R v Booth

[2014] NSWCCA 156

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Booth [2014] NSWCCA 156

Decision date:

13 August 2014

Before:

Hoeben CJ at CL at [1];
Beech-Jones J at [2];
Hamill J at [3].

Decision:

(1) Appeal allowed.

(2) Quash the sentences imposed in the District Court.

(3) In lieu thereof, the respondent is sentenced to an aggregate sentence of 7½ years commencing on 18 December 2012 and expiring on 17 June 2020. There will be a non-parole period of 3½ years commencing on 18 December 2012 and expiring on 17 June 2016.

(4) The respondent will become eligible for release to parole at the expiration of the non-parole period.

Catchwords:

CRIMINAL LAW - sentencing - prosecution appeal - manifest inadequacy - failure to accumulate - circumstances of deprivation - intellectual disability - institutionalised offender - relevance of deterrence - whether sentencing Judge failed to consider deterrence - deterrence of limited relevance - sentencing of Aboriginal offenders - residual discretion - moderate increase in degree of accumulation

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Brown v R [2012] NSWCCA 199
Bugmy v The Queen [2013] HCA 37
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Hili and Jones v The Queen [2010] HCA 450
Johnson v the Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; 294 CLR 600
Neal v The Queen (1982) 149 CLR 305
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [46]
R v Cramp [2004] NSWCCA 264
R v Engert (1994) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Gladue [1999] 1 SCR 688
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Harris [2007] NSWCCA 130
R v Henry and ors [1999] NSWCCA 111; 46 NSWLR 346
R v Ipeelee [2012] 1 SCR 433
R v Israil [2002] NSWCCA 255
R v Nykolyn [2012] NSWCCA 219
R v Tsiaras [1996] 1 VR 398
SHR v R [2014] NSWCCA 94
Trad v R [2009] NSWCCA 56; 194 A Crim R 20

Category:

Principal judgment

Parties:

Crown (Appellant)
Daniel Booth (Respondent)

Representation:

Counsel:
P Ingram SC (Appellant)
B Rigg (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid New South Wales (Respondent)

File Number(s):

2012/45396

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-12-18 00:00:00

Before:

Judge Toner

Judgment

1. HOEBEN CJ at CL: I agree with Hamill J.

1. BEECH-JONES J: I agree with Hamill J.

1. HAMILL J: This is a Crown appeal against a sentence imposed by his Honour Judge Toner on 18 December 2013.

1. It is a case which brings into very sharp focus the decisions of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 and Munda v Western Australia [2013] HCA 38; 294 CLR 600. The case presents a particularly difficult and complex application of sentencing discretion. The principles of sentencing pull in opposite directions in terms of the appropriate outcome. The respondent stood to be sentenced in relation to offences of a very serious kind in circumstances where he had a bad criminal record and had breached parole. However, his personal circumstances are such that principles of general deterrence had little role to play and he was, to a very large degree, a product of the distressing circumstances of disadvantage and deprivation in which he grew up. Those circumstances involve the marginalisation of rural and outback aboriginal communities and were described by Judge Toner as "a national disgrace".

1. The appellant asserts that the total sentence imposed is manifestly inadequate and relies on the following five grounds of appeal:

"Ground 1: His Honour erred in imposing sentences for each of the counts 1,2 and 3 which are disproportionate to the gravity of the instant offences.

Ground 2: His Honour erred in the manner in which the sentences were accumulated leading to the imposition of a manifestly inadequate total sentence.

Ground 3: His Honour erred in the manner in which the finding of special circumstances was applied.

Ground 4: His Honour erred in failing to have any regard to the principles of deterrence leading to the imposition of a manifestly inadequate sentence

Ground 5: His Honour erred in imposing a total sentence which in the circumstances is manifestly inadequate."

1. Counsel for the respondent contends that the individual sentences are not so lenient that they can properly be described as "unreasonable", "plainly unjust" or "manifestly wrong": Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gaudron and Gummow JJ at [22]. She contends that the errors particularised in the five specific grounds of appeal have not been established. She relies on the breadth of the sentencing discretion and the fact that there is "no single correct sentence". However, she properly and sensibly concedes that there is "greater force in the contention that the total effective sentence was manifestly inadequate because of the high degree of concurrency between the sentences and the sharp variation in the ratio between total effective non-parole period and total effective sentence".

1. The respondent stood to be sentenced in relation to three offences on an indictment and asked that two further offences on a Form 1 to be taken into account under s 32 Crimes (Sentencing Procedure) Act 1999 (NSW). The offences were as follows:

(1) Aggravated break, enter and steal in circumstances of aggravation: Section 112(2) Crimes Act1900 (NSW).

(2) Specially aggravated break and enter and commit serious indictable offence (assault occasioning actual bodily harm with wounding): Section 112(3) Crimes Act 1900 (NSW).

(3) Robbery with the reckless infliction of actual bodily harm: Section 95(1) Crimes Act 1900 (NSW).

1. The offences on the Form 1 were two further offences of aggravated break enter and steal under s 112(2) Crimes Act 1900 (NSW). They were taken into account in sentencing the respondent in relation to the second count.

1. In respect of both the first and third counts there was a maximum penalty of twenty years imprisonment while the second count invoked a maximum penalty of 25 years. There is a standard non-parole period of five years for the first count and a standard non-parole period of seven years for the second count. The guideline judgment on armed robbery (4-5 years) had some peripheral relevance to count 3: R v Henry and ors [1999] NSWCCA 111; 46 NSWLR 346.

1. The sentencing judge imposed a total effective sentence of six years and six months with a total effective non-parole period of two years and six months. This was achieved by imposing the following individual sentences:

Count 1 - a total sentence of four years with a non-parole period of 18 months.

Count 2 - a total sentence of six years with a non-parole period of two years.

Count 3 - a total sentence of four years with a non-parole period of 18 months.

1. The commencement date of the sentences imposed on counts 1 and 2 were staggered to achieve the total effective sentence to which I have referred. The commencement date for the sentence for count 3 was the same as the commencement date for the sentence on count 1.

