Marshall v The King

Case •

[2024] NSWCCA 194

•

28 October 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Marshall v R [2024] NSWCCA 194
Hearing dates: 14 October 2024
Date of orders: 28 October 2024
Decision date: 28 October 2024
Before: Basten AJA at [1];
Dhanji J at [5];
Faulkner J at [58]
Decision:

(1)    Grant leave to appeal;

(2)    Allow the appeal;

(3)   Quash the sentence imposed by Fitzsimmons SC DCJ on the applicant in the District Court on 9 May 2024. In lieu thereof, sentence the applicant to imprisonment for a fixed term of 15 months, commencing on 5 July 2023 and expiring on 4 October 2024.

The earliest date on which the applicant became eligible to be released was 4 October 2024.

Catchwords:

CRIME – appeals – appeal against sentence – break and enter and commit serious indictable offence – principle of totality – manifest excess – notional starting point commensurate with objective gravity of the offending – offence committed nine days after release to parole – parole revoked – lengthy criminal history – personal history of deprivation – interplay between earlier sentence and sentence for the present offence – role of State Parole Authority in determining when to re-parole on earlier sentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 86(1), 112(1)(a), 112(2), 196

Crimes (Administration of Sentences) Act 1999 (NSW), ss 135, 170A, 171

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 47

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Procedure Act 1986 (NSW)

Inclosed Lands Protection Act 1901 (NSW), s 4

Parole Legislation Amendment Act 2017 (NSW)

Cases Cited:

Browne v R [2023] NSWCCA 218

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 23

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58

DS v R; DM v R (2022) NSWLR 82; [2022] NSWCCA 156

Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31

Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Power v The Queen (1973) 131 CLR 623; [1974] HCA 26

R v Gray [2018] NSWCCA 241

R v Todd (1982) 2 NSWLR 517

Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534

The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Veen v The Queen (No 2) (1988) 164 CLR 465 [1988] HCA 14

White v R [2016] NSWCCA 190

Category:Principal judgment
Parties: Matthew Marshall (Applicant)
Rex (Respondent)
Representation:

Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Ross Hill and Associates (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00214634
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
09 May 2024
Before:
Fitzsimmons SC DCJ
File Number(s):
2023/00214634

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Matthew Marshall pleaded guilty in the Local Court to an offence of break and enter and commit the serious indictable offence of damaging property. On 9 May 2024, in the District Court of New South Wales at Queanbeyan, Judge Fitzsimmons SC sentenced the applicant to a total term of 2 years and 3 months imprisonment, commencing on 1 January 2024 and expiring on 31 March 2026, with a non-parole period of 1 year and 5 months, expiring on 31 May 2025.

The applicant remained in custody from the time of his arrest on 5 July 2023. The sentence was not backdated to that date as the applicant was also, from that time, serving the balance of parole in relation an earlier sentence. The applicant’s parole on that earlier sentence was revoked, effective from 5 July 2023, as a result of the commission of the present offence. The commencement date of the present sentence was set having regard to the fact that the applicant had also been serving his balance of parole from the time of his arrest.

The applicant sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed upon him by the sentencing judge.

The principal issues on appeal were:

  1. Whether the sentencing judge erred by failing to consider principles of totality in the length, structure and backdating of the sentence;

  2. Whether the sentence imposed was manifestly excessive such that a different sentence was warranted at law; and

  3. On resentence, ground 2 having been established, the appropriate sentence.

The Court (Dhanji J, Basten AJA and Faulkner J agreeing) held, allowing the appeal:

As to issue (1):

The sentencing judge appreciated the impact of the sentence he imposed on the applicant’s overall custodial situation. The earlier sentence was a significant focus in the sentence proceedings for the present offence. There was no error of the kind argued by the applicant: at [28].

R v Todd(1982) 2 NSWLR 517; Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, applied

As to issue (2):

The present offence was unusual in that it was not part of the prosecution case that the applicant intended to commit an indictable offence within the premises at the time he broke a window and entered the property. The indictable offence committed within the premises, that is, damage to the laundry door, was minor, and added little to the overall criminality. The most significant aspect of the crime was the breaking and entering itself. The sentencing judge found that the offence was “entirely spontaneous and unplanned”. The principle of proportionality required that the sentence be commensurate with the objective seriousness of the offence. In this case, had the applicant not had a criminal record for similar offending it is likely that a gaol sentence would not have been imposed. A starting point of imprisonment for 3 years was manifestly excessive: at [30]-[40]

Veen v The Queen (No 2) (1988) 164 CLR 465 applied; The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 considered

As to issue (3):

When sentencing an offender for an offence constituting a breach of a condition of parole, the determination of the commencement date involves the exercise of a discretion having regard to questions of cumulation and concurrency. Given the length of the extant parole period, the nature of the further offence, and the legislative requirement the sentence commence no later than the date of sentencing, the new sentence was (and would be on resentence) subsumed within the balance of parole. It was therefore to be served entirely concurrently.

It was a matter for the State Parole Authority to determine whether, and what part of, the parole period of the earlier sentence during which the applicant was not serving a non-parole period for another offence, should be properly served in the community. The State Parole Authority is not concerned with punishment, but with the safety of the community. Dating the sentence from a point after the revocation of parole would have the effect of adding to the punishment of the offender for the present offence. That is because it would have the effect of taking the decision as to whether and when the offender might be re-released to parole out of the State Parole Authority’s hands for a period equal to the period between the date of revocation and the date on which the new sentence commenced. The period of the earlier sentence to be served in custody should be left to the Parole Authority and the new sentence backdated to the date of the applicant’s arrest, 5 July 2023: at [2]-[4] (Basten AJA); [45]-[55] (Dhanji J).

Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58; R v MMK [2006] NSWCCA 272; 164 A Crim R 481, considered

Judgment

  1. BASTEN AJA: I agree with Dhanji J, for the reasons he gives, that the sentencing judge’s starting point of imprisonment for three years was manifestly excessive. I also agree with the sentence proposed by Dhanji J, including the commencement date. However, I would add the following observations as to why it is appropriate to backdate the commencement of the further sentence to the date of arrest, given that there was no error in the sentencing judge providing a later commencement date.

  2. The backdating of a sentence is essentially a purposive exercise, where the purpose will depend upon the circumstances of the case. For example, the State Parole Authority revoked the applicant’s parole on his earlier sentence on 23 August 2023, with effect from the date of his arrest, namely 5 July 2023. At least one purpose for backdating the revocation order was that, since his arrest, the applicant had not been able to comply with various conditions of parole.

  3. The sentencing judge backdated the new sentence to 1 January 2024 in order to provide “an element of concurrency” between the new sentence and the old sentence. That too served a legitimate purpose, but on the assumption that the Parole Authority would not have released him on parole on the old sentence within that time. In fact the judge knew that he had not been re-paroled by 1 January 2024, nor indeed by the date the new sentence was imposed, namely 9 May 2024. However, there is a sense in which that exercise is artificial. While the applicant was bail-refused in relation to the new offence, there may have been a good reason why he would not be re-paroled on the old sentence.

  4. It is, however, beyond dispute that the question of rerelease on parole is entirely a matter for the Parole Authority. Rather than speculate as to whether the applicant may or may not have been re-paroled at an earlier date, were it not for the current proceedings, the better course is to treat the whole of the period following his arrest on the current offence as part of the sentence for that offence. The Parole Authority is entitled to consider the applicant’s progress while serving the current sentence, as indeed it no doubt will in the present circumstances. If, in August 2023, the Parole Authority considered that the applicant should remain in custody for a further 12 months before his release into the community was again considered, there is no reason why reconsideration and re-release after the 12-month period would not be equally appropriate in circumstances where he had been serving the new sentence. In effect, to backdate the sentence to a later date would not increase the period served in custody on the new offence but would curtail the power of the Parole Authority to consider his release on parole on the old sentence. Arguably, at least in the present circumstances, that is not an appropriate function of the sentencing court. Accordingly, I agree with the commencement date proposed by Dhanji J.

  5. DHANJI J: The applicant, Matthew Marshall, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him in the District Court of New South Wales at Queanbeyan on 9 May 2024 by his Honour Judge Fitzsimmons SC.

  6. The applicant was sentenced in relation to an offence of break and enter and commit serious indictable offence, in contravention of s 112(1)(a) of the Crimes Act 1900 (NSW) committed on 5 July 2023 at Cooma (“the present offence”). The applicant was afforded a 25 percent discount for the utilitarian value of his plea of guilty which was entered in the Local Court. He was sentenced to a total term of 2 years and 3 months imprisonment, commencing on 1 January 2024 and expiring on 31 March 2026, with a non-parole period of 1 year and 5 months, expiring on 31 May 2025.

  7. The applicant has been in custody since his arrest on 5 July 2023. The sentence was not backdated to that date as the applicant’s custody following his arrest was not solely referable to the present offence. The applicant was on parole with respect to an earlier sentence at the time he committed the present offence with the result that his parole was revoked effective from 5 July 2023. The commencement date of the sentence was set having regard to the fact that the applicant had also been serving his balance of parole from the time of his arrest.

  8. The earlier offences were:

  • three counts of aggravated break and enter and commit serious indictable offence, contrary to s 112(2) of the Crimes Act, the serious indictable offence being armed robbery and the circumstance of aggravation being that he knew persons were present in the premises;

  • break, enter and steal, contrary to s 112(2) of the Crimes Act; and

  • take or detain a person for advantage contrary to s 86(1)(b) of the Crimes Act.

  1. Various offences were also taken into account on Form 1 documents attached to the above offences. Across the various Form 1s were an offence of armed robbery, four offences of dishonestly obtain property by deception, stealing a motor vehicle, stealing, and assault.

  2. In relation to the earlier offences the applicant was sentenced to an aggregate term of imprisonment of 9 years and 6 months, with a non-parole period of 6 years and 4 months commencing on 27 February 2017. The non-parole period expired on 26 June 2023 and the total sentence is due to expire on 26 August 2026.

Grounds of Appeal

  1. The applicant relies upon two grounds of appeal:

“1. The sentencing judge erred in his approach to the length of the sentence imposed on the applicant by failing to consider principles of totality in the length, structure and dating of the sentence.

2. The sentence imposed was manifestly excessive and a different sentence is warranted at law.”

  1. The first ground of appeal, raises a complaint based on the effect of the present sentence on the earlier sentence and in particular the resultant impact on the proportion between the period of mandatory custody and the time during which the applicant is eligible for parole. The applicant submits in this regard that the sentencing judge failed to properly consider the principle of totality.

  2. In support of the second ground of appeal, the applicant submits that the notional starting point of 3 years imprisonment for the present offence is incommensurate with the objective gravity of the offending, noting the sentencing judge’s finding that the offending fell “toward the lower end of the range of offences contemplated by the section”. While not making any complaint as to specific error the applicant complains that some matters were not given sufficient consideration in the sentencing exercise.

Background

The facts of the offending

  1. The sentencing judge recounted the facts of the offending, based on the agreed statement of facts which had been tendered, as follows:

“The agreed facts indicate that the offence occurred in the early hours of the morning of 5 July 2023. The property where the offence occurred was in Creek Street, Cooma, which at that stage, was being occupied by, effectively, the people who lived at the property. On the night of 4 July, the two victims went to bed with all lights turned off, and doors closed and locked. At about 4.30am the following morning, the offender approached the property, picking up a rake that was leaning against an external wall next to the laundry and used it to smash the laundry window. The offender then cleared the glass from the window and entered the laundry, and whilst doing so, he was cut and, indeed, was bleeding in the laundry.

The victims and occupants of the property were awoken by the sound of breaking glass, and they could hear noises coming from the laundry. Once inside the laundry, it is apparent that the offender damaged an internal laundry door by some unknown means. The damage, which is depicted in the agreed facts, appears to be relatively minor; involving some scratching into the internal door. One of the victims yelled out from his bedroom and, in response, heard the offender yelling. He heard banging and closed the bedroom door again and decided not to leave, in fear. The two victims, thereafter, got dressed and left the house through another source of exit, which was directly opposite the laundry, from where the noises could be heard. They went next door to their neighbours and the police were called.

It is apparent on the agreed facts that, at some point, the offender exited the laundry through the external door and returned to the outside of the house. Police subsequently attended and saw the offender in the front yard. He crouched down as he saw the police approach. Police subsequently arrested and cautioned the offender, and it was clear that there was blood on his hands. He was returned to Cooma Police Station and willingly participated in an interview.

He told police that he had been chased by some Islanders, and he was in some fear for his own safety. He had approached the house and knocked on the door, but as no one answered, he went to the side. He, again, referred to a number of Pacific Islanders, which he was concerned were coming in his direction, and it was for this reason that he broke into the home and entered the laundry. He was adamant that there were persons who were pursuing him, and he had a real fear. The offender told police that once inside the laundry he could hear people inside the house, being the people he believed were pursuing him. He felt them starting to get through the internal door, which they were banging. He was trying to hold it shut. The offender told police he was holding a whipper snipper inside the laundry, so as to be ready if they came near him. He told police that these particular persons were all still there when the police arrived and arrested him.

The agreed facts note that the police told the offender that there were, in fact, no other males at the house. The offender told police that, ‘I may had a hallucinate (as said) or something. Maybe - fuck, I don’t even want to engage with that.’ However he denied having hallucinations in the past and denied having taken any drugs. The agreed facts conclude with a comment that the police could not establish that the offender knew there were persons present inside the house when he broke the window and entered the house.”

The applicant’s circumstances leading up to the offending

  1. His Honour observed with respect to the applicant’s circumstances:

“It is fair to say that the offender has a very lengthy criminal history commencing as a juvenile. Primarily involving property, driving, and some offences of violence. It is not without significance that the last entry on the offender’s criminal history were multiple offences of break and enter for which he had been sentenced to a period of nine years, six months, with a non parole period of six years, four months. It was in respect to these offences that the offender was on parole at the time of the commission of this offence. Indeed, the offender had only been released on parole for a matter of weeks when he committed the offence for which he is to be sentenced.

The Court, on sentence, was provided with the relevant parole documents, including the pre-release report, which, whilst clearly expressing some reservations in terms of the offender’s release on parole, noted that the offender had demonstrated a positive attitude towards engaging in relevant interventions in a community to reduce his risk of recidivism. He had demonstrated a positive behaviour in custody for the previous three years, which suggested his adoption of pro-social values. It was also noted that he was likely to have some support in the community immediately upon his release. Accordingly, his release on parole was recommended.

