Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Stines v R [2020] NSWCCA 228 Hearing dates: 5 August 2020 Decision date: 11 September 2020 Before: Meagher JA at [1]; Fullerton J at [2]; Button J at [3] Decision: (1) Grant leave to appeal. (2) Uphold the appeal. (3) Quash the sentence imposed by Judge O'Rourke SC on 27 November 2019. (4) In substitution, the applicant Robert Stines is sentenced to a non-parole period of 1 year to commence on 24 May 2021 and expire on 23 May 2022, to be followed by a parole period of 1 year, to expire on 23 May 2023. (5) The date upon which the applicant is to be released to parole pursuant to this sentence is 23 May 2022. Catchwords: CRIMINAL LAW – appeal against sentence – distortion well beyond statutory ratio by pre-existing sentence structure – strong subjective case – intellectual disability – appeal allowed – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW), s 94 Cases Cited: Pearce v The Queen (1998) 194 CLR 610; HCA 57 Stines v R [2019] NSWCCA 115 Category: Principal judgment Parties: Robert Stines (Applicant) Regina (Respondent) Representation: Counsel: S J Odgers SC (Applicant) E Wilkins SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/74290 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 27 November 2019 Before: O'Rourke SC DCJ File Number(s): 2018/74290 1. MEAGHER JA: I agree with the reasons and proposed orders of Button J. 2. FULLERTON J: I agree with Button J. 3. BUTTON J: Introduction 1. On 27 November 2019, Mr Robert Stines (the applicant) was sentenced by her Honour Judge O'Rourke SC in the District Court sitting at Parramatta. He seeks leave to appeal against the sentence imposed on that day. 2. The applicant had pleaded guilty to an offence of robbery, contrary to s 94 of the Crimes Act 1900 (NSW), an offence which carries a maximum penalty of imprisonment for 14 years. 3. He was sentenced to a head sentence of 2 years with a non-parole period of 12 months, commencing on 24 November 2021. 4. At the time of the imposition of that sentence, the applicant was serving a separate term of imprisonment of 5 years 3 months with a non-parole period of 3 years 6 months (which was the result of reduction after a successful appeal against sentence to this Court): see Stines v R [2019] NSWCCA 115). That sentence had commenced on 24 August 2018. 5. The sentence imposed by the learned sentencing judge on 27 November 2019 was therefore partially cumulative upon, and partially concurrent with, the non-parole period of the sentence for the armed robbery that the applicant was already serving. 6. The sentenced imposed by the Court of Criminal Appeal on 7 June 2019 had a ratio between its non-parole period and its head sentence of 67%. However, after the sentence was imposed for the robbery on 27 November 2019, the partial accumulation of the two sentences led to an overall statutory ratio of nearly 81%. 7. That ratio was further compounded, however, by the partial accumulation of those two sentences with an earlier sentence for a break, enter and steal. That sentence had been imposed in the Local Court, and had been subject to an appeal to the sentencing judge. Although its length was not interfered with, its starting date was adjusted. The result was that the head sentence for the break, enter and steal was one year, with a non-parole period of nine months, to commence on 29 January 2018. 8. In the event, when the applicant departed the courtroom on 27 November 2019, he was subject to a total head sentence of a few days short of 5 years and 10 months, with a total non-parole period of a few days short of 4 years 10 months. It is immediately noteworthy that the ratio between total non-parole period and total head sentence had become almost exactly 83%. Even more significant is the fact that, after close to five years continuous custody, the applicant would spend only one year on parole. 9. A diagram attached to this judgment sets out all of the above in readily comprehensible form. Background 1. It is convenient to set out in more detail now the various offences committed by, and sentences imposed upon, the applicant in general chronological order. 2. Between 19 January 2018 and 22 January 2018, the applicant committed the offence of break, enter and steal. The facts of that offence were not placed before us, directly or indirectly. 3. On 28 January 2018, he committed two separate offences of aggravated robbery with wounding and robbery, the sentence for the latter of which is the subject of this application. 4. In a nutshell, the aggravated robbery with wounding featured, according to the judgment of this Court, the following objective features. It involved an attack by the applicant on the victim at approximately 3 am at a train station in Chester Hill. The applicant approached the victim, a 56 year old man sitting on a bench alone in the train platform, armed with a metal pole. The applicant struck the victim with the serrated side of the metal pole at least six times to the head. The victim fell to the ground, and also lost a substantial amount of blood in the process. The applicant then retrieved the wallet and backpack of the victim, and picked up his bicycle and left the area. 5. A day later, on 29 January 2018, the applicant was arrested for those two offences and refused bail. He has remained in continuous custody from that date. 6. On 12 April 2018, the applicant was sentenced in the Local Court at Liverpool for the offence of break, enter and steal to a term of imprisonment of 12 months to commence on 5 April 2018, with a non-parole period of 9 months. A severity appeal was lodged in relation to that sentence. 