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Carter v R [2018] NSWCCA 138 (9 July 2018)

Last Updated: 10 July 2018



Court of Criminal Appeal
Supreme Court
New South Wales

Case Name:
Carter v R
Medium Neutral Citation:
Hearing Date(s):
9 April 2018
Decision Date:
9 July 2018
Before:
Leeming JA at [1]
Fullerton J at [2]
McCallum J at [3]
Decision:
Leave to appeal is granted; the sentence imposed at first instance is quashed and, in substitution therefor, the applicant is sentenced to an aggregate sentence of imprisonment for 5 years with a non-parole period of 2 years and 6 months commencing on 17 April 2016 and expiring on 16 October 2018 and a balance of term of 2 years and 6 months expiring on 16 April 2021.
Catchwords:
CRIME – sentence – multiple offences of aggravated breaking, entering and stealing – consideration of applicant’s subjective case – whether sentencing judge mistook the facts as to family hardship – whether other findings as to subjective case were reflected in the sentence imposed – consideration of parity with co-offenders
Legislation Cited:
Cases Cited:
Category:
Principal judgment
Parties:
Tylar John Carter (applicant)
Regina (respondent)
Representation:
Counsel:
Applicant self-represented
E Balodis (Crown/respondent)

Solicitors:
Office of the Director of Public Prosecutions (Crown/respondent)
File Number(s):
2015/57858; 2014/360732
Publication Restriction:
None
Decision under appeal:

Court or Tribunal:
District Court
Jurisdiction:
Crime
Date of Decision:
26 July 2016
Before:
Hanley SC DCJ
File Number(s):
2015/57858; 2014/360732

JUDGMENT

  1. LEEMING JA: I agree with McCallum J that ground 2 has been established but that ground 1 has not, and that the applicant must be resentenced. I also agree that the applicant should be resentenced on the basis, unchallenged in this Court or at first instance, that the hardship to the applicant’s family should be taken into account in the “general mix” of subjective factors, and I agree with the sentence proposed by her Honour. I do not otherwise express a view on the matters considered by McCallum J under the heading “Proper approach to family hardship on re-sentence”, in respect of which, as her Honour observes, the parties have not been heard.
  2. FULLERTON J: I also agree with McCallum J that the error the subject of ground 2 has been made out and that on resentence, weight should be afforded to the evidence of family hardship which was before the primary judge and before this Court. As with Leeming JA, I also decline to express a view as to whether, as a matter of sentencing principle, the Court should continue to take a “restrictive approach” to the impact of family hardship in circumstances where, the applicant being self-represented, the Court did not have the opportunity for Counsel’s assistance in reviewing the authorities her Honour has cited in her judgment, in particular, where the Crown has not been heard as to whether the line of authority approved in Kremisis should continue to be followed.
  3. McCALLUM J: Tylar Carter seeks leave to appeal against the sentence imposed upon him in the District Court on 26 July 2016 after he pleaded guilty to the following offences:
  4. The applicant had pleaded guilty in the Local Court and was allowed a discount of 25% for the utilitarian value of the plea. He was sentenced to an aggregate sentence of imprisonment for 6 years with a non-parole period of 3 years commencing on 17 April 2016. The structure of the sentence reflects a departure from the statutory ratio of the balance of term to the non-parole period, which the sentencing judge found was warranted by his finding that the applicant would require extended supervision to assist him to re-enter the community, having regard to the nature of the offences and aspects of the applicant’s subjective case.

