Tuesley v The Queen

[2021] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tuesley v R [2021] NSWCCA 58

Hearing dates:

20 November 2020

Date of orders:

7 April 2021

Decision date:

07 April 2021

Before:

Hoeben CJ at CL at [1]
Davies J at [2]
Fagan J at [76]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to six offences – two indictable offences of assaulting a police officer one contrary to s 60(2) – four summary offences of possessing a prohibited drug – aggregate sentence imposed - whether sentencing judge erred in declining to fix a non-parole period – whether sentencing judge took into account irrelevant considerations and did not take into account relevant considerations – where sentencing judge not advised that s 60(2) offence carried a standard non-parole period - whether error in not indicating a non-parole period for indicative sentence for s 60(2) offence – where any error would have had no effect on the aggregate sentence – whether sentence was manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW) ss 58, 60

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 44, 45, 54A, 54B

Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW)

Cases Cited:

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

Convery v R [2014] NSWCCA 93

R v Dunn [2004] NSWCCA 346

See v R [2020] NSWCCA 272

Waterstone v R [2020] NSWCCA 117

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Anthony Edward Tuesley (Applicant)
Crown (Respondent)

Representation:

Counsel:
K Averre (Applicant)
M Kumar (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/249056

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

6 April 2020

Before:

McLennan SC DCJ

File Number(s):

2019/249056

Judgment

1. HOEBEN CJ AT CL:   I agree with Davies J and the orders which he proposes.            

2. DAVIES J:   The applicant pleaded guilty in the Local Court to six offences. There were two indictable offences in respect of which he was committed for sentence, and there were four summary offences on a s 166 certificate. The two indictable offences were these:

Count 1: Assault police officer in the execution of his duty occasioning actual bodily harm, contrary to s 60(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 7 years’ imprisonment, and there is a standard non parole period (SNPP) of 3 years.

Count 2: Assault police officer in the execution of his duty, contrary to s 58 of the Crimes Act. The maximum penalty for this offence is 5 years’ imprisonment.

3. The four offences on the s 166 certificate were all offences of possessing a prohibited drug. The drugs respectively were 27.2 grams of cannabis, 3.95 grams of cannabis resin, 10.51 grams of buprenorphine strips, and 4.2 grams of cannabis seed. The maximum penalty for each of these offences was 2 years’ imprisonment, and/or a fine of 20 penalty units.

4. The applicant was sentenced by Judge McLennan SC in the District Court at Lismore on 6 April 2020 to an aggregate sentence of a fixed term of 20 months’ imprisonment commencing 10 August 2019 and expiring 9 April 2021. The indicative sentences were as follows:

Count 1:   15 months’ imprisonment

Count 2:   10 months’ imprisonment

5. The indicative sentences on the s 166 certificate were respectively imprisonment for 6 months, 3 months, 3 months and 2 months.

6. The sentencing judge declined to fix a non-parole period and gave reasons for doing so.

7. The applicant now appeals against his sentence on the following grounds:

1.   The sentencing judge erred in declining to fix a non-parole period because in imposing a fixed term of imprisonment the sentencing judge imposed a sentence which was not equivalent to the non-parole period but instead was equivalent to the total term of the sentence.

2.   In declining to set a non-parole period the sentencing judge took into account irrelevant considerations and failed to take into account relevant considerations.

3. The sentencing judge failed to indicate a non-parole period in relation to the indicative sentence for the s 60(2) offence and therefore failed to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999.

4.   The sentence was manifestly excessive.

Facts of the offending

8. On 10 August 2019 Senior Constable Martin and Detective Senior Constable Wallace were patrolling the Casino area in an unmarked police car. At about 10.30pm they observed a grey utility with Queensland registration plates parked on Hickey St. They ascertained from the use of MobiPole technology that the car’s registration had expired.

9. DSC Wallace approached the driver’s side door while SC Martin stood at the front of the vehicle. He noticed that the bonnet was warm, indicating that the vehicle had recently been driven. DSC Wallace informed the applicant that he was a police officer and produced his ID. He told the applicant the car was out of registration. The applicant said that it was not his vehicle, and said that he only drove it about 10 metres from the nearby car park to the present location. The applicant was unable to produce any licence or identification, and provided a name which the police found to be false. The applicant was unable to inform the police who owned the vehicle and how he came to be inside it.

