The Queen v Potts
[2020] ACTCA 12
•6 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Potts |
Citation: | [2020] ACTCA 12 |
Hearing Date: | 6 November 2019 |
DecisionDate: | 6 March 2020 |
Before: | Elkaim, Mossop and Rangiah JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – SENTENCE – Crown appeal against sentence – whether sentence was manifestly inadequate – whether primary judge erred in finding special circumstances to justify imposing concurrent sentences CRIMINAL LAW – STATUTORY INTERPRETATION – Construction of ss 70 and 72 of the Crimes (Sentencing) Act 2005 (ACT) – interpretation of ‘existing sentence’ and ‘primary sentence’ where multiple sentences of imprisonment imposed – whether sequential operation of s 72 is required – concurrent and consecutive sentences |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 25, 30 |
Cases Cited: | Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 |
Parties: | The Queen (Appellant) Bradley Lyle Leslie Potts (Respondent) |
Representation: | Counsel A Williamson (Appellant) J Masters (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Marjason and Marjason Solicitors (Respondent) | |
File Number: | ACTCA 61 of 2018 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 22 October 2018 Case Title: R v Potts Citation: [2018] ACTSC 299 |
ELKAIM J:
This is an appeal from sentences imposed by the Chief Justice on 22 October 2018. The appeal is concerned with two matters; firstly, it is said that her Honour misapplied
s 72 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and secondly, that the sentences were manifestly inadequate.
I have read, in draft, the reasons of Rangiah J and Mossop J. I agree with their Honours that the sentences imposed were not manifestly inadequate. I also agree that the appeal should be dismissed. I specifically endorse Rangiah J’s concluding comments that consideration should be given to the redrafting of Pt 5.3 of the above Act.
Regrettably, I do not agree with the respective interpretations of ss 70 and 72 proposed by their Honours.
I adopt and am grateful to Rangiah J for his Honour’s comprehensive description of the facts and background to the appeal.
My point of difference with Rangiah J is correctly described by Mossop J at [46] in this way:
The difference between the approach adopted by Rangiah J and that adopted by Elkaim J is whether a sequential operation of s 72 should be based upon the order in which the sentences are pronounced or the order in which the periods of imprisonment imposed by those sentences would operate. Rangiah J adopts the former. Elkaim J adopts the latter.
The difference between my approach, and also that of Rangiah J, with that of
Mossop J, is that Mossop J sees no determinative relevance in the sequence of the sentencing of the offender.
Section 72 is in the following terms:
72Concurrent and consecutive sentences—offences while in custody or unlawfully absent
(1)This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a) an offence committed while the offender was in lawful custody;
(b) an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment;
(c) an offence involving an escape from lawful custody.
Example of unlawful absence for par (b)
the offender fails to return to a correctional centre as required after community service work or approved leave
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
The three sentences imposed can be seen from the following table:
The offences giving rise to the three sentences were all committed while the respondent was in “lawful custody” (s 72(1)(a)). The first and second sentences (in time), related to offences committed upon a prison officer.
The first sentence commences on 4 December 2017 and runs to 3 June 2019. The second sentence commences on 4 June 2019 and runs until 3 December 2021. Thus far there is no concurrency between the sentences. The third sentence commences on 6 July 2019 and ends on 5 July 2022. As between the second and third sentences there is significant concurrency. This concurrency is at the core of the appellant’s complaints.
The Crown submitted that s 72 dictated that the three sentences should have been entirely consecutive upon each other. The ‘permission’ provided by s 72(3) should not have been invoked because there were no special circumstances permitting the application of s 72(4).
The appellant submitted that the special circumstances identified by the primary judge were more mundane than special and did not justify the concurrency as between the second and third sentences.
Her Honour specifically addressed s 72, notwithstanding that she observed that “[t]he purpose of s 72 is unclear…” (at [42]). Her Honour could have added that the section is also confusing.
The intent of the section is no doubt to ensure that crimes committed by persons in custody are dealt with more severely than might otherwise be the case; in particular, where the victims of the crimes are corrections officers.
At first sight the section would appear to apply to persons who are serving a sentence of imprisonment and then commit further offences while in custody. A difficulty, which this case highlights, arises when an offender is not actually serving a current sentence of imprisonment.
Like s 70, s 72 refers to primary and existing sentences. Logically, the existing sentence should be the sentence which is currently being served and the primary sentence should be the sentence that is imposed at the end of, or during, the existing sentence.
However where, by the time of sentencing for the new offences, the original sentence has been completed, there is no longer an existing sentence. It is to be remembered that the respondent’s original sentence ended on 14 September 2018. He had been granted parole to commence from 4 December 2017, but he remained in custody because he had been arrested for the current offences. Therefore, when sentenced on 22 October 2018 he was only in custody for the current offences.
The appellant submitted that each individual sentence, referring to the three sentences shown in the above chart, could each be, at the same time, both an existing and a primary sentence.
If the appellant is correct then all of the sentences, absent special circumstances, should have been consecutive upon each other.
The respondent appeared to agree with the appellant but said the existence of special circumstances enabled her Honour to apply the concurrency as between the second and third sentences.
I do not agree with the parties approach to s 72. An interpretation which allows each sentence to have a dual personality, that is, to be at the same time both an existing sentence and a primary sentence, is illogical and unworkable.
The only practical interpretation of the section is that, where there is essentially no pre‑existing sentence, the first sentence imposed (on a chronological scale) must become the existing sentence and any following sentence will be a primary sentence.
Returning to the above chart this means that the sentence that commenced on 4 December 2017 should be viewed as the existing sentence and the sentence commencing on 4 June 2019 as the primary sentence.
At the next stage of sentencing, the sentence commencing on 4 June 2019 becomes the existing sentence, therefore permitting the third sentence, commencing on 6 July 2019, to become the primary sentence.
Looked at in this way it can be seen that s 72 has been complied with because the first two sentences, involving assaults on correction officers, are consecutive. The third sentence also does not offend s 72 because it does not involve a corrections officer and therefore can be served concurrently pursuant to s 72(3).
A further consequence of this interpretation is that it was not necessary for her Honour to have identified special circumstances. This is because the sentences involving the corrections officers are consecutive.
It follows that the validity, or otherwise, of her Honour’s identification of special circumstances does not need to be examined.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 6 March 2020 |
MOSSOP J:
Introduction
I agree with Rangiah J that in order for the unlawfully inflicting grievous bodily harm and threat to kill sentences to be made concurrent it was necessary for the primary judge to consider that “special circumstances apply”. I disagree with his Honour’s reasons for that conclusion.
I agree, for the reasons that Rangiah J gives, that the primary judge’s finding in relation to special circumstances does not disclose appellable error.
I also agree, for the reasons given by Rangiah J, that the sentences imposed were not manifestly inadequate.
Therefore I agree that the appeal should be dismissed.
The balance of these reasons only address my different reasons for reaching the same conclusion as Rangiah J in relation to the need to establish special circumstances and my reasons for disagreeing with Elkaim J’s conclusion that it was not necessary to find that special circumstances existed.
In the balance of these reasons I will refer to the three sentences imposed as follows:
(a)Assault occasioning actual bodily harm – AOABH;
(b)Unlawfully inflict grievous bodily harm – GBH; and
(c)Threat to kill – TTK.
The issue
The relevant sections of the Sentencing Act are set out in the reasons of Rangiah J. The difficulty with the interpretation of ss 70 and 72 is how to apply the defined terms “primary sentence” and “existing sentence” in circumstances where multiple sentences of imprisonment are being imposed in a single proceeding.
Simple explanation
In the circumstances of the present case the effect of s 70(1)(a)(iii) is that each sentence is an existing sentence for each other sentence. This means that:
(a)When the AOABH sentence is the primary sentence then the GBH sentence and the TTK sentences are existing sentences;
(b)When the GBH sentence is the primary sentence then the AOABH sentence and the TTK sentences are existing sentences; and
(c)When the TTK sentence is the primary sentence then the GBH sentence and the AOABH sentences are existing sentences.
This means that all sentences needed to be cumulative unless “the court considers that special circumstances apply”: s 72(4). It means that in the present case special circumstances needed to exist for the GBH and TTK sentences to be concurrent.
This is consistent with both the approach of the primary judge: see R v Potts [2018] ACTSC 299 at [44] and the submissions made by the Crown on appeal. It is compelled by the language of s 70(1)(a)(iii).
Complex explanation
Elkaim J and Rangiah J have each proposed the sequential application of s 72 so that when the first of several sentences is imposed in a particular proceeding there is no “existing sentence” for the purposes of s 70. I do not agree that this is the operation of these two sections.
For the purposes of what follows I will consider the situation that exists prior to any sentence being made concurrent pursuant to s 72(4) on the basis that special circumstances exist. In other words, I will discuss the prima facie position that applies as a result of the application of the prohibition in s 72(4) on the making of a direction that a primary sentence be served concurrently with an existing sentence. In order to distinguish between sentences for offences involving causing harm or threatening to cause harm to a corrections officer and other sentences, I will refer to the former as “Officer Sentences” and the latter as “Other Sentences”.
It is important to note that s 72(4) only prohibits concurrency where the primary sentence is an Officer Sentence. It does not operate where an Other Sentence is the primary sentence.
If the exercise of applying s 72(4) is a sequential one (as Elkaim J and Rangiah J suggest) and the only existing sentences to be considered are those that are to be imposed in the same proceedings, then, where there is a mix of sentences to which s 72(4) does and does not apply, different outcomes will be reached depending upon which sentence is imposed first. This is illustrated by the following two scenarios.
If an Officer Sentence is imposed first then at this point there is no existing sentence. If an Other Sentence is next imposed then the Officer Sentence is an existing sentence and the Other Sentence is the primary sentence. Because the primary sentence is not an Officer Sentence then the prohibition on concurrency in s 72(4) does not apply and the sentences may be concurrent.
If however, the Other Sentence is imposed first and the Officer Sentence imposed second then, when the Officer Sentence is imposed, it is the primary sentence and there is an existing sentence so that the prohibition on concurrency applies and the sentences must be cumulative.
These two scenarios are illustrated in the following diagrams:
What is significant about a sequential approach to the operation of ss 70 and 72 is that it means that for the first sentence imposed there is no existing sentence. As a consequence, the prohibition on concurrency cannot be triggered in relation to this first sentence. It is for that reason that s 72(4) will have a different operation depending upon whether an Officer Sentence or an Other Sentence is imposed first.
The difference between the approach adopted by Rangiah J and that adopted by Elkaim J is whether a sequential operation of s 72 should be based upon the order in which the sentences are pronounced or the order in which the periods of imprisonment imposed by those sentences would operate. Rangiah J adopts the former. Elkaim J adopts the latter.
In my respectful view neither approach is correct. The reason for this is that the sequential approach, which leaves the first sentence imposed without any “existing sentence”, fails to give effect to the statutory language in s 70 which provides the definition of “existing sentence”.
Section 70(1)(a)(iii) requires that each sentence imposed in the “same proceeding” be an existing sentence. That means that in considering any primary sentence each sentence already imposed or to be imposed in the same proceeding must be considered an existing sentence. Clearly, the expression “existing sentence” must, having regard to the terms of s 70(1)(a)(iii), bear an artificial meaning. In contrast to the approach taken by Rangiah J and Elkaim J it means that where multiple sentences are imposed in a single proceeding then there will always be an existing sentence in relation to any sentence imposed. This means that the order in which sentences are imposed will make no difference because each primary sentence will look to all other sentences imposed or to be imposed in the proceeding not just those already imposed. That is illustrated by reconsidering the examples given above.
If the Officer Offence is imposed first then it must look to the Other Sentence as an existing sentence and cannot be concurrent with it. If the Other Sentence is imposed first then the Officer Sentence is an existing sentence but the prohibition in s 72(4) does not apply because the primary sentence is not an Officer Sentence. However, the prohibition on concurrency applies when the Officer Offence is imposed because it becomes the primary sentence and the Other Sentence becomes the existing sentence. Thus in both cases concurrency is excluded and cumulation required. These revised scenarios are illustrated in the diagrams below.
What s 72 does is to compel the Officer Sentences to be cumulative with each other and with any Other Sentence. If there is more than one Other Sentence then those Other Sentences may be concurrent with each other but not with the Officer Sentence.
This approach means that there is no different outcome, which ever order the sentences are imposed. This is illustrated by considering the sentences imposed in this case.
Adopting the order of pronouncement the position is as follows. The TTK sentence is an Other Sentence. When it is the primary sentence s 72(4) has no application because it is not an Officer Sentence. The GBH offence is an Officer Sentence. When it is the primary sentence both other sentences are existing sentences and it must be cumulative upon them. Therefore, if it is to be concurrent with the sentence for TTK (as it was) special circumstances must exist. When the AOABH sentence is reached, it is an Officer Offence and hence when it is the primary sentence s 72(4) applies and requires that it be cumulative upon the other sentences, which it was.
This is illustrated in the following diagram:
If the relevant order is the order of commencement of sentences of imprisonment then the position is as follows. The AOABH charge is the first primary sentence. Because it is an Officer Sentence it must be cumulative upon the other sentences, which it is. When the GBH offence is the primary sentence it is required to be cumulative upon all other sentences. Therefore, if the TTK charge is to be concurrent with it (as it was), special circumstances must be demonstrated. When the TTK sentence is the primary sentence then, because it is an Other Sentence, s 72(4) is not triggered but the prohibition on concurrency has already been achieved when the GBH sentence was imposed.
This is illustrated in the following diagram:
The outcome in both cases is that if there is to be concurrency between the GBH sentence and the TTK sentence (as was the case in the sentences pronounced by the primary judge), then special circumstances must be demonstrated. This is illustrated in the following diagram:
This is the same conclusion as reached by Rangiah J, although for different reasons.
I respectfully disagree with the approach identified by Rangiah J at [109]-[111] because in my view no implication of a temporal sequence for the operation of paragraph (iii) can be taken from paragraphs (i) and (ii) of s 70(1)(a). Paragraph (iii) clearly refers generally to any other sentence imposed in the same proceedings and is inconsistent with the imposition of a temporal qualification upon its operation. Further, there is no need for any such implication because the provision has a sensible and consistent operation without such an implication.
I also respectfully disagree with the reasons of Elkaim J at [16], that there is any difficulty with each sentence being at different times a primary sentence and an existing sentence. Section 72 operates upon each sentence as it is imposed. When a particular sentence is imposed it is the primary sentence and looks to all other sentences imposed in the proceedings as existing sentences. The language of s 70(1)(a)(iii), which requires all other sentences imposed in the proceedings, whether before or after the primary sentence, to be existing sentences, ensures that there is no difference in outcome depending upon the order of pronouncement or imposition.
Finally, I note that nothing in this case required the consideration of the operation of s 70(2). Nothing in these reasons should be taken as indicating that the operation of this provision is necessarily without difficulty.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 6 March 2020 |
RANGIAH J:
The Crown appeals against orders made by the Chief Justice on 22 October 2018 sentencing the respondent to three terms of imprisonment.
The grounds of the appeal are, first, that her Honour erred in failing to properly apply s 72 of the Sentencing Act and, second, that the sentence is manifestly inadequate.
I will describe the offences, the sentences and the primary judge’s sentencing remarks before considering the grounds of appeal.
The offences, the sentences and the sentencing remarks
The respondent was serving a sentence of imprisonment at the Alexander Maconochie Centre in the Australian Capital Territory. On 14 and 15 January 2017, the respondent ingested methamphetamine (Ice) and developed psychotic symptoms.
On 15 January 2017, the respondent threatened his cell-mate, who activated the cell- alarm. A number of corrections officers attended the cell. The respondent became agitated. The corrections officers asked him to place his hands through the cell-hatch to be handcuffed. He placed his hands through the hatch, but after only one hand had been cuffed, he withdrew them.
The respondent started punching his cell-mate and threatening to kill him, placing the handcuff-chain against his cell-mate’s throat. The corrections officers opened the cell door and entered the cell.
The respondent punched a corrections officer, Aristotle Trikas, in the face. The respondent then swung Officer Trikas face-forward into a desk. His face smashed into the desk, and he fell to the ground.
The respondent then attempted to force his way out of the cell, punching another corrections officer, Edward Wylie, in the face. The contact by the respondent’s fist or the handcuff caused minor facial lacerations to Officer Wylie.
Following a trial before a jury from 17 to 24 July 2018, the respondent was acquitted of charges of strangulation of the cell-mate and recklessly inflicting grievous bodily harm upon Officer Trikas. However, he was convicted of the following offences:
(a)Threatening to kill the cell-mate contrary to s 30 of the Crimes Act 1900 (ACT) (the Crimes Act);
(b)Unlawfully causing grievous bodily harm to Officer Trikas, contrary to s 25 of the Crimes Act; and
(c)Assault occasioning bodily harm to Officer Wylie, contrary to s 24 of the Crimes Act.
The respondent was sentenced for these offences on 22 October 2018. The history of events between the respondent being charged on 15 January 2017 and the date of sentencing has some significance in the case.
The respondent’s nonparole date in respect of the imprisonment he was already serving was 5 July 2017 and his full-time release date was 14 September 2018. He was granted parole on 4 December 2017, but, on 20 December 2017, he was refused bail in respect of the 15 January 2017 charges. There are two relevant matters arising from this chronology: first, since 4 December 2017, the respondent had remained in custody solely on account of the 15 January 2017 offences; and second, he was not serving a sentence of imprisonment at the time he was sentenced for those offences.
The primary judge found that Officer Trikas had suffered a fracture of the base of his skull, fractured nasal bones, facial injuries, including nerve damage, and spinal injuries, including a fracture of the C7 vertebrae. He was hospitalised for nine days. He suffers from post-traumatic stress disorder. He has been unable to return to work because of his physical and psychological injuries. His neck has not recovered to its pre-injury condition.
The primary judge found that the offences against the corrections officers were objectively serious, involving unprovoked and deliberate unlawful assaults against officers who were endeavouring to fulfil their duties to protect a prisoner who had been threatened.
