Farrell v R

1. [1]

   MEAGHER JA: I have had the benefit of reading N Adams J’s reasons in draft. I agree with those reasons and the orders that her Honour proposes.

2. [2]

   WILSON J: I agree with N Adams J.

3. [3]

   N ADAMS J: On 10 October 2019, the applicant was sentenced by Judge King SC for two counts of causing a detriment to a witness, contrary to s 326(2) of the Crimes Act 1900 (NSW): R v Farrell [2019] NSWDC 835. The conduct giving rise to these counts was arranging for details of two “informer” witnesses to be published on a public Instagram page. The maximum penalty for this offence is 10 years imprisonment.

4. [4]

   In imposing the sentence, his Honour took into account another offence pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), namely contravening an apprehended domestic violence order (“AVO”), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for that offence is 2 years imprisonment or a fine of 50 penalty units.

5. [5]

   The applicant had pleaded guilty to the charges before trial and received a discount of 10%. He received an aggregate sentence under s 53A of the Sentencing Act of 3 years imprisonment with a non-parole period of 1 year and 6 months. The applicant was charged with these offences on 18 December 2018. For reasons explained below, his Honour imposed the sentence to commence on 2 September 2019. The applicant’s non-parole period will expire on 1 March 2021 and his full term will expire on 1 September 2022.

Grounds of appeal

1. [6]

   The applicant relies on two grounds of appeal. The first ground contends that the sentencing judge erred by failing to backdate the commencement date of the sentence whereas the second ground contends that the sentencing judge erred by having regard to an irrelevant consideration. The grounds were expressed in these terms:

Factual background

1. [7]

   A Statement of Agreed Facts was tendered on sentence. They can be summarised as follows.

2. [8]

   Between about 2010 and 2014, the applicant was in an “off and on” relationship with a woman named “TJ”.

3. [9]

   On 6 April 2014, a number of shootings occurred in which the applicant’s brother, Cory Farrell, was implicated and later charged.

4. [10]

   On 26 June 2017, TJ signed an induced statement outlining the evidence she was prepared to give as a witness in the prosecution of Cory Farrell. In it she outlined that she was in the company of the applicant on 14 June 2017. This was in contravention of an enforceable Apprehended Violence Order (“AVO”) in place at the time.

5. [11]

   On 28 June 2018, a prisoner, “LB”, signed an induced statement outlining the evidence he was prepared to give as a witness in the prosecution of Cory Farrell.

6. [12]

   On 8 August 2018, the Office of the Director of Public Prosecutions (“DPP”) served two “informer letters” on Cory Farrell's legal representatives, giving notice that the Crown intended to call LB and TJ as informer witnesses at his trial. In accordance with the prosecutorial duty of disclosure, the letters disclosed LB and TJ’s status as informers and provided information about their motivations and benefits received. It also indicated where LB was placed within the prison population.

7. [13]

   On 21 August 2018, Corey Farrell entered a plea of guilty to his charges.

8. [14]

   As at 8 September 2018, the applicant was in custody serving a balance of parole, having been arrested on other charges in 2017 which were at that time still pending (“the 2017 charges”). He became aware of the informer reports. During four (recorded) telephone calls made from custody on 8, 9, 10 and 11 September 2017 to unidentified persons, the applicant gave directions for the creation of a public Instagram account which would contain details of the informer status of TJ and LB.

9. [15]

   The Instagram account was titled “Sydneyinformant”. Images of the informer letters detailing TJ and LB’s informer status were posted with the hashtag “supergrass”, on the applicant’s instructions. The hashtag “supergrass”, was said to be a reference to the custodial witness protection program.

10. [16]

    In a recorded call on 8 September 2018, the applicant directed someone to:

11. [17]

    In a recorded call on 9 September 2018, the applicant directed that the caption relating to TJ be amended to disclose the location of another individual, “SS”, and to add SS’s wife to the account. The motivation for this was apparently because TJ was at that time having a relationship with SS.

12. [18]

    In a recorded call on 10 September 2018, the applicant stated:

13. [19]

    In a recorded call on 11 September 2018, the applicant explained his motivation as follows:

14. [20]

    The full content of the captions to these posts was as follows:

15. [21]

    On 18 December 2018, the applicant was charged with two counts of cause detriment to witness, contrary to s 326(2) of the Crimes Act, by way of Court Attendance Notice (“CAN”) (the subject offences).

Proceedings on Sentence

1. [22]

   The proceedings on sentence took place on 3 October 2019.

2. [23]

   The Crown tendered a Crown Sentence Summary bundle comprising, inter alia, the applicant’s criminal history, custodial records and parole documents.

3. [24]

   The applicant was 35 years old at the time of sentence and had a lengthy criminal history commencing with a larceny offence and a driving offence in 2001 when he was 15 years old. He was placed on both a suspended control order and a community service order when he was 17 years old for aggravated break and enter offences. He was later called up for breaches of these orders and imprisoned. He received a suspended sentence in 2004 for an assault occasioning actual bodily harm. He was later called up for breaching that order and imprisoned. He received a good behaviour bond for intimidating a police officer in 2004. He was placed on a community service order for driving whilst disqualified in 2004. He breached that order and was called up and imprisoned. He was imprisoned for 6 months in 2006 for an assault and imprisoned for 2 years in 2007 for an aggravated break and enter. He was imprisoned for 5 years in 2007 for an armed robbery and separately for 6 months for another break and enter offence.

4. [25]

   On 13 September 2013, the applicant was sentenced to 7 years imprisonment with a non-parole period of 4 years and 6 months, on a number of charges, including an armed robbery, possessing an unauthorised prohibited firearm and an aggravated break and enter offence.

5. [26]

   On 11 February 2017, the applicant was released on parole. He had 2 years 6 months and 22 days of his parole period remaining at that time. On 5 July 2017, the applicant was arrested and charged by Court Attendance Notice with four offences.

6. [27]

   A Breach Report dated 11 July 2017 recommended that his parole be revoked because of those charges. That Breach Report described those offences as “[t]hreaten person with intent to influence witness”, “Threat/cause injury/harm to Prevent information to Police”, “Contravene prohibition/restriction in AVO – domestic x 2” and “Larceny” (with one breach AVO being the Form 1 offence). It was also noted in this Breach Report that his response to supervision prior to the breach had been “superficial”.

7. [28]

   The order of the State Parole Authority (“SPA”) dated 26 July 2017 was that his parole be revoked for a breach of the condition that he be of good behaviour because of the “outstanding charges”. The order was to be treated as having been revoked on 14 June 2017, which was the date of the alleged offences.

8. [29]

   The applicant relied upon an affidavit of Christopher John Cole affirmed on 2 October 2019, an affidavit of his mother, Yvette Lever, affirmed on 1 October 2019, a Psychological Assessment Report of Neil Ballardie dated 29 September 2019 and two letters, one from his partner, Alison Tasker, dated 1 October 2019, and one from Noelene Laver, his grandmother. Written submissions were also provided.

9. [30]

   After these documents were tendered, the sentencing judge inquired of the DPP solicitor whether there was any objection to any of the defence material and whether anyone was required for cross-examination. Both questions were answered in the negative.

10. [31]

    Mr Cole was the applicant’s solicitor. His affidavit sets out the following additional background about the procedural history of the matter.

11. [32]

    Mr Cole described in his affidavit that the 2017 charges (referred to above at [27]) related to an alleged attempt by the applicant to dissuade TJ from giving evidence in proceedings against Corey Farrell at a time when the prosecution had subpoenaed her to attend court to give evidence but she had not as yet made a statement. The applicant was refused bail on the 2017 charges.

12. [33]

    On 16 May 2018, the 2017 charges came before the Central Local Court. The charge of larceny was discharged at committal but the applicant was committed for trial on the two public justice offences. The two breach AVO charges were placed on a certificate pursuant to s 166 Criminal Procedure Act 1986 (NSW).

13. [34]

    On 18 December 2018, when the applicant was charged with the subject offences, his sister, Monique Farrell, and partner, Alison Tasker, were also charged with the same offences.

14. [35]

    A trial listed on 4 March 2019 did not proceed. It was re-listed on 30 September 2019 on the basis that the DPP foreshadowed reliance upon the subject offences as tendency evidence.

15. [36]

    On 18 March 2019, the SPA adjourned its consideration of the applicant’s parole because he had both the 2017 charges and the subject charges still pending. The applicant was not formally refused bail on the subject offences at that time.

16. [37]

    On 20 June 2019, the applicant was committed for trial on the subject offences. Mr Cole noted in his affidavit that they were not strictly indictable offences but were committed for trial so they could be joined with the 2017 offences. The charges against Ms Tasker and Ms Farrell remained in the Local Court to be dealt with summarily.

17. [38]

    On 28 June 2019, the applicant was formally refused bail in the District Court by Hosking SC ADCJ on the subject offences.

18. [39]

    In August 2019, the witness TJ died. The applicant made an application to the DPP that there be no further proceedings in relation to all charges against the applicant, Ms Tasker and Ms Farrell.

19. [40]

    On 6 September 2019, three events occurred. First, the DPP directed that the 2017 charges against the applicant (with the exception of one of the breach AVO charges) be withdrawn. Secondly, the DPP directed that the charges against Ms Tasker and Ms Farrell be withdrawn. Thirdly, the applicant pleaded guilty to the subject charges and asked that the remaining breach AVO charge be placed on a Form 1.

20. [41]

    In response to a question by his Honour, the applicant’s then counsel submitted that the relevance of Mr Cole’s affidavit was that it demonstrated that the subject offences could have been dealt with summarily and it also dealt with the relevant procedural history. The following exchange then took place about the reference in Mr Cole’s affidavit to Ms Tasker also being charged:

21. [42]

    His Honour indicated to defence counsel that he did not propose to assume that the Crown would not have elected to have these offences dealt with in the District Court rather than the Local Court considering the nature of the offending. This was accepted by counsel.

22. [43]

    As for the question of when the sentence should commence, counsel for the applicant described it as “probably the most significant issue that arises for your consideration”. Counsel then spent some time going through the history set out in Mr Cole’s affidavit. He submitted that a “fair and balanced approach” would not necessarily involve backdating the sentence from 26 July 2017 (the date of parole revocation). Rather, he submitted that it was appropriate to backdate to the date of the commission of the subject offences. This was because the applicant had lost the opportunity to have his parole reviewed between 26 July 2017 and 25 July 2018 in the light of the 2017 charges that were ultimately discontinued.

23. [44]

    It was submitted that commencing the sentence without backdating would be unfair, as it would not take into account the “various permutation[s] that would have been possible in respect of the possible actions taken by the State Parole Authority in respect of his parole, if the circumstances were different, at an earlier stage.” During this submission the following exchange took place concerning the discontinued 2017 charges:

24. [45]

    The Crown did not address orally on the appropriate commencement date for the applicant’s sentence. However, in written submissions on sentence, the Crown submitted that “the period of custody solely referable to the primary offences, taking the most generous view, is 2 September 2019. This being the date on which the balance of the revoked parole expired.”

25. [46]

    It was also submitted that the applicant’s mother had deposed to matters which entitled him to “some degree of mitigation in accordance with the principles in Bugmy”: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). The Crown responded to this by submitting that the applicant’s upbringing “perhaps does not fall within the category or the seriousness contemplated by the decision of Bugmy”.

26. [47]

    The applicant’s mother Yvette Lever deposed that the applicant grew up in a NSW regional town and was a good athlete. The family struggled financially and electricity to the house could only be obtained through a generator when there was money to buy petrol to start it.

27. [48]

    Ms Lever was the victim of domestic violence at the hands of the applicant’s father. She gave examples of the emotional abuse the applicant’s father would inflict on the applicant as including refusing to collect him from a friend’s place, thus, making him walk a very long distance home, and failing to watch his football games even though he watched his brother’s. The physical abuse was that he would hit the children over “the most minor matters or sometime for no apparent reason”. She stated this “got worse” and she moved to Sydney with the children when the applicant was 15. The move to Sydney was hard on the children and the applicant fell in with bad friends. Ms Lever now runs a café and hopes to assist the applicant to start a business buying and selling Indigenous art upon his release from custody.

28. [49]

    Mr Ballardie, psychologist, recounted the applicant’s childhood experiences as described to him. The applicant described having a positive relationship with his brother and sister and described his mother as “always supportive”. He stated that his parents often fought which “negatively impacted on him and they separated when he was about 15 years of age”. The applicant described his father to Mr Ballardie as “angry, aggressive and undermining and said that he often hit him”. He stated that he moved to live with his grandmother when he was 15 years old due to his father's violence.

29. [50]

    The applicant’s grandmother wrote a letter stating, inter alia, that the applicant’s father never showed him any love or support whilst growing up and the close relationship the applicant has with his child is something he did not have.

30. [51]

    Finally, Ms Tasker provided a letter describing how difficult her life is with the applicant in custody. She met the applicant in early 2017 (after he was released on parole). They have a son together born in early 2018 (when the applicant was back in custody). She described how difficult gaol visits are and how it upsets the applicant that he has only met his son in custody. She stated that she and the applicant have discussed that they want to have a big family and do not want their children to be around the type of life the applicant had. She explained that the applicant wants to set up a business selling Indigenous art and she is hopeful he will be able to provide for his family that way. She also stated that the applicant told her he regrets what he did and wants to do better.

Remarks on sentence

1. [52]

   In setting out the facts (as outlined above at [7]-[21]), his Honour noted that the Instagram page was set to public, which meant that anyone could view photographs posted it to. After setting out the factual summary, his Honour noted that the applicant’s conduct caused detriment to the victims by damaging their reputation and isolating them. He also noted that the applicant was in custody at the time and had been charged with “similar offences”. Furthermore, he noted that the conduct clearly was not designed to force the witnesses to withdraw their statements, as the applicant’s brother had already pleaded guilty. His Honour then stated:

2. [53]

   His Honour added:

3. [54]

   In fact, LB was in the custodial witness protection program, and, as his Honour noted, this was identified to the “criminal milieu” by the usage of “#supergrass”. His Honour further noted the risk posed to TJ through the applicant exposing that she was in a relationship with the prisoner SS, who was married. SS was similarly endangered as someone having a relationship with an informer. As such, his Honour characterised the offending as a “serious example” of “like offending”. His Honour stated:

4. [55]

   His Honour then dealt with the applicant’s custodial history, in particular the discontinued 2017 charges. He stated that the charges related to an attempt to prevent TJ from giving evidence in the proceedings against the applicant’s brother. He then dealt with the circumstances surrounding the applicant’s parole being withdrawn, which I have dealt with above at [27]-[28].

5. [56]

   His Honour noted that during the period of the applicant’s release from custody, before the July 2017 charges were brought, he had entered into a relationship with Ms Alison Tasker. A child of that relationship was born in January 2018, by which time the applicant’s parole had been revoked. His Honour noted the withdrawal of the 2017 charges and stated:

6. [57]

   In relation to the subject offences, his Honour noted:

7. [58]

   Turning to the applicant’s personal circumstances, his Honour noted the defence material tendered on sentence. He noted that the applicant had suffered financial hardship in childhood and that his father was aggressive and sometimes violent. His Honour then summarised the applicant’s evidence that Ms Tasker was a “supportive and loving” partner to the applicant, although noting that:

8. [59]

   His Honour found that the applicant had experienced difficulties adjusting to the schools in Sydney and left in Year 11 to commence a panel-beating apprenticeship. He did not complete it. He started a lawn mowing and gardening service in 2011 but was subsequently incarcerated. His Honour then stated:

9. [60]

   His Honour then addressed the applicant’s prior offending, noting that “it is obvious from his criminal history that he has committed a number of serious offences over the years, and he has spent a number of periods of imprisonment, commencing from 14 October 2004.” He also noted the applicant’s apparently “superficial” attitude to parole. In relation to the applicant’s situation with Ms Tasker and their child, he noted that:

10. [61]

    In relation to the weight that this reference should be given, he observed:

11. [62]

    His Honour found that the applicant did not express remorse or contrition despite his plea of guilty. He also found that the applicant’s likelihood of rehabilitation was poor. In doing so, he accepted the following passage from the Crown submissions on sentence:

12. [63]

    When deciding at what point to commence the applicant’s sentence, his Honour noted stated the following:

13. [64]

    His Honour considered general deterrence to be important, given that the offences related to the integrity of the justice system. As for the need for specific deterrence, his Honour observed the following:

14. [65]

    His Honour then stated “[a]ccordingly, I intend to date the sentence from the date of the expiry of the parole period”. After announcing the sentence his Honour concluded by stating:

The applicant’s submissions

1. [66]

   The applicant noted the decision in Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131 as authority for the proposition that his Honour was not required to take into account the periods of pre-sentence custody not referable to the subject offences. It was accepted that the commencement date of the sentence was a matter for his Honour’s discretion, subject to considerations of fairness in all the circumstances: Callaghan v The Queen (2006) 160 A Crim R 145; [2006] NSWCCA 58 (“Callaghan”).

2. [67]

   As to Ground 1(a), the applicant submitted that his Honour had misunderstood the scope of his discretion. In reliance on his Honour’s reference to s 47(3) of the Sentencing Act, it was submitted his Honour had erroneously assumed that the commencement date was resolved by the fact that the balance of parole did not expire until 2 September 2019.

3. [68]

   It was submitted that it was matter of “form over substance” to suggest that the applicant was not bail refused on the subject charges until 28 June 2019 because the charges relevant to the appeal were not instigated until the service of a future CAN upon him whilst in custody on 18 December 2018.

4. [69]

   Under Ground 1(b), the applicant noted that he would have been eligible for consideration for parole from 5 July 2017 until 18 December 2018 if it were not for the discontinued 2017 charges. The factual allegations which caused the revocation of his parole were never established and bail was never granted for the 2017 charges.

5. [70]

   It was also alleged under Ground 1(b) that the sentencing judge erred when he had regard to the fact that the applicant’s parole was revoked for "similar offences” to the subject offences as a factor relevant to the sentence not being backdated to a date prior to 2 September 2019. The applicant also submitted that his Honour had erred in stating that specific deterrence was enhanced because of these “similar offences”. The applicant pointed out that the 2017 charges had not been proved.

6. [71]

   In relation to Ground (1)(c), the applicant submitted that the SPA usually considers individuals for parole on an annual basis. As the applicant was bail refused on the 2017 charges from 5 July 2017, he submitted that he had lost the chance for his parole to be granted after he committed the subject offences. Mr Barrow emphasised that at the time of sentence, the only extant offence from 5 July 2017 was the matter on the Form 1 and this had kept the applicant from being considered for parole.

7. [72]

   Finally, under Ground 1 (d) the applicant submitted that his Honour failed to have regard to the fact that he had been bail refused on the two Form 1 offences which were part of the 2017 charges. His Honour did not take this into account in fixing the commencement date of the sentence. Reliance was placed on the observations of Hidden J in Sultana v R [2007] NSWCCA 107 that justice normally demands that Form 1 matters should be taken into consideration when backdating a sentence.

8. [73]

   In relation to Ground 1 overall, it was submitted that it was an “erroneous approach” for his Honour to backdate the sentence to 2 September 2019. He submitted that if the sentence actually commenced on 5 July 2017 and coincided with the entirety of the applicant’s time in custody, the applicant was effectively sentenced to five years and almost four months in custody. It was also noted that the applicant’s then counsel had not endorsed the approach eventually taken by his Honour. Rather, he had sought a “balanced approach”.

9. [74]

   As for Ground 2, the applicant relied upon the exchanges between the applicant’s then counsel and the sentencing judge concerning Ms Tasker’s potential involvement in the subject offences extracted above at [41].

10. [75]

    Overall, it was submitted that if error was established there were “strong grounds” for imposing a lesser sentence. These included the fact that the applicant had spent from 5 July 2017 until at least 25 August 2018 in custody because of now-discarded charges, his disadvantaged background and the fact that he currently has strong family support. It was submitted that this Court should backdate the sentence at a point “well before 2 September 2019” to accommodate the unusual features of the case. This would mean that his non-parole period would be less than 50% and this was unusual. Nonetheless, he submitted a restructuring of the statutory ratio could still be beneficial to the applicant.

Crown submissions

1. [76]

   In response to Ground 1 overall, the Crown submitted that, in practical terms, his Honour reduced the non-parole period to 10 months and 2 days by backdating the sentence by 1 month and 2 days, in addition to finding special circumstances. The Crown submitted that, mathematically, this meant that the applicant received 74% of what he advocated for at sentence. That is, if the sentencing judge had backdated the sentence to 25 August 2018 (as requested), it would have had the effect of reducing the non-parole period by 13 months and 16 days. Instead, by varying the statutory ratio and backdating to the extent he did, his Honour allowed for 10 months and 2 days (306 days). This was approximately 74% of the requested reduction of 13 months and 16 days (412 days). That is, the dispute between what was sought and what was received was about 3 months.

2. [77]

   When addressing Ground 1(a), the Crown relied upon the decisions in Hutchen v The Queen [2015] NSWCCA 101 (“Hutchen”), Callaghan and Refaieh v R (2018) 272 A Crim R 245; [2018] NSWCCA 72 and re-iterated that there is a general discretion as to whether to backdate when an offender has spent time in custody for offences which are not directly related to the offences for which they are being sentenced.

3. [78]

   In terms of Ground (1)(b), the Crown submitted that it is evident from the transcript of the proceedings on sentence and his Honour’s Remarks that he was aware that the 2017 charges had been discontinued. It was submitted that his Honour’s consideration of the 2017 charges was limited to considering the state of mind of the applicant at the time of offending.

4. [79]

   The Crown further noted that Ground 1(c) rested on a number of hypotheticals. It was submitted that the applicant would not have necessarily been released on parole, especially given the evidence of his previously “superficial” compliance with it. As such, the Crown distinguished this case from one such as R v Kitchener [2003] NSWCCA 134.

5. [80]

   When responding to the applicant’s use of Sultana v R to support Ground (1)(d), the Crown noted that Hidden J had refrained from construing ss 24(a) and 47(3) to render the time in pre-sentence custody referable to Form 1 matters a mandatory consideration for the purpose of backdating a sentence. In addition, in Sultana v R, parole was revoked solely on account of the Form 1 offence and the two offences listed on the Forms 1 were of the same nature as the offence on the indictment.

6. [81]

   In relation to Ground 2, it was submitted that the weight to be given to the matters raised by Ms Tasker was a matter of discretion for the judge. The Crown referred to the fact that his Honour had the affidavit of Mr Cole before him which included the fact that Ms Tasker had been charged with the same offences as the applicant. It was, thus, open for him to make inferences and afford her statement less weight.

7. [82]

   As for the failure to find remorse in Ms Tasker’s statement, the Crown distinguished this case from those where the Crown has completely failed to object to a sworn affidavit by the applicant that contained expressions of remorse (see Van Zwam v R [2017] NSWCCA 127). In such cases, it is not open to the sentencing judge to reject a submission that the remorse is not genuine. Here, as indicated in the Crown written submissions, the Crown had submitted generally that the applicant's statements of remorse to the psychologist and members of his family were untested evidence and, therefore, could be afforded little or no weight. As such, the Crown submitted the finding of reduced weight was open to his Honour.

8. [83]

   Overall, it was submitted that his Honour gave a considerable discount by reducing the non-parole period to 50% based on the custodial history. It was submitted that his Honour was permitted to have regard to the 2017 charges when considering deterrence. Furthermore, any potential adverse effect of the discontinued charges was clearly negated by his Honour’s generous finding of special circumstances. Even if error was established, the Crown submitted that no lesser sentence was warranted, having regard to the objective seriousness of the offending, the limited subjective factors in favour of the applicant, and the generous reduction in non-parole period already given.

Consideration

1. [84]

   Section 24(a) of the Sentencing Act provides that, in sentencing an offender, the court must take into account “any time for which the offender has been held in custody in relation to the offence” (emphasis added). Section 47(1) of the Sentencing Act provides that sentences are to generally commence on the day they are imposed, s 47(2) provides courts with a general discretionary power to backdate the commencement of sentences and s 47(3) requires a sentencing court exercising its discretion under s 47(2) to take into account time the offender has been held in custody “in relation to the offence”.

2. [85]

   It was common ground in this matter that there was no requirement for the sentencing judge to backdate the sentence to any particular date, so long as his Honour took into account the time spent in custody “in relation to” the subject offences. At the time of sentence on 10 October 2019, the applicant had been held in custody for 2 years and 3 months (since 5 July 2017) for the following reasons:

   1. (1)

      From 5 July 2017 he was bail refused on the 2017 charges which were later discontinued (except for one of the two breach AVO matters )

   2. (2)

      From 14 June 2017 he was taken to be serving a balance of parole (to expire on 2 September 2019) due to the 2017 charges (this was the date of the alleged breach of parole).

   3. (3)

      From 28 June 2019 he was bail refused on the subject charges.

3. [86]

   Thus, consistent with ss 24(a) and 47(2) of the Sentencing Act, the only period that the sentencing judge was required to have regard to, insofar as the commencement date was concerned, was from 2 September 2019 when his parole period expired to 10 October 2019. Despite this, his Honour’s discretion was broad.

4. [87]

   There is no doubt that an inmate who spends time in custody bail refused on charges which are later withdrawn or in relation to which he or she is subsequently acquitted might feel aggrieved. As the decision in Hampton v R confirmed, time spent in custody in relation to one offence cannot be “banked” such that if the applicant is subsequently acquitted on that charge it must be applied to the present sentence. A similar situation arose in Refaieh v R where the offender had been granted bail on the subject offence but remained in custody because he was bail refused on a matter which was subsequently no-billed. This Court (Hoeben CJ at CL, Johnson J and N Adams J) considered the authorities, including Callaghan and Hutchen, and held (at [56]) that there is no authority for the proposition that the words “in relation to” in s 47(3) of the Sentencing Act “ought to be construed so broadly as to include time when the applicant was on bail for the offence but not eligible to be released because of other charges”.

5. [88]

   All of these principles were accepted by the applicant. The complaint under Ground 1 was that his Honour made a number of discrete errors which caused the sentencing discretion to miscarry in one of the ways set out in House v The King (1936) 55 CLR 499; [1936] HCA 40.

6. [89]

   First, it was contended that the sentencing judge erred in failing to recognise the scope of his discretion. The scope of the discretion is discussed by Simpson J (as her Honour then was) in Callaghan. In that matter the offender’s parole had been revoked because of the commission of a subsequent offence and the sentencing judge had commenced the offender’s sentence after the balance of parole had expired. Simpson J, with whom James and Hall JJ agreed, held that a discretion exists in terms of whether to backdate the sentence to the date parole was revoked, to another point in time during the parole period, or to after the head sentence had expired: at [24]-[25]. That is, when an offender has been in custody both serving a balance of parole and bail refused on the subject offences, the question as to when the sentence could commence is a matter of a broad discretion exercised to do justice in the circumstances of the particular case.

7. [90]

   The sentencing judge was aware of this discretion, as he expressly referred to the decisions in Callaghan and Hutchen in the passage extracted above at [63]. The applicant’s complaint is that by referring to s 47(3) of the Sentencing Act in this passage his Honour misunderstood the scope of his discretion. Given that his Honour had just (correctly) cited Callaghan, I am not satisfied that this was case.

8. [91]

   As for Ground 1(c), it is to be accepted that the sentencing judge made no specific reference to the fact that the (discontinued) 2017 charges had precluded the applicant from being reconsidered for parole on a number of occasions. But what his Honour did is refer to the fact that at the time of this offending the applicant was in custody, parole revoked, pending resolution of the 2017 charges, the fact that on 18 March 2019 no action was taken by the SPA on the parole revocation because the 2017 charges were still pending and the fact that on 6 September 2019 the 2017 matters were discontinued. I am satisfied that his Honour was aware that the applicant remained serving his balance of parole due to the 2017 charges and that those matters were subsequently discontinued. It could not be said that this issue was overlooked nor that it required his Honour to backdate the sentence.

9. [92]

   As for Ground 1(d), it is clear that his Honour failed to take into account that the applicant had been bail refused from 5 July 2017 on the breach AVO offence taken into account on the Form 1. The question is whether this failure constitutes an error. Reliance was placed on the decision of Sultana v R in which this Court (Hidden J with whom McClellan CJ at CL and Rothman J agreed) considered whether s 47(3) applies to an offence on a Form 1, rather than an offence on an indictment. In that context, Hidden J observed the following at [15]:

10. [93]

    It was certainly well open to his Honour to have regard to this fact but I am unaware of any authority for the proposition there is a requirement to do so and in any event the applicant was not in custody solely for the Form 1 offence at any time.

11. [94]

    As for Ground 1(b), I am satisfied that the sentencing judge erred in the manner in which he treated the (discontinued) 2017 charges. The relevance of those charges was that they were the reason for the applicant’s parole being revoked. The Crown did not lead any evidence about the factual basis for those charges. It was the affidavit of Mr Cole that introduced this evidence. The 2017 charges were discontinued. There had been no factual findings in relation to them. Despite this, his Honour appears to have treated the charges as proved, or at least as having substance, in the following respects:

    1. (1)

       At [20], his Honour stated that it was “of relevance” that the offending conduct occurred while the applicant was in custody, “having been parole-revoked and charged with offences of a similar kind.”

    2. (2)

       At [37], his Honour observed that it was “of significant concern” that the offender, having been charged with offences that resulted in his parole being revoked and his return to custody, went on to commit further offences of a very similar nature to the offences that had caused the revocation of his parole”. His Honour then observed that “[a]pparently, he learned nothing from the fact that his parole had been revoked for committing similar offences.” (Emphasis added.)

    3. (3)

       At [49], in the context of Ms Tasker’s letter his Honour observed that “[h]aving been charged with like offending, he went on to commit these offences shortly after the birth of the child.”

    4. (4)

       At [53], in the context of finding that the applicant’s prospects of rehabilitation were poor his Honour accepted a Crown submission that he committed the subject offences having been bail refused on similar charges involving the same alleged victim.

    5. (5)

       At [57], in the context of his Honour considering when to backdate the sentence, it was noted that “[p]rior to 2 September 2019, the offender was in custody, bail refused on the like charges from 2017.”

    6. (6)

       It was not until [58] when his Honour found that specific deterrence was of particular importance because the offending was of a “like nature” to the previous charges that his Honour went on to add the words “although those matters eventually were not proceeded with”.

12. [95]

    The true position was that the subject offences were committed whilst the applicant was serving parole for offences with which he was dealt with in 2013. The balance of that parole was revoked because he was charged with similar offences to the subject offences. However, those similar offences were never proved. That notwithstanding, for the purposes of sentencing the applicant his Honour appears to have placed significant weight on the similarity between the discontinued 2017 charges and the subject charges in exercising the power to backdate the sentence.

13. [96]

    In doing so, his Honour took into account a matter which was not established to be the fact. In the language of House v The King, he mistook the facts, treating the 2017 charges as if they had been established, or at least likely to have been committed.

14. [97]

    I would uphold Ground 1.

15. [98]

    As outlined above, the applicant’s partner Ms Tasker provided a letter to the Court. The Crown did not seek to cross-examine Ms Tasker, so her evidence was not challenged. There was no evidence before his Honour as to the basis upon which Ms Tasker had been initially charged before her proceedings were discontinued.

16. [99]

    As with all material tendered on proceedings on sentence, it was a matter for the sentencing judge as to how much weight he placed on Ms Tasker’s letter. A complaint that too much or little weight was placed on a particular sentencing factor will not establish House v The King error. The nub of this ground, however, is not that his Honour placed insufficient weight on Ms Tasker’s letter, but that he took into account an irrelevant consideration in doing so, being the fact that she was charged “as being involved in the present offending, even though the charges have been discontinued.” The fact that the charges were discontinued means that there was no finding of fact in relation to whether Ms Tasker had or had not been involved in this way.

17. [100]

    Despite the fact that the Evidence Act 1995 (NSW) does not apply to sentencing proceedings, unless an order is made under s 4(2)(a), they are still adversarial in nature. The Crown’s express position was that it did not object to the admission of the letter or require to cross-examine Ms Tasker. No Crown submissions were made about her. Significantly, the applicant’s counsel submitted that it would be “unsafe” to draw an inference adverse to her credibility in this regard.

18. [101]

    It is to be accepted that his Honour did not reject the letter outright but, as I have already stated, the error is not the fact that he placed so little weight on it but the fact that he took into account an irrelevant consideration without warning that he would do so.

19. [102]

    I would uphold Ground 2 as well.

20. [103]

    Since error has been found, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601 at 618; [2014] HCA 37 at [43].

21. [104]

    In undertaking the sentencing discretion afresh the Court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25 at [51] and confirmed by the Court in Muldrock v The Queen (2011) 244 CLR 120 at 131; [2011] HCA 39 at [26]. The maximum penalty of 10 years is a guidepost to which I must have regard.

22. [105]

    These were serious public justice offences, committed in custody whilst serving a balance of parole. The applicant is to be sentenced on the basis that his conduct caused an actual detriment to the two victims, rather than simple threats. As the sentencing judge observed, his offending conduct was “premeditated, deliberate, continuing and involved recruiting others to achieve his criminal objective”. The conduct represented a direct attack upon the justice system and, as his Honour observed, had the potential to limit the prospect of informers coming forward in the future.

23. [106]

    In re-sentencing the applicant, I would place some weight on the letter from Ms Tasker. It was not suggested in this Court that I would depart from the findings of the sentencing judge regarding objective seriousness (approaching mid-range) or the discount for the plea of guilty (10%). As for remorse, nothing was put to the Court to the effect that a different finding should be made on that issue either. Having had regard to Mr Ballardie’s report and the letter of the applicant’s mother, grandmother and partner, I am not satisfied that the applicant has demonstrated genuine remorse.

24. [107]

    It was submitted that on re-sentence this Court would find the Bugmy principles applicable. The sentencing judge had rejected that submission and made the following finding:

25. [108]

    In Bugmy, the High Court considered, inter alia, the question of the relevance of an offender’s deprived background. The DPP acknowledged in the High Court that “the effects of profound deprivation do not diminish over time” and submitted that “they are to be given full weight in the determination of the appropriate sentence in every case” at [42]. In that context, the High Court went on to observe at [44] (footnote omitted):

26. [109]

    I have set out the applicant’s childhood above. When the sentencing judge held that this is not a matter in which the Bugmy factors “have any application”, his Honour was making an evaluative assessment in relation to which judicial minds may differ. That assessment was as to whether the applicant’s childhood could be described as one of “profound” deprivation. The High Court held that the effects of “profound” childhood deprivation should be given "full weight" in “every sentencing decision”. There can be no doubt that the applicant had a deprived childhood, although there was no material placed before the Court that he was exposed to “extreme violence and alcohol abuse”. Despite this, I would have regard to the applicant’s unfortunate childhood as one of many factors relevant to the sentencing process.

27. [110]

    It was also submitted that on re-sentence this Court would find special circumstances for the purpose of s 44(2) of the Sentencing Act on a basis other than that found by the sentencing judge. That submission raises an interesting question concerning the competing considerations relevant to the expiration of the new non-parole period.

28. [111]

    The applicant’s then counsel had submitted that the sentence should have commenced from around the date of the offending behaviour, which was 8-11 September 2018. The Instagram page was public until 12 November 2018 and the applicant was charged on 18 December 2018. I would be prepared in the exercise of my independent sentencing discretion to commence the sentence on 18 December 2018. This was the date he was charged with the subject offences and he continued in custody from that date on the other matters. His parole was not breached by reason of the subject offences. The sentence I have independently arrived at is also an aggregate sentence of 3 years. I have also arrived at the same indicative sentences, namely 2 years and 4 months in relation to the offence of cause detriment to a potential witness TJ and 2 years and 6 months in relation to the offence of cause detriment to a potential witness LB (with the Form 1 offence).

29. [112]

    Given that I would backdate the sentence to the time of charge (even though he was not strictly in custody in relation to this offence until 28 June 2019), I see no reason to make the same variation to the statutory ratio in s 44(2) of the Sentencing Act. The only basis for a variation of the statutory ratio by the sentencing judge from 75% to 50% was that the applicant had already spent so long in custody. His Honour indicated that he wanted to maintain a 75% ratio between the time he first came into custody on 5 July 2017 and the date he will be eligible for parole. I would propose to adopt the same course. I would impose a sentence of 3 years imprisonment to commence from the date of charge, 18 December 2018. Maintaining the 75% ratio between the period he will have spent in custody both serving his balance of parole and this sentence results in a variation of the statutory ratio to 61%.

ORDERS

1. [113]

   I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed on the applicant in the District Court on 10 October 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW):

   4. (4)

      Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: