Hardey v R

1. [1]

   BRERETON JA: I agree with Bellew J.

2. [2]

   BELLEW J:

INTRODUCTION

1. [3]

   On 30 November 2018 Justin Hardey (the applicant) pleaded guilty in the District Court of New South Wales to the following offence:

2. [4]

   That offence was contrary to s 112(2) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 20 years imprisonment, with a standard non-parole period of five years imprisonment. The applicant asked the sentencing judge to take into account a further offence on a Form 1, namely an offence of intentionally or recklessly destroying or damaging property.

3. [5]

   The applicant appeared for sentence with Billy Mitrikevski (the co-offender) who pleaded guilty to the same offence, as well as to an additional offence of break enter and steal contrary to s 112(1) of the Act. The co-offender also asked the sentencing judge to take into account three offences on a Form 1, namely one offence of common assault and two offences of damaging property.

4. [6]

   On 5 December 2018 the applicant was sentenced to a non-parole period of two years imprisonment to date from 5 January 2019, with an additional term of one year imprisonment. The applicant now seeks leave to appeal against that sentence on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

1. [7]

   Between 10:45am on 21 April 2007 and 12:30pm on 22 April 2017, the co-offender smashed a window at the rear of residential premises in Minto. Once inside, he ransacked a number of rooms and stole various items, including a computer, other electronic items, and items of jewellery. [1] The applicant was not involved in this offending.

2. [8]

   At about 2:40pm on 22 April 2017 the co-offender, in the company of the applicant, broke into and entered residential premises in the same suburb from which they stole money and jewellery. [2] When the owner of the premises returned to the premises the applicant was outside acting as a “lookout”, and the co-offender was still inside. The owner tried to stop the co-offender leaving and called neighbours to assist him. The applicant recruited two other men to assist himself and the co-offender, as a consequence of which all four managed to flee the premises. [3] Police arrived and the applicant and the co-offender were eventually apprehended.

3. [9]

   Both the co-offender and the applicant were subject to conditional liberty at the time. The co-offender had been released to parole on 16 January 2016 after being convicted for similar offending. The applicant was on bail for similar offending. The sentencing judge concluded [4] that these breaches of conditional liberty were matters of aggravation as they reflected “an abuse of the freedom granted by taking the opportunity to further offence”.

THE SENTENCE PROCEEDINGS

1. [10]

   Both the applicant and the co-offender gave evidence on sentence to the effect that they had been addicted to drugs, as a consequence of which neither could specifically recall their offending. Their respective collections were limited to the fact that they had offended to obtain property which could be sold in order to purchase drugs. [5]

THE OBJECTIVE SERIOUSNESS OF THE APPLICANT’S OFFENDING

1. [11]

   Her Honour found that the applicant’s offending did not reflect any degree of sophistication or planning, and that the particular premises were chosen for ease of access and not because of any advanced “scouting". [6] However, her Honour went on to say: [7]

2. [12]

   Her Honour noted [8] that the premises which had been the subject of the applicant’s offending had been searched, that items of value had been sought out and taken, and that a disturbance to the property had been caused. Her Honour also noted that items of sentimental and monetary value had been taken, but that the evidence did not reflect the duration of the offending. She ultimately concluded that the offending fell “towards the lower end of the range".

THE APPLICANT'S SUBJECTIVE CASE

1. [13]

   Having applied a discount of 25% to reflect the applicant’s early plea of guilty entered in the Local Court, [9] her Honour noted [10] that the applicant had a number of entries on his criminal history which disentitled him to leniency. [11] Her Honour took into account the applicant's age, in light of which she concluded that rehabilitation assumed importance, and found that the applicant was genuinely remorseful for his offending. [12]

2. [14]

   Her Honour summarised [13] the applicant's history of drug addiction, and noted that he had been the subject of assaults in custody. She also made reference [14] to a report of Dr Kerri Eagle, Forensic Psychiatrist, who diagnosed symptoms consistent with a panic disorder, and a severe substance use disorder. Dr Eagle concluded that it was the latter disorder that had resulted in the applicant offending as he did.

3. [15]

   Her Honour found that the applicant's prospects of rehabilitation were “difficult to gauge". [15] She noted that he had offended in order to fund his drug habit, and that he had given evidence of successfully abstaining from drugs whilst in custody, and of his insight into the need to distance himself from poor peer influence. [16] In circumstances where these assertions remained to be tested upon release, her Honour concluded that personal deterrence had a “continuing and important role to play", along with general deterrence and denunciation. [17]

THE APPLICANT'S PREVIOUS SENTENCE

1. [16]

   On 15 December 2017 the applicant appeared before the District Court at Parramatta in relation to a number of separate offences. On that occasion, he was sentenced to a total term of imprisonment of 3 years and 6 months commencing on 6 February 2017, and expiring on 5 August 2020, with a non-parole period of 2 years and 5 months imprisonment expiring on 5 July 2019 (the Parramatta sentence). The ratio between the non-parole period and the total term of the Parramatta sentence was 69%.

GROUND 2 – THE SENTENCING JUDGE ERRED BY FAILING TO GIVE EFFECT ADEQUATELY TO THE PRINCIPLE OF TOTALITY WITH RESPECT TO THE PARRAMATTA SENTENCE

1. [17]

   These grounds can be conveniently dealt with together.

THE SENTENCE PROCEEDINGS

1. [18]

   In the context of a submission that a finding of special circumstances should be made, [18] the following exchange took place between the applicant's then representative and the sentencing judge: [19]

THE FINDINGS OF THE SENTENCING JUDGE

1. [19]

   In the course of her remarks on sentence, the sentencing judge said: [20]

2. [20]

   Having convicted the applicant, her Honour then said: [21]

Submissions of the applicant

1. [21]

   Counsel for the applicant submitted that as a result of the accumulation adopted by her Honour, the applicant would serve 80% of the total period he was required to spend in custody. Counsel submitted that in such circumstances, where the statutory ratio of 75% had been substantially exceeded, the sentencing judge had not given effect to her finding of special circumstances, despite her statement to the contrary.

2. [22]

   It was further submitted that by partially accumulating the sentence the sentencing judge had failed to give proper effect to the principle of totality, as a consequence of which a “crushing sentence" had been imposed.

Submissions of the Crown

1. [23]

   By reference to the sentencing judge’s observations set out above, [22] the Crown submitted that her Honour was obviously aware of the applicant's pre-sentence custody and had taken that into account when imposing sentence. It was submitted that her Honour was clearly aware of the Parramatta sentence, and had specifically turned her mind to what she considered to be the appropriate commencement date, in circumstances where the matter had been the subject of specific submissions.

2. [24]

   The Crown submitted that there was no suggestion in the reasons of the sentencing judge that the non-parole period of 66% was intended to apply to the entire period that the applicant would have to spend in custody. It was further submitted that absent any reduction in the non-parole period for this sentence, the applicant would have been required to serve 84% of the total of his terms of imprisonment before being eligible for parole. It was submitted that in these circumstances, it was evident that the finding of special circumstances had had a significant effect upon the applicant's total period in custody.

3. [25]

   In these circumstances, the Crown submitted that grounds 1 and 2 were not made out, and that the record of proceedings demonstrated that having specifically adverted to the issue, the end result was the intended one, and was within the range of the appropriate exercise of sentencing discretion.

CONSIDERATION

1. [26]

   Section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) is in (inter alia) the following terms:

2. [27]

   Two particular observations should be made regarding s 44 of the Sentencing Act.