1. The facts of the case were not in dispute and were set out in the remarks on sentence as follows:

"Form 1 AGG BES

5 Malouf Place, Blacktown is a split level detached home. About 8:00pm on Monday 6th February 2012 the victims Alan Jenkins and Margaret Kelberg retired for the night, closing all doors and windows of their dwelling. Their vehicle QJT970 (NSW) a 1994 blue Holden Commodore Station Wagon was also secured on the nature strip directly outside the dwelling locked and secured.

During the night the accused, Daniel Booth gained entry to the dwelling and removed the victim's purse from the kitchen area. Using the vehicle keys from inside the purse the accused has gained entry to the victim's motor vehicle and drove it from the scene.

Vehicle QJT970 (NSW) was captured east bound on M2 motorway closed circuit television camera at 5:40am on 7th February 2012.

About 8:15am on Tuesday 7th February 2012 the victim Margaret Kelberg discovered that her purse containing personal documents, house and car keys, and a mobile phone had been stolen. Shortly after she discovered her vehicle QJT970 (NSW) was also stolen.

COUNT 1

Aggravated Break enter and steal in circumstances of aggravating that he knew a person was in the premises. 12 Hayes Road, Rosebery is a detached single storey brick home. About 6:15am on 7th February 2012 the victim Filomena Rossi (78 year old) was awoken by a loud bang at her front door. The victim was in bed at the time and has got up to investigate. She saw two men both of large build wearing dark clothing.

The front door, being a solid timber door, was locked and bolted from the inside, it was smashed and the lock broken. The victim has been pushed to the ground landing heavily on her back on the tiled floor. The offenders demanded money and entered the victim's bedroom immediately to the right of the front door. The accused and other male emptied the contents of the bedside drawers on to the bed stealing the $150 in cash (3x$50 notes) and the victim's mobile phone.

The victim has again approached the offenders inside the bedroom and has again been pushed to the ground striking her head on a wardrobe.

The victim has begun to scream for help at which point the accused and other male have run from the dwelling. A witness has observed the accused and other male to enter a dark coloured station wagon. Police alleged to be QJT970 (NSW). The witness observed this vehicle to travel north on Primrose Avenue, Rosebery.

The victim's neighbour has heard her scream and ran outside. The victim was assisted by her neighbour and police contacted. Police arrived a short time later and a crime scene was established. The victim was treated by ambulance officers and conveyed to Prince of Wales hospital. She sustained hairline fractures and compressed vertebrae in her lower back. The victim seeks compensation to cover these costs.

Form 1 NO: 2 - AGG BES

75 Todrnan Avenue, Kensington is a detached two storey residence surrounded by a two metre high wall and remote controlled gate.

About 9:00pm on Monday the 6th February, 2012 the victims Beverly Falzonand Anthony Manning went to sleep in the master bedroom located on the top floor with all windows and doors locked and secured.

About 6:30am on Tuesday the 7th February, 2012 the victim Falzon heard a loud banging sound corning from the ground floor area of the residence. At this time the accused had gained entry to the dwelling and stolen the victim's handbag and laptop bag. These contained two wallets, items of identification, bank cards, Nokia mobile phone, reading glasses, make up and house keys and keys to her husband's Audi motor vehicle.

The accused immediately left the dwelling.

The victim went down stairs to investigate. As she walked down the stairs she was able to see directly into the laundry and noticed the fly screen covering the laundry window had been removed and the front door to the house was open. Police were contacted and arrived a short time late. A crime scene was established.

During the subsequent forensic examination of the premises a palm print was located on the internal edge of the laundry window sill facing downwards. Swabs of the area were also obtained.

On Wednesday 8th of February, 2012 police received notification that the located palm print had been matched to that of the Accused, Daniel Booth. At no time did the victims give permission for anyone to enter their premises.

The total amount of property stolen in the break and enter totaled over $800, in addition to this the victims were required to pay approximately $1200 to replace the locks to the Audi motor vehicle and their home. The victims seek compensation to cover these costs.

Vehicle QJT970 (NSW) was recovered by police about 2:50pm the same day outside 2Wark Avenue,Pagewood, a short distance from Charman Street.

Police located property belonging to Margaret Kelberg, Alan Jenkins and Beverley Falzon inside this vehicle.

COUNT 2

Specifically Aggravated BE& commit serious indictable offence -AOABH then being in company and did wound the victim.

11 Charman Avenue, Maroubra is a single storey three bedroom detached house.

On the evening of Monday 6th February 2012, victim Colin Davis (59 years old) was at the address with his brother Gary Davis (65 years old), also a victim. Gary Davis was visiting his brother and staying with him whilst in Australia. This evening they went to sleep in their respective bedrooms.

About 7:00am the accused Daniel Booth and another male forcibly entered the address from the rear door damaging the lock and the door frame. Colin and Gary Davis both heard noises within the house as they roused in their bedrooms.

Colin Davis got up out of bed believing it to be his brother. He entered the dining room and saw one of the offenders standing with his back to him. The male turned around, he was wearing a black hooded jumper with the hood up over his head and a bandanna covering the lower half of his face.

Colin Davis then saw the second offender standing in the living room with his back to him. This offender was wearing a grey hooded jumper with the hood over his head.

The offender in the black jumper then quickly approached Colin Davis demanding money and physically assaulting him to his head and face. The force of this assault caused the victim to collapse and lose consciousness.

The accused and other male have entered the bedroom of victim, Gary Davis and demanded money. The offender wearing the black hooded jumper came over the top of Gary Davis who was lying in his bed struck him to the left side of his head with a metal bar approximately 30cm in length. The force of this strike caused a 5cm horizontal laceration (into the dermis) to his left parietal region with a small arteriole bleed. This head laceration subsequently required suturing.

Gary Davis watched as the accused and other male rifled through his bedroom stealing his watch, Apple Mac Air laptop, his wallet containing his drivers licence, credit cards and other cards in his name, Holden Commodore Utility car keys, Nokia mobile phone, a small silver safe containing his passports, airline ticket, cash and other personal documents in his name.

Property stolen by the offenders belonging to Colin Davis included his wallet with identification, credit cards and other cards in his name, two watches, a digital camera and personal documents in his name.

