Ingray v R

1. [1]

   DAVIES J: I agree with Cavanagh J.

2. [2]

   CAVANAGH J: The applicant seeks leave to appeal from the sentence imposed upon him by Judge King SC in the District Court in respect of a total of 34 offences committed during the period November 2018 to February 2019.

3. [3]

   The applicant was sentenced to an aggregate sentence of 11 years and 6 months with a non-parole period of 8 years.

4. [4]

   Of the 34 offences the applicant had disputed only four. On 9 April 2021, the applicant was found guilty after a trial by jury in respect of four separate offences which occurred on 12 February 2019 in the company of three co-offenders. Those offences were aggravated break and enter and commit serious indictable offence; steal motor vehicle; and two charges of assault with intent to rob while armed with an offensive weapon under the Crimes Act 1900 (NSW).

5. [5]

   Prior to the commencement of the trial, the applicant pleaded guilty to 20 further offences which were all said to have been committed between November 2018 and February 2019. There were a further 10 counts of similar charges dealt with on a Form 1 and a further four matters relating to driving whilst unlicensed on a s 166 certificate.

6. [6]

   Annexed to this judgment is a table providing details of all of the offences involving the applicant, the findings as to objective seriousness and the indicative sentences imposed by the sentencing judge.

7. [7]

   The applicant relies on three grounds of appeal being:

   1. (1)

      the sentencing judge erred by finding that there was no evidence of remorse;

   2. (2)

      the sentencing judge erred by failing to have regard to the impact of COVID-19 on the applicant’s conditions of custody; and

   3. (3)

      the sentence was manifestly excessive.

8. [8]

   The applicant does not challenge the findings as to objective seriousness or any findings of fact, except those that may relate to ground 1.

9. [9]

   The applicant was sentenced on 27 January 2022. His Honour, the sentencing judge, also sentenced two of the co-offenders, Mr William Haines and Mr Aaron Brown. Mr Ty Simms and another related offender, Mr James Kavanagh, were sentenced separately by Norton SC DCJ on 30 September 2021 and Yehia SC DCJ (as her Honour then was) on 31 July 2020.

10. [10]

    On sentence the applicant relied on:

    1. (1)

       a sentence assessment report dated 18 August 2021;

    2. (2)

       a psychological report of Dr Sidhu dated 4 August 2021;

    3. (3)

       an affidavit from his brother dated 17 August 2021; and

    4. (4)

       a custody management record dated 15 February 2019.

11. [11]

    The applicant did not give evidence on sentence.

12. [12]

    The applicant filed an affidavit dated 5 October 2023 which was received for the purposes of re-sentencing (if that arises).

Background

1. [13]

   The offending involved the applicant acting in a series of joint criminal enterprises with one or more co-offenders, which involved planning and organisation. The applicant and his co offenders would travel in stolen vehicles late at night or early in the morning to places where they anticipated being able to locate targets for their offending. They would drive to an area and break into houses or business premises. They would use housebreaking implements, such as metal bars. Vehicles would be stolen for use in the related offending.

2. [14]

   All of the offences involved residential or business premises and were committed in company. Many of the offences were aggravated.

3. [15]

   Counts 10, 11, 18 and 28 involved the applicant attending a private residence where he was either observed by or engaged in a confrontation with victims. Further, in respect of many of the counts, people were in their homes during the offending conduct.

4. [16]

   The conduct constituting counts 9 and 10 involved the applicant and two co-offenders using stolen vehicles to follow two victims travelling in their own vehicle. When the victims arrived at their business premises, the applicant and his co-offenders parked the two stolen vehicles in front and behind the victims’ vehicle to prevent them from leaving. Whilst the female victim called triple 0 and the male victim locked the car, one of the co-offenders carrying a metal bar tried to gain entry to the vehicle. The victims were able to escape by nudging the vehicle out of the way. Even as they fled, they were pursued by the applicant and his co-offenders.

5. [17]

   The sentencing judge accepted that the applicant acted jointly with one or more of the other four co-offenders in respect of each offence. Indeed, out of all the co-offenders, the applicant was sentenced for the highest number of offences.

6. [18]

   All of the offences were committed whilst the offender was on conditional liberty. He was only released on parole on 16 October 2018. He began to re-offend on 29 November 2018.

7. [19]

   Although the applicant was involved in more offences than any of his co-offenders, the sentencing judge did not find that he was the ringleader. Indeed, his Honour accepted that each of the matters should be regarded as a series of separate joint criminal enterprises with equal criminality between those participating on each occasion.

8. [20]

   The findings on objective seriousness are set out in the attached table, Appendix 1 Ingray v R - Appendix (368214, pdf). To the extent that his Honour specified a point in the range in respect of each offence, all of the offending was described as between mid-range down to low-range. There were a number of mid-range offences. There is no challenge to his Honour’s findings on objective seriousness.

9. [21]

   Although the applicant was only 24 at the time of the sentence, he already had an extensive criminal history and he had only been released from prison a month earlier. He had been before the court on many occasions as a juvenile and as an adult in respect of similar types of offending.

10. [22]

    His Honour referred to the offender’s traumatic childhood. The applicant said that he grew up impoverished and was often hungry. He grew up in the housing commission community where he said that crime, deprivation and violence were ever-present. By the age of nine he had developed a negative attitude toward police. By the age of 11 he had begun to fight at school and his rate of attendance had dropped. He was sent to live with his uncle. He stayed there for a year before returning to live with his mother.

11. [23]

    His mother died when he was 12. This had a substantial effect on him. He says this caused the collapse of his family unit as his father was a recluse. Whilst in juvenile detention, around the age of 13, he was subjected to an incident of sexual abuse. He began to use Xanax and Methylenedioxymethamphetamine, or “ecstasy”. He said that he and one of his brothers went off the rails completely, smoking cannabis, stealing cars and being arrested for various offences.

12. [24]

    By the age of 16 he had graduated to more serious offending, such as aggravated break and enter, common assault, assault occasioning actual bodily harm, damage property and robbery in company. He completed Year 10 in custody.

13. [25]

    He has only spent nine months in the community since his 18th birthday. He has never worked in the community.

14. [26]

    He said his offending was directly related to the need to make money quickly to support his drug addiction. He said he was under the influence of drugs when he committed the offences for which he accepted his guilt.

15. [27]

    His son was born on 12 August 2019 whilst he was in custody. He said that he hoped to gain custody of his son in due course and hoped to have a strong relationship with his son.

16. [28]

    His Honour assessed the prospects of re-offending as high to medium-high and did not accept that there were good prospects of rehabilitation, finding that the prospects must be considered “guarded”.

17. [29]

    His Honour went on to find that there were significant differences between the applicant and some of the co-offenders, particularly Mr Kavanagh and Mr Simms. Further, his Honour observed the lack of commonality between the ways in which the matters were placed before the Court in respect of each offence.

18. [30]

    His Honour did not accept that the applicant had demonstrated remorse, suggesting he was simply “mouthing a platitude that he anticipated might derive some benefit on sentence”. Indeed, his Honour made the same observation in respect of all of the co-offenders. His Honour stated:

19. [31]

    His Honour went on to note that the applicant did not give evidence on sentence which made it difficult for the Court to appreciate whether he was, in fact, contrite or remorseful and, further, that pleas of guilty were not, in the circumstances his Honour outlined, a sign of remorse or contrition.

20. [32]

    His Honour accepted that the commission of the offences whilst on parole was a significant aggravating feature.

Ground 1 – Remorse

1. [33]

   The applicant does not challenge his Honour’s finding in respect of the four counts which proceeded to trial but says that his Honour should have found remorse in respect of the other offending.

2. [34]

   The applicant relies on s 21A(3)(i) of the Crimes (Sentencing Procedure Act) 1999 (NSW) (“CSP Act”), contending that the sentencing judge erred in finding that there was no evidence of remorse in respect of the offences to which the applicant pleaded guilty.

3. [35]

   The applicant submits that his remarks to Dr Sidhu, psychologist, and Ms Smith, the author of the sentencing assessment report, provide cogent evidence of “genuine regret” over and above his pleas of guilty and should have been understood within the context of the applicant’s profoundly disadvantaged upbringing: see Patel v R (2022) 366 FLR 314; [2022] NSWCCA 93 at [41] per Brereton JA (N Adams and Lonergan JJ agreeing).

4. [36]

   Further, the applicant submits that his reflection that the victims’ experience would have been frightening is an acknowledgement that he has caused injury, loss or damage by virtue of his actions and demonstrates degree of insight into the impact of his offending.

5. [37]

   Finally, in relation to his Honour’s finding that the applicant was “simply mouthing a platitude that he anticipate[s] might derive him some benefit on sentence”, the applicant submits that such a finding failed to contextualise the comments made against the backdrop of his longstanding addiction issues and consequential cycle of recidivism. I take this submission to mean that the sentencing judge should have considered the applicant’s words in the context of his disadvantaged background in the sense that his words may be less sophisticated or more limited but still should have been accepted as a genuine reflection of his remorse.

6. [38]

   I do not accept that error has been shown for a number of reasons.

7. [39]

   Firstly, in circumstances in which an offender chooses not to give evidence on the sentencing hearing, it is well-established that a sentencing judge is entitled to exercise caution in assessing remorse.

8. [40]

   In Imbornone v R [2017] NSWCCA 144 (“Imbornone”) the Court (per Wilson J at [57], with whom Hoeben CJ at CL and R A Hulme J agreed), summarised the principles in respect of statements made to third parties about remorse, as follows:

9. [41]

   Those principles are particularly apt in this matter as the applicant sought to rely on untested statements made to a psychologist and a Corrective Services officer which were neither direct nor specific and were said to provide the foundation for a finding of remorse. His Honour observed (correctly) that as the applicant did not give evidence on sentence, it was difficult to appreciate whether he was contrite and remorseful.

10. [42]

    Secondly, it is not suggested that the sentencing judge overlooked critical evidence or that his Honour misapplied principle. The challenge by the applicant is really that his Honour took a mistaken view of the evidence.

11. [43]

    This Court’s power to intervene depends on an acceptance or error, either of a specific type as referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House”) or of a different type, such as manifest excess: see Finnigan v R [2022] NSWCCA 181 at [41].

12. [44]

    The question which arises is thus whether the finding was open on the material before the sentencing judge: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131] per Beech-Jones CJ at CL (as his Honour then was), N Adams and Cavanagh JJ agreeing; Azzopardi v R [2019] NSWCCA 306 at [36]-[39].

13. [45]

    In my view, the applicant has not established that the finding on remorse was not open on the material. His Honour considered the evidence which might be suggestive of remorse on the part of the applicant and made findings about it. For example, his Honour did not accept what was referred to in the report of Dr Sidhu as being a sign of remorse, but rather considered it a “common sense acknowledgement of the impact of the offending”.

14. [46]

    Further, his Honour expressed doubt at some of the statements said to have been made by the applicant to the psychologist. For example, his Honour did not accept the suggestion that the applicant had made the decision to break into properties late at night to avoid confrontation with victims, observing that breaking into residential premises at night is always likely to be in such circumstances where confrontation may occur.

15. [47]

    I also do not accept that reference to s 21A(3) of the CSP Act assists the applicant. Section 21A(3) lists the mitigating factors that must be taken into account in determining the appropriate sentence for an offence, which includes:

16. [48]

    The applicant did not direct his Honour to any part of s 21A(3)(i) during the sentencing hearing. Further, if the applicant was intending to submit that satisfaction of s 21A(3)(i)(i) and (ii) necessarily leads to a finding of remorse, I disagree.

17. [49]

    Sections 23A(3)(i)(i) and (ii) limit the circumstances in which the Court may find remorse, but they are not definitional in their terms. The words “but only if” operate to preclude a finding of remorse unless those subsections are satisfied but do not operate to mandate a finding of remorse. It does not follow that a finding of remorse must be made if those subsections are satisfied.

18. [50]

    In my view, the findings on remorse were open to the sentencing judge and ground 1 has not been made out.

Ground 2 – The impact of COVID-19

1. [51]

   Although neither the applicant nor the Crown referred to the impact of COVID-19 during their oral addresses, paragraph 46 of the applicant’s written submissions on sentence included the following:

2. [52]

   The sentencing judge did not address any COVID-19 factors except as follows:

3. [53]

   The applicant contends that, despite the sentencing judge’s reference to COVID-19 in this passage, his Honour erred in not having regard to the impact of COVID-19 on the applicant’s condition in custody.

4. [54]

   The applicant relied on the Crown submissions on sentence on behalf of a co-offender, Mr Simms as follows:

5. [55]

   The applicant submits that the written submissions in Mr Simms’ case formed part of the material put before his Honour for the purposes of sentencing the applicant and his Honour should have had regard to them, albeit he was not directed to that material on sentence.

6. [56]

   The applicant sought to rely on the reduction in the statutory ratio in Mr Simms’ case to 50%, coupled with the concession by the Crown in that case as to the impact of COVID-19, as exemplifying the failure of the sentencing judge to pay proper regard to the COVID-19 pandemic in this matter.

7. [57]

   The applicant’s ultimate submission under ground 2 was that the sentencing judge erred in not adjusting the statutory ratio to a greater degree so that the applicant would spend a longer time on parole.

8. [58]

   The Crown submits that no error has been demonstrated, suggesting that the evidence as to the impact of the COVID-19 pandemic on the applicant was limited and his Honour addressed that evidence when referring to the rarity of face-to-face visits in the time of COVID-19.

9. [59]

   A finding of special circumstances is a discretionary finding of fact: R v El-Hayek (2004) 144 A Crim R 90; [2004] NSWCCA 25 at [105] per Howie J (Hodgson JA and Grove J agreeing). The same principles apply to this ground as apply to ground 1.

10. [60]

    Further, whether a sentencing judge has had regard to a relevant factor on sentence must be considered having regard to the sentencing judgment as a whole: Miller v R [2023] NSWCCA 267 at [24] per Kirk JA (Rothman and N Adams JJ agreeing).

11. [61]

    It is well established that the Court may have regard to the impact of the pandemic as part of the process of determining the appropriate sentence and, in particular, in considering whether special circumstances exist to justify a longer period on parole: Scott v R [2020] NSWCCA 81; McKinnon v R [2020] NSWCCA 106 at [32].

12. [62]

    However, the issue on this appeal is not whether the COVID-19 factors are matters that might be taken into account on sentence, but whether the sentencing judge erred in not having regard to them in assessing the applicant’s sentence.

13. [63]

    In my view, there are three principal difficulties for the applicant in establishing error under this ground being:

    1. (1)

       the sentencing judge did refer to the impact of COVID-19, at least as far as its impact on visits with the applicant’s two-year-old son and the effect of that. This must be taken to be a direct response to the written submission made by the applicant (first part of paragraph [45] of applicant’s submissions on sentence);

    2. (2)

       the applicant did not adduce any evidence in support of the general submission – that is, the last sentence of paragraph [45]. As was stated in Wass v R [2022] NSWCCA 143 at [69]-[71] per Wilson J, Beech-Jones CJ at CL (as his Honour then was) and Dhanji J agreeing, an offender seeking an amelioration of a custodial sentence should adduce evidence to assist in the consideration of the impact of the pandemic on the offender in custody. In this matter, the applicant adduced no evidence of the general effect of the pandemic. Nor did the applicant adduce any evidence of the specific effect on him, other than a reduction in visits by his son (to which his Honour referred); and

    3. (3)

       there is no parity appeal.

14. [64]

    Further, whilst it may be that, in comparison with the co-offender, Mr Simms, the adjustment of the statutory ratio was slight, the sentencing judge identified a reason for fixing the applicant’s non-parole period as follows:

15. [65]

    In Thach v R [2018] NSWCCA 252 (“Thach”) at [42]-[43], Davies J (Bathurst CJ and R A Hulme J agreeing) considered the constraints upon the reduction of the statutory ratio as follows:

16. [66]

    As his Honour said, any reduction in the non-parole period must reflect the criminality involved. The reduction in the statutory ratio cannot result in a sentence being imposed which is less than is necessary to serve the overall purposes of sentencing.

17. [67]

    The sentencing judge must be taken to have had that principle in mind when fixing the non-parole period in this matter.

18. [68]

    Further, I do not accept that his Honour erred in not having regard to the written submissions of the Crown in respect of the co-offender, Mr Simms. Those submissions were never brought to his Honour’s attention.

