible for release on 30 January 2019.

Orders

28. For these reasons I would propose the following orders:

1. Grant the applicant leave to appeal from the sentence imposed in the District Court on 31 March 2017.

2. Set aside the sentence imposed by the District Court and in place thereof resentence the applicant as follows:

1. Fix a non-parole period of 4 years 3 months and a balance of term of 2 years 9 months, constituting a sentence of 7 years.

2. Direct that the sentence commence on 31 October 2014.

3. The first date on which the offender is eligible for release on parole is 30 January 2019; the additional term will expire on 30 October 2021.

29. ROTHMAN J: The applicant, who for the purposes of these proceedings will be called Green, seeks leave to appeal against the sentence imposed upon him on 31 March 2017 by the District Court of New South Wales sitting at Dubbo and, if leave be granted, appeals the sentence imposed. The applicant pleaded guilty to one count of special aggravated break, enter and commit serious indictable offence (Count 1); one count of special aggravated detained for advantage (Count 2); and two counts of robbery armed with a dangerous weapon (Count 3 and 4).

30. Further, the applicant sought to have the sentencing court deal with the charge of intentionally destroy property by fire notified on a Form 1 in relation to the first count. The sentencing court imposed an aggregate sentence of 7 years’ imprisonment with a non-parole period of 4 years’ and 6 months’ imprisonment, commencing 15 December 2015 and expiring, in the case of the non-parole period, on 14 June 2020 and, in the case of the head sentence, on 14 December 2022.

31. The District Court made a finding of special circumstances and fixed, in relation to the sentence imposed, a non-parole period that, as is obvious from the foregoing, is slightly less than two thirds of the total sentence. The basis upon which the sentencing court found that there were special circumstances was the “issue of accumulation of sentences imposed in Victoria” and the “need for an extended period of supervision to ensure that the offender is effectively reintegrated into the community upon his release”.

Grounds of Appeal

32. Initially, the applicant raised only one ground of appeal being:

“The Sentencing Judge erred by failing to give effect to his finding of special circumstances.”

33. On examination, it seemed that the issue at the heart of the ground of appeal was the failure to give adequate consideration to the principle of totality and, during the course of the hearing of the appeal, the applicant sought to amend its grounds of appeal by including a ground that the sentencing judge “failed to give effect adequately to the principle of totality”. Leave to amend was granted.

Relevant Chronology

34. It is necessary to set out some background facts, including the periods of imprisonment that were served in relation to offences in Victoria.

35. The offences for which the applicant was sentenced in NSW were committed on 28 August 2011. He was not charged with the offences for a number of years. Shortly after the offences were committed, the applicant was arrested in Victoria for unrelated but similar offences.

36. On 6 December 2011, the applicant was interviewed in relation to the New South Wales offences while he was in custody in Victoria. On 31 May 2013 a sentence was imposed for the Victorian offences. While the applicant was in custody for the Victorian offences, namely, on 15 December 2015, he was arrested, formally, for the New South Wales offences and charged with them.

37. On 12 August 2015, for reasons associated with the applicant’s welfare, the applicant had been transferred to New South Wales to serve the balance of his Victorian sentence. On 30 January 2016, the non-parole period in relation to the Victorian sentence expired.

38. On 31 August 2016, the applicant was committed for sentence in relation to the New South Wales offences by the Local Court. On 31 March 2017, the sentence currently under appeal was imposed by the District Court. On 30 January 2018, the Victorian head sentence expired.

39. The sentence served by the applicant for the Victorian offences was a total sentence of 6 years’ and 3 months’ imprisonment commencing 31 October 2011, with a non-parole period of 4 years’ and 3 months’ imprisonment, representing a ratio between non-parole period and head sentence of approximately 68%.

40. As earlier stated, the head sentence imposed by the District Court commenced on 15 December 2015, being the date of the applicant’s formal arrest and charging for the New South Wales offences, and was for a head sentence of 7 years’ imprisonment and a non-parole period of 4 years’ and 6 months’ imprisonment. The applicant was to be eligible for release on parole on 14 June 2020. The New South Wales sentence was based upon indicative sentences, outlined by the sentencing judge, and a discount of 50% for the plea of guilty at the earliest possible point (25%); past assistance (5%); and future assistance (20%).