Circumstances of the offending

  1. The applicant was sentenced by the same judge and at the same time as his three co-offenders, Jarrod Foley, Corey McLean and Matthew Murray. The Crown relied on a statement of agreed facts, the contents of which may be summarised as follows.
  2. Between May 2014 and January 2015, the offenders were participants in a criminal group whose aim was to break into and enter schools in the middle of the night to steal electronic goods. The group mainly targeted Catholic schools in Western Sydney after researching the schools online to ensure they were not in populated areas or close to police stations. They targeted Apple-branded products in particular (including laptops, MacBooks, ipads and chargers) because they could easily be sold.
  3. The offenders would drive to the schools wearing dark clothing and balaclavas to avoid detection and gloves to minimise their chances of leaving fingerprints or DNA. They would carry cricket bags which would later be used to transport the stolen property. Access to the school would be gained by removing or damaging the boundary fence. Once inside, they would search the school buildings looking for the distinct light emitted by Apple branded chargers. Once they had located a building or classroom containing the products, they would enter it by removing glass windows or jemmying open the doors using crowbars.
  4. Once the items were stolen, the offenders would return to one of the offender’s premises and split the stolen products evenly. The devices would be reset and any identifying stickers removed. They would then advertise the devices for sale through websites such as Gumtree and sell them over a number of weeks.
  5. The majority of the offences (including those on the Form 1) were committed by the applicant and other members of the group between 5 July 2014 and 27 November 2014.
  6. The offence of aggravated breaking and entering with intent to steal was committed on 7 December 2014 at the Caltex Service Station at Winmalee. The applicant, McLean and Foley, wearing balaclavas and gloves, broke into the service station by smashing the front glass window and stole cigarettes. They were arrested a short time later and were all released on conditional bail. Whilst on bail, the applicant and two co-offenders committed two further s 112(2) offences.
  7. The offenders sold a significant number of Apple products to a man who owned a computer and electronics store in Sydney. On 8 January 2014, police executed search warrants at an internet café belonging to that man and at his residence. They seized a number of items, ultimately linking 94 Apple computer products to the offences committed by the applicant and his co-offenders. The owner of the electronics store said he had paid over $20,000 for items purchased from the offenders. The offender (when later interviewed by police) thought they had received in the order of $60,000 from that man.
  8. On 24 February 2015, the applicant attended Penrith Police Station at the request of police and was arrested. He participated in a recorded interview in which he made full admissions. He also provided a statement in which he said he would be willing to give evidence in accordance with what he had said in the record of interview.

Grounds of appeal

  1. The applicant represented himself in the appeal. The grounds of appeal as filed were as follows:
  2. It is ordinarily appropriate to address a parity ground last, since such a ground assumes an otherwise appropriate sentence: England v R; Phanith v R [2009] NSWCCA 274 at [22] per Howie J, McClelland CJ at CL and Fullerton J agreeing at [1] and [71]. That approach was recently adopted even in a case where, as here, there was overlap between the parity ground and an alleged failure to give effect to findings on the applicant’s subjective case: Ping He v R [2018] NSWCCA 123. I will adopt the same approach and will accordingly deal with the applicant’s grounds in reverse order.

Ground 2 - hardship to others

  1. The applicant’s written submissions addressed ground 2 by reference to two aspects of his subjective case presented at the proceedings on sentence.
  2. The first relates to the issue of family hardship. The applicant’s submissions on that issue were directed only to the judge’s factual finding and that is the basis on which I have approached this ground. The Crown’s written submissions incidentally raised a question of law which need not be addressed at this stage but to which it will be necessary to return at the conclusion of this judgment.
  3. At the proceedings on sentence, the applicant and his mother gave evidence concerning the condition of the applicant’s two brothers, who both suffer “multiple disabilities”, including autism. The applicant submitted that the sentencing judge erred when he considered those circumstances. Specifically, the applicant said: “[the judge] claimed that my younger brothers...suffered from just Tourette’s syndrome. This is extremely wrong.”
  4. It is correct that the sentencing judgment refers only to Tourette’s syndrome. The judge said (at pages 30-31):
“[T]here has been some evidence before me that his two brothers, [names omitted], suffer from “Tourette’s syndrome”. His mother gave evidence the offender is of particular assistance to her in controlling the behaviour of [the younger brother], who can be very aggressive. I note in cross-examination of the offender and his mother it was conceded the offender had lived away from the family home with his previous girlfriend for a considerable period of time and had not been present to assist his mother in relation to the two brothers. He was therefore in the past not available to assist.
I am not satisfied the hardship to his mother and brothers that will result from a custodial sentence being imposed on the offender will result in exceptional hardship to them. I shall however take this factor into account in the “general mix” of subjective factors.”
  1. As submitted by the applicant, the evidence addressed matters well beyond Tourette’s syndrome. In a letter to the Court, the applicant’s mother wrote:
“What Tylar has done has caused absolute heartbreak, he was my right wing when it came to helping me raise his Autistic brothers, my house is in turmoil at the moment he’s brothers are very uneasy as they know something is wrong and being Autistic they don’t cope well with change very well.”
  1. The mother expanded upon that information in sworn evidence at the hearing, in the following exchange (T27/04/16, page 39):
Q. In your reference that’s been provided to the Court you refer to that they suffer from autism, is that correct?
A. Multiple disabilities, yes.
Q. When you say multiple disabilities, what are they?
A. Autism, Tourette’s, ADHD, developmental delay, OCD, the list goes on, yes.
  1. She said that the younger brother was “very aggressive, a very angry boy” (T39.50) and that Tylar assists with that (T40):
“When it comes to violence and things like that sometimes I’m just not strong enough to control [the younger brother], so therefore Tylar...comes in hand there and helps me control – helps me with their day to day life.”
  1. She said that Tylar had moved out for about 12 months but had since moved back home. That is confirmed by the particulars provided by the Crown, which indicate that, after his second arrest on 24 February 2015, the applicant was on remand for just over three months before being granted bail to reside with his mother. The applicant then remained on bail living with his mother for almost 14 months before being sentenced.
  2. The prosecutor cross-examined the mother as to what would happen if Tylar went back into custody. She said she did have other support from her mother but that there was “not much that [her mother] can do with the boys” (T43.9). She agreed that when Tylar was living away from home (during the period of offending), he wasn’t around “as much” to assist with the boys. That evidence related to the period before the applicant was granted bail in June 2015. The mother’s letter to Court indicated that, during the earlier period when he lived away from home, the applicant had gone from being “an extremely hard worker coming home every single night to help me with he’s two Autistic brothers” to being charged with these crimes.
  3. The applicant also gave evidence on those matters. He said he helped his mother with his brothers, helped with payments, “everything like that”. The prosecutor pressed him as to what he did to help with their needs. He said, “I help with everything my mother needs to do with them as in sporting, schooling, their therapy.” He was asked “what sort of behaviours do they have that you need to assist your mother with?” He referred to their mental and physical reactions to some situations, saying:
“As in say they might do something wrong and they get punished for it they take everything to heart and so much harder for them to wind-down from it than what we would be.”
  1. Reference letters provided by the applicant’s fiancée, Courtney Hall, and her father also made reference to the important role the applicant has in his brothers’ lives.
  2. The Crown submitted that it might have been difficult for the prosecutor in the Court below to adopt a position challenging the evidence as to those disabilities where only oral evidence was given. However, the issue of autism was also addressed in a number of the written references. While the evidence might not have described the symptoms of the boys’ conditions in formal medical language, it gave a compelling account of a family facing significant challenges in the home.
  3. The sentencing judge in this case addressed a large and complex sentencing task, involving four offenders, in careful detail. In my respectful opinion, however, the judge’s remarks set out above reveal that his Honour did mistake the facts concerning hardship to the applicant’s family, in two important respects. First, the judgment refers only to Tourette’s syndrome when the evidence was that the brothers suffered from a constellation of debilitating disabilities which cause significant behavioural difficulties.
  4. Secondly, the finding that the applicant “had not been present to assist his mother in relation to the two brothers” when he lived away from home and “was therefore in the past not available to assist” was, with respect, an incomplete account of the evidence on that issue and one which overlooked the critical question of future hardship to innocent family members in the event of a lengthy custodial sentence. The applicant submitted that the judge’s finding overlooked “what it is like to live with someone who has these disabilities” and that “they do not always work well with new people and would make the situation worse”.
  5. The mother’s letter to the Court indicated that, for at least part of the past period focussed on by the judge, the applicant was still coming home “every single day” to help. More importantly, the judge’s finding overlooked the more recent period of 14 months during which the applicant lived with his mother whilst on bail, helping her with the brothers’ day to day needs. If the mother managed to get by during part of 2014 when the offender was less available, it does not follow that his incarceration now does not visit significant hardship on her and the two boys. In my assessment of the evidence, it clearly does.
  6. For those reasons, the applicant’s submissions have persuaded me that the judge materially mistook the facts as to the likely hardship to the family.

