Mundine v R

[2017] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mundine v R [2017] NSWCCA 97

Hearing dates:

1 May 2017

Decision date:

17 May 2017

Before:

Basten JA at [1];
Adamson J at [30];
Campbell J at [115]

Decision:

(1)   Grant leave to appeal against sentence.

 

(2)   Allow the appeal against sentence.

 

(3)   Quash the aggregate sentence imposed by Colefax DCJ on 27 September 2016 and the order directing the applicant’s release on 27 September 2016.

 

(4)   For the offence of common assault, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 March 2015 and expiring on 27 September 2015.

 

(5)   For the offence of contravene apprehended violence order, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 June 2015 and expiring on 28 December 2015.

 

(6)   For the offence of assault occasioning actual bodily harm, impose a sentence of imprisonment of 2 years, commencing on 28 June 2015 and expiring on 27 June 2017, with a non-parole period of 1 year and 3 months, commencing on 28 June 2015 and expiring on 27 September 2016.

 

(7)   For the offence of reckless wounding, impose a sentence of 2 years and 3 months, commencing on 28 June 2016 and expiring on 27 September 2018, with a non-parole period of 3 months, commencing on 28 June 2016 and expiring on 27 September 2016.

 (8)   Direct that the applicant be released to parole on 27 September 2016.

Catchwords:

CRIMINAL LAW – appeal – aggregate sentencing – whether aggregate sentence manifestly excessive – where trial judge erred in directing the applicant’s release where sentence exceeded three years’ imprisonment – release to parole a matter for Parole Authority

 

CRIMINAL LAW – correction of sentence under s 43 of Crimes (Sentencing Procedure) Act – importance of making and entering order

 

CRIMINAL LAW – effect of s 53A of Crimes (Sentencing Procedure) Act – restrictions on commencement dates in s 47 inapplicable to aggregate sentences – mathematical effect to allow greater latitude in adjusting statutory ratio for an aggregate sentence than where individual sentences imposed

 

CRIMINAL LAW – effect of certificate under s 166(1) of Criminal Procedure Act – applicable jurisdictional limit constraint on sentence that can be imposed for offence on certificate

  SENTENCING – re-sentence – appellate court not bound by sentencing judge’s decision to impose aggregate sentence if individual sentences thought to be more appropriate in circumstances of particular case

Legislation Cited:

Bail Act 2013 (NSW), s 22
Crimes Act 1900 (NSW), ss 35, 59, 61; Sch 1
Criminal Appeal Act 1912 (NSW), ss 5, 6
Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Domestic and Personal Violence) Act 2007(NSW), s14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 22, 23, 43, 44, 47, 48, 50, 53A, 54B, 62
Criminal Procedure Act 1986 (NSW), ss 165, 166, 167, 168, 268

Cases Cited:

AB v R [2014] NSWCCA 31
Cross v R (No 2) [2012] NSWCCA 234
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gall v R [2015] NSWCCA 69
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McCarthy v R (2011) 206 A Crim R 131; [2011] NSWCCA 64
Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Potts v R [2017] NSWCCA 10
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317

Category:

Principal judgment

Parties:

Jerome Mundine (Applicant)
Regina (Respondent)

Representation:

Counsel:
PJ Wilson (Applicant)
N Williams (Respondent)

    Solicitors:
Aboriginal Legal Service (Applicant)
Director for Public Prosecutions (Respondent)

File Number(s):

2015/95795

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

27 September 2016

Before:

Colefax SC DCJ

File Number(s):

2015/95795

Judgment

1. BASTEN JA: On 27 September 2016 Judge Colefax SC sentenced the applicant, Jerome Mundine, to an aggregate term of 4 years and 6 months imprisonment with a non-parole period of 18 months, dating from 28 March 2015. The individual offences and the history of the sentencing proceedings have been fully set out by Adamson J and need not be repeated here.

2. Where a person is sentenced to imprisonment for a term of 3 years or less, the Court must make an order directing the release of the offender on parole at the end of the non-parole period, pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”). Despite the aggregate sentence being for a period of 4.5 years, the judge directed that Mr Mundine be released from custody immediately on parole, his non-parole period having expired that day.

3. As the applicant was being sentenced to an aggregate sentence in respect of four separate offences, the judge indicated the sentences he would have imposed for each offence, had individual sentences been imposed. If separate sentences had in fact been imposed for each offence, none would have exceeded 3 years, the longest individual sentence being 2 years 3 months. This Court has held that s 50 is engaged with respect to each of several sentences so long as none exceeds 3 years, even though the total sentence period exceeds 3 years: see Cross v R(No 2) [1] accepted without further discussion in Gall v R. [2] Thus, in Cross the overall sentence period was 5 years 6 months, as a result of accumulating three individual sentences, the longest of which was 3 years and, being the last imposed, contained a non-parole period of only 3 months. The reasoning in Cross extended to the following proposition:[3]

“There is the further difficulty of what purpose might be intended by making a parole order which cannot be effected as a result of a sentence for a further offence being imposed at the same time.”

1. [2012] NSWCCA 234 at [4]-[5] (Allsop P, Hidden and Davies JJ).

2. [2015] NSWCCA 69 at [231] (Hoeben CJ at CL; RA Hulme and Davies JJ agreeing).

3. Cross at [6].

4. If the release direction will be ineffective because of another non-parole period extending beyond the end of the non-parole period caught by s 50, such a direction would not only be futile but misleading and confusing. It can be avoided by imposing a fixed term to reflect the non-parole period of the sentence of 3 years or less.

5. In short, the judge could have achieved the intended result if he had imposed the individual sentences. However, the sentencing judge did not adopt this approach; instead he imposed an aggregate sentence of imprisonment covering all of the offending, pursuant to s 53A of the Sentencing Procedure Act.

6. What might have been treated as a technical error was compounded by what happened next. The problem having been raised with the Director of Public Prosecutions by the Parole Authority, the matter came back before the sentencing judge on 12 December 2016 pursuant to an application under s 43 of the Sentencing Procedure Act. That provision allows the Court to reopen the sentencing proceedings, on the basis that a penalty has been imposed that is contrary to law. What is meant by “impose a penalty” for the purposes of that provision is identified in s 43(6). However, the error which the judge made was in directing the release of the applicant on parole, in circumstances where he had no power to do so. That direction does not self-evidently fall within any of the six categories of order specified within the definition. On the other hand, the definition is inclusive and not exclusive. Nevertheless, it was by no means clear that s 43 was engaged; nor is it entirely clear what order varying the sentence could properly have been made on a reopening of the proceedings, except possibly a resentencing to impose sentences for each offence.

7. Although the judge agreed to reopen the proceedings, he did not actually resentence the applicant. It was assumed in the course of the hearing before us that what should have happened was for an order to be made revoking the direction that the offender be released on parole. However, the applicant had already been released on parole and what would be the effect of an order revoking that direction is by no means clear. The hearing on 12 December was adjourned to 14 December to allow the applicant to file an application in this Court seeking leave to appeal his sentence.

