Kidd v The Queen

[2009] NSWCCA 229

New South Wales
Court of Criminal Appeal

CITATION:	Kidd v R [2009] NSWCCA 229
HEARING DATE(S):	19 August 2009
JUDGMENT DATE:	10 September 2009
JUDGMENT OF:	Macfarlan JA at 1; Grove J at 2; Hoeben J at 56
DECISION:	Extension of time granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Sentence - Delay as a result of interstate arrest and sentence before return to NSW - Totality - Proportion of minimum to head term of custody - Advanced age of offender - Conditions of detention
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Baker [2000] NSWCCA 85 R v Holder (1983) 3 NSWLR 245 R v Holyoak [1995] 82 A Crim R 502 R v Todd (1982) 2 NSWLR 513
TEXTS CITED:	Sentencing Manual (I Potas 2001)
PARTIES:	Robert Douglas KIDD - Applicant REGINA - Respondent/Crown
FILE NUMBER(S):	CCA 2002/13968
COUNSEL:	M Ramage QC - Applicant N Noman - Respondent/Crown
SOLICITORS:	Jeffreys & Associates - Applicant Solicitor for Public Prosecutions - Respondent/Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0283
LOWER COURT JUDICIAL OFFICER:	Karpin DCJ
LOWER COURT DATE OF DECISION:	30/07/04

CCA 2002/13968

MACFARLAN JA
GROVE J
HOEBEN J

10 September 2009

Robert Douglas KIDD v R

Judgment

1 MACFARLAN JA: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Karpin DCJ on 30 July 2004 in Sydney District Court. The applicant was tried successively upon three indictments, the trials taking place between August 2003 and May 2004.

3 The notice of appeal was filed on 7 April 2009. An affidavit of Philip Edward Green sworn on that date has been filed in support of an extension of time for filing that notice. Given what appears therein, which it is not necessary for present purposes to summarize and the significant effective sentence required to be served by the applicant, I would grant the necessary extension.

4 Indictment 1 charged robbery whilst armed with a dangerous weapon contrary to s 97 (2) of the Crimes Act 1900. That offence has a prescribed maximum penalty of imprisonment for 25 years. Her Honour sentenced the applicant to a head sentence of 8 years commencing on 26 August 2003 and expiring on 25 August 2011 with a non-parole period of 6 years.

5 This offence (the Manly robbery) took place on 16 July 1997. Her Honour found that this offence involved a very sophisticated level of planning and information gathering concerning the intended victims. The applicant was one of a group of robbers who came into possession of accurate information that the male occupant of a house at Manly was absent overseas and that his wife was alone in the house with their young children.

6 The group of robbers made at least two attempts to carry out the offence but they were abandoned in the light of prevailing conditions. However, on the occasion of its commission, two other offenders stole a car which was to be used for escape. Other than one who was to act as a driver, the group, equipped with oxyacetylene equipment, broke into the house. The applicant instructed two men to locate the bedrooms of the children and close the doors. This was done. Then three men wearing balaclavas went into the bedroom of the wife and she was awakened by them turning on the light. She was confronted by these three men wearing balaclavas, two of whom were carrying shotguns. She was told that no harm would come to her if she was cooperative and she was handed a dressing gown.

7 She was interrogated about the location of safes in the house and she provided the combination to a safe located in the laundry. When the offenders were unable to open it she was brought to it and directed to open it which she did. Jewellery was taken from that safe.

8 She was then taken to a second safe located in the cellar and again directed to open the safe. This was done and a quantity of cash amounting to $275,000 was taken from inside. There was more jewellery in this safe but when the victim expressed distress at the potential loss of family heirlooms, the offenders replaced it into the safe.

