Robb v The Queen

[2019] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Robb v R [2019] NSWCCA 113
Hearing dates:	17 May 2019
Decision date:	17 May 2019
Before:	Bathurst CJ at [1], [21]-[26] and [28] Hamill J at [2] N Adams J at [27]
Decision:	(1) Application for leave to appeal granted. (2) Appeal allowed. (3) Sentence imposed in the District court quashed and in lieu thereof the applicant is sentenced to imprisonment comprising a non-parole period of 1 year 6 months commencing on 26 July 2017 and expiring on 25 January 2019. There will be a balance of term of 1 year 6 months commencing 26 January 2019 and expiring on 25 July 2020. (4) The applicant is to be released from custody forthwith.
Catchwords:	CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Misapplication of principle — Commencement date of sentence — Offence committed while on day release
Legislation Cited:	Children (Detention Centres) Act 1987 (NSW), s 66 Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
Cases Cited:	Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Kaderavek v R [2018] NSWCCA 92 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 107 R v Moffitt (1990) 20 NSWLR 114 White v The Queen [2016] NSWCCA 190; (2016) 261 A Crim R 302
Category:	Principal judgment
Parties:	James Charles Robb Regina
Representation:	Counsel: T Quilter (Robb) E Balodis (Regina)   Solicitors: Aboriginal Legal Service (Robb) Solicitor for Public Prosecutions (Regina)
File Number(s):	2017/00181788
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 August 2018 Before: Judge King SC File Number(s): 2017/00181788

Ex tempore Judgment (Revised)

1. BATHURST CJ: I will ask Hamill J to deliver the first judgment.

2. HAMILL J: James Robb seeks leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court sitting in Sydney on 3 August 2018. The sentence was imposed following Mr Robb’s plea of guilty to one count of robbery. The plea was entered in the Local Court on 31 October 2017 and the applicant was afforded a 25% reduction in the sentence by virtue of the utilitarian value of his early plea of guilty. After applying that discount to a starting point of 4 years, Judge King imposed a sentence of 3 years with a non-parole period of 18 months and ordered the sentence to commence on 21 June 2018.

3. The applicant raises two grounds of appeal each of which, either directly or indirectly, concerns the choice of commencement date. Those grounds are as follows:

1. The sentencing Judge erred when setting a commencement date for the sentence by:

1. Misunderstanding the parameters of his discretion;

2. Mistaking the facts about the applicant’s parole situation;

3. Wrongly treating the applicant’s parole as notionally revoked;

4. Failing to take into account a discrete period of pre-sentence custody;

5. Failing to take into account the effect of delay.

2. The sentencing Judge failed to take into account the effect of accumulation on the ratio between the effective non-parole period and the effective sentence.

4. Extensive and helpful written submissions were filed by counsel for the applicant. Initially, the respondent contested most of these grounds although there was a concession in relation to the failure of the sentencing Judge to take into account a period of pre-sentence custody that was solely referable to bail being refused in respect of the present offence. However, on the day before the hearing of the appeal, the respondent filed further submissions in which error was conceded in relation to grounds 1(b) and (c). I will return to consider the chronology of events giving rise to that concession but first it is necessary briefly to touch upon some of the facts relevant to sentence.

5. The applicant was born in December 1997. A few days before his sixteenth birthday, he committed two robbery offences. About seven months later, he committed a third robbery offence. Although he was a child at the time of each of these offences, he was dealt with at law and sentenced in the District Court. On 14 June 2016, Acting Judge Madgwick sentenced the applicant to 4 years with a non-parole period of 2 years and ordered that the sentence be served in a juvenile justice centre. The sentence was backdated to commence on 27 July 2015. It was towards the end of the 2 year non-parole period that the offence subject of the present appeal was committed.

6. On 31 May 2017 the Children’s Court made an order granting the applicant parole commencing at the expiration of the non-parole period, that is 26 July 2017. On 18 June 2017 the applicant was on day release when he committed the robbery offence for which he was sentenced by Judge King. For the purpose of this appeal, it is important to note that the parole order had not then taken effect, that the applicant was not on parole, and that he was still technically serving the non-parole period of the sentence imposed by Acting Judge Madgwick.

7. The victim, Juan Toledo Castillo finished work at about 12:30am in a restaurant in Surry Hills. He was walking home to Redfern, listening to music on his mobile telephone when he was approached by the applicant. The applicant was drunk and grabbed the victim around the head saying “give me your fucking ‘phone”. The applicant held Mr Toledo Castillo in a headlock and forcibly took the telephone as well as a bank card and business cards from the victim’s hands. The applicant walked off. The victim went home and called the police. He also cancelled his bank card and tracked his telephone electronically. The ‘phone was moving south along Pitt Street in Redfern. Police attended the victim’s home and Mr Toledo Castillo was able to tell them that the “Find my Phone” application indicated that the telephone was at or outside a particular address in Waterloo. The police attended that address and located the applicant. He was in possession of the telephone. He claimed to have found the telephone in a stair case nearby. He was searched and the victim’s bank card and business cards were found inside his wallet. The applicant declined to be interviewed about the matter.

8. The applicant was 19 years old at the time of the offence. He is of Aboriginal and Maori descent. He was exposed to drug use and domestic violence during his childhood. His elder brother was an important role model but he engaged in substance abuse and delinquency. The applicant was also influenced by an anti-social peer group when he was in his early to mid-teenage years. The applicant began drinking at the age of 11 and was drinking every day by the age of 15. A psychologist offered an opinion that his cognitive function was within normal range but he had difficulty with verbal reasoning which resulted in impulsiveness and “emotional dysregulation”. His family and personal history resulted in him failing to develop appropriate emotional regulation skills. The applicant gave evidence on sentence in which he offered an apology to the victim and showed some understanding of the victim’s suffering. He also expressed shame that his younger brothers knew he was in gaol. The sentencing judge accepted that he had expressed remorse. He said that adult gaol was “a lot scarier” that the juvenile detention where he was locked up as a child. He said of the adult gaols there were “crim[s and] murderers in there”. He said that his “mum hasn’t had enough time to come out” to visit him at Bathurst Correctional Centre where he spent most of his period on remand.

9. This was a serious, if fairly typical, offence of robbery. While the circumstances did not fit neatly or entirely within the circumstances outlined in the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 107, that guideline suggests that the total sentence of 3 years was within an appropriate discretionary range. No submission was made that the sentence itself was too severe. Rather, the appeal is directed to the commencement date and structure of the sentence.

10. In the course of the sentencing proceedings, the applicant submitted that the sentence ought to commence on at the conclusion of the non-parole period for the sentence imposed by Acting Judge Madgwick. His Honour rejected this submission, citing some older authorities such as R v Moffitt (1990) 20 NSWLR 114 for the proposition that the applicant should “serve out the balance of the original sentence” and also “suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole”. His Honour acknowledged that this was not a breach of parole but held that the same principle applied to a breach of day release. It is unnecessary to consider that question any further in the context of the present appeal.

11. His Honour decided that the sentence should commence on “the date the matter first came before me for sentence, being 21 June 2018”. One difficulty with the selection of that date is that it failed to take into account the fact that there was significant delay in the curial process which had nothing at all to do with the applicant. He pleaded guilty on 31 October 2017 and it took his case around 8 months to come before the sentencing Judge. The choice of commencement date seemed to be predicated on the erroneous assumption that the applicant was in custody from 26 July 2017 until 21 June 2018 solely in relation to the earlier offences dealt with by Madgwick ADCJ. That was not so. At least 3 months of that period was solely referable to the present offence.

12. There were significant complications surrounding the remainder of that period of remand. Some of those complications were not exposed with clarity before the sentencing Judge and have been subject to further evidence before this Court.

13. A significant complication was that the Children’s Court purported to revoke the applicant’s parole by order dated 18 June 2018. The revocation was to take effect from 31 October 2017. Such an order under s 66 of the Children (Detention Centres) Act 1987 could only be made “at any time after the release of a juvenile offender”. The respondent concedes that the applicant had not been released to parole at the relevant time.

