R v Stacker
[2020] ACTCA 34
•30 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Stacker |
Citation: | [2020] ACTCA 34 |
Hearing Date: | 6 February 2020 |
DecisionDate: | 30 June 2020 |
Before: | Mossop, Loukas-Karlsson, and Charlesworth JJ |
Decision: | See [34] |
Catchwords: | APPEAL – Criminal Law – Prosecution appeal against sentence – whether sentence was manifestly inadequate – aggravated burglaries – unauthorised possession of firearm – whether residual discretion not to intervene should be exercised – re-sentence |
Legislation Cited: | Corrections Management Act 2007 (ACT) ss 14, 16, 53, 54, 205 Court Procedures Rules 2006 (ACT) rr 6, 5412, 5606 Supreme Court Act 1933 (ACT) ss 37O |
Cases Cited: | Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 Blundell v The Queen [2019] ACTCA 34 Zhao v The Queen [2018] ACTCA 38 |
Texts Cited: | Gerry Nash, Stephen Odgers and Mirko Bagaric, Federal Offences, (Thomson Reuters Online, 2003) |
Parties: | The Queen ( Appellant) Dylan Stacker ( Respondent) |
Representation: | Counsel K Lee ( Appellant) R Davies ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent) | |
File Number: | ACTCA 37 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 15 August 2019 Case Title: R v Stacker Citation: [2019] ACTSC 219 |
MOSSOP and CHARLESWORTH JJ:
Introduction
This is a Crown appeal against sentences imposed upon the respondent by a judge of this court. The offending involved four series of offences.
(a)Series One occurred on 28 January 2018. The respondent committed an aggravated burglary of a supermarket in company with Dylan Winters (CC2018/6762 - aggravated robbery). The respondent was wielding a kitchen knife and Mr Winters was wielding a machete. $3046 was stolen.
(b)Series Two occurred on 31 January 2018. The respondent committed a burglary of residential premises in Canberra (CC2018/2148 - burglary). In order to gain entry the respondent removed a fly screen, damaging it in the process (CC2018/2149 - damage property). He used a screwdriver to force open a window.
(c)Series Three occurred a year later at a time when the respondent was on bail, but after he had completed a residential rehabilitation program. The respondent, in company with Michael Baker, robbed a victim at gunpoint (CC2019/1103 - aggravated robbery by joint commission). The incident occurred at commercial premises in Fyshwick. The offenders had hidden near the entrance gate to the premises and confronted the victim when he arrived at work in the early morning. The respondent was armed with a shotgun and Mr Baker was armed with a .22 calibre rifle. The respondent pointed the shotgun at the victim. Items were stolen from him. Mr Baker pointed his rifle at another worker who had arrived at work. When the victim pursued the escaping offenders in his vehicle they confronted him again, pointing their weapons at him. Mr Baker attempted to discharge his rifle while it was pointed at the victim’s head. Mr Baker then struck the victim in the head with the butt of his rifle.
(d)Series Four occurred later that day. The respondent was found lying unconscious in between the dual carriageways of Drakeford Drive, with blood on his arm and a syringe nearby. He had a black replica firearm in his pocket (CC2019/712 - unauthorised possession of prohibited firearm).
An aggregate sentence of five years’ imprisonment was imposed with a non-parole period of two years and six months.
On appeal the Crown claims that the sentence was manifestly inadequate. It particularly focuses on the sentence imposed in relation to the Series Two and Series Three offences and the manner in which the sentences were accumulated. It also submits that the primary judge fell into error in applying a 25% discount to the sentences on account of the plea of guilty and in relation to the length of the non-parole period.
We have had the benefit of reading the reasons of Loukas-Karlsson J in draft. We agree with her Honour in relation to the issue of jurisdiction ([50]-[68]), the discount applied for the guilty plea ([69]-[113]), accumulation [152]-[163] and the non-parole period [165]-[171].
We differ from the conclusions reached by Loukas-Karlsson J in relation to the claims of manifest inadequacy and the exercise of the residual discretion and as a consequence, the orders that should be made.
The burglary and Series Three aggravated robbery
The amended Notice of Appeal only asserts manifest inadequacy in relation to the burglary (CC2018/2148) and the Series Three aggravated robbery (CC2019/1103).
The maximum sentence for the burglary was 14 years’ imprisonment. The sentence imposed was six months. This reflected a starting point of approximately eight months, having regard to the 25% discount that was applied.
The objective circumstances were as follows:
(a)the burglary was a burglary of residential premises;
(b)there was some modest planning involved, including the possession of gloves and a screwdriver; and
(c)the respondent was on conditional liberty at the time of the offence because he was subject to a parole order for offences of aggravated robbery committed in 2015.
The maximum sentence for aggravated robbery was 25 years’ imprisonment. The Series Three aggravated robbery was a serious example of this offence. It was aggravated robbery by joint commission pursuant to s 45A of the Criminal Code 2002 (ACT).
The objective circumstances were as follows:
(a)It was planned and involved the ambush of the victim as he attended his workplace.
(b)The statutory aggravation was that it was in company.
(c)It also involved the use of firearms.
(d)Those firearms were pointed at the victim and the other worker who arrived at the scene.
(e)A threat of immediate discharge of the firearm was made to the victim by the offender and an attempt made to discharge a firearm by his co-offender.
(f)The use of firearms was prominent and consistent rather than fleeting or incidental.
(g)Actual violence was inflicted upon the victim by the co-offender. That actual violence was not separately charged.
(h)The offence was committed when the offender was on parole for earlier offending, which included an aggravated robbery involving the use of a weapon. He was also on bail.
The agreed Statement of Facts does not prove beyond reasonable doubt that the shotgun used by the offender was capable of firing. That is because at the time that it was found, both firing pins were missing.
Subjective circumstances of the offender
At the time of sentencing the respondent was 25 years old. He has never been employed and has been in receipt of a disability pension since 2011.
He was living with his partner until January 2018 when she died from a drug overdose. He then committed the Series One and Series Two offences. He was remanded in custody for a number of months. He was admitted to the Triple Care Farm drug and alcohol rehabilitation centre in August 2018 and successfully completed the program in November 2018.
A report of Dr Richard Furst, forensic psychiatrist, identified further aspects of his personal circumstances: a background of disadvantage, not having any relationship with his father in his formative years, struggling in school and coming under the influence of antisocial and drug-using peers in his teenage years. He used cannabis between the ages of 13 and 18 and methamphetamine from the age of 18. He was diagnosed as suffering from schizophrenia, substance use disorder (methamphetamine dependence), attention deficit hyperactivity disorder and borderline intellectual function. Dr Furst identified that the respondent had a moderate to high risk of reoffending based on a review of his criminal history, drug addiction, low cognitive function, serious mental illness and limited insight. Dr Furst said, in relation to the 2018 offending, that it was purposeful and goal-directed which suggested that the respondent was well aware of the nature and quality of his conduct and was aware that it was wrong.
The respondent has a very substantial criminal history, including multiple counts of burglary, theft, taking a motor vehicle without consent, possessing drugs, offences relating to items in correctional centres and possessing a knife without reasonable excuse.
He had most recently been sentenced by Elkaim J for offences committed in December 2015. This included aggravated robberies of two pizza stores committed using knives: R v Stacker [2017] ACTSC 240.
The author of the pre-sentence report expressed the following opinion:
The offender has an extensive criminal history, with his current offences continuing a pattern of antisocial behaviour which dates to when he was a juvenile. Previous sanctions, including imprisonment, have not curtailed Mr Stacker’s proclivity to reoffend. His previous poor engagement with this Service is also of concern and raises questions as to his ability to comply with any future community based orders.
What is incontrovertible is that the use of illicit substances is Mr Stacker’s most significant risk factor. To his credit he previously completed residential illicit substance programmes. Of concern is that, soon after completion of the latest AOD programme, Mr Stacker returned to illicit drug use and subsequently crime.
Manifest inadequacy
The principles to be applied to a claim of manifest inadequacy are set out in the judgment of Loukas-Karlsson J at [141]-[149].
The sentences imposed by the primary judge were undoubtedly very lenient. Notwithstanding the objective gravity of the offending and the fact that the offender had multiple prior convictions for similar offending, the primary judge was clearly influenced by the personal circumstances of the offender, in particular, his attempts at rehabilitation. His Honour said (at [24]):
I have a good deal of sympathy for this offender. I think he is capable, as he has shown previously, of getting away from drugs. It will no doubt take a good deal of commitment and will need the assistance of professional advisers and treaters.
The judge had had previous dealings with the respondent, having conducted the trial in relation to his 2015 offending and observed him giving evidence. As his Honour’s reasons make clear: R v Stacker; R v Campbell [2016] ACTSC 334 at [32]-[33], he was clearly unimpressed with his evidence in that case. However, his Honour must have been able to form an impression of him which is likely to have been operative when he sentenced him in 2019.
In relation to the burglary offence in Fusimalohi v The Queen [2012] ACTCA 49 (Fusimalohi), the Court of Appeal outlined that (at [49]-[51]):
To determine what “the collective wisdom of judges” actually is can be difficult in the case of a single offence, but where there are multiple offences, different almost always in nature and circumstances, it becomes almost impossible to find useful comparisons.
Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
Plainly enough, the starting point for the sentence on the burglary charge of eight months was outside this range. The sentence for burglary is very low and outside the usual range identified in Fusimalohi. However, although we consider that this is an extremely lenient sentence, it is not manifestly inadequate.
So far as the Series Three aggravated robbery offence is concerned, the following two cases are clearly comparable:
(a)In R v Nicholas; R v Palmer [2019] ACTCA 36 both offenders were on conditional liberty, the robbery was of commercial premises and involved some planning. Mr Palmer carried the firearm which was pointed at staff and staff were made to lie on the ground. $3500 in cash was taken as well as property. Both offenders were in their 30s and had criminal histories. The starting point for Mr Palmer was a sentence of imprisonment of six years and six months and for Mr Nicholas it was six years.
(b)Thompson v The Queen [2018] ACTCA 2 involved a robbery of commercial premises. A firearm was pointed at staff and in excess of $4000 was stolen. The offender had a difficult childhood, multiple mental health diagnoses and a very substantial criminal history. The starting point was six years’ imprisonment.
The schedule of comparable cases provided by the Crown on appeal demonstrates a range of sentences imposed for aggravated robbery. They include the decision in R v Johnstone(No 2) [2019] ACTSC 39 (Johnstone) where a sentence of four years was imposed for an aggravated robbery involving a firearm after a trial.
When assessing a submission that a sentence is manifestly inadequate, it is necessary to pay proper regard to the maximum penalty for the offence. In this case, the maximum penalty of imprisonment available is one of 25 years. The starting point adopted by the primary judge was less than one fifth of that maximum sentence.
The objective features of the Series Three aggravated robbery, set out at [10] above, put it well above the mid-range of objective seriousness for this offence. The combination of aggravating circumstances makes it clearly more serious than a case such as Johnstone in which a firearm was also used.
Although the offender had a significant criminal history including offences of aggravated robbery with an offensive weapon, there were circumstances warranting leniency including the offender’s diagnosed mental health conditions and his attempts at rehabilitation. However the objective circumstances of the offending, most particularly the fact that both offenders had firearms, that their use of firearms occurred on multiple occasions during the course of the robbery and the actual infliction of violence by the co-offender make a case in which a starting point of four years was manifestly inadequate.
Residual discretion
So far as the residual discretion is concerned, in our view none of the circumstances warrant its exercise. In that regard we do not consider that the matters related to the impact of COVID-19 referred to in the decision of Loukas-Karlsson J warrant the exercise of the residual discretion. Any additional restrictions upon detainees have been and are limited.
Having regard to the limited purpose of a Crown appeal and the limited respect in which the Crown has demonstrated that the sentence was manifestly inadequate, we consider that the resentencing should be confined to those features of the sentence which led to the inadequacy, namely the lack of cumulation of the Series Two offending upon the other sentences and the inadequacy of the sentence for the Series Three robbery. Notwithstanding the debate as to the scope of the relevant statutory provisions in other jurisdictions, (cf R v Shortland [2018] NSWCCA 34 at [31]-[33], [39]-[40]) we do not consider that s 37O of the Supreme Court Act 1933 (ACT) precludes such a limited resentencing.
Resentencing
The sentences for the Series Two offences of burglary and damage property will be set aside along with the sentence for the Series Three robbery. Having regard to the limited basis for intervention, the length of the sentence for burglary should be maintained despite its leniency.
As the burglary and property damage involved offending unrelated to the other series of offending for which the respondent was sentenced, the starting point is that they should be cumulative with the other sentences imposed. The damage to property increased the overall impact of the offending and, although closely related, may appropriately be cumulative upon the burglary as it added to the seriousness of the offending.
On the Series 3 aggravated robbery, giving full weight to the subjective circumstances of the offender, the appropriate starting point is a sentence of five years and eight months (68 months) reduced to four years and three months (51 months) on account of the plea of guilty.
Totality does not require that any element of concurrency be introduced as between the sentences for the Series Two offences and the sentences for the other series of offences. They will therefore be cumulative upon the other sentences. The period of concurrency (12 months) between the Series Three aggravated robbery and the Series One aggravated robbery as imposed by the trial judge will be maintained. The non-parole period will be generally consistent with the approach taken by the primary judge, being 50% of the head sentence.
The orders we make are:
1. Appeal allowed.
2. The orders made by the court on 15 August 2019 are set aside and the following orders are made in their place:
(a) For the offence of aggravated robbery (CC 2018/6762), the offender is sentenced to two years and six months’ imprisonment commencing on 18 June 2018 and ending on 17 December 2020.
(b) For the offence of aggravated robbery (CC 2019/1103) the offender is sentenced to four years and three months’ imprisonment commencing on 18 December 2019 and ending on 17 March 2024.
(c) For the offence of damaging property (CC2018/2149), the offender is sentenced to one month imprisonment commencing on 18 March 2024 and ending on 17 April 2024.
(d) For the offence of burglary (CC2018/2148), the offender is sentenced to six months’ imprisonment commencing on 18 April 2024 and ending on 17 October 2024.
(e) The total sentence is six years and four months’ imprisonment commencing on 18 June 2018 and ending on 17 October 2024.
(f) The non-parole period is a period of three years and two months’ imprisonment commencing on 18 June 2018 and ending on 17 August 2021.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justices Mossop and Charlesworth. Associate: Date: |
LOUKAS-KARLSSON J
Introduction
On August 15, 2019 the respondent was sentenced by Justice Elkaim (the sentencing judge) in relation to two counts of aggravated robbery, one count of damage property, one count of burglary, and one count of unauthorised possession of a prohibited firearm. The respondent was sentenced to a total of 5 years imprisonment commencing on 18 June 2018 and ending on 17 June 2023 with a non-parole period of 2 years and 6 months ending on 17 December 2020. The Prosecution now appeals against that sentence.
The Prosecution sought leave to file an amended notice of appeal under rule 5412(2) of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) at the hearing. No objection was raised by the respondent and leave was granted (T 2.10-30).
The grounds of appeal contained in the Prosecution’s amended notice of appeal are:
a) His Honour erred in providing a discount of “about 25%” to the respondent for the guilty pleas to CC2018/2148, CC2018/2149 and CC2018/6762.
b) The sentence imposed on the respondent is manifestly inadequate.
The particulars of ground of appeal (b) are:
i. The individual sentences imposed in relation to CC2018/2148 and CC2019/1103 are manifestly inadequate having regard to the maximum available penalties and the objective seriousness of the offences.
ii. The concurrency between the individual sentences imposed is manifestly inadequate.
iii. The head sentence is manifestly inadequate.
iv. The non-parole period is manifestly inadequate.
The charges arose out of four incidents:
a) Series One: On 28 January 2018 the respondent committed an aggravated robbery of a supermarket in company with Dylan Winters (CC2018/6762).
b) Series Two: On 31 January 2018 the respondent committed a burglary at a residential address in Kambah. The respondent removed a fly screen to gain entry to the property, damaging it in the process (CC2018/2148; CC2018/2149).
c) Series Three: On 7 January 2019, whilst on bail for the above offences the respondent committed an aggravated robbery in company with Michael Baker while armed with a shotgun (CC2019/1103). Mr Baker was armed with a bolt action .22 calibre rifle. Both pointed their weapons at the victim, and Mr Baker unsuccessfully attempted to discharge his rifle and then struck the victim with the butt of the rifle.
d) Series Four: On 7 January the respondent was discovered lying unconscious on a green belt, with blood on his arm and a syringe nearby. The respondent had a black replica firearm in his pocket (CC2019/712).
Reasons of the sentencing judge
The sentencing judge referred to the facts in an abbreviated form. His Honour began by setting out the procedural history of the offences and their associated facts, focusing primarily upon the Series Three aggravated robbery and the related Victim Impact Statement: R v Stacker [2019] ACTSC 219 at [1]-[7] (Primary Judgment).
The sentencing judge extracted a passage from the Victim Impact Statement which summarised the effects upon the victim and then stated at [9]:
Criminals don’t think of these basic matters when they carry out crimes against people. They should, and they should reflect on how their actions, even if resulting in no physical injury, can have lifelong consequences for innocent people whose everyday habits will change.
The sentencing judge then noted that it had been suggested in submissions that the possession of the replica firearm may have been related to a self-destructive intent held by the victim to provoke a deadly reaction from police officers called to the scene.
The sentencing judge acknowledged that he had sentenced the offender before, and as such had already recorded some of the offender’s subjective circumstances in that previous judgment. He noted that the offender had been through a period of rehabilitation from his drug use but had nevertheless relapsed. He noted a letter from Mission Australia which gave “some hope that [the offender] has commenced, perhaps again, on the right path” (at [14]).
The psychiatric report of Dr Furst which had been prepared in relation to the offender’s mental state at the time of the offending was then referred to and extracted. The sentencing judge noted the offender’s unfortunate personal circumstances, including the death of his partner to a heroin overdose and the suggestion that this event may had some bearing on the commission of the offences.
While taking the offender’s mental state into account, the sentencing judge also noted that Dr Furst had found his offending was purposeful and goal-directed, and that the offender was aware of the nature and quality of his alleged conduct. The sentencing judge acknowledged Dr Furst’s opinion that the offender was in the medium to high range of risk of reoffending due to his “criminal history, drug addiction, low cognitive function, serious mental illness and limited insight” and the recommendation that the offender receive ongoing psychiatric treatment as well as treatment for substance abuse (at [16]-[17]).
The offender’s long criminal record and its association with drug addiction was then discussed, with the sentencing judge stating that he accepted that the death of his partner had played a role in his most recent offending and that the offender’s prospects of rehabilitation were “not as bleak as suggested by the Crown” (at 18]).
The sentencing judge then turned to the objective seriousness of the offences, assessing the seriousness of the supermarket robbery to be in the range of about medium objective seriousness, and placed the robbery which involved the use of a gun “above medium objective seriousness” (at 19]). His Honour noted that it was “an aggravating feature of all of the offences that they were committed while the offender was on parole”, though it was to the offender’s credit that he had voluntarily surrendered his parole on January 28 of 2019 (at [20]).
The sentencing judge then considered ss 6, 7, 10 and 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and the authorities which had been referred to by the Prosecution on guidelines and sentencing practice. His Honour determined that no issue of parity had arisen as the co-offenders had yet to be sentenced, and that while some of the offences could be dealt with concurrently, there would necessarily be a degree of accumulation, bearing totality in mind (at [23]-[26]).
Before making the orders as to sentence his Honour also noted that he had sympathy for the offender and believed he was capable of rehabilitation. Punishment was also required in accordance with the need for both general and specific deterrence (at [25]).
The jurisdictional issue
The respondent was sentenced on the basis that he had been charged with joint commission of the offence relating to the Series Three incident. A question arose at the hearing of this appeal with respect to the formulation of the Series Three aggravated robbery charge on the indictment, which did not refer to the joint commission of the offence by way of s 45A of the Criminal Code 2002 (ACT) (Criminal Code). At the conclusion of the hearing of the appeal the Court directed the parties to file further submissions in relation to that charge. Those submissions were to be directed to the following three issues:
a) Whether the jurisdiction is limited as a result of the formulation of the charge.
b) Whether, and in what way, the charge may be amended so that it corresponds to the formulation in the agreed statement of facts.
c) If the charge may not be amended, what if any difference that makes to the factual basis for any re-sentence of the offender.
Both the appellant and the respondent ultimately submitted that there was no limitation on this Court’s jurisdiction as a result of the formulation of the charge.
