R v Merza

[2024] NSWDC 591

District Court

New South Wales

Medium Neutral Citation:

R v Merza [2024] NSWDC 591

Hearing dates:

28 November, 13 December 2024

Date of orders:

13 December 2024

Decision date:

13 December 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See par [33].

Catchwords:

Hindering a police investigation; meaning of “hindering”. Totality: ratio between head sentences and non-parole periods – Hardship during COVID-19 pandemic – Relevant factors in considering this offence.

Legislation Cited:

Crimes Act 1900, ss 315(1)(a), 546C.

Crimes (Sentencing Procedure) Act 1999, s 25D(3)(a)

Cases Cited:

Lonsdale v R [2020] NSWCCA 267 at [65].

Merza v R [2021] NSWCCA 269, [247], [249]-[252], [267], [285]-[300].

Mill v The Queen (1988) 166 CLR 59, 63-5.

Pearce v The Queen (1998) 194 CLR 610, [45]-[47].

R v Derbas [2003] NSWCCA 44.

R v Merza [2020] NSWDC 189, [51]-[56].

R v Tarek Zahed [2024] NSWSC 231.

Sampson v R [2014] NSWCCA 19.

Taufahema v R [2006] NSWCCA 152, [25]-[27].

Texts Cited:

Nil.

Category:

Sentence

Parties:

Crown – R (NSW)
Offender – Olevar Merza

Representation:

Counsel:
Crown – Ms Mackenzie, K.
Offender – Ms Francis, A.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Offender – KK Lawyers.

File Number(s):

2021/00167260

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: Olevar Merza (“the offender”) stands for sentence as a consequence of pleading guilty to a charge contained in an amended Indictment (version 13.2) presented to this Court on 9 September 2024 (ML Williams SC DCJ). The charge in that Indictment is this:

“…between 19 May 2016 and February 2017, in Sydney….did hinder the investigation of a serious indictable offence committed by another person, namely, murder.”

That is an offence contrary to s 315(1)(a) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 7 years. There is no standard non-parole period.

2. These proceedings have had a tortuous history. They result from the murder of Mr Adrian Buxton on 19 May 2016, outside his home, by one of two unknown persons. The victim’s death resulted from gunshot wounds. On 14 October 2022 the Local Court of Penrith committed the offender for trial in the Supreme Court on four very serious charges, and a lesser one. The Director of Public Prosecutions elected not to take any further proceedings on the four very serious charges. The Supreme Court remitted the proceedings to this Court for trial on the fifth, the lesser, count in the original indictment. The trial of that issue was listed for hearing in this Court on 9 September 2024. The trial date was formally vacated at the Call-Over on 5 September 2024, leading to the presentation of the current Indictment and the fixing of a Sentencing hearing on 28 November 2024.

Facts

3. The relevant facts are there:

“(4) At approximately 9:00pm on 19 May 2016, Adrian Buxton (DOB 07 October 1984) was shot three times outside his home by one of two unknown persons (the assailants). Mr Buxton died as a result of the gunshot wounds.

(5) The two assailants were seen running away from the scene, getting into a dark coloured vehicle and driving away. This vehicle was accompanied by a light-coloured vehicle that was parked nearby.

(6) Police review of available CCTV identified one of the vehicles as likely to be an Audi Q7 and the other to be a Hyundai.

(7) Police also believed, as of 10 August 2016, that offender had a black Audi Q7 registration BMH12Q. On this basis police conducted an investigation aimed at seizing and forensically examining the offender’s black Audi Q7 registration BMH12Q (the Audi).

(8) On 4 October 2016 police issued a form of demand on the offender to provide information about the Audi, its whereabouts and who was driving it on 19 May 2016. At the time of making the demand, police told the offender that the information was required in relation to the investigation of the murder of Mr Buxton.

(9) On 12 October 2016, police issued a second form of demand on the offender in the same form.

(10) From 4 October 2016 the offender was unable to access the Audi as he was detained. He directed others to either hide or get rid of the Audi.

