Primmer v The King

[2023] NSWCCA 301

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Primmer v R [2023] NSWCCA 301

Hearing dates:

30 October 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Before:

Davies J at [1]
Cavanagh J at [2]
Sweeney J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal allowed.

3. The sentence imposed by Judge Ingram SC on 1 July 2022 is quashed.

4. In lieu thereof the applicant is sentenced for the offence of demand money with menaces to imprisonment for 4 years with a non-parole period of 2 years and 6 months commencing on 12 October 2021, the sentence expiring on 11 October 2025 and the non-parole period expiring on 11 April 2024.

Catchwords:

CRIME — Appeals — Appeal against sentence — Future commencement date of sentence — Delay — Revocation of parole — Manifest excess

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

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

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

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Fernando [2002] NSWCCA 28

R v Millwood [2012] NSWCCA 2

Tompkins v R [2019] NSWCCA 37

White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302

Zreika v R [2012] NSWCCA 44; (2012) 233 A Crim R 460

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Scott Primmer (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Fraser (Applicant)
T Abdulhak (Respondent)

Solicitors:
Legal Aid (NSW) (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/275723

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

1 July 2022

Before:

Ingram SC DCJ

File Number(s):

2020/275723

HEADNOTE

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

The applicant was sentenced in the District Court for one offence of demanding money with menaces, to which he had pleaded guilty in the Local Court.

He had been on parole at the time of the offence. When he came to be sentenced, his parole had been revoked and he was serving a balance of parole period. The sentencing judge ordered that the sentence commence on a date after the date he imposed sentence.

The applicant contended, and the Crown conceded, that that was contrary to s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides that a court may not direct that a sentence commence on a day after the day on which the sentence is imposed, if a person is serving a sentence of imprisonment, the non-parole period of that sentence has expired and the offender is still in custody under that other sentence.

In resentencing the applicant in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 the Court took into account delay in the sentencing process and that the applicant’s parole had been revoked because of the commission of the offence for sentence, as considered in White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 and Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145.

JUDGMENT

1. DAVIES J: I agree with Sweeney J.

2. CAVANAGH J: I agree with Sweeney J.

3. SWEENEY J: Scott Primmer, the applicant, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Ingram SC on 1 July 2022 for one offence of demanding money with menaces. The applicant pleaded guilty to that offence in the Local Court. The offence, contrary to s 99(1) Crimes Act 1900 (NSW), had a maximum penalty of 10 years imprisonment.

4. The sentencing judge sentenced the applicant to 4 years imprisonment with a non-parole period of 2 years 6 months commencing on 22 September 2022. The applicant had been on parole at the time of the commission of the offence and his parole had been revoked with effect from 22 September 2020. The sentencing judge accumulated the sentence he imposed on the balance of parole which the applicant was serving, by two years, to arrive at the commencement date of 22 September 2022.

5. The applicant relies on the following grounds of appeal:

1. The sentencing judge erred when determining the commencement date of the sentence by:

1. failing to consider and apply s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

2. failing to consider the effect of delay

3. failing to have regard to the reasons for revocation of the applicant’s parole

2. The sentence was manifestly excessive.

6. The Crown conceded that it would be open to the Court to be satisfied that error had been shown in respect of ground 1(a), that is the failure to have regard to the requirements of s 47(5) of the Crimes (Sentencing Procedure) Act, and ground 1(b), the effect of delay on the commencement date of the sentence, although to a lesser extent than submitted by the applicant.

7. Both counsel for the Crown and counsel for the applicant in the appeal proceeded on the basis that the sentencing judge did not receive the assistance he required on the issues which are now raised on the appeal.

8. Counsel for the applicant acknowledged that because the applicant's legal representative before Judge Ingram SC did not raise with his Honour the matters now sought to be relied on by the applicant, he faced the difficulties arising from the observations of Johnson J in Zreika v R [2012] NSWCCA 44; (2012) 233 A Crim R 460 at [81]-[82] that the review in this Court of a discretionary judgment is not the occasion for "the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea…”. However, counsel relied on the statements of Simpson JA in White v R [2016] NSWCCA 190; (2016) 261 A Crim R 302 and in Tompkins v R [2019] NSWCCA per Hoeben CJ at CL at [52]-[53] and Adamson J at [64], that an omission by defence counsel and the sentencing judge does not “preclude the intervention of this Court where justice demands that it intervene": Simpson JA in White at [127].

9. Counsel for the applicant proceeded on the basis that if the Court accepted the concession by the Crown in respect of ground (1)(a), then the other matters sought to be relied on by the applicant could be taken into account by this Court in resentencing the applicant, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

10. The Crown did not concede that the other two grounds of appeal should succeed.

Procedural history

11. The procedural history is relevant to the first three grounds of appeal.

12. The applicant was arrested on 21 September 2020. On 7 October 2020 the State Parole Authority revoked his parole from a previous sentence. His balance of parole of 2 years 8 months 1 week and 2 days commenced on 22 September 2020. The applicant pleaded guilty to the charge in the Local Court on 12 October 2021 and was committed to the District Court for sentence. The first mention in the District Court was on 28 October 2021. On that date, the applicant's solicitor told the court that the facts were agreed and there was an intention to obtain a report from a psychologist. The sentence hearing was listed for 31 January 2022. On that day the applicant’s solicitor told the court that the psychologist’s report was not available but would be available by 11 February, if the court could "squeeze us in" after that date. The sentence hearing was listed for 5 April 2022 as the first available date.

13. The sentence hearing occurred on 5 April 2022. His Honour adjourned the matter to 3 June 2022 to impose sentence. On 3 June his Honour was unable to sentence the applicant because of a jury trial. He adjourned to 1 July 2022, on which date he sentenced the applicant.

Remarks on sentence

14. The sentence proceeded on the basis of agreed facts. It seems there was some dispute by the applicant about his participation in an event which preceded the phone calls which constituted the offence, but his Honour resolved that dispute against the applicant, in accordance with the statement of agreed facts. The facts were as follows.

15. The applicant’s co-offender, Craig Argaet, was known to the victim, Roger McIntyre and Mr McIntyre's former business partner, Jim Sweeney-Knapp. Mr Argaet had been a subcontractor to Mr McIntyre's now defunct construction company. The company was registered to an address in Ellis Lane, which was Mr McIntyre's previous home address.

16. The company ceased trading around June 2020. Mr Argaet had been a subcontractor to the company. Their involvement had ceased following a dispute about the quality of Mr Argaet’s work, which had to be redone, and a dispute over money owed. Mr Argaet was said to owe Mr McIntyre's company $3793 and Mr Argaet claimed he was owed $8916.88 by the company.

17. At about 11:50pm on Thursday 10 September 2020 the new occupant of Mr McIntyre's previous house in Ellis Lane was awoken and found three men in his yard calling for “Roger”, that is Mr McIntyre. The new owner told them Roger was not there and the three men left. The facts stated that Mr Argaet and the applicant were two of the three men. As I have noted, although the applicant took the position before Judge Ingram SC that he remained in the car on that night, his Honour proceeded on the basis of the agreed facts.

18. The facts of the offence for sentence were as follows. Mr Argaet had provided Mr McIntyre's details to the applicant, who did not know Mr McIntyre. Mr Argaet encouraged the applicant to use the details provided to demand money from Mr McIntyre. The details provided also enabled the applicant to find details of Mr McIntyre's previous business partner, Mr Sweeney-Knapp.

19. About 8:44pm on Friday, 11 September 2020, the applicant called Mr McIntyre from a private number. Mr McIntyre was at home at the time. The call lasted for 21 minutes. Part of the conversation went as follows.

“PRIMMER: I’m gonna fuck you in the arse until you’re dead.

MCINTYRE: I don’t know who you are. I don’t owe you any money. I don’t know what you are talking about.

PRIMMER: I’m gonna put a bullet in your head, rape your wife and abduct your kids.

MCINTYRE: I don’t know who you are and I don’t owe you any money.

PRIMMER: You owe me $15,000. You should know who I am cuz. I worked for you.

MCINTYRE: I don’t recognise your voice.

PRIMMER: Call me Frank.

MCINTYRE: I never had a Frank work for me.

PRIMMER: Go back through your records and you will know who it is.

…

PRIMMER: You have 48 hours to pay $15,000. You’re gonna get $100 bills and I am gonna call you at 9:03 and tell you what to do. If you don’t pay by Sunday within 72 hours, you’ll be dead.

MCINTYRE: I don’t have that money.

PRIMMER: I just guess I get one of your cars. Your account number is 2008… Don’t think about cancelling your phone and not answering it will get worse for you. You can go to the police all you like. Just tell me what police station, and I will do you in front of the police station, that is how scared I am. You do not know who you are dealing with. I will call you in 48 hours.”

20. Whenever Mr McIntyre did not answer something that the applicant said, the applicant would say “that’s another two grand or know I’m gonna hurt your kids”. Mr McIntyre was left in shock from the call, frightened for his life and his family.

21. Mr McIntyre immediately told his wife about the call. While he was speaking with his wife, Mr McIntyre received a message from Mr Sweeney-Knapp that he had received a call from a man saying that if he (Mr Sweeney-Knapp) did not pay the man $15,000 then someone was going to shoot him. Mr McIntyre called police, who attended a short time later.

22. The call to Mr Sweeney-Knapp was made at 9:06pm on Friday, 11 September 2020. The applicant identified himself as “Frank”. He told Mr Sweeney-Knapp “I’m after the 15 grand your business partner owes me. I’ve given him 48 hours”. The applicant also told Mr Sweeney-Knapp that if he could not get the money from his business partner, he would get the money from Mr Sweeney-Knapp. Mr Sweeney-Knapp told the applicant he does not have a business partner and left the business years ago. The applicant said “if that’s true, you won’t hear from me again. If I have to call you back, I know you’ve lied to me and I’ll come looking for you”.

23. The applicant told Mr Sweeney-Knapp “I’ll shoot you up, I get paid well for this and I’ll do a two for one special”. The applicant also challenged Mr Sweeney-Knapp to fight him saying “come out the front and we’ll punch on, do you want that?”. The applicant said “I’ve given him 48 hours. Watch the news”.

24. Finally, the applicant told Mr Sweeney-Knapp that Mr Sweeney-Knapp would not be talking to him in the way he was if he knew who he was. The call ended after about 6 minutes.

25. Mr Sweeney-Knapp “Google searched” himself and found that his home address and mobile phone number were available. He called police and police went to his home.

26. On Sunday, 13 September 2020 Mr McIntyre bought a video surveillance security system for his home and installed it. His wife contacted police again out of concern for their safety and was told by police that the caller’s number was being traced and to not engage with him if he called again.

27. Mr McIntyre went to bed just before 9:00pm. Because of the threats to their children Mr and Mrs McIntyre each slept with one of their children.

28. At 9:43pm that night Mr McIntyre received another call from the applicant. He did not answer the call. The applicant left a message which said "Oie cunt. I've called you three times. 63 grand plus a kid. I'll see you fucken very soon.” The next morning after taking their children to school Mr and Mrs McIntyre went to the police station and reported the calls. Mr McIntyre received no further calls from the applicant.

29. The applicant was arrested on Monday, 21 September 2020 in possession of the mobile phone he had used to make the calls to Mr McIntyre and Mr Sweeney-Knapp. He denied being employed by Mr Argaet to extort money from Roger McIntyre. He denied having been one of the three men who attended the home at Ellis Lane. He denied any knowledge of the calls made to Mr McIntyre and Mr Sweeney-Knapp.

30. In assessing the objective seriousness of the offence his Honour took into account that the offending occurred over about four days, it involved some planning, included the applicant being one of three men who went to the victim's former home apparently looking for him, and reiterating the threats to the victim’s former business partner. He found the effect of the menaces deployed by the applicant included the victim purchasing a video surveillance security system for his home and contacting police. His Honour described the offence as of "not insubstantial objective seriousness".

31. His Honour noted that the applicant had been released to parole on 19 May 2020, and was approximately four months into that parole when he committed the offence. His Honour found the commission of the offence while on conditional liberty was an aggravating factor.

32. His Honour noted the following subjective circumstances of the applicant. He was 34 years old at the time of the offence and 36 at the time of sentence. His Honour accepted the applicant's personal circumstances contained in the report of a psychologist, Anthony Diment, and a Sentencing Assessment Report.

33. The applicant had observed domestic violence in his parents’ relationship and had been "kicked out of home" after an altercation with his father when he was defending his mother. The applicant had left school in year 10 and had a history of employment. He began drinking alcohol to excess from the age of 18 or 19 and began using cocaine, "ecstasy" and “speed pills”, or amphetamine, after his first separation (from his older child's mother). He reported being assaulted in custody in 2015, causing him a broken jaw and eye socket, which still caused him pain and required specialist attention which had not been followed up in custody.

34. His Honour noted that Mr Diment found that the applicant was suffering from severe anxiety, severe depression and stress. He assessed him as suffering from Persistent Depressive Disorder with Anxiety and Post-Traumatic Stress Disorder. He noted there was evidence of:

"… longer standing depressive and traumatic episodes arising from significant life events such as reported physical abuse from his father at a young age and an assault while in custody".

35. His Honour noted that Mr Diment said that:

"anxiety, depression and especially Post-Traumatic Stress Disorder have the potential to negatively impair a person's decision-making, normal judgment and thought processes, particularly under a situation of heightened emotional tension".

36. Whilst accepting the psychological diagnoses made by Mr Diment, his Honour was not satisfied that there was a causal connection between those mental health issues and the offence, but was satisfied that those mental health issues were part of the factual matrix, and said they would be taken into account in the “formulation of the finding of moral culpability” and on the basis they would render the applicant's custodial sentence more onerous than for a person who did not suffer from such conditions.

37. His Honour was satisfied that the applicant had suffered periods of "not insubstantial deprivation during his childhood and adolescence, including domestic violence visited upon him and his mother from his father.” In accordance with the decisions of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, R v Fernando [2002] NSWCCA 28 and R v Millwood [2012] NSWCCA 2, his Honour said he would take those circumstances into account as tending to ameliorate the applicant's moral culpability. His Honour stated that having regard to all the relevant objective and subjective circumstances, the applicant had "not insubstantial moral culpability" for the offence.

38. His Honour noted that the applicant's criminal history contained matters of assault and assaults occasioning actual bodily harm. He had been sentenced to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years for domestic violence offences in 2016. His Honour noted "It was the period of parole in respect of that sentence that the [applicant] breached as a result of the commission of the index offence".

39. His Honour stated he was satisfied that the applicant's criminal history evidenced a "proclivity for violent offending" which "significantly attenuate[d]” any leniency" that might otherwise have been extended to him in the sentence proceedings.

40. His Honour accepted that the applicant was genuinely remorseful for the offence. His Honour noted that the applicant had been assessed as having a medium/high risk of reoffending. His Honour found the applicant had guarded prospects of rehabilitation and considered it "premature to make a positive finding that [the applicant] was unlikely to reoffend in the future".

41. His Honour took into account the effects of Covid-19 on the applicant's conditions in custody.

42. His Honour noted that the applicant's mother was suffering from stage III lung cancer.

43. His Honour accepted there was no direct parity issue between the applicant and Mr Argaet, but took into account the circumstances of Mr Argaet’s sentence.

44. His Honour took into account the applicant's plea of guilty in the Local Court for which he allowed a discount of 25% on the sentence to be imposed.

45. In respect of the commencement date of the sentence, which is the subject of grounds 1(a)-(c) his Honour stated:

“The offender was arrested on 21 September 2020 and has been remanded in custody since that date. In the usual course, the sentence imposed now would be backdated to commence from that date in order to make proper allowance for all pre-sentence custody. However, as the court has noted above, the offender was on parole at the time of the commission of the index offence. That parole was revoked and the offender was required to serve a balance of parole sentence of 2 years, 8 months, 1 week and 2 days which was imposed on 7 October 2020 and is taken to have commenced on 22 September 2020 and will expire 30 May 2023.

Therefore, during the period on remand up until this point in relation to the index offence for which the offender is to be sentenced today, he has been serving that balance of parole sentence from 22 November 2020. [His Honour is recorded as saying November rather than September].

This constitutes a "pre-existing sentence" for the purpose of the present sentence proceedings. The court must ensure that it does not double count the aggravating factor that the index offence was committed on parole by both increasing the sentence to reflect that aggravating factor and also simultaneously providing for accumulation of the index offence on the balance of parole sentence.

Therefore, applying that consideration and applying the principle of totality as between the sentences, the Court is satisfied that some partial accumulation between the index sentence and the balance of parole sentence is warranted to properly reflect the totality of the relevant criminality but without double punishment being involved.

Therefore, the index sentence will be taken to have commenced two years into the balance of parole sentence, namely, on 22 September 2022."

46. His Honour found special circumstances in the applicant's mental health issues, the partial accumulation of the sentence upon the balance of parole, and the need for a longer period of parole to enhance the applicant's prospects of rehabilitation and facilitate his reintegration back into the community.

47. Applying the discount of 25%, his Honour imposed a sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months, to commence on 22 September 2022, expiring on 21 September 2026, and the non-parole period to expire on 21 March 2025.

Ground 1: the sentencing judge erred when determining the commencement date of the sentence

48. The applicant asserted three related errors by the sentencing judge in setting the commencement date of the sentence. They were the failure to consider and apply s 47(5) of the Crimes (Sentencing Procedure) Act, the failure to consider the effect of delay in the sentence proceedings, which the applicant asserted operated to his disadvantage, and the failure to take into account that his parole had been revoked because of the commission of the offence for sentence and to backdate the commencement of the sentence into the balance of parole.

49. The Crown conceded error in relation to the application of s 47(5) of the Crimes (Sentencing Procedure) Act and some error in respect of the delay in the sentence proceedings, though not to the extent asserted by the applicant.

50. Section 47 of the Crimes (Sentencing Procedure) Act provides, relevantly:

47   Commencement of sentence

(1)  A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.

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

(a)  is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(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.

(5)  A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if—

(a)  a non-parole period has been set for that other sentence, and

(b)  the non-parole period for that other sentence has expired, and

(c)  the offender is still in custody under that other sentence.

51. The effect of s 47 and the impact of delay in sentencing and revocation of parole were considered by Simpson JA in White. Her Honour’s statements at [118]-[127], with which Bathurst CJ agreed, are apposite to the grounds of appeal in this matter. Her Honour said:

“[118] By s 47(2)(b) of the Sentencing Procedure Act, a court is permitted to post-date the commencement of a sentence, but only if the sentence is to be served consecutively or partly consecutively with another sentence of imprisonment. By sub-ss (4) and (5), a sentence may not be post-dated to a date later than the earliest date on which the offender will become entitled or eligible to release on parole having regard to any other sentence of imprisonment being served.

[119] At all material times, notwithstanding the revocation of parole, the applicant was eligible to be released on parole in relation to the 2008 sentences. The sentence imposed in respect of the 2013 offences could therefore not be post-dated beyond the date on which it was imposed. That being so, the delay in sentencing extended the period of accumulation available to the sentencing judge. That is, the sentencing judge had a vastly wider range of options for the commencement date selection than would have been available to her had sentencing taken place on, or shortly after, say 4 September 2014 (or earlier). The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him.

