R v Nicholas; R v Palmer
[2019] ACTCA 36
•5 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Nicholas; R v Palmer |
Citation: | [2019] ACTCA 36 |
Hearing Date(s): | 4 and 5 November 2019 |
DecisionDate: | 5 December 2019 |
Before: | Murrell CJ, Mossop and Rangiah JJ |
Decision: | Appeal allowed. Respondents resentenced. See [133]–[137]. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against sentence – Crown appeal – Reduction of sentence for guilty plea – Late guilty plea – Schedule of offences taken into account – Two co-offenders sentenced to the same head sentence – Co-offenders with different subjective circumstances – Whether error in applying sentence discount – Whether manifest inadequacy of sentence and nonparole period – Parity – Residual discretion – Resentence |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 57 Criminal Appeal Act 1912 (NSW) s 5D Supreme Court Act 1933 (ACT) s 37O |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Blundell v The Queen [2019] ACTCA 34 Zhao v The Queen [2018] ACTCA 38 |
Texts Cited: | D A Thomas, Principles of Sentencing (Heinemann Educational Books, 2nd ed, 1979) |
Parties: | The Queen (Appellant) Daniel James Nicholas (Respondent) Paul Arthur Palmer (Respondent) |
Representation: | Counsel K Lee (Appellant) A Doig (Respondent Nicholas) J Cooper (Respondent Palmer) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Darryl Perkins Solicitors (Respondent Nicholas) Aboriginal Legal Service NSW/ACT (Respondent Palmer) | |
File Number(s): | ACTCA 9 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 7 February 2019 Case Title: R v Nicholas; R v Palmer Citation: [2019] ACTSC 16 |
THE COURT
The appeal
The Crown appealed against sentences imposed on the respondents by Elkaim J (the sentencing judge), asserting that the sentencing judge had erred by allowing a 20 per cent discount for the respondents’ pleas of guilty and that the sentences were manifestly inadequate.
On 7 February 2019, each respondent was sentenced for seven offences of aggravated burglary (contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code)) and one offence of aggravated robbery (contrary to s 310 of the Criminal Code): R v Nicholas; R v Palmer [2019] ACTSC 16 (R v Nicholas; R v Palmer). The aggravated burglary offences occurred on four days in the period of 16 to 25 July 2017. The aggravated robbery offence occurred on 9 August 2017.
The maximum penalty for the offence of aggravated burglary is 20 years’ imprisonment and/or a fine of $300,000. The maximum penalty for the offence of aggravated robbery is 25 years’ imprisonment and/or a fine of $375,000.
The respondents were arrested on 9 August 2017. Each respondent was sentenced to a total term of seven years’ imprisonment (from 14 February 2018 to 13 February 2025), with a nonparole period of four years and three months’, expiring 13 May 2022.
After allowing a 20 per cent discount for each guilty plea, in relation to each respondent the sentencing judge imposed the following sentences:
(a)Count 1: Aggravated burglary on 16 July 2017—three years’ imprisonment, from 14 February 2018 to 13 February 2021.
(b)Count 2: Aggravated burglary on 16 July 2017—three years’ imprisonment, from 14 February 2018 to 13 February 2021.
(c)Count 4: Aggravated burglary on 16 July 2017—three years’ imprisonment, from 14 February 2018 to 13 February 2021.
(d)Count 6: Aggravated burglary on 21 July 2017—three years’ imprisonment, from 14 February 2019 to 13 February 2022.
(e)Count 8: Aggravated burglary on 21 July 2017—three years’ imprisonment, from 14 February 2019 to 13 February 2022.
(f)Count 10: Aggravated burglary on 23 July 2017—three years and six months’ imprisonment, from 14 February 2019 to 13 August 2022.
(g)Count 12: Aggravated burglary on 25 July 2017—three years and six months’ imprisonment, from 14 February 2020 to 13 August 2023.
(h)Count 18: Aggravated robbery on 9 August 2017—five years’ imprisonment, from 14 February 2020 to 13 February 2025.
When sentencing for the offence of aggravated robbery, pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) the sentencing judge took into account six counts of theft, contrary to s 308 of the Criminal Code (each theft was related to an aggravated burglary matter), and two counts of property damage (involving entirely separate attempts to access automated teller machines (ATMs) using an oxyacetylene hose), contrary to s 403 of the Criminal Code. The offence of theft carries a maximum penalty of 10 years’ imprisonment and/or a fine of $160,000. The offence of property damage carries a maximum penalty of 10 years’ imprisonment and/or a fine of $160,000.
Mr Nicholas was also convicted of two counts of possessing a drug of dependence (methylamphetamine), contrary to s 169(1) of the Drugs of Dependence Act 1989 (ACT). For each drug possession offence, he was sentenced to six months’ imprisonment, from 14 February 2018 to 13 August 2018. The maximum penalty for such an offence is two years’ imprisonment.
In relation to both respondents, the original Counts 14 and 15 (aggravated burglary and theft) were discontinued by the Crown. In relation to Mr Palmer, the original Count 19 (possess unregistered prohibited firearm) was discontinued by the Crown.
The issues on the appeals were:
(a)Whether the sentencing judge had erred in allowing a 20 per cent discount for the pleas of guilty.
(b)Whether the sentences imposed on either or both respondents were manifestly inadequate.
The sentence proceedings
The offences
On 10 July 2017, Mr Palmer hired a vehicle for the period of 10 to 25 July 2017. The vehicle was used in connection with the six principal offences that were committed prior to 25 July 2017.
Offences 1, 2, and 4 were committed in the early hours of 16 July 2017, within about 45 minutes of each other. The respondents drove between the affected premises in the hired vehicle.
Offences 6, 8, and 10 were committed in the early hours of 21 July 2017, within a little over two hours.
The seven offences of aggravated burglary occurred at clubs, newsagencies and a supermarket. For all counts, the aggravating feature was that the respondents were in the company of each other. Additionally, in relation to Counts 10 and 12, the respondents were armed with a sawn-off double barrel shotgun.
Primarily, the respondents targeted ATMs and/or cash redemption machines (CRMs) located within or outside premises. The respondents used a distinctive prybar both to force entry and to open the machines. In relation to the two scheduled offences of property damage, they placed hoses connected to oxyacetylene gas bottles into ATMs in an attempt to blow them open, causing extensive damage. In addition, all principal offences involved significant property damage.
Count 10 occurred in the early morning of 23 July 2017, when the respondents attended the Turner Rugby Union Club. Mr Nicholas attempted unsuccessfully to open a window with the prybar. He smashed a security camera with the prybar. The camera fell to the ground but continued to record. The respondents forced a door open with the prybar, ran inside and attempted to open a CRM. They were unsuccessful. They removed the CRM and placed it in the boot of their car. At the time of the offence, the respondents were in possession of an angle grinder, prybar, and sawn-off double barrel shotgun.
In relation to Count 12, at midday on 24 July 2017 Mr Palmer attended the German Club in the company of another man. The pair played poker machines. Prior to leaving the Club, Mr Palmer walked up to the ‘Next ATM’ within the Club, rocked it from side to side and looked behind it. Later, Mr Palmer sent text messages to Mr Nicholas, asking him to bring bolt cutters. At 3:55 AM, the offenders arrived at the Club. Mr Nicholas was carrying the prybar. Mr Palmer smashed a CCTV camera with the shotgun. The respondents forced entry to the Club using the prybar. Once inside, they ran straight to the ATM, carrying the prybar, bolt cutters, and shotgun. However, the ATM had been emptied and left open by Club staff.
In relation to Count 18, at 4:10 AM on 9 August 2017, the respondents entered the Hotel Kurrajong. Two employees were present. Mr Palmer was armed with a sawn-off double barrel shot gun, which he pointed at a staff member’s face, demanding that he lie on the ground. Mr Palmer then pointed the shot gun at the face of the second employee and directed him to open a cash safe. The respondents removed approximately $3,500 in cash, as well as other property and a small safe.
The value of the property that was stolen during each offence ranged from nothing to $7,700 (Count 4).
Mobile telephone location information and a shoe print linked Mr Palmer to the aggravated robbery offence at Hotel Kurrajong. On 9 August 2017, police executed a search warrant on a room occupied by Mr Palmer and seized a sawn-off double barrel shot gun and clothing. On 11 August 2017, at the home of Mr Palmer’s former partner, police located other items, including two bottles of oxyacetylene gas with hoses connected to the bottles.
From Mr Nicholas’ premises, police seized clothing that was consistent with the clothing that had been worn by a burglar during some of the offences.
Objective seriousness of the offences
The sentencing judge characterised the offences as “within the medium to high end of the range of objective seriousness”, noting that the robbery was “particularly serious especially when considering the effects on the staff who were present”: R v Nicholas; R v Palmer at [10].
We agree with the sentencing judge’s general characterisation of the objective seriousness of the offences. Each offence was associated with significant planning, albeit that the planning was not sophisticated. In relation to Counts 10 and 12, the respondents exchanged text messages in the period leading up to the offence. The respondents were disguised by balaclavas and gloves. On the other hand, some of their clothing was reasonably distinctive, particularly the footwear worn by Mr Palmer. In relation to the vehicle that was used in connection with some offences, Mr Palmer had used his own licence as proof of identification when hiring the vehicle. In relation to Count 10, members of the public had observed persons driving the hired vehicle with a CRM protruding from the boot.
The respondents’ subjective circumstances
At the time of the offences, Mr Nicholas was 32 years old. He had a significant criminal history, but for less serious matters such as driving offences and possession of drugs. In May 2017, for an offence of possessing a drug of dependence, he had received a sentence of 12 months’ imprisonment, suspended after three months (in May 2017) on an 18-month good behaviour order. Subsequently, he had received several concurrent sentences, including a sentence of three months’ imprisonment for theft. At the time of the offences, he was serving the suspended part of the sentence that had been imposed for the drug offence.
Mr Nicholas lacked a supportive upbringing. The sentencing judge noted that he had generally worked in the building industry and had mixed with anti-social colleagues. He had been a drug user for at least 14 years and had committed crimes to finance his drug dependency. He had attempted suicide. He had expressed regret for his conduct, accepted responsibility and was motivated to better his position: R v Nicholas; R v Palmer at [13]. When interviewed for the pre-sentence report, Mr Nicholas had demonstrated insight into the impact of his drug use on his family relationships, employment, mental and physical health, and offending behaviour, and had accepted full responsibility for the offences. His desire to improve his lifestyle and behaviour was evident from a letter from the Chaplain of the AMC and certificates showing that he had completed courses while in custody.
At the time of the offences, Mr Palmer was 39 years old. On 23 October 2015, he had been sentenced to total period of two years and six months’ imprisonment (from 3 June 2015 to 2 December 2017), with a parole date in December 2016 for offences that included aggravated burglary (for which he had been sentenced to two years and three months’ imprisonment). There were many other convictions on his criminal record, but most were for significantly less serious matters, including offences of assault and property damage. At the time of the offences, he was on conditional liberty as he had been released to parole on 7 December 2016 and was subject to an intensive correction order for offences of dishonesty. The intensive correction order had been imposed by the Yass Local Court only weeks before the first aggravated burglary offence.
Mr Palmer was of Aboriginal background. He had a significant history of substance abuse. As a child, he had been exposed to domestic violence that was perpetrated by his stepfather. Consequently, he had become alienated from his mother. However, he enjoyed a good relationship with his father and stepmother. He had worked in the construction industry and as a courier, most recently in 2010. He had acknowledged his wrongdoing. He had been assessed as being at high risk of general reoffending: R v Nicholas; R v Palmer at [17]. Mr Palmer had been diagnosed with substance dependence, substance-induced psychosis, anti-social traits, and mental health issues. The sentencing judge found that a letter provided by Ms Tongs, Mr Palmer’s stepmother, was “particularly important”; not only did Ms Tongs have a close family relationship with Mr Palmer, but she also had “almost unparalleled experiences of the difficulties faced by Aboriginal men striving to live in the community”: at [18].
Approach of sentencing judge
During the sentence proceedings, counsel for Mr Nicholas submitted that his client’s pleas had been of higher utilitarian value than those of Mr Palmer as the case against Mr Nicholas had been weaker. The sentencing judge responded that he would “not sentence [Mr Nicholas] to more that he would have got if Mr Palmer hadn’t been here”.
In relation to both respondents, the sentencing judge considered that there was a significant need for general deterrence: at [14].
The sentencing judge accepted that the criminal record of Mr Nicholas was less significant than that of Mr Palmer. At [20], his Honour said:
I agree that [the arguments of counsel for Mr Nicholas regarding parity] have force but I also firmly believe that these two offenders who carried out these offences together and participated equally, should bear equal responsibility and receive equal punishment. It is of course imperative that Mr Nicholas does not receive any greater punishment than might otherwise have been the case. I accept that my approach does to some degree benefit Mr Palmer.
Consistent with his Honour’s view that the respondents should be punished equally, the sentencing judge decided that, in both cases, the sentences should commence on 14 February 2018, but acknowledged that the start date was of particular benefit to Mr Nicholas, as it meant that the sentences that he received for the offences on the indictment would be served entirely concurrently with his new sentences for drug possession: at [21].
In relation to the discount to be allowed for the pleas of guilty, at [23] the sentencing judge remarked:
Both offenders pleaded guilty. It is arguable that they might receive different discounts for the utilitarian benefits of their respective pleas. To work out a distinction would in my view be an overly obscure exercise. I think 20% should be applied to both offenders.
Did the sentencing judge err in allowing a 20 per cent discount for the guilty pleas?
History of proceedings
Both respondents were arrested on 9 August 2017. Both pleaded not guilty in the Magistrates Court. On 11 December 2017, both were committed for trial to the Supreme Court.
In March 2018, relatively soon after the matters were committed to the Supreme Court, the Crown offered to proceed on eight of the original 18 charges on the basis that eight further charges (six of theft, two of property damage) would be taken into account on sentence and Counts 14, 15, and 19 would be discontinued. The offer was not accepted.
On 4 June 2018, the matters were fixed for trial on 24 September 2018.
On 6 August 2018, the Court heard an application by the Crown to call coincidence evidence. The respondents neither consented to nor opposed the application. On 10 September 2018, the Court ruled that the evidence was admissible, thereby strengthening the Crown case.
On 19 September 2018 (the week before the trial was scheduled to commence), the respondents pleaded guilty on the basis that had been proposed by the Crown in March 2018.
Submissions on appeal
On the appeal, the Crown submitted that, having regard to the terms of s 35(2) of the Sentencing Act and common law principles, the sentencing judge should not have allowed a discount of 20 per cent for the guilty pleas. The Crown submitted that, although the reduction of sentence for a plea of guilty was a discretionary matter, in this case, the discount was unreasonable.
The respondent submitted that, while generous, the discount was within the available discretionary range.
Sentencing Act
The nature and extent of any sentence reduction for a plea of guilty is governed by s 35 of the Sentencing Act and the common law.
Section 33(1)(j) of the Sentencing Act provides that in sentencing an offender, the sentencing court must consider any plea of guilty. Further, pursuant to s 33(1)(za) of the Sentencing Act, a sentencing court must consider “current sentencing practice”.
Section 35 of the Sentencing Act provides:
35Reduction of sentence—guilty plea
(1) This section applies if—
(a) an offender pleads guilty to an offence; and
(b)based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
(2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a) the fact that the offender pleaded guilty;
(b) when the offender pleaded guilty, or indicated an intention to plead guilty;
(c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d) the seriousness of the offence;
(e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
(3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
(5) For subsection (2)(b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
(6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
…
We were not asked to consider s 35(4) of the Sentencing Act; neither during the sentencing proceedings nor on appeal was it submitted that the Crown case against either respondent was “overwhelmingly strong”. The Crown case—at least against Mr Palmer—was always reasonably strong. However, the parties accepted that the substantial utilitarian value of a guilty plea may be recognised even in the face of a strong prosecution case: Miller v The Queen [2018] ACTCA 21 at [73]–[74], Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries) at [44].
The fact that, in determining any reduction of a sentence of imprisonment to be allowed for a plea of guilty, s 35(2) of the Sentencing Act requires a sentencing court to consider four matters (in addition to the fact of the guilty plea) does not mean that each matter is to be accorded equal weight, either generally or in a particular case. In all cases, the sentencing court must be careful that it does not “double count” the s 35(2) considerations in s 35(2)(d), the seriousness of the offence, and s 35(2)(e), the effect of an offence on the victim; regardless of s 35(2)(e), these matters must be taken into account under ss 33(1)(a) and (f) of the Sentencing Act and pursuant to common law.
Further, by its terms, s 35 does not confine a sentencing court to a consideration of the prescribed matters.
It is trite to observe that, in determining any reduction of sentence for a plea of guilty, the primary consideration is the utilitarian value of the plea and that, in most cases, the utilitarian value of a plea is strongly dictated by the timing of the plea: Cranfield v The Queen [2018] ACTCA 3 (Cranfield) at [37]–[38].
In Cranfield at [37], the Court approved the following principles stated by Murrell CJ in Monfries at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. … A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
In Cranfield at [38], the Court added:
The context and terms of s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35(2) or other circumstances, including those identified by Howie J in Borkowski [R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (Borkowski)].
Some of the considerations identified by Howie J in Borkowski at [32] were:
1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount.
2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy.
3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse; nor is it affected by post-offending conduct.
4. The utilitarian discount does not take into account the strength of the prosecution case.
…
7. There may be offences that are so serious that no discount should be given …
8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced.
…
10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value.
…
(citations omitted)
In Williams v The Queen [2018] ACTCA 4 at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower.
In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent.
Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent—or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.
Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said:
It is also vital that persons coming to a criminal case conference do so with confidence that pleas of guilty will attract more than a minimum discount. This confidence should also extend to the community at large, knowing that persons will be treated consistently, in turn enhancing the proper administration of justice.
The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.
In Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 (Bathurst CJ, Beazley P and Schmidt J agreeing), the NSW Court of Criminal Appeal held that a sentencing judge’s failure to apply a 25 per cent discount where a guilty plea had been entered at the earliest opportunity was a denial of procedural fairness that amounted to a miscarriage of justice: at [65]. The Court held that the sentencing judge had erroneously connected the plea discount to the objective seriousness of the offence as opposed to the utilitarian value of the plea: at [64]. At the sentence hearing, the Crown had not disputed that a 25 per cent discount was appropriate but the sentencing judge had failed to indicate that he was contemplating a lower discount, giving rise to a denial of procedural fairness. A 25 per cent discount was given on the resentence.