Consistent with that recommendation, the offender was released on parole on 26 June 2023. Following the commission of this offence and his release, a breach of parole report was prepared. It was noted in that breach of parole report that the offender had been supervised in the community for 10 days prior to his re-offence. He had reported to Burwood Community Corrections for his initial interview and, indeed, displayed a positive attitude towards supervision. The offender had initial engagement with Drug and Alcohol Service for daily dosing; however after requesting his treatment be transferred to Liverpool Drug and Alcohol due to relocation, the offender failed to re-engage.

It was further noted that the offender had failed to provide community corrections with his Liverpool address after his relocation. It is readily apparent that the offender did not remain in the Sydney area, given that this offence was committed in Cooma. Accordingly, it was recommended that parole be revoked. This occurred shortly thereafter, and, indeed, his parole was revoked on 23 August 2023 to the date of his arrest on 5 July 2023. It is important to acknowledge that the only basis upon which parole was revoked was for the commission of this offence.”

The applicant’s upbringing and mental state

  1. His Honour observed, with respect to the applicant’s background:

“ … the offender provided a history of persistent deprivation, abuse, and uncertainty. This was in the context of being raised in the greater south-western area of Sydney. Both parents were opiate dependent and used a range of other substances. Sadly, he observed adults injecting drugs from as early as he can remember. His father was violent, he was a career criminal, and the offender recalled frequent violence, involving the police at times. His care was intermittent at home, with unreliable meals, and a need for the children to fend for themselves, even to the extent of stealing coins from their parents to buy food.

When he was aged 10, his father was remanded for a significant custodial sentence involving armed robbery. His mother established a relationship with his father’s co-offender, who then sexually abused the offender and his younger brother. He described symptoms of attention deficit hyperactivity disorder, commonly known as ADHD. The psychologist noted that the offender appeared to lack insight to fully appraise the scope of his difficulties as a child. His father had introduced him to serious crime at a relatively young age, and clearly showed no regard for his wellbeing.

It is hardly surprising, in those circumstances, that the offender told the psychologist that his education and other academic history was reasonably poor. He left school at a relatively young age, and having only completed a number of years of secondary school. There was a negligible employment history, and this, again, is hardly surprising, given the many years on-and-off that the offender has spent in custody. However, he did express a desire to work upon his release.”

  1. Perhaps unsurprisingly given this background, the applicant engaged in the abuse of drugs commencing in his teenage years, with the need to obtain the means to support his drug habit motivating the vast majority of his offences. The Crown submissions in the Court below noted that the applicant had, at time of sentence, spent approximately 17 years in custody since his first sentence of imprisonment as an adult in 2001. That constitutes substantially more time in custody than in the community, with the result that, as it was put by the Crown prosecutor, institutionalisation was no longer a risk, but a fact.

  2. Before the Court were two reports of Dr Paul Pusey, clinical and forensic psychologist dated 21 April 2024 and 2 May 2024; and a sentencing assessment report of Mr Graham McLeay, community corrections officer, dated 5 April 2024. Also tendered were reports of Dr Patrick Sheehan, forensic psychologist, dated 22 November 2017 and of Dr Sathish Dayalan, forensic psychiatrist, dated 12 February 2018, which had been tendered in the sentence proceedings for the earlier offences.

  3. The applicant was interviewed by Dr Pusey over audio-visual link. Dr Pusey had available to him the reports of Drs Dayalan and Sheehan. He reported that the applicant expressed considerable remorse and regret in relation to his offending and had articulated his belief that there was a relationship between his offending and his mental state. The applicant disclosed that at the time of offending he was “already on edge … missing [his] dose … fresh out of jail …” and that “the whole thing was stressing [him] out and making [him] anxious.” Dr Pusey opined that the applicant’s “inability to remain compliant with his medication” may have caused him to experience “breakthrough symptoms of an underlying psychotic illness” but noted that further assessment was necessary to verify this hypothesis. While Dr Pusey regarded the hypothesis as a “reasonable one given [the applicant’s] reported psychiatric history”, this did not provide a sufficient basis for his Honour to find the applicant was suffering a psychotic illness.

  4. Dr Pusey diagnosed the applicant with a persistent depressive disorder, and gave a differential diagnosis of an adjustment disorder with mixed anxiety and depressed mood. Dr Pusey also contemplated the prospect of a diagnosis of post-traumatic stress disorder but determined that further information was required to confirm this diagnosis.

  5. The sentencing assessment report prepared by Mr McLeay noted that Corrective Services’ records confirmed that the applicant suffers from depression and anxiety and was being treated in custody for those conditions. The report stated that the applicant had demonstrated insight into his offending and expressed remorse, as well as a willingness to undertake programs and interventions to address his mental health and substance misuse problems. He could identify the seriousness of his offending and the stress it would have caused to the victims. The report noted that previous supervision of the applicant had centred on mental health, polysubstance abuse, violence, and finances. It stated that the applicant had been assessed as having a high risk of reoffending and made recommendations as to any future supervision plan.

Ground 1 – The sentencing judge erred in his approach to the length of the sentence imposed on the applicant by failing to consider principles of totality in the length, structure and dating of the sentence.

  1. At the hearing of this matter, the applicant submitted that his complaint on this ground could be seen as subsumed by the broader complaint in ground 2, that the sentence was manifestly excessive. Given this, and my view that ground 2 is established, I will deal with this ground relatively briefly.

  2. The applicant’s complaint under this ground has its foundation in the fact that the applicant was, at the time he was sentenced, serving the balance of parole with respect to a lengthy sentence previously imposed upon him. As noted above that sentence was one of 9 years and 6 months with a non-parole period of 6 years and 4 months, dating from 27 February 2017. The applicant was released to parole at the expiry of the non-parole period on 26 June 2023. The present offence was committed on 5 July 2023, and thus just nine days after the applicant’s release. The applicant was arrested on the day of the offence and remained in custody from that time. His parole was revoked effective from that day.

  3. The sentence imposed, as noted above, was one of 2 years and 3 months with a non-parole period of 1 year and 5 months, commencing on 1 January 2024. The sentence was thus ordered to commence five days short of 6 months after the applicant’s return to custody. As a result the applicant served almost 6 months of his balance of parole before he started concurrently serving the present sentence.

  4. The applicant complains that his Honour failed to consider principles of totality in setting the non-parole period and the commencement date of the sentence. He makes particular complaint as to the proportions between the periods of mandatory custody and the period during which the applicant may be released to parole having regard to the composite sentence resulting from the earlier sentence and that imposed by the sentencing judge.

  5. In sentencing for the present offence his Honour was required to set an appropriate term of imprisonment having regard to the particular case and the purposes of sentencing. Given the length of the parole period with respect to the earlier sentence, and the limit on any sentence to be imposed for the present matter, having regard to its relatively low level of objective seriousness, any sentence imposed for the new offence was necessarily one that would be subsumed within the parole period of the earlier sentence. As a result, it was inevitable that the non-parole period with respect to the new sentence would impact the ratio between the total period of mandatory custody (including the time the applicant was in custody bail refused and thus not eligible for release) and the period or periods during which the applicant was or would be eligible for release on parole.

  6. His Honour found special circumstance for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) allowing a non-parole period set at less than three-quarters of the total term. While it is commonplace when sentencing for multiple offences to reduce the non-parole period of the sentence to be served last in order to achieve an appropriate ratio between the non-parole period and the total sentence, here, where the applicant was being sentenced many years after the earlier sentence was imposed, and with respect to entirely separate offending, it was open to the judge to set a non-parole period which reflected his view of the minimum period the applicant should be required to serve as called for by the crime: Power v The Queen (1973) 131 CLR 623 at 628; [1974] HCA 26; Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [55].

  7. In addition to determining the sentence for the offence, his Honour was required to determine the date on which the sentence was to commence. In setting the commencement date, it can be accepted that his Honour was required to have regard to the interplay between the earlier sentence and that to be imposed for the present offence: R v Todd(1982) 2 NSWLR 517 at 520B, Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, at [27]. There is, however, no basis to conclude that his Honour did not appreciate the impact of the sentence he was imposing on the applicant’s overall custodial situation. The earlier sentence was a significant focus in the sentence proceedings for the present offence, the Crown tender including the reasons of Townsden DCJ for that sentence. The applicant did not point to anything in Fitzsimmons DCJ’s reasons suggesting specific error. I am not of the view that there was any error of the kind argued by the applicant.

  8. Whilst I do not accept the sentencing judge erred in the manner contended by the applicant, my view that ground 2 is made out necessitates the re-exercise of the sentencing discretion. For the reasons discussed below, in so doing, I would not adopt the commencement date specified by the sentencing judge. Ground 1, however, should be dismissed.

Ground 2 – The sentence imposed was manifestly excessive and a different sentence is warranted at law.

  1. The matter presented as a somewhat curious sentencing exercise. The applicant had an appalling record including for offences of breaking into people’s houses and committing serious offences and for which he had previously received lengthy terms of imprisonment. The matter before the Court, however, had a different quality in that it was not committed for the purposes of an armed robbery, unlike the more serious of the earlier matters, or even for an offence of stealing. Those offences were committed, inevitably, for the purposes obtaining funds to support the applicant’s drug habit.

  2. It is convenient to consider more closely the offence provision. The offence was one against s 112(1) of the Crimes Act. The maximum penalty for an offence against s 112(1) is imprisonment for 14 years. There is no standard non-parole period. While the maximum penalty must be looked to for guidance in any sentencing exercise, it is one of many factors that will bear on the exercise of the sentencing discretion. Its relevance is understood by an appreciation that it is the penalty reserved for the worst case, as that term is explained in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) observed (at [31]) that “careful attention to the maximum penalties will almost always be required”, while at the same time acknowledging that a maximum penalty may have little relevance in a given case, either because it was fixed at a very high level in the 19th century or because, while more recently set, it was set at a high catch-all level (at [30], quoting from Stockdale and Devlin, Sentencing, (1987), pars 1.16-1.18). It is, consequently “wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted”: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27].

  3. In the context of s 112(1) of the Crimes Act, having regard to the range of circumstances in which the offence can be committed, in particular the various serious indictable offences which may complete the offence, the maximum penalty is to be regarded as, if not a “catch-all”, then certainly one which is apt to cater to a very wide range of potential criminal conduct. In the circumstances of the present case, the maximum penalty had little relevance, for the reasons discussed below.

  4. The present offence was constituted by the applicant breaking, then entering the premises, and committing a serious indictable offence within those premises. A serious indictable offence is defined as an offence punishable by imprisonment for life or a period of greater than or equal to 5 years. The offence of intentionally or recklessly damaging property committed by the applicant within the premises carries a maximum penalty of 5 years: Crimes Act, s 195. That offence is thus a “serious indictable offence” so as to sustain the third element of the offence against s 112 of the Crimes Act.

  5. In the vast majority of cases the breaking and entering is committed with a pre-existing intention to commit the particular indictable offence ultimately making up the final element of the charge. Typically, the offences committed by persons breaking into premises are for the purposes of stealing, or committing offences of assault or intimidation. The present offence was unusual in that it was no part of the prosecution case that the applicant intended to commit an indictable offence within the premises at the time he broke the window and entered the property. It seems that, having entered the laundry, the applicant, for reasons unknown, chose to damage the laundry door, scratching it with an unknown implement. The damage is depicted in a photograph reproduced in the statement of facts tendered on sentence. While not a particularly clear image, the damage appears to be a number of lines forming a geometrical pattern, the area damage being perhaps 10 cm². No indication was given as to the cost of repair, although it would appear that some sanding, perhaps a small amount of filler, and a coat of paint would rectify the door. The indictable offence committed within the premises can properly be described as minor.

  6. By far the most significant aspect of the crime was the breaking and entering. This involved damage to the laundry window and the unauthorised entry of the applicant to the private home of the occupants, in the course of which the applicant’s blood was deposited on a wall and on the floor. The occupants were present and woken from their sleep as a result of the actions of the applicant. They were no doubt terrified by the presence of an intruder in their home. While presence of the occupants is relevant, it is to be borne in mind that the applicant was not charged with, and was consequently not to be sentenced for, an aggravated form of the offence against s 112(2) of the Crimes Act. Circumstances of aggravation for the purposes of that offence are defined to include circumstances where the offender “knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed”: Crimes Act, s 105A(1)(f). Section 105(2A), provides that where there was a person or persons present in the premises, the offender “is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place”. These provisions consequently required that the applicant be sentenced on the basis that he had reasonable grounds to believe there were no persons within the premises: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. Despite this, as I have said, the fact that persons were present, and were frightened by what occurred, remains relevant.

  7. With respect to the level of intrusion, the applicant did not go beyond the laundry area of the premises. He ultimately left the premises through the door leading to the exterior of the house. The result was the invasion of the occupants’ privacy and personal space was limited.

  8. While the sentencing judge was not able to make any finding as to whether the applicant’s belief that he was being pursued was the result of psychosis or not, the inability to make such a finding did not ultimately have a significant bearing on his Honour’s finding as to the circumstances in which the offence was committed. His Honour found that the offence was “entirely spontaneous and unplanned” and committed in circumstances where the applicant was “in effect, seeking a form of shelter, having, on his account, been abandoned by the person whom he accompanied to the area”.

  9. Given his Honour’s finding as to the events precipitating the breaking and entering, it follows that the internal damage to the property was quite unconnected with the purpose of the breaking and entering. As I have observed the internal damage was relatively minor. Had it not been for this damage (the purpose of which is unknown) the applicant would have been guilty only of offences of damaging property and trespass. The first of these offences carries, as noted above, a maximum penalty of imprisonment for 5 years. The second carries only a fine: Inclosed Lands Protection Act 1901 (NSW), s 4. In the circumstances of this case, where the serious indictable offence committed within the premises added little to the overall criminality, the real criminality is, in my view, more properly understood in this context.

  10. It was open to the sentencing judge, in the exercise of his discretion, to place weight on considerations of punishment, retribution, denunciation, deterrence and the protection of the community. Even so, whatever weight might be given to these factors, the exercise of the sentencing discretion is limited by the requirement of proportionality between the objective seriousness of the offending and the sentence imposed. The principle of proportionality is “one of the pillars of the law of sentencing, giving effect to a fundamental value underpinning the law that the punishment must fit the crime”: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; [1988] HCA 14; see also Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33; DS v R; DM v R (2022) NSWLR 82; [2022] NSWCCA 156 at [68].

  11. Had the applicant not had a criminal record for similar offending it is likely that a gaol sentence would not have been imposed: Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), s 5. Accepting that, as a result of the applicant’s record, and the consequent weight to be given to factors such as specific deterrence, a sentence of imprisonment was required I am of the view that the starting point of imprisonment for 3 years is disproportionate to the objective gravity of the offending. The sentence is, in my view, manifestly excessive.

Resentence

  1. Given my conclusion above it is necessary to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

The length of the sentence

  1. Having regard to the damage to the property, both to the window and the laundry door, and the entry into the occupants’ home (while they were present), together with the applicant’s personal circumstances, including his lengthy criminal history and the commission of the offence in breach of conditional liberty, I am of the view that no sentence other than imprisonment is warranted: CSPA, s 5.

  2. I have regard to the applicant’s shocking background of deprivation. While the applicant is now 42 years of age, and has been before the courts on many occasions, that background remains relevant and is to be given full weight: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 23. That is not to say that the impact of that background is not, in this case, to an extent counterbalanced by the need for specific deterrence and the protection of the community. I would, however, ameliorate the weight to be given to retribution and denunciation.

  3. I would, but for the applicant’s plea of guilty, have imposed a sentence of imprisonment for 1 year and 10 months. Applying a discount of 25 percent for the applicant’s early plea of guilty, the appropriate sentence is, in my view, one of 15 months. In the circumstances, having regard to the commencement date I propose, that sentence will have expired. There is in these circumstances, no utility in imposing the sentence other than as a fixed term.

The commencement date

  1. Regrettably, it is not uncommon to be sentencing an offender for an offence the commission of which also constitutes a breach of a condition of parole. Typically, that parole is revoked as a result of (at least) the further offending with the result that the offender’s time in custody from the time of arrest is not referable solely to the matters to be sentenced, but is also attributable to the balance of parole then being served. When sentencing in such a situation, subject to the existence of some other non-parole period, a sentencing judge is restricted to imposing the sentence so as to commence on a date no later than the date of sentence: CSPA, s 47; R v Gray [2018] NSWCCA 241 at [66]; Browne v R [2023] NSWCCA 218 at [46]. The determination of the commencement date involves the exercise of discretion, the range of which is generally fixed by the date of arrest at one end, and the date of sentence at the other.

  2. In Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 Simpson J (as her Honour then was) considered a number of earlier authorities in this Court in relation to the determination of the commencement of a sentence where an offender is also serving a balance of parole for previous offences. Some of those earlier authorities suggested that, where an offender’s parole was revoked solely as a result of the further offending, a failure to fully backdate the new sentence involves impermissible double punishment. Other authorities suggested that an offender is entitled to a backdate only for presentence custody solely referable to the offence being sentenced, and thus not including any time spent in custody serving the balance of a parole period. Her Honour found that, between these two extremes, the prevailing view was that the matter is discretionary. Her Honour said (at [22]-[24]):

“22   I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.

23   It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.

24   However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.”

  1. Her Honour’s reasoning is a reflection of the fact that a single event can have two separate legal consequences.  Thus, the revocation of parole and the imposition of a further sentence as a result of the commission of a further offence does not necessarily constitute impermissible double punishment.  An offender’s conditional liberty in relation to the earlier offending ceases consequent on the failure to comply with a relevant condition. Parole is not revoked as a punishment.  The punishment is set by the sentencing court. The State Parole Authority of New South Wales makes decisions with respect to the release of an offender on parole having regard to the safety of the community: Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”, s 135). While the considerations to be applied to decisions of the State Parole Authority to revoke parole pursuant to ss 170A and 171 of the CASA are not made explicit by the Act, the same overriding purpose should be assumed to apply.

  2. In the present case particular considerations arise as a result of the length of the proposed sentence, the length of the earlier sentence and the legislative provisions. I have observed above, the latest date from which the sentence could commence was the date of sentence. It has been observed that this can have arbitrary results, given the different factors, unconnected with the offending or the offender, which might impact on the date on which sentence is passed. Where there has been some delay, fairness to the offender may require a sentencing judge to “notionally determine at what point the respondent could reasonably be expected to have been sentenced, having regard to the date of his plea, and direct the sentence commence no later than that date”: R v Gray at [66] per Bathurst CJ; see also White v R [2016] NSWCCA 190; Browne v R.