Ground 2 - assaults in custody

  1. The second issue raised by the applicant concerning his subjective case relates to the fact that he was the victim of two serious assaults during the period when he was in custody on remand between February and June 2015. The applicant submitted that the sentencing judge failed to give due consideration to the psychological impact of those assaults. The nature of the assaults was addressed in the evidence and need not be repeated here; it is enough to say that they were of such a nature as to be very likely to cause significant and ongoing psychological harm.
  2. The applicant relied on a report by a psychologist, Mr Peter J Allen, who expressed the opinion that the applicant now suffers from Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder secondary to the PTSD. Mr Allen said “any time serving a custodial sentence, regardless of the level of protection afforded, is likely to significantly exacerbate his mental health conditions and increase the risk of self-harm.”
  3. The applicant gave evidence about those matters which amply supported that opinion. He said he was “warned not to” report the assaults to Corrective Services and was too embarrassed to raise the issue with the author of the Presentence Report.
  4. The evidence at the proceedings on sentence reveals that, when the applicant was giving evidence about those assaults, one of the co-offenders expressed amusement and mocked the offender, a matter remarked upon by the judge in the sentencing judgment. The offender rightly observed in this Court that assaults of the nature of those to which he was subjected are perhaps taken less seriously in the case of male victims.
  5. The sentencing judge evidently accepted the applicant’s evidence as to the assaults and accepted that, as a result of those matters, the applicant’s time in custody was likely to be “more onerous than for other prisoners”. However, as I will explain, that finding is not reflected in the sentence imposed. In order to explain that conclusion, it is necessary to consider the parity ground.