8. That confusion was exacerbated by the next step taken on 14 December 2016. The sentencing judge clearly said that he thought it inappropriate to have the applicant return to custody, particularly as, by that date, the applicant had appealed against the severity of the sentence. The applicant was then granted bail pending his appeal. Further, the judge made an order purportedly staying the issue of a warrant for his return to prison. The assumption underlying this order was, it appears, that a warrant of commitment was available pursuant to s 62 of the Sentencing Procedure Act. That provision has been set out by Adamson J at [80] below.

9. That assumption may also have been mistaken. At that stage, the applicant was at large as a result of an order of the court directing his release. That order may have been made on a mistaken basis, but while it stood unrevoked, the applicant was not liable to be returned to custody on the basis of the extant sentences, unless the order directing his release was void and could be ignored. That issue was not addressed.

10. The applicant is now back in custody, but in relation to other charges, bail having been refused. It would seem that he is not serving the sentence imposed on him by Judge Colefax.

11. Apart from the application to reopen the sentencing proceedings, which appear on one view to be part heard, the Director of Public Prosecutions has taken no step to challenge the order for release on parole, nor otherwise to place the offender back in custody to serve the uncompleted 3 year balance of term of the aggregate sentence imposed by Judge Colefax. What would have happened if the applicant had not been rearrested on entirely separate charges, which resulted from his conduct whilst at large, is not known. In any event, the applicant has now sought to reagitate this matter by seeking leave to appeal against the severity of the sentence imposed by Judge Colefax. He seeks to do that by challenging the balance of term, but not the non-parole period.

12. Somewhat ironically, the applicant sought to rely in his amended grounds of appeal upon the order for his release, which was said to have “affected the sentencing exercise.” If it affected the sentencing exercise adversely to the applicant, how it did so is entirely obscure.

13. The second and third grounds, also ironically, repeated the error which may have been made by the sentencing judge, namely treating the “indicative sentences” as the sentences which were imposed. They were not.

14. It may be necessary to abandon the language of “indicative sentences” as it seems to invoke a degree of confusion. The phrase does not appear in s 53A of the Sentencing Procedure Act; rather, that provision requires the court, in imposing an aggregate sentence, to “indicate to the offender” a number of things, including “the sentence that would have been imposed for each offence … had separate sentences been imposed instead of an aggregate sentence.” Perhaps some other language should be used for these indications, such as “putative sentences”, to emphasise that they are not in fact sentences imposed on the offender. However, the matter is complicated because, in giving such an indication, the court is required to take into account such matters as might have been taken into account in imposing a sentence, pursuant to Pt 3 of the Sentencing Procedure Act, which will include, for example, making due allowance for an early plea of guilty or assistance to authorities. [4]

    4. Sentencing Procedure Act, ss 22 and 23.

15. Further, what is to be indicated is the length of the sentence, rather than the date of its commencement or the degree of accumulation, or any allowance which might be made in fixing individual sentences to ensure that the totality of the sentence is not excessive. Indeed, it is neither necessary nor appropriate in most cases to identify the non-parole period, unless a standard non-parole period has been prescribed for the offence. [5] In fact, a standard non-parole period was specified for the offence of reckless wounding, one of those with which the applicant was charged, but a non-parole period was not specified in indicating the sentence which would otherwise have been imposed. That error would not invalidate the sentence. [6]

    5. Sentencing Procedure Act, s 54B(4).

    6. Sentencing Procedure Act, s 54B(7).

16. Returning to the grounds of appeal, grounds 2 and 3 complained about the manner in which the “indicative sentences” had been accumulated, and totality achieved. Appropriately, the sentencing judge had not addressed those questions, except by stating in broad terms that the sentences for assault occasioning actual bodily harm and contravening an AVO would have been served totally concurrently and that there would have been some accumulation with respect to the other offences.

17. In any event, as Adamson J correctly states, errors in formulating indicative sentences (not being the sentence imposed) do not as such provide a ground of appeal. What needs to be established is that the reasoning of the sentencing judge, including the indication as to putative sentences, demonstrates a departure from principle to such a degree that one may infer that the resulting aggregate sentence was manifestly excessive.

18. The failure of the sentencing judge to identify a non-parole period with respect to the charge of reckless wounding may have been more than a technical error in that, had the judge addressed the issue expressly, he might have considered it necessary to indicate a non-parole period which would cast doubt on the non-parole period ultimately set. However, if that were a possible effect, it was one which could only have operated adversely to the interests of the applicant and may be disregarded in considering whether the sentence imposed was manifestly excessive.

19. There was another respect in which the judge erred, in this case adversely to the interests of the applicant. As explained by Adamson J, his assessment of the seriousness of the assault occasioning actual bodily harm was appropriately reflected in the indication of an individual sentence of 2 years 3 months (after reduction by 25% for the plea of guilty). However, because that offence was being dealt with on a s 166 certificate, he was limited to the maximum sentence available in the Local Court, which was 2 years. That jurisdictional limit applies only to the sentence actually imposed, not to the starting point prior to the discount for the plea. It does, however, indicate that the sentencing judge took into account in fixing the aggregate sentence a sentence which exceeded his jurisdictional limit by 3 months. Although the error is not great and is readily understandable, it is one which justifies the intervention of this Court.

Resentencing

20. If this Court is to exercise an independent discretion, in accordance with the statements in Kentwell v The Queen,[7] it is necessary for the Court to indicate its view as to the individual sentences which might have been imposed, if it were minded to impose an aggregate sentence. In my view, that course ought not to be taken because, by imposing individual sentences, the Court can achieve the same result as the sentencing judge intended with respect to release on parole. That course will avoid the difficulties in identifying and undoing the consequences of the applicant’s incorrect release on parole.

    7. (2014) 252 CLR 601; [2014] HCA 37 at [40]-[41] (French CJ, Hayne, Bell and Keane JJ).

21. If that result is to be achieved, it must, as explained in Kentwell, be the result of an “independent exercise of discretion” by this Court. So much may be accepted; that does not mean, however, that this Court necessarily starts afresh. Further, it also does not mean that, if the Court thinks a greater sentence is required, that sentence should necessarily be imposed. As the joint reasons in Kentwell recognised, if the Court concludes that “the same sentence or a greater sentence is the appropriate sentence”, the Court is not required to resentence. [8]

    8. Kentwell at [43].

22. The sentencing exercise should not be undertaken entirely afresh in the present case, for a number of reasons, some of which are common to other cases. First, the judge made findings of fact which are not challenged by the parties. Secondly, at least some findings are not in any event open to review. The offender gave evidence which led the judge to a finding as to remorse and as to his prospects of rehabilitation. This Court did not hear the offender give evidence and should be slow to interfere with such findings, in the absence of evidence warranting a different view, which evidence was either not before the sentencing judge, or was, but was not taken into account. Interference with such findings should be subject to the well-understood limitations on appellate review of fact-finding discussed in Fox v Percy. [9] There were no circumstances warranting rejection of the findings of the sentencing judge in this case. Although this Court was informed that the applicant has been returned to custody on fresh charges, it was agreed that this evidence was not to be taken into account on resentencing. There was no other evidence that was not before the sentencing judge.

    9. (2003) 214 CLR 118; [2003] HCA 22.

23. Thirdly, although this was not a case where the sentencing judge had the benefit of having conducted a trial, his opportunity to consider the evidence and to engage with counsel in the course of submissions was significantly greater than the opportunity of this Court.

24. Fourthly, accepting that the order for release of the applicant immediately following the sentencing was not a lawful order, the fact remains that the applicant was released from custody by order of the court and through no fault of his own. The matter comes before this Court on an appeal by the offender, not by the Director. Accordingly, s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) is not engaged and the Court is entitled to take into account factors such as the element of double jeopardy which would be involved in imposing what would be, as a matter of practice, a more burdensome sentence.

25. In resentencing the applicant, it is open to the Court to reduce the overall sentence period, for the reasons explained by Adamson J, and to fix individual sentences for each offence. In imposing individual sentences, it is significant that the contravention of the AVO, the assault occasioning actual bodily harm and the reckless wounding all occurred within a very short period of time. Further, although it does not reduce the moral culpability of each offence, the sentencing judge accepted that the offender’s judgment was affected by “ice”, which is entirely plausible, given the nature of the behaviour, including the somewhat random attack on the victim on the bicycle. This suggests that a significant degree of concurrence is appropriate.

26. It would be open to consider the non-parole period imposed by the sentencing judge to be lenient. However, it would normally not be appropriate to increase the non-parole period without giving the offender an opportunity to withdraw his application for leave to appeal. [10] Given the errors noted above and the uncertainty of his custodial status, that course is not appropriate. Even if the Court were minded to increase the non-parole period, that course is not required by s 6(3) of the Criminal Appeal Act 1912 (NSW) (as explained in Kentwell [11] ) and should not be taken in the present case.

    10. Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 295 (Kirby P; Handley and Sheller JJA agreeing).

    11. See at [21] above.

20. Further, one would usually commence the sentences on 21 March 2015, when the applicant was arrested, but that would be a minor change which would complicate the sentencing process, with no real benefit in terms of transparency or principle. It is open to commence the sentence for assault on 28 March 2015. As none of the proposed sentences taken individually exceeds 3 years, in accordance with Cross, the Court is entitled (and indeed required) to direct the release of the applicant on 27 September 2016.

21. The finding of special circumstances should be made for the reasons given by the sentencing judge and Adamson J.

22. Accordingly, I agree with the orders proposed by Adamson J.

23. ADAMSON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the sentence imposed upon him by Judge Colefax SC in the Parramatta District Court on 27 September 2016 on the grounds which are set out in the draft amended notice of appeal filed with the application on 10 March 2017. The grounds of appeal are:

“1.   The District Court erred in directing the appellant to be released to parole on the day of sentence, when the total term of the sentence imposed was greater than 3 years. The Court had no power to make that direction; that error affected the sentencing exercise.

2.   The District Court erred in imposing a sentence that was manifestly excessive; particularly:

a.   In determining indicative sentences for each offence.

b.   In accumulating the sentences.

c.   In assessing the totality of the sentences that were imposed.

3   The Court erred in its approach to accumulation.”

The sentence imposed

31. On 18 May 2016, the applicant pleaded guilty at Campbelltown Local Court and was committed for sentence. On 27 September 2016 the applicant was sentenced for the offence of reckless wounding. As a result of this offence, he was called up on a good behaviour bond into which he had been directed to enter on 30 July 2014 pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) after he had been convicted of an offence of common assault. The effect of his being called up on the bond was that the applicant was to be re-sentenced for that offence. There were two further summary offences for which the applicant was to be sentenced, which were the subject of a certificate issued pursuant to s 166(1) of the Criminal Procedure Act 1986 (NSW). These two offences were: an assault occasioning actual bodily harm and contravene apprehended violence order, which were committed on the same day as the reckless wounding.

32. Accordingly, on 27 September 2016 the applicant stood to be sentenced for the following four offences, for which the indicative sentences were as set out below:

Date of offence	Offence/ section	Maximum penalty	Indicative sentence (after 25% deduction for plea of guilty)
28 April 2014	Common assault/ s 61, Crimes Act 1900	2 years’ imprisonment	9 months
21 March 2015	Reckless wounding/ s 35(4), Crimes Act	7 years’ imprisonment; 3 year Standard Non-Parole Period	2 years, 3 months
21 March 2015	Assault occasioning actual bodily harm/ s 59(1), Crimes Act	5 years’ imprisonment	2 years, 3 months
21 March 2015	Contravene apprehended violence order/ s 14(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW)	2 years’ imprisonment or a monetary penalty of 50 penalty units or both	9 months

33. The sentencing judge noted that early pleas of guilty were entered and allowed a discount of 25%. The applicant was sentenced to an aggregate term of imprisonment pursuant to s 53A(1) of the Act of a total term of 4 years and 6 months which commenced on 28 March 2015. The sentencing judge made a finding of special circumstances with a resultant variation of the statutory ratio between the non-parole period and the total sentence. The non-parole period of 18 months is 33% of the aggregate sentence.

34. The non-parole period expired on the day of sentence, 27 September 2016. His Honour purported to direct that the applicant be released to parole immediately. The applicant was released in accordance with the court order.

The facts on the basis of which the applicant was sentenced

35. The applicant was sentenced on the basis of an agreed statement of facts, of which the following is a summary. On 28 April 2014 the applicant was in a domestic relationship with Trisha Kellcurcy, with whom he lived at Waterloo. Ms Kellcurcy was pregnant with their first child. That morning Ms Kellcurcy was suffering from terrible morning sickness, which caused her to vomit. She asked the applicant to take her to hospital. He reacted angrily towards her and refused. She called triple-0. Paramedics arrived and concluded it was necessary for her to be taken to hospital. The applicant was unhappy that Ms Kellcurcy was going to hospital. She started to walk away from him. He grabbed her by the collar of her shirt and pulled her with such force that she fell to the ground.

36. The applicant was sentenced for the offence of common assault on 30 July 2014. In accordance with an order of the Local Court directing him to do so, the applicant entered into a bond to be of good behaviour pursuant to s 9 of the Act. The Local Court also made an apprehended violence order for a period of two years until 30 July 2016 and named Ms Kellcurcy as the person in need of protection. It was a term of the apprehended violence order that:

“The defendant [the applicant] must not assault, molest, harass, threaten or otherwise interfere with the protected person.”