10. The applicant got out of the vehicle. The police observed two capped syringes in the vehicle, that the applicant’s penis was hanging outside the zip of his jeans, that he was fidgeting with his clothes, and that he was trying to avoid eye contact.

11. When asked by SC Martin if he used drugs, the applicant said “yeah, from time to time”. Police informed the applicant that they were going to search him because they had formed the view that he may have had drugs on him and that the vehicle may have been stolen. The applicant pulled a tobacco pouch out of his pocket and put it in the tray of the utility. Concealed underneath the tobacco pouch were two balloons filled with an unknown substance.

12. As SC Martin reached for the balloons, having formed the opinion that they contained drugs, the applicant also reached for them. The applicant attempted to place the balloons in his mouth and was directed by police to desist. The police attempted to restrain the applicant from swallowing the balloons.

13. The police directed the applicant to drop the drugs but he would not comply. He thrashed and kicked about, keeping his arms out of reach from the police. As the police attempted to prevent him from swallowing the drugs, all three of them fell to the ground. The applicant continued to swing his arms around with clenched fists, with the drugs being inside his fists. He was kicking at the police whilst attempting to place the drugs in his mouth. SC Martin managed to seize one of the balloons out of the applicant’s hand, and threw it a short distance from the offender.

14. The police continued to direct the applicant to drop the drugs. The applicant continued to thrash violently, with his fists and legs striking DSC Wallace. That constituted count 2.

15. SC Martin repositioned his lower body to avoid being kicked by the applicant, and shortly afterwards felt immense pain when the applicant bit his upper thigh. That constituted count 1. The applicant would not cease biting until his hand was forced behind his back. The police were required to employ defence tactics as the applicant continued to kick at them. DSC Wallace received a cut on his hand and knuckles which had the applicant’s blood smeared across it.

16. The applicant was handcuffed, and whilst waiting for a caged vehicle he spat blood on the ground. He told SC Martin that he was undergoing treatment for hepatitis C.

17. The applicant was transported to Casino police station, and subsequently to Lismore Base Hospital for treatment to a cut and swelling, and to confirm that he had not ingested any fatal drugs. At Lismore police station he declined to be interviewed, and said to DSC Wallace, “I’m sorry for earlier.”

18. Both police officers attended Casino hospital. The applicant had hepatitis C at the time of the offences. Both officers were required to take prophylactic medication which caused side effects and a significant amount of anxiety and distress. The injury from the bite wound was approximately 2.5cm long. SC Martin’s jeans were torn as a result of the applicant biting him and not releasing the bite.

19. The drugs in the balloons were later found to be 27.2 grams of cannabis and 3.95 grams of cannabis resin. The applicant was also in possession of the cannabis seed and the buprenorphine strips.

Remarks on Sentence (ROS)

20. The sentencing judge found that the offence of assaulting a police officer in the execution of his duty occasioning actual bodily harm fell below the mid-range of objective seriousness. In relation to the offence of assaulting a police officer in the execution of his duty, his Honour found that it fell below the low range of offending for offences of that kind. His Honour said that there should be some notional accumulation of the indicative sentences to reflect the fact that there were two victims.

21. His Honour found that the offending was aggravated by the emotional distress occasioned to the police as a result of the applicant having hepatitis C, and informing the police of that matter after he had bitten SC Martin.

22. In relation to the drug offences, his Honour found that they fell towards the low end of the range of objective seriousness. His Honour then went on to say:

Mr Tuesley has a criminal history which can only be regarded as aggravating. The details that I am about to set out constitute what will be my reasons in due course pursuant to s 45 of the Crimes (Sentencing Procedure) Act for imposing a fixed term of imprisonment, that is for declining to set a non-parole period once I have settled upon the aggregate sentence in this case.

23. His Honour then made reference to the applicant’s criminal history, and noted that he had offended consistently over a twenty year period. He noted that there had been approximately 143 separate offences, and he made reference to the variety of orders that the applicant had received, including fines and non-custodial sentences. His Honour said:

None of these various orders which the court has imposed on Mr Tuesley have had the slightest deterrent effect on him personally, and nor do they seem to do anything to deal with what is clearly a significant drug problem that he has.