Ground 1 - parity

  1. As already noted, the sentencing judge sentenced four co-offenders at the same time. His Honour took the view that there were three “main offenders”, including the applicant, and that those three should receive the same sentence, while the fourth (Murray) should receive a lesser sentence. As to the main three, his Honour said:
“I am satisfied that whilst there are a number of differences between the main offenders the roles of McLean, Foley and Carter were generally, during the course of the commission of the offences similar. The actual number of the offences they committed and their respective subjective features are varied but balance out so that I am satisfied that any one of these three would have a justifiable sense of grievance if he received a greater sentence than either or one of the other two.”
  1. As those remarks reveal, the judge approached the issue of parity having regard (with respect, correctly) to both the objective seriousness of the offences and the subjective circumstances of the offenders. The applicant’s submissions concerning the parity ground were directed only to the objective seriousness of the offending. He complained that his lawyer had incorrectly accepted, in his submissions to the sentencing judge, that the applicant was “one of the key offenders”. However, the applicant himself made a concession in those terms during his evidence at the proceedings on sentence.
  2. In his written submissions, the applicant stated:
“I was to be sentenced for less than half of the crimes in which Mr Jarrod Foley and Mr Corey Mclean committed and only 2 more than Mr Mathew Murray...I do feel as though I should be punished for my actions, but in closer parity to Mr Mathew Murray, as my charges are more closely related to his, rather than my other co offenders Mr Jarrod Foley and Mr Corey Mclean.”
  1. A comparison of the charges for which the four offenders were in fact sentenced does not sustain that submission. It emerged in oral submissions (as I understood the applicant’s argument) that, in referring to what he “was to be sentenced for”, the applicant was in effect contending that he was persuaded by his lawyer to plead guilty to more offences than he in fact committed. It is not open to this Court to determine the present application on that basis.
  2. The applicant, Foley and McLean were each sentenced for eight counts of aggravated breaking and entering and stealing, one count of aggravated breaking and entering with intent to steal, one count of disposing of stolen property and one count of participating in a criminal group. In the case of the applicant, eight further offences were taken into account on a Form 1, whereas four offences were taken into account for Foley and two offences were taken into account for McLean.
  3. The sentencing judge undertook a careful and detailed analysis of the evidence concerning those matters. His Honour said, “whilst Mr Foley was the original instigator and ‘brains’ behind the offences, the co-offenders Carter and McLean quickly assumed similar roles as co-principals. The offender Murray was substantially less involved...” (at page 2 of the judgment).
  4. The judge summarised the applicant’s role as follows (at page 26 of the judgment):
“I am satisfied of the following based on the contents of his ERISP, the “Agreed Facts”, and the evidence before me in particular that adduced when cross-examined by Ms Graham:
(1) He was introduced by the offender Foley to the plan to rob Catholic schools of iPads in the manner carried out;
(2) The use of the balaclavas, gloves and researching the schools and their location and proximity to police stations was initiated by Foley, however this offender became a willing participant in the preparation for carrying out of the offences;
(3) Whilst he did not undertake the principal internet searches he later conducted some and took photographs of the points of entry of some schools from the internet (transcript 31, line 33 and line 40 on 27 April 2016);
(4) He was involved in identifying whether the schools were near private homes or near bushland (transcript 31 at line 43);
(5) He gave forethought to planning the schools to be targeted (transcript 32, line 3) and this could take up to an hour (transcript 32, line 15);
(6) He accepted he was as equally involved as Foley in the planning (transcript 34, line 3);
(7) He committed the offences when he was sober (transcript 36, line 8);
(8) The computers were divided equally amongst the offenders to be on sold (transcript 37, line 50).”
  1. In oral submissions, the applicant emphasised that Foley was “the main instigator”. The sentencing judge appears to have accepted as much but found that, over the period of the offending, the applicant was equally as involved. The applicant accepted in cross-examination at the proceedings on sentence that there was no “leader” and that Foley was not more involved in the preplanning than himself (T27.4.16 at 33.43-34.7).
  2. The applicant’s contention that he should have been sentenced “in close parity to Mr Murray” cannot be accepted. Murray was sentenced for four offences of aggravated breaking, entering and stealing, an offence of disposing of stolen property and an offence of participating in a criminal group. In his case, only two further offences were taken into account on a Form 1.
  3. Apart from there being fewer offences, the sentencing judge found (at 51 of the judgment):
“[Murray] is significantly less involved in the commission of the offences and in the hierarchy of the criminal group. He did not plan or instigate any of the break and enter and stealing offences. He was recruited by Carter and both parties agree his role should be characterised as a subordinate or follower. I accept that assessment. In addition he was involved for a shorter period of time and received a lesser amount of money. He did not provide any of the tools or equipment necessary to commit the offences.”
  1. It was also a “significant factor” that Murray voluntarily ceased participating in the offences prior to being arrested.
  2. The sentencing judge recognised that there were differences between the three main offenders. An important difference was the fact that the applicant and McLean (but not Foley) committed two further offences whilst on bail, which was an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act.
  3. The applicant’s submissions in support of ground 1 have not persuaded me that the sentencing judge erred in approaching the issue of parity on the premise that the applicant’s offending was on the same level of objective seriousness as that of Foley and McLean. Ground 1, as argued, is not made out.
  4. However, as already noted, the sentencing judge’s conclusion as to parity also had regard to the offenders’ respective subjective circumstances. The applicant’s written and oral submissions in support of ground 2 put an articulate and compelling argument as to his subjective case. The two matters addressed under that ground were significant. As to the issue of family hardship, I am satisfied (for the reasons already explained) that the judge materially mistook the facts. As to the assaults in custody, while his Honour accepted the evidence presented by the applicant and made a finding as to hardship in custody due to the psychological impact of the assaults, I am satisfied (on the strength of the foregoing analysis of ground 1) that that finding is not reflected in the sentence imposed. The sentence imposed on the applicant was exactly the same as the sentence imposed on each of the two main co-offenders, neither of whom had any such feature in his case. The applicant’s case was relevantly different and required a different outcome: cf Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608, [65] (Gaudron, Gummow and Hayne JJ).
  5. For those reasons, I am satisfied that the decision disclosed error and that the applicant should be re-sentenced.

