Prison Time Spent Interstate Must be Considered During Sentencing

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By Paul Gregoire and Ugur Nedim

At around 10pm on 28 August 2011, Mr Green and an accomplice broke into the house of Mr Urquhart, the security manager at the Cobar Bowling and Golf Club. The men produced a gun and warned the employee they would “blow him away” if he didn’t answer questions about the club.

After striking Mr Urquhart in the forehead with the firearm, the two men tied him up, took him outside and put him in his own car. The pair were joined by a third accomplice, and the trio then drove Urquhart to the club.

On arrival, the men saw a police vehicle outside the front of the club. They struck Mr Urquhart in the head once more with the gun and asked him further questions relating to club closing procedures.

As the club was closing at around 10:45pm, Mr Green and an accomplice entered the office of the establishment and surprised two female staff members. Brandishing the firearm, the men ordered the women to hand over the cash on the premises, which amounted to $79,303.

The men then drove for a short distance in Mr Urquhart’s car, before setting fire to it. They then entered a hired campervan and drove out of town.

Detained south of the border

A little over two months later, Mr Green and an accomplice planned the armed robbery of a country pub in Victoria on Melbourne Cup Day. However, the police intercepted the pair’s stolen vehicle and arrested the men as they were on their way to commit the crime.

Mr Green was subsequently sentenced to 6 years and 3 months behind bars in a Victorian correctional facility, with a non-parole period of 4 years and 3 months.

The Victorian police investigation resulted in the recovery of some of the items taken during the Cobar club robbery. In December 2011, Green was questioned about the incident in NSW, but he declined to answer questions. On 15 December 2015, NSW police charged him in relation to the crime.

Early guilty pleas

Mr Green entered early guilty pleas in respect of four charges. The first was one count of breaking and entering into a house whilst armed and causing actual bodily harm contrary section 112(3) of the Crimes Act 1900.

This offence carries a maximum penalty of 25 years behind bars and a standard non-parole period (SNPP) of 7 years. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

He also pleaded guilty to one count of detain for advantage with the intention of obtaining a financial reward and causing actual bodily harm contrary to section 86(3) of the Act. The maximum penalty for this offence is 25 years gaol time.

Green also admitted guilt to two counts of armed robbery contrary to section 97(2) of the Crimes Act. An individual convicted of this crime is liable to up to 25 years in a NSW correctional facility.

A question over backdating

Mr Green appeared before Judge Gordon Lerve in Dubbo District Court for sentencing on 31 March last year. The judge was well aware of Green’s Victorian prison sentence and the need to take it into account in regard to totality.

The principle of totality stipulates that when a court sentences an offender for more than one crime, or when they’re already serving an existing sentence for a related offence, the aggregate sentence must be “just and appropriate” when taking into account the overall offending conduct.

In considering the Victorian sentence, the prosecution suggested that the NSW sentence should be backdated to the day that Mr Green was officially charged with the Cobar incident, which would allow for a little under two months concurrency with the Victorian sentence.

Mr Green’s criminal defence lawyer argued that because the authorities in NSW had been aware of the offender’s involvement in the robbery for some time before he was charged – as well as his location – the court should exercise its discretion and commencement date prior to when the charges were laid.

The balance of the sentence

Judge Lerve sentenced Mr Green to 7 years in prison, with a non-parole period of 4 years and 6 months. His Honour adopted the recommendation of the Crown, backdating the sentence to 15 December 2015: the date the offender was charged.

This sentence reflected a 50 percent discount: 25 percent for the utilitarian value of his early guilty pleas and 25 percent for past and future assistance given to authorities.

The sentencing judge took into consideration two ‘special circumstances’ when handing down the sentence. The first was the accumulation of the sentence on the Victorian sentence. The second was the need for an extended period on parole due to the time Green had spent in custody.

The finding of special circumstances allowed the judge to end the non-parole period at an earlier date than statutorily prescribed.

In that regard, section 44 of the Crime (Sentencing Procedures) Act 1999 stipulates that “the balance of the term of the sentence must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more.”

Cross-state sentencing

Mr Green appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 4 April this year. He initially did so on the ground that the judge failed to give effect to the finding of special circumstances.

However, it soon became apparent that the focus should have been the judge’s failure to adequately consider the totality principle, and the grounds were amended accordingly.

NSWCCA Justice Stephen Rothman pointed to the 1988 High Court case Mill v The Queen, which is the authority on how a sentencing judge should approach circumstances where crimes have been committed relatively close in time in different jurisdictions, and an offender has been sentenced in one state already.

The High Court ruled that the proper approach was to consider the likely effect the sentence being imposed would have if the offender had committed all of the crimes in the one jurisdiction, and had been sentenced at the same time.

An error in judgement

Justice Rothman said that in considering both the Victorian and NSW sentences together, Mr Green had been effectively sentenced to 11 years and 1 month imprisonment, with a non-parole period of 2 years and 6 months.

In this case the non-parole period is greater than what is statutorily prescribed, and although there is no prohibition against this, the sentencing judge should have provided his reasons for making such a decision, according to his Honour.

The justice stated that as no reasons were given, as well as the fact that it had been found there was a need for a longer than prescribed parole period, it must be inferred that “the practical effect of the accumulation on the whole of the incarceration period” had not been considered.

“In my view, the sentence imposed does not appropriately take account of the totality principle, Justice Rothman said. “Were it not for that error, I would also conclude that the sentence imposed does not appropriately reflect the special circumstances finding by the sentencing judge.”

A lesser sentence

On 20 July this year, Justice Rothman ordered that the sentence handed down by Judge Lerve be quashed and Mr Green was resentenced to 7 years imprisonment, with a non-parole period of 4 years and 3 months.

The court also backdated the sentence further, so that it began on the 30 October 2014. This was close to 14 months earlier than it originally began, which meant Green was required to remain in prison for a total of 3 years, following the end of the non-parole period of the Victorian sentence.

Justices John Basten and Peter Garling agreed with the orders of Justice Rothman.

Mr Green is a pseudonym. The real name of the offender, along with any other information identifying him, has been suppressed under the provisions of section 8 of the Court Suppression and Non Publication Orders Act 2010.

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