[120] No argument in these terms was addressed to the sentencing judge. Such argument as there was (and it was limited) concerning the extent of backdating was directed to the issue considered in R v Kaiva (NSWCCA, 9 November 1998, unreported) and Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, and which was also ventilated in this application. That issue was to do with the overlap between the revocation of parole and the partial accumulation of sentence. Where, as here, parole is revoked solely because of the commission of subsequent offences, an argument is available (and frequently advanced) that the offender is doubly penalised for the subsequent offences: first, by the revocation of parole (attributable only to the commission of the subsequent offences), and second, by the imposition of a cumulative sentence. In R v Eric John Andrews (NSWCCA, 28 April 1993, unreported) Hunt CJ at CL had no difficulty in rejecting the proposition that, in those circumstances, an offender is subject to double punishment. His Honour said that the revocation is because the commission of the further offences shows that the offender is unable to adapt to normal lawful community life and is therefore no longer entitled to parole in relation to the earlier offences (although the evidence of that inability was the commission of the offences): see also, R v Brett John Kelly [2000] NSWCCA 557.

[121] In Callaghan I reviewed those decisions, and a contrary line of authority that held that to decline to backdate the sentence for the subsequent offence at least gave the appearance of double punishment: Kaiva, and see R v Kitchener [2003] NSWCCA 134.

[122] There is, in my opinion, considerable force in the argument, advanced in this Court, but not advanced before the sentencing judge, that the delay in sentencing caused the applicant to lose a significant advantage. It would have been appropriate for the sentencing judge notionally to determine at what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date. The latest such date would have been 4 September 2014, when the matter was first listed but not reached, but it would have been open to consider any date after the date of the applicant’s plea of guilty.

[123] In my view there is also some (perhaps less) force in the argument that the revocation of parole was referable to the commission of these offences and to no other parole breaches. Certainly there was no evidence of other parole breaches, and the Pre-Sentence Report expressly stated that the applicant had complied with his supervision and maintained scheduled appointments. In Andrews, Hunt CJ at CL, notwithstanding his firmly expressed view that the reason for revocation of parole was inability to adapt to normal lawful community life, recognised that there may be some situations in which it would be “just” to backdate a sentence for a subsequent offence.

[124] I have, somewhat reluctantly, come to the conclusion that the effect of the delay in sentencing was, in this instance, a circumstance relevant specifically to the commencement date of the sentence, and that the failure of the sentencing judge to take it into account represented error in the sentencing process. That this was a failure brought about by the omission of counsel to draw it to the attention of the sentencing judge does not detract from its significance.

[125] In saying this, I am conscious of the observations of Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81] and [82]. Johnson J referred to a number of decisions of the Victorian Court of Appeal in such a fashion as to indicate that he adopted and endorsed the principles there stated: Romero v R [2011] VSCA 45; 32 VR 486 at [11]; Keane v R [2011] VSCA 156 at [13] and [18]; Bayram v R [2012] VSCA 6 at [28]-[29].

[126] The principles were stated as follows:

‘81  … in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence …’

His Honour went on to say:

‘82  In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender’s favour on sentence. As Warren CJ said in Bayram v R at [29], it may “render a serious injustice” if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.

[127] The judgment of Johnson J is carefully worded so as not to preclude the intervention of this Court where justice demands that it intervene.”

52. As the applicant contends, and the Crown agrees, because the applicant was serving the balance of his parole on 1 July 2022 when he was sentenced, the operation of s 47(5) precluded the setting of a commencement date after the date on which the sentence was imposed, that is 1 July 2022. That error having been established, it is necessary to resentence the applicant, in accordance with Kentwell.

53. I will consider the issues raised in grounds 1(b) and (c) in the context of the resentencing exercise.

Delay in the sentence proceedings

54. As articulated by Simpson JA in White, the question to be determined is at what point the applicant could reasonably have expected to have been sentenced, having regard to the date of his plea.

