Calhoun (a pseudonym) v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.

2. [2]

   BASTEN JA: I agree with Price J.

3. [3]

   PRICE J: The applicant pleaded guilty in the Local Court on 16 October 2014 to the following charges:

   1. (1)

      Assault with intent to rob armed with an offensive weapon causing grievous bodily harm on 1 May 2013, contrary to s 98 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. This offence may be conveniently referred to as the “Rydalmere incident”;

   2. (2)

      Discharge firearm with intent to cause grievous bodily harm on 25 July 2013, contrary to s 33A of the Crimes Act, which carries a maximum penalty of 25 years and a standard non-parole period of 9 years; and

   3. (3)

      Specially aggravated detain for advantage on 25 July 2013, contrary to s 86(3) of the Crimes Act, which carries a maximum penalty of 25 years imprisonment.

4. [4]

   The offences that occurred on 25 July 2013 may be conveniently referred to as the “Smithfield incident”.

5. [5]

   Upon being committed for sentence to the District Court, the applicant adhered to his pleas. He asked Yehia SC DCJ (“the judge”) to take into account three matters on a Form 1 when sentencing him for the Rydalmere incident. These matters were:

   1. (1)

      Steal motor vehicle (contrary to s 154F of the Crimes Act);

   2. (2)

      Take and drive conveyance without consent of the owner (contrary to s 154A(1)(a) of the Crimes Act); and

   3. (3)

      Destroy property by fire (contrary to s 195(1)(b) of the Crimes Act).

6. [6]

   Her Honour was also asked to take into account a further three matters on a Form 1 when sentencing the applicant for the offence contrary to s 33A of the Crimes Act. These matters were:

   1. (1)

      Steal motor vehicle (contrary to s 154F of the Crimes Act);

   2. (2)

      Drive conveyance without consent of the owner (contrary to s 154A(1)(b) of the Crimes Act); and

   3. (3)

      Destroy property by fire (contrary to s 195(1)(b) of the Crimes Act).

7. [7]

   The applicant had an unfavourable prior criminal history which included sentences of imprisonment for offences of robbery whilst armed with a dangerous weapon that were imposed in the District Court in 2002 and 2007. The judge remarked that “[the applicant’s] record of previous convictions is extensive and includes matters of serious violence, including a matter involving the use of a firearm”. [1]

8. [8]

   A discount of 50% was allowed by the judge for the utilitarian value of the pleas of guilty and the substantial assistance he had provided to authorities.

9. [9]

   The indicative sentences by her Honour were:

   1. (1)

      For the assault with intent to rob whilst armed with an offensive weapon causing grievous bodily harm and taking into account the Form 1 matters (Rydalmere incident), 6 years imprisonment with a non-parole period of 4 years 6 months;

   2. (2)

      For the discharge firearm with intent to do grievous bodily harm and taking into account the Form 1 matters (Smithfield incident), 7 years imprisonment with a non-parole period of 5 years 3 months; and

   3. (3)

      For the specially aggravated detain for advantage (Smithfield incident), 6 years imprisonment.

10. [10]

    The judge determined that, as the Smithfield offences were part of one course of criminal conduct, the indicative sentences for those offences were to be wholly concurrent. Her Honour said that, as the Rydalmere offence constituted a discrete occasion of serious criminality, there was to be a significant measure of accumulation in the aggregate sentence.

11. [11]

    At the time of the applicant’s offending he was serving a term of parole for the offence of robbery whilst armed with a dangerous weapon, which had been imposed in the District Court on 10 September 2007. He was released to parole on 24 September 2011 after serving a non-parole period of 3 years 3 months. His parole was revoked on 11 October 2013, the day after his arrest for both the Rydalmere and Smithfield incidents. His balance of parole expired on 24 December 2014.

12. [12]

    The judge found as a significant aggravating factor that the applicant was on parole at the time of his offending.

13. [13]

    Her Honour gave consideration as to whether the sentence she imposed should be partially concurrent with the balance of parole. Her Honour was satisfied that the appropriate course was to wholly accumulate the sentence on the balance of parole.

14. [14]

    In declining to find special circumstances, so as to vary the statutory ratio between the balance of term and the non-parole period, her Honour said:

15. [15]

    The applicant was sentenced to an aggregate term of 9 years imprisonment, commencing on 24 December 2014 and expiring on 23 December 2023, with a non-parole period of 6 years 9 months expiring on 23 September 2021.

16. [16]

    The applicant sought leave to appeal against the sentence on two grounds, but as the second ground was not proceeded with it is only necessary to state the remaining ground, which contends that, in failing to find special circumstances in accordance with s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour failed to have regard to the effect of accumulating, wholly, the sentence to be imposed upon a pre-existing sentence.

