Burke v R

1. [1]

   McCALLUM JA: I agree with Fullerton J. As noted by the sentencing judge in the remarks Fullerton J has set out, this was a difficult sentencing exercise. It is clear that the burden of imposing such a lengthy sentence on the applicant weighed heavily with her Honour. I am not persuaded that the result has been shown to be unjust.

2. [2]

   WALTON J: I agree with Fullerton J.

3. [3]

   FULLERTON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), the applicant seeks leave to appeal an aggregate sentence of 13 years and 6 months with a non-parole period of 8 years and 1 month imposed by O’Rourke DCJ on 6 March 2020.

4. [4]

   The sentence was backdated to commence on 24 July 2015 to take account of pre-sentence custody. The aggregate term expires on 23 January 2029. The applicant will be eligible for release to parole at the expiration of the non-parole period on 23 August 2023.

5. [5]

   The sole ground of appeal contends that the aggregate sentence imposed was manifestly excessive.

The proceedings on sentence

1. [6]

   The aggregate sentence was imposed in a sentencing exercise in which sentences were indicated for 14 separate offences committed between June 2014 and November 2016.

2. [7]

   Ten of the fourteen offences which attracted indicative sentences of between 6 years and 9 years and 6 months (identified as Counts 1-4 and 6-11 in the table at [12] below) were the subject of a trial on indictment in the District Court over which the sentencing judge presided.

3. [8]

   On 11 September 2019, the applicant was convicted of eight counts of armed robbery with either an offensive weapon or a dangerous weapon contrary to s 97(1) or s 97(2) of the Crimes Act 1900 (NSW) (variously a machete, a baseball bat, a log splitter, a Taser or a handgun, or a combination of those weapons); one count of attempted armed robbery country to ss 97(2) and 344A(1) of the Crimes Act and two counts of aggravated break and enter with intent to commit the serious indictable offence of larceny contrary to s 113 of the Crimes Act with the feature of aggravation in each count being that the applicant or his co-offender was armed with either a dangerous weapon or an offensive weapon. The applicant was acquitted of one count of armed robbery laid as Count 5 on the indictment.

4. [9]

   Each of the eight offences of armed robbery and the two offences of aggravated break and enter in respect of which the applicant was convicted at trial involved licensed premises, being either a hotel or a sporting club, and all ten offences were committed in company. Those ten offences were collectively referred to in the sentencing submissions filed in this Court as “the 2014 hotel robberies”, reflecting the fact that the offences were committed over a two-month period between 4 June and 26 August 2014. The sentencing judge also noted that those ten offences were committed whilst the applicant was either on parole for supplying a prohibited drug or on bail for recklessly inflicting grievous bodily harm, which she treated as aggravating features when indicating a sentence for each offence in accordance with s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

5. [10]

   The sentences of between 18 months and 3 years and 11 months indicated for the remaining four offences (identified in the table below at [12] as Counts 12, 13 and 14 and Seq 1) included a discount of between 10% and 25% for the pleas of guilty. The 10% discount applied to the sentence indicated for Count 12 reflected the fact that the plea was entered immediately prior to the applicant’s trial with the pleas of guilty for Counts 13 and 14 and Seq 1 entered significantly earlier in time. The plea to the armed robbery the subject of Seq 1 was entered in the Local Court on 10 November 2017 and committed to the District Court for sentence.

6. [11]

   The offences the subject of Counts 12, 13 and 14 were collectively referred to in the submissions filed in this Court as “the Di Meglio robbery”. The armed robbery the subject of Seq 1 was described as the “2016 Mortdale hotel robbery”. The sentencing judge noted that the “2016 Mortdale hotel robbery” was committed whilst the applicant was on bail for the “Di Meglio robbery”. Her Honour treated that as a statutory feature of aggravation.

7. [12]

   The Crown prepared a table, set out below, which identified each of the 14 offences the subject of the aggregate sentencing exercise. The table also differentiates between offences which attracted verdicts of guilty or a plea of guilty and the maximum penalty for each offence, the sentencing judge’s appointment of the objective gravity of the offending comprehended by each offence and the sentence indicated for each offence. I have included a brief summary of the facts relating to each offence extracted from her Honour’s sentencing remarks.

The sentence proceedings

1. [13]

   The sentencing judge was relieved of the task of finding the facts for sentencing purposes concerning the ten counts which were the subject of the trial over which she presided by the Crown’s tender of agreed facts for sentence. The facts in relation to those offences, together with the agreed facts in relation to “2016 Mortdale hotel robbery” and the “Di Meglio robbery”, are comprehensively detailed in sentencing judge’s reasons for sentence which I do not consider necessary to reproduce in this judgment. The material facts are sufficiently reflected in the table above.

2. [14]

   After reciting the facts in detail, the sentencing judge acknowledged the need to make an assessment of the objective seriousness of each of the offences, taking into account a number of factors, none of which were determinative but which in combination informed their objective gravity. In undertaking that exercise the sentencing judge was conscious of the need not to take into account features of the offending which might constitute additional statutory features of aggravation, including the fact that all of the offences were committed in company and as part of a joint criminal enterprise.

3. [15]

   The sentencing judge made particular note of the range of weapons that were deployed and the modus operandi adopted in the course of the applicant committing the offences collectively referred to as “the 2014 hotel robberies”, “the 2016 Mortdale hotel robbery” and “the Di Meglio robbery”.

4. [16]

   The sentencing judge appointed the objective gravity of each of those offences as either in the mid-range or just below the mid-range. In making that assessment, she said:

Subjective circumstances

1. [17]

   The applicant’s subjective and personal circumstances were in evidence before the sentencing judge by way of a psychiatric report of Dr Adrian Keller dated 4 November 2019, an affidavit from the applicant’s father, a number of testimonials and an affidavit from the applicant’s solicitor.

2. [18]

   The affidavit from the applicant’s solicitor addressed the materials that had been produced at his request under subpoena issued to Corrective Services NSW in advance of the sentencing hearing. In his affidavit, and by reference to materials produced under subpoena, he deposed to the conduct of the applicant upon his admission into custody on 8 June 2012.

3. [19]

   Although the aggregate sentence was backdated to 24 July 2015 to account for pre-sentence custody solely in relation to the matters before the sentencing judge, the applicant’s conduct as a prisoner over the lengthy course of his remand and as a serving prisoner was also relied upon as part of his subjective circumstances.

4. [20]

   In short, despite a number of minor infractions in 2017 and 2018 and a more serious infraction in November 2019 when the applicant joined with other inmates in refusing to comply with a segregation order, the applicant apparently committed himself to participation in a number of custody-based programs, ultimately graduating to the responsible positions of yard sweeper and wing sweeper. The sentencing judge took that evidence into account in assessing the applicant’s prospects of rehabilitation as “guarded”. She did consider, however, that this applicant’s prospects of rehabilitation would improve significantly were he to continue to take prescribed medications and remain abstinent from the use of illicit drugs or alcohol upon his eventual release.

5. [21]

   The sentencing judge accepted the applicant’s substance abuse history as reported by him to Dr Keller, including his heavy use of prohibited drugs and alcohol preliminary to and during his commission of the succession of armed robberies committed between May 2014 and July 2016, and the fact that he has, according to his report to Dr Keller, been abstinent for at least 12 months, presenting with two recent clean urine tests.

6. [22]

   Her Honour noted that the applicant has been under care of Dr Keller from time to time since 2014 on occasions through the intermediary of the applicant’s father. Although the applicant has been prescribed medication to address what was at one time diagnosed as bipolar disorder, it would appear that upon his release to bail in 2016 he was not wholly compliant with his medication and relapsed into the abuse of drugs and alcohol. Since his return to custody, that diagnosis has been reviewed. In his report furnished to the sentencing judge, Dr Keller was of the opinion that the applicant had a stable psychiatric diagnosis of chronic paranoid psychosis being predisposed to developing that condition by his family history, together with chronic methamphetamine use.

7. [23]

   The sentencing judge noted that the applicant committed the “2014 hotel robberies” when he was aged 23 and the balance of the offences when he was aged 25. He was aged 30 at the time of sentence.

8. [24]

   The sentencing judge was prepared to accept that although a level of immaturity and a reduced capacity for sound decision-making played some role in the applicant’s offending, it did not ameliorate to any significant degree what she described as crimes which were “extremely serious”. The sentencing judge also took into account the sexual abuse the applicant suffered at the age of 14 by an uncle whilst he was being looked after by his grandmother. The sentencing judge noted that despite the applicant’s complaint to his father, it was not until sometime later when his uncle admitted the abuse that the applicant’s account was verified, at which time the applicant’s father reported changes in the applicant’s behaviour.

9. [25]

   The applicant also relied upon Dr Keller’s extensive report to establish a causal connection between his mental illness and the commission of the offences. After reviewing the seminal authorities, the sentencing judge was not persuaded, on the balance of probabilities, that a causal connection was made out such as to reduce his moral culpability for his offending to any significant degree. She did, however, consider that the applicant’s mental health, together with his chronic drug use and his youth and immaturity, reduced his moral culpability, as her Honour described it, “to some extent”. Her Honour also accepted that the applicant’s mental health and associated issues will make his time in custody more onerous, a matter she also took into account in finding special circumstances.

10. [26]

    Finally, on the question of remorse the sentencing judge noted that the applicant expressed regret at his behaviour in the commission of the “the Di Meglio robbery” and the “2016 Mortdale hotel robbery” (both offences to which he entered a plea of guilty). She also accepted that reflected an acceptance of the position in which the applicant found himself on sentence. The applicant maintained his innocence in respect of all “the 2014 hotel robberies”. As the sentencing judge noted, while that is not a matter to be taken into account adverse to the applicant; it qualified the extent to which he could rely upon remorse as a factor in mitigation.

11. [27]

    In her ultimate assessment of the aggregate sentence to be imposed, and mindful to ensure that principles of totality were reflected in that sentence, her Honour said as follows:

The applicant’s submissions

1. [28]

   The applicant does not rely upon any patent error in the appointment of the aggregate sentence or any patent error otherwise in her Honour’s sentencing reasons, including any error in the application of totality principles. Rather, it is the applicant’s contention that the aggregate sentence is unreasonable and unjust warranting the intervention of this Court.

2. [29]

   The applicant sought to support that submission on two bases:

   1. (1)

      The sentences indicated for each of Counts 1, 2, 3, 4, 6, 7, 9, 10 and 12 (the “2014 hotel robberies”) are excessive relative to the sentences indicated for Count 12 (“the Di Meglio robbery”) and the “2016 Mortdale hotel robbery”, with that disparity having contributed to a manifestly excessive aggregate sentence.

   2. (2)

      The sentencing judge’s findings as to the objective seriousness of all of the offences the subject of the aggregate sentencing exercise when considered in light of the applicant's favourable subjective circumstances, including mitigating factors, has resulted in an unjust sentence warranting this Court’s intervention.

3. [30]

   The principles to be applied in determining whether the applicant has made out a ground of appeal based on manifest excess are settled. They are frequently restated, most recently and with elaboration in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42] where Bell P said:

4. [31]

   In my view, for the purposes of this appeal, to those statements of principle, the following should be added.

5. [32]

   The principal focus for the determination of a ground of appeal alleging manifest excess in the appointment of an aggregate sentence is whether the sentence fairly reflects the totality of the criminality involved or, to put it another way, whether the aggregate sentence can be shown to be unreasonable and plainly unfair having regard to the totality of the criminality comprehended by the sentence, after taking into consideration all factors bearing upon the ultimate imposition of sentence. [1]

6. [33]

   Additionally, and equally as importantly, where an aggregate sentence is under challenge as manifestly excessive, and the Court’s attention is directed to what is said to be the severity of the indicative sentences to make out that ground, the focus will not be on whether one or more of the indicative sentences is excessive per se, but whether the applicant has established that after principles of totality are applied the aggregate sentence is unreasonable or plainly unjust. [2] It is only where the nomination of an indicative sentence or sentences suggests error in the appointment of the aggregate sentence that a ground of manifest excess may be made out. Where that argument has been successful, it is because the Court is satisfied that the relative severity of the individual sentences called for a greater degree of notional concurrency in the imposition of the aggregate sentence. In this case, as the sentencing judge made clear and in my view correctly, a degree of accumulation was called for in what she described as each “cluster” of robberies with notional concurrency between offences committed against different people at the same premises.

7. [34]

   It follows that even were the applicant to have made good his submission that one or more of the sentences indicated for Counts 1, 2, 3, 4, 6, 7, 9, 10 and 12 is excessive by applying the comparative analysis he contends for (an analysis which, for reasons I will come to presently, I do not find persuasive), that would not inevitably support the conclusion that the aggregate sentence is excessive. As a matter of principle, even if there might be discerned a lack of uniformity in the sentencing judge’s appointment of indicative sentences for similar offences of the same objective seriousness, that will not necessarily, much less inevitably, lead to the conclusion that the aggregate sentence is manifestly excessive.

8. [35]

   As I raised with the applicant’s counsel in the course of argument, an equally available analysis of the comparative kind he urged upon the Court would allow for the conclusion that the indicative sentences imposed for the robberies committed in 2016 were lenient, perhaps even unjustifiably lenient, given the gravity of that offending even after application of the 25% sentencing discount for the pleas of guilty. On that analysis, the applicant has the notional advantage of very lenient sentences being indicated for those offences in the aggregate sentencing exercise.

9. [36]

   In this case, where the sentencing judge was obliged to take into consideration extremely grave and repeated offending over a course of months in 2014, coupled with the further offending of a similarly serious kind in the “2016 Mortdale hotel robbery” and the “Di Meglio robbery”, and in a complex aggregate sentencing exercise where application of the principle of totality obliged the sentencing judge to take into consideration questions of concurrence and accumulation as part of an intuitive exercise in arriving at an aggregate sentence, I am not persuaded that the applicant has demonstrated that the sentencing judge’s discretion has miscarried and that a manifestly excessive sentence has resulted.

10. [37]

    In this case, I am left in no doubt that the sentencing judge’s assessment of the totality of the criminality as reflected in the range and number of gravely serious offences committed over an extended period of time was appropriately, and therefore fairly, reflected in the aggregate sentence imposed. I am also left in no doubt that the applicant’s personal and subjective circumstances were accorded appropriate weight in the appointment of the aggregate sentence.

11. [38]

    The orders I propose are as follows:

    1. (1)

       Leave to appeal granted.

    2. (2)

       The appeal is dismissed.