Hoskins v R

[2016] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hoskins v R [2016] NSWCCA 157
Hearing dates:	1 July 2016
Date of orders:	08 August 2016
Decision date:	08 August 2016
Before:	Payne JA, McCallum & Wilson JJ
Decision:	Application for leave refused
Catchwords:	CRIMINAL LAW – SENTENCE – application for leave to appeal out of time – murder – joint criminal enterprise – reduction of sentence to reflect provocation by deceased – relevance of ill health to sentence – question of quasi-custody on bail – parity – effect of applicant’s incarceration on family members – special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 44 Crimes Act 1900 (NSW) s 18
Cases Cited:	Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417 Hoskins v R [2014] NSWCCA 207 Jiang v R [2010] NSWCCA 277 Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 Markarian v R [2005] HCA 25; 228 CLR 357 R v Cartwright (1989) 17 NSWLR 243 R v Cramp [2004] NSWCCA 264 R v Edwards (1996) 90 A Crim R 510 R v Qutami [2001] NSWCCA 353 R v Webb [2004] NSWCCA 230 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Darren Hoskins (Applicant) Crown (Respondent)
Representation:	Counsel: Applicant self-represented S Dowling SC with L Coleman (Crown)   Solicitors: Applicant self-represented Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/18351
Publication restriction:	None
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Criminal Citation: [2013] NSWSC 715 Date of Decision: 7 June 2013 Before: Grove AJ File Number(s): 2011/18351

Judgment

1. THE COURT: On 26 March 2013, following a trial before a jury, Darren Michael Hoskins, the applicant, was convicted of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Two of his co-offenders, Sean Sutcliffe and Darrin Moulds, were also convicted of murder. Michael Brown was convicted of manslaughter and the final co-offender, LC, was dealt with in earlier proceedings, ultimately giving evidence against his co-offenders.

2. On 7 June 2013, the applicant was sentenced to 12 years imprisonment to date from 4 July 2011 and expiring on 3 July 2023. A non-parole period of 9 years was fixed, and is due to expire on 3 July 2020.

3. On 21 June 2013, the applicant filed a Notice of Intention to Appeal (“NIA”) against both conviction and sentence, but the matter ultimately proceeded to hearing on 27 August 2014 as an appeal against conviction only: Hoskins v R [2014] NSWCCA 207. The appeal against sentence was, effectively, abandoned.

4. The applicant now seeks leave to appeal, out of time, against sentence.

Relevant facts

5. On 18 January 2011, the deceased, Jamie LaFoe, with two others, apparently spoke with Mr Sutcliffe’s partner at the Sutcliffe home and said he believed that the applicant had set his car, plus two others, alight.

6. A number of phone calls were made after this, and as a result Mr Moulds drove to Mr Sutcliffe’s house with three passengers, including Mr Brown. Mr Brown carried a machete with him. The applicant also drove to Mr Sutcliffe’s house with three passengers.

7. After Mr Sutcliffe arrived home, his partner contacted the deceased and told him to come down to the house by himself and “sort it out”. When the deceased and his two companions arrived at Mr Sutcliffe’s house, Mr Sutcliffe’s partner observed that the deceased was carrying a gun.

8. Upon becoming aware of the deceased’s arrival, Mr Moulds and the applicant, in separate cars, moved quickly towards Mr Sutcliffe’s house. The deceased began shooting his gun towards the oncoming cars. Mr Moulds was grazed by a bullet.

9. The passengers of both cars alighted, and Mr Brown struck the deceased with the machete. The deceased and the two other men tried to flee by running to a vehicle, but Jason Moulds (the brother of the co-offender) rammed the car with another vehicle.

10. The deceased then attempted to run away on foot. He was chased by five men, including the applicant. The deceased had run out of ammunition by this stage. He ultimately tripped, or was tackled, and set upon by the five pursuers. In the course of the attack by those men, the deceased suffered a fatal stab wound in the lower back. The applicant did not inflict the fatal wound, but had participated in the attack upon the deceased, being himself armed with a baseball bat. The Crown’s case was that the applicant had participated in a joint criminal enterprise to cause grievous bodily harm to, or kill, the deceased.

The Sentence Imposed by the Trial Judge

11. The trial judge described, at [32] – [34], the objective seriousness of the applicant’s offending as follows:

“Hoskins was, I find, a participant in a joint criminal enterprise to inflict grievous bodily harm by some means on the victim and he is liable for the murder which was committed accordingly.

