Duncan v R

STERN JA: I agree with Hamill J.

HAMILL J: Daniel John Duncan seeks leave to appeal against an aggregate sentence imposed in the District Court on 6 February 2025. He was sentenced by Judge Gallagher following his early pleas of guilty to four offences (or “sequences”) being two counts of possessing prohibited weapons (a taser and a set of knuckledusters) and two counts of supplying prohibited drugs (18.67 and 10.5 grams of methylamphetamine). Her Honour imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months.

The offences were committed in January and March of 2022 and, at the time of sentencing, the applicant was serving a pre-existing sentence imposed by a different judge (Judge Harris) on 9 May 2023 for an offence of armed robbery committed on 6 March 2022, that is six weeks after the weapons offences and about a week before the drug supply offences (not “five weeks” before the supply offences as stated at one stage in the sentencing judgment). I will refer to the sentence imposed by Judge Harris as “the armed robbery sentence”. In those circumstances, questions of totality, the appropriate commencement date of the sentence and the extent to which the sentence should be served concurrently with the pre-existing sentence, loomed large. Judge Gallagher ordered that the sentence be served largely concurrently with the armed robbery sentence. However, the commencement date and structure of the aggregate sentence had the effect of increasing the total effective sentence by 2 months and extended the pre-existing non-parole period by 6 months.

Her Honour found that there were “special circumstances” pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) justifying a parole period (balance of term) greater than one-third of the non-parole period. Because of the reasons provided for that finding, and the impact the sentence had on the total effective sentence (and continuous period of incarceration), the applicant argues that the sentencing Judge failed to give effect to the finding under s 44. Reflecting that contention, he raised a single ground of appeal:

To understand the submissions made in support of that ground, it is necessary to consider closely each of the sentences and non-parole periods, the commencement and expiry dates of each, and the proportion between the total effective sentence and non-parole period before and after the present sentence was imposed. To complicate matters further, the applicant also served a 6-month fixed term sentence in the period leading up to his arrest for the armed robbery offence. Before returning to the details of the various sentences and their interaction with each other, it is appropriate to set out the relevant facts, a chronology of the offending, and the details and results of the various sentencing proceedings.

On 25 January 2022, the applicant was subject to a traffic stop and police searched his vehicle. The officers located a black taser capable of firing two prongs and a set of black knuckledusters. At the time, Mr Duncan was subject to a weapons prohibition order. The possession of the taser, which was in working order, was sequence 1 and the possession of knuckledusters was sequence 2.

On 11 March 2022, police obtained a telephone intercept warrant and commenced monitoring Mr Duncan’s communications. On 12 March, he spoke with a person called Sam about the supply of a “half ball” of methylamphetamine for $450. Later that night the applicant supplied Sam with 1.75 grams of the drug for the price discussed. On 13 March, a similar transaction took place, this time for a “full ball” (3.5 grams) at the cost of $900. On 14 March, the applicant supplied 5.25 grams of methylamphetamine and was heard telling people on the ‘phone that he was staying at the Holiday Inn in Parramatta. On 15 March, police executed a search warrant on his room at the hotel. They located 18.67 grams of methylamphetamine, electronic scales and clear resealable plastic bags. The three discrete supplies totalling 10.5 grams constituted a “rolled up” charge in sequence 6 and the (deemed) supply of 18.67 grams of methylamphetamine was charged in sequence 5. On 7 December 2022, the applicant was arrested and charged with the drug offences.

Mr Duncan pleaded guilty in the Local Court and was entitled to, and ultimately received, a 25% discount from his sentence. There was a lengthy delay in sentencing which Judge Gallagher accepted resulted from the tardiness of the Prosecutor’s election to have the matter dealt with on indictment. As the sentencing Judge said, had there been no delay, the weapons and drug charges could have been dealt with by Judge Harris at the same time as the armed robbery offence. However, the proceedings on sentence were not conducted until 2 December 2024 and the case was adjourned for sentence on 6 February 2025.

The applicant has a criminal record dating back to 1993 when he was a child. His Children’s Court record included offences of assault and resisting police. His adult record includes several driving offences, drug offences, possession of prohibited weapons, goods in custody and one offence of dealing with proceeds of crime. In 2014, the applicant was sentenced to 9 years imprisonment with a 5 year and 5-month non-parole period for two armed robbery offences (with a third robbery offence taken into account in sentencing). After his release to parole in 2018, the applicant had ongoing brushes with the law and has been in and out of custody up until his arrest on 15 March 2022 in relation to the armed robbery offence.

Both of the weapons offences carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 5 years while the drug offences each attracted a maximum penalty of 15 years imprisonment.

Judge Gallagher assessed each of the offences as falling below the mid-range of objective seriousness. Her Honour was satisfied that Mr Duncan’s moral culpability was reduced because he experienced “profound deprivation as a child” and suffered from post-traumatic stress disorder arising from him being sexually abused at school and exposed to domestic violence at home. Her Honour was not satisfied that the applicant had good prospects of rehabilitation but thought those prospects might improve if he engaged in drug treatment on release.

When he stood to be sentenced the applicant was serving the armed robbery sentence. Apart from the date of that offence (6 March 2022) and the charges themselves, Judge Gallagher was provided with very little information about the facts and circumstances of that offence. The armed robbery sentence (5 years and 9 months imprisonment, with a non-parole period of 3 years and 9 months) was imposed on 9 May 2023 and backdated to commence on 15 May 2022. The non-parole period expired on 14 February 2026.

For the drug and weapons offences, Judge Gallagher imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months. After the application of the 25% discount for the early plea of guilty her Honour indicated the following individual prison sentences for the purpose of s 53A(2)(b) of the Sentencing Procedure Act:

The 4-year aggregate sentence included a healthy amount of notional accumulation, particularly in view of the temporal proximity between the weapons offences and the drug offences. In deciding on the non-parole period, her Honour found that there were special circumstances pursuant to s 44(2B) of the Sentencing Procedure Act and reduced what would have been a 3-year non-parole period to one of 2 years and 4 months.

Considering the nature of the weapons, the relatively small quantities of drugs involved and the extent of notional accumulation on the indicative sentences identified, the aggregate sentence was a severe one. However, there is no suggestion that it was excessive in all of the circumstances. Further, because of the commencement date of the sentence and the extent to which it is to be served concurrently with the armed robbery sentence, its total effect is to extend the applicant’s non-parole period by 6 months and his total effective sentence by 2 months.

After considering issues of totality, and noting the sequence of events between January 2022 (the weapons offences) and March 2022 (the armed robbery and drug offences), Judge Gallagher determined the aggregate sentence should commence on 14 April 2024. The non-parole period will expire on 13 August 2026 and the total sentence will expire on 13 April 2028.

As I have observed, the applicant was serving the armed robbery sentence when the sentence was imposed by Judge Gallagher. The armed robbery sentence in turn overlapped with an earlier 6-month sentence imposed at the Parramatta District Court following a successful sentence appeal. That fixed term was backdated and ordered to commence on 2 December 2021 and expire on 1 June 2022 although, as the facts of the present case demonstrate, Mr Duncan was at liberty during some of that period, at least until his arrest for the robbery on 15 March 2022. The commencement date was chosen to take into account the period of pre-sentence custody.

The slightly intricate chronology of the case leading to this 6-month sentence is as follows:

The custodial record shows that the applicant was released from prison on 28 January 2021, returned to custody on 27 February 2022 but released on bail later that day. He was arrested for the armed robbery offence on 15 March 2022 and bail was refused. He has been in continuous custody since that date although, as the foregoing chronology shows, the 6-month fixed term sentence was backdated to a period during which he was at liberty. The sentencing for the armed robbery occurred on 9 May 2023, the day after the severity appeal against the 6-month fixed term. The applicant was arrested for the weapons offences on 25 January 2022 (the day of the offence) and released that day. He was not charged with the drug offences until 7 December 2022 (9 months after they were committed), by which time he was on remand for the armed robbery offence.

In view of the confined nature of the ground of appeal, it is worth making some observations about the impact of this sentence on the applicant’s overall custodial situation and the way in which it altered the ratio between the total period of custody and the period on parole:

The applicant submitted that the sentencing Judge failed to give effect to the finding of special circumstances and that this was an inadvertent slip on her Honour’s part which resulted from the impact of the partial accumulation of the sentences. Ms Roy SC referred to the percentage proportions set out in the last paragraph and noted that the total non-parole period (whether it be 71.8% or 73.8%) was very close to the “statutory norm” of 75%. Senior Counsel pointed to the reasons for Judge Gallagher’s finding of special circumstances:

The applicant submitted that, if the objective of the adjustment was to provide a lengthy period on parole, it is odd that the result of the accumulation was to reduce the 2-year period on parole that existed under the armed robbery sentence to a period of 1 year and 8 months under the accumulated sentence. This peculiarity suggested that the sentencing Judge inadvertently failed to give effect to her intention to provide the applicant with an extended period of supervision at the end of what will have been a lengthy period of continuous incarceration.

Ms Roy relied on cases where errors were made in similar circumstances namely, (i) the proportion of the non-parole period to the total sentence was affected (increased) by the accumulation upon a pre-existing (or simultaneously imposed but unrelated) sentence and, (ii) the finding of special circumstances was based, not on the accumulation, but on matters such as the need for an offender to have support on their return to the community. An example of such a case was Sabongi v R [2015] NSWCCA 25; (2015) 249 A Crim R 167 where I said (with the concurrences of Hoeben CJ at CL and Johnson J):

Ms Roy also relied on the judgment of Beech-Jones CJ at CL (Yehia and Weinstein JJ agreeing) in Harris v R [2023] NSWCCA 44. His Honour said at [15] that, although there was “nothing to suggest any connection between the two sets of offences” it remained the case that “the applicant was still serving his existing sentence, [so] the necessity to consider imposing wholly or partially concurrent sentences on account of totality still pertains.” In that case, the question “reduced to whether or not it could be concluded that the sentencing judge considered or adverted to the fact that the effect of accumulating the sentences was that the ratio of the total effective non-parole period exceeded 75% of the total sentence”: Harris v R at [19].

The respondent submitted that the record of the proceedings in the District Court did not support the proposition that the sentencing Judge failed to advert to the practical effect of the accumulation. Reference was made to the explanation that Judge Gallagher provided to Mr Duncan at the conclusion of the remarks on sentence and to the simplicity of the accumulation with its obvious impact on the existing sentence and non-parole period. Counsel took the Court to cases where this Court has rejected similar arguments: see, for example, Islam v R [2020] NSWCCA 236 and Al Shamari v R [2025] NSWCCA 236. The respondent argued that the period of 1 year and 8 months on parole remains substantial and sufficient to serve the purpose for which the sentencing Judge made the finding of special circumstances. On the respondent’s submission, the Court could not infer on the record of proceedings that Judge Gallagher was not fully aware of the impact of the accumulation.

Counsel for both parties provided helpful analyses of a number of the authorities and agreed that, as in the case of Harris v R, the issue on the appeal reduces to the question of whether the Court is satisfied that the 4 month reduction in the parole period (and resultant increase in the percentage proportion of the non-parole period to the total sentence) was an inadvertent result of the accumulation of the sentences or whether, as the respondent submitted, her Honour must have been conscious of those matters.

Cases concerning the provision in s 44(2) of the Sentencing Procedure Act, and its precursor in s 5(2) of the Sentencing Act 1989 (NSW), have been coming before this Court regularly and frequently for the last 25 years. With the advent of “aggregate” sentences, introduced by s 53A of the Sentencing Procedure Act, s 44(2B) reflects the terms of s 44(2). Section 44 provides:

The present case echoes a recurring theme running through many of the cases. That is, it is a case where the accumulation of the sentence has a natural impact on the structure of the sentence and on the ratio or proportion between the non-parole period and the total sentence. While some general principles can be stated, the application of those principles will turn on the facts of the case and what the sentencing judge communicates through their sentencing judgment or in explaining the sentence. A survey of the large body of authorities shows that there is some tension between the outcomes in some of the cases decided by this Court. However, on close examination, there is usually some subtle difference in the language employed by the primary judge, or in the arithmetic and structure of the sentence, which explains any apparent inconsistencies in the outcomes.

Rather than undertaking a comprehensive review, I will attempt to collect some general and established principles in short form:

The respondent argued that the authorities can be divided into cases where there was accumulation in a single sentencing exercise and those where a judge is accumulating upon an existing sentence. I am not satisfied that such a clear and strict dichotomy exists. Cases such as R v Close and R v LWP [2003] NSWCCA 215 do not support the view that there is any difference in principle between a series of sentences imposed at the same time and a sentence accumulated upon an existing sentence. In neither circumstance does s 44(2) of the Sentencing Procedure Act have any “direct application” (see Lonsdale v R at [65]) and the principle of totality applies equally in both situations. In both circumstances, the judge must be seen to “advert” to the impact of the accumulation and to determine the commencement date, and the extent of any adjustment to the non-parole period, by reference to the principle of totality. As the High Court explained in Mill v The Queen (1988) 166 CLR 59 at 66-67; [1988] HCA 70 at [16]:

While Mill v The Queen involved an extensive delay caused by sentencing in separate jurisdictions, the approach to totality explained in that judgment is generally accepted to be the proper approach: see, for example, Pearce v The Queen (1998) 194 CLR 610 at 623-624; [1998] HCA 57 at [40]-[48] and footnote 55 and R v Close at 747-748.

In the present case, there is no suggestion that Judge Gallagher failed to apply the principle of totality or that her Honour fell into error in doing so. The only question is whether the variation in the proportion of non-parole period to total sentence resulting from the accumulation on the armed robbery sentence was inadvertent. Her Honour made the following remarks on the issue of the accumulation and application of the totality principle:

After formally imposing the sentence, Judge Gallagher explained the practical effect of her orders to Mr Duncan:

It may have been preferable for her Honour to state plainly that she was aware that the proportion of the non-parole period to the head sentence would only be a little below 75%, an omission that sometimes leads this Court to intervene in such cases, and to acknowledge that the length of the potential period on parole was reduced by a few months as a result of the accumulation. However, it was not necessary for the sentencing Judge to do so in circumstances where her Honour’s explanation to the applicant included specifically the impact the sentence would have on the existing sentence.

On an examination of the whole of the record, I am not satisfied that Judge Gallagher failed to advert to the effect of the accumulation on the ratio between the non-parole period and the total sentence. Nor, in the particular circumstances, is it established that her Honour erroneously and unwittingly allowed the accumulation to nullify her finding of special circumstances. The record of the proceedings in the District Court does not establish that her Honour failed to give effect to her intentions by adjusting the structure of the sentence by reference to the special circumstances arising from the applicant’s need for an extended period of supervision because of his drug problems. The reduction in the parole period was relatively small and the effect of the accumulated sentence was to allow the applicant (subject to decisions of the State Parole Authority) a period of 1 year and 8 months on parole. I am satisfied that Judge Gallagher was conscious of these things and concluded that the length of parole was sufficient in the circumstances of the case. While the minds of sentencing judges may differ on that question, there was no legal error in her Honour reaching that conclusion.

For those reasons the single ground of appeal, while arguable and convincingly argued, is not established.

I would grant leave to appeal against the sentence but dismiss the appeal.

HUGGETT J: I agree with Hamill J.