Regina v Henry [2004] NSWCCA 306

New South Wales Court of Criminal Appeal

CITATION : Regina v Henry [2004] NSWCCA 306 HEARING DATE(S) : 30 August 2004 JUDGMENT DATE : 30 August 2004

JUDGMENT OF : Grove J at 28, 30; Simpson J at 1; Shaw J at 29 DECISION : 1: count one: imprisonment for two years, commencing on 7 July 2003, with a non-parole period of twelve months, expiring on 6 July 2004; 1A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 July 2004; 2: count two (taking into account the Form 1 offences): imprisonment for three years, commencing on 7 July 2004, with a non-parole period of one and a half years, expiring on 6 January 2006; 2A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 January 2006.

CATCHWORDS : application for leave to appeal against severity of sentences - pleas of guilty - combination of two sets of offences and two sets of sentences - subjective circumstances - principle of totality - accumulation of sentences - special circumstances - delay in processing DNA evidence LEGISLATION CITED : Crimes Act 1900, s112(1) Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s50(1), s44(3) R v Clark (1995) 78 A Crim R 226 CASES CITED : R v Clissold (Ian Raymond) [2002] NSWCCA 356, unreported, 19 August 2002 R v Mohamed Hakem Hajjo NSWCCA, unreported, 31 August 1992 R v Simpson NSW CCA, unreported, 18 June 1992 PARTIES : Crown - Respondent Russell James Henry - Applicant FILE NUMBER(S) : CCA 2004/1907 COUNSEL : LMP Lamprati SC - Crown M Austen - Applicant SOLICITORS : S Kavanagh - Crown Sydney Regional Aboriginal Legal Service - Applicant

LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0151; 03/41/0152 FILE NUMBER(S) : LOWER COURT Armitage DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1907 (60176/04)

GROVE J SIMPSON J SHAW J

Monday 30 August 2004 REGINA v Russell James HENRY Judgment 1 SIMPSON J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court on 17 October 2003 following his pleas of guilty to an indictment containing two counts of break, enter and steal. The maximum sentence, pursuant to s112(1) of the Crimes Act 1900, in respect of each offence (having regard to the value of the property stolen), was imprisonment for 14 years. In relation to the second count the sentencing judge took into account, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Act"), a further six offences, three of which were of break, enter and steal, and one each of being carried in or of driving a conveyance without the consent of the owner, and one of driving whilst under the influence of cannabis. 2 On the first count the applicant was sentenced to imprisonment for two years with a non-parole period of eighteen months, commencing on 1 July 2003. On the second count he was sentenced to imprisonment for three years with a non-parole period of two years and three months, commencing on 7 July 2004.

the facts 3 The offences to which the applicant pleaded guilty were unremarkable. The first was committed in the early hours of 11 February 2001 when the applicant smashed the glass door of a jewellery shop in Eden, entered the shop, smashed some glass cabinets, and removed a large amount of jewellery, but left the shop without taking any of it with him. The second was committed on 27 August 2002 when the applicant smashed a bedroom window of a home in Kiama, and stole a large amount of property. 4 The break, enter and steal offences taken into account were of a similar kind, involving two private homes and one sports club. It is unnecessary to go into the details of the remaining offences listed. 5 Bearing in mind the partial accumulation of the sentences, the total term of imprisonment to which the applicant was subject as a result of this sentencing exercise was one of four years with a non-parole period of three years and three months. However, that does not present a complete picture of the applicant's custodial position as at the date of sentencing. 6 On 30 October 2002 the applicant was sentenced in relation to 9 offences, including break, enter and steal, larceny, malicious destruction of property, and further motor vehicle offences of the same general kind as that which was before the sentencing judge. On that occasion he was sentenced to imprisonment for one and a half years with a non-parole period of nine months, the sentence commencing on 2 September 2002. Pursuant to s50 (1) of the Act, the applicant was entitled to be, and was, released at the expiration of the non-parole period. There is in the papers before us some discrepancy as to the date of his entitlement to release and the date on which it was said that he was released, but it was certainly in the first week of March 2004. At that time he had not been charged with the present set of offences. 7 Shortly after his incarceration a sample of his DNA was taken and this was (eventually) matched with blood he had left at the scene of each of the events on the indictment, he having cut himself, apparently in the process of smashing the glass on each occasion. Although the DNA sample was sent to the forensic laboratories for analysis, a bank-up of work prevented its being analysed until May 2003, after his release on parole. Once the DNA testing had established his identity as the perpetrator of the offences, the applicant's parole was revoked and he was returned to custody on 7 July 2003. 8 This means that, in relation to both sets of offences, the applicant's total term of imprisonment is (except for the one month when he was at large on parole) a head sentence of approximately four years and eight months, with a non-parole period of approximately three years and eleven months.