41. However, the total effective sentence of imprisonment, taking into account the New South Wales and Victorian offences and sentences, was a head sentence of 11 years’, 1 month and 8 days’ imprisonment and a non-parole period of 8 years’, 7 months’ and 9 days’ imprisonment, representing a ratio between the non-parole period and head sentence of 77.5% (being slightly above the statutorily prescribed ratio contained in s 44(2B) of the Crimes (Sentencing Procedure) Act 1999). There is no prohibition on a ratio greater than 3:1 between non-parole period and the remainder of the term. Further, the ratio does not apply to an effective sentence, consisting of a number of accumulated or partially accumulated sentences.

Background Facts in relation to New South Wales Sentences

42. The plea of guilty was accompanied by an agreed set of facts which are repeated by the sentencing judge in the remarks on sentence and in the applicant’s submissions. They can be summarised in the following manner:

1. Green’s co-offenders hired a campervan some days before the offence. On 27 August 2011, the applicant drove with the co-offenders to Cobar.

2. On 28 August 2011, the applicant, together with the co-offender AA (a pseudonym), signed in at the Cobar Bowling and Golf Club, utilising false names and played the poker machines.

3. The victim in relation to counts 1 and 2, Mr Urquhart, was Security Manager at the Club and finished work and then consumed dinner at the Club before driving home about 9:30 pm to 9:45 pm.

4. The applicant and the co-offender AA, followed Mr Urquhart home. The applicant and the co-offender BB (a pseudonym) then broke into Mr Urquhart’s home and confronted him in his lounge room. They were wearing a disguise, being dark clothes, gloves and balaclavas.

5. One of the co-offenders produced a gun and threatened Mr Urquhart, who was told they would “blow him away”, if he did not cooperate and answer questions about procedures at the club. Mr Urquhart complied. The armed offender struck him with the gun and caused bleeding to his forehead.

6. Mr Urquhart was restrained with cable ties and duct tape and taken to his car. The co-offender AA joined them and all three drove Mr Urquhart, in his car, back to the Bowling Club. The Club was still open and there was a police car outside. Mr Urquhart was struck over the head again by one of the offenders and further questioned.

7. When the Club was closing, the three offenders (including the applicant) took Mr Urquhart to an unused auditorium and seated him on a chair. The co-offender AA guarded him, while the applicant and the co-offender BB moved to the bar. Later, Mr Urquhart was moved to the office where he saw the victims Ms Knight and Ms Brown, also tied with cable ties and lying on the floor.

8. The applicant and the co-offender BB had surprised the two female victims (being the victims to Count 3 and Count 4 respectively) in the office around 10:45 pm. The offenders were armed with a gun. The applicant and the co-offender BB took money from the safe, poker machines and cigarette machines, totalling approximately $79,303. Certain sporting memorabilia was also taken and substantial damage was done to the poker machines.

9. The co-offender AA stood as guard over the victims and seemed to take direction from the applicant and co-offender BB. Telephone cords were cut and/or unplugged in the office and the CCTV hard drive was stolen.

10. The three co-offenders then left in Mr Urquhart’s vehicle. They drove it a short distance away and set fire to it. They returned to the van and left town.

11. Mr Urquhart freed himself and called the police. The Club’s insurer sought compensation of approximately $104,529 and Mr Urquhart’s car was worth approximately $30,000.

12. As earlier stated, the applicant was a suspect and was interviewed on 6 December 2011 while in custody in Victoria. At that time the applicant declined to answer questions. He was arrested and charged on 15 December 2015.

Submissions

43. The applicant’s subjective case is outlined in the written outline of submissions (initially filed) at [18]-[20]. The written submission is in summary form and the contents are uncontentious. Those paragraphs are in the following terms:

“[18] The applicant was 30 years of age at the time of the offences, and 35 years of age at sentence. The applicant gave oral evidence on sentence, and a psychological report of Ruth Allen dated 6 February 2017 was tendered in his case (Exhibit #1). The Crown tendered the Crown Bundle (Exhibit #A), which included a pre-sentence report, and an affidavit of Detective Superintendent Michael Willing (Exhibit #B) relating to assistance provided by the applicant to be taken into account pursuant to s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’). Exhibit #B was placed in a sealed envelope on the Court file.

[19] The applicant’s subject case can be summarised as follows:

a. Parents separated when he was 2 years of age.

b. Mother suffered from mental health issues.

c. Applicant resided with his father, who was strict but not abusive.

d. Applicant left school in Year 10.

e. Applicant obtained hairdressing qualifications, then commenced working with his father at his marine engineering company.

f. History of depression for which sought treatment when he was younger.

g. Experiencing symptoms of anxiety at time of sentencing that were chronic rather than related to his current circumstances (Exhibit #1 Report of Ruth Allen at [36]).

h. Started using heroin at age 19 but then stopped using before relapsing in 2011.

i. Went ‘off the rails’ using drugs and engaging with criminal associates when his father became ill and died in 2011.

j. At the time of the offending he had an income from his own business and his father’s business, and could not explain his motivation for the offending.

k. Son born on 31 December 2011 while he was incarcerated in Victoria.

l. Being held in protective custody as a result of assistance is much more difficult than being held in a normal gaol in terms of the restrictions on the applicant, and access to visits from his family (POS 31.03.17 at 10-12).

[20] His Honour made the following findings regarding the applicant’s subjective case:

a. Substantial criminal history commencing in the Children’s Court disentitled him to leniency, but not an aggravating factor: ROS [12].

b. Remorseful.

c. He pleaded guilty at the earliest opportunity and received a 25% discount for the utilitarian value of his plea.

d. Significant assistance in respect of a murder that warranted a discount of 5% for past assistance and 20% for future assistance pursuant to s.23 CSPA.

e. Unlikely to reoffend.

f. Good prospects for rehabilitation.

g. Special circumstances.”

44. The Court also has before it the confidential material relating to the applicant’s assistance, which is also uncontentious. For obvious reasons, it is not repeated. It is sufficient, for present purposes, to note that no party suggests that the allowance, specified above, for plea of guilty and past and future assistance is problematic and, from the perspective of the Court, seems both appropriate and can be endorsed.

45. In the course of the proceedings before the sentencing judge, the applicant submitted that the sentencing court had the discretion to backdate beyond the date suggested by the Crown (15 December 2015) to make allowance for totality, given the effect of the Victorian sentence.

46. As earlier stated, the District Court made some allowance for the Victorian sentence but only on the issue of special circumstances, which also had another basis.

47. The applicant’s initial submissions were that the sentencing judge had a basis (other than accumulation) for the finding of special circumstances, yet the total sentence imposed (including the Victorian incarceration) did not reflect a lower ratio than the 3:1 prescribed ratio in the statute, to which the finding of special circumstances is relevant.

48. The Crown submissions stress the seriousness of the conduct of the applicant in the offences that were committed, particularly in relation to Count 1 and his role in the joint conduct of the three persons involved in the offence. It also stresses the applicant’s substantial criminal history. The sentencing judge noted the lack of any likelihood that the applicant will reoffend and the good prospects of rehabilitation with appropriate intervention. In relation to those latter matters, which obviously tell in favour of consideration in the applicant’s favour, the Crown submits that allowance for an extended period of supervision was a prominent ground for the finding of special circumstances and no further allowance was required.

49. Further, the applicant’s harsher custodial conditions experienced as a consequence of his assistance to authorities is an ordinary consequence of assistance to authorities and ought not be double counted. In other words, the Crown submits that this is not such an exceptional case (on which some comment will be made) to justify a combined discount for the plea of guilty and assistance exceeding 40% and reaching 50% (as was the decision of the sentencing judge).

50. Further, the Crown submits that the sentence should commence from the date of charging, being 15 December 2015 and there is no basis upon which an earlier date could or should be the commencing point of the sentence to be imposed.

Consideration

51. The finding of special circumstances by a sentencing judge involves an exercise of discretion. The presence of a potential special circumstance does not mean that a sentencing judge is obliged to vary the statutory proportion.

52. Further, a finding of special circumstances does not necessarily involve a variation in the statutory ratio. The circumstance must be sufficiently special to justify variation and even then must give way to the other circumstances of the case: see R v Fidow [2004] NSWCCA 172.

