Miles v The Queen
[2016] ACTCA 54
•14 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Miles v The Queen |
Citation: | [2016] ACTCA 54 |
Hearing Date: | 3 May 2016 |
DecisionDate: | 14 October 2016 |
Before: | Penfold, Burns and Wigney JJ |
Decision: | See [91]-[92] |
Catchwords: | CRIMINAL LAW – appeal from a single judge of the Supreme Court – appeal against sentence – manifestly excessive – application of the principle of totality – application of the parity principle – errors in setting the non-parole period – errors of fact – failure to articulate objective seriousness of the offences – no merit in grounds of appeal – appellant re-sentenced to address sentencing errors by primary judge – appeal otherwise dismissed. |
Legislation Cited: | Criminal Code 1995 (Cth), s 135.1(3) Criminal Code 2002 (ACT), ss 309, 310 Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Celeska v Langlands [2014] ACTSC 211 WO (a child) v The State of Western Australia [2005] WASCA 94; 153 A Crim R 352 |
Texts Cited: | David Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) |
Parties: | Christopher John Miles (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr S Drumgold (Respondent in relation to ACT matters) Mr T Shepherd (Respondent in relation to Commonwealth matters) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent in relation to ACT matters) Commonwealth Director of Public Prosecutions (Respondent in relation to Commonwealth matters) | |
File Number: | ACTCA 30 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Rares J Date of Decision: 1 July 2015 Case Title: R v Christopher Miles Citation: [2015] ACTSC 162 |
PENFOLD J:
Introduction
I have read in draft the judgment of Burns and Wigney JJ. I rely on their detailed description of the background to this appeal and, with the qualifications and additions set out below, agree with their Honours’ judgment.
A sentence that no reasonable judge could have imposed
Their Honours at [61] rely on the formulation of Maxwell P who, in R v Abbott [2007] VSCA 32; 170 A Crim R 306 at 309; [14], said that:
The ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.
With great respect to Maxwell P, I am not convinced that this is the correct test for dealing with a claim of manifest excess (or, presumably, manifest inadequacy). First, since this test was propounded by his Honour in 2007, the High Court has had ample opportunity to adopt this formulation, which seems to originate in the administrative law area, but to my knowledge it has so far resisted the temptation. For instance, in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court, in summary, confirmed the explanation of manifest excess or inadequacy as identifying a sentence that was outside the range of available sentences. At 588; [24], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ referred to the sentencing discretion miscarrying because the sentencing judge imposed a sentence “that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”, and at 597; [52], Gageler J said that to show that the sentence was manifestly inadequate, the appellant had to establish “that the sentence was outside the range of available sentences in all the circumstances of the case”.
I also note that Maxwell P’s formulation of the test, to the extent that it requires an appeal court to identify the sentencing officer as unreasonable rather than his or her decision as simply wrong, may have the possibly unintended effect of imposing an additional and unjustifiable inhibition on an appeal court examining a claim of manifest excess or inadequacy.
In my view, it is a formulation appropriately avoided in favour of the High Court’s explanations of how such claims should be dealt with. See also Celeska v Langlands [2014] ACTSC 211, at [10], and the comments of Refshauge J in Law v Ilievski [2016] ACTSC 291 at [23] to [26].
Failure to specify plea of guilty discount
At [89] below, their Honours refer to Rares J’s failure to comply with s 37 of the Crimes (Sentencing) Act 2005 (ACT) by specifying either the sentencing discounts he has given by reference to the appellant’s pleas of guilty, or the sentences he would have imposed in the absence of pleas of guilty, and note that such a failure does not invalidate a sentence.
I do not disagree with that proposition, while noting that in the ACT the Crimes (Sentencing) Act, s 37, does not expressly preserve the validity of a sentence imposed on a plea of guilty without any reference to the plea of guilty, and that this can be contrasted with:
(a)numerous other provisions of the Crimes (Sentencing) Act which do preserve the validity of sentences imposed in breach of particular statutory requirements (see, for instance, s 10(5), referring to a failure to record reasons for imposing a sentence of imprisonment); and
(b)s 22(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which expressly preserves the validity of a sentence on a plea of guilty that has not been reduced for the plea, despite the failure of the sentencing court to comply with a statutory requirement (found in s 22(2)) to record its reasons for not reducing the sentence.
On the other hand, I note that such a failure, if it suggests that a plea of guilty has been overlooked (as to which see R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 419; [160], Spigelman CJ) may amount to a sentencing error which, if not invalidating a sentence, does enliven an appeal court’s power to re-sentence (Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 617; [42]).
Failure to specify objective seriousness
I agree with their Honours’ comments at [80] and [81] about the appellant’s claim that Rares J did not make a specific assessment of the objective seriousness of the offending, including their conclusion that his Honour had adequately addressed the matters relevant to objective seriousness.
I add the following comments, made originally in Roncevic v Boxx [2015] ACTSC 53 at [45] and [46]:
It is not uncommon for sentencers to identify an offence as being a high, middle or low range example of the offence charged, and this is often helpful as part of assembling all the relevant material into a manageable set of factors from which the appropriate sentence will emerge by the “instinctive synthesis” process described in Markarian (at 373-375 (Gleeson CJ, Gummow, Hayne and Callinan JJ) and 383-390 (McHugh J)).
I am not, however, convinced that it is useful or even legitimate to further divide those categories, for instance, by adding lower-middle and upper-middle and, possibly an infinite range of further categories or, more transparently, by attempting to locate each offence on a 10 or even 100-point scale. Unless a sentencer rejects the instinctive synthesis approach and secretly uses some kind of mental (or even actual) calculator that spits out a sentence after scores are fed in for each relevant factor, it is hard to see how such a superficially but unsustainably specific assessment could be useful. Furthermore, the instinctive synthesis required of a sentencer, and the variety of matters that are to be considered in that process, must mean that there could never be a direct correlation between an apparently precise assessment of the objective seriousness of an offence and the exact length of the sentence determined for that offence. See, for instance [ABv The Queen [1999] HCA 46; 198 CLR 111] at [115] (Hayne J); [Barbaro v The Queen [2014] HCA 2; 253 CLR 58] at [34] (French CJ, Hayne, Kiefel and Bell JJ)).
Orders
The qualifications I have mentioned above do not, however, lead me to different conclusions from those reached by Burns and Wigney JJ, and accordingly, I agree with the orders proposed by their Honours.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: David Hoitink Date: 14 October 2016 |
BURNS and WIGNEY JJ:
Introduction
On 1 July 2015, the appellant, Christopher Miles, was sentenced by Rares J in relation to nine offences. He now appeals from the sentences imposed.
Earlier sentences
The sentences imposed by Rares J involved a significant amount of concurrency with earlier sentences imposed upon the appellant by Burns J and Nield AJ.
On 19 March 2013, the appellant was sentenced by Burns J in respect of one offence of conspiracy to commit aggravated robbery. His Honour imposed a sentence of 6 years and 9 months imprisonment, to commence on 5 January 2011, with a non-parole period of 4 years and 6 months.
On 17 October 2013, the appellant was sentenced by Nield AJ in respect of two offences of aggravated robbery. In passing sentence his Honour took into account two additional offences pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), being a further offence of aggravated robbery, and an offence of taking a motor vehicle without consent.
Nield AJ imposed a sentence of 11 years and 1 month imprisonment, of which 3 years and 9 months was to be served concurrently with the earlier sentence imposed by Burns J, resulting in an effective sentence of 14 years and 1 month imprisonment. His Honour set a non-parole period of 9 years for that effective sentence.
The appellant subsequently appealed the sentences imposed by Burns J and Nield AJ. The appeals were heard together.
On 29 August 2014, the Court of Appeal upheld the appeal in relation to the sentence imposed by Burns J on 19 March 2013 for conspiracy to commit aggravated robbery: Miles v The Queen [2014] ACTCA 41. The Court reduced the appellant’s sentence to four years imprisonment. The effect being that the appellant’s sentence was to run from 5 January 2011 until 4 January 2015.
The Court of Appeal dismissed the appeal in relation to the sentence imposed by Nield AJ. However, as a consequence of upholding the appeal against the sentence imposed by Burns J, the Court adjusted the starting dates of the sentences imposed by Nield AJ, with the effect that those sentences commenced two years earlier than had originally been ordered, so that they commenced on 5 January 2012 and expired on 4 February 2023. The Court reduced the concurrency between the sentences imposed by Burns J and Nield AJ to three years, from the earlier three years and nine months.
As a result of these adjustments the appellant was liable to serve an effective sentence of 12 years and 1 month imprisonment. The Court adjusted the appellant’s non-parole period to seven years and seven months, to expire on 4 August 2018.
Sentences under appeal
Of the nine offences dealt with by Rares J, five were offences against Territory laws, and four were Commonwealth tax offences in contravention of s 135.1(3) of the Criminal Code Act 1995 (Cth).
His Honour imposed a total sentence of 12 years imprisonment, commencing on 4 February 2014 and expiring on 3 February 2026. This, in combination with the earlier sentences that the appellant had already been liable to serve, provided an effective sentence of 15 years and 1 month imprisonment. His Honour set a non-parole period of nine years and four months, to expire on 4 May 2020.
The effect of the sentences imposed by Rares J was to extend the appellant’s effective sentence of imprisonment by three years. The period during which the appellant would not be eligible for release was increased by two years, achieved through an increase in the non-parole period in relation to the Territory offences of one year and nine months, and a further period of three months during which he would be serving part of the sentences imposed in relation to the Commonwealth tax offences in full-time custody; recognizance release orders (RROs) were made requiring the appellant to be released after that three month period on entering into recognizances to be of good behaviour.
Current sentences – overview
The sentences currently being served by the appellant are set out in the following table:
Sentencing Judge Offence Offence date Sentence Start Finish Burns J Conspiracy to commit aggravated robbery 4 January 2011 4 years 5 January 2011 4 January 2015 Nield AJ Aggravated robbery 6 July 2009 6 years 3 months 5 January 2012 4 April 2018 Nield AJ Aggravated robbery (scheduled offences – aggravated robbery and take motor vehicle without consent – taken into account) 23 October 2010 8 years 1 month 5 January 2015 4 February 2023 Rares J Attempted arson 12 March 2009 5 years, non-parole period 2 years 6 months 4 August 2016
3 August 2021 Rares J Aggravated burglary and theft (scheduled offences taken into account: two counts of theft, one count of aggravated burglary and one count of burglary) 27 June 2010 5 years, non-parole period 3 years 4 May 2016
3 May 2021 Rares J Aggravated robbery 8 May 2010 12 years, non-parole period 6 years 4 February 2014 3 February 2026 Rares J Aggravated robbery 8 December 2009 10 years, non-parole period 5 years 4 May 2015 3 May 2025 Rares J Lodging a false tax return 31 May 2011 1 year, to be released after 3 months (4 August 2020), with RRO. 5 May 2020 4 May 2021 Rares J Lodging a false tax return 7 September 2011 1 year, to be released after 3 months (4 August 2020), with RRO. 5 May 2020 4 May 2021 Rares J Lodging a false tax return 7 September 2011 1 year, to be released after 3 months (4 August 2020), with RRO. 5 May 2020 4 May 2021 Rares J Lodging a false tax return 21 November 2011 1 year, to be released after 3 months (4 August 2020), with RRO. 5 May 2020 4 May 2021
Matters not raised on appeal
Three aspects of Rares J’s sentencing that were not raised by the appellant require comment at this stage.
First, in failing to set separate sentences for the two offences of aggravated burglary and theft committed on 27 June 2010, his Honour has failed to comply with the requirement recognised in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45] to set a separate appropriate sentence for each offence.
Secondly, although his Honour referred on several occasions to the appellant’s pleas of guilty, he did not at any point identify any discount that had been given, by specifying either the percentage discount he had applied or the sentences before discounting.
Thirdly, in purporting to set a separate non-parole period for each of the Territory offences, his Honour has failed to comply with s 65 of the Sentencing Act, which requires a single non-parole period to be set for the total sentence on Territory offences.
Some re-sentencing will be necessary to address these issues.
