Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CC v R [2019] NSWCCA 229 Hearing dates: 11 September 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Before: Payne JA at [1] Fullerton J at [12] Bellew J at [47] Decision: 1. Extend the time for the filing of the notice of application for leave to appeal to 20 June 2019. 2. Leave to appeal is granted. 3. The appeal is dismissed. Catchwords: CRIMINAL LAW – sentence appeal – use offensive weapon with intent to intimidate contrary to s 33B(1)(a) of the Crimes Act - intentionally damage property contrary to s 195(1)(a) of the Crimes Act - intimidate with the intention of causing fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 – take person with intent to gain a psychological advantage contrary to s 86(1)(b) of the Crimes Act – whether aggregate sentence was manifestly excessive – whether sentencing judge erred by accumulating the sentence upon the sentence imposed in separate proceedings Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure Act) 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: CC v R [2019] NSWCCA 230 Hughes v R [2018] NSWCCA 2 JM v R [2014] NSWCCA 297 Kerr v R [2016] NSWCCA 218 Zreika v R [2012] NSWCCA 44 Category: Principal judgment Parties: CC (Applicant) The Crown (Respondent) Representation: Counsel: S Kluss (Applicant) B Baker (Crown) Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2016/59935 Publication restriction: Non-publication order on the names of the applicant and the complainant Decision under appeal Court or tribunal: District Court Date of Decision: 22 June 2018 Before: Neilson DCJ File Number(s): 2016/59935 Judgment 1. PAYNE JA: I have read the judgment of Fullerton J in draft. I agree with the orders proposed by her Honour and, in large part, with her Honour's reasons. 2. As explained by her Honour, the applicant was sentenced to two separate aggregate sentences for quite different offending. The first aggregate sentence, imposed by Huggett SC DCJ, was in relation to six sexual assault offences and an offence of intending to pervert the course of justice. Huggett SC DCJ imposed an aggregate sentence of 5 years with a non-parole period of 2 years and 9 months for that offending. This Court has today refused leave to appeal from that aggregate sentence: CC v R [2019] NSWCCA 230. 3. The present application for leave to appeal against sentence relates to a subsequent sentence imposed by Neilson DCJ relating to quite separate offending (use of an offensive weapon, intentional damage to property, intimidation and taking a person with the intention of gaining a psychological advantage) committed many years later against a female complainant the applicant had previously been in a relationship with. 4. Neilson DCJ was faced with the task of fixing an aggregate sentence for the relevant offending. The aggregate sentence imposed was 4 years with a non-parole period of 2 years and 3 months. As Fullerton J explains, there is no merit in the applicant's challenge to that aggregate sentence. 5. The potentially more difficult question related to the findings of special circumstances made by each of Huggett SC DCJ and Neilson DCJ. Following a finding of special circumstances, the non-parole period imposed by Huggett SC DCJ was 55% of the aggregate sentence her Honour imposed. Neilson DCJ also made a finding of special circumstances. The non-parole period imposed by Neilson DCJ was also approximately 55% of the aggregate sentence his Honour imposed. 6. The applicant was already serving the sentence imposed by Huggett SC DCJ when he was sentenced by Neilson DCJ. His Honour was required to fix a commencement date for the aggregate sentence he was imposing. In so doing his Honour was required to take into account the principle of totality. Nothing in this judgment should be understood as doubting the importance of that critical step in the sentencing process. As Fullerton J explains, however, to the extent that any complaint about totality was maintained in this appeal it was without merit. 7. The essence of the applicant's complaint was that in selecting the commencement date for the sentence that he did, Neilson DCJ, created a notional overall "effective" sentence of imprisonment which undermined the findings of special circumstances made by both Huggett SC DCJ and his Honour. That is, in selecting the commencement date he did his Honour fixed an overall "effective" non-parole period of 4 years and 8 months. This, it was submitted, was approximately 73% of the total "effective" aggregate sentence. 8. The applicant's argument based on a recalculation of an overall "effective" aggregate sentence and non-parole period is unpersuasive. The finding of special circumstances was required as a statutory pre-requisite to an adjustment in the statutory ratio between the aggregate head sentence and non-parole period actually being imposed by Neilson DCJ: s 44(2B) Crimes (Sentencing Procedure Act) 1999 (NSW). His Honour made that finding of special circumstances and a consequent adjustment to the statutory ratio. 9. Neilson DCJ was not required to address the specific statutory question of "special circumstances" in s 44(2B) of the Crimes (Sentencing Procedure Act) by reference to a notional overall "effective" sentence of imprisonment combining the sentence imposed by Huggett SC DCJ and that imposed by his Honour. To have done so would have been inconsistent with the statutory power to impose an aggregate sentence. Section 53A(4) of the Crimes (Sentencing Procedure Act) makes clear that the aggregate sentence imposed on the applicant by Neilson DCJ did not revoke or vary the aggregate sentence of imprisonment imposed on the applicant by Huggett DCJ. 10. As I have said, in addressing the sentence already imposed by Huggett SC DCJ his Honour was required to take into account the totality principle, which Neilson DCJ did here. Further, as Fullerton J explains, the applicant's contention fails to address the undoubted concession made by counsel for the applicant before Neilson DCJ that the aggregate sentence his Honour was to fix should commence on an agreed date, 15 April 2020. That concession is fatal to the applicant's complaint about totality. 11. Finally, I accept the Crown's submission that this overall "effective" sentence in this case comprises a non-parole period which reflects the least amount of time that is necessary to comprehend the criminality of each of those separate acts of offending. There is a period of 1 year and 9 months during which the applicant is eligible for parole, which is adequate to ensure proper rehabilitation of the applicant and take account of the other matters which informed the finding of special circumstances. 12. FULLERTON J: The applicant seeks leave to appeal an aggregate sentence imposed by Neilson DCJ on 22 June 2018 after the applicant was convicted at trial of four offences committed between 21 and 23 February 2016. He was acquitted of a further two offences of intimidation and kidnapping alleged to have been committed on 21 February 2016. The fact of his acquittal has no relevant bearing on the issues agitated on the application for leave to appeal the aggregate sentence. 13. The aggregate sentence comprised a non-parole period of 2 years and 3 months' imprisonment commencing on 15 April 2020 and expiring on 14 July 2022 and a balance of the term of 1 year and 9 months expiring on 14 April 2024. Neilson DCJ made the sentencing order in those terms, aware that the applicant was serving a sentence imposed by Huggett DCJ on 2 March 2018 for unrelated offending. The appointment of a commencement date for the aggregate sentence was made with the agreement of the applicant's counsel, the effect of which resulted in a substantial modification of the ratio of 55 per cent between the non-parole period and the balance of term of the aggregate sentence imposed for the four offences for which the applicant was convicted. The effective sentence is therefore a sentence of imprisonment of 6 years and 5 months (rounded up), comprised of a non-parole period of 4 years and 8 months (rounded up) and an additional term of 1 year and 9 months reflecting a ratio of 72.6 per cent of the effective non-parole period to the head sentence. 14. The offences and the sentences indicated for each count upon which the applicant was sentenced after trial are as follows: Count 1: On 21 February 2016, the applicant used an offensive weapon with intent to intimidate contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW). That offence carries a maximum which penalty of 12 years' imprisonment. A sentence of 18 months imprisonment was indicated. Count 4: Between 23 and 24 February 2016, the applicant intentionally damaged the property of the complainant, being a white Mercedes sedan, contrary to s 195(1)(a) of the Crimes Act, which carried a maximum penalty of 5 years' imprisonment. A sentence of 12 months' imprisonment was indicated. Count 5: Between 23 and 24 February 2016, the applicant intimidated the complainant with the intention of causing fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carried a maximum penalty of 5 years' imprisonment and/or a fine of 50 penalty units. . A sentence of 18 months' imprisonment was indicated. Count 6: Between 23 and 24 February 2016, the applicant took the complainant with the intention of gaining a psychological advantage, contrary to s 86(1)(b) of the Crimes Act, which carried a maximum penalty of 14 years' imprisonment. A sentence of 2 years' imprisonment was indicated. The grounds of appeal 1. The first ground of appeal is limited to the sentence indicated for Count 6. The applicant contends that the indicative sentence of 2 years' imprisonment was excessive resulting in the appointment of a manifestly excessive aggregate sentence. 2. The sentencing order which affected a partial accumulation of the aggregate sentence imposed by Huggett DCJ is the subject of the applicant's second ground of appeal, expressed not as an error in sentencing principle but as a basis for a finding that the aggregate sentence was manifestly excessive. 3. For the reasons which follow I am not persuaded that either ground of appeal is made out. That is, I am not satisfied that the aggregate sentence imposed by Neilson DCJ has been shown to be "unreasonable or plainly unjust". 4. In the application for leave to appeal the aggregate sentence imposed by Huggett DCJ, heard by this Court on the same day as the hearing of the application for leave to appeal the aggregate sentence imposed by Neilson DCJ, the Crown identified the need for the applicant to seek leave to extend the time for filing the appeal, noting that no evidence had been filed by the applicant in support of that grant of leave. That issue was dealt with by the Court in [3]-[7] in CC v R [2019] NSWCCA 230. 5. I propose that the same approach be taken to the application for leave to extend the time for filing of the application for leave to appeal the sentence subject of this judgment to 20 June 2019. 6. The non-publication orders made by Huggett DCJ in respect of the identity of the complainant of the sexual offences committed by the applicant were maintained by this Court. The applicant will be referred to in the same anonymised way in this judgment. The proceedings on sentence after trial 1. A number of factual findings were made by Neilson DCJ for sentencing purposes referable to the evidence led at trial. In light of the issues raised by the appeal grounds, it is only necessary to refer to the facts in a summary way. 2. Each of the four offences was committed in the context of the ending of a romantic relationship between the applicant and the complainant in circumstances where she was also involved in a romantic relationship with another person, Mr L. 3. On the evening of 21 February 2016, the applicant, the complainant and Mr L were having a conversation in or near two parked vehicles. At some point the applicant rang a workmate, saying he believed that Mr L was kidnapping his girlfriend (plainly a reference to the complainant). The workmate attended with a third person whereupon the applicant approached Mr L's vehicle with the two men. Both the complainant and Mr L stepped out of the car. During the ensuing conversation, the applicant produced a knife to Mr L (this was the conduct comprehended by the first count on the indictment). The knife, which appears to have been a breadknife, was serrated and about 25-30 centimetres in length. The applicant was approximately 2 metres from Mr L when the knife was produced. The sentencing judge found that Mr L was "obviously frightened", prompting him to telephone triple-0. His Honour found that the offending was towards the lower end of the range of objective seriousness. 4. Two days later, on the evening of 23 February 2016, the complainant obtained an interim apprehended violence order against the applicant. Later that evening, she drove her vehicle into the underground car park where she lived and found the applicant in the car park sitting in his vehicle in her parking space. The doors of the complainant's vehicle were locked. The applicant approached her car and demanded she get out. She showed the applicant the interim apprehended domestic violence order and told him that he was not able to hit her or break her belongings. 5. The applicant then struck and damaged the mirror and headlights of the complainant's vehicle using a water bottle. This conduct was the subject of Count 4 and 5 on the indictment. Photographs tendered at trial showed the extent of the damage. In assessing the objective seriousness of the offences, the sentencing judge found that: In essence, the facts of count 4, the damage to the motor vehicle, are part of the facts relied upon to sustain count 5 in the indictment, that is, the intimidation, damaging the car in order to persuade [the complainant] to leave her vehicle. 1. Although his Honour found the conduct the subject of Count 5 in the mid-range of objective seriousness, the sentences indicated for Counts 4 and 5 were treated as wholly concurrent. 2. The complainant was then dragged from her car by the applicant and forced into his vehicle in which she was detained as he drove away from the underground car park for a period of a little less than two hours, from about midnight to about 1:55am. This conduct is the subject of Count 6 on the indictment. Whilst she was detained in the applicant's car, the complainant was crying and asked to go home. The applicant eventually took her to his home from which complainant managed to escape, screaming, after which she immediately called triple-0. The complainant told the triple-0 operator that she had been kidnapped by her ex-partner. As she was speaking to the operator she hid in the street, conscious that the applicant was looking for her in his car. From the content of the complainant's triple-0 call and her voice, the sentencing judge was satisfied that she was in grave fear. His Honour also found that the applicant struck the complainant at least once to the face below her right eye during the time she was detained. After taking into consideration the length of time the complainant was detained, and the circumstances of the detention, his Honour concluded that the offence the subject of Count 6 was below the mid-range of objective seriousness. The applicant's subjective circumstances 1. The applicant was 32 years of age at the time of sentence. He immigrated to Australia with his family when he was aged three and became an Australian citizen when he was aged 6. He attended a Christian Brothers High School to year 12. He was an accomplished student until the end of year 10 when he was distracted by his attraction to young women. 2. He had an employment record as an accounts manager for Samsung and Sony before securing a sales position with a Mercedes-Benz car dealership at Parramatta. He was working in that capacity until his bail was revoked by Huggett DCJ. His studies for a Bachelor of Physical Education at the Australian College of Physical Education have been interrupted by his detention. Apart from the matters for Huggett DCJ sentenced the applicant, the applicant also had a prior conviction for assault occasioning actual bodily harm in 2010 for which he was sentenced at Burwood Local Court to a 12-month bond. For those reasons, his Honour was satisfied the applicant could not rely on good character in mitigation. His Honour was, however, of the view that the applicant's personal circumstances were sufficiently positive that with increasing maturity he was unlikely to repeat the behaviour for which he was to be sentenced and that the prospect of reoffending sexually was remote. 3. His Honour also noted that because of the offences for which he was sentenced by Huggett DCJ, he will remain in protection whilst serving that sentence and more likely than not he will continue to be classified as a protected prisoner whilst serving the sentence of imprisonment his Honour was proposing to impose. 4. His Honour found special circumstances on the following basis: ... a continuation of the sentence passed by her Honour Judge Huggett, [and] this will remain the offender's first time in custody and I accept that the conditions of his custody will remain harsh. Furthermore, principles of totality indicate that a very lengthy period of imprisonment for a man such as this offender might be crushing. The special circumstances are clearly the length of the sentence and the circumstances in which the offender must serve his sentence and for perhaps continuing supervision by Corrective Services after the offender's release from imprisonment. Ground 1: The indicative sentence of 2 years for Count 6 was manifestly excessive and demonstrates error in the aggregate sentence. 1. It is well established that to make good a ground of manifest excess when an aggregate sentence has been imposed, the applicant must satisfy the Court that the aggregate sentence is manifestly excessive, in the sense that it is "unreasonable or plainly unjust": Hughes v R [2018] NSWCCA 2 at [86]. 2. In the present case, the claim of manifest excess in the aggregate sentence relates solely to the sentence indicated for Count 6. Whilst an indicative sentence may in some cases provide a guide to the question whether manifest excess (or manifest inadequacy) is demonstrated in the aggregate sentence, an indicative sentence is not amenable to appeal (see Kerr v R [2016] NSWCCA 218 at [113]-[114]). Moreover, even where an indicative sentence might be shown to be excessive referable to the facts upon which the sentence is indicated or the maximum penalty, that does not necessitate a finding that the aggregate sentence is excessive. The principal focus in the determination of a ground alleging manifest excess where an aggregate sentence has been imposed is whether that sentence reflects the total criminality comprehended by the indicative sentences upon which the aggregate sentence it is based (see JM v R [2014] NSWCCA 297). 3. In my view, the applicant's submission that the indicative sentence of 2 years for a finding of criminality below the mid-range of objective seriousness is manifestly excessive is unpersuasive. The related submission that the indicative sentence is excessive because the sentencing judge expressed a guarded view as to the reliability of the complainant is a non sequitur, there being nothing in the sentencing remarks to suggest his Honour's views about the complainant had any relevant bearing on the findings of fact underpinning his assessment of the objective seriousness of the applicant's offending. Those factual findings concern such factors as the length of detention, the fear that was engendered in the complainant and her expressions of that fear and the assault she sustained during the detention, each factor being either corroborated by independent evidence or the subject of admissions by the applicant. 4. In my view, an indicated sentence of 2 years against a statutory maximum of 14 years was well within the sentencing discretion of the sentencing judge, indeed, in my view, a lenient indicative sentence having regard to the facts on which it was based, none of which were challenged by the applicant on the appeal, including the use of violence to enforce his will and domination of the complainant. The need for general and specific deterrence in the particular circumstances of the offence and the offender were also material to his Honour's appointment of the indicative sentence. 5. I would dismiss the first ground of appeal. Ground 2: His Honour erred by accumulating the sentence of the applicant upon the sentence imposed by Huggett DCJ. 1. As this ground of appeal is formulated, the applicant contends that it was not open to the sentencing judge to accumulate the aggregate sentence he imposed upon the aggregate sentence he was serving at the time of sentence imposed by Huggett DCJ. That submission was not advanced at the hearing of the appeal. The submission which was advanced was that the effect of accumulation (or more precisely the extent of accumulation) of approximately 22 months by the appointment of a starting date of 15 April 2020 has had a disproportionate impact upon the applicant, in breach of principles of totality. 