37. On 10 November 2014 Ms Kellcurcy gave birth to a daughter.

38. On 21 March 2015, while the apprehended violence order was still in force, there was an argument between the applicant and Ms Kellcurcy as a result of which the applicant became agitated. He armed himself with a knife he had obtained from the kitchen. Ms Kellcurcy was able to grab the knife away and told the applicant to leave the house. The applicant went back to the kitchen and armed himself with another knife. The argument continued and they began to walk up the stairs of their townhouse, both still holding knives. When they were halfway up the staircase, the applicant kicked Ms Kellcurcy in the face, as a result of which she was knocked unconscious and she fell back down the stairs. Once she regained consciousness, she discovered she had bruising and swelling to her face. The kick constituted the offence of assault occasioning actual bodily harm. The conduct immediately prior to the assault constituted the offence of contravene apprehended violence order.

39. The applicant ran from the premises still holding the knife. Arthur Haddad and his brother were riding bicycles along the bike path outside the applicant's home. The applicant did not know either person. He went straight up to Mr Haddad and stabbed him in the left upper back/shoulder region with the knife. This was the reckless wounding offence. The victim was conveyed to hospital where he was treated for a 1cm stab wound to the left posterior/axilla region that required one suture.

40. The applicant was arrested and taken into custody on 21 March 2015. I infer that the sentencing judge selected 28 March 2015 as the commencement date for the sentence for mathematical reasons. The selection of this commencement date had the effect that the non-parole period would expire on 27 September 2016, being the date on which the sentence was imposed.

The sentencing proceedings and judgment

41. The Crown tendered a bundle of material which included: the agreed facts; two photographs of the injury suffered by Mr Haddad; the applicant's criminal and custodial records, along with the breach of bond papers. The applicant tendered a psychological report of Dr Adams and a letter from his uncle, Cyril Mundine, of the Tribal Warrior Association, who also gave evidence at the hearing. The applicant gave evidence at the sentence hearing. He told the court that he wanted to “be around for my daughter” and that he “a hundred per cent” could stay off drugs if released.

42. In sentencing the applicant, his Honour assessed the common assault as a “mid range offence"; the reckless wounding as "falling somewhere equidistant between the middle and the bottom of the range"; and the assault occasioning actual bodily harm, and contravene apprehended violence, offences as "mid-range offences". His Honour took into account as "a significant aggravating fact" that the three offences committed on 21 March 2015 were committed while the applicant was on a s 9 bond for the common assault. The sentencing judge also noted that the applicant’s criminal activity on this day could easily have resulted in the deaths, or the serious maiming, of two people, Ms Kellcurcy and Mr Haddad, who had done nothing wrong.

43. The sentencing judge considered general deterrence to be a significant factor and specific deterrence to be of lesser significance. His Honour accepted the applicant had an "unfortunate upbringing"; that he had been exposed "at a very, very young age to illicit drugs"; and that he had been physically and sexually abused as a child. His Honour described his criminal record as a juvenile as “shocking” and noted the wide range of offences in his criminal history including stealing cars, robbery armed with an offensive weapon, assault, and break and enter. His Honour noted that, on 21 March 2015, the applicant was suffering from substance induced psychosis and that, while in custody over the last 18 months, he had not taken any illicit drugs.

44. His Honour found special circumstances and altered the statutory ratio of 75% to 33%. As referred to above, at the conclusion of the sentence hearing on 27 September 2016, the sentencing judge imposed an aggregate sentence of 4 ½ years with a non-parole period of 18 months. His Honour purported to direct that the applicant be released immediately.

Events following the imposition of sentence

45. On 30 September 2016, the Parole Authority learned that the applicant had been released from custody, apparently pursuant to s 50 of the Act. On 5 October 2016 the State Parole Authority advised the Director of Public Prosecutions that the applicant had been erroneously released to parole. The Director accepted that the sentence needed to be corrected pursuant to s 43 of the Act. The matter came before Sides DCJ on 7 October 2016, who listed the matter on 21 October 2016. On 21 October 2016, the matter came before Bennett DCJ, who stood the matter over so that it could be listed before Colefax DCJ on 12 December 2016 for that purpose.

The further sentencing hearing on 12 December 2016

46. The Crown submitted that the order for parole made on 27 September 2016 fell outside the Court’s power under s 50(1) of the Act because the sentence exceeded three years’ imprisonment. It contended that the order made on 27 September 2016 should be amended to note that the applicant was eligible for release to parole on 27 September 2016. The Crown also submitted that a warrant for the committal of the applicant to a correction centre was required pursuant to s 62 of the Act.

47. The applicant’s solicitor opposed the Crown’s application; read an affidavit of the applicant and tendered a further letter from the applicant’s uncle, who was associated with the Tribal Warrior Association. He foreshadowed an intention to appeal the sentence. In his affidavit the applicant deposed that his relationship with Ms Kellcurcy had improved and that their daughter was now calling him “Dad”. He described himself as “heaps supportive” and was looking forward to Christmas with his family. He deposed that he was doing a literacy program and complying with parole, as well as attending boxing sessions run by Tribal Warrior.

48. His Honour found that, subject to one consideration, “the inevitable outcome of the re-opening of the proceedings should be that Mr Mundine should go into custody pending the determination of his suitability for parole”. His Honour said that he had been told that the determination would take up to eight weeks, which he considered to be “highly undesirable considering the very considerable steps that the applicant had taken to rehabilitate himself since 27 September”. His Honour concluded:

“The only exception I can see to that outcome is for Mr Mundine to be granted bail pending the outcome of the appeal which has been foreshadowed”.

49. On 12 December 2016, his Honour made the following orders: first, an order that the sentence proceedings be re-opened pursuant to s 43 of the Act; second, that unconditional bail be granted; and third, that the proceedings be adjourned to 14 December 2016.

50. The proceedings were adjourned to 14 December 2016 to allow the filing of an appeal to this Court and for evidence to be adduced for the application for bail pending appeal. The sentencing judge granted unconditional bail to the applicant.

The further hearing on 14 December 2016

51. At the resumed hearing on 14 December 2016 the applicant tendered evidence that comprised his application for leave to appeal, which was filed on 13 December 2016, together with draft grounds of appeal and written submissions.

52. At the conclusion of the hearing on 14 December 2016 his Honour granted conditional bail pending appeal pursuant to s 22 of the Bail Act 2013 (NSW). In the reasons for decision his Honour noted that his attention had been drawn to s 62 of the Act, but that he considered that there was an implied power for him to stay the issue of the warrant. No order revoking the order purportedly made under s 50 on 27 September 2016 was made. The sentencing judge made the following order in relation to a warrant:

“To the extent necessary, stay the issue of the warrant of commitment pending the determination of the Court of Criminal Appeal.”