On his own version to police, Hoskins entered the fray with a baseball bat which, although he dropped it at one point, was retrieved and used, although he claimed that he may or may not have made contact. Certainly no major injury to the victim could be associated with a heavy blow by the bat but I reject the contention that Hoskins' purpose was to disarm Jamie LaFoe. As I have said his intention was to cause grievous bodily harm and punish him.

It is not insignificant that Hoskins came to the scene after collecting passengers in circumstances where it was obvious that there was potential for trouble of some sort and the numbers of men would give an advantage in a physical sense to any confrontation. The departure after first arrival, the waiting nearby and the return are all indicative of Hoskins’ preparedness to become engaged in whatever trouble might erupt. Added to his knowledge of the additional four men in the Moulds vehicle, the Crown description that they were preparing for ambush was quite accurate.”

12. The applicant’s sentence incorporated the following:

1. A 33 per cent reduction in sentence due to provocation by the deceased;

2. Backdating the commencement date of the sentence to take into account the time that the applicant had been in custody on remand; and

3. An allowance of 60 days to reflect strict bail conditions that the applicant had been subject to whilst awaiting trial (60 days being approximately 25 per cent of the time the applicant had spent on bail).

13. The sentencing judge also took into account the following subjective factors:

1. The applicant had a back injury. Treatment in gaol had been inadequate leading to him being granted bail whilst awaiting trial, and there was no reason to think that the medical treatment would be markedly different in the future; and

2. The applicant was in protective custody and his sentence would be served in custodial conditions more onerous than those of other prisoners who were in the general gaol population.

Previous Appeal

14. As noted, the applicant filed a NIA on all grounds in June 2013. Applications to extend the NIA were twice granted by the Registrar of this Court, over a nine month period.

15. On 12 May 2014, the applicant’s then solicitor filed a second NIA limited to conviction only. This Court dismissed the conviction appeal.

16. The present application for leave to appeal against sentence was filed by the applicant on 22 December 2015. The applicant filed an accompanying affidavit dated 2 December 2015, in which he asserted that his former solicitor had allowed the June 2013 NIA, as relevant to a proposed sentence appeal, to expire.

17. On 1 July 2016, the applicant appeared before this Court representing himself.

Grounds of Appeal

18. The applicant advanced 13 grounds of appeal, some of which overlap to a considerable extent. They deal largely with the applicant’s experience in custody, and some rely on events that post-date the sentence proceedings.

19. Both the applicant and the Crown filed and relied upon written submissions. No oral submissions were made at the hearing of the application.

Ground One: “His Honour erred when he took into account my psychologist report”

20. Before the sentencing Court the applicant relied upon a report from a psychologist, Ms Barbara Panagiotopoulos. By ground one, the applicant contends that the report was not taken into account by the sentencing judge, even though it was favourable to him, and despite the fact that psychological reports tendered during sentence proceedings by his co-offenders were given consideration.

21. It is clear from his Honour’s reasons that he both read and carefully considered the report of Ms Panagiotopoulos. He concluded, however, that the contents of the report were of limited assistance, particularly in assessing the applicant’s prospects of rehabilitation. His Honour specifically noted the absence of information as to the administration of relevant psychological tests, with the report consisting principally of information provided to the author by the applicant. The sentencing judge concluded that the opinions expressed in the report lay outside the author’s area of expertise. His Honour said, at [37] of the judgment:

“[…] Much of the opinion therein lies outside what I would consider the expertise of a psychologist. The report does not record application of specific psychological tests and their results. A number of documents were listed as having been examined. I do not doubt the sincerity of the reporter but I can only conclude that her favourable predictions may or may not come to pass and I make no finding as to probability.”

22. It was entirely open to his Honour to draw those conclusions. In many cases statements made by an offender to an expert and recounted in an expert report, in the absence of evidence from the offender as to the truth of those statements, are of very little weight, if any: R v Qutami [2001] NSWCCA 353, at [58] and [79].

23. The report of Ms Panagiotopoulos was of limited utility. It did not contain any objective material which suggested, let alone compelled, a conclusion different to that reached by the sentencing judge.

24. The fact that reports tendered on behalf of co-offenders were or may have been given weight by the sentencing judge can say nothing about the question of error in the treatment of the report relied upon by the applicant. His Honour was both entitled and obliged to assess the weight to be given to the report of Ms Panagiotopoulos by reference to its contents, and the absence of foundational evidence from the applicant.

25. No error has been shown. We would not grant leave to advance this ground.

Ground Two: “His Honour erred when he took into account my medical problems”

Ground Three: “His Honour erred when he took into account my lack of medical treatment in gaol”

26. Grounds two and three will be addressed together as they both relate to the applicant’s health problems and the delays he has experienced in receiving appropriate treatment in the prison system.

27. The applicant contends that his poor health and the deterioration in his mobility due to a spinal problem have not been adequately treated in custody. Although he does not specify the precise nature of the error made by the sentencing judge in addressing this issue, it appears that the applicant’s contention is that the sentence imposed upon him by the sentencing judge did not properly reflect this feature of the subjective case.

28. Setting aside for the moment the applicant’s experience in prison following the imposition of sentence, it is difficult to see how the applicant could make good these grounds in light of the attention given to the question of the applicant’s health by the sentencing judge. His Honour was cognisant of, and referred to, the applicant’s poor health, and the lack of adequate medical treatment that had been available to him when on remand.

29. At [34] and [35] of the sentence judgment his Honour noted that the applicant was in poor health and suffered from a deteriorating spinal condition. He referred to the inadequate medical treatment provided to him in goal, as detailed in an earlier judgment relating to bail, and noted that those inadequacies were likely to continue into the future. The sentencing judge specifically said that some allowance would be made in assessing sentence to reflect that feature of the subjective case (at [35]). More could not be required.

30. Whilst an offender’s health difficulties and the additional hardships that such difficulties may lead to for an offender in custody are matters legitimately taken into account by a court in assessing sentence, it is simply one of the features to which the court must have regard. It cannot be concluded in the applicant’s circumstances that the degree of amelioration of penalty his Honour allowed entailed error.

31. The applicant’s current circumstances are not relevant to the determination of this application. Not only is there no evidence before this Court of the applicant’s state of health post-sentence, or of the treatment regime presently available to him, but any such evidence may not meet the test of fresh evidence, and would thus be inadmissible: Abou-Chabake v R [2004] NSWCCA 356; 149 A Crim R 417 at [63]; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104] – [121].

32. The applicant has failed to demonstrate any error in the sentencing judge’s consideration of his health problems and medical treatment in custody and we would not grant leave to advance these grounds.

Ground Four: “His Honour erred when he took into account my strict bail conditions”

33. Although not specifically stated by the applicant, his argument appears to be that the discount of 60 days from the sentence imposed upon him was not an adequate reflection of the 229 days during which he experienced, what he contends, were onerous conditions of bail.

34. As has been noted, after a period spent in custody on remand awaiting trial, the applicant was granted conditional bail, principally because of his health difficulties and the lack of appropriate treatment available to him as a remand prisoner.

35. The bail conditions imposed upon the applicant included a residential condition, a daily reporting condition, a prohibition on contact with both Crown witnesses and any of the co-accused, a condition requiring the applicant to pursue employment, a curfew condition requiring him to be at his residence between 7pm and 7am each night, and a condition requiring him to present himself at his front door at the request of a police officer, for the purpose of checking his compliance with the curfew.

36. The fact that an offender was subject to strict conditions of bail during the period awaiting trial or sentence is a matter that may be taken into account by a sentencing judge, but there is no obligation to do so. Much will depend upon the facts of the particular case. Certainly, there is no principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions of bail.

37. It is a matter for the sentencing judge to assess the facts of the particular case and determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243, at 258; R v Webb [2004] NSWCCA 330 at [18].

38. The bail conditions imposed upon the applicant were strict, but there is a real factual issue as to whether an overnight curfew and, perhaps additionally, a daily reporting condition, are so restrictive as to amount to quasi-custody.

39. Here, although it was by no means mandatory for him to do so, the sentencing judge specifically took into account the curfew and reporting conditions to which the applicant was subject, in the exercise of his discretion, to reduce the sentence that would otherwise have been imposed by 60 days (at [39] of the judgment). There was no basis for an equivalent allowance of 229 days reduction in sentence to reflect 229 days of restricted liberty on bail. Time spent by an offender residing in his or her own home in the community prior to trial or sentence cannot be directly equated to time spent in the much harsher environment of a prison.

