SDM v R

1. [1]

   ADAMS J: I have read the judgment of Price J in draft. I agree with his Honour’s analysis of the relevant considerations and his Honour’s conclusion that the individual sentences imposed for the crimes committed by the applicant were not manifestly excessive. But for the matter which I discuss below, I agree, with respect, that the overall sentence would not be manifestly excessive and the variation in the non-parole period proposed by Price J would be appropriate.

2. [2]

   As the learned sentencing judge made clear (and Price J agrees) this was a case in which it was appropriate to discount for utilitarian reasons the sentences that would otherwise have been imposed in the event of a trial by 25% in respect of the Glenorie offences and 15% in respect of the offences against his former wife. The approach taken by the learned trial judge was, in relation to each offence, to arrive at an appropriate sentence, having taken into account all the relevant objective and subjective factors and then to apply the discounts. If I may say so with respect, this approach was entirely proper. However, when his Honour accumulated by varying degrees the individual sentences, he made no mention – in dealing with the question of totality – to the significance at this stage of ensuring that the granted discount was carried through into the ultimate result. In many cases, this might readily be inferred from the outcome although, given the important public policy considerations underlying the giving of utilitarian discounts, it is obviously desirable that sentencing judges should make specific mention of the impact of the discounts on the ultimate overall sentence.

3. [3]

   Where the discounts to apply to the individual offences are different, no merely mathematical solution is appropriate when assessing the way in which the discounts are to apply, in an accumulative way, to the ultimate overall sentence. It is the substance to which effect must be given. At then end of the day it is imperative, in my view, that the overall sentence is seen to be significantly less than that which would have resulted had the offences gone to trial. Otherwise, the effect of the accumulation will have been to negate the grant of the utilitarian discount.

4. [4]

   To some degree, of course, the measurement of the utilitarian discount is necessarily arbitrary, though it ought never be capricious. At the end, the object is to allow a utilitarian discount that reflects the overall benefit accorded to the administration of justice by the pleas of guilty. Although the difficulty presented by different discounts applying to different offences might be resolved by a number of possible approaches, the most reasonable seems to me, in the circumstances here, to regard the overall utilitarian discount as somewhere between the 25% allowed for the Glenorie offences and the 15% allowed for the offences against his former wife. In my view, an overall discount of 20% would be appropriate.

5. [5]

   In the present case, accepting that the differential discounts were appropriate (as I do), the necessary implications are that the learned trial judge either considered that an overall sentence before discount of something a little over thirty-seven years was appropriate to reflect the totality of the criminality involved in the offences or his Honour did not look at the question of totality in light of the discounts. It is no answer to this analysis that the individual sentences reflected the respective discounts, since it is obvious that the effect of the discounts might be entirely destroyed by the extent of accumulation. In my view, a starting point of between thirty-five and forty years before application of the overall discount – that is, an overall sentence (on the learned sentencing judge’s assessment of overall criminality) that would have been appropriate had the offences gone to trial – must have been manifestly excessive, accepting as I do that the offences were here very grave indeed and the overall criminality was very great.

6. [6]

   It matters not which of the implications that I have mentioned is the fact: both are errors in the exercise of the sentencing discretion. Having regard to the significance of the utilitarian benefit to the administration of justice in this particular case, there was a distinct public interest in specifically mentioning its application. This was done by the learned sentencing judge when dealing with the individual sentences. However, considering the potential for undoing by the extent of accumulation what was rightly considered to be appropriate – taking away with one hand what was given with the other – it was also desirable to make specific mention of the matter when considering the appropriateness of the overall sentence. Had his Honour done so, it is inescapable, I think, that he would have discussed the problem posed by the differing discounts and resolved the matter. Because his Honour did not discuss the problem, it seems to me, with respect, that his Honour overlooked the potential to which I have referred.

7. [7]

   The overall sentence of thirty years imprisonment arrived at by the learned sentencing judge would not, with respect, have been manifestly excessive had the applicant gone to trial – that is, had he not pleaded guilty. However, for the above reasons, I have concluded that this sentence does not reflect the utilitarian discounts identified by the learned sentencing judge as appropriate. In my view the overall sentence of thirty years should be regarded as the starting point and reduced by the utilitarian discount to twenty-four years imprisonment with an overall non-parole period of eighteen years.

8. [8]

   To effect this result would require adjustment of the commencing dates of the individual sentences. Since I have the misfortune to disagree with my brethren on the outcome of the appeal, I have not felt it necessary to undertake this exercise.

9. [9]

   HOWIE J: I agree with Price J.

10. [10]

    PRICE J: The applicant, SDM, seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Parramatta by Ellis DCJ on 17 March 2006.

