Thomson v The Queen

[2014] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Thomson v R [2014] NSWCCA 88

Hearing dates:

13 May 2014

Decision date:

21 May 2014

Before:

Gleeson JA at [1];
R A Hulme J at [65];
Campbell J at [66]

Decision:

1. Grant leave to appeal.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - Appeal - Appeal against sentence - Procedural Fairness - Practical Injustice - Whether the ordering of an intensive corrections order assessment created an expectation that the imposed sentence would be no greater than 2 years and would be served by way of an intensive corrections order - Whether the applicant was denied the opportunity to make further submissions as to sentence

Legislation Cited:

Crimes Act (Cth) 1914 s17A, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW) s 67, 69
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Criminal Code (Cth) 1995 s 135.1(5)

Cases Cited:

Ng v R [2011] NSWCCA 227
Parker v DPP (1992) 28 NSWLR 282
R v Button [2010] NSWCCA 264
R v Glynatsis [2013] NSWCCA 131
R v Ivanovic [2009] NSWCCA 28
R v Purdon (NSWCCA 27 March 1997, unreported, BC9700950)
R v Winchester (1992) 58 A Crim R 345
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Weir v R [2011] NSWCCA 123

Category:

Principal judgment

Parties:

Murray Graham Thomson (Applicant)
Regina (Crown)

Representation:

Counsel:
G Brady (Applicant)
R Ranken (Respondent Crown)
Solicitors:
Nyman Gibson Stewart (Applicant)
Commonwealth Director for Public Prosecutions (Crown)

File Number(s):

2012/196516

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-23 00:00:00

Before:

Arnott DCJ

File Number(s):

2012/196516

Judgment

1. GLEESON JA: Murray Graham Thomson (the applicant) applies for leave to appeal against the sentences imposed on him by his Honour Judge Arnott in the District Court on 23 May 2013.

1. The applicant had pleaded guilty to two offences of dishonestly causing a loss to the Commonwealth, namely that:

(1) between about 26 June 2006 and about 26 February 2009, the applicant did obtain payment of a Newstart Allowance without disclosing that he was already receiving a disability support pension, contrary to s 135.1(5) of the Criminal Code 1995 (Cth) (count 1); and

(2) between about 27 February 2009 and about 7 May 2010, the applicant did obtain a disability support pension without disclosing that he was already receiving a disability support pension, contrary to s 135.1(5) of the Criminal Code (count 2).

1. The maximum penalty prescribed for each offence is imprisonment for 5 years and/or a fine of $33,000.

1. The individual sentences imposed on the applicant were: in respect of count 2 - a fixed term of 9 months imprisonment to commence from 23 May 2013; and in respect of count 1 - a term of 2 years imprisonment to commence from 23 November 2013, with the applicant to be released pursuant to a recognisance release order on 22 July 2014 subject to giving security in the sum of $1,000 without surety.

1. Thus the sentences were partly accumulated for a total term of 2 years and 6 months, with the applicant required to serve a period in custody of 14 months, to be released on 22 July 2014 on a recognisance order to be of good behaviour for 16 months from that date.

Ground of appeal

1. The sole ground of appeal is that the applicant was denied procedural fairness because, it is asserted, the sentencing judge failed to warn the applicant's legal representative that: (a) he intended to impose a total sentence in excess of the sentence indicated during the course of the sentencing proceedings; and (b) he intended to impose a full-time custodial sentence.

1. The applicant's appeal against sentence requires the leave of the Court: s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The respondent does not oppose the grant of leave.

Circumstances of the offence

1. The sentencing judge proceeded on the basis of a statement of agreed facts. In summary, the uncontested facts were as follows.

1. The applicant was receiving disability support pension payments from 21 September 2001 in the name of Murray Graham Thomson, which were paid into a Commonwealth Bank of Australia account in that name. The applicant's claim had been lodged with, and approved by, the Auburn office of Centrelink.

Count 1 - 2006 claim

1. On 26 June 2006 the applicant lodged a claim for Newstart Allowance in the name of Graham John Murray at the Burwood office of Centrelink. The applicant completed and signed a Customer Declaration Form for Newstart Allowance in which he falsely stated that he had not been, or was not, known by any other names and that he had no other income. The claim was accepted and, from 26 June 2006, the applicant received continuous Newstart Allowance payments, which were paid into a Bendigo Bank Limited account in the name of Graham John Murray.