In the present case, the pleas were entered very late; less than a week before the commencement of the trial. The pleas may have been motivated by the fact that the trial was imminent and the Crown case (which was always reasonably strong against Mr Palmer) had been strengthened by the decision to admit coincidence evidence.
The sentencing judge did not explain the reasons for allowing a discount of 20 per cent. The comments at [23] of the sentencing remarks ([31] above) imply that, in his Honour’s view, there was reasonably high utilitarian value to the pleas entered by Mr Nicholas because the case against him was weak and, because the respondents were co-offenders, his Honour decided to give Mr Palmer the benefit of the high discount allowed to Mr Nicholas.
That approach was wrong.
We accept that, in relation to each respondent, the pleas had significant utilitarian value despite coming so late. The trial would have occupied three or four weeks.
However, the strength (or weakness) of the Crown case was not a factor that should have significantly influenced the discount for the pleas. The case against Mr Nicholas was not weak at the time when the pleas were entered; it was reasonably strong once the coincidence evidence was admitted, and Mr Nicholas did not oppose the admission of the coincidence evidence. There was no reason to give Mr Nicholas an exceptionally high discount for his pleas of guilty. The case against Mr Palmer was always reasonably strong. At the time when the pleas were entered, the Crown case against Mr Nicholas was not significantly weaker than the Crown case against Mr Palmer and did not call for a different discount.
In this case, the sentencing judge gave no reason for substantially deviating from the usual range for plea discounts, nor did the circumstances provide a reason for the deviation.
When determining the discount for the pleas of guilty, the sentencing judge erred in two respects that affected the outcome, each of which reflect an error within the scope of House v The King (1936) 55 CLR 499, 505. First, his Honour considered the strength of the Crown case at a time that was earlier than the time when the pleas were entered. Second, his Honour failed to consider “current sentencing practice” as required by s 33(1)(za) of the Sentencing Act, which—in the circumstances of the case—would have resulted in a discount of about 10 per cent. At the very least, such a substantial deviation called for an explanation.
Were the sentences manifestly inadequate?
The Crown contended that the sentences were manifestly inadequate in that:
(a)The individual sentences for Counts 10, 12, and 18 failed to reflect the objective seriousness of each offence.
(b)The total sentence was manifestly inadequate because the individual sentences were inadequately accumulated.
(c)The nonparole period was manifestly inadequate.
(d)Mr Palmer’s sentences were manifestly inadequate as a result of the incorrect application of parity principles and the unjustifiably early commencement date for his sentences.
Insofar as the last contention raised the incorrect application of parity principles, the argument should have been prosecuted as a separate ground of appeal alleging specific error.
Allowing for a sentencing discount of 20 per cent, the starting points for the sentences were:
(a)Counts 1, 2, 4, 6, and 8—three years and nine months’ imprisonment (45 months’ imprisonment). The respondents each received three years’ imprisonment.
(b)Counts 10 and 12—approximately four years and five months’ imprisonment (53 months’ imprisonment). The respondents each received three years and six months’ imprisonment.
(c)Count 18—six years and three months’ imprisonment (75 months’ imprisonment). The respondents each received five years’ imprisonment.
The nonparole period expired on 13 May 2022 and represented approximately 63 per cent of the total custodial period applying to each respondent (9 August 2017 to 13 February 2025).
Principles applying to Crown appeals alleging manifest inadequacy of sentences
A claim that a sentencing judge has erred in the exercise of their discretion calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665, and in this Court see, for example, Henry v The Queen [2019] ACTCA 5. An appellate court must respect the wide discretion of the sentencing judge concerning an appropriate sentence.
The principles applicable to any appeal alleging that a sentence is manifestly wrong were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge.
·The relevant test is whether the sentence is unreasonable or plainly unjust. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice.
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles.
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence.
(citations omitted)
In the case of Crown appeals alleging manifest inadequacy of a sentence, the correct approach was recently summarised in R v Rappel [2019] ACTCA 11 at [10], where the Court stated:
As this Court said in R v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal” … Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: R v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke (1996) 2 VR 520 at 522:
(a) to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b) to enable the Court to establish and maintain adequate standards of punishment;
(c) to ensure uniformity in sentencing, so far as the subject matter permits.
Did the individual sentences for Counts 10, 12, and 18 fail to reflect the objective seriousness of the offences?
As to Counts 10 and 12, in relation to objective seriousness, the Crown observed that the burglaries had been attended by two aggravating features (the respondents were in company and there was an offensive weapon). Count 10 and 12 were not “typical” aggravated burglaries. In relation to Count 10, the respondents had forced their way into the premises while in possession of a shotgun, used an angle grinder to try to open a CRM, and then taken the entire machine and placed it in the boot of their vehicle. In relation to Count 12, the respondents had been in possession of a shotgun and had destroyed a CCTV camera, forced entry into the premises, and then removed a cash drawer.
The Crown’s observations are apposite. We accept that Counts 10 and 12 were objectively serious offences of their type and that, as observed in R v Miller [2019] ACTCA 25 at [37] (R v Miller), it is “a fundamental principle of sentencing” that a sentence should adequately reflect the objective seriousness of the offending conduct.
In relation to Count 18 (the offence of aggravated robbery), among other features establishing objective seriousness, the Crown relied upon the facts that there were two aggravating features—the respondents were in company and in possession of an offensive weapon (a shotgun), which was pointed at two staff members. Further, the sentencing judge was asked to take eight additional offences into account in relation to Count 18. Most of the additional offences were thefts associated with the aggravated burglaries, but two of these offences involved completely separate and serious offences of damaging property by attempting to “blow up” ATMs.
We accept that Count 18 concerned an offence of very significant objective seriousness. It was significantly more serious than the “typical” armed robbery that was the subject of the NSW guideline judgment in R v Henry (1999) 46 NSWLR 346 (Henry), which has been described as a persuasive authority in this jurisdiction: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] (Hall and Barker). In Henry, the NSW Court of Criminal Appeal proposed a sentence of four to five years’ imprisonment for a “typical” offender (at [165]), where there had been a late plea of guilty and a maximum penalty of 20 years’ imprisonment applied.
