Vickers v The Queen

[2020] NSWCCA 297

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vickers v R [2020] NSWCCA 297

Hearing dates:

16 September 2020

Date of orders:

13 November 2020

Decision date:

13 November 2020

Before:

Gleeson JA at [1];
Price J at [2];
Wright J at [3]

Decision:

(1)   The applicant is granted leave to appeal.

(2)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – Sentence appeal – Offence of doing act with intent to pervert the course of justice – Whether sentencing judge erred in assessing offence as in the midrange of objective seriousness – No error established

CRIMINAL LAW – Sentence appeal – Whether sentencing judge’s misstatement of maximum penalty for additional drive while disqualified offence impacted aggregate sentence – Misstatement had no material impact

CRIMINAL LAW – Sentence appeal – Whether sentence manifestly excessive – Not manifestly excessive in the circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Road Transport Act 2013 (NSW)

Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Andreata v R [2015] NSWCCA 239

Bidgood v R [2016] NSWCCA 138

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194

Finnie v Regina and Regina v Finnie [2007] NSWCCA 38

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297; 246 A Crim R 528

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Kerr v R [2016] NSWCCA 218; 78 MVR 191

Lees v R [2019] NSWCCA 65

Moodie v R [2020] NSWCCA 160

Mulato v R [2006] NSWCCA 282

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

PO v R [2020] NSWCCA 129

R v Lachlan [2015] NSWCCA 178

Stephen Leslie Newton v R [2009] NSWCCA 128

Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64

Zaky v R (Cth)[2017] NSWCCA 141

Category:

Principal judgment

Parties:

Damian Vickers (Applicant)
Regina (Crown)

Representation:

Counsel:
W Tuckey (Applicant)
E Wilkins SC (Crown)

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

File Number(s):

2017/199174;
2017/3181133;
2018/35474;
2018/37250

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 735

Date of Decision:

20 August 2019

Before:

Bright DCJ

File Number(s):

2017/199174;
2017/318133;
2018/35474;
2018/372520

Judgment

1. GLEESON JA: I agree with Wright J.

2. PRICE J: I agree with Wright J.

3. WRIGHT J: The applicant, Mr Damian Vickers, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against an aggregate sentence imposed on him by Bright DCJ on 20 August 2019 in the District Court at Gosford.

Background

4. The applicant was charged with 14 offences which can be summarised as: five offences of publishing false or misleading material to obtain a financial advantage; doing an act with intent to pervert the course of justice; supplying a prohibited drug; knowingly dealing with the proceeds of crime; possessing a shortened firearm without authority; two offences of driving while disqualified; possessing ammunition without authority; intentionally or recklessly destroying or damaging property; and, possessing a prohibited weapon without a permit.

5. On 29 October 2018 in the Local Court, the applicant pleaded guilty to all of the charges except the charge of possessing a shortened firearm without authority. The applicant was committed to the District Court. The two offences of driving while disqualified and the offences of possessing ammunition without authority, intentionally or recklessly destroying or damaging property and possessing a prohibited weapon without a permit were included on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) as related offences.

6. On 11 February 2019 in the District Court, the applicant pleaded guilty to the charge of possessing a shortened firearm without authority.

7. The sentence hearing took place before Bright DCJ on 5 and 10 July 2019. On 20 August 2019, her Honour imposed an aggregate sentence in respect of 11 of the offences, including two of the related offences on the s 166 certificate, of seven years’ imprisonment to date from 19 May 2018 and expire on 18 May 2025 with a non-parole period of four years dating from 19 May 2018 and expiring on 18 May 2022. She also provided her reasons for so doing: R v Vickers [2019] NSWDC 735.

8. As required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), Bright DCJ indicated the sentences that would have been imposed for each relevant offence had separate sentences of imprisonment been imposed instead of an aggregate sentence. These indicative sentences are as set out in the table below.

CAN/Seq	Offence	Indicative sentence
H…663 seq 4	Doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW): maximum penalty 14 years	3 years
H…663 seq 9	Publishing false or misleading material to obtain a financial advantage, contrary to s 192G(b) of the Crimes Act 1900 (NSW): maximum penalty 5 years	1 year
H…663 seq 10	Publishing false or misleading material to obtain a financial advantage, contrary to s 192G(b) of the Crimes Act 1900 (NSW): maximum penalty 5 years	1 year
H…663 seq 11	Publishing false or misleading material to obtain a financial advantage, contrary to s 192G(b) of the Crimes Act 1900 (NSW): maximum penalty 5 years	1 year
H…663 seq 12	Publishing false or misleading material to obtain a financial advantage, contrary to s 192G(b) of the Crimes Act 1900 (NSW): maximum penalty 5 years	1 year
H…701 seq 7	Publishing false or misleading material to obtain a financial advantage, contrary to s 192G(b) of the Crimes Act 1900 (NSW): maximum penalty 5 years	1 year 6 months
Ex officio indictment	Possessing a shortened firearm without authority, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW): maximum penalty 14 years	2 years 4 months
H…995 seq 2	Supplying a prohibited drug (5.45 g of methylamphetamine), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW): maximum penalty 15 years and/or 2000 penalty units	1 year
H…955 seq 3	Knowingly deal with the proceeds of crime ($6,052), contrary to s 193B(2) of the Crimes Act 1900 (NSW): maximum penalty 15 years	6 months
Offences on the s 166 certificate included in the aggregate sentence
H…701 seq 1	Driving whilst disqualified (prior offence) on 21 October 2017, contrary to s 52(1)(a) of the Road Transport Act 2013 (NSW): maximum penalty said to be “2 years imprisonment and or 50 penalty units, disqualification for 2 years”	1 year (with disqualification for 2 years)
H…226 seq 9	Driving whilst disqualified (prior offence) on 25 January 2018, contrary to s 54(1)(a) of the Road Transport Act: maximum penalty 12 months and/or 50 penalty units	9 months (with disqualification for 12 months)

9. In addition, a number of the offences included on the s 166 certificate were dealt with otherwise than by way of a sentence of imprisonment. Those matters were disposed of as set out in the table below.

Offences on the s 166 certificate not included in the aggregate sentence
CAN/Seq	Offence	Disposition
H…226 seq 3	Possessing ammunition without authority, contrary to s 65(3) of the Firearms Act 1996 (NSW): maximum penalty 50 penalty units	Under s 10A, offence proved but no further penalty imposed
H…226 seq 16	Intentionally or recklessly destroying or damaging property, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW): maximum penalty 5 years	Community Corrections Order (CCO) for 12 months
H…995 seq 5	Possessing a prohibited weapon (an extendable baton) without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW): maximum penalty 14 years with a standard non-parole period of 5 years	CCO for 12 months

10. A notice of intention to appeal was filed by the applicant on 3 September 2019 and, on 25 June 2020, the application for leave to appeal together with proposed grounds of appeal and submissions were filed.

Grounds of appeal

11. The grounds of appeal on which the applicant seeks to rely are:

“1. The learned sentencing judge erred in assessing the offence of perverting the course of justice as in the middle of the range of objective seriousness.

