R v White
[2023] ACTCA 35
•13 September 2023
SUPREMECOURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: R v White
Citation: [2023] ACTCA 35
Hearing Date: 3 March 2023
Decision Date: 13 September 2023
Before: Mossop, Loukas-Karlsson & Rangiah JJ
Decision: 1. Appeal allowed.
2.The sentences imposed on 26 May 2022 are set aside.
3.The offender is resentenced as follows:
(a) On the charge of robbery (5 December 2021) (CC2022/768) the offender is convicted and sentenced to
13 months and 15 days’ imprisonment (reduced from 18 months), to commence on 7 March 2022 and end on 21 April 2023.
(b) On the charge of aggravated robbery (6 December 2021) (CC2022/765) the offender is convicted and sentenced to 31 months and 15 days’ imprisonment (reduced from 42 months), to commence on 7 June 2022 and end on 21 January 2025.
(c) On the charge of aggravated robbery (6 December 2021) (CC2022/766) the offender is convicted and sentenced to 27 months’ imprisonment (reduced from 36 months), to commence on 21 May 2023 and end on 20 August 2025.
(d) On the charge of common assault (6 December 2021) (CC2022/771) the offender is convicted and sentenced to 4 months and 15 days’ imprisonment (reduced from six months), to commence on 7 May 2025 and end on 21 September 2025.
(e) On the charge of robbery (6 December 2021) (CC2022/770) the offender is convicted and sentenced to 15 months’ imprisonment (reduced from 20 months), to commence on 21 September 2024 and end on 20 December 2025.
(f) On the charge of aggravated robbery (6 December 2021) (CC2022/767) the offender is convicted and sentenced to 27 months’ imprisonment (reduced from 36 months), to commence on 21 April 2024 and end on 20 July 2026.
(g) On the charge of robbery (6 December 2021) (CC2022/769) the offender is convicted and sentenced to 15 months’ imprisonment (reduced from 20 months) to commence on 21 July 2025 and end on 20 October 2026.
(h) On the charge of attempted theft (7 December 2021) (CC2021/11757) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 7 October 2026 and end on 28 October 2026.
(i) On the charge of aggravated burglary (7 December 2021) (CC2021/11756) the offender is convicted and sentenced to 17 months and 7 days’ imprisonment (reduced from 22 months), to commence on 21 September 2025 and end on 27 February 2027.
(j) On the charge of minor theft (7 December 2021) (CC2021/11760) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 7 February 2027 and end on 28 February 2027.
(k) On the charge of possess prohibited substance (7 December 2021) (CC2022/2285) the offender is convicted and sentenced to 22 days’ imprisonment (reduced from four weeks), to commence on 13 February 2027 and end on 6 March 2027.
(l) The non-parole commences on 7 March 2022 and end on 6 March 2025.
Catchwords: APPEAL – CRIMINAL LAW – Crown appeal against sentence –
aggravated robbery, common assault and theft-related offences – whether individual sentences, degree of concurrency and total effective sentence was manifestly inadequate – whether initial sentence amounted to a “discount for multiple offending” – focus of enquiry is the total effective sentence – length of individual sentences and degree of concurrency relevant but not determinative – high degree of concurrency failed to reflect totality of criminality involved in the separate offences committed against different victims – total effective sentence found to be manifestly inadequate – consideration of residual discretion – appeal allowed – offender re-sentenced
Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(c), 33(1)(za)
Cases Cited: Barrett v The Queen [2016] ACTCA 38
Betts v The Queen [2016] HCA 25; 258 CLR 420
Bugmy v The Queen [2013] HCA 37; 249 CLR 571Carroll v The Queen [2009] HCA 13; 254 CLR 259
CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
DL v The Queen [2018] HCA 32; 265 CLR 215
Hili v The Queen [2010] HCA 45; 242 CLR 520
Johnson v The Queen [2004] HCA 15; 218 CLR 451
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v R [2005] HCA 25; 228 CLR 357
Mill v The Queen [1988] 166 CLR 59Nguyen v The Queen [2016] HCA 17; 256 CLR 656
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] 194 CLR 610
R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32
R v Duffy [2014] ACTCA 53; 297 FLR 359R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Jarrold [2010] NSWCCA 69
R v Lindsay [2020] ACTCA 25
R v Lovelock [2014] ACTSC 229
R v Robertson [2010] ACTCA 19; 174 ACTR 32R v Scott [2005] NSWCCA 152
R v Tonari [2014] NSWCCA 232
Royer v The State of Western Australia [2009] WASCA 139
The Queen v Miller [2019] ACTCA 25
Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:The Queen (Appellant) Kodie White (Respondent)
Representation: Counsel
A Williamson SC (Appellant) S McLaughlin (Respondent)
Solicitors
Director of Public Prosecutions Legal Aid (Respondent)
File Number: ACTCA 32 of 2022
Decision Under Appeal: Court/Tribunal: ACT Supreme Court
Before: Elkaim J Date of Decision: 26 May 2022 Case Title: R v White
Citation: [2022] ACTSC 122
THE COURT:
Introduction
1․ In what was described by the sentencing judge as “a single drug induced criminal spree”, the respondent committed 11 offences over three days between 5 and 8 December 2021. The offences were three aggravated robberies, three robberies and one offence each of common assault, attempted theft, aggravated burglary, minor theft and possessing a prohibited substance.
