Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Harris [2011] NSWCCA 105 Hearing dates: 1 April 2011 Decision date: 04 May 2011 Before: Simpson J at 1; Davies J at 121; Grove AJ at 122 Decision: Crown appeal dismissed. Catchwords: CRIMINAL LAW - appeal - Crown appeal - asserted manifest inadequacy - individual and aggregate sentences - multiple offences - aggravated carjacking - robbery in company - Form 1 offences - escape lawful custody - offender on parole - pleas of guilty - mental illness - drug addiction - youth age - personal circumstances - error in failure to accumulate - finding of special circumstances - no manifest inadequacy CRIMINAL LAW - sentence - structure of sentences - no part of overall non-parole period solely referrable to most serious offence - exercise of discretion - appeal dismissed CRIMINAL LAW - sentence - robbery in company - sentences well below range specified in R v Henry [1999] NSWCCA 111 - whether excessive emphasis placed on mental illness - circumstances warranting sentence imposed - no manifest inadequacy CRIMINAL LAW - sentence - escape lawful custody - where sentences imposed on co-offenders identified as manifestly inadequate - where increased sentence might occasion unfair disparity CRIMINAL LAW - sentence - classification as "extremely high-risk" inmate - onerous conditions of incarceration - offender referred by sentencing judge to Drug Court - s 18B Drug Court Act 1998 - "eligible convicted offender" - circumstances calling for dismissal of Crown appeal Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Drug Court Act 1998 Cases Cited: Cvitan v R [2009] NSWCCA 156 Green v The Queen; Quinn v The Queen [2011] HCATrans 71 R v Barker; R v Gibson [2006] NSWCCA 20 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Green and Quinn [2010] NSWCCA 313 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Kelly [2010] NSWCCA 259 R v McIvor [2002] NSWCCA 490; 136 A Crim R 366 R v Thompson (NSWCCA, 21 May 1986, unreported) R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Trad [2009] NSWCCA 56; 194 A Crim R 20 R v Van Hong Pham [2005] NSWCCA 94 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Category: Principal judgment Parties: Regina (Appellant) John Joseph Harris (Respondent) Representation: Counsel: S Dowling (Appellant) C Loukas (Respondent) Solicitors: S Kavanagh (Solicitor for Public Prosecutions) (Appellant) Aboriginal Legal Services Ltd (Respondent) File Number(s): 2009/39757; 2009/136024 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-05 00:00:00 Before: Flannery DCJ File Number(s): 2009/39757; 2009/136024 Judgment 1SIMPSON J : Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions ("the DPP") appeals against the asserted manifest inadequacy of sentences imposed upon the respondent in the District Court on 5 November 2010 following his pleas of guilty to a series of charges, all brought under the Crimes Act 1900. 2The table below sets out the charges to which the respondent pleaded guilty, the maximum term of imprisonment provided by the relevant legislation, the standard non-parole period prescribed (where applicable), and the sentences imposed, including the date of commencement. Offence Maximum penalty Standard non-parole period Sentence imposed Commencement date Non-parole period/fixed term Balance of term Total sentence Escape lawful custody 10 years N/A 6 months (f/t) 3.2.2009 (s 310D(a)) Robbery in company (Kingsford) 20 years N/A 18 months (npp) 18 months 3 years 3.8.2009 (s 97(1)) Robbery in company (Marrickville) 20 years N/A 2 years 2 years 4 years 3.2.2010 (s 97(1)) Aggravated carjacking* 14 years 5 years 2 years 2 years and 6 months 4 years and 6 months 3.8.2010 (s 154C(2)) *The offence colloquially known as "carjacking" is that for which provision is made by s 154C of the Crimes Act . Section 154C(1) provides as follows: "(1) A person who: (a) assaults another person with intent to take a motor vehicle or vessel and, without having the consent of the owner or person in lawful possession of it, takes and drives it, or takes it for the purpose of driving it, or (b) without having the consent of the owner or person in lawful possession of a motor vehicle or vessel, takes and drives it, or takes it for the purpose of driving it, when a person is in or on it, is liable to imprisonment for 10 years. 3By sub-s (3), the aggravated form of the offence is committed where the offender is in the company of another person or persons, or is armed with an offensive weapon or instrument, or intentionally or recklessly inflicts actual bodily harm on any person. 4In addition, the respondent asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") that a further six offences listed on a Form 1 be taken into account. These were three offences of robbery in company, two of knowingly being carried in a stolen conveyance, and one of aggravated break, enter and steal. 5The aggregate sentence imposed upon the respondent was of imprisonment with a head sentence of 6 years, and a non-parole period of 3 years and 6 months (commencing on 3 February 2009 and expiring on 2 August 2012) and a balance of term of 2 years and 6 months (expiring on 2 February 2015). 6Pursuant to s 18B of the Drug Court Act 1998 the sentencing judge ordered that the respondent be referred to the Drug Court for determination of whether he should be the subject of compulsory treatment order. The facts 7It is convenient to outline the respondent's offences in chronological order, although that is not the sequence in which they were charged, or in which they appear above. (i) aggravated carjacking 8This offence was committed on 19 January 2009. That morning, a Mr Ng parked his motor vehicle in the Sydney Entertainment Centre car park. At about 7pm he returned to the car park and entered the vehicle. The respondent and another man were nearby, the respondent carrying a knife. After Mr Ng started the car, he opened the door to place some items on the floor behind the driver's seat, and then began to remove his jacket. The respondent and the co-offender demanded that Mr Ng surrender the vehicle, threatening to stab him if he did not. Mr Ng told them not to do anything silly, and that they would be caught. Mr Ng removed the keys from the ignition and ran off, calling for help. The respondent and his co-offender followed, the co-offender pushed Mr Ng to the ground, punched him several times, and kicked him in the face. He took the car key from Mr Ng's hand, and the two offenders ran off to the vehicle. Mr Ng sustained some scratches, swelling and bruising, and a minor fracture of the nasal bone. 9Two passers by sought to assist, and approached Mr Ng's vehicle, which was by now occupied by the two offenders. The respondent threatened them with the knife. The two offenders drove off in Mr Ng's vehicle. Shortly after leaving the car park, the vehicle crashed into a parked car. The respondent and the co-offender alighted and ran off, the respondent still holding the knife. 10The respondent was arrested 10 days later, 29 January 2009. 