53. As stated, the statutory ratio does not apply to the total of accumulated sentences and there is no requirement that the proportion not be greater than 3:1. However, where it is greater, one would ordinarily expect the sentencing judge to articulate his or her reasons for that occurrence. In the absence of such reasons, and particularly where there is a finding of special circumstances on the basis of the need for a longer than prescribed non-parole period, the inference must be drawn that the practical effect of the accumulation on the whole of the incarceration period has not been considered.

54. In this case, the overall effective sentence ratio (including both the Victorian and New South Wales offences) exceeded the statutorily prescribed proportion. Further, the sentencing judge did not articulate reasons for exceeding the ratio. Ultimately, there is little in issue between the parties, other than the effect of the sentence that was imposed in relation to the Victorian offences on the sentence that was, or should have been, imposed for the NSW offences.

55. There can be little doubt that the sentencing judge took into account all of the appropriate subjective circumstances; appropriately assessed the objective seriousness of the offence as above mid-range; and, if one were looking only at the New South Wales offences, imposed a sentence that was within range and appropriate. Further, if one were examining only the New South Wales offences, the non-parole period represents an appropriate ratio, given the finding of special circumstances. The Crown does not object to or question that a finding of special circumstances was both open and appropriate.

56. The High Court in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 considered the effect on the process of sentencing when crimes that have been committed relatively closely in time occur in different States and the offender is sentenced in one State before being sentenced in another. The Court said at p 66 that:

“… the proper approach which [the sentencing judge] should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all … [the] offences … in one jurisdiction and had been sentenced at one time.”

57. In the current circumstances, the applicant has been sentenced for both the Victorian and New South Wales offences to a total sentence of 11 years’, 1 month and 8 days’ imprisonment and a non-parole period of 2 years’ and 6 months’ imprisonment. The concurrency between the sentence to be served for the New South Wales offences, which, as the foregoing chronology makes clear, were committed prior to the sentence in Victoria being imposed, is a mere six weeks and the sentences were, substantially, wholly consecutive.

58. In my view, the sentence imposed does not appropriately take account of the totality principle as explained by the High Court in Mill, supra, and error is disclosed. Were it not for that error, I would also conclude that the sentence imposed does not appropriately reflect the special circumstances finding by the sentencing judge.

59. The finding of special circumstances did not relate solely to the issue of accumulation with the Victorian offences; it related also to the need for a longer period than the prescribed ratio would allow in order to facilitate rehabilitation. In those circumstances, I conclude that error has been disclosed in the sentencing process and, subject to determining that a lesser sentence is warranted, resentencing should occur.

60. I confirm the finding of special circumstances, which is appropriate in this case. There is a need for the applicant to have a longer than prescribed potential parole period to allow for an extended period of supervision, in order to facilitate the integration of the applicant into the community.

61. The applicant has a substantial criminal history dating from an early age, including juvenile offending. The offences in Victoria were charges of break, enter and steal and conspiracy to commit armed robbery and were, therefore, of a similar kind to that which occurred in New South Wales. This brings in, squarely, the need for specific deterrence and there is, in a serious offence of this kind, a need for general deterrence.

62. The need for specific deterrence is qualified by the assistance to authorities that was provided by the applicant which indicates that the applicant has insight into his behaviour and seeks genuinely to be rehabilitated.

63. Count 1 is a break and enter of a dwelling and commit a serious indictable offence in circumstances of special aggravation, contrary to s 112(3) of the Crimes Act 1900. The maximum sentence for such an offence is 25 years’ imprisonment and there is a prescribed standard non-parole period of 7 years’ imprisonment.

57. On that charge there is an offence under Form 1 notified, being a contravention of s 195(1)(b) of the Crimes Act 1900, which, if it were the subject of a separate charge, would carry a maximum sentence of 10 years’ imprisonment.

58. Count 2 is the offence of detain for advantage, being the detention of Mr Urquhart, with the intention of obtaining a financial reward, again in circumstances of special aggravation, being in company of Messrs AA and BB and occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act 1900, for which the maximum sentence is 25 years’ imprisonment. There is no standard non-parole period.

59. Count 3 is a robbery of Ms Simone Knight, whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900, the maximum sentence for which is 25 years’ imprisonment. There is no standard non-parole period.

60. Count 4 is the robbery of Ms Lucille Brown, whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 which, as outlined in relation to Count 3, carries a maximum sentence of 25 years’ imprisonment with no standard non-parole period.

61. As earlier stated all of the criminal charges relate to the one course of conduct, being the circumstances of the more serious offence encompassed within Count 1. That is not to say that there is not additional objective seriousness associated with the robbery of the two female victims and the detaining and occasioning actual bodily harm on Mr Urquhart.

62. The subjective circumstances remain relevant to each of the offences. In terms of parity between the offenders, I take the view that the conduct and moral culpability of the applicant was greater than the co-offender AA, as a result of the applicant entering the home of Mr Urquhart and being involved in the assault on him. Further, AA was sentenced for a different offence, being the offence involved in contravention of s 112(2) of the Crimes Act.

63. There was substantial planning involved in the commission of the offence and I would assess the objective seriousness of the offence as being above the mid-range of objective seriousness of offences of this kind. I do not consider that it is only slightly above the mid-range (as the sentencing judge concluded), but the difference may be inconsequential.

64. Given that the sentence below was imposed as an aggregate sentence, which is the sentence under appeal, I too would impose an aggregate sentence.

65. Without regard to the allowances for the earliest plea of guilty and assistance to authorities, I would fix the sentences, on an indicative basis. For Count 1, taking into account the offence on the Form 1 and bearing in mind the 25 year maximum sentence and 7 year standard non-parole period, I would indicate a starting point of 13 years’ imprisonment; for counts 2, 3 and 4, bearing in mind, in relation to each, there is a 25 year maximum and no standard non-parole period, I would indicate a starting point of 11 years’ imprisonment for each.

66. I turn then to the issue of the plea of guilty and assistance to authorities. I agree that an appropriate allowance for the combined effect of a plea of guilty and the assistance to authority is 50% and that includes a 25% discount for assistance to authorities, all of which is now in the past. I take the view that a discount above 50% for this offender and these offences would not allow a proper reflection of an appropriate penalty for the offences in question.

67. As earlier stated, the offences involved in counts 1, 2, 3 and 4, while involving separate and distinct criminal conduct from each other, are part of the one course of criminal conduct. As a consequence, as between the sentences for each of the counts, indicated above, there must be a significant degree of concurrence. This is reflected in the aggregate sentence I would impose.

68. I turn then to the issue of the effect of the sentence imposed and the incarceration in Victoria. I take the view that the appropriate approach is better achieved by fixing a sentence that would have been fixed, if the Victorian offences and the New South Wales offences had been imposed at the same time by the same judicial officer.

69. I have already recited the Victorian sentence which was a head sentence of 6 years’ and 3 months’ imprisonment, with a non-parole period of 4 years’ and 3 months’ imprisonment, commencing 31 October 2011. The New South Wales offences were committed in August 2011. The offences were similar in nature, but the NSW offences were, in my view, more serious and involve greater culpability.

70. The New South Wales offences involved separate and distinct criminality and separate and distinct conduct from the Victorian offences. The determination of a parole period is the determination of the least period the offender is required to serve before being eligible for parole: see Hejazi v The Queen (2009) 217 A Crim R 151; [2009] NSWCCA 282. It is not an excuse for, or confined to, the issue of rehabilitation.

71. On the question of accumulation of two sentences, the level of concurrency and accumulation must serve to show that effective punishment is imposed for discrete offences, although that effective punishment must be qualified to the extent that the purposes of sentencing are served by the imposition of a sentence that is partly concurrent.

Conclusion and Sentence

79. Turning then to the sentence to be imposed, I would ordinarily propose an aggregate sentence of 7.5 years’ imprisonment, after allowing for the 50% discount for the plea of guilty and assistance to authorities. I should note that the assistance given after the sentence imposed by the District Court was within the scope of the future assistance for which the District Court allowed.

80. However, the sentence imposed in the District Court was an aggregate 7 years’ imprisonment and, in the absence of a Crown appeal or challenge to that sentence, I consider no lesser sentence is warranted and impose an aggregate head sentence of 7 years’ imprisonment.

81. The difficulty is the assessment of a commencement date. In my view, if one judicial officer was sentencing for all of the Victorian and New South Wales charges, a sentence would not be imposed with a non-parole period of 8 years’ and 7 months’ imprisonment.

82. The appropriate course, therefore, is, bearing in mind the purposes of sentencing, to impose a sentence that properly reflects the total criminal conduct by the use of an appropriate commencement date. None of the Victorian sentences were as long as 7 years’ imprisonment.

83. Further, the date on which the applicant was charged for the NSW offences bears no relationship to the date of the offence or the time at which the prosecuting authorities were aware of the applicant’s involvement. Bearing in mind all the principles and the foregoing issues, I would commence the 7 years’ imprisonment on 31 October 2014, concluding on 30 October 2021, with a non-parole period of 4 years’ and 3 months’ imprisonment, concluding 30 January 2019, thereby effecting a ratio for the non-parole period for this offence of just on 60% of the head sentence to be imposed and an overall ratio of 72.5% for the combined sentence for the Victorian and NSW offences, which is a little higher than that implemented under the Victorian sentence regime but still provides 2 years and 9 months for the extended period for which the applicant is eligible for parole. In other words, the effect of such a sentence is to accumulate the NSW sentence for the less serious Victorian offences by a further 3 years’ imprisonment.

84. I propose that the Court make the following orders:

1. Leave to appeal be granted;

2. Appeal be granted;

3. The sentence imposed upon the applicant by the District Court (Judge Lerve DCJ) at Dubbo District Court on 31 March 2017 be quashed and the applicant be sentenced to a non-parole period of 4 years’ and 3 months’ imprisonment, commencing 30 October 2014 and concluding 30 January 2019, and a remainder of term of 2 years and 9 months, concluding 30 October 2021;

4. The applicant be first eligible for parole on 30 January 2019.

85. GARLING J: Both Basten JA and Rothman J have found that the sentencing Judge has fallen into error. I agree. That error, in my view, relates to a failure to give effect to the proper sentencing approach described by the High Court of Australia in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 66.

86. The task of a sentencing Judge confronted with the imposition of the sentence in accordance with Mill, and in the circumstances here, was anything other than routine. It was a most difficult task, because whilst complying the Crimes (Sentencing Procedure) Act 1999, there was a tension between the sentence which a judge dealing with all offences together would have imposed (a hypothetical construct) and that of the sentencing Judge imposing a sentence for some but not all of the offences, at a time when a sentence has already been imposed for other offences and has largely been served.

87. Here, the task was all the more difficult because of the length of incarceration which the applicant had in fact served before his NSW offences came before the Court. As well, the sentencing Judge was confronted with the need to give an appropriate discount to the applicant for an early plea of guilty, and assistance provided, but yet to ensure that any sentence which was imposed was not so low as to be a wholly inadequate one.

88. In a busy sentencing Court, like that of the sentencing Judge here, the Court is entitled to expect proper assistance with its sentencing task from the lawyers appearing in the matter.

89. Regrettably, the sentencing Judge received no real assistance of the necessary kind. Neither lawyer referred his Honour to the decision of the High Court in Mill which, as the judgments of my colleagues show, is the seminal decision in these circumstances.

90. The Crown suggested that the sentencing Judge backdate the sentence he was imposing to the date of the applicant’s arrest in NSW for the NSW offences. Such a suggestion was only apt to confuse and mislead because it distracted attention from the correct approach described in Mill.

91. Although both lawyers reminded his Honour of the necessity to consider the totality principle, the complex and nuanced approach required in this case was neither identified nor addressed in submissions.

92. It is the obligation of practitioners appearing before the District Court in sentencing matters to have identified the particular issues in the case, and the principles necessary, for the Court to address when it comes to imposing a sentence. It is not appropriate for practitioners to merely hope that the Court will identify and then address all of the relevant matters. Here, the sentencing Judge did not receive adequate assistance, and fell into error.

93. I agree with the orders proposed by Rothman J for the disposition of this application to appeal.

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Endnotes

Amendments

23 July 2018 - [42] (b), (d), (f), (g), (h), (i), [65] and [69] - amended to allow for the names of the co-offenders to be substituted with a pseudonym.

23 July 2018 - [42] (b), (d), (f), (g), (h), (i), [65] and [69] - pseudonyms further amended.

Decision last updated: 23 July 2018