Sonter v R

1. [1]

   LEEMING JA: My reasons for joining in the orders of the Court on 12 September 2018 that there be a grant of leave to appeal but that the appeal be dismissed, accord with the reasons of Bellew J with which I agree.

2. [2]

   MCCALLUM J: I also agree with the reasons stated by Bellew J, which reflect my reasons for joining in the orders disposing of the application.

3. [3]

   BELLEW J: On 10 February 2017 Michael John Sonter (“the applicant”), together with two co-offenders, Shae Hand and Stephen Andrew Gordon, appeared before his Honour Judge Colefax SC for sentence in the District Court. On that occasion, the applicant adhered to pleas of guilty which he had entered in the Local Court to the following offences which were committed on 11 May 2015:

4. [4]

   The maximum penalty for the offending in count 1 is 10 years imprisonment, and a standard non-parole period of 4 years imprisonment is prescribed. The maximum penalty for the offending in count 2 is also 10 years imprisonment, however no standard non-parole period is prescribed for that offence.

5. [5]

   At the time of the offending, the applicant was on parole in respect of a sentence imposed at the Gosford Local Court on 6 January 2015. Upon his arrest for the present offending on 11 May 2015, he was immediately taken into custody, and his parole was revoked. He served the balance of his parole from 12 May 2015 to 5 May 2016. He thereafter remained in custody solely in respect of the present offending.

6. [6]

   In respect of count 1, his Honour’s indicative sentence was 3 years imprisonment, taking into account a reduction of 25% for the applicant’s early plea of guilty. In respect of count 2, his Honour’s indicative sentence was 2 years and 7 months imprisonment, again taking into account a reduction of 25%.

7. [7]

   His Honour imposed an aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months, to date from 1 January 2016 and to expire on 30 April 2019. He fixed a balance of term of 1 year and 2 months imprisonment, to date from 1 May 2019 and to expire on 30 June 2020. The ratio between the non-parole period and the total sentence imposed was 74%.

8. [8]

   However, as previously noted, the applicant had commenced to serve the balance of his parole 12 May 2015. Accordingly, his total effective sentence commenced on that day and extended to 30 June 2020. The non-parole period imposed by the sentencing judge represented 77.2% of that total effective sentence.

9. [9]

   The applicant sought leave to appeal against this sentence on the single ground of appeal set out below, namely that the sentencing judge erred in not properly considering totality when setting the non-parole period. At the conclusion of the hearing of the appeal on 12 September 2018, the Court made orders granting leave to appeal, and dismissing the appeal. My reasons for joining in those orders now follow.

THE FACTS OF THE OFFENDING

1. [10]

   His Honour found the facts of the offending to be as follows (commencing at ROS 3):

The sentence proceedings

1. [11]

   In the course of the sentence proceedings the following exchange took place between counsel then appearing for the applicant and the sentencing judge (commencing at T26.3):

The reasons of the sentencing judge

1. [12]

   Having noted (at ROS 8) that the applicant’s offending was aggravated by the fact that he was on parole at the time, the sentencing judge said (at ROS 16):

2. [13]

   In setting out the indicative sentences (at ROS 19-20) his Honour said:

Submissions of the applicant

1. [14]

   Counsel for the applicant submitted that accumulation of sentences may constitute a proper basis for a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”): R v Simpson (1992) 61 A Crim R 58 at 60-61 per Hunt CJ at CL. He submitted that in a case such as the present, where the term of imprisonment imposed was cumulative upon an existing sentence, it was necessary for his Honour to adjust the relevant ratio so as not to impose a non-parole period which was greater than 75% of the total sentence. Counsel submitted that in these circumstances, the sentencing judge had erred in not making such adjustment.

Submissions of the Crown

1. [15]

   The Crown accepted that accumulation of sentences may be a proper basis for a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act. However, the Crown also pointed out that a finding of special circumstances is a discretionary one and that in order to make out the ground of appeal, it was necessary for the applicant to establish that the sentencing judge had committed a House v The King type error.

2. [16]

   Whilst accepting that the non-parole period imposed by his Honour in the present case exceeded 75% of the total effective term of imprisonment, the Crown submitted that a failure to provide reasons as to why this was so did not establish error because it was open to infer that the issue was considered by the sentencing judge. The Crown submitted, in particular, that it was evident from the proceedings on sentence, and from his Honour’s reasons, that his Honour was conscious of the history of the applicant’s incarceration, and the consequences of the commencement date of the sentence which he imposed.

3. [17]

   The Crown further submitted that in any event, the minor discrepancy between the statutory ratio of 75%, and that imposed by sentencing judge of 77.2%, was insufficient to establish error, and that such discrepancy should be regarded by this Court as being essentially compliant with s 44(2).

Consideration

1. [18]

   The ground of appeal as framed asserts that the sentencing judge did not properly consider the question of totality. However, it will be evident from the passage of the remarks on sentence set out at [13] above that his Honour expressly referred to that question. The only available conclusion is that his Honour specifically considered it. I am fortified in that conclusion by terms of the exchange which took place between his Honour and counsel then appearing for the applicant extracted at [11] above.

2. [19]

   However, the submissions advanced on behalf of the applicant went slightly beyond the strict parameters of the ground of appeal and effectively asserted that his Honour had erred in the exercise of his sentencing discretion by imposing a non-parole period which was in excess of 75% of the total effective sentence, and in failing to give reasons for doing so. I am not persuaded that such a complaint is made out.

3. [20]

   In Calhoun (a pseudonym) v R [2018] NSWCCA 150, the ratio between the non-parole period and the total sentence exceeded 81%. The applicant complained that the sentencing judge had erred in not acknowledging this ratio, and not explaining why it was warranted. Price J (with whom Bathurst CJ and Basten JA agreed) said (commencing at [30]):

4. [21]

   Having observed (at [35]) that the absence of an explanation as to why a ratio of more than 75% was set does not necessarily establish error, Price J made reference to the judgment of Howie J in SZ v R [2007] NSWCCA 19 where his Honour had observed (at [5]) that a sentence must bear a reasonable relationship with the objective seriousness of the offence. Price J concluded (at [42]) that he was not persuaded that the sentencing judge had overlooked the impact of the accumulation, or had failed to take it into account. He concluded that the sentencing judge had obviously regarded the non-parole period imposed as being the minimum period that the applicant should spend in custody in order to appropriately reflect the criminality of the offending.

5. [22]

   In GP v R [2017] NSWCCA 200 (referred to by Price J in Calhoun) the sentencing judge had imposed a sentence which was partially accumulated on a pre-existing sentence and which gave rise to the imposition of a non-parole period which was approximately 81.5% of the total sentence. Hamill J (with whom Macfarlan JA and Button J agreed) said (at [9]) that the issue was whether the sentencing judge was conscious of, or had adverted to, the proportion between the non-parole period and the total sentence, or whether the impact of the accumulation was inadvertent. His Honour noted (at [21]) that there was no absolute rule that an accumulated non-parole period must comprise 75% of the total sentence, nor was there any statutory requirement for reasons to be given where a non-parole period was greater than 75% of the total sentence. His Honour observed (at [21]) that there had been cases in which this Court had been able to infer that a sentencing judge had adverted to the impact of the accumulation: Tuivaga v R [2015] NSWCCA 145; Stoeski v R [2014] NSWCCA 161. His Honour concluded (at [22]) that the question was whether the record of proceedings lead to an inference that the matter was considered or adverted to by the sentencing judge.

6. [23]

   Although in the present case the sentencing judge did not specifically allude to the ratio between the non-parole period and the head sentence, he was obviously mindful of the relevant chronology of events, the fact that the applicant’s parole had been revoked, and that the applicant had served the balance of his parole following his arrest for the present offending. Moreover, and as I have already noted, his Honour specifically referred to the need to have regard to totality. It was in those circumstances that he set the commencement date of the sentence as he did. In my view, all of these factors point overwhelmingly in favour of a conclusion that his Honour considered the matter, and that the non-parole period he imposed was that which he considered appropriate to reflect the criminality of the applicant’s offending. In my view, there is no room for a conclusion that there was any oversight on the part of the sentencing judge. In these circumstances, it was not necessary for his Honour to specifically advert to the issue when imposing sentence.

7. [24]

   Moreover, the difference between the statutory ratio and that imposed by his Honour is marginally in excess of 2%. In McKittrick v R [2014] NSWCCA 128, a case in which the increase in the ratio was less than 2%, Simpson J (as her Honour then was) observed (at [37]) that whilst there is no requirement for reasons to be given where the non-parole exceeded 75% of the head sentence, it is usually considered appropriate that this course be taken. However, her Honour also noted (at [38]) that in that case the increase was less than 2% and that the sentences imposed achieved what the sentencing judge had intended to achieve. For the reasons I have previously set out, that is similarly the position in the present case.

8. [25]

   It follows that the ground of appeal is not made out.

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.