Glynn Kaderavek v R

BEAZLEY P: I have had the advantage of reading in draft the reasons of Hamill J. I agree with his Honour’s reasons and proposed orders.

SCHMIDT J: I also agree with Hamill J’s reasons and orders.

HAMILL J: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Buscombe in the District Court on 25 January 2017. He was sentenced on two indictments containing three charges. There were two offences of violence committed upon his domestic partner (Sarah Lennan) and one offence arising from his attempt to cover up those offences. The first count was an allegation of assaulting Ms Lennan between 1-14 August 2013. The second count involved recklessly causing grievous bodily harm to Ms Lennan on 15 August 2013. A second indictment included one count (which I will call “the third count”) of providing a false version of events to police with intent to pervert the course of justice.

The three offences carried maximum penalties of imprisonment for 2 years, 10 years and 14 years. There was a standard non-parole period of 4 years attaching to the second count. Pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant asked his Honour to take into account an offence of damaging property on the same date in sentencing for the second count.

The sentencing Judge imposed an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years. [1] The sentence was ordered to commence on 7 July 2015. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act, his Honour indicated a sentence of 16 months imprisonment for the common assault offence, a sentence of 6 years with a non-parole period of 4 years for the recklessly causing grievous bodily harm offence, and a sentence of 12 months for the attempt to pervert the course of justice offence.

The applicant relied on a single ground of appeal comprised of three, closely related, parts:

It is necessary to consider the somewhat unusual chronology of the litigation. The applicant was in custody at the time he was sentenced by Judge Buscombe. He was refused bail in relation to the three offences for which he stood to be sentenced by his Honour. However, during the period of remand, he was also in custody in relation to sentences imposed earlier but arising out of offences committed after the present offences. Those other offences related to further acts of domestic violence committed on the same victim. In summary, the relevant chronology was as follows.

Before turning to consider the grounds of appeal in more detail, it is appropriate to set out the facts upon which the applicant was sentenced. The learned sentencing Judge described the facts, which were subject to agreement between the parties, as follows:

Ms Lennan’s Victim Impact Statement described the physical and mental impact of the offences on her and her children. She suffers from severe post-traumatic stress disorder, anxiety, depression, flashbacks and nightmares, as well as memory loss and migraines from her physical injuries. Ms Lennan was left homeless and in significant debt. Having her children restored to her custody involved a long and difficult process. The offences and the applicant’s incarceration have had a significant emotional and behavioural impact on the children.

These were very serious offences of violence with lasting impact on the victim. The sentencing Judge assessed the objective seriousness of the common assault offence as being “above the mid-range" and the recklessly causing grievous bodily harm offence as being "within the mid-range level of objective seriousness." His Honour noted that there was very little planning involved in the attempt to pervert the course of justice offence and assessed it as being "below the mid-range level" objectively.

No complaint is, or could be, made about Judge Buscombe’s summary of the facts or with his Honour’s assessment of the objective seriousness of the offences. Putting aside the question of whether it was necessary to articulate the assessment of the objective seriousness of the offences by reference to the putative "mid-range" (particularly in relation to the offences where there was no standard non-parole period), his Honour’s analysis was considered and correct.

His Honour noted that the two offences of violence were domestic assaults that took place in the context of a relationship marred by such violence. In those circumstances the weight to be given to general deterrence was substantial notwithstanding his Honour’s findings concerning the applicant’s mental health problems. [2] No criticism was made of the sentences indicated for the individual offences or with the total aggregate sentence settled on by the sentencing Judge. The sentence was a severe one but the facts, given the applicant’s history of violence, called for a stern penalty.

To place the events in the context of the violent relationship, and to consider the proper application of the totality principle, it is also necessary briefly to set out the substance of the 31 March offences. At the time, the couple had been in a de-facto relationship for four years and had two children (although they were under the care of Community Services at the time). The offender and victim were driving from Penrith to the Blue Mountains where the applicant was reporting for bail. Throughout the course of the drive the applicant threatened the victim, yelling “If they don’t stay these orders, I’m gunna break your fucking legs. If we don’t get the kids back it’s your fault”, “You better hope they stay these orders or promise I’ll break you into pieces” and “I’m gunna fucking crack it”. The applicant punched the victim’s arm and the left side of her face, under her eye.

The complaint made on this appeal, as articulated in the ground of appeal and in the applicant’s submissions, concerned the commencement date of the aggregate sentence, the failure to backdate the sentence to an earlier period in time, and the structure of the sentence. It was submitted that the structure of the sentence, and the total accumulation on the sentence for the 31 March offences, nullified the finding of special circumstances and the modest adjustment to the aggregate non-parole period. It was also submitted that his Honour failed to take into account the totality principle.

The ground based upon the failure to backdate the sentence to a date earlier than 7 July 2015 is clearly established. While counsel for the respondent did not concede this ground, her submissions were circumspect and allowed for the possibility that this ground was made out.

At the sentencing hearing the Prosecutor tendered a bundle of documents as exhibit 1. This included, on the first page, a "Crown Sentence Summary". That summary included the following information under the heading “Calculation of time spent in custody”:

The italicised portion of this part of the Crown Sentence Summary, if it was not incorrect, was apt to mislead the sentencing Judge. It is reasonable to infer, as fairly conceded by the respondent, that this document led his Honour to commence the aggregate sentence on 7 July 2015. I am satisfied that to do so was an error. The sentences should have commenced, at the latest, on 7 April 2015, the expiry date of the non-parole period for the 31 March offences.

Section 47 of the Crimes (Sentencing Procedure) Act provides for the commencement dates of sentences:

The section provides a sentencing Judge with a degree of flexibility. The prima facie position is that the sentence commences on the day it is imposed. If the sentence is to commence before that date, the section provides no particular guidance except that the sentencing Judge “must take into account any time for which the offender has been held in custody in relation to the offence”. Otherwise, the determination of the commencement date is to be determined by reference to general sentencing principles and other relevant provisions. If the sentence is to commence after the date sentence is imposed, there is less flexibility as a result of the provisions in subsections (4) and (5). Those subsections provide that if the sentence is to be accumulated on a sentence which is to expire in the future it can only be accumulated on the non-parole period for that pre-existing sentence. There is no similar provision in relation to sentences ordered to commence before the date of sentence. Accordingly, it may be that s 47 on its own terms does not prohibit the commencement date chosen in the present case.

However, s 47(3) and general principles of sentencing require that an offender be given credit (at least) for periods of incarceration that are solely referable to the offences for which they are being sentenced and the preferable course is to “backdate” the commencement of the sentence. [3]

It is also important to remember the provision in s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW):

The sentence for the 31 March offences was a sentence of less than 3 years. By operation of s 158, the applicant was subject to a statutory parole order from the date of the expiration of the non-parole period, that is 7 April 2015. Accordingly, the applicant was in custody “bail refused on this matter only” since 7 April 2015 and not, as the Crown Sentence Summary said, 7 July 2015. This is why the latest the sentence should have been ordered to commence was 7 April 2015.

For those reasons, the first part of the applicant’s single ground of appeal is established. The respondent eschewed the suggestion that this was a case where the Court could simply adjust the commencement date without proceeding to resentence in accordance with the High Court's decision in Kentwell v The Queen. [4] There is authority in New South Wales that there may be cases where a discrete and mathematical error may be corrected in this way, [5] but I accept the respondent’s submission in the circumstances of the present case. That is because there is substance in the other submissions made on behalf of the applicant and also because evidence was tendered “on the usual basis” in the event that the Court came to consider re-sentence.

The second and third parts of the applicant’s ground of appeal relate to the extent to which his Honour accumulated the aggregate sentence on the pre-existing sentences. His Honour decided to wholly accumulate the sentences. Such a course was open in the particular circumstances of the case because the present offences represented separate and serious offending on the same victim. It would have been open to the Judge to accumulate partially on the existing sentence on the basis that the aggregate sentence for the present offences was imposed after a sentence imposed for similar offences committed on the same victim several months later. However one looks at the unusual chronology, the two sentences related to separate and serious criminal behaviour and Judge Buscombe’s approach to the exercise of this discretion cannot be criticised.

It was submitted that the sentencing Judge failed to take into account the principle of totality. It was acknowledged that his Honour carefully considered that principle in determining the appropriate aggregate sentence and the putative accumulation and concurrence in respect of the three indicative sentences. However, it was put that his Honour did not apply the principle when he determined the degree of accumulation between the aggregate sentence and the pre-existing sentence. I am not satisfied that his Honour erred in this regard. The remarks on sentence, read as whole, suggest that his Honour was aware of the principle of totality and the options available in terms of partial accumulation. It was open to his Honour, applying the principle of totality, to impose a wholly cumulative sentence.

However, I accept the applicant’s submission that the total impact of the sentence, and its structure, essentially negated the finding of special circumstances.

There was a body of evidence concerning the applicant’s psychiatric condition. It is unnecessary to provide the detail of that material but Judge Buscombe accepted that the evidence was relevant to the sentencing outcome. In particular, his Honour said that "to some degree his moral culpability might be thought to be reduced and he may not be an entirely suitable vehicle for the expression of general deterrence when sentencing." It seems that the finding of special circumstances was largely based on this body of material, and notwithstanding his Honour’s inevitable finding that "[the applicants]'s prospects of rehabilitation are guarded". His Honour said:

His Honour made such an adjustment when setting the aggregate sentence for the present offending. The period of 5 years settled upon for the non-parole period was about 71.4% of the total aggregate sentence of 7 years. However, when the total accumulation on the pre-existing sentences is taken into account, the total effective sentence became 8 years, 3 months and 4 days and the total non-parole period became 6 years, 3 months and 4 days. This meant the total effective (and accumulated) non-parole period was a little more than 75% of the total effective (and accumulated) sentence.

This was not a case where the sentencing Judge found special circumstances on the basis of the accumulation itself and adjusted the sentence in order to restore what is sometimes referred to as the "statutory ratio" (75%) provided in s 44 of the Crimes (Sentencing Procedure) Act. Rather, the special circumstances related to subjective matters and the adjustment designed to foster the applicant’s rehabilitation and re-assimilation into the community. The case is not dissimilar to the circumstances in GP v R [2017] NSWCCA 200. I accept that the total accumulation of the present sentences on the pre-existing sentences essentially nullified the adjustment made for special circumstances.

It is necessary to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen. [6] I have considered the evidence tendered on the appeal. I have taken into account the subjective case established in the sentencing proceedings, the plea of guilty, the applicant’s bad criminal history especially for offences of violence, and the contents of the Victim Impact Statement. I would impose the same total aggregate sentence (7 years) settled on by the sentencing Judge. I am not satisfied that a less severe total sentence is warranted. The sentence is a severe one but this is required by the purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act, reflects the criminality involved in the three offences, the impact on the victim and the bad history of domestic violence perpetrated by the applicant.

In exercising the sentencing discretion afresh, I make a finding of special circumstances. That finding is based on the matters referred to by Judge Buscombe, that is the subjective features of the case and the desirability that the applicant should have a longer period of supervision and parole. However, it also encompasses the effect of the accumulation of this sentence on the pre-existing sentence. I would make a greater adjustment to the aggregate non-parole period than did the sentencing Judge and would commence the sentence on 7 April 2015. I would impose an aggregate non-parole period of 4 years and 6 months. This is around 64% of the aggregate head sentence and reflects the totality principle, the finding of special circumstances and the basis upon which I made that finding. The result is that the accumulated non-parole period (5 years and 6 months) is around 68.75% of the accumulated total sentence (8 years).

For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, I indicate the same indicative sentences determined to be appropriate by Judge Buscombe.

I would make the following orders: –