53. The Court’s record, JusticeLink, does not record that any warrant of commitment was issued pursuant to s 62. The terms of his Honour’s order indicate that his Honour intended to prevent the issue of the warrant (so that the applicant could remain at liberty) pending the determination of the leave application and any appeal.

The applicant’s return to custody

54. On 5 April 2017, the applicant was arrested and remanded in custody as a result of further charges. He remains bail refused in respect of those charges, which have yet to be determined. Mr Wilson, who appeared on behalf of the applicant in this Court, accepted that he was likely to remain bail refused until the matters were finally determined. These matters are included for completeness. The Crown did not rely on the affidavits for the purposes of re-sentence if error were found.

55. In April 2017, Mr Bakalidis, a solicitor at the Director of Public Prosecutions, wrote to the Parole Authority to ascertain whether there were any records relating to the applicant, presumably with a view to providing them to this Court in the event of re-sentence. By email dated 21 April 2017, the Parole Authority responded:

“Please be advised that the Parole Authority do not currently hold any reports, documents or records in respect of Jerome MUDINE [sic].

As you have indicated in your letter, the offender was released expressly from court, despite the total sentence being in excess of 3 years and release necessitating consideration by the Parole Authority. Given the offender was released to parole, it was considered inappropriate to return the offender to custody given the result of an administrative error.”

The parties’ submissions

Ground 1

The applicant’s submissions

56. The applicant contended, and the Crown accepted, that the sentencing judge had no power to order the applicant’s immediate release on 27 September 2016 since the sentence exceeded three years and therefore s 50 of the Act had no application. Mr Wilson argued that this error revealed that the sentencing judge had approached the task of sentencing the applicant “in reverse” because his Honour wanted both to ensure the release of the applicant on the day the sentence was imposed and also to impose a total term well in excess of three years.

57. Mr Wilson relied on what Simpson J (McClellan CJ at CL and Price J agreeing) said in Musgrove v R (2007) 167 A Crim R 424; [2007] NSWCCA 21 at [44]:

“That the non-parole period is now, by s 44(1), required first to be set does not necessarily mean that it must first be determined: see Moffitt at 122, R v P [2004] NSWCCA 218; R v Tobar. Indeed, in the light of the discretion conferred by subs (2), it is difficult to see how the sentencing duty could properly be discharged by the determination first of the non-parole period. To determine, initially, the non-parole period, before determining the total sentence, would, in my opinion, (where special circumstances are then found) be conducive to error of the kind exposed in Huynh. A finding of special circumstances, after the determination of the non-parole period, would provoke an extension, beyond proper limits, of the balance of term. Sentencing judges need to be wary of taking a course that might lead to that error. Yet, on too literal an application of the section, that kind of error is rendered likely. The section appears to enjoin a sentencing judge firstly to fix the non-parole period, as the minimum term to be served in custody; and then to consider the question of special circumstances. It is obvious that, if special circumstances are found, the temptation will be to extend the balance of term rather than, as was held in Moffitt and cases thereafter to be the correct course, to reduce the non-parole period.”

58. Mr Wilson submitted that the sentencing judge had committed the error identified by Simpson J and contended that his Honour had determined the non-parole period first, (by reference to the date of the sentence hearing) and then found special circumstances which had the effect of elongating the total term beyond that which would have been appropriate. He submitted that his Honour ought to have addressed the total term first; then made a judgment on whether there were special circumstances and, if so, by how much the statutory ratio ought be altered; and, finally, set the non-parole period.

The Crown’s submissions

59. The Crown contended that the error in the sentence imposed on 27 September 2016 was rectified when the matter was re-listed before his Honour in December 2016. The Crown submitted that the effect of what occurred on 12 and 14 December 2016 was: to revoke the applicant's parole; notionally return the applicant to custody; stay the operation of the warrant; and grant appeal bail. It contended that this effectively cured any error ab initio.

Ground 3: excessive accumulation

60. As grounds 2 and 3 are related and ground 3 might be regarded as a particular of ground 2, it is convenient to deal with ground 3 before ground 2.

The applicant’s submissions

61. The applicant submitted that there was excessive accumulation of the indicative sentences, which tended to account for the manifest excess of the result. Mr Wilson relied on s 47 of the Act in support of the submission that it was incorrect to fix a date for the commencement of a sentence of imprisonment on a date which was later than the date on which the offender was either entitled to be released from custody or will become eligible for release on parole. He submitted that the purpose of s 53A was to simplify the process of sentencing by permitting an aggregate sentence to be imposed with indicative sentences to be identified without requiring the sentencing court to specify a commencement date for the sentence for each individual offence.

62. Mr Wilson contended that, had the sentencing judge adopted the procedure outlined in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (which applied before s 53A was inserted into the Act), the total sentence could not have been arrived at without commencing one of the indicative sentences (which would, on that hypothesis have been an actual sentence) after the expiry of the non-parole period of one or more of the other sentences. The applicant contended that s 53A did not otherwise authorise a sentencing judge to do that which could not have been done (by reason of s 47(2) and (4)) had individual sentences been imposed rather than an aggregate sentence.

The Crown’s submissions

63. The Crown submitted that the effect of s 53A was to overcome the strictures of imposing individual sentences by authorising a single aggregate sentence. It contended that s 47 did not apply and relied on AB v R [2014] NSWCCA 31 at [10] per R A Hulme J (Beazley P and Schmidt J agreeing):

“Another matter was that the judge specified commencement dates for each of the indicative sentences. This was unnecessary and it is contrary to the benefits conferred by the relatively recent amendments to the sentencing legislation that now permits aggregate sentencing. As it turns out, there was a gap between the expiry of some sentences and the commencement of the next sentence but that is immaterial. The dates the judge specified can be ignored because they are otiose.”

Ground 2: manifest excess

64. Mr Wilson contended that the length of the sentence was such as to indicate error. He also relied on specific errors which he submitted contributed to the manifest excess. He argued that manifest excess in one or more of the indicative sentences could indicate that the aggregate sentence was manifestly excessive. He also argued that there was excessive accumulation (which was also the subject of ground 3).

65. He submitted that the indicative sentence of 9 months for the common assault was excessive, having regard to the maximum penalty of two years’ imprisonment. He submitted that the conduct underlying the offence was not particularly serious as it involved no more than the applicant grabbing the collar of his partner’s shirt and pulling her, albeit with such force that she fell to the ground. He relied on comparative statistics to show that it was relatively rare for a custodial sentence to be imposed for common assault and that a more serious assault, although not one occasioning actual bodily harm, such as a punch or a kick, would be required to arrive at a sentence such as the one indicated by the sentencing judge. He referred to McCarthy v R (2011) 206 A Crim R 131; [2011] NSWCCA 64 as an illustration of the use that can be made of such statistics. He contended that the starting point for the indicative sentence of one year (before the discount of 25% for the plea was applied) was too high since the objective seriousness was well below the mid-range for such offences.