40. We do not regard the 60 day reduction of sentence allowed to the applicant as capable of demonstrating error.

41. We would not grant leave to advance ground four.

Ground Five: “His Honour erred when he took into account provocation by the victim”

42. Whilst acknowledging the 33 per cent discount on sentence allowed (pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), to reflect the provocation by the deceased, the applicant contends that his Honour was in error in allowing anything less than a 50 per cent discount.

43. The issue of provocation was dealt with by the sentencing judge at [40] – [42], incorporating the remarks on this aspect of the matter at [31]. His Honour concluded that the deceased had come armed to the confrontation with a lethal weapon which he used in a threatening fashion, and that he had used the weapon to shoot in the area where persons were present. He found that the level of provocation was “high” (at [31]) and “of no minor scale” (at [41]). He said (at [42]):

“As I have said, the statute expressly provides that provocation by a victim is a matter to be given allowance and on the facts of this case I would assess that allowance as one third of the penalty otherwise assessed.”

44. The sentencing judge was not obliged to quantify the discount on sentence that was reflective of provocation. Having done so, we do not regard a discount of 33 per cent as inadequate, or otherwise erroneous.

45. In our view, the sentencing judge’s reduction in sentence was generous, particularly as the fatal attack occurred after the deceased had stopped shooting and was attempting to run away.

46. He was astute to the confrontational and reckless behaviour of the deceased in the events leading to his death but this does not alter the applicant’s aggressive involvement in the fatal attack, after the deceased attempted to flee the area.

47. We would not grant leave to advance ground five.

Ground Six: “His Honour erred when he took into account protective custody and associating problems”

48. The applicant submitted that, whilst the sentencing judge said that some allowance was made for the hardships the applicant would suffer in protective custody, no such allowance can be discerned having regard to the sentence imposed.

49. As the applicant’s submissions acknowledge, his Honour’s remarks on sentence demonstrate that he made some allowance for the fact that the applicant would serve his sentence largely in protective custody (at [35]). He was not required to identify a specific allowance for hardship in custody: Markarian v R [2005] HCA 25; 228 CLR 357, at 373-374 [37], citing Wongv The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 611-612 [74]-[76]. There is no basis upon which to conclude that the allowance his Honour said that he would make was not made. It cannot be concluded that the sentence imposed is so harsh as to point to a failure to give appropriate weight to this aspect of the applicant’s subjective case. Indeed, a sentence of 12 years with a 9 year non-parole period for the offence of murder may well be regarded as relatively lenient.

50. We do not accept that this proposed ground can be made out, and would not grant leave to rely upon it.

Ground Seven: “His Honour erred when he took into account I played lesser part, then Moulds is given a lesser sentence”

51. The applicant submitted that the sentencing judge erred by imposing a shorter sentence on the applicant’s co-offender, Darrin Moulds, than the sentence he received, despite the fact that the applicant’s culpability was assessed as being less than that of his co-offender, Mr Moulds.

52. His Honour was well aware of the parity principle. He made a careful assessment of the culpability of each of the offenders, and of the subjective circumstances of each.

53. Whilst the culpability of Darrin Moulds was assessed as being higher than that of the applicant, his Honour regarded his subjective case as more favourable. He said (at [52] – [53]):

“A disturbing aspect of Moulds’ situation is the callousness revealed in the text messages to which I have made earlier reference. Overall, an objective assessment of Moulds’ capability including striking the victim, non fatally, with an iron bar, would tend to make his culpability higher in scale than that of Hoskins but of course less than Sutcliffe who performed the stabbing. However, taken altogether I consider Moulds’ favourable subjective factors exceed those available to Hoskins with a result that I would consider a similar head sentence.”

54. This assessment resulted in a head sentence (of 12 years) that was the same for both the applicant and his co-offender.

55. A sentence of 10 years imprisonment was ultimately imposed on Darrin Moulds. The sentence was calculated after a reduction of 33 per cent from a proposed sentence of 18 years imprisonment, with a further reduction of 2 years to reflect past and future assistance (at [56]). That sentence took into account what his Honour regarded as the more favourable subjective circumstances of the co-offender. Mr Moulds was 28 years old at the time of the commission of the offence. He had a minor criminal record which was of no relevance to the sentencing task. He had been diagnosed as having a developmental disability, and psychological testing assessed him as functioning at a level consistent with a mild or borderline intellectual disability. Like the applicant, he was held in protection, and was likely to remain in protective custody for the duration of his sentence. His Honour concluded that the co-offender’s prospects of rehabilitation were favourable.

56. The applicant was aged 36 at the time of the murder, and had a criminal history which included offences of violence. His health problems and the onerous nature of custody were features taken into account in his favour. Unlike the situation of Darrin Moulds, his Honour was not able to conclude that the applicant had favourable prospects of rehabilitation.

57. The different features of Mr Moulds’ circumstances distinguished his case from that of the applicant and, together with the reduction of sentence specifically reflecting assistance to the authorities, justifies the disparity.

58. As was observed in Wong at 608 ([65]):

“To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.” (per Gaudron, Gummow and Hayne JJ, emphasis in original)

59. The cases of the two men differed in relevant respects, leading to differing outcomes.

60. Whilst the applicant referred in his submissions to his current willingness to provide information concerning “a known paedophile”, that was not evidence before the sentencing judge, and not something that could have ameliorated the sentence to be imposed.

61. We would not grant leave to advance ground seven.

Ground Eight: “His Honour erred when he failed to consider my family situation”

62. The applicant submitted that he should have received a specific allowance in the sentence imposed to reflect the hardship his incarceration was causing to his family. In support of this, the applicant brought to the attention of this Court a number of unfortunate matters relating to his children which we have carefully considered but do not detail here. Most of those issues have arisen since his incarceration, and were not matters the subject of evidence before the sentencing judge.

63. A term of imprisonment will, unfortunately, always cause hardship to an offender’s family but, except in circumstances where that hardship is extreme, it is not ordinarily a relevant consideration on sentence. In R v Edwards (1996) 90 A Crim R 510, at 515, Gleeson CJ said:

“There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment.”

64. There was no evidence before the sentencing judge to suggest the applicant’s family would suffer any unusual or extreme hardship. Events that have taken place since sentence was imposed in 2013 cannot assist the applicant in demonstrating error by the sentencing judge.

65. We would not grant leave to advance ground eight.

Ground Nine: “His Honour erred when he failed to consider my community volunteer work”

66. The applicant referred in his written submissions to voluntary work that he had performed for a number of government and non-governmental agencies. He complains that the sentencing judge gave no consideration to this work, and thus fell into error. There was in fact no evidence before the sentencing judge in relation to voluntary work undertaken by the applicant. His Honour can hardly be in error for not taking into account a matter of which there was no evidence, and about which no submissions were made.

67. This proposed ground of appeal cannot be made good.

Ground Ten: “His Honour erred when he failed to consider victim’s family working for Corrective Services”

68. In his written submissions the applicant contends that, because members of the deceased’s family are employed by the Department of Corrective Services, he has been “targeted” in custody, making “things extremely difficult.”

69. As with ground nine, the applicant did not tender any evidence to the sentencing judge to establish, either, that members of the deceased’s family were employed by the Department of Corrective Services, or, that that fact had an adverse effect on the conditions of his custody. His Honour cannot be in error for not taking into account a matter about which there was no evidence, and which he was not asked to consider.

70. Even assuming that there was such evidence, the sentencing judge was not obliged to adjust the sentence imposed by reason of that matter alone. It is noted that his Honour adjusted the sentence favourably to the applicant to reflect the fact that the conditions of custody in which he was held were more onerous than those of the general prison population.

71. We would not grant leave to argue this ground.

Ground Eleven: “His Honour erred when he failed to consider my assault while in gaol”

72. The applicant submitted that he was assaulted in prison by “up to five inmates”, requiring hospitalisation, and leaving permanent scarring and ongoing headaches. He contends that the sentencing judge was in error in not considering this aspect of his case.

73. There was limited, and no satisfactory evidence before the sentencing judge to establish that the applicant had been assaulted in custody with lasting consequences. In her report, Ms Panagiotopoulos recorded the applicant’s account to her of having been assaulted in custody two years previously by “an inmate” requiring hospitalisation. She noted that “he stated he was not told what the medical injuries amounted to”. The applicant pointed to what he said was a scar on his forehead, but Ms Panagiotopoulos was “unable to detect it”.

74. Since the applicant told Ms Panagiotopoulos that he had sustained head injuries in other contexts, such as in an explosion and in two car accidents, it would be difficult, in any event, to attribute headaches and the like to an asserted assault.

75. There was no confirmatory documentation or medical evidence before the sentencing judge about any assault on the applicant and, having regard to the unsatisfactory nature of the hearsay account recorded in the psychological report, the sentencing judge was entitled to give that aspect of the matter no weight.