17. [17]

    As the focus of the appeal is confined to this issue, and the judge’s findings of fact are not challenged, it is unnecessary to refer at length to the facts of the Rydalmere and Smithfield incidents.

The facts of the offences

1. [18]

   As to the Rydalmere incident, the victim was assaulted and shot after he had left a nightclub in Rydalmere. He had been walking back to his vehicle when two males ran towards him. Both were wearing face coverings and gloves. The victim was shot by one of the assailants in the ankle. After the victim fell to the ground and tried to crawl back to the nightclub for help, he was repeatedly kicked by both assailants before being shot three more times in the torso. After rummaging through the victim’s car, the assailants ran to a stolen vehicle being driven by a third male and drove away.

2. [19]

   The agreed statement of facts recorded that by virtue of the applicant’s plea, he admitted knowledge of the loaded firearm prior to the commission of the offence and was to be sentenced on the basis that he contemplated the possible discharge of the firearm during the course of the robbery. The judge said in her remarks on sentence that “[h]e therefore contemplated the possibility of the infliction of grievous bodily harm”. [3]

3. [20]

   The judge stated that she could not be satisfied beyond reasonable doubt as to the identity of the shooter, and thus could not sentence the applicant on the basis that he was the shooter. However, her Honour was not satisfied on the balance of probabilities that he was the getaway driver. Her Honour remarked that, “[t]his is one of those cases where neither of the competing possibilities is known”. [4]

4. [21]

   The judge noted that there was a degree of planning and coordination involved in the commission of the offence, and that the applicant took part in the reconnaissance of the premises and its surrounds the day before the shooting. Her Honour also found that the applicant was directly responsible for the theft of the motor vehicles and their destruction. [5]

5. [22]

   As to the Smithfield incident, the victim was detained, assaulted, and shot after the applicant formed the belief that the victim had reneged on an agreement to purchase a firearm on his behalf. The applicant made a number of phone calls to friends and relatives asking for assistance in dealing with the victim, after which it was arranged for the applicant and the co-offenders to surprise the victim at a pub in Smithfield. While the victim was seated in his vehicle outside the pub, one of the offenders shot him in the thigh. He was then dragged out of the vehicle and repeatedly punched and kicked while on the ground. The offenders threw the victim into the back seat of his car and drove away with him, during which the applicant took $2000 from him and threatened to shoot the victim’s other leg.

6. [23]

   The judge was satisfied that the applicant was the principal in this offending. [6] He had organised his associates to lure the victim to the location where he would be intimidated, assaulted and shot. Her Honour found that the applicant’s “motivation was to teach the victim a lesson for what he perceived to be a ‘rip off’ by the victim”. [7]

Ground 1: In failing to find special circumstances in accordance with s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), her Honour failed to have regard to the effect of accumulating, wholly, the sentence to be imposed upon a pre-existing sentence.

1. [24]

   The applicant submitted that, through inadvertence, the effect of the fixing of the commencement date at the conclusion of the pre-existing sentence was not considered by the judge. The applicant argued that her Honour ought to have found special circumstances and adjusted the non-parole period of the aggregate sentence so as to ensure that the total minimum period spent by the applicant in custody was 75% of the total maximum penalty.

2. [25]

   When the total period of custody, including the period resulting from the revocation of the applicant’s parole for the other offence was taken into account, the applicant pointed out that the ratio between the head sentence and non-parole period was over 81%. The applicant complained that at no stage did the judge acknowledge this greater ratio, nor explain why such a ratio was warranted. Particular reference was made to GP v R [8] (“GP”).

3. [26]

   The Crown submitted that the judge’s discretion had not miscarried. The Crown contended that the judge turned her mind to the appropriate minimum non-parole period as required and determined that it should be 75% of the index sentence, notwithstanding that it was to be served entirely accumulated on the balance of the parole period.

4. [27]

   The Crown further argued that there is no requirement for a judge to address the question of accumulation on a pre-existing sentence when the statutory ratio is set to ultimately exceed 75%. The Crown relied on the decisions of this Court in Abdelmeseeh v R; [9] Stoeski v R; [10] and Tuivaga v R [11] (“Tuivaga”); to contend that it is not an error for the judge to fail to have regard to the effect on the ratio of the accumulation on a pre-existing sentence.

5. [28]

   The Crown argued that the applicant’s case may be distinguished from GP, because the judge turned her mind to the question of special circumstances, including the issues of accumulation and institutionalisation. It was submitted that references to those issues indicate that the judge was “cognisant of and appreciative of” the fact that accumulation on a pre-existing sentence, including a period of revoked parole, could be included in her Honour’s consideration of special circumstances.

6. [29]

   The Crown disagreed with the applicant’s calculations. The Crown submitted that taking into account the accumulation of the instant sentence on the balance of parole, the overall ratio between the non-parole period and the total term was 77.9%. According to the Crown, for the statutory ratio to apply across the overall sentence, the non-parole period would be 7 years 7 months and 25 days, whereas the current non-parole period equates to 7 years 11 months and 14 days, a reduction of approximately 3 months 19 days.

7. [30]

   There are a number of matters that are uncontroversial and may be shortly stated. The accumulation of a sentence upon a pre-existing sentence may constitute special circumstances. [12] A finding of special circumstances is a discretionary finding of fact, [13] and it is necessary for the applicant to establish error on the part of the judge in accordance with the principles in House v The King [14] (“House”). The ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence. [15] Section 44(2) of the Crimes (Sentencing Procedure) Act does not oblige a judge to give reasons for setting a non-parole period that is more than 75% of the total sentence. However, it is advisable for a judge to explain why a ratio in excess of 75% was selected to avoid an inference that the matter was not considered. [16] As Hoeben CJ at CL observed in Maglovski v R [17] at [28], the need for the judge to explain why a ratio in excess of 75% was selected usually applies to cases “where it could be inferred that an oversight might have occurred”.

8. [31]

   GP was a case where the partial accumulation by a sentencing judge of the sentence that was imposed on a pre-existing sentence increased the total combined non-parole period to 81.5% of the total combined sentence. In upholding the appeal, Hamill J (Macfarlan JA and Button J agreeing) was unable to infer that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. [18]

9. [32]

   On the other hand, in Tuivaga, where a similar issue arose on appeal, but was unsuccessful, Hoeben CJ at CL (R A Hulme and Wilson JJ agreeing) found that the sentencing judge was clearly aware that he was accumulating the manslaughter sentence that he imposed almost fully on previous periods of incarceration. [19] It was against this background that the sentencing judge specifically found that the non-parole period was the “minimum period” that the applicant should spend in custody to appropriately reflect the criminality of the manslaughter offences. [20] In those circumstances, it was not necessary for the sentencing judge to refer to the combined impact of the combined periods in custody on the manslaughter period. [21]

10. [33]

    In the present case, the non-parole period was 75% of the aggregate sentence in accordance with s 44(2B) of the Crimes (Sentencing Procedure) Act which provides:

11. [34]

    When the judge’s sentence was accumulated on the balance of parole, the overall ratio between the non-parole period and the total term in custody exceeded 75%. It is unnecessary for present purposes to reconcile the conflict in the arithmetical calculations of the parties.

12. [35]

    The judge was faced with a complex sentencing task. Her Honour’s sentencing judgment, which extends to 28 pages, reflects a detailed and careful consideration of the many issues that were before her. However, there is no explanation as to why a ratio in excess of 75% was set for the total term in custody. This does not necessarily establish House error.

13. [36]

    The transcript of the proceedings on sentence discloses much discussion between the judge and the applicant’s counsel concerning the applicant’s pre-existing custody which included:

14. [37]

    More discussion concerning special circumstances included the following exchange between the judge and the applicant’s counsel:

15. [38]

    During submissions to the judge, the Crown adverted to the remarks of Howie J in SZ v R [25] (“SZ”) which was said by the Crown to constrain “a judge’s capacity to give further discounts for things such as special circumstances because of the s 23(3) issue”. [26] The Crown was referring to the proposed combined discount for the applicant’s guilty plea and assistance to authorities.

16. [39]

    In SZ, Howie J observed at [5] that “… the sentence must bear a reasonable relationship with the objective seriousness of the offence…” (Emphasis added.) His Honour remarked at [11]:

17. [40]

    It is evident that the judge gave earnest consideration to the applicant’s pre-existing custody and the various factors that, in the exercise of her sentencing discretion, might warrant a finding of special circumstances. However, her Honour was also aware that the non-parole period must appropriately reflect the criminality of the applicant’s offending which involved a high level of violence. There is no challenge to her Honour’s findings that the offences contrary to s 98 and s 33A of the Crimes Act fell above the middle of the range of objective seriousness.

18. [41]

    A significant aggravating factor was that the offences were committed whilst the applicant was on parole. Furthermore, her Honour had discounted the sentence by 50% for the utilitarian benefit of the guilty pleas and the applicant’s assistance to authorities.

19. [42]

    I am not persuaded that the judge overlooked the impact of the accumulation on the existing sentence and failed to take it into account in her consideration of special circumstances. Rather, I am satisfied that her Honour regarded the non-parole period of 6 years 9 months commencing on 24 December 2014 to be the minimum period that the applicant should spend in custody to appropriately reflect the criminality of the offences.

20. [43]

    The ground of appeal has not been made out.

Orders

1. [44]

   The orders that I propose are:

   1. (1)

      Leave to appeal against sentence is granted.

   2. (2)

      The appeal is dismissed.