11This offence was charged on indictment. The respondent entered a plea of guilty to this charge in the District Court on 29 June 2010, after it had been called on for trial. (ii)-(vi) robbery in company - Marrickville Post Office 12These offences were committed during the afternoon of 20 January 2009. At about 4.13pm the respondent and another man entered the premises of the Marrickville Post Office, where four employees (Mr Con Zogalis, Mr Zhan Ly, Ms Rose Jean and Mr John Bui) were working. Each offender had concealed his face with a t-shirt. Each was carrying an iron bar. One of the offenders shouted at the employees to lie down. The two offenders jumped on the counter, facing the four employees. The co-offender jumped off the counter near Mr Zogalis, and told him to lie down; the respondent told him to open the till. Mr Zogalis did so, and the co-offender removed a sum of $510.00 which he placed in a bag. He demanded to know where the $50 notes were. Mr Zogalis directed him to a time-delayed safe, but the co-offender was unable to open it. 13The respondent directed Mr Ly to open another cash register, which he did. The respondent removed $400. The co-offender then approached Mr Bui, and ordered him to open his till. Mr Bui did so, the co-offender removed an unspecified quantity of bank notes, and put them in the bag. He was again unsuccessful in opening the time-delayed safe. 14The co-offender then approached a register operated by Ms Jean, and removed two bags of coins and an unspecified quantity of bank notes. Both offenders then left the premises, in a vehicle that had earlier been stolen from premises in Double Bay. 15In total, $2048.00 was taken in this robbery. 16The robbery of Mr Ly gave rise to the first of the robbery in company offences charged on indictment; the separate robberies of Mr Zogalis, Mr Bui and Ms Jean gave rise to the three offences of robbery in company listed on the Form 1. The escape in the stolen vehicle gave rise to the first of the offences of knowingly being carried in a stolen motor vehicle. The respondent entered pleas of guilty to each of these offences in the Local Court on 8 March 2010. (vii) aggravated break, enter and steal (Form 1) 17This offence was committed between 11.30pm on 23 January 2009 and 7.45am the following morning. The home of Mr and Mrs Turpie at Tempe was broken and entered whilst Mr and Mrs Turpie were asleep in bed. Their motor vehicle was parked outside, the key hanging near the front door. The key and the car were stolen. From the inclusion of this offence on the Form 1, it is clear that the respondent admitted to having participated in the offence of break, enter and steal. The circumstance of aggravation was that he knew that there were persons inside the premises at the time of the break, enter and steal. (viii)-(ix) robbery in company - Kingsford 18At about 9.30pm on 24 January 2009 the respondent and another man, each carrying a knife, entered the McDonald's store at Kingsford. Their faces were concealed by t-shirts. They jumped onto the counter and demanded that the tills be opened. They jumped off the counter on to the other side, repeating their demand. One of them directed a 16 year old employee to open one till. The other man made the same demand in respect of another till. The tills were opened and the men removed the sum of $3360, and ran off. This was the Kingsford offence, charged on indictment. They escaped in the vehicle that had been stolen from the Turpies, driven by a third man. Their escape in the vehicle constituted the second offence on the Form 1 of knowingly being carried in a stolen conveyance. 19The respondent entered a plea of guilty to this charge in the District Court on 6 July 2010, after it had been called on for trial. (x) escape lawful custody 20The respondent was arrested on 29 January 2009 and charged with a number of offences. He was remanded in custody and held at Parramatta gaol, a medium security prison. On 3 May 2009 he was, at his own request, transferred to a cell that he shared with another inmate, Isaac Haines. 21Later that day the respondent, Haines, and two other inmates (Ricky Kincheila and Jay Williams) escaped, apparently by exploiting openings (whether created by them is not clear on the evidence) in at least two mesh fences, and a timber plank angled against the external perimeter wall. The respondent remained at large until 6 May, when he was arrested in a unit at Waterloo. When he saw police at the door of the unit, he attempted again to flee by jumping from a balcony, but he was apprehended. 22The respondent entered a plea of guilty to this charge in the Local Court on 8 March 2010. The applicant's personal circumstances 23Evidence of the applicant's personal circumstances was provided to the sentencing judge by way of a Justice Health Report prepared by a psychiatrist, Professor David Greenberg, a second psychiatric report prepared by Dr Olav Nielssen, and evidence given by the respondent and his mother. 24As counsel for the DPP acknowledged, the account of the respondent's personal circumstances was "compelling". 25The respondent was born in July 1990, and was 18 (not 19 as was suggested on behalf of the DPP) when he committed these offences. He had, however, a significant criminal record, which began, at the age of 13, with an offence of armed robbery (of which I will say more below). Apart from that armed robbery, there are, on his record, no less than six other instances of the same offence. Other offences of which he has been convicted are shop lifting, aggravated break and enter with intent, and other offences of dishonesty. His record also includes two offences of escaping lawful custody (each as a juvenile) but no detail was given of these offences. He has spent a good deal of time in juvenile detention centres. He was released from custody, subject to parole conditions, on 18 January, the day before the carjacking offences. The offence for which he was then incarcerated was one of aggravated break and enter with intent to commit a serious indictable offence. The circumstance of aggravation was that the offence was committed in company. 26The respondent's heritage is Aboriginal (on the maternal side) and Maori (on the paternal side). His mother was 14 when she became pregnant with the respondent. The relationship of his parents did not survive (his father was in juvenile detention) and the respondent first met his father at the age of 13: no close relationship followed and there has been little contact. The respondent told Professor Greenberg that he had never held employment. 27His mother suffers from bipolar disorder, and a history of substance abuse - heroin, crystal amphetamine, and cocaine. As a child, the respondent was deserted for periods of time by his mother and cared for by his grandmother and step-father (sic - ? step-grandfather). His grandmother is said to have early dementia and to be old and frail. The respondent has two younger half-sisters, both (at the time of sentencing) under the care of the Department of Community Services. His mother's relationship with the father of her daughters was violent. His mother suffered from uncontrolled anger. 28When the respondent's mother was 23 years of age, and caring for the respondent and his two half-sisters, her own biological father, who had previously been absent, re-entered her life. He introduced his daughter to heroin, which she followed with cocaine. She began to commit armed robberies. In about 2003, when the respondent was 13, she committed an armed robbery in which she involved the respondent. This was the first criminal activity with which he was charged, and to which I referred above. The respondent's mother was apprehended and sentenced to imprisonment for 6 years with a non-parole period of 3 years. The respondent appeared in the Children's Court and was subjected to a 12 month probation period under the supervision of the Department of Juvenile Justice. The psychiatric evidence (i) Justice Health - Professor Greenberg 29Professor Greenberg's examination of the respondent was curtailed in time due to the respondent's late arrival, which in turn was due to a court appearance on the day scheduled for the appointment. However, Professor Greenberg had had quite extensive previous contact with the respondent whilst he was in juvenile detention. He was aware of psychotic symptoms then experienced and observed, and of a number of hospital admissions for psychotic illness. 30The respondent told Professor Greenberg that he had no recollection of the present series of offences, or of the time during which they were committed. He said that, before his release on parole, he had been using crystal amphetamine and cannabis, and that he had continued this use after his release and up to his arrest on 29 January. His drug use during that time extended to amphetamines, cannabis, alcohol, ecstasy, cocaine and heroin. He told Professor Greenberg that while on illicit substances he "just goes crazy". He said that he had begun using cannabis and alcohol at age 12, amphetamines and heroin at age 13, and ecstasy at age 14. His alcohol consumption was sufficient to cause blackouts. 31Professor Greenberg noted that both the respondent and various members of his family had histories of psychotic illness. At the time of his (brief) consultation (on 11 August 2010) with Professor Greenberg, the respondent, who by then had been in custody in relation to these offences for 20 months, was taking anti-psychotic medication. 32Professor Greenberg noted that significant personality problems dated back to adolescence, evidenced by conduct behaviour problems at school. 33Importantly, Professor Greenberg considered that (notwithstanding a somewhat negative response by the respondent) the respondent might benefit from drug and alcohol counselling. His prognosis would depend upon his motivation to abstain from those substances in the long term. Professor Greenberg considered it "imperative" that the respondent abstain from all alcohol and illicit substances for an indefinite period, as use of those substances was likely to exacerbate or aggravate the underlying psychotic illness. (ii) Dr Nielssen 34Dr Nielssen examined the respondent at about the same as Professor Greenberg, and took a similar history, including that the respondent had little, if any, recollection of the offences. 35The respondent told Dr Nielssen that his anti-psychotic medication was sought after by other prisoners and that he gave it away and substituted cannabis. He acknowledged symptoms of psychosis. He said that, at the time of his escape, he had been in dispute with prison authorities, who had threatened medication by injection and had placed him in a "dry" cell. 36The respondent told Dr Nielssen that his mother, maternal grandmother, and younger sister had all been diagnosed with mental illness, either schizophrenia or bipolar disorder. He said that he had twice attempted suicide in juvenile justice centres, by cutting his arms and slashing his abdomen, and on other occasions by hanging, head banging (to stop the voices) and shooting himself with what turned out to be a unloaded gun. 37He said that he was held in segregation, which limited his access to psychiatric help. 38The drug and alcohol history taken by Dr Nielssen was similar to that taken by Professor Greenberg. 39Dr Nielssen's examination of the medical records revealed that the respondent was diagnosed with schizophrenia and given involuntary treatment as a forensic patient under mental health legislation during the time he was held in juvenile detention. Dr Nielssen confirmed the diagnosis of schizophrenia and added, unsurprisingly, substance abuse disorder. 40Before coming to the evidence of the respondent and his mother, I note that her Honour was provided with a letter from Mr Kevin Cook, who identified himself as the first Chairperson of the NSW Aboriginal Land Council, and General Secretary of Tranby College. He has held various other prominent positions. He regards himself as effectively a grandfather to the respondent, through the relationship of the respondent's mother with her second partner. Mr Cook supported the respondent, by indicating a network of support available for him on his release. The respondent's evidence 41The respondent confirmed his psychiatric and custodial history. He said that while in juvenile detention he had had access to, and used, amphetamines, and that after he was diagnosed with schizophrenia he had faithfully taken his medication. On turning 18 he was transferred from juvenile detention to adult detention, when he ceased taking medication. That was because of pressure exerted by other prisoners to give the medication to them. On release from custody he was given no medication to take with him. Almost immediately after his release he consumed alcohol and then amphetamines, and contacted his old acquaintances. 42When he was arrested, the appellant told police that he was hearing voices in his head. Although police contacted the Aboriginal Medical Service, that Service was unable to supply any medication. 43The respondent told the sentencing judge that he had escaped because he had been threatened with being forced to take medication, and had been placed in a "dry cell" (this is consistent with what he told Dr Nielssen). 44After his re-capture, the respondent was classified as "extreme high-risk". This entailed his being placed in ankle cuffs, and, when moved from place to place, being restrained with handcuffs, a belt, padlocks, and wearing an orange jumpsuit, and being accompanied by four officers. Family visits are restricted to his grandmother and one aunt. 45At the time of the sentencing proceedings, the respondent was being held in segregation. He believed (and this was not contradicted) that his segregated status was due to his previous association with some members of an outlaw motorcycle gang. His segregation status limited his access to education, psychological and drug and alcohol workers. It also meant that he was confined to the Goulburn Gaol where he was locked down for 23 hours per day, with one hour out. He understood (and was not contradicted) that this would appertain for perhaps 10 years, and he had been told not to expect any change. 46Contrary to his earlier expressed attitude, the respondent was modestly positive about the prospect of undertaking drug rehabilitation. The evidence of the respondent's mother 47At the time of the respondent's sentence proceedings, his mother, Ms Jeannie Harris, was serving a sentence and was due to be released in three weeks thereafter. She was given leave to attend court. 