(11) To this date the Audi has not been found.

(12) By these acts the offender intended to hinder the police investigation into a serious indictable offence.

(13) The Crown does not allege that the offender had any involvement in the murder or made directions to dispose of the Audi to assist anyone, but instead to hinder the police investigation by ensuring that they did not obtain it. The result being that police could not either include or exclude the use of the offender’s Audi in the commission of the murder.

(14) The offender knew of the death of Adrian Buxton through the media within a day or so of the murder.”

4. Whilst police believed as at 10 August 2016 that a black Audi Q7 was a vehicle of interest (“VOI”) and knew that the offender was an owner of such a vehicle, they did nothing about that until 4 October 2016. In the interim the offender had been arrested on 20 September and was bail refused in connection with another matter. At the time of each of the statutory demands on 4 October 2016 and 12 October 2016, the offender was in custody.

5. Following the murder of Mr Buxton, police canvassed the surrounding area and obtained CCTV footage which showed the following VOIs:

1. The arrival of a black vehicle just prior to the shooting;

2. A black vehicle driving past on the day of the shooting; and

3. A black vehicle leaving the vicinity of the victim’s home shortly after the shooting. This was the suspected “getaway vehicle”.

The agreed facts go on to say:

“(16) A police reconstruction video was generated to compare the VOI from CCTV footage on 19 May 2016, to a vehicle of known make and model (being an Audi Q7) and considered by a police expert Crime Scene Officer who concluded that: “…in relation to the images from the CCTV footage supplied by DSC Kelly, I am of the opinion the vehicle in the digital image named 211643 VOI’s JPG share some similar features to that of an Audi Q7”.

(17) This analysis included the following caveat: “It is not possible to determine the make or model of the vehicle in the images alone due to the quality of the images and distance the subject vehicle is from the camera”.

(18) As a result of this analysis, police investigation continued to try and locate the suspected getaway vehicles used by the two unknown assailants.

(19) Some time after 10 August 2016 police formed a reasonable suspicion based on the reconstruction video and other information that the offender’s Audi may have been the vehicle used in the murder of Mr Buxton. Police began inquiring about the offender’s black Audi Q7.”

6. There is no dispute that, at least until 10 August 2016, the offender had control of his Audi. Agreed Fact 20 is this:

“(20) The Audi was at all times in [the] control of the offender in that he could decide who drove it and when it would be used. The Audi was not registered to the offender, however, it was used both by himself and other associates who worked under him, such that he could direct them to do certain things. This is evidenced by a number of events:

a. On 31 May 2016 the offender contacted an Audi Service centre at 2A Defries Ave Zetland to arrange for the Audi to be serviced.

b. On 19 June 2016 the offender telephoned Martin Hana and said “I wanted you to come with your car and bring my Audi as well…”

c. On 4 July 2016 the offender telephoned Dominic Nissan and enquired about the procedure for advertising the Audi for sale on ‘Carsales.com’.

d. On 10 August 2016 police conducted a search of the offender’s residence at 17 Lime Street Cabramatta West, in the presence of the offender. At that time, the Audi was located at the residence; however police did not suspect it being involved in the murder of Mr Buxton at that time.”

7. The hindrance that the offender gave to the police is summarised in the agreed facts:

“(21) On 04 October 2016, DSC Johnson spoke to the offender and made a formal demand for driver and passenger details suspected to be involved in an indictable offence. During the formal demand DSC Johnson told the offender that the serious indictable offence being investigated was the murder of Mr Buxton on 19 May 2016 and that the Audi was suspected to be involved. The offender indicated to police that he was unable to assist.

(22) On the same day after the demand was made the offender and Antonio Hermiz had a coded telephone conversation where the offender told him that police had come looking for the vehicle (referred to as ‘the big one’), and instructed Hermiz to “hide it good”. This was the first action by the offender to hinder the investigation.

(23) On 12 October 2016, police made the same formal demand on the offender as had been made on 4 October 2016. The offender agreed he had driven the vehicle and that he and others had access to it as the keys were kept at Alina Antal’s place in Cabramatta.

(24) On 13 October 2016 the offender again spoke to Antonio Hermiz and he again discusses with Hermiz that ‘the big one’ has to ‘go, go’. The continued hiding of the Audi hindered the police investigation.

(25) On 14 November 2016 the offender tells Antonio Hermiz what to say if police ask him about the Audi:

OM: If they ask you about it, don’t say you don’t know anything about it. Say yeah you drive it and say you I don’t know what the fuck, they want it.

AH: Yeah, alright no worries.

OM: Because they know you driven it; they have photos.

(26) On 16 November 2016, police made further inquiries about the Audi. They spoke to Alina Antal, a business associate of the offender, who told Police that:

a. She didn’t own the Audi, but that it had been on her property at 65 Lime St Cabramatta.

b. She had travelled in the vehicle when the offender had been driving it.

(27) On 7 December 2016 the offender again talks to Antonio Hermiz about the Audi. During the discussion the offender tells Hermiz that his brother was interviewed by police about his “big one”, being a reference to the Audi. The offender also says that he has an address for Hermiz to take the Audi to be swapped for some other vehicles.

(28) During this period the police continued to look for the Audi and were unable to find it.

(29) To date, the Audi has not been recovered by police. By actively directing associates to hide and get ride of the Audi the offender intended to hinder the investigation into the murder of Mr Buxton by ensuring that police did not obtain the Audi for examination.”

The Seriousness of the Offence

8. What does “hindering” mean? That question arose in Taufahema v R [2006] NSWCCA 152; (2006) 162 A Crim R 152. At trial, the appellant had been found guilty of murder. The Crown case was that he was guilty of the murder of SC Glen McEnallay by reason of his participation in a criminal enterprise to evade lawful apprehension by police, foreseeing that, in the course of that unlawful enterprise, the death or grievous bodily harm of the officer was possible. The judgment of the Court was given by Adams J, with whom Beazley JA (as her Excellency then was) and Howie J agreed. On appeal the Crown argued that the foundational crime of the joint criminal enterprise was s 546C of the Crimes Act 1900, which makes it an offence for any person to resist or hinder a member of the police force in the execution of his or her duty. His Honour said this:

“25 It was submitted that the word “hinder” is a word of ordinary parlance without any special meaning and that its usual definition (for example, that in the Shorter Oxford English Dictionary) is “to keep back, delay, impede, obstruct, prevent”. By not stopping the Commodore when Senior Constable McEnallay signalled that he should do so by operating the siren and the flashing lights on his vehicle, it is submitted that the appellant sought to delay or impede an impending lawful arrest. (I interpolate that, the officer undoubtedly wished the vehicle to heed the signals and stop but whether he was then intending to arrest anybody is uncertain.) The Crown also contends, relying on the fact that all four offenders fled the scene, that they had agreed that they would run away from the officer and that the agreement to run away was an agreement to “hinder” in the sense, again, of delaying or impeding and hopefully preventing their arrest. The researches of counsel did not produce any authority stating or approving such a wide use of “hinder”. If correct, it would mean, for example, that an offender in Sydney who heard that a warrant for his arrest had been issued in Perth and left his place of residence to hide from the police would be guilty of an offence where the effective changing of his address was, in fact, to delay, impede or prevent it. (I mention that – as appears from the trial judge’s directions extracted below – the Crown case at trial was not merely that the occupants of the car agreed to evade the officer, but that they had agreed to avoid arrest. There was no evidence, as stated above, that the officer was intending to arrest anyone when he was killed.)

26 In Leonard v Morris (1975) 10 SASR 528, Bray CJ (at 531) described the actus reus of the offence established by section 546C as “any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance”. This passage was adopted as correct by Sully J in Worsley v Aitken & Anor (1990) 9 Petty Sessions Review 4074. Worsley, it was alleged, took hold of the police officer’s jacket when the officer was endeavouring to assist another officer then in the course of arresting another person during a melee, saying to the officer “leave him alone, he’s done nothing”. The officer desisted from his attempt to assist with the arrest of the suspect and pushed Worsley away before returning to his task. Of course, Sully J was there considering an actual physical interference by the accused person with the arrest which the officer was about to effect. That is not the use of hinder upon which the Crown relies in this case.

27 The description of the actus reus of this offence given by Bray CJ in Leonard v Morris has been regarded, in my experience, as applicable in this State for decades and I would not be prepared to extend the offence any further by a wider use of the word “hinder” than that which it has hitherto been understood to have. I am of the view that the actus reus of the offence created by s 546C is indeed that ascribed to it by Bray CJ in Leonard v Morris. It follows that the foundational offence upon which the Crown relied did not exist….”

It follows that making something impossible to perform is greater than “hindering”.

9. The Crown has submitted that the following factors are relevant in considering the present offence:

1. the seriousness of the principal offence whose investigation has been hindered,

2. the extent to which it did hinder the investigation,

3. the impact on the victims of the ­­­offence, the investigation of which had been hindered,

4. the period of the offending,

5. the motive for the offending,

6. any benefit obtained by the offender,

7. the level of planning or premeditation.

10. As to (i), leaving aside the rare crimes of treason and piracy, murder is the crime at the head of the criminal calendar.

11. As to (ii) the murder in question has not been “solved” despite the effluxion of almost 8.5 years. The current officer in charge (“OIC”) was not called to give evidence, nor was any statement from him tendered, and this observation also pertains to any former OIC. All that I can glean about the relevance of the evidence which the police were seeking is contained in the agreed facts. If the police had any further “leads”, I do not know. If the offender had made his vehicle available to the police it may have given them no information relevant to the murder: see Agreed Facts 16 and 17 quoted in [5] above.

12. As to (iii), the mother of the deceased, Mrs Lee Ann Buxton, read a Victim Impact Statement (“VIS”). The written VIS is MFI 3. Her grief and loss were palpable. However, the offender’s link to the principal crime is distant. In almost every case of murder and manslaughter, there are victims: the family and close friends of the deceased. The Court can, and does, take into account the impact of the hindering of the murder investigation on those who were close to the victim, who look to the justice system to give some closure to their loss, but which has been impeded by the offender’s conduct.

13. As to (iv), the period of the hindering was between 4 October 2016 and 7 December 2016, a period of just over 2 months, but the effect of the hindering can be seen as indefinite in that it is now highly unlikely that the vehicle will be found, if it still exists and if it be found, it appears to be unlikely that any relevant evidence would now be available, assuming, of course, that it were the ”getaway” vehicle.

14. As to (v), the Crown conceded that the motive of the offender was and is unclear. Clearly, he wanted to ensure that the police did not seize his vehicle, which was controlled by him and used by some persons associated with him. However, he was the leader of a criminal group involved in supplying cannabis and he may have used the vehicle in that enterprise and have had reasons for keeping the vehicle out of the hands of the police because it was so used. It could, for example, have had a secret compartment for moving drugs between places.

15. As to (vi), if he did obtain any benefit, one would need to know what the offender’s motive was. One can presume that, as the police have not found the vehicle, some benefit was obtained, but the exact nature of it is unknown.

16. As to (vii), the Crown has submitted that the level of planning and premeditation were such that this is a serious example of an offence of this type. Much was made of the fact that the offender used his associates and his brother to carry out what was needed to keep the police away from the vehicle. However, it must be remembered that at all material times, the offender was in custody and was unable to do himself what needed to be done to keep the vehicle from the police. This was not premeditated planning, but rather reactive decision-making causing his associates and family to do what he could not do himself.

17. The Crown submitted that the objective seriousness of this offence is “above the mid-range.” Ms Francis, for the offender, said this is in her submissions, MFI 2:

“14. The criminality in the present matter is at the lower end of the range in circumstances where there is no evidence that the relevant vehicle was in fact involved in the offence distinguishing this case from for example the Zahed matter which the Crown have referred to in submissions.

15. The offender is not to be punished for any intent to obstruct, prevent, pervert or defeat the course of justice or the administration of the law. This gives rise to more serious offending contrary to s 319 Crimes Act.

16. It would be impermissible to sentence on the basis that, but for the offender’s actions, any person would have been prosecuted in relation to the unlawful killing of the deceased. [footnote removed]”

18. Ms Francis’ reference to “Zahed” is a reference to R v Tarek Zahed [2024] NSWSC 231. This was one of the two cases referred to by Madame Crown, the other being R v Derbas [2003] NSWCCA 44. In the interim between those cases, one finds Sampson v R [2014] NSWCCA 19 where Adams J (with whom Hoeben CJ at CL and R.A. Hulme J agreed) collected decisions under both s 315(1)(a) and s 315(1)(c) at [20] showing a large range of sentences for each of those offences.

19. A further consideration is that this is a “stale” prosecution. The offender now stands for sentence in December 2024 for offending occurring between 4 October 2016 and 7 December 2016, over eight years ago. I have formed the view that this offence is below the mid-range of seriousness.

Personal Circumstances

20. The offender is now 34 years old. At the time of the relevant offending he was either 25 or 26 years old. Ms Francis submitted that “[h]e was a young adult who had, it seems, not fully [mentally] matured.” In R v Merza [2020] NSWDC 189, Colefax SC DCJ summed up the offender’s background thus:

“51.   You were born in Iraq.

52.   You and your family apparently fled that country when you were 4 years old and you came to Australia.

53.   You went to school in Sydney where you completed Year 10.

54.   After leaving school, you have had some legitimate employment, but you have also engaged in very significant and prolonged criminal activity.

55.   You have a significant issue with substance abuse. You commenced abusing alcohol and cannabis when you were 15 years old. You commenced abusing cocaine and ice when you were 17 years old.

56.   You have not had, or really sought, any effective treatment in relation to those long-term drug issues.”

21. Those remarks were made on 15 May 2020. His Honour was sentencing the offender for wounding a person with intent to cause grievous bodily harm and for doing an act intending to cause a person to be called as a witness in a judicial proceeding to give false evidence.

22. Earlier, on 15 February 2019, the offender had been sentenced by O’Brien DCJ. The offender appealed against both his conviction by Colefax SC DCJ and the sentence imposed upon him. He included in that appeal, an appeal against the sentence imposed by O’Brien DCJ. The appeals are reported: Merza v R [2021] NSWCCA 269. There is a joint judgment of Basten JA and Price J, and a judgment of Hamill J, who, in essence agreed with the joint judgment but would have adjusted the sentences on account of totality. The plurality said this about sentence passed by O’Brien DCJ:

“247 On 15 February 2019 the applicant was sentenced in the District Court (O’Brien DCJ) as a leading member of a cannabis supply syndicate. He had continued to run the syndicate using mobile phones smuggled into the prison, following his arrest in September 2016. He had established residential locations as safe houses, which also continued to operate whilst he was in custody and, indeed, after being raided by police. At the time of his arrest on 20 September 2016 he was found in possession of 2.7kg of cannabis, with which he was originally charged, although the charge was withdrawn. It was agreed that between 20 September 2016 and 15 February 2017 the applicant was involved in the supply of more than 7kg of cannabis leaf. There was a further charge of dealing with the proceeds of crime. The applicant entered pleas of guilty to each count and was given a 25% utilitarian discount as a result.

….

249.   Judge O’Brien sentenced the applicant as one of seven co-offenders. The other alleged error was that in a passage in his written reasons (at p 14), under the heading “The roles played and objective seriousness”, the judge stated:

“The objective seriousness of his offending is also aggravated by the fact that Mr Merza has a significant criminal record including three prior convictions for supplying or taking part in the supply of prohibited drugs, in respect of which sentences of full-time imprisonment were imposed.”

250.   The Director conceded that this statement involved an error in that the existence of a criminal record cannot affect the objective seriousness of the offending for which the person is to be sentenced. Given the conceded error, the Director did not oppose a grant of leave to appeal. It followed, in accordance with the principles stated in Kentwell v The Queen, ^[98] that the Court should grant leave to appeal and re-exercise the sentencing discretion. Although the sentence is no longer being served, if it should have been shorter, that may affect the commencement date of the later sentence.

251.   Whilst the Court should accept there was an error in the present case, the error rests on a linguistic convention which should be acknowledged.

….

252. …As the head of the syndicate, according to the agreed facts, the judge expressed the view that Mr Merza was “the most morally culpable of all of the offenders.”

….

267.   The sentencing judge indicated the sentences which would have been imposed for the individual offences as follows:

Count 1: 5 years imprisonment less 25% the plea of guilty, indicating a sentence of 3 years and 9 months;

Count 2: a sentence of 4 years imprisonment less 25% for the plea of guilty, indicating a sentence of 3 years imprisonment;

Count 3: a sentence of 2 years imprisonment less 25% for the plea, indicating a sentence of 18 months imprisonment.

The aggregate sentence was a term of 4 years and 6 months with a non-parole period of 3 years.

268.   In our view, the second offence, directing the activities of a criminal group, which carried a maximum penalty of 15 years’ imprisonment would have warranted a higher starting point. The manner in which the activities were conducted, including from the gaol, suggested that the culpability of the applicant was significantly above the mid-point. Because of his youth, a crushing sentence would not have been imposed, but a starting point of 6 years imprisonment would have been appropriate, giving a discounted putative sentence of 4 years 6 months. If the supply of cannabis were treated as an isolated offence, we would have proposed a sentence of 3 years 6 months, discounted to 2 years 7 months for the guilty plea. We agree with the putative sentence for the dealing with the proceeds of crime, namely 2 years, discounted to 18 months.

269.   If individual sentences had been imposed, there would have been a high level of concurrency so as to avoid double punishment for related conduct. However, the aggregate sentence would not have been less than 4 years and 6 months. Given that sentence, the 3 year non-parole period was the appropriate sentence. Accordingly, in our view no lesser sentence was warranted and the appeal should be dismissed.”

23. For the crimes which a jury convicted the offender, Colefax SC DCJ imposed an aggregate sentence of 12 years with a non-parole period of 9 years commencing on 26 September 2019, expiring on 25 September 2028. The head sentence expires on 25 September 2031. Custodial records reveal this:

15 December 2008	Age 18	Admission
25 March 2010	Age 19	Parole
28 January 2012	Age 21	Admission
23 December 2015	Age 25	Parole
20 September 2016	Age 25	Admission

The offender remains in custody. He has been in Wellington CC since 5 July 2024.

24. In recent times the offender has obtained some important qualifications:

16 February 2023

Pesticide Applicator qualification

5 April 2023

Completed Induction Training in Construction Industry

13 April 2023

Operate Elevating Work Platform

Work Safely at Heights

4 April 2024

Successfully completed Certificate II in Construction – Construction Pathways

He has been regularly completing Bible studies since 2019. His rate of infringing against gaol discipline has been falling in recent years.

Rehabilitation

25. The Crown has submitted that, on its view of the available evidence the prospects of rehabilitation ought to be assessed as “extremely poor or negligible”. The defence has submitted that the offender’s progress to rehabilitation “has been hampered by his problems in custody”, without any explanation of why that may be so. There is some material which, in my view, points in a positive direction. The offender has now been in gaol for more than eight continuous years. His drug addiction ought be in remission after that period of time. The matters which I canvassed in [24] above I consider to be positive. His desire to be free ought encourage him to cooperate with Corrections to ensure that he will be released on parole when it is first available to him. The alternative, of course, is institutionalisation. Ms Francis made this submission:

“17. The offender is a real risk of institutionalisation which is a basis for a finding of special circumstances: Jackson v R [2010] NSWCCA 162 (23 August 2010) citing with approval, R v Lemene [2001] NSWCCA 5; 118 A Crim R 131 at [66] – [67]; R v Hooper [2004] NSWCCA 10 at [62] – [63]; R v Dorsett [2002] NSWCCA 326 at [10] – [11]; R v Gordon [2004] NSWCCA 45 at [63]; R v Taufua [2001] NSWCCA 411 at [30] and [36]; Watts v R [2007] NSWCCA 153 at [6]; R v Nykolyn [1999] NSWCCA 39.”

Part of the offender’s “problems in custody” may have been brought about by the serious lockdowns and quarantine regime introduced into the custodial area during the COVID 19 pandemic between 2020 and 2023. Certainly those conditions made imprisonment much more onerous for all prisoners and, of course, were not in consideration at the times when earlier sentences were passed on the offender. I am prepared to accept that the prospects of rehabilitation are “fair”.

Sentence

26. Bearing in mind the maximum penalty of 7 years imprisonment and my findings as to the seriousness of the crime, I start this task with an opening term of 3 years. The Crown conceded in submissions that the offender is entitled to a 25% discount for his plea of guilty pursuant to s 25D(3)(a) of the Crimes (Sentencing Procedure) Act 1999. That produces a head sentence of 2 years and 3 months. Applying the statutory nexus between the head sentence and the non-parole period, the non-parole period is 1 year and 8 months, rounded down in the offender’s favour. A finding of special circumstances ought to be made as sought by the offender because of the risk of institutionalisation, but also because of the onerous conditions of imprisonment during COVID 19. I fix a non-parole period of 1 year.

Totality

27. In Mill v The Queen (1988) 166 CLR 59, 63-5, the Court (Wilson, Deane, Dawson, Toohey and Gaudron JJ) said this (footnotes omitted):

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

The totality principle has been recognized in Australia. In Reg. v. Knight, the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ.) said, in a joint judgment:

“it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.C.J. in Reg. v. Faulkner, ‘at the end of the day, as one always must, one looks at the totality and asks whether it was too much’.”

See also Reg. v. Smith; Ryan v. The Queen.

The application of the principle becomes more complicated where the offender commits a number of offences within a short space of time in more than one State. Upon the offender being apprehended and sentenced to a term of imprisonment in one State, the other State cannot proceed to deal with him in respect of an offence committed in that State until he is released from custody in the first State. That may involve a deferment of the processes of the criminal law in the second State for a period of years. That is what happened in the present case.

The problem was considered in 1979 by the Court of Criminal Appeal of New South Wales (Street C.J., Moffitt P. and Nagle C.J. at C.L.) in Todd (a decision not reported until 1982). In that case, the appellant was sentenced in Queensland in December 1974 to imprisonment for eight years, with a non-parole period of three years, for offences of armed robbery committed in January 1974. At the time he was sentenced he had already been in custody for some ten or eleven months. In May 1979 the appellant was sentenced in the District Court in New South Wales to imprisonment for ten years for armed robbery and concurrent sentences in respect of other charges. These offences were also committed in January 1974. The sentences were expressed to commence on 30 January 1979 and a non-parole period was specified, expiring on 18 May 1983. Street C.J., with whose reasons the other members of the Court agreed, said:

“it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences …

… where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.”

The Chief Justice proceeded to make it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second judge, were relevant matters necessary to be taken into account by him in determining the head sentence: see also the additional comments of Moffitt P. In Todd there was no challenge to the head sentence.

Todd was followed by the Full Court of the Supreme Court of South Australia in Reg. v. Suckling. Likewise, as was done by the trial judge in the present case, Todd has been cited with approval in Queensland. In Reg. v. Stringfellow Andrews S.P.J., with whom Macrossan and Ryan JJ. agreed, said that: “it was proper to take into account the term of imprisonment imposed in Western Australia and the period actually served and to regard the cumulative effect of the head sentences as well, ultimately, as the period of imprisonment to be served: see, e.g., Reg. v. Todd … .”

In Jenkyns, Connolly J., with whose judgment Williams and Ambrose JJ. agreed, referred with approval to Todd and proceeded to make a statement the correctness of which is critical to the outcome of the present application. His Honour said:

“It seems to me, however, that a good working approach to this problem is to consider what this string of offences ranging from 13 September 1979 to January 1980 would have attracted by way of a totally effective sentence had he been dealt with in Queensland in 1980 and then endeavour to mould a decision, the head sentence of which reflects the seriousness of the offences to which he has pleaded guilty, and the recommendation for parole would reflect a desire to ensure that he does not serve more than a period which would accord with the principles laid down in Todd and which would have regard in particular to his subsequent rehabilitation and to the responsibilities which he has taken on since this serious criminal escapade in 1979-1980.”

It would seem that in Jenkyns, as in Todd, the appellant did not attack the head sentence but sought only a reduction in the non-parole period. Williams J. added the following comment:

“In my view the sentencing judge approached the problem before him by imposing a head sentence which reflected the tariff applicable to offences of the type in question, but then, in accordance with the reasoning illustrated in Reg. v. Todd….””

28. In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ said this (footnotes omitted):

“45 To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

46 Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.

47 Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.”

29. Ms Francis said this in her written submissions:

(24) The first question that must be asked, following Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, is what would be the appropriate head sentence if the Applicant had been sentenced for all of the offences for which he has been incarcerated since 2017.

(25) That is a consideration of some significance where totality operates to have a downward impact upon the effective sentence. There is a need for flexibility of approach when sentencing for a stale crime.”

The same subject was discussed by Hamill J in Merza v R [2021] NSWCCA 269 at [285] to [300], where further relevant authorities were cited and discussed by His Honour, in particular what was said by Beech-Jones J (as he then was) and Adams J in Lonsdale v R [2020] NSWCCA 267 at [65].

30. In Merza v R Hamill J pointed out at [286] that the combined effect of the sentences passed by O’Brien DCJ and Colefax SC DCJ was a total accumulated sentence of 14 years and 7.5 months, indicating that the effective non-parole period was around 80% of the total accumulated sentence. That is contrary to the statutory nexus between the head sentences and the non-parole period of 75%.

31. Leaving aside half months, and calculating in months, the position described by Hamill J is head sentences amounting to 175 months and non-parole periods amounting to 139 months. The ratio of those two sums is that the non-parole periods are more than 79% of the head sentences. If I add to those sums the sentence I propose, the total head sentences amount to 202 months and the total non-parole periods amount to 151 months, the resulting ratio is 74.75% which is probably the 75% ratio mandated by the Act, bearing in mind I have ignored the half-months.

32. The question then becomes: how to implement this? The non-parole period fixed by Colefax SC DCJ expires on 25 September 2028. That period of permissible parole expires on 25 September 2031. If I add a one-year non-parole period to Colefax SC DCJ’s non-parole period, it will lessen the parole period by one year, but the addition of my parole period does not increase the parole period of 2 years. That raises the issue of whether a 2-year period on parole is adequate when a prisoner will have spent 12 years and 7 months in custody. In my view it would not be adequate. I can not undo the past. If I commence the non-parole period for the present offence 6 months prior to 25 September 2028, that means the offender will have, if allowed parole, 12 years and one month in custody and a parole period of 2 years and 6 months, which appears to me more balanced and will encourage the offender to work hard to be admitted to parole.

Orders

33. Olevar Merza, you are convicted of the crime that between 19 May 2016 and 15 February 2017, at Sydney in this State you did hinder the investigation of a serious indictable offence committed by another person, namely murder. I sentence you to imprisonment. I set a non-parole period of one year commencing on 25 March 2028 and expiring on 24 March 2029. I impose an additional term of one year and three months commencing on the expiration of the non-parole period and expiring on 24 June 2030. The total sentence is therefore 2 years and 3 months comprising the non-parole period and the additional term. I have found special circumstances. You will be eligible for consideration for release on parole at the expiration of the non-parole period.

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Decision last updated: 13 December 2024