2. Both submissions overlook the submissions of counsel who appeared for the applicant on sentence. He signaled his express agreement with the Crown submission (extracted in full at [63] of the reasons for sentence) that the aggregate sentence be fixed to commence on 15 April 2020 to account for pre-trial custody relative to the offences for which the applicant was to be sentenced and in the context of the date upon which the non-parole period fixed by Huggett DCJ was due to expire. At least implicit in that concession was the further concession by counsel that it was appropriate for there to be some accumulation on the sentence imposed by Huggett DCJ for what was, on any view, quite different offending. 3. To the extent that it requires repetition, an application to this Court for leave to appeal against a sentence is confined by the fact that in the exercise of this Court's jurisdiction under the Criminal Appeal Act 1912 (NSW), this Court is not a venue for a rehearing of a plea in mitigation (see Zreika v R [2012] NSWCCA 44). That means, in practical terms, it is for an offender's legal representative to make submissions to the sentencing judge, by reference to the particular factors which are relied upon in mitigation, including, where appropriate, submissions directed to the structure of a sentence where a finding of special circumstances is sought. It is not suggested, and neither could it have been, that the submissions of applicant's counsel at the sentencing hearing were deficient in any respect or that he failed to direct submissions to the structure of the sentence, including the question of accumulation upon the sentence the applicant was serving. 4. Were the applicant's case on the appeal confined to a complaint about the degree of accumulation on the sentence imposed by Huggett DCJ or the submission that totality principles were overlooked or misapplied and a crushing sentence imposed, I would have proposed that leave to appeal be refused. I propose that leave be granted only to deal with the applicant's further submission that, given his Honour's finding of special circumstances and Huggett DCJ's finding of special circumstances, his Honour must have overlooked preserving that ratio when making his sentencing order. 5. On the hearing of the appeal, the Crown acknowledged that there is a question whether, when his Honour indicated in his sentencing reasons an intention to preserve the ratio of 56 per cent between the aggregate head sentence and non-parole period he imposed in recognition of the sentence imposed by Huggett DCJ a few months earlier where the same ratio was applied, he intended that ratio should also apply to the effective sentence after accumulation. 6. In order to interrogate that issue, is necessary to review the basis upon which special circumstances were found. His Honour expressly rejected the proposition that the partial accumulation of the sentence he was to impose upon the sentence the accused was serving was a basis for a finding of special circumstances. In his Honour's view, special circumstances are directed to an offender's prospects of rehabilitation. He went on to say: … I accept that, because the sentence I pass will be a continuation of the sentence passed by her Honour Judge Huggett, this will remain the offender's first time in custody and I accept that the conditions of his custody will remain harsh. Furthermore, principles of totality indicate that a very lengthy period of imprisonment for a man such as this offender might be crushing. The special circumstances are clearly the length of the sentence and the circumstances in which the offender must serve his sentence and for perhaps continuing supervision by Corrective Services after the offender's release from imprisonment. I have come to the view that the appropriate non-parole period is a period of two years and three months. 1. It seems to me to follow that his Honour also considered 1 year and 9 months (being 21 months) as an appropriate period of supervision in the community upon the applicant's release to parole. 2. His Honour confirmed his finding of special circumstances when pronouncing the sentencing order, although he did so in the context of announcing the total sentence of 4 years comprising the non-parole period and the balance of the sentence despite the effect of the sentencing order, calculated from the commencement date, being a sentence of 6 years and 5 months with a non-parole period of 4 years and 8 months (rounded up) resulting in a ratio between the head sentence and non-parole period of 72.6 per cent - still less than the statutory ratio of 75 per cent in s 44(2) of the Crimes (Sentencing Procedure) Act but greater than the ratio to which his Honour had referred in the course of his sentencing reasons. 3. In the result, however, the applicant will be subject to supervision in the community serving the balance of term upon his release to parole for the same period of time, being 21 months, albeit after serving the effective non-parole period of 4 years and 8 months, as distinct from the non-parole period of 2 years and 3 months comprised in the aggregate sentence. Viewed in this way, I am not persuaded that the applicant has demonstrated a sentencing error in the structure of the effective sentence. 4. The orders I propose are as follows: 1. Extend the time for the filing of the notice of application for leave to appeal to 20 June 2019. 2. Leave to appeal is granted. 3. The appeal is dismissed. 1. BELLEW J: I agree with Fullerton 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: 19 December 2019