48She confirmed that she had become pregnant at the age of 14, and had given birth to the respondent at 15, and that his father had been taken into juvenile custody. She confirmed that her subsequent relationship, with the father of her two daughters, had been violent and that she herself had had "a bad anger problem" and that a lot of cannabis was smoked in the home. 49She said that her father had reappeared in her life when she was 23 and had introduced her to heroin. Although she had previously engaged in some less serious criminal activity, she then became involved with "heavy drugs" and then began committing armed robberies. She confirmed that, when he was 13, she had taken the respondent with her to commit one of these offences. The Remarks on Sentence 50The sentencing judge stated that she would, as requested, take into account the Form 1 offences when sentencing for the robbery in company of Mr Ly at the Marrickville Post Office. This was appropriate because the three other robbery in company offences were closely associated with, and part of the same enterprise, as that offence, as was one of the offences of being carried in a stolen conveyance. Nevertheless, it was necessary that the sentence reflect the fact that four individual robberies, even though all part of one enterprise, had been committed at that time, and that two offences of being carried in a stolen conveyance, and one of aggravated break, enter and steal, were to be incorporated in the punishment imposed for that offence. 51Her Honour noted that the pleas of guilty in respect of the aggravated carjacking offence, and the Kingsford robbery in company were entered in the District Court after the matters had been called on for trial. In accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, she allowed a reduction in those sentences of 10 per cent. The pleas in respect of the robbery in company of the Marrickville Post Office and the escape lawful custody were entered in the Local Court, at the earliest opportunity, and therefore, in accordance with the same principles, her Honour reduced the sentences by 25 per cent. 52Her Honour noted the factual circumstances of each of the offences, and the submissions that had been put before her in respect to sentencing, particularly by the Crown. Aggravated carjacking 53In respect of the aggravated carjacking, her Honour noted the maximum penalty of 14 years, and that, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, a standard non-parole period is prescribed, but is not strictly applicable by reason of the respondent's plea of guilty to the offence. Nevertheless, she recognised, as is well established, that the standard non-parole period remains relevant as an indicator: R v Way [2004] NSWCCA 131; 60 NSWLR 168. The standard non-parole period, where applicable, is intended to be imposed in respect of an offence in the middle of the range of objective seriousness of offences of its kind (unless reasons for departure are identified) (s 54A(2)). It is therefore necessary, in respect of offences to which that Division applies, to make an explicit evaluation of where the offence sits on the scale of objective seriousness for offences of its kind. 54Her Honour noted that the Crown relied upon five separate circumstances which suggested that the respondent's offence fell substantially above the mid-range of objective seriousness. Those reasons were: (i)the respondent was armed with an offensive weapon; (ii)the victim was threatened with being stabbed; (iii)the victim was assaulted, pushed to the ground and punched and kicked in the face; (iv)the victim suffered some injury; (v)the respondent and his co-offender threatened the two passers by who sought to assist the victim. Her Honour accepted that these circumstances pointed to an offence that was a serious example of its kind. Further, she recognised that the respondent was on parole when he committed the offence, and that that was an aggravating circumstance. She said that, but for the respondent's mental illness, and the fact that his judgment was affected by that illness, she would have found the offence to be above the mid-range of seriousness for offences of its kind. However, she accepted a submission made by counsel for the respondent that the respondent's judgment was affected by his mental illness, and that this mitigated the gravity of the offence. She accordingly found that the offence fell in the middle of the range of objective seriousness. 55She rejected a submission made on behalf of the Crown that the offence was aggravated, in accordance with s 21A(f) of the Sentencing Procedure Act, because the offence involved gratuitous cruelty. This was because the physical assault upon Mr Ng was perpetrated by the co-offender and not by the respondent. She accepted a further submission (s 21A(2)(d)) that the respondent had a record of previous convictions, but, while finding that that disentitled him to leniency, she declined to find that it aggravated the offence. 56Against the maximum penalty of 14 years, and the standard non-parole period of 5 years, her Honour imposed the sentence set out above, of imprisonment for 4 years and 6 months, made up of a non-parole period of 2 years and balance of term of 2 years and 6 months. Robbery in company 57In respect of the robbery in company offences, her Honour was referred to the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, promulgating a guideline (head) sentence of between 4 and 5 years in respect of the "typical case" there outlined. She accepted that certain features of the respondent's offences - degree of planning, the respondent's criminal history, and the amount taken - suggested an increase, rather than a decrease, in the guideline sentence promulgated. On the other hand, the guideline judgment in Henry hypothesises a late plea of guilty, and the respondent's plea to the Marrickville offence was entered at an early stage. That was not so in respect of the Kingsford robbery. Escape lawful custody 58In respect of the escape lawful custody offence, her Honour referred to submissions invoking R v Thompson (NSWCCA, 21 May 1986, unreported) in which the court observed that "the ordinary sentence" for "an unremarkable escape" could be expected to approximate 2 years; at that time, the maximum penalty for the offence was 7 years (against the current 10 years). 59However, her Honour also had regard to the sentences imposed on the three prisoners who had escaped with the respondent. Two (Haines and Kincheila) were sentenced in the District Court to imprisonment for 3 months; the third (Williams) in the District Court to imprisonment for 6 months. Williams was apprehended 6 weeks after the escape, after committing a violent offence. Her Honour noted (but obviously rejected) the Crown submission that those sentences were so inadequate that she should not have regard to them in sentencing the respondent. 60Having noted those matters, her Honour turned to the evidence of the respondent's personal circumstances. She noted that he had spent many of his teenage years in juvenile justice detention, and virtually all of his adult life in prison, apart from the 11 days in the community after he was released to parole in January 2009, during which time he resumed his use of illicit drugs and committed the offences the subject of the present appeal. 61She noted the family history of mental illness, and the diagnosis of mental illness in the respondent. She accepted a submission made on behalf of the respondent that his psychiatric condition "had some part" to play in the commission of the offences, most likely by clouding his judgment, and that that circumstance (together with his segregation status) means that incarceration will weigh more heavily upon him. 62Her Honour noted the evidence concerning the circumstances of the respondent's custody and that his classification as an extremely high-risk inmate impacts severely upon his conditions of incarceration. 