24. His Honour then considered subjective matters relating to the applicant. His Honour said:

It is inevitable in my view that Mr Tuesley is likely to reoffend upon his release. I regard his prospects of rehabilitation looked at clinically, and in a clear eyed way, as being close to non-existent. It seems to me that there is no utility at all in placing him on parole. It seems to me that it will have not the slightest effect upon him and will simply be a misallocation of resources in my view.

The appropriate sentence for Mr Tuelsey is one that involves a fixed term of imprisonment, pursuant to s 45 of the Crimes (Sentencing Procedure) Act.

Grounds of Appeal

Ground 1:   The sentencing judge erred in declining to fix a non-parole period because in imposing a fixed term of imprisonment the sentencing judge imposed a sentence which was not equivalent to the non-parole period but instead was equivalent to the total term of the sentence.

25. The applicant submitted that a term of imprisonment for a fixed period is equivalent to the non-parole period that would otherwise have been set. Reference was made in that regard to R v Dunn [2004] NSWCCA 346. The applicant submitted Dunn had been followed on many occasions in this Court.

26. The applicant submitted there is nothing in s 45(1A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an amendment made after the decision in Dunn, that has any bearing on whether the principle set out in Dunn is still good law.

27. The applicant submitted that s 45(1A) simply requires that before declining to fix a non-parole period for the aggregate sentence of 20 months, the term of the sentence imposed be at least as long as the term of the non-parole period the court would have set for the sentence if a non-parole period had been set in accordance with Division 1A. In the present case, the indicative term for count 1 was 15 months, so the sentence imposed exceeded the term of the non-parole period that the court would have imposed.

28. The applicant submitted that the indicative sentences could only reflect notional head sentences. He pointed out that the judge had not been advised that the offence constituting count 1 was an offence that had a standard non-parole period, with the result that an indicative non-parole period should have been stated.

29. The applicant submitted that during the proceedings, the sentencing judge said that he was not intending to impose a total sentence that came close to the sentence imposed in this court in Convery v R [2014] NSWCCA 93, although he expressed a view that a sentence equivalent to the non-parole period in that case was appropriate for the applicant. The applicant submitted that in fact the aggregate sentence imposed was the same as the non-parole period for the one offence in Convery.

30. The applicant submitted that the sentencing judge, when declining to set a non-parole period, so as to enable him to impose a fixed sentence, was required to ensure that the sentence reflected a notional non-parole period consistent with Dunn, and that his Honour had erroneously failed to do so.

31. The Crown submitted that the ROS show that his Honour complied with the terms of s 45 of the Sentencing Act. His Honour was aware of the section and referred to it. Throughout the ROS his Honour referred to the “fixed sentence” that would be imposed, and did not make reference to a head sentence or a non-parole period except by way of comparison to the sentence imposed in Convery.

32. The Crown submitted that even if it is accepted that the sentencing judge imposed a fixed term that did not reflect a non-parole period, such an approach was open to him. In that regard, the Crown relied on the six reasons advanced by N Adams J in Waterstone v R [2020] NSWCCA 117 at [81] - [90].

33. The Crown submitted that the language of s 45(1A) supports a construction of s 45 that a fixed term can be longer than the non-parole period. The fact that the fixed term could be greater than the non-parole period that would otherwise have been set (for a SNPP offence) suggests that a fixed term is not to be equated with the notional non-parole period.

Determination

34. Section 45 of the Sentencing Act provides:

45 Court may decline to set non-parole period

(1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences, a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so -

(a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b) because of any other penalty previously imposed on the offender, or

(c) for any other reason that the court considers sufficient.

(1A) A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division.

(1B) Subsection (1A) does not apply in relation to the sentencing of an offender in respect of an offence -

(a) which is being dealt with summarily, or

(b) if the offender was under the age of 18 years at the time the offence was committed.

(2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

35. In Waterstone, N Adams J carried out a comprehensive review of decisions of this Court that have considered fixed terms of imprisonment under s 45 of the Sentencing Act. That review identified different views, and for differing reasons, about the statement in Dunn that a fixed term of imprisonment will be the equivalent of the non-parole period of such a sentence. Her Honour at [82]-[90] set out six reasons why the statement in Dunn might require reconsideration. A further reason, mentioned by Johnson J in Waterstone, is that s 45 was amended by the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW) to insert sub-sections (1A) and (1B) into s 45. If the construction of s 45 were approached afresh taking into account those new sub-sections, a view may well be reached that the section points to a fixed term more likely being equivalent to the head sentence.