2. The learned sentencing judge erred by applying the wrong maximum penalty to an offence of driving whilst disqualified.

3. The aggregate sentence imposed was manifestly excessive.”

12. These grounds require the learned sentencing judge’s remarks on sentence to be considered in some detail.

The remarks on sentence

Introduction and identification of offences and maximum penalties

13. The learned sentencing judge commenced her remarks by identifying the applicant, noting that he was 42 years of age, and listing the 14 offences for which he stood to be sentenced together with the maximum penalty prescribed for each offence.

14. In relation to the driving whilst disqualified offence on 21 October 2017, contrary to s 52(1)(a) of the Road Transport Act, it was recorded that the maximum penalty was “2 years imprisonment and or 50 penalty units, disqualification for 2 years”.

Guilty plea discounts

15. Her Honour noted that the applicant had pleaded guilty in the Local Court to all offences except the offence of possessing a shortened firearm and accordingly in relation to all of those offences he was held to be entitled to a discount of 25%. Since the applicant pleaded guilty to the shortened firearm offence in the District Court, Bright DCJ proposed to allow a discount on sentence in respect of that matter of 10%.

Time already spent in custody, totality and concurrence with earlier sentence

16. As to the time that the applicant had already spent in custody, it was recorded that prior to 1 February 2018, the applicant had spent 11 days in custody and since 1 February 2018 he had been in continuous custody, during which time he had served an eight month non-parole period in respect of an aggregate sentence of one year and four months imposed on 20 February 2019 by the Gosford Local Court. Bright DCJ was satisfied that “there would have to be some concurrency between that sentence and the current sentence in circumstances where that offending did occur within the same period”.

17. Having regard to the question of totality, her Honour proposed to backdate the sentence to be imposed to 19 May 2018, which date also took into account the 11 days in custody prior to 1 February 2018. By my calculation, this was equivalent to making 4 months of the aggregate sentence imposed by Bright DCJ concurrent with the earlier aggregate sentence imposed by the Local Court.

The circumstances of the offending

18. Her Honour’s findings as to the circumstances of the offending were based on the agreed facts which were before the Court. Those findings which are relevant for present purposes are set out in the paragraphs which follow.

Offending between August 2014 and July 2016

19. Between August 2014 and July 2016, the applicant committed four offences of publishing false or misleading material to obtain a financial advantage involving the use of a false driver’s licence in the name of Lane Stubberfield and one offence of doing an act with intent to pervert the course of justice, involving the applicant purporting to be Mr Stubberfield.

20. The applicant had been at high school with Lane Stubberfield, who had lost his wallet, containing his birth certificate and MasterCard, at a party between 2006 and 2008. At some stage, the applicant came into possession of both the birth certificate and the MasterCard. On 3 April 2007, 9 December 2009 and 11 November 2014, the applicant made licence applications in the name of Mr Stubberfield in relation to both a car and a motorbike. Subsequently, those licences were renewed.

21. On 10 August 2014, the applicant was issued with an infringement and penalty notice for $242 in the name of Lane Stubberfield as a result of producing a Western Australian licence in that name to police when the applicant was stopped and questioned about a traffic infringement when driving a car. This gave rise to the charge the subject of H…663 sequence 9.

22. On 26 May 2015, the applicant was stopped by police when riding a motorbike. He presented a licence in the name of Lane Stubberfield. When advised by police that the motorbike was out of registration and apparently owned by a Damian Vickers, the applicant stated: “That’s who I bought if off years ago.” An infringement notice with a penalty of $623 was issued to the applicant in the name of Mr Stubberfield. This was the subject of the charge in H…663 sequence 11.

23. On 11 May 2016, the applicant tested positive for methylamphetamine when he was subject to a random drug test when riding a motorbike. The applicant produced a driver’s licence in the name of Lane Stubberfield. When questioned about why the bike was registered to Damian Vickers and not Lane Stubberfield and the fact that the licence was not the appropriate licence for riding a motor bike, the applicant responded by stating that he had purchased the motorbike from Damian Vickers and was paying it off before registration. On 19 May 2016, six infringement notices arising out of this incident were sent by mail to Mr Stubberfield. This was the conduct which gave rise to the charge the subject of H…663 sequence 10.

24. On 27 May 2016, a charge of drug driving contrary to s 111(1)(a) of the Road Transport Act was laid against Mr Stubberfield arising out of the applicant’s drug test on 11 May 2016. The court attendance notice, or CAN, in respect of that charge was mailed to the applicant and the matter was listed at Gosford Local Court for 19 July 2016.

25. On 11 June 2016, police stopped the applicant who advised that his name was Lane Stubberfield and that he had consumed some alcohol. The applicant was cautioned. Later, he provided police with a driver’s licence in the name of Lane Stubberfield. He also stated that the car was not registered to him because he was just test driving it. An infringement notice with a penalty of $106 was issued to the applicant in the name of Lane Stubberfield in relation to his failure to carry a driver’s licence. This conduct gave rise to the charge the subject of H…663 sequence 12.

26. On 19 July 2016, in response to the court attendance notice of 27 May 2016 for the drug driving charge, the applicant attended Gosford Local Court. He was unrepresented and presented himself to the Court as Lane Stubberfield. He entered a plea of guilty to the offence charged. The sentence imposed was a $400 fine and three months driver’s licence disqualification. The conviction, financial penalty and disqualification were recorded against the name of Lane Stubberfield. This conduct was the subject of the charge in H…663 sequence 4.

Apprehension of the applicant in July 2017

27. In April 2017, the State Debt Recovery Office sent a letter to Mr Stubberfield informing him that he had $5,615 in outstanding unpaid fines. In addition, the State Debt Recovery Office sent him a notice of restriction of business for non-payment of fines and refused to conduct any motor vehicle related transactions for him. Mr Stubberfield informed the State Debt Recovery Office that he had been the victim of identity theft.

28. On 2 July 2017, police attended the applicant’s premises and questioned him concerning Mr Stubberfield’s birth certificate and other documents in Mr Stubberfield’s name in the applicant’s possession. The applicant denied ever having a birth certificate in that name and said that he did not have the licence he had previously used anymore. When his vehicle was searched, two Western Australian driver’s licences, a Western Australian boat licence and a Westpac MasterCard, all in the name of Lane Stubberfield were found. The applicant was arrested and charged.

29. On 4 July 2017, the applicant was granted conditional bail.

Offending in October 2017

30. On 21 October 2017, the applicant was stopped for a random breath test and he produced a driver’s licence in the name of Lane Stubberfield. Police checks indicated that the applicant’s licence was disqualified and that he may be using Mr Stubberfield’s identity as an alias. The applicant was arrested and charged. These was the charges the subject of H…701 sequences 1 and 7.

Offending in December 2017

31. On 22 December 2017, the applicant was injured in a motorbike accident. He had been wearing a backpack at the time of the accident. In the backpack were: a set of scales, a used ice pipe, 5.45 grams of methylamphetamine, $6,062.10 in cash and an extendable baton. As a result, the applicant was charged with H…701 sequences 2, 3 and 5.

Offending in January 2018

32. On 25 January 2018, a male and female were seen having a heated verbal altercation in a McDonald’s carpark of Tuggerah and the male slashed the tyres of the female’s vehicle. A witness followed the male’s ute, called the police and provided the licence plate details. When police later located the ute, it had different front and rear licence plates. In the ute was a shortened 12 gauge Harrington and Richardson model 1908 single barrel shotgun, which was in working order as well as seven red live shotgun rounds and a large number of personal items belonging to the applicant. CCTV footage showed the applicant driving the ute, whilst disqualified, over several proceeding days. The applicant’s DNA was also located throughout the ute and was one of two profiles on the handle of the gun.

33. When arrested, the applicant denied driving the ute on 25 January 2018 but admitted general possession of it, stating the owner was in Western Australia and had given him the keys. He also said: “The shotty just got thrown at me by a crackhead who said, ‘Check this out.’” The applicant was not authorised by any permit to possess the shortened firearm. This offending was the subject of H…226 sequences 3, 9 and 16 and the ex officio count.

Assessment of objective seriousness

34. In relation to the five offences of publishing false and misleading material to obtain financial advantage (H…663 sequences 9, 10, 11, 12, H…701 sequence 7), her Honour took into account that there was some planning involved in that the applicant had organised to have a licence issued in a false name and each offence involved theft of an individual’s identity. In addition, it was noted that the applicant was motivated by a desire not to incur traffic penalties and to avoid losing his own licence, although the monetary penalty on each occasion was modest. Bright DCJ regarded each offence as “just below the middle of the range of objective seriousness”.

35. As to the offence of doing an act with intent to pervert the course of justice (H…663 sequence 4), her Honour regarded this offence as “in the middle of the range for objective seriousness” after taking into account that the applicant appeared before a court representing himself as Lane Stubberfield, that his motive was to avoid incurring a monetary penalty for a driving offence and the associated licence disqualification, and that he sought to escape a conviction for a criminal offence. In relation to this offence, the sentencing judge also noted that both general and specific deterrence were important considerations on sentence. In addition, Bright DCJ observed:

“In particular, as a consequence of this offending, the victim would have acquired a criminal record and would have suffered criminal punishment for an offence which the person did not commit. In such circumstances, this is a serious example of the offence of perverting the course of justice.”

36. In relation to the supply prohibited drug offence (H…995 sequence 2), the sentencing judge took into account that:

1. the quantity involved was “4.5 grams recognising that the trafficable quantity is 3 grams, the indictable quantity is 5 grams and the commercial quantity is 250 grams” (This does not appear, however, to be consistent with her Honour’s description of the offence at [4] of her reasons and the finding at [36] that the amount involved was “5.45 grams of methyl amphetamine (5 grams in one clear resealable bag and .45 grams in a freezer bag)”); and

2. there was an absence of evidence to establish that the applicant was significantly involved in drug supply.

Neither party in this Court raised any issue concerning the apparent inconsistency in relation to the weight of the drugs involved and, as it appears to be a minor discrepancy and in the applicant’s favour, it is unnecessary to consider it further. Her Honour’s unchallenged finding was that the drug supply offence was “towards the lowest end of objective seriousness”.

37. The offence of knowingly deal with the proceeds of crime (H… 995 sequence 3) was found to be “towards the lower end of the range of objective seriousness”, having regard to the amount of money.

38. In relation to the offence of possessing a shortened firearm (the ex officio count), Bright DCJ took into account that the firearm was located unsecured in a motor vehicle, there was no evidence that it was loaded or that the ammunition found with the firearm was capable of being used in it but it was in working order. Based on those factors, the objective seriousness was assessed as “falling below the middle of the range”. Her Honour also noted that in sentencing for such offences, general deterrence had an important role to play and the imposition of significant punishment for illegally possessing firearms not only ensured deterrence but also promoted protection and safety of the community. She referred to the decision of R v Lachlan [2015] NSWCCA 178 and noted that shortened firearms have no legitimate purpose and are particularly dangerous because of their capacity for concealment making them suited to serious criminal activity.

39. As to the related offences on the s 166 certificate, her Honour said that she regarded:

1. each of the drive whilst disqualified offences (H…701 sequences 1 and 9) as “below the middle of the range”;

2. the offence of possessing ammunition (H…226 sequence 3) as being “at the lowest range of objective seriousness” having regard to the quantity of ammunition found;

3. the offence of destroying or damaging property (H…226 sequence 16) “at the lowest range of objective seriousness” having regard to the nature and extent of the damage to the tyres and the absence of evidence of value of the damage; and

4. the offence of possessing a prohibited weapon (H…995 sequence 5) as being “just below the mid-range of objective seriousness” having regard to the type of weapon, namely, an extendable baton.

Aggravating factors

40. Her Honour did not rely on the applicant’s record of previous convictions as an aggravating factor but found that it disentitled him to any leniency on sentence.

41. In addition, it was found that the fact that the offences in H…701, H…226 and H…995 were committed while the applicant was the subject of s 9 good behaviour bonds imposed on 25 August 2017 and while he was on bail was an aggravating factor.

Subjective circumstances

42. Bright DCJ noted that the offender was 42 years of age at the time of sentencing and that his criminal history in New South Wales had commenced in 1991 and extended through to February 2019 and he also had a criminal history in Western Australia for driving offences. Her Honour reiterated her earlier conclusion that his history disentitled him to any leniency on sentence and she was satisfied that with respect to the driving offences, specific deterrence was an important consideration on sentence.

43. It was recorded that the applicant reported that his mother was a heroin addict and supplier and that he was weaned off heroin after birth. He also reported being subject to childhood physical abuse by one of his mother’s partners. In the report of Dr Furst, which was before the sentencing judge, it was noted that the applicant had a history of severe childhood trauma with his father killing his mother in front of the applicant when he was only six years old. Initially, the applicant was told that his uncle rather than his father had murdered his mother in an apparent attempt to protect him from the enormity of the family trauma. It was also reported that approximately two and a half years before the sentencing hearing, the applicant had found out the truth in relation to his mother and, as a consequence, he began drinking heavily and using ice and cocaine and he stopped going to work and began neglecting his family.

44. The applicant was a bricklayer by trade and had worked in that industry for 18 years. He reported that since being in custody he had been abstinent from drugs for approximately 18 months.

45. The applicant has a current partner with whom he has one child and a former partner with whom he had three children. Her Honour noted that the applicant remained in his relationship with his partner and described struggling as a consequence of the financial stress caused by his incarceration.

46. Her Honour referred to the applicant’s serious injuries suffered in the motorbike accident on 22 December 2017 but noted that he was not taking any medication currently but had a history of obstructive sleep apnoea.