7. On 24 August 2018, the sentencing judge sentenced the applicant for the offence of aggravated robbery with wounding to a term of imprisonment of 6 years 9 months, with a non-parole period of 4 years 6 months, to commence on 24 August 2018. 8. Her Honour also heard the severity appeal for the sentence imposed against the break, enter and steal offence. Her Honour confirmed the sentence, but, as I have said, changed the commencement date of the sentence to 29 January 2018. 9. As mentioned previously, on 7 June 2019, the CCA allowed the severity appeal against the aggravated robbery with wounding, and reduced the sentence to 5 years 3 months, to commence on 24 August 2018, with a non-parole period of 3 years 6 months, to expire on 23 February 2022. 10. Turning to the final event of this chronological account, the sentence that is the subject of this application, as I have said on 27 November 2019, the applicant received a head sentence of 2 years, to commence on 24 November 2021, with a non-parole period of 12 months, to expire on 23 November 2022. Objective features 1. The objective features of the matter that is before us can be summarised as follows. 2. It involved a female victim who was walking home one evening when the applicant grabbed her by the left shoulder strap of her backpack and pulled her towards him, while on a bicycle. 3. The applicant said some words to the victim, but she was unable to understand due to her limited English. 4. The victim screamed for help and raised her left forearm in an attempt to protect herself. The victim released her grip on her phone in her right hand, and the applicant rode off in possession of her phone and headphones. 5. The incident caused redness to the left side of the neck of the victim, 6. The attack was described by her Honour as an "unplanned and not organised attack", involved "actual violence upon a female victim", and fell between the "low and the mid-range of objective seriousness". Subjective features 1. The following thumbnail sketch of subjective features is also derived from the remarks on sentence. 2. Subjectively, the applicant was 33 years of age at the time of the offending, aged 35 on sentence, and is now of 36 years of age. 3. The applicant received a 25% discount on sentence reflective of his readiness to plead guilty to the offence at the committal stage. 4. The sentencing judge recounted the very difficult life of the applicant. He had an abusive and alcoholic biological father. To give but one example from the upbringing of the applicant, his father set fire to the house and the applicant, then aged 8, was required to assist his mother in escaping that fire. 5. He had a history of difficulties throughout his schooling, marked by a short attention span and disruptive behaviour, and as a result is illiterate. He stopped attending school for a time at the age of 11, and was later enrolled in a school which specialised in educating adolescents with behavioural issues and disabilities. He did not finish school there, nor obtain any formal qualifications. 6. The applicant was found by the sentencing judge to have a considerable criminal history, marked by theft, driving offences, and drug offences. While his criminal record disentitled him to leniency, it was not treated as an aggravating factor, due to there being a lack of violence within it. 7. He was found to have a mild intellectual disability, characterised by poor problem solving and decision-making abilities. He has not been employed in the community and has been in the receipt of the disability support pension since 2005. His intellectual disability has also been linked with his history of impulsivity, poor emotional regulation, drug use, and offending behaviour. 8. The applicant had also been diagnosed with severe anxiety symptoms, severe depressive symptoms, and a moderate stimulant use disorder. In addition to this, he sustained a head injury at the age of 15 after falling off his bike, has reported experiencing extensive skin problems, and suffers from a recurring hernia. 9. The applicant has had a history of substance use, which commenced at the age of 18 with cannabis, amphetamines, and moderate alcohol intake. 10. He has twice attempted to abstain from substances by undertaking rehabilitation programs, and continues to express a desire to remain abstinent. 11. Whilst he was in custody in early 2014 at Parklea Gaol, the applicant was brutally assaulted by a correctional officer. As a result of that attack, the applicant suffered a broken jaw, had to have a permanent titanium plate inserted in his jaw, and continued to report ongoing pain relating to that injury at the time leading up to the imposition of sentence. 12. He also had to be removed from that particular correctional centre because of experiencing abuse from other correctional officers for giving evidence against the perpetrator of the assault at trial. This was found to contribute to his general anxiety and difficulties whilst in custody. 13. The sentencing judge also accepted that the applicant had expressed genuine remorse for his offending. 14. His prospects of rehabilitation were assessed as guarded. 15. It was also acknowledged that his mental state played a limited role in the offending, and that the custodial sentence would weigh more heavily on the applicant for a number of reasons. 16. At the time of imposition of sentence, the applicant enjoyed ongoing support from his mother, younger brother, and his step-father. Ground of Appeal 1. In support of the application for leave to appeal against sentence, the following ground was notified and pressed at the hearing: The sentencing judge erred in determining the non-parole period 1. In resisting the ground, senior counsel for the Crown asserted that there was no sentencing error. It was said in written submissions that the sentence for the robbery offence produced the intended effect, and that the sentencing judge arrived at it after careful consideration of the objective and subjective circumstances of the offending. The total overall non-parole period was not derived at by miscalculation and therefore, senior counsel asserted, there was no appellable error. 2. In oral submissions, it was said that the individual sentence imposed by the sentencing judge appropriately took into account special circumstances, and was a reflection of what her Honour believed to be the minimum overall sentence required to reflect the objective seriousness of the criminality of the offence. 3. In the event that this Court was to find that sentencing error had been established, the Crown argued, both in writing and orally, that, in adherence to Pearce v The Queen (1998) 194 CLR 610; HCA 57, the individual sentence should be maintained, but its commencement date should be adjusted. It was said that the sentence could commence on 24 May 2021, which would have the desired effect of producing an overall ratio of 75% for the three sentences that have led to the substantial period of continuous custody. 4. Turning now to the submissions for the applicant, it was asserted that error had been established, and that re-sentencing was necessary. In written submissions, counsel contended that it was possible to retain the head sentence and commencement date of the sentence and achieve an overall ratio of approximately 74% by simply imposing a non-parole period of 6 months rather than 1 year. 5. In oral submissions, counsel for the applicant conceded that an alternative approach to reducing the non-parole period and achieving the desired result was to backdate the commencement date. It was agreed that any such sentence should commence on 24 May 2021. 6. The short point made on behalf of the applicant by senior counsel was that partial accumulation of the sentence for the robbery offence and the aggravated robbery with wounding produced a ratio of almost 81%, because the overall non-parole period was extended but the expiration of the overall sentence was not. Taking into account the break and enter offence, the ratio was distorted to almost 83%. It was said that that outcome bespeaks error, in all of the circumstances, without the need for deep analysis. Determination 1. In my respectful opinion, the overall length of two years of the sentence under discussion, and the internal ratio of 50% between non-parole period and head sentence, are both unimpeachable. 2. But that is not the end of the matter, because whenever there is a sentence structure that features periods of continuous incarceration or conditional liberty, it is important to reflect upon individual sentences in context. 3. To repeat: as things currently stand, an intellectually disabled man will spend two months short of five years in custody without interruption, and thereafter be on conditional liberty for no more than 12 months. 4. The sentencing judge certainly referred to questions of cumulation and concurrence in the remarks on sentence. Her Honour did not refer explicitly, however, to the effect of cumulation, both pre-existing and subsequent to the imposition of a further sentence. But whether the ultimate outcome was intended, or the result of a slip by a no doubt busy District Court judge to my mind does not require determination. In my respectful opinion, the outcome can be thought of either as an example of an error with regard to the ratio between total non-parole period and total head sentence as a result of cumulation, or simply as a sentence that, when considered in its overarching context, is manifestly excessive. 5. I do not accept that the current state of affairs should be permitted to stand, not only because of the interests of the applicant, but also because of the interest of the community in his supervision, reintegration into society after a lengthy period in custody, and eventual rehabilitation. And I say those things well aware that my proposed solution means that the mandatory period of incarceration for this further offence will only be extended to an unusually small degree. But that is a function of the pre-existing sentence structure with which the sentencing judge was, and this Court is, confronted, combined with the significant subjective features of the applicant. 6. In my opinion, the simple solution is to maintain the overall length of the sentence under appeal, maintain the internal ratio, but adjust the commencement date further into the past, from 24 November 2021 back to 24 May 2021. As can be seen from the further attached diagram, that leads to a total period of mandatory incarceration of almost 4 years 4 months, a parole period of 18 months, and a ratio between total non-parole period and total head sentence of almost precisely 75%. Orders 1. I propose the following orders: 1. Grant leave to appeal. 2. Uphold the appeal. 3. Quash the sentence imposed by Judge O'Rourke SC on 27 November 2019. 4. In substitution, the applicant Robert Stines is sentenced to a non-parole period of 1 year to commence on 24 May 2021 and expire on 23 May 2022, to be followed by a parole period of 1 year, to expire on 23 May 2023. 5. The date upon which the applicant is to be released to parole pursuant to this sentence is 23 May 2022. Stines v R First Instance Sentence (2828, pdf) Stines v R Sentence Diagram Proposed Orders (2874, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2020