Thorpe v R - [2010] NSWCCA 261

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Thorpe v Regina [2010] NSWCCA 261

FILE NUMBER(S):
2009/4665

HEARING DATE(S):
9/11/10

JUDGMENT DATE:
30 November 2010

PARTIES:
Tamara Lee Thorpe (App)
Regina (Resp/Crown)

JUDGMENT OF:
Simpson J Kirby J Schmidt J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
11/8/09

COUNSEL:
C Smith (App)
S Dowling (Resp/Crown)

SOLICITORS:
R MacMahon - ALS (App)
S Kavanagh (Resp/Crown)

CATCHWORDS:
CRIMINAL LAW
sentence appeal
special circumstances
two episodes within a month
delay in charging second offence
sentencing judge on second episode found special circumstances
only adjusted later sentence
error
should have taken account of total sentence.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
R v Bolamatu [2002] NSWCCA 454
Regina v LWP [2003] NSWCCA 215
Lupton v Regina [2003] NSWCCA 200
R v Keen [2004] NSWCCA 86
R v So [2004] NSWCCA 362
R v Ibrahim [2005] NSWCCA 43
Robertson v R [2009] NSWCCA 38
Clarke v R [2009] NSWCCA 49
Jamie Peter Dolman v R [2010] NSWCCA 137
R v Cramp [2004] NSWCCA 264
R v Todd (1982) 2 NSWLR 517
Mill v The Queen (1988) 166 CLR 59
Cicekdag v Regina [2007] NSWCCA 218

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. The appeal allowed.
3. The sentence imposed by Sorby DCJ on 11 August 2009 quashed and, in lieu thereof the applicant sentenced to a term of 3 years imprisonment with a non parole period to date from 24.1.10 to 23.7.11 and an additional term of 1 year 6 months to expire on 23.1.13. The applicant is to be admitted to parole on 23.7.11.

JUDGMENT:

in the COURT OF
CRIMINAL APPEAL

2009/4665
SIMPSON J
KIRBY J
SCHMIDT J
Tuesday 30 November 2010

Tamara Lee THORPE v R

Judgment

SIMPSON J: I have read in draft the judgments of Kirby J and Schmidt J.
The reasoning in each is persuasive. I agree with Schmidt J that, having regard to the nature and circumstances of the offence of stealing from a dwelling house (the only offence before this Court) the effective additional sentence proposed by Kirby J, when added to the sentences imposed by Donovan DCJ, involving a non-parole period of 15 months, is inadequate.
However, I disagree with the reasoning of her Honour in para [66]. I do not consider it appropriate to project backwards to the effect that, had the applicant been sentenced for all offences at the same time, by Donovan DCJ in January 2008, the applicant would not have had the benefit of a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999.
The reality is that, when Sorby DCJ was sentencing the applicant for the offence in question, the applicant’s circumstances had changed, such as to justify, in Sorby DCJ’s view (unchallenged), a conclusion that her then prospects of rehabilitation warranted a departure form the statutory formula. Where the basis for a finding of special circumstances is to foster rehabilitation, it is the overall term, not the terms of individual sentences, that must be adjusted. If that is not the result, the finding of special circumstances is ineffective to achieve its objective. The applicant is entitled to the benefit of that finding in a practical, not merely theoretical, way.
This existing situation has come about from an unfortunate sequence of events. In the result, although with misgivings concerning the period which the applicant will spend in custody referable to the stealing offence, I am driven to agree with the orders proposed by Kirby J.
KIRBY J: Tamara Lee Thorpe (the applicant) seeks leave to appeal against a sentence imposed on 11 August 2009 by Sorby DCJ. She pleaded guilty to stealing from a dwelling house, an offence under s 148 of the Crimes Act 1900 (“the Act”). The maximum penalty for that offence is imprisonment for 7 years. She was sentenced to imprisonment for 3 years (24.1.10 to 23.1.13), with a non parole period of 2 years (24.1.10 to 23.1.12). Compensation in the sum of $34,360 was ordered, being the unrecovered value of the jewellery stolen (after an insurance payout).
The Notice of Appeal.
The Notice of Appeal raises a single ground, expressed in these terms:
“The sentencing judge erred in failing to give effect to the finding of special circumstances in the context of the total effective sentence being served by the applicant.”
An understanding of the complaint made on this appeal requires an appreciation of the context within which the applicant was sentenced. When sentenced by Sorby DCJ on 11 August 2009, she was already serving sentences which had been imposed on 24 January 2008 by Donovan DCJ in respect of other offences. The earlier sentences related to an incident that had occurred a little over a month before the offence giving rise to the sentence the subject of this appeal (16 April 2007 cf 21 May 2007).
Let me first describe the offences before Donovan DCJ (“the April 2007 offences”) and then the offence which is the subject of this appeal (“the May offence”), as well as the applicant’s subjective case.
The April 2007 offences.
The sentencing remarks of Donovan DCJ in respect of the April offences were tendered in the sentencing proceedings before Sorby DCJ. Ms Thorpe pleaded guilty to two offences, both serious, namely:
First, aggravated break and enter to commit a serious indictable offence, namely stealing, contrary to s 112(2) of the Crimes Act (maximum penalty 20 years imprisonment, with a standard non parole period of 5 years).
Secondly, maliciously inflicting grievous bodily harm, contrary to s 35(1)(b) of the Crimes Act (maximum penalty 10 years imprisonment).
On 16 April 2007, Ms Thorpe climbed onto the balcony of an aged care home at Surry Hills in order to gain access. Having entered the premises, she deflected enquiries from an elderly resident by saying that she was “Security”. She went in search of money. She ultimately entered a room and was in the process of removing cash from a handbag when she was confronted by Sister Margaret, a woman aged 84 years. Sister Margaret demanded the return of the money. Two further elderly residents, Brother Dillon, aged 88, and Brother Lebler, aged 85, came upon the scene. They went to the assistance of Sister Margaret. As Ms Thorpe attempted to escape by means on the lift, the others attempted to stop her. In the course of the struggle, Ms Thorpe pushed Brother Dillon, causing him to fall backwards onto his left shoulder. He sustained a fracture and subsequently required an operation. This was the incident that gave rise to the second charge of maliciously inflicting grievous bodily harm.
Donovan DCJ described what then occurred in these words: (ROS 2)
“... The offender took the lift from the ground floor, the front doors were locked at the time and she could not escape. She left finger and palm prints on the glass doors. She was later identified by these prints and by DNA. She then fled through the kitchen and climbed a wall in the courtyard to escape.”
Having pleaded guilty, Ms Thorpe was sentenced by Donovan DCJ on 24 January 2008, as follows:
In respect of the offence of aggravated break and enter and commit a serious indictable offence, she was sentenced to 4 years imprisonment consisting of a non parole period of 3 years from 24.7.07 to 23.7.10, and an additional term of 1 year expiring on 23.7.11.
In respect of the offence of maliciously inflicting grievous bodily harm, she was also sentenced to 4 years imprisonment, to commence 3 months after the other count (24.10.07 to 23.10.10), with an additional term expiring on 23.10.11.
The May 2007 offence.
In the proceedings before Sorby DCJ in respect of the May 2007 offence, the Crown tendered an Agreed Statement of Facts. It included the following:
