Marshall v R

1. [1]

   BASTEN AJA: I agree with Dhanji J, for the reasons he gives, that the sentencing judge’s starting point of imprisonment for three years was manifestly excessive. I also agree with the sentence proposed by Dhanji J, including the commencement date. However, I would add the following observations as to why it is appropriate to backdate the commencement of the further sentence to the date of arrest, given that there was no error in the sentencing judge providing a later commencement date.

2. [2]

   The backdating of a sentence is essentially a purposive exercise, where the purpose will depend upon the circumstances of the case. For example, the State Parole Authority revoked the applicant’s parole on his earlier sentence on 23 August 2023, with effect from the date of his arrest, namely 5 July 2023. At least one purpose for backdating the revocation order was that, since his arrest, the applicant had not been able to comply with various conditions of parole.

3. [3]

   The sentencing judge backdated the new sentence to 1 January 2024 in order to provide “an element of concurrency” between the new sentence and the old sentence. That too served a legitimate purpose, but on the assumption that the Parole Authority would not have released him on parole on the old sentence within that time. In fact the judge knew that he had not been re-paroled by 1 January 2024, nor indeed by the date the new sentence was imposed, namely 9 May 2024. However, there is a sense in which that exercise is artificial. While the applicant was bail-refused in relation to the new offence, there may have been a good reason why he would not be re-paroled on the old sentence.

4. [4]

   It is, however, beyond dispute that the question of rerelease on parole is entirely a matter for the Parole Authority. Rather than speculate as to whether the applicant may or may not have been re-paroled at an earlier date, were it not for the current proceedings, the better course is to treat the whole of the period following his arrest on the current offence as part of the sentence for that offence. The Parole Authority is entitled to consider the applicant’s progress while serving the current sentence, as indeed it no doubt will in the present circumstances. If, in August 2023, the Parole Authority considered that the applicant should remain in custody for a further 12 months before his release into the community was again considered, there is no reason why reconsideration and re-release after the 12-month period would not be equally appropriate in circumstances where he had been serving the new sentence. In effect, to backdate the sentence to a later date would not increase the period served in custody on the new offence but would curtail the power of the Parole Authority to consider his release on parole on the old sentence. Arguably, at least in the present circumstances, that is not an appropriate function of the sentencing court. Accordingly, I agree with the commencement date proposed by Dhanji J.

5. [5]

   DHANJI J: The applicant, Matthew Marshall, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on him in the District Court of New South Wales at Queanbeyan on 9 May 2024 by his Honour Judge Fitzsimmons SC.

6. [6]

   The applicant was sentenced in relation to an offence of break and enter and commit serious indictable offence, in contravention of s 112(1)(a) of the Crimes Act 1900 (NSW) committed on 5 July 2023 at Cooma (“the present offence”). The applicant was afforded a 25 percent discount for the utilitarian value of his plea of guilty which was entered in the Local Court. He was sentenced to a total term of 2 years and 3 months imprisonment, commencing on 1 January 2024 and expiring on 31 March 2026, with a non-parole period of 1 year and 5 months, expiring on 31 May 2025.

7. [7]

   The applicant has been in custody since his arrest on 5 July 2023. The sentence was not backdated to that date as the applicant’s custody following his arrest was not solely referable to the present offence. The applicant was on parole with respect to an earlier sentence at the time he committed the present offence with the result that his parole was revoked effective from 5 July 2023. The commencement date of the sentence was set having regard to the fact that the applicant had also been serving his balance of parole from the time of his arrest.

8. [8]

   The earlier offences were:

9. [9]

   Various offences were also taken into account on Form 1 documents attached to the above offences. Across the various Form 1s were an offence of armed robbery, four offences of dishonestly obtain property by deception, stealing a motor vehicle, stealing, and assault.

10. [10]

    In relation to the earlier offences the applicant was sentenced to an aggregate term of imprisonment of 9 years and 6 months, with a non-parole period of 6 years and 4 months commencing on 27 February 2017. The non-parole period expired on 26 June 2023 and the total sentence is due to expire on 26 August 2026.

Grounds of Appeal

1. [11]

   The applicant relies upon two grounds of appeal:

2. [12]

   The first ground of appeal, raises a complaint based on the effect of the present sentence on the earlier sentence and in particular the resultant impact on the proportion between the period of mandatory custody and the time during which the applicant is eligible for parole. The applicant submits in this regard that the sentencing judge failed to properly consider the principle of totality.

3. [13]

   In support of the second ground of appeal, the applicant submits that the notional starting point of 3 years imprisonment for the present offence is incommensurate with the objective gravity of the offending, noting the sentencing judge’s finding that the offending fell “toward the lower end of the range of offences contemplated by the section”. While not making any complaint as to specific error the applicant complains that some matters were not given sufficient consideration in the sentencing exercise.

Background

1. [14]

   The sentencing judge recounted the facts of the offending, based on the agreed statement of facts which had been tendered, as follows:

2. [15]

   His Honour observed with respect to the applicant’s circumstances:

3. [16]

   His Honour observed, with respect to the applicant’s background:

4. [17]

   Perhaps unsurprisingly given this background, the applicant engaged in the abuse of drugs commencing in his teenage years, with the need to obtain the means to support his drug habit motivating the vast majority of his offences. The Crown submissions in the Court below noted that the applicant had, at time of sentence, spent approximately 17 years in custody since his first sentence of imprisonment as an adult in 2001. That constitutes substantially more time in custody than in the community, with the result that, as it was put by the Crown prosecutor, institutionalisation was no longer a risk, but a fact.

5. [18]

   Before the Court were two reports of Dr Paul Pusey, clinical and forensic psychologist dated 21 April 2024 and 2 May 2024; and a sentencing assessment report of Mr Graham McLeay, community corrections officer, dated 5 April 2024. Also tendered were reports of Dr Patrick Sheehan, forensic psychologist, dated 22 November 2017 and of Dr Sathish Dayalan, forensic psychiatrist, dated 12 February 2018, which had been tendered in the sentence proceedings for the earlier offences.

6. [19]

   The applicant was interviewed by Dr Pusey over audio-visual link. Dr Pusey had available to him the reports of Drs Dayalan and Sheehan. He reported that the applicant expressed considerable remorse and regret in relation to his offending and had articulated his belief that there was a relationship between his offending and his mental state. The applicant disclosed that at the time of offending he was “already on edge … missing [his] dose … fresh out of jail …” and that “the whole thing was stressing [him] out and making [him] anxious.” Dr Pusey opined that the applicant’s “inability to remain compliant with his medication” may have caused him to experience “breakthrough symptoms of an underlying psychotic illness” but noted that further assessment was necessary to verify this hypothesis. While Dr Pusey regarded the hypothesis as a “reasonable one given [the applicant’s] reported psychiatric history”, this did not provide a sufficient basis for his Honour to find the applicant was suffering a psychotic illness.

7. [20]

   Dr Pusey diagnosed the applicant with a persistent depressive disorder, and gave a differential diagnosis of an adjustment disorder with mixed anxiety and depressed mood. Dr Pusey also contemplated the prospect of a diagnosis of post-traumatic stress disorder but determined that further information was required to confirm this diagnosis.

8. [21]

   The sentencing assessment report prepared by Mr McLeay noted that Corrective Services’ records confirmed that the applicant suffers from depression and anxiety and was being treated in custody for those conditions. The report stated that the applicant had demonstrated insight into his offending and expressed remorse, as well as a willingness to undertake programs and interventions to address his mental health and substance misuse problems. He could identify the seriousness of his offending and the stress it would have caused to the victims. The report noted that previous supervision of the applicant had centred on mental health, polysubstance abuse, violence, and finances. It stated that the applicant had been assessed as having a high risk of reoffending and made recommendations as to any future supervision plan.

Ground 1 – The sentencing judge erred in his approach to the length of the sentence imposed on the applicant by failing to consider principles of totality in the length, structure and dating of the sentence.

1. [22]

   At the hearing of this matter, the applicant submitted that his complaint on this ground could be seen as subsumed by the broader complaint in ground 2, that the sentence was manifestly excessive. Given this, and my view that ground 2 is established, I will deal with this ground relatively briefly.

2. [23]

   The applicant’s complaint under this ground has its foundation in the fact that the applicant was, at the time he was sentenced, serving the balance of parole with respect to a lengthy sentence previously imposed upon him. As noted above that sentence was one of 9 years and 6 months with a non-parole period of 6 years and 4 months, dating from 27 February 2017. The applicant was released to parole at the expiry of the non-parole period on 26 June 2023. The present offence was committed on 5 July 2023, and thus just nine days after the applicant’s release. The applicant was arrested on the day of the offence and remained in custody from that time. His parole was revoked effective from that day.

3. [24]

   The sentence imposed, as noted above, was one of 2 years and 3 months with a non-parole period of 1 year and 5 months, commencing on 1 January 2024. The sentence was thus ordered to commence five days short of 6 months after the applicant’s return to custody. As a result the applicant served almost 6 months of his balance of parole before he started concurrently serving the present sentence.

4. [25]

   The applicant complains that his Honour failed to consider principles of totality in setting the non-parole period and the commencement date of the sentence. He makes particular complaint as to the proportions between the periods of mandatory custody and the period during which the applicant may be released to parole having regard to the composite sentence resulting from the earlier sentence and that imposed by the sentencing judge.

5. [26]

   In sentencing for the present offence his Honour was required to set an appropriate term of imprisonment having regard to the particular case and the purposes of sentencing. Given the length of the parole period with respect to the earlier sentence, and the limit on any sentence to be imposed for the present matter, having regard to its relatively low level of objective seriousness, any sentence imposed for the new offence was necessarily one that would be subsumed within the parole period of the earlier sentence. As a result, it was inevitable that the non-parole period with respect to the new sentence would impact the ratio between the total period of mandatory custody (including the time the applicant was in custody bail refused and thus not eligible for release) and the period or periods during which the applicant was or would be eligible for release on parole.

6. [27]

   His Honour found special circumstance for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) allowing a non-parole period set at less than three-quarters of the total term. While it is commonplace when sentencing for multiple offences to reduce the non-parole period of the sentence to be served last in order to achieve an appropriate ratio between the non-parole period and the total sentence, here, where the applicant was being sentenced many years after the earlier sentence was imposed, and with respect to entirely separate offending, it was open to the judge to set a non-parole period which reflected his view of the minimum period the applicant should be required to serve as called for by the crime: Power v The Queen (1973) 131 CLR 623 at 628; [1974] HCA 26; Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [55].

7. [28]

   In addition to determining the sentence for the offence, his Honour was required to determine the date on which the sentence was to commence. In setting the commencement date, it can be accepted that his Honour was required to have regard to the interplay between the earlier sentence and that to be imposed for the present offence: R v Todd (1982) 2 NSWLR 517 at 520B, Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, at [27]. There is, however, no basis to conclude that his Honour did not appreciate the impact of the sentence he was imposing on the applicant’s overall custodial situation. The earlier sentence was a significant focus in the sentence proceedings for the present offence, the Crown tender including the reasons of Townsden DCJ for that sentence. The applicant did not point to anything in Fitzsimmons DCJ’s reasons suggesting specific error. I am not of the view that there was any error of the kind argued by the applicant.

8. [29]

   Whilst I do not accept the sentencing judge erred in the manner contended by the applicant, my view that ground 2 is made out necessitates the re-exercise of the sentencing discretion. For the reasons discussed below, in so doing, I would not adopt the commencement date specified by the sentencing judge. Ground 1, however, should be dismissed.

Ground 2 – The sentence imposed was manifestly excessive and a different sentence is warranted at law.

1. [30]

   The matter presented as a somewhat curious sentencing exercise. The applicant had an appalling record including for offences of breaking into people’s houses and committing serious offences and for which he had previously received lengthy terms of imprisonment. The matter before the Court, however, had a different quality in that it was not committed for the purposes of an armed robbery, unlike the more serious of the earlier matters, or even for an offence of stealing. Those offences were committed, inevitably, for the purposes obtaining funds to support the applicant’s drug habit.

2. [31]

   It is convenient to consider more closely the offence provision. The offence was one against s 112(1) of the Crimes Act. The maximum penalty for an offence against s 112(1) is imprisonment for 14 years. There is no standard non-parole period. While the maximum penalty must be looked to for guidance in any sentencing exercise, it is one of many factors that will bear on the exercise of the sentencing discretion. Its relevance is understood by an appreciation that it is the penalty reserved for the worst case, as that term is explained in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48. In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) observed (at [31]) that “careful attention to the maximum penalties will almost always be required”, while at the same time acknowledging that a maximum penalty may have little relevance in a given case, either because it was fixed at a very high level in the 19th century or because, while more recently set, it was set at a high catch-all level (at [30], quoting from Stockdale and Devlin, Sentencing, (1987), pars 1.16-1.18). It is, consequently “wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted”: Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27].

3. [32]

   In the context of s 112(1) of the Crimes Act, having regard to the range of circumstances in which the offence can be committed, in particular the various serious indictable offences which may complete the offence, the maximum penalty is to be regarded as, if not a “catch-all”, then certainly one which is apt to cater to a very wide range of potential criminal conduct. In the circumstances of the present case, the maximum penalty had little relevance, for the reasons discussed below.

4. [33]

   The present offence was constituted by the applicant breaking, then entering the premises, and committing a serious indictable offence within those premises. A serious indictable offence is defined as an offence punishable by imprisonment for life or a period of greater than or equal to 5 years. The offence of intentionally or recklessly damaging property committed by the applicant within the premises carries a maximum penalty of 5 years: Crimes Act, s 195. That offence is thus a “serious indictable offence” so as to sustain the third element of the offence against s 112 of the Crimes Act.

5. [34]

   In the vast majority of cases the breaking and entering is committed with a pre-existing intention to commit the particular indictable offence ultimately making up the final element of the charge. Typically, the offences committed by persons breaking into premises are for the purposes of stealing, or committing offences of assault or intimidation. The present offence was unusual in that it was no part of the prosecution case that the applicant intended to commit an indictable offence within the premises at the time he broke the window and entered the property. It seems that, having entered the laundry, the applicant, for reasons unknown, chose to damage the laundry door, scratching it with an unknown implement. The damage is depicted in a photograph reproduced in the statement of facts tendered on sentence. While not a particularly clear image, the damage appears to be a number of lines forming a geometrical pattern, the area damage being perhaps 10 cm². No indication was given as to the cost of repair, although it would appear that some sanding, perhaps a small amount of filler, and a coat of paint would rectify the door. The indictable offence committed within the premises can properly be described as minor.

6. [35]

   By far the most significant aspect of the crime was the breaking and entering. This involved damage to the laundry window and the unauthorised entry of the applicant to the private home of the occupants, in the course of which the applicant’s blood was deposited on a wall and on the floor. The occupants were present and woken from their sleep as a result of the actions of the applicant. They were no doubt terrified by the presence of an intruder in their home. While presence of the occupants is relevant, it is to be borne in mind that the applicant was not charged with, and was consequently not to be sentenced for, an aggravated form of the offence against s 112(2) of the Crimes Act. Circumstances of aggravation for the purposes of that offence are defined to include circumstances where the offender “knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed”: Crimes Act, s 105A(1)(f). Section 105(2A), provides that where there was a person or persons present in the premises, the offender “is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place”. These provisions consequently required that the applicant be sentenced on the basis that he had reasonable grounds to believe there were no persons within the premises: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. Despite this, as I have said, the fact that persons were present, and were frightened by what occurred, remains relevant.

7. [36]

   With respect to the level of intrusion, the applicant did not go beyond the laundry area of the premises. He ultimately left the premises through the door leading to the exterior of the house. The result was the invasion of the occupants’ privacy and personal space was limited.

8. [37]

   While the sentencing judge was not able to make any finding as to whether the applicant’s belief that he was being pursued was the result of psychosis or not, the inability to make such a finding did not ultimately have a significant bearing on his Honour’s finding as to the circumstances in which the offence was committed. His Honour found that the offence was “entirely spontaneous and unplanned” and committed in circumstances where the applicant was “in effect, seeking a form of shelter, having, on his account, been abandoned by the person whom he accompanied to the area”.

9. [38]

   Given his Honour’s finding as to the events precipitating the breaking and entering, it follows that the internal damage to the property was quite unconnected with the purpose of the breaking and entering. As I have observed the internal damage was relatively minor. Had it not been for this damage (the purpose of which is unknown) the applicant would have been guilty only of offences of damaging property and trespass. The first of these offences carries, as noted above, a maximum penalty of imprisonment for 5 years. The second carries only a fine: Inclosed Lands Protection Act 1901 (NSW), s 4. In the circumstances of this case, where the serious indictable offence committed within the premises added little to the overall criminality, the real criminality is, in my view, more properly understood in this context.

10. [39]

    It was open to the sentencing judge, in the exercise of his discretion, to place weight on considerations of punishment, retribution, denunciation, deterrence and the protection of the community. Even so, whatever weight might be given to these factors, the exercise of the sentencing discretion is limited by the requirement of proportionality between the objective seriousness of the offending and the sentence imposed. The principle of proportionality is “one of the pillars of the law of sentencing, giving effect to a fundamental value underpinning the law that the punishment must fit the crime”: Veen v The Queen (No 2) (1988) 164 CLR 465 at 472; [1988] HCA 14; see also Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33; DS v R; DM v R (2022) NSWLR 82; [2022] NSWCCA 156 at [68].

11. [40]

    Had the applicant not had a criminal record for similar offending it is likely that a gaol sentence would not have been imposed: Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), s 5. Accepting that, as a result of the applicant’s record, and the consequent weight to be given to factors such as specific deterrence, a sentence of imprisonment was required I am of the view that the starting point of imprisonment for 3 years is disproportionate to the objective gravity of the offending. The sentence is, in my view, manifestly excessive.

Resentence

1. [41]

   Given my conclusion above it is necessary to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [42]

   Having regard to the damage to the property, both to the window and the laundry door, and the entry into the occupants’ home (while they were present), together with the applicant’s personal circumstances, including his lengthy criminal history and the commission of the offence in breach of conditional liberty, I am of the view that no sentence other than imprisonment is warranted: CSPA, s 5.

3. [43]

   I have regard to the applicant’s shocking background of deprivation. While the applicant is now 42 years of age, and has been before the courts on many occasions, that background remains relevant and is to be given full weight: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 23. That is not to say that the impact of that background is not, in this case, to an extent counterbalanced by the need for specific deterrence and the protection of the community. I would, however, ameliorate the weight to be given to retribution and denunciation.

4. [44]

   I would, but for the applicant’s plea of guilty, have imposed a sentence of imprisonment for 1 year and 10 months. Applying a discount of 25 percent for the applicant’s early plea of guilty, the appropriate sentence is, in my view, one of 15 months. In the circumstances, having regard to the commencement date I propose, that sentence will have expired. There is in these circumstances, no utility in imposing the sentence other than as a fixed term.

5. [45]

   Regrettably, it is not uncommon to be sentencing an offender for an offence the commission of which also constitutes a breach of a condition of parole. Typically, that parole is revoked as a result of (at least) the further offending with the result that the offender’s time in custody from the time of arrest is not referable solely to the matters to be sentenced, but is also attributable to the balance of parole then being served. When sentencing in such a situation, subject to the existence of some other non-parole period, a sentencing judge is restricted to imposing the sentence so as to commence on a date no later than the date of sentence: CSPA, s 47; R v Gray [2018] NSWCCA 241 at [66]; Browne v R [2023] NSWCCA 218 at [46]. The determination of the commencement date involves the exercise of discretion, the range of which is generally fixed by the date of arrest at one end, and the date of sentence at the other.

6. [46]

   In Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 Simpson J (as her Honour then was) considered a number of earlier authorities in this Court in relation to the determination of the commencement of a sentence where an offender is also serving a balance of parole for previous offences. Some of those earlier authorities suggested that, where an offender’s parole was revoked solely as a result of the further offending, a failure to fully backdate the new sentence involves impermissible double punishment. Other authorities suggested that an offender is entitled to a backdate only for presentence custody solely referable to the offence being sentenced, and thus not including any time spent in custody serving the balance of a parole period. Her Honour found that, between these two extremes, the prevailing view was that the matter is discretionary. Her Honour said (at [22]-[24]):

7. [47]

   Her Honour’s reasoning is a reflection of the fact that a single event can have two separate legal consequences. Thus, the revocation of parole and the imposition of a further sentence as a result of the commission of a further offence does not necessarily constitute impermissible double punishment. An offender’s conditional liberty in relation to the earlier offending ceases consequent on the failure to comply with a relevant condition. Parole is not revoked as a punishment. The punishment is set by the sentencing court. The State Parole Authority of New South Wales makes decisions with respect to the release of an offender on parole having regard to the safety of the community: Crimes (Administration of Sentences) Act 1999 (NSW) (“CASA”, s 135). While the considerations to be applied to decisions of the State Parole Authority to revoke parole pursuant to ss 170A and 171 of the CASA are not made explicit by the Act, the same overriding purpose should be assumed to apply.

8. [48]

   In the present case particular considerations arise as a result of the length of the proposed sentence, the length of the earlier sentence and the legislative provisions. I have observed above, the latest date from which the sentence could commence was the date of sentence. It has been observed that this can have arbitrary results, given the different factors, unconnected with the offending or the offender, which might impact on the date on which sentence is passed. Where there has been some delay, fairness to the offender may require a sentencing judge to “notionally determine at what point the respondent could reasonably be expected to have been sentenced, having regard to the date of his plea, and direct the sentence commence no later than that date”: R v Gray at [66] per Bathurst CJ; see also White v R [2016] NSWCCA 190; Browne v R.

9. [49]

   The applicant was arrested on the date of the offence, 5 July 2023 and committed for sentence on 7 February 2024. It is not clear what led to the delay in the applicant’s committal for sentence, but it was most likely primarily the result of the ordinary course of events under the Early Appropriate Guilty Pleas (EAGP) scheme (see Part 2, Division 2 of the Criminal Procedure Act 1986 (NSW)). However, having regard to the nature of the offending and the potential availability of disposition in the Local Court (including my view that the appropriate sentence is one which could have been imposed in the Local Court [1] ), it is relevant to observe that, had the applicant been dealt with in the Local Court it is likely the matter would have been dealt with far more quickly. Other considerations, discussed below, are, however, more significant in the present case.

10. [50]

    Commonly, when sentencing for a further offence committed during a parole period, it will be the case that the further offending is of a seriousness requiring a substantial sentence which will inevitably extend beyond the balance of parole on the earlier sentence. In such cases, backdating to the date of arrest will have the effect of the new sentence eclipsing what may be a significant period of parole, with a consequent unwarranted level of concurrency between the two sentences. That is not the present case. Here, given the length of the extant parole period, and the nature of the further offence, the new sentence was (and will be on resentence) subsumed within the balance of parole.

11. [51]

    The length of the parole period of the earlier sentence is such that no matter when the new sentence is specified to commence (within the statutory limitations), it will be served entirely concurrently with the earlier sentence. It is a matter for the State Parole Authority to determine whether, and what part of, the parole period of the earlier sentence during which the applicant is not serving a non-parole period for another offence, should be properly served in the community, or otherwise, in custody. As noted above, this decision is not concerned with punishment, the punishment for the earlier offences having been determined by the court that passed the sentence. Dating the sentence from a point after the revocation of parole has the effect of adding to the punishment suffered by the offender as result of the present offence. That is, it has the effect of taking the decision as to whether the parole period for the earlier sentence should be served in custody or on parole out of the State Parole Authority’s hands for a period equal to the period between the date of revocation and the date on which the new sentence has been ordered to commence.

12. [52]

    In arriving at my conclusion above, I have been mindful of the general considerations which apply when imposing a further sentence to be served concurrently with an earlier sentence. This Court (Spigelman CJ, Whealy and Howie JJ) in R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13] said:

13. [53]

    That is of course not every case. The Court in R v MMK went on to observe (at [14]):

14. [54]

    In explaining the particular result in that case, their Honours said (at [15]):

15. [55]

    To be clear, whether the present case is, or is not, one in which the earlier sentence “left no room for a further penalty” (R v MMK at [14]) as a result of the application of common law sentencing principles, including totality, is not the issue. Rather, as discussed above, the legislative provisions operate in the circumstances here to require that the new sentence be served entirely concurrently with the parole period of the earlier sentence. As I have explained, it should be left to the Parole Authority to determine what part of that parole period (during which the applicant is not serving a mandatory custodial period for the present offence) should be served in the community. The sentence should date from the date of the applicant’s arrest, 5 July 2023.

Proposed orders

1. [56]

   I propose the following orders:

   1. (1)

      Grant leave to appeal;

   2. (2)

      Allow the appeal;

   3. (3)

      Quash the sentence imposed by Fitzsimmons SC DCJ on the applicant in the District Court on 9 May 2024. In lieu thereof, sentence the applicant to imprisonment for a fixed term of 15 months, commencing on 5 July 2023 and expiring on 4 October 2024.

2. [57]

   The earliest date on which the applicant became eligible to be released was 4 October 2024. I note that the applicant remains in custody as a result of the sentence imposed on him in the District Court on 25 May 2018. Any release to parole with respect to that sentence is a matter for the State Parole Authority.

3. [58]

   FAULKNER J: For the reasons that his Honour gives, I agree with the orders proposed by Dhanji J.