Hall v R

PAYNE JA: I have read the judgment of Wilson J in draft. I agree with her Honour’s reasons and the orders she proposes.

MCCALLUM J: I agree with Wilson J.

WILSON J: The applicant stood trial jointly with Michael Christian Sorensen in the District Court at Parramatta between 1 October 2013 and 15 October 2013, before Craigie SC DCJ and a jury of twelve. The indictment contained five counts, three of which were charged jointly against both accused men, with one further charge brought against each individually. The jury returned verdicts of guilty with respect to each charge.

On 2 June 2014 his Honour sentenced both the applicant and Sorensen for the counts on the indictment, together with an additional related charge against the applicant of supplying a prohibited drug, to which he had entered a late plea of guilty, imposing aggregate terms of imprisonment upon each pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). A sentence of 12 years imprisonment was imposed upon the applicant, to date from 16 December 2012 and expiring on 15 December 2024. A non-parole period (“NPP”) of 8 years was fixed; the NPP expires on 15 December 2020. The sentence imposed upon Sorensen for four offences, not including the supply offence that applied only to the applicant, was the same.

The charges and indicative sentences are set out below.

On 17 November 2015 this Court (constituted by Ward JA, Adams and Bellew JJ) heard an appeal against both conviction and sentence filed by the co-offender. In the judgment delivered on 14 April 2016 the Court dismissed the appeal against conviction, but upheld the appeal against sentence: Sorensen v R [2016] NSWCCA 54.

The offender Sorensen was resentenced by the Court. Ward JA concluded:

In light of that decision, the applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal (significantly out of time) against the sentence imposed upon him. The proposed ground 1 mirrors the ground of appeal (being ground 2A) accepted as having been made out with respect to Mr Sorensen; ground 2 is in the alternative. The grounds advanced are:

Both the applicant and the respondent Crown accept that the Crown case was accurately summarised by Ward JA (with Adams J and Bellew J agreeing) in Sorensen v R at [8]-[14]:

The facts of the additional charge faced by the applicant were that he supplied the complainant with a small amount of methylamphetamine.

The applicant’s criminal history was before the sentencing judge. It contained entries against the applicant commencing with a drink driving offence in 2001, when he was aged 17 years old. The applicant had convictions in 2004 for offences of possess implements to enter and drive conveyance, goods in custody, carry cutting weapon, take and drive conveyance without consent (2 counts), and drive manner dangerous. Fines and sentences of periodic detention were imposed, although the latter were varied on appeal to suspended sentences and community service orders. He was also dealt with in 2004 for malicious damage.

In 2005 the applicant was called up for breaches of those community based sentences, and periods of imprisonment were imposed, the longest such sentence being one of 2 years imprisonment.

He was also dealt with in that year for other driving offences, including driving whilst disqualified, an offence for which the applicant was sentenced to imprisonment for 3 months with a 3 year disqualification from driving. A further such charge later in the year attracted a sentence of 6 months imprisonment and a cumulative disqualification of 2 years.

The applicant spent a month in prison in 2007 following his conviction for introducing a syringe to prison.

In 2009 the applicant was sentenced for a 2007 offence of specially aggravated kidnapping, a term of 4 years and 3 months imprisonment being imposed upon him, with a NPP of 2 years and 3 months. That sentence took into account a number of other crimes, including aggravated break enter commit serious indictable offence, larceny, and take and drive without consent. The sentencing judgment relevant to those offences was part of the material before Craigie SC DCJ.

In 2010 the applicant was charged with break enter steal, break enter with intent, and possess prohibited drug, receiving terms of imprisonment for those offences in 2011.

The applicant’s Corrective Services history recorded numerous instances on which the applicant had been penalised for prison offences when in custody, including fighting, intimidation, and drug offences. After his admission to custody with respect to these offences the applicant incurred six such institutional charges.

A pre-sentence report (“PSR”) that was before the Court noted that the 30 year old applicant had breached all periods of supervision by Community Corrections to which he had previously been subject, frequently as a result of drug use. The applicant reported problematic use of illicit drugs, having commenced drug use at age 17 with cocaine, ecstasy and methylamphetamine. The latter drug remained a problem for him. The applicant was diagnosed in 2005 with Rapid Cycling Bi-Polar Disorder; whilst in custody he was compliant with the medication regime prescribed him, but he ceased taking medication in the community, preferring to use illicit drugs. He asserted that he would take necessary medication in the future, and he had the support of his mother with that and other goals, such as employment.

As to the offences, the applicant told the author of the PSR that he was innocent.

Psychiatric and psychological reports were requested from Justice Health by the sentencing court. Professor David Greenburg conducted psychiatric examinations of the applicant in November 2013 and January 2014, providing two reports in which he concluded that the applicant suffered Bi-polar Disorder (being a provisional diagnosis) and a Poly-substance Dependence Disorder. At the time of his first examination of the applicant Professor Greenburg concluded that he was a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW); his condition had stabilised by the time of the second consultation and the applicant was no longer regarded as mentally ill.

The forensic psychologist who assessed the applicant concluded that he fell within the medium – high risk category for recidivism.

A victim impact statement from Ms L set out the terrible consequences for her as a result of the ordeal to which she was subjected.

The applicant relied upon a psychiatric report prepared for sentence by Dr Olav Nielssen, who saw him in December 2013. The applicant was in an acutely manic state at that time, with his speech grandiose and uninhibited. Like Professor Greenburg, Dr Nielssen concluded that the applicant had a Bi-polar Mood Disorder (then in a manic phase) and a Substance use Disorder. In a supplementary report of February 2014 (made after a review of documentation only) Dr Nielssen recorded the earlier instances on which the applicant had been psychiatrically assessed, and noted that the opinions expressed by treating medical staff were consistent with his own.

The applicant did not give evidence on sentence.

In jointly sentencing the applicant and Sorensen his Honour set out the facts of the offending conduct consistent with the verdicts of guilty returned by the jury, and noted the additional charge against the applicant of supplying a prohibited drug, being methylamphetamine. His Honour concluded that the detention of Ms L commenced at some time after midnight, concluding when she made her escape and secured police assistance at about 7.45 am that same morning. He referred to R v Speechley (2012) 221 A Crim R and the factors relevant to be taken into account in a case involving kidnapping. His Honour said,

The sentencing judge continued (after a reference to Barlow v R (2008) 6 A Crim R),

He went on to detail the subjective cases of both offenders.

The sentencing judge found that both the applicant and Sorensen had engaged in a grave course of criminality and had shown no remorse for the suffering inflicted on Ms L. He had regard to the principles of totality, and of parity, and to those matters referred to in s 3A of the Crimes (Sentencing Procedure) Act. Of the applicant his Honour said,

Whilst the sentencing judge referred to the differing features of the respective cases for each offender, he concluded that the level of offending of each was of the same high order, notwithstanding some differentiation between the acts of each individual, and having regard to the fact that the offences were committed in furtherance of a joint criminal enterprise. He concluded,

In considering count 5, the offence of specially aggravated kidnapping, the sentencing judge observed,

In his sentence appeal to the Court of Criminal Appeal Sorensen complained that the sentencing judge was in error in finding that the “quasi-vigilantism” was an aggravating feature, and in making that finding when an element of the offence of specially aggravated kidnapping was “to obtain gratification by punishing and humiliating” Ms L. The applicant seeks to make the same complaint, relying alternatively on a parity argument to contend for a reduction in sentence.

The Crown accepts that the conclusions of this Court in Sorensen v R provide a basis for the Court to grant the applicant leave to appeal, uphold his appeal, and resentence him. Having regard to the finding of the sentencing judge as to parity, the Crown submits that lesser indicative sentences are warranted with respect to counts 4 and 5, and a lesser aggregate sentence is warranted in law.

As the Crown has fairly conceded, the conclusions of this Court in Sorensen v R are such that the applicant should be granted an extension of time in which to bring his application, and be granted leave to appeal. His appeal should be upheld, and the sentence imposed in the District Court quashed.

At [128] – [129] of Sorensen v R Ward JA said (with the agreement of Adams and Bellew JJ),

The same error was made with respect to the applicant.

As a consequence of the error, it will be necessary to resentence him.

On resentence, the applicant tendered a further report from Dr Nielssen dated 5 September 2017. The doctor took a history from the applicant in which he said of the offences, “someone took my mother’s jewellery and I have handled it the wrong way”. He referred to having been “in a bad place mentally” at the time as a consequence of a relationship breakdown, and to having been “all over the place” because of drug use.

The applicant said that his condition now was much improved due to the effectiveness of the medication he had been taking. He felt that he had attained a level of maturity and “grown up”, and was now in a positive relationship, with employment prospects in his mother’s business. The applicant’s mother similarly told Dr Nielssen that the applicant had a new relationship and that it was anticipated that he would work in the family business upon release.

The applicant referred to having completed an “aggression management course” in custody, and to be enrolled in “an addiction course”. The applicant had employment making furniture. His security classification had been reduced.

Dr Nielssen confirmed his earlier diagnoses, although noted that the applicant’s bi-polar and substance use disorders were in remission. He thought that, as a result of consistent treatment in custody, the applicant’s future prospects were improved, although he cautioned that release to the community could “trigger an episode of mania”, as could illicit drug use, the risk of which remained. The doctor suggested that the applicant may benefit from treatment by long acting injectable medication, and close supervision on release.

The applicant relies upon the report of Dr Nielssen to argue that this Court should impose a sentence “more benevolent” than that imposed upon Sorensen, if not in its term then in the ratio of sentence. Although no such argument was advanced in the written submissions in support of the application, the applicant submitted at the hearing of the matter that the supply offence for which the applicant alone was sentenced was not a particularly serious offence, and should not have operated so as to lead to the imposition of equivalent sentences as between the applicant and Sorensen, who had a longer criminal history than did he.

As the applicant stated in his written submissions, and in arguing for reinstatement of parity, it was plain from the sentencing judgment of the District Court that “the applicant’s sentence was determined with express relativity to Sorensen’s”. Until oral arguments put at the hearing of the application, the applicant had not sought to take any issue with the approach to parity taken by the sentencing judge.

For my part, I see no legitimate basis upon which to take a different approach to that taken to parity at first instance. There were differences in the cases of the two offenders, but not of such a nature as to require differentiation in sentence. Indeed, such a conclusion appears implicit in the applicant’s written submissions, wherein he submitted that “the Court should quash the applicant’s sentence and re-exercise the sentencing discretion having express regard to the fresh sentence imposed on Mr Sorensen”.

Of Sorensen’s case Ward JA said, at [140] – [144],

Each offender had a criminal history, amongst which were convictions for violent offences similar to that before the Court. Each had offended whilst subject to conditional liberty. Each had a long history of illicit drug use. Each has mental health issues. The applicant is younger, and his criminal history is not quite as extensive but, as the sentencing judge observed,

The applicant additionally had a fifth charge for sentence, which reflected his offence of supplying a small amount of methylamphetamine to Ms L during the course of the relevant events. Whilst not a gravely serious example of such an offence, neither is it so trivial as to largely disregard it when considering parity, and resentence.

Having regard to all of the relevant features of the respective cases of each, I would approach the re-sentencing exercise on the basis that the principle of equal justice requires the imposition of an equal sentence overall.

I do not regard anything in Dr Nielssen’s report as altering that conclusion. Much of what Dr Nielssen reports is what was in turn reported to him by either the applicant or the applicant’s mother. This Court has repeatedly warned of the caution with which untested statements to third parties should be treated: R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369 at [58] – [59]; R v Imbornone [2017] NSWCCA 144 at [57]. Whilst I am prepared to accept that the applicant has hopes for a stable future on the basis of his new relationship and employment prospects, his past history would suggest that his prospects remain guarded.

Dr Nielssen reports that the applicant is currently medicated, and his present intention is to remain compliant with any medication regime. There remains however, as pointed out by Dr Nielssen, a risk of relapse into illicit drug use, with the possible consequence of the applicant ceasing to take necessary medication. A return to a criminal lifestyle thus continues to be a possibility.

These were extremely grave offences, as this Court concluded in Sorensen v R. A significant custodial penalty was required to serve the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act. Having regard to the principle of parity, and noting the requirements of totality, I would impose the same aggregate sentence of 10 years imprisonment upon the applicant as that imposed by this Court upon Sorensen. Taking into account the need for close supervision on release I would make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act to permit a very modest extension to the NPP that would otherwise apply. The indicative sentences I propose are:

The orders, and sentence I propose are: