Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Delaney v R; R v Delaney [2013] NSWCCA 150
• Hearing dates: 11 June 2013
• Decision date: 26 June 2013
• Before: Hoeben CJ at CL at [1]; Harrison J at [98]; Beech-Jones J at [99]

Decision

Appellant's appeal against conviction dismissed. Crown's appeal against sentence dismissed.

• Catchwords: CRIMINAL LAW - conviction appeal - demand money with menaces - whether demand has to be made on each occasion for offence to be made out - continuing effect of original demand - whether inclusion of money laundering count was an abuse of process - elements of offences different - substantial overlap in offending conduct - no abuse of process - SENTENCE APPEAL BY CROWN - whether objective criminality of offences determined - whether error in commencement date of sentences - whether a failure to accumulate - whether Crown can rely upon the "parity principle" to increase a sentence - whether offender's role and aggravating features taken into account - whether too much weight given to offender's subjective case - whether sentences individually and as aggregated manifestly inadequate - Crown appeal dismissed.
• Legislation Cited: Copyright Act 1968 - ss135ASB(1) and s135ASC(1); Crimes Act 1900 - s99(1), s99(2), s193B(2); Criminal Appeal Act 1912 - s5D; Criminal Code Act 1995 (Cth) - s400.6(1)
• Cases Cited: Austin v R [1989] HCA 26; 166 CLR 669; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41; Carroll v The Queen [2009] HCA 13; 83 ALJR 579; House v R [1936] HCA 40; 55 CLR 499; Lowe v R [1984] HCA 46; 154 CLR 606; Markarian v R [2005] HCA 25; 228 CLR 357; MH v Regina [2011] NSWCCA 230; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; R v Anderson [2012] NSWCCA 175; R v Collister (1955) 39 Cr App R 100; R v Edwards (1996) 90 A Crim R 510; R v Nguyen [2010] NSWCCA 331; Rae v R (1998) 45 NSWLR 546 at 554; Regina v Robert Brian Grbin [2004] NSWCCA 220
• Category: Principal judgment
• Parties: Darren John Delaney - Appellant; Regina - Crown
• Representation: Counsel: Mr D Barrow - Appellant; Mr R Herps - Crown; Solicitors: SE O'Connor - Legal Aid NSW; S Kavanagh, Solicitor for Public Prosecutions - Crown
• File Number(s): 2010/303962; 2010/303962

Decision under appeal

• Before: Charteris SC DCJ
• File Number(s): 2010/303962

Judgment

1 HOEBEN CJ at CL: There are two proceedings before the Court. The appellant has appealed against his conviction and the Director of Public Prosecutions has appealed against sentence, pursuant to s5D of the Criminal Appeal Act 1912.

2 The appellant was arraigned on an indictment that contained four counts:

Count 1: On 3 May 2010 at Raymond Terrace in the State of New South Wales in the company of other persons with menaces demanded from Neil Metcraft money with intent to steal that property from Neil Metcraft, contrary to s99(2) of the Crimes Act 1900 for which the maximum penalty was imprisonment for 14 years.

Count 2: On 4 May 2010 at Raymond Terrace in the State of New South Wales in the company of another person with menaces demanded from Neil Metcraft money with intent to steal that property from Neil Metcraft contrary to s99(2) of the Crimes Act 1900.

Count 3: On 4 May 2010 at Raymond Terrace in the State of New South Wales did receive proceeds of a crime, being money, in circumstances where he knew the said money was proceeds of crime, contrary to s193B(2) of the Crimes Act 1900 for which the maximum penalty was 15 years imprisonment.

Count 4: On 13 May 2010 at Raymond Terrace in the State of New South Wales did with menaces demand from Neil Metcraft money with intent to steal that property from Neil Metcraft, contrary to s99(1) of the Crimes Act 1900 for which the maximum penalty was 10 years imprisonment.

3 The appellant pleaded not guilty to each count and the trial proceeded by judge alone before his Honour Judge Charteris. On 31 October 2012 his Honour found the appellant guilty on all four counts in the indictment.

4 On 14 December 2012 his Honour sentenced the appellant as follows:

Counts 1, 2 and 3: Imprisonment with a non-parole period of 10 months commencing 1 September 2012 and expiring 30 June 2013, with an additional period of 14 months expiring 31 August 2014.

Count 4: Imprisonment with a non-parole period of 10 months commencing 1 September 2012 and expiring 30 June 2013, with an additional period of 8 months expiring 28 February 2014.

CONVICTION APPEAL

5 The appellant relies upon the following Grounds of Appeal:

Ground 1: The verdicts of the trial judge with respect to Counts 2 and 4 are unreasonable and cannot be supported by the evidence.

Ground 2: The inclusion of count 3 on the indictment was an abuse of process and has resulted in a miscarriage of justice.

Factual background

6 In April or May 2010 the victim opened "Ink Expressions Tattoo" at Raymond Terrace. On 3 May 2010 the appellant, a co-offender Julian Ivory, and a third unknown male from the Rebels Motorcycle Club, attended the newly opened tattoo shop. The appellant told the victim that he had "no right to open a tattoo shop here". The appellant stood just inches from the victim's face and said to him "Do you know who we are? I'm a tattooist. You have opened a shop where I was going to open a shop. You have no right. We can close you down and blow your shop up. You can pay $200 a week. If you don't, we'll run you out of town". The victim said that he saw some type of metal object, a silver or shiny object, in the right sleeve of the right arm of the appellant. The co-offender, Ivory, told the victim that they would call him and he would have to come and meet them (Count 1).