The primary judge observed that the incident had taken a terrible toll on Officer Trikas. Her Honour considered that the grievous bodily harm suffered by Officer Trikas was very significant and multifaceted, with substantial ongoing sequelae. However, the injuries were not in the most serious category.
Her Honour noted that the injuries to Officer Wylie were minor, but that there had been a risk of serious injury associated with striking his face.
The primary judge found that the offence against the other prisoner was objectively very serious. Her Honour observed that prisoners are vulnerable when in custody and that violence against prisoners should be dealt with very sternly. Her Honour noted that the threat to kill was reinforced by physical assaults, including holding the handcuff-chain to the prisoner’s throat.
The primary judge observed that the respondent had spent much of his adult life in custody, primarily for offences of dishonesty, although offences of violence were also prominent in his criminal history. In particular, in August 2009, he received an effective sentence of three-and-a-half years’ imprisonment for culpable driving which had resulted in the death of a passenger. On 20 June 2015, the respondent was returned to custody and had been in custody since then.
The respondent was 28 years old at the time of the offences. He described a supportive upbringing. He had difficulties at primary school, being diagnosed with ADHD. He used cannabis from the age of 11 years and later commenced using Ice. He had a history of mental health difficulties. He claimed to have been virtually drug-free since committing the offences in question.
The primary judge accepted that the respondent was remorseful about his conduct. Her Honour was persuaded that, “the penny has dropped”. The primary judge stated:
The offender impressed me as intelligent, mature and insightful. Given his level of insight, the fact that he has remained drug-free while in custody and the fact that he enjoys strong support from his family, I am as optimistic as one can be that the offender has reached a “cross-roads” and will maintain rehabilitation when he returns to the community.
The primary judge referred to s 72(2) and (4) of the Sentencing Act and stated that, in the absence of a direction under s 72(3), the sentences imposed must be served consecutively on the sentences that the offender was serving at the time of the offences—that is, should not commence before 14 September 2018. Her Honour also stated that each of the sentences under consideration fell within the meaning of an “existing sentence” within s 70(1)(a)(iii) of the Sentencing Act and, prima facie, must accumulate upon the other sentences. The primary judge found that there were special circumstances for commencing the current sentences prior to 14 September 2018, namely the fact that the respondent was granted parole from 4 December 2017 and had been held in custody since that date solely because of the present offences. Her Honour decided that the sentences should be backdated to 4 December 2017. Her Honour’s view that it was necessary for there to be special circumstances to backdate the sentences was incorrect, as will be discussed, but the error was ultimately immaterial.
The primary judge went on to find that there were special circumstances for the sentences to be made partly concurrent, rather than entirely consecutive, namely that the offences were part of the same incident and were virtually contemporaneous. As will be seen, her Honour ultimately directed partial concurrency for only two of the sentences.
Her Honour had regard to the sentencing purposes under s 7 of the Sentencing Act and the protection of corrective services officers and prisoners, who require special protection by virtue of their heightened vulnerability within the prison environment.
The primary judge pronounced the following sentences, in the following order:
(a)Threatening to kill the other prisoner (Threat to Kill)—three years’ imprisonment from 6 July 2019 to 5 July 2022;
(b) Unlawfully causing grievous bodily harm (GBH) to Officer Trikas—30 months’ imprisonment from 4 June 2019 to 3 December 2021; and
(c)Assault occasioning bodily harm (AOBH) upon Officer Wylie—18 months’ imprisonment from 4 December 2017 to 3 June 2019.
The primary judge set a nonparole period expiring on 19 February 2020. That was a period of four years, eight months from the date the respondent entered custody in relation to his pre-existing sentences (20 June 2015). It was a period of two years, two months, 15 days from the commencement of the sentence on 4 December 2017.
The submissions
The Crown submits that the primary judge erred in applying s 72 of the Sentencing Act. It argues that, in the circumstances of the case, the effect of ss 70 and 72 was to create a statutory presumption that the sentences were to be wholly consecutive, but the primary judge made the sentences for the Threat to Kill and GBH only partially consecutive. The Crown submits that her Honour erred in finding that there were “special circumstances” justifying a departure from the presumptive position. The Crown submits that nothing about the circumstances that all the offences occurred as part of the same incident and virtually at the same time made them “special” for the purposes of s 72(4) of the Sentencing Act.
The Crown submits that the sentences imposed were manifestly inadequate because, first, there was inadequate accumulation of the sentences imposed and, second, the nonparole period was inadequate. The Crown observes that the sentence for GBH upon Officer Trikas was made almost entirely concurrent with the sentence for the Threat to Kill. The Crown submits that the respondent received the kind of discount for multiple offending that appellate courts have cautioned against. The Crown argues that, in practical terms, the respondent hardly had additional time added to his head sentence for the vicious attack causing GBH to Officer Trikas.
The Crown submits that the overall head sentence is manifestly inadequate and, as a result, the nonparole period is also manifestly inadequate. The aggregate sentence was four years, seven months, one day. The Crown submits that the sentence is manifestly inadequate in light of the objectively serious nature of the offending, the infliction of serious and life changing injuries on Officer Trikas, that the offending occurred in a custodial environment, that two of the offences involved harm to corrections officers and the respondent’s appalling criminal history.
The respondent concurs with the Crown’s submission that it was necessary for the primary judge to find special circumstances before there could be a direction that two of the sentences were to be served partially concurrently. However, the respondent submits that there was no error in her Honour’s finding that there were special circumstances to justify such a direction. The respondent also submits that the sentences were not manifestly inadequate.
Consideration
The primary judge pronounced the sentences upon the respondent in the following order: First, for the Threat to Kill; second, for GBH to Officer Trikas; and, third, for AOBH upon Officer Wylie.
However, her Honour’s orders provided for the commencement of each term of imprisonment in the reverse order. The sentence which commenced earliest in time was for AOBH, starting on 4 December 2017 and ending on 3 June 2019. The sentence for GBH was wholly consecutive upon the sentence for AOBH, starting on 4 June 2019 and ending on 3 December 2021. The sentence for the Threat to Kill was partly consecutive and partly concurrent with the sentence for GBH, commencing on 6 July 2019 and ending on 5 July 2022.