47. The sentencing judge noted aspects of the applicant’s account of his offending given to Dr Furst and his clarification in evidence. One aspect of the applicant’s account of the offending was found by her Honour to demonstrate “his complete lack of appreciation of the gravity of the offending which involved deception within the criminal justice system”. As to the applicant’s description of himself as “in a drug haze” at the time of the offences, it was noted that self-induced intoxication is not to be taken into account as a mitigating factor under s 21A(5AA) of the Sentencing Procedure Act.

48. As to the applicant’s mental state, Bright DCJ noted the opinions of Dr Furst: that the applicant appeared to be of average intelligence and was not significantly depressed or anxious; that there were no indications of psychosis; and that he was suffering from substance use disorder (in remission) and adjustment disorder with mixed anxiety and depression. It was also noted that Dr Furst was of the opinion that the applicant’s traumatic childhood likely lead to emotional instability and poor coping skills and that, when he found out the truth about his father in 2017, he developed an adjustment disorder and turned to alcohol and drug use “in an effort to block out negative emotions”. To this extent the applicant’s mental health issues were said to have caused his drug and alcohol problems which in turn contributed to his offending.

49. Based on those opinions, her Honour was satisfied that at the time of offending from 2017 onwards, the applicant was suffering from mental health issues and, as a result, it was appropriate that there be some moderation of the otherwise appropriate sentence and her Honour cited Director of Public Prosecutions (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 at [177].

50. In addition and having regard to the evidence in relation to the childhood of the applicant, her Honour was satisfied that he had suffered significant trauma and a further reduction in his moral culpability was warranted on the basis of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42] to [44].

51. Bright DCJ recorded that the applicant gave evidence during the sentence proceedings of the support of his partner and his contact with his family, his hope of returning to work as a bricklayer on release and his abstinence from drugs whilst in custody. It was also noted that the applicant had completed numerous courses with respect to addiction and said he was embarrassed with respect to his offending behaviour and had tried to pay some of the fines.

52. Her Honour also took into account a number of references which were positive as to the applicant’s character and noted that although the applicant had ongoing health difficulties as a consequence of his motorbike accident there was no evidence that those conditions could not be adequately treated in custody.

Prospect of rehabilitation

53. Having had regard to the Community Corrections Officer’s assessment and the opinion of Dr Furst, the sentencing judge was satisfied that the applicant had moderate prospects of rehabilitation in circumstances where he had begun to address his substance use issues in custody. In this regard, she also noted his long history of employment, his good family support and his willingness to address his underlying issues. As a result, her Honour found, at that stage, that he was unlikely to reoffend.

Remorse

54. Whilst noting that the applicant had acknowledged in evidence his guilt in relation to the offending, her Honour was not satisfied that he was genuinely remorseful for his conduct. She did not accept that he acknowledged the serious and grave criminality and the consequences of his offending behaviour, particularly in relation to those offences involving identity theft and doing an act with intent to pervert the course of justice.

Special circumstances

55. Her Honour was satisfied that special circumstances were established given that this was his first lengthy period of time in custody and there would be some partial accumulation upon the sentence then being served and also on the basis that the applicant would need increased supervision in order to address his substance use issues in order to remain abstinent from drugs.

Totality

56. In relation to totality, her Honour referred to the relevant principles and indicated that she was satisfied that some partial accumulation was necessary having regard to the separate episodes of criminality and the circumstance that the offences of doing an act with intent to pervert the course of justice and possessing a shortened firearm disclosed very serious objective criminality.

57. Significantly, for the purposes of the present application for leave to appeal, at [101], her Honour said:

“I propose to make the drive whilst disqualified offences on the s 166 certificate wholly concurrent in circumstances where I consider the criminality has already been reflected in the sentences the offender has served whilst he has been in custody.”

Sentence

58. Her Honour then imposed the aggregate sentence identified above and dealt with the indicative sentences and other relevant matters.

Ground 1

59. The first ground of appeal on which the applicant sought to rely, if leave were granted, was that Bright DCJ had “erred in assessing the offence of perverting the course of justice as in the middle of the range of objective seriousness.”

Submissions

60. The applicant’s fundamental submission was that her Honour’s assessment was not open and that “the offence falls below the middle of the range of objective seriousness”. In support, it was contended in effect as follows:

1. The offence of perverting the course of justice encompasses a wide range of factual circumstances and the offences which have been found to be more objectively serious are those involving: pressuring or bribing an accused person to plead guilty; offences committed by “justice officials”; intimidating witnesses and complainants; and, assisting a serious offender to avoid detection and “the course of the law”, and the applicant’s offending in the present case did not involve any of those significant factors.

2. Of most importance in this case was that her Honour “did not give sufficient weight to the fact that the offence that the applicant attempted to avoid was an offence punishable only by a fine of $1,100 and licence disqualification”.

3. While the applicant’s actions “had a tendency to avoid a ‘conviction for a criminal offence’”, it was not sufficient merely to consider the fact of the conviction. The nature or type of conviction and the type of punishment, which the applicant avoided and to which the victim was subject, were not, but should have been, considered.

61. The applicant’s written submissions in relation to this ground of appeal included, under the heading “Comparative Cases” short summaries of 16 cases decided by this Court between 1992 and 2020.

62. In oral submissions, Mr Tuckey of counsel, who appeared for the applicant, submitted in effect that her Honour had made a House v The King error by failing to take into account a relevant consideration namely the nature of the underlying offences in relation to which the applicant had appeared before the Local Court claiming to be Lane Stubberfield. It was also put that the assessment that the perverting the course of justice offence was “in the middle of the range for objective seriousness” was not open to the sentencing judge in the circumstances.

63. In the Crown’s written submissions, it was noted that this Court had said on many occasions the task of assessing the objective seriousness of an offence is quintessentially for the sentencing judge. Attention was drawn to authorities which establish that a ground of appeal asserting error in the assessment of objective seriousness should only be advanced where specific error of the sort referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 can be identified and none had been identified by the applicant in the present case.

64. It was submitted by the Crown that the sentencing judge’s assessment of the objective seriousness of the perverting the course of justice offence was well open to her, noting that it was a serious matter in its own right that the applicant was prepared to stand before a court and lie about his true identity. Such conduct, it was contended, led to serious consequences in that the applicant not only escaped any penalty for the offences to which he pleaded guilty on that occasion but he also deliberately ensured that an innocent person, known to him, was visited with a criminal conviction for a drug-related traffic offence which the person did not commit, a fine and a suspension of licence.

65. Finally, the Crown contended in effect that an offence such as the present one involving perpetrating identity fraud on a court was serious because it took advantage of the fact that the more rigorous identification processes applied when a person was charged with more serious offences did not apply to the charges for which the applicant was required to appear before the Court. In this regard, it was submitted:

“It was the nature of the offence the applicant was attempting to avoid that enabled the applicant to succeed in perverting of the course of justice by lying to the court about his identity.”

Consideration

66. The principles to be applied when considering whether a sentencing judge has erred in the assessment of objective seriousness so as to vitiate the exercise of the sentencing discretion are well established. They include:

1. This Court is very slow to set aside the judgment or assessment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation given to the circumstances of the offence was open in the particular case: Mulato v R [2006] NSWCCA 282 (Mulato) at [37] (Spigelman CJ, with whom Simpson J agreed); Lees v R [2019] NSWCCA 65 (Lees) at [55] (Hoeben CJ at CL, Bathurst CJ and Price J agreeing).

2. The task of assessing objective seriousness is quintessentially one for the sentencing judge and involves a process akin to fact finding or the exercise of a discretion. Consequently, such an assessment is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 (House v The King); Mulato at [46] (Simpson J); Lees v R [2019] NSWCCA 65 (Lees) at [55].

3. The principles stated in House v The King as they may be applied to the elements of the sentencing discretion include that the sentencing discretion will have miscarried and this Court may intervene:

1. when a sentencing judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; and

2. when, on the facts of a particular case, the determination or assessment is so unreasonable or plainly unjust that it can be inferred that in some way there has been a failure properly to exercise the sentencing discretion; this will be so where the determination or assessment was not open in the particular case: House v The King at 505; Mulato at [37].

67. The House v The King error identified for the purposes of the first ground of appeal was, in effect, that the sentencing judge had failed to take into account a relevant or material consideration, namely the nature or type of conviction and the low maximum penalty applicable for the offence to which the applicant pleaded guilty as “Lane Stubberfield” before the Local Court. In further elaboration of this ground, it was submitted in substance that, having regard to the nature of the underlying offence and the maximum penalty applicable, her Honour’s conclusion as to the objective seriousness of the perverting the course of justice offending was not open. In other words, it was contended that the underlying charge was not sufficiently serious as to justify the conclusion that the applicant’s conduct in perverting the course of justice was “in the middle of the range for objective seriousness” in the circumstances.

68. In my opinion, these submissions should not be accepted.

69. Bright DCJ set out at [27] of her remarks on sentence, the actual nature and circumstances of the applicant’s driving with a prescribed illicit drug in his system contrary to s 111(1)(a) of the Road Transport Act on 11 May 2016. In addition, at [28] and [31], the sentencing judge adverted to the facts that:

1. a court attendance notice relating to this offending was mailed to the applicant on 27 May 2016 requiring “Lane Stubberfield” to attend Gosford Local Court on 19 July 2016; and

2. on 19 July 2016, the applicant attended Gosford Local Court, presented himself to the Court as Lane Stubberfield and pleaded guilty, leading to Lane Stubberfield being convicted, fined $400 and disqualified from driving for 3 months.

70. At [45] of her remarks, Bright DCJ specifically mentioned, not only the applicant appearing before the court on 19 July 2016 and representing himself to be Mr Stubberfield, but also the fact that his motive “was to avoid incurring a monetary penalty for a driving offence and the associated licence disqualification, that is, he sought to escape a conviction for a criminal offence”.

71. In these ways, the nature of the underlying offending and the penalties resulting from the plea of guilty entered by the applicant as “Lane Stubberfield” were clearly identified and taken into account as part of her Honour’s assessment of the objective seriousness of the offence of perverting the course of justice.

72. Further, at [47], the consequences for the victim of the identity theft of the applicant’s relevant actions were considered. These consequences included that the victim would have a criminal record as a result of the applicant’s offending and that the victim would suffer criminal punishment, by way of a fine, and disqualification, for an offence which he did not commit. This consideration also involved the sentencing judge having regard to the nature and consequences of the underlying charge to which the applicant pleaded guilty and for which the victim was punished.

73. Having taken all of these matters into account, her Honour concluded that this case was “a serious example of the offence of perverting the course of justice”, in the circumstances.

70. It is true that her Honour did not expressly identify that, at the relevant time, the maximum penalty for contravening s 111(1)(a) of the Road Transport Act did not include imprisonment and was only a relatively small fine of 10 penalty units (or 20 penalty units for a second or subsequent offence) together with a licence disqualification under s 205 of that Act. Nonetheless, she had already noted, at [31], that the actual penalty imposed was “a $400 fine and 3 months driver licence disqualification” and that “[t]he conviction, financial penalty and disqualification were recorded against the name of Lane Stubberfield”.

71. Thus, the contention that the sentencing judge failed to take into account a relevant or material consideration, namely the nature of the underlying charge and the less serious nature of the penalty imposed or able to be imposed upon conviction for that charge, should be rejected. On a fair reading of the remarks on sentence as a whole, the relevant matters were more than adequately identified and taken into account by the sentencing judge. Thus, there was no relevant House v The King error by failing to take into account a relevant or material consideration.

72. The second aspect of the applicant’s contentions in relation to the first ground of appeal was to the effect that the underlying charge was not sufficiently serious as to permit the conclusion that the applicant’s conduct in perverting the course of justice in relation to that charge was “in the middle of the range for objective seriousness”. On this basis, it was submitted that her Honour’s assessment of objective seriousness was not open in the present case.

73. The objective seriousness of an offence is to be assessed without reference to matters personal to the particular offender or class of offenders and is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

74. In the present case, the factual findings of her Honour establish that the relevant offending in relation to the charge of perverting the course of justice involved the applicant:

1. obtaining a licence in the name of another person and producing that licence to police leading to a court attendance notice being issued in that name of the other person;

2. attending and representing to a Court that he was someone who he was not;

3. entering a plea of guilty to an offence charged in the name of the other person;

4. causing the Court to be misled and consequently causing the Court to convict an innocent person and punish him by way of a fine and disqualification from driving; and

5. doing so for the applicant’s own benefit in that it was done so that he avoided a conviction, a fine and disqualification from driving in his own name.

79. As a result of the applicant’s conduct, the course of justice was obstructed and prevented by the Court’s being misled as to the applicant’s identity and as to who had actually committed the offence in question. The course of justice was also perverted and defeated in that an innocent person was convicted and wrongly subjected to criminal punishment, as a result of the applicant’s action.

80. The relative seriousness of the underlying offence and the minor nature of the maximum penalty for that offence may be factors relevant to the assessment of objective seriousness of perverting the course of justice. Nonetheless, it does not follow from the fact that the maximum penalty for the underlying offence is only a relatively small fine and disqualification from driving, that the offending of the applicant cannot fall “in the middle of the range for objective seriousness”.

81. Misleading a Court as to one’s identity has the potential fundamentally to undermine the administration of justice, which depends on the correct identification of those charged with, and convicted of, offences. This is especially so in relation to less serious offences where identification by means of documentation, such as a driver’s licence, is relied upon rather than more rigorous means of identification such as finger printing, photographs and DNA matching used for more serious offending. In the present case, the applicant had greater opportunity to mislead the Court because of the less serious nature of the underlying offence. Thus, the less serious nature of the underlying offence is not necessarily a factor which reduces to any substantial extent the seriousness of the offending amounting to perverting the course of justice in this case. Offending which involves deception of, and within, the criminal justice system is, of its very nature, grave.

82. Furthermore, the applicant’s deliberate conduct actually led to an innocent person being convicted of a drug driving offence and criminally punished. This wrongful result involved a fundamental and significant miscarriage of justice, notwithstanding that the offence of which the person was convicted was not one of the most serious.

83. The factual circumstances which may constitute the offence of doing an act with intent to pervert the course of justice will be many and varied. The objective seriousness will depend upon the nature and circumstances of the offending in each particular case. Where, however, a Court is deliberately misled as to the identity of the offender and an innocent person is actually convicted, it is difficult to perceive why it would not be at least open to characterise the offending as in the middle of the range of objective seriousness. The fact that the offending did not involve: the applicant pressuring or bribing an accused person to plead guilty; being a person who held an office in the justice system; intimidating witnesses and complainants; or, assisting a serious offender to avoid detection, does not lead to the conclusion that the applicant’s misleading the Court and causing an innocent person to be convicted in the present case was not capable of being characterised as in the middle of the range of objective seriousness. In my view, it was clearly open to the sentencing judge to assess the relevant offending in the circumstances of the present case as falling within the middle of the range of objective seriousness.

84. Moreover, in so far as the applicant’s case was that her Honour “did not give sufficient weight to the fact that the offence that the applicant attempted to avoid was an offence punishable only by a fine of $1,100 and licence disqualification”, failure to give sufficient weight to one factor does not amount to a House v The King error. Nor does it mean that the sentencing judge’s assessment of the objective seriousness of the offence of perverting the course of justice as being in the middle range was not open in this case. Further and in any event, it does not appear to me that the sentencing judge failed to give sufficient weight to the maximum penalty and licence disqualification provisions when assessing objective seriousness.

85. Finally, I accept that the 16 cases included under the heading “Comparative Cases” in the applicant’s written submissions illustrate some of the different circumstances that may amount to contraventions of s 319 of the Crimes Act. None of the cases, however, involved an offender misleading a court as to his identity and causing an innocent person, not complicit in perverting the course of justice in any way, to be convicted. None was so similar to the present case as to provide compelling guidance in this matter. This can be illustrated by two of the cases relied upon by the applicant.

86. In Finnie v Regina and Regina v Finnie [2007] NSWCCA 38, the relevant offending involved the following circumstances, as described by the sentencing judge:

“11. When the offender, through Dr. Vago, raised the spectre that he had prostate cancer, as evidenced by an alleged PSI reading of 160 (an alarmingly high reading by any standard), he was deliberately trying to mislead Judge Coorey with a view to obtaining bail. There was an obvious potential for evidence of cancer to influence the outcome of the bail application. Indeed, on 30 November 2000 (Exhibit G page 19), Judge Coorey said:

‘If he has cancer it will take me ten seconds to decide the matter.’

12. Fortunately, the Crown was suspicious regarding the assertion of prostate cancer. The bail application was adjourned to enable the Crown to lead evidence that the offender was not suffering from prostate cancer. The offender was not granted bail until September 2001. In relation to that grant of bail, there was no allegation of prostate cancer.

…

16. … In my view, the objective seriousness of the offence is in the mid range, although it is towards the lower end of the mid range.”

87. This Court, at [65] (Sully J, Simpson and Latham JJ agreeing), held that there was no error in any part of the sentencing judge’s analysis and reasoning, which included her assessment that the offence was within the mid range of objective seriousness. It was also held that the sentence of 18 months’ imprisonment was not manifestly excessive, having regard to the objective and subjective aspects of the offender’s case.

88. In PO v R [2020] NSWCCA 129, the offender was a 62 year old who was the step-father of a man accused of having committed 18 child sexual assault offences. The offender sought to intimidate the child victim of the sexual offences and her aunt, the ex-wife of the accused, by documents containing a variety of threats, including financial and emotional threats and threatening to unleash the media on the victims, although not including threats of physical violence, so that they would not give evidence against the accused. It was noted, at [42], that the sentencing judge had found that the offending was “slightly above the midrange for an offence of its kind” and this was not challenged on appeal. The offender was also found to have “exceptional subjective circumstances which led to a relatively favourable outcome for [him]”, at [42]. It was held, at [43], that the sentence of 3 years’ imprisonment after a 25% discount for a plea of guilty was within the range available to the sentencing judge and no error has been identified.

89. Consideration of the applicant’s comparative cases does not lead to the conclusion that the sentencing’s judge’s assessment of the objective seriousness of the offence of perverting the course of justice in this case was not open to her.

90. For all of these reasons, in my opinion, the first ground of appeal should be rejected, if leave to appeal were granted.

Ground 2

91. The applicant’s second ground of appeal was that the learned sentencing judge erred “by applying the wrong maximum penalty to an offence of driving whilst disqualified”.

Error correctly conceded

92. The sentencing judge said at [7] in relation to the first driving whilst disqualified offence on the s 166 certificate that:

“H127196701, (sequence 1), drive whilst disqualified (date of offence 21 October 2017), an offence pursuant to s 54(1)(a), Road Transport Act. The maximum prescribed penalty 2 years imprisonment and or 50 penalty units, disqualification for 2 years.”

93. The indicative sentence for this offence was imprisonment for 1 year with disqualification for 2 years.

94. At [9], her Honour said in relation to the second driving whilst disqualified offence on the s 166 certificate that:

“H66772226, (sequence 9), drive whilst disqualified (date of offence 25 January 2018), an offence pursuant to s 54(1)(a) , Roads Transport Act. The maximum prescribed penalty is 12 months imprisonment. The automatic disqualification is 12 months with a minimum disqualification of 6 months.”

95. The indicative sentence for this later offence was 9 months with disqualification for 12 months.

96. The Crown conceded that the maximum penalty stated for the offence H…701 sequence 1 was incorrect and it should have been 12 months’ imprisonment not two years.

97. This concession was correct. As at 21 October 2017, the date when the first driving whilst disqualified was committed, s 54 of the Road Transport Act provided that the maximum penalty for driving whilst disqualified was “50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence)”. The applicant was not sentenced for this offence, however, until 20 August 2019. By this time, the maximum penalty had been reduced to “50 penalty units or imprisonment for 12 months or both (in the case of a second or subsequent offence)” by Sch 1 item [3] of the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), which commenced on 28 October 2017.

98. Section 19(2) of the Sentencing Procedure Act provides:

“If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.”

99. Consequently, in the present case, the reduced penalty extended to the offence committed on 21 October 2017 because no penalty had been imposed before the commencement of the amending Act on 28 October 2017.

100. It appears that neither party was aware of the effect of s 19(2) of Sentencing Procedure Act at the time of the sentence hearing nor was it not brought to Bright DCJ’s attention.

Submissions

101. The applicant accepted that, while a failure by a sentencing judge to consider the correct maximum penalty for an offence is an error, this did not always require the Court to resentence, and whether a misstatement of the maximum penalty amounted to a material error depended on the facts of each case, relying on authorities including Bidgood v R [2016] NSWCCA 138 and Zaky v R(Cth) [2017] NSWCCA 141.

102. In this case, the applicant submitted that it was clear that the sentencing judge had acted on the wrong maximum penalty when the indicative sentences for the two driving whilst disqualified offences were considered together. It was contended that the only possible explanation for the later offence receiving a lower indicative sentence than the early offence was that the incorrect maximum penalty had been taken into account. It was also submitted that this was not a case in which the misstatement of the maximum penalty was inadvertent.

103. The Crown submitted that the error in the identification of the maximum penalty for the first driving whilst disqualified offence was not material to the determination of the aggregate sentence in the present case. This was said to be so because the sentencing judge had made it clear that in her view no further time in custody was required on account of the two driving while disqualified offences. It was contended that in determining the aggregate sentence for the more serious offences of perverting the course of justice, possessing a shortened firearm offences and the other seven offences not on the s 166 certificate, the misstatement of the maximum penalty in relation to one of the two driving whilst disqualified offences on the s 166 certificate did not constitute a material error on sentence requiring any intervention by this Court.

Consideration

104. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ), it was recognised, at [42], that not all errors in the sentencing of offenders vitiate the exercise of the sentencing judge's discretion. Consequently, the question may arise in a particular case whether an error was “material” in that sense.

105. Nonetheless, given the significance of the maximum penalty to the sentencing process, it is difficult to conceive of circumstances in which the misstatement of the maximum sentence would not result in an error of the type referred to in House v The King error: Andreata v R [2015] NSWCCA 239 at [28] (Beech-Jones J, Ward JA and Adams J agreeing). In that case, Beech-Jones J gave one example of where such an error might not amount to error requiring the intervention of this Court, namely, where the balance of the reasons for sentence demonstrated that the sentencing judge had in fact acted on the basis of the correct maximum penalty.

106. In Zaky v R (Cth) [2017] NSWCCA 141, Hoeben CJ at CL (Garling and Bellew JJ agreeing) observed, at [54], that whether a misstatement of a maximum penalty amounts to material error is determined by the facts of each case. The Chief Judge then referred to the comments of R A Hulme J (Grove and Howie JJ agreeing) in Stephen Leslie Newton v R [2009] NSWCCA 128 (Newton):

“21 Error in having regard to an incorrect maximum penalty for an offence can, but does not necessarily, lead to the result that this Court will allow an appeal and re-sentence: see the discussion of relevant authorities in the judgment of James J in Smith v R [2007] NSWCCA 138 at [27] – [37].

22 In this case, however, I am satisfied that the statement I have quoted as to the wrong maximum penalty had no material bearing upon the sentence that was imposed. It may be characterised as an inadvertent misstatement, or a slip, at worst.”

107. I accept that, in the present case, the sentencing judge acted on the wrong maximum penalty when she set out the indicative sentence for the first of the two driving whilst disqualified offences. In my view, the only likely explanation for the later driving while disqualified offence receiving a lower indicative sentence than the earlier offence was that the incorrect maximum penalty had been taken into account. In addition, her Honour expressly stated at [104] that “[i]n respect of those matters for which I indicate a sentence, … I have taken into account the maximum prescribed penalty in respect of each offence. …” Accordingly, it should not be accepted that the present was an example of a mere slip or misstatement in the remarks on sentence where the sentencing judge was aware of and actually acted on the basis of the correct maximum penalty when the indicative sentence for the first drive whilst disqualified offence was determined.

108. It is, however, well established that indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide as to whether error can be established in relation to the aggregate sentence: JM v R [2014] NSWCCA 297 at [40]; 246 A Crim R 528 (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing). Accordingly, the issue in the present case is whether the error in the statement of the maximum penalty for the first drive whilst disqualified offence on the s 166 certificate had any, or any material, impact upon the aggregate sentence.

109. In this case, when imposing an aggregate sentence Bright DCJ gave careful consideration to the requirement for notional concurrency of the indicative sentences for the driving whilst disqualified offences and the principle of totality, taking into account not only the nine other offences being included in the aggregate sentence but also the offending for which the applicant had been sentenced earlier on 20 February 2019.

110. Her Honour’s remarks under the heading “Totality” included:

“99 In circumstances where I am dealing with the offender for more than one offence, I am required to consider the question of totality. The relevant sentencing principle is to consider whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but if not, there should be some accumulation (see Cahyadi v R [2007[ NSWCCA 1).

100 I am satisfied that some partial accumulation is necessary having regard to the separate episodes of criminality. Also, in circumstances where the offences of do act with intent to pervert the course of justice and possess shortened firearms disclose very serious objective criminality, wholly concurrent sentences would not reflect the total criminality.

100 I propose to make the drive whilst disqualified offences on the s 166 certificate wholly concurrent in circumstances where I consider the criminality has already been reflected in the sentences the offender has served whilst he has been in custody.” (underlining added)

111. The “sentences the offender has served whilst he has been in custody” refer to the aggregate sentence for the offences mentioned in [66] of the remarks on sentence as follows:

“On 20 February 2019, he was also dealt with [for] multiple offences of drive whilst disqualified; receive property; goods in custody and drive under the influence of drugs. The sentence for those offences also formed part of the aggregate sentence of 16 months with a non-parole period of eight months.”

112. The earlier sentence for these offences was also the reason why Bright DCJ determined to commence the aggregate sentence for the 11 offences in the present case on 19 May 2018. At [15] and [16] her Honour explained her decision as follows:

“15 The offender has been in continuous custody since 1 February 2018. He also spent 11 additional days in custody prior to 1 February 2018. Whilst in custody he has served an 8 month non-parole period, being an aggregate sentence imposed on 20 February 2019 at the Gosford Local Court. I am satisfied there would have been some concurrency between that sentence and the current sentences in circumstances where that offending did occur within the same time period.

16 Having regard to the question of totality, I propose to back date the sentence imposed today to 19 May 2018. This commencement date also takes into account 11 days in custody prior to 1 February 2018.”

113. From the material before the sentencing judge, it appears that the offending for which the applicant was sentenced on 20 February 2019 included three offences of driving whilst disqualified committed on the two days preceding, and the same day as, the second offence of driving whilst disqualified included in the s 166 certificate in the present matter.

114. The remarks on sentence expressly made clear that Bright DCJ did not intend to include, and did not include, any additional period of imprisonment attributable to either of the two drive whilst disqualified offences (H…701 sequence 1 and H…226 sequence 9) in the aggregate sentence imposed. This was because the criminality inherent in those offences had already been reflected in the earlier aggregate sentence imposed on 20 February 2019.

115. This being so, even if a lesser sentence had been indicated by Bright DCJ in light of the correct maximum penalty for the first drive whilst disqualified offence (H…701 sequence 1), it could have made no difference to the aggregate sentence actually imposed by her Honour on 20 August 2019.

116. In these circumstances where the sentencing judge’s intentions can be clearly discerned, not least because of the comprehensive and principled exposition of her reasons, it can be confidently concluded that the error in the identification of the maximum penalty for the first drive whilst disqualified offence had no impact on the aggregate sentence in the present case. In these circumstances, there has been no relevant or material error which vitiated the exercise of the sentencing discretion in relation to the aggregate sentence.