The Crown relied upon Hall and Barker in support of an argument that, in the present case, the sentence for Count 18 did not fit with the guideline sentencing range in Henry.
Rather than concerning itself with a guideline sentencing range, the decision in Hall and Barker approves the usefulness of the features identified in Henry as “typical” of armed robberies in determining the objective seriousness of a case, in that the features of a specific case may be compared with those of a “typical” case.
The Crown relied on the decision in Miles v The Queen [2016] ACTCA 54 (Miles), in which this Court considered whether sentences imposed for aggravated robbery and other serious offences of dishonesty were manifestly excessive. One aggravated robbery offence had been committed in company. Both offenders had been armed (one with a rifle, the other with a knife). A sum of $51,000 had been taken. In dismissing the appeal, the Court described the sentence of 12 years’ imprisonment as “undoubtedly stern”, although “not unprecedented”: at [69]. The Court considered several somewhat comparable cases in which the sentencing starting point had been between eight and 12 years’ imprisonment. In Miles, the appellant had an appalling criminal history and there were no strong subjective circumstances, although the sentencing judge identified “a real possibility” that the appellant wished to change his life and rehabilitate, despite his “extraordinarily serious and continuing criminality” and past failures to rehabilitate following “many earlier periods of imprisonment”: at [34].
Miles does not provide a particularly helpful comparison; in that case, the offender’s subjective circumstances did not invite leniency and this Court considered that, while available, the sentence was very high. The ACT Sentencing Database statistics indicate that the 12-year sentence confirmed in Miles is the equal highest sentence imposed for an offence of aggravated robbery in the ACT since May 2013: see R v Munro (Unreported, ACT Supreme Court, Nield AJ, SCC No 178 of 2011, 14 May 2013) in which a sentence of 12 years’ imprisonment was imposed.
Although, objectively, each of Counts 10, 12, and 18 involved a very serious offence of its type, for three main reasons we consider that the sentences that were imposed were within the available range.
First, the respondents advanced strong subjective circumstances. Mr Nicholas had a criminal record that—while not inconsiderable—related to less serious matters, he was remorseful, and he had committed to rehabilitation. Mr Palmer adduced evidence of severe disadvantage in his upbringing: childhood domestic violence, social exclusion, and lost Aboriginal identity. Consistent with the decision in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), evidence of childhood deprivation and social exclusion can mitigate sentence: Kentwell v R (No 2) [2015] NSWCCA 96 at [13], [92], and [94]. There was evidence that Mr Palmer wished to engage with psychological interventions through a culturally appropriate service that would assist him to rehabilitate: report of Ms Twala. We do not overlook the important consideration that, at the time of the offences, Mr Palmer was on conditional liberty, including for a serious offence of the type committed, and Mr Nicholas was also on conditional liberty.
Second, the sentences for all three counts appear to be reasonably consistent with the sentences imposed in other cases. For example, in R v Jacka [2017] ACTSC 225, the offender had pleaded guilty at the earliest opportunity to one count of aggravated burglary and five counts of aggravated robbery; all offences were committed in company. The aggravated burglary occurred at a club and involved an attempt to open a cash box. The aggravated robbery offences involved the offender or an accomplice wielding a shotgun at employees at premises around Canberra. For the aggravated burglary offence, the sentencing judge (Elkaim J) imposed a sentence of two years’ imprisonment (reduced from two years and eight months’ imprisonment for the plea). For each aggravated robbery offence, the offender was sentenced to three years’ imprisonment (reduced from four years’ imprisonment). The total sentence was seven years’ imprisonment. A four-year nonparole period was fixed.
In Rubino v The Queen [2015] ACTCA 22, the offender pleaded guilty in the Supreme Court before the allocation of a trial date to three offences of aggravated burglary and one offence of theft. Seven additional offences attaching to the principal offences were taken into account. The three aggravated burglary offences were committed in company and in the possession of a variety of weapons, including a sledgehammer, prybars, a demolition saw, and a hatchet. The offender and accomplices had entered premises after-hours with their faces covered and had targeted poker machines and cash-changing machines, removing large amounts of money and causing extensive damage. The offender’s subjective circumstances were strong. Murrell CJ imposed a sentence of four years and five months’ imprisonment for each aggravated burglary offence (reduced from five years’ imprisonment). The total sentence (including the sentence for theft) was seven years and 11 months’ imprisonment, with a nonparole period of four years and one month. The sentences were upheld on appeal.
Mr Rubino’s co-offender in two of the aggravated burglary offences and the theft offence was sentenced in R v Robertson (Unreported, ACT Supreme Court, Refshauge J, SCC No 53A of 2012, 25 October 2013). In addition to the offences committed with Mr Rubino, the offender had pleaded guilty to two further aggravated burglary offences and had asked the Court to take into account eight further sentences of theft, attempted theft, and property damage in sentencing. After the offender had completed a drug rehabilitation program, he was sentenced to three years’ imprisonment for each aggravated burglary offence and 12 months’ imprisonment for the theft. The total sentence was seven years’ imprisonment, suspended after two years upon the offender entering a good behaviour order.
Third, the sentence for Count 18 fell within the range suggested by the Crown materials. In relation to Count 18, the Crown—quite appropriately—referred the sentencing judge to the somewhat similar case of R v Thompson [2017] ACTSC 141 in which the offender had been sentenced to four years and six months’ imprisonment (reduced from six years’ imprisonment for his guilty plea) for the offence of aggravated robbery. There were two aggravating features: the offender was both in company and in possession of a firearm.
As to Count 18, the Crown further submitted that the sentence failed to adequately reflect the additional offences that the sentencing judge took into account when imposing the sentence.
When additional offences are taken into account on a sentence under s 57(3) of the Sentencing Act, the offender is not sentenced for the additional offences. Instead, the additional offences may indirectly affect the sentence by informing sentencing purposes such as rehabilitation: R v Campbell [2010] ACTCA 20 at [50]. There is nothing about this case that suggests that the sentencing judge failed to take the additional offences into account when considering relevant sentencing purposes, which in this case included personal deterrence, accountability and denunciation.
Were the sentences inadequately accumulated, resulting in an inadequate total sentence?
The Crown contention contains two propositions: that the individual sentences were not appropriately accumulated, and that the manner in which they were accumulated resulted (or contributed to) a total sentence that was manifestly inadequate.
There is merit in the former proposition, but not the latter.
The correct approach to questions of totality was summarised recently by Gleeson JA in R vToohey [2019] NSWCCA 182 where, at [56], her Honour said:
As to totality, it is well-established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.
(citation omitted)
Prima facie, it was inappropriate to impose entirely concurrent sentences for Counts 1, 2, and 4, for Counts 6, 8, and 10, and for Counts 12 and 18. Counts 1, 2, and 4 were committed on the same day, as were Counts 6, 8, and 10, and each offence was of the same type. However, each offence involved a separate and serious instance of offending conduct, separate premises and separate victims. Consequently, it was highly desirable that there be some degree of accumulation between Counts 1, 2, and 4, between Counts 6, 8, and 10, and between Counts 12 and 18: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159.
As the offences the subject of Counts 12 and 18 were committed on different days and were of a different type, it was even less appropriate to make the sentences for entirely concurrent with each other.
The sentencing judge’s approach to concurrency failed to clearly recognise the separate criminality involved in each of the eight offences.
However, the ultimate question is whether the manner in which the sentences were structured achieved an aggregate sentence that was “just and appropriate” having regard to the overall criminality that was involved: Mill v The Queen (1988) 166 CLR 59, 63, quoting D A Thomas, Principles of Sentencing (Heinemann Educational Books, 2nd ed, 1979), pp 56–57.
In this case, the sentences that were imposed on Counts 6 to 10 commenced on 13 February 2019, 12 months after the sentences imposed on Counts 1, 2, and 4. While there was no accumulation as between Counts 1, 2, and 4, there was substantial accumulation as between the two groups of sentences. Similarly, while there was no accumulation as between Counts 6, 8, and 10, there was substantial accumulation as between the sentences for that group of offences and the sentences imposed for Counts 12 and 18.
The fact that all offences occurred within a short period of time (just over three weeks) and were of a similar nature demanded very substantial concurrency.
In those circumstances, it is perhaps unsurprising that, at the sentence hearing, the Crown suggested to the sentencing judge that there were “three batches of offences and concurrency would be available in relation to those three”.
In R v TW [2011] ACTSC 25 at [83], Penfold J said:
Even more so than for most other claims of specific error, the claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.
This passage was cited with approval in Hall and Barker at [53].
We are satisfied that, while not optimal, the sentencing judge’s approach to concurrency and accumulation did not significantly affect the total sentence and did not contribute to a total sentence that was manifestly inadequate.
Parity
The Crown submitted that, having concluded that the objective seriousness of the criminal conduct of each respondent was the same, the sentencing judge had erred in reducing the sentence that he would otherwise have imposed on Mr Palmer for the purpose of ensuring that the respondents received identical sentences. The Crown contended that the resulting sentences failed to reflect the substantially different subjective circumstances of the respondents and the fact that, for each respondent, the relevant sentencing purposes differed or required a different emphasis.
The parity principle is concerned with like offenders being treated alike: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] (Green and Quinn). Where the subjective features of co-offenders are substantially different, the sentences imposed should reflect that difference: Lowe v The Queen (1984) 154 CLR 606 at 617 (Lowe). The principle acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account.
In this case, while for practical purposes the respondents’ offending conduct was objectively indistinguishable, there were significant differences in their subjective circumstances. Most importantly, Mr Nicholas’ criminal history was significantly less serious than that of Mr Palmer, and Mr Nicholas’ only prior offence of dishonesty was a minor theft matter. Further, while both respondents had committed the offences while on conditional liberty in the community, Mr Nicholas had been on conditional liberty in relation to a drug matter, whereas Mr Palmer had been on conditional liberty in relation to the very type of offence for which he was sentenced.
Otherwise, the respondents advanced different but moderately strong subjective circumstances. Mr Palmer had been assessed as at a higher risk of reoffending and had not demonstrated the remorse of Mr Nicholas, who was actively attempting to rehabilitate himself. However, Mr Palmer called evidence of severe childhood disadvantage. While Mr Nicholas was younger than Mr Palmer, both were mature men and the age difference could be seen as immaterial.
Ultimately, while we would take a different approach (see below), we are not persuaded that the sentencing judge’s approach to parity involved a wrong exercise of discretion. On first impression, Mr Nicholas’ subjective circumstances were stronger, but, in some respects, Mr Palmer’s subjective circumstances were also very strong. It is not apparent that the sentencing judge disregarded the differences in the respondents’ subjective features; in the exercise of his discretion, it was open to his Honour to place considerable weight on some of Mr Palmer’s subjective circumstances and to conclude that, having regard to both subjective and objective features, there was little to differentiate the respondents.
Commencement date of sentences
The Crown submitted that the sentencing judge should not have commenced the sentences of both respondents on 14 February 2018 and should have commenced Mr Palmer’s sentence at a later date.
At the time of the offences, Mr Palmer had been serving a sentence of two years and six months’ imprisonment from 3 June 2015 to 2 December 2017, with a nonparole period of 18 months. As parole was cancelled in August 2017, he served the earlier sentence until August 2018.
We do not accept the Crown’s contention. It was well open to the sentencing judge to make Mr Palmer’s sentences partly concurrent with the sentence for the earlier matter.
It is only when the sentencing judge’s approach to Mr Palmer’s commencement date is compared with his Honour’s approach to Mr Nicholas’ commencement date that any issue arises.
In May 2017, Mr Nicholas had received a 12-month sentence from 19 February 2017, which was suspended from 19 May 2017 upon entering an 18-month good behaviour order. In effect, the structuring of his sentences required him to “serve” six months of the nine-month portion of a sentence that had been suspended before the new sentences started. Given that the suspended sentence related to an offence of possessing a drug of dependence, Mr Nicholas may have perceived there to be an unfair disparity in approach. However, he substantially benefitted from the fact that the two new sentences that were imposed by the sentencing judge for possession of a drug of dependence were made entirely concurrent with the sentences for the aggravated burglary offences.
