Halloway v R

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J.

2. [2]

   HARRISON J: On 4 July 2019, Michael Halloway was found guilty following a trial of four offences: aggravated break enter and commit serious indictable offence (larceny) contrary to s 112(2) of the Crimes Act 1900, take and drive conveyance contrary to s 154A(1)(a) of the Crimes Act, and two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Mr Halloway pleaded guilty in the Local Court on 25 July 2019 to a separate aggravated break and enter contrary to s 112(2)(b) of the Crimes Act with an offence of threatening to use an offensive weapon contrary to s 33B(1)(a) of the Crimes Act taken into account on a Form 1.

3. [3]

   Her Honour Judge O’Rourke SC sentenced Mr Halloway on 16 December 2019 to an aggregate sentence of 8 years imprisonment with a non-parole period of 5 years and 4 months, backdated to commence on 16 October 2018. Mr Halloway’s non-parole period expires on 15 February 2024.

4. [4]

   The applicable maximum penalties and the sentence, including indicative sentences, are summarised as follows:

5. [5]

   Michael Halloway now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the aggregate sentence imposed upon him by her Honour in the Sydney District Court on 16 December 2019. Mr Halloway relies on two grounds of appeal as follows:

6. [6]

   The Crown has conceded error in respect of the first ground but says that in any event the sentence imposed by her Honour was not manifestly excessive. The Crown also maintains that no lesser sentence is warranted or should be imposed.

Background facts

1. [7]

   At about 4.20am on Wednesday 7 March 2018, Mr Halloway in company with Cameron Johnson and an unidentified third man entered the house of Mrs Hue Ly, her husband and three daughters. Mr Johnson and the third offender went upstairs and rummaged through jewellery. Mrs Ly woke and confronted the two men. One of the men came towards her. She grabbed him and held onto him. The other man hit her on the head. Mrs Ly chased the two offenders down the stairs. As they ran, Mrs Ly’s daughter grabbed one of the offenders. He struck her on the head, causing her to fall to the ground unconscious for a short period. Meanwhile, Mr Halloway, in possession of the victim’s car keys, took her car. Mr Johnson and the third man then ran to where Mr Halloway had parked and they drove off. The stolen car was found in McAuley Street, Leichhardt at about 6.30am on the same day. It was damaged, the estimated cost of repair being $8,415. A DNA profile on the front driver’s seat headrest was later found to match the DNA of Mr Halloway. A DNA profile on the passenger headrest was later found to match the DNA of Mr Johnson.

2. [8]

   On the plea to the aggravated (in company) break enter and commit serious indictable offence (larceny) the facts were agreed. On 15 January 2019, at around 1.45pm, an off duty police officer heard loud banging noises coming from inside a house in Bellevue Street, Glebe. The officer then observed Mr Halloway and a co-offender leave the backyard. He yelled, “Police, stop”. Mr Halloway and the co-offender ran and were pursued by the officer. Mr Halloway stopped, faced the officer and took out a yellow crowbar from his backpack. He held the crowbar with two hands and raised it above his shoulders. The officer took a step back and said, “You don’t want to do that”. Mr Halloway turned and ran. The officer caught Mr Halloway and detained him. Other police arrived and Mr Halloway was handcuffed and conveyed to Glebe police station. He declined to participate in an electronically recorded interview. Jewellery was stolen, most of it returned. Two items, a Longines watch worth about $800 and a gold wedding ring with a 1.2 carat diamond worth about $20,000 remained missing. It is not alleged that Mr Halloway had possession of the items not returned.

3. [9]

   The trial offences were committed when Mr Halloway was 22 and the plea and Form 1 offences when he was 23. He is now 24.

Mr Halloway’s submissions

1. [10]

   Mr Halloway submitted that whilst his criminal history is obviously significant, the following matters should be borne in mind.

2. [11]

   He first offended as a juvenile at age 15 years 9 months and last at age 16 years 10 months. His criminal record as an adult is limited to a failure to appear when he was 20 for which he received a s 10A Crimes (Sentencing Procedure) Act 1999 conviction. Also at age 20, he was sentenced for entering inclosed lands (x 2) for which he was also dealt with under s 10A convictions. Arising out of the same incident, he was convicted of remain in building with intent to commit an indictable offence, for which he received an 80 hour community service order. On call up on the community service order, a 6 month term of imprisonment was imposed. At the age 21, Mr Halloway received a s 9 Crimes (Sentencing Procedure) Act bond for a stalk/intimidate offence.

3. [12]

   In the trial offences, Mr Halloway played a limited role, with the Crown unable to establish his presence in the home. Although described by the sentencing judge as "major 112 offences", the serious indictable offence was in each case larceny, and the aggravating circumstance was in each case that Mr Halloway was in company. Here the observations made by Simpson J in Cohen v R [2011] NSWCCA 165 at [43] are significant:

4. [13]

   Mr Halloway's disadvantaged background is one that, as the sentencing judge acknowledged, reduces his moral culpability.

5. [14]

   Now aged 24, and having spent 3 years 4 months of his life in juvenile custody, with the prospect on the current sentence of spending at least a further 5 years 5 months in custody, the risk of institutionalisation presents as a realistic danger to Mr Halloway and to the community. Moreover, Mr Halloway's mental health issues will, as the sentencing judge acknowledged, make his time in any custodial setting more onerous and burdensome. Mr Halloway's current incarceration is his first in an adult prison.

6. [15]

   Mr Halloway submitted that he was a youthful offender so that considerations of retribution and general deterrence should, in general, be regarded as subordinate to the need to foster his rehabilitation.

7. [16]

   In addition to his written submissions, Mr Crawford-Fish, counsel for Mr Halloway, made the following very helpful oral submissions. He emphasised four significant topics.

8. [17]

   First, it was submitted that the need to consider rehabilitation should be paramount in any re-sentencing exercise. When Mr Halloway pleaded not guilty and went to trial, he was only 22 years old. In relation to the plea offence together with the Form 1 offence, he was 23 years old. He is now 24 years old.

9. [18]

   In BP v R [2010] NSWCCA 159 at [5], Hodgson JA observed that “emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties”. In the present case, as the sentencing judge herself remarked, Mr Halloway was relatively young at the time of his offending. Her Honour said that she had taken his emotional immaturity and lack of sound judgment into account. Her Honour also observed that Mr Halloway’s intoxication indicated that the offences were impulsive and unplanned.

10. [19]

    Mr Halloway submitted that it was likely in all those circumstances that immaturity and impulsiveness played a real part in the offending and that, without ignoring the need for both specific and general deterrence, some considerable emphasis ought be placed on the need to provide him with an opportunity for rehabilitation.

11. [20]

    Secondly, and related to that submission, Mr Halloway submitted that special circumstances ought be found. The degree or extent of any adjustment to the statutory ratio is quintessentially a matter within the sentencing judge’s discretion.

12. [21]

    Her Honour found special circumstances based upon Mr Halloway’s youth, the need for supervision to assist in his rehabilitation, and his mental health issue that her Honour accepted would make his time in any custodial setting slightly more onerous and burdensome. Mr Halloway endorsed these findings.

13. [22]

    However, Mr Halloway emphasised that in re-sentencing him, this Court should find that special circumstances lie also in it being his first time in an adult custodial environment, with a real danger of him becoming institutionalised, and in the application of the totality principle. The trial offences each arise out of the one incident. The plea offence together with the Form 1 matter arises out of the one incident. He maintained in those circumstances in each case and taken together that the criminality of the offending can be quite properly be reflected in some concurrency of sentence.

14. [23]

    In addition, the question arises as to what, if any, variation of the statutory relationship between the non-parole period and the full term should apply. Her Honour varied the 75% statutory relationship down to 66%. Mr Halloway submitted that on any re-sentence, consideration should be given to an increase in that variation.

15. [24]

    Thirdly, it was submitted that her Honour erroneously calculated the amount of time that Mr Halloway had spent in pre-sentence custody that was solely referable to the offences for which he was to be sentenced. As far as I can determine, however, the error favoured Mr Halloway so that her Honour’s sentence was backdated further than it should have been having regard to his custodial history and time served for unrelated offences. Despite that, Mr Halloway contended that, in the fresh exercise by this Court of the sentencing discretion, the start date for any sentence imposed should in fact pre-date the sentence imposed at first instance. As far as I understand it, that submission was simply intended to emphasise the unfettered discretion of a sentencing tribunal to determine the commencement date of a sentence.

16. [25]

    Finally, Mr Halloway contended that on any resentence he ought to be referred to the Drug Court for the purpose of permitting that Court to consider whether he is suitable for participation in the compulsory drug treatment program at Parklea Gaol. The program and the law relating to it is summarised in Dickinson v R [2016] NSWCCA 301 at [32]-[33]:

17. [26]

    The drug treatment program at Parklea Correctional Centre is open to “eligible convicted offenders”. Eligibility requires “that the offender’s unexpired total sentence was a period of not more than 6 years”. It also requires that the unexpired non-parole period of sentence be at least 18 months. Mr Halloway conceded that that requirement is not an issue in his re-sentencing.

18. [27]

    When Mr Halloway was originally sentenced in the District Court, he was not eligible for referral because, despite her Honour having backdated the sentence to 16 October 2018, the unexpired portion of the sentence was over 6 years. Now, however, having served over 2 years of the 8 year total sentence, the current unexpired portion of the total sentence is less than 6 years. If when Mr Halloway is resentenced the unexpired portion of the total sentence is less than 6 years, he becomes eligible for referral to this Parklea Correctional Centre drug program.

19. [28]

    Concerning Mr Halloway’s current drug use, Dr Gumbert-Jourjon’s report from September 2019 indicates that he has been using illicit drugs since 2017. In her opinion, he meets the diagnostic criteria for a severe stimulant use disorder. She diagnosed Mr Halloway as suffering from a major depressive disorder which she said was unmanaged at the time of her report, in which she recommended participation in the compulsory drug treatment program. It was submitted on Mr Halloway’s behalf that, given his history of illicit drug use, and that the Drug Court legislation is intended to salvage what can be salvaged of the lives of those destroyed, or on their way to destruction, by reason of drugs, he was “a prime candidate”.

Consideration

1. [29]

   Re-sentencing Mr Halloway afresh involves a separate and independent exercise by this Court of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. However, this Court is not prevented from taking account of matters before the sentencing judge or any views that he or she may have expressed concerning them. In Kentwell, the High Court said this at [42]-[43]:

2. [30]

   Her Honour dealt carefully with matters that were placed before her at the sentencing hearing. Some of those are as follows.

3. [31]

   On the assessment of objective seriousness, her Honour said this:

4. [32]

   Her Honour’s remarks appear to indicate that each of the trial offences was assessed as being in the mid-range of seriousness, if not slightly above, and the plea offence and the Form 1 offence were each assessed as just below mid-range. Her Honour remarked that Mr Halloway has had a “somewhat disadvantaged background” and that “this reduces his moral culpability to some extent”.

5. [33]

   Her Honour indicated that on the plea to the 15 January 2019 aggravated break enter and steal offence, together with the related Form 1 offence, Mr Halloway would receive a 25% discount. That conclusion was uncontroversial.

6. [34]

   Her Honour dealt with both general and specific deterrence. She remarked that “the Courts have consistently held that general deterrence is a particularly important sentencing function for these brazen types of home invasion offences, destroying forever the sanctity and feeling of the security of one’s own home”. Her Honour said that there is a need “in this case for specific deterrence in light of the offender’s repeated behaviour to indicate to the offender the seriousness of his offending and the high criminality of it.” As I explain below, I consider that there are reasons and scope for mollifying these conclusions in the present case.

7. [35]

   Her Honour noted that at the time of sentence Mr Halloway was 23 years of age and that he had two children with his partner of seven years, aged three and twenty months. She observed that the children were currently cared for by Mr Halloway’s mother, that his partner was then in custody and that he would like to work towards a reunion. Her Honour noted that Mr Halloway’s mother would provide accommodation in Sydney and support for him upon his release.

8. [36]

   The evidence established that Mr Halloway had learning difficulties and that he left school at year eight when asked to do so due to his poor attendance. Mr Halloway participated in the Bondi Waves program for 18 months, then the Exodus program in Redfern until the end of juvenile custody. On release from juvenile custody Mr Halloway worked full-time in a warehousing position for six months, after which he undertook various casual labouring jobs until 2017 when he secured an apprenticeship as a mechanic with Ford. He worked in this position until entering into custody in 2018.

9. [37]

   Mr Halloway received weekly counselling during his time in juvenile custody but had not undertaken treatment in the community as he just tried to “cover up his feelings”.

10. [38]

    Her Honour noted that Dr Gumbert-Jourjon reported that Mr Halloway experimented with MDMA and cocaine and was using illicit drugs regularly from late 2017 when he was introduced, and subsequently became addicted, to methamphetamine. Mr Halloway described using ice nearly every day but that since being in custody he claimed not to have used any illicit substance. Her Honour noted Dr Gumbert-Jourjon’s opinion that his symptoms are consistent with a diagnosis of stimulant use disorder in early remission, in a controlled environment.

11. [39]

    Mr Halloway was diagnosed with ADHD for which he was not medicated. Her Honour noted that he reported experiencing depression throughout his life. She noted that while in custody between 2013 and 2015, Mr Halloway was diagnosed with a major depressive order for which he was prescribed antidepressants. Mr Halloway reported taking these for a year and then ceasing due to the side effects.

12. [40]

    Mr Halloway told Dr Gumbert-Jourjon that he reverted to criminal offending as a means of funding his escalating drug use and to be able to support himself and his children. Her Honour noted that in Dr Gumbert-Jourjon’s opinion, Mr Halloway met the diagnostic criteria for a severe stimulant use disorder at the time of the offending.