The primary judge proceeded on the basis that s 72(4) of the Sentencing Act required that special circumstances must exist before the sentence for the Threat to Kill and the sentence for GBH could be made partly concurrent. Her Honour found that special circumstances existed. That finding was the focus of the parties’ competing submissions in the appeal.
However, a question arises as to whether, upon the proper construction of Pt 5.3 of the Sentencing Act, there was any necessity for special circumstances to exist before the sentences could be made partly concurrent. That question should be considered first.
Construction of Pt 5.3 of the Sentencing Act: whether special circumstances were necessary
The relevant provisions of the Sentencing Act are as follows:
Part 5.3Imprisonment—concurrent and consecutive sentences
69Definitions—pt 5.3
In this part:
existing sentence—see section 70 (1).
…
primary sentence—see section 70 (1).
70Application—pt 5.3
(1)This part applies to a sentence of imprisonment (a primary sentence) imposed by a court on an offender if—
(a) any of the following apply in relation to the offender:
(i) when the primary sentence is imposed, the offender is serving another sentence of imprisonment (an existing sentence);
(ii) the offender has been sentenced to another sentence of imprisonment (also an existing sentence) but, when the primary sentence is imposed, the other sentence has not yet started;
(iii) the offender is sentenced to another sentence of imprisonment (also an existing sentence) in the same proceeding; and
(b) the existing sentence is for an offence against a territory law; and
(c) the primary sentence is not fully suspended.
(2)In this section:
sentence of imprisonment does not include any nonparole period that has been set for the primary sentence.
71Concurrent and consecutive sentences—general rule
(1)In the absence of a direction under subsection (2), the primary sentence must be served concurrently with the existing sentence.
(2)The court may direct that the primary sentence be served consecutively (or partly concurrently and partly consecutively) with the existing sentence.
(3)This section is subject to the following provisions:
(a) section 38 (Sentences of imprisonment and uncompleted young offender orders);
(b) section 72 (Concurrent and consecutive sentences—offences while in custody or unlawfully absent);
(c) section 73 (Concurrent and consecutive sentences—fine default offences);
(d) section 80 (Intensive correction orders—concurrent and consecutive periods).
72Concurrent and consecutive sentences—offences while in custody or unlawfully absent
(1)This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a) an offence committed while the offender was in lawful custody;
(b) an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment;
(c) an offence involving an escape from lawful custody.
…
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
(Notes omitted)
Section 70 serves two purposes. The first is to identify the circumstances in which Pt 5.3 (ss 69–75) applies. The second is to define the expressions “primary sentence” and “existing sentence”, which are pivotal in the operation of ss 71 and 72.
Part 5.3 applied to the respondent’s sentencing. That was because, within s 70(1)(a)(iii), the respondent was sentenced to three terms of imprisonment in the same proceeding and the requirements of s 70(1)(b) and (c) were satisfied. It may be noted that s 70(1)(a)(i) did not apply, as the respondent’s previous term of imprisonment had expired by the time he was sentenced, and s 70(1)(a)(ii) was irrelevant.
Section 70(1)(a)(iii) proceeds on the basis that where an offender is sentenced to more than one sentence of imprisonment in the same proceeding, at least one sentence will be taken to be the “existing sentence” and at least one will be taken to be the “primary sentence”. As will be discussed, there is difficulty in understanding which of the sentences is to be regarded as an “existing sentence” and which is to be regarded as a “primary sentence”.
Under s 71(1), the default, or ordinary, position is that the “primary sentence” must be served concurrently with the “existing sentence”: see Ndlovu v The Queen [2018] ACTCA 33; 336 FLR 307 at [31] (Ndlovu). Section 71(2) then provides that the court may direct that the “primary sentence” be served consecutively (or partly concurrently and partly consecutively) with the “existing sentence”.
However, ss 71(1) and (2) do not apply in respect of sentences of imprisonment for offences committed while the offender is in lawful custody or unlawfully absent during a term of imprisonment, or for offences involving an escape from lawful custody: see ss 71(3)(b) and 72(1). In such a case, the effect of s 72(2) is that the default position is reversed, so that the “primary sentence” must be served consecutively with an “existing sentence” of imprisonment, unless a direction under s 72(3) is made: see The Queen v Rappel [2019] ACTCA 11 at [23] (Rappel). Under s 72(3), the court may direct that the “primary sentence” be served concurrently (or partly concurrently and partly consecutively) with the “existing sentence”.
However, s 72(4) provides that if the “primary sentence” is for an offence that involves causing harm, or threatening to cause harm, to a corrections officer, the court must not give a direction under s 72(3) unless the court considers that special circumstances apply. It may be observed that s 72(4) is engaged only where the “primary sentence” (rather than the “existing sentence”) involves causing harm, or threatening to cause harm, to a corrections officer. That brings sharply into focus the necessity to identify the “primary sentence”. Identification of the “primary sentence” also necessarily requires identification of the “existing sentence”.
These issues are informed by the purpose of s 72. That purpose was described in Rappel as follows:
[24]The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance…
The application of s 72 is limited to sentences of imprisonment for offences committed while in, or having escaped from, lawful custody, or where the offence involves escaping from lawful custody. Where the offender is already serving a term of imprisonment at the time of sentencing (the circumstance described in s 70(1)(a)(i)), or is subject to a fully suspended term of imprisonment (the circumstance described in s 70(1)(a)(ii)), there is no difficulty in understanding the sentence already being served, or the suspended sentence, as the “existing sentence” and the further sentence as the “primary sentence”. It is unnecessary, for present purposes, to consider the complications that may arise under those provisions where there is more than one further sentence.
The position is more difficult under s 70(1)(a)(iii). That provision applies only where the offender is not serving a term of imprisonment and not subject to a fully suspended sentence of imprisonment at the time of sentencing. That is so because s 70(1)(a)(iii) will only apply in circumstances where s 70(1)(a)(i) and (ii) do not apply, the latter being more specific provisions which apply to the exclusion of the general provision: see Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 at 7.
Accordingly, s 70(1)(a)(iii) applies where, at the time of sentencing, the offender is sentenced to two or more terms of imprisonment in the same proceeding, but is not serving a term of imprisonment and not subject to a wholly suspended sentence of imprisonment.
