Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gardiner v R [2018] NSWCCA 27 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 05 March 2018 Before: Simpson JA at [1]; Fullerton J at [64]; McCallum J at [65] Decision: (1) Leave to appeal granted; (2) Appeal allowed (3) Sentence imposed in the District Court on 26 August 2016 set aside; (4) In lieu thereof, the applicant is sentenced to imprisonment made up of a non-parole period of 14 months, commencing on 22 July 2016 and expiring on 21 September 2017, with a balance of term of 14 months which will expire on 21 November 2018. (5) The applicant is entitled to immediate release. Catchwords: SENTENCING – relevant factors on sentence – period spent in quasi custody – whether quasi custody taken into account by sentencing judge SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether justifiable sense of grievance exists SENTENCING – mitigating factors – plea of guilty – whether Thomson and Houlton principles were applied in sentencing Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 44, 50, 53A, 86 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Edwards v R [2017] NSWCCA 160 Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lambert v R [2015] NSWCCA 22 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Brady Roy Gardiner (Applicant) Regina (Respondent) Representation: Counsel: S Fraser (Applicant) B Hatfield (Respondent) Solicitors: John Joseph Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2015/325852 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 26 August 2016 Before: Bennett DCJ File Number(s): 2015/325852 Judgment 1. SIMPSON JA: The applicant sought leave to appeal against the severity of a sentence imposed upon him in the District Court at Bathurst on 26 August 2016, following his plea of guilty to a charge of robbery in company, an offence committed on 4 November 2015. By s 97(1) of the Crimes Act 1900 (NSW), an offence of robbery in company carries a maximum penalty of imprisonment for 20 years. Bennett DCJ sentenced the applicant to imprisonment for 3 years, made up of a non-parole period of 1 year and 6 months and a balance of term of 1 year and 6 months commencing on the day it was imposed, 26 August 2016. In reaching that apportionment of the sentence, he found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") which requires that the balance of term must not exceed one-third of the non-parole period unless the court decides that there are special circumstances for it being more, in which case the court is required to make a record of its reasons for so deciding. As required by s 50 of the Sentencing Procedure Act (having regard to the length of the sentence), his Honour directed that the applicant be released on parole at the expiration of the non-parole period. 2. The application for leave to appeal was listed for hearing on Friday, 23 February 2018. The non-parole period expires on Sunday, 25 February. The delay is not attributable to the Court. A Notice of Intention to Appeal was filed on 9 January 2017, but no Notice of Appeal was filed until 22 November 2017. It was then listed for callover on 7 December 2017, and allocated an early hearing date. 3. At the conclusion of the hearing, the Court made the following orders: (1) Leave to appeal granted; (2) Appeal allowed (3) Sentence imposed in the District Court on 26 August 2016 set aside; (4) In lieu thereof, the applicant is sentenced to imprisonment made up of a non-parole period of 14 months, commencing on 22 July 2016 and expiring on 21 September 2017, with a balance of term of 14 months which will expire on 21 November 2018. (5) The applicant is entitled to immediate release. 1. Having regard to the conclusions below, the delay in bringing on the application is most unfortunate. It means that the applicant has served in custody 5 months longer than he should. 2. What follows are my reasons for joining in the orders made. 3. At the same time as he sentenced the applicant, Bennett DCJ sentenced one of two co-offenders, Adam Bourke. A third co-offender, Jesse Jepson, was sentenced separately by King DCJ on 7 February 2017. The sentence imposed on Jepson was identical to that imposed on the applicant. As will appear below, Bourke was sentenced also in relation to another matter, but, so far as the present offence is concerned, he was treated in the same way as the applicant and Jepson. The circumstances of the offence 1. The facts of the offence were put before the sentencing judge in an agreed statement. They may be stated as follows. 2. At some time after 8:30 in the evening of 4 November 2015, the three offenders travelled together in a motor vehicle owned and driven by Bourke to service station in Lidsdale, in the central west of New South Wales. (A fourth person, a female relative of Bourke, was also in the vehicle, but appears to have played no part in the offence.) Bourke parked the car a short distance from the service station. The applicant and Jepson alighted, the applicant carrying a golf club. He concealed his face by pulling his jumper over his head. Jepson wore a handmade balaclava to conceal his face. He was carrying a small knife (which may have been plastic). The service station was attended by Amir Seliya, who was accompanied by a friend, Firoz Qureshi. They were in a small office behind the counter. The applicant and Jepson went behind the counter. Jepson pointed the knife at Qureshi and told him not to move. The applicant held the golf club over his shoulder, in a position ready to strike. He ordered Seliya: "Give me what you have fast, fast, quick, quick." 1. He handed Seliya a brown paper bag and told him to put "everything you have" in it. Seliya opened the cash register and put $200 to $300 in the bag. Jepson remained close to Qureshi, with the knife pointed towards him. The applicant took a packet of cigarettes valued at $255 from a cupboard. The two men then ran from the service station. As they did so, police attended. The applicant and Jepson ran to a nearby paddock. They were pursued by police but not then apprehended. 2. Bourke drove off, with the female relative still in the vehicle, but returned to the service station, where he was pulled over by police. The female relative told police what she knew of the events and Bourke was arrested, and then released. At about 3:00pm the following day all three offenders were arrested and taken to Lithgow Police Station, where they were interviewed and charged. The applicant made a number of admissions, but declined to identify Jepson as his co-offender. He denied that Bourke anything to do with the offence. He said that they had decided to commit the offence about an hour before they did, and that it was he who had suggested it. After the offence 1. The applicant was granted conditional bail on 6 November 2015, the day after his arrest. In December 2015 of his own accord he attended an organisation called "headspace", where he was referred to a psychologist. He attended all recommended sessions with the psychologist. 2. He adhered to the conditions of bail until 22 January 2016, when he sought and was granted a variation that permitted (or required) him to attend a residential facility called "Triple Care Farm" ("TCF") conducted by Mission Australia. The facility offers a three month residential drug and alcohol rehabilitation program, followed by a six month community based program. The applicant successfully completed both stages of the program, although it appears that the second stage was cut short by the imposition of the sentence imposed. 3. After completion of the residential part of the program, he remained on bail, apparently without incident, until the sentencing proceedings on 23 August 2016. 4. He entered a plea of guilty to the offence in the Local Court on 30 May 2016, but it seems clear that his intention to do so was signified much earlier than that. The proceedings on sentence 1. Sentencing proceedings took place on 23 August 2016. Both the applicant and Bourke were before the court. Also present were the applicant's father, mother, his sister and her partner. 2. Before the court for sentencing purposes was a pre-sentence report, a report from Mission Australia affirming the applicant's participation in the TCF program, a report from "headspace", a short report from the psychologist, a letter from the applicant's grandmother, and a letter from the applicant himself addressed to the sentencing judge. 3. The applicant gave oral evidence and was cross-examined. Inter alia, he was asked about the TCF program, which, he said, was conducted at an isolated rural property, subject to strict conditions. He was allowed visitors, but the distance was too great for his family to travel. He undertook employment-focused training courses and achieved certificates as a barista, in first aid and in business management. 4. In his letter to the sentencing judge the applicant acknowledged: "… the suffering I've caused Mr Seliya and Mr Qureshi, due to my actions." He also acknowledged the pain he had caused to his family. The applicant's personal circumstances 1. The applicant was born in October 1995. He was barely 20 years of age at the date of the offence. He had no criminal history. The author of the pre-sentence report (Ms Cox) recorded a history of: "… alcohol and poly drug use dating back to early adolescence", a history of binge drinking from age 14, cannabis from 13, and methamphetamines, cocaine and ecstasy from 17. 1. The applicant told Ms Cox that he had a stable and supportive relationship with his mother and grandmother, but a strained relationship with his father, with no (then) current contact. He told her that he had been diagnosed with depression in November 2015. Ms Cox considered that the applicant was unlikely to benefit from supervision offered by Community Corrections due to his already established engagement in appropriate interventions in the community to address his criminogenic factors. She assessed him as suitable for a community service order under s 86(1) of the Sentencing Procedure Act. The Remarks on Sentence 1. At the commencement of his sentencing remarks, the judge referred to the guideline judgment of this Court in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. (In that case the Court identified a "category of case" suitable for the promulgation of a guideline. The profile identified was: "(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." (at [162]) Sentences for such offences, the Court said, should "generally fall between four and five years for the full term" (at [165]). The Court emphasised, however, that departure from that range (whether up or down) could be justified by particular features of the individual case (see [169]-[170]).) 1. The sentencing judge observed (correctly, in my opinion) that the present case: "… falls squarely within the guideline judgment in Henry, with the complication that this case involved multiple offenders." He said that he proposed to impose a sentence below the Henry guideline, because of the subjective features (of both the applicant's case and that of Bourke). 1. After then outlining the facts of the offence, the sentencing judge observed: "The offender Gardiner gave evidence, and it is obvious to me that he has limitations. He was, I might say, barely comprehensible when he spoke in the witness box …" 1. He noted the presence of the applicant's family, which he apparently considered to be indicative of a supportive family network, and of favourable prospects of rehabilitation. He noted the applicant's bail conditions (which were relatively onerous) and his attendance at TCF, of which he said: "Suffice to say he was subject to a significant limitation during the course of these proceedings, and that is a matter that I bring to his account." 1. He noted the pre-sentence report and the reports from "headspace" and Mission Australia. He accepted the applicant's expressions of remorse and contrition as appropriate and genuine. As indicated above, he varied the statutory proportion between the head sentence and the non-parole period stating as his reason the need to allow a lengthier period of supervision on parole than would be the case under the statutory proportions. Absent from the Remarks is any mention of a reduction of the sentence that would otherwise have been imposed by reason of the applicant's plea of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309). That is a matter that arises in the proposed grounds of appeal. 2. His Honour then turned to the sentencing of the co-offender Bourke, to which it will be necessary to return in the context of another of the proposed grounds of appeal. 3. In sentencing Bourke, the sentencing judge had also to deal with a breach of a bond imposed upon the offender under s 10 of the Sentencing Procedure Act to which he was subject at the time of the present offence. That bond had been imposed in February 2015, in respect of an offence of affray. The breach of the bond required reconsideration of the sentence for the affray offence. The sentencing judge imposed an aggregate sentence under s 53A of the Sentencing Procedure Act, specifying under s 53A(2)(b) the individual sentences he considered appropriate for the two offences. For the affray offence, he specified 6 months; for the robbery in company offence he specified a sentence of imprisonment for 3 years. The aggregate sentence he imposed was of imprisonment for 3 years and 2 months with a non-parole period of 1 year and 6 months. 4. The sentencing judge proceeded to impose on the applicant the sentence I have mentioned above. 5. King DCJ, who sentenced Jepson on 7 February 2017, imposed a sentence identical with that imposed on the applicant. The proposed grounds of appeal 1. Three grounds of appeal are proposed, formulated as follows: "1. The Sentencing Judge erred by failing to backdate the sentence to take account of the quasi custody the applicant had served in residential rehabilitation. 2. The imposition of the same sentence as imposed on his co-offenders, operates such that the appellant is left with a justifiable sense of grievance. 3. The Sentencing Judge failed to give weight to the appellant's plea of guilty." Ground 1: failing to backdate – "quasi custody" 1. It will be recalled that, in sentencing the applicant, and with specific reference to the period of time he spent at TCF, the sentencing judge said: "Suffice to say he was subject to a significant limitation during the course of these proceedings, and that is a matter that I bring to his account." 1. Counsel for the applicant relied upon a decision of this Court (Hughes v R (2008) 185 A Crim R 155; [2008] NSWCCA 48) in which Grove J (with whom McClellan CJ at CL and I agreed) said: "38 It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, Court of Criminal Appeal, NSW, 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, Court of Criminal Appeal, NSW, No 60791 of 1996, 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation 'custody' is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis." 1. Counsel acknowledged that no submission had been put to the sentencing judge to the effect that the period of "quasi custody" called for or permitted an identified amelioration of the sentence, whether by backdating or by specific reduction. The Crown, accordingly, relied upon the well-known passage in the decision in Johnson J in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44. His Honour said: "81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R (2011) 32 VR 486; [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28]-[29]." Determination 1. I do not accept that the applicant's right to consideration of amelioration in his sentence is forfeited by the failure of his legal representatives explicitly to ask for the sentence to be backdated (or otherwise reduced): see Lambert v R [2015] NSWCCA 22. In this case the evidence of the applicant's participation in a residential rehabilitation program was extensive and detailed. That it was relevant was recognised by the sentencing judge in the remark extracted above: that is, that he would "bring [it] to his account". However, it is far from apparent that the intention so expressed was carried into effect; indeed, it seems to me to be clear that it was not. So much can be seen from the fact (that also arises in relation to Ground 2) that the indicative sentence stated in relation to Bourke for this offence was identical to that imposed upon the applicant. I think it is inescapable that the applicant was not given credit for the period of residential rehabilitation. Although it may not have been obligatory upon his Honour to have taken it into account, it is significant that he stated that intention to do so, but that that intention was not carried into effect. 2. The applicant submitted that the error could be corrected by this Court adjusting the commencement date of the sentence by 42 days, representing half of the three months he spent at TCF. 3. The Crown was slightly more generous in this respect, calculating that the applicant spent 88 days at TCF and that the adjustment which he claimed could be quantified at 44 days. There, however, the generosity ended. Notwithstanding what was said of a 50 day period in Hughes, the Crown argued that, in the context of a sentence of 3 years, 44 days was "not substantial". 4. I would reject that proposition. 44 days in prison is undoubtedly substantial, and particularly so for a young first offender. 5. I would allow this ground of appeal and would propose that the commencement date of the sentence be varied, to date from 22 July 2016. Ground 3: the plea of guilty 1. The Crown accepted that there was no mention in the Remarks on Sentence of any reduction in the sentence attributable to the plea of guilty. 2. Section 22 of the Sentencing Procedure Act expressly requires that, in sentencing an offender who has pleaded guilty, a court take into account the fact of the plea of guilty, the timing of the plea or indication of intention to plead, and the circumstances in which the offender did so and permits it to impose a lesser penalty than it otherwise would have done. The unstated assumption is that an offender who pleads guilty is ordinarily entitled to a reduction. That is so because sub-s (2) requires a court that does not reduce the sentence to indicate to the offender and make a record of its reasons for not doing so. Sub-section (4) provides that the failure of a court to comply with the section does not invalidate any sentence imposed. 3. In Thomson and Houlton a five judge Bench of this Court stated that: "160 … (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so … particular encouragement is given to the quantification of [the utilitarian value] … (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. …" 1. Both parties proceeded on the basis that, on the conventional application of the Thomson and Houlton principles, the applicant was entitled to a reduction in sentence of 25 per cent, having regard to the time at which it was entered or indicated. The issue between the parties was whether in fact that was accorded to him. 2. It is plain enough that, in his comprehensive approach to this sentencing exercise, the sentencing judge overlooked something. Either he overlooked the statutory requirement that he take into account the plea of guilty, and the indication in Thomson and Houlton that the reduction should be quantified, and failed to reduce the sentence accordingly; or he overlooked the need to state that he had done so. 3. The Crown suggested, and counsel for the applicant accepted, that a mathematical calculation demonstrates that, if the sentencing judge had started with a 4 year sentence (the bottom of the Henry range) a 25 per cent reduction would yield the very sentence imposed. The Crown accordingly suggested that it should be inferred that his Honour did take the plea into account and reduce the sentence by 25 per cent from a starting point of 4 years, but merely failed to say that he had done so. 4. This does not sit easily with what his Honour said in the course of sentencing. That was: "He has spent no time in custody for this offence. I believe I have taken appropriate care not to double count the factors that have reduced the sentence that might have otherwise been imposed by taking them into account also for the purposes of finding special circumstances. The objective gravity, the reasons for the misconduct, and his lack of antecedents, and the lack of adequate supervision and control in his formative years, involving a measure of disadvantages as I perceive matters, in my view justify the reduction of the sentence to the level I have chosen." 1. He had earlier said (as noted above) that he intended to impose a sentence lower than the Henry guideline "because of the subjective features". A four year sentence is the bottom of the Henry range. It does not reflect the stated intention to impose a lower sentence. 2. There is nothing in the paragraph extracted above that suggests that the sentence was reduced by reason of the plea of guilty; nor is there anything in the earlier passage that does so. In my opinion, his Honour was intending to impose a sentence below the Henry guideline for the reasons stated – objective gravity, reasons for misconduct, lack of antecedents, early disadvantage. 3. Notwithstanding its contention that this Court should infer that the plea was taken into account the Crown very fairly (and in accordance with its duty of fairness) drew attention to the decision of this Court in Edwards v R [2017] NSWCCA 160 (as did counsel for the applicant). 4. The circumstances in Edwards were very similar to those of the present case. The Crown put a similar argument, which Garling J characterised as "reverse engineering" – and rejected. The sentence imposed was also identical, and no mention was made of s 22 or any reduction for the plea of guilty. Garling J said (with the concurrence of Hoeben CJ at CL and Fullerton J): "40 Whilst the 'reverse engineering' submission of the Crown has some superficial attraction because of the mathematical elegance which results, it is an inadequate basis, here, for drawing an inference that the sentencing Judge was giving a discount on the sentence. Particularly is this so when the subject matter of the inference, namely a discount for an early plea of guilty, is an important part of a judgment and can be dealt with quite briefly." 1. That approach should be adopted in this case. 2. In my opinion, this ground is also made out. Ground 2: parity 1. I take the same view in relation to the parity ground. Of all three offenders, only the applicant had no prior criminal history. Jepson had been convicted of an offence of violence; Bourke had previously been convicted of assault and affray. Both co-offenders committed the offence whilst subject to conditional liberty. The applicant was entitled to expect significantly more leniency than either of the co-offenders, for those two reasons alone. 2. The applicant admitted his involvement immediately. Bourke maintained his innocence for some time. The applicant had taken the positive steps outlined above towards rehabilitation; by contrast, the sentencing judge considered that Bourke had a high to moderate risk of reoffending. 3. Although, of course, there were differences in the personal circumstances of the two co-offenders, there is nothing that persuades me that their circumstances were significantly more compelling than those of the applicant, such as to balance out the factors more favourable to the applicant that I have mentioned. 4. Imposition of identical sentences in these circumstances left the applicant with a justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. 5. In my opinion this ground should also be upheld. 6. It follows that this Court must proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. That involves exercising its own sentencing discretion. 7. There was no additional material placed before this Court. Resentence 1. The offence was clearly one of significant objective gravity, falling (as the sentencing judge observed) within the Henry profile, with the additional circumstance that it was committed in company. 2. The applicant did have very significant mitigating factors. His somewhat disadvantaged childhood was one: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. More significantly, to my mind, is the very substantial effort he has made, and the progress achieved, towards rehabilitation. In my opinion that warrants a significant downward departure from the Henry guideline. 3. Moreover, the Henry guideline takes into account "a guilty plea of limited value" (Thomson and Houlton at [161]); it was common ground that the applicant was entitled to a reduction of 25 per cent. 4. The issue of parity is problematic. It was not suggested that a sentence of 3 years was, of itself, manifestly excessive, and such a suggestion could not be sustained. However, it is now necessary to take into account the sentences imposed on the two co-offenders; the applicant is entitled to a justifiable sense of grievance if his sentence is not somewhat less than those sentences. In other words, he is entitled, even absent credit for the plea of guilty, to a starting point less than 3 years. Care must be taken, however, not to impose a sentence that does not adequately reflect objective gravity. 5. Like the sentencing judge, and for the same reasons, I would find special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act, and reduce the proportion the non-parole period bears to the head sentence. I would maintain the ratio adopted by his Honour. 6. FULLERTON J: I agree with Simpson JA. 7. McCALLUM J: I agree with Simpson JA. ********** 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: 05 March 2018