19. [69]

    Nor do I accept that error can be demonstrated by means of a comparative reference to the sentence imposed on Mr Simms. It may be that the sentencing judge in Mr Simms’ matter considered that the impact of COVID-19 was most significant and that that resulted in a substantial reduction of the statutory ratio. However, there being no parity appeal, error is not shown by comparing the sentence imposed on Mr Simms with the sentence imposed on the applicant.

20. [70]

    In my view, no error has been shown.

Ground 3 – Manifest excess

1. [71]

   The relevant principles governing a complaint that a sentence is manifestly excessive were stated in Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ:

2. [72]

   In Kirby v R [2021] NSWCCA 162, Beech-Jones J (as his Honour then was) (with Harrison and Cavanagh JJ agreeing), said at [45]:

3. [73]

   The applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

4. [74]

   The applicant acknowledges that a significant term of imprisonment was justified but submits that his age and subjective case, coupled with the characterisation of the majority of the offending as at or below the mid-range of objective seriousness, renders the sentence manifestly excessive. This was clarified during oral submissions to mean that the non-parole period was unjust.

5. [75]

   During oral submissions the applicant focussed on the period on parole, observing that despite the finding of special circumstances, the sentencing judge only varied the statutory ratio by 5%. The applicant submitted that the 5% adjustment fails to adequately recognise the importance of the applicant having the opportunity to address his drug problem, as a cornerstone of his rehabilitation, and to address his institutionalisation, which commenced when he was a juvenile.

6. [76]

   The applicant also submitted that the approach of Norton SC DCJ in Mr Simms’ case was instructive, although the applicant confirmed that this was not raised as a parity argument. The applicant relies on the sentence of Mr Simms to demonstrate that the adjustment of the statutory ratio was inadequate.

7. [77]

   A finding of manifest excess is a conclusion. It may be made in circumstances in which no specific error is identified but the sentence is so far outside the range that some error must be implicit.

8. [78]

   An appeal based on manifest excess may lie in respect of the fixing of the non-parole period as the non-parole period is a part of the sentence.

9. [79]

   However, it is important to bear in mind that, as was indicated by the sentencing judge in this matter, the setting of a non-parole period is always subject to the principle that the non-parole period must reflect the minimum period which the applicant should spend in custody so as to be reflective of the total criminality involved.

10. [80]

    I have already canvassed this issue under ground 2. It seems particularly important in considering ground 3 because the applicant was sentenced for a large number of offences, many of which were serious in nature. Further, although the offending is similar in nature and occurred over a less than four-month period and many of the offences are quite distinct and separate. Indeed, the applicant engaged in his criminal conduct on 17 separate days during that period.

11. [81]

    An appeal does not lie from the indicative sentence, but a consideration of the indicative sentences can sometimes be instructive. Again, that is the position in this case. For example, there may be reasons why the ratio was varied to a more significant extent in Simms’, as is evident from his Honour’s consideration of the impact of COVID-19.

12. [82]

    The sentencing judge’s determination of the non-parole period is reflective of his assessment of the minimum period which the applicant should be required to spend in custody to reflect his level of criminality.

13. [83]

    The applicant was sentenced in respect of 34 sentences, many of which were serious and many of which were in the mid-range, or just below the mid-range. Any non-parole period must be subject to the ultimate required that the minimum term in custody reflects the totality of the offending: see Kirby v R at [45].

14. [84]

    It might be said that the sentence is severe, but I am unable to be satisfied that the length of the non-parole period is such that it is manifestly excessive.

15. [85]

    For the reasons that I have set out, ground 3 is not established.

16. [86]

    The applicant requires an extension of time to seek leave to appeal. The Crown does not oppose the extension of time. I am satisfied that the extension of time should be granted having regard to the circumstance of the matter, the matters raised on appeal and the explanation for the delay.

17. [87]

    I would propose the following orders:

    1. (1)

       An extension of time to seek leave to appeal is granted.

    2. (2)

       Leave to appeal is granted.

    3. (3)

       The appeal is dismissed.

18. [88]

    SWEENEY J: I agree with Cavanagh J.