The offences dealt with by the primary judge
As noted, Rares J sentenced the appellant for five Territory offences:
(a)The attempted arson involved an attempt to blow the front off an automatic teller machine (ATM) in the early hours of 12 March 2009. The appellant, in company with a Mr Ramos, made a hole in the front of the ATM, into which he pumped flammable gas. He then tried to ignite the gas using equipment including a battery pack, but was unsuccessful. When a garbage truck approached, the appellant and Mr Ramos fled.
(b)The aggravated armed robbery was committed on 8 December 2009 at an ACT TAB that the appellant also robbed some 10 months later with Mr Ramos. The appellant threatened staff with a shortened rifle, which was in fact incapable of firing, and took $32,209.35. He was found guilty of that offence by a jury.
(c)The aggravated burglary and theft were committed on 27 June 2010 in company with Mr Ramos. Property worth about $36,000 was stolen from a private home. In sentencing for those offences, his Honour took account of:
(i)another aggravated burglary and theft committed on 19 March 2010 in company with Mr Ramos (when the two men were passing premises that had been left open and helped themselves to the contents); and
(ii)a burglary and theft from another home committed by the appellant alone on 21 October 2010, in which about $11,300 worth of property was taken.
(d)Another aggravated armed robbery was committed on 8 May 2010 by the appellant and Mr Ramos at the Burns Club. Both men were armed. They took about $51,000.
Apart from the 8 December 2009 robbery, the appellant pleaded guilty to these offences on 23 June 2014.
Mr Ramos assisted the authorities in prosecuting the appellant in respect of a number of offences, including those committed jointly, but was granted immunity in respect of most of them. He was charged and sentenced for only one offence committed with the appellant, a conspiracy offence committed on 4 January 2011 for which he and the appellant were sentenced by Burns J.
The Commonwealth offences consisted of the 2011 lodging of four false tax returns from the Alexander Maconochie Centre (AMC) after the appellant had begun serving other prison sentences. The appellant pleaded guilty to those offences on 1 April 2015.
Other matters considered by the primary judge
Rares J in the course of sentencing the appellant made the following remarks:
76.You have spent a good deal of your life in jail and serving sentences for your many crimes. I think you now see, based on your conduct in jail since being sentenced in 2013 and your letter to me, that you have to change. You have to stop stealing.
77.Your prospects of rehabilitation, given your consistent life of crime to date, are not, at first sight, a source for confidence. However, you have shown some significant effort during your current imprisonment in seeking to address your behaviours that had led to your past, repeated serious offending.
78.The parole officers said that the prison authorities have consistently noted your performance as a textile worker has been good since you began that employment in 2012. Your recent behaviour in prison has had only two minor lapses, namely, having an unauthorised USB stick in your possession and having an outburst on the day after your conviction by the jury on 26 March 2015. I can understand that, on the latter occasion, you may have reacted because you were upset by the verdict. I infer that your father provided the USB stick to you on 4 February 2015 and that this resulted in him being banned from visiting you. These are minor matters and do not affect my view that, on the evidence before me, you are now making genuine efforts to rehabilitate yourself.
79.I accept that you are trying to turn your life around and that you are doing so because you do not want to spend more time in prison after you are released. Your letter to me shows some insight into your offending and remorse. You are going to be in prison on your existing sentences until your children will be of an age where they are no longer likely to be dependents. In any event, your financial support of them in recent years, if any, seems to have come from the proceeds of your criminal activity of which the recent tax offences are a good illustration.
80.You expressed what the parole officers said was “appropriate victim empathy”. They said that you told them that you now are able to understand the effects of your offences, having heard what one victim said in a victim impact statement, although until then you said you were not able to do so. However, I infer this event is the same as the one to which Ross J referred in the Court of Appeal: Miles [2014] ACTCA 41 at [41]-[43]. Like his Honour, I find it inconceivable that you were unaware of what the likely traumatising effect of pointing what appeared to be a real gun at someone like Mr Morris, the young manager of ACTTAB, would be. The reason you took that weapon with you and pointed it at Mr Morris was so that your human victim would be intimidated and put in fear of his life. Your long criminal history to that point, including several armed robberies, showed pre-meditation. I find that you were aware that using a weapon that appeared to be a gun would create maximum fear and achieve your criminal intention, namely, securing the coercion of victims in handing over the cash.
81.Your guilty pleas and requests for me to take four other offences into account have spared some victims from having to give evidence and have relieved the community from having to pay the costs of expensive trials. Those pleas and requests are a sign of your acknowledgment of responsibility for a significant amount of your criminality.
82.The parole officers’ assessment is that you pose a medium risk of re-offending. They said that risk is influenced by your drug use and that it may reduce further if you can commit to addressing that issue. I have had regard to your refusals, earlier during your current imprisonment, to submit to two drug tests, your committing the tax offences while in custody, and the extensive repetition of armed and other robbery and theft offences in the period for which I must sentence you after your extensive earlier criminal history. I accept the parole officers’ assessment that your likelihood of rehabilitating is medium.
83.Because of your history of substance abuse, I have some doubt that your behaviour in the future will change whatever sentence your receive. But that doubt should not extinguish all hope you may have of reforming. Your conduct throughout your [redacted for legal reasons] and adult life has been to steal and to resort to armed robbery to obtain money. That conduct is unacceptable. However, I consider that there is a real possibility that you wish to change your life and thus you should be given some credit for that.
84.Nothing else but a significant period of imprisonment is appropriate first, to punish you for your deliberate, persistent and harmful choice of antisocial conduct. Moreover, the purpose of general deterrence can only be achieved by such a custodial sentence. You failed to rehabilitate yourself during, or after, your many earlier periods of imprisonment. You chose crime as your primary and usual means of making money. The community is entitled to be protected from you by an appropriately severe punishment that reflects your extraordinarily serious and continuing criminality, the armed robberies and deliberate theft that you chose to engage in over 17 months and the six month course of conduct involving tax fraud.
85.You must realise too that if, after being released, you again commit such offences, the Court will almost certainly have to impose even more lengthy terms of imprisonment on you. Aggravated robbery, whether you are armed or in company with someone else, carries a maximum term of 25 years imprisonment for each and every offence.
Grounds of appeal
The appellant, who is unrepresented on the appeal, now challenges the sentences imposed by Rares J on grounds which can be summarised as follows:
(a)That the sentence imposed was manifestly excessive.