13. [41]

    With respect to the trial offences, her Honour considered that Mr Halloway had shown limited insight into his offending, attempting to minimise his behaviour by saying that he acted solely as a lookout. She noted, however, that Dr Gumbert-Jourjon reported that Mr Halloway “does feel remorse” and that he said to Community Corrections that the victims would have been scared during the commission of the offences. Her Honour further noted that Mr Halloway had expressed regret in relation to his drug use, and that as a “grown man” he “should not be stealing cars and doing stupid things like that”.

14. [42]

    Her Honour accepted that Mr Halloway was relatively young at the time of offending and that she had “taken into account the emotional immaturity and lack of sound judgment”.

15. [43]

    Mr Halloway had been assessed by Community Corrections as presenting a medium to high risk of reoffending. Her Honour said that he has acknowledged that he would need to find stable work and abstain from drugs to avoid reoffending. She also remarked that Community Corrections noted that Mr Halloway appeared resistant to addressing his mental health condition.

16. [44]

    Her Honour concluded that “in light of [Mr Halloway’s] age”, his criminal history disentitled him to the lenience that is afforded to those who come before the courts with little or no prior offending.

17. [45]

    Mr Halloway’s offences were committed whilst on conditional liberty. Her Honour expressed the view that that “clearly amounts to an aggravating feature and impacts on the issue of specific deterrence”. She remarked further that “both offences are major 112 offences, were committed in the victims’ home, and involved multiple series of criminal acts.”

18. [46]

    Her Honour accepted that Mr Halloway has some mental health issues. Although she did not consider them to be causally connected to his offending, her Honour accepted that they would make his time in any custodial setting “slightly more onerous and burdensome”.

19. [47]

    Mr Halloway had been assessed as presenting a medium to high risk of re-offending, he had the support of his mother and reported to have maintained a relationship with the mother of his children. Her Honour noted that his two children provided Mr Halloway with two very good reasons to rehabilitate. She noted that he claimed to be prepared to undertake intervention to address his drug use and had behaved satisfactorily in custody. Her Honour considered Mr Halloway’s prospects of rehabilitation to be guarded and noted that they would improve if he obtained employment and abstained from drug use.

20. [48]

    Her Honour found some limited evidence of genuine remorse on the matters to which he pleaded guilty.

21. [49]

    As already mentioned, her Honour made a finding of special circumstances by reason of Mr Halloway’s youth, his need for supervision upon his release to assist in his rehabilitation, his need to secure gainful employment, the need to keep him abstaining from drugs and also to protect the community. She varied the statutory ratio of the non-parole period to the full term from 75% to around 66%, a reduction with which I agree.

22. [50]

    There is in my view an unfortunate but unavoidable air of artificiality in the process of an appellate court re-sentencing an offender in circumstances such as the present. The original sentencing judge conducted the trial of the offences to which Mr Halloway pleaded not guilty. She was present at the trial and had the advantage of hearing the evidence and counsel’s addresses to the jury. That is not an insignificant advantage in my opinion, particularly in providing assistance in the assessment of the objective seriousness of the offending. In addition, her Honour had the distinct benefit of counsel’s submission at the sentencing hearing, a process quite different to that which occurs in this Court.

23. [51]

    One theme that emerges undiluted from the material available to this Court is Mr Halloway’s drug addiction and mental illness. I have referred to those two factors as constituting a single theme because, in my estimation, having particular regard to the detailed and helpful analysis of Ms Gumbert-Jourjon in her Confidential Psychological Evaluation dated 18 September 2019, Mr Halloway is at a point in his life when it is critical that these issues are addressed together and without delay. Part of that report is in these terms:

24. [52]

    I respectfully agree with her Honour’s assessment of the objective seriousness of the offences described in her remarks on sentence and generally with her other conclusions to which I have referred. I differ with her Honour to the extent only that I consider that Mr Halloway’s subjective case, characterised as it is by the ubiquitous and malignant combination of mental illness and drug addiction, should be accorded more importance and should be taken into account in a way that significantly reduces both the need for general and special deterrence and consequently the sentences that should be imposed.

25. [53]

    The applicable maximum penalties and the sentence, including indicative sentences, that I propose may be summarised as follows:

Orders

1. [54]

   I consider that the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed upon the applicant by her Honour Judge O'Rourke SC on 16 December 2019 and in lieu thereof sentence the applicant to an aggregate sentence of 6 years commencing on 16 October 2018 with a non-parole period of 4 years expiring on 15 October 2022.

   4. (4)

      The applicant is referred to the Drug Court for assessment as the subject of a compulsory drug treatment order.

2. [55]

   IERACE J: I agree with Harrison J.