2․ On 26 May 2022, the respondent was sentenced to a total effective term of imprisonment of two years, nine months and seven days, with a non-parole period of one year, seven months and 29 days.
3․ The Crown has appealed on the ground that the sentences are manifestly inadequate.
4․ We will summarise the reasons of the primary judge and the submissions before proceeding to consider the submissions.
The reasons of the primary judge
5․ The primary judge summarised the circumstances of the offences as follows:
5.On 5 December 2021 (a robbery charge) the offender approached a man carrying a shopping bag. He threatened him with a gun, demanding his wallet. The victim said he did not have any cash and that his bag contained only his Christmas shopping. The offender next asked for some “weed”. After all of his demands were rejected, the offender left but heard the victim talking on his mobile phone. He returned to the victim and demanded the phone. He also took some of the contents of the shopping bag. They were toys presumably intended as Christmas presents. The victim ran away.
6.On 6 December 2021 the offender confronted a different victim at a block of units (an aggravated robbery charge). He was armed with a knife which had a blade of about 20 centimetres in length. He demanded everything the victim had. The victim fell over onto a step. The offender head-butted him and placed his knife on the victim’s neck. The victim handed over his phone, wallet, trousers, shirt and shoes. The offender dressed himself in the victim’s clothes. The offender told the victim that he would be killed if he disclosed the offending.
7.About an hour later the offender accosted a man in the street (an aggravated robbery charge). He again threatened him with a knife. He demanded the man’s necklace which was handed over.
8.After about another hour the offender entered a grocery store in Narrabundah (the common assault charge). A man and his three-year-old daughter were in the store. They left and began walking down the street. The offender followed them. He was agitated and confronted the victim suggesting that he had been “testing me”. After a selection of threats were made the offender walked away.
9.A little later, yet another victim was standing in his driveway (a robbery charge). The victim was putting his daughter in a motor car. The offender confronted him in an intimidating and threatening manner. He spat at the victim. He suggested the victim was a murderer and that police were on the way. He threatened to kill the victim and his young daughter. He demanded a wallet which was provided to him. The threats continued nevertheless. The offender then walked away.
10.About 10 minutes later another victim was washing his car (an aggravated robbery charge). The offender asked him for a cigarette. Then he asked for the entire packet. Both were handed over. The offender withdrew a knife and demanded the victim’s cash. He threatened to stab the victim. The offender went into the victim’s garage. The victim ran into the house and closed the door. He called the police.
11.In the early afternoon of the same day the offender boarded a bus on which a 15-year--old male was seated (a robbery charge). The offender sat next to the male and began to abuse him. He accused him of rape. He told the young person to take off his hat, jumper and shoes. He demanded his telephone. The young man, no doubt terrified, handed over a baseball cap, Adidas shoes, jumper and a mobile phone. There was a bankcard in a wallet attached to the phone. The offender then moved seats but continued to threaten the youth.
12.On 7 December 2021, in the evening, a man left his apartment block (attempted theft charge). Two offenders, including this offender, approached him and demanded his mobile phone. The man fled.
13.The man later saw the offenders leaving an apartment block with a number of items, presumably stolen. It transpired that they had been stolen from a nearby residence (aggravated burglary and minor theft charges). The possession of a prohibited substance charge arises from a bag containing 0.230 grams of heroin found with the goods stolen from the residence. The origin of the bag is unknown.
6․ The primary judge assessed the aggravated robberies and the aggravated burglary as approaching “medium objective seriousness”. His Honour observed that the use of a knife was an important consideration.
7․ The primary judge noted that the offender was born in 2000 (he was 22 years of age at the time of sentencing), but had already accumulated a criminal record. He is of indigenous heritage. His mother suffered from schizophrenia and was often hospitalised. He had a very disturbed upbringing, where he was exposed to drinking, drugs and abuse. He suffered from ADHD and possibly PTSD as a consequence of the trauma of his upbringing. The respondent left school in Year 9 and had never been employed.
8․ The respondent started to use cannabis when he was very young and then heroin and methamphetamine. The respondent attributed his offending to his use of drugs. His Honour considered that this was consistent with the almost deranged manner in which the offences were committed and his limited memory of what had occurred.