3. [28]

   Firstly, s 44(2) does not prohibit a parole period being greater than 75%. [23] In CM v R [24] Hulme J (with whom Ward JA and Harrison J agreed) said the following:

4. [29]

   Secondly, although there is no requirement for reasons to be given where a non-parole period exceeds 75% of the total sentence, it is usually considered appropriate to do so. [25] In GP v R [26] Hamill J (with whom Macfarlan JA and Button J agreed) put the matter in this way:

5. [30]

   These observations were cited with approval by Bell P in Huang v R: [27]

6. [31]

   In the present case, the question for this Court is whether the ultimate result, in terms of the total period in which the applicant is to be detained in custody, reflects what the sentencing judge specifically intended, or whether it is the result of inadvertence or miscalculation. That question is to be resolved by considering the record of the proceedings. In this regard, Hamill J said in GP: [28]

7. [32]

   There are references, both in the sentence proceedings and her Honour’s remarks on sentence, from which it is clear that her Honour was aware of the Parramatta sentence, and was cognisant of issues of accumulation. However, seized of that knowledge, her Honour imposed a sentence which was partially cumulative on the Parramatta sentence and which had the effect of requiring the applicant to serve 80% of his total period of imprisonment before being eligible for parole.

8. [33]

   I acknowledge that in the course of her sentencing remarks, her Honour commented to the effect that the sentence that she imposed yielded “a ratio of 66%" which gave “effect to her finding of special circumstances". [29] That was an accurate statement insofar as the sentence that she imposed was concerned. However, when the accumulation on the Parramatta sentence is taken into account, the result is a total non-parole period which is substantially in excess of the statutory ratio.

9. [34]

   I accept that the record of proceedings supports a conclusion that questions of totality and accumulation were considered by her Honour. However, as was the case in GP, there is nothing to support an inference that her Honour turned her mind to the precise impact of the accumulation that she had determined was appropriate. In particular, nothing said by her Honour reflects any awareness on her part that as a consequence of the degree of accumulation, the applicant’s non-parole period was approximately 80% of his total term of imprisonment. Indeed, her Honour’s comment as to giving effect to her finding of special circumstances tends to support a conclusion that she overlooked the end result of the sentence being partially accumulated on the Parramatta sentence.

10. [35]

    In all of these circumstances, I am satisfied that error has been established and that Grounds 1 and 2 have been made out. It will therefore be necessary for the Court to exercise the sentencing discretion afresh.

11. [36]

    For the sake of completeness, and notwithstanding that I have found that these grounds have been made out, I should state that I am unable to accept the submission advanced by counsel for the applicant that there was a failure on the part of the sentencing judge to give proper effect to the principle of totality. It is evident from her Honour’s remarks [30] that she was specifically mindful of that principle. I am similarly unable to accept the submission that the sentence imposed by her Honour is properly described as “crushing”. Used in the context of sentencing, the term “crushing” connotes a sentence that is such as to induce a feeling of hopelessness in an offender, and destroy any expectation of a useful life after release. [31] A sentence of 3 years imprisonment, with a non-parole period of 2 years, could hardly be said to fall into such a category.

GROUND 3 – THE APPLICANT HAS A JUSTIFIABLE SENSE OF GRIEVANCE AS A RESULT OF THE SENTENCE IMPOSED ON THE CO-OFFENDER

1. [37]

   Given the conclusion that I have reached in respect of Grounds 1 and 2, it is not strictly necessary to consider Ground 3. However, as the Court received submissions from the parties in relation to it, it is appropriate that it be considered and determined.

THE REASONS OF THE SENTENCING JUDGE AS TO THE CO-OFFENDER’S SENTENCE

1. [38]

   I have already set out her Honour’s conclusions as to the circumstances of the applicant's offending, its objective seriousness, and the applicant's subjective case. In addition to the offence committed in the company of the applicant, her Honour set out [32] the circumstances of the additional offence to which the co-offender had pleaded guilty.

2. [39]

   As was the case with the applicant, her Honour applied a discount of 25% to reflect the utilitarian value of the co-offender's pleas of guilty, [33] and took into account [34] the fact that he had asked that a further 3 matters on Form 1 be taken into account. As was the case with the applicant, her Honour found [35] that the co-offender's offending did not reflect any degree of sophistication or planning, but that it was not spontaneous, in the sense that there been some planning to commit an offence to fund drug addiction. Her Honour found [36] that each of the co-offender's offences fell towards the lower end of the range.