In relation to the exercise of the sentencing discretion for both respondents, it was open to the sentencing judge to commence the new sentences from the same date.
Was the nonparole period manifestly inadequate?
As this Court recently stated in Blundell, the principles applicable to determining whether a head sentence is manifestly excessive also apply when determining whether a nonparole period is manifestly excessive: at [27]. In addition, they apply when deciding whether a nonparole period is manifestly inadequate.
In Cole v The Queen [2019] ACTCA 3 (Cole) at [16], when discussing the determination of a nonparole period, the Court cited the following passage from Lowe at 610:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion…
In Cole at [100], the Court also reaffirmed the propositions stated in Taylor v The Queen [2013] ACTCA 49 at [19]:
The proper approach to fixing a non-period is well established and can be summarised as follows.
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
(citations omitted)
In this case, the sentencing judge acknowledged that Mr Nicholas had expressed regret for the offending, had accepted responsibility, and was attempting “to better his position”: R v Nicholas; R v Palmer at [13]. There was evidence that Mr Palmer had acknowledged his wrongdoing and was gaining insight into the challenges posed by his upbringing: at [17]–[18]. Despite Mr Palmer’s extensive criminal history, there was hope of rehabilitation.
In the context of the evidence that was relevant to the issue of rehabilitation, it was well open to the sentencing judge to impose the nonparole periods that were imposed. Further, nonparole periods of approximately 63 per cent of the total period of incarceration sit comfortably within the current sentencing practice of the Court, which generally results in the imposition of nonparole periods in the range of 50 to 70 per cent of the total period of incarceration.
Neither individually nor collectively do the matters raised by the Crown establish that the sentences imposed by the sentencing judge were manifestly inadequate.
Residual Discretion
In NSW, the provision relating to residual discretion on appeals is s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). It states that the appellate court “may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”. Plainly, on a successful Crown appeal, the appellate court has a “residual discretion” under s 5D to decline to disturb the decision. It is for the Crown to negate any reason advanced by the respondent as to why the discretion should not be exercised: Green and Quinn per French CJ, Crennan and Kiefel JJ at [1]–[2], CMB v Attorney General for the State of New South Wales [2015] HCA 9; 256 CLR 346 (CMB). The burden upon the Crown is to persuade the Court that it should decline to exercise its discretion not to resentence the respondents.
Pursuant to s 37O(1)(b) of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the Court has the power “to give any order it that it considers appropriate, or refuse to give an order applied for”. As pointed out in Toumo’ua at [9]–[12], unlike the NSW legislation, the ACT provision does not distinguish between prosecution and defence appeals. Nor does s 37O provide for a residual discretion with the degree of clarity that is found in s 5D of the Criminal Appeal Act.
Nevertheless, on many occasions this Court has proceeded on the basis that s 37O contains a residual discretion. In R v Summerfield [2018] ACTCA 20; 273 A Crim R 45 (Summerfield) at [118], Burns and Bromwich JJ stated:
… The Crown accepts that there are two hurdles it must overcome to be successful on a sentence appeal:
(a) first, the Crown must locate an appellable error in the exercise of discretion by the sentencing judge; and
(b) second, the Crown must negative any reason why the residual discretion of the appeal court not to interfere should be exercised.
In this case, the parties agreed that s 37O of the Supreme CourtAct preserves a “residual discretion” that enables the Court to decline to interfere where error has been established.
Such a residual discretion may be exercised for any purpose that the appellate court considers appropriate. Matters that may influence an appellate court to exercise its residual discretion include a delay in prosecution of the appeal, the imminent or past occurrence of the respondent’s release on parole, and the likely effect of resentencing on the respondent’s progress towards rehabilitation: Green and Quinn per the plurality at [43].
The manner in which the Crown conducted itself at the sentence hearing may also be a matter of significance: CMB at [38], R v Flowers [2014] ACTCA 13 at [81]–[82]. As stated in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58, in sentence proceedings the role of the prosecutor is “to draw to the attention of the judge … the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”: at [39]. In circumstances where, during the sentence proceedings, the prosecutor has guided the sentencing judge into an error about which the Crown complains on appeal, it may well be appropriate for the appellate court to decline to intervene. While, on an appeal, the Crown is not bound by a concession made in the course of the sentence proceedings, to the extent that the Crown stance at the sentence proceedings has contributed to the imposition of a sentence that the Crown later claims to be inadequate, that stance is material to the exercise of the residual discretion: Bugmy at [48].
In Summerfield, the respondent had submitted that, if the Crown succeeded, the residual discretion not to intervene was enlivened for several reasons. One reason was that the Crown appeal had not raised any error of principle calling for correction for the purpose of providing governance and guidance of courts (the principal purpose of Crown appeals). A second reason was that, at the sentence hearing, the Crown had failed to properly assist the sentencing judge. At [131], the majority (Burns and Bromwich JJ, Loukas-Karlsson J dissenting on this point) found that the onus had been discharged, primarily because each of the identified sentencing errors involved “serious issues of principle”.
In R v Miller, the Court of Appeal upheld the Crown’s contention that a sentence of two years’ imprisonment that had been wholly suspended on a good behaviour order was manifestly inadequate to reflect the objective seriousness of the offence, which demanded a period of fulltime imprisonment. However, there was a difference of opinion as to the exercise of the residual discretion. The majority (Burns and Loukas-Karlsson JJ) was persuaded that the original sentence should stand, although it was “a very finely balanced question”: at [50]. Bromwich J considered that the need for systemic fairness in the criminal justice system demanded resentencing, particularly as the appeal had been prosecuted promptly and the Crown had made no contribution to the sentencing errors that had resulted in a manifestly inadequate sentence: at [64]–[66].
In this case, the respondents argued that the residual discretion should be exercised in their favour because the Crown had contributed to the sentencing judge’s errors, both by endorsing a wrong approach to accumulation and by suggesting to the sentencing judge that Thompson was a comparable case.
We do not accept that submission. The Crown did encourage the sentencing judge to accumulate the sentences in the manner that occurred, but the total sentence was not significantly affected by the way in which the individual sentences were accumulated. The case of Thompson was a relatively comparable case.
The Crown made no contribution to the errors associated with the inappropriately large discount for the pleas of guilty.
The respondents also argued that the residual discretion not to intervene should be exercised because the purpose of a Crown appeal is to lay down principles for the governance and guidance of sentencing courts and that object would be achieved by pronouncing that the sentences were manifestly inadequate.
Very recently, in HT v The Queen [2019] HCA 40 at [51], the plurality (Kiefel CJ, Bell and Keane JJ, with whom Nettle and Edelman JJ agreed regarding exercise of the residual discretion) said:
There may be circumstances where the guidance provided to sentencing judges will be limited, in which case it may be appropriate for the appeal to be dismissed in the exercise of the residual discretion. This was such a case. Because of the existence of non-publication order no such guidance could be provided by a court exercising its powers under s 5D(1).
In the case of both respondents—but particularly Mr Nicholas—the resentencing exercise will result in a total sentence that is not substantially different from the original sentence in length or make up. Had the appeal related only to the sentence imposed on Mr Nicholas, we may have declined to intervene. However, the matter is complicated by the need to consider parity. Consequently, we are persuaded that we should resentence both respondents.
Resentencing
The Court must resentence by exercising the sentencing discretion “afresh”, rather than merely confirming the original sentence on the basis that it fell within the available range: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42] per French CJ, Hayne, Bell and Keane JJ, Toumo’ua at [106].
For the purpose of the resentencing exercise, we have considered the material that was before the sentencing judge. We accept the findings of the sentencing judge in relation to the objective seriousness of the offending conduct. In general, we also agree with his Honour’s approach to the subjective circumstances of each respondent; we consider that, in the case of each respondent, his circumstances invite significant leniency.
However, we have concluded that the sentences should reflect the facts that the criminal history of Mr Nicholas was less serious than that of Mr Palmer and that, at the time of the offences, Mr Nicholas was on conditional liberty for the offence of possessing a drug of dependence whereas Mr Palmer was on conditional liberty for the very sort of offence for which he is to be resentenced. Further, we consider that, as between the respondents, there should be some difference in the starting dates for the sentences. Finally, for the reasons discussed above, the discount for the pleas of guilty should be a little over 10 per cent.
The respondents are resentenced as follows.
Mr Nicholas
Mr Nicholas is resentenced as follows.
(a)First transfer charge: possess drug of dependence—five months’ imprisonment (reduced from 6 months’ imprisonment), from 9 November 2017 to 8 April 2018.
(b)Second transfer charge: possess drug of dependence—five months’ imprisonment (reduced from 6 months’ imprisonment), from 9 December 2017 to 8 May 2018.
(c)Count 1: Aggravated burglary on 16 July 2017—three years and one month’s imprisonment (reduced from three years and six months’ imprisonment), from 9 February 2018 to 8 March 2021.
(d)Count 2: Aggravated burglary on 16 July 2017—three years and one month’s imprisonment (reduced from three years and six months’ imprisonment), from 9 June 2018 to 8 July 2021.
(e)Count 4: Aggravated burglary on 16 July 2017—three years and one month’s imprisonment (reduced from three years and six months’ imprisonment), from 9 October 2018 to 8 November 2021.
(f)Count 6: Aggravated burglary on 21 July 2017— three years and one month’s imprisonment (reduced from three years and six months’ imprisonment), from 9 April 2019 to 8 May 2022.
(g)Count 8: Aggravated burglary on 21 July 2017— three years and one month’s imprisonment (reduced from three years and six months’ imprisonment), from 9 August 2019 to 8 September 2022.
(h)Count 10: Aggravated burglary on 23 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 February 2020 to 8 August 2023.
(i)Count 12: Aggravated burglary on 25 July 2017— three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 August 2020 to 8 February 2024.
(j)Count 18 (taking into account the additional offences): Aggravated robbery on 9 August 2017—five years and four months’ imprisonment (reduced from six years’ imprisonment), from 9 February 2021 to 8 June 2026.
We note that the starting date of 9 November 2017 reflects the fact that the respondent was arrested on 9 August 2017 and that the offences were committed while he was serving a suspended sentence.
The total period of imprisonment relevant to an assessment of the appropriate date for consideration of release is from 9 August 2017 to 8 June 2026 (eight years and 10 months’ imprisonment or 106 months).
As this is a very long period of imprisonment—the longest period of fulltime imprisonment previously served by Mr Nicholas was a period of eight months—and Mr Nicholas has made good progress towards rehabilitation, we fix a nonparole date of 8 June 2022 (four years and 10 months’ imprisonment from 9 August 2017, approximately 55 per cent of the total period of incarceration).
Mr Palmer
Mr Palmer is resentenced as follows.
(a)Count 1: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 February 2018 to 8 August 2021.
(b)Count 2: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 June 2018 to 8 December 2021.
(c)Count 4: Aggravated burglary on 16 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 October 2018 to 8 April 2022.
(d)Count 6: Aggravated burglary on 21 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 June 2019 to 8 December 2022.
(e)Count 8: Aggravated burglary on 21 July 2017—three years and six months’ imprisonment (reduced from four years’ imprisonment), from 9 October 2019 to 8 April 2023.
(f)Count 10: Aggravated burglary on 23 July 2017—four years’ imprisonment (reduced from four years and six months’ imprisonment), from 9 June 2020 to 8 June 2024.
(g)Count 12: Aggravated burglary on 25 July 2017—four years’ imprisonment (reduced from four years and six months’ imprisonment), from 9 February 2021 to 8 February 2025.
(h)Count 18 (taking into account the additional offences): Aggravated robbery on 9 August 2017—five years and 10 months’ imprisonment (reduced from six years and six months’ imprisonment), from 9 October 2021 to 8 August 2027.
The starting date reflects the fact that the respondent was arrested on 9 August 2017 and his parole was cancelled thereafter. The period of imprisonment relevant to an assessment of the appropriate date for consideration of release is from 9 August 2017 to 8 August 2027, a period of 10 years.
We fix a nonparole period of six years (60 per cent of the total term). The respondent is eligible for release to parole on 8 August 2023.
| I certify that the preceding one hundred and thirty-nine [139] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop, and Justice Rangiah. Associate: Date: |
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