In s 70(1)(a)(iii), the term “existing sentence” must refer to one or more of the sentences of imprisonment that is being imposed. The difficulty in identifying the “existing sentence” arises, in part, from the use of that inapt expression when none of the sentences of imprisonment to which the provision relates is, in fact, existing. However, in s 70, “existing sentence” is a defined term and, in s 70(1)(a)(iii), may be seen as intending to provide a meaning that has a degree of artificiality.
The Crown submits that where s 70(1)(a)(iii) applies, each of the sentences of imprisonment should be understood as having a character of being at once both an “existing” and a “primary” sentence. The Crown submits that it follows that, in the present case, each sentence must be consecutive upon each other, absent special circumstances. That is because, upon the Crown’s argument, each sentence will be a “primary sentence”. The respondent agrees with the Crown’s submission (but submits that the primary judge was correct to find there were special circumstances).
The construction of s 72 contended for by the Crown is inconsistent with the language of s 70(1)(a)(iii). Section 70(1)(a)(iii) provides:
This part applies to a sentence of imprisonment (a primary sentence) imposed by a court on an offender if…the offender is sentenced to another sentence of imprisonment (also an existing sentence) in the same proceeding.
The definition of “existing sentence” as “another sentence of imprisonment”, indicates that an “existing sentence” is a different sentence (for a different offence) than a “primary sentence”. Therefore, a sentence cannot be at once an “existing sentence” and a “primary sentence”. While it may be recognised that the meaning of “existing sentence” is intended to have some degree of artificiality, the Crown’s submission that each of the sentences to which s 70(1)(a)(iii) applies has a dual character as both an “existing sentence” and a “primary sentence” involves excessive contortion of the language of the provision.
The construction of s 70(1)(a)(iii) contended for by the Crown is not only inconsistent with the language of the provision, but is productive of confusion and potentially anomalous and unintended outcomes. Section 72 does not require that there must always be special circumstances in order for sentences for offences committed while in lawful custody to be served concurrently – the requirement of special circumstances applies only to sentences for offences that involve causing harm, or threatening to cause harm, to corrections officers. In other circumstances, the issue of concurrency is determined by the sentencing judge’s assessment of the appropriateness of the sentences. The Crown’s construction of s 70(1)(a)(iii), such that each offence is at once a “primary sentence” and an “existing sentence”, could result in sentences being made consecutive where that is not consistent with the intended operation of the provision. For example, if two offences of assaulting corrections officers and two offences of intentionally damaging property are committed in custody, then, absent special circumstances, the intended operation of s 72 must be that sentences for the assaults are to be consecutive upon each other and consecutive upon the sentences for intentional damage, but that the sentences for intentional damage may be served concurrently with each other. However, depending upon the order in which the sentences are to be served, all four sentences may be required to be served consecutively in the absence of special circumstances (such as where the order is assault/intentional damage/assault/intentional damage). That would create the potential for an anomalous and unintended result.
There is a preferable construction of an “existing sentence” and a “primary sentence” for the purposes of s 70(1)(a)(iii).
In s 70, a “primary sentence” is defined to be a sentence of imprisonment imposed by a court on an offender if any of three circumstances apply in relation to the offender. The first of those circumstances, in s 70(1)(a)(i), is, “if the offender is serving a sentence of imprisonment (called “an existing sentence”) and another sentence is imposed (called the “primary sentence”)”. In that case, the “existing sentence” and the “primary sentence” are identified temporally.
The second circumstance, in s 70(1)(a)(ii), is where the offender, “has been sentenced to another sentence of imprisonment (also an “existing sentence”), but when the “primary sentence” is imposed, the other sentence has not yet started”. Again, the “existing sentence” and the “primary sentence” are identified temporally.
In my opinion, an “existing sentence” and a “primary sentence” under s 70(1)(a)(iii), should, consonantly with s 70(1)(a)(i) and (ii), also be identified temporally. Such a construction is consistent with the language of s 70(1)(a)(iii), which refers to an “existing sentence” and a “primary sentence” as separate sentences within the same proceeding, the former preceding the latter. Thus, the provision envisages that an “existing sentence” will be pronounced before a “primary sentence”. In other words, where there are two sentences of imprisonment imposed in the same proceeding, the first sentence pronounced is the “existing sentence” and the second is the “primary sentence”.
Where there are more than two sentences of imprisonment imposed in the same proceeding, the position is more complex, but the present case can be used to illustrate how ss 70(1)(a)(iii) and 72 are intended to operate. The primary judge pronounced the sentence of imprisonment for the Threat to Kill first. That was logical because it was the first in time (and the first in the indictment). Her Honour next pronounced the sentence for GBH on Officer Trikas. The sentence of imprisonment for the Threat to Kill became the “existing sentence” and the sentence for GBH became the “primary sentence”. As the offences were committed while the respondent was in lawful custody, s 72(2) required that the “primary sentence” (for GBH) be served consecutively with the “existing sentence” (for the Threat to Kill). Section 72(4) prohibited the court from giving a direction under s 72(3) that the sentence for GBH be served concurrently, or partly concurrently, with the sentence for the Threat to Kill, absent special circumstances, because GBH was an offence that involved causing harm to a corrections officer. The primary judge found that there were special circumstances, which allowed a direction to be made under s 72(3).
The third sentence of imprisonment pronounced by the primary judge was for the AOBH on Officer Wylie. The sentence for GBH became the “existing sentence” and the sentence for AOBH was the “primary sentence”. They were required, under s 72(4), to be served consecutively unless the court considered there were special circumstances because the “primary sentence” (for AOBH) was for an offence that involved causing harm to a corrections officer. The primary judge ordered that the sentences be served consecutively, implicitly because her Honour did not consider that special circumstances existed for ordering that they be served concurrently or partly concurrently.
The Crown submits that under a construction of s 70(1)(a)(iii) such that the “primary sentence” and the “existing sentence” are identified temporally, the order in which the sentences are pronounced may make a difference to the outcome. That is true. The point may be demonstrated by considering what would have happened in the present case if the sentences were instead pronounced in a different order – for GBH first, then for AOBH, then for the Threat to Kill. After the sentence for GBH was pronounced, it would become the “existing sentence” and the AOBH sentence would become the “primary sentence”. The sentences would be served consecutively, absent special circumstances, because the “primary sentence” (for AOBH) was for an offence involving harm to a corrections officer. Then, the AOBH sentence would become the “existing sentence” and the sentence for the Threat to Kill would be the “primary sentence”. Since the “primary sentence” (“the Threat to Kill”) did not involve a threat against a corrections officer, s 72(4) would not apply to it. Therefore, an order could be made that the sentence for the Threat to Kill be served concurrently with the sentence for AOBH on a corrections officer (the “existing sentence”) without the need for special circumstances.
In contrast, as the Threat to Kill sentence was pronounced first by the primary judge, there was a requirement for special circumstances before that sentence could be ordered to be served concurrently with the sentence for GBH on a corrections officer. The difference arises because s 72(4) only applies to a “primary sentence”, and the order in which sentences are pronounced makes a difference to which sentence is taken to be the “primary sentence”. In this way, a different outcome may be produced depending upon the order in which the sentences are pronounced.
That consequence is not fatal to the construction of s 70(1)(a)(iii) I prefer, namely that the “primary sentence” and the “existing sentence” are identified by the order in which they are pronounced. It is for the sentencing judge to decide the order in which the sentences are pronounced. The consequence of this construction is simply that the sentencing judge will have to be vigilant to ensure that the sentences are pronounced in an order that does not subvert the purpose of s 72 of deterring offences that involve causing harm, or threatening to cause harm, to corrections officers. Further, the alternative construction contended for by the Crown suffers from the same difficulty that the order of the sentences may affect the outcome. That is demonstrated by the example given in [107] above.
Although the primary judge pronounced the sentence for the Threat to Kill first, followed by GBH and then AOBH, somewhat confusingly, the terms of imprisonment were ordered to commence in the reverse order, so that the term of AOBH commenced first, followed by GBH, then the Threat to Kill. However, on the construction of s 70(1)(a)(iii) as requiring identification of the “primary sentence” and the “existing sentence” according to the order in which the sentences are pronounced, the order in which the sentences were to be served made no difference to the outcome.
I have considered whether s 70(1)(a)(iii) should instead be construed such that the “primary sentence” and the “existing sentence” are identified by the order in which the sentences are to be served. However, that would create further difficulties. For example, in a circumstance where two sentences were ordered to be served wholly concurrently, one could not be distinguished as the “primary sentence” and the other as the “existing sentence”.
Accordingly, s 70(1)(a)(iii) should be construed such that the “primary sentence” and the “existing sentence” are identified by the order in which they are pronounced. While the consequences of this construction are capable of causing complication for a sentencing judge, that is a product of the drafting of ss 70(1)(a)(iii) and 72(4). In my opinion, this is the construction which most closely conforms to the statutory language and minimises the potential for unjust consequences.
In the present case, the primary judge was correct to hold that it was necessary to find that special circumstances existed before the sentences of imprisonment for Threat to Kill and GBH could be ordered to be served partly concurrently.
Whether the primary judge erred in holding that special circumstances existed
The primary judge considered the question of special circumstances in two contexts. First, her Honour decided that, absent special circumstances, s 72(2) and (4) of the Sentencing Act required that the sentences for the offences of Threat to Kill, GBH and AOBH be served consecutively upon the sentence the respondent was serving when he committed those offences. Her Honour considered, in other words, that there had to be special circumstances to allow any of the sentences to commence before 14 September 2018, when the respondent’s previous term of imprisonment expired. Her Honour found that special circumstances existed for such a direction, namely that the respondent had been granted parole on 4 December 2017 and the respondent had been held in custody solely for the current offences since then.
The primary judge apparently concluded that special circumstances were required to backdate the sentences being imposed for the 15 January 2017 offences because her Honour regarded those sentences as “primary sentences” and the previous sentence of imprisonment as an “existing sentence” for s 72(2), (3) and (4). However, the sentence of imprisonment that had already expired was not an “existing sentence” within s 70(1)(a)(i), because that provision requires that the offender be serving another term of imprisonment, “when the primary sentence is imposed”. The previous sentence of imprisonment had expired prior to the sentencing proceedings conducted on 22 October 2018. Neither did the previous sentence fall within the definition of “existing sentence” in s 70(1)(a)(ii) or (iii). Accordingly, it was unnecessary for the primary judge to find that special circumstances existed before the sentences being imposed could be backdated to the parole date for the previous sentence. Her Honour’s approach ultimately made no difference to the outcome of the sentencing proceeding, but serves to demonstrate another aspect of confusion created by the drafting of ss 70 and 72.
The second way in which the issue of special circumstances arose was that the primary judge found that special circumstances existed for the sentences for Threat to Kill and GBH on a corrections officer to be served partly concurrently. Her Honour described the special circumstances as follows:
Further, I find that there are special circumstances for the impending sentences to be made partly concurrent rather than entirely consecutive, being that the offences were part of the same incident and were virtuously contemporaneous.
The Crown submits that “special circumstances” in s 72(4) of the Sentencing Act are unusual or uncommon circumstances that would make it unduly harsh for the sentences to be served cumulatively. That submission should be accepted.
The Crown submits that the fact that the offences were part of the same incident and occurred at the same time was not unusual or uncommon; and that it is common for courts to deal with incidents that occur over a short period of time, but which are punctuated by multiple offences which, although similar in nature, are separate and discrete.
However, the Crown’s submission does not accurately characterise her Honour’s finding that special circumstances existed or the reasons for that finding. Her Honour considered that the circumstances that the offences were part of the same incident and were virtually contemporaneous provided special circumstances that justified the sentences of imprisonment for the Threat to Kill and GBH being served partly concurrently. It is implicit that her Honour considered that the offences were so closely connected in time and circumstance that to require the sentences to be served wholly consecutively would be unduly harsh.
Her Honour’s approach reflected the “totality principle”. That principle requires that when a sentencing judge is considering imposing a series of consecutive sentences, the judge must review the aggregate sentence and consider whether it is just and appropriate; and, where necessary, achieve an appropriate result by making the sentences wholly or partially concurrent, or reducing the length of the individual sentences: see Mill v The Queen (1988) 166 CLR 59 at 63. In Nguyen v The Queen [2016] HCA 17; 256 CLR 656 (Nguyen), Gageler, Nettle and Gordon JJ observed at [64] that the object of sentencing 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 the criminality comprised in the totality of the offences. To similar effect, Bell and Keane JJ observed at [37] that a sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence is just and appropriate to the totality of the appellant’s offending behaviour.
It must be recognised that s 72(4) requires that sentences for offences involving harm or threats to corrections officers by a person who is in lawful custody will ordinarily be wholly consecutive, and intends that there should ordinarily be harsher penalties than might be imposed for similar harm or threats in other circumstances. However, the provision does not suggest that totality is to be completely discarded. To the contrary, the “special circumstances” exception is consistent with the object stated in s 3 of the Sentencing Act of promoting flexibility in sentencing. In Tabbah v The Queen [2019] NSWCCA 324, the New South Wales Court of Criminal Appeal (dealing with s 56(3A) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) held at [137] and [140] that a finding of special circumstances may be made by reference to the totality principle. There is no relevant distinction between that provision and s 72(4) of the Sentencing Act.
The harshness of the aggregate sentence considered by reference to the totality principle may amount to special circumstances for the purposes of s 72(4). The relationship of offences in time and circumstance may contribute to a conclusion that the overall sentence is too harsh and may justify a direction that sentences of imprisonment are to be served concurrently or partially concurrently. I therefore reject the Crown’s submission that the primary judge’s finding that the offences were part of the same incident and virtuously contemporaneous was incapable of leading to a finding of special circumstances sufficient to justify a direction that the sentences were to be served partly concurrently.
The Crown submits that the primary judge was wrong to find that the circumstances identified by her Honour were special circumstances. The Crown submits that her Honour took an unduly liberal approach to that question.
It is the case that a sentencing judge must bear in mind the purposes of s 72(4), described in Rappel at [24] including that, “ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody.” This purpose is particularly evident where the offence involves harm or threats of harm to corrections officers. However, the Crown does not submit that her Honour ignored the purpose of s 72(4). Rather, the Crown submits that her Honour should not have found the circumstances to be sufficiently special. That submission reflects mere disagreement with her Honour’s conclusion.
The relevant question under s 72(4) is not merely whether special circumstances apply, but whether the court considers that special circumstances apply that would make it unduly harsh for the sentences to be served consecutively. It has been held, in the context of sentencing, that a finding of special circumstances is a discretionary finding of fact: The Queen v El-Hayek [2004] NSWCCA 25; 144 A Crim R 90 at [103]; Jiang v The Queen [2010] NSWCCA 277 at [83]; Caristo v The Queen [2011] NSWCCA 7 at [27]. The Crown’s submission in the appeal is, in effect, that the primary judge’s finding should be set aside on the basis that her Honour reached the wrong conclusion. The well-established principles governing appellate review of discretionary decisions make it clear that it is not open to set aside such a finding on such a basis. The Crown’s submission that her Honour erred in finding that there were special circumstances that made it unduly harsh for the sentences to be served wholly consecutively cannot be accepted.
Whether the sentences were manifestly inadequate
The Crown submits that the sentences were manifestly inadequate because, first, there was inadequate accumulation as between the sentences for the Threat to Kill and GBH and, second, the overall aggregate sentence is manifestly inadequate, with the result that the nonparole period is also manifestly inadequate.
It will be recalled that the sentences imposed upon the respondent were:
(a) AOBH — 18 months’ imprisonment;
(b) GBH — 30 months’ imprisonment;
(c) Threat to kill — 3 years’ imprisonment.
The sentences for AOBH and GBH were required to be served wholly consecutively. The sentences for GBH and Threat to Kill were partially concurrent, the sentence for the Threat to Kill commencing one month after the sentence for GBH and ending eight months after that sentence. There was a very substantial degree of concurrency between the sentences for GBH and the Threat to Kill.
In Nguyen, Bell and Keane JJ observed at [37] that just as sentencing judges are accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, judges are to be accorded the same flexibility in determining the structure of two or more sentences. In the same case, Gageler, Gordon and Nettle JJ observed at [64] that the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect totality, whereas more severe individual sentences may necessitate a greater degree of concurrency. In the circumstances of this case, there appears to be little point in examining the degree of concurrency of the sentences for the Threat to Kill and GBH without first considering the adequacy of the aggregate sentence.
The primary judge imposed an aggregate sentence of four years, seven months, one day for the three offences of Threat to Kill, GBH and AOBH. The offending was aggravated by the fact that it was against a vulnerable prisoner and two corrections officers while the respondent was in lawful custody. Her Honour found that the offence had taken a terrible toll on Officer Trikas and had caused substantial ongoing sequelae for him. The respondent’s criminal history was appalling. If seen in light of these factors alone, the aggregate sentence of four years, seven months, one day can be regarded as unduly lenient.
However, one of the factors that influenced the primary judge to adopt a lenient approach was her Honour’s strong persuasion that “the penny has dropped” and that there was a strong prospect that the respondent would maintain his rehabilitation when he returned to the community. Her Honour also observed that the offences occurred in the course of one short overall period of violence. In light of her Honour’s firm findings as to the respondent’s prospect of rehabilitation the aggregate sentence has not been shown to be manifestly inadequate.
Since the Crown’s submission that the nonparole period was manifestly inadequate depended upon the success of its submission that the aggregate sentence was manifestly inadequate, that submission must also fail.
In light of my conclusion that the aggregate sentence has not been shown to be manifestly inadequate, the exercise of her Honour’s discretion as to the structure of the sentences has not been demonstrated to have miscarried.
Conclusion
For these reasons, the Crown’s appeal must be dismissed.
This case brings to light the confusing way in which Pt 5.3 of the Sentencing Act is drafted, particularly the definitions of “existing sentence” and “primary sentence” and the application of those terms. I recommend that consideration should be given to reviewing Pt 5.3. In particular, consideration should be given to whether adoption of the drafting used in Div 2 of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would lead to less confusion and complexity.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Rangiah. Associate: Date: 6 March 2020 |
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