Gumbleton v R

1. [1]

   BATHURST CJ: I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.

2. [2]

   R A HULME J: Edward Garry Gumbleton (“the applicant”) was sentenced in the District Court at Lismore by her Honour Judge Wells on 2 March 2017. Her Honour imposed an aggregate sentence of imprisonment for 5 years 3 months with a non-parole period of 3 years 9 months. The applicant will become eligible for release on parole on 19 September 2020.

3. [3]

   Details of the offences and the sentences the judge indicated she would have imposed if she was not imposing an aggregate sentence are as follows:

4. [4]

   The applicant seeks leave to appeal upon the following grounds:

5. [5]

   Ground 2 relates to the sentencing of a co-offender, Steven Chaloner, who was sentenced jointly with the applicant.

6. [6]

   A further ground contending that the sentence was manifestly excessive was abandoned at the hearing of the application.

Ground 1 – error in relation to finding of special circumstances

1. [7]

   Ground 1 may be dealt with immediately because I am satisfied that it has merit.

2. [8]

   The sentencing judge found special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that the applicant would spend “a longer period upon release [on parole] under supervision in order to best facilitate [his] rehabilitation and avoid the risk of re-offending”.

3. [9]

   Without a finding of special circumstances, the judge was required to sentence such that the non-parole period was at least three quarters of the aggregate sentence. That has the effect that in the present case, without the finding of special circumstances, the non-parole period would have been at least 3 years 11.25 months; rounded down, 3 years 11 months. The finding of special circumstances therefore reduced the non-parole period by only two months.

4. [10]

   A finding of special circumstances was well open to be made in this case. It was indicated in a Pre-Sentence Report that the applicant had used cannabis for most of his adult life. He had ceased the use of drugs for about 5 years from the age of 28 but acknowledged that since then he had been using the drug regularly until his arrest for the present offences. He also disclosed to the author of the report that he had used cocaine and ecstasy as well. The author indicated that the applicant would benefit from a period of supervision by Community Corrections and that a case plan would focus upon referral to the drug and alcohol services for programs, counselling or rehabilitation as deemed appropriate; referral or monitoring of appropriate mental health service intervention; regular reporting to Community Corrections; and home visits at the applicant’s approved address.

5. [11]

   In MD v R [2015] NSWCCA 37 at [39]-[43], Gleeson JA (with the agreement of Johnson and Hall JJ) identified principles relating to a ground of appeal asserting that a sentencing judge failed to reflect a finding of special circumstances. At [43] his Honour said:

6. [12]

   There is nothing in the judge’s sentencing remarks that would indicate that she had in mind an extremely modest reduction of the non-parole period.

7. [13]

   Mr Stratton SC took the Court to the decision of this Court in Dawson v R [2013] NSWCCA 61. That was a case in which a judge had found special circumstances but imposed an overall sentence where the non-parole period was 72.2 per cent of the overall head sentence. For the individual sentences the judge imposed non-parole periods that were 60 to 66 per cent of the individual sentences. Schmidt J (with whom Price and McCallum JJ agreed) said (at [46]), “[t]hat result was not explained and did not reflect his Honour’s conclusions as to special circumstances”.

8. [14]

   Mr Stratton also took the court to my judgment in El-Ahmad v R [2015] NSWCCA 65 where (with the agreement of Beazley P and Adamson J) I said (at [50]):

9. [15]

   It must be acknowledged, as the Crown submitted, that the judge followed her finding of special circumstances by saying:

10. [16]

    The following submission by the Crown must also be accepted:

11. [17]

    Accepting those matters, however, I am satisfied that the modest reduction of the non-parole period of only about two months failed to give any practical effect to the stated purpose of finding special circumstances. Accordingly, I am satisfied that the exercise of the sentencing discretion miscarried.

12. [18]

    This ground should be upheld and the Court should re-exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and s 6(3) of the Criminal Appeal Act 1912 (NSW).

Facts

1. [19]

   There was no dispute that the summary of the facts set out in the judge’s remarks on sentence was sufficient and accurate. That summary was as follows:

Personal circumstances of the applicant

1. [20]

   The judge first set out some detail of the personal circumstances of the co-offender Chaloner. She concluded by saying:

2. [21]

   Her Honour then summarised the personal circumstances of the applicant as follows:

Objective seriousness of the offence

1. [22]

   There was no challenge to the judge’s assessment of the objective seriousness of the offences which she expressed as follows:

2. [23]

   There was no challenge to this assessment. I agree with it.

Parity in relation to other co-offenders

1. [24]

   The judge referred to the prior sentencing of the co-offenders Ellis and Kay. She said they were of “passing relevance”; “they had far less objectively serious roles given that they were in the employ of these two offenders”. They were each sentenced to an overall term of 3 years 4 months imprisonment.

2. [25]

   In terms of parity between the applicant and the co-offender Chaloner the judge referred to there being similar circumstances, both objective and subjective, but there were some differences. However she said:

3. [26]

   In support of Ground 2, Mr Stratton SC identified a number of features which he said should have brought about a sentence that was less than that imposed upon Mr Chaloner.

4. [27]

   First, it was submitted that the evidence suggested that Chaloner was in charge of the finances and thereby had a higher role in the enterprise than the applicant. However, the judge found that the pair were the principals or organisers of the enterprise (see above at [22]) and it must be borne in mind that the business was being conducted in premises rented by the applicant. Moreover, it was not suggested at the sentence hearing that the roles of the applicant and Chaloner were distinguishable.

5. [28]

   Secondly, it was submitted that the applicant's level of openness and co-operation with police was greater. It is correct that the applicant made some admissions whilst Chaloner gave a false account about the source of cash found in his possession. But it is also the case that the applicant declined to answer police questions on a number of topics. Both offenders entered early pleas of guilty. Overall, there is little to distinguish the levels of their co-operation.

6. [29]

   Finally, it was submitted that the applicant had a more favourable subjective case than Chaloner. In some respects this is correct, but there are countervailing considerations. Overall, her Honour made the favourable finding in relation to both that "[t]hey have been two very able and largely law-abiding, hard working men who have, in many ways, made valuable contributions to the community".

7. [30]

   Balancing such differences as there were between the applicant and his co-offender, the sentencing judge was correct to find "it is very difficult to distinguish between them".

Re-sentencing

1. [31]

   In my view the aggregate term of imprisonment imposed by the primary judge was a correct exercise of the sentencing discretion, as was the nomination of the indicative sentences for each of the individual offences. I would not assess the sentences any differently. The finding of special circumstances should be maintained. Re-sentencing should be confined to the setting of a non-parole period that gives practical effect to it.

Orders

1. [32]

   I propose the following orders:

2. [33]

   WILSON J: I agree with R A Hulme J.