9․ The Court was provided with victim impact statements from the victims of the three robberies and one of the aggravated robberies. The victims indicated unsurprisingly, that the events had been traumatic and caused ongoing psychological effects.
10․ The primary judge concluded:
26.Once again the scourge of drugs has destroyed the hopes of a normal life for an already damaged young man. His background must be taken into account, but so too must public deterrence and the sheer unacceptability of people roaming the streets threatening and attacking innocent people.
27.Sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT) must be taken into account. So too must be s 10, although in this case prison is less of a last resort than an inevitability.
…
29.…[T]he offender is still a young man. He has mental health issues which are susceptible to treatment, his drug addiction should be capable of being addressed and he has a supportive partner, so that there are real chances of rehabilitation. Hopefully rehabilitation can be commenced while in custody and thereafter as conditions of parole.
30.I also accept he has genuine remorse for his actions. He entered the witness box and gave evidence to that effect. He gave the impression of a man still battling with addiction but hopefully willing to move on to a new chapter in his life.
31.There will need to be some concurrency in the sentencing to avoid an overly long head sentence. A good deal of concurrency is consistent with the three days of offending essentially being a single drug induced criminal spree. It is also, however, important to recognise that the separate offences, and their separate victims, certainly in respect of the more serious offences, should attract some punishment specifically attributable to each of them.
32.The Crown accepted that the offences on 5 and 6 December 2021 should attract a discount of 25 per cent arising from the pleas of guilty. It was also accepted that a slightly lesser discount should apply to the other offences. Subject to rounding off, I assess this discount at 22 per cent.
33.The offender has been in custody since 8 December 2021. He has remained at the AMC in relation to unconnected offences. The sentences will end on 7 June 2022. Although the offender has not had any time in custody referable to the current offences, the Crown accepted that the commencement point for my sentencing may be backdated, although should not be backdated as far as 8 December 2021.
34.I intend to commence the sentences from 7 March 2022.
11․ His Honour imposed the following sentences:
(a)Robbery (5 December 2021): the sentence is 13 months and 14 days’ imprisonment (reduced from 18 months) to commence on 7 March 2022 and end on 20 April 2023.
(b)Aggravated robbery (6 December 2021): the sentence is 18 months’ imprisonment (reduced from 24 months) to commence on 7 September 2022 and end on 6 March 2024.
(c)Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 November 2022 and end on 20 March 2024.
(d)Common assault (6 December 2021): the sentence is four months and 14 days’ imprisonment (reduced from six months) to commence on 7 August 2022 and end on 20 December 2022.
(e)Robbery (6 December 2021): the sentence is 15 months’ imprisonment (reduced from 20 months) to commence on 7 December 2022 and end on 6 March 2024.
(f)Aggravated robbery (6 December 2021): the sentence is 16 months and 14 days’ imprisonment (reduced from 22 months) to commence on 7 March 2023 and end on 20 July 2024.
(g)Robbery (6 December 2021): the sentence is 12 months and 7 days’ imprisonment (reduced from 15 months) to commence on 7 May 2023 and end on 13 May 2024.
(h)Attempt theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 April 2023 and end on 6 May 2023.
(i)Aggravated burglary (7 December 2021): the sentence is 17 months and 7 days’ imprisonment (reduced from 22 months) to commence on 7 July 2023 and end on 13 December 2024.
(j)Minor theft (7 December 2021): the sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023.
(k)Possess prohibited substance (7 December 2021): sentence is one month’s imprisonment to commence on 7 March 2023 and end on 6 April 2023.
12․ As has been indicated, the aggregate or total effective sentence was two years, nine months and seven days’ imprisonment. The non-parole was one year, seven months and 29 days, to commence on 7 March 2022 and end on 4 November 2023.
The submissions
13․ The sole ground of appeal is that the sentences were manifestly inadequate. The Crown submits that:
(a)The individual sentences in respect of each of the aggravated robberies were manifestly inadequate.
(b)There was inappropriate concurrency in the sentences.
(c)The total effective sentence was manifestly inadequate.
(d)The non-parole period was manifestly inadequate.
14․ The Crown points to the following features which are said to illustrate the overall seriousness of the respondent’s offending:
(a)The offences included three aggravated robberies, three robberies and one aggravated burglary.
(b)The offending involved nine separate victims.
(c)The robberies involved the use, or threatened use, of knives and a firearm.
(d)One of the robbery victims was a 15 year old child.
(e)The respondent threatened to kill the 18-month-old daughter of one of the robbery victims.
(f)The respondent assaulted (by threatening) one of the victims in front of his three-year-old daughter.
(g)One of the aggravated robberies involved the use of actual force, with the respondent head-butting the victim and placing a knife against his neck.
(h)The first robbery was degrading in that the victim was forced to strip to his underwear and hand over his shirt, pants and shoes.
15․ The Crown observes that at the time of the offending, the respondent was subject to bail conditions and a community corrections order.
16․ The Crown submits that the primary judge’s assessment of the objective seriousness of the offending was problematic in that:
(a)His Honour dealt with separate and discrete instances of very serious offending in a global sense and without discussing the objective seriousness of each individual offence.
(b)His Honour did not discuss the factors which typically inform the assessment of objective seriousness for offences of this nature.
(c)His Honour did not identify how, or to what extent, a number of features of the offending informed the assessment of objective seriousness.
17․ The Crown submits that the primary judge’s failure to identify the relevant factors, the weight to be given to them and their role in the structuring of the sentence may have resulted in a failure to properly understand the seriousness of offending.
18․ The Crown submits that the primary judge made no mention of s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) or any comparable cases which might have assisted in establishing a yardstick. The fact that his Honour did not engage with any comparable sentences is said to be an unusual judicial process and should invite close scrutiny by the Court. The Crown submits that the individual sentences for the aggravated robberies were only about half the length of those routinely imposed for this kind of offending, referring, in particular, to R v Henry [1999] NSWCCA 111; 46 NSWLR 346.
19․ The Crown also argues that the “total, or near total” concurrency of the individual sentences fails to acknowledge the separate harm occasioned to the individual victims. The Crown submits that if the primary judge had started with lengthier individual sentences, their concurrency might have been explicable. It is submitted there is no rational explanation for high degree of concurrency given the already inadequate individual sentences.
20․ The Crown submits that the respondent has effectively escaped punishment for a number of the offences he committed and received a “discount for multiple offending” that the authorities disavow.
21․ The Crown observes that the non-parole period represents about 60 percent of the aggregate sentence. It is submitted that the respondent has an extensive criminal history which showed an inability to comply with community based sentencing orders and he had been assessed by ACT Corrective Services as presenting a high risk of reoffending. The offender was on bail and subject to an NSW community corrections order at the time of the offences. The Crown submits that, while rehabilitation is important for a relatively young adult offender, it cannot be allowed to overwhelm the sentencing process.
22․ Ultimately, the Crown does not complain that the proportion of the non-parole period was inappropriate, but submits that the minimum term of imprisonment of one year, seven months and 29 days fails to adequately recognise the gravity of the totality of the conduct.
23․ The respondent observes that in Henry, Spigelman CJ referred at [170] to a number of factors of particular relevance to sentencing for an offence of armed robbery. These include the nature of the weapon, the vulnerability of the victim, the position on the scale of impulsiveness/planning, the intensity of the threat, or actual use, of force, the number of offenders, the amount taken and the effect on the victim or victims.
24․ In relation to the first aggravated robbery, the respondent submits that the victim was outside in daylight hours and there was no inherent vulnerability, that the offending appeared to be impulsive, disorganised and aimless, the respondent acted alone and no victim impact was placed before the Court.
25․ In relation to the second aggravated robbery, the respondent notes that the offence occurred in daylight hours and there was no inherent vulnerability, the offending involved no premeditation, and the respondent acted alone.
26․ In relation to the third aggravated robbery, the respondent points out that the victim was not particularly vulnerable, there was nothing to suggest premeditation or planning, there was no physical contact with the victim, and there was no victim impact statement.
27․ The respondent observes that the primary judge considered that the offending to be attributable to use of drugs. The respondent submits that his drug use, following early exposure to such substances from family members, was less than a voluntary and considered decision. It can be inferred from the primary judge’s sentencing remarks that this was accepted to impact upon the assessment of the respondent’s moral culpability.
28․ The respondent submits that the majority of his criminal history occurred when he was a child. As an adult, he had only been sentenced on four occasions. This was for offences including contravening an Apprehended Violence Order, assault occasioning bodily harm, possessing an unauthorised pistol, not keeping a firearm safely. On 24 March 2022, he was convicted in the ACT Magistrates Court of failing to appear, two offences of possessing a knife, two offences of unlicensed driving, an offence of failing to stop and an offence of minor theft, in relation to which he was serving a term of imprisonment at the time of his sentencing in the current matter. It is submitted that the majority of his previous convictions were for relatively modest offences and there were no prior aggravated robbery or robberies or burglaries and only a single entry for an offence of physical violence. There is also a gap of approximately 16 months between the current offences and his previous offence.
29․ The respondent points out that the primary judge determined that his age, supports in the community, treatable mental health issues and ability to address his illicit substance use meant that there were, “real chances of rehabilitation”. His Honour noted the respondent’s “genuine remorse for his actions”. His Honour found that “a good deal of concurrency is consistent with the three days of offending essentially being a single drug induced crime spree”. The respondent submits that his Honour had the benefit of observing him giving evidence relevant to his remorse and prospects of rehabilitation.