Shortly after the males left the dwelling stealing Gary Davis' vehicle, a white Holden Commodore utility registration QGC654 (NSW). The accused was seated in the front passenger seat and the unknown male being the driver.

Gary Davis left his room and contacted police who attended within minutes. Police began to render aid to the victims. Gary was extremely confused suffering from a head injury and losing a large amount of blood. Shortly after ambulance officers arrive and both Colin and Gary Davis were conveyed to hospital.

As a result of this attack Gary Davis received five (5) stitches to the wound to left side of his head. Colin Davis has a bruised and swollen right eye, a largelump to the top of his head, the skin on the left side of his forehead has been grazed off, his left ear is swollen and purple with several small cuts around his ear along with two lacerations to the back of his neck. He also had defensive injuries which included bruising and grazing to his right arm.

COUNT 3

Aggravated Robbery inflict Actual bodily harm.

About 7.45am on Tuesday 7th February 2012 the victim, Philippa Griffith and witness, Debora McAlpine, were packing personal effects into their vehicle in the driveway to their residence located on Brook Street, Coogee.

At this time they observed the accused, Daniel Booth, to be walking backwards and forwards past the front of their vehicle looking at the victim and McAlpine. These actions by the accused started to make the victim and McAlpine feel uncomfortable.

The victim was standing next to the passenger side of the vehicle. She was carrying her handbag, a light blue purple leather bag, over her right shoulder. Contained in this handbag was her Apple iPhone 4, her blue purse, her New Zealand Passport, credit card and bank card issued to her from Kiwi Bank, her New Zealand Drivers Licence, a pair of Stella McCartney sunglasses valued at over $200, a $200 Mitre 10 gift voucher and other personal property.

The accused ran towards the victim, grabbed her handbag and pulled it forcefully from her shoulder causing her pain. The victim has fallen to the ground hitting her head and left elbow on the concrete driveway. She sustained an abrasion to her right elbow.

The accused ran to a white Holden Commodore Utility QGC654 (NSW) which was parked a short distance away. Being the vehicle stolen from 11 CharmanAvenue, Maroubra 20 minutes earlier. He got into the passenger seat of this vehicle. The vehicle drove away in a northerly direction on Brook Street, Coogee.

The victim was assisted by her friend Debora and an independent witness, Nathan Garlick. Police were contacted and arrived a short time later. As a result of this incident the victim sustained considerable bruising to the inside of her right bicep and the top of her shoulder, as well as abrasions from the contact with the concrete.

On the 9th February 2012, the victim and Debora McAIpine completed photographic line up presentations. They both identified the accused as the person who had committed this robbery. The victim is seeking compensation for the items stolen from her."

1. It needs hardly be said that this represented criminality of a very high order. In view of the agreed facts, maximum penalties and standard non-parole periods, the total sentence imposed on the respondent was very lenient. It is even more lenient when one takes into account the criminal history of the respondent and the fact that the offences were committed whilst he was on parole for similar offences. Indeed the commencement date of the sentences was during the period of parole which was revoked, thus creating a further degree of concurrency in the sentences.

1. To understand how his Honour came to impose such a lenient total sentence it is necessary to consider the personal case of the respondent and the observations of the High Court in Bugmy v The Queen (supra), Munda v Western Australia (supra) and Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

1. Counsel for the respondent provided a thorough and accurate summary of the respondent's subjective case. I unable to improve upon it. Accordingly, I set it out as it was presented in counsel's written submissions:

"8.The respondent was born on 9 May 1988 and was accordingly 23 years of age at the time of commission of the offences and 25 when sentenced.

9.The applicant's paternal grandparents were forcibly removed from family as part of the stolen generation and this was likely to have impacted on his father's upbringing and in turn his father's upbringing of his own children. The respondent's early childhood was on a mission in Bourke where he lived with a large extended family. He has two younger biological sisters. He remained at the mission until he was about six and was both the victim of violence and witness to his father's violence towards his mother, the latter resulting in his father's incarceration. He was surrounded by widespread alcohol abuse including by both parents. His parents were unemployed. They often left him unsupervised. He was cared for by members of the extended family at times and at times learned to care for himself. He spent time with older cousins who did not provide suitable guidance.

10.The family moved into the town of Bourke when the respondent was aged about 6. Although other adults in the community attempted to assist the respondent's care was inadequate and he and his sisters were removed from their parents and made State wards when he was aged 10. He moved frequently (estimating at least 20 different foster homes altogether to Ms Pratley, five or six, after being cared for by his aunts, to Dr Hayes) between then and 16 years of age including in Dubbo, Gilgandra and Coonabarabran. He was initially with his sisters but once, missing his extended family, he encouraged them to run away with him. He was thereafter separated from them.

11.The respondent suffered sexual abuse in one foster home in Bourke, apparently resulting in a custodial sentence for the perpetrator. The respondent has not received counselling in connection with this trauma. Problems with placements otherwise seem to have arisen because the respondent had a lot of energy, found some of the rules imposed on him too strict, and did not understand why some of his carers did not let him simply 'hang around with other boys'. This caused friction and misbehaviour.

12. The respondent is illiterate. He left school in approximately year 6, never having learned the alphabet. He had been in remedial classes. Due to his parents' violence and alcohol abuse he did not attend school on a regular basis.

13. Ms Pratley said that 'Mr Booth grew up in an environment that normalised substance use and this has likely played a role in his own extensive history of polysubstance use.' He first used cannabis at age seven or eight. He started sniffing petrol at age 10 and this has likely caused neurological damage. He ceased sniffing petrol at 11 or 12 by increasing cannabis usage, which relaxed him. He continued to smoke on a daily dependence level. The order of commencement of these, and the basis for stopping petrol sniffing, was different in the report to Dr Hayes. From age 18 he commenced amphetamines with rapidly increased dependence, and commenced heroin usage at age 19. There were unreliable aspects of his reports of alcohol consumption but Ms Pratley thought his usage problematic and related to the offending. His counsel informed his Honour that he was being maintained on the methadone programme in custody and this is also referred to in Dr O'Dea's report at [12].

14. At some stage the respondent travelled by train from Dubbo by himself to Sydney because his mother and father (who had separated), two sisters, two half-brothers from his father's side and two stepsisters live here. He told Dr Hayes this was in 2002 (when he would have been 13/14) although it is unclear how this relates to his remaining in state care until age 16 or 17. He told Dr Hayes that his mother is becoming older and needs his help with cleaning and other chores. Both parents had re-partnered. He was living with his mother in the Redfern / Waterloo area at the time of the 2008 offences and as will be indicated below was also having contact with her there prior to the commission of the offences now before the Court (although telling Dr O'Dea he was aware that '..people reckon I can't go to Redfern.'): [7].

15. The respondent's first charge on his criminal record was for larceny at age 10, which was dismissed with a caution. At 14 years of age he commenced a control order for robbery in company. Throughout his childhood and young adulthood he has been convicted for numerous offences including larceny, driving a conveyance taken without the owner's consent, assault, assault officer in execution of duty, wounding a police officer, destruction of property, escaping custody, multiple break and enter offences, stalking / intimidating, possessing implements to enter / drive conveyances, custody of a knife in a public place, and possession of drugs. Some of the break and enter offences are described as aggravated - normally because of knowledge of people present but on at least one occasion because in company. There are references in the terms of parole granted on a number of occasions to the respondent's disability and drug and alcohol problems.

16. On 16 July 2009 the respondent was sentenced by his Honour Finnane DCJ to three terms of imprisonment commencing 22 July 2008 and 22 July 2009 for three break and enter offences (one aggravated by persons present). The longest sentence was one of five years with a non-parole period to expire 21 July 2011 and total term to expire 21 July 2013. The respondent was released to parole on 30 September 2011. His liberty was accordingly conditional at the time of the offences before his Honour. This parole was revoked on 2 February 2012 prior to the commission of these offences, effective from his incarceration on February 10. This revocation must have been in the respondent's absence. There was no information before the sentencing judge as to why it was revoked (although it was apparent from the material available that it was not because of the commission of these offences).

17. The respondent was first incarcerated in an adult gaol on 19 September 2006,18 years old. Since then the longest he has been at liberty was a period of a little less than three months between 18 December 2006 when he was released to parole, and his readmission to custody on 9 March 2007. He was otherwise in custody until his release to parole before these offences on 30 September 2011, except for 6 days in October / November 2007, about 6 weeks in May / June 2008, 9 days later in June 2008 and in July of that year one period of 8 days and later on another 5 days: see pages 6 - 8 of Corrective Services records.

18. Professor Susan Hayes assessed the respondent prior to the sentencing process in 2009. He is deaf in one ear and wears glasses for long distance vision impairment. Psychometric testing demonstrated mild intellectual disability on the Kaufman Brief Intelligence Test with an IQ composite Standard Score of 68, at a level lower than 98 percent of the population. He was particularly disadvantaged in his verbal abilities. The Vineland Adaptive Behaviour Scales-II assess the degree to which the individual is able to function and maintain him or herself independently, and the degree to which he or she meets satisfactorily the culturally imposed demands of personal and social responsibility. Dr Hayes reported that the results of this testing were consistent with the intelligence testing' indicating that the respondent had a diagnosis of mild intellectual disability, as he has significant deficits in both cognitive and adaptive behaviour skills.In adaptive behaviour, his lowest area of functioning is communication.' In a table on page 5 of her report she demonstrated his skills in the communication areas to be equivalent to 4 years 11 months to 6 years 10 months.

19. Ms Pratley's testing in 2013 was said by the Sentencing Judge to be essentially consistent with the report of Dr Hayes. It is noted that in the intervening period the respondent was seemingly subjected to a significant head injury. Dr O'Dea at [37] says 'Mr Booth reported experiencing a number of head injuries through his life, "..that's why I get all my days confused and that... I in Cooma in 20111 nearly died twice ... I was in hospital for four days [in relation to a head injury]...".

20. Ms Pratley administered a Mini Mental State Exam that indicated mild-moderate cognitive development. Performance was possibly underestimated due to illiteracy as the assessment does not provide information about the nature of the impairment.

21.The Wechsler Abbreviated Scale of Intelligence demonstrated borderline to low average ability (better than 13% for normed age) for nonverbal ability and extremely low range (bottom 0.2% of normative age range) for verbal ability. Ms Pratley thought it not meaningful to report overall cognitive capacity because there was a relatively high performance on one nonverbal subtest which may have artificially inflated his nonverbal functioning score.

22. Of these results Ms Pratley said at [30]:

Mr Booth's poor verbal capacity means that he is likely to act both more impulsively due to an inability to engage in self-talk and restrain his behaviour, and also be more likely to react in concert with peers as he is less able to voice his own opinion or argue his case. Mr Booth struggles with abstract reasoning and this was evidence during the course of our interviews. Compared to the general population he is functioning in the bottom 2% for overall ability and hence is significantly impaired."

23. In terms of the respondent's mental health otherwise, Ms Pratley described at [26] the respondent's extremely poor coping skills. She said his report of substance use as an effort to cope with difficult situations and avoid experiencing negative feelings can be a common coping strategy for children raised in environments that feature multiple child protection risks, as the respondent did. She said he did not appear to have a capacity to self-soothe and this was also commensurate with his level of intellectual functioning. Dr O'Dea noted a history in a report provided to him of an attempt on the respondent's part to hang himself at age 10: [14].

24.The respondent has regular contact with extended family members. He named to Ms Pratley a number of family members who have attempted to behave protectively towards him and continue to offer him support and encouragement around regaining abstinence from substances.

25. The respondent reported that prior to these offences he was initially on parole and attempting to comply with the support of an aunt. He told Dr O'Dea he was living with an aunt and uncle. He was unemployed, 'they had me going to a disability project... they reckon I've got a disability ... I don't know the days and that.': [5]. He told Ms Pratley two aunties and two cousins died within a short period of time and he was unable because of his parole to travel to Bourke to grieve with his family. He went to his mother's at Waterloo and reconnected with peers who had been a negative influence in the past. Ms Pratley reported at [33] that 'At his time of grief, Mr Booth's poor coping skills meant that he was highly susceptible to relapse. Mr Booth said that he 'stopped caring' at that time and he ceased his methadone program and resumed using heroin.' He reported heroin and alcohol usage during the night of the offences. He told Dr O'Dea he was using drugs and alcohol only when away from his aunty, when he went to the city and drank with cousins.

26. The respondent said he was not a leader in the offences and was adversely influenced by peers, some of whom he had known since childhood. His report to Dr O'Dea was also of being induced into this offending by others, but in more strongly exculpatory terms not consistent with the agreed facts. Ms Pratley's formulation at [36] - [39] is important, and set out and accepted by his Honour at ROS 11 (although with less optimism arising from the respondent's hope for employment on release) and set out also in the applicant's written submissions at [15].

27. She also said at [40] that 'As outlined above, Mr Booth has significantly impaired intellectual capacity and this calls into question his capacity to make informed, responsible decisions. His low intellectual functioning increases his susceptibility to influence by others, and this, combined with his personality characteristics of wanting to be liked and to fit in with others, means that he is vulnerable to being led by others.'

28. In the context of the importance in this formulation of the respondent's malleability to influence by negative peers, it is noted that count 2 on the indictment specifies that '... .the said Daniel Booth was in company with another unknown person and the said Daniel BOOTH thereby did wound Gary DAVIS.' It is submitted however that the Crown at sentence clearly did not contend that the respondent was the offender in the black hooded top who personally inflicted the violence on the two victims the subject of this count. The facts do not allege the respondent was the actual perpetrator, which would be expected if that was actually what was being alleged. The submission was made in writing and orally by counsel appearing on the respondent's behalf that it was not clear from the facts who the actual perpetrator of the violence was, and the Crown was unable to assert this beyond reasonable doubt: Defence submissions page 2.7, TRP 12/12/13 10.22. There was no demur from the Crown regarding this proposition.

29. It is further noted in this regard that the respondent's extensive criminal record does not include many offences of violence. There was little before the sentencing judge as to the break and enter offences for which his parole was revoked although they were submitted to be similar. They were aggravated because of persons being present in the premises. When Professor Hayes asked him why he committed these offences he said he was stealing money because no-one looked after him and he could not buy food. He said he tried to apply for a Disability Support Pension, but the staff at Centrelink told him that he was fit and healthy. They also told him that if he wanted to apply he would have to obtain a Medical Certificate. This process was too complicated for him and so he did not apply."

1. The offender's criminal history commenced when he was just 11 years of age. He had more than ten appearances in the Children's Court for various offences including break, enter and steal and robbery. He was incarcerated for nine months on a control order on his fifteenth birthday. He has been in and out of various custodial institutions ever since. He has many offences of dishonesty and some offences of violence. He has breached bonds and parole conditions more than once.

GROUND 1: HIS HONOUR ERRED IN IMPOSING SENTENCES FOR EACH OF THE COUNTS 1,2 AND 3 WHICH ARE DISPROPORTIONATE TO THE GRAVITY OF THE INSTANT OFFENCES.

1. In assessing this ground it is important to keep firmly in mind that sentencing is a discretionary exercise, that a great deal of latitude is given to sentencing Judges and that there is no single correct sentence: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [46], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27], [133]. In Hili and Jones v The Queen [2010] HCA 450 Heydon J said:

"76. When the second category [of House error] is relied on, the usual complaint is that the sentence is 'manifestly excessive' or 'manifestly inadequate'. Mere excessiveness or inadequacy will not reveal that there is an error of either an identifiable or an unidentifiable nature. The difficulty which the principles in House v The King create for appellants in sentencing appeals - whether defendants complaining of 'manifest excessiveness' or the prosecution complaining of 'manifest inadequacy' - is that they give sentencing judges 'a wide measure of latitude which will be respected by appellate courts.' But it does not follow that, when a sentencing judge in one case looks back on the reasons for judgment of an earlier sentencing judge in a similar case, the later judge should give the earlier one 'a wide measure of latitude' in the sense of not departing from the outcome unless it is plainly wrong.

77. Sentences must be reasonably consistent. But it does not follow that disparities between them may not exist. Within the boundaries of reason, and leaving aside the special instance of co-offenders, where marked disparity renders sentences vulnerable on appeal, it cannot be said that any particular disparate sentence is necessarily wrong merely because it is disparate. Indeed, even within a single jurisdiction, one court, while bound by whatever this Court or the intermediate appellate court for that jurisdiction has held to be the correct legal principles (statutory or common law), may arrive at sentencing results in particular cases which are different from those reached by earlier courts in that jurisdiction without being open to appellate reversal or criticism for 'error' merely because of those differences."

1. The appellant has pointed to nothing in Judge Toner's sentencing judgment which suggests that his Honour was not acutely aware of the seriousness of the offending. His Honour was dealing with an offender with a bad record but also had to give principled and significant weight to a series of subjective circumstances which plainly caused him to believe that while a substantial gaol sentence had to be imposed, that sentence must be tempered with considerable compassion and be structured in such a way as to foster his rehabilitation. It is trite to say that the rehabilitation of such an offender is more apt to protect the community from further offences of violence than the imposition of a lengthy or crushing gaol sentence.

1. Judge Toner referred to the High Court's judgments in Bugmy v The Queen and Munda v The Queen. It is appropriate to consider those two cases together, remembering that the High Court heard them sequentially because they gave rise to similar and profound issues concerning the sentencing of Aboriginal offenders who come from deprived, dysfunctional and marginalised backgrounds.

1. The High Court emphasised in both decisions that offenders are not to be treated differently because of their ethnic or racial background. Unlike the situation in Canada, there is no legislative warrant to do so: contra R v Gladue [1999] 1 SCR 688, R v Ipeelee [2012] 1 SCR 433.

1. In Bugmy v The Queen French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ said at [36]:

"There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice."

1. In Munda v Western Australia French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [53]:

"Mitigating factors must be given appropriate weight, but they must not be allowed 'to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.' It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide"

1. The reference to the "principle stated by Brennan J" is a reference to what his Honour said in Neal v The Queen (1982) 149 CLR 305 at 326:

"The same sentencing principles are to be applied ... in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal."

1. Similar sentiments were articulated by Wood J in R v Fernando (1992) 76 A Crim R 58 at 63:

"[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender."

This passage was referred to with approval in Munda v Western Australia at [51].

1. In Bugmy v The Queen the joint reasons at [37] commended the following observations of Simpson J in Kennedy v The Queen [2010] NSWCCA 260 at [53]:

"Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime."

1. The High Court observed at [37] that "an Aboriginal offender's deprived background may militate the sentence that would otherwise be appropriate" noting that the same principle applies to a non-Aboriginal offender. The joint reasons went on to say at [43]:

"The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending."

1. And at [44]:

"An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."

The Court adopted remarks that had been made by Gleeson CJ in this Court in relation to the sentencing an offender with a mental condition: R v Engert (1995) 84 A Crim R 67 at 68.

1. In addition to the circumstances of shocking deprivation, alienation and dislocation established on behalf of the respondent, the other critical subjective feature concerned his intellectual disability. In terms of the relevance of deterrence, this feature of the case was of great significance. The language used by the experts was in very similar terms to that applied to the appellant in Muldrock v The Queen. In that case, the High Court confirmed that such a condition is extremely important to the proper exercise of the sentencing discretion. It cited with approval the Victorian decision of R v Mooney (Court of Criminal Appeal (VIC), 21 June 1978, unrep) in the following passage commencing at [53]:

"Young CJ, in a passage that has been frequently cited, said this:

'General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."

In the same case, Lush J explained the reason for the principle in this way:

'[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.'

54. The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.

55. In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending."

1. The High Court said (at [32]):

"An offence of sexual intercourse with a child aged under 10 years falling within the middle of the range of objective seriousness has a standard non-parole period of 15 years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence."

1. In the present case, the evidence established that the respondent's substantial intellectual deficit placed him in the bottom 2% of the population and in some respects (verbal ability) in the bottom 0.2% of the population. While Dr O'Dea (who provided an opinion as to whether the respondent was fit to plead) described his intellectual disability as "mild" according to the psychologist the disability meant that he was "significantly impaired". It made him vulnerable to peer pressure, less able to voice his own opinion, more likely to act impulsively and to be unable to restrain his behaviour.

1. It was for Judge Toner, not this Court, to determine the extent to which these compelling subjective circumstances impacted on the sentences to be imposed on the respondent. It was for his Honour to determine the appropriate weight to be given to them. I can discern no error in his approach to assessing the appropriate sentence for each individual offence. His approach was a model of orthodoxy and sensitivity.

1. In the individual and particular circumstances of this case, I am unable to conclude that the individual sentences are inadequate and disproportionate to the gravity of the offending.

1. I would reject ground 1.

GROUND 2: HIS HONOUR ERRED IN THE MANNER IN WHICH THE SENTENCES WERE ACCUMULATED LEADING TO THE IMPOSITON OF A MANIFESTLY INADEQUATE TOTAL SENTENCE.

1. The appellant contends that "the significance of the manifestly inadequate individual sentences is exacerbated by the manner in which his Honour structured the total sentence". In spite of this submission, I do not understand Ground 2 to be dependent on a finding that the individual sentences were manifestly inadequate. If it were, the ground would fail as it presumes success on ground 1 which I would reject. However, I take Ground 2 as standing alone and tied, if anything, to ground 5 which contends that the total effective sentence is manifestly inadequate.

1. Counsel for the respondent, properly and correctly, acknowledged that there is force in this ground. However, she submitted that a large degree of discretion is afforded to sentencing judges to determine the extent to which sentences are accumulated.

1. It is correct to say that the degree of accumulation and concurrence is a matter within the discretion of the sentencing Judge: see, for example, R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 per Simpson J at [7], Johnson v the Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616 at [26]. However, the discretion must be exercised in a principled way and if wholly concurrent sentences are to be imposed for distinct and separate crimes, the explanation for such an approach must be compelling. It is not sufficient that the offences were of a similar nature or formed part of one crime "spree": see for example R v Harris [2007] NSWCCA 130.

1. In my opinion this ground is made out and error is established.

1. The sentencing Judge commenced the sentence for count 2 six months after the commencement for count 1. The practical upshot of that approach was that the very serious offending encompassed by count 1 resulted in an effective penalty of six months imprisonment. That is a very small degree of accumulation given that the offences took place on different days (albeit within about 24 hours of each other), involved different premises and, perhaps most importantly, impacted on different victims. While it is correct to describe the offences as part of a "continuum", they were distinct and separate crimes. While the degree of accumulation between count 1 and 2 is very small, I am unable to conclude that it fell outside of the wide discretion residing in the sentencing Judge.

1. However, when his Honour sentenced in relation to count 3, he imposed a sentence which was wholly concurrent with the other two sentences. This means that there was no effective punishment for count 3 which, while not the most serious example of an aggravated robbery, was a very serious offence.

1. The respondent snatched the victim's bag, causing her to fall to the ground and hit her head. She suffered an abrasion to her elbow and bruising to her upper arm and shoulder. By itself, count three carries a maximum penalty of 20 years imprisonment and there is a guideline judgment for a similar (not identical) offence suggesting a sentence of 4-5 years for a young offender with little or no criminal history: R v Henry and others (supra). It is difficult to conclude that it did not warrant some additional and distinct punishment.

1. Apart from the reference to the temporal proximity of the offences and noting that they were part of a continuum, no real explanation was given for the manner in which his Honour exercised the discretion. I am unable to discern anything in the judgment which justifies, or even attempts to explain, the imposition of a wholly concurrent sentence for count 3.

1. In my opinion, the discretion miscarried. Subject to a consideration of the residual discretion, it will be necessary to re-sentence the respondent.

GROUND 3: HIS HONOUR ERRED IN THE MANNER IN WHICH THE FINDING OF SPECIAL CIRCUMSTANCES WAS APPLIED

1. The appellant asserts that the proportion of the non-parole period to the total sentence for each individual sentence (37.5% in respect of counts 1 and 3 and 33.3% in respect of count 2) resulted in individual non-parole periods which do not reflect the objective gravity of the offending. The same submission is made with respect of the total effective sentence where the non-parole period is 38.5% of the total sentence.

1. It was not contended that the finding of "special circumstances" was not correct (or at least open). To my mind it is a case where special circumstances clearly existed and also one where it was open to the sentencing Judge to make a substantial adjustment to the proportions between the total sentence and the non-parole period.

1. The degree of departure from the proportions dictated by s 44(1) of the Crimes (Sentencing Procedure) Act is a discretionary decision that raises "so many matters of a discretionary character that this Court will be very slow to intervene": R v Cramp [2004] NSWCCA 264 at [31]; Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20 at [33].

1. I reject ground 3. However, if the respondent is re-sentenced to ensure some level of accumulation in relation to count 4, the ratio between the non-parole period and the total sentence will be altered.

GROUND 4: HIS HONOUR ERRED IN FAILING TO HAVE ANY REGARD TO THE PRINCIPLE OF DETERRENCE TO THE IMPOSITON OF A MANIFESTLY INADEQUATE SENTENCE

1. This ground appears to be directed predominantly to personal, rather than general, deterrence. As I understand it, the appellant concedes that the circumstances of the respondent's case, and in particular his intellectual disability, the role of general deterrence was limited. I have dealt with this in disposing of ground 1. However, it is submitted that the respondent's criminal record and the fact that there were two additional offences to be dealt with on the Form 1 meant that personal deterrence had an important and significant role to play.

1. The appellant's written submissions in relation to this ground elide questions of deterrence, rehabilitation, remorse and proportionality in a way that makes it difficult to assess precisely what is being submitted. Having said that, it is important to recall what the High Court said Munda v Western Australia at [54]-[58]. French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ made it clear that even where deterrence "has little rational claim upon the sentence discretion" it is important to recall the other purposes of punishment especially in cases involving violence. For example, "the obligation of the state to vindicate the dignity of each victim of violence" and to "express the community's disapproval of that offending". Their Honours also noted that drug addiction can sometimes mean that personal deterrence has a greater role and went on to adopt the words of Gleeson CJ in R vEngert (1994) 84 A Crim R 67 at 68 that it is "erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances."

1. The appellant relies on the absence of any reference to deterrence in the remarks (judgment) on sentence. The respondent submits that "in circumstances where the respondent's adaptive communication behaviour is equivalent to that of a five year old it must have a greatly reduced scope". This submission accords with the observations of Spigelman CJ in R v Israil [2002] NSWCCA 255 at [25]:

"Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it:

... specific deterrence may be more difficult to achieve and is often not worth pursuing as such." (Tsiaras, supra, at 400)

That passage is part of a succinct analysis of the various ways in which mental illness and intellectual disability impact upon the sentencing discretion: see R v Israil at [21]-[27] and R v Tsiaras [1996] 1 VR 398.

1. The respondent accepts that it would have been "preferable" for the sentencing Judge to articulate his approach to deterrence but says that "in so squarely indicating his engagement with Muldrock and Bugmy it should not easily be inferred that his Honour was not conscious of such a basic sentencing principle."

1. I accept the submission of the respondent. The respondent was not a suitable vehicle for general deterrence. The extent to which specific deterrence was relevant, given his disability, was questionable. Each of those sentencing principles had some role to play but it was not a determinative role. In any event I am unable to accept that the sentencing Judge failed "to have any regard to the principle of deterrence".

GROUND 5: HIS HONOUR ERRED IN IMPOSING A TOTAL SENTENCE WHICH IN THE CIRCUMSTNACES IS MANIFESTLY INADEQUATE

1. It follows from my conclusion in respect of ground 2 that this ground is also made out.

1. The absence of any degree of accumulation in relation to count 3 means that the respondent received effectively no punishment for that offence. That outcome is unreasonable or plainly unjust and results in a total effective sentence that is, in all of the circumstances, manifestly inadequate.

RESIDUAL DISCRETION

1. In R v RD [2014] NSWCCA 103 I provided the following summary of some of the case law relating to the residual discretion following the introduction of s. 68A Crimes (Appeal and Review Act) 2001 (NSW):

"46. Section 68A of the Crimes (Appeal and Review Act) 2001 (NSW) provides:

"Double jeopardy not to be taken into account in prosecution appeals against sentence

(1) An appeal court must not:

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

(2) This section extends to an appeal under the Criminal Appeal Act 1912and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal."

47. The extent to which this provision circumscribes the 'residual discretion' has been considered by this Court: see, for example, R v JW [2010] NSWCCA 49, 77 NSWLR 7 per Spigelman CJ (with whom Allsop P agreed) at [92]-[95] and [141]; per McClellan CJ at CL, Howie and Johnson JJ at [209] and R v DW [2012] NSWCCA 66 per Basten JA at [21]-[26]. The High Court has also considered the exercise of the residual discretion in recent times: see, Green & Quinn v The Queen [2011] HCA 49; 244 CLR 462 per French CJ, Crennan and Kiefel JJ at [26], [43] and per Bell J at [131]; Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 at [24].

48. These cases establish that this Court retains a 'residual discretion' to decline to intervene to increase a sentence on a Crown appeal even where error is established and even when it concludes that the sentence imposed at first instances is plainly wrong or manifestly inadequate.

49. In Green and Quinn v The Queen the majority said at [35]-[36]:

'...assuming the Court of Criminal Appeal considers the sentence under appeal to be inadequate on account of error by the primary Judge, two questions arise. Their answers involve the exercise of the different discretions conferred by s 5D. They are:

1. Whether, notwithstanding the inadequacy of the sentence, the Court should decline in the exercise of its 'residual discretion' under s 5D, to allow the appeal and thereby interfere with the sentence appealed from.

2.To what extent, if the appeal is allowed, the sentence appealed from should be varied.

A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D, which ....is 'to lay down principles for the governance and guidance of Courts having the duty of sentencing convicted persons'. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing Judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.'

50. And at [43]:

"Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."

51. In JW v R Spigelman CJ (at [44]-[141]) undertook an extensive review of the law of "double jeopardy" in the interpretation of s. 68A. He concluded (at [141]):

"The following propositions emerge from the above analysis:

(i) The words "double jeopardy" in s 68A refer to the circumstance that an offender is, subject to the identification of error on the part of the sentencing judge, liable to be sentenced twice.(ii) Section 68A removes from consideration on the part of the Court of Criminal Appeal the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject.(iii) Section 68A prevents the appellate court exercising its discretion not to intervene on the basis of such distress and anxiety.(iv) Section 68A also prevents the appellate court from reducing the sentence which it otherwise believes to be appropriate on the basis of such distress and anxiety.(v) Section 68A prevents the Court from having regard to the frequency of Crown appeals as a sentencing principle applicable to an individual case by taking either step referred to in (iii) or (iv), or otherwise."

52. Allsop P agreed with the Chief Justice at [205] and McClellan CJ at CL, Howie and Johnson JJ, while taking a different view on some issues, agreed (at [209]) 'with all the Chief Justice has written about the effect of s 68A of the Crimes (Appeal and Review) Act 2001'.

53. In Green and Queen v The Queen French CJ, Crennan and Kieffel JJ said (at [26]):

'It is not necessary for this Court to review the correctness of the construction of s 68A in JW. On any view of its operation it does not extinguish the residual discretion'"

1. The respondent has adduced evidence of his sadness and disappointment when he heard of the Crown appeal. He says he is sad and disappointed in himself. He spoke of the time that he has spent in custody, the difficulties he has had and his attempts at gaining education. He says that he gets a visitor from his family about once a month. He says that he wants "to try to be more like my cousins when [he] gets out of gaol" and explains that his cousins "work and don't drink or take drugs". The respondent is involved in an intensive drug and alcohol treatment programme (IDATP) and is trying to learn to read and write. He is also getting lessons in painting and works on his art in his cell. He says "I would rather do my culture than come back to gaol."

1. An affidavit of the respondent's solicitor annexes various documents which confirm the respondent's involvement in the IDATP. Another document shows that in January 2013 the respondent was contacted by Corrective Services and told them that he would not apply for parole because he was expecting to be sentenced to gaol "for some time".

1. The material is relevant to the exercise of the residual discretion and to the question of the appropriate degree of accumulation and the commencement date of the sentence. The material does not persuade me that the Court should exercise its discretion not to intervene at all to ensure that there is a degree of accumulation and some separate punishment for the robbery offence. However, I am satisfied that discretionary considerations require that the degree of intervention should be moderate.

RE-SENTENCING

1. I agree with counsel for the respondent that the commencement date chosen by Judge Toner (18 December 2012) was an appropriate one. While it is true that the early period of custody was at least partially referable to the revocation of the parole, it is also true that the respondent did not seek parole because of the outstanding sentencing proceedings. Further, he sought to be sentenced on 12 April 2013 but the case was adjourned because his legal representative was forced to withdraw. A transcript of the proceedings on 12 April 2013 records his lawyer as saying "Mr Booth is saying that he wants to have the matter dealt with today". The respondent was in custody from 10 February 2012 when he was arrested in relation to the aggravated robbery. An affidavit filed on behalf of the appellant shows that parole was revoked on 2 February 2012 as a result of non-compliance with parole conditions. The material before the sentencing Judge suggested the balance of parole was to expire on 15 August 2013 but the evidence also showed that the respondent did not seek parole because he was awaiting the outcome of the sentencing hearing.

1. The selection by Judge Toner of 18 December 2012 as the commencement date struck an appropriate balance and was in compliance with s 47 Crimes (Sentencing Procedure) Act.

1. In re-sentencing it is necessary to ensure that there is a greater degree of accumulation and in particular that there is a clear and separate (not concurrent) penalty imposed in respect of count 3. Taking into account the material tendered on re-sentence, in my judgment this should result in an increase in the sentence of 12 months. The outcome of such accumulation would be a total sentence of 7 years and 6 months and total non-parole period of 3 years and 6 months. There remains a substantial degree of concurrence. I have taken into account the principles of totality in arriving at this conclusion. As I have said, with the exception of the failure to accumulate at all with respect to count 3, I am in substantial agreement with the approach adopted by Judge Toner. The result of the intervention that I propose will be an adjustment of the proportion between the total sentence and the non-parole period. A greater proportion of the sentence (about 47%) will be spent in gaol.

1. The most appropriate and convenient way to achieve this is by the imposition of an aggregate sentence pursuant to the provisions of s 53A Crimes (Sentencing Procedure) Act. The proper approach to the imposition of an aggregate sentences is demonstrated by the judgment of Fullerton J in SHR v R [2014] NSWCCA 94: see also R v Nykolyn [2012] NSWCCA 219 per RA Hulme J at [56]-[60], Brown v R [2012] NSWCCA 199 per Grove AJ at [17], [51] and R v RD (supra) at [62]-[66].

1. For the purpose of s 53A(2) I record that I would have imposed the same individual sentence as imposed by the learned sentencing Judge namely:

(i)   Count 1 - a sentence of 4 years

(ii)   Count 2 - a sentence of 6 years

(iii)   Count 3 - a sentence of 4 years

However, I would have accumulated the sentences to a more substantial degree. Taking into account the principles of totality I would have accumulated the sentence on count 2 by a period of six months on the sentence for count 1 (as did Judge Toner). I would have accumulated the sentence imposed on count 3 by a further twelve months.

1. For the reasons set out in the body of this Judgment, and for the reasons given by Judge Toner, I find that there are special circumstances pursuant to s 44(2B). It is in the interests of both the respondent and the community that he is given a lengthy period on parole to foster his chances of rehabilitation, to ensure that he does not commit further offences and to assist him in assimilating into the community.

1. The orders that I propose are as follows:

(1)   Appeal allowed.

(2)   Quash the sentences imposed in the District Court.

(3)   In lieu thereof, the respondent is sentenced to an aggregate sentence of 7½ years commencing on 18 December 2012 and expiring on 17 June 2020. There will be a non-parole period of 3½ years commencing on 18 December 2012 and expiring on 17 June 2016.

(4)   The respondent will become eligible for release to parole at the expiration of the non-parole period.

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Decision last updated: 15 August 2014