Appellant’s submissions on the jurisdictional issue
The Prosecution submitted that the Court’s jurisdiction is not limited, and that there is no requirement to amend the charge.
In relation to the first issue, the Prosecution submitted that according to the statement of facts which was tendered as part of the Crown Tender Bundle, CC2019/1103 was a charge of aggravated robbery “contrary to s 310(b) of the Criminal Code by virtue of s 45A of the Criminal Code 2002”. It was submitted that this description of the charge was repeated in the agreed Statement of Facts.
It was submitted that when the Crown Tender Bundle was tendered, defence counsel for the respondent took no issue other than with an error in the custody dates, and that no issue had been taken with the respondent being sentenced in accordance with the agreed Statement of Facts, which included the Prosecution’s reliance on s 45A of the Criminal Code.
The Prosecution submitted that this Court’s jurisdiction is not limited by the formulation of the charge in the Magistrates Court, as there is no requirement for a charge that relies on s 45A of the Criminal Code to rely upon that section. It was submitted further that given the circumstances at the sentencing hearing, there would be no unfairness to the respondent in proceeding on the basis that the offence is one which relies on s 45A.
It was submitted that s 45A provides a mechanism for the extension of criminal responsibility by which a person “is taken to have committed an offence”: s 45A(1). As such (and unlike ss 44 (attempt), 47 (incitement) and s 48 (conspiracy) which create substantive offences), it was submitted that s 45A does not itself create an offence.
It was submitted that similar provisions exist in sections 11.2 and 11.3 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code), and that these sections correspond with ss 45 and 46 respectively of the Criminal Code. It was submitted that in R v Kaldor [2004] NSWCCA 425 (Kaldor) Howie J (with whom Dunford J agreed) had observed with respect to the aforementioned provisions of the Commonwealth Criminal Code, that neither provision created an offence “but merely states a way in which a person may commit an offence”: Kaldor at [77]. His Honour found in that case that these provisions provided “mere particulars to a charge” and were mere “surplusage” to the charge: Kaldor at [83]-[84].
It was submitted that Kaldor had been referred to with apparent approval by Burns J in Vartuli v Ferns; Millington v Ferns [2012] ACTSC 13 (Vartuli). The Prosecution submitted that Burns J’s comments apply equally to a charge which relies on the provisions of s 45A. While in Vartuli his Honour went on to consider s 45(8), a subsection not reproduced in s 45A, the appellant submitted that the comments about that subsection “do not detract from his earlier conclusion that the Prosecution may rely on the provisions of s 45 without referring to the particulars of proof set out in s 45 in the charge itself” (PFWS [13]).
Respondent’s submissions on the jurisdictional issue
The respondent submitted that the jurisdiction of the Court of Appeal is not limited as a result of the formulation of the charge.
The respondent referred to Thomson Reuters Federal Offences (online edition) in relation to the equivalent provision in the Commonwealth Criminal Code (s 11.2A) which is expressed in similar terms to s 45A of the Criminal Code. The editors of that publication state that as the “effect of the provision is that the accused is ‘taken’ to have committed the offence for which he is alleged to be criminally responsible for as a joint offender, the appropriate procedure would be to charge the accused with that offence and any allegation that the accused was criminally responsible for that offence as a joint offender, would be a matter for particulars.”
The respondent also cited passages from Kaldor which were relied upon in the appellant’s submissions, submitting that this was consistent with the position taken by the High Court in Giorgianni v The Queen (1985) 156 CLR 473 at 497 (Giorgianni) in relation to the provisions of s 351 of the Crimes Act 1900 (NSW) as they were at that time. The respondent also cited King v The Queen (1986)161 CLR 423 at 436 (King v The Queen) which was critical of the formulation of a charge in a manner which was not clear that the accused was charged as an accessory but found that it was nevertheless permissible to do so.
It was submitted that in the ACT where on the backsheet of an indictment it is stated that an accused is charged “by virtue of s 45A Criminal Code’, this is merely an indication by the Prosecution as to the manner in which it is alleged the accused is guilty. The respondent submits that the allegation of “involvement in a joint criminal enterprise is a particular, and not a substantive ingredient of the offence charged” and that while including this information in the form of a particular is desirable, “the failure to do so does not limit the scope of the charge” in circumstances where the Prosecution has made their reliance on s 45A known to the respondent and it has been incorporated into an agreed Statement of Facts (AFWS [10]).
It was submitted that the Court of Appeal does not have the jurisdiction to amend a charge or an indictment. The respondent cited s 28 of the Magistrates Court Act1930 (ACT) (Magistrates Court Act) and s 264(1) of the Crimes Act 1900 (ACT) (Crimes Act) as two examples of a source of power to amend an indictment by the lower courts, but which were not available to the Court of Appeal or permitted after the entering of a verdict. It was submitted that the powers of the Court of Appeal are prescribed by the provisions of Pt 2A of the Supreme Court Act 1933 (ACT) (Supreme Court Act), none of which appear to confer a power to amend charges or indictments. The respondent cited a number of cases from the NSW and Queensland jurisdictions supporting the proposition that a court of appeal does not have the power to amend an indictment absent an express legislative power to do so (RFWS [19]-[20]).
Consideration
The Series Three aggravated robbery charge did not refer to the joint commission of the offence by way of s 45A of the Criminal Code. It is clear on the basis of the authorities referred to by both the Prosecution and the respondent that the jurisdiction of the Court is not thereby limited.
The comments of Burns J in Vartuli are apposite. The following was stated with respect to s 45 of the Criminal Code (at [7]):
The appellants’ submission that they could not be convicted by virtue of s 45 of the code is, in my opinion, incorrect. The submission appears to rely upon the proposition that in order for the prosecution to seek to rely upon the provisions of s 45 in order to convict an accused person of an offence, the prosecution must allege in the body of the charge that the accused was an aider, abetter, counsellor or procurer.
After considering a number of authorities, including Kaldor it was made clear that s 45 does not govern the appropriate form of a charge. It was underlined at [23] that the common law governs this issue:
Section 45 does not purport to govern the appropriate form of a charge sought to be proved by virtue of its provisions. Common law practices and procedures, as developed by the courts, still govern this issue. As such, the prosecution may charge an accused with an offence, relying on the provisions of s 45, without referring to the particulars of proof set out in s 45 itself. Whether it is wise or appropriate to do so is debateable…
The reasoning of Burns J in relation to s 45 is equally applicable to s 45A. Importantly, this reasoning is consistent with Giorgianni and King v The Queen (1986) 161 CLR 423.
That being so, the question of whether the charge may be amended and other consequential questions do not arise. Nevertheless it should be noted in this context that the state of the authorities on this issue support the proposition that a Court of Appeal does not have the power to amend an indictment absent an express legislative provision: See: R v Burns (1920) 20 SR (NSW) 351; R v Cox [1999] NSWCCA 62 at [18]; R v MAJW [2007] NSWCCA 145; 171 A Crim R 407; R v Fahey, Solomon, and AD [2001] QCA 82; 1 Qld R 391 at [13-[16].
Ground One: Did the sentencing judge err in allowing a discount of approximately 25 per cent for the guilty pleas?
Appellant’s Submissions on distinguishing between offences
In both written and oral submissions the Prosecution referred to Williams v The Queen [2014] ACTCA 4 and Cranfield v The Queen [2018] ACTCA 3 (Cranfield) to support the proposition that a discount for a plea of guilty should be generally predictable.
The Prosecution also referred to the decisions of Blundell v The Queen [2019] ACTCA 34 (Blundell) and R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas), both of which provided guidance with respect to the appropriate discount to be applied where a plea is entered or firmly indicated during or immediately after a Criminal Case Conference. The Prosecution submitted that while the discount is always a discretionary matter, these cases demonstrate that the discount to be applied following a plea will usually be referable to the stage of the proceedings at which the plea is entered, and in accordance with s 35(5) of the Sentencing Act the closer the matter is to trial, the lesser the discount. It was submitted that this reflects the importance of the timing of the plea with respect to its utilitarian value [WS [29].
The Prosecution submitted that the sentencing judge had provided a discount of 25 per cent for all of the pleas in relation to the matter and that a 25 per cent discount in this jurisdiction is generally the maximum that is provided by way of a plea of guilty. It was submitted that the utilitarian value of that plea largely depends on the timing of that plea. In the Prosecution’s submission it is for this reason that different discounts are to be provided for each offence depending on the stage at which the plea in relation to that offence is entered (T 5.4-10).
The Prosecution submitted that the sentencing judge did not in his reasons explain how he had assessed the discount at about 25 per cent as appropriate. It was submitted that the s 35 considerations which applied to each of the offences were significantly different, and that a failure to distinguish between the different series of offences was indicative of error [WS [30]-[32].
The Prosecution submitted that it was “difficult to see” (AWS [31]) how the sentencing judge took into account:
a) The timing of the plea as required by s 35(b)(2) of the Sentencing Act.
b) The strength of the prosecution case in relation to each of the offences as required by s 35(4) of the Sentencing Act.
c) The relevance of whether pleas were the result of negotiations between the prosecution and defence as required by s 35(2) of the Sentencing Act.
In relation to the timing of the plea the Prosecution submitted that the pleas of guilty for Series One and Two were entered at significantly different stages of the proceedings to Series Three and Four. In the Prosecution’s submission this required the sentencing judge to make a different assessment for the purpose of exercising the discretion, or to provide reasons why the application of the same discount was appropriate.
The Prosecution accepted that the pleas were entered or indicated at Criminal Case Conferencing and that those pleas are to be treated as early pleas (T 6.28-30), but submitted that the pleas of guilty with respect to the Series One aggravated robbery and Series Two burglary offences (2018/2148; 2018/2149; 2018/6762) were all entered after committal, a brief of evidence had been prepared, and the matters had been set down for trial (T 5.15-22; AWS [15]). While accepting that the pleas were early the Prosecution submitted that a 25 per cent discount is reserved for pleas which come at the earliest stage, the policy reasons for this being that discounts are generally predictable (citing Cranfield at [37]) (T 6.31-47). The Prosecution also accepted that a discount for a plea of guilty is a matter of discretion, but nevertheless submitted that in the circumstances it was unreasonable to provide a discount of 25 per cent for those three charges (T 7.1-5).
In relation to the consideration of the strength of the prosecution case, the Prosecution submitted that both the Series One and the Series Three offences involved circumstantial evidence such as CCTV, DNA, and GPS data. While in contrast, it was submitted that the prosecution case in relation to the Series Two and Series Four offences was overwhelmingly strong as the respondent was seen by police as he exited the home he had burgled for the former, and was discovered unconscious with the replica firearm in his possession for the latter.
In respect of the pleas being the result of negotiations between the parties the Prosecution submitted that, in relation to the Series Three offence, the respondent had originally been charged with aggravated robbery and reckless threat to kill. The second charge was withdrawn when the respondent pleaded guilty to the aggravated robbery charge on 14 May 2019. The Prosecution accepted that the negotiations between the parties with respect to the pleas had been “briefly canvassed” at the sentencing hearing ([AWS [31]).
Appellant’s submissions on the quantum of the discount for the Series One and Series Two offences
Whilst acknowledging that the quantum of a sentencing discount is a discretionary matter, the Prosecution submitted that the sentencing judge’s discretion miscarried when regard is had to the timing of the pleas to the Series One and Two offences. The Prosecution cited R v Toumo’ua [2017] ACTCA 9 at [80] (Toumo’ua) for the principle explained in Monfries v The Queen [2014] ACTCA 46 (Monfries) that aside from exceptional circumstances, a 25 per cent discount is generally reserved for cases in which a plea is entered at an early stage. It was submitted that there were no exceptional circumstances which could justify the application of the discount to those offences. The Prosecution submitted that the absence of reasons as to why the discretion was exercised in a manner typically reserved for exceptional circumstances supported their overall submission that the discretion miscarried (AWS [33]).
The Prosecution accepted that there had been some explanation of the delayed entry of the pleas to the Series One and Two offences, as these pleas had been entered once the respondent had obtained a medical report authored by Dr Furst (Furst report) which indicated that a defence of mental impairment was not available to the respondent. It was submitted that the Prosecution had appropriately noted at the sentencing hearing that the respondent had been entitled to obtain the report and that the pleas may have come sooner if that forensic research had not been required. The Prosecution submitted that it was appropriate to do so on the basis that this Court had made observations in Toumo’ua (at [47]) about NSW authority which suggests that it may be unreasonable to expect an offender to indicate a plea of guilty before evidence of this type had been evaluated.
In relation to the Furst report, the Prosecution submitted that the timing of the pleas was not explained entirely by the delay in its production. While accepting that the Prosecution does not know when the report was received by the respondent or considered by his representatives, it was noted that the report was dated 20 December 2018 and that the Series One and Two offences had been committed for trial at this time. They were set down for trial on 18 February 2019, and the respondent indicated that he would plead guilty to these offences on 8 May 2019.
It was submitted that the respondent was not entitled to the benefit of a discount for his plea of guilty due to this “unexplained delay” following the completion of the Furst report, on the basis that the 25 per cent discount is reserved for exceptional cases or early pleas of guilty. The Prosecution noted that at the sentencing hearing counsel for the respondent had accepted that the timing of these pleas were “early but not the earliest” and submitted that this was an accurate assessment (AWS [35]). The Prosecution also noted that the sentencing judge did not refer to the timing of the Furst report when exercising his discretion in relation to the discount, or suggest that it became an exceptional case because of it (AWS [36]).
Appellant’s submissions on comparative appellate cases
For comparative purposes the Prosecution cited Cranfield, in which pleas of guilty were entered the week before the commencement of the appellant’s trial and the discount was increased from 5 per cent to 10 percent on appeal, Toumo’ua in which pleas of guilty were entered following committal but prior to the setting of a trial date and the discount was reduced from 25 per cent to 17 per cent on appeal, Zhao v The Queen [2018] ACTCA 38, in which pleas were entered 12 days before the trial commenced as a result of negotiations and a discount of 10 per cent was confirmed on appeal, and Nicholas, in which pleas of guilty were entered the week before trial and a discount of 20 per cent was reduced to “a little over 10 per cent” on appeal.
The Prosecution also referred to Blundell and Nicholas, which established a line of authority with respect to pleas which were entered at or in the immediate aftermath of Criminal Case Conferencing. In Nicholas the Court remarked (at [52]) that:
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 oral submissions the Prosecution referred to Nicholas for the proposition that a discount of 15 to 20 per cent is allowed for a pleas entered before or in connection with a criminal case conference, but accepted that the point had been made in Blundell that this was a general proposition which did not place a mandatory limit on the sentencing judge’s discretion (T 7.5-10; 7.45-47; 8.1-7).
In relation to the present matter, the Prosecution noted that the pleas to the Series One and Two offences were indicated at case conferencing but after a trial date had been set. It was submitted that when compared with the comparable cases, the discount applied to the Series One and Two offences were “outside the appropriate range” (AWS [39]).
Respondent’s Submissions on the history of proceedings
The respondent submitted that ground a) and particular iii) to ground b) of the amended notice of appeal “indirectly offend” against the comments made by Gageler J in Bugmyv The Queen [2013] HCA 37; 249 CLR 471 (Bugmy) at [51]-[54], which were adopted by this Court in R v Ang [2014] ACTCA 17 at [18]-[25] (R v Ang).
In relation to the history of proceedings and the Furst report, the respondent noted that the respondent was released from custody on 20 August 2018 in order to attend a rehabilitation program, which he completed on 9 November 2018. The satisfactory completion of that program was in evidence before the sentencing judge and was acknowledged in those proceedings by the Prosecution. Dr Furst had received his instructions by letter dated 20 July 2018 and made a psychiatric assessment of the respondent on 17 October 2018, completing his report on 20 December 2018.
In relation to the respondent’s indication that he would enter a plea of guilty to the Series One and Two offences on 8 May 2019, the respondent submitted that it had been noted in the agreed Statement of Facts tendered at the sentencing hearing that the respondent had indicated (before the case conference) that he intended to plead guilty to the Series One aggravated robbery charge.
Respondent’s submissions on the discount for plea of guilty
The respondent cited Blundell at [7]-[18] and Monfries at [47] noting, in particular that the primary consideration when applying a discount for the plea of guilty is the utilitarian value of a plea, which largely depends on the timing of the plea, and that despite there being common discounts relatable to the stage at which a plea is entered, it is always a matter in the discretion of the sentencing judge. It was submitted that in this instance the sentencing judge, in the exercise of his discretion, decided that the discount should be 25 per cent [RWS 10].
The respondent submitted that the sentencing judge had invited submissions about a discount for the pleas of guilty, asking counsel “So he gets a discount for the pleas. Is there any issue about that?” with the Prosecution replying “no” (PJT.19.30; RWS [11-[12]). It was submitted that what then followed was a discussion between the sentencing judge and the Prosecution about the timing of the pleas, and that no submissions were made with respect to what an appropriate discount would be, nor was the Prosecution invited to do so. There were no submissions from the Prosecution as to the strength or otherwise of the Prosecution’s case with respect to the offences.
It was submitted that the Prosecution had acknowledged that the Series One and Two offences were delayed while the possibility of a mental impairment defence was investigated, and that the respondent “was entitled wait for Dr Furst’s report” as it was “legitimate forensic research” (PJT.19.20-20.21; RWS [13]). It was submitted that the delay in making the plea may not be entirely associated with Dr Furst, as the respondent had been bailed to attend rehabilitation in August 2018 which he did not complete until November 2018. Dr Furst’s assessment of the respondent occurred at Legal Aid ACT offices on 17 October 2018, the same day that the respondent attended the Magistrates Court where he was committed to the Supreme Court in relation to the Series One offence. It was submitted that this was the first practical opportunity for Dr Furst to make his assessment.
It was submitted that in circumstances where there is a satisfactory explanation for the delay in the progress of proceedings, that the respondent remains entitled to a significant discount for the utilitarian value of the plea (RWS [17]). It was submitted that in this instance, the sentencing judge decided that this discount should be 25 per cent. It was submitted further that this discount was “wholly appropriate” in relation to the Series Three and Four offences, as they were both indictable offences and in the case of the Series Three aggravated robbery, strictly indictable. Pleas of guilty were entered in relation to those offences in the Magistrates Court and before committal to the Supreme Court (RWS [18]-[19]).
It was submitted that if there is any doubt as to whether a discount of 25 per cent was appropriate for the Series One and Two offences, then in accordance with Blundell (at [12]) the Court should allow a discount of between 15 and 20 per cent, as the plea came following a resolution at a Criminal Case Conference. It was submitted that if a discount of 20 per cent were to be applied this would reduce the original sentence of 40 months by eight months rather than 10 months. In the case of a 15 per cent discount it would be reduced by six months rather than 10 months. It was submitted that when the different discounts are applied to the sentence for the Series Two offence, the difference is a matter of weeks (RWS [20]).
The respondent submitted that ordinarily a Criminal Case Conference would take place before a matter is listed for trial, however in this instance it took place several months later. The Series One and Two offences had been adjourned from an earlier Criminal Case Conference in February 2019 because of the more recent Series Three and Four matters which were pending in the Magistrates Court. The respondent referred to the notes of Robinson AJ on the Criminal Case Conference Form, which was unsealed with the leave of this Court and tendered as further evidence on appeal with the consent of the Prosecution (T 3.10-45; 4.1-26).
Respondent’s submissions on failure to distinguish between different series of offences
In the respondent’s submission, when the reasons for the delays in resolving the Series One and Two offences are taken into account, the difference in the timing as compared to the pleas to the Series Three and Four offences are not significantly different. Although the respondent did concede that the pleas to the Series Three and Four offences predate their committal to the Supreme Court (RWS [23]).
It was submitted that consideration of the prosecution case and s 35 of the Sentencing Act was only relevant to consideration of the plea of guilty as evidence of contrition and remorse. The respondent submitted that this was not a relevant consideration, and that s 35 did not apply to the assessment of the utilitarian value of a plea of guilty (RWS [24]) and cited R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [136]-[137] and at [140] to support this submission. The respondent also cited Blundell and Toumo’ua for the proposition that the primary consideration in deciding on a discount for pleas of guilty is its utilitarian value.
The respondent accepted that the appellant’s assessment of the strength of the Prosecution’s case in relation to each of Series One and Three was correct in that they were circumstantial cases of a similar strength. The respondent also accepted that the case against the respondent in respect of the Series Two burglary offence and the Series Four firearm offence was, on its face, overwhelming given that the respondent was caught red handed. Nevertheless, in the respondent’s submission the burglary and firearm offences were significantly less serious than the Series One and Three offences, which was reflected in the sentences imposed, and that the sentencing judge was entitled to give the same discount for all matters (RWS [27]).
It was submitted further that the issues of differentiation of discount and relative strengths of the prosecution case in each of the matters was not raised before the sentencing judge, notwithstanding that the counsel for the Prosecution had been asked “So he gets a discount for the pleas. Is there any issue about that?”
Respondent’s submissions on the quantum of the discount for the Series One and Two offences
In the respondent’s submission, after having regard to the reasons for the delay in entering the pleas it was open to the sentencing judge to discount the sentences by 25 per cent as both an indication of contrition and remorse, and for their utilitarian value. Additionally, the respondent submitted that a lesser discount would only increase the sentence by a marginal amount.
The respondent submitted that if this Court were to find that the sentencing judge erred in relation to the discount applied by the sentencing judge, that it should exercise its residual discretion and decline to disturb the orders made at sentence. The basis for this submission was that the issues taken by the Prosecution in this appeal were not canvassed before the sentencing judge, and because a correcting of the error is likely to result in a marginal increase in the length of the sentence (RWS [30]).
Consideration
Principles
The principles relating to Prosecution appeals against sentence are well known and have been recently restated in R v Lee [2017] ACTCA 30 at [53]-[57] and R v Avery [2018] ACTCA 57 at [6] where the Court summarised the relevant authorities as follows:
(a) Although s 37E of the Supreme Court Act permits an appeal to the Court of Appeal from any order of the Supreme Court, courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly.
(b) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
(c) Examples of the occasions for the bringing of a Crown appeal are:
(i) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(ii) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;
(iii) to enable the courts to establish and maintain adequate standards of punishment for crime;
(iv) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected;
(v) to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that public confidence in the administration of justice can be maintained; and
(vi) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
(d) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.
(e) In resentencing after a successful Crown appeal, the Court is bound to consider the matters set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) and impose a sentence that was appropriate in the first place.
The primary purpose of a Prosecution appeal is to lay down principles for the governance and guidance of courts with the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green and Quinn) at [1]. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB) at [55] the High Court affirmed the following passage from Green and Quinn with respect to the limitations inherent in that purpose (at [36]):
That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.
Timeline of the pleas
The psychiatric assessment by Dr Furst was conducted on 17 October 2018. A subsequent report was produced dated 20 December 2018.
Series One and Two were adjourned from an earlier Criminal Case Conference in February 2019 prior to the callover on 18 February 2019 because of the then fresh matters (Series Three and Four) then pending in the Magistrates Court.
The respondent indicated that he would plead guilty to the Series One aggravated robbery offence on 30 April (before the Criminal Case Conference). The plea was entered on 29 May 2019 in the Supreme Court after a trial date had been set for 17 June 2019. The respondent indicated he would plead guilty to the Series Two offence on 8 May 2019 at case conference. That plea was also entered on 29 May. Pleas of guilty were entered in relation to the Series Three and Four offences on 14 May 2019 in the Magistrates Court following a plea of not guilty and the preparation of a brief of evidence.
Discounts
Under s 33(1)(j) of the Sentencing Act the Court is required to consider an offender’s plea of guilty and may impose a lesser penalty than it would otherwise have imposed had the offender not pleaded guilty (s 33(3)). In addition, the Court must also take into account the factors set out in s 35.
As to this first ground of appeal, in Cranfield the Court of Appeal relevantly stated (at [37]):
The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 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 common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. 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.
It is important to underline as the Court did in Cranfield that the discount is always a question of discretion. While the Court has generally applied predictable discounts, occasionally a plea in the Supreme Court attracts a higher discount. The respondent in this case received a higher discount at first instance in relation to the Series One and Two offences. This was well within the discretion available to the sentencing judge on the facts of this case. He was entitled to take into account that a delay occurred while the possibility of a mental impairment defence was investigated.
Additionally, in Blundell at [12] the Court of Appeal stated the following:
…[T]he result of a discount of 10% remains too low. Its defect is that it does not take full account of the utilitarian value of a ‘settlement’ following a Case Conference. The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.
When the relevant factors are examined there is an available discount of up to 20 per cent in accordance with Blundell to be considered along with the prior investigation of the possibility of a mental health defence referred to in the timeline. In these circumstances and taking all relevant facts into account it cannot be said that a discount of 25 per cent is outside the discretion of the sentencing judge.
It is apposite at this juncture to refer to the comments of Gageler J in Bugmy. In R v Ang the Court referred with approval to the comments of Gageler J in Bugmy at [51]-[54] and stated that confusion can occur when the Prosecution brings an appeal on grounds of both manifest inadequacy and alleging a specific error on the part of the sentencing judge (at [23]):
The Crown’s particulars of manifest inadequacy in this case, still framed as failures on the part of the sentencing judge, suggest an ongoing misunderstanding of the difference between a claim of specific error of the kind described in House v The King (1936) 55 CLR 499 and a claim of manifest inadequacy or excess. The former is an explicit claim that the sentencing process has gone wrong in an identifiable way, which might or might not have produced an inappropriate result; this is why an identifiable error in the sentencing process will only require re-sentencing if the appeal court considers that another sentence is appropriate (that is, that the outcome of the flawed process is also flawed).
This ground must fail. It has not been demonstrated that his Honour erred in relation to discount. The crux of this case must turn on the next ground as underlined in Bugmy and Ang, that is whether not the sentence is manifestly inadequate.
Before turning to the next ground it should not go unremarked that it is difficult to apprehend the basis for this failed ground against the background of the agreed Criminal Case Conference note. The notes from the Criminal Case Conference were unsealed by this Court on this appeal with the consent of both parties (T 3.10-45; 4.1-26). The document dated 8 May 2019 concerns the CC18/2149 (Damage property), CC18/2148 (Burglary), and CC18/6762 (Aggravated robbery) offences which make up the Series One and Two offences and states:
Offer to plead guilty to all counts on both indictments.
There have been negotiations between the Crown and representatives of Mr Stacker with a view to obtaining all the matters that would go into the ultimate sentence. The Crown will facilitate the bringing to the sentencing judge’s attention all of these matters.
The plea at this stage represents the culmination of all the negotiations between of the parties and is a result of those negotiations. Taking all those matters into consideration, the plea of guilty to the counts in the indictments is made at an early stage.
(Emphasis added)
Ground Two: Were the sentences manifestly inadequate?
It is appropriate to deal with the four asserted particulars of this ground in turn.
Appellant’s submissions in relation to the Series Two burglary offence
The Prosecution submitted that the six-month sentence in relation to CC2018/2148 (Burglary) was manifestly inadequate. In support of their submission, the appellant drew attention to the maximum penalty and the objective seriousness of the offence. In the Prosecution’s submission this sentence was particularly inadequate given that the offence was objectively more serious than a burglary of commercial or industrial premises, citing Simonds v The Queen [2013] ACTCA 13 at [54] (Simonds v The Queen) (AWS at [43]). The Prosecution nevertheless accepted “that there is a broad range of sentences imposed for offences of burglary” due to nature of the offence and the ways in which it may be committed (AWS [44]).
The Prosecution submitted that there was “nothing mitigating” about the burglary offence which would place it outside of the usual range, and submitted further that “there were a number of features that required a more severe sentence” (AWS [46]). The features identified by the Prosecution were that:
i. The offence was, to an extent, planned: the respondent had gloves with him and a screwdriver, which he used to force open a window to the house;
ii. The respondent has a lengthy criminal history for offences of dishonesty;
iii. The burglary was of a residential premises; and
iv. The respondent was on conditional liberty at the time of the offence as he was subject to a parole order for an offence of aggravated robbery.
In oral submissions the Prosecution acknowledged that the burglary not a sophisticated one. It was submitted that it had been planned to an extent, as the respondent was in possession of a pair of gloves and a screwdriver (T 14.35-45).
The Prosecution made clear in oral submissions that it was not suggesting that the offender’s criminal history was an aggravating factor, but rather that it had a number of effects upon what an appropriate sentence would be. The Prosecution’s submission was that “a more severe sentence was called for because of [the respondent’s] prior history” (T 15.10-20).
With respect to the respondent’s age and the factors set out in Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 (Azzopardi), the Prosecution submitted that while the offender was that being 25 years of age he was “young but not a youth” (T 17.44-48).
While again acknowledging the broad sentencing discretion available to the Court, the Prosecution submitted that the six month sentence (reduced from eight months) which had been imposed by the sentencing judge was outside of the range described by Refshauge J in Fusimalohi and was manifestly inadequate having regard to the respondent’s significant antecedents and the objective seriousness of the offence.
Respondent’s submissions in relation to the Series Two burglary offence
The respondent accepted that the sentencing judge did not deal with the burglary offence in a detailed way, but submitted that it was likely that his Honour took into account matters such as:
a) The sentences he was to impose in relation to the more serious aggravated robbery charges;
b) That there was no theft of property from the premises, and that there was minimal disturbance within those premises; and
c) That the damage to the fly screen door was contained within a separate charge and as such could not be taken into account as an aggravating factor (citing Refshauge J in Fusimalohi).
In the respondent’s submission only two of the factors which were said to enhance the seriousness of the offence as set out in R v Ponfield [2000] NSWCCA 62; 48 NSWLR 327 (Ponfield) are relevant to the present case, those being that the respondent was on conditional liberty, and that he has a prior record which includes similar offences (RWS [34]). In response to the Prosecution’s submissions regarding the planning of the offence, in the respondent’s submission the possession of a pair of gloves and a screwdriver did not suggest anything in the way of professional planning, organisation, or execution. Instead, the respondent submitted that the commission of the offence in broad daylight and in view of an eyewitness suggested a deficiency in the planning, organisation, and execution of the crime (RWS [35]).
It was submitted further that the appellant’s submissions (at AWS [48]) that the respondent’s lengthy criminal history for dishonesty offences should call for an increased sentence were erroneous. In the respondent’s submission the respondent’s criminal history should at best deny him the leniency which he might otherwise be afforded if he had no criminal history, or no relevant criminal history (RWS [36]). The respondent submitted in a similar vein that the residential, rather than commercial nature of the premises was not an aggravating circumstance, but rather a factor relevant to the assessment of the objective seriousness of the offence (RWS [37]).
The respondent acknowledged that sentencing statistics were not of a great deal of assistance, particularly in relation to an offence such as burglary which covers a broad range of conduct. Nevertheless, it was submitted that the ACT sentencing database shows that roughly 72 per cent of offenders have received a full-time custodial sentence, with around 23 per cent receiving a sentence of under 12 months imprisonment. It was submitted that this indicates that sentences outside of the range discussed by Refshauge J in Fusimalohi are not unusual (RWS [38]).
Consideration
In Fusimalohi Refshauge J stated at [49]-[52]:
To determine what “the collective wisdom of judges” actually is can be difficult in the case of a single offence, but where there are multiple offences, different almost always in nature and circumstances, it becomes almost impossible to find useful comparisons.
Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were present in the premises and the offender’s antecedents may all require a more severe sentence. There will be also other aggravating factors.
The NSW Court of Appeal issued a guideline judgment on the similar offence of break and enter under s 112(1) of the Crimes Act 1990 (NSW) in Ponfield, listing factors which were said to enhance the seriousness of that offence at [48].
In Simonds v The Queen the Court stated, in relation to the objective seriousness of a burglary offence (at [54]):
Burglaries at residential premises are frequently treated as being more serious than burglaries at commercial premises. In part, such treatment reflects the chance that intrusion into a residence may end in violence, and a deeply held belief that a person’s home should be safe.
In Love v The Queen [2012] ACTCA 8 at [13] Penfold J with whom Burns and North JJ agreed reviewed a table of cases showing sentences which had been imposed in relation to burglary offences and stated:
[T]hat sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances.
In Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45] the High Court reiterated the principle of totality as it had been expressed in Mill v The Queen (1988) 166 CLR 59 (Mill):
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. (citations omitted)
In Johnson v The Queen [2004] HCA 15; 78 ALJR 616 it was noted that the while the joint judgment in Mill expresses the orthodox practice of fixing a sentence for each offence and then aggregating those sentences before determining concurrency, that practice is not necessarily immutable, stating (at [26]):
Pearcedoes not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected…
(Emphasis added)
What emerges from a consideration of the cases described above in relation to totality is that this particular of manifest inadequacy is more appropriately dealt with when dealing with the particular concerning totality and concurrency.
Appellant’s submissions in relation to the Series Three aggravated robbery offence
The Prosecution submitted that the Series Three aggravated robbery was clearly much more serious than a typical case according with the factors set out in R vHenry [1999] NSWCCA 111; 46 NSWLR 346 (Henry). The Prosecution drew attention to the following features which were said to increase the objective seriousness of the offence in this case (AWS [55]):
(a)The offence was statutorily aggravated for two reasons: (1) it was committed in company, and (2) the offenders were in possession of weapons.
(b)The offence would have been statutorily aggravated if only one offender carried an offensive weapon. In this case, both the respondent and the co-offender had weapons.
(c)The weapons used were firearms. The respondent had a double barrel shotgun and the co-offender had a .22 calibre rifle with a shortened barrel and stock. When the double barrel shotgun used by the respondent was later seized, there were no cartridges present in the chambers, it did not have firing pins, and the right-side of the hammer could not be cocked. However, also located were 27 shotgun cartridges which were compatible with the gun. Even if the shotgun could not be discharged at the time of the offence, that was a not a fact known by the victim. When the rifle was later seized, it was found to have two live rounds of ammunition in the magazine well and a spent cartridge case stuck in the chamber.
(d)During the offence, the respondent confronted Mr Fraser, pointed the shotgun at him, had his finger on the trigger, and when Mr Fraser started to run away, shouted “stop or I’ll shoot”.
(e)The offence involved actual violence (albeit by the co-offender) in addition to threats of violence. After the respondent and the co-offender drove away from the scene, the victim followed them in his own car, was forced to stop and then was confronted by the co-offender, who pointed his rifle at the victim and pulled the trigger. The firearm failed to discharge. The co-offender then struck Mr Fraser with the butt of the rifle, before getting back into his own car and driving off with the respondent. Those facts constitute part of the whole incident that makes up the aggravated robbery (T4.21-32).
(f)The offence was pre-meditated, plainly planned and amounted to an ambush. The respondent and the co-offender had arrived at the premises early in the morning at about 5:30am with their weapons, and, whilst armed, waited for someone to arrive.
(g)The victim was thus in a vulnerable position in that he was attacked at random, and without any warning or provocation.
(h)The impact on the victim has been devastating and profound.
(i)The respondent has an extensive criminal history which shows this offence (as well as the others for which he was sentenced) is not an uncharacteristic aberration and that the respondent demonstrates a continuing attitude of disobedience of the law, such that specific deterrence and protection of society are key sentencing considerations: Veen v The Queen (No 2) 163 CLR 465 at 477.
(j)At the time of the offence, the respondent was on parole for an offence of aggravated robbery. This is a significantly aggravating factor: Monfries at [217].
In respect of the missing firing pins in the shotgun used by the respondent, the Prosecution submitted that the firearms were found later in the day that the robbery occurred, and as such the absence of the firing pins when the shotgun was discovered could not constitute a mitigating circumstance with respect to the robbery. It was submitted that this was so because their absence at the time of the robbery was incapable of being proven, and as such any submission that they were absent at the time of the robbery could not be taken into account (T 20.25-35; T 21.3-10).
In further written submissions the Prosecution brought the recent decision of Strbak v The Queen [2020] HCA 10; 94 ALJR 374 (Strbak) to the attention of the Court. That decision clarifies (at [13]) that “When sentencing an offender where there is a dispute as to the facts constituting the offence, the judge should not draw an adverse inference by reason of the offender's failure to give evidence save in the rare and exceptional circumstances explained in the joint reasons in Azzopardi v The Queen.” This is due to the accusatorial nature of the proceedings (Strbak at [31]). The Prosecution noted that at the hearing of this appeal an issue had arisen as to whether the gun which had been in the possession of the respondent at the time of the aggravated robbery was loaded, and that there had been a suggestion that negative inferences may have been able to be drawn on the basis that the respondent did not give evidence.
The question of the accumulation of the sentences and the question of the head sentence are of course inevitably inextricably intertwined in this case. The crux of the principle of totality required the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate was just and appropriate. Here there were offences which were discrete and independent such that the sentence did not comprehend and reflect the criminality of all offences. This was not a single episode of criminality. The Series Two burglary offence and the Series One robbery were made wholly concurrent. These offences occurred three days apart, involved different offending and different victims. The complete concurrency led to a manifestly inadequate total sentence. The Court must avoid any suggestion that there is a discount for multiple offending.
In light of this finding it is not necessary to deal with the particular concerning the non-parole period. The submissions are nevertheless set out for completeness.
Appellant’s submissions in relation to the non-parole period
In the Prosecution’s submission, the non-parole period of two years and six months imposed by the sentencing judge did not adequately reflect the objective seriousness of the offences. It was submitted further that the relationship between the head sentence and the non-parole period was manifestly inadequate. The Prosecution submitted that despite the observations made in Taylor v The Queen [2014] ACTCA 9 and in Millard v The Queen [2016] ACTCA 14 at [65] the sentencing judge did not provide reasons for imposing a non-parole period of 50 per cent which was noted as being at the lowest end of the ordinary range (AWS [76]).
The Prosecution acknowledged that the sentencing judge had stated in his reasons (at [18]) “I do however accept that the death of his partner played a part in his return to crime and that his future, in terms of rehabilitation, is not as bleak as suggested by the Crown”. However the Prosecution noted that the offences were committed whilst the respondent was subject to a parole order, and the Series Three and Four offences were committed after bail had been granted for the purpose of the respondent attending a rehabilitation program. The Prosecution submitted that for these reasons the commission of the offences did not bode well for prospects of rehabilitation, noting further that the report of Dr Furst had assessed the respondent’s risk of reoffending at a moderate to high level (AWS [77]).
The appellant’s ultimate submission on this issue was that the length of the non-parole period, including its relationship with the head sentence was manifestly inadequate on the basis that it was below the necessary minimum period for justice to be served (AWS [78]).
Respondent’s submissions in relation to the non-parole period
The respondent acknowledged that the sentencing judge did not include reasons for imposing a 50 per cent non-parole period. In the respondent’s submission the authorities cited by the Prosecution in their submissions disclose that 50 per cent still falls within the general range of 50 to 70 percent (RWS [50]).
The respondent submitted that the reasons which the sentencing judge considered before coming to a non-parole period of 50 per cent may have been the same or similar to those subjective circumstances which also may have influenced his decision in relation to the length and accumulation of the sentences. The respondent drew attention to:
a) The respondent’s emotional state at the time of the commission of the offences, as discussed in the Furst report and accepted by the sentencing judge in his reasons (at [18]) as playing a part in the respondent’s return to criminal activity.
b) The respondent’s relative youth, noting that he was 23 years old at the time of the Series One and Two offences, and 24 at the time of the Series Three and Four offences (citing the sentencing principles with respect to young offenders as set out in Azzopardi at [34]).
c) The respondent’s past efforts to participate in drug rehabilitation programs, including his most recent successful completion of the Triple Care Farm program.
d) The respondent’s prospects of rehabilitation, noting that the sentencing judge had stated in his reasons that he was not prepared to write the respondent off as beyond redemption (Primary Judgment at [14]) and that he did not consider the respondent’s prospects of rehabilitation were as bleak as had been suggested by the Crown (at [18]).
e) The respondent’s history of mental disorders and borderline intellectual function as identified in the Furst report, noting that they fell short of giving rise to the principles in R v Verdins [2007] VSCA 102; 16 VR 269 at [32].
In support of the final point, the respondent cited s 33(1)(m) of the Sentencing Act, which requires the Court to consider an offender’s cultural background, character, antecedents, age, and physical or mental condition. The respondent also cited Monfries where Murrell CJ stated (at [67]):
Where a mental health condition does not reduce moral culpability, does not render an offender an inappropriate vehicle for a message of general deterrence or does not otherwise have particular relevance to a specific sentencing purpose, and does not mean that the offender will suffer more in custody, the mental health condition may nevertheless be considered as part of an offender’s general subjective circumstances, and may inform the sentencing outcome in the same way as other subjective circumstances do so.
Consideration
As set out above, manifest inadequacy having been established on the basis of the head sentence and totality, it is not necessary to deal with this particular of alleged manifest inadequacy. It is now appropriate to turn to the question of the residual discretion.
Residual discretion
In this jurisdiction there is a discretion conferred by s 37O of the Supreme Court Act for the Court of Appeal to decline to resentence an offender despite a finding of manifest inadequacy: Nicholas at [116]-[118].
Appellant’s submissions on the residual discretion
In the Prosecution’s submission this Court should refrain from exercising the residual discretion for the following reasons:
a) The appeal was lodged without delay.
b) The Prosecution did not contribute to the errors which have been pleaded.
c) While the co-offender to the respondent’s Series One offences received an identical term of imprisonment (R v Winters [2019] ACTSC 245), the Prosecution did not appeal against the individual sentence for that matter.
d) In the Prosecution’s submission the sentence which was imposed was inadequate to the extent that its correction would not constitute tinkering.
e) In the Prosecution’s submission the appeal raises broader questions with respect to the maximum penalty and the appropriate sentencing range for aggravated robbery offences, particularly those involving firearms.
The Prosecution submitted more broadly that the sentence imposed was so inadequate that it should not be allowed to stand in order to maintain public confidence in the administration of justice or perpetuate the manifest injustice (citing R v Hall [2017] NSWCCA 313; Munda v Western Australia [2013] HCA 38; 249 CLR 600).
Respondent’s submissions on the residual discretion
The respondent submitted that this Court should exercise the residual discretion and decline to disturb the orders of the sentencing judge given that the issues raised by the Prosecution were not canvassed before the sentencing judge, and that the correction of any error would result only in a marginal increase in sentence.
It was submitted further that the sentencing judge had clearly been sympathetic to the respondent’s circumstances, noting that this had been noted in the primary judgment at [24]. In support of this submission the respondent cited King CJ in Osenkowski at 212-213.
The respondent’s ultimate submission was that the Prosecution has not established its grounds of appeal, or if it has, that the Court’s residual discretion should be exercised and the appeal dismissed (RWS [52]-[54]).
The residual discretion in relation to the COVID-19 pandemic
The Court requested that both the appellant and the respondent provide further written submissions on the question of COVID-19 and the residual discretion to decline to interfere with a sentence.
Appellant’s supplementary submissions
The Prosecution’s submissions were accompanied by an affidavit of Brendan Donnelly, affirmed 24 April 2020 (the Donnelly affidavit). Annexure A to that affidavit is a letter under the hand of Ms Karen Grace, the executive director of Mental Health, Justice Health and Alcohol and Drug Service addressed to the Director of Public Prosecutions dated 15 April 2020 (the Justice Health letter). Annexure B is a press release from the ACT Government Department of Health dated 13 April 2020 titled “COVID-19 update – 13 April 2020. Annexure C is a press release from the ACT Government Department of Health dated 23 April 2020 titled “COVID-19 update – 23 April 2020.
It was submitted that the Court can receive this evidence for the purpose of considering the residual discretion (citing R v Miller [2019] ACTCA 25 at [47]; R v Summerfield [2018] ACTCA 20 at [135]; [137]). It was submitted that to the extent that r 5606(2) to r 5606(5) of the Court Procedures Rules have not been complied with, that an order should be made pursuant to r 5606(1)(b) that those sub-rules do not apply, or that they are otherwise dispensed with under r 6(1). The Prosecution submitted that an order in those terms is appropriate given that this is a matter about which the parties were requested to provide submissions and were not contemplated until after oral submissions had concluded. That order was made accordingly by the Court.
The appellant submitted that this question raises two issues:
a) Whether the present COVID-19 pandemic and/or the impact of it is a relevant factor for the Court when considering whether to exercise the residual discretion to decline to intervene.
b) If it is a relevant factor, to what extent it should be taken into account for the purposes of this matter should the Court find error in the respondent’s sentence.
The Prosecution noted the broad categories of matters which may influence the Court when considering whether to exercise the residual discretion which were described by this Court recently in Nicholas at [111]. The Prosecution accepted that despite these broad categories that “the residual discretion may be exercised for any purpose that the appellate court considers appropriate”: (Nicholas at [119]) and that those categories of matters which may be relevant are not exhaustive. It was submitted that the categories of matters were broad enough that the impact of the COVID-19 pandemic could be taken into account. The appellant noted that the NSW Court of Criminal Appeal had done so in RC v R; R v RC [2020] NSWCCA 76 (RC v R) where that Court did exercise its discretion not to interfere. It was submitted that the exercise of the discretion must be considered in the light and circumstances of the evidence and particular factual circumstances of each case.
The Prosecution submitted that the circumstances of the respondent in RC v R were “clearly distinguishable” from the present case, but nevertheless demonstrated that COVID-19 was a factor that could be taken into account. It was submitted that the relevance and weight of that impact would depend on the facts of the case. The Prosecution submitted that a similar point had been made in the context of resentencing following a successful sentencing appeal in Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] (Brown (aka Davis) v The Queen).
The Prosecution submitted that when assessing whether, and if so to what extent, the impact on the respondent will be, that it is necessary for the Court to consider how COVID-19 affects prisoners at the Alexander Maconochie Centre (AMC) generally, and the likely length of time COVID-19 will have a material impact upon him during his time at the AMC.
In relation to the impact of COVID-19 upon the AMC it was submitted that this impact could be broadly divided into health consequences and social consequences.
In relation to the health consequences the Prosecution relied upon the letter of Ms Grace, contained in Annexure A of the Donnelly affidavit. This letter recognises that closed environments are at increased risk of infection, however it also states that “significant preventative and contingency planning and preparation has, and will continue to be undertaken to minimise and manage the risk to correctional detainees, staff and visitors.”
It was submitted that the preparations are consistent with the obligations imposed upon the Director-General of ACT Corrective Services under ss 53(1) and 53(2) of the Corrections Management Act 2007 (ACT) (CMA). In particular the Prosecution noted the following measures being taken, as described in the Justice Health letter:
a) Detainees and new arrivals are screen for acute respiratory symptoms and contact with known cases.
b) Those with a positive screening are medically isolated and receive ongoing daily assessment.
c) Detainees requiring medical care are treated at Canberra hospital and receive equivalent care to the community.
d) Mental health treatment is continuing for those with major mental illness and risk of suicide and self-harm.
e) Detainees who are immunosuppressed, aged, or have chronic illness will be cared for in consultation with Canberra Health Services COVID-19 clinical team.
f) High-risk detainees and those with complex health needs have been identified and safe-guarding actions have been put in place should there be an outbreak.
The Prosecution also drew the Court’s attention to the powers under ss 54 and 205 of the CMA which allow the Director-General to direct that a detainee be transferred to a health facility where necessary, and to issue a full-time detainee with a local leave permit where appropriate, generally for long-term medical treatment, palliative care, or other compassionate reasons.
It was submitted that given the measures and powers available as outlined above that the Court would be satisfied that the AMC is managing the risk appropriately. It was submitted further that there is no evidence before the Court suggesting that the respondent is in a category of high-risk individuals. The Prosecution noted that treatment of individuals with major mental health issues or at risk of suicide or self-harm has been identified as a critical service and its continuity is ensured. The respondent submitted that in light of all of the health measures being taken, the possible health sentences would not lead to the Court to exercise the residual discretion.
The Prosecution submitted that the possible social consequences of the COVID-19 pandemic would not lead to the exercise of the residual discretion for the following reasons.
The suspension of visits to the AMC may make a custodial sentence more onerous, but whether it would do so would depend on the individual detainee.
As to the extent that the issues are relevant to the exercise of the discretion, the Prosecution submitted:
a) The length of time restrictions would continue is likely to constitute a small portion of the respondent’s head-sentence and likely be entirely within the non-parole period.
b) Audio-visual contact is being provided for by statutory instrument under the Corrections Management (Use of Audio-Visual Equipment for Visits) Operating Procedure 2020 made under ss 14 and 16 of the CMA in addition to the availability of telephone and email contacts. The pre-COVID policy being a guaranteed 30 minute contact visit each week with a family member.
c) Restrictions on visitors attending prisons is necessary for the normal functions of prisons and purely within the remit of the executive. The necessity of prison lockdowns could not be predicted nor taken into account by a sentencing judge when determining a sentence.
It was submitted that the period during which the COVID-19 pandemic has so far occurred has been wholly within the respondent’s non-parole period and as such he would have been in custody notwithstanding this appeal. It was submitted that this was not a case where a successful appeal would place an offender in custody who would not otherwise have been in custody during that period.
The Prosecution submitted that the issues relating to the COVID-19 pandemic, whether considered individually or in isolation, do not favour the exercise of the residual discretion, and are outweighed by other matters which favour resentencing contained in the Prosecution’s substantive submissions.
Respondent’s supplementary submissions
The respondent’s submissions were accompanied by an affidavit of Todd Trotter, affirmed 30 April 2020 (the Trotter Affidavit). Annexure A to that affidavit is a document titled Notice to Visitors: ‘Video visit sessions at the AMC’ from the Commissioner of ACT Corrective Services dated 26 March 2020 (the Notice to Visitors). Annexure B is a document titled ‘Report of Review of a Correctional Service, ‘The Care and Management of Remandees at the Alexander Maconochie Centre 2018’ from the ACT Inspector of Correctional Services dated February 2019.
The respondent concurred with the Prosecution’s submission as to the two questions which require the Court’s determination in relation to this issue.
As to whether the COVID-19 pandemic may be taken into account as a factor in determining whether the Court should exercise its residual discretion the respondent agreed with the Prosecution’s ultimate submission that the Court may do so. It was similarly submitted that RC v R was demonstrative of this.
As to whether the Court should exercise its residual discretion it was submitted that, in relation to health issues, the community at liberty have the ability to individually take measures to protect themselves, whereas detainees cannot do so with the same autonomy. The respondent submitted that detainees are subject to the AMC having adequate resources to adequately cope with an outbreak were one to occur.
With respect to the Justice Health letter, the respondent submitted that it “is rehearsed, it is polished, and lack substance”. The respondent noted the following measures identified within the letter:
a) Dr Lagios is leading the development of a COVID-19 guideline. The respondent submitted that there is no further detail regarding the contents of this guideline or how operationally it will prevent the spread of COVID-19.
b) There is a weekly meeting with stakeholders.
c) New detainees arriving at the AMC are screened for acute respiratory symptoms and recent contact with confirmed cases. The respondent noted that not every new detainee is tested, and there is no information as to whether staff or other members of the community entering the AMC are tested.
d) Detainees tested for COVID-19 are isolated. The respondent submitted that there is insufficient detail as to how this is to occur. The respondent noted that as at 28 April 2020 the AMC houses 433 detainees, with a design capacity for 424 detainees. It was submitted that given the pre-existing overcrowding issue in the AMC that it is difficult to envisage how recommended indoor distancing of 4m2 per person is adhered to.
Counsel for the respondent conceded that the respondent is not within a vulnerable or at-risk age category and does not have any respiratory illnesses, or longstanding health conditions. The respondent noted that COVID-19 can affect a person of any age or health-status and as such the risk of harm may be reduced but is nevertheless present, as is the fear and anxiety attached to that risk.
Referring to the Notice to Visitors, the respondent noted that it acknowledges that the restriction on social visits would have a significant impact on detainees and their loved ones but that it was a necessary measure to assist in limiting risk to staff and detainees, and visitors. The respondent referred to R v Stott (No 2) [2020] ACTSC 62 (Stott (No 2)) at [9] in which Elkaim J referred to the Notice to Visitors and acknowledged the concern regarding this risk.
The respondent conceded that the use of ‘virtual visits’ has meant that detainee contact with their families and loved ones has not been completely prevented. However, it was submitted that the “form and substance” of those visits has changed, with an associated loss of personal connectivity and intimacy and no indication as to when these arrangements will change [RWS 17]. The respondent referred to Stott (No 2) at [13] where Elkaim J acknowledged the relevance of the curtailment of visiting rights in the context of an application for bail. Additionally, the respondent noted that the ‘virtual visits’ scheme is reliant upon the families of detainees having access to appropriate technology.
The respondent submitted that the Victorian Court of Appeal has held that hardship to third parties such as families or dependents should be taken into account when sentencing, and that this consideration is reflected in ACT sentencing legislation: Markovic v The Queen [2010] VSCA 105; 200 A Crim R 510 (Markovic); s 33(3)(o) Sentencing Act. Counsel for the respondent noted that in Brown (aka Davis) v The Queen counsel for the applicant had asked the Court to infer that prisoners and their families are suffering a level of anxiety “perhaps somewhat akin to a Markovic burden” [RWS 21].
The respondent also drew the Court’s attention to the recent sentence of DPP v Tennison [2020] VCC 343 at [36] in which Lyon JA stated that a custodial sentence would be more difficult as a result of the restrictions associated with the pandemic in that jurisdiction. The respondent conceded that detainees of the AMC have retained access to telephone calls, but noted the burden associated with an increase in demand.
The respondent’s ultimate submission on this point was that the prohibition on visitors, in addition to the other restrictions currently being imposed at the AMC relating to movements and activities gives rise to a more onerous and harsh experience while in custody. It was submitted further that the prohibition on social visits places undue stress on detainees and their families and as such a custodial sentence should be “considered as hardship to the offender’s family, or dependants” [RWS 24].
The respondent noted the uncertainty of the future impact of COVID-19 upon the AMC with respect to how long the current measures will remain in place. It was submitted that the statistics contained in Annexure B to the Donnelly affidavit “does little to advance an argument about the potential future for AMC restrictions”. It was submitted that the only certainty is the lack of a fixed end date, and that in the absence of a vaccine the risk of contagion remains. It was submitted that no certainty could be given as to how long this risk would continue, and thus how long the restrictions would remain in place.
The respondent accepted that the extent of the impact of the AMC restrictions would vary as between detainees, however noted that it was uncertain whether the restrictions would be in place for a short time, only for the period of the respondent’s non-parole period, or for the entirety of his head sentence. It was submitted that while the restrictions remain in place, the sentence will be more onerous for the respondent.
It was submitted that if the Court is of the view that the restrictions have made the respondent’s incarceration more onerous than it otherwise would have been, then the Court should exercise its residual discretion. Counsel for the respondent acknowledged that the COVID-19 pandemic is only one consideration and cannot be considered in isolation. It was submitted that when regard was had to all of the factors, including the considerations outlined in the respondent’s substantive submissions, that the Court should exercise its residual discretion.
Consideration
When the Court makes a finding of manifest inadequacy it still may exercise its discretion under s 37O of the Supreme Court Act to decline to resentence an offender: Nicholas at [116]-[118]; Green and Quinn.
If the sentence is to be increased, it is for the Prosecution to not only identify an appealable error in the primary decision, but must then in addition negate any reason why the residual discretion not to interfere should be exercised: See CMB; Nicholas at [117]. It is important to underline that this is a hurdle for the Prosecution to overcome: CMB at [36]. The residual discretion may be exercised for any purpose that the Court considers appropriate: Nicholas at [119]. There a number of factors which may influence a Court to exercise this discretion, including but not limited to:
a) The conduct of the Crown in lodging the appeal: R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [30] (R v Hernando); R v JW [2010] NSWCCA 49 at [92] (R v JW); R v Bugmy (No 2) [2014] NSWCCA 322;
b) Whether resentencing would create disparity with a co-offender: Green and Quinn at [37];
c) The fact that were the Court to impose a substituted sentence, the increase would be so slight as to constitute ‘tinkering’: Dinsdale at [62]; R v Woodland [2007] NSWCCA 29 at [53];
d) The guidance provided to sentencing judges will be limited and will result in injustice: Green and Quinn at [2]; CMB at [69];
e) The appeal was conducted on a different basis from that pursued at first instance: R v JW at [92];
f) Delay in the resolution of the appeal: R v Price [2004] NSWCCA 186 at [60]; R v Cheung [2010] NSWCCA 244; 203 A Crim R 398 at [151]; R v Hersi [2010] NSWCCA 57 at [55]; Cumberland v The Queen [2020] HCA 21 at [6];
g) The fact that a non-custodial sentence was imposed on the offender at first instance: R v Y [2002] NSWCCA 191 at [34];
h) The fact that a non-parole period imposed at first instance has already expired: R v Hernando at [30]; or the fact that the respondent’s release on parole is imminent: Green and Quinn at [43];
i) The fact that the offender has made substantial progress towards rehabilitation: CMB.
The factors that bear upon the residual discretion are not closed: R v JW at [129]; Nicholas at [119]. It is accepted by both the appellant and the respondent that the residual discretion may be exercised for any purpose the appellate Court considers appropriate: Nicholas at [119]. It is also accepted by both the appellant and the respondent that the impact of COVID-19 may be taken into account. Indeed, the NSW Court of Criminal Appeal in RC v R referred to by both parties has done so in relation to the residual discretion.
In relation to the impact of COVID-19 it is necessary in the individual case to take into account both health consequences and social consequences. On the evidence before the Court it appears the AMC is managing the health risks appropriately at this stage. There is no evidence before the Court that the respondent is in a high-risk category in relation to physical health consequences. The social consequences are nevertheless of significance in this case. In particular I note Stott (No 2) where Elkaim J stated the following in relation to bail, which is equally apposite to sentence at [13]:
… I think the curtailment of visiting rights is a relevant factor and, personal to the applicant, does amount to a change of circumstances. Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the AMC.
Courts around Australia have made a number of statements concerning COVID-19 and sentencing. Suspension of visits make incarceration more onerous: Scott v R [2020] NSWCCA 81 at [166]. Prison systems remain COVID-19 free; community infection rates are trending downwards – However, it is acknowledged that while the risk of infection remains and related restrictions are in place the consequences for prisoners are significant: DPP v Kotiau [2020] VSC 245 at [75]. Absence of visits from family and friends is an additional hardship that must be synthesised along with other matters: R v Despotovski [2020] NSWDC 110. See also Brown (aka Davis) v The Queen at [48].
The respondent’s ultimate submission on this point was that the prohibition on visitors, in addition to the other restrictions currently being imposed at the AMC relating to movements and activities gives rise to a more onerous and harsh experience while in custody. It was submitted further that the prohibition on social visits places undue stress on detainees [RWS 24]. This submission is accepted. It is relevant in this context that the sentencing judge referred to his previous sentencing of the respondent: Primary Judgment at [12]. He there noted the offender’s close relationship with his mother: R v Stacker [2017] ACTSC 240 at [9]. Taking into account all relevant matters discussed above I am of the view that these restrictions make the respondent’s incarceration more onerous.
It is also important to bear in mind in considering the residual discretion the important admonition against what has become known as ‘tinkering’ by Courts of Appeal in response to Prosecution appeals: see The Queen v Robertson [2010] ACTCA 19; The Queen v Riddle [2010] ACTCA 8. In light of the consequences concerning the AMC and COVID-19 it is therefore appropriate to exercise the Court’s residual discretion not to intervene and resentence. I am fortified in this conclusion by the injunction against slight readjustments of sentence on Prosecution appeals. In this case it would involve an adjustment for cumulation and concurrency. In the context of additional hardship in custody it is appropriate to exercise the residual discretion not to intervene, also taking into account the delay in the resolution of the appeal. I would not resentence in the particular circumstances of this case, while noting that the sentence is manifestly inadequate.
It must be underlined in conclusion that the primary purpose of a Prosecution appeal is to lay down principles for the governance and guidance of Courts. The relevant principles that concern the manifest inadequacy in this case relate to totality, cumulation, and concurrence. Complete concurrence was not appropriate in this case. Nevertheless, the purpose of the Prosecution appeal can be fulfilled by indicating that complete concurrence was plainly wrong.
As the High Court stated in HT v The Queen [2019] HCA 40 at [51] where the plurality (Kiefel CJ, Bell, and Keane with whom Nettle and Edelman JJ agreed regarding the exercise of the residual discretion) stated:
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 in my view is such a case.
In accordance with CMB the onus is on the Prosecution to negate the factors relating to residual discretion. The Prosecution has not discharged that onus.
Orders
The appeal should be dismissed.
| I certify that the preceding one-hundred-and-eight-six [186] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas‑Karlsson. Associate: Date: |
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Amendments
25 June 2025 On the coverpage, in the Cases Cited portion, replace “[2009] ACTCA 19” with “[2010] ACTCA 19”.
At [215], replace “[2009] ACTCA 19” with “[2010] ACTCA 19”.
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