2007 claim

1. On 12 June 2007 the applicant lodged a claim for a disability support pension in the name of Graham John Murray at the Burwood office of Centrelink. This was declined on the basis that he did not meet the medical eligibility criteria. He nevertheless continued to receive Newstart Allowance payments in that name.

Count 2 - 2009 claim

1. On 25 February 2009 the applicant lodged a further claim for a disability support pension or sickness allowance in the name of Graham John Murray at the Burwood office of Centrelink. In this claim form the applicant falsely stated that he had not been, or was not, known by any other names. The applicant also did not disclose that he was then in receipt of disability support pension payments in the name of Murray Graham Thomson.

1. The claim for disability support pension in the name of Graham John Murray was granted and, from 27 February 2009 until 7 May 2010, the applicant received continuous disability support pension payments, which were paid into the Bendigo Bank Limited account in that name. The applicant did not receive any further Newstart Allowance payments in the name of Graham John Murray from 26 February 2009.

1. In January 2010 the applicant attended the Burwood office of Centrelink and participated in a review of his entitlements in the name of Graham John Murray. During that review the applicant was required to complete a form titled "Income and Assets". The only information provided by the applicant was the details of the Bendigo Bank account into which the disability support pension (and previous Newstart Allowance) payments in the name of Graham John Murray were paid.

1. In March 2010 the applicant attended the Auburn office of Centrelink and participated in a review of his entitlements in the name of Murray Graham Thomson. During that review the applicant was required to complete a form titled "Income and Assets Update". The applicant answered "no" to a question in the form, "Do you receive any payments from other sources you have not already advised us about on this form?".

1. Surveillance of the applicant following the reviews conducted in January and March 2010 led to the execution of a search warrant on 14 May 2010 by the Australian Federal Police at the applicant's home at Auburn, at which the applicant was present. Various documents in the names of Murray Graham Thomson and Graham John Murray were located during this search. One such document, entitled "Instrument Evidencing Change of Name" dated 13 January 1992, recorded that the applicant had changed his name by Deed Poll from Murray Graham Thomson to Graham John Murray. (The applicant had not notified Centrelink that he had changed his name by Deed Poll.)

1. The applicant declined to participate in a record of interview.

1. Between 26 June 2006 and 25 February 2009, the applicant had received $32,995.20, by way of Newstart Allowance payments in the name of Graham John Murray, to which he was not entitled. Between 27 February 2009 and 7 May 2010, the applicant had received $21,776.47, by way of disability support pension payments in the name of Graham John Murray, to which he was not entitled.

1. As at 7 March 2013 the applicant had repaid $5,824.90 by way of withholdings from his disability support pension in the name of Murray Graham Thomson.

The proceedings on sentence

1. The applicant was charged with the two offences on about 22 June 2012. After service of the prosecution brief he pleaded guilty in the Local Court on 25 September 2012 and was committed for sentence to the District Court.

8 March 2013 - Sentencing hearing commences

1. On 8 March 2013 the hearing on sentence commenced before Arnott DCJ. A pre-sentence report assessed the applicant as unsuitable for a community service order due to a previous conviction in 1992 for two counts of indecent assault.

1. The Crown's written submissions contended that the only appropriate sentence was a custodial sentence. Reference was made to the need for general deterrence and statements in this Court that frauds against the Social Security system should result in a custodial sentence being imposed unless there existed "very special circumstances" justifying some lesser sentence: see, for example, R v Purdon (NSWCCA 27 March 1997, unreported, BC9700950 at 7 per Hunt CJ at CL (McInerney J and Donovan AJ agreeing)).

1. The Crown submitted that the two offences related to the same continuing conduct and that any sentence imposed should be accumulated.

1. The Crown's submissions included a schedule of comparative decisions which it said may provide some guidance as to the general range of sentences imposed in cases of social security fraud similar to this one.

1. The applicant's written submissions conceded that a sentence of imprisonment was appropriate in the circumstances, so long as the Court was satisfied that no other alternative to full-time imprisonment was appropriate before imposing such a sentence: s 17A(1) Crimes Act 1914 (Cth).

1. The applicant's case on sentence was that "special circumstances" existed that would justify the imposition of an alternative to full-time custody under State sentencing provisions, such as an intensive correction order (ICO). (This was available to Commonwealth offenders by virtue of s 20AB of the Crimes Act: see R v Winchester (1992) 58 A Crim R 345 at 348.) Alternatively, it was submitted that "the Court would find special circumstances or reasons to vary the usual ratio or to fix the non-parole period at the lowest end of the ordinary range (being 60%)" (AB 99).

1. The features of the applicant's case which were said to justify special circumstances included: the early guilty plea; the delay in the commencement of the proceedings against him; the applicant's asserted prospects for rehabilitation as assessed by the psychologist, Mr Borenstein; and the fact of the applicant's pathological gambling addiction at the time of the offences (said to amount to "illness or disability on the part of the offender") (AB 99).

1. At the commencement of the sentencing hearing the applicant's solicitor stated that he would be asking for an ICO or home detention (AB 6, lines 19-20). The applicant's solicitor drew attention to the concession in the Crown's written submissions that each offence was part of one course of criminal conduct for the purpose of totality of the sentence (AB 6, lines 39-45).

1. The applicant gave evidence and was cross-examined. The solicitor appearing for the Crown made oral submissions.

1. The Crown repeated its written submission that a custodial sentence was the appropriate sentence. In response to a question by his Honour, the Crown submitted that R v Ivanovic (Ivanovic) [2009] NSWCCA 28 was the closest of the comparative cases.

1. In Ivanovic the overpayment of Centrelink benefits amounted to approximately $50,000 over 4 years and 7 months. Mr Ivanovic was aged 62 at the time of sentence, had a prior criminal record, and had pleaded guilty to three offences of dishonestly causing a loss to the Commonwealth contrary to s 135.1(5) of the Criminal Code and four offences of imposing on the Commonwealth by an unfair representation contrary to s 29B of the Crimes Act. He was sentenced to 9 months imprisonment on each of the s 29B Crimes Act offences and 2 years imprisonment for the Criminal Code offences. It seems from the reasons of this Court (at [2]) that although the sentencing judge may have intended to accumulate the sentences (because the starting date of the sentence for the Criminal Code offences was deferred by 9 months), in fact the sentences were made concurrent as the total effective term was 2 years with the offender to be released after 12 months upon entering a recognisance to be of good behaviour for the remaining 12 months. This Court dismissed an appeal against sentence.

1. The Crown submitted that there were "no very special circumstances in this particular case to render the sentence less than the comparatives" (AB 19, lines 33-35).

1. The applicant's solicitor then made oral submissions. He conceded that the case of Ivanovic was "very similar to the current amount" (AB 20, lines 2-3). He submitted however that it was a more serious case.

1. Consistently with the applicant's written submissions, the applicant's solicitor submitted that the sentencing judge should find special circumstances and increase the parole period so that the applicant could be rehabilitated. He also asked his Honour to consider an ICO (AB 21, lines 24-29).

1. The transcript then records (AB 21, line 32-22, line 38) an exchange between the sentencing judge and the parties as follows:

"HIS HONOUR: You say that the case of Ivanovic is a more serious case?

SINGH: Yes, your Honour. It involved more charges. It involved the fact that that person was not employed at the time. In my submission this is not a matter where Mr Thomson has committed this offence out of agreed [sic]. It is a matter that was motivated by need.

HIS HONOUR: The penalty in Ivanovic was two years imprisonment, is that right?

SINGH: Yes, your Honour.

HIS HONOUR: What is the legislation say with respect to ICOs?

SINGH: The overall sentence must be two years or less in order for him to be eligible for an ICO.

HIS HONOUR: I have got to come to that decision first?

SINGH: Yes, your Honour.

HIS HONOUR: But it would seem, on a cursory look at this, that it would appear to be a term of imprisonment, if a term of imprisonment was imposed of two years or less. Therefore if I were to order an ICO report now and came to the view that this case, looking at all the facts, warranted, nonetheless, a full-time term of imprisonment, I would not be in error in ordering an ICO now?

KHOURI: Your Honour is in a position to order the report now - -

HIS HONOUR: But I can change my mind?

KHOURI: Yes, even if he is found to be suitable for an ICO, your Honour can change your mind.

SINGH: Yes, I believe that is correct.

HIS HONOUR: I am inclined to order an ICO assessment.

KHOURI: Could I hand to your Honour the legislation?

HIS HONOUR: Yes, please, (Document handed to his Honour).

KHOURI: The relevant section is section 67, your Honour; your Honour can decline to make an ICO, even if he is suitable.

HIS HONOUR: Yes, as I say, sub-section 3 says, (Read). I am inclined to -and I am thinking out aloud here - to order an ICO assessment and to place the matter back before me in two weeks time for sentence. All the range of sentencing options are still available to me in two weeks time, but at that stage I will have the benefit of an ICO assessment.

KHOURI: In a way it is similar to a PSR.

HIS HONOUR: Is two weeks enough time for an assessment to take place?

SINGH: I think it requires about six weeks, your Honour.

HIS HONOUR: I think I will put it back before me in two months time. ...".

1. The sentencing judge proceeded to convict the applicant and made an order referring him to the Commissioner of Corrective Services for assessment for suitability and eligibility for an ICO. The proceedings were adjourned to 10 May 2013 for further hearing.

10 May 2013 - Sentencing hearing adjourned for judgment

1. On 10 May 2013 the sentencing judge confirmed with the parties that the ICO Assessment Report (ICO report) had been provided to them. The ICO report assessed the applicant to be suitable for an ICO, with gambling noted as a factor associated with the offending that would be targeted in the event that an ICO was made.

1. The sentencing judge informed the parties that he had not had a chance to absorb the ICO report and accordingly proposed to adjourn the proceedings to 23 May 2013 so that he could consider the matter more carefully. His Honour indicated that he would give his judgment on that date. Neither party opposed that course or sought to make any submissions in respect of the ICO report or further submissions on sentence generally.

23 May 2013 - Judgment on sentence

1. On 23 May 2013 his Honour stood the matter down the list for judgment at 11.30am. When the matter was called on at that time, the applicant's solicitor drew his Honour's attention to an inaccuracy in the ICO report. This related to the circumstances in which the applicant had changed his name by Deed Poll. The applicant's solicitor did not seek to make any further submissions on sentence. The sentencing judge proceeded to deliver his remarks on sentence.

1. His Honour found that the offending was objectively serious - it was planned, deliberate, and deceitful, extended over a significant period of time, and the amount involved for each offence and collectively was significant (AB 34). His Honour considered that the offences formed part of a course of conduct consisting of a series of criminal acts of the same or similar character, causing a loss to Centrelink of $32,995.20 for the first offence and $21,776.47 for the second offence.

1. His Honour gave minimal weight to the need for the sentence to deter the applicant from further offending. He observed that the more significant consideration was that the sentence was sufficiently punitive in keeping with the overall weight of authority to similar effect in relation to social security fraud offences. Reference was made to the statement of Hunt CJ at CL in R v Purdon that a custodial sentence should be imposed in cases such as the present unless there existed "very special circumstances" justifying a lesser sentence.

1. His Honour considered the risk of re-offending as low and the prospects of rehabilitation as reasonable, as well as cautiously accepting Mr Borenstein's view that the applicant's prospects of not returning to pathological gambling were good. His Honour allowed the full weight of discount customarily allowed for an early guilty plea. His Honour took into account the applicant's age and medical conditions as part of his subjective case, but did not consider that these matters would otherwise mitigate the appropriate sentence. He also took into account the delay of almost three years from the time of execution of the search warrant as justifying a degree of leniency to be taken into account.

1. Relevantly to the ground of appeal his Honour stated:

"Whilst there is not [sic] statutory relationship between the head sentence and non-parole period in Commonwealth matters as there is with State matters, Mr Singh submitted that the non-parole period should be reduced below the usual range of non-parole periods fixed for Commonwealth offences.

The Crown submitted that there are no very special reasons not to impose a custodial sentence. The money he obtained was not spent on necessities but gambled. I agree with the Crown's submission that his age and the evidence about his health do not constitute special reasons. The Crown is also correct to highlight the fact that the money was not spent on necessities.

Mr Singh conceded a sentence of imprisonment was appropriate. However, his central submission related to the way in which this should be served.

When this matter was last before me during the hearing of this sentencing matter, at first blush it seemed to me that an appropriate sentence would be one of two years or less and, accordingly, an ICO report was ordered. However, having considered the matter, I consider no other sentence other than one of imprisonment is required and one of full-time imprisonment. This is after having given earnest consideration to this matter, including s 17A of the Crimes Act 1914 which provides that Courts should not pass a sentence of imprisonment in respect of a federal offence unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in the circumstances. I consider, as I say, having earnestly considered the matter, that the combination of his age, his current medical conditions and his fear of losing his Housing Commission home do not amount to very special circumstances to enable me to impose any lesser sentence than the one that I propose." (AB 39-40.)

Intensive corrections orders

1. Sections 67 and 69 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provide:

"67 Suitability of offender for intensive correction order

(1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied:

(a) that the offender is of or above the age of 18 years, and

(b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and

(c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and

(d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order.

(2) In deciding whether or not to make an intensive correction order, the court is to have regard to:

(a) the contents of the assessment report on the offender (prepared under section 70), and

(b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order.

(3) A court may, for any reason it considers sufficient, decline to make an intensive correction order despite the contents of the assessment report.

(4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community.

(5) If a court declines to make an intensive correction order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of intensive correction in the community, the court must indicate to the offender, and make a record of, its reasons for doing so.

(6) A sentence of imprisonment is not invalidated by a failure to comply with subsection (5).

69 Referral of offender for assessment

(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.

(2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years."

Submissions

1. The applicant submitted that because his Honour had ordered an ICO report, the applicant would have had an expectation that the sentence his Honour was to impose would be 2 years or less and that it would be imposed by way of an ICO. It was argued that because his Honour did not grant the applicant an opportunity to make further submissions to the contrary after receipt of the ICO report that there was a denial of procedural fairness when his Honour fixed a term of imprisonment in excess of 2 years, and this amounted to jurisdictional error: see Parker v DPP (1992) 28 NSWLR 282 at 289E-F (Kirby P).

1. The applicant also submitted that he was denied the opportunity to make additional submissions relating to the nature of an ICO and whether there needed to be found "very special circumstances" for such an order to be made.

1. The applicant further submitted that there had been practical injustice in that the aggregate sentence was at least 6 months longer than that initially indicated by his Honour. The applicant relied on Weir v R [2011] NSWCCA 123 (Weir) at [64]-[67]; R v Button [2010] NSWCCA 264 (Button) at [14]-[18] and Ng v R [2011] NSWCCA 227 (Ng) at [41], [42], [44] and [55].

1. In oral argument, the focus of the applicant's complaint was that his Honour sentenced the applicant to a term in excess of 2 years without giving any indication that he proposed to accumulate the sentences, nor providing the applicant with any opportunity to address this issue. The applicant submitted that the Court was required, but failed, to afford the applicant a "further hearing" after receipt of the ICO report: R v Glynatsis [2013] NSWCCA 131 at [56] Hoeben CJ at CL (Rothman and McCallum JJ agreeing).

1. The Crown submitted that the comment of his Honour during the sentencing hearing on 8 March 2013 was no more than an expression of the required satisfaction (that the sentence of imprisonment was "likely" to be no more than 2 years) which enlivened the jurisdiction to refer the applicant for an ICO assessment. It was argued that this was a preliminary view only, which did not bind his Honour to imposing a sentence of less than 2 years or to make an ICO.

1. It was further submitted that there was no denial of procedural fairness as the applicant was on notice of the Crown's written submissions that "very special circumstances" did not exist to justify a lesser sentence than a custodial sentence and that the sentences should be accumulated. It was said that the applicant had an opportunity to address these issues on 8 March 2013.

Disposition

1. The relevant principles to be applied when a complaint is made of a denial of procedural fairness to the offender during the sentencing hearing are summarised by Garling J (Macfarlan JA and Johnson J agreeing) in Weir at [64]-[67]. See also Ng at [43] (Bathurst CJ, James and Johnson JJ).

1. In summary, an offender is entitled to procedural fairness during criminal proceedings, including on sentence. The content of the requirement of fairness may be affected by what is said and done during the proceedings such as where the sentencing judge has indicated the sentence he or she proposed to impose. The focus is upon the consequence of any departure from proper procedure because what is ultimately in issue is whether unfairness has resulted from the process, not whether an expectation has been disappointed: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (Lam) [2003] HCA 6; 214 CLR 1 at [34] (Gleeson CJ). The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].

1. It is accepted that one common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision-maker in opposition to a proposed course and in support of a different course which he or she urges: Weir at [67].

1. The authorities relied upon by the applicant are distinguishable from the circumstances of the present case. In Weir, after the sentencing judge had indicated that he was "highly likely" to impose a sentence of the order foreshadowed, the offender's representative did not make any further submissions on sentence. When the sentencing judge delivered a sentence which was significantly longer, that sentence was set aside by this Court on the basis of a denial of procedural fairness. In Button, the sentencing judge had commented during the course of the hearing that, given the applicant's status as a first time offender and his strong prospects of rehabilitation, the "release after one year in jail and perhaps 18 months or 2 years on parole" would be appropriate (at [9]). However the sentencing judge later imposed a significantly longer sentence, with an aggregate non-parole period of 18 months. This Court found that there had been a denial of procedural fairness.

1. In Ng, the sentencing judge had expressed a view as to the starting point of 30 years as a ceiling for an offence of murder, being the sentence which had been imposed with respect to a co-offender. This view was expressed as being subject to any submissions from the Crown. The Crown submitted that the sentence should be the same as that imposed upon the co-offender. The sentencing judge later imposed a term of imprisonment of 35 years. This Court found that there had been practical injustice, and substantial unfairness, to the applicant in at least two respects. One such respect was that the applicant received a longer sentence of imprisonment on the murder count than that which had been identified clearly by the sentencing judge in the course of submissions, without any indication from his Honour that his view had altered in this respect, nor any opportunity for the parties to make further submissions on the issue.

Denial of procedural fairness not established

1. In the present case, the context in which the sentencing judge expressed a preliminary view on 8 March 2013 is most significant. It occurred during an exchange between the judge and the parties about the availability of, and procedural aspects relating to, the making of an ICO. In that regard, a preliminary determination as to whether a sentence of imprisonment is "likely" to be for a period of no more than 2 years, so as to warrant a referral of the offender for assessment as to his or her suitability for intensive correction in the community, was required to be made pursuant to s 69(1) of the Crimes (Sentencing Procedure) Act: R v Glynatsis at [56].

1. Viewed in context the comment by the sentencing judge was clearly preliminary and tentative only. The tentative nature of his Honour's view was emphasised by his later comment that "all the range of sentencing options are still available to me in two weeks time, but at that stage I will have the benefit of an ICO assessment" (AB 22, lines 28-30). His Honour made clear to the parties that he was leaving open all sentencing options. Undoubtedly this included a custodial sentence and the possibility for a total sentence longer than 2 years.

1. In my view there is no substance in the applicant's complaint that he was denied procedural fairness. First, for the reasons given above, the view expressed by his Honour (for the purpose of the preliminary determination required before referral for an ICO assessment) did not amount to an indication of a particular sentence to be imposed.

1. Secondly, contrary to the applicant's submissions, the manner in which the matter proceeded on 10 May 2013, when listed for a further hearing, could not have led to an indication and an expectation that the applicant would be sentenced to serve imprisonment by way of an ICO for not more than 2 years. His Honour made clear to the parties on that occasion that he had not had an opportunity to absorb the ICO report and that he would defer giving judgment until 23 May 2013. As noted above, the applicant did not oppose this course or seek to make any submissions in respect of the ICO report or any further submissions on sentence.

1. Thirdly, it cannot be said that his Honour failed to afford the applicant a "further hearing" after receipt of the ICO report, in circumstances where the applicant's solicitor did not seek to advance any further submissions on sentence on 10 May 2013.

1. Fourthly, the applicant's solicitor was on notice of the Crown's written submissions on the topic of accumulation. It was implicit in the oral submission of the applicant's solicitor on totality on 8 March 2013 that he was contending that the sentences should be concurrent. His Honour was not obliged to signal to the parties in advance of his decision whether he accepted the Crown's submission on accumulation or the implicit submission of the applicant's solicitor.

1. Fifthly, no attempt has been made to show that the applicant or his legal representative held any subjective expectation in consequence of which he did, or omitted to do, anything by way of submissions made to the sentencing judge either on 8 March 2013, or 10 or 23 May 2013. Nor has it been shown that he lost an opportunity to put any information or argument to the sentencing judge: Lam at [36].

1. Finally, the applicant was not denied an opportunity to make submissions on whether there needed to be "very special circumstances" before an ICO could be made. The applicant's solicitor was on notice of the Crown's written and oral submissions on 8 March 2013 that a custodial sentence should be imposed for offences such as the present, except in "very special circumstances". The applicant's solicitor sought to meet the Crown's submission by submitting that "special circumstances" existed which justified an ICO (which is a form of imprisonment), or alternatively that the parole period be increased. There was no practical injustice or unfairness to the applicant.

Conclusion

1. The applicant has not made out a case that he was denied procedural fairness on the sentencing hearing. I propose the following orders:

(1)   Grant leave to appeal.

(2)   Appeal dismissed.

1. R A HULME J: I agree with Gleeson JA.

1. CAMPBELL J: I agree with Gleeson JA and the orders his Honour proposes.

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Decision last updated: 21 May 2014