66. Further, Mr Wilson argued that the indicative sentence of 2 years and 3 months for the assault occasioning actual bodily harm was, of itself, erroneous because it exceeded the jurisdictional limit of the Local Court to impose sentences of no more than 2 years. He contended that, as the offence was the subject of a certificate issued under s 166(1) of the Criminal Procedure Act, the indicative sentence could not exceed the jurisdictional limits of the Local Court.

67. The Crown accepted that the indicative sentence for the assault occasioning actual bodily harm revealed an error in that the sentencing judge failed to appreciate the applicable jurisdictional limit. However, it contended that this did not render the aggregate sentence manifestly excessive. The Crown contended that the aggregate sentence reflected the criminality of all of the offences and that this Court ought not disturb it.

Relevant statutory provisions

68. This application is to be determined having regard to the statutory provisions set out below, which affected the power of the sentencing judge, both in imposing sentence and in other respects.

Criminal Procedure Act

69. Chapter 3 of the Criminal Procedure Act provides, as its title indicates, for “Indictable Procedure”. Part 3 of Chapter 3, entitled “Trial Procedures”, provides, in Division 7, that certain summary offences may be dealt with in the course of proceedings on indictment.

70. Section 165(1) defines “related offence” as follows:

“related offence, in relation to an indictable offence, means an offence:

(a)     that is:

(i)  a summary offence, or

(ii)  an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b)    that arises from substantially the same circumstances as those from which the first indictable offence has arisen,

but does not include a back up offence.”

71. Section 166 relevantly provides for “certification and transfer” of related offences. Where a person is being committed for sentence for an indictable offence, the prosecutor must inform the Magistrate whether the person has been charged with any related offence and, if so, must produce to the court a certificate specifying each related offence. The Magistrate is obliged to transfer to the court to which the person has been committed for sentence, the proceedings on each related offence along with the certificate.

72. Under s 167, a court dealing with a person who has been committed for sentence may deal with any related offence “unless to do so would not be in the interests of justice”. Section 168 provides that the court dealing with the indictable offence is to deal with the related offence without a jury. In sentencing a person for a related offence, the court has the same functions, and is subject to the same restrictions and procedures as the Local Court: s 168(3).

73. Table 2 to Schedule 1 of the Criminal Procedure Act applies to indictable offences that are to be dealt with summarily unless prosecutor elects otherwise. Part 1 of Table 2, entitled “Offences against the person under Crimes Act 1900” includes, in cl 1, “offences against the person” and lists an offence under s 59 of the Crimes Act (assault occasioning actual bodily harm).

74. Section 268 of the Criminal Procedure Act relevantly provides:

“268   Maximum penalties for Table 2 offences

(1) This section prescribes the maximum penalty that may be imposed for an indictable offence listed in Table 2 to Schedule 1 dealt with summarily under this Chapter in any case where the maximum penalty (when the offence is dealt with summarily) is not provided by law.

(1A)  The maximum term of imprisonment that the Local Court may impose for an offence is, subject to this section, 2 years or the maximum term of imprisonment provided by law for the offence, whichever is the shorter term.

. . .”

Crimes (Sentencing Procedure) Act

75. Section 43 of the Act provides that a sentencing court may, on its own initiative or on the application of a party, re-open proceedings to correct sentencing errors and, if necessary, amend any order or impose a penalty that is in accordance with the law. Section 43(3) provides that a court may issue a warrant for a person’s arrest if it calls on that person to appear before it for the purposes of re-opening the proceedings.

76. Section 47 provides for commencement of sentences. Where more than one sentence is imposed, the following subsections relevantly apply:

“(2)  A court may direct that a sentence of imprisonment:

. . .

(b)     commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

. . .

(4)  The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:

(a)     will become entitled to be released from custody, or

(b)     will become eligible to be released on parole,

having regard to any other sentence of imprisonment to which the offender is subject.”

77. Section 48 provides for information to be given about the release date when a sentence is imposed. Section 48(1)(b) relevantly provides that, when imposing an aggregate sentence, the court must specify the earliest day on which it appears that the offender will be eligible to be released on parole.

78. Section 50(1) provides that when a court imposes a sentence of imprisonment for a term of 3 years or fewer and there is a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period.

79. The sentencing judge’s power to impose an aggregate sentence was governed by s 53A of the Act, which relevantly provides:

“53A Aggregate sentences of imprisonment

(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following:

(a) the fact that an aggregate sentence is being imposed,

(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

. . .

(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

80. Section 62 of the Act provides:

“62   Warrant of commitment

(1)  As soon as practicable after sentencing an offender to imprisonment, a court must issue a warrant for the committal of the offender to a correctional centre.

(2)  The warrant must be signed by an authorised officer.

(3)  A warrant under this section is sufficient authority:

(a)  for any police officer to convey the offender to the correctional centre or police station identified in the warrant, and

(b)  for the governor of the correctional centre, or the person in charge of the police station, to keep the offender in his or her custody for the term of the sentence.

(4)  This section does not apply:

(a)  while action is being taken under Part 5 or 6 in relation to the making of an intensive correction order or home detention order, or

(b)  to a sentence of imprisonment the subject of an intensive correction order or home detention order.”

Consideration

Ground 1

81. The sentencing judge was in error in directing the release of the applicant on 27 September 2016 since the sentence he imposed was in excess of three years and therefore s 50 of the Act had no application. It was open to the sentencing judge, under s 43, to vary the order made on 27 September 2016 by deleting the direction that the applicant be released to parole immediately and by substituting a notation specifying that the applicant was first eligible for parole on 27 September 2016 (as required by s 48(1)(b) of the Act, set out above). Although his Honour made an order on 12 December 2016 that the matter be re-opened under s 43, the sentencing judge did not correct the error. Accordingly, the sentence imposed on 27 September 2016 remains in place and uncorrected.

82. I reject the Crown’s submission that his Honour ought be taken to have revoked the applicant’s parole and notionally returned the applicant to custody on 12 and 14 December 2016. His Honour had no power to direct the applicant’s release to parole. It was, accordingly, not for his Honour to revoke it. His Honour’s power was, relevantly, confined to deleting the direction that the applicant be released to parole in order to impose a sentence that was in accordance with law.

83. Ground 1 has been made out. I do not, however, regard this error as necessarily resulting in the conclusion that the sentencing judge’s discretion miscarried. The question arises whether the sentencing judge’s purported direction under s 50 is simply an error which could have been corrected by the sentencing judge, or by this Court, following an order under s 43. The “correction” required would involve deletion of the direction that the applicant be released to parole on 27 September 2016 and insertion of a notation specifying 27 September 2016 as being the earliest date on which the applicant became eligible for release on parole, as required by s 48(1)(b). There is, for the reasons identified by Basten JA at [6]-[7], a real question whether such a correction would be authorised by s 43. However, this question does not need to be decided in the present case since, for the reasons which follow, I consider that the sentence imposed by the sentencing judge ought be set aside and the applicant re-sentenced by this Court.

