Zeiser v R

THE COURT: The applicant seeks leave to appeal against sentences imposed by Acting District Court Judge Latham at Wollongong, as follows:

The three longer sentences for the August robberies were fixed to commence on 2 August 2017, the day the applicant was taken into custody. Those sentences will expire on 1 August 2022. The shorter sentence for the July robbery was fixed to commence two years later, on 2 August 2019, so that it will also expire on 1 August 2022. So far as concerns the total length of time to be served by the applicant, the only effect of the later commencement of the sentence for the July offence is a slight accumulation of the non-parole periods that her Honour specified. The non-parole period of 3 years and 9 months fixed in relation to the three longer sentences ends on 1 May 2021. The non-parole period of two years fixed for the shorter sentence, in respect of the July robbery, will expire on 1 August 2021, an accumulation of 3 months. Her Honour’s orders give rise to an effective overall sentence of 5 years with a non-parole period of 4 years, a ratio of 80%.

The co-offender in whose company the robberies were committed was Richard Mitchell. Whereas Mitchell pleaded guilty to the three charges of robbery arising out of the events of 1 August 2017, the applicant defended those matters. On 6 March 2019 the applicant was found guilty after a short trial presided over by her Honour. On 12 March 2019, shortly before the applicant and Mitchell were to be tried for the July robbery, both of them informed the Crown that they would plead guilty to that charge. They did so on 29 March 2019, before her Honour, who then proceeded with sentencing both of them. The Crown accepted that a discount of up to 15% would be appropriate for each offender for their late pleas of guilty to the July robbery.

The applicant’s grounds of appeal are:

In the commission of all of the robberies the applicant and his co-offender had represented themselves as police officers, flagging down motor vehicles and, in one case, approaching a stationary vehicle. In each case they seized personal possessions such as phones and watches from the occupants of the vehicles. There was some punching of the victims and one of them was struck with a ball peen hammer. No significant injuries were sustained.

Both the applicant and his co-offender have long criminal records. Up to the date of arrest both were long-term drug users and both had generally poor subjective circumstances, Mitchell’s being marginally more favourable than the applicant’s. Mitchell was 32 at the date of the offences and the applicant was 26. It is clear from her Honour’s remarks on sentence that she intended to treat both offenders equally subject only to the following considerations:

For each of the August robberies her Honour imposed on Mitchell concurrent head sentences of 3 years and 9 months. In so doing her Honour adopted starting point sentences of 5 years, the same as were actually imposed upon the applicant, but deducted 25% for Mitchell’s early pleas. This is one of the clear indications that, subject to the two qualifications referred to in the preceding paragraph, the Honour intended to treat both offenders equally in respect of all charges.

For the July robbery her Honour imposed on Mitchell a head sentence of 2 years and 6 months. This represents a starting point of 3 years with a discount of 15%. It is readily apparent that in imposing upon the applicant a head sentence of 3 years her Honour inadvertently failed to allow him the 15% discount for his late plea on this charge. Her Honour did not identify any reason for imposing on the applicant a longer sentence for this count than that imposed upon Mitchell, in circumstances where their participation was equal, their subjective circumstances were closely comparable, both had pleaded guilty at the same time and both were entitled to the same discount.

It follows that the applicant should be granted leave to appeal and that ground 1 should be upheld. This is no more than an error of inadvertence in a discrete aspect of the sentencing decision. Her Honour failed to give effect to a determination that is otherwise manifest from the remarks on sentence. The discrete error did not consequentially affect her Honour’s exercise of discretion in any other respect. This can be seen when the 15% discount is applied to the sentence for the July robbery, keeping all other elements of the sentence equal. Reducing the head sentence for the July robbery by 15% brings it down from 3 years to 2 years and 6 months. Applying the statutory ratio, in accordance with her Honour’s stated intent, the non-parole period for this sentence becomes 1 year and 10 months. Maintaining the commencement date of 2 August 2019 as fixed by her Honour, the head sentence for the July robbery would expire on 1 February 2022 and would therefore not increase the overall head sentence – again, as evidently intended by her Honour’s orders. A further consequence of the 15% adjustment is that the non-parole period of 1 year and 10 months for the July robbery would expire on 1 June 2021, taking the overall non-parole period to 3 years and 10 months. That represents a ratio of 76.6%, closely reflecting her Honour’s finding of no special circumstances.

It follows from the calculations in the preceding paragraph that ground 2 should be rejected. Once the inadvertent failure to apply the 15% discount to the shorter sentence has been corrected, the non-parole periods and the starting and expiry dates require no adjustment for the purpose of achieving an overall ratio very close to the statutory default. There was no need to consider or find special circumstances on this account.

In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 it was held that where a discrete error, for example in the application of a discount, has affected a sentencing purpose and has been taken up in the exercise of the sentencing discretion, the Court cannot simply adjust for the error but must resentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. This appears particularly in the judgment of Bathurst CJ in Lehn v R at [50], [61], [64]. However the present is a case of a kind referred to by the Chief Justice at [72], as follows:

In Lehn v R RA Hulme J similarly recognised that the failure to apply an appropriate discount in that case had been taken up in the exercise of the sentencing discretion and could not be corrected discretely. His Honour said this at [121]:

However, RA Hulme J joined in the view that cases may arise where discrete error can be corrected discreetly, as follows:

In the present case, for reasons given above, it is apparent on the face of the remarks on sentence that her Honour’s oversight with respect to applying the 15% discount to the applicant’s sentence for the July robbery did not carry over into the exercise of her sentencing discretion generally. On the contrary, every aspect of her Honour’s explicit findings and assessments is given full effect when the correction is made. In the argument on the appeal both counsel accepted that this is so. At the conclusion of the argument the applicant’s counsel accepted that a discrete adjustment would be appropriate, resulting in the date upon which the applicant will be eligible to be released on parole being brought forward by two months.

For these reasons the Court made the following orders at the conclusion of the hearing of the appeal: