Portelli v R

1. [1]

   HOEBEN CJ at CL: I agree with Simpson JA and the orders which she proposes.

2. [2]

   SIMPSON JA: On 21 June 2016 the applicant and another man (Scott Hardy) were arraigned in the Penrith District Court on an indictment that jointly charged them with four counts of offences committed on or about 14 November 2012. The counts were as follows:

3. [3]

   After a trial, the jury returned verdicts of guilty against each accused on Counts 1, 3 and 4. It acquitted both men on the second count, and acquitted Hardy of the firearms offences.

4. [4]

   Taking and driving a conveyance without the consent of the owner (Count 1) is an offence against s 154A(1)(a) of the Crimes Act 1900 (NSW), which provides a maximum penalty of imprisonment for 5 years. Break, enter and steal in circumstances of aggravation (Count 3) is an offence against s 112(2) of the Crimes Act, and carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) a standard non-parole period of 5 years is prescribed. Aggravated assault with intent to take a motor vehicle and taking it and driving it without the consent of the owner is, by s 154C(2)(a) of the Crimes Act, an offence that carries a maximum penalty of imprisonment for 14 years (Count 4). By s 344A a person who attempts to commit an offence against the Crimes Act, for which a penalty is provided, is liable to the penalty provided for the principal offence.

5. [5]

   On 22 September 2016 the applicant was sentenced in respect of the three offences of which he was convicted, as follows:

6. [6]

   The effective sentence is one of imprisonment for 8 years with a non-parole period of 6 years.

7. [7]

   Hardy was sentenced as follows:

8. [8]

   The effective sentence imposed upon him was of imprisonment for 7 years with a non-parole period of 5 years and 3 months. In sentencing Hardy, the judge said:

9. [9]

   The applicant seeks leave to appeal against the asserted severity of the sentences. No application by Hardy for leave to appeal against the sentences imposed upon him is before this Court. It will be necessary to refer to his participation in the offences for which both men were convicted, but nothing that follows should be taken as a finding of fact by this Court in relation to him.

The facts of the offences

1. [10]

   Since the applicant and Hardy were convicted after trial, it was necessary, for sentencing purposes, that the judge determine the relevant facts, consistent with the jury verdicts. This he did as follows.

2. [11]

   Between 9:00pm on 13 November 2012 and 4:00am the following morning, at Emu Plains, the offenders stole a Ford Falcon utility, the property of Robert Black. One of them, with the other as passenger, drove the vehicle to Richmond Marketplace Shopping Centre in Richmond, arriving there some time before 4:00am (Count 1). They alighted from the utility, wearing masks, gloves, dark clothing and with torches strapped to their heads. They proceeded to a jewellery store in the shopping complex, with two wheeled garbage bins and a milk crate. They broke into the store, placed jewellery from the store into the bins, and wheeled them to where the utility was parked (Count 3). The total value of the jewellery removed from the store was about $300,000, of which all but $51,530 was eventually recovered. Substantial damage was done to glass cabinets and shelving in the store.

3. [12]

   The break in had been observed by the owner of a nearby donut shop, who immediately alerted police. Police attended. The offenders ran from the area, leaving behind the bins containing some of the jewellery. Police pursued them. Aware of the police pursuit, the offenders ran to a nearby service station. A vehicle belonging to Mr Peter Davis was parked at a petrol bowser, from which he had refuelled the vehicle. Mr Davis left his keys in the ignition and walked towards the cashier to pay for the fuel. He heard the sound of running, turned and observed one of the offenders (who the sentencing judge was satisfied was Hardy). He stood between Hardy and his vehicle and attempted to reach his keys. Hardy kicked Mr Davis in the stomach. The applicant punched Mr Davis to the head four or five times (Count 4). Mr Davis saw Hardy lying across the front seat of the vehicle.

4. [13]

   Mr Davis gave evidence that Hardy had pointed a gun at him, but, since the jury acquitted him of the firearms counts on the indictment, that must be disregarded.

The proceedings on sentence

1. [14]

   A joint sentencing proceeding took place on 16 September 2016. Evidence of the applicant’s personal circumstances was put before the sentencing judge. From that the following emerges.

2. [15]

   The applicant was born in September 1975. He was almost 37 years of age at the time of the offences. He has a lengthy criminal history that (disregarding an offence of offensive language) commenced in 1994 (when he was 19 years of age) with a conviction for assault. That has been followed by a number of convictions for assault, numerous drug convictions, repeated motor vehicle offence convictions, offences of dishonesty and offences of possession of housebreaking implements. The most serious offences are of robbery whilst armed with an offensive weapon, and robbery in company, committed on 14 September 2004, in respect of which he was sentenced to concurrent terms of imprisonment of 2 years and 6 years respectively, with a non-parole period of 3 years and 6 months. The applicant was on parole for these offences, and for an offence of escaping lawful custody, at the time of the present offences. Evidence adduced by the Crown included a number of “breach of parole” reports (in 2010 and 2011) and orders revoking parole, in 2011 and 2012.

3. [16]

   Also before the court was a letter directed to the sentencing judge written by the applicant, and a comprehensive psychological report, the author of which was Ms Ruth Allen.

4. [17]

   In his letter the applicant made two points. The first concerned what he called “my medical issue”. He wrote:

5. [18]

   The second point the applicant made concerned his custodial arrangements. He wrote:

6. [19]

   Ms Allen recorded in her report a dysfunctional family history. According to the history given to her by the applicant, the applicant was the second son of a father of Maltese origin (but who had lived in Australia since childhood) and an Australian mother. The family lived on a farm in the Windsor/Richmond district, but the applicant’s father worked in road construction which took him away from home during the week. The relationship between the applicant’s father and mother was “troubled”, and his father remained away at weekends as well as during the week. The applicant and his brother frequently joined him on weekends. His mother was also largely absent from the home during the week.

7. [20]

   The history recorded by Ms Allen reveals a degree of ambivalence on the part of the applicant, particularly where his relationship with his mother is concerned. In his perception, at least, his mother clearly favoured his older brother, and mistreated the applicant both physically and emotionally. Eventually, the relationship between his parents terminated, when the applicant was 11, and he initially went to live with his mother out of pity for her. However, she was “never at home” and he was alone in the unit they occupied. This was when his misbehaviour began. He returned to the farm and lived there while his father was away at work, and spent weekends with his father. He “ran away from home” at 15, and lived “in the bush”, but continued to attend school until he could leave at age 15. He was taken in for a time by a friend’s mother, but, while she showed him affection, she dealt in cannabis. He himself began to get into “pub fights”, to grow marijuana, and develop a reputation with police.

8. [21]

   The applicant has had a number of relationships, one of which ended in the suicide of his partner after the pair separated. Another “left” while he was in gaol, having had his parole revoked, because she understood the Australian Federal Police were looking for her.

9. [22]

   The applicant told Ms Allen that he began developing back pain prior to Christmas 2015, and this worsened when police arrested him and threw him on the ground on Christmas Eve. He said that he attended a hospital on his release, and investigations identified “lesions to his spine”. He said that symptoms of Attention Deficit Hyperactivity Disorder had been “identified” (whether this was a firm diagnosis was not clear), and that he had had medication for anxiety. He began using marijuana at age 14, and was introduced to heroin while in gaol. After Naltrexone treatment, he has shaken off the opioid dependence, but continues intermittently to use a variety of other prohibited drugs.

10. [23]

    Ms Allen administered personality tests that showed the applicant scored significantly on anti-social, aggression and self-defeating patterns, and for paranoid personality pathology. She also recorded “significant scores” for anxiety and bi-polar disorder and drug dependence. She assessed the applicant as “in the high risk group for further offending”.

11. [24]

    The applicant did not give oral evidence in the sentencing proceedings and no evidence was called on his behalf. No medical evidence concerning his asserted back condition was provided. However, during the course of the sentencing hearing, when the applicant’s letter was tendered, the judge said that he recalled that, during the trial, the applicant had “difficulty … in terms of his back” and that he had been in pain.

12. [25]

    The applicant’s legal representatives then made reference to a bail application, which had, apparently, been made after the jury verdicts, and in which “medical material” had been tendered, indicating that the applicant had attended a hospital. No evidence of that application is before this Court.

13. [26]

    Nor was there any confirmatory (or otherwise) evidence directed to the claim in the applicant’s letter that he was unwillingly held in protection.

The Remarks on Sentence

1. [27]

   The sentencing judge began his Remarks on Sentence by recording the offences for which the offenders were to be sentenced. With respect to Count 3, the aggravated break, enter and steal offence, he said:

2. [28]

   The sentencing judge proceeded to make specific findings of fact concerning the offences. These are as set out above and are not the subject of criticism on this application. He assessed the aggravated break, enter and steal offence as being in the mid-range of objective seriousness; the offence against Mr Davis as below mid-range. He was unable to differentiate between the offenders with respect to their participation or moral culpability.

3. [29]

   He recounted the personal circumstances of each of the offenders. With respect to the applicant’s back condition, he said:

4. [30]

   With respect to the circumstances of incarceration, he said:

5. [31]

   The sentencing judge expressly accepted that the principles stated by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 “do have a role to play in his sentence”. (In Bugmy, the High Court reaffirmed that childhood deprivation is a relevant sentencing consideration.)

6. [32]

   The sentencing judge declined to find special circumstances pursuant to s 44(2) of the Sentencing Procedure Act. (By s 44(2), unless special circumstances warranting variation are found, the non-parole period of a sentence is to be not less than 75 per cent of the total term.)