subjective circumstances 9 The applicant was born on 14 April 1974. He is of Aboriginal descent. He was 26 years of age at the time of the first offence; 27 at the second. He has a lengthy criminal history, commencing in 1987, when he was 13 years of age (an offence of break, enter and steal). This was followed by regular appearances, initially in the Children's Court, and later in adult courts, in relation to offences of dishonesty (including break, enter and steal and unlawful use of motor vehicles) and some of violence. 10 A report of a psychological assessment was before the sentencing judge. The applicant gave the psychologist a history of his childhood and adolescence, in the Illawarra area, which included violence and physical abuse on the part of his father; his eventual expulsion from school at the earliest leaving age; the early use (but not abuse) of alcohol, followed by regular use of cannabis, then amphetamines and finally heroin. He explained his drug use by reference to a series of deaths in his extended family over a twelve month period, one by suicide, and eight (of cousins) mostly from drug overdoses. He has had intermittent employment, mostly casual labouring at the local steelworks. For about five years from the age of about 16 the applicant was in a relationship with a woman with whom he had two children. Because of the woman's drug use the applicant was granted custody of the children when the couple separated. The applicant relinquished custody to the children's maternal grandmother on his imprisonment. He does not see the children regularly. At the time of the psychological assessment he was in another relationship and a child was expected early in 2004. At the time of the assessment his partner was visiting him on most weekends. 11 Psychological testing revealed the applicant to be of average intelligence, but with a low level of educational attainment, and to have a severe level of stress, an extremely severe level of anxiety and a moderate level of depression. The psychologist considered it likely that he would fulfil the criteria for a diagnosis of anxiety disorder. 12 The applicant gave oral evidence in the sentencing proceedings. He confirmed the history he had given to the psychologist.

remarks on sentence 13 The sentencing judge recorded the facts of the offences and the subjective circumstances. No complaint is made about the manner in which he dealt with the factual issues. His Honour explicitly referred to the principle of totality, but only in relation to the offences which were before him. He made no reference to that principle in relation to the offences for which the applicant had earlier been sentenced. 14 He noted a submission that special circumstances existed justifying a variation of the ratio between the non-parole period and the head sentence (a reference to the provisions of s44(3) of the Act) but held that no such circumstances existed and stated that he held little hope for the applicant's eventual rehabilitation.

application for leave to appeal 15 In support of the application for leave to appeal, two grounds were pleaded. The first is that the sentences were manifestly excessive "in their total effect"; the second that the sentencing judge erred in finding no special circumstances allowing a variation from the statutory ratio between the head sentence and the non-parole period. 16 In written (and oral) submissions in this Court counsel for the applicant focussed upon the circumstances concerning the combination of the two sets of offences, and the two sets of sentences. He referred to the decision of this Court in R v Mohamed Hakem Hajjo (unreported, 31 August 1992) in which it was held that the principle of totality applies, not only where a sentencing judge is dealing with a number of offences, but also where a sentencing judge is called upon to impose a subsequent sentence upon a person who is already serving a sentence. I accept that that is a correct statement of the law. However, counsel went on to argue: "... the fact that the sentences to be imposed in the District Court related to offences which were detected solely because of [the previous] incarceration, made the previous sentences relevant to the sentencing process." 17 I am unable to accept that the circumstances in which the sentences that the offences now under consideration came to be attributed to the applicant has any bearing on the application of the principle of totality. It is, however, relevant to a matter to which I will shortly come. 18 Counsel proceeded to argue, on the basis of the totality principle, that statistics provided by the Judicial Commission of New South Wales demonstrate that the sentences imposed upon the applicant fall within the top 5-10% of the range of sentences imposed, and that this was excessive in the light of the total criminality exhibited in the series of offences. However, as I read it, there is a flaw in the manner in which the written submissions were framed. Counsel took the sentence as a total one of approximately four years and nine months, that being the total of the head sentences imposed in relation to the offences for which the applicant was sentenced in October 2002, together with those presently under consideration. However, he related this total head sentence only to those offences with which the present sentencing judge was dealing. I fairness to counsel, I should note that he acknowledged the correct approach to this question in oral submissions. 19 If the total of the two sets of sentences is to be examined in the light of the totality principle, then so also must be the totality of the offences concerned in the two sets of sentences. That is a total of fifteen offences. As the Crown has pointed out, there were two quite separate sets of offences for which the applicant was, on the two separate occasions, being sentenced. 20 In the light of the applicant's criminal history, which entitled him to no leniency, I am unable to accept that such a sentence was manifestly excessive. I would reject this ground of the application.

special circumstances 21 The accumulation of sentences means, as I have set out earlier, that the applicant's total sentence was of four years and eight months with a non-parole period of three years and eleven months – giving him a period of parole of only nine months. This alone is, as counsel for the applicant has argued, sufficient to warrant a finding of special circumstances: see R v Simpson, unreported, NSW CCA 18 June 1992, R v Clark (1995) 78 A Crim R 226; R v Clissold (Ian Raymond) [2002] NSWCCA 356, unreported, 19 August 2002. His Honour did not mention the accumulation of sentences as a consideration relevant to the determination of whether special circumstances existed, and, in this case, I would infer that he did not turn his mind to it. 22 That inference is strengthened by the fact that his Honour was not referred to that circumstance as a basis for a finding of special circumstances. Although it was urged upon him that he should find special circumstances, the only basis which was put to him for such a finding concerned the need for rehabilitation. 23 In my opinion, error has been demonstrated in this respect. I would not find that his Honour would have been obliged, had he given proper consideration to the question, to find special circumstances, although an examination of the figures that result, which I have mentioned, does, in my opinion, speak strongly for such a finding. It is unnecessary for the applicant to go so far as to show that his Honour would have been obliged to make a finding of special circumstances. 24 The basis for intervention by this Court is established by demonstrating that consideration was not given to a matter which required consideration. I would conclude that error has been demonstrated and it is, therefore, necessary for this Court to make its own determination on this question. 25 A further argument which was put is that the circumstances in which the DNA evidence became available is relevant to the determination of special circumstances. In my opinion, DNA evidence is relevant only in the way I am about to mention. 26 The prosecution concedes that there was a lengthy delay in the processing of the DNA sample and that this had the effect of delaying the applicant's sentencing in relation to the present series of offences. I accept that this delay is relevant in the overall sentencing procedure, but I have more difficulty with the proposition that it is relevant to the question of special circumstances. Nevertheless, it may be seen that, had that delay not occurred, the applicant would have been sentenced at an earlier time and may have had the benefit of having his new sentences commence no later than the expiration of the earlier imposed non-parole period, 1 June 2002. As it was, the subsequent sentences commenced, respectively, on 7 July 2003 and 7 July 2004. I have come to the view that this should have been taken into account on the issue of special circumstances. 27 In my opinion, the applicant has made good this ground, and this Court should now, for itself, determine the question of special circumstances. I am further satisfied that a finding of special circumstances should be made, by reason of the accumulation of sentences, the consequent shortening of the parole period applicable, and the delay in commencement of the sentences brought about by reason of the delay in the testing of the DNA samples. I propose that leave to appeal be granted, the appeal allowed, the sentences imposed be quashed, and the applicant be re-sentenced as follows: 1: count one: imprisonment for two years, commencing on 7 July 2003, with a non-parole period of twelve months, expiring on 6 July 2004; 2: count two (taking into account the Form 1 offences): imprisonment for three years, commencing on 7 July 2004, with a non-parole period of one and a half years, expiring on 6 January 2006. 28 GROVE J: I agree with Simpson J. 29 SHAW J: I agree with Simpson J. 30 GROVE J: The orders of the Court will, therefore, be as Simpson J has proposed.

ADDENDUM: Thursday 2 September 2004 31 SIMPSON J: Judgment was delivered ex-tempore in this matter on 30 August 2004. Upon reflection, and subsequent to the delivery of judgment and the making of orders, it occurred to me that, by reason of s50(1) of the Crimes (Sentencing Procedure) Act 1999, the court was obliged, in respect of each of the sentences imposed, to make an order directing the release of the applicant on parole at the end of each non-parole period. S50(1) is in the following terms: "50(1) When a Court imposes a sentence of imprisonment for a term of three years or less, being a sentence that has a non-parole period, the Court must make an order directing the release of the offender on parole at the end of the non-parole period." (emphasis added) 32 S50(2) is in the following terms: "50(2) A parole order may be made under this section even though at the time it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject." (emphasis added) 33 Each of the sentences imposed by this Court is, within the terms of s50(1), a sentence of imprisonment for a term of three years or less that has a non-parole period. Accordingly, in each case, s50(1) obliges the court to make an order directing the release of the applicant on parole at the end of the non-parole period. This is so in respect of the first offence, even though, by reason of the sentence imposed in relation to the second offence, the direction of the court inevitably will not be complied with. 34 The wording of s50(2) is, in my opinion, curious. It is not framed in the same mandatory terms as sub-s(1), and appears to envisage that the sentencing court may not comply with its obligations under sub-s(1). It is, of course, futile for a court in the present circumstances to make an order of the kind envisaged and made mandatory by s50(1). The problem arises where a court imposes cumulative sentences, each of which is of three years or less and any of which has a non-parole period. The court is required to make the order even where the total term of imprisonment exceeds three years; and even where an offender cannot, by reason of later-commencing sentences, be released in accordance with the direction in the earlier-commencing sentence or sentences. 35 In my opinion, the attention of the legislature should be drawn to this anomaly in order for it to be corrected, if the legislature sees fit to do so. 36 Once I became conscious of the omission to comply with s50(1), the court drew the attention of counsel who had appeared for the Crown on the application for leave to appeal, and sought his assistance. Counsel who appeared for the applicant had already departed and was not present when this was raised. The members of the court received, the following day, by facsimile, a further submission from the solicitor who appeared for the Crown, affirming my tentative view that an order under s50(1) should have been included in the orders made. The letter containing the submission contained a note indicating that a copy had been sent to counsel who appeared for the applicant. The Crown also suggested that the court should attach conditions to the direction that the applicant be released on parole, the specific condition suggested being compliance with all reasonable requests of the Probation and Parole Service. In the absence of hearing from counsel for the applicant, I would not be prepared to impose such a condition. Although it appears to be unexceptionable, it is one that can be imposed when the applicant is released on parole, without being specified by this Court. 37 Accordingly, I propose that, in addition to the orders made on 30 August 2004, the following orders be made:

1A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 July 2004;

2A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 January 2006. **********

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