White v DPP

[2021] NSWSC 1629

Supreme Court

New South Wales

Medium Neutral Citation:

White v Director of Public Prosecutions [2021] NSWSC 1629

Hearing dates:

26 November 2021

Date of orders:

14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Common Law

Before:

Beech-Jones CJ at CL

Decision:

(1)   The time for the filing of the Plaintiff’s amended summons be extended up to and including 13 July 2021;

(2) The Plaintiff be granted leave under s 53(1) of the Crimes (Appeal and Review) Act 2001 to raise ground 4 of his further amended summons;

(3)   The Appeal be dismissed.

Catchwords:

APPEAL – question of law alone – Crimes (Appeal and Review) Act – sentencing decision of Local Court – custodial sentence imposed for breaching conditions of an Extended Supervision Order – whether s 5(2) of Sentencing Act applicable to indicative sentences of less than 6 months if aggregate sentence exceeds 6 months – ground not established – complaints about contents of reasons – leave granted to raise question of mixed fact and law – ground rejected – appeal dismissed

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Crimes (Sentencing Procedure) Amendment Act 2010

Interpretation Act 1987

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Achuthan v Coates (1986) 6 NSWLR 472

Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734

Currie v R [2013] NSWCCA 267

Hossain v Minister for Immigrationand Border Protection (2018) 264 CLR 123; [2018] HCA 34

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

JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Mourtada v R [2021] NSWCCA 211

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

MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17

Orr v Cobar Management Pty Limited [2020] NSWCCA 220

PC v R [2020] NSWCCA 147

R v Brown [2012] NSWCCA 199

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

State of New South Wales v White (Final) [2018] NSWSC 1943

Taylor v R [2018] NSWCCA 255

TB v R [2020] NSWCCA 108

Texts Cited:

Hansard, Legislative Assembly 23/11/2010 at p 27870):

Reports of the NSW Law Reform Commission being Sentencing, Discussion Paper 33 (1996)

Sentencing, Final Report 79 (1996)

Category:

Principal judgment

Parties:

Ricky White (Plaintiff)
Director of Public Prosecutions (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
J Stratton SC (Plaintiff)
BK Baker; K Beattie (First Defendant)

Solicitors:
Legal Aid NSW (Plaintiff)
Director of Public Prosecutions (NSW) First Defendant)

File Number(s):

2021/205891

Judgment

1. This is an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (the “Review Act”). In the circumstances described below, the plaintiff, Ricky White, received a custodial sentence for breaching a condition imposed on him by an Extended Supervision Order (“ESO”) made under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the “THRO Act”). He raises three grounds of appeal in respect of his sentence, two of which involve a question of law alone and the other involving a mixed question of fact and law. He seeks an extension of time to bring the appeal and a grant of leave to appeal to raise the third ground. For the reasons that follow I will extend the time, grant leave to appeal but dismiss the appeal.

Background

2. On or about 14 December 2018, Mr White was made subject to an ESO. (State of New South Wales v White (Final) [2018] NSWSC 1943). Condition 45 of the ESO provided:

“The defendant must not use any alias, log-in name, or a name other than “Ricky White” or use any email address other than those known to his EO in accordance with condition 30, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.”

3. After the ESO was imposed, Mr White breached its terms on a number of occasions. He received custodial sentences the effect of which suspended the running of the ESO (THRO Act, s 26(7)).

4. On 13 April 2021, Mr White was again arrested and charged with four offences under s 30 of the THRO Act of failing to comply with an ESO. He was refused bail.

5. The police facts prepared in connection with the four charges note that Mr White was imprisoned from 9 July 2020 to 23 November 2020 for an offence under s 30. Upon his release he was reminded of the conditions of his ESO including condition 45. Two email addresses using his own name were approved for his use. The first offence charged occurred later that day when he changed his profile name to “ausskinhead”. The second offence charged occurred between 16 December 2020 and 24 December 2020 when he changed his email profile name from “ausskinhead” to “Chelseafc Sharp”. The agreed facts note that “Chelseafc” is a reference to Chelsea Football Club and “Sharp” is an acronym for “Skinheads against Racial Prejudice”. The third offence charged occurred between 27 December 2020 and 6 January 2021 when Mr White changed his profile name to “Blackplaguepileup Hatchetrick” and sent emails using that name. This name was a reference to the musical band that Mr White was a member of and his nickname within the band. The fourth offence charged occurred between 14 January 2021 and 27 January 2021 when Mr White changed his profile name to “Skinoioioi Aus”.

6. On 6 May 2021, Mr White appeared before the Local Court at Campbelltown. He applied for bail. After lengthy submissions were made on his behalf, the presiding magistrate refused bail. His Honour gave reasons for doing so. In the course of those reasons, his Honour described in detail the applicant’s criminal history both prior to and after the imposition of the ESO. His Honour described Mr White’s “past behaviour” as a “major concern” and his level of non-compliance with the conditions of his ESO and bonds as “quite startling”. His Honour referred to the existing charges as a continuation of Mr White’s “flagrant disregard” for the ESO. His Honour concluded:

“[Mr White’s conduct]… raises grave concerns for me as to his rehabilitation and I am not satisfied, bearing in mind the overwhelming case against him, his antecedents which show a lack of any real leniency should be provided to him and the fact that it is almost inevitable that he will receive a further custodial sentence further extending the ESO.

FOR THOSE REASONS, BAIL WILL REMAIN REFUSED”

7. After his Honour refused bail, Mr White’s solicitor entered pleas of guilty on his behalf and requested that the Court proceed to impose sentence. The solicitor requested that the Court take into account her submissions on the bail application. She made reference to his efforts towards rehabilitation and that he had the support of his family in doing so. She observed that his family “are hoping that [the applicant is] able to return to the community as soon as possible and reengage with the rehabilitation process” and asked the “Court to consider allowing him to do that as soon as possible”. In circumstances where his Honour had already referred to a custodial sentence being “almost inevitable” and as Mr White had already served a custodial sentence for an identical offence, the submission appeared to involve an acceptance that a custodial sentence would be imposed accompanied by a request that it be short as possible.

8. His Honour then proceeded to sentence Mr White. Given that one of the complaints concerns the brevity of the reasons I will set them out in their entirety:

“HIS HONOUR: I have taken into account the pleas of guilty. I acknowledge that the maximum penalty for each breach is five years’ imprisonment. I do acknowledge that as far as the extensive conditions are concerned, this is a lower level of breach in regard to those conditions as compared to other requirements as to where he can go, what other things he can engage in. I accept also the submission that there is no evidence of antisocial associations despite his monitoring. His behaviour in continuing to identify with these names is, as I said, a contemptuous indication to the court orders.

There is easy compliance with the condition that he continues to breach. I am not sure what his other previous four breaches were. That is not indicated on his antecedents. But he continues to place himself in jeopardy of further incarceration. One thing that is of concern is the continued association with the name skinheads, which for most people, as far as I am aware, would have a very poor connotation in regard to white supremacy and racism and violence. In regard to each matter, I propose to give an indicative sentence which will reflect the name upon which he wanted to associate himself in regard to each of those aliases or login.

IN REGARD TO SEQUENCE 1, WHERE THE ASSOCIATION IS WITH MERELY “OZ SKINHEAD”, THE INDICATIVE SENTENCE BEARING IN MIND THE DISCOUNT FOR THE PLEA OF GUILTY IS SEVEN MONTHS’ IMPRISONMENT.

In regard to sequence 2 where the reference in the facts is to “Chelsea FC SHARP” and because SHARP is an acronym for “Skinheads Against Racial Prejudice”, I see that as carrying a less serious connotation.

AND THE INDICATIVE SENTENCE, ALTHOUGH IT CONTINUES TO BE A CONTEMPTUOUS IDENTITY BEARING IN MIND THE COURT ORDERS, THE INDICATIVE SENTENCE IS ONE OF FIVE MONTHS’ IMPRISONMENT.

For sequence 3, the reference is to an identity called “Black Plague Pileup” and in the facts refers to a band to which he was a member of, and “Black Plague Pileup Hatchet Trick”, “Hatchet” being a nickname of his, again there is no real connotation therein. But again, it is contemptuous.

