Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Wasson [2014] NSWCCA 95 Hearing dates: 13 May 2014 Decision date: 27 May 2014 Before: Gleeson JA at [1]; R A Hulme J at [2]; Campbell J at [50] Decision: Crown appeal dismissed Catchwords: CRIMINAL LAW - Crown appeal against sentence - general deterrence not considered in setting non-parole period - non-parole period was manifestly inadequate - disproportionate weight given to subjective circumstances - exceptional personal circumstances justify discretion not to intervene - appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Caristo v R [2011] NSWCCA 7 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 R v Ceissman [2004] NSWCCA 466 R v Ellis (1986) 6 NSWLR 603 R v Fepuleai [2007] NSWCCA 325 R v Franks [2005] NSWCCA 196 R v GWM [2012] NSWCCA 240 R v Hamied [2007] NSWCCA 151 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thomas [2007] NSWCCA 269 Spark v R [2012] NSWCCA 140 Tabuan v R [2013] NSWCCA 143 Category: Principal judgment Parties: Regina (Crown) Mark Anthony Wasson (Respondent) Representation: Counsel: Ms T Smith (Crown) Ms R Burgess (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2011/107124 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-10-08 00:00:00 Before: Maiden SC DCJ File Number(s): 2011/107124 Judgment 1GLEESON JA: I agree with R A Hulme J. 2R A HULME J: Mark Anthony Wasson was found guilty by a jury of an offence of robbery whilst armed with a dangerous weapon. He was sentenced by his Honour Judge Maiden SC in the District Court at Newcastle on 8 October 2013 to imprisonment for 3 years and 9 months with a non-parole period of 1 year. The sentence was specified to commence on 3 July 2013. The respondent will become eligible for release on parole on 2 July 2014. The Crown appeals against that sentence. 3The offence is contrary to s 97(2) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years. 4In sentencing the respondent for this offence the judge took into account a further offence listed on a Form 1 document of knowingly making a false statement contrary to s 307(B)(1) of the Crimes Act (an offence for which the maximum penalty is imprisonment for 2 years and/or a fine of $2,200). 5The ground of appeal first notified by the Crown was that "the sentence pronounced was manifestly inadequate". However, after a transcript of the proceedings on sentence became available, the Crown's position was revised to contend two grounds: (1) that the judge had no or insignificant regard to general deterrence in determining the non-parole period, and (2) that the non-parole period was manifestly inadequate. There is now no complaint of manifest inadequacy concerning the total term of the sentence. The proceedings on sentence 6The proceedings on sentence commenced on 3 October 2013 and continued the following day. The Crown tendered a bundle of documents that included two Pre-Sentence Reports and material relating to the sentencing of a co-offender on 9 March 2012 by his Honour Judge Toner SC. For the respondent there was tendered a psychiatric report by Professor David Greenberg, a brief medical certificate concerning the respondent's partner and some testimonials. There was no oral evidence. 7The Crown Prosecutor informed his Honour that the facts found in the sentencing of the co-offender were the same as those established in the respondent's trial (in other words he was to be sentenced on the same objective facts). It was conceded by the Crown that the starting point adopted by Toner DCJ for the co-offender of 4 years before discounts for his plea and assistance should not be exceeded in respect of the respondent. The Crown also conceded that a finding of special circumstances was open to be made (s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW)). Counsel for the respondent indicated that he was "content" with a starting point of 4 years. 8The only remaining issue was one concerning s 23 of the Crimes (Sentencing Procedure) Act (assistance to authorities). Counsel for the respondent tendered "a packet" in relation to that issue and the Crown Prosecutor indicated that he did not contest what it contained. The judge asked if there was an issue about "what percentage should I allow there". The prosecutor said "it's only worth 5 or at the outside 10 percent" and defence counsel replied that he would "be arguing more like 15 or 20 but your Honour can read the information". 9This was the extent of the submissions made on sentence. Judgment on sentence 10The judge imposed sentence the following Tuesday (8 October 2013). His Honour's judgment occupies three pages of transcript. 11The judge noted in the first paragraph of the transcript the charge; the verdict of guilty; the maximum penalty; and the Form 1 matter. He then turned to the facts: "The facts of this matter were that on 2 April 2011 the offender with his co-offender ..., attended a service station and did rob that service station, taking cash. The facts were that [his co-offender] was armed with a small pistol and by small pistol, most likely .22 calibre, and he was driven to the service station by this offender. [The co-offender] pleaded guilty before his Honour Judge Toner on 9 March 2012 and was also sentenced for other matters. In respect of this particular matter, his Honour found that it should carry a head sentence of four years and one month, before discounts were applied; discounts for the plea of guilty and also for information giving rise to this offender. [The co-accused] was a well known drug user and a long time criminal with a lengthy history and there is no doubt in my mind that his disclosure of Mr Wasson being a co-offender was done eagerly to gain maximum benefit by way of discount in assisting the authorities. The offender Wasson maintained his innocence and denied that he had given [his co-offender] the pistol and that, at the time that he took him to the service station he was unaware that any robbery was to be undertaken by [his co-offender]." 12His Honour then turned to the respondent's subjective case and the issues of parity and assistance to authorities: "This offender has had an unfortunate upbringing and has been using illicit substances for many years, most prominently cannabis and alcohol. However, since forming a relationship approximately 12 years ago he been of great assistance to his partner who has a difficult medical condition which, as the evidence discloses, she continues to need him because she is prone to faint and require transportation to hospital. She is presently awaiting an operation and there is no doubt that her situation, in terms of her health, is compromised whilst the offender is not at home. In recent times this offender, but for one matter in 2012 of goods in custody, appears to have seen the light. His last offence of any significance being a break and enter in 2006. The reports speak of a person who is otherwise a decent person and, despite his difficulty, has provided support to his partner and family. He has not had the benefit of a long education and because of injury has been unable to work for a period of time which he says has given rise to his use of cannabis and other drugs from time to time. I am obliged to consider the parity of sentencing, and I propose to start this matter at a head sentence of four years. I am unable to give any discount for any plea, however I have read the material in respect of the matter under s 23 of the Crimes (Sentencing Procedure) Act. In terms of that matter involving offenders that this court has dealt with, that information although on the face of it straightforward, as I understand the facts in respect of those persons I can see why the officer in charge says it was of assistance. That was a matter which involved a number of criminals, a robbery of criminals by another criminal, not this offender and the officer in charge has accepted that matter and in respect of that I propose to give this offender, a discount of 10% for that assistance. I have also had the helpful report of Professor Greenberg who indicates that this offender does not suffer from any psychiatric illness but is diagnosed with having poly substance dependent disorder most likely in respect of cannabis and a chronic adjustment order with depressed mood, that is depression and understandable in circumstances with what difficulties both he and his partner have had to deal with in recent times. The Court is of the view that this is a matter where special circumstances apply and, notwithstanding the need for general deterrence in respect of the matter which will be dealt with in the head sentence, I propose to give a shorter period of time in custody with recommendations that he deal with his substance issues." 13His Honour then announced the sentence in terms that I have set out earlier. He recommended that a copy of Professor Greenberg's report be "sent with the papers" and that the respondent "undertake such courses as recommended by Justice Health and Corrective Services". Further as to the facts of the offence 14On the hearing of the appeal the respondent took no issue with the summary of facts set out in the Crown's written submissions. It included the following matters that are relevant to the seriousness of the offence: The robbery was the respondent's idea. The respondent provided the pistol to the co-offender. 15As can be seen from the above quotation from the sentencing judgment, Maiden DCJ simply noted that the respondent denied these matters. He did not otherwise make findings that the respondent now concedes were appropriate and, implicitly at least, concedes were relevant to an assessment of the seriousness of the respondent's offence. Ground 1 - insufficient or no regard to general deterrence in setting the non-parole period 16The Crown's position in relation to this ground is quite straightforward. In final paragraph of the extract from the sentencing remarks set out above it is plain that his Honour only sought to have regard to the need for general deterrence in setting the head sentence and not the non-parole period. That such an approach is wrong is apparent from the judgment of Spigelman CJ in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 where (at [65]) his Honour stated that the non-parole period of a sentence must reflect "all of the circumstances of the offence and the offender - including the objective gravity of the offence and the need for general deterrence". 17Although not strictly relevant to this ground, it is pertinent to observe that the judge expressed no view about the objective gravity of the offence. The consensus as to the four year starting point did not obviate the need for him to have made some assessment as it was relevant to the setting of the non-parole period as well. 18Counsel for the respondent submitted that this Court would not be satisfied that the asserted error is made out on a fair reading of the remarks as a whole. (Aside from summarising the first paragraph and the pronouncement of orders, I have set out the entirety of the sentencing judgment above). Reference was made to the challenging task of District Court judges with busy lists and being "faced on a daily basis with an almost unending onslaught of serious and complex sentencing exercises": Tabuan v R [2013] NSWCCA 143 at [28] (Harrison J). 19The observation of Harrison J in Tabuan v R should not be taken too literally. There is no doubt that District Court judges face a daunting work load and there are serious and complex sentencing exercises that arise from time to time. But to be frank, to say that this is "an almost unending onslaught" is rather a colourful flourish when it is borne in mind that sentencing in serious criminal cases is the everyday task of that Court. And for the respondent to invoke this observation in what was a fairly straightforward sentencing exercise is rather inapt. 20Counsel sought to characterise his Honour's statement as being intended to convey that he recognised the need for general deterrence to be reflected in the non-parole period but found it appropriate to reduce the non-parole period for the reasons he identified. I see this as a valiant attempt to defend what must be regarded as an obvious error of principle in his Honour's approach to the sentencing exercise. 21I would uphold the first ground of appeal. Ground 2 - manifestly inadequate non-parole period 22The Crown did not challenge the finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act and the setting of a parole period that exceeded one-third of the non-parole period. It did, however, challenge the degree of variation of the usual proportions so that the non-parole period represented approximately 27 percent of the total term. 23It was acknowledged that the degree of variation of the ratio between non-parole period and total term following a finding of special circumstances is discretionary: Spark v R [2012] NSWCCA 140 at [34] (Fullerton J). It was also pointed out, however, that this Court's intervention will usually be invoked only if the non-parole period is either manifestly inadequate or excessive: R v Simpson at [73] (Spigelman CJ). 24The Crown submitted that the 1 year non-parole period in this case did not adequately reflect the objective gravity of the offence and it appeared that the judge had placed disproportionate weight on the respondent's subjective circumstances: R v Ceissman [2004] NSWCCA 466 at [25]. 25It appears from the sentencing remarks that the basis for the finding of special circumstances was the need for the respondent to address his substance abuse issues. The Pre-Sentence Report indicated that he would benefit from a period of supervision with strategies that would include "referral to and monitoring of alcohol and other drug counselling". Professor Greenberg reported that the respondent's "primary psychiatric difficulties are his significant, continuous and persistent history of chronic illicit substance and alcohol dependence/abuse associated with significant personal difficulties". The latter is primarily a reference to the history that his long-standing partner had experienced five miscarriages from 2000 with the most recent in April 2013. The respondent told Professor Greenberg that he became depressed after each of them. He sought assistance for the first time in July 2013 and was prescribed antidepressant medication. 26It was Professor Greenberg's opinion that: "Mr Wasson should continue with [his] medication as prescribed by his treating doctor. He should abstain from all drug and alcohol substances for an indefinite period. Further use of these substances may exacerbate his personality problems. He may benefit from drug and alcohol counselling to assist him in abstaining from these substances. He may benefit from psychological counselling with regard to his claims of grief issues. He should continue with further follow up by his treating doctor." 27Whilst acknowledging those opinions and recommendations, the Crown submitted that there was no evidence supporting a conclusion that a period of 2 years 9 months under parole supervision was justified. A more modest reduction in the non-parole period would have still allowed for a sufficient period to meet the purposes identified by the judge and would have left the non-parole period as a more adequate reflection of the objective seriousness of the offence and the need for general deterrence. 28Section 44 of the Crimes (Sentencing Procedure) Act provides in subs (2) that the parole period must not exceed one-third of the non-parole period unless there are special circumstances. In this case, the parole period is close to three times of the non-parole period. It is accepted that there were special circumstances justifying some departure but there is a complete absence of reasons given for such a dramatic departure. In the Crown appeal in R v Thomas [2007] NSWCCA 269 there were sentences of 3 years 5 months and 3 years 6 months, each with non-parole periods of 1 year 6 months for two robbery offences (s 96 and s 97 Crimes Act). The following from the judgment of Basten JA concerning the extent of the reduction of the non-parole periods is apposite to the present case: [30] ... A custodial period constituting less than half the appropriate sentence itself requires justification. The obligation imposed by s 44(2) to provide reasons for the decision that there are special circumstances, when taken with the general obligation of a Court to give reasons for its decisions, should be understood as requiring some explanation of the reason for the degree of departure from the standard relationship, at least in the case of such a significant departure as that adopted in this matter. The objective elements of the offence indicate that a non-parole period of less than two years was manifestly inadequate. 29The primary submission for the respondent was that given there is no issue about the judge finding special circumstances and reducing the non-parole period, whilst it is lenient it cannot be said that it is manifestly inadequate. Reference was made to authority for the proposition that an adjustment of the statutory ratio of non-parole and parole periods is discretionary; but the Crown acknowledges this. 30Reference was also made to general principles concerning Crown appeals, principally those discussed in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. 31Submissions were made about the respondent's role in the offence and it was contended that his culpability was lower than that of the co-offender. I do not accept this, given that the robbery was the respondent's idea and he provided the gun and the transport. In any event, this analysis fails when regard is had to the consensus between the prosecution and the defence (which the judge accepted) that there should be the same starting point for the total term as that adopted for the co-offender. 32Counsel also referred to aspects of the respondent's subjective case to which the judge referred. He had experienced an "unfortunate upbringing". Drug and alcohol abuse was a long-standing feature of his life and it had been exacerbated by the depression he had endured as a result of the multiple miscarriages by his partner. His record did not involve any prior full-time custody and his last significant conviction was in 2006. The judge found that he had "seen the light". There were testimonials that supported his Honour's finding that he was "otherwise a decent person" who had "provided support to his partner and family". 33Aside from the finding about the respondent having "seen the light" (a bold finding given the respondent did not give evidence), I accept the force of the subjective case. But it cannot subsume a proper reflection of the objective gravity of the offence in both the head sentence and the non-parole period: see, for example, R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15]; R v Simpson at [65]. 34It was submitted that the finding of special circumstances was "purposeful" (R v GWM [2012] NSWCCA 240 at [114]) and was of benefit to the respondent and, in turn, the community. But there is more at stake than simply providing such a benefit. GWM involved a Crown appeal in respect of a sentence of 5 years and 3 months with a non-parole period of 2 years and 8 months. Johnson J accepted that a variation in the statutory proportions was "purposeful" but almost immediately he added: [118] As the decision of this Court in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 (at 718 [65]) makes clear, the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]. [119] A finding of "special circumstances" was both open and appropriate in this case. However, I am satisfied that the extensive variation of the statutory ratio in this case (from 75% to just over 50%), taken with the quantum of the non-parole period itself (32 months), demonstrates that disproportionate weight has been given to the subjective circumstances of the Respondent: R v Ceissman [2004] NSWCCA 466 at [25]. [120] The circumstances of this case which warranted variation of the s.44(2) ratio, although capable of supporting a finding of "special circumstances", were incapable of supporting a finding leading to the imposition of a non-parole period just over 50% of the head sentence. The non-parole period imposed, in my view, failed to reflect the seriousness of the offence and the need for general deterrence: Maglis v R [2010] NSWCCA 247 at [28]. 35Submissions were made by both the Crown and respondent concerning the sentencing of the co-offender and the principle of parity. The co-offender's sentencing was complicated by quite a number of features including additional offences; contrition; an element of disclosure of otherwise unknown guilt (R v Ellis (1986) 6 NSWLR 603 at 604); mental illness reducing moral culpability and the need for general deterrence; and a finding of more onerous custodial conditions. A comparison of the sentences is also complicated by errors in the formulation of the orders: individual sentences were imposed but erroneously only a single non-parole period; and a finding of special circumstances was not reflected in the overall sentence. 36The only thing I conclude from an examination of the case of the co-offender is that I do not accept the submission that increasing the non-parole period in the respondent's case will create unacceptable disparity. 37I am of the view that the non-parole period set by Maiden DCJ is manifestly inadequate. It does not remotely reflect the objective gravity of the offence; pays no heed to the importance of general deterrence; and appears to have been disproportionately influenced by sympathy for the respondent's subjective circumstances. Unless there is good reason for this Court to exercise its residual discretion the non-parole period should be set aside and replaced with one of 2 years and 3 months. Residual discretion 38The Crown submitted that intervention and re-sentencing was justified in this case. It referred to the recent summary of relevant principles in the judgment of Adamson J in R v O'Connor [2014] NSWCCA 53: "[85] This Court retains a residual discretion in the exercise of its jurisdiction under s 5D of the Criminal Appeal Act to refuse to interfere in a sentence, even if error has been demonstrated and manifest inadequacy established: Griffiths v The Queen (1977) 137 CLR 293; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. [86] This Court is obliged to consider the exercise of the residual discretion: Bugmy v The Queen [2013] HCA 37 at [24]; Reeves v The Queen [2013] HCA 57 at [10], [12], [60]-[61]. ... [88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. [89] Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J. ..." 39Counsel for the respondent submitted that there were "compelling discretionary reasons" why the Court would exercise its discretion not to intervene. Four affidavits were read at the hearing. 40The respondent's affidavit includes a claim that he now has insight into the effect that abuse of alcohol and drugs has had upon his past behaviour. In the time since he was notified of the Crown appeal he has completed two relevant rehabilitation programs; he has attended weekly Narcotics Anonymous and Alcoholics Anonymous meetings; and he has re-engaged with religion and has attended weekly counselling with the prison chaplain. The respondent expressed concern for his family, particularly his partner who has the care of their two young sons. Both his mother and his partner have been diagnosed with serious illnesses which has had a variety of affects, including limiting their ability to visit him. 41Affidavits affirmed by the respondent's partner and mother confirm their medical problems. His partner was diagnosed with cervical caner after he went into custody last October. She underwent a course of chemotherapy and has been told that it was successful in arresting the cancer. She has experienced depression for which she is on medication. She attributes this, in part, to the respondent being in gaol and her having to care for the children. One practical hardship she is experiencing results from medical advice not to drive which makes shopping and taking the children to school a challenge. 42After the respondent was sentenced his mother, who lives on her own, was diagnosed with pneumonia and lung cancer. She has been through courses of chemotherapy and radiotherapy with various side effects. She was told last New Year's Eve that she had a very aggressive form of cancer and she said that the doctor told her she had six to nine weeks to live (as to which see below). She had to undergo further radiotherapy when spots were discovered on her brain. She was recently told that these spots were not cancer but her situation was still terminal and there was the prospect of the existing cancer spreading. It was her understanding that her son feels helpless "that he is not able to be there for me and scared something will happen to me before he is released". As with her daughter-in-law, the respondent's mother also has received medical advice that she should not drive. She is not well enough to travel for two hours on public transport to visit him and, since he was transferred to St Heliers she has only been able to visit him a couple of times. 43The Crown read an affidavit of Ms J Ramsay, solicitor which annexed the respondent's visitor records at St Heliers Correctional Centre. They demonstrate that his partner was a regular visitor, with their two sons, until her last visit in mid-February 2014. His mother was an occasional visitor and had visited him since he transferred to St Heliers in November 2013 five times at approximately monthly intervals. On the last two occasions she brought the respondent's children. 44At the hearing of the appeal the respondent's legal representatives were granted leave to file further material relating to the condition of his mother, particularly as to her prognosis. A letter under the hand of Dr A Bonaventura, Director of Medical Oncology at Calvary Mater Newcastle was filed on 20 May 2014. It confirms the condition and advises that treatments were completed a few weeks ago. Mrs Green will be reassessed for response in about a month's time. The letter concludes: "Although the aim of treatment is potentially curative only about a third of patients achieve a complete response. Most patients have recurrence of their cancer and the median survival is approximately 12 months. A small subset of patents (20%) have survival longer than 3 years." Conclusion 45Both grounds of appeal should be upheld. The non-parole period imposed is clearly inadequate. However, I am persuaded that in the exceptional circumstances of this case the Court should exercise its discretion and refrain from intervention. The concern the respondent must have for the plight of his partner but more so his mother is real. It renders the circumstances of his incarceration significantly more onerous. A sympathetic response is justified. 46The respondent will become eligible for release on parole in under 6 weeks time. Intervention in the terms I have proposed (extension of the non-parole period until October 2015) would see a continuation and likely exacerbation of the undoubted anguish the respondent must feel through the likely deterioration of his mother and possible demise within that period. 47In the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen it was said (at [43]) that "the guidance afforded to sentencing judges by allowing [a Crown] appeal should not come at too high a cost in terms of justice to the individual". 48An issue was raised during the hearing about an error in the calculation by the sentencing judge of the discount for assistance. The effect is that the sentence reflected only a 6.25 percent discount rather than the 10 percent intended. The period involved is less than 2 months of the parole period. In all of the circumstances I do not believe that justice requires any intervention to correct this relatively minor discrepancy. 49I propose the following order: Crown appeal dismissed. 50CAMPBELL J: I agree with R A Hulme 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: 28 May 2014