Ground 3: alleged excessive accumulation

84. The applicant’s argument that there has been excessive accumulation relied on the proposition that the limitation in s 47(2)(b) ought be applied to an aggregate sentence even though it does not, in terms, apply since an aggregate sentence is, by definition, a single sentence. A sentencing court is obliged, by s 53A(2)(b), to indicate the sentences that it would have imposed had separate sentences been imposed instead of an aggregate sentence. However, only the length of an “indicative” sentence, and the non-parole period where there is a standard non-parole period for the offence, need be indicated: ss 44(2C) and 54B(4). One of the benefits of an aggregate sentence is that the specification of commencement and expiry dates is not required, although the length of indicative sentences must be specified.

85. I note that the sentencing judge did not indicate the non-parole period when recording the indicative sentence for the offence of reckless wounding, although there is a standard non-parole period for that offence. This omission does not invalidate the aggregate sentence: s 54B(7).

86. Because an aggregate sentence imposed pursuant to s 53A is the only actual sentence imposed, s 47(2)(b) does not have any application in the present case, since s 47(2)(b) provides for a court to direct that a sentence of imprisonment commence on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly consecutively) with some other sentence of imprisonment.

87. Thus, a sentencing judge who imposes an aggregate sentence under s 53A has greater flexibility than one who chooses to impose separate sentences for each offence, since s 47 does not apply to an aggregate sentence. The practical effect of the difference in the present case is that it was open to the sentencing judge, who imposed an aggregate sentence, to adjust the statutory ratio in s 44(2) (so as to have a lower ratio between the non-parole period and the total term of the sentence) to a greater extent than would have been possible had separate sentences been imposed, by reason of the operation of s 47 where consecutive sentences are imposed.

88. In my view, ground 3 has not been made out. However, the length of the individual indicative sentences is relevant to ground 2 and therefore will be considered in that context below.

Ground 2

89. It is open to an applicant to point to one or more indicative sentences which are alleged to be excessive to support an argument that an aggregate sentence is manifestly excessive.

90. I am not persuaded that the indicative sentence for the offence of common assault was excessive. The applicant’s partner was vulnerable at the time as she was pregnant and suffering from morning sickness, as a result of which she wanted to be taken to hospital. Although the force the applicant used when he grabbed her collar may not have been particularly great, it was enough to bring her to the ground. The seriousness of common assault is to be adjudged by reference to all the circumstances, including the characteristics of the victim. I am not persuaded that there was any error in the sentencing judge’s assessment of the common assault as being a “mid-range” offence in terms of its seriousness.

91. Moreover, any confidence that a bond was sufficient to fulfil the purposes of sentencing was shown to have been misplaced in light of the applicant’s subsequent conduct, which led to his being called up on the bond and re-sentenced.

92. The other indicative sentence which was the subject of criticism was the one imposed for the assault occasioning actual bodily harm on the certificate given under s 166(1) of the Criminal Procedure Act. I discern no error in the sentencing judge’s exercise of the sentencing discretion to arrive at a figure of 2 years and 3 months. The error was in not reducing this figure to 2 years, being the jurisdictional limit of the Local Court, which was applicable by reason of ss 168(3) and 268 of the Criminal Procedure Act. As this Court has explained in R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [27]-[35] (Grove J, Spigelman CJ and Kirby J agreeing), a provision such as s 268 of the Criminal Procedure Act is to be treated as a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. Accordingly, a sentence of two years’ imprisonment need not be reserved for a worst case and might be appropriate notwithstanding that a plea of guilty was entered at the earliest opportunity and that, accordingly, a discount of 25% was called for.

93. Although it does not follow from a finding that a particular indicative sentence is excessive that an aggregate sentence is manifestly excessive, I am satisfied that the sentencing judge’s discretion miscarried when his Honour failed to have regard to the jurisdictional maximum which would have applied to the sentence indicated, had individual sentences rather than an aggregate sentence been imposed.

Re-sentencing

94. As the sentencing judge’s discretion miscarried, it is necessary for this Court to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Relevant facts and legislative guideposts

95. The facts of the offences are set out above, as are the relevant legislative guideposts of: the maximum penalty; and, in the case of the offence of reckless wounding, the standard non-parole period; and, in the case of the offences on the s 166(1) certificate, the jurisdictional maximum of the Local Court.

Discount for the plea of guilty

96. I accept that the applicant pleaded guilty at the earliest opportunity and that a discount of 25% is appropriate.

Subjective circumstances

97. The material before this Court is the same as that which was before the sentencing judge. The applicant is an indigenous Australian who was born in November 1994. His parents separated before he was born. He does not know his natural father. The applicant had, until he was 20, a supportive grandmother and aunts who have cared for him.

98. Dr Adams, psychiatrist, prepared a report for the sentence hearing dated 16 February 2016. He noted that the applicant had been physically and sexually abused on one occasion as a child, although no details were given as the applicant told Dr Adams that he had blocked it out. The applicant had problems with concentration from an early age. His schooling was disrupted. He was frequently suspended and expelled from school. He began smoking cannabis when he was about 10 years old and was sent to a “behavioural school” for a year when he was about 11.

99. The applicant continued to use cannabis throughout his teenage years. He began drinking alcohol when he was 17. He formed a relationship with Ms Kellcurcy. The offence of common assault which was committed on 28 April 2014 was committed while she was pregnant and suffering from morning sickness. In late 2014 their daughter was born shortly after the applicant’s twentieth birthday. His grandmother died in early 2015, which greatly affected the applicant. He began to take methamphetamine, otherwise known as ice. At the time he committed the offences in March 2015 he was suffering from a drug-induced psychosis.

100. The applicant told Dr Adams that he wanted to rehabilitate himself from his substance abuse and wished to be involved in the Tribal Warrior program which is conducted in Redfern for indigenous males to assist with rehabilitation. Dr Adams opined that, at the time of the interview in February 2016, the applicant was oriented in time, place and person. Dr Adams said:

“With regards Mr Mundine’s level of insight, in my view, he manifested a good overall level of insight into his background of emotional dysregulation and the negative impact his longstanding history of illicit substances had had.”

101. The applicant’s uncle, Cyril Mundine, provided a letter to the sentencing judge in which he set out his involvement with the Tribal Warrior program and what it involved, including a morning exercise program on Mondays, Wednesdays and Fridays; a regeneration project for areas of bushland; and scheduled weekly meetings with police and mentors (of whom Cyril Mundine is one) at the Redfern Police Station.

102. When the applicant was released by the sentencing judge on 27 September 2016 he returned to live with Ms Kellcurcy and their daughter, who was by that time almost two years old. He participated in the Tribal Warrior program and worked at the National Park at Lane Cove doing land clearing. He also undertook a literacy program.

Remorse and prospects of rehabilitation

103. I accept that the applicant was remorseful. I am not, however, satisfied that he has good prospects of rehabilitation or that he is unlikely to re-offend. In my view, his troubled childhood and history of substance abuse will be difficult to overcome and make him more susceptible to relapse and uncontrolled acts of violence such as those to which he has pleaded guilty.

Seriousness of the offences

Common assault: 28 April 2014

104. I regard the seriousness of the offence of common assault on 28 April 2014 to be relatively high, such as to place it mid-range. To assault one’s pregnant partner who is suffering from such serious morning sickness that she wants to go to hospital is a particularly callous, selfish and reprehensible act. I accept that the force used to grab her collar and cause her to fall to the ground was not particularly great. But this does not lessen the seriousness of the offence, having regard to her weakened state.

Contravene apprehended violence order: 21 March 2015

105. As referred to above, the conduct constituting this offence was the applicant’s conduct prior to the offence of assault occasioning actual bodily harm (see below) which was constituted by the applicant’s kicking Ms Kellcurcy and causing her to fall down the stairs. The preceding conduct, where the applicant armed himself with a knife, with which he threatened Ms Kellcurcy and followed her to the stairs, was a serious breach of the apprehended violence order.

Assault occasioning actual bodily harm: 21 March 2015

106. While Ms Kellcurcy was on the stairs, he kicked her in the face. She was knocked unconscious and fell down the stairs. She suffered bruising and swelling to her face. This conflict was particularly dangerous for the victim because of the presence of the knife and her precarious position on a staircase. I also regard this offence as serious and towards mid-range.

Reckless wounding: 21 March 2015

107. Mr Haddad, the victim of this offence, was merely passing by on his bicycle when the applicant stabbed him with a knife in a state of drug-induced psychosis. Fortunately for the victim and the applicant, the consequences were not as dire as they might have been. It is a very serious matter to stab a person, particularly in the torso. I regard this offence as at least at the mid-range.

Proposed sentences

108. Rather than impose an aggregate sentence for all four offences, I would impose individual sentences, which has the effect that s 47 applies. Each of the following sentences proposed has been discounted by 25% for the plea of guilty.

109. For the offence of common assault, I impose a fixed term of 6 months, commencing on 28 March 2015. For the offence of contravene apprehended violence order, I impose a fixed term of 6 months, commencing on 28 June 2015. As this offence was closely related to the offence of assault occasioning actual bodily harm, I consider the sentences for these two offences should be wholly concurrent. For the offence of assault occasioning actual bodily harm, I consider the appropriate sentence to be 2 years and 6 months, commencing on 28 June 2015. However, this term must be reduced to 2 years as the offence was the subject of a certificate under s 166(1) of the Criminal Procedure Act and the jurisdictional limit of the Local Court applies. I propose a non-parole period of 1 year and 3 months, expiring on 27 September 2016, on the basis of special circumstances (see below). For the offence of reckless wounding I propose a sentence of 2 years and 3 months, commencing on 28 June 2016, with a non-parole period of 3 months, expiring on 27 September 2016.

110. I consider, having taken into account the matters referred to above, that a total effective sentence of 3 years and 6 months commencing on 21 March 2015 reflects the totality of the applicant’s criminality, having regard to the matters referred to above, including his subjective circumstances. It is necessary to address the question of special circumstances, since my proposed sentences include an alteration to the statutory ratio between the balance of term and the non-parole period: s 44(2).

Special circumstances

111. As referred to above, the sentencing judge found special circumstances and altered the statutory ratio in s 44(2) of the Act from 75% to 33%. At the hearing of the leave application before this Court, neither party contended that there should be any alteration to the statutory ratio found to be appropriate by the sentencing judge. As this Court is required to exercise the sentencing discretion afresh, it ought generally not leave in place aspects of the sentence imposed merely on the basis that they are not challenged since this would not be consistent with Kentwell v The Queen. In certain circumstances, there is no utility in either finding special circumstances, or adjusting the statutory ratio: see Potts v R [2017] NSWCCA 10 at [5] per Basten JA.

112. In the present case I consider there to be special circumstances, having regard to the applicant’s need for supervision on release, principally because of his susceptibility to substance abuse and violent behaviour when he becomes agitated. The adjustments I propose to the statutory ratio are apparent from the non-parole periods for the individual offences of assault occasioning actual bodily harm and reckless wounding suggested above.

Date for the applicant’s release

113. As none of the sentences I have proposed exceeds three years, s 50(1) obliges this Court, in re-sentencing, to make an order directing the offender’s release at the end of the non-parole period: Cross v R (No 2) [2012] NSWCCA 234 at [4]–[5].

Proposed orders

114. I propose the following orders and notation:

1. Grant leave to appeal against sentence. 

2. Allow the appeal against sentence.

3. Quash the aggregate sentence imposed by Colefax DCJ on 27 September 2016 and the order directing the applicant’s release on 27 September 2016.

4. For the offence of common assault, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 March 2015 and expiring on 27 September 2015.

5. For the offence of contravene apprehended violence order, impose a sentence of imprisonment for a fixed term of 6 months, commencing on 28 June 2015 and expiring on 28 December 2015.

6. For the offence of assault occasioning actual bodily harm, impose a sentence of imprisonment of 2 years, commencing on 28 June 2015 and expiring on 27 June 2017, with a non-parole period of 1 year and 3 months, commencing on 28 June 2015 and expiring on 27 September 2016.

7. For the offence of reckless wounding, impose a sentence of 2 years and 3 months, commencing on 28 June 2016 and expiring on 27 September 2018, with a non-parole period of 3 months, commencing on 28 June 2016 and expiring on 27 September 2016.

8. Direct that the applicant be released to parole on 27 September 2016.

115. CAMPBELL J: I have had the considerable advantage of reading in draft the judgments of Basten JA and Adamson J. I agree with the orders proposed by Adamson J substantially for the reasons her Honour gives. I agree with what her Honour has written in relation to Grounds 2 and 3. I would have upheld Ground 1 on the basis that s 43 of the Sentencing Procedure Act would have empowered the learned sentencing judge to have revoked the parole order he pronounced under s 50 of that Act when he “re-opened” the sentencing proceedings on 12 December 2016. I am of the view that the expression “impose a penalty” in s 43 of the Act, which includes the expression “impose a sentence of imprisonment,” extends to, in cases to which s 50 applies, the making of a parole order under s 50(1). I acknowledge the difficulty of working through what would have followed from his Honour taking that step in December 2016 as discussed by Basten JA. In my view these difficulties were not a bar to his Honour correcting the record. With respect, I also agree with what Basten JA has written about the application of Parker v Director of Public Prosecutions at [26]. Given her Honour’s approach to the question of resentencing Mr Mundine with which I agree, the issue does not arise in this case.

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Endnotes

Decision last updated: 17 May 2017