Re-sentence

  1. The Crown submitted that, if ground 2 were to be upheld, this Court would not conclude in the independent exercise of its sentencing discretion that any lesser sentence is warranted in law and should have been passed. Having been persuaded that the sentence passed at first instance materially mistook or otherwise did not reflect the subjective case, that would be a surprising result.
  2. The circumstances of the offending and the two specific aspects of the subjective case raised by the offender have already been addressed. The applicant otherwise presented a strong subjective case. In his written submissions (which find support in the evidence), he said:
“I was only 19 at the time of my offences. Once I was released on bail I got a job and went to work every single day, and I have character references stating that I did from my previous place of employment Tates’ Tyres in Riverstone...In that time, I also proposed to my now fiancée, Courtney Hall, who has been supporting me emotionally and financially, along with my mother, whilst I have been imprisoned...I have proved myself through my work history. I studied for four years after leaving school at the age of 16 and finished my carpentry apprenticeship at BKH group.”
  1. The sentencing judge made a finding that the applicant has good prospects of rehabilitation and is unlikely to re-offend on the basis that he has no prior convictions; he is a person of prior good character; his mother and other referees describe the offences as out of character; he has a supportive family and fiancée; he has a prospect of employment in the future (having demonstrated a capacity in the past to be employed and having a trade in carpentry); the deterrent effect of the assaults in custody; the fact that he has not committed any institutional offences whilst in custody and the assessment of the Community Corrections Officer in the Presentence Report that he is “a low risk” of re-offending. I respectfully agree with that finding.

Proper approach to family hardship on re-sentence

  1. Even accepting the broader scope of the evidence discussed above, I do not think the family hardship in the present case can be classified as “exceptional”, as that term has been applied in the authorities (whether too high a bar has been posed is a debate for another day). In that circumstance, as noted in the discussion of ground 2 above, the Crown’s written submissions incidentally raise a question of law as to the principles relating to the question of family hardship.
  2. The Crown submitted that the following principles are to be applied:
“It is well established that hardship to family members may be taken into account to reduce or eliminate a sentence of imprisonment only where the circumstances are exceptional: Edwards v R (1996) 90 A Crim R 510 at 515-517, R v MacLeod [2013] NSWCCA 108 at [43] and Hoskins v R [2016] NSWCCA 157 at [63]. Hardship to third parties may be able to be taken into account as part of an accused’s subjective case but not result in any substantial reduction to a sentence of imprisonment: R v X [2004] NSWCCA 93, R v Girard [2004] NSWCCA 170, R v Nguyen [2006] NSWCCA 369, and Kaveh v R [2017] NSWCCA 52 at [40].”
  1. If the first principle stated in those submissions is to be understood to mean that, unless hardship to family reaches the bar of being “exceptional”, it cannot be taken into account at all, that is not the approach taken by the sentencing judge in the present case. His Honour was not satisfied that the hardship to the applicant’s mother and brothers that would result from the imposition of a custodial sentence would be “exceptional hardship”. However, his Honour expressly said he would take the evidence of hardship into account in the “general mix” of subjective factors.
  2. In saying so, the sentencing judge was adopting the words of Sully J in the decision of this Court in R v X [2004] NSWCCA 93 at [24] (Grove and Bell JJ agreeing at [1] and [44]) as follows:
“I have already acknowledged the exigent nature of the respondent's family circumstances. To have regard to those circumstances as part of the general mix of subjective matters is one thing. It is, however, an entirely different thing to isolate those family circumstances, characterise them as highly exceptional, and use that characterisation as a justification for a discrete and substantial measure of leniency added onto the respondent's entitlements under the general law and under the general requirements of sections 22 and 23 of the Sentencing Procedure Act.”
  1. Those remarks were expressly approved by this Court in R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170 at [22] per Hodgson JA (an appeal, it appears, argued by the sentencing judge in the present case when he was a barrister). Justice Hodgson did not accept that the circumstances in that case fell within the category of exceptional circumstances discussed in Edwards but said at [21] (Levine and Howie JJ agreeing at [26] and [27]):
“It is certainly a matter of concern, and a matter that can be taken into account as one subjective circumstance in assessing the appropriate penalty, that innocent children will be adversely affected by the imprisonment of their parents. However, in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment.”
  1. The question of family hardship was considered more recently by this Court in Kremisis v R [2016] NSWCCA 257. The relevant ground of appeal as recorded in the judgment above [88] was “His Honour erred in law by finding that as the effect on family was not exceptional, it could not be taken into account under the relevant sub-section”. It is not clear what “sub-section” was referred to by the applicant in that ground; the principle of family hardship is a common law principle preserved by the concluding words of s 21A(1) of the Crimes (Sentencing Procedure) Act but not expressly addressed in the list of mitigating factors in s 21A(3) of the Act. The important point, however, is that the decision in Kremisis was concerned with a sentencing task governed by that legislation.
  2. The judgment records at [8] that counsel for the applicant “accepted that success of the ground in this Court is foreclosed by binding authority”. Counsel explained that the point was being taken only so that it could be reserved for the consideration of the High Court. In my respectful opinion, if the sentencing judge in Kremisis had indeed held that, because hardship to family did not reach the bar of being “exceptional”, it could not be taken into account at all, it is not clear that the concession was correctly made. In any event, the Court proceeded on the basis of that concession.
  3. Notwithstanding the concession made, it appears the point was argued to some extent. Counsel for the applicant drew the Court’s attention to the separate judgment of Beech-Jones J in R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222 (the judgment is described in Kremisis at [89] as a dissenting judgment; in fact, Beech-Jones J joined in the orders of the Court in Zerafa but his remarks concerning the principle of exceptional hardship were not addressed by the other members of the Court). Zerafa was a case involving sentencing for Federal offences, so his Honour’s ultimate conclusion was directed to the proper construction of s 16A(2)(p) of the Commonwealth legislation (Crimes Act 1914). However, in my respectful opinion, aspects of that discussion apply with equal logic to the common law hardship principle.
  4. After a comprehensive review of the relevant authorities dealing with sentencing in the Federal context, Beech-Jones J said at [140]:
“This succession of cases has led to the adoption of a principle with little to commend it. If in other contexts Courts are bound to consider the impact of their orders on innocent third parties (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 at [65] to [66]; Silktone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317 at 324 and 332), why is the impact on children of any sentence under consideration to be excluded unless their hardship is only exceptional? The primary objects in sentencing of "retribution, deterrence [and the] protection of society" described by Wells J in Wirth can still be given effect to without requiring sentencing courts to divide the forms of hardship occasioned to an offender's family into those which meet the description "exceptional" and those which do not. The assessment of probable hardship to family members is a task that sentencing courts are perfectly able to undertake, and no doubt they do. In any event, the words of the section and the secondary materials indicate a clear policy choice on the part of the legislature on this topic.”
  1. I indicated my agreement with those remarks in R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866 at [37] (also a case involving sentencing for a Federal offence) and that was also drawn to the attention of the Court in Kremisis.
  2. The Court in Kremisis rejected what it termed “the more liberal approach” suggested by Beech-Jones J in Zerafa and approved by me in Curtis, considering itself bound by longstanding authority of this Court to adhere to “the restrictive approach” adopted by the judge at first instance: at [92]-[94] per Button J; Hoeben CJ at CL and N Adams J agreeing at [1] and [135]. However, the authorities cited at [92] to support that conclusion were all cases involving sentencing for Federal offences: R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522 at [9]- [17]; R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405 at [31] and Nguyen v R [2016] NSWCCA 5 at [69].
  3. It might be argued that the principle should be the same under either regime; certainly, that is the burden of the reasoning of Spigelman CJ in Togias. The point is that, the concession having been made, other authorities considering the approach taken by this Court to sentencing under the State regime were not addressed. Justice Button J remarked at [94]:
“It may also be significant that Beech-Jones J and McCallum J were speaking of the construction of the Crimes Act 1914 (Cth), not the Crimes (Sentencing Procedure) Act 1999 (NSW). I do not hold the affirmative opinion that the approach taken by this Court to the question over many years is plainly wrong.”
  1. However, Beech-Jones J had considered the position under the State legislation in Zerafa at [113] to [118]. His Honour noted at [116] that, although the limitations on considering hardship to third parties derived from Edwards are said to be the subject of "well settled principles" (citing FP v R [2012] NSWCCA 182 at [309] per R A Hulme J), they are sometimes stated in different terms. His Honour observed in that context that the decision in R v MacLeod [2013] NSWCCA 108 at [43] “leaves open the possibility that the ‘otherwise appropriate sentence’ is one in which hardship to third parties falling short of exceptional circumstances is considered as part of the process of ‘instinctive syntheses’, even if it cannot be considered as a ‘distinct matter justifying any substantial modification of an otherwise appropriate penalty’” (citing Dipangkear v R [2010] NSWCCA 156 at [41] per Whealy J).
  2. Justice Beech-Jones further observed that this approach has been explicitly recognised in cases discussing Edwards and applying the Crimes (Sentencing Procedure) Act 1999, citing Girard. It is, with respect, potentially a distraction to characterise this as “the more liberal” approach. The question is whether it is the correct approach. Justice Beech-Jones’ cogent analysis in Zerafa has persuaded me that it is.
  3. In my respectful opinion, the sentencing judge in the present case was correct to acknowledge that, while a substantial reduction or elimination of a sentence of imprisonment on the grounds of hardship should be reserved for the exceptional case, hardship to innocent family members is a matter to which regard should be had as one of the relevant factors “in the general mix” in determining the appropriate sentence. For my part, with respect, I do not think the Court in Kremisis was bound by authority to hold otherwise. However, I also respectfully acknowledge that this is an issue which should properly be determined by the High Court or at least an enlarged bench of this Court.
  4. Those considerations complicate the task for this Court. As explained by Beech-Jones J in Zerafa, the decision in Edwards has been interpreted differently, as reflected in, for example, Girard on the one hand and Kremisis on the other. However, that was not an issue raised by the applicant’s grounds of appeal; it is an issue which has crystallised only in the context of the need to re-sentence the applicant. Accordingly, the Crown has not been heard as to whether the line of authority approved in Kremisis has taken a wrong turn. Conversely, the applicant has not been heard as to the prospect of now being re-sentenced according to an approach different from that taken by the sentencing judge, who expressly took the evidence of hardship into account in the “general mix” of subjective factors (contrary to the approach approved in Kremisis).
  5. I have concluded that, for the purpose of this case only, it is appropriate (without deciding) to adopt the approach taken by the sentencing judge at first instance. To do otherwise in circumstances where the point was not expressly taken by the Crown and the (unrepresented) applicant has not been heard would be unfair to the applicant. In accordance with the approach adopted at first instance, I propose to take the evidence of family hardship into account in the “general mix” of subjective factors.

Approach to parity on re-sentence

  1. I am satisfied on the strength of the two matters addressed by the applicant in support of ground 2 that, while his offending was of similar seriousness to that of the other two main offenders, the applicant had a significantly stronger subjective case. With great respect to the sentencing judge, who took a careful approach to this difficult and substantial sentencing exercise, I do not agree that the objective seriousness of the offences committed by the three main offenders and their respective subjective features “balance out” so as to require the same sentence to be imposed on each. I consider that the matters raised by the applicant concerning his subjective case (which are absent from the cases of the main co-offenders) are such as to warrant imposing a lesser sentence on him than was imposed on the co-offenders.

Indicative sentences

  1. While the sentencing judge did not give a detailed explanation for each indicative sentence, I consider that the sentences his Honour indicated differentiated appropriately between the individual offences and, leaving aside the matters considered in this judgment, were otherwise appropriate.
  2. The judge indicated a sentence of three years imprisonment for sequence 1, which was the count on which the eight offences were taken into account on a form 1. His Honour otherwise differentiated between the remaining s 112(2) offences principally on the basis of the amount of property stolen on each occasion. In circumstances where the modus operandi was virtually the same on each occasion, that was appropriate. His Honour indicated sentences of 2 years and 9 months for sequences 13 and 29 (which each involved the theft of large amounts of property); 2 years for sequence 19a (which involved the theft of a medium amount of property); 2 years for sequence 33 (committed whilst on bail); 18 months for sequences 11, 25 and 31 (low range s 112(2) offences); 18 months for disposing of stolen property over the entire period of the offending (which arose out of the same facts as the s 112(2) offences); 12 months for the s 113(2) offence at the Caltex Service Station (which carries a lower maximum penalty) and 12 months for the offence of participating in a criminal group (which has a large measure of overlap with the individual offences).
  3. I agree with those indications. The lower aggregate sentence I propose reflects a slightly greater degree of concurrency than is reflected in the sentence imposed by the sentencing judge. There should also be a finding of special circumstances warranting the same departure from the statutory ratio as was found by the sentencing judge.
  4. The orders I propose are:
  5. The first date on which the applicant will be eligible for parole in accordance with those orders is 16 October 2018.

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