36. As in Waterstone, and many of the decisions referred to in it, it is not necessary in the present case to come to a final view about the proper construction of s 45 in that regard.

37. In order to establish error in relation to this ground, the applicant needs to show that the sentencing judge mistakenly believed that the fixed term he was imposing by way of an aggregate sentence was not the minimum term the applicant was required to serve. In other words, the applicant needs to show that the sentencing judge intended that, if he had imposed a non-parole period together with a balance of term, the sentence would have amounted to 20 months imprisonment. His Honour’s findings do not bear this out.

38. First, his Honour found that count 1 fell below the mid-range of objective seriousness, and that count 2 was towards the low end of the range. The maximum penalty for the offence in count 1 was seven years’ imprisonment, and for the offence in count 2 it was five years’ imprisonment. His Honour indicated an indicative sentence of 15 months’ imprisonment for count 1 after a discount of 25%. The notional starting point was 20 months’ imprisonment. His Honour indicated an indicative sentence of 10 months’ imprisonment for count 2, seemingly rounded down from 13.5 months as a notional starting point. If the statutory ratio under s 44 was applied to those sentences as non-parole periods, the indicative sentences for count 1 would have been 26.66 months and for count 2, 18 months. Such total sentences would be entirely consistent with the findings of objective seriousness, having regard to the almost complete absence of any mitigating features.

39. Secondly, a matter not without some significance was an exchange between the sentencing judge and the applicant’s counsel at the sentence proceedings where his Honour said:

In my view, the appropriate outcome for Mr Tuesley is a fixed term of imprisonment, and I was going to do that by way of imposing indicative sentences for each of these matters, giving him the 25% discount to which he is entitled. But otherwise not set a non-parole period pursuant to s 45 of the Crimes (Sentencing Procedure) Act, because it seems to me, with all due respect to Mr Tuesley, anything else would be just futile.

I might say also Ms Wood if its (sic) of any comfort to you, I wasn’t even thinking of going close to what was the head sentence in Convery (?) that you’ve referred me to. In fact, where I was ending up was with the non-parole period referred to there as a fixed term. A fixed term in my view is appropriate and that’s about the length of the time, taking into account all of the offending and his criminal history.       (emphasis added)

40. The decision referred to was Convery, where the offender in that case was charged with using an offensive weapon to commit an indictable offence and assaulting a police officer occasioning actual bodily harm. The appeal only concerned the sentence for the latter offence. The sentencing judge imposed a non-parole period of two years with a balance of term of three years and six months. In this Court, the sentence was reduced to a non-parole period of 20 months with a balance of term of 30 months.

41. It may be observed that the sentencing judge in the present case imposed a fixed term aggregate sentence of 20 months’ imprisonment, as he had indicated he was minded to do at the sentence hearing.

42. This is an appropriate case to have regard to an exchange between bench and bar when the Judge’s ROS were delivered immediately after the conclusion of the sentence proceedings. The applicant submits, effectively, that the ROS are ambiguous in terms of what the sentence represents. The above exchange, which took place only shortly before, assists in clarifying that ambiguity.

43. The third matter which indicates that the sentencing judge imposed a sentence for the minimum period he intended the applicant to serve arises for the reasons he gave in relation to parole. His Honour said that there was no utility in placing him on parole, that it would not have the slightest effect upon him, and it would simply be a misallocation of resources. What his Honour must have intended by those remarks was that there was no utility in imposing a balance of term during which he might be supervised.

44. In my opinion, it cannot be said that the sentence imposed was equivalent to the total term of the sentence. Had his Honour set a non-parole period, the total sentence would have been at least as long as the term of the non-parole period (s 45 (1A)). In that way, his Honour did not err in declining to fix a non-parole period.

Ground 2:   In declining to set a non-parole period the sentencing judge took into account irrelevant considerations and failed to take into account relevant considerations

45. The applicant submitted that it was clear from the sentencing judge’s remarks, that his primary consideration for imposing a fixed term was the applicant’s antecedents and the previous sentences imposed on the applicant, which led to a view that there was no utility in releasing the applicant to parole and that it would be a waste of resources. However, the applicant submitted that this finding by the sentencing judge failed to take into account that, after serving terms of imprisonment, the applicant was able to refrain from further offending for periods of time.

