Merheb v R

[2021] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Merheb v R [2021] NSWCCA 224

Hearing dates:

23 June 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Before:

Payne JA at [1];
Price J at [2];
Wright J at [3]

Decision:

1. The applicant is refused leave to add proposed ground 3 as a ground of appeal.

2. The applicant has leave to appeal on grounds 1 and 2.

3. The appeal is dismissed.

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether failure to reflect special circumstances having regard to overall time to be spend in custody — whether manifest excess — application of comparable cases and sentencing statistics — no error established

CRIME — appeals — appeal against sentence — application for leave to add ground of appeal raising error by sentencing for an offence to which the applicant did not plead guilty— where relevant provision merely misidentified on one occasion and no other error — leave to add ground of appeal refused

Legislation Cited:

Crimes Act 1900 (NSW), ss 112, 113, 117, 192E

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

A103 v R [2015] NSWCCA 210

AM v R [2020] NSWCCA 101

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

CM v R [2020] NSWCCA 136

Donn v R [2010] NSWCCA 20

Dudgeon v R [2014] NSWCCA 301

Flick v R [2012] NSWCCA 170

GP v R [2017] NSWCCA 200

Jackson v R [2021] NSWCCA 15

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Langbein v R [2013] NSWCCA 88

Lonsdale v R [2020] NSWCCA 267

Moodie v R [2020] NSWCCA 160

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

R v Andrews [2005] NSWCCA 199

R v Byrne [2005] NSWCCA 141

R v Merheb [2020] NSWDC 385

R v Mougin [2005] NSWCCA 146

Rizk v R [2020] NSWCCA 291

Strickland v R; O’Connor v R [2011] NSWCCA 166

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Matthew Thomas Merheb (Applicant)
Regina (Respondent)

Representation:

Counsel:
R Rajalingam (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/00350968

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 385

Date of Decision:

24 June 2020

Before:

Colefax SC DCJ

File Number(s):

2019/00350968

Judgment

1. PAYNE JA: I agree with Wright J.

2. PRICE J: I agree with Wright J.

3. WRIGHT J: The applicant, Mr Matthew Merheb, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed on him by Colefax SC DCJ in the District Court at Campbelltown on 24 June 2020.

Background

4. The applicant pleaded guilty in the Local Court to two charges: aggravated break and enter and commit serious indictable offence; and, attempted break and enter with intention to commit a serious indictable offence. On 15 April 2020, he was committed for sentence to the District Court.

5. The sentence proceedings were heard on 24 June 2020 and the applicant asked that two additional charges on a Form 1 be taken into account. On that same day, Colefax SC DCJ delivered ex tempore remarks on sentence and imposed an aggregate sentence of imprisonment for 5 years and 6 months, commencing on 24 June 2020 and expiring on 23 December 2025, with a non-parole period of 4 years expiring on 23 June 2024.

6. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the learned sentencing judge recorded the sentences he would have imposed for each offence, had separate sentences been imposed instead of an aggregate sentence, as follows:

Count (Sequence)	Offence	Indicative sentence
1 (H…192/1)	Aggravated break and enter and commit serious indictable offence, larceny, knowing persons present, contrary to s 112(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is 20 years’ imprisonment and the standard non-parole period is 5 years. Form 1 (H…192/2): Dishonestly obtain financial advantage contrary to s 192E(1)(b) of the Crimes Act for which the maximum penalty is 10 years’ imprisonment.	4 years Non-parole period: 3 years 7 months
2 (H…192/3)	Attempted break and enter with intent to commit serious indictable offence, larceny, contrary to s 113(1) of the Crimes Act for which the maximum penalty is 10 years’ imprisonment. Form 1 (H…192/4): Larceny, value less than $2,000, contrary to s 117 of the Crimes Act for which the maximum penalty is 5 years’ imprisonment.	2 years 3 months

Grounds of appeal

7. The applicant’s notice of application for leave to appeal identified two grounds of appeal as follows:

“1. The sentencing judge erred in failing to properly reflect a finding of special circumstances in the sentence imposed.

2. The sentence is manifestly excessive.”

8. At the hearing, the applicant sought leave to rely on a further ground of appeal expressed in the following terms:

“3. The sentencing judge erred in sentencing the Applicant for an offence to which he had not pleaded guilty.”

9. The Crown objected to leave being granted:

“but only on the merits and on jurisdiction, so there’s no objection to arguing it as if it had been allowed and then the Court making a decision subject to those matters that [the Crown] wanted to raise … [namely] a jurisdictional error about whether or not it’s a [slip rule] matter”. [1]

1. Tcpt, 23 June 2021, p 2(34-37).

10. In those circumstances, the Court proceeded to hear argument on all three grounds of appeal and reserved its decision whether leave to rely on the third ground should be granted.

11. In light of these grounds of appeal, it is necessary to review the sentencing judge’s remarks on sentence in some detail.

Sentencing judge’s remarks

12. Colefax SC DCJ commenced his remarks on sentence, R v Merheb [2020] NSWDC 385, by identifying the two offences for which the applicant was being sentenced and the relevant Form 1 offences. His Honour also stated the maximum penalty in respect of each of the offences in counts 1 and 2 and the standard non-parole period for the offence in count 1.

13. It can be noted that in referring to the offence in count 2 (sequence 3 on CAN H…192) his Honour said that the offence involved contravention of s 113(2) of the Crimes Act and that the relevant maximum penalty was 10 years’ imprisonment. This was partly incorrect and partly correct. The offence to which the applicant pleaded guilty, and the offence referred to on the indictment and in the court attendance notice, was an offence contrary to s 113(1), not s 113(2), of the Crimes Act. The maximum penalty under s 113(1) is 10 years’ imprisonment, whereas the maximum penalty under s 113(2) is 14 years’ imprisonment. Thus, although the learned sentencing judge identified the wrong provision, he was correct in identifying the applicable maximum penalty for the offence in respect of which the applicant pleaded guilty. It appears that the error in the identification of the relevant provision was caused by the Crown Sentence Summary which stated in relation to count 2 that the relevant “Section and Act” were “s 113(2) Crimes Act 1900” and the maximum penalty was “10 years”.

14. The sentencing judge’s findings as to the facts of the offending were based on the agreed statement of facts and are summarised in the paragraphs which follow.

15. In October 2019, the applicant was on parole for the offence of supplying prohibited drugs on an ongoing basis.

16. In the early morning of 25 October 2019, the applicant propped open the garage door of residential premises, entered the premises and took a work laptop computer, two work iPhones, sets of house keys and car keys and a lady’s wallet containing credit cards. He did so knowing persons were in the premises. The learned sentencing judge assessed the objective seriousness of the offence as “somewhere equidistant between the middle and the bottom of the range” and noted that the offence on the Form 1 would result in a slight increase in the sentence for that first principal offence.

17. In the early hours of 28 October 2019, the applicant attempted to enter different residential premises but was unsuccessful. He left open the gate of the backyard allowing a pet dog to escape. The applicant stole a wallet, but it was unclear from the agreed facts whether this was from within the house or from within a motor vehicle associated with the house. Colefax SC DCJ said that the objective seriousness of this offence was also “equidistant between the middle and the bottom of the range for an offence of its kind”. His Honour concluded that, having regard to the matter on the Form 1, there would be no meaningful increase in the sentence for that second principal offence.

18. The applicant left his fingerprints and DNA at the scene of the offence committed on 28 October 2019.

19. On 7 November 2019, the applicant was arrested.

20. The sentencing judge noted that the applicant’s parole was revoked not only as a result of committing these offences but also as a result of his failing to report to Community Corrections, failing to comply with reasonable directions from a Community Corrections Officer and failing to participate in programs, treatment and interventions as required.

21. Next, Colefax SC DCJ observed that the applicant was 41 years old and had been committing offences as an adult since 1997 on a regular basis. His Honour said that, although the applicant had committed offences as a juvenile, they were not to be taken into account for the purposes of sentencing on this occasion. It was noted that many of the offences committed while an adult were break and enter or similar types of offences. There were also some offences of violence, receiving stolen goods, being carried in stolen cars, driving whilst disqualified and numerous drug offences.

22. His Honour specifically recorded that the Crown did not submit that the criminal history was an additional aggravating factor. His Honour noted, however, that there was one significant aggravating factor, namely that for each of the principal offences the applicant was on parole at the time of the offending.

23. The sentencing judge observed that the applicant did not give evidence but advanced his case as to his subjective circumstances through a report of a psychologist, Mr Borkowski. These circumstances were found to include what is set out in the paragraphs that follow.

24. The applicant was born in Campbelltown and his parents divorced when he was six years old. His mother was a long-term alcoholic and he remained with his father who raised him together with his brothers and sisters. There was no suggestion of inappropriate conduct, after his father remarried, by the stepmother towards the applicant.

25. The sentencing judge accepted that the applicant had been sexually molested and that such abuse had some role to play in his going off the rails in his early teens, using cannabis from the age of 14, speed at 15 and heroin at 16. It was also noted that in about the last five years prior to sentence the applicant had started using ice. Although the applicant had not engaged in any intensive drug rehabilitation program, his Honour noted that the applicant had acknowledged to Mr Borkowski his need to engage in treatment and expressed his willingness to do so. The sentencing judge observed, however, that the applicant had failed to engage with Corrective Services Officers while on parole to address his drug issues. As a result, his Honour gave little weight to what the applicant told Mr Borkowski in this regard.

26. As to Mr Borkowski’s report that the applicant felt unable to cope at around the time of the offending, relapsed into ice use, was homeless and had no money, the sentencing judge questioned why these issues were not raised with his parole officers.

27. His Honour noted that after leaving school at the end of Year 10, the applicant did not engage in regular employment but there was a period when he was in his 20s when he “had things under control” working as a concreter and a forklift driver, being in a stable relationship and having two children. There is a third child in the family but the applicant was of the opinion that he was not the father but said he still loved the child as though he was the father. The sentencing judge recorded that, after his 20s, however, the applicant’s life fell apart and relationship failures led to him taking up drugs again.

28. The sentencing judge expressed some scepticism concerning the applicant’s expressions of remorse to the psychologist and noted that he did not take the opportunity to express his remorse in the witness box.

29. His Honour also had regard to the punishment details while the applicant had been in custody, which indicated that there had been numerous incidents of misconduct.

30. His Honour found the applicant’s prospects for rehabilitation were extremely guarded.

31. The applicant was held to be entitled to a discount of 25% for the utilitarian value of his early pleas of guilty.

32. The sentencing judge then indicated the sentences he would have imposed if he had not imposed an aggregate sentence. In this regard, it was said, at [35] and [36]:

“In relation to the first principal offence and taking into account the matter on the Form 1, except for your plea of guilty, the indicative sentence would have been 6 years and 6 months imprisonment. After the discount [of 25%], the indicative sentence is 4 years imprisonment and the indicative non-parole period is 3 years and 7 months.

In relation to the second principal offence and taking into account the matter on the Form 1 except for your plea of guilty the indicative sentence would have been three years imprisonment. After the discount the indicative sentence is two years and three months.”

33. It can be observed at this point that the indicative sentence in relation to the first principal offence involved an error, which appears to be in the applicant’s favour. If the starting point for the indicative sentence was 6 years and 6 months, as his Honour said, this would yield, after applying a discount of 25% for the early guilty plea, a sentence of 4 years and 10½ months, not 4 years as set out at [35].

34. Colefax SC DCJ next referred to the submission made on the applicant’s behalf that a finding of special circumstances should be made, and continued, at [37]:

“In this regard, I shall make a very slight adjustment.”

35. As to the date of commencement of the sentence, the sentencing judge noted that the applicant submitted that it should be the date of his arrest, whereas the Crown submitted that if that were done there would in effect be no balance of parole to be served by the applicant. His Honour said that he accepted the Crown’s submission and continued, at [38]:

“I have in fact given very serious consideration to setting the start date at 21 August 2020 (when the balance of parole expires) but, by having regard to totality, the start date will in fact be today [24 June 2020].”

36. The aggregate sentence set out above was then imposed.

Ground 1 – Failure properly to reflect a finding of special circumstances in the overall effective sentence

Submissions

37. Ground 1 asserted a failure by the sentencing judge to reflect a finding of special circumstances in the sentence imposed.

38. In relation to the first ground of appeal, the applicant noted that it had been submitted before Colefax SC DCJ that there were special circumstances due to the applicant’s need for treatment, rehabilitation and supervision to overcome drug addiction, the risk of institutionalisation and the effect of accumulation of sentences, and that the Crown had accepted that such a finding was open. It was also noted that the sentencing judge ultimately said that in regard to special circumstances he would make “a very slight adjustment” and it was submitted that the structure of the aggregate sentence imposed “reflected a finding of special circumstances in the order of 72 per cent”.

39. The substance of the error was said to be that when the aggregate sentence was accumulated on the previous sentence for the ongoing drug supply offence, which the applicant was required to serve because of the revocation of his parole, the effective ratio of the time in custody to the overall effective sentence was 75.5%, that is, more than the “standard ratio”.

40. It was submitted that it was unclear whether the sentencing judge had directed his attention to this issue and that, if it had been intended to make a modest finding of special circumstances, this should have been reflected in the overall sentence but it was not. On this basis it was submitted that the sentencing judge had fallen into error and that this Court should intervene to correct the error. It was also contended that an appropriate adjustment, even if only of three months, would not be mere tinkering.

41. In reply, the applicant also drew attention to a number of recent authorities including AM v R [2020] NSWCCA 101 and Rizk v R [2020] NSWCCA 291. The applicant submitted, in substance, that where the sentencing judge’s comments did not make clear that the issue of accumulation of the sentence with a previous sentence had been considered and the resulting ratio of the overall non-parole period to the overall sentence was intended, error was established.

42. The Crown submitted that the aggregate sentence and non-parole period, the degree of accumulation with the prior sentence and the resulting overall sentence and non-parole period were not accidental or erroneous. It was contended that his Honour had considered the applicant’s submissions on special circumstances and largely rejected them for reasons explained during oral submissions on sentence. His Honour was nonetheless prepared to make “a very slight adjustment” and deliberately made the aggregate sentence partially concurrent with the balance of the terms for the previous sentence for ongoing drug supply.

43. It was submitted that this demonstrated that the sentencing judge intended that the finding of special circumstances should operate to maintain the statutory ratio between the overall sentence and the overall non-parole period when looked at in its totality. It was said, in effect, that although the statutory ratio was exceeded to a very slight degree in relation to the overall sentence, there was no error in the circumstances. Finally, the Crown noted that there was no absolute rule that an accumulated non-parole period must not exceed 75% of the total sentence, although it was preferable if reasons for doing so were given, relying on GP v R [2017] NSWCCA 200.

Consideration

44. The setting of non-parole periods and the significance of findings of special circumstances are dealt with in s 44 of the Sentencing Procedure Act. That section relevantly provides:

(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

...

45. Section 44(2B) effectively establishes that when imposing an aggregate sentence for two or more offences, as in the present case, the non-parole period must not be less than 75% of the head sentence unless the court is satisfied that there are “special circumstances”. (The ratio of 75% is another way of expressing that the balance of the term should not exceed one-third of the non-parole period.)

46. The applicant’s contention under ground 1 was not that the sentencing judge had failed to comply with requirements of s 44(2B) in relation to the aggregate sentence in this case. It was accepted by the applicant that Colefax SC DCJ found that special circumstances justified “a very slight adjustment” to the statutory ratio and that this was reflected in the non-parole period for the aggregate sentence, which was set at about 72.2% of sentence. The complaint was, rather, that the finding that “a very slight adjustment” was justified was not reflected in the overall period to be spent in custody as a result of the combined effect of the aggregate sentence and the revocation of parole in relation to the applicant’s previous sentence for the ongoing drug supply offence. The combined effect of the aggregate sentence and the earlier sentence was said to be that the overall period in custody was about 75.5% of the total effective sentence.

47. On its terms, s 44 of the Sentencing Procedure Act has no direct application in relation to the combined effect of a sentence and non-parole period to which the section applies and time to be spent in custody as a result of a previously imposed sentence. Notwithstanding that, it has been held that it is common to make a finding of special circumstances under s 44(2) or (2B) to ameliorate the effect of accumulating sentences that would otherwise result in the ratio of the effective non‑parole period exceeding 75% of the effective total term: GP v R [2017] NSWCCA 200 (GP) at [16]; CM v R [2020] NSWCCA 136 (CM) at [35].

48. In addition, in GP it was said, at [22]:

“Ordinarily, where a sentencing judge is accumulating sentences and the non-parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation.”

49. Where there is a finding of special circumstances but no, or no significant, adjustment of the statutory ratio of non-parole period to parole period when the combined overall effect of the relevant sentences was considered, this may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. Where it can be concluded that it was the result of inadvertence or miscalculation, error will have been established. Such a conclusion was reached, for example, in the circumstances referred to in CM at [40] where the combined effect of the sentences led to the applicant in that case being required to spend 87.5% of the “effective” term of imprisonment in custody. In that case, N Adams J concluded that the issue was not brought to the sentencing judge’s attention, or was overlooked by him, and error was established.

50. GP was another example of a sentencing judge falling into error by not adverting to the impact of accumulation on the proportion between the effective total head sentence and the effective total non-parole period. That conclusion was reached on the basis of a consideration of the proceedings on sentence and the remarks on sentence as a whole: see GP at [23] to [25]. In particular, at [24], Hamill J observed:

“No submissions were made by either counsel to assist her Honour, or to remind her, of the many cases in which it has been held that the accumulation of sentences may amount to special circumstances. In fact, neither party referred to special circumstances until her Honour raised the matter herself at the conclusion of defence counsel’s brief submissions on sentence. Even then, no reference was made to the impact of the accumulation on the proportion between the head sentence and a non-parole period.”

51. The circumstances in GP can be contrasted with those in the present case. In the applicant’s written submissions on sentence, “[a]ny accumulation of sentences” was identified as one of the factors which were said to justify a finding of special circumstances along with the need for treatment and supervision to overcome his drug addiction and the risk of institutionalisation. These factors were also all mentioned during oral submissions in relation to special circumstances and totality. During the Crown’s oral submissions on sentence, it was submitted that “there should also be some partial accumulation with the balance of parole” and it was conceded that it was open to the Court to find special circumstances. In that context during oral submissions, Colefax SC DCJ indicated that he did not regard the need for rehabilitation and supervision as a proper basis for finding special circumstances in this case since the applicant had “failed to liaise with Community Corrections, failed to follow their reasonable directions, failed to participate in any of the programs” while most recently on parole. These failures to engage with drug rehabilitation and supervision were reiterated at [27] and [28] of the remarks on sentence. Thus, it appears to me that his Honour’s finding of limited special circumstances was based, principally if not exclusively, upon the accumulation of the aggregate sentence on the previous sentence in relation to which parole was revoked for reasons extending beyond the subsequent offending.

52. That finding was given effect to in relation to the non-parole period component of the aggregate sentence. In addition, his Honour gave express consideration to totality in relation to the aggregate sentence and the effective overall sentence as a result of the revocation of the applicant’s parole. In substance, it was concluded that the consideration of totality required the aggregate sentence to commence not on the date of arrest, as submitted by the applicant, not on the date of expiration of the balance of the term of the previous sentence, as the Crown submitted, but part way through the balance of the term so that there was a degree of, but not total, concurrency.

53. In all of these circumstances, it should not be concluded that the sentencing judge in this case did not advert to the impact of accumulation on the proportion between the effective head sentence and the effective non-parole period, or that the non-parole component of the aggregate sentence was set inadvertently or as a result of miscalculation. Although the effective non-parole period exceeded 75% of the total effective sentence, it did so only by 0.5% and was the result of the sentencing judge’s consideration of totality. The non-parole period for the aggregate sentence and the ratio of the total period in custody to the effective overall sentence reflected what the sentencing judge specifically intended.

54. In my view, the present case is relevantly similar to the situation discussed in Lonsdale v R [2020] NSWCCA 267 by Beech-Jones and N Adams JJ at [66]:

“In this case, the ratio of the effective non-parole period to the effective total sentence was 76.47%. The sentencing judge considered questions of both totality and special circumstances at length. In those circumstances, we do not accept that his Honour failed to consider or advert to the very modest amount by which the accumulation of the two sentences meant that the effective non-parole period exceeded 75% of the total effective term. Otherwise, given the trivial amount by which it was exceeded in respect of the accumulated sentences, no obligation to ‘flag an intention … to do so’ was engaged.”

55. The sentencing judge has not erred in fixing the non-parole period for the aggregate sentence as contended in ground 1.

56. For these reasons, I would not uphold the first ground of appeal.

Ground 3 – Error in sentencing for an offence to which the applicant did not plead guilty

57. Since the proposed third ground of appeal alleges specific error, it is appropriate to consider that ground before turning to ground 2 which involves the contention that the sentence was manifestly excessive.

58. The applicant contended under this ground that Colefax SC DCJ sentenced him for an offence to which he did not plead guilty. This is based on his Honour’s remarks, at [4]:

“Secondly, attempted break and enter a dwelling house with intent to commit a serious indictable offence, namely, larceny (Sequence 3). This involves a contravention of s 113(2) of the Crimes Act. The maximum penalty for that offence is 10 years’ imprisonment. There is no standard non‑parole period.”

59. As explained above, this was partly incorrect and partly correct. The applicant had relevantly pleaded guilty to, and was to be sentenced for, an attempted offence contrary to s 113(1), not s 113(2), of the Crimes Act. The maximum penalty identified by the sentencing judge was, however, correct in that 10 years was the maximum penalty for s 113(1), not s 113(2).

60. This misidentification of the relevant provision arose out of a mistake in the Crown Sentence Summary tendered in the proceedings on sentence. Other documentation before the sentencing judge identified the correct provision. The relevant part of the agreed facts before his Honour, pars 11 to 28, were headed:

“Sequence 3 – Attempt Break and enter dwelling-house with intent to commit serious indictable offence, steal

Sequence 4 – Larceny (Form 1)”.

Furthermore, it was not suggested that the facts stated in those paragraphs were inconsistent with the description given in that heading, which described the relevant offence as an attempt to commit an offence contrary to s 113(1).

61. Most importantly, Colefax SC DCJ himself described the second principal offence for which he was sentencing the applicant as “attempted break and enter a dwelling house with intent to commit a serious indictable offence, namely, larceny”. This could only be a reference to an attempt to commit the offence described in s 113(1). If the sentencing judge had been acting on the basis that the applicant was being sentenced in relation to an offence contrary to s 113(2), then that description would have been inapt.

62. Apart from the one reference in the introductory part of the remarks on sentence, there was no other mention of s 113(2) in his Honour’s remarks.

63. In all the circumstances, there is no sufficient basis to conclude that the learned sentencing judge sentenced the applicant for an offence to which he did not plead guilty. The misidentification of the number of the relevant subsection of s 113 was of no significance in his Honour’s sentencing decision. It can be regarded as a slip caused by a mistake in a summary document provided to the sentencing judge where that mistake did not infect any of the other material put before the Court or any of the sentencing judge’s reasoning.

64. Accordingly, in my view, ground 3 would be bound to fail, if leave were given to add this ground and leave to appeal on such a ground were granted. I would therefore refuse leave to amend the grounds of appeal to add proposed ground 3. In these circumstances, it is unnecessary to consider the Crown’s submissions as to what was described as jurisdictional error or a jurisdictional issue in relation to the slip rule.

Ground 2 – The sentence was manifestly excessive

65. The final ground of appeal is ground 2 which asserted that the aggregate sentence of imprisonment for 5 years and 6 months with a non-parole period of 4 years was manifestly excessive.

Submissions

66. The applicant’s written submissions helpfully summarised the bases upon which it was contended that the aggregate sentence was manifestly excessive as follows:

“… there appear to be errors:

a. Calculating the indicative sentence for Count 1.

b. Properly reflecting a finding of special circumstances in the aggregate sentence having regard to the need to consider the accumulation of the sentence for the present offences with the sentence for which the Applicant was in breach of parole i.e., Ground 1 – which is apparent from the resulting ratio.

c. Applying the principle of totality to the present offences which occurred over three days in the context of drug offending to feed a long-standing addiction while homeless; in that regard it is contended notional accumulation of 1 year 6 months was excessive. It is contended that despite a recent authority [Aryal v R [2021] NSWCCA 2 at [45] – [52]], some assistance may be obtained by considering indicative sentences imposed in the Applicant’s case in determining whether the aggregate sentence is excessive.

d. Applying the principle of totality in light of all sentences which the applicant was to serve including balance of parole.

67. As to par a, there appear to be two errors in calculation of the indicative sentence for count 1 relied upon. One was that, if the nominated starting point of 6 years and 6 months is discounted by 25%, it yields 4 years and 10½ months not 4 years as stated by his Honour. A second was apparently based on the sentencing judge’s finding that the objective seriousness was “somewhere equidistant between the middle and the bottom of the range” and that the offence on the Form 1 would result in a slight increase in the sentence. It was then submitted by the applicant that the stated indicative sentence for count 1 before the discount for the plea of guilty, namely 6 years and 6 months, was clearly excessive because it was one third of the maximum penalty for the offence, 20 years’ imprisonment, and the finding of objective seriousness “presumably” meant that the starting point should be 4 to 5 years, and “potentially marginally more” to take into account the Form 1 offence.

68. Paragraphs b and d appear to relate to the same issue as was raised in the first ground of appeal.

69. Paragraph c in effect involved the contentions that the notional accumulation of 1 year and 6 months between the two indicative sentences was excessive. Earlier in the applicant’s written submission it was submitted that because of the problem with the calculation of the indicative sentence for count 1, it was difficult, if not impossible, to ascertain whether the principle of totality was properly applied in the present case in relation to the indicative sentences and the aggregate sentence.

70. In addition, the applicant drew attention to ten cases which, while acknowledging their limitations, were said to be comparable. He also referred to statistics obtained from the Judicial Information Research System (JIRS) in the form of 16 bar charts of sentences imposed in a variety of situations.

71. The Crown submitted that the starting point of the indicative sentence for count 1 could not be seen to be excessive given the offence for which the applicant was being sentenced, the Form 1 offence to be taken into account, the applicant’s criminal history and his circumstances. Further, it was noted that the error in calculation of the discounted indicative sentence for count 1 worked in the applicant’s favour. It was also submitted, in this regard, that any such error in calculation did not lead to a lack of transparency.

72. As to the complaint concerning the degree of accumulation, the Crown submitted that the arithmetical approach was flawed and the focus should be on whether the aggregate sentence reflected the totality of the criminality of the offending.

73. The Crown contended that the statistics and cases relied upon by the applicant provided little guidance because of the disparities in circumstances and background of the individual offenders.

74. It was submitted that, in the circumstances identified by the Crown, the aggregate sentence appropriately reflected the seriousness of the offences and partial notional accumulation on the earlier sentence was also appropriate. It was also noted that the sentencing judge had expressly considered and dealt with totality in relation to the commencement date of the sentence.

75. On all these bases, the Crown contended that the ground alleging manifest excess was not made out.

Consideration

76. The general principles concerning when this Court will intervene on the ground that a sentence is manifestly excessive were not in dispute and are very well established. They have been summarised, and are based on the authorities referred to, in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J with Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing). The summary is as follows:

“1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that this Court might have exercised the sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

77. Furthermore, when an aggregate sentence is challenged on the ground of manifest excess, the following principles are also applicable:

1. an indicative sentence is not itself amenable to appeal, although error in relation to an indicative sentence may be a guide as to whether there is error in the aggregate sentence; and

2. where an indicative sentence is assessed as being manifestly excessive, it does not necessarily follow that the aggregate sentence is manifestly excessive — the relevant question in that circumstance will be whether the aggregate sentence reflects the totality of the criminality involved:

Jackson v R [2021] NSWCCA 15 at [116] (Price J, Hoeben CJ at CL and Fagan J agreeing); [2014] JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39] and [40] (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing).

78. At the outset, it can be noted that insofar as the applicant relies, in order to establish manifest excess, on the issues raised under the first ground of appeal, those issues have already been dealt with above and it is unnecessary to repeat the reasons for rejecting ground 1 here.

79. Further, the applicant accepted in his written submission at par 25 that the indicative sentence for count 2, taking into account the relevant Form 1 offence, appeared to be “harsh but not excessively so”. In these circumstances, the substance of the applicant’s submission was that the indicative sentence for count 1 was manifestly excessive and, as a consequence of the degree of notional accumulation between the indicative sentences, the aggregate sentence was also manifestly excessive.

80. It can also be accepted that there was a miscalculation or a misstatement in the sentencing judge’s remarks concerning the indicative sentence for count 1. If the starting point for the indicative sentence for count 1, taking into account the Form 1 offence, was 6 years and 6 months, a discount of 25% for the plea of guilty would not yield a sentence of 4 years as recorded in the remarks on sentence at [35].

81. To the extent that the sentencing judge acted on the indicative sentence of 4 years, this was an error in the applicant’s favour and was, understandably, not the subject of any specific ground of appeal.

82. To the extent that the indicative sentence of 4 years was a slip of the tongue and his Honour determined the aggregate sentence on the basis that the indicative for count 1 taking into account the Form 1 offence was 4 years and 10½ months, it does not appear to me that the indicative sentence was manifestly excessive or erroneous on the basis contended by the applicant.

78. In this regard, the applicant’s written submissions stated at par 23:

“The pre-discounted indicative sentence for Count 1 was 6 years and 6 months i.e., one third of the maximum penalty for the offence (20 years imprisonment). It is contended this sentence is clearly excessive. Presumably the sentence should have been about a quarter of the maximum penalty i.e., within 4 to 5 years imprisonment to reflect his Honour’s finding of objective seriousness as equidistant between the ‘bottom and middle’; potentially marginally more to take into account the Form 1 offence.”

84. This submission appears to proceed on the basis that the description of the objective seriousness of the offence as “somewhere equidistant between the middle and the bottom of the range” required the sentence to be “about a quarter of the maximum penalty”. Such an analysis treats the sentencing judge’s description of the objective seriousness as the only, or the predominant, factor in determining the sentence and then apparently seeks to apply an arithmetic fraction based on that description to the maximum penalty. Attempting to analyse the correctness of a sentence by such an arithmetic calculation or mathematical method is misconceived. Sentencing does not involve such a mathematical exercise. In Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, French CJ, Hayne, Kiefel and Bell JJ explained, at [34]:

“Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, ‘[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform’ (original emphasis).” (Footnotes omitted.)

85. The sentencing judge did not apply such an impermissible, mathematical method but rather took into account all of the factors, both objective and subjective, that he identified in his remarks to arrive at the starting point, prior to the discount for the plea of guilty, for the sentence for the offence in count 1 and the relevant Form 1 offence. Furthermore, none of the sentencing judge’s findings concerning those objective and subjective factors was sought to be challenged on appeal.

86. Taking into account all of those factors, in light of the cases said to be comparable and the JIRS statistics relied on by the applicant, I am not satisfied that the indicative sentence for count 1, even accepting that it was intended to be 4 years and 10½ months, was manifestly excessive.

87. In relation to the JIRS statistics, the data set for sentences imposed in relation to an offence contrary to s 112(2) of the Crimes Act described as “Aggregate/Effective – Terms of Sentence: One Offence Only” displayed a range from 6 months to 6 years. It was not specified whether these sentences were discounted for pleas of guilty or not. There were, however, data sets that reflected the applicant’s circumstances more specifically. For example, data for sentences for offences contrary to 112(2) of the Crimes Act described as “Aggregate/Effective – Terms of Sentence: Form 1 Matters – Priors – Same type with Custody – Guilty Plea – 31 to 40 years” displayed a range between a minimum of 3 years and a maximum of 8 years, with about three quarters of the cases receiving sentences of between 3 and 4 years. A similar data set without the age specification indicated that the range was from 18 months to 8 years, with about one quarter in the range from 5 years to 8 years. Another data set for sentences imposed in respect of offences contrary to s 112(2) described as “Aggregate/Effective – Terms of Sentence / Guilty Plea” indicated a range between 6 months and 10 years.

88. In my view, on the basis of these statistics and given the circumstances of the present case, an indicative sentence for count 1 taking into account the relevant Form 1 offence of 4 years and 10½ months, while towards the harsher end, was not outside the range of sentences available. Nor should it be concluded that it was so far outside the range of available sentences that there must have been error.

89. The cases which the applicant relied on as being comparable do not lead me to reach a different conclusion. To have appropriate regard to sentences imposed in cases which are relevantly comparable serves the beneficial purpose of ensuring consistency in sentencing: Moodie v R [2020] NSWCCA 160 at [81]. Nonetheless, it is to be borne in mind that observing the sentences that have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64 at [59].

90. The applicant drew attention to ten cases: Vandeventer v R [2013] NSWCCA 33; A103 v R [2015] NSWCCA 210; Langbein v R [2013] NSWCCA 88; Donn v R [2010] NSWCCA 20; R v Andrews [2005] NSWCCA 199; R v Mougin [2005] NSWCCA 146; R v Byrne [2005] NSWCCA 141; Strickland v R; O’Connor v R [2011] NSWCCA 166; Flick v R [2012] NSWCCA 170; Dudgeon v R [2014] NSWCCA 301. These cases were diverse in terms of the offending contrary to s 112(2) of the Crimes Act involved, or the circumstances of the offender, or both. None demonstrated a significant similarity to the present case. The aggregate or overall sentences ranged from imprisonment for 3 years and 4 months to 7 years and 6 months, after adjusting to allow only an actual or notional discount of 25% for a plea of guilty for comparison purposes. I did not perceive that there were any particular unifying principles in relation to sentencing for offences contrary to s 112(2) or otherwise that could be derived from these cases, nor were any identified in submissions. In all the circumstances, the outcomes in these cases did not establish that the indicative sentence in this case for the offence contrary to s 112(2), taking into account the Form 1 offence, was so far outside the range of available sentences as to be manifestly excessive.

91. Moreover, I do not accept, in light of the notional degree of concurrency between the indicative sentence for count 1 and the indicative sentence for count 2 inherent in the aggregate sentence, the totality of the criminality involved in the offending and the other objective and subjective factors, as well the relevant sentencing principles and the purposes of sentencing, that the aggregate sentence was plainly unjust or unreasonable.

92. For these reasons, I would reject the second ground of appeal.

Conclusion

93. As grounds 1 and 2 were arguable, I would grant leave to appeal on those grounds but would dismiss the appeal for the reasons given above. Since proposed ground 3 was bound to fail, I would refuse leave to add ground 3 as a ground of appeal.

94. Accordingly, I propose that the Court should order:

1. The applicant is refused leave to add proposed ground 3 as a ground of appeal.

2. The applicant has leave to appeal on grounds 1 and 2.

3. The appeal is dismissed.

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Endnote

Decision last updated: 17 September 2021