(b)That the sentencing judge erred by not assigning sufficient weight to the subjective circumstances of the appellant; namely his good prospects for rehabilitation, given his engagement with in-house jail employment since his incarceration and his successful completion of the cognitive skills program.
(c)That the sentencing judge erred by not assigning sufficient weight to the subjective circumstances of the appellant; namely his expression of remorse through his submitted letter to the sentencing court.
(d)That the sentencing judge erred by the incorrect application of the totality principle when imposing his sentences for various offences on the appellant.
(e)That the sentencing judge erred by neglecting to backdate any of the sentences imposed on the appellant.
(f)That the sentencing judge erred in fact by stating in his sentencing comments at [66] “heedless of the reality that what you did could cause significant damage not only to property, but also to the lives and safety of anyone in the vicinity”.
(g)The sentencing judge erred in fact by stating in his sentencing comments at [73] “there is no redeeming feature for the present offences”.
(h)The sentencing judge erred in fact by stating in his sentencing comments at [80] “I find that you were aware that using a weapon that appeared to be a gun would create maximum fear”.
(i)The sentencing judge erred by failing to state in his sentencing comments where the appellant’s various offences were held to sit within the broad continuum of objective seriousness.
(j)The sentencing judge erred in his sentencing comments by failing to reference the objective seriousness of the appellant’s offences through neglecting to compare them with applicable case law.
(k)The sentencing judge erred by not having regard to the objective circumstances of the offences; namely the lack of any violence used in the commission of any of the appellant’s offences.
(l)The sentencing judge erred in the approach used to set the non-parole period as a ratio of the head sentence.
(m)The sentencing judge erred by failing to correctly apply the parity principle with regard to the appellant’s co-offender.
(n)The sentencing judge erred in failing to give reasons for the imposition of a high non-parole period (an inappropriate relationship between the length of the head sentence and the effective non-parole period).
Submissions
The appellant did not file written submissions as such, but expanded on some of his appeal grounds in the amended notice of appeal. He also made oral submissions in relation to some of the grounds.
The respondent filed two sets of written submissions, through the ACT Director of Public Prosecutions (ACT Director) in relation to the Territory offences, and the Commonwealth Director of Public Prosecutions (Commonwealth Director) in relation to the Commonwealth taxation offences. Counsel for both the ACT and Commonwealth Directors made brief oral submissions at the hearing of the appeal.
Grounds (a), (b) and (c): manifest excess and weighting errors
The appellant, in his amended notice of appeal, correctly identified the threshold for appellate intervention on the ground of manifest excess by noting that such a ground was pleaded not on the basis of specific error by the primary judge, but on the basis that the sentence itself is manifestly incorrect, with such a conclusion supporting an inference that the judicial discretion has been improperly exercised: House v The King [1936] HCA 40; 55 CLR 499. The appellant also correctly conceded that “the multiplication of grounds of appeal which are not specific errors [such as apparent weighting errors] does not assist in showing that the sentence imposed, in itself was manifestly excessive”.
Despite this, the appellant did plead two grounds of appeal ((b) and (c)) contending that the primary judge failed to assign sufficient weight to particular subjective circumstances, while noting in his amended notice of appeal that he was not contending that these grounds constituted specific errors.
Apart from grounds (b) and (c), the appellant did not point to any specific circumstances which he said demonstrated that the sentences imposed were manifestly excessive. Indeed, in the context of ground (j), he submitted that the primary judge’s failure to assess the objective seriousness of the offending with reference to comparable cases meant that “there is no way of knowing whether or not the sentence imposed ... was actually within range”.
The respondent’s written submissions identified and summarised a number of comparable cases involving sentences for offences of aggravated robbery, which it said provided a “yardstick” to demonstrate consistency in the application of principle between the sentences in those cases and those imposed on the appellant.
The respondent said that the appellant’s contention that the primary judge had failed to assign sufficient weight to his prospects of rehabilitation, and his remorse, was untenable, and identified several instances in the sentencing remarks in which his Honour referred to the appellant’s remorse and apparent desire to turn his life around and said that he had taken those factors into account.
Grounds (d) and (e): totality and failure to backdate
The appellant said in oral submissions that a number of the sentences imposed “just didn’t add up”.
The appellant complained about the commencement dates of a number of the sentences imposed by Rares J as a result of the accumulation of portions of those sentences upon earlier sentences, stating that “they were all starting in the future, and I couldn’t understand why”.
The appellant referred in his notice of appeal to two authorities concerning the totality principle, namely Mill v The Queen [1988] HCA 70; 166 CLR 59 (Mill) and R v Meyboom [2012] ACTCA 48, but he did not elaborate on how these authorities assisted his contention that the primary judge had erred in his application of the totality principle.
The respondent noted:
(a)that the effect of the sentences imposed by Rares J was to increase the head sentence by three years, and the period during which the appellant would not be eligible for release by two years;
(b)that this was a relatively small increase in the appellant’s total sentence (being around a 25 per cent increase in both the head sentence and the non-parole period, despite relating to a large number of serious offences committed during discrete incidents);
(c)that any lesser sentence would not have properly recognised the offending concerned; and
(d)that where offences “represent separate episodes or transactions”, some accumulation is usually appropriate but some concurrency may be necessary to avoid a “crushing” sentence (Director of Public Prosecutions v Grabovac [1998] 1 VR 664).
Ground (f): presence of others at scene of attempted arson
The appellant submitted, in his notice of appeal, that offenders in his position will generally take great care to avoid offending in circumstances where members of the public may become witnesses to their offending, and accordingly that it could be inferred that he had ensured that there were no potential witnesses in the vicinity before he attempted to blow off the front of an ATM. He submitted that on this basis the primary judge had erred in his comments about the danger posed to the safety of people in the vicinity by the appellant’s conduct in attempting to combust the ATM.
The respondent noted that the agreed facts upon which the appellant had been sentenced referred to the presence of another person, namely the driver of a garbage truck, in the vicinity of the ATM which the appellant had attempted to ignite.
The respondent also submitted that the sentencing judge’s remarks “must be read as a whole, fairly and not perversely” (Saxon v The Queen [2014] VSCA 296 at [47]), and that Rares J’s remarks about the potential risk to other people were appropriate when read in context.
Ground (g): absence of redeeming features of tax offences
The appellant submitted that the fact that the Commonwealth taxation offences involved misappropriation from a government entity, rather than a specific member of the public, was a redeeming feature. He expanded on this submission by noting that no individual member of the public had been subjected to the “mental anguish and discomfort of becoming a victim of theft and personally witnessing the loss of their own financial resources”.
The Commonwealth Director submitted:
(a)that the absence of redeeming features of particular offences had to be assessed by reference to the offences charged rather than other different offences, for instance other dishonesty offences such as burglary or theft; and
(b)that fraud offences committed against the Commonwealth impose a burden on the wider community and accordingly are not “victimless crimes”, citing R v Massey [2015] QCA 254 at [26] and R v Allred [2015] ACTSC 327 at [37].
Ground (h): use of replica gun
The appellant submitted that the primary judge had erred in characterising the act of pointing a gun at a victim in the course of an armed robbery as one that the appellant was aware would create maximum fear. The appellant further submitted that his Honour had erred in the extent to which he had relied on this conduct as an aggravating feature in assessing the objective seriousness of the offending. He submitted that his actions were to be distinguished from those involving the firing of a weapon or violence which escalated to physical contact, which could more properly be characterised as conduct designed to create maximum fear.
The ACT Director submitted that Rares J’s comment that the appellant was aware that using a replica gun would create maximum fear was not rendered erroneous simply because it is possible to think of ways in which even more fear might have been engendered, and again referred to Saxon v The Queen [2014] VSCA 296 at [47].
Grounds (i), (j) and (k): failure to assess offences properly
The appellant conceded, in his amended notice of appeal, that the primary judge’s general assessment of the seriousness of the offences could be inferred by comparing the sentences of imprisonment actually imposed with the maximum available penalties. Apart from that he did not expand on those appeal grounds.
The respondent submitted:
(a)that a failure by a sentencing judge to state a specific assessment of the objective seriousness of the offending will not constitute error where such an assessment has been implicitly made through the sentencing judge referring to the considerations relevant to objective seriousness and giving proper weight to those considerations (R v Van Ryn [2016] NSWCCA 1; Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581);
(b)citing specific examples from the primary judge’s sentencing remarks, that although his Honour “did not overtly place each of the offences on a scale of objective seriousness”, the identification and weighing of relevant considerations was sufficient to satisfy the requirements of sentencing;
(c)that the purpose of considering relevantly similar cases was not to ensure numerical equivalence in sentencing, but rather to ensure consistency in the application of relevant legal principles, and that the appellant had not in this context identified any relevant legal principle that had not been applied correctly, or consistently;
(d)that reasons for sentence need not be elaborate, but must be sufficient to enable “the offender, and the public, to understand why that sentencing disposition was chosen and to preserve to the offender the right of appeal” (WO (a child) v The State of Western Australia [2005] WASCA 94; 153 A Crim R 352 at [7]), and that the primary judge’s reasons for sentence were sufficient for those purposes, despite their lack of reference to comparable cases; and
(e)that the fact that the appellant did not use actual violence in any of the offences was not a mitigating feature, especially since the aggravated robbery offences, which were committed using an inoperative firearm, had involved a significant degree of threatened violence and caused great distress to the victims in each case.
Grounds (l) and (n): errors in setting non-parole period
The appellant did not expand on these grounds, although at the hearing he sought clarification of the relationship between the non-parole periods and the RROs made in connection with the Commonwealth offences. This was explained to him in oral exchanges.
The ACT Director submitted:
(a)that the proper approach to the setting of a non-parole period involves the synthesis of a number of relevant considerations leading to a result appropriate for the particular offender;
(b)that the authorities cautioned against a formulaic approach to the setting of a non-parole period (Taylor v The Queen [2014] ACTCA 9); and
(c)that the primary judge had followed the proper approach, by considering the purposes of sentencing and the appellant’s prospects of rehabilitation, in setting the non-parole period.
Ground (m): parity
The appellant conceded that there were clear differences between him and his co-offender, Mr Ramos, in terms of objective and subjective circumstances. Notwithstanding these differences he submitted that, in application of the test enunciated in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 623, the disparity between the sentences imposed on him and his co-offender would give rise to a justifiable sense of grievance on his part. The appellant further submitted that the primary judge failed to address the issue of parity in sufficient detail in his sentencing remarks.
The respondent noted that Mr Ramos had not been sentenced for any offence arising out of the incidents involving the appellant and subject to the current appeal. The respondent also relied on the conclusions reached by the Court of Appeal in Miles v The Queen [2014] ACTCA 41 that the Court was unable to intervene on the basis of a disparity in sentences imposed on two co-offenders where one of the co-offenders has not in fact been sentenced for the offences committed together.
Consideration
None of the grounds of appeal pleaded by the appellant have any merit. With regard to ground (a), alleging manifest excess, the applicable principles were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
As the Victorian Court of Appeal said in R v Abbott [2007] VSCA 32; 170 A Crim R 306, a ground of appeal alleging manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed the sentence on the offender in the particular circumstances. Maxwell P noted at [14] that this is “a stringent requirement, difficult to satisfy”.
In considering whether any of the individual sentences imposed by Rares J are manifestly excessive, it is important to remember the maximum penalties prescribed for each offence. The maximum penalty “represents the legislature’s assessment of the seriousness of the offence and for this reason provides a sentencing yardstick”: Elias v The Queen [2013] HCA 31; 248 CLR 483. In Markarian v The Queen [2005] HCA 25; 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ explained, at [31], the importance of the maximum prescribed penalty:
...careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
The offender came before Rares J with what could only be described as an appalling criminal history. He had 9 prior convictions for burglary, 12 convictions for theft, 8 prior convictions for armed robbery, attempted aggravated robbery and aggravated robbery, 1 conviction for robbery and 1 conviction for conspiracy to commit aggravated robbery. Other offences of violence and dishonesty are also found in his criminal history. This criminal history not only disentitled the appellant to leniency in sentencing for the offences before Rares J, it was also relevant to determining the extent to which sentencing considerations such as deterrence and protection of the public were relevant. In Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ rejected the proposition that an offender’s criminal history was relevant only to a claim for leniency of the offender, and said, at 477:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
For the offence of attempted arson for gain, a sentence of 5 years imprisonment was imposed against a maximum penalty of 20 years imprisonment. It cannot be said that the offence committed by the appellant was anything but a serious example of this type of offending. The appellant set out to cause an explosion in a public place, albeit in the early hours of the morning, with a view to blowing the front off an ATM. The offence clearly called for condign publishment with a view to deterring the appellant from criminal offending and deterring others who may be minded to engage in such outrageous criminal conduct. A sentence of 5 years imprisonment was well within the range of sentences which could have been imposed on the appellant in the exercise of a sound discretionary judgment.
The sentence imposed by Rares J with regard to the offences of aggravated burglary and theft committed on 27 June 2010 is problematic. As we have already noted, his Honour failed to impose separate sentences for these offences, a matter which we will return to later in this judgment. The offence of aggravated burglary was clearly the more serious of the two offences, carrying a maximum penalty of 20 years imprisonment compared to 10 years for the offence of theft. In sentencing the appellant for the offence of aggravated burglary and theft, Rares J took into account further offences of aggravated burglary and theft which occurred on 19 March 2010, and further offences of burglary and theft which occurred on 21 October 2010. The offence of aggravated burglary, which occurred on 27 June 2010, involved the appellant entering the home of a former employer, whilst in the company of a co-offender, Mr Ramos. It cannot be said that a sentence of 5 years imprisonment was manifestly excessive against the background of a maximum penalty of 20 years imprisonment. Both personal and general deterrence were important sentencing considerations for these offences.
Each of the offences of aggravated robbery carried a maximum penalty of 25 years imprisonment. The offence which occurred on 8 December 2009 involved the appellant entering the Wanniassa TAB at approximately 9.30 pm, with his face masked and carrying an inoperative sawn-off rifle. The appellant pointed the rifle at an ACT TAB employee and demanded money. In total, the appellant obtained $32,209.35 from this offence. There was evidence that the appellant had previously shortened the rifle, indicating a degree of premeditation. Whilst the rifle that was used to commit this offence was inoperable, the victim did not know that; indeed, it was clearly the appellant’s intention to make the victim believe that the rifle presented an immediate threat to the well-being, and perhaps life, of the victim so as to frighten the victim into compliance. The amount the appellant obtained was substantial. The matter proceeded to trial, and the appellant maintained his innocence of this offence throughout the trial and the sentencing proceedings, disentitling him to any leniency for a plea of guilty or expression of remorse. The appellant also had a lengthy criminal history for like offences, speaking of a need for personal deterrence.
Rares J imposed a sentence of 12 years imprisonment for the offence of aggravated robbery, which occurred on 8 May 2010. This offence, of course, was a subsequent offence to the offence of aggravated robbery on 8 December 2009. The appellant and the co-offender, Mr Ramos, entered the Burns Club at about 1.20 am, when the Club was being locked up. The appellant was armed with a rifle and Mr Ramos was carrying a knife. A substantial sum of money was stolen. For the reasons we have given for concluding that the sentence imposed for the offence of aggravated robbery on 8 December 2009 was not manifestly excessive, we are not satisfied that the sentence imposed for this offence was manifestly excessive.
The Crown during this appeal drew our attention to a number of comparable sentences passed in this Territory for similar offences. The appellant did not suggest that these sentences were not comparable, so we will mention them only briefly. In R v Diamond (Unreported, Supreme Court of the ACT, Nield AJ, 29 October 2010) the offender entered pleas of guilty to four offences of aggravated robbery and one of attempted aggravated robbery, and for each such offence was sentenced to six years and six months imprisonment, reduced from eight years to reflect his pleas. An aggregate sentence of 15 years imprisonment was imposed, with a non-parole period of 10 years and 6 months. Although, we note that the offender in that case was also sentenced in relation to five other, less serious, offences. In R v Melkie (Unreported, Supreme Court of the ACT, Gray J, 17 February 2011), the offender pleaded guilty to one offence of aggravated robbery, in which he and a co-offender held up an armoured car while both were armed with guns. The offender was sentenced by Gray J to 9 years imprisonment, reduced from 12 years due to an early plea of guilty. In Munro v The Queen [2014] ACTCA 11, the co-offender of Mr Melkie was found guilty of aggravated robbery following trial and was sentenced to 12 years imprisonment, reduced on appeal to 10 years imprisonment. In R v Miles (Unreported, Supreme Court of the ACT, Nield AJ, 17 October 2013) the appellant was sentenced to eight years and one month imprisonment for an aggravated robbery which occurred on 23 October 2010, which also involved the use of a sawn-off single barrel rifle.
The purpose of referring to these earlier sentences is simply to demonstrate that the sentences imposed on the appellant for the offences of aggravated robbery, whilst undoubtedly stern, are not unprecedented. The respective sentences of 10 years imprisonment and 12 years imprisonment imposed by Rares J cannot be said to be manifestly excessive, either by reference to the prescribed maximum penalty or by reference to other sentences imposed in the Territory for like offences.
The four Commonwealth offences involved the lodging of false income tax returns by the appellant. Each such offence carried a maximum penalty of 5 years imprisonment. It was an aggravating circumstance attending the commission of these offences that, at the time the appellant committed them, he was a detainee at the AMC. The total loss to the Commonwealth by these offences was $30,507.80. The imposition of sentences of 12 months imprisonment for each such offence cannot be said to be manifestly excessive.
Grounds of appeal (b) and (c) were accepted by the appellant as providing particulars of ground (a), and as such need no further consideration.
Grounds (d) and (e) allege a failure by Rares J to correctly apply the totality principle. The appellant referred to the principles enunciated in Mill, where the High Court in a well-known passage, quoted from David Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) 56-57:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
Mill itself stands for the proposition that this principle is to be applied where an offender is already serving a term of imprisonment and comes to be sentenced with regard to offences committed around the same time as those which resulted in the current term of imprisonment.
Prior to being sentenced by Rares J, the appellant was serving a sentence of 12 years and 1 month imprisonment, commencing on 5 January 2011 and expiring on 2 February 2023. He was subject to a non-parole period of seven years and seven months commencing on 5 January 2011 and expiring on 4 August 2018. The effect of the sentences imposed by Rares J, by virtue of the extent to which those sentences were made concurrent with each other and with the pre-existing sentences, was to increase the head sentence by three years and his non-parole period by one year and nine months, although because of the sentences imposed on the Commonwealth matter, a further period of three months must effectively be added to the non-parole period before the appellant will be eligible for release.
The extent to which his Honour ordered that the sentences he imposed were to be served concurrently, and the extent to which he made those sentences concurrent with the pre-existing sentences, speaks of careful attention by his Honour to the issue of totality. No error is demonstrated in the way in which Rares J structured the sentences he imposed, or in the date for commencement of those sentences when considered with the pre-existing sentences.
In ground of appeal (f), the appellant submitted that Rares J made a factual error when sentencing for the offence of attempted arson. The impugned portion of his Honour’s sentencing remarks is found at [66], where his Honour said:
Your failed attempt to blow up the bank ATM machine showed your determination to engage in conduct to obtain money, heedless of the reality that what you did could cause significant damage not to only property, but also to the lives and safety of any one in the vicinity.
The appellant’s contention that the above statement by Rares J, to the extent that it found a potential for harm to others arising from the attempted arson offence, was erroneous must be rejected. The method adopted by the appellant of pumping flammable gas into the ATM and attempting to ignite the gas by use of an electrical current could not in any way be said to be a controlled detonation. The appellant could not know the magnitude of any such explosion. It may be accepted that the appellant intended to commit the offence when there were no witnesses present, thus reducing the potential for harm to others, but there was always potential for that to change quickly. His Honour’s comments regarding the potential for harm to others from this offence was clearly correct.
Ground of appeal (g) relates to the Commonwealth offences, and alleges a factual error by Rares J in finding, at [73], that there were no redeeming features for these offences. The appellant submitted that it was a “redeeming feature” of the offences that they were committed against the ATO and not against an individual. This extraordinary submission must be rejected. In some cases, it may be an aggravating circumstance that the victim of an offence of dishonesty is an individual, or organisation, which, to the knowledge of the offender, will be severely affected by the offence, but the absence of this aggravating circumstance can hardly be considered to be a “redeeming feature” of such an offence. It is also well settled that offences of fraud perpetrated against the government are not to be treated as victimless crimes, as they impose a burden on the wider community: see the cases cited at [40] above.
Ground of appeal (h) alleges a factual error by Rares J with regard to the offence of aggravated robbery on 8 December 2009. This was the charge of which the appellant was found guilty at trial. In sentencing the appellant for that offence, Rares J found that the appellant had pointed what appeared to be an operable firearm at the manager of the ACT TAB where the robbery occurred. This finding was not challenged by the appellant. His Honour then went on to find that the reason why the appellant took the weapon with him to commit the offence and pointed it at the victim was so that the victim would be intimidated and put in fear of his life. That finding also has not been, and realistically could not be, challenged in these proceedings. The appellant takes issue with the further finding by Rares J that the appellant “was aware that using a weapon that appeared to be a gun would create maximum fear...” The appellant submitted that greater fear could have been occasioned by the acts which he did not perform, such as discharging the firearm, or striking the victim, and so such the use of the adjective “maximum” was an error. This submission is based upon a misconstrual of the relevant remarks of Rares J. In the findings to which we have referred, Rares J was not principally making a finding about the level of fear experienced by the victim, with a view to finding that his level of fear could not have been higher, rather, his Honour was considering the appellant’s intention in pointing what appeared to be an operable firearm at the victim, and the appellant’s knowledge of the likely effect on the victim of the appellant’s actions. The finding by his Honour that the appellant’s intention had been to instil as much fear as he could in the victim, so that the victim would comply with his criminal demands, was one that was well open to his Honour. The fact that the appellant did not engage in behaviour that would have aggravated the offence, and which may have caused even greater fear to the victim, is irrelevant because his Honour did not sentence the appellant on the basis that those aggravating circumstances had occurred.
The next ground of appeal, ground (i), alleges error on the part of Rares J by failing to state in his sentencing remarks where the appellant’s various offences “were held to sit within the broad spectrum of objective seriousness” of such offences. It is clear from the comprehensive reasons given by Rares J that he did advert to the objective seriousness of each of the offences, albeit that he may not have expressly articulated his findings in that regard. In his reasons, Rares J clearly set out those circumstances of the offence which determine the objective seriousness of each of the offences. His Honour did not engage in a process, criticised in cases such as R v Van Ryn [2016] NSWCCA 1, of mere recitation of the facts. A similar complaint to that raised in these proceedings, was raised in Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581, where Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) said at [56]:
While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so.
In the present case, Rares J referred to the circumstances concerning each of the offences committed by the appellant which bore upon an assessment of their objective seriousness. It is implicit from his sentencing remarks that his Honour did undertake an assessment of the objective seriousness of each of the offences.
Ground of appeal (j) alleges an error on the part of Rares J by failing to refer to sentences imposed in like cases, so that “there is no way of knowing whether or not the sentence imposed by his Honour was actually within range”. As the Crown observed this submission is based upon two incorrect premisses. First, that consideration of precedents is required in order to demonstrate that sentences are within a sound discretionary range, and, secondly, that a sentencing judge must expressly compare similar matters in passing sentence. These premisses are connected, and raise the issue of consistency in sentencing.
With regard to the first premiss, consistency in sentencing “is not demonstrated by, and does not require, numerical equivalence”: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. What is required is consistency in the application of relevant legal principles. A sentencing judge must demonstrate that he or she has identified and applied the correct legal principles, which is what occurred in this case. This leads to an examination of the second, and related, premiss that Rares J was expressly required, in his reasons, to compare the offences committed by the appellant with those in like cases for the purpose of demonstrating that the sentences imposed by his Honour were “within range”. It must follow from the proposition that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence, but is demonstrated by consistent application of relevant principle, that sentencing judges are not required to refer to sentences imposed in other, similar cases in order to demonstrate consistency. Sentencing judges often do refer to sentences previously imposed in similar cases, but not because they are obliged to do so; such sentences frequently provide a valuable yardstick to a sentencing judge.
The next ground of appeal, ground (k), alleges an error on the part of Rares J by his Honour not identifying a mitigating circumstance concerning, in particular, the aggravated robbery offences. The appellant submitted that “the lack of any violence” in the commission of these offences constituted a mitigating factor which reduced the objective seriousness of the offences which should have been acknowledged by his Honour. This submission is clearly untenable. The offence of aggravated robbery is committed where a person commits an offence of robbery while in company with one or more other people, or where a person commits the offence of robbery and, at the time of the robbery, has an offensive weapon with them: s 310 of the Criminal Code 2002 (ACT) (the Criminal Code). The offence of robbery is committed where a person commits theft and, when committing the theft, the person uses force on someone else, or threatens to use force then and there on someone else, with the intention of committing theft or to escape from the scene: s 309 of the Criminal Code. In order to prove the offence of robbery, and therefore also aggravated robbery, it is not necessary for the prosecution to establish that actual physical violence was used. It is sufficient to establish that a threat to use force was made. If actual force is used to commit the offence, as opposed to a threat of force, this may result in a determination that the offence is objectively more serious than if actual force is not used, but that is different to saying that the absence of actual force is a mitigating circumstance. The absence of a circumstance that would make an offence more serious is not, of itself, a mitigating circumstance. What is of importance for sentencing purposes is that the relevant facts be correctly identified, so that the objective seriousness of the offence may be assessed. That is what occurred in the present case.
Ground of appeal (l) alleges that Rares J erred in setting the non-parole period as a ratio of the head sentence. An associated ground of appeal, ground (n), alleges that his Honour failed to give reasons for the imposition of a “high non-parole period”. His Honour was obliged by s 65 of the Sentencing Act to set a non-parole period with respect to the sentences of imprisonment he imposed for ACT offences. The Sentencing Act does not prescribe a fixed ratio of head sentence to non-parole period that must be adhered to by sentencing courts. The length of the non-parole period is at the discretion of the sentencing judge, albeit that there are well recognised principles governing the proper exercise of the discretion. In Taylor v The Queen [2014] ACTCA 9, Murrell CJ, with whom Refshauge and Penfold JJ agreed, said at [19]:
The proper approach to fixing a non-period is well established and can be summarised as follows.
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
...
(emphasis as per original)
The total sentence of imprisonment to which the appellant was subject following sentencing by Rares J was 15 years and 1 month. The non-parole period imposed by his Honour on the ACT offences, and the RROs made on the Commonwealth offences, means that the appellant will be required to serve nine years and seven months imprisonment before he becomes eligible for release. While caution needs to be shown in approaching an examination of the correctness of a non-parole period by way of its calculation as a proportion of the head sentence, there is nothing in the proportion of 63 per cent in the present case which suggests error. When one considers the appellant’s criminal history and the nature and extent of offences before Rares J, it could be argued that the non-parole period imposed by his Honour was lenient. In setting the non-parole period that he did, Rares J gave weight to what he described as significant efforts made by the appellant during his current imprisonment to address criminogenic factors. If it were not for his Honour’s optimistic findings concerning the appellant’s prospects for rehabilitation, a significantly longer non-parole period may have been warranted.
The final ground of appeal, ground (m), alleges that Rares J failed to correctly apply the parity principle with regard to the appellant’s co-offender. The difficulty for the appellant is that his co-offender was granted immunity in relation to his participation in those offences jointly committed with the appellant, and upon which the appellant came to be sentenced by Rares J. As no sentence was ever imposed on the co-offender for these offences, no occasion for the application of the parity principle arose before Rares J: see Miles v The Queen [2014] ACTCA 41.
Other sentencing errors
As noted at [25] to [28] above, there were aspects of the sentence imposed by Rares J which need to be revisited although they were not raised by the appellant in the further amended notice of appeal. First, his Honour failed to impose separate sentences for the offences of aggravated burglary and theft committed on 27 June 2010. The global sentence imposed was one of five years imprisonment. Such a sentence was appropriate for the offence of aggravated burglary, taking into account the offences on the list of additional offences. Although the value of the property stolen was substantial, the offence of theft was properly punishable by a lesser penalty. In our opinion, taking into account all of the circumstances referred to by his Honour, a sentence of three years imprisonment, to be served concurrently with the sentence for aggravated burglary, is appropriate.
Secondly, his Honour did not comply with s 37 of the Sentencing Act in that he did not specify the extent to which he had reduced the otherwise appropriate sentences to acknowledge the appellant’s pleas of guilty. There can be no doubt that his Honour did take into account the appellant’s pleas of guilty in determining the appropriate sentences for each of the offences, as his Honour made numerous references to the circumstance of the pleas in his sentencing remarks, and referred to the fact that the pleas indicated acceptance of responsibility by the appellant, and also had, in the case of the ACT offences, a utilitarian value. Failure by a sentencing judge to comply with s 37 of the Sentencing Act does not invalidate the sentence; it is simply a failure to comply with a procedure the object of which is to inform an offender, the prosecution, the community and, on appeal, the appellate court of the reduction in sentence attributable to a plea of guilty, so that the process of sentencing may be better understood. The failure of his Honour was not in failing to take into account the appellant’s pleas; clearly he did. The failure was in not specifying the reduction in sentence he allowed by reason of the pleas. The sentences imposed by his Honour were appropriate, so that no further action on this issue is required.
The final matter to consider is the failure of Rares J to set a single non-parole period for the aggregate sentences on the ACT charges, as required by s 65 of the Sentencing Act. His Honour, in fact, set separate non-parole periods for each such offence, resulting in a total non-parole period of nine years and four months. We should correct the technical error made by his Honour, but there is no reason to vary the practical result of his Honour’s orders.
Conclusion
The appeal should be upheld to the extent that:
(a)the sentence of five years imprisonment imposed by Rares J for the offence of theft on 27 June 2010 is set aside and a sentence of three years imprisonment, to be served concurrently with the sentence imposed for the offence of aggravated burglary on the same day, is substituted; and
(b)the individual non-parole periods imposed by his Honour on the ACT offences are set aside, and a single non-parole period for all ACT offences of nine years and four months commencing 5 January 2011 and expiring 4 May 2020 is imposed.
The appeal otherwise is dismissed.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns and Justice Wigney. Associate: Date: 14 October 2016 |
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