30․ The respondent submits that the primary judge staggered the sentences in a fashion such as to impose appropriate terms of imprisonment for individual offences while recognising the relationship between the offences. It is submitted that the structure of any sentence is a matter of discretion and his Honour was cognisant of the countervailing considerations.
31․ The respondent submits that there was nothing unusual about the relationship between the head sentence and the non-parole period. The non-parole period recognises the subject of circumstances of the respondent and his prospects for rehabilitation while ensuring he was incarcerated for a substantial period of time.
32․ The respondent has not submitted that the residual discretion not to intervene should be exercised in the event the sentences are held to be manifestly inadequate.
Consideration
Crown appeals against sentence
33․ Crown appeals against sentence are recognised as an anomaly in the criminal justice system that should be brought only in limited circumstances. In R v Lindsay [2020] ACTCA 25, the Court of Appeal explained at [29] that:
A Crown appeal against the inadequacy of a sentence should be instituted sparingly but may be appropriate where a sentence is so manifestly inadequate as to demonstrate “error in principle” or for the purpose of providing “governance and guidance” to sentencing courts.
[See also Griffith v The Queen (1977) 137 CLR 293 at 310; Green v The Queen (2011) 244 CLR
462 at [1], [36]; CMB v Attorney General for New South Wales [2015] HCA 9; 256 CLR 346 (CMB)
at [35]].
34․ The authority of the Court of Appeal to intervene in an appeal against sentence depends upon the demonstration of error: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35]. In R v Duffy [2014] ACTCA 53; 297 FLR 359, the Court of Appeal explained at [53]:
On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified...
35․ The sole ground of the Crown’s appeal is that the sentences were manifestly inadequate. In Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gleeson CJ and Hayne J observed at [6]:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
[See also R v Ware (2022) 17 ACTLR 273 at [101]; Director of Public Prosecutions v Raddino
[2002] VSCA 66; 128 A Crim R 437 at [30]].
36․ The Crown bears the obligation of showing that the sentences are unreasonable or plainly unjust: Markarian v R [2005] HCA 25; 228 CLR 357 at [25]. An appellate court is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate: Markarian at [28]; Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
The approach taken by the primary judge
37․ The Crown’s Notice of Appeal asserts that, “The sentence is manifestly inadequate”. Although the ground itself refers only to a single sentence, the Crown’s particularisation of the ground asserts that the individual sentences imposed in respect of the charges of aggravated robberies were manifestly inadequate, there was inappropriate concurrency of the sentences generally, the total effective sentence was manifestly inadequate and the length of the non-parole period was manifestly inadequate.
38․ In the course of argument, the Crown accepted that the proportion of the aggregate sentences fixed by the primary judge as the non-parole period was not of itself inadequate. The Crown’s real complaint is that the sentences for the aggravated robberies were inadequate and the degree of concurrency for all the sentences was excessive, resulting in a total effective sentence that was manifestly inadequate.
39․ The expressions “total effective sentence” and “aggregate sentence” are used in the authorities to describe the total period of imprisonment to which an offender is sentenced for multiple offences. We will adopt the former expression.
40․ Sentencing for multiple offences has particular complexities. A number of the relevant principles were described by the Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 at [26]:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences. The Court must avoid any suggestion that what is being offered is a discount for multiple offending.
(d)Offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
(Citations omitted.)
41․ When sentencing for multiple offences, the ultimate objective of the sentencing judge is to set a total effective sentence that is just and appropriate. In Nguyen v The Queen [2016] HCA 17; 256 CLR 656, Gageler, Nettle and Gordon JJ explained at [64]:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in· order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.
42․ It is apparent that the primary judge understood the necessity to determine a total effective sentence that reflected the totality of the criminality involved in the offences. His Honour’s approach seems to have been to commence by reducing the sentences for the aggravated robberies below those that would otherwise have been appropriate and then assessing a high degree of concurrency of all the sentences.
43․ That is not the orthodox approach described in Mill v The Queen (1988) 166 CLR 59 at 63 and Pearce v The Queen (1998) 194 CLR 610 at [45] of fixing an appropriate sentence for each offence and aggregating them before taking the next step of determining concurrency. However, as the High Court confirmed in Johnson v The Queen [2004] HCA 15; 218 CLR 451 at [26], neither Mill nor Pearce stipulates a single, inflexible approach:
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.
44․ Similarly, in Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 at [56], the Court of Appeal confirmed that there is no single correct approach:
Concurrency and accumulation is a tool that enables an adjustment to the structuring of sentences to ensure that each individual sentence correctly reflects the criminality of the offence to which it relates and, at the same time, the total sentence reflects the criminality of all offences. There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.
(Citations omitted.)
45․ Accordingly, it was open to the primary judge to proceed in the manner he did, namely to reduce the sentence for each offence and then adjust the degree of their concurrency or accumulation to determine the total period of imprisonment. Since that approach was open, the ground of manifest inadequacy cannot be made out by the Crown merely seeking to establish that individual sentences are too low or that their degree of concurrency is too high. It is necessary for the Crown to demonstrate that the total effective sentence is manifestly inadequate.
46․ Nevertheless, the lengths of individual sentences imposed and the degree of concurrency or accumulation assessed by the primary judge remain relevant to determination of whether the combination of those factors has resulted in a total effective sentence that is manifestly inadequate. It is therefore convenient to begin by considering the Crown’s submission that the sentences for the aggravated robberies are excessively lenient.
The Crown’s submission that the sentences for the aggravated robberies are excessively lenient
47․ The respondent committed three aggravated robberies on 6 December 2021. For the first, a sentence of 18 months’ imprisonment (reduced from 24 months for the plea of guilty) was imposed. The respondent was armed with a 20cm filleting knife. He head-butted the victim and placed the knife against the victim’s neck. He forced the victim to hand over his phone, wallet, and clothes and threatened to kill him if he disclosed the offending.
48․ For the second aggravated robbery, a sentence of 16 months and 14 days’ imprisonment (reduced from 22 months) was imposed. About an hour after the first aggravated robbery, the respondent approached this victim from behind and held the knife against his neck. He demanded the victim’s necklace and threatened to hit him if he did not hurry up.
49․ For the third trial aggravated robbery, a sentence of 16 months and 14 days’ imprisonment (reduced from 22 months) was imposed. The offender entered the victim’s
backyard and demanded his cash and everything he had. The offender lifted his knife towards the victim’s body at least three times and threatened to stab and kill him.
50․ The maximum penalty for the offence of aggravated robbery is 25 years’ imprisonment, a fine of $400,000, or both. Its seriousness in indicated by the very substantial maximum penalty. In R v Robertson [2010] ACTCA 19; 174 ACTR 32, aggravated robbery was described by the Court of Appeal at [9] as, “an offence of the utmost gravity”. The present offences, involving placing a knife against the neck of two of the victims and making verbal and physical threats to stab and kill the third victim, are serious examples of the offence. The respondent’s actions must have induced profound fear in the victims.
51․ The Crown submits that the sentences for the aggravated robberies were outside the usual range of sentences for such offences. Section 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) requires that in deciding how an offender should be sentenced for an offence, the Court must consider current sentencing practice. The sentencing remarks of the primary judge do not reveal any express consideration of that factor.
52․ In Barrett v The Queen [2016] ACTCA 38, the Court of Appeal noted at [40] that most sentences recorded in the ACT sentencing database for aggravated robbery following a plea of guilty were in the range of 30 months to four years’ imprisonment. In R v Lovelock [2014] ACTSC 229 at [13], Murrell CJ, when considering current sentencing practice in the ACT Supreme Court, observed that a common sentence for aggravated robbery was three years’ imprisonment. In each case, the Court was referring to the length of sentences after application of discounting for pleas of guilty.
53․ It must be recognised that appellate intervention is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]. While past sentences, “can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence”, the range established by past sentences does not, “fix the boundaries within which future judges must, or even ought, to sentence”: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]. The question is whether the discretion miscarried because the sentences imposed were below the range of sentences that could be justly imposed for the offence consistently with sentencing standards: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24].
54․ Nevertheless, it is significant that none of the individual sentences for the aggravated robberies approached the range identified in Barrett and Lovelock. Indeed, they were not much more than half of the bottom end of the range identified.
55․ The respondent accepted that the sentences for the aggravated robberies were lenient, but not that they are manifestly inadequate. The primary judge’s reasons for leniency included the respondent’s young age, his genuine remorse and “real chances of rehabilitation”. As to his chances of rehabilitation, his Honour considered that the respondent’s mental health issues were susceptible to treatment and his drug addiction was capable of being addressed. His Honour implicitly took into account the applicant’s reduced moral culpability by reason of his very disturbed upbringing, where he was exposed to drinking, drugs and abuse, and his consequent addiction to drugs from an early age. His Honour also took into account that the offences were part of a single spree over three days.
56․ However, a sentence must be proportional to the objective seriousness of the offence, and an offender’s subjective features, while important, “cannot justify the imposition of a sentence that does not adequately reflect the objective seriousness” of the offending behaviour: The Queen v Miller [2019] ACTCA 25 at [37].
57․ The apparent leniency of the sentences for the aggravated robberies might be explicable if the primary judge can be seen to have determined a degree of accumulation that reflected the totality of the respondent’s offending. However, the Crown submits that, instead, the primary judge proceeded to determine a very high degree of concurrency which compounded the leniency of the sentences. We will turn to consider that submission.
The Crown’s submission that there was inappropriate concurrency of the sentences
58․ Section 33(1)(c) of the Sentencing Act requires consideration of whether the offences form part of a course of conduct consisting of a series of criminal acts of the same or a similar character. Section 33(1)(c) recognises the “course of conduct” or “one transaction” principle, described by Owen JA in Royer v The State of Western Australia [2009] WASCA 139 at [22]:
At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.
59․ The primary judge held that, “[a] good deal of concurrency is consistent with the three days of offending essentially being a single drug induced criminal spree”. It is evident that his Honour proceeded to apply the “course of conduct” principle by determining a substantial degree of concurrency of the sentences.
60․ In R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32, the Court of Appeal at [92] considered a number of principles relevant to determining the degree accumulation or concurrency of multiple sentences:
There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences. A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length). Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count.
(Citation omitted.)
61․ In R v Tonari [2014] NSWCCA 232, the NSW Court of Appeal observed at [74] that:
It is always necessary, and the Crown so submitted, that when sentencing, the sentencing Judge recognises the need to acknowledge and have regard to the separate harm done by the different criminal acts of the offender. It is necessary when a court is sentencing for multiple offences for the sentencing court to have regard to the fact that there are multiple episodes of criminality. Often, but not always, total concurrency obscures the fact that different offences have been committed, and it does not necessarily recognise the total criminality involved. Thus, total or near total concurrency can often result in an overly lenient sentence.
62․ In R v Jarrold [2010] NSWCCA 69 at [56], Howie J (the other members of the Court agreeing) explained that the course of conduct principle does not automatically require concurrency of sentences:
... [S]entences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct. The question to be asked is, can the sentence for one offence encompass the criminality of all the offences?
(Citation omitted.)
63․ The application of the totality principle, including by applying s 33(1)(c) of the Sentencing Act, may justify substantial concurrency of individual sentences. However, the Crown submits that there could no justification for the high degree of concurrency that was
determined given that the primary judge’s approach was to begin by determining very lenient individual sentences, particularly for the aggravated robberies.
64․ The following table illustrates the extent of the concurrency of the individual sentences:
65․ The sentencing process, including accumulation, concurrency and totality, is not a mathematical exercise. Nevertheless, it is relevant to observe that:
(a)The sentence of imprisonment imposed for the second aggravated robbery is cumulative upon the sentence imposed for the first aggravated robbery only to the extent of 14 days.
(b)The sentence imposed for the third aggravated robbery is cumulative upon the sentence imposed for the second aggravated robbery only to the extent of four months.
(c)The sentence imposed for the second robbery is entirely concurrent with the sentences for the first and second aggravated robberies.
(d)The sentence imposed for the third robbery is entirely concurrent with the sentence for the third aggravated robbery.
66․ There is almost complete concurrency between the sentences for the first and second aggravated robberies and very substantial concurrency of the sentences for the second and the third aggravated robberies. Furthermore, the sentences for the second and third robberies are completely concurrent with terms for other offences so that the respondent will serve no additional imprisonment at all for those offences.
67․ In our respectful opinion, concurrency of that extent fails to adequately recognise that the respondent’s conduct involved separate offences committed against different victims. The leniency extended by the primary judge in limiting the length of the sentences for aggravated robbery was compounded by the leniency extended in substantial concurrency of the sentences. The total effective sentence fails to reflect the totality of the criminality involved and is manifestly inadequate.
Residual discretion
68․ The Court has a residual discretion not to intervene, and the Crown bears the onus of demonstrating why the Court should intervene: CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [6], [66].
69․ The respondent has not submitted that there are factors supporting the exercise of the residual discretion, and none are discernible.
70․ We are satisfied there is no basis for the exercise of the residual discretion. 71․ The appeal must be allowed and the judgment of the primary judge set aside.
Resentencing
72․ It is necessary for the Court to resentence the respondent. In doing so, the Court is required to form its own view of the appropriate sentence: DL v The Queen [2018] HCA 32; 265 CLR 215 at [9]; Kentwell v The Queen at [35].
73․ Leaving aside exceptional circumstances, an appellate court’s determination of the appropriate sentence is made on the basis of the material before the sentencing judge and the primary judge’s unchallenged factual findings and any relevant evidence of the offender's post-sentence conduct: DL v The Queen at [9]; Carroll v The Queen [2009] HCA 13; 254 CLR 259 at [24]; Betts v The Queen [2016] HCA 25; 258 CLR 420 at [14].
74․ There has been no challenge to the primary judge’s factual findings and no evidence concerning the respondent’s post-sentence conduct has been led.
75․ The factual findings of the primary judge have been described earlier in these reasons.
It is unnecessary to repeat those findings, but some matters should be highlighted.