63Her Honour found that special circumstances pursuant to s 44(2) of the Sentencing Procedure Act existed, justifying departure from the ratio there stated between the non-parole period and the head sentence. 64She proceeded to impose the sentences mentioned above. 65In respect of the escape offence, she noted s 57(2) of the Sentencing Procedure Act which requires a sentence of imprisonment for escape to be served "consecutively with" any other sentence of imprisonment to which the offender is subject, or which is imposed in the same proceedings. 66Accordingly, the sentence she imposed in respect of that offence contains no element of concurrency with any other sentence. The sentence imposed, however, is not consecutive in the ordinary sense of that word, since it is the sentence specified first to commence. Since there is no element of concurrency, the DPP has not taken issue with the commencement date of that sentence. The DPP's appeal 67The careful and comprehensive analysis of the relevant facts and circumstances by her Honour left little scope for the identification of actual error, and none (other than manifest inadequacy) was pointed to. 68The DPP pleaded two grounds of appeal, firstly, what is asserted to be the manifest inadequacy of each of the individual sentences imposed, and, secondly, what is asserted to be the manifest inadequacy of the aggregate of the sentences. Ground 1: manifest inadequacy of the individual sentences (i) carjacking 69No issue is taken with the sentencing judge's statement of principles concerning the application of the standard non-parole period legislation. 70In submitting that the sentence was manifestly inadequate, counsel for the DPP invoked the decision of this Court in R v Trad [2009] NSWCCA 56; 194 A Crim R 20. The offender in Trad was convicted after trial, and faced sentence in respect of five offences: two of robbery in company, one of dishonestly interfering with a unique identifier of a motor vehicle (s 154H(1)(a) of the Crimes Act ), one of disposing of stolen property, and one of aggravated carjacking. One offence on a Form 1 was taken into account, of knowingly, without reasonable excuse, possessing a vehicle identification plate. For all of these offences the offender was sentenced to a total term of imprisonment of 8 years and 3 months with a non-parole period of 5 years and 3 months. The sentence imposed in respect of the carjacking offence was of 8 years with a non-parole period of 5 years. That non-parole period was the standard non-parole period. (The head sentence was substantially longer than would have been expected if the proportion stated in s 44(2) of the Sentencing Procedure Act had been applied.) 71The offender had not pleaded guilty, the sentencing judge found that the offence was, at least, in the mid-range of objective seriousness, and it appears that the sentencing judge found no other reason for departure from the standard non-parole period. The offender sought to challenge the finding that the offence fell in the middle of the range of objective seriousness, but this challenge failed in this Court. There being no other challenge to that sentence, it was upheld. 72Trad is therefore of little, if any, assistance. It is a case in which the circumstances effectively dictated the imposition of the standard non-parole period. That is not here the case: the fact that the respondent pleaded guilty is one reason justifying (and, indeed, requiring) departure. It is true, as I have previously acknowledged, that there may be cases where there is no reason other than the plea of guilty to justify departure from the standard non-parole period. In such a case, it may be difficult to see why any reduction other than that allowed in respect of the plea of guilty ought to be made from the standard non-parole period. If that were the case here, applying the 25 per cent reduction that her Honour allowed in respect of this offence, the non-parole period would be 3 years and 9 months, and the head sentence (in accordance with the statutory proportions) 5 years. But the plea of guilty was not the only reason why the standard non-parole period ought not, in this case, be imposed. Additional reasons included the respondent's age, his mental illness, and his unfortunate personal history. 73Her Honour's characterisation of the offence itself (leaving aside the respondent's mental illness) was undoubtedly correct. Objectively, the crime was a serious example of its kind. In R v Barker; R v Gibson [2006] NSWCCA 20, Howie J (with whom Basten JA and Hall J agreed) outlined (non-exhaustively) circumstances that are relevant to the gravity of a carjacking offence. These his Honour identified as: * whether the offence was planned; * the number of persons involved, and their conduct; * the type of threats made; * the degree of violence displayed; * the number of persons in the vehicle at the time of the offence; * the degree of fear instilled in the victim; * the period over which the vehicle is used; * damage to the vehicle (if not giving rise to a separate charge); * the time and place at which the offence is committed (for example, at night or in an isolated area); * any special vulnerability in the victim; * the motive for the commission of the offence; and * the number of aggravating features (sub-s (2)) that are present. There are few of the factors on this list that are not present in the present instance. The offence, as her Honour recognised, plainly a very serious instance of aggravated carjacking. Moreover, while any one of these factors specified in s 154C(3) of the Crimes Act is sufficient to bring the offence within the aggravated category, here all three applied - the respondent was in company, he was armed with a knife, and Mr Ng suffered some (although relatively minor) injury. 74On the other hand, the impact of the respondent's very serious mental illness and other personal circumstances cannot be overlooked. These significantly reduced the respondent's culpability. Further, he was entitled, on the finding of special circumstances, to a significant reduction in the non-parole period, even if the head sentence remained unaltered. There was, in fact, only a relatively small reduction in what would have been the head sentence had the non-parole period, after reduction for the plea of guilty, been imposed. (ii) robbery in company 75Counsel for the DPP relied heavily upon the decision of this Court in R v Henry and submitted that both the Marrickville and the Kingsford robberies were significantly more serious than those described in Henry , and, accordingly, ought to have attracted a sentence at least at the higher end of the range specified in Henry . In particular, the Marrickville offence, where a number of significant additional offences were taken into account, ought to have attracted a higher sentence. It was submitted that overemphasis was placed upon the respondent's mental illness, resulting in a manifestly inadequate sentence. 76At [162] of the judgment in Henry the Chief Justice identified a number of circumstances common to offences of this kind and the offenders who commit them, as follows: "(i) young offender with no or little criminal history; (ii) weapon like a knife, capable of killing or inflicting serious injury; (iii) limited degree of planning; (iv) limited, if any, actual violence but a real threat thereof; (v) victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) small amount taken; (vii) plea of guilty, the significance of which is limited by a strong Crown case." 77At [170] the Chief Justice identified further relevant circumstances as: "(i) nature of the weapon; (ii) vulnerability of the victim; (iii) position on a scale of impulsiveness/planning; (iv) intensity of threat, or actual use, of force; (v) number of offenders; (vi) amount taken; (vii) effect on victim(s)." 78In a case fitting the profile set out at [162] the Court held that a sentence (head sentence) of between of 4 and 5 years should be the norm ([165]). Here, counsel for the DPP submitted that, in a number of respects, the Marrickville robbery called for a more severe sentence, or at least one at the top of the Henry range. This was because: * it involved a significant degree of planning (to be inferred from the theft of the escape vehicle from Double Bay 12 hours earlier, and that the offenders' faces were concealed); * the robbery occurred at the end of a day's trading, and the victims were (so counsel for the DPP submitted) "vulnerable shop keepers"; * the robbery netted in excess of $2000, more than the "small amount" referred to in Henry ; * the respondent had an extensive criminal history, including seven offences of armed robbery; * the offence was committed when the respondent was on parole; * a number of Form 1 offences were taken into account. 79The sentence ultimately imposed was one of 4 years, with a non-parole period of 2 years. That is at the bottom of the range stated in Henry , specified, the DPP argued, for a much less serious offence. 80Counsel for the DPP conceded that the respondent's mental illness was a factor relevant to the overall sentencing discretion, but submitted that it was allowed to play too large a part, and could not justify such a significant departure from the Henry range. 81Similar submissions were made in relation to the sentence (3 years with a non-parole period of 18 months) imposed in respect of the Kingsford offence, although there were some differences. The respondent was allowed only a 10 per cent reduction in recognition of his plea of guilty, which was very late. Tending the other way, there were no additional offences to be taken into account. Nevertheless, that sentence is well below the range specified in Henry . (iii) Escape lawful custody 82Counsel for the DPP relied upon passages in the judgment of Wood CJ at CL in R v Van Hong Pham [2005] NSWCCA 94. ( Pham was a Crown appeal against a sentence of 18 months with a non-parole period of 12 months, which was conceded not to be manifestly inadequate. The ultimate ground of challenge concerned the commencement date of the sentence, which was said to have resulted in an inadequate period of time to be served. 83Essentially, counsel for the DPP relied upon the decision in Pham for those passages in which Wood CJ at CL referred to the potential impact of escape on beneficial and humanitarian custodial programmes of escapes. It was the statements of general principle in Pham to which counsel directed this Court's attention, and not the specific circumstances of the offence or the sentence. Ground 2: overall sentence 84Counsel for the DPP also contended that the structure of the sentences resulted in manifest inadequacy. This was graphically illustrated by a colour chart that demonstrated (as is evident from examination of the various commencement dates of the sentences) that no part of the overall non-parole period imposed in respect of the Marrickville offence is to be served referable solely to that offence. Put another way, the whole of the non-parole period imposed in respect of the Marrickville offence is concurrent with that of either the Kingsford offence or the carjacking. That is because the sentence for the Kingsford offence commences on 3 August 2009, and the non-parole period expires on 2 February 2011; the sentence for the Marrickville offence commences on 3 February 2010, and the non-parole period expires on 2 February 2012; the sentence for the carjacking commences on 3 August 2010, and the non-parole period expires on 2 August 2012. Thus the non-parole period for the Marrickville offence overlaps for the first 6 months with the Kingsford offence non-parole period; and for its last 12 months, with the carjacking non-parole period. Conclusions (i) carjacking 85Counsel for the respondent provided the Court with a limited amount of statistical material relating to sentencing for this offence. The limitations on the use that can be made of such material are well known, and need not be repeated. In the end, some guidance can be obtained from statistics extracted from previously decided cases, but the greatest benefit is from a range of comparable cases having regard to their facts. No single previously decided case can dictate the result of a sentencing discretion. 86I agree with the sentencing judge that, objectively, this offence was a very serious instance of its kind, well above mid-range. I also agree that the respondent's culpability was significantly mitigated by his mental illness (and his personal history). I am not satisfied that this sentence was manifestly inadequate. (ii) robbery in company (a) the Marrickville offence 87I accept this much of the submission of counsel for the DPP: on the face of it, a sentence so far below the Henry guideline has the appearance of manifest inadequacy. Those features to which counsel for the DPP pointed (see [78] above) are all relevant, however they do not all unequivocally point to the elevation of the offence well above that profiled in Henry (whether being armed with metal bars, as distinct from a knife or the like makes the crime worse is difficult to say: either is likely to strike fear into the minds of the victims; here, each of two offenders was so armed, and the victims would have been well within their rights to anticipate that the offenders would not hesitate to use the weapons). 88I do not accept that the concealment of the offenders' faces with t-shirts evidences a significant degree of planning; to the contrary, many armed robbers have much more elaborate or sophisticated means of concealment. The use of t-shirts for that purpose suggests to me to the contrary: that little, if any, planning went into that aspect of the venture. The theft of the car 12 hours before is equivocal: there is nothing in the statement of facts, nor in the cross-examination of the respondent, that permits an inference that the vehicle was stolen for the purpose of this robbery, or for the purpose of robbery in general. I assume that the reference to the robbery having taken place at the end of the day's trading is intended to suggest that that was done for the purpose for maximising the potential gains, and this is a relevant consideration, pointing to some degree of planning. I accept, further, that the four victims were vulnerable, and that the proceeds, in excess of $2000, separated this offence from the Henry profile (although it is not altogether easy to see why the happenstance of what was in the till at the time of the robbery is a major factor). 89The respondent's parole status was an important factor, pointing (if it stood alone) to a heavier emphasis on specific deterrence (especially taking into account the remarkably short period between his release and his commission of these crimes), as did the respondent's criminal history, particularly the six (I leave out of this account the respondent's first armed robbery, committed as a 13 year old at the behest of, and in company with his mother) previous armed robberies. 90Similarly, the significant number of quite serious Form 1 offences suggested an increment on the Henry guidelines. But there were factors pointing the other way, most particularly the respondent's personal history of deprivation, mental illness and drug addiction. To that may be added his youth - he was 18 years of age at the time of the offences. 91Adopting the approach taken by Kirby J in R v Kelly [2010] NSWCCA 259 at [52], counsel for the DPP proposed that, where a plea of guilty is held to warrant a reduction of 25 per cent, the top of the Henry range sentence of 5 years translates to a head sentence of 3 years and 9 months, and the non-parole period to 2 years and 10 months; and the 4 year bottom of the range head sentence translates to a head sentence of 3 years, the non-parole period to 2 years and 3 months. 92In my opinion that approach is erroneous because it fails to take account of the fact that some reduction for the plea of guilty has already been factored in. This is commonly taken to be in the order of 10 per cent. 93The starting point of the Henry figures, before 10 per cent reduction, must be taken to be a range of between 5 years and 6 months (non-parole period 4 years and 1 months) and 4 years and 5 months (non-parole period 3 years and 4 months). It is from those starting points that a reduction for the plea of guilty ought to be made. 94Thus, after application of the 25 per cent reduction for the plea of guilty to the Marrickville offence, the range of available sentences (always assuming that Henry dictates the outcome, an assumption I do not make) would be a range of head sentence of 40 months (3 years and 4 months) with a non-parole period of 30 months (2 years and 6 months) to a head sentence of 50 months (4 years and 2 months) and a non-parole period of 37 months (3 years and 1 month). 95While I recognise and give due weight to those features identified by counsel for the DPP that would suggest a higher starting point, those circumstances are at least equally balanced by those pointing to the contrary. 96I accept that it would require very unusual circumstances to warrant a sentence as low as that imposed. In my opinion, those circumstances do here exist. Those circumstances are, as I have mentioned before, the respondent's mental illness and his personal history. To that I would add, importantly, the circumstances of his custody. For those reasons, I would not interfere with the sentence imposed in respect of the Marrickville offence. (b) the Kingsford offence 97The sentence imposed in respect of the Kingsford offence, which occurred later in time, was less than that imposed in respect of the Marrickville offence, by a factor of 25 per cent. That, no doubt, is principally because her Honour was not required to take additional offences into account. Also to be factored into that equation, and pointing the other way, is the fact that that offence attracted a reduction for the plea of guilty of only 10 per cent. That is precisely the reduction hypothesised as having been applied in the Henry decision, bringing that range squarely into focus. The sentence imposed is significantly below that range. 98But the other factors remain. If I am correct in concluding that the sentence imposed in respect of the Marrickville offence was not, in the circumstances, manifestly inadequate, then, in my opinion, it follows that neither was this sentence. (c) escape lawful custody 99The principal complaint made on behalf of the DPP in respect of this sentence was that her Honour gave undue weight to the sentences imposed on the three co-offenders, who had all escaped with the respondent. Particular emphasis was placed upon the observations of Knox DCJ, sentencing Williams, to the effect that, in his opinion, the 3 month sentences imposed on Haines and Kincheila in the Local Court were themselves manifestly inadequate. Knox DCJ doubled that sentence, feeling constrained not to go further. So far as I am aware, the DPP has not appealed against any of these sentences. 100In my opinion, his Honour's apprehension was well founded, as were those of the present sentencing judge. For her to have further increased the sentence would have created a real - and justifiable - sense of grievance in the respondent. 101There is currently, in this Court, some division of opinion concerning the approach to be taken where it is perceived that to allow a Crown appeal and impose an increased sentence might itself be the occasion that creates unfair disparity: see R v McIvor [2002] NSWCCA 490; 136 A Crim R 366; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1; Cvitan v R [2009] NSWCCA 156; and most recently R v Green and Quinn [2010] NSWCCA 313 at [98]-[133] per R S Hulme J. 102To the extent that R S Hulme J (with whom McClellan CJ at CL and Latham J agreed) opposed "a blanket rule" ([126]) against interfering, in a Crown appeal, in such a way as to create disparity, I also agree. Equally, I would not accept "a blanket rule" that the Court ought to disregard such a possible consequence of its decision. An application for special leave to appeal to the High Court in Green and Quinn was expedited: Green v The Queen; Quinn v The Queen [2011] HCATrans 71. (Special leave was granted on 8 April 2011.) 103This is a case, in my opinion, in which it is appropriate that potential unfair disparity be avoided. There were three co-offenders, two of whom were dealt with far more leniently (50 per cent) than the respondent, and one of whom was dealt with equally. Even if I were to find that the sentence was manifestly inadequate, I would decline to interfere on that discretionary ground. Ground 2: the aggregate sentences 104As mentioned above, the aggregate sentences were a head sentence of 6 years with a non-parole period of 3 years and 6 months. 105It cannot be doubted that the case made on behalf of the DPP is persuasive. Put at its worst (for the respondent): he was released from prison on parole on 18 January 2009, after serving a sentence for aggravated break and enter with intent to commit a serious indictable offence in company. The following day he committed the carjacking offence; on the next day, the car theft and the Marrickville robbery; four days later the Kingsford robbery. The manner in which the sentences are structured means that no time served is referable exclusively to the Marrickville offence, which, on one view, was the most serious of all the individual offences, having regard to all of the circumstances. I have reached the conclusion that it was an error to structure the sentences in that way. Principle required that some time in custody be specifically referable to that offence. Error has thus been established. 106Nevertheless, I would exercise the discretion that remains in this Court to dismiss an otherwise meritorious Crown appeal. There are two reasons for this. The first concerns the circumstances in which the respondent is held in custody. I have above outlined the evidence before the sentencing judge in this respect. This Court received an affidavit affirmed by the respondent on 30 March 2011 which may be taken into account on the question of the exercise of that residual discretion. Some of what he said was confirmatory of the evidence he had already given. He confirmed that he remains in his cell by himself for all but about one or two hours per day. He said that when allowed out of his cell he is placed in a wire fence enclosed area, still alone. Little sunlight penetrates. The area is narrow, about 3 metres long and 2 metres wide. The respondent tries to get some exercise by walking up and down in this area and in his cell. His segregation means that he has no chance to associate with other inmates, and has no face-to-face contact with others. He finds it difficult to communicate. His purchases from the "buy up" are restricted; he is not allowed to purchase cans of drink and not allowed to use shaving razors other than under supervision. His family visits are restricted, in part because of his segregation status, and in part because of the distance of the prison from the residence of his approved visitors. He is unable to undertake education or drug and alcohol courses. His access to mental health professionals and other doctors is restricted. Work is not available to him. 107I do not presume to make any criticism of the Corrective Services authorities. It is not my place to do so, and this Court is not possessed of appropriate information on which to make any such judgment. Whether justified or not, those conditions of incarceration are extraordinarily onerous. I bear in mind that the respondent is still a very young man. 108The circumstances of the respondent's custody, alone would persuade me that, even if I were of a different view about the sentences imposed, I would exercise the discretion of the Court to dismiss the Crown appeal. 109But there is a final, and even more compelling, reason to reach the view that the Crown appeal ought to be dismissed in the exercise of discretion. 110That circumstance is one to which neither counsel made any reference, but which, to my mind, is of very considerable importance. As I have set out above, the sentencing judge referred the respondent, pursuant to s 18B of the Drug Court Act , to that court for consideration of whether he should be the subject of a compulsory treatment order under that Act. 111Section 18B relevantly provides as follows: "(2) It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence of imprisonment imposed on the person by some other court ... (a) to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and (b) if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order.: 112An "eligible convicted offender" is defined in s 5A. Sub-section (1) of that section provides as follows: "(1) A person is an eligible convicted offender if: (a) the person is convicted of an offence, other than an offence referred to in subsection (2), and (b) the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and the unexpired non-parole period in relation to that sentence is: (i) at the time the Drug Court is determining whether to make a compulsory drug treatment order with respect to the person-a period of no more than 3 years, and (ii) at the time that the sentence was imposed-a period of at least 18 months, and (c) the person has, in the 5-year period immediately before the person was sentenced, been convicted, under a law of this State or under a law of the Commonwealth or another State or Territory or of another country, of at least 2 other offences, not being offences arising out of the same circumstances, that resulted in any one or more of the following: (i) a sentence of imprisonment (including a sentence of imprisonment that was suspended), (ii) the making of a community service order (however described), (iii) the entry into a good behaviour bond or recognizance (however described), and (d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985 ) or other drugs prescribed by the regulations, and (e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and (f) the person satisfies such other criteria as are prescribed by the regulations." Sub-section (2) can be put to one side: the respondent has not been convicted of any of the offences there identified. 113As I read s 5A, a person is an eligible convicted offender if he or she meets all of seven separate criteria. Those criteria are: (i)that the person is convicted of a relevant (ie not sub-s (2)) offence; (ii)that the person has been sentenced to a term of full-time detention; (iii)that the unexpired non-parole period of that detention is: (a)(at the time the Drug Court considers whether to make a compulsory drug treatment order) no more than 3 years; and (b)(at the time of sentence) is at least 18 months; (iv)that within the previous 5 years, the person has been convicted of at least two other unrelated offences, resulting in imprisonment, the imposition of a community service order, or a bond; (v)that the person has long-term dependency on prohibited drugs; (vi)that the facts of the offence indicate that the offence for which the person is being sentenced was related to that drug dependency and associate lifestyle; (vii)that the person meets any other criteria prescribed. 114I should also note, for completeness, the provisions of sub-s (3). That section provides that a person is not an eligible convicted offender if, in the opinion of the Drug Court , the person suffers from a mental condition, illness or disorder that is serious or leads to the person being violent, and that the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program. 115Sub-section (3) raises, as the emphasised words demonstrate, a question for the Drug Court, and not for the sentencing court or this Court. 116The respondent meets all of the criteria of s 5A. 117The objects of the Drug Court Act are stated in s 3 thereof. That section provides as follows: "(1) The objects of this Act are: (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies. (2) This Act achieves its objects in relation to eligible persons by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs. (2A) This Act achieves its objects in relation to eligible convicted offenders by establishing a scheme for compulsory drug treatment and rehabilitation for certain drug dependent persons. (3) Reducing a person's dependency on drugs should reduce the person's need to resort to criminal activity to support that dependency and should also increase the person's ability to function as a law abiding citizen." 118The legislation is beneficial, intended, so far as can be achieved, to salvage what can be salvaged of the lives of those destroyed, or on their way to destruction, by drugs. The respondent is plainly a prime candidate for whatever can be offered to him through this humanitarian legislation. He is not yet 21 years of age. He has endured a lifetime of deprivation that has left him, effectively, without resources to deal with the vicissitudes of his life. He suffers a mental illness that impedes his capacity to make realistic decisions. He has, unsurprisingly, a drug addiction. A compulsory treatment order might give him one chance of salvation. 119In my opinion the referral of the respondent to the Drug Court for the purpose of permitting that court to consider whether he is suitable for the exercise of its powers is a telling and compelling circumstance calling for dismissal of the Crown appeal. 120I propose that that order be made. 121DAVIES J : I agree with Simpson J. 122GROVE AJ : I agree with Simpson J. ********** 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: 23 May 2011