76. His Honour did take into account the applicant’s ill health, and the fact that he would serve his sentence in protective custody, making a specific allowance for that in the sentence he imposed. He could have done no more even had there been evidence of an assault in custody unconnected with this offence.

77. We are not persuaded that there was any flaw in the sentencing judge’s reasoning in this respect, and would not grant leave to advance this ground.

Ground Twelve: “His Honour erred when he failed to consider my mental health problems”

78. In his written submissions, the applicant asserted that he was suffering from bipolar disorder and depression and had not received appropriate treatment for his conditions in custody.

79. There is nothing beyond the applicant’s assertion to establish that he in fact suffers from these disorders. The only evidence before the sentencing judge was contained within the psychological report, which noted:

“Mr Hoskins reports he has been diagnosed with a number of psychiatric disorders but was unable to recall when the diagnoses were made. He reported he was diagnosed with anxiety, depression, bipolar and obsessive compulsive disorder “years ago”. In the last two weeks, he stated that he was also been [sic] diagnosed with Post Traumatic Stress Disorder by a Psychiatrist in gaol, but again was unable to elaborate on this any further.”

80. Ms Panagiotopoulos went on to refer to various medications that the applicant said he had been prescribed over the previous 10 to 12 years, and to a reported prescription for an anti-depressant in the fortnight before her consultation with him. The applicant had been unable to name the anti-depressant.

81. The applicant did not give evidence on sentence and, for the reasons set out when considering ground one, the sentencing judge was not prepared to give weight to the applicant’s self-report to Ms Panagiotopoulos, unsupported by evidence.

82. There could be no error in such an approach, since it is consistent with authority.

83. Leave should not be granted to advance this ground.

Ground Thirteen: “His Honour erred when he failed to consider special circumstances”

84. The applicant’s only submission addressing this ground was as follows:

“I feel I should have been given a shorter sentence with a longer court ordered parole period due to my circumstances.”

85. A submission was made to the sentencing court that a finding of special circumstances should be made, but rejected by his Honour. At [39], his Honour said:

“Application is made to vary the formula for division of head sentence from that specified in the applicable statute by reason of special circumstances. I accept that health can operate as such but I am unpersuaded to make a special circumstances finding in this instance.”

86. A finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act is a discretionary matter for the sentencing judge. It is a finding in respect of which this Court will be slow to interfere: Jiang v R [2010] NSWCCA 277, at [83].

87. The fact that there are features of an offender’s circumstances which could establish a finding of special circumstances does not impose an obligation on the sentencing court to make such a finding: R v Cramp [2004] NSWCCA 264, at [36]. An error in the exercise of that discretion must be shown. No such error was pointed to by the applicant here.

88. For a finding of special circumstances to be made, there must be some particular utility in a period of parole longer than that which would flow from the ordinary operation of statute. It is difficult to see any utility in this instance other than a simple reduction in the non-parole period. Mere reduction in the period of the sentence to be served in custody is not a proper basis for a finding of special circumstances.

89. Whilst in addressing earlier grounds of his appeal, the applicant has pointed to the challenges he faces in custody, including in relation to his health and his concerns for his safety, he has not demonstrated that the sentencing judge erred in exercising his discretion to decline to make a finding of special circumstances.

90. Leave to advance this ground should not be granted.

Application for Leave to Appeal

91. There are cases where a lengthy delay will not preclude an applicant from successfully bringing an application for leave to appeal on sentence. This is not one of those cases.

92. The applicant’s then legal representatives had significant time in which to consider the merits of both his proposed conviction and sentence appeals. It is tolerably clear that those representatives made a deliberate forensic decision to abandon the applicant’s sentence appeal when they filed the second NIA.

93. Given our conclusions about each of the grounds advanced here, that was a forensic decision well open to them. In these circumstances, the present application for leave to appeal should be refused.

Further Evidence Filed by the Crown

94. At the hearing before this Court, the Crown read an affidavit of Miriam Rottenberg, a solicitor of the Office of the Director of Public Prosecutions, dated 20 June 2015, on the basis that it was relevant if the Court proceeded to re-sentence the applicant.

95. The applicant objected to the admission of that affidavit. Given that the admissibility of the affidavit only arises if the Court proceeded to resentence the applicant, the admissibility of the affidavit need not be determined. The affidavit is not admitted.

Orders

96. The order of the Court is:

1. Leave to appeal against sentence is refused.

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Decision last updated: 08 August 2016