Parker v R

1. [1]

   GARLING J: I agree with the orders proposed by N Adams J and with her Honour’s reasons, particularly that no error has been identified by the applicant. I wish to add that the remarks on sentence of the Herbert DCJ were careful, thorough and comprehensive. In those circumstances, it is appropriate that this Court confines its judgment, as N Adams J has done, to the matters essential to the determination of the application for leave to appeal.

2. [2]

   BEECH-JONES J: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant, Mr Luke Parker, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Herbert DCJ on 10 March 2020. The applicant requires an extension of time. The Crown does not oppose that application.

4. [4]

   On 22 October 2019, the applicant pleaded guilty to the following charges:

5. [5]

   The applicant was also sentenced pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) for a related offence of contravene apprehended domestic violence order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (maximum penalty: 2 years imprisonment and/or 50 penalty units).

6. [6]

   The applicant received a discount of 10% for his pleas of guilty to count 1, count 2 and the certificate offence and a discount of 25% for his plea of guilty to count 3.

7. [7]

   On 10 March 2020, the applicant was sentenced to an aggregate sentence of 3 years 7 months imprisonment commencing on 27 February 2019 and expiring on 26 September 2022, with a non-parole period of 2 years 5 months. The indicative sentences were as follows:

8. [8]

   The applicant’s aggregate non-parole period will expire on 26 July 2021.

Grounds of appeal

1. [9]

   The applicant seeks leave to appeal on two grounds:

Factual background

1. [10]

   The sentencing judge described the applicant’s relationship with the victim as follows:

2. [11]

   Her Honour found the facts as follows for the related offence of contravene ADVO:

3. [12]

   The sentencing judge found the facts as follows in relation to counts 1 and 2:

4. [13]

   Count 3 took place while the offender was remanded in custody for counts 1 and 2. Her Honour found the facts as follows:

5. [14]

   At the time of the first two offences, the applicant was on conditional liberty in relation to previous domestic violence offences against the same victim.

Proceedings on sentence

1. [15]

   A Crown bundle was tendered on sentence comprising the applicant’s criminal and custodial history, agreed facts, as well as the facts for previous offences against his partner, Ms Corben. The Crown also tendered a Sentencing Assessment Report dated 15 January 2020 and a Justice Health Psychiatric Report of Dr Gordon Elliott dated 6 March 2020.

2. [16]

   Counsel for the applicant tendered two letters from the applicant, a letter from Mr Mathew Hyde, an inmate at Parklea Correctional Centre, and a letter from the victim, Ms Corben. A medical report from Dr Michael Phipps (general practitioner for the applicant’s father, Mr Michael Rootsey), four certificates of educational attainment for the applicant and case notes from the applicant’s time in custody were also tendered on behalf of the applicant. The applicant did not give evidence in the proceedings on sentence.

3. [17]

   The report of Dr Phipps stated that the applicant’s father struggled with the activities of daily life and suffered from shortness of breath and chronic lower back pain. The medical history provided included pneumonia, empyema, chronic renal failure and chronic airway limitation. Dr Phipps further noted that the applicant was assisting his father with the activities of daily life. Counsel for the applicant submitted that the applicant would be “incentivised” not to re-offend by caring for his father upon his release.

4. [18]

   It is to be noted that nowhere in that material was there any suggestion that the applicant’s father had cancer.

5. [19]

   Submissions on sentence addressed the applicant’s substance abuse, mental health, relationship with the victim and an alleged sexual assault that occurred in custody.

6. [20]

   After finding the facts as set out above, the sentencing judge assessed the objective seriousness of the offences to be as follows:

7. [21]

   The sentencing judge noted that it was an aggravating factor in relation to count 1 that the offence was committed in the victim’s home. In relation to count 3, the sentencing judge noted that the acts constituting that offence took place over a period of more than five months and involved persistent pressure on the victim of a domestic violence offence.

8. [22]

   Her Honour then turned to consider the applicant’s subjective case. The applicant was 37 years of age at the time of the offences and 38 years of age at the date of sentence. The sentencing judge noted that the applicant had a lengthy criminal history including numerous offences of breaching ADVOs and other domestic violence matters. The applicant’s first offence involving violence occurred when he was 20 years old.

9. [23]

   In relation the applicant’s mental health, the sentencing judge noted that the history obtained from the report of Dr Elliott included repeated presentations to mental health services for suicidal behaviour and a history of emotional volatility and problems with anger management. The sentencing judge noted Dr Elliott’s finding that the applicant was not mentally ill at the time he was assessed but that his substance use disorders and borderline personality traits could be considered mental conditions. Her Honour also noted that the applicant had a “history of cannabis use consistent with moderate severity cannabis use disorder… [and a] stimulant use history … consistent with moderate severity stimulant use disorder”. Dr Elliott opined that the applicant was at significant risk of relapsing into substance use at times of relationship conflict.

10. [24]

    As for the applicant’s need to be with his father, her Honour noted that the applicant was his father’s carer as his father “has many health problems”. Her Honour also noted that the applicant had told his doctor and his psychiatrist that he had been caring for his father and it was his intention upon his release from custody was to live with and care for his father.

11. [25]

    The sentencing judge found special circumstances by reason of the applicant’s need for supervision to ensure he addressed his substance use issues and received treatment for his personality disorder. Her Honour was not satisfied however that the applicant’s mental health contributed to his offending in a material way, reduced his moral culpability, or made him an inappropriate vehicle for general deterrence.

12. [26]

    As for the applicant’s complaint of being recently sexually assaulted, her Honour stated:

13. [27]

    In relation to remorse, her Honour found that the applicant took no responsibility for his actions and blamed his behaviour on the actions of the victim. It was further noted that the applicant minimised his behaviour and saw himself as the victim.

14. [28]

    In the absence of sworn evidence from the applicant, the sentencing judge did not place weight on the applicant’s expression of remorse in his letter to the Court.

15. [29]

    Her Honour noted that the medical evidence recommended that the first priority for treatment should be to address the applicant’s substance use problems. Her Honour further noted that “[t]he doctor thought he was at considerable risk for relapse into substance use at times of relationship conflict.”

16. [30]

    It was noted that the applicant’s response to supervision in the past had been deemed unsatisfactory due to his failure to report and engage and that the applicant was assessed as a “medium to high risk of reoffending.” Her Honour concluded:

17. [31]

    The sentencing judge found that it was a significant matter of aggravation that the applicant was on conditional liberty at the time of the first two offences. Her Honour did not accept that there should be concurrency with the applicant’s pre-existing sentences, noting that the applicant received a “modest” non-parole period for a series of domestic violence offences and that these offences had occurred since 2017. The sentencing judge noted the need for some accumulation in the present sentences to reflect the separate nature of the offences and the overall criminality.

Applicant’s submissions

1. [32]

   The applicant did not rely upon any fresh evidence under this ground. In his Notice of Application for Extension of Time he stated:

2. [33]

   The only reference to this ground in the applicant’s written submissions was the assertion: “Father very unwell”.

3. [34]

   At the hearing of this application the applicant submitted that he wanted “eight weeks to be put from the bottom sentence to the top sentence” so he could be released to look after his father. He stated, “all I need to do is to get out to look after my dad. And then when my dad passes, keep going the way I’m going”. He later stated, “dad’s deteriorated over the last two and a half years”.

4. [35]

   As for the fact that there was no mention in the material tendered at his proceedings on sentence about his father having cancer, he submitted:

5. [36]

   In his written submissions the applicant wrote:

6. [37]

   At the hearing, the applicant expanded upon these written submissions. He relied upon his remorse and the fact that he was “high on drugs” at the time. He stated that he had been doing a drug program in custody so that he would not be “going back to drugs” when released. He submitted that he is working seven days a week in custody and that his family needs him. He submitted that his partner needs him because she has three children to raise by herself and that his son is a “handful”.

7. [38]

   He complained that the sentencing judge should have believed his claim that he was sexually assaulted.

8. [39]

   The applicant noted that he will be released in eight weeks’ time which means he will have served 2 years and 11 months when, it was submitted, he should only have received 2 years and 3 months.

9. [40]

   He complained that his first lawyers told him not to plead guilty in the Local Court although he had intended to. He stated that his lawyers had told him he would be sentenced to time served, being 18 months, and then “they slapped me with a three year nine months on the top.”

10. [41]

    He pointed out that he has never been forced to do any courses for domestic violence; he has volunteered to do them. He noted that he had a bad record but said that he had to start somewhere and that he did not know what else he could do to prove that he has changed.

Consideration

1. [42]

   The applicant’s first ground of appeal did not, in terms, complain of any finding made by the sentencing judge in relation to her father’s health. Rather, it was submitted that he should be released eight weeks early on compassionate grounds.

2. [43]

   This is a Court of error. No error is disclosed in the manner in which the sentencing judge dealt with the health issues of the applicant’s father.

3. [44]

   A ground alleging manifest excess is a ground in which it is contended that, even if no patent error is established, the sentencing judge’s discretion miscarried nonetheless and the sentence is “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. I am not satisfied that the aggregate sentence imposed on the applicant was “unreasonable” or “plainly unjust” for the following reasons.

4. [45]

   The applicant was being sentenced for four offences, three on indictment. The public justice offence and the break and enter both carried a maximum penalty of 14 years imprisonment. The offences all arose in the context of a three-year relationship which was marred by repeated domestic violence incidents. The applicant breached orders put in place to protect his partner and also breached the conditions of two good behaviour bonds imposed for offences committed against the same partner. He breached these orders in the context of a long criminal history which disentitled him to any leniency. Her Honour was unable to make any favourable findings in relation to his prospects of rehabilitation.

5. [46]

   The sentencing judge found that the applicant took no responsibility for his actions and blamed his behaviour on the actions of the victim. Her Honour went on to note that in fact the applicant saw himself as the victim. No error is disclosed in these findings; the applicant maintained this position in his submissions to this Court and minimised the seriousness of the assault offences.

6. [47]

   The applicant relied upon the fact that he was not being sentenced for any offences of actual violence on Ms Corben in support of his contention that his sentence was too high. The difficulty with this submission is that it was the public justice offence in relation to which the highest indicative sentence was noted. That was a very serious offence. The applicant’s relentless badgering and needling of his former partner to force her to change her evidence, including suggestions as to what her explanation for doing so should be, constitute serious conduct.

7. [48]

   As for count 1, Ms Corben had the right to refuse the applicant access to her home. The applicant failed to grasp this. In Yaman v R [2020] NSWCCA 239 Wilson J, with whom Fullerton and Ierace JJ agreed, observed the following in the context of the need for general deterrence in such cases [131]:

8. [49]

   Given all of these factors it could not be said that the aggregate sentence imposed on the applicant was “unreasonable” or “plainly unjust”.

9. [50]

   I would propose the following orders:

   1. (1)

      Extension of time is granted.

   2. (2)

      Leave to appeal is refused.