11. [11]

    On 10 October 2005, the applicant pleaded guilty to an indictment containing eight counts relating to offences against his former wife, namely four counts of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act 1900 (NSW) and four counts of sexual intercourse without consent contrary to s 61 of the Crimes Act.

12. [12]

    An offence contrary to s 59 of the Crimes Act is punishable by imprisonment for five years. An offence contrary to s 61 of the Crimes Act is punishable by imprisonment for 14 years. A standard non-parole period has been prescribed (s 54B Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) and table in Division 1A) in respect of an offence contrary to s 61 of seven years imprisonment.

13. [13]

    Four matters of common assault contrary to s 61 of the Crimes Act on a Form 1 were taken into account on sentence on count eight on the indictment. One count on a s 166 certificate of contravene apprehended violence order contrary to s 562(1) of the Crimes Act was also taken into account.

14. [14]

    The applicant on 24 February 2006 pleaded guilty to an indictment containing four counts involving offences committed at Glenorie (the “Glenorie offences”).

15. [15]

    The first count is one of aggravated break and enter and commit serious indictable offence, namely armed robbery and in circumstances of special aggravation contrary to s 112(3) of the Crimes Act. The offence is punishable by imprisonment of 25 years. A standard non-parole period of seven years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

16. [16]

    The second and third counts are counts of aggravated sexual intercourse without consent in company and with deprivation of liberty contrary to s 61JA of the Crimes Act.

17. [17]

    The offences contrary to s 61JA of the Crimes Act are punishable by imprisonment for life. A standard non-parole period of 15 years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

18. [18]

    The fourth count is one of maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s 33 of the Crimes Act.

19. [19]

    The offence is punishable by imprisonment for twenty five years. A standard non-parole period of seven years has been prescribed (s 54B CSP Act and table in Division 1A) in respect of the offence.

20. [20]

    Two matters of intimidate police in execution of their duty contrary to

21. [21]

    On 17 March 2006, the applicant was sentenced by the Judge for all the offences contained in the two indictments and the following sentences were imposed:

22. [22]

    Total effective sentence: As a result of accumulation and partial accumulation the total effective sentence imposed by the Judge was a non-parole period of twenty five years to date from 15 March 2004 and to expire on 14 March 2029 with a balance of term of five years to date from 15 March 2029 and to expire on 14 March 2034.

23. [23]

    The Notice of Appeal identifies two grounds namely:

The offences

1. [24]

   It is convenient to adopt the facts from his Honour’s remarks on sentence. The Judge made an order that the names of the complainants in the “Glenorie offences” not be published. This Court continues this order and where applicable pseudonyms are used. His Honour said (at pp 4-15):

The applicant’s subjective circumstances

1. [25]

   Evidence of the applicant’s subjective circumstances was put before the Judge by way of a probation and parole report dated 2 December 2005 and a report by Professor David Greenberg psychiatrist dated 7 December 2005.

2. [26]

   The applicant was born in March 1979 and at the time of the offences committed at Glenorie was aged 24 years.

3. [27]

   The applicant’s parents divorced when he was eight years old. During his early childhood, his mother abused heroin and his father was absent because of criminal activities. After his parents separated the applicant lived with his mother until aged 13 years. He reports that he was physically abused by his mother’s boyfriends. He then lived with his cousins at Kings Cross or squatted. At the age of 16 he went to live with his father.

4. [28]

   The applicant said that he attended over twenty different schools. He has a lengthy juvenile record, with nine Court appearances dealing with 17 offences. At the age of 16 he was sentenced to a term of six years with a non-parole period of four years for armed robbery and maliciously shoot at police to avoid apprehension. He spent at least four years at the Kariong Juvenile Justice Centre where he was able to complete his school certificate.

5. [29]

   The applicant married his former wife in February 2001. Their relationship, it appears, was characterised by frequent domestic violence, separations and re-unions. A son was born in July 2002.

6. [30]

   Professor Greenberg noted that the applicant admitted being jealous and possessive of his former wife and it is noted in the probation and parole report that the applicant had shown himself to be a very possessive, jealous and demanding husband.

7. [31]

   The applicant at the age of 13 years commenced using various illicit substances and there is a long history of illicit substance abuse/dependence. He stated he had been taking ICE (methamphetamine) for eight or nine months which affected his behaviour. Professor Greenberg diagnosed him as having an Antisocial Personality Disorder associated with a history of poly-substance abuse/dependence.

8. [32]

   The probation and parole report reveals that the applicant stated he committed the “Glenorie offences” whilst under the influence of drugs and believed his victim to be a drug dealer. After stealing drugs he believed there was a safe containing a large amount of cash. He states that he made the female victims strip in an attempt to force the victim to open the safe. Once they did he became aroused and sexually assaulted them.

9. [33]

   The applicant was assessed as suitable for high level interventions by the Probation and Parole Service which would include counselling and treatment in relation to alcohol and other substance abuse issues together with anger management and the sex offenders program.

Dealing with the Appeal

1. [34]

   The first ground of appeal is that his Honour erred in failing to find special circumstances. The Judge when sentencing the applicant said (ROS at 37):

2. [35]

   Whilst conceding that his Honour was entitled to make such a finding, the applicant contends that as a result of the way in which his Honour structured the sentences, the parole period was substantially less than one-third of the non-parole period of the total sentence. In determining each individual sentence, the applicant agrees that the Judge imposed a parole period that was one-third of the non-parole period, but contends because of the accumulation of sentences, this ratio was not reflected in the final sentence.

3. [36]

   The Crown submits, although in isolation the Judge’s remarks might suggest the contended error, the remarks on sentence considered as a whole indicate he intended to impose an aggregate balance of term less than one-third of the aggregate non-parole period having regard to the totality of the applicant’s criminality.

4. [37]

   For each individual sentence for which a non-parole period was set, the Judge fixed a ratio of 3:1 between the non-parole period and the remainder of the sentence. The ratio, however, between the overall effective non-parole period and overall effective remainder of sentence was 5:1.

5. [38]

   Section 44(2) of the CSP Act does not prohibit such a ratio nor does such a ratio require a finding of special circumstances. The subsection prescribes a ratio between the non-parole period and the remainder of the term such that the remainder of the term cannot, without special circumstances, be more than one-third of the non-parole period. In the present case, the remainder of the term was less than one-third, it being one-fifth.

6. [39]

   This Court has held however that where a sentencing Judge’s reasons disclose an intention to reflect a ratio not greater than 3:1 prescribed by the CSP Act and no reasons are given for an overall sentence which does not reflect that ratio, an appeal Court will generally consider this not to be a deliberate departure, but rather an understandable mistake of the effect of cumulative sentencing: Perry v R [2006] NSWCCA 351; (2006) 166 A Crim R 383 at [16], R v Swan [2005] NSWCCA 252 (“Swan”).

7. [40]

   As was observed by Rothman J in Swan at [24]:

8. [41]

   I do not understand by those remarks that Rothman J intended to convey that a statement of intended departure from the statutory ratio in the overall sentence in express terms is always required when the statutory ratio has been set for each individual offence. Whilst such a statement is preferable, there may be instances where a sentencing Judge’s reasons disclose by implication an intention to reflect in the overall sentence a ratio greater than 3:1.

9. [42]

   In the present case, there was no express statement by the Judge of his intention to depart from the statutory ratio in the overall sentence imposed.

10. [43]

    His Honour was faced with a complex sentencing task which involved separate indictments, multiple offences and four standard non-parole periods. The remarks on sentence bespeak careful consideration and diligence.

11. [44]

    Having made the remarks in the first passage quoted above, the Judge went on to closely consider the principles associated with cumulation, concurrence and totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 and made determinations in respect of the offences within the first indictment of concurrence, partial accumulation and accumulation.

12. [45]

    The Judge then remarked (ROS at p 38):

13. [46]

    The Crown contends that the Judge by these remarks conveyed an intention to depart from the statutory ratio in the overall sentence. Notwithstanding his Honour’s assiduity, I do not agree.

14. [47]

    The Judge when considering special circumstances opined in the first passage of the sentencing remarks quoted above that the reality was by reason of the “effective length” of the sentence to be imposed a parole period of one-third of the non-parole period “will be” sufficient. The “effective length” of the sentence could only mean the total aggregate sentence imposed after questions of cumulation, concurrence and totality had been considered.

15. [48]

    With respect to his Honour, I am of the view that he overlooked when considering the principle of totality the adjustment which was required to be made to the ratio of the overall effective non-parole period to the overall effective remainder of the sentence consistent with his earlier stated intention of a ratio of 3:1.

16. [49]

    The second ground of appeal is that the sentence is manifestly excessive. The applicant points in particular to the determination by the Judge to accumulate the “Glenorie offences” upon those committed against his former wife and submits that the Judge failed to give effect to the principle of totality.

17. [50]

    The Court was referred in the applicant’s written submissions to what was said in Postiglione v The Queen (1997) 189 CLR 295 by Kirby J at 341 (“Postiglione”):

18. [51]

    The Judge considered the principle of totality as he was obliged to do and gave careful reasons for the effective sentence which was ultimately imposed (ROS at p 37-39). It was necessary for his Honour to ensure that the aggregation of all the sentences was a “just and appropriate measure of the total criminality involved”: Postiglione at 307-308 per McHugh J.

19. [52]

    As was observed by this Court in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15] (“R v MAK; R v MSK”), the need to maintain an appropriate relationship between the totality of the criminality involved and the totality of the sentences to be imposed arises for at least two reasons. The first reason being the severity of a sentence may increase at a greater rate than an increase in the length of a sentence – it is not simply the product of a linear relationship and the second the proposition that an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release: R v MAK; R v MSK at [16]-[17].

20. [53]

    The Court in R v MAK; R v MSK emphasised at [18] the need to take care when applying the totality principle “to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]”.

21. [54]

    In the second passage of the sentencing remarks quoted above, the Judge concluded that the “Glenorie offences” should be cumulative upon the offences of sexual intercourse without consent upon his former wife as the offences were entirely unrelated. As each “Glenorie” count represented either different serious criminality or serious criminality on multiple victims, he concluded that cumulative sentences were appropriate. The Judge reviewed the aggregate sentence and considered whether it was just in accordance with the principle of totality and then determined as a consequence of the review partial concurrency with regard to all of the “Glenorie offences” more appropriately reflected a just, fair and proper sentence.

22. [55]

    The analysis by his Honour of the structure of the sentences was in my view careful and correct (save for the understandable oversight of the adjustment to the statutory ratio).

23. [56]

    The applicant’s criminality in the “Glenorie offences” was appalling. The Judge found the applicant to be the ringleader and main perpetrator in relation to the sexual offending and in relation to the violence occasioned to AV both within the bedroom and outside the house (subject to the remarks he had earlier made about the use of the machete). The offences of aggravated sexual intercourse in company with deprivation of liberty, the Judge observed, took place in the victims’ own home as part of a home invasion. The offence against CV, then sixteen years old, was committed in the presence of her mother and father and for BV it was in the presence of her daughter and husband. The Judge had earlier found that the applicant and co-offender Merkoreh were armed with two large kitchen knives and a handgun and wore rubber washing up gloves on their hands when they entered the bedroom where AV and BV were sleeping.

24. [57]

    As the Judge remarked (ROS at p 21):

25. [58]

    The offences at Glenorie were separate and distinct from the offences committed against the applicant’s former wife which were serious. The totality of the applicant’s criminality was high and there was little to mitigate the seriousness of the offences.

26. [59]

    I am not persuaded that the Judge failed to give effect to the principle of totality in any way other than to make the adjustment required to preserve the statutory relationship between the non-parole period and the balance of the sentence.

27. [60]

    The Judge’s stated intention to apply the statutory ratio would have achieved an appropriate aggregate sentence. Adjusted in this way, the total effective non-parole period is 22 years and six months with a total effective balance of term of seven years and six months. The parole period being one-third of the non-parole period will be sufficient, as his Honour remarked, to assist in the applicant’s rehabilitation. The adjusted non-parole period adequately reflects his total criminality. The need to make such an adjustment in order to preserve the statutory ratio amounts to special circumstances: R v Simpson (1992) 61 A Crim R 58; R v Close (1992) 31 NSWLR 743. No change is to be made to the length of the total effective sentence of 30 years.

28. [61]

    Error having been identified the Court, in my view, should form as required by s 6(3) of the Criminal Appeal Act 1912 (NSW) an opinion that “some other sentence … is warranted in law and should have been passed” so that an adjustment is made to the ratio of the overall effective non-parole period to the overall balance of term of the sentence to reflect the statutory ratio.

29. [62]

    This may be achieved by adjusting the non-parole periods in each of the sentences imposed in counts two and three of the second indictment (relating to the “Glenorie offences”) to 12 years and 6 months. With these adjustments the effective non-parole period will be 22 years and 6 months to date from 15 March 2004 and to expire on 14 September 2026. The effective balance of term is 7 years and 6 months to date from 15 September 2026 and to expire on 14 March 2034.

30. [63]

    I propose the following orders:

    1. (1)

       Leave to appeal be granted.

    2. (2)

       Quash the sentence imposed by Ellis DCJ for count two on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

    3. (3)

       Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2012 and expire on 14 September 2024 with a balance of term of 7 years and 6 months expiring on 14 March 2032 for count two on Indictment two.

    4. (4)

       Quash the sentence imposed by Ellis DCJ for count three on Indictment two (relating to the “Glenorie offences”) being an offence contrary to s 61JA of the Crimes Act 1900 (NSW).

    5. (5)

       Sentence the applicant to imprisonment for a non-parole period of 12 years and 6 months to date from 15 March 2014 and to expire on 14 September 2026 with a balance of term of 7 years and 6 months to expire on 14 March 2034 for count three on Indictment two. The earliest date on which the applicant will be eligible for release to parole is 14 September 2026.

    6. (6)

       The names of the complainants in counts one to four (inclusive) in Indictment two (relating to the “Glenorie offences”) not be published.