46. The applicant submitted that there was nothing in the form of sentencing reports or otherwise to suggest that the applicant would not benefit from supervision upon his release from custody. The finding as to a lack of utility and a waste of resources was not one open to the sentencing judge because there was no evidence to support such findings.

47. The applicant submitted that in recent years he had demonstrated that he could refrain from offending, and that there were periods of no offending whilst on parole.

48. The Crown submitted that, viewed as a whole, the sentencing judge took into account the following matters in declining to set a non-parole period:

(a)   The applicant’s antecedent character;

(b)   None of the orders imposed in Queensland had any deterrent effect, he was likely to reoffend, and his prospects of rehabilitation were close to non-existent;

(c)   The nature of the offences and the need for denunciation;

(d)   Other penalties previously imposed in Queensland;

(e)   The purpose of sentencing including specific deterrence.

49. The Crown submitted that his Honour’s assessment was conducted in the context of there being no positive evidence in the form of a Sentencing Assessment Report or psychological report, as to the utility of a period of supervision on parole for the applicant. The Crown submitted that no error has been shown in his Honour’s reasons.

Determination

50. The two particular complaints made in support of this ground are that the sentencing judge failed to take account of the times the applicant spent out of custody in between offences, and took account of a misallocation of resources when there was no evidence of that matter. Both of these matters were inextricably linked to the matters that the sentencing judge took into consideration in declining to set a non-parole period.

51. His Honour said in relation to the applicant’s prior offending:

Mr Tuesley has a criminal history which can only be regarded as aggravating. The details that I am about to set out constitute what will be my reasons in due course pursuant to s 45 of the Crimes (Sentencing Procedure) Act for imposing a fixed term of imprisonment, that is for declining to set a non-parole period once I have settled upon the aggregate sentence in this case. Mr Tuesley has a 12 page criminal history from Queensland. He has been offending consistently over a 20 year period from 18 July 1997 through to 21 February 2018. He has, on my calculations, 20 separate Court appearances. The offences that he has appeared in Court in relation to are minor drug offences, dishonesty offences, assaults and assaulting or obstructing police. On my calculations there are some approximately 143 separate offences in total.

He has been given the benefit of a variety of orders in Queensland, which vary from no conviction recorded and fines, no conviction with probation, no conviction with community service, suspended terms of imprisonment, full-time terms of imprisonment with parole. None of these various orders that the Court has imposed upon Mr Tuesley have had the slightest deterrent effect upon him personally, and nor do they seem to have been able to do anything to deal with what is obviously a significant drug problem that he has.

52. It is apparent, therefore, that his Honour looked closely at the applicant’s criminal record. The conclusion he came to from that record, that it was inevitable that the applicant was likely to reoffend upon his release, was clearly open to him. His Honour was under no further obligation to comment upon the periods between times of his incarceration when assessing the likelihood of the applicant’s reoffending.

53. The notion that supervision under parole involves an allocation of resources scarcely needs to be supported by evidence. His Honour, like others in the criminal justice system, would understand that supervision on parole involves resources to be applied to it. Quite apart from the human resources needed, parolees are from time to time fitted with electronic monitoring, a notoriously expensive resource. His Honour was entitled to take judicial notice of that matter.

54. In my opinion, this ground should be rejected.

Ground 3: The sentencing judge failed to indicate a non-parole period in relation to the indicative sentence for the s 60(2) offence and therefore failed to comply with s 54B(4) of the Crimes (Sentencing Procedure) Act 1999

55. The applicant submitted that, since the offence in count 1 was a Table offence under s 54A of the Sentencing Act, the sentencing judge was obliged to comply with s 54B(2), (3) and (4), and he did not do so. No non-parole period was indicated. The applicant submitted that the failure to do so would have had a considerable effect on the aggregate sentence to be imposed for the offending.

56. The applicant submitted that if a fixed term of imprisonment was to equate to a non-parole period, then any notional aggregate non-parole period or minimum term would necessarily be informed by the non-parole period the sentencing judge thought appropriate for the Table offence. That was particularly so where there was to be a degree of accumulation on the sentence for the other offence contrary to s 58 of the Crimes Act.