117. For all of these reasons, I would reject the second ground of appeal, if leave were granted.

Ground 3

118. The third proposed ground of appeal was that the aggregate sentence imposed by Bright DCJ was manifestly excessive.

Submissions

119. After identifying relevant principles, the applicant contended in effect that this third ground depended largely upon an assessment of the objective seriousness of the perverting the course of justice offence which had been the subject of the first ground.

120. It was submitted in substance that the indicative sentence for perverting the course of justice, after a 25% discount, of three years was manifestly excessive:

1. because the objective seriousness should have been assessed as below the middle of the range; and

2. in light of the comparative cases.

121. The manifest excess of the aggregate sentence was in effect said to have been demonstrated by the manifest excess of the indicative sentence for perverting the course of justice together with the considerations that:

1. the six offences of publishing false and misleading information were a course of conduct with an uninterrupted similar source and were directly related to the perverting the course of justice offence, as were the driving whilst disqualified offences, and, as a result, a high degree of concurrency was required; and

2. the aggregate sentence of seven years with a four year non-parole period exceeded the appropriate penalty for the total criminality displayed by the applicant, especially having regard to his compelling personal circumstances which would have attracted a lower sentence.

122. The Crown’s submissions included references to relevant authorities and to the high maximum penalty for the offence of perverting the course of justice. In addition, it was submitted that the limitations on the usefulness of comparable cases should be borne in mind and it was submitted that little assistance could be derived from the cases relied upon by the applicant as comparable because of the differences in the nature and extent of the offences for which the applicant was being sentenced compared to those in the comparable cases and many of the offenders in the comparable cases had no criminal history or minor criminal histories.

123. The Crown contended that in the present case the applicant had failed to establish any error in the assessment of objective seriousness of the perverting the course of justice offence and thus had not established that there was any error reflected in the length of the indicative sentence for that offence or the aggregate sentence.

124. In summary, the Crown submitted that in light of the seriousness of the objective circumstances and the number of the offences, taking into account the applicant’s subjective circumstances, the indicative sentences and the aggregate sentence were well within the range of sentences appropriate in the present case.

Consideration

125. The principles to be applied when considering a ground of appeal contending that a sentence is manifestly excessive were not in dispute on this appeal and were usefully summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

• It is not to the point that this Court might have exercised the sentencing discretion differently.

• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."

126. As observed above, indicative sentences are not amenable to appeal although they may be a guide as to whether the aggregate sentence is manifestly excessive. Further, on an appeal against an aggregate sentence, the principal focus of a ground alleging manifest excess will be whether the aggregate sentence reflects the total criminality of the offences: Kerr v R [2016] NSWCCA 218; 78 MVR 191 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing) citing JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].

127. The aggregate sentence imposed in the present case was 7 years’ imprisonment with a non-parole period of 4 years. Four months of this sentence was concurrent with the earlier aggregate sentence imposed by the Local Court on 20 February 2019.

128. As the sentences indicated by Bright DCJ illustrate, the two most serious of the 11 offences in respect of which the aggregate sentence was imposed were: (a) perverting the course of justice; and (b), possessing a shortened firearm without authority. Both of those offences carry a maximum penalty of 14 years’ imprisonment. The relevant indicative sentences were: (a) 3 years; and (b), 2 years and 4 months, respectively. The applicant pleaded guilty to the first of those offences in the Local Court and consequently a discount of 25% was allowed. As to the second offence, he pleaded guilty in the District Court and the sentencing judge allowed a discount of only 10% as a consequence. These two offences were not related, the nature of the criminality involved was entirely different and they were committed about a year and a half apart. For the reasons explained above, I do not accept that her Honour’s findings that the objective seriousness of the perverting the course of justice was “in the middle of the range” was erroneous. The finding that the possessing a shortened firearm offence was “below the middle of the range” was not challenged.

129. In addition to the driving whilst disqualified offences on the s 166 certificate, which Bright DCJ explained did not contribute to the length of the aggregate sentence, the aggregate sentence also related to:

1. five offences committed over a period of more than 3 years from August 2014 to October 2017 of publishing false or misleading material for advantage which carry a maximum penalty of 5 years’ imprisonment, in relation to which the indicative sentences were 1 year, 1 year, 1 year, 1 year and 1 year 6 months;

2. one offence in December 2017 of supplying a prohibited drug (5.45 g of methylamphetamine) which carries a maximum penalty of 15 years’ imprisonment for which the indicative sentence was 1 year; and

3. one offence in December 2017 of knowingly dealing with the proceeds of crime ($6,052) for which the maximum penalty is 15 years’ imprisonment and for which the indicative sentence was 6 months.

130. None of the sentencing judge’s assessments of objective seriousness in relation to those additional offences was challenged by the applicant.

131. Taking into account those matters and the circumstances of these offences and her Honour’s findings as to:

1. the objective seriousness of the offending in each case,

2. the criminal history of the applicant;

3. his subjective circumstances;

4. his prospects of rehabilitation; and

5. his remorse;

and applying the principles in Bugmy, given the applicant’s circumstances, the need to moderate the sentence as a result of the applicant’s mental issues and the role they played in his offending as identified by the sentencing judge, the principle of totality and recognising the need for a degree of concurrency, I do not accept that the aggregate sentence was unreasonable or plainly unjust.

132. Having regard, in particular, to the total criminality of the offences for which the applicant was being sentenced, I am of the view that the aggregate sentence was well within the range of sentences available so that it could not be concluded that there must have been some error.

133. In reaching these conclusions, I have taken into account the comparative cases relating to the offence of perverting the course of justice relied upon by the applicant. It can be accepted that it is appropriate to have regard to sentences imposed in comparable cases in order to ensure consistency in sentencing: Moodie v R [2020] NSWCCA 160 at [81]. Nonetheless, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]. The cases relied upon by the applicant were diverse in terms of the offending involved and none demonstrated any significant similarity to the offending in the present case. The sentences ranged from 4 years’ imprisonment to a good behaviour bond. I have dealt in a little more detail with two of the comparative cases earlier when dealing with the first ground of appeal and it is not necessary to repeat here what was said there. It is sufficient to record that I did not perceive that any particular principles could be derived from the applicant’s comparative cases that would establish that either the indicative sentence for perverting the course of justice in this case, or the aggregate sentence, was plainly unjust or unreasonable.

134. Thus, in my opinion, the third ground of appeal should be rejected, even if leave to appeal were granted.

Conclusion and orders

135. Since the grounds of appeal were arguable, leave to appeal should be granted. Nonetheless, for the reasons given above, in my view each of the grounds of appeal fails and the appeal should be dismissed.

136. Accordingly, I propose that the orders of the Court should be:

1. The applicant is granted leave to appeal.

2. The appeal is dismissed.

*********

Decision last updated: 13 November 2020