  3. The applicant was arrested on the date of the offence, 5 July 2023 and committed for sentence on 7 February 2024. It is not clear what led to the delay in the applicant’s committal for sentence, but it was most likely primarily the result of the ordinary course of events under the Early Appropriate Guilty Pleas (EAGP) scheme (see Part 2, Division 2 of the Criminal Procedure Act 1986 (NSW)). However, having regard to the nature of the offending and the potential availability of disposition in the Local Court (including my view that the appropriate sentence is one which could have been imposed in the Local Court [1] ), it is relevant to observe that, had the applicant been dealt with in the Local Court it is likely the matter would have been dealt with far more quickly. Other considerations, discussed below, are, however, more significant in the present case.

    1. See CSPA, s 58(1); neither the sentence imposed below, nor that proposed by me, is to be “served consecutively … with” the earlier sentence.

  4. Commonly, when sentencing for a further offence committed during a parole period, it will be the case that the further offending is of a seriousness requiring a substantial sentence which will inevitably extend beyond the balance of parole on the earlier sentence. In such cases, backdating to the date of arrest will have the effect of the new sentence eclipsing what may be a significant period of parole, with a consequent unwarranted level of concurrency between the two sentences. That is not the present case. Here, given the length of the extant parole period, and the nature of the further offence, the new sentence was (and will be on resentence) subsumed within the balance of parole.

  5. The length of the parole period of the earlier sentence is such that no matter when the new sentence is specified to commence (within the statutory limitations), it will be served entirely concurrently with the earlier sentence. It is a matter for the State Parole Authority to determine whether, and what part of, the parole period of the earlier sentence during which the applicant is not serving a non-parole period for another offence, should be properly served in the community, or otherwise, in custody. As noted above, this decision is not concerned with punishment, the punishment for the earlier offences having been determined by the court that passed the sentence. Dating the sentence from a point after the revocation of parole has the effect of adding to the punishment suffered by the offender as result of the present offence. That is, it has the effect of taking the decision as to whether the parole period for the earlier sentence should be served in custody or on parole out of the State Parole Authority’s hands for a period equal to the period between the date of revocation and the date on which the new sentence has been ordered to commence.

  6. In arriving at my conclusion above, I have been mindful of the general considerations which apply when imposing a further sentence to be served concurrently with an earlier sentence. This Court (Spigelman CJ, Whealy and Howie JJ) in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13] said:

“In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.”

  1. That is of course not every case. The Court in R v MMK went on to observe (at [14]):

“There will be cases, of which, in [the sentencing judge’s] opinion, this was one, where the criminality of offences committed by an offender is so great and the punishment imposed for those sentences is justifiably so harsh in order to reflect that criminality that there is little, or no, room for a further penalty to be imposed upon the offender to achieve an appropriate purpose of punishment in the circumstances of the particular case. In the present case those circumstances included the relatively low criminality involved in the offence on the indictment …”

  1. In explaining the particular result in that case, their Honours said (at [15]):

“… members of the community, without an understanding of all the facts and the well-established sentencing principles to be applied, might also be concerned that the result appears to inadequately express public attitudes to the offence and the offender. But the different purposes of punishment will sometimes pull in different directions. Not one of them can be considered in isolation. The justifiable limitations placed upon the promotion of those sometimes competing purposes cannot be disregarded in an appropriate case in order to address public or private desires for retribution notwithstanding the importance of that factor in the determination of appropriate punishment.”

  1. To be clear, whether the present case is, or is not, one in which the earlier sentence “left no room for a further penalty” (R v MMK at [14]) as a result of the application of common law sentencing principles, including totality, is not the issue. Rather, as discussed above, the legislative provisions operate in the circumstances here to require that the new sentence be served entirely concurrently with the parole period of the earlier sentence. As I have explained, it should be left to the Parole Authority to determine what part of that parole period (during which the applicant is not serving a mandatory custodial period for the present offence) should be served in the community. The sentence should date from the date of the applicant’s arrest, 5 July 2023.

Proposed orders

  1. I propose the following orders:

  1. Grant leave to appeal;

  2. Allow the appeal;

  3. Quash the sentence imposed by Fitzsimmons SC DCJ on the applicant in the District Court on 9 May 2024. In lieu thereof, sentence the applicant to imprisonment for a fixed term of 15 months, commencing on 5 July 2023 and expiring on 4 October 2024.

  1. The earliest date on which the applicant became eligible to be released was 4 October 2024. I note that the applicant remains in custody as a result of the sentence imposed on him in the District Court on 25 May 2018. Any release to parole with respect to that sentence is a matter for the State Parole Authority.

  2. FAULKNER J: For the reasons that his Honour gives, I agree with the orders proposed by Dhanji J.

**********

Endnote

Amendments

29 October 2024 - Corrected formatting issue

Decision last updated: 29 October 2024

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Most Recent Citation
R v Missingham [2024] NSWDC 512
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R v Missingham [2024] NSWDC 512
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Statutory Material Cited

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Browne v The King [2023] NSWCCA 218
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [No 2] [2013] HCA 23
Bugmy v The Queen [2013] HCA 37