57. The applicant submitted that if, on the other hand, the fixed term of imprisonment was said to equate to a head sentence, the failure to indicate an indicative non-parole period for the Table offence constituted a material error. This is because it would have reinforced the desirability of setting a non-parole period for the aggregate sentence.

58. The Crown submitted that a failure to comply with s 54B(4) does not have the capacity to influence the sentence, and is not an error requiring the intervention of this Court. Reliance was placed on Ibbotson (a pseudonym) v R [2020] NSWCCA 92, and See v R [2020] NSWCCA 272.

59. The Crown submitted that the sentence for the Table offence was below the mid-range, and the sentencing judge recorded an indicative sentence of 15 months for that offence. That is less than half the SNPP. The Crown submitted that on that finding of objective seriousness, the findings as to aggravating factors and the applicant’s subjective case, the failure to indicate a non-parole period is not shown to be an error that was acted on by his Honour is arriving at the ultimate sentence.

Determination

60. Section 54B sets out the requirements for offences in the table to Div 1A of the Sentencing Act. Where an aggregate sentence is involved, that requires the Court to identify a non-parole period for the indicative offences that make up the aggregate sentence when those indicative offences are Div 1A Table offences. Section 45(1A) of the Sentencing Act provides:

A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division.

61. The sentencing judge intended the fixed term sentence he imposed would equate to the non-parole period. In that way the term of the sentence must be seen as being at least as long as the term of the non-parole period that the Court would have set if a non-parole period had been ordered.

62. In Ibbotson the sentencing judge did not indicate the non-parole period for the Div 1A Table offences. Justice Leeming and N Adams J would not have upheld a ground of appeal based on that failure. However, it is important to understand their reasons for that view.

63. The first ground of appeal in Ibbotson was that the sentencing judge had applied a sentencing discount to the aggregate sentence and not the indicative sentences. All three members of the Court held that that was an error. Justice Leeming first discussed that error and then went on to consider the second ground concerning the failure to indicate a non-parole period for a Div 1A Table offence. Justice Leeming said at [18]:

In contrast with the above, the failure to specify a non-parole period for the “indicative” sentences can have no effect upon the ultimate aggregate sentence which was imposed in the present case. Indeed, I struggle to think of any case where it is at all likely that the power to impose an aggregate sentence would be exercised where it could make any difference.

64. His Honour then dealt with the submissions of the Crown that s 54B(7) of the Sentencing Act provided that a failure to comply with s 54B did not “invalidate” the aggregate sentence. Justice Leeming said at [19] that the provision means what it says and the sentence remains valid. He went on to say:

…But those sections do not entitle the District Court to disregard the commands in the Crimes (Sentencing Procedure) Act. Nor do they relieve this Court from its obligation to correct error. As N Adams J notes, s 101A confirms this. Accordingly, s 53A(5) and s 54B(7) are irrelevant to the appeal.

65. Justice Rothman said:

[113]   On Ground Two, Leeming JA has expressed the view that Ground Two discloses error but that the error “can have no effect upon the ultimate aggregate sentence which was imposed”. As the foregoing reasons make clear, I also consider that error is established by the issue raised by the terms of Ground Two of the appeal.

[114]   Further, I agree with Leeming JA that an error of this kind could not affect the sentence that was imposed. However, as his Honour makes clear, this Court has an obligation to correct error.

…

[117]   Nevertheless, I reiterate that I agree with his Honour’s comments that an error of the kind described in Ground Two could not affect the sentence and would, if that were the only error, allow the Court either to deny leave or to come to the view that no lesser sentence is warranted, without embarking upon the entire re-sentencing task. My preference, in those circumstances, would be to deny leave to appeal on that ground, but that would have no practical effect in these proceedings.

66. Justice N Adams said:

[147] Although the Crown conceded this error, reliance was placed on s 54B(7) of the Sentencing Act which provides that non-compliance with s 54B of the Sentencing Act does not “invalidate” the sentence. Section 54B(7) is concerned with the validity of the sentence; it does not mean that there was no error. That this is so is confirmed by s 101A of the Sentencing Act which expressly provides that “[a] failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence”.

