Ngati v R

1. [1]

   PAYNE JA: The applicant seeks leave to appeal from a sentence imposed in the District Court by Wass SC DCJ.

Discharge of pseudonym order

1. [2]

   The applicant has been referred to throughout the proceedings in the District Court and to date, in this Court, by the pseudonym “AN”. At the outset of the appeal counsel for the applicant and the Crown were each asked if they could identify any reason why a pseudonym should be used to describe the applicant. Neither counsel for the applicant nor the Crown were aware of any order having been made or any reason for a continuation of the order. Counsel for the applicant submitted that she had been unable to ascertain the reason why her client was referred to by use of a pseudonym. Counsel sought an opportunity to exhaust inquiries about whether any pseudonym order should be made by this Court. The Court directed that if there was to be an application by any party for the continuation or the making of an order pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) in relation to the applicant’s name an affidavit and submission in support be filed by 5pm on 12 February 2018. No affidavits or submissions were filed.

2. [3]

   The Court made an order, until further order, pursuant to s 7 of the Court Suppression Non-Publication Orders Act, that there be no publication of the applicant’s name and the order was made on the ground that it was necessary to prevent prejudice in the proper administration of justice. As no reason has been given for the making of any pseudonym order, the Court should now discharge that order and order that the applicant be referred to by his name, Anthony Ngati.

Factual background

1. [4]

   On 16 December 2016, the applicant was sentenced by Wass SC DCJ together with two co-accused, Mr Epifania and Mr Sa. The applicant had been found guilty by a jury in respect of four counts of obtaining property by deception pursuant to s 192E of the Crimes Act 1900 (NSW). At the time of his sentence he was also sentenced for assault occasioning actual bodily harm pursuant to s 59 of the Crimes Act, a matter in relation to which he had pleaded guilty at the commencement of a previous trial. He was also sentenced for a plea of guilty entered at the beginning of an earlier trial in respect of possession of an unregistered firearm pursuant to s 7(1) of the Firearms Act.

2. [5]

   Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant was sentenced to an aggregate sentence of a 5 year non-parole period with an additional term of 1 year and 6 months, commencing on 11 November 2015. Indicative sentences on each of counts 3, 4, 5 and 6 (obtaining property by deception) were identified as a non-parole period of 2 years with an additional term of 8 months; in respect of the assault occasioning actual bodily harm, a fixed term of imprisonment of 12 months; in respect of the possession of the firearm, a 2 year non-parole period and an additional term of 8 months.

Facts upon which Mr Ngati was sentenced

1. [6]

   The sentencing judge found the following facts which were not controversial on the appeal:

2. [7]

   Further attempts were made to obtain funds from the cards and her Honour found, again in a way which is not controversial:

3. [8]

   So far as the offence of assault occasioning actual bodily harm (unrelated to the matter dealt with above) was concerned, the sentencing judge noted the plea of guilty and described the facts as having occurred after the applicant and an unidentified person and a co-offender, Ellington, had obtained a lift home from the victim. The car was directed to the end of a cul-de-sac in Macquarie Fields. The victim got out of his car to have a cigarette and he was then punched by the three assailants. His clothing was torn. He sustained a bleeding nose, a bump on the right side of his head, as well as soreness to his head, neck and face. Fearing for his safety, the victim ran away, leaving his car. The sentencing judge noted that the co-offender Ellington was sentenced at the Campbelltown Local Court on 2 December 2013, in relation to the same offence, to a term of imprisonment of 16 months with a non-parole period of 12 months.

4. [9]

   So far as the offence regarding the firearm was concerned, the sentencing judge found, again in a way which was not controversial, the following facts:

Evidence on the sentence

1. [10]

   Very limited evidence was put forward on the applicant’s behalf on sentence. He did not give oral evidence but tendered a handwritten document dated 2 December 2016. In that document he said that he was born in August 1981 and was 31 at the time of offences. He was married with four children aged 17, 12, 6 and 3. He has been in a relationship with his partner since he was 18 years old, having known her since the age of 12. He said that his wife remains supportive of him, visiting him regularly and described their relationship as close and ongoing. He described himself as having a drug problem, currently being treated with methadone. The sentencing judge found prospects of rehabilitation to be low and found no special circumstances.

Grounds of appeal

1. [11]

   Six grounds of appeal were advanced by the applicant.

2. [12]

   Ground 1, which occupied the greatest part of the written and oral submissions made by the applicant, alleged that the sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the indicative sentences that she would have imposed for each offence had she not sentenced the applicant to an aggregate sentence of imprisonment. The applicant submitted, correctly, that the aggregate sentence cannot exceed the total of the indicative sentences: Dimian v R [2016] NSWCCA 223 at [49]. The applicant submitted that this Court should understand the indicative sentence identified by the sentencing judge on counts 3 to 6 as being one sentence only of a 2 year non-parole period and a total sentence of 2 years 8 months. When that one sentence was added to the indicative sentences for the other offences (12 months and firearm 2 years non-parole period and an additional term of 8 months) the total of all three non-parole periods was only 5 years and the total indicative sentence was only 6 years and 4 months, being less than the total aggregate sentence imposed of 6 years and 6 months.

3. [13]

   Accordingly, it was submitted that the sentencing judge fell into error in imposing a sentence which was longer than the aggregate sentence which would have been obtained by the sum of each of the indicative sentences her Honour had identified.

4. [14]

   This complaint should be rejected. Her Honour, in addressing the sentence on each of the four counts of obtaining property by deception, said that:

5. [15]

   Plainly, her Honour was aware that the applicant was being sentenced in respect of four separate charges of obtaining benefit by deception. After dealing with a number of matters particular to the applicant, and the fact that the jury could not reach a verdict in respect of counts 1 and 2 in the indictment for which his co-offenders were convicted, the sentencing judge came to address the question of concurrency and accumulation in respect of the charges of obtaining a benefit by deception. Her Honour recorded that it was submitted on behalf of all of the offenders that if the offences occurred at the same time, the sentences were to be wholly concurrent or at least with a great deal of concurrence. It was submitted, so her Honour recorded, that any accumulation ought to be minor to reflect the fact that there was one victim, and the offending took place over some period of time. Her Honour’s conclusion was clear:

6. [16]

   Plainly, her Honour was intending, in relation to the applicant, to identify in respect of each of counts 4 to 6 for which he was convicted an indicative sentence of a 2 year non-parole period with an additional term of 8 months. Equally plainly, her Honour was intending that there be “some degree of concurrency” between those separate indicative sentences.

7. [17]

   The applicant’s submission misunderstands the sentencing judge’s remarks in this respect. Her Honour did not impose an aggregate sentence which was lengthier than the sum of the indicative sentences she had identified. There was, in truth, a small degree of accumulation between the sentences for obtaining benefit by deception. Her Honour was not obliged to identify the precise amount by which she would accumulate each indicative sentence. To require that would be to undermine one purpose of aggregate sentencing, which is to obviate the need to engage in the laborious and sometimes complicated task of creating a “cascading or ‘stairway’ sentencing structure” when the principle of totality requires, as in this case, some accumulation of sentences: JM v R [2014] NSWCCA 297 at [39] per R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed.

8. [18]

   I would grant leave to appeal in relation to ground 1 but dismiss the appeal.

9. [19]

   Ground 2 complained that the sentencing judge erred in wholly accumulating the sentences for the applicant. This submission was affected by the same misreading of the reasons of the sentencing judge as in relation to ground 1. To re-iterate, the sentencing judge indicated a sentence of a 2 years non-parole period and an 8 month additional term on each of counts 3 to 6. Her Honour did not indicate that those sentences should be served entirely concurrently, but rather that there be some degree of concurrency between those indicative sentences.

10. [20]

    In effect the applicant’s complaint is that her Honour erred in failing to have regard to the totality principle. Her Honour expressly stated the totality principle was being applied:

11. [21]

    It was open to the sentencing judge to accumulate the indicative sentences in the way that her Honour did. The three events of criminal conduct for which the applicant was being sentenced namely, the charges of obtaining benefit by deception (four counts), the assault (one count) and the firearm (one count) warranted a degree of accumulation in fixing the aggregate sentence. The decision to accumulate the indicative sentences in the way that her Honour did must be considered in light of the fact that the aggregate sentence was substantially or wholly concurrent with sentences for two other instances of serious offending for which the offender was already serving a sentence.

12. [22]

    Shortly put, the degree of accumulation between the counts of obtaining benefit by deception counts, together with accumulation of the other separate offending was within the acceptable discretion of the sentencing judge. No error on the part of the sentencing judge has been shown.

13. [23]

    Ground 2 should be rejected.

14. [24]

    Ground 3 asserted that her Honour failed to find special circumstances. In oral submissions counsel for the applicant accepted that there was a dearth of material available to the sentencing judge which would have enabled a finding of special circumstances. That material was the letter from the applicant referred to at [10] above. That material demonstrated that the applicant was on the methadone program and that he had a supportive wife and family who he was anxious to return to.

15. [25]

    The following exchange took place between the Court and Counsel on the appeal:

16. [26]

    That concession was properly made. It was plainly open to the sentencing judge not to find special circumstances given the paucity of material available to her touching or concerning that question. Ground 3 should be rejected.

17. [27]

    Ground 4 asserted that her Honour erred in the assessment of the objective criminality of the offences of obtaining benefit by deception and the resultant indicative sentence(s) were manifestly excessive. In oral address, counsel for the applicant made clear that this was not pressed as a separate ground of appeal but, rather, as a matter going to the allegedly manifestly excessive sentence. It is thus unnecessary to say any more about ground 4.

18. [28]

    Ground 5 complained that her Honour’s indicative sentence with respect to the firearms offence was manifestly excessive. The applicant accepted that her Honour had expressly found that the offence was one at the lower end of offending of that kind. It was submitted that the weapon was unrelated to the other offending for which the applicant was being sentenced. The firearm was not loaded but was capable of projecting a ball bearing missile.

19. [29]

    Her Honour’s indicative sentence of 2 years and 8 months after the late plea of guilty should be judged by the twin guideposts of a maximum penalty of 14 years imprisonment for this offence and a standard non-parole period of 3 years. The sentence imposed by her Honour was not disproportionate or erroneous. No error was shown in her Honour’s indicative sentence with respect to the firearms offence. Ground 5 should be rejected.

20. [30]

    Ground 6 complained that her Honour imposed an aggregate sentence that was manifestly excessive. As earlier indicated, ground 4 was subsumed in this ground.

21. [31]

    The applicant submitted that her Honour erroneously accumulated the sentence imposed upon the non-parole period of the sentence that the applicant was serving. At the time he was sentenced by Wass SC DCJ, the applicant was already serving sentences for stealing from the person and a police pursuit offence. Before addressing the substance of this ground it is necessary to say a little more about the facts of those matters.

22. [32]

    On 18 June 2015, the applicant was sentenced in the Local Court for the police pursuit matter to imprisonment for 2 years commencing on 2 March 2015, expiring on 1 March 2017 with a non-parole period of 18 months commencing on 2 March 2015 and expiring on 1 September 2016. The police pursuit offence was serious. It occurred over a distance of 210km and lasted more than three and a half hours. The applicant drove at speeds of 180-190km per hour. The police made several attempts to deploy spikes to deflate the vehicle’s tires. The vehicle finally stopped when one of the wheel rims disintegrated.

23. [33]

    The sentence for the separate offence of steal from the person imposed in the Campbelltown District Court on 23 June 2016 was wholly subsumed in the aggregate sentence imposed by Wass SC DCJ.

24. [34]

    When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

    1. (1)

       appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

    2. (2)

       intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

    3. (3)

       it is not to the point that this Court might have exercised the sentencing discretion differently;

    4. (4)

       there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

    5. (5)

       it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

25. [35]

    The aggregate sentence imposed was not unreasonable or plainly unjust for the following reasons:

    1. (1)

       the aggregate sentence imposed by Wass SC DCJ was backdated to take into account approximately 13 months pre-sentence custody such that the aggregate sentence was only partially accumulated on an 18 month non-parole period for a sentence for police pursuit. The sentence for the separate offence of steal from the person was wholly subsumed in the aggregate sentence imposed. That degree of accumulation was well within her Honour’s sentencing discretion;

    2. (2)

       the indicative sentences are not themselves excessive when regard is had to the applicable maximum penalties and also the legislative guidepost of the standard non-parole period in the case of the firearm offence;

    3. (3)

       the guilty pleas in the District Court for two of the offences were late. The applicant was found guilty in relation to the remaining offences after a trial;

    4. (4)

       the applicant committed a series of offences involving two different victims. He was also found guilty of the possession of a pistol capable of firing ball bearing ammunition;

    5. (5)

       the offences each involved serious criminality. The victim of the assault occasioning actual bodily harm in company offence was punched in the head and neck area by the applicant. The obtaining financial advantage offences involved dishonestly accessing the victim’s bank account four times and obtaining a total of $2,400. The firearm charge, although at the lower end of the scale, was nonetheless serious;

    6. (6)

       the applicant did not present a strong subjective case. The sentencing judge found the applicant’s prospects of rehabilitation were poor and correctly rejected a submission that special circumstances existed. The applicant’s extensive criminal record did not entitle him to any significant leniency. Prior to the current offences the applicant had been sentenced to full-time imprisonment by adult courts on eight prior occasions; and

    7. (7)

       the sentencing judge appropriately gave weight to general and specific deterrence in fixing the aggregate sentence.

26. [36]

    Taking all of these matters into account, the aggregate sentence fixed by her Honour, including the commencement date for that sentence and the degree of accumulation of that sentence with the sentences already being served by the applicant, was well within the range of her sentencing discretion and it has not been demonstrated to be unreasonable or plainly unjust.

27. [37]

    Leave to appeal in relation to ground 6 should be granted but the appeal should be dismissed.

Proposed orders

1. [38]

   I propose the following orders:

   1. (1)

      the order made on 5 February 2018 pursuant to s 7 of the Court Suppression Non-Publication Orders Act 2010 (NSW), that there be no publication of the applicant’s name, be discharged and the applicant hereafter be referred to by his name Anthony Ngati and not by the pseudonym “AN”;

   2. (2)

      leave to appeal against sentence granted;

   3. (3)

      appeal dismissed.

2. [39]

   GARLING J: I agree with the orders proposed by Payne JA, and with his reasons.

3. [40]

   HIDDEN AJ: I agree with Payne JA.