White v R - [2016] NSWCCA 190

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: White v R [2016] NSWCCA 190
Hearing dates: 4 July 2016
Decision date: 24 August 2016
Before: Bathurst CJ at [1]; Basten JA at [10]; Simpson JA at [43]
Decision:
(1) The time in which to seek leave to appeal extended to 17 February 2016;
(2) Leave to appeal against sentence granted;
(3) Appeal allowed: the applicant be re-sentenced on the offence of armed robbery committed on 8 June 2013, taking into account the offence of armed robbery committed on 7 June 2013, to imprisonment made up of a non-parole period of 3 years and 6 months commencing on 19 June 2014 and expiring on 18 December 2017, with a balance of term of 2 years expiring on 18 December 2019.

Catchwords:
CRIMINAL LAW – application for leave to appeal against sentence – robbery with offensive weapon – plea of guilty – further offence of robbery with offensive weapon taken into account on Form 1 – concession by defence counsel that offences committed “in company” – whether error in taking into account offences committed in company as an aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e) – error established – whether failure to give effect to finding of special circumstances justifying departure from statutory ratio of non-parole period – no error established – whether sentence was manifestly excessive due to error in approach to totality principle and failure to take into account delay

CRIMINAL LAW – failure by defence counsel to raise arguments before sentencing judge – Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 – whether failure precludes intervention – justice demands intervention – leave to appeal granted – appeal allowed – applicant re-sentenced
STATUTORY INTERPRETATION – construction of “in company” – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e)
Legislation Cited: Crimes Act 1900 (NSW), ss 97, 105A, 113
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44, 47, 55
Cases Cited: Bayram v R [2012] VSCA 6
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
Keane v R [2011] VSCA 156
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Markou v R [2012] NSWCCA 64; 221 A Crim R 48
Martin v R [2016] NSWCCA 104
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Brett John Kelly [2000] NSWCCA 557
R v Brougham (1986) 43 SASR 187
R v Button; R v Griffen [2002] NSWCCA 159; 54 NSWLR 455
R v Eric John Andrews (NSWCCA, 28 April 1993, unreported)
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Kaiva (NSWCCA, 9 November 1998, unreported)
R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253; 155 A Crim R 252
R v Kitchener [2003] NSWCCA 134
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Romero v R [2011] VSCA 45; 32 VR 486
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Zrieka v R [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Michael White (Applicant)
Regina (Respondent)
Representation:
Counsel:
W Hunt/C O’Neill (Applicant)
E Balodis (Respondent)
Solicitors:
Peter Murphy (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/187859
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

2 April 2015

Before:

Hock DCJ

File Number(s):

2013/187859

Judgment

BATHURST CJ: I have had the advantage of reading the judgments of Basten JA and Simpson JA in draft. The facts giving rise to this application are fully set out in the judgment of Simpson JA and it is unnecessary to repeat them. I agree with the judgment of Simpson JA and, subject to what I have written below, with her Honour’s reasons.
In relation to Ground 1 of the draft grounds of appeal, Simpson JA has expressed the view that the words “in company” in s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) have the same meaning as that term has at common law and where the fact that the offence is committed in company is an element of an aggravated offence. Basten JA, by contrast, has suggested the words in s 21A(2)(e) are capable of a wider operation. Simpson JA has concluded in those circumstances that as a result, the sentencing judge erred in taking into account that the offence was committed in the company of Ms Clauscen as an aggravating factor, whilst Basten JA concluded that, even on his broader construction, there was error, but the error was immaterial.
I prefer the construction of s 21A(2)(e) of the Sentencing Procedure Act suggested by Simpson JA for the following reasons. First, I do not see the words “in the company of other persons or person” in the various provisions in the Crimes Act 1900 (NSW), referred to by Basten JA and Simpson JA, as having a different textual meaning to the words “the offence was committed in company” in s 21A(2)(e) of the Sentencing Procedure Act. The words “of other persons or person” are, in my view, implicit in s 21A(2)(e).
Second, I do not consider that there is any reason that the words are to be given any greater scope in circumstances where the particular aggravating factor is not an element of the offence by contrast to circumstances where it is. As Howie AJ pointed out in Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [100] common law understanding of “in company” informs an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). That is consistent with what was stated in the Second Reading Speech in respect of s 21A which stated that s 21A(2) restated the application of the factors contained in it to the sentencing exercise as they then applied at common law.
Further, the approach taken by Simpson JA in my opinion is consistent with the authorities referred to by her Honour.
Basten JA and Simpson JA also disagree on the construction of s 47(5) of the Sentencing Procedure Act in circumstances where parole for an offence other than that for which the offender is being sentenced has been granted but the offender is in prison following revocation of that parole.
Section 47 is set out in the judgment of Basten JA. Although the result may seem unusual, it seems to me that s 47(5) limits the power of the sentencing judge to post-date the commencement of the sentence, in circumstances where the offender is serving a term of imprisonment for another offence only to the date of the expiration of the non-parole period set for the latter offence. The subsection focuses on the expiration of the non-parole period set by the Court and does not distinguish between circumstances where the offender is in custody, parole not having been granted, or in custody following the grant of parole and its subsequent revocation.
In those circumstances, I agree with Simpson JA that the applicant was disadvantaged in the manner suggested by her, by the delay in sentencing and that the sentencing judge erred in failing to take the delay into account.
I agree for the reasons given by Simpson JA that the sentence she thinks should be imposed is appropriate.
BASTEN JA: The circumstances relating to this application for leave to appeal against sentence are set out by Simpson JA and will not be repeated. Her judgment identifies two errors, namely:

taking into account as a circumstance of aggravation that the offence was committed “in company”, and

failing to take into account the delays in sentencing the offender, which were not attributable to him.

Aggravating circumstance – “in company”

Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”) provides a checklist of factors which the sentencing court is to take into account if they are “relevant and known to the court”. The list is not intended to be exclusive. [1] Nor is the court to have regard to any such aggravating or mitigating factor if it would be contrary to any rule of law to do so. [2] One constraint encompassed by that statement is the need for aggravating factors to be agreed or, in the absence of agreement, proved beyond reasonable doubt. Finally, the exercise of considering such factors does not necessarily result in any increase in or reduction of the sentence. [3]
1. Sentencing Procedure Act, s 21A(1).
2. Sentencing Procedure Act, s 21A(4).
3. Sentencing Procedure Act, s 21A(5).
Section 21A(2) recognises that an aggravating factor may be an element of the offence, in which case the court is not to have additional regard to it. However, that statutory acknowledgment does not require that the language in which aggravating factors are identified is to be taken to reflect analogous elements of particular offences. The factors identified in s 21A apply to sentencing for all offences.
The particular paragraph relied on by the sentencing judge in the present case was that found in s 21A(2)(e), namely that “the offence was committed in company”. That language is similar to, though not identical with, the circumstance of aggravation identified in the commonplace offence of breaking and entering with intent to commit a serious indictable offence under s 113 of the Crimes Act 1900 (NSW). For the aggravated form of that offence, a relevant circumstance of aggravation is that the offender “is in the company of another person or persons”. [4] Similar language may be found, as noted by Simpson JA, in other parts of the Crimes Act.
4. Crimes Act, s 105A, circumstances of aggravation, par (b).
It may be accepted that both in s 21A of the Sentencing Procedure Act and in the various provisions of the Crimes Act, the underlying factors which may be described as aggravating the circumstances of the offending, are twofold. That is, viewed from the perspective of the victim, being confronted by more than one person will have an additional element of coercion or intimidation. Viewed from the perspective of the offender, to have an associate present may embolden or reassure the offender in committing the offence. However, the scope of the relevant provisions may differ.
With respect to the elements of aggravated forms of an offence, it has been held that the person in whose company the offence is committed must be party to a joint criminal enterprise. [5] That is unremarkable where, as under s 113 of the Crimes Act, the ordinary offence carries a maximum sentence of imprisonment for 10 years,[6] whereas the aggravated offence carries a maximum term of 14 years. [7] However, that is not the case with s 21A(2)(e), where the aggravating factor not only does not, but cannot, render the offender liable to be sentenced for a more serious offence, [8] and may not result in any increase at all in the sentence which would otherwise be imposed. In other words, for the purpose of sentencing, the consequence of being “in company” is both restricted and, in other respects, flexible.
5. R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 159.
6. Crimes Act, s 113(1).
7. Crimes Act, s 113(2).
8. The Queen v De Simoni (1981) 147 CLR 383.
Thus, a purposive approach would warrant a different construction being given to the substantive provisions in the Crimes Act and the factor of aggravation referred to in the Sentencing Procedure Act. This approach has some support in the language adopted in each case. Thus, in the Crimes Act, the more formal language of being “in the company of another person or persons” is consistently adopted; in s 21A, the more informal language of committing an offence “in company” is used.
Finally, without the significant increase in the seriousness of the offending resulting from an aggravated offence, there is merit in giving the language of s 21A(2)(e) a wider operation. Thus, from the perspective of the victim, the precise relationship between the obvious offender and others present and apparently associated with him or her will be of little consequence. It will be the number which will be significant, rather than their relationship. Thus, the offender may be “on a frolic of his own”, without reducing the intimidatory effect of the presence of associates or colleagues. Similarly, the offender may be emboldened by the presence of associates, even if they are not aware of what he or she intends to do.
For these reasons, I see no justification for treating similar but not identical language as having an identical meaning in different Acts with different purposes.
That said, I would accept that, on the material before the sentencing judge, the prosecutor did not establish that the offender was in a relevant sense in company with Ms Clauscen when committing either of the offences in question. However, in circumstances where the point was not raised before the sentencing judge and it is not apparent that the sentence was significantly increased by the offence being committed “in company”, the burden is on the offender to demonstrate why this Court should intervene.
The principles established in Zrieka v R,[9] set out by Simpson JA at [125]-[126] below should be applied. The Court is, as Johnson J explained in Zrieka, “reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation.” It must be established that there has been a miscarriage of justice which would go unremedied if the Court were not to address a factor not relied on below. The thrust of the Victorian cases referred to and accepted in Zrieka is that the Court should not lightly entertain that proposition. As Warren CJ explained in Bayram v R,[10] the Court should ask whether there would be “a serious injustice if the appellant were precluded from correcting the error”. The error in that case was the failure of the counsel appearing for the offender on sentence to address evidence of the appellant’s motive for murdering his wife, which, the Chief Justice stated, involved the “considerable difference between a man killing his wife for money and a man who kills his wife because of a strong fear of losing the home for his children.”[11] The appellant’s motivation had been disclosed from the outset but he was “either not listened to or was ignored in the preparation and presentation of his plea.”[12]
9. [2012] NSWCCA 44; 223 A Crim R 460.
10. [2012] VSCA 6 at [29].
11. Bayram at [27].
12. Bayram at [29].
I am not satisfied that this test is satisfied in the present case. There is no doubt that the sentencing judge was aware of, and took into account, the undisputed evidence as to the role played by Ms Clauscen in the offending. It was extremely limited and could not have given rise to an increased apprehension on the part of the victims and probably did not embolden the applicant in any way. Accordingly, even if incorrectly characterised as an aggravating factor, it should not have been given significant weight and there is no basis in the judgment to infer that it was given inappropriate weight.
In these circumstances, the error was immaterial; I would grant leave to raise the issue on appeal, but would not uphold the ground.

Delay in sentencing

The applicant’s submission in this respect was quite simple, namely that there was “unfairness” resulting from the delay because, had the sentencing occurred on 4 September 2014, when the matter was first listed for sentence but was not reached, the Court would have been required to commence the sentence on that date or on some earlier date. The sentencing did not in fact occur until 2 April 2015, with the commencement of the non-parole period being fixed at 19 December 2014.
There were two limbs to this challenge. The first was that the sentencing judge would have had no power to direct that the sentence commence in the future; the second was that, given that she could backdate the sentence in any event, it was an error not to backdate the sentence to a date earlier than 19 December 2014.
The first submission (dealing with the power of the Court) relied upon the terms of s 47 of the Sentencing Procedure Act. The relevant parts of that section are as follows:

47   Commencement of sentence
(1)   A sentence of imprisonment commences:
(a)   subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or
(b)   if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence.
(2)   A court may direct that a sentence of imprisonment:
(a)   is taken to have commenced on a day occurring before the day on which the sentence is imposed, or
(b)   commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.
…
(5)   A direction under subsection (2) (b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:
(a)   a non-parole period has been set for that other sentence, and
(b)   the non-parole period for that other sentence has expired, and
(c)   the offender is still in custody under that other sentence.

The combined effect of s 47(2)(b) and (5) is that a new sentence of imprisonment cannot be accumulated on another sentence unless the prisoner is currently serving a sentence of imprisonment. Even then, the direction may not be made if the other sentence has a non-parole period which has expired and the offender “is still in custody under that other sentence.” There are two possible readings of this restriction: on one view, the restriction applies where, as in the present case, the offender’s non-parole period had expired and his present custody resulted from the revocation of his parole. The alternative reading is that the restriction only operates in circumstances where the custody is continuing as a result of the offender not having been granted parole.
In my view, the latter construction is to be preferred. In terms of the language of the provision, reference to the offender being “still in custody” is better understood as referring to a continuation of one period of custody rather than the situation where the period of custody has ceased upon his release and recommenced as a result of the revocation of parole.
Section 47 must be read consistently with s 55 of the Sentencing Procedure Act, which permits an accumulation of sentences upon the term of a sentence where a non-parole period has not been set, but only upon the non-parole period of the sentence in cases in which a non-parole period has been set. [13] The purpose of this latter provision is clear: it is to avoid the absurd position whereby, if the offender is granted parole, he or she will be required to return to custody to serve the second sentence immediately upon satisfactory completion of the parole period for the earlier offence. The alternative, which might result from an attempt to avoid that outcome, is that parole is not granted, with the result that the intention of the original sentencing court is frustrated.
13. Sentencing Procedure Act, s 55(4).
No such stark incongruities arise in circumstances where the person has been released to parole, but has breached the parole. No doubt the person is eligible for parole at any time after its revocation, but it is also true that the judge sentencing for the new offence is in a position to consider the likelihood as to when the offender should be re-paroled. Accordingly, there is no absurdity in reading s 47(5) in accordance with its ordinary meaning.
There are practical effects which support that conclusion. If that power were not available to the sentencing judge, but it was clear that, if sentenced in a timely fashion, the new sentence would commence well before the likelihood of re-parole arose, the offender might appear to obtain an undeserved benefit. Furthermore, it would not be a benefit which could be compensated for by increasing the sentence for the second offence. In short, an anomalous result is more likely to flow from reading s 47(5) as encompassing this case, rather than adopting the preferred ordinary meaning. It was a result embraced by the applicant, who said that such a delay “disentitles an offender to a leniency mandated by statute”. The proposed result disregards the statutory purpose.

Whether or not that reasoning is correct, the offender was in fact sentenced at a time when the judge could backdate the sentence as far as was deemed appropriate. The applicant must therefore demonstrate error in not backdating the sentence to a date earlier than 19 December 2014.
There are three approaches open for consideration, namely:

where parole has been revoked solely on the basis of the offending for which a sentence is to be imposed, the new sentence should be backdated to the date of the revocation of parole (or earlier, if the offender was returned to custody before parole was revoked); or

the new sentence should be backdated to commence at a time when the offender might legitimately have expected to be sentenced for the offence, absent delays beyond his control; or

the sentence should be backdated to the date when the offender might reasonably expect to have been re-released on parole, absent the further sentence.

It is not suggested that the sentencing judge should necessarily have adopted any one of these approaches; rather, their formulation suggests possible bases against which to test the proposition that the sentencing judge committed an error of principle.
The first approach has no support in authority, nor was it relied upon in the present case in the unqualified sense set out above. In Callaghan v The Queen, [14] Simpson J (with whom James and Hall JJ agreed) rejected the proposition that there was no discretionary power to backdate the fresh sentence. After referring to earlier authorities which spoke in ambiguous terms, Simpson J stated:

“[22] I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.
[23] It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.”
14. [2006] NSWCCA 58; 160 A Crim R 145.

The short response to the first approach is that, while it would be erroneous to fail to consider backdating, even to the date of revocation, the date chosen need not be the date of revocation.
The second approach cannot be accepted in an absolute form for the same reason, namely that the factor of delay is, at best, a discretionary consideration. Furthermore, the date on which the offender might reasonably have expected to be sentenced is a somewhat arbitrary consideration which bears only in the most indirect fashion on the proper exercise of the sentencing discretion (assuming that there has been no change in the law in the meantime). If adopted, it would encourage evidence as to the collateral issue of the state of the court lists and other possible causes of delay.
No doubt delay can be relevant in some circumstances as, for example, where the resultant uncertainty causes prejudice to the offender. There will also be cases in which delay in sentencing may deprive the offender of a favourable classification and timely preparation for release into the community. Those are quite different considerations from that now sought to be raised and do not arise in the present case. The idea that delay is relevant because it involves “leniency mandated by statute” cannot be accepted.
The third approach involves a factor expressly adverted to by Simpson J in Callaghan, namely the possibility of re-parole. In circumstances where parole is revoked because of a further offence warranting a sentence of imprisonment, it may seem artificial to hypothesise the possibility of re-parole because, in a practical sense, that will not occur. On the other hand, it seems unduly harsh to assume that the offender would never have been released again to parole with respect to the earlier offence, because of the commission of the second offence. Another way to express that proposition is that the principle of totality requires, in the general run of cases, that the new sentence not be accumulated on the end of a lengthy period of imprisonment resulting from revoked parole. At least in this respect, the principle articulated by McHugh J in Postiglione v The Queen [15] that “a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence” may be accepted in considering an appropriate period of backdating.
15. (1997) 189 CLR 295 at 308; [1997] HCA 26.
The sentencing judge stated:

“The offender has been in custody on these matters since 19 June 2013, the day of his arrest. On 26 July 2013 his parole was revoked and the recalculated period will now expire on 29 April 2016. There is a discretion as to the starting date for this sentence. Having regard to the principle of totality in my view it is appropriate to commence this sentence on 19 December 2014.”

There was no error of principle in adopting this approach.
On either issue addressed above, the delay did not result in unfairness to the offender in the form of an excessive sentence. Because the first issue involved an available point of statutory construction, I would grant leave to appeal, but dismiss the ground.

Conclusions

As I agree with Simpson JA in respect of the other grounds, I conclude that the applicant has not established grounds for the intervention of this Court. I would grant leave to appeal, but dismiss the appeal.
SIMPSON JA: The applicant seeks leave to appeal out of time against a sentence imposed upon him in the District Court on 2 April 2015, following his plea of guilty to a charge of robbery whilst armed with an offensive weapon. The sentencing judge took into account a further offence of a similar nature, identified on a Form 1, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).
Pursuant to s 97(1) of the Crimes Act 1900 (NSW), the offence of armed robbery whilst armed with an offensive weapon (as distinct from a dangerous weapon) carries a maximum penalty of imprisonment for 20 years. Hock DCJ sentenced the applicant to imprisonment for 6 years and 6 months, commencing on 19 December 2014, with a non-parole period of 4 years, which will expire on 18 December 2018. She reduced the sentence she otherwise would have imposed by 25 per cent, by reason of the applicant’s plea of guilty, which was entered at an early stage (see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383), and by a further 10 per cent referable to s 23 of the Sentencing Procedure Act. The starting point, before deduction, was therefore a head sentence of 10 years with a non-parole period of a little over 6 years. The commencement date was selected because, as a result of his arrest (on 19 June 2013) a parole order to which the applicant had been subject was revoked, and the applicant was ordered to serve an additional 2 years, 10 months and 11 days in custody, being the balance of the sentence in respect of which the parole order was made. The sentence imposed commenced 18 months into that parole period.
The Crown did not oppose an application for an order extending the time to file the application for leave to appeal.

The facts

Both offences were committed within a few hours, the first in the afternoon of 7 June 2013, the second in the early hours of 8 June 2013.
At about 4.30pm on 7 June the applicant and Ms Rachael Clauscen, were in the vicinity of a clothing store in a shopping centre in the CBD of Sydney. The applicant pointed at the store. Ms Clauscen walked away. The applicant entered the store, and walked to an office area at the back. He pointed an item that looked like a pistol at a store employee who was in the area and demanded that she give him money. He then concealed the weapon. The employee said that the money was “outside”. In response to a question by the applicant about a safe, she said that all the money was “out the front”. The employee unlocked and opened a cash drawer from which the applicant took about $330. He left the store. At that point Ms Clauscen re-joined the applicant, and they walked away together. This was the offence on the Form 1 taken into account.
The second offence was committed shortly after, in similar circumstances. At about 12.45am on 8 June the applicant and Ms Clauscen walked together to a restaurant in Darling Harbour, where staff were at a cash register, counting and sorting the day’s takings. The applicant entered the restaurant and walked towards the employees. Ms Clauscen walked away. The applicant was holding a weapon that appeared to be a pistol, which he pointed at the employees. He demanded that the employees give him the money. He took about $13,000 from the cash register. The applicant ran from the restaurant, re-joined Ms Clauscen, and ran away. This was the offence the subject of the charge to which the applicant pleaded guilty.
Having regard to the proposed grounds of appeal, the circumstances of the involvement of Ms Clauscen are of considerable significance.
The applicant was subsequently identified by various of the witnesses. He was arrested, in the company of Ms Clauscen, on 19 June 2013. Both were charged with the robberies. (It seems that Ms Clauscen later pleaded guilty to a charge of concealing a serious indictable offence, with a second such offence identified on a Form 1 taken into account.)

The applicant’s personal circumstances

The evidence of the applicant’s personal circumstances was in a somewhat confused state. The sentencing judge was provided with a Pre-Sentence Report prepared by Mr Andrew Sandercock, a Community Corrections Officer in the Department of the Attorney General and Justice. Also provided to the sentencing judge was an earlier Pre-Sentence Report, and a psychological report, both prepared in 2007, with respect to an earlier series of offences, to which I will come. Mr Sandercock recorded information given to him, principally by the applicant, about his personal circumstances.
The applicant was born in May 1977. He was three weeks short of 37 years of age at the date of the offences. He has a lengthy criminal history, which began in 1992 when he was 15 years of age. His NSW record includes many motor vehicle offences of various kinds (unlicensed or disqualified driver, driving unregistered vehicles, driving recklessly or furiously) and offences of dishonesty. He also has a record of offences in Queensland dating from 1994, which includes offences of dishonesty and two drug offences. The most significant aspect of his record is a series of offences, committed in NSW in 2005 and 2006, for which he was convicted and sentenced in 2008 (the subject of the 2007 reports). Four offences were of armed robbery, and two further such offences were taken into account. One offence was of using an offensive weapon to prevent lawful apprehension. In respect of these offences the applicant was sentenced to a total term of imprisonment of 10 years, commencing on 18 April 2006, and expiring on 17 April 2016, with a non-parole period of 7 years, expiring on 17 April 2013.
The applicant was released on parole on 17 April 2013 (that is, at the expiration of the non-parole period, and just two months before he committed the present offences). On 26 July 2013 parole was revoked and the applicant was ordered to serve the balance of term of almost 3 years (set out above).
Mr Sandercock reported that, until his arrest, the applicant had complied with his parole conditions, and had attended scheduled appointments.
He recorded that the applicant’s childhood was difficult. He was the only child of the union of his parents, each of whom had children (his mother four and his father three). The applicant’s father appears to have disappeared from his life at an early stage, and (according to his oral evidence) he did not make contact with him until the age of 26. The applicant told Mr Sandercock that he had lived in numerous foster homes, and had spent 18 months in a juvenile boys facility from about the age of 13. He said that on his return to the family home, he learned that his mother, sister and brother had moved to Queensland without him. He also reported abuse (the nature of which was unspecified in the report) by his mother until the age of 13, when he was sent to the juvenile facility. He reported a history of “poly drug use consisting of cannabis and heroin”, and a gambling addiction.
Mr Sandercock’s report was largely consistent with the 2007 report. The 2007 psychological report was more comprehensive. Among other things, it disclosed that the applicant had first been psychologically assessed by the author of the report (Ms Robilliard) in 2002, and by another psychologist of the same practice in 2004.
Ms Robilliard took a more detailed history of the applicant’s early life, that was marked by maternal instability; his mother, according to the history, led a somewhat peripatetic lifestyle, moving from one relationship to another, and from one location to the next (including in several different countries).
Ms Robilliard compared the results of psychological testing in 2002 with those of testing in 2007. The applicant is of above average intelligence; significantly, the 2007 testing revealed a deterioration in his scores on the anti-social scale, suggesting “impulsive, self-focussed, short-sighted and imprudent [behaviour] which may ignore the rights of others and of the wider community”.
Ms Robilliard concluded that the applicant had “never had the benefit of a stable nurturing family of origin”, and that from “early to mid teens [he] lacked all semblance of parental support or control”. She referred also to a relationship that failed, the failure of which may have precipitated the commission of the 2005 and 2006 offences.
On contact with one of the applicant’s brothers, Mr Sandercock was told that the applicant’s upbringing was normal, and that the brother did not believe that the applicant was the victim of abuse by his mother. The sentencing judge was not asked to, and did not (and probably could not) resolve this factual conflict. The applicant reported to Mr Sandercock that he had completed his secondary education with a School Certificate while in the juvenile facility.
He had used illicit drugs, cannabis from age 14, and heroin from age 19. He also reported to have a gambling condition, as to which he had completed a program during his period in custody.
He told Mr Sandercock that he committed the offences under pressure from a long-term friend to provide money. He said that he had consumed benzodiazepines the night before the offences in order to calm himself down. Mr Sandercock considered that he displayed insight into his offending behaviour.

The proceedings on sentence

Sentencing proceedings were initially fixed for 4 September 2014, but the matter was not reached. It was relisted for 5 February 2015. It then appeared that information relevant to s 23 of the Sentencing Procedure Act was not available, and the matter was further adjourned to 20 February, and then 2 April. The applicant gave evidence in the sentencing proceedings. He said that, on his release from prison, he had gone to stay with a friend who he had known before his incarceration, and who owned a diamond business. The applicant thought that this presented an employment opportunity, but learned that the friend was heavily indebted. The friend offered him employment. He said that they devised a (legal) plan to operate a roulette system at the casino, and that for two weeks the system operated successfully, and they made as much as $3000 a day, which they split between them. He said that after about two weeks, he (the applicant) went to spend the day with a female acquaintance (Ms Clauscen) and the friend lost all of the money. The friend continued to apply pressure to him to obtain money. It was then that he decided to commit the offences.
The statements of facts relevant to the 2005 and 2006 offences were put before the judge, but, on objection by counsel for the applicant, their admission was limited to showing the similarities between the offences, and, therefore, the question of the applicant’s prospects of rehabilitation.
The applicant said that, prior to his previous arrest, he had been in a relationship with a female lawyer, that he was managing a finance company with 10 consultants who reported to him, that he had bought a house and had a nice car, and that he attended the Hillsong Church. The relationship did not survive his imprisonment.
Mr Sandercock reported that the applicant had a child (then, that is, in 2014) aged 16. It is not clear whether this child is a child of the relationship of which the applicant gave evidence.
Also in evidence was a testimonial from a prison chaplain, and a letter written by the applicant to the sentencing judge. The prison chaplain had had dealings with the applicant during his seven year incarceration and wrote favourably about him, saying he had “a good heart” and was committed to his faith. He wrote:

“What stands out with Michael was how he has turned his gaol experience in to a positive experience and was very supportive of other inmates who were struggling. He has kept in touch since being released and I was of course very disappointed when he relapsed recently and found himself back in gaol.”

He blamed the applicant’s gambling addiction for his relapse.

The applicant’s letter was written and presented after his oral evidence. The letter contained the following:

“Your Honor, one thing I didn’t really get to say too much about was my determination to make something of my life. I know I have the intelligence and capability to achieve whatever it is that I set out to do. I have achieved much in the past, maybe much more than someone from my background is normally allowed to achieve and Your Honor, it’s those accomplishments and experiences that are my motivation and drive when I look to my future.
I have pretty much been a part of the prison community now for over 9 years and your Honor, I couldn’t even try to tell you somewhere else I may feel more out of place. My past experiences in the corporate and professional world is where I honestly believe I belong and what my heart longs for. I will do whatever it takes to re-establish myself as I know this isn’t where I belong …”

The Remarks on Sentence

The sentencing judge recorded the facts as they had been presented to her. She noted that, although no victim impact statements had been tendered, they were not required for her to comprehend the terror that victims of such offences experience. She referred to the 1999 decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. Henry was propounded as a guideline judgment with respect to offences of armed robbery. It did two things: it outlined a profile of typical offences and offenders to which and to whom the judgment was directed; and it promulgated a range of sentences of imprisonment for 4 to 5 years for offences and offenders that came within, or near, that category.
The profile was:

“(i)  young offender with little or no criminal history;
(ii)  weapon was produced;
(iii)  limited degree of planning;
(iv)  limited, if any, actual violence but a real threat thereof;
(v)  victim in a vulnerable position, such as shopkeeper or taxi driver;
(vi)  small amount taken;
(vii)  plea of guilty, the significance of which is limited by a strong Crown case.”

The sentencing judge distinguished the applicant’s case from the Henry profile on a number of bases. She said that the applicant, at age 37, could not be described as a young offender with little or no criminal history. The money taken in the second offence (the offence the subject of the charge) was not small. She added:

“… and the offence was committed in company, an aggravating circumstance.”

That observation reflected a concession that had expressly been made by the applicant’s counsel in written submissions. The sentencing judge added that a further aggravating factor was that the applicant was on conditional liberty. As a result of the combination of these circumstances, she assessed the objective gravity of the offence as greater than that outlined in the “typical case” described in Henry.

She noted the evidence concerning the applicant’s personal circumstances, specifically referring to the testimonial from the prison chaplain. She noted that the plea of guilty was entered at the Local Court, and allowed a reduction in sentence on the principles stated in Thomson and Houlton of 25 per cent. She referred (in an appropriately oblique way) to evidence that entitled the applicant to a further reduction in accordance with s 23 of the Sentencing Procedure Act. This was supported by evidence provided to her.
She found special circumstances that warranted a variation from the 75 per cent – 25 per cent ratio between the non-parole period and the head sentence stated in s 44(2) of the Sentencing Procedure Act, and said:

“The non-parole period to be fixed represents the minimum period the offender should spend in custody having regard to all the elements of punishment, including the objective seriousness of the offences, specific and general deterrence, denunciation and his subjective circumstances.”

She gave as reasons for the finding of special circumstances that the sentence to be imposed was partly cumulative and that the applicant would benefit from a slightly longer period of supervision while on parole.

The sentence she imposed was made up of a non-parole period of 4 years, and a balance of term of 2 years and 6 months. The non-parole period is therefore 61.5 per cent of the head sentence (a considerable reduction on the 75 per cent specified in the Sentencing Procedure Act). The non-parole period, if imposed in accordance with the proportions stated in that legislation, would have been almost 5 years.
The sentencing judge specified that the sentence was to commence on 19 December 2014, 18 months after the applicant was taken into custody, but three months earlier than the date it was imposed.

The proposed grounds of appeal

The proposed grounds of appeal were identified as follows:

“Ground One.
The proceedings miscarried on account of the finding that the robbery was aggravated because it was committed in company.
Ground Two.
The sentence fails to give proper effect to the finding of special circumstances.
Ground Three.
The sentencing Judge erred in the approach to the totality principle.
Ground Four.
The sentencing judge failed to take into account a relevant consideration namely the delay in the sentencing proceedings in considering the application of totality.
Ground Five.
As a consequence of the misapplication of the totality principle the sentencing order has given rise to a manifestly excessive period of imprisonment to be served for the relevant offending.
Ground Six.
A starting point of ten years imprisonment is manifestly excessive in the circumstances of this case.”

Ground 1 – offence committed in company

By Ground 1 the applicant asserts error by the sentencing judge in treating the offences as having been committed in company, an aggravating factor under s 21A(2)(e) of the Sentencing Procedure Act. That the offence was aggravated by having been committed in company was, as mentioned above, expressly conceded in written submissions.
Section 21A(2) spells out factors that a sentencing court “is to” take into account as aggravating an offence, so far as they are relevant and known to the court (sub-s (1)(a)). Sub-paragraph (e) of s 21A(2) identifies:

“The offence was committed in company”

as one such factor.

The words “is to” indicate that, where any such factor is relevant and known to the court, taking it into account is mandatory. Any such factor must be proved beyond reasonable doubt. It is not, however, sufficient merely to find that the circumstance exists; it is necessary also, in sentencing, for the judge to determine the extent (if any) to which the offence has been aggravated. In Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353, Adams J said:

“28 … the fact that offences occur in company, whilst it is capable of being an aggravating feature, might or might not in fact be aggravating: it is still necessary for the judge to determine whether in all the circumstances the offence is made more culpable than otherwise, as where two robbers overawe a victim. Otherwise, a theft that takes place in the presence of an innocent stranger is made more serious than one that occurs when no one else is present. ‘Company’ in this context must mean someone who is involved in the same criminal undertaking …
29 Although s 21A of the Sentencing [Procedure] Act regrettably introduces unnecessary complexity into the sentencing process, it does not make something more culpable unless it is in reality more culpable in the particular case: there are no legal fictions in sentencing and the mere fact that a particular feature is listed in s 21A(2) should not have a significant effect on a sentence unless, having regard to the ordinary principles of sentencing, it actually aggravates the particular offending in question …”

Howie AJ agreed, saying:

“101 I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considering whether, in light of a discernable policy making the factor aggravating, that it is truly aggravating in the context of the offence being committed …”

The factual question that arises is whether these offences were, or were not proved to have been, committed in company. (I refer to the offences in the plural because, although only one sentence was to be imposed, in reality both offences were before the court.) The Agreed Statement of Facts said clearly that, on each occasion, the applicant approached the location of the crime in company with Ms Clauscen, but that he entered the premises alone, and she walked away.
The words “in company” appear in criminal legislation in at least one context besides s 21A. In neither instance are they defined. The other context is where the words are used to specify a feature of an offence that aggravates the offence in such a way as to create a separate, and more serious, offence. Examples may be found in Div 10 of Pt 3 of the Crimes Act, dealing with “Offences in the nature of rape, offences relating to other acts of sexual assault etc”. Numerous of the provisions contained in that Division identify “that the alleged offender was in the company of another person or persons” as a “circumstance of aggravation” that escalates the offence to a more serious one, carrying a lengthier maximum penalty: see, for example, ss 61I and 61J, ss 61L and 61M, and ss 61N and 61O. (There are many more that it is unnecessary to enumerate.) Similarly, offences in the nature of robbery, dealt with in Div 2 of Pt 4 of the Crimes Act, are broken into basic offences, carrying specified maximum penalties, and aggravated offences, carrying higher maximum penalties. In these cases, that the offence was committed in company is an element of the aggravated offence.
A number of decisions of this and other courts have considered the meaning to be attributed to the words “in company” as they are used in those provisions: see, for example: R v Button; R v Griffen [2002] NSWCCA 159; 54 NSWLR 455; Markou v R [2012] NSWCCA 64; 221 A Crim R 48.
In relatively few cases has the construction of the words as used in s 21A(2)(e) been considered. One such case is Gore and Hunter. Howie AJ (with whom, in this respect, Handley AJA agreed) said:

“100 … The common law understanding of ‘in company’ should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person …” (italics added)

The last sentence of [28] of the judgment of Adams J is also instructive. Adams J considered that for the offence to have been committed in company, the second person must have been involved in the same criminal undertaking.

Gore and Hunter was a case in which illicit drugs had been sold by Gore, in premises he shared with Hunter and her teenage son. The sentencing judge in that case took into account as an aggravating factor under s 21A(2)(e) that the offence had been committed in company. All members of this Court agreed that, in the circumstances of that case, it was erroneous to do so. (In that case, as in this, it was the legal practitioners who led the sentencing judge into error.)
For the purpose of construing the words “in company” as they appear in substantive offence-creating provisions in the Crimes Act, different formulations have been proffered. The different formulations focus, on the one hand, on the potential effect of the presence of another person at the scene of the crime on the victim or victims; and, on the other hand, on the potential effect on the perpetrator.
In Button, five men were charged with offences against s 61J of the Crimes Act (sexual intercourse without consent in circumstances of aggravation, the circumstance of aggravation being that the offences were committed in company). The prosecution alleged that the five young men accosted a young woman in a remote location after New Year’s Eve celebrations. Each had sexual intercourse in one way or another, the accused Griffen doing so by an act of fellatio and then by vaginal intercourse. It was common ground that, at the time he committed those offences, other members of the group were 50 metres away. Remarkably enough, it was argued on appeal that “such geographical separation meant that the offence[s] [were] not committed in company”.
Having considered various authorities, Kirby J (with whom Heydon JA (as he then was) and Greg James J agreed) said that, for an offence to have been committed in company it was necessary that the Crown prove:

that the accused and the other person or persons share a common purpose; and

that each participant is physically present.

He observed that the perspective of the victim (being confronted by the combined force or strength of two or more persons) is relevant, although not determinative. If two or more persons are present, and share the purpose, they will be “in company”, even if the victim was unaware of the other person. He then considered what was meant by “physical presence”. As to that, he said:

“123 Physical presence is an elastic concept …
…
125 However, there must be limits. The point must be reached where the separation between the offender and the group is such that the offence can no longer be characterised as being in the presence of a group. How are those limits determined? … The test is the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.”

Greg James J also invoked the concept of proximity. The judgment reads:

“71 In my view, the degree of proximity to others which could amount to physical presence, as required by the case law, such as to satisfy that element in the requirement of being ‘in the company of another person or persons’, is not fixed in absolute terms.
…
75 … the concept of presence includes a purposive element which is to be related to the influence or potential influence of the other person or person[s] with whom an accused is alleged to be in company having retard [sic – regard] to where that person is located. The purpose and the nature of the criminal acts may cause the relevant physical distance to be more or less, having regard to that influence to which I have referred.”

In the context of robbery in company offences, von Doussa J has said:

“A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required.” (R v Brougham (1986) 43 SASR 187 at 191)

In Markou, the accused person was charged with an offence against s 35(1) of the Crimes Act, of recklessly inflicting grievous bodily harm whilst in company, and, alternatively, with an offence against s 59(2) of the Crimes Act, of assault occasioning actual bodily harm whilst in company. The trial proceeded as a trial by judge alone, pursuant to ss 132-133 of the Criminal Procedure Act 1986 (NSW). The trial judge acquitted Markou of the s 35 offence, but convicted him of the s 59(2) offence, incorporating the element of “in company”. In giving reasons for convicting Markou, the trial judge described what he had observed on CCTV footage of the incident, and said that Markou was “at all relevant times … accompanied by” another named person. He did not refer to the need for the Crown to prove that the two persons had a common purpose.
As to this, Macfarlan JA (with whom R S Hulme J and R A Hulme J agreed) said:

“27 His Honour referred to the appellant advancing towards the complainant and being ‘at all relevant times ... accompanied’ by [the other person] … but his Honour did not expressly refer to the need for the Crown to prove that those persons had a common purpose …
28 In my view however, persons are not acting ‘in company’, with a common purpose, unless there is some express or implied arrangement or understanding between them to act together to achieve an agreed end. Proof of a nod or even a look acknowledging that they will act together may suffice, but a mere coincidence of purpose not resulting from an arrangement or understanding will not be enough …”

Accordingly, this Court set aside the conviction under s 59(2) and substituted a conviction under s 59(1), the unaggravated version of the offence that does not incorporate an element of having been committed in company.

It is not entirely clear that the ambit of the element of an offence having been committed in company is coextensive with the ambit of the aggravating factor specified in s 21A(2)(e). It does not seem to me to be necessary to decide that question for the purposes of this application. However, at present, I find it difficult to see that the concepts are not coextensive. In each case, the words are used to aggravate the gravity of the offence. In each case the circumstance must be proved beyond reasonable doubt.
Some slight indication that the same construction ought to be given to the words in both contexts can be found in R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253; 155 A Crim R 252. The offender in that case had been charged under s 112(1) and s 113(1) of the Crimes Act with a series of offences (respectively, breaking and entering, and committing, or with intent to commit, any serious indictable offence). The second sub-section of each section creates an aggravated form of the offence. One of the circumstances of aggravation is that the offence was committed in company (s 105A(1)(b)). The sentencing judge took into account, as an aggravating factor, under s 21A(2)(e), that the offences were committed in company, notwithstanding that the offender had not been charged with the aggravated form of the offence. This Court (Johnson J, with whom Mason P and Barr J agreed) held that that infringed the principles stated The Queen v De Simoni [1981] HCA 31; 147 CLR 383 at [89]. Although it was not explicitly stated, that suggests that the concept of “in company” in s 21A(2)(e) is the same as the concept of “in company” in the creation of the aggravated form of offences.
The decisions concerning the construction to be placed on the element of an offence being committed in company are, therefore, in my opinion, relevant to the construction to be given to s 21A(2)(e). I do not take those statements to be an exhaustive statement of what might be held to be “in company”. Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions:

(i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise;

(ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or “emboldening” that person;

(iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender.

In his submissions, counsel for the Crown acknowledged, properly, that Ms Clauscen was not, in the commission of either offence, in the presence of the victims, and it could not be said that her presence added any weight to the coercive or intimidatory effect of what the applicant did. Rather, the Crown sought to rely on the “emboldening” of the applicant, by her presence, even though she was not present at the time of the commission of the robberies.
The submission is unsustainable. There was nothing in the Agreed Statement of Facts that permitted a conclusion (certainly not a conclusion beyond reasonable doubt) that Ms Clauscen lent any support to the applicant. There was nothing that permitted a conclusion that she shared a common purpose with the applicant. There was no cross-examination of the applicant to establish those conclusions.
The evidence is equally consistent with Ms Clauscen having opposed the applicant’s plans, and parted from him for that very reason. No common purpose could be established. No encouragement or support or emboldening could be established.
Ground 1 of the application is made out. It was an error to take into account, as an aggravating factor, that the offences were committed in company. It was, it should be restated, an error into which the sentencing judge was led by the applicant’s counsel. Moreover, the sentencing remarks do not suggest that the erroneously stated fact that the offences were committed in company was given significant weight. It was made, not in the context of the consideration of aggravating features, or even of the objective gravity of the offences, but in the course of the sentencing judge distinguishing the applicant’s case from the cases the subject of the Henry guideline. But it is neither necessary nor appropriate to identify the impact of the error on the sentencing outcome: where error is established, it is the duty of this Court to proceed to re-sentence, exercising its own independent sentencing discretion: Kentwell v The Queen [2014] HCA 37; 252 CLR 601, especially at [47].

Ground 2 – special circumstances

By Ground 2 the applicant asserts that the sentence imposed fails to give effect to the finding of special circumstances justifying departure from the statutory ratio of the non-parole period to the head sentence prescribed by s 44(2) of the Sentencing Procedure Act.
As mentioned above, the sentence imposed was a head sentence of 6 years and 6 months with a non-parole period of 4 years. The non-parole period is 61.5 per cent of the head sentence, representing a considerable reduction of the statutory ratio of 75 per cent.

However, that does not take into account the effect of the partial accumulation of the sentence on the pre-existing sentence. In respect of that sentence, the applicant had been in the community on parole for about two months at the time of the commission of these offences. Parole was revoked, with effect from the date of his arrest, 19 June 2013. He was, accordingly, serving the balance of that sentence at the time the present sentence was imposed (on 2 April 2015). That sentence expired on 17 April 2016.
The sentencing judge made the present sentence partially concurrent with and partially cumulated upon the earlier sentence, specifying that it commence on 19 December 2014, that is, 18 months from 19 June 2013 when the applicant was taken into custody and parole was revoked, and about 17 months before the expiration of that sentence.
The result of the accumulation is that the applicant will be subject to continuous custody from 19 June 2013 to (at least) 18 December 2018 (when the present non-parole period expires) or (at most) 18 June 2021 (when the present head sentence expires). When looked at in that way, the non-parole period is 68.75 per cent of the head sentence, a modest (but not insignificant) variation on the statutory proportion.
Written submissions filed on behalf of the applicant (not prepared or signed by counsel who ultimately appeared on the applicant) went further, and analysed the ratio as it applies to the accumulated effect of the whole of the pre-existing sentence together with the current sentence. Disregarding the two month period when the applicant was at liberty on parole, that exercise results in a total head sentence of (on my calculation) 15 years and 3 months, and a non-parole period of 12 years and 8 months. Looked at that way, the non-parole period is therefore 83 per cent of the head sentence, well above the statutory ratio.
The difficulty with the argument is that there is no warrant for accumulating the sentences in that way for the purpose of determining whether the sentencing judge failed to give effect to the finding of special circumstances. The sentencing judge’s task was to sentence for the offence committed on 8 June 2013, taking into account the offence committed on 7 June 2013. It was legitimate for her, if she considered it appropriate to do so, to take into account the effect of accumulation of 18 months, and that she expressly did. It was not suggested to her that she ought to structure the sentence in such a way as to apply the s 44(2) proportions (and a variation by way of implementing the finding of special circumstances) to the total of the sentences to be served by the applicant as a result of his commission of two separate and distinct periods of offending.
I would reject proposed Ground 2.

Grounds 3-6

The remaining grounds were dealt with on behalf of the applicant, both in written and oral submissions, together. Essentially, the complaint was that the sentence imposed was manifestly excessive, and that this came about because:

the sentencing judge erred in her approach to the principle of totality;

the sentencing judge failed to take into account that there had been a considerable delay in the sentencing of the applicant and that this disadvantaged him in a particular and significant way.

totality

With respect to the question of totality, reference was made to the judgment of McHugh J in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. That case was specifically concerned with sentencing federal offenders, under the provisions of the Crimes Act 1914 (Cth). The principal issue in the case concerned parity in sentencing co-offenders. McHugh J appeared to endorse decisions of this Court to the following effect:

“Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences …
… a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.” (at p 308)

It was again pointed out that, adding the 2008 sentences to the 2015 sentence, the total sentence is 15 years and 2 months (in fact, on my calculation, 15 years and 3 months) with a non-parole period of 12 years and 6 months (on my calculation, 12 years and 8 months). This, it was contended, was a manifestly excessive overall sentence.
Consideration of that assertion requires consideration of the facts of the offences the subject of the 2008 sentences. These facts were before the sentencing judge.
Counsel who appeared for the applicant on sentence objected to the tender of that material; counsel representing the Crown identified the relevance of the documents as “purely to demonstrate the similarity between those prior offences and the offence before the court”. The sentencing judge admitted the document but made it clear that:

“… in no way will I be punishing the offender for offences for which he has already served his sentence.”

(It is true that the statements of facts were admitted for the limited purpose I have stated above; I take that limitation to be waived for the purpose of the present ground of appeal. Without evidence of the facts and circumstances of the earlier offences, no sensible consideration can be given to the question of totality.)

The 2008 sentences related to four counts of armed robbery, one of escape lawful custody, one of threatening to use an offensive weapon to prevent lawful apprehension, one of drive conveyance taken without consent of the owner, and two of having custody of false instruments with intent to use them. The armed robbery offences bore significant similarities to the 2013 offences. Armed with a pistol, the applicant went to various commercial premises (two liquor outlets, and two Australia Post shops) and, producing the weapon, demanded money. Those offences were committed over a six week period in 2005. The offence of threatening to use an offensive weapon to avoid lawful apprehension consisted of claims by the applicant that he had in his possession two pistols. This took place during the course of a lengthy siege, with the applicant repeatedly threatening to use the pistol to shoot. (It is unnecessary to go into the detail, but the applicant had escaped lawful custody on 21 September 2005 and it seems that the siege occurred when police were attempting to arrest him. This occurred before the applicant had been charged with the 2005 armed robberies, but was under suspicion in that respect.)
Consideration of the circumstances of all of the offences makes it plain that a lengthy period of imprisonment was appropriate.
Further, that the applicant committed the present offences within two months of his release from the sentences he was serving is a strong indication that the sentence imposed necessarily incorporated a significant component of specific deterrence as well as a significant component of denunciation.
Moreover, balanced against the totality principle is the requirement that the sentence imposed be appropriate to the circumstances of the offence: Pearce v The Queen [1998] HCA 57; 194 CLR 610.

delay

There was a considerable delay between the apprehension of the applicant on 19 June 2013 and his ultimate sentencing on 2 April 2015. That delay had a specific and somewhat unusual consequence.
Particulars provided to this Court show that the applicant entered a plea of guilty in the Central Local Court on 4 March 2014. This Court was told that the matter was listed for hearing in the District Court on 4 September 2014, but was not reached. It was relisted for hearing on 5 February 2015, and adjourned for further evidence to 20 February 2015. Sentence was passed on 2 April 2015. This was almost 2 years after the offences and the applicant’s arrest. The first part of the delay was plainly attributable to the applicant’s delay in entering his plea. The delay between entry of the plea and first listing is unexplained, but may be taken to be the caseload in the District Court. The delay between first listing and actual sentencing cannot be laid at the applicant’s door.
By s 47(2)(b) of the Sentencing Procedure Act, a court is permitted to post-date the commencement of a sentence, but only if the sentence is to be served consecutively or partly consecutively with another sentence of imprisonment. By sub-ss (4) and (5), a sentence may not be post-dated to a date later than the earliest date on which the offender will become entitled or eligible to release on parole having regard to any other sentence of imprisonment being served.
At all material times, notwithstanding the revocation of parole, the applicant was eligible to be released on parole in relation to the 2008 sentences. The sentence imposed in respect of the 2013 offences could therefore not be post-dated beyond the date on which it was imposed. That being so, the delay in sentencing extended the period of accumulation available to the sentencing judge. That is, the sentencing judge had a vastly wider range of options for the commencement date selection than would have been available to her had sentencing taken place on, or shortly after, say 4 September 2014 (or earlier). The applicant was plainly disadvantaged by the delay, at least the last part of which was in no way attributable to him.
No argument in these terms was addressed to the sentencing judge. Such argument as there was (and it was limited) concerning the extent of backdating was directed to the issue considered in R v Kaiva (NSWCCA, 9 November 1998, unreported) and Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, and which was also ventilated in this application. That issue was to do with the overlap between the revocation of parole and the partial accumulation of sentence. Where, as here, parole is revoked solely because of the commission of subsequent offences, an argument is available (and frequently advanced) that the offender is doubly penalised for the subsequent offences: first, by the revocation of parole (attributable only to the commission of the subsequent offences), and second, by the imposition of a cumulative sentence. In R v Eric John Andrews (NSWCCA, 28 April 1993, unreported) Hunt CJ at CL had no difficulty in rejecting the proposition that, in those circumstances, an offender is subject to double punishment. His Honour said that the revocation is because the commission of the further offences shows that the offender is unable to adapt to normal lawful community life and is therefore no longer entitled to parole in relation to the earlier offences (although the evidence of that inability was the commission of the offences): see also, R v Brett John Kelly [2000] NSWCCA 557.
In Callaghan I reviewed those decisions, and a contrary line of authority that held that to decline to backdate the sentence for the subsequent offence at least gave the appearance of double punishment: Kaiva, and see R v Kitchener [2003] NSWCCA 134.
There is, in my opinion, considerable force in the argument, advanced in this Court, but not advanced before the sentencing judge, that the delay in sentencing caused the applicant to lose a significant advantage. It would have been appropriate for the sentencing judge notionally to determine at what point the applicant could reasonably have expected to have been sentenced (having regard to the date of his plea) and to have directed that the sentence commence no later than that date. The latest such date would have been 4 September 2014, when the matter was first listed but not reached, but it would have been open to consider any date after the date of the applicant’s plea of guilty.
In my view there is also some (perhaps less) force in the argument that the revocation of parole was referable to the commission of these offences and to no other parole breaches. Certainly there was no evidence of other parole breaches, and the Pre-Sentence Report expressly stated that the applicant had complied with his supervision and maintained scheduled appointments. In Andrews, Hunt CJ at CL, notwithstanding his firmly expressed view that the reason for revocation of parole was inability to adapt to normal lawful community life, recognised that there may be some situations in which it would be “just” to backdate a sentence for a subsequent offence.
I have, somewhat reluctantly, come to the conclusion that the effect of the delay in sentencing was, in this instance, a circumstance relevant specifically to the commencement date of the sentence, and that the failure of the sentencing judge to take it into account represented error in the sentencing process. That this was a failure brought about by the omission of counsel to draw it to the attention of the sentencing judge does not detract from its significance.
In saying this, I am conscious of the observations of Johnson J in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81] and [82]. Johnson J referred to a number of decisions of the Victorian Court of Appeal in such a fashion as to indicate that he adopted and endorsed the principles there stated: Romero v R [2011] VSCA 45; 32 VR 486 at [11]; Keane v R [2011] VSCA 156 at [13] and [18]; Bayram v R [2012] VSCA 6 at [28]-[29].
The principles were stated as follows:

“81 … in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence …”

His Honour went on to say:

“82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender’s favour on sentence. As Warren CJ said in Bayram v R at [29], it may ‘render a serious injustice’ if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

The judgment of Johnson J is carefully worded so as not to preclude the intervention of this Court where justice demands that it intervene.

Conclusion

I have concluded that this is a case where justice does demand intervention. Two errors are to be found in the sentencing process, each of which is of the kind referred to by Johnson J in [81] of Zreika, but also comes within the exception referred to in [82] of that judgment.
It is necessary, therefore, to exercise the sentencing discretion afresh: Kentwell.
This is not a case in which the effect of the errors can be mathematically ascertained (see the judgment of R A Hulme J in Martin v R [2016] NSWCCA 104, and corrected mathematically. Whether that approach is permissible is yet to be decided.
The necessity to re-exercise the sentencing discretion requires that I put out of my mind the sentence originally passed, and bring to the exercise a fresh mind, taking into account all relevant circumstances. That involves a genuine fresh approach to sentencing, uninfluenced by the selection of sentence at first instance. The duty is not discharged by starting with the original sentence, and reducing it by a margin, to accommodate what might be taken to have been the effect of the errors exposed. A genuine re-sentencing exercise might, in some cases, result in the imposition of a sentence longer than that originally imposed, although if that were to be done, it would be necessary to warn the applicant: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
I take into account the following. The applicant is now 39 years of age. He had a disadvantaged start in life. He has a lengthy criminal history; he has spent almost the whole of the last decade in prison. His conduct in prison appears to have been exemplary, as evidenced by his release on parole at the earliest available date, and the testimonial of the prison chaplain. However, he did not adapt to community life, and re-offended within two months of release. The re-offending was virtually identical with the offending that saw him imprisoned from 2006 to 2013. That circumstance does not give any confidence as to his prospects of rehabilitation. It speaks clearly of the need for the sentence imposed to reflect a significant component referable to personal deterrence. Having regard to the prevalence of offences of armed robbery, and the well-known detrimental impact of such offences on the lives of victims, general deterrence must also be a major consideration. That the offences were committed whilst on parole remains an aggravating factor. The objective gravity of the offences was high. While there is no evidence that the weapon used was other than a toy, that was not known to the victims.
I put aside consideration of the guideline sentences promulgated in Henry. The applicant and his offences do not fit readily within the profile to which that decision applies. The applicant is not a young offender with little or no criminal history; in the second offence, the offence in respect of which he is to be sentenced, a significant sum was taken.
I bear in mind considerations of totality, including the 2005-2006 offences and the sentences imposed with respect thereto. I bear in mind the dictates of Pearce, that an appropriate sentence be selected for the offence for which the applicant stood to be sentenced (taking into account the Form 1 offence). I take into account the applicant’s plea of guilty which, although not entered at the earliest opportunity, has considerable utilitarian value, and reduce the sentence I otherwise would propose by 25 per cent. I allow a further reduction of 10 per cent by reference to s 23 of the Sentencing Procedure Act. The allowance of 25 per cent was conceded on behalf of the Crown, and I would not depart from that concession. The allowance of 10 per cent coincides with that of the sentencing judge but is, in my independent judgment, appropriate.
I accept that special circumstances justifying an extension of the parole period and a reduction of the non-parole period exist. The principal reason for this is that, at the applicant’s release, having served such a considerable period of time in custody, and bearing in mind his earlier failure on parole, he will need intensive and extensive supervision.
The starting point of the sentence I would impose for the offence of 8 June 2013, and taking into account the offence of 7 June 2013, is imprisonment for 8 years and 6 months. That sentence must be reduced by 35 per cent, yielding a head sentence of 5 years and 6 months. 75 per cent of that is a little over 4 years. I would, in accordance with s 44(2) of the Sentencing Procedure Act, reduce that to 3 years and 6 months.
That leaves the question of the commencement date. There must, in my view, be some accumulation on the 2008 sentences. I take into account that, had the applicant been sentenced on or shortly after the date he entered his plea of guilty, the sentence could not, for reasons given above, have been post-dated. I also bear in mind that the applicant’s parole was revoked solely because of his commission of the present offences, and that any accumulation is at least capable of giving an appearance of double punishment. On the other hand, the applicant’s custody from 19 April 2013 is at least partly referable to the 2005-2006 offences. His commission of offences while on parole is a powerful reason for revocation of the parole order (although it must also be borne in mind that he would not have been precluded from making a further application for parole during the currency of the parole period). I would direct that the sentence commence on 19 June 2014, an accumulation of 12 months.

The orders I propose are:

(1) The time in which to seek leave to appeal extended to 17 February 2016;

(2) Leave to appeal against sentence granted;

(3) Appeal allowed: the applicant be re-sentenced on the offence of armed robbery committed on 8 June 2013, taking into account the offence of armed robbery committed on 7 June 2013, to imprisonment made up of a non-parole period of 3 years and 6 months commencing on 19 June 2014 and expiring on 18 December 2017, with a balance of term of 2 years expiring on 18 December 2019.

**********

Endnotes

Decision last updated: 24 August 2016

Medium Neutral Citation:	White v R [2016] NSWCCA 190
Hearing dates:	4 July 2016
Decision date:	24 August 2016
Before:	Bathurst CJ at [1]; Basten JA at [10]; Simpson JA at [43]
Decision:	(1) The time in which to seek leave to appeal extended to 17 February 2016; (2) Leave to appeal against sentence granted; (3) Appeal allowed: the applicant be re-sentenced on the offence of armed robbery committed on 8 June 2013, taking into account the offence of armed robbery committed on 7 June 2013, to imprisonment made up of a non-parole period of 3 years and 6 months commencing on 19 June 2014 and expiring on 18 December 2017, with a balance of term of 2 years expiring on 18 December 2019.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – robbery with offensive weapon – plea of guilty – further offence of robbery with offensive weapon taken into account on Form 1 – concession by defence counsel that offences committed “in company” – whether error in taking into account offences committed in company as an aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e) – error established – whether failure to give effect to finding of special circumstances justifying departure from statutory ratio of non-parole period – no error established – whether sentence was manifestly excessive due to error in approach to totality principle and failure to take into account delay CRIMINAL LAW – failure by defence counsel to raise arguments before sentencing judge – Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 – whether failure precludes intervention – justice demands intervention – leave to appeal granted – appeal allowed – applicant re-sentenced STATUTORY INTERPRETATION – construction of “in company” – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e)
Legislation Cited:	Crimes Act 1900 (NSW), ss 97, 105A, 113 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44, 47, 55
Cases Cited:	Bayram v R [2012] VSCA 6 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 Keane v R [2011] VSCA 156 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Markou v R [2012] NSWCCA 64; 221 A Crim R 48 Martin v R [2016] NSWCCA 104 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Brett John Kelly [2000] NSWCCA 557 R v Brougham (1986) 43 SASR 187 R v Button; R v Griffen [2002] NSWCCA 159; 54 NSWLR 455 R v Eric John Andrews (NSWCCA, 28 April 1993, unreported) R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Kaiva (NSWCCA, 9 November 1998, unreported) R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253; 155 A Crim R 252 R v Kitchener [2003] NSWCCA 134 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Romero v R [2011] VSCA 45; 32 VR 486 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 Zrieka v R [2012] NSWCCA 44; 223 A Crim R 460
Category:	Principal judgment
Parties:	Michael White (Applicant) Regina (Respondent)
Representation:	Counsel: W Hunt/C O’Neill (Applicant) E Balodis (Respondent) Solicitors: Peter Murphy (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2013/187859
Decision under appeal	Court or tribunal: District Court Date of Decision: 2 April 2015 Before: Hock DCJ File Number(s): 2013/187859