55. I have noted the relevant dates above at [12]. The applicant was arrested on 21 September 2020. He pleaded guilty on 12 October 2021. He was sentenced on 1 July 2022, approaching two years after his arrest, about nine months after his plea of guilty, and when he had served over 21 months of his balance of parole period of just over 32 months. I am satisfied there was no delay attributable to the applicant disputing his role in the events at the victim's former home at Ellis Lane or that he appears to have not signed the statement of agreed facts until 1 July 2022. Ingram SC DCJ was clearly aware before then that the facts were agreed, and he treated the applicant’s conduct at Ellis Lane in accordance with the agreed facts.

56. The applicant submitted there was a nine month delay between his guilty plea being entered and his sentence, which operated to his disadvantage. The Crown submitted that the date on which the applicant could reasonably have expected to have been sentenced was 3 June 2022. I am satisfied that the delay in the sentence proceedings, after the applicant entered his plea of guilty, caused him a disadvantage.

57. The reason for the revocation of the applicant’s parole is also related to an appropriate commencement date of his sentence.

The revocation of the applicant’s parole

58. In White, Simpson JA, referring to Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145, referred to the discretion available to a sentencing judge to backdate the commencement of a sentence when a person's parole was revoked solely because of the commission of the subsequent offence(s), to avoid double punishment or at least the appearance of such. Her Honour noted that it is always open to an offender to seek and be granted parole even after a revocation.

59. A record of the decision of the State Parole Authority of 7 October 2020 stated that the reason for the revocation of the applicant’s parole was "breach of condition 1 – you must be of good behaviour (outstanding charge/s).” The applicant submitted that where the sole reason for the revocation of the applicant’s parole was the offence for sentence, this Court should consider that fact when resentencing him, as to whether to backdate the commencement of his sentence.

60. In my view, having regard to the reason for the revocation of the applicant’s parole, an appropriate commencement date for the sentence would be closer to the time at which the applicant entered his plea of guilty, that is in October 2021, part way between the commencement of his balance of parole period in September 2020, and the commencement date chosen by the sentencing judge.

Resentence

61. Counsel for the applicant submitted that as there is a need to resentence the applicant the Court did not strictly need to determine ground 2 of the appeal. He relied on the matters put in support of that ground as matters for the Court to take into account in resentencing the applicant.

62. He did not take issue with the findings by the sentencing judge except that he submitted that on resentence, this Court would assess the offence as within the middle of the range of offending of its type.

63. Counsel accepted that the applicant's criminal history and the fact he was on parole at the time of the offence operated against him. He relied on statistics from the Judicial Commission and a summary of cases from the Public Defenders’ sentencing tables.

64. The Crown referred to the maximum penalty for the offence, the seriousness of the offence, that it was committed less than four months after the applicant was released on parole, and his criminal record which included a number of offences of violence.

65. In resentencing the applicant I have taken into account the matters in his affidavit of 25 September 2023, including that he is working, undertaking available programs, his mental health, the effect of Covid-related lockdowns and most particularly his mother's ill health.

66. I have taken into account the maximum penalty of 10 years imprisonment for the offence, the 25% discount for his plea of guilty, the facts of the offence, including the nature of the threats made to Mr McIntyre, the effect they had on him and his family, that the victim's former business partner was also threatened, and the time over which the offending occurred; his Honour's assessment of objective seriousness, which was apt for the facts; that the offence occurred while the applicant was on parole for offences of violence. I take into account all of the applicant's subjective circumstances which his Honour took into account and the findings his Honour made in the applicant's favour. The sentence I have reached is not less than that imposed by his Honour. I would maintain the finding of special circumstances and the ratio of the non-parole period to the sentence which his Honour applied.

67. I consider it appropriate to backdate the commencement of the sentence to the date of the applicant's guilty plea, for the reasons indicated above.

Orders

68. Accordingly, I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed by Judge Ingram SC on 1 July 2022 is quashed.

4. In lieu thereof the applicant is sentenced for the offence of demand money with menaces to imprisonment for 4 years with a non-parole period of 2 years and 6 months commencing on 12 October 2021, the sentence expiring on 11 October 2025 and the non-parole period expiring on 11 April 2024.

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Decision last updated: 01 December 2023