Harris v R

1. [1]

   BEECH-JONES CJ at CL: This is an application for leave to appeal from a sentence imposed for dishonesty offences. The essence of the complaint on appeal is that the sentencing judge erred in his approach to the cumulation of the sentence to an existing sentence being served by the applicant. For the reasons that follow, I accept that his Honour so erred. I would allow the appeal and resentence the applicant.

The Sentence and the offences

1. [2]

   The applicant pleaded guilty at the earliest opportunity to six offences of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and two offences of attempting to do the same. The maximum penalty for an offence under s 196E(1)(b) is 10 years imprisonment. It does not carry a standard non-parole period.

2. [3]

   On 23 May 2022, his Honour Acting Judge Walmsley SC sentenced the applicant to an aggregate term of 3 years imprisonment commencing on 4 June 2022 and expiring on 3 June 2025 with a non-parole period of 2 years. For each of the six offences under s 192E(1)(b) his Honour specified an indicative sentence of 12 months. For the two attempted contraventions of the provision, his Honour specified an indicative sentence of 10 months (Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b); the “Sentencing Act”).

3. [4]

   Tendered before his Honour was an agreed statements of facts concerning the offences. In summary, as a response to the 2019−2020 New South Wales bushfires, a program for the making of grants was established to provide assistance to affected small businesses. Amongst other criteria, an applicant had to own a small business, possess an Australian Business Number (“ABN”), be located in an area relevantly affected by the bushfires and have suffered a decline in revenue of 40% or more in a three-month period. Applications for grants were made online. An applicant for the grant was required to enter their identity details, business address and ABN numbers as well as verify the truth and accuracy of the information that was provided. Due to the volume of applications and urgency of the situation, the information provided was generally not verified.

4. [5]

   Between 1 April 2020 and 26 May 2020, the applicant lodged eight online applications for grants. Each application was made in his own name but other information varied including his residential address and the address at which he conducted a cleaning business. He provided a different ABN number and bank account number for each application. He received six grants of $10,000 each. The obtaining of each grant in these circumstances was an offence under s 192E(1)(b) of the Crimes Act. For one of the attempt offences, he sought a grant of $20,000 but was unsuccessful. For the other attempt offence, he sought of a grant of $10,000 but was unsuccessful.

The Sentencing Judgment

1. [6]

   The sentencing judgment is concise. After summarising the facts of the offending, his Honour described each offence as “objectively serious” and “serious examples” which involved “a degree of sophistication and planning”, though the attempt offences “were slightly less serious examples”. His Honour found that the applicant was “motivated by greed”.

2. [7]

   As at the time of sentencing the applicant was 25 years of age. His Honour described his criminal history as “fairly lengthy”. It includes convictions for 15 offences of dishonestly obtain property by deception for which he received an aggregate sentence of 8 months in 2017 with a non-parole period of 4 months. His Honour also noted that:

3. [8]

   His Honour then recorded that a discount of 25% was afforded on account of the applicant’s pleas of guilty. His Honour ascertained the applicant’s personal history from an affidavit of the applicant’s girlfriend and a report from a psychologist which were both prepared for other proceedings. His Honour described the applicant’s background as follows:

4. [9]

   His Honour noted that the applicant and his partner had a son who was born when the applicant was 18 years of age. His Honour noted that his partner was supportive of him. His Honour stated that he was “cautious” about whether the applicant was remorseful and his “rehabilitation prospects generally”. After specifying the indicative sentences, his Honour stated:

5. [10]

   The “other sentences” to which his Honour referred is noted above (at [7]). This sentence was imposed for two offences of aggravated breaking and entering, three offences of driving while his licence was cancelled, driving a vehicle without the consent of the owner, entering a dwelling in company with intent to commit an indictable offence, destroying property by fire and not stopping during a police pursuit. The facts of those offences were not provided to the sentencing judge or this Court, although based on the applicant’s criminal record it appears that they were committed on various days between December 2019 and May 2020. Implicit in the structure of the sentence for those offences is that a finding of special circumstances was made and reflected in the ratio of the non-parole period to the total sentence being 56%. Neither Acting Judge Walmsley SC nor this Court was provided with the sentencing judgment setting out the basis for such a finding.

The Appeal

1. [11]

   The sole ground of appeal is that the sentencing judge erred in applying the principle of totality when sentencing the applicant for the subject offences.

2. [12]

   The written submissions in support of this ground noted that the ratio of the non-parole period of the sentence imposed by Acting Judge Walmsley SC to the total sentence was two-thirds. However, when considered with the applicant’s existing sentence, the ratio of the total minimum period the applicant must serve in custody (being the four-year period from 4 June 2020 to 3 June 2024) to the total combined sentence (being the five-year period from 4 June 2020 to 3 June 2025) is 80%.

3. [13]

   The applicant’s written submissions noted that the principle of totality is capable of application where an offender is serving an existing sentence and is later sentenced by a different court (citing Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; “Mill” and Deakin v R [2014] NSWCCA 121 at [94]). The submission noted that, in those circumstances, the “application of totality is practically achieved by notionally sentencing an offender as if all the sentences were being imposed at once” (see Mill at 66).

4. [14]

   These propositions can be accepted, although the approach in Mill is usually directed to the circumstance where a court is imposing a sentence for an offence or set of offences that are related, usually by being similar in nature and close in time, to an offence or set of offences for which the applicant has already been sentenced and which has often been served (see Haak v R [2022] NSWCCA 28 at [14]−[20]; Wu v R [2011] NSWCCA 102 at [53]). In Mill, the offender committed three armed robberies within a six-week period in two different states and was sentenced in one state long after he had been sentenced in another state (Mill at 61 and 66). The only course available to the sentencing court in Mill was “to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody” (Mill at 67).

5. [15]

   It is doubtful that the approach in Mill is applicable in this case as there was nothing to suggest any connection between the two sets of offences, save that it appears that they were committed around the same time. Even so, as the applicant was still serving his existing sentence, the necessity to consider imposing wholly or partially concurrent sentences on account of totality still pertains. This is so because it is necessary to avoid the “risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two [sets of] offences … regardless of whether the two [sets of] offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality” (Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J). In this case, his Honour had regard to the principle of totality and made the sentence the subject of this application run concurrently with three months of his existing non-parole period for the other offences. Leaving aside any consideration of the proportion that his combined non-parole period bore to his combined sentence, it was not demonstrated that his combined sentence exceeded what is known about the total criminality of the two sets of offences.

6. [16]

   The applicant’s written submissions also relied on various authorities in this Court concerning the effect of cumulated sentences on the ratio between the total minimum period an offender must serve in custody and the total length of their sentence. Subsection 44(2B) of the Sentencing Act provides that the term of the sentence that will remain after the non-parole period set for an aggregate sentence must not exceed one-third of the non-parole period unless the court decides that there are special circumstances for it being more. The sentencing judge acted consistently with this provision in that his Honour expressly found there were special circumstances and imposed a sentence whereby the term of the sentence after the non-parole period was half of the non-parole period. However, the present focus is the combined effect of the two aggregate sentences (being the existing sentence and sentence the subject of this application) given that the ratio of the combined non-parole period to the combined sentence is 80%.

7. [17]

   One part of the Crown’s submissions was to the effect that there is no legal obligation on a sentencing judge who is cumulating sentences to maintain a ratio of three-quarters between the combined non-parole period and combined sentence. This can also be accepted but is beside the point. The authorities in this Court establish that, if a sentence judge imposes a sentence that cumulates upon an existing sentence such that the ratio of the total minimum period the offender must serve in custody compared to the total length of their sentence exceeds three-quarters to a substantial extent, then they must advert to that circumstance. In Lonsdale v R [2020] NSWCCA 267 at [65]−[66], N Adams J and I endeavoured to summarise the effect of these cases as follows:

8. [18]

   The rationale for the reasoning in these cases has not been explored. It may be that it reflects a specific instance of the application of the totality principle as the applicant in this case assumed. It may be that these cases are implicitly seeking to give effect to a perceived policy of provisions, such as s 44(2) and (2A) of the Sentencing Act, by ensuring there is an adequate period of supervision of an offender after their release following the expiry of their non-parole period.

9. [19]

   It is not necessary to consider this further because ultimately the submissions of both parties on this aspect of the appeal 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. On the one hand, it is clear that the sentencing judge was aware of the potential for the sentence his Honour was imposing to yield a disproportionate ratio between the combined non-parole period and the total combined sentence. Thus, his Honour set out the commencement and end dates of the existing sentence, referred to “totality and accumulation”, and made a finding of special circumstances “because of the fact that [the applicant] was serving other sentences”. Nevertheless, I am satisfied that his Honour did not appreciate that the effect of the sentence imposed was to produce a ratio of the combined non-parole period to the total combined sentence that substantially exceeded three-quarters (i.e. 80%). As noted, the ratio of the non-parole period to the total term of the applicant’s existing sentence was 56%. Even though Walmsley ADCJ was not provided with the sentencing judgment setting out the basis for that ratio, I consider it inherently improbable that his Honour intended to move from a ratio which was far less than the starting point of three-quarters to 80%, especially when his Honour was making his own finding of special circumstances.

10. [20]

    In these circumstances, I am satisfied that his Honour erred either in the fixing of the commencement date, the selection of the non-parole period or both. It is not necessary to determine whether his Honour’s error falls within the terms of the ground of appeal because the substantive issue of the proportion between the total minimum period that the applicant must serve in custody and the total length of his sentences was fully debated between the parties.

11. [21]

    I would grant leave to appeal against sentence and uphold the appeal.

Resentence

1. [22]

   As error has been found, the Court must exercise the sentencing discretion afresh (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). There was no challenge to any of the findings made by his Honour described above. So far as the applicant’s subjective case is concerned, no submission was made to the sentencing judge to the effect that the applicant’s moral culpability for the offending was reduced on account of his dysfunctional upbringing (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). No such submission was made in this Court. Even so, the applicant’s subjective case was and is, in some respects, strong. He is still relatively young and has pro-social support from his partner and responsibilities for his son. The sentencing judge’s caution about the applicant’s prospects of rehabilitation was understandable given the crimes he committed and his previous history of fraud. Nevertheless, being cautious about an offender’s prospects of rehabilitation is not the same as discounting them.

2. [23]

   Affidavits were read in this Court on the “usual basis” (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]). In his affidavit, the applicant stated that he works seven days a week in the dispatch section of the prison bakery. He has undertaken courses in performing high risk work and operating a forklift. He has also completed the Equips Addiction Program. Since he was incarcerated, his father passed away. He has only seen his son on a few occasions but speaks to his partner every day. The applicant stated that on his release he wishes to live with his family and work in “concreting or go into warehousing”.

3. [24]

   In December 2022, the applicant received a prison infringement for possession of tobacco. The applicant said he picked up a “bumper” (i.e. a rolled cigarette made from leftovers) he found on the ground. An affidavit from the applicant’s solicitors attached certificates confirming his completion of the courses nominated by the applicant. The solicitor annexed a letter from his partner confirming that she is in constant communication with him. She states that she has observed positive changes in his approach to work and life generally. This material suggests that there is some basis to be less cautious than the sentencing judge about the applicant’s prospects of rehabilitation.

4. [25]

   As noted, his Honour sentenced the applicant in May 2022. His Honour did not advert to the potential for hardship to the applicant arising from being subject to pandemic lockdowns, presumably because the effects of the pandemic were perceived to be declining. The affidavit material confirms that there have been 18 days of lockdowns since June 2022 including one continuous week of lockdown. There was a debate in the affidavit material about the severity of the effect of a lockdown on prisoners such as the applicant which is not possible to resolve. I do not consider that the applicant’s experience with lockdowns from May 2022 to date warrants much consideration in the re-exercise of the sentencing discretion.

5. [26]

   In relation to resentencing, the applicant’s counsel submitted that this Court should be guided by the ratio that the non-parole period for the applicant’s previous sentence bore to its total length i.e. 56%. In circumstances where the reasons for the finding of special circumstances were not before this Court, that guidance can only be very limited.

6. [27]

   In resentencing the applicant I reach the same view as the sentencing judge concerning the indicative sentences. However, having regard to totality and the updated material, I consider the appropriate head sentence to be a term of imprisonment of 2 years and 10 months. To accommodate the various considerations canvassed in this judgment, I propose the sentence commence one month later than the sentence imposed by Acting Judge Walmsley SC, namely 3 July 2022. I propose a non-parole period of 18 months. Under the sentence I propose, the ratio of the non-parole period to the total head sentence is just under 53%. If this sentence is imposed then the ratio of the combined non-parole period (43 months) to the combined total sentence (59 months) will be just under 73%. I find special circumstances accordingly.

Proposed Orders

1. [28]

   At the hearing of the application an interim order was made under s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW). It is necessary to set aside that order and replace it with a specific order directed to certain parts of the affidavits.

2. [29]

   I propose the following orders:

3. [30]

   YEHIA J: I have had the benefit of reading the draft judgment of Beech-Jones CJ at CL. With these additional brief remarks, I agree with the proposed orders and his Honour’s reasons. A finding of special circumstances inevitably carries with it an adjustment downwards of the non-parole period. Where the structure of a combined sentence results in a non-parole period that exceeds the statutory ratio, the sentencing judge should clearly advert to the fact that the intended result of accumulating the sentences was that the ratio of the total effective non-parole period exceeded 75% of the total.

4. [31]

   WEINSTEIN J: I agree with Beech-Jones CJ at CL. I also agree with the additional remarks of Yehia J.