THAT IS THREE MONTHS’ IMPRISONMENT INDICATIVE SENTENCE FOR THAT. AND THE FINAL MATTER, WHERE HE ADOPTS THE PSEUDONYM “SKIN OI OI OI OZ”, AGAIN HAS A SERIOUS CONNOTATION AND THE INDICATIVE SENTENCE IS ONE OF SEVEN MONTHS’ IMPRISONMENT.

THE OVERALL SENTENCE I IMPOSE IS ONE OF 16 MONTHS. I DO NOT FIND ANY SPECIAL CIRCUMSTANCES. THE SENTENCE WILL COMMENCE ON 13 APRIL 2021, THE DAY HE WENT INTO CUSTODY. I SET A NON-PAROLE PERIOD OF 12 MONTHS, MEANING HE WIL BE ELIGIBLE FOR RELEASE ON 12 APRIL 2022.”

Nature of the Appeal

9. I addressed the nature of an appeal under Part 5 of the CAR Act in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669 at [44] to [49] (“JP”) and Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39] to [46] (“Bimson”) which should be read together with this judgment. Three matters should be noted.

10. First, s 52(1) confers a right of appeal on a ground that “involves a question of law alone”. Section 53(1) extends the scope of the appeal to include grounds that involve a question of fact or a question of mixed fact and law. However, they may only be raised with the leave of the Court. The concept of a “question of law” was comprehensively described by Bathurst CJ and Bell P in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 at [3] to [61]. To similar but more limited effect in JP I observed (at [47]):

“….It suffices to state that “… there is 'a question of law alone' if the question of law can be stated and considered separately from the facts with which it may be connected in a given case” (Williams v R [1986] HCA 88; 161 CLR 278 at 287 per Gibbs CJ and 314 per Wilson and Dawson JJ; “Williams”). Further an appeal on a ground that involves a question of law alone does not include a ground that involves a mixed question of fact and law (R v PL [2009] NSWCCA 256 at [25] per Spigelman J (“PL (No 1)”) and thus a mere complaint of error in the application of a legal principle does not raise a question of law alone (PL (No 1) at [26]). Nevertheless a conclusion of mixed fact and law can be challenged in an appeal restricted to questions of law alone if it can be determined that the conclusion “proceed[ed] from a misdirection of law” (Williams at p 287 per Gibbs CJ). To similar effect in PL (No 1) at [27] Spigelman CJ stated that a contention that the presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a “distinct and separate step in the reasoning process” (Pl (No 1) at [27]).”

11. Second, the appeal as of right conferred by s 52(1) is restricted to grounds that “involve” questions of law. As suggested by the extract from PL (No 1) set out in this passage, for the appeal to “involve” a question of law alone the question cannot simply be raised by an appellant. Instead it must be capable of being identified as a “distinct and separate step in the reasoning process” of the court below although the court’s reasons may reveal that it proceeded on an assumption as to the relevant law rather than expressly addressed it.

12. Third, these two points raise a related question of what follows from the Court answering a question of law alone raised by a particular ground in a particular way. On that topic, in Bimson at [41] I stated:

“If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; and Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270])).”

13. It may be necessary to reconsider the last part of this statement in light of the subsequent developments in the High Court concerning the concept of “materiality” in the context of proceedings contending that an administrative decision was affected by jurisdictional error (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3; and MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17), however that is not presently relevant. For the present it suffices to note that in a given case, and as explained below this is one of them, a ground may raise a question of law alone the answer to which is obvious. The appeal will only “involve” that question of law alone if the answer was a “distinct and separate step in the reasoning process” of the court below (PL supra) although, as noted, that step may be implicit in the court’s reasoning. The answering of that question will only of itself lead to the conclusion that the decision should be set aside if the court either addressed that question wrongly or proceeded on an assumption as to that answer which was incorrect and that was material to the outcome. If the Court did not proceed on that misapprehension as to the law, then at most its decision will only be affected by an error of mixed fact or law (or fact) and leave to raise a ground to that effect will be required (see JP at [55] and [65] to [66]).

Grounds of Appeal

14. By his amended summons, Mr White sought to raise four grounds of appeal only three of which were pressed, namely:

“1.   Is a Magistrate required to consider all possible alternatives to imprisonment before imposing a sentence of full time imprisonment?

2.   Is a Magistrate determining an indicative sentence of less than six months as part of an aggregate sentence, required to give reasons for determining an indicative sentence of less than six months.

……

4.   His Honour failed to give sufficient reasons for the sentence he imposed.”

Grounds 1 and 2: Subsection 5(2) of the Sentencing Act

15. Grounds 1 and 2 can be addressed together. Section 5 of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”) provides:

5   Penalties of imprisonment

(1)   A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2)   A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including—

(a)   its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b)   its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

(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)   A sentence of imprisonment is not invalidated by a failure to comply with this section.

(5)   Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order.

16. Each of grounds 1 and 2 clearly raise questions of law alone. They are identified in abstract terms and raise questions as to the content of a Magistrate’s obligation to give reasons (JP at [65]). The answer to question 1 is obviously “yes” in that it reflects the effect of s 5(1) of the Sentencing Act. However I do not accept that his Honour acted on any basis other than that stated in s 5(1). It is evident from a comparison of ss 5(1) and 5(2)(a) that it is not obligatory to record the outcome of the assessment undertaken pursuant to s 5(1) in the sentencing reasons in circumstances where an offender is sentenced to a term of imprisonment of more than 6 months. Contrary to Mr White’s submissions, it is appropriate to read his Honour’s sentencing reasons with his Honour’s reasons for refusing bail. It would be artificial not to. When that is done, it is self‑evident that his Honour determined that the flagrancy of his breaches, and his prior record, meant that the threshold in s 5(1) was overcome.

17. I reject ground 1.

18. Ground 2 raises a more difficult issue. It is potentially engaged in this matter because, of the four indicative sentences that were specified, two were for periods of 6 months or less.

19. Subsection 5(2) prescribes matters that must be addressed in a sentencing judge’s reasons when “sentenc[ing] an offender to imprisonment for 6 months or less”. In this case Mr White was not sentenced to 6 months or less but to imprisonment for 16 months and thus, considered by itself s 5(2), was not engaged.

20. Before addressing why Mr White submitted to the contrary it is necessary to note that s 5(2) has its origins in two Reports of the NSW Law Reform Commission (the “NSWLRC”) being Sentencing, Discussion Paper 33 (1996) (“DP 33”) and Sentencing, Final Report 79 (1996) (“FR 79”). Regard can be had to these reports in accordance with s 34(1) and 34(2)(b) of the Interpretation Act 1987. In DP 33, the NSWLRC produced “proposal 3” which was that sentencing judges “should provide reasons justifying any decision to impose a sentence of imprisonment of six months duration”. The NSWLRC explained the rationale for this proposal in FR 79 as follows (at [8.3]):

“In DP 33 the Commission argued that greater substance could be given to the principle that imprisonment is the sanction of last resort if offenders who would normally be subject to short terms of imprisonment were diverted from custodial sentences. Accordingly we proposed that courts should provide reasons for any decision to impose a sentence of imprisonment of six months duration or less in the hope that the provision, in conjunction with the common law principle, might encourage courts to use imprisonment more appropriately.”

21. FR 79 addressed the responses to this proposal and produced final recommendation 40 which was that Courts should provide reasons for any decision to impose a sentence of imprisonment of 6 months duration or less, including reasons why a non-custodial sentence is not appropriate. It explained the reasons for that recommendation as follows:

“The Commission has carefully considered the argument that the proposal which we put forward in DP 33 would be practically ineffective and secure only token compliance. In our view this argument is met by requiring that courts not only provide reasons for any decision to impose a sentence of six months or less but also expressly state why a non-custodial sentence is not appropriate. This approach will have the effect of directing the mind of the sentencing court not only to the suitability of imprisonment, but also to the suitability of other sentencing options.”

22. The additional suggestion that the sentencing Court expressly state why a non-custodial sentence is appropriate is reflected in s 5(2)(a).

23. As noted, the text of s 5(2) does not support the contention that the obligation imposed by that provision is engaged where the sentencing judge imposes an aggregate sentence of longer than six months but specifies indicative sentences of 6 months or less. The secondary materials in relating to the introduction of s 5(2) do not suggest that either. However, Mr White contends that an obligation under s 5(2) arose in respect of each indicative sentence of less than 6 months by the operation of s 53A of the Sentencing Act which provides:

“53A   Aggregate sentences of imprisonment

(1)   A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2)   A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following—

(a)   the fact that an aggregate sentence is being imposed,

(b)   the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

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

(4)   The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5)   An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.” (emphasis added)

24. Subsection 53A(2)(b) requires a Court when fixing an aggregate sentence to make a record of the sentence that would have been imposed had “separate sentences been imposed instead of an aggregate sentence”. It also, perhaps implicitly, obliges that those indicative sentences be determined “after taking into account such matters as are relevant under Part 3 or any other provision of this Act”. Within Part 3 are provisions such as s 21A which specify the aggravating and mitigating factors on sentence and ss 22 which requires that consideration be given to an offender’s plea of guilty when sentencing for offences that are not dealt with on indictment.

25. Section 5 of the Sentencing Act is located within Part 2. Senior Counsel for Mr White, Mr Stratton SC, contended that the requirement to record reasons when sentencing an offender to imprisonment for 6 months or less in s 5(2) is one of the provisions made applicable to indicative sentences by s 53A(2(b)). The text of s 53A(2)(b) does not support that contention. There is a substantive difference between a statutory provision that requires that something be taken into account and that something be explicitly recorded in the reasons (see Mourtada v R [2021] NSWCCA 211 at [37]). In contrast to provisions such as s 21A or s 5(1), s 5(2) of the Sentencing Act is directed to the content of the sentencing judge’s reasons and not any anterior requirement to take a particular matter into account.

26. Further, the rationale or objective of s 5(2) is not enhanced by its application to indicative sentences of less than six months where an aggregate sentence of more than six months is imposed. In such circumstances it would not result in greater substance being given to the principle that imprisonment is the sanction of last resort in the circumstances of offenders who would otherwise be subject to short terms of imprisonment being diverted from custodial sentences (see [20] above) and nor would it serve to direct the mind of the sentencing court of the suitability of other sentencing options for the offender (see [21] above). Those considerations are effectively subsumed into the assessment that an aggregate sentence of more than 6 months is warranted because the sentencing judge will have necessarily concluded that the overall criminality is such that an aggregate sentence of that length is warranted. The imposition of an additional obligation to address s 5(2) for each indicative sentence would appear to have little utility. The position would, of course, be different if the sentencing judge fixed an aggregate sentence of 6 months or less.

27. Aggregate sentences were introduced into the Sentencing Act by the Crimes (Sentencing Procedure) Amendment Act 2010. In that part of the Second Reading Speech which described the necessity to specify indicative sentences, the relevant Minister stated (Legislative Assembly, (Hansard), 23 November 2010 at 27870):

“However, it remains important for a number of reasons for there to be some indication given of the respective sentence that would have been imposed had each offence been dealt with directly. These reasons include: the transparency of the sentencing process, the comfort to victims accorded by an explicit recognition of the level of criminality involved in the specific crimes committed against them, the benefits in publicly recognising the particular aggravating and mitigating factors of an offence as required under the Act, and to assist appeal courts in resentencing offenders after successful appeals or in identifying where errors in the sentencing process may have occurred where such errors may have been “masked” by the aggregation of the sentence into a single term of imprisonment. As such, the new provisions require that the court is to give such an indication of the head sentence that would have been imposed, taking into account discounts and other factors, and each offence’s relative weight in determining the overall sentence. What will not be required is the need to set the precise commencement and expiry dates of sentences that are to be served partially concurrently or consecutively. It need set only one non-parole period and one overall sentence and comply with the other requirements of the division with respect to that overall sentence.

The court will still retain discretion in setting the appropriate length of the overall sentence, taking into account the principle of totality. For the reasons outlined above, the indication with respect to each offence is intended to provide an adequate indication of the criminality attaching to each offence, but it should not be construed by courts as requiring them to give an indication that is so detailed that they are effectively sentencing the offender for each offence separately in any case. The court will also not be required to give an indication of the non-parole period that would have applied to each sentence except as indicated earlier, when the offence is one to which a standard non-parole period applies. It should be sufficient to indicate what a total sentence for a particular offence would have been taking into account any discounts or other factors that might have applied.” (emphasis added)

28. The last sentence of this extract tends to confirm that the necessity to specify indicative sentences does not include any provision of the Sentencing Act that specifies the content of the sentencing judge’s reasons as opposed to matters that must be taken into account, although it is far from determinative. Otherwise, none of the purposes for specifying an indicative sentence stated in this extract are enhanced by applying s 5(2) to indicative sentences of less than six months in circumstances were an aggregate sentence of greater than six months is imposed.

29. In contending that s 5(2) was engaged for each indicative sentence of less than six months, Mr Stratton SC placed particular reliance on the judgment of R A Hulme J in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528; “JM” (with whom Hoeben CJ at CL and Adamson JJ agreed) in which his Honour surveyed the legislation and cases dealing with aggregate sentences and stated (at [39]):

“2. When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order: R v Clarke [2013] NSWCCA 260 at [50]-[52]. See also Cullen v R [2014] NSWCCA 162 at [25]-[40].

3. The indicative sentences must be assessed by taking into account such matters in Part 3 or elsewhere in the Crimes (Sentencing Procedure) Act as are relevant: s 53A(2)(b).

There is no need to list such matters exhaustively, but commonly encountered ones in Part 3 include aggravating, mitigating and other factors (s 21A); reductions for guilty pleas, facilitation of the administration of justice and assistance to law enforcement authorities (ss 22, 22A and 23); and offences on a Form1 taken into account (Pt 3 Div 3). Commonly encountered matters elsewhere in the Act are the purposes of sentencing in s 3A, and the requirements of s 5 as to not imposing a sentence of imprisonment unless a court is satisfied that there is no alternative and giving a further explanation for the imposition of any sentence of 6 months or less.” (emphasis added)

30. Mr Stratton SC described the exposition on aggregate sentences in JM as “authoritative”. He noted that it had been subsequently approved by numerous decisions in the Court of Criminal Appeal (eg TB v R [2020] NSWCCA 108; PC v R [2020] NSWCCA 147). He contended that the reference to the “requirements of s 5” in this passage when read with the refence to “further explanation” includes a reference to s 5(2) and thus JM establishes that the sentencing reasons must comply with s 5(2) in relation to indicative sentences as well as aggregate sentences.

31. Counsel for the Director of Public Prosecutions, Ms Baker, contended that this extract from JM had to be read with a further passage from JM at [40] where R A Hulme J enunciated various propositions concerning appellant review of aggregate sentences including that “indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence” (citing R v Brown [2012] NSWCCA 199 at [17] and other decisions). Ms Baker further submitted that the above passage did not involve a finding that s 5(2) had to be complied with in specifying an indicative sentence but, in the alternative, that conclusion was clearly obiter as JM (and the cases that followed it) did not involve any complaint that s 5(2) was not complied with in relation to the indicative sentences specified in the sentencing judgements the subject of those appeals.

32. I accept Mr Stratton SC’s description of JM as authoritative. However, with respect to R A Hulme J, this aspect of JM is not clear. For my part, I do not accept that his Honour was deciding that, if one or more indicative sentences are 6 months or less are specified, but an aggregate sentence of more than 6 months is imposed then the sentencing reasons must nevertheless comply with s 5(2). Point 3 in the above extract commences with a recitation of what must be taken into account in specifying an indicative sentence and not what must be recorded in relation to an indicative sentence. That topic is addressed by Point 2. His Honour then listed matters that are “commonly encountered” and then described the operation of s 5. While sub-section 5(1) appears to specify something that must be taken into account, for the reasons already noted s 5(2) is directed to the content of the reasons. While the necessity to provide a “fuller explanation” might be “commonly encountered’ that is not the same as saying that such a requirement is imported by s 53A(2)(b). The balance of JM describes the significance of indicative sentences in terms consistent with the extract from the second reading speech set out above (JM at [39], points 4 to 9). In any event, if my understanding of this aspect of JM is wrong then, given it was obiter, I respectfully decline to follow it.

33. It follows that the answer to the question raised by ground 2 is “no” and that the ground is rejected. I would add that, had the answer to the question raised by ground 2 been “yes”, then a question would have arisen as to the content of the obligation imposed by s 5(2) in the context of an indicative sentence of less than 6 months. In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 a statutory obligation to record reasons for “increasing or reducing the standard non parole period” was construed as being satisfied by a sentencing judge “identify[ing] fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence” (at [29]). It is not necessary to decide whether that all that is necessary to satisfy s 5(2) although the secondary materials noted above appear to suggest that more is required.

Ground 4: Sufficiency of Reasons

34. As noted, ground 4 does not raise a question of law alone and leave to raise it is required.

35. The written submissions in support of this ground repeat the complaints made in relation to ground 1 and ground 2. In relation to ground 2, it follows from [13] that, had I answered the question raised by ground 2 in the affirmative, then the disposition of the ground would have required a determination of whether his Honour determined the matter on the contrary basis and whether that was material to the outcome. In that event a grant of leave would not be necessary. However given the conclusions in relation to grounds 1 and 2 it is not necessary to consider this further.

36. The balance of the complaints in relation to this ground concern the limited nature of his Honour’s finding about the objective gravity of the offences, the alleged lack of logic in the differences between the indicative sentences and the absence of any reference to the support from his family and his evidence of rehabilitation. [1] Given that the appeal has otherwise raised grounds that fall within s 52(1) of the CAR Act and these complaints are related in the sense that they all concern the content of His Honour’s reasons, I would grant leave to appeal under s 53 to raise this ground.

    1. Plaintiffs’ submissions in reply at [28] to [30]

37. It cannot be doubted that a sentencing judge has an obligation to provide reasons (Taylor v R [2018] NSWCCA 255 at [52] and [57]). The content of that obligation will vary according to the statutory context including the form of appeal from the decision in question (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; “Soulemezis”). What must be addressed in a particular case will also depend on the manner in which the case was conducted before them (Soulemezis at 270B and 270C). The delivery of ex tempore reasons is a factor that must be considered when assessing the adequacy of the reasons (Currie v R [2013] NSWCCA 267 at [50] per Johnson J) and that is especially so when considering remarks delivered “in a busy magistrate’s court” (Achuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P).

38. I have already stated that his Honour’s sentencing judgment should be read together with his bail judgment. In relation to the findings of objective seriousness and the differentiation between the counts, his Honour observed that condition 45 was a “lower level breach” compared to breaches of other conditions and “there is no evidence of antisocial associations despite his monitoring”. His Honour also regarded the breaches as flagrant and contemptuous (see [6] and [8]). His Honour expressed concern about the adoption of names associated with “white supremacy … racism and violence” and then differentiated between the counts accordingly. Hence, longer indicative sentences were specified for use of the profile names “Oz Skinhead” and “Skin Oi Oi Oi Oz” compared to the other two counts. Extreme nationalism and racist violence have a long history together.

39. Mr Stratton SC pointed to the difference between the indicative sentence of 5 months for the use of “Chelseafc Sharp” and 3 months for the use of Mr White’s band name. Although the acronym “Sharp” appears to be often used as an anti-racist moniker, his Honour considered it might not be so benign in this case only describing it as having a “less serious connotation”. His Honour may have been wrong about that, but complaints that a sentencing judge was wrong or specified an indicative sentence that was too long, are not complaints about the content of the reasons. In this matter, when read with the bail judgment, his Honour’s reasons met the requisite standard.

40. The same applies in relation to the complaint that his Honour did not refer to the support Mr White received from his family and his potential for rehabilitation. His Honour referred to his lack of progress in rehabilitation in the bail judgment (see [6]). In circumstances where his Honour described the breaches as flagrant, and bearing in mind they occurred in the context of his being closely supervised under an ESO and immediately following his release from custody after the breaching the ESO, his Honour was not obliged to specifically refer to that matter again. The entire tenor of the submissions on sentence was that a custodial sentence would be imposed and the only issue was for how long.

41. I reject ground 4.

Orders

42. Mr White requires an extension of time under rule 51B.6(1)(b) of the Supreme Court Rules. The delay in bringing the application was explained by his solicitor and not opposed. I will extend time.

43. It was agreed between the parties that, regardless of the outcome, the appropriate order was no order as to costs.

44. Accordingly the Court orders that:

1. The time for the filing of the Plaintiff’s further amended summons be extended up to and including 13 July 2021;

2. The Plaintiff be granted leave under s 53(1) of the Crimes (Appeal and Review) Act 2001 to raise ground 4 of his further amended summons;

3. The Appeal be dismissed.

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Endnote

Decision last updated: 14 December 2021