[148]   The Crown also relied upon the decision in Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 where Button J (with whom McClellan CJ at CL and Garling J agreed) considered and dismissed a similar ground on a number of bases (at [214]-[219]), including that the appellant’s solicitor had not assisted the sentencing judge and that it is the aggregate sentence and not the indicative sentences which is amenable to appeal. Significantly, the Court also held at [217] that “setting non-parole periods for the indicative sentences would have no effect on the sentence imposed upon and to be served by Mr Nguyen”.

[149]   Again, the decision in Truong v R; R v Le; Nguyen v R; R v Nguyen was decided before the decision in Kentwell. Thus, the approach taken by the Court to error needs to be examined with some caution. Despite this, as I have explained at [135] above, although an applicant does not need to establish that an error has had an actual effect on the sentence imposed, he or she still is required to show that an error has the capacity to influence the sentence. I am unable to see how a failure to state the non-parole period on an indicative sentence has the capacity to influence the aggregate sentence imposed. The applicant did not rely upon any decision in which it has been found that such an error is amenable to intervention by this Court.

…

[154]   I have been unable to find any decision in which such a ground has been successful. On the contrary, this Court has held on a number of grounds that this is not an error warranting the intervention of this Court.

…

[157] I am given further comfort in my conclusion that non-compliance with s 54B(4) of the Sentencing Act is not an error requiring the intervention of this Court by the following two matters.

[158]   First, at [42] of Kentwell, which I have extracted above at [7], the remaining part of the passage is in these terms:

“By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer’s discretion.”

[159]   It seems to me that the example provided by the High Court in Kentwell is similar to that complained of under this Ground.

[160] Further, on 25 October 2016, s 45(1A) to the Crimes (Sentencing Procedure) Act 1999 (NSW) came into effect. It provides that:

“A court may decline to set a non-parole period for a sentence of imprisonment, or an aggregate sentence of imprisonment, for an offence or offences set out in the Table to Division 1A of this Part only if the term of the sentence is at least as long as the term of the non-parole period that the court would have set for the sentence if a non-parole period had been set in accordance with that Division.”

[161]   If a sentencing court is not required to set a non-parole period for a standard non-parole offence, it is difficult to see why a failure to do so in relation to an indicative sentence could amount to an error warranting intervention by this court.

67. When his Honour was setting an aggregate sentence and made clear that he intended to impose only a fixed term aggregate sentence, there must be doubt that there was any error in not indicating a non-parole period for the indicative offence which carried a standard non-parole period. It may be accepted that his Honour did not turn his attention to the matter because he was not advised that the offence against s 60(2) carried a SNPP.

68. If, however, there was error in that way, it is not an error which has any effect on the aggregate sentence: Ibbotson at [18], [114], [148], [161]; See at [26].

69. I would reject this ground.

Ground 4:   The sentence was manifestly excessive

70. Although in his written submissions in support of this ground, counsel for the applicant contended that the aggregate sentence was manifestly excessive, particularly because it was said the indicative sentences for the s 166 certificate offences were manifestly excessive, counsel conceded at the hearing that ground 4 was not a particularly strong ground, and that he would not press ground 4 in circumstances where the Court concluded that the 20 months’ aggregate sentence was in fact the non-parole period for the offending. He submitted that what the appeal was largely confined to was the failure to set a non-parole period with that 20 months being the total aggregate sentence and not a non-parole period.

71. I have found that the aggregate sentence was intended to equate to the non-parole period.

72. The total of the indicative sentence was 39 months’ imprisonment set against an aggregate overall sentence of 20 months. Bearing in mind the maximum penalties for the two principal offences, the fact that the s 60(2) offence carried a SNPP of three years, and having regard to the applicant’s lengthy criminal record with almost no mitigating subjective factors, it cannot be said that the aggregate sentence of 20 months was manifestly excessive. Counsel’s concession in that regard was properly made.

73. I would reject this ground.

Conclusion

74. The issues which gave rise to this appeal derived largely or wholly from the fact that the sentencing judge was not informed that the offence against s 60(2) was an offence which carried a SNPP. District Court judges work under considerable pressures, and do not have the leisure to be researching for themselves whether an offence such as count 1, which is not an offence regularly seen, carries a SNPP. The parties, and particularly the Crown, have an obligation to ensure that a sentencing judge is provided with all appropriate information to minimise the risk that error will occur in the sentencing process.

75. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

   76. FAGAN J:   I agree with Davies J.

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Decision last updated: 07 April 2021