7. [33]

   He then said:

The grounds of the application

1. [34]

   Four grounds of appeal were identified. They were formulated as follows:

2. [35]

   It is not (and could not be) in contest that, in the opening of his sentencing remarks, the judge misstated the standard non-parole period applicable to Count 3 as imprisonment for 7 years, when the correct standard non-parole period is imprisonment for 5 years. The contest between the parties is whether this should be treated as an error that affected the exercise of the sentencing discretion, or whether, as the Crown submits, it was a mere slip of the tongue, corrected in the later passages extracted above.

3. [36]

   The relevant legislation in New South Wales is s 54B of the Sentencing Procedure Act, which is in the following terms:

4. [37]

   It has been held in this Court that the standard non-parole period is applicable to offences proved at trial (not those where a plea of guilty has been entered): R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. That part of the decision in Way is unaffected by the later decision of the High Court of Australia in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, which held that other aspects of Way were wrongly decided.

5. [38]

   The standard non-parole period of 5 years was therefore applicable to the sentencing of both the applicant and Hardy in relation to the aggravated break, enter and steal offence in the way set out in sub-s (2) of s 54B. Sub-section (2) makes it plain that the specified standard non-parole period is not prescriptive. The standard non-parole period is not “the starting point in sentencing for a mid-range offence after conviction” (Muldrock at [31]); it is one of two “legislative guideposts”, the other being the maximum penalty prescribed (Muldrock at [27]).

6. [39]

   The Crown argued that it could be seen, from the differential sentencing of the two offenders in respect of this count, that the sentencing judge was fully aware, not only of the correct standard non-parole period, but also of his need to give reasons for departure from it. The Crown relied on the passage in the Remarks on Sentence in which the judge was sentencing Hardy for this offence, when he gave reasons for imposing a non-parole period lower than the standard of 5 years. He made no such observations in sentencing the applicant to a sentence the non-parole component of which matched the standard non-parole period. From this, the Crown argued, it could be inferred that he intended to impose the standard non-parole period applicable to the offence of which the applicant was convicted.

7. [40]

   Although the sentencing judge did, on two further occasions, refer to the standard non-parole period in general terms, he did not, on either occasion, nominate what that was. That the 7 year period is the standard non-parole period applicable to the specially aggravated offence of which the applicant was acquitted cannot be overlooked. I recognise the logic of the Crown’s argument, and I accept that it is possible that the sentencing judge did have in mind the correct standard non-parole period when he sentenced the applicant, but I am unable to be confident that that was so. In those circumstances I would uphold this ground of appeal. It will therefore be necessary that the applicant be resentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. A resentencing exercise by this Court presents problems, to which I will come after considering Grounds 2 and 3.

8. [41]

   The sentencing judge did have before him the applicant’s own statement concerning his back condition and the circumstances of his custody. He had no confirmatory evidence of either. He had himself observed that the applicant suffered from a back condition.

9. [42]

   One might have expected that the applicant’s legal representatives would have presented some medical evidence with respect to his back condition. It was not in issue that circumstances that render prison life more onerous are relevant sentencing considerations. It was asserted during the sentencing hearing that medical evidence had been adduced on the bail application following conviction and the judge made express reference to that in the remarks extracted above. It may be that the applicant’s legal representatives wrongly believed that that was sufficient and that the evidence on the bail application was properly before the judge for sentencing purposes. In any event, it seems clear that his Honour gave little, if any, weight to the applicant’s back condition.

10. [43]

    Ordinarily, an offender is bound by the way in which the proceedings are conducted at first instance. Failure on the part of an offender’s legal representatives to advance an argument (or to adduce evidence) may be fatal: R v Birks (1990) 19 NSWLR 677 at 683-685; Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44.

11. [44]

    That is not always the case. When the interests of justice so dictate this Court will entertain an appeal ground that raises questions or issues that have been overlooked by the applicant’s legal representatives at first instance: Lambert v R [2015] NSWCCA 22. See also Renshaw v R [2012] NSWCCA 91.

12. [45]

    In my opinion that is here applicable. The applicant may not have been well served by his legal representatives; or there may be good reasons why no evidence either of his medical condition or the circumstances of his custody were put before the court. But I am left with the uncomfortable feeling that justice may not have been done.

13. [46]

    The problem in resentencing to which I adverted earlier is this. In response to the applicant’s complaint under Ground 3 (failure to take account of the circumstances of the applicant’s custody) the Crown adduced affidavit evidence that appears directly to contradict the applicant’s assertion that he is being held “in strict protection” against his will. A letter from a Senior Assistant Superintendent at the prison in which the applicant is held stated that he is currently “on a Special Management Area Placement (SMAP) at his own request”. The letter did not elaborate upon the nature of a SMAP placement, nor any differences between that and “strict protection” (if there is such a classification).

14. [47]

    There is, at best, a lacuna in the evidence concerning the applicant’s custodial arrangements and, at worst, a conflict that cannot be resolved by this Court on the present state of the evidence. That is a reason for remitting the matter to the District Court for resentence.

15. [48]

    In these circumstances it is unnecessary to address Ground 4.

16. [49]

    The orders I propose are:

17. [50]

    McCALLUM J: I agree with Simpson JA.