9 During these events the telephone lines in the house were severed although it appears one was overlooked. The victim was returned upstairs and tied up. The driver of the stolen car was summoned by two-way radio. Before departure the victim was assured that police would be informed about her situation so that she could be released before the children awoke. The group then left and went to the home of one of the offenders where the proceeds were divided and shortly thereafter two of the group went to make a telephone call to a taxi company where they passed information concerning the plight of the victim and this information was duly acted upon to secure her release.

10 Indictment 2 charged two counts, first attempted robbery whilst armed with a dangerous weapon contrary to ss 97 (2) and 344A of the Crimes Act and a second count charged larceny of a motor vehicle contrary to ss 117 and 154A (1) (b) of that Act. On the first count the jury found the applicant not guilty but guilty of a statutory alternative of attempted robbery whilst armed with an offensive weapon and in company contrary to s 97 (3) of the Act. He was found guilty on count two as charged.

11 On count one her Honour sentenced the applicant to imprisonment consisting of a head sentence of 6 years commencing on 26 August 2003 and expiring on 25 August 2009 with a non-parole period of 4 years and 6 months and on the second count to imprisonment for a fixed term of 12 months commencing on 26 August 2003 and expiring on 25 August 2004.

12 These offences occurred on 27 June 1997. Prior to the commission of these offences the applicant and others, as a result of inspection, identified the premises of the National Australia Bank at Leichhardt as a suitable target for robbery. The applicant was in possession of accurate information concerning the time lock system which operated to restrict access to the main safe at the bank. The second count related to a vehicle which was stolen in order to be used for the purpose of escape.

13 In the hours of darkness two of the offenders other than the applicant went to the bank with oxyacetylene equipment and cut the iron bars which protected a window at the rear of the bank. They then taped the bars back into place using the tape to disguise the cutting that had taken place. At about 5pm on Friday 25 June the applicant and three others met at a Leichhardt hotel. The applicant and one other then went to the rear of the bank and pulled aside the damaged bars and attempted to smash the window behind it with an iron bar. At the time both men were wearing balaclavas. They failed to gain entry to the bank because they did not make an adequately large hole in the glass in order to allow them to enter. There were persons in the vicinity and the attempt was abandoned, the two men returning to the vehicle and departing from the scene. The vehicle was later abandoned.

14 Her Honour found that although the attempt failed it was a well planned operation based upon accurate information as to the layout of the bank and the practices adopted in relation to the safe.

15 Indictment 3 charged robbery whilst armed with a dangerous weapon contrary to s 97 (2) of the Crimes Act. This offence (the Burraneer robbery) took place on 11 September 1997. For this offence her Honour imposed a sentence consisting of imprisonment for a head term of 10 years dating from 26 August 2009 and expiring on 25 August 2019 with a non-parole period of 6 years.

16 Four men including the applicant, all wearing balaclavas and armed with sawn off shotguns, entered a private residence at Burraneer. Her Honour found that the perpetrators had substantial information concerning the victims and were aware that a female victim was suffering from cancer. That illness in fact caused her death some two or three years after the offence. The offenders had beforehand engaged in surveillance and on one occasion deliberately activated an alarm, obviously to assess any response.

17 The offenders gained entry when the wife opened the door to bring in one of the family pets and they pushed her to the ground and almost immediately commenced a serious assault upon the husband. Over ensuing hours the husband was severely beaten and injured and although the wife was not further harmed, and her head was covered so that she could not see what was happening to her husband, she was well aware that he was being subjected to considerable violence.

18 The intruders caused extensive damage to the premises, smashing ornaments of value and furnishings and damaging two Mercedes motor vehicles which were located in the garage. The damage done was evaluated at in excess of $100,000.

19 A quantity of cash, said by the victim to be between $6,000 and $8,000, was taken together with jewellery valued at about $140,000.

20 The total effective term imposed as a result of her Honour’s sentences amounted to imprisonment for 16 years dating from 26 August 2003 and expiring on 25 August 2019 with a non-parole period of 12 years with the same commencement date and expiry on 25 August 2015.

21 As can be seen from the facts detailed above, the trials did not take place until many years after the commission of the offences. The applicant left New South Wales and on 12 December 1997 was arrested in Queensland where he was placed in custody after committing an armed robbery and using a firearm to avoid capture. He remained in custody after that date and, following pleas of guilty to those offences, he was sentenced to terms of 7 and 11 years imprisonment in connection with which there was specified a non-parole period which, as at the dates that the applicant was brought to New South Wales to face the trials abovementioned, was scheduled to expire on 29 September 2006. That would have been the earliest date upon which the applicant might have been released to parole in respect of the offences in Queensland.

22 The applicant was charged with the New South Wales offences on 27 August 2001. The authorities first came into possession of evidence of the applicant’s involvement from information received in April 2000. As is obvious from the foregoing there were multiple offenders involved in the applicant’s crimes, but he stood trial alone. Other identified offenders were separately tried. However the chief witness against the applicant at all three of the trials was a co-offender named Smith. Smith was granted indemnity from prosecution for the offences in New South Wales and received a letter of comfort which was used to obtain a substantially reduced sentence for his participation in offences in Queensland. As is usual in such circumstances the indemnity and the reduced sentence were conditional upon Smith giving truthful evidence about the commission of the crimes. Obviously, each of the juries involved in the trials of the applicant accepted his evidence.

23 The applicant was born on 16 June 1933. He has a prior record of considerable length dating back to 1955 but it should be observed that nothing of the seriousness approaching the offences in Queensland or the three current offences appears upon his accumulated record between 1955 and 1992. That is not to say that the record is minor. On 29 March 1996 at Sydney District Court he was convicted of assault with intent to commit a felony and released upon a recognizance pursuant to s 558 of the Crimes Act as then in force on condition that he enter a bond in the sum of $2,000 to be of good behaviour for four years. That recognizance was current during the commission of all the offences which are above described.

24 Grounds 1 and 2 advanced by the applicant are:

“(1) The total sentence was unduly harsh and severe.
(2) The sentencing judge erred in application of the principle of totality.”

25 It will be convenient to deal with these grounds together. I did not understand it to be contended that the individual sentences for particular offences, if viewed in isolation, were excessive. The thrust of submissions was directed to the combined effect of the Queensland and New South Wales impositions which effectively had the consequence of continuous custody from 12 December 1997 until the earliest date of eligibility for parole on the expiry of the period set in respect of the third indictment, 25 August 2015, a total period of 17 years 8 months. The combined head sentences can be calculated to constitute an effective term of 21 years 8 months.

26 Reference was made to the statistics collected by the Judicial Commission in relation to “s 97” offences and it was submitted that the head sentence “grossly exceeds” sentences imposed in New South Wales for “s 97” offences, however argument was principally focussed upon an asserted failure to comply with the principle of totality. I am unable to deduce an error by comparison of the sentences imposed upon the applicant with what is asserted to be a sentencing pattern for “s 97” offences.

27 What is involved in the concept of totality is not in doubt and the observations of Street CJ in R v Holder (1983) 3 NSWLR 245 at 260 are frequently cited:

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. The effect of this practical consideration is always to produce an ultimate aggregate which is less than that which would be arrived at by a straightforward adding up of the terms appropriate for the offences, if each were viewed alone. In carrying out this process of adjustments, it is both inevitable as well as proper that the ultimate decision be arrived at in the light of the totality of the criminality involved in all of the offences. As has been said more than once in this Court, where the principle of totality comes into effect, it is more often than not of little importance how the ultimate aggregate is made up (that is to say, whether by a series of aggregate terms or by a series of concurrent terms, or by partly one and partly the other). The important factor is the practical significance of the sentencing order.”

28 The remarks in the final two sentences of that excerpt need to be understood now in the light of the subsequent decision of the High Court in Pearce v The Queen (1998) 194 CLR 610.

29 In the context of the current matter, totality considerations required a giving of account to the extant Queensland sentence. The approach to circumstances of an offender whose crimes are committed in different States was succinctly summarized by Moffitt P in R v Todd (1982) 2 NSWLR 513 at 521:

“The circumstances that one offence is committed in one State and another offence is committed in a different State should not deter the courts of this State, at least so far as administratively possible, from imposing a sentence or from participating in the imposition overall of sentences, including a minimum sentence, which would be imposed, if all the offences were dealt with by one court in this State. The criminality and the other elements which go to determine sentences do not depend upon which side of the border some of the offences are committed.”

30 In Todd, Street CJ (at 519) said, inter alia:

“But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. Within a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes.”

31 In the present case the time relationship between the commission of the crimes in New South Wales and Queensland was not so close, however the High Court in a joint judgment in Mill v The Queen (1988) 166 CLR 59 referred to the comments of Moffitt P in Todd and further comments of Street CJ and made it plain that a pre-existing (interstate) sentence and the aggregate term which would result from second imposition were relevant matters to be taken into account. Their Honours added (at 66):

“The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances.”

32 The remarks on sentence (ROS) of Karpin DCJ show that she was conscious of the need to apply the principle just discussed. She said (ROS 17-18):

“On the other hand, these offences were committed over a relatively short period and, having regard to the total sentence that will result from the individual sentences to be imposed upon the prisoner, I am persuaded that the principles of totality require a degree of cumulation and concurrency in the total sentence which includes a calculation of the Queensland sentence. The prisoner is presently serving a term of imprisonment imposed upon him for the offences in Queensland. He went into custody on 12 December 1997 after his arrest in the course of committing a serious armed robbery. As the sentencing judge in Queensland found, the prisoner sought to shoot his way out. He was accordingly sentenced on two counts: on the robbery he was sentenced to seven years imprisonment on a plea of guilty; and on the shooting offence he was sentenced to 11 years imprisonment on a plea of guilty. Those sentences are to be served concurrently. His non-parole period expires on 26 September 2006.”

and (ROS 18-19):

“The offences for which the prisoner is to be sentenced today all occurred prior to the Queensland offences. However, each of the New South Wales offences and the Queensland offence are of the utmost gravity. The existence of the Queensland offence is, however, not a matter to be taken into account in dealing with the prisoner other than considering the total period of imprisonment that the prisoner is facing and determining the issue of totality.”

33 No express submission was made that her Honour was referring to the head sentences to the exclusion of non-parole periods when she referred to “the total period of imprisonment” and she subsequently made it clear that in considering totality as well as other factors she also focussed upon minimum terms. At ROS 20 she said:

“Having regard to the period of time he has already been in custody in relation to another serious offence, the principles of totality and to his age and health, those sentences should be structured to result in a non-parole period of 12 years. That will be further reduced by being made partly concurrent with his Queensland sentence resulting in an effective additional period of imprisonment before he is eligible to be considered for release on parole of just under nine years.”

34 Senior counsel for the applicant acknowledged the expressions of her Honour concerning totality but contended that there was a detectable latent error in part, at least, discernible from a failure to refer to the principle as expounded in Holder. There was no need for her Honour to make such a reference which would amount to mere ritual incantation.

35 The last quoted excerpt from her Honour’s remarks on sentence shows that she did make adjustment for totality (as well as other factors which she mentioned) and, in the light of that, it was submitted that she did not give sufficient weight to the application of the principle. Although it was said in dealing with the Crown appeal, the statement of Spigelman CJ in R v Baker [2000] NSWCCA 85 is applicable:

“The use of terminology such as ‘sufficient weight’ highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of ‘weight’ will justify intervention by an appellate court are narrowly confined.”

36 It was further submitted that her Honour did not give appropriate effect to the concept of totality in setting the non-parole periods. This was said to be apparent from the failure of her Honour to advert to “special circumstances” as contemplated by s 44 of the sentencing legislation. It is clear that she was referring to this when she said (ROS 20) “there is nothing which has been put to me which would require that other than the standard non-parole period should apply.” The expression “standard non-parole period” could not have been meant to refer to that term as defined in s 54A as the charges against the applicant were brought under sections which do not appear in the table in s 54D. That her Honour was intending then to refer to the proportional formula in s 44 was demonstrated when she used the expression again saying (ROS 20):

“If applied cumulatively, that would result in a total head sentence of 24 years, and applying the standard non-parole periods, the prisoner would serve 16 years before being eligible for release on parole.”

37 Of course, application of the s 44 “formula” effectively results in a non-parole period of three-quarters of head sentence and three quarters of twenty four is eighteen, not sixteen, but I am seeking only to demonstrate the sense in which her Honour was using the expression “standard non-parole periods”. If, as it appears, the statement reflected an arithmetical mistake, it operated to the advantage of the applicant.

38 As is plain from that part of her remarks earlier quoted, she had expressly taken into account the Queensland sentence, she made the sentences on indictments 1 and 2 wholly concurrent with each other and she adjusted the eligibility date for consideration of release to parole downwards by the order for partial concurrency with the Queensland sentence.

39 As already stated, the applicant’s non-parole period for the Queensland sentences were to expire on 29 September 2006. Her Honour commenced the sentences which she imposed on 26 August 2003, a benefit of concurrency to the applicant of 3 years and 1 month.

40 The calculation of the combined total of Queensland and New South Wales head sentences produced a term of 21 years 8 months and the minimum custody amounted to 17 years 8 months, thus the ratio of that to the head sentence was 81.5 percent. The calculations are correct. It was submitted that her Honour ought to have made adjustments so as to achieve an overall ratio of 75 percent in harmony with the prescription in s 44. Each of the sentences imposed by her Honour specified a non-parole period of that ratio to head sentence with the exception of the prescription in relation to the sentence on the third indictment which was adjusted downwards in order to maintain an overall proportion, i.e. for the New South Wales offences an effective head sentence of 16 years with a non-parole specification of 12 years overall.

41 The Queensland sentence was imposed in accordance with the sentencing regime of that State. Although her Honour did not articulate the above calculations, her observation that the applicant would be eligible for parole after service of an additional nine years shows that she was alert to the practical effect of the impositions. It can be observed that departure from the formula in the statute requires a statement of reasons for “downward” adjustment; there is no requirement otherwise. There is no reason to conclude that her Honour overlooked the mathematical result and that her orders reflected other than her intention.

42 Finally, in support of these grounds it was submitted that, in lieu of the commencement date of 26 August 2003 (which was the date upon which the jury returned its verdict of guilty on the first trial) her Honour should have selected either the date upon which police first became seized of evidence from the informer identifying the applicant, April 2000, or when the informer was granted immunity, March 2001, or when the applicant was charged, August 2001.

43 All of the matters, including the lastmentioned, relied upon the applicant’s challenge to the exercise of discretionary judgments by the sentencing judge. It has not been shown that her discretion miscarried and I would reject grounds 1 and 2.

44 Ground 3 contended that her Honour erred in failing to make any or sufficient allowance for old age. Her Honour had observed that the applicant was born on 16 June 1933 and was at the time of sentence, aged seventy one years. Later in her remarks (ROS 19) she returned to this:

“As I have already said, the prisoner is now aged 71. He will inevitably be some years older before the non-parole period for the sentences to be imposed upon him has expired. As I have indicated, the conditions under which he will be serving his imprisonment are a matter to be taken into account.”

45 The written submissions on behalf of the Crown note that the applicant will be eighty four years of age when eligible for consideration of parole.