3. [40]

   Her Honour noted [37] that at the time of the offending the co-offender was on parole for an especially aggravated version of the offences to which he had pleaded guilty, having been released to parole on 16 January 2016. She specifically referred to the fact [38] that the co-offender had a number of entries on his criminal history dating back to the Children's Court in 2010, in respect of which he had been given the benefit of various sentencing outcomes before being sentenced to a term of imprisonment in 2014 for the offence in respect of which he had been released to parole.

4. [41]

   Having accepted that, like the applicant, the co-offender had shown genuine remorse, [39] her Honour made reference to the co-offender's evidence of his endeavours in custody to “become healthy", and to his expressed desire to remain drug-free. Her Honour also set out the contents of a report of Kris North, Forensic Psychologist, [40] who had concluded that the co-offender had an opioid use disorder and was at a moderate risk of reoffending in circumstances where such risk could be reduced if he was successfully treated for his drug use and associated depression.

5. [42]

   Specifically in relation to the co-offender, her Honour said: [41]

6. [43]

   Such considerations did not apply in the case of the applicant.

7. [44]

   Her Honour then specifically turned to the question of parity [42] and said:

8. [45]

   Her Honour concluded [43] that, like the applicant, the co-offender's prospects of rehabilitation were difficult to gauge and that whilst he had made statements in the course of his evidence as to his desire to remain drug-free, those assertions were yet to be tested upon release. She concluded that personal deterrence had a continuing and important role to play in the case of the co-offender. [44]

9. [46]

   Her Honour concluded: [45]

10. [47]

    Her Honour found special circumstances [46] in light of the co-offender's need for support upon release, and to accommodate what she described as the “impact of accumulation”.

11. [48]

    In respect of the offence of break and enter, her Honour sentenced the co-offender to imprisonment for 18 months, with a non-parole period of 12 months to date from 22 August 2017. For the offence of aggravated break and enter, and taking into account the three matters contained on the Form 1, her Honour sentenced the co-offender to 3 years and 3 months imprisonment, with a non-parole period of 22 months imprisonment, to date from 22 February 2018. The overall sentence imposed was one of 3 years and 9 months imprisonment, with an overall non-parole period of 2 years and 4 months imprisonment.

12. [49]

    Her Honour noted [47] that this yielded a ratio of 62% which gave effect to her finding of special circumstances.

Submissions of the applicant

1. [50]

   Counsel for the applicant submitted that the disparity between the sentences imposed upon the applicant and the co-offender was such that the applicant had a justifiable sense of grievance. Counsel submitted that even when the more favourable findings in respect of the co-offender’s subjective case were taken into account, the clear differences in criminality, and the fact that the co-offender had two additional matters on a Form 1, were such that the disparity between the sentences was not justified.

2. [51]

   It was submitted, in particular, that the respective ratios between the total terms and the non-parole periods, namely 80% in the case of the applicant and 65% in the case of the co-offender, did not properly reflect the application of principles of parity.

Submissions of the Crown

1. [52]

   The Crown submitted that properly analysed, the applicant’s specific complaint was that he had a justifiable sense of grievance arising out of the more generous effect that the finding of special circumstances had on the co-offender's total period of continuous custody. The Crown emphasised that in order to make good this ground, it was incumbent upon the applicant to show a marked disparity between the sentences which were imposed, so as to give rise to a justifiable sense of grievance. The Crown submitted that it was therefore necessary to consider all the components of the sentence imposed upon the co-offender, including the facts and circumstances of the totality of his offending.

2. [53]

   The Crown submitted that there were two particular matters which supported a conclusion that there was no unjustified disparity. The first was the differing subjective cases, and the second concerned the existing periods of custody to which the applicant and the co-offender were subject when sentenced. The Crown submitted that an analysis of the different positions of the applicant and the co-offender in respect of each of these matters supported a conclusion that the applicant could have no justifiable sense of grievance.

CONSIDERATION

1. [54]

   The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, the differential treatment of persons according to differences between them. Consistency in the punishment of offences against the criminal law finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances [48] .

2. [55]

   The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality. [49]

3. [56]

   In the present case, her Honour specifically referred to the parity principle, from which it is clear that she was mindful of the need to have regard to that principle when imposing sentence. Quite simply, as the Crown pointed out, there were two fundamental factors which explain the differences in the sentences which were imposed. Firstly, the sentencing judge specifically found that the co-offender had a more favourable subjective case which, in part, was explained by the fact that it was characterised by Bugmy-type considerations which had no role to play in the applicant’s case. Secondly, at the time of being sentenced the applicant was still serving part of the Parramatta sentence, whereas the co-offender had served the entire non-parole period which had previously been imposed on him.

4. [57]

   For these reasons, this ground is not made out.

RE-SENTENCE

1. [58]

   As Grounds 1 and 2 have been made out, it is necessary for this Court to exercise the sentencing discretion afresh.

2. [59]

   I have already set out the findings of the sentencing judge as to the facts of the offending. None of those findings were challenged before this Court and I adopt them for the purposes of re-sentence. Similarly, no issue was taken by either party regarding the findings reached by the sentencing judge as to the applicant's subjective circumstances. In the fresh exercise of the sentencing discretion I adopt those findings. For the reasons articulated by her Honour, I also make a finding of special circumstances.

3. [60]

   Two affidavits were read in the event that this Court came to re-sentence the applicant. The Crown read the affidavit of Amber Kelly, solicitor, sworn 7 November 2019. That affidavit establishes that the applicant has been found guilty of the following disciplinary offences since been taken into custody:

4. [61]

   Case notes annexed to the affidavit of Ms Kelly identify a need for the applicant to undergo training to enhance his suitability for employment and make reference to the fact that he has been assessed as suitable for various EQUIPS programs.

5. [62]

   The applicant read an affidavit of Tayla Merryman, solicitor, affirmed on 14 November 2019 which was filed in response to the affidavit of Ms Kelly. Ms Merryman deposed to the fact that she made enquiries regarding the progress of the applicant's referral for compulsory drug treatment which had been recommended by both the judge who imposed the Parramatta sentence and by the sentencing judge. It is apparent from Ms Merryman's affidavit that an administrative error resulted in the applicant's file not being provided to the relevant authority to facilitate the recommended treatment. That is, to say the least, regrettable.

6. [63]

   However, material annexed to Ms Merryman's affidavit establishes that the applicant has been participating in the EQUIPS foundation program. In an email sent to Ms Merryman on 13 November 2009, Marni McAuliffe, the program co-ordinator, stated:

7. [64]

   In light of the applicant's history of drug use, and the link between that drug use and his offending, the disciplinary offences are of some concern. The applicant’s prospects of rehabilitation are necessarily dependent upon his abstinence from any form of drug use. The report of Ms McAuliffe indicates that positive steps have been taken in that regard. It appears that those steps may well have been taken earlier had the necessary administrative arrangements been put in place.

8. [65]

   In all of the circumstances, I am prepared to conclude that the applicant's favourable progress of which Ms McAuliffe spoke has, as it were, superseded his earlier disciplinary breaches. Whilst the assessment remains a difficult one, I am satisfied that the applicant's prospects of rehabilitation are more favourable than not.

PROPOSED ORDERS

1. [66]

   Taking all of these matters into account, and in the fresh exercise of the sentencing discretion, I consider that a sentence of 3 years imprisonment is appropriate. The evidence of the steps taken by the applicant towards rehabilitation supports a finding of special circumstances and I would propose a non-parole period of 2 years. Bearing in mind issues of accumulation arising from the Parramatta sentence, I would back-date the sentence and the non-parole period to commence on 5 September 2018, which will yield a ratio of 75% between the entirety of the accumulation of the applicant's head sentences, and the accumulation of his non-parole periods.

2. [67]

   I propose the following orders:

   1. (1)

      Leave to appeal against the sentence imposed in the District Court on 5 December 2018 is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed in the District Court on 5 December 2018 is quashed.

   4. (4)

      In lieu thereof, the applicant is sentenced to a non-parole period of 2 years imprisonment commencing on 5 July 2018 and expiring on 4 July 2020, with an additional term of 1 year imprisonment on 5 July 2020 and expiring on 4 July 2021.

3. [68]

   LONERGAN J: I agree with Bellew J.