“At approximately 4.45 am on 21 May 2007, Reg and Jillian (P) left their premises at .... Evans Road, Rushcutters Bay.
Upon leaving the premises, the victims made sure that the front door to the premises was closed and locked. Jillian (P) was confident that the bathroom window was closed, but could not say that it was locked.
Upon returning to the premises at 6.00 pm, the victims noticed that the bathroom window was wide open and that some dishes from the inside window sill were in the garden. A rubbish bin had been moved to beneath the window. Upon entry, the victims discovered that their premises had been burgled. 8 items of jewellery to the value of $94,360.00 were stolen.”
There followed a detailed description of the jewellery. The Agreed Statement concluded with these words:
“Police attended the premises and developed fingerprints from the bathroom window. In August 2007, those fingerprints were subsequently identified as those of the defendant.
On 22 October 2008, police attended upon the offender at the Metropolitan Remand and Reception Centre and charged her.”
The subjective case.
Ms Thorpe was born in July 1967. She was almost 40 years old at the time of the April and May offences. The material tendered before Sorby DCJ included reports that had been prepared in the context of the sentencing proceedings before Donovan DCJ in respect of the April 2007 offences (report of Peter Champion, psychologist, of 30.11.07 and a Probation and Parole report of 23.1.08). During the course of submissions, Sorby DCJ sought a further report from Probation and Parole to bring the material up to date. That was provided on 28 July 2009.
The accounts provided by Ms Thorpe, concerning her early life, were not always consistent. It appears, nonetheless, that she was the sixth and last child of her mother, who was Aboriginal. Her mother died when Ms Thorpe was eight years old. As a child she always felt “like an outcast”. She believed her mother treated her differently. She learned, much later in life, that she was conceived as a result of a sexual assault. Her father was Caucasian, which explained her European appearance, in contrast to her siblings. A number of family members were alcoholic. Her mother was violent. She said she was sexually abused by the grandfather of a close friend, from the age of four years until she was eleven years old. When she complained to her mother, her claims were dismissed. Once her mother died, she was cared for by her older brother. She told the Probation Officer in July 2009 that she had not had any contact with her family for fifteen years.
Ms Thorpe said that she began using drugs at the age of nine years. They were “a feature” of her life by the age of thirteen years. She experimented with different drugs. Ultimately, she became addicted to heroin. In the process she accumulated a lengthy criminal record, both in New South Wales and Victoria. Her convictions were mainly for offences of dishonesty. The malicious injury offence was the first serious offence involving violence. Various non-custodial penalties were imposed. Ultimately she was sentenced to terms of imprisonment. The most recent Probation and Parole report (28.7.2009) made the following comment: (p 1)
“Ms Thorpe first came to the notice of the Court in June 1987 for charges of Break, Enter and Steal for which she received a two year Recognizance order. Since that time the offender has been subject to numerous good behaviour bonds, community service orders and custodial sentences. Her response to supervision has been poor and she has been breached on a high percentage of her orders due to further offending. It is noted that (she) also has a significant history of similar offences with Victorian Department of Corrections dating from 1987.”
In 2002 Ms Thorpe embarked upon a residential drug rehabilitation programme. However, she did not persist with that programme. The Probation and Parole report summarised the history in these words: (p 3)
“Ms Thorpe claimed that she had attended Guthrie House and Who’s Rehabilitation facilities but had not completed either program. Enquiries with Guthrie House confirmed that in 2002 the offender completed five months at that facility before leaving of her own accord. Who’s staff were unable to confirm her attendance. She reported that she sustained a five year period of abstinence after leaving Guthrie House but returned to using heroin in 2007. Ms Thorpe also participated in the Drug Court Program in 2002/2003 however voluntarily withdrew prior to completion.
It is of concern that Ms Thorpe has not applied for any drug or alcohol programs since her incarceration. The inmate is currently on the methadone program.”
The April/May 2007 offences were said to have been precipitated by the break down of a relationship. Donovan DCJ, in his sentencing remarks, provided the history: (ROS p 4/5)
“... She told the Probation Officer that she had a period of abstinence, between 2001 and 2005 when she was stable on a methadone maintenance program. The report says that according to the service record, she participated in a Drug Court program in 2002 and 2003, but ceased the program prior to graduation. The offender told the Probation Officer that at the end of 2006 there was a break-down of a relationship of four years and she ‘jumped off the methadone’. She recommenced using heroin in February 2007 and she continued to use it until she was arrested for the present offences. She told the officer that her behaviour at the time of the offence was directly related to her drug use because she needed money to satisfy her craving for heroin. Similar comments were made to police and also to the psychologist. ...”
Mr Peter Champion, psychologist, tested Ms Thorpe to determine her intelligence. She scored in the low-average range, although he thought that underestimated her ability. The Probation and Parole officer, in January 2008, said that Ms Thorpe presented as “an articulate, intelligent person” (p 3). The later Probation and Parole report (July 2009) described Ms Thorpe’s conduct in gaol, in the following words: (p 1/2)
“Ms Thorpe has been housed in the Special Management and Programs Unit since coming to Dillwynia Correctional Centre on 14 October 2008. This was by the inmates request as she is a fearful inmate with numerous association concerns.
The offender participates in a ‘sew in’ group of five inmates, which makes baby clothes to donate to The Children’s hospital. Correctional officers report that Ms Thorpe is an enthusiastic member of this group and appears to get along well with the other participants.
The offender has been subject to urinalysis testing on six occasions since May 2008. Five of these tests were clear of unauthorised substances, however the sixth test resulted in a fail to supply and the offender was charged with the offence of ‘Refuse, fail to supply urine sample’ for which she received 42 days off contact visits.
During her incarceration Ms Thorpe has completed the following programs and education:
DAS – Depression, Anxiety and Stress – completed December 2008
Communication module – Literacy and numeracy - Completed
Design and apply make-up – completed – June 2009
Enough is Enough 3 R’s program – completed June 2009
‘Relationships, Responsibility and Reintegration’ – one day program
Health Survival Program – Completed June 2009 – one day program
While it has been recommended to Ms Thorpe that she complete alcohol and drug related programs, she had not applied to participate in any of these courses at the time of writing this report.”
The sentencing remarks of Sorby DCJ.
Having set out the circumstances of the offence and aspects of Ms Thorpe’s subjective case, his Honour quoted the following passage from the Probation and Parole report of 28 July 2009: (p 3/4)
“Ms Thorpe agreed with the police facts and talked about the impact her offence had on the victims with some insight. Although she expressed remorse for her actions and declared her desire to participate in the Restorative Justice Program it is noted that this same declaration was made by the offender in a previous Pre Sentence Report completed in 2008. Enquiries with the Restorative Justice unit revealed that they have never received a request from the inmate.
The offender did not attempt to trivialise her actions and acknowledged that these offences were committed to finance the purchase of drugs. She appeared to accept responsibility for her unlawful behaviour and to have some understanding of the seriousness of her current situation.”
His Honour then made the following finding in respect of special circumstances: (ROS p 5)
“I consider the offender’s desire, on this occasion, to deal with her drug addiction problems and the efforts that she had made in custody so far to rehabilitate herself and stay off drugs to be a special circumstance to allow me to vary the statutory non-parole ratio.”
His Honour addressed the issues relevant to the length of the sentence. He determined that it was a serious offence, by reason of the value of the property (ROS p 6). He noted that Ms Thorpe had committed numerous similar break and enter offences in the past. His Honour added: (ROS p 6)
“... She is a serial offender but I accept that she now has some insight into her offending behaviour and there is some prospect of rehabilitation, she having undertaken and completed courses in custody to date, as I have said.”
Given that she was already serving a sentence, the question of accumulation and totality arose. His Honour said this: (ROS p 5)
“... The offender is currently servicing a sentence for the offences of aggravated break and enter and commit a serious indictable offence, and maliciously inflict grievous bodily harm carried out on 16 April 2007, an event that occurred some 35 days prior to this offence before me. Her earliest release date is 23 October 2010. The question of totality and whether the offence should be concurrent, accumulative or partly both therefore arises.”
His Honour added: (ROS p 6)
“Looking at the question of totality I have examined the total criminality involved in all offence(s) which, is in (this) case ... considerable. I must also bear in mind that this offence carries a maximum penalty of seven years imprisonment.
I consider the appropriate sentence for this offence to be a period of non parole of two years. This sentence will commence two and a half years after the start of the sentences imposed for the two other sentences, a partial accumulation to reflect the totality of the criminality including the two earlier offences for which she is serving a sentence.”
Let me turn to the arguments of the parties on this appeal, setting out for convenience once more the ground of appeal.
Ground 1: The sentencing judge erred in failing to give effect to the finding of special circumstances in the context of the total effective sentence being served by the applicant.
Counsel for Ms Thorpe drew attention to the impact of the sentence imposed upon the existing sentences:
The total effective sentence for all three offences was imprisonment for 5½ years (24.7.07 to 23.1.13).
The total effective non parole period was 4½ years (24.7.07 to 23.1.12).
The total effective non parole period, therefore, was 81.8% of the total effective sentence, notwithstanding the finding of special circumstances to assist in the drug rehabilitation of the offender.
It was submitted that the sentencing Judge was in error in not specifically considering the impact upon his finding of special circumstances of structuring the sentence in the way in which he did. He could have selected an earlier commencement date, reducing the length of the non parole period but leaving the term unchanged, thereby giving effect to his finding of special circumstances. Such an approach, according to the applicant, was consistent with the approach taken by this Court in many cases, including: R v Bolamatu [2002] NSWCCA 454; Regina v LWP [2003] NSWCCA 215; Lupton v Regina [2003] NSWCCA 200; R v Keen [2004] NSWCCA 86; R v So [2004] NSWCCA 362; R v Ibrahim [2005] NSWCCA 43; Robertson v R [2009] NSWCCA 38; Clarke v R [2009] NSWCCA 49; Jamie Peter Dolman v R [2010] NSWCCA 137.

The Crown responded by pointing to the adjustment made by his Honour to the sentence he was imposing. He varied the ratio of the head sentence to the non parole period from the statutory 75% (2 years 3 months) to 66 1/3% (2 years).
Attention was also drawn to R v Cramp [2004] NSWCCA 264. The offender in that case was sentenced to imprisonment for 8 years. A finding was made of special circumstances. The non parole period was fixed at 5 years 7 months, a reduction of 5 months compared to the 6 year period you would expect under s 44(2) of the Crimes (Sentencing Procedure) Act 1999. It was said, on appeal, that such a small reduction made a mockery of the finding of special circumstances. Dismissing that complaint, Spigelman CJ said this: (at [31])
“31.In my view the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene. ...”
The Chief Justice added: (at [37])
“37.Nothing appears in this regard to arise from the degree of variation of the statutory proportion which Knight DCJ decided to make. The finding of special circumstances made by his Honour did not require any greater divergence from the statutory proportion. The change that his Honour determined was well within the exercise of his Honour’s discretion as was, in my opinion, the non parole period which his Honour eventually determined. In this case this matter does not give rise to the kind of error that would justify this Court interfering with the exercise of the discretion on this ground.”
Further, the Crown drew attention to the terms of s 44 of the Crimes (Sentencing Procedure) Act. That section provides:
4 Court to set non-parole period
(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).
(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
(3) The failure of a court to comply with subsection (2) does not invalidate the sentence.
(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.
In Clarke v R [2009] NSWCCA 49, McClellan CJ at CL (James and Adams JJ agreeing) said this: (at [11])
“11.The appropriate approach when a finding of special circumstances is made has been considered by this court on a number of occasions. In R v Swan [2005] NSWCCA 252 Rothman J emphasised that when sentencing for multiple offences s 44 of the Sentencing Procedure Act 1999, as amended in 2002, although not irrelevant, does not mandate a relationship between an overall non-parole period and the remainder of the overall sentence. The section is concerned with the relationship between the period of full time custody and the period on parole in relation to each particular offence for which an offender is being sentenced.”
It was submitted by the Crown that totality did not require that the ratio appropriate to the May offence (66.6%) should be translated to the overall sentence. Had his Honour done so, the non parole period in respect of the May 2007 charge would have been reduced to approximately 4 months, so that “the applicant would receive virtually no additional sentence for this offence” (CS [19]).
Dealing with these submissions there was, as counsel for Ms Thorpe pointed out, no explanation for the delay in charging the s 112(2) stealing offence. The chronology was as follows:
16 April 2007:       The two offences in the aged care home.
21 May 2007:  The stealing offence at the Rushcutters Bay unit.
24 July 2007:  Ms Thorpe arrested and incarcerated in respect of the April 2007 charges.
19 August 2007:                  Ms Thorpe’s fingerprints at the Rushcutters Bay unit identified.
24 January 2008:                  Donovan DCJ sentenced Ms Thorpe in respect of the April 2007 charges.
22 October 2008:                  Ms Thorpe charged in respect of the May 2007 Rushcutters Bay offence.
11 August 2009:                  Ms Thorpe sentenced by Sorby DCJ to imprisonment for 3 years in respect of the Rushcutters Bay offence.
That delay was capable of producing a serious injustice. In R v Todd (1982) 2 NSWLR 517, the offender and a companion committed a number of serious offences in Sydney in January 1974. They then made their way to Queensland where, eight days later, they committed further offences. They were arrested in Queensland and Todd was ultimately put on trial in December 1974. He was convicted and, having served his sentence, was released to parole in January 1979. Upon release, he was arrested and extradited to New South Wales to face trial in respect of the earlier offences. Having been convicted in New South Wales, he was then sentenced. The sentencing Judge took the view that the sentences served in Queensland were irrelevant to his task. On appeal, Street CJ (Moffitt P and Nagle CJ at CL agreeing) said this: (at 519)
“I have formed the conclusion that his Honour fell into error in thus placing aside the sentences served by the appellant in Queensland as having no relevance except in so far as they may shed some light upon his present state of rehabilitation. The fact that the crimes were committed in Queensland operated, of course, to expose the appellant to the processes of the Queensland criminal law. This involved an inevitable deferment of the processes of the New South Wales criminal law being put into effect and carried through against him in this State. But it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. With a space of some eight days the appellant committed the Sydney crimes and the Queensland crimes. ...”
His Honour added: (at 519)
“If rather than being across the border in Queensland he had committed the second pair of crimes on the New South Wales side of the border it would obviously have been proper, indeed necessary, for a second New South Wales judge sentencing for the Sydney crimes at a hearing later than that on which the appellant had been sentenced for the Queensland crimes to pay regard to the totality of the sentences involved. Preferably, one would hope that, in the orderly administration of justice within this State, all offences would have come before the same judge on the one occasion. But assuming that they came before separate New South Wales judges, it would be a question for a second judge to evaluate what was the field open to be entered in sentencing for the Sydney crimes. It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character.”
(emphasis added)
His Honour then dealt with the impact of such an approach upon the non parole period. He said: (at 519)
“In the matter of the non-parole period a second sentencing judge must adjust, or give consideration to the adjustment of, the non-parole period in the light of the totality of the criminality involved in both the offences for which the person is currently in custody as well as the charges currently before the court. This flows directly from the statute. ...”
The same issue arose a decade later in the High Court in Mill v The Queen (1988) 166 CLR 59. Again, it was a case involving offences committed in different states (Victoria and Queensland). On release to parole in Victoria, the offender was extradited to Queensland. The High Court gave a joint judgment in which it reaffirmed the totality principle, commending a statement of that principle that was in these words: (at 63)
“... The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
The Court then considered the application of that principle in R v Todd (supra [37]). It said this: (at 65/66)
“... In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. ... The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence ... “
The Court identified the question that the sentencing Judge should ask where a sentence has been deferred. It said this: (at 66)
“In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time. ...”
The same principle should be applied where the reason for deferment is delay in prosecution, rather than an interstate crime. Here, plainly it would have been better and fairer had Ms Thorpe been charged with the s 148 offence before the sentencing hearing conducted by Donovan DCJ in January 2008, so that all offences were dealt with at the one time. Had that been done, the sentence under appeal (which had a 7 year maximum penalty) would probably have been dealt with by a fixed term with partial accumulation upon the sentences imposed in respect of the more serious charges.
However, that having not occurred, it was important that the second Judge address the question identified by the Court in Mill v The Queen (supra [40]). Here, no complaint was made concerning the sentence determined by his Honour (3 years imprisonment) or the overall term (5½ years). The complaint was directed to the non parole period. The consequence of the structure selected by his Honour (that is, the degree of accumulation and the commencement date) was a non parole period which represented 81.8% of the overall term. That, I believe, was an unintended consequence and ultimately unfair.
Section 44 of the Crimes (Sentencing Procedure) Act is headed “Court to set non-parole period”. It is framed in terms of sentencing an offender for “an offence” (singular). It does not, as such, deal with multiple offences. Nonetheless, the section, including the heading, evinces a legislative intention that there should be a particular relationship between a sentence imposed and the non parole period (not less than 3:1) unless there are special circumstances, in which case there is a requirement to give reasons (s 44(2)). You would expect the same relationship (3:1) in the context of multiple offences. You would also expect reasons, were it thought necessary to depart from that relationship.
There can be no doubt that, had Ms Thorpe been sentenced for all offences at the one time, she could have expected, at the very least, that the statutory relationship (3:1) would be maintained. Asking the question identified by the High Court in Mill v The Queen (supra [40]), the approach by Sorby DCJ should have been no different. Accordingly, there was, in my view, a need to adjust the sentence.
However, there was also the finding of special circumstances “to deal with the drug addiction problem” of the applicant. The words of James J (Giles JA and Hislop J agreeing) in Cicekdag v Regina [2007] NSWCCA 218, are apposite: (at [47]-[49])
“47.It was submitted by counsel for the applicant that, when all the sentences were taken into account, the sentencing judge had failed to carry into effect an intention to vary the usual ratio between non-parole periods and balances of terms, so as to take into account both of the two factors the sentencing judge had identified as requiring such a variation, namely the applicant’s mental condition and the consequent need for rehabilitation and supervision, and the accumulation of sentences.
48.In my opinion, this submission by counsel for the applicant should be upheld.
49.If the only factor identified by the sentencing judge as requiring a variation of the usual ratio had been the accumulation of sentences, then the imposition of a collection of sentences in which the total parole period was only slightly less than one-third of the total of the non-parole periods might well have been regarded as a sufficient implementation of his Honour’s sentencing intention. However, his Honour also identified as a factor requiring a variation of the usual ratio the applicant’s mental condition and his consequent need for rehabilitation and supervision and the sentences imposed by his Honour, when considered in their totality, did not make any allowance for this factor.”
Here, counsel for the applicant in submissions sought a small departure from the statutory ratio to reflect the finding of special circumstance (72% cf 75%), rather than the 66.6% that his Honour had used in fashioning the sentence that he imposed for the May 2007 offence. Such a departure would reduce the non parole period by about 4 months (24.1.10 to 23.7.11 cf 24.1.10 to 23.1.12). That reduction would allow a parole period of 18 months. In my view, that submission represents a modest reduction and is reasonable. It gives expression to the finding of special circumstances. The argument of the Crown that such an adjustment would deplete the non parole period, so that the punishment for the May 2007 offence would be inadequate, was answered by the Court in Mill v The Queen. The Court in that case addressed the same consequence when it adjusted the sentence after allowing the appeal. It said this: (at 67)
“... It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.”
Orders.
The orders I propose are:
1. Leave to appeal granted.
2. The appeal allowed.
3.The sentence imposed by Sorby DCJ on 11 August 2009 quashed and, in lieu thereof the applicant sentenced to a term of 3 years imprisonment with a non parole period to date from 24.1.10 to 23.7.11 and an additional term of 1 year 6 months to expire on 23.1.13. The applicant is to be admitted to parole on 23.7.11.
SCHMIDT J: I have had the benefit of reading Kirby J’s judgment in draft form. I find myself in disagreement with his Honour’s conclusion, for reasons which I will explain.
At the time the applicant was sentenced, she was serving an aggregate sentence of 4 years and 3 months, with a non parole period of 3 years 3 months for the two April 2007 offences. The first, brought under s 112(2) of the Crimes Act 1900 carried a maximum penalty of 20 years and a standard non parole period of 5 years and the second, brought under s 35(1)(b) carried a maximum penalty of 10 years. No special circumstances were found pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The ratio of parole to non parole periods fixed was 76%.
The May 2007 offence, brought under s 148 of the Crimes Act had a maximum penalty of 10 years. There was no standard non parole period for the offence. The applicant was sentenced to 3 years, with a non parole period of 2 years, his Honour finding special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. This reflected a ratio of parole to non parole periods of 66.6%. The sentence was also partially accumulated with the earlier sentences. The result of Sorby DCJ’s application of the principal of totality was:
- aggravated break enter and commit a serious indictable offence – 4 years imprisonment commencing 24 July 2007, with a non parole period of 3 years (expiring 23 July 2010) and an additional term of 1 year expiring 23 July 2011.
- maliciously inflicting grievous bodily harm – 4 years imprisonment commencing 24 October 2007 with a nonparole period of 3 years, (expiring 23 October 2010), with an additional terms expiring 23 October 2011.
- stealing from a dwelling house – 3 years commencing 24 January 2010 with a non parole period of 2 years, (expiring 23 January 2012) and an additional term of 1 year expiring 23 January 2013.
The aggregate sentence was thus increased from 4 years 3 months, with a non parole period of 3 years 3 months, to 5 years 6 months with a non parole period of 4 years 6 months. The result of his Honour’s approach was that the applicant’s non parole period is to expire on 23 January 2012, rather than on 23 October 2010 (an extra period of non parole of 1 year and 3 months) and that the term of the sentence will expire on 23 January 2013, rather than 23 October 2011 (also an extra period of 1 year 3 months).
Kirby J is of the view that in so approaching the sentencing exercise, his Honour fell into error, because the sentence is higher than that which would have been imposed, had all three offences been dealt with at the same time. I find myself in disagreement for the following reasons.
Firstly, if the May 2007 offence had been dealt with earlier, when the April 2007 offences were dealt with, as it seems that they ought to have been, given the chronology referred to by Kirby J, it is unlikely that special circumstances would have been found. Sorby DCJ’s conclusions in that respect rested on evidence as to what the applicant had done while in custody, to deal with her drug addiction problems. That evidence, it seems to me was relatively slight, but even so, clearly would not have been available before the applicant was taken into custody. This explains no doubt why special circumstances were not found in relation to the April 2007 offences.
Secondly, it seems to me that it should not be overlooked that the result of this sentencing exercise was that instead of serving a non parole period of 2 years for the May offence, the applicant is only to serve 1 year 3 months in addition to the term which she was already serving for the two earlier offences.
Thirdly, the outcome of the application of the totality principle did not require that the finding of special circumstance translate a ratio of 66% for the May 2007 offence, into a ratio of that kind for the two earlier offences. The applicant was not being re-sentenced in relation to the earlier offences. As discussed in Clarke v R [2009] NSWCCA 49, s 44 of the Crimes (Sentencing Procedure) Act is concerned with each particular offence with which an offender is being sentenced. The earlier sentences which were being served clearly had to be considered, when the principle of totality was being applied. There is no question that his Honour applied the principle, given the conclusion which he reached in relation to accumulation. That the conclusion that an additional non parole period of 1 year 3 months, rather than the 2 years which his Honour considered ought to have been imposed for this offence, resulted in a misapplication of the principle of totality is not apparent.

Fourthly, there was no complaint on appeal about the actual sentence imposed, 3 years imprisonment, or even the overall term. Rather, the complaint is that in addition to the non parole period of 3 years 3 months which the applicant was already serving, an additional 1 year 3 months non parole, to make a total of 4 years 6 months, for the later offence, resulted in an overall ratio of 81.8%, which failed to reflect the conclusion reached as to special circumstances.
In considering that figure, consideration also needs to be given to the effect of the accumulation on the sentence imposed for the offence with which Sorby DCJ was dealing. An effective non parole period of 1 year 3 months represents 41.66% of the 3 year term which his Honour concluded had to be imposed for the offence, significantly less than the 66% which his Honour initially envisaged.
The applicant argued that the non parole period should be reduced, with the result that it commence on 24 January 2010 and expire on 23 July 2011 (a period of 1 year 6 months). That would be to impose an overall ratio of 72%, with the result an additional non parole period of 9 months from 23 October 2010 (the date on which the non parole period for the April 2007 offences expired). Nine months represents only 25% of the 3 year term. So understood, it seems to me, that such a sentence could not adequately reflect the overall criminality involved in the May 2007 offence.
The Crown’s submission that this reflected his Honour’s view as to the punishment appropriate for the particular offence, having applied the principle of totality, has considerable force. After all, the offence for which Sorby DCJ was sentencing the applicant involved a serious break and enter offence during which the applicant stole items of jewellery to the value of some $94,000. The offence was committed in order that she could fund her drug use.
While committed close in time, this offence was quite separate to the serious April 2007 offences, of which the applicant had also been convicted. The criminality of the April offences could not comprehend that of the May offence. Nevertheless, while they were discrete acts, some measure of accumulation was clearly appropriate.
The difficulties confronting his Honour in the sentencing exercise were not quite those with which the High Court was dealing in Mill v The Queen [1988] HCA 70; (1988)166 CLR 59. There it was observed at 64:
"The problem was considered in 1979 by the Court of Criminal Appeal of New South Wales (Street C.J., Moffitt P. and Nagle C.J. at C.L.) in Todd (a decision not reported until 1982) ([1982] 2 N.S.W.L.R. 517). In that case, the appellant was sentenced in Queensland in December 1974 to imprisonment for eight years, with a non-parole period of three years, for offences of armed robbery committed in January 1974. At the time he was sentenced he had already been in custody for some ten or eleven months. In May 1979 the appellant was sentenced in the District Court in New South Wales to imprisonment for ten years for armed robbery and concurrent sentences in respect of other charges. These offences were also committed in January 1974. The sentences were expressed to commence on 30 January 1979 and a non-parole period was specified, expiring on 18 May 1983. Street C.J. ([1982] 2 N.S.W.L.R., at pp. 519-520), with whose reasons the other members of the Court agreed, said:
it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences ...
... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
The Chief Justice proceeded to make it plain that the pre-existing sentence, and the aggregate term which would result from the sentence passed by the second judge, were relevant matters necessary to be taken into account by him in determining the head sentence: see also the additional comments of Moffitt P. ([1982] 2 N.S.W.L.R., at pp. 521-522). In Todd there was no challenge to the head sentence."
The High Court continued at 65:
"In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences."
In this case Sorby DCJ considered that the head sentence for the May 2007 offence should be a term of 3 years. There is no complaint about that conclusion, nor about the conclusion that there should be an overall sentence of 5 years 6 months. It is only the accumulation which his Honour determined for the non parole period of 2 years, with which issue is taken.
The accumulation which was ordered was 1 year 3 months, with the results which I have earlier outlined. There was here no failure to have regard to the time to be served in relation to the earlier offence. What was not given further thought, it does seem, is that the result of the conclusion reached as to accumulation was that the ratio of the non parole period overall would exceed the statutory ratio. That, it seems to me, is a result which required further consideration, given the High Court’s approach in Mill. Had that been done, it would have been apparent that there ought to have been no departure, overall, from the statutory ratio, particularly given that if all three offences had been dealt with at the same time, when the April 2007 offences were dealt with, no special circumstances would have been found. That would have achieved a just result in all of the circumstances, not ignoring the conclusion reached as to special circumstances for the later offence, but also paying appropriate attention to the application of the totality principle in light of the approach discussed in Mill.
The result of the application of the statutory formula to the overall sentence of 5 years 6 months, would be a total non parole period of 4 years 2 months. The non parole period for the April 2007 offence totalled 3 years 3 months, expiring 23 October 2010. An additional non parole period of 1 year 1 month, or an accumulation of 11 months, would achieve the statutory ratio. That would represent a ratio of 36.11% for the May 2007 offence.
Orders
For these reasons the orders I propose are:
1.Leave to appeal granted.
2.The appeal allowed.
3.The sentence imposed by Sorby DCJ on 11 August 2009 be quashed and in lieu thereof the applicant sentenced to a term of 3 years imprisonment with a non parole period to date from 24 October 2010 to 23 November 2011 and an additional term of 1 year 11 months to expire on 23 October 2013. The applicant to be admitted to parole on 23 November 2011.
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LAST UPDATED:
30 November 2010