46 In R v Holyoak [1995] 82 A Crim R 502 the offender, a former supervisor at a Dr Barnardos Home, was convicted on two charges of indecent assault of a child under his care together with a number of other charges taken into account under what was then Form 2 procedure. Holyoak was aged seventy five at the time of sentence. The intervention of this Court occurred because an incident had been taken into account which was outside the period covered by the charges, however, in relation to the issue of age Allen J (Handley JA concurring, Hulme J stating that he was ‘not disposed to give the applicant’s age the same weight as I perceive Allen J is inclined to give’) said at 507:

“It is argued, however, that his Honour fell into error in a number of respects. The first is that, it is said, he failed to give sufficient weight to the applicant’s age. His counsel points out that the sentence imposed as a minimum term is such that the possibility of the applicant dying during the minimum term, despite his present state of health, is quite real. So it is. It is not to be contemplated that his Honour would not have realised that. Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was: ‘Age is not a licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years.’ I find no fault with that observation. Indeed it would seem to be taken directly from the judgment of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgment Kirby ACJ agreed.”

47 Useful reference may also be had to the Sentencing Manual published by the Judicial Commission (I. Potas, 2001) and, although specifically dealing with reduced life expectancy because of illness rather than age, it was observed that (at 284):

“A substantial possibility, or even a probability, that a prisoner will not survive the non-parole period is a relevant consideration, but it is but one subjective matter to be taken into account. Other relevant matters are the responsibility of the prison authorities to provide medical treatment, the Royal Prerogative of Mercy and the powers of the Offenders’ Review Board (Parole Board), under s 160 of the Crimes (Administration of Sentencing) Act 1999, to grant parole where a prisoner is dying or because of ‘exceptional extenuating circumstances’, including humanitarian grounds: Jones (1993) 70 A Crim R 449 per Carruthers J, citing Giardini (Sandro) (unreported, NSW CCA, 25 February 1993) per Gleeson CJ.”

48 I would understand her Honour’s remarks above quoted in which she expressly took into account “the conditions under which he will be serving his imprisonment” to include among the matters she was taking into account, the immediately preceding statement concerning the advance of the applicant’s years. This is further confirmed when she continued:

“He does not have, so far as I am informed, any health problems of such gravity that they cannot be properly cared for within the prison system. Whilst matters of his age and health are relevant, they do not lead to a sentence being imposed which does not adequately reflect the gravity of the offences which were committed.”

49 Inevitably, when imprisonment is to be imposed on an offender who will be of advanced years before eligible for parole pursuant to sentence, a balance must be struck between the most frequently applied of established sentencing principles requiring denunciation, deterrence an punishment and the less commonly encountered but appropriate amelioration for considerations of health and age. It is clear from the remarks of her Honour just quoted that her assessment was made with attention to such a balance. Her approach was in accord with appropriate principle.

50 I am unpersuaded that her Honour erred in the manner asserted by ground 3.

51 Ground 4 contended that her Honour erred in failing to take or sufficiently take into account custodial conditions. As appears in an extract earlier quoted, her Honour stated that she would take those conditions into account. She had observed (ROS 14):

“Since being transferred to New South Wales he has been held at the highest security facility at Goulburn and the conditions under which he has been serving his sentence are relevant in determining his sentence.”

52 Her Honour had been informed by counsel that the applicant was at the time, no longer in maximum security (Transcript 29 May 2004, p 9).

53 This Court was referred to the decision of White J in Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 where a maximum security order in respect of the applicant was set aside on judicial review and returned to be reconsidered by the delegate. Some information as to the incidents of maximum security in Queensland can be gleaned from the description in par 21 of that judgment. Of course, the applicant ceased to be held in Queensland after interstate transfer (to which he told her Honour that he had agreed).

54 It does not appear that the specifics discussed by White J were before the sentencing judge, however the power of this Court to intervene is dependent upon the demonstration of error. No error such as is contended in ground 4 has been demonstrated.

55 I would grant the necessary extension of time to allow the applicant to file his application, I would grant leave to appeal against sentence, but dismiss the appeal.

I agree with Grove J.

**********