14. Further, on 21 June 2018, the Children’s Court made an order apparently, although not with absolute clarity, rescinding the revocation order. That order stated:

No action on breach – Young person not on parole at the time of the offence. Warrant issued on 19/6/2018 revoked.

15. Evidence now before the Court establishes that the purported revocation was based on the applicant failing to comply with a condition that he “be of good behaviour whilst on parole”. Again, it is clear that this decision was based on the erroneous understanding that the applicant had been released to parole and was subject to parole conditions at the time of the present offence.

16. It is unnecessary to decide whether the applicant is correct in submitting that the order revoking parole was a “nullity”. However, what is clear is that the commencement date of the sentence was wrong. The operation of s 47 of the Crimes (Sentencing Procedure) Act 1999 and the complications that arise when an offender is serving the balance of an unrelated sentence either on parole or otherwise have been considered in a number of cases: see, for example, Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, White v The Queen [2016] NSWCCA 190; (2016) 261 A Crim R 302 at [116]-[127], Kaderavek v R [2018] NSWCCA 92 at [19]-[20]. It is unnecessary to revisit the various principles here.

17. As the respondent now concedes “[t]he applicant remained in custody after 26 July 2017 only because he was bail refused for the subject offence” and the sentence ought to have commenced on that date.

18. Once that concession is accepted, as it must be, there is no need to analyse in any detail the more nuanced aspects of the sub-grounds raised under the applicant’s first ground of appeal. Ground two essentially falls away if the applicant is re-sentenced and the sentence is to commence on 26 July 2017.

19. I have considered the affidavit material filed on the issue of re-sentencing. I am of the view the applicant should receive the same sentence and non-parole period but that the sentence should be backdated to 26 July 2017 resulting in the applicant’s immediate release.

20. For those reasons, I favour the following orders:

1. Application for leave to appeal granted.

2. Appeal allowed.

3. Sentence imposed in the District court quashed and in lieu thereof:

1. The applicant is sentenced to imprisonment comprising a non-parole period of 1 year 6 months (18 months) commencing on 26 July 2017 and expiring on 25 January 2019. There will be a balance of term of 1 year 6 months (18 months) commencing 26 January 2019 and expiring on 25 July 2020.

4. The applicant is to be released from custody forthwith.

21. BATHURST CJ: I agree with the orders proposed by Hamill J.

22. The critical question in my opinion was whether the Children’s Court had the power to make the order revoking the applicant’s parole. As Hamill J points out the power conferred on the Children’s Court to revoke the applicant’s parole in s 66 of the Children (Detention Centres) Act 1987 (NSW) can only be made “at any time after the release of the juvenile offender”. It was not contended that release meant anything other than release to parole. As the applicant had not been released to parole, there was no power to make the order.

23. Each party accepted, in my view correctly, that a purported exercise of the power was of an administrative rather than a judicial nature. Having been made without jurisdiction it was ineffective to achieve the object of revoking the applicant’s parole.

24. In those circumstances, it seems to me correct that the only reason the applicant remained in custody after 26 July 2017 was because his bail was refused for the offence the subject of the present proceedings. It follows that the sentence ought to have commenced on that date.

25. Hamill J has stated the facts concerning the offence and the applicant’s subjective circumstances. For the reasons given by him the only appropriate variation to this sentence is the adjustment which he proposes in his orders.

26. In these circumstances the applicant should be released forthwith.

27. N ADAMS J: I too agree with the orders proposed by his Honour Hamill J for the reasons provided by his Honour. I also agree with the additional observations made by his Honour the Chief Justice. Although there were a number of sub‑grounds to ground one relied upon by the applicant, counsel for the respondent conceded today that the approach taken by Hamill J was one course open to this Court to arrive at the result it has. That concession was properly made.

28. BATHURST CJ: Accordingly the orders of the Court are those proposed by Hamill J.

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Decision last updated: 19 June 2019