76․ It is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between sentences passed and the circumstances of the crimes committed: R v Scott [2005] NSWCCA 152 at [15]. As the Court of Appeal indicated in Miller at [37] an offender’s subjective features, while important, cannot justify
the imposition of a sentence that does not adequately reflect the objective seriousness of the offending behaviour.
77․ Each of the three aggravated robberies was a serious example of the offence. The first involved head-butting the victim, holding a knife against his neck and forcing him to strip to his underwear. The second involved holding a knife against the victim’s neck. The third involved repeatedly lifting a knife close to the victim while making threats to stab and kill him. The first was the most serious as it involved actual violence and a degree of degradation of the victim by making him strip to his underwear. There is little to differentiate the seriousness of the second and third aggravated robberies.
78․ The maximum term of imprisonment for robbery is 14 years’ imprisonment. The respondent’s first robbery involved the offender threatening to shoot the victim if he did not hand over his cash and wallet (although he did not actually have a gun), and eventually stealing some of the victim’s shopping.
79․ The second robbery involved the offender confronting the victim as the victim was placing his 18-month-old daughter into a car, spitting at the victim and threatening to kill him and his daughter. He demanded the victim’s wallet which was given to him to him. The threat to kill the victim’s daughter is an aggravating feature of the offence.
80․ The third robbery involved the offender sitting next to a 15-year-old boy on a bus, verbally abusing him and demanding the victim’s hat, jumper, shoes and phone, which were handed over. The offender then moved seats but continued to threaten him, including by making a throat-slitting motion. The age of the victim is an aggravating feature.
81․ Considerations of general deterrence and denunciation are particularly important in this case.
82․ It is necessary to take into account the respondent’s relative youth, his genuine remorse, his prospects of rehabilitation, the reduction of his moral culpability by reason of his disadvantageous background and early introduction to illegal drugs. That the offences were committed in a “single drug induced criminal spree” should be taken into account through appropriate concurrency of the terms of imprisonment.
83․ We will adopt the primary judge’s assessment that the offences on 5 and 6 December 2021 should attract a discounting 25 percent arising from the pleas of guilty and that a 22 percent discounting should apply to the other offences. We will also apply his Honour’s approach that the first sentence should commence from 7 March 2022.
84․ We impose the following sentences:
(a)Robbery (5 December 2021): 13 months and 15 days’ imprisonment (reduced
from 18 months), to commence on 7 March 2022 and end on 21 April 2023.
(b)Aggravated robbery (6 December 2021): 31 months and 15 days’ imprisonment (reduced from 42 months), to commence on 7 June 2022 and end on 21 January 2025.
(c)Aggravated robbery (6 December 2021): 27 months’ imprisonment (reduced from 36 months), to commence on 21 May 2023 and end on 20 August 2025.
(d)Common assault (6 December 2021): 4 months and 15 days’ imprisonment (reduced from six months), to commence on 7 May 2025 and end on 21 September 2025.
(e)Robbery (6 December 2021): 15 months’ imprisonment (reduced from 20 months), to commence on 21 September 2024 and end on 20 December 2025.
(f)Aggravated robbery (6 December 2021): 27 months’ imprisonment (reduced from 36 months), to commence on 21 April 2024 and end on 20 July 2026.
(g)Robbery (6 December 2021): 15 months’ imprisonment (reduced from 20 months) to commence on 21 July 2025 and end on 20 October 2026.
(h)Attempted theft (7 December 2021): 22 days’ imprisonment (reduced from four weeks), to commence on 7 October 2026 and end on 28 October 2026.
(i)Aggravated burglary (7 December 2021): 17 months and 7 days’ imprisonment (reduced from 22 months), to commence on 21 September 2025 and end on 27 February 2027.
(j)Minor theft (7 December 2021): 22 days’ imprisonment (reduced from four weeks), to commence on 7 February 2027 and end on 28 February 2027.
(k)Possess prohibited substance (7 December 2021): 22 days’ imprisonment (reduced from four weeks), to commence on 13 February 2027 and end on 6 March 2027.
85․ The total effective sentence is five years’ imprisonment.
86․ The non-parole will be 36 months, to commence on 7 March 2022 and end on 6 March 2025. This reflects 60 percent of the total effective sentence.
I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 13 September 2023
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Amendments
13 September 2023 Replace “3 March 2022” with “3 March 2023” Page 1: “Hearing Date:”. 13 September 2023 Replace “CC2022/678” with “CC2022/768” Page 1: “Decision:”.
29 May 2025 Replace “R v Robertson [2009] ACTCA 19”
with “R v Robertson [2010] ACTCA 19” Page 2: “Cases Cited:”.
29 May 2025 Replace “R v Robertson [2009] ACTCA 19”
with “R v Robertson [2010] ACTCA 19” Page 15: “Consideration”.
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