7 No payment was made by the victim on 3 May 2010. On the following day, he received a call from the co-offender, Ivory. He was told to go to the skate park, which he did, taking an envelope containing $200 with him. He was at the skate park for five minutes when he received a call from his wife telling him to go back to the shop. Back at the shop he received a telephone call from Julian Ivory who told him to go to McDonalds at Heatherbrae. The victim drove there and parked in the McDonald's carpark. After three minutes, he saw a Harley Davidson motorcycle arrive with two people on it. The victim recognised the two people as Julian Ivory and the appellant. They were each wearing leather vests with the words "Rebels Motorcycle Club" upon them.

8 The appellant said to the victim "You shouldn't have opened the shop in Raymond Terrace". He pointed to his Rebels Motorcycle Club patch and said "We run this area, we run this town". The victim had no further conversation with the appellant. The victim handed the money to Julian Ivory who told him "Next time put it in an envelope". Julian Ivory nominated an amount of $200 per week and asked the victim what day was suitable to collect the money. The victim nominated Thursdays. The appellant did not speak, he was sitting on the motorcycle about a metre away. The victim wrote down Mr Ivory's telephone number and returned to his shop (counts 2 and 3).

9 The next day, 5 May 2010, the victim spoke to the police at Raymond Terrace.

10 On 13 May 2010 a person arrived at the tattoo shop and said to the victim "Have you got this week's money?" He gave the man $200 which was in an envelope. Five minutes later, someone else arrived. It was a person he had not seen before who said to him "I'm Joe, I'm here to pick up the protection money". At the time the person who had collected the envelope just minutes before was also with him. The victim said to "Joe" (who his Honour was satisfied was Joseph Connell) "I've already paid". Joe said to him "Don't pay him, pay us. He has no right to pick up the money. We'll fix him" (count 4).

11 The victim continued to make weekly payments until September 2010.

Findings by trial judge

12 The primary judge found that the victim gave an honest and accurate account of what had occurred on 3 and 4 May and was a "very reliable witness" on the essential elements of the offences. He rejected the appellant's evidence that he was not one of the three persons who entered the tattoo shop on 3 May 2010.

13 Specifically his Honour found:

"I reject the accused's account of what had occurred on 3 and 4 May 2010. I utilise the evidence of the actions of the victim, as well as of persons said to be members of the Rebels Motorcycle Club who have been identified in evidence. I comfortably find beyond reasonable doubt that Mr Delaney was one of the prime movers and negotiators of the joint criminal enterprise which commenced on 3 May 2010 and continued until the apprehension of Mr Connell and Mr Voss on 7 September 2010. I accept that Mr Connell did tell the victim that he was collecting on behalf of the accused. I am satisfied that although the accused was not in the Raymond Terrace area at certain periods agreed by the parties, there is no evidence whatsoever that this accused withdrew from the joint criminal enterprise that he had negotiated on 3 and 4 May 2010." (Judgment 41)

Ground 1: The verdicts of the trial judge with respect to Counts 2 and 4 are unreasonable and cannot be supported by the evidence.

14 Counts 2 and 4 relied upon the following provision of the Crimes Act 1900:

"99 Demanding property with intent to steal

(1) Whosoever, with menaces, or by force, demands any property from any person, with intent to steal the same, shall be liable to imprisonment for ten years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 14 years.

(3) It is immaterial whether any such menace is of violence or injury by the offender or by any other person."

15 In relation to count 2, the appellant submitted that although the appellant and Mr Ivory were present at the McDonald's carpark on 4 May 2010 and payment was made at that time by the victim of $200 to Mr Ivory, there was no demand or threat made by the appellant or Mr Ivory to the victim on that day.

16 In relation to count 4, the appellant noted that the Crown case was that he did not attend on this occasion (13 May 2010), but that two other members of the Rebels Motorcycle Club, did so. It was the Crown case that the principles of joint criminal enterprise applied and provided a basis for the liability of the appellant. The appellant submitted that there was no evidence of any threats or demands made by the men who attended the victim's shop to collect the payment of $200 on that date.

17 The appellant did not challenge the primary judge's findings with respect to count 1, i.e., that on 3 May he in the company of other persons with menaces demanded money from the victim with intent to steal that money. The appellant submitted, however, that there was no basis in law for the proposition that, on every subsequent occasion that the victim paid money to the appellant, or to some other member of the Rebels Motorcycle Club, a further offence contrary to s99 was committed. This was because on subsequent occasions the appellant was not present and on 4 and 13 May 2010 there were no demands accompanied by menaces. The appellant submitted that the demand accompanied by menaces was made on 3 May 2010 at which time the offence was complete.

18 In support of that proposition, the appellant relied upon Austin v R [1989] HCA 26; 166 CLR 669 at 675 where the Court observed:

"But where the definition of an offence can be construed either to include or to omit the consequences of the offender's act as an element of the offence, the immediacy of the consequences and their subjection to supervening events or actions are material to the construction to be placed upon the definition. Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent." (Emphasis added)

19 The appellant submitted that for further offences, contrary to s99 of the Crimes Act 1900 to occur, further demands with menaces or threats had to be made. He submitted that there was no evidence that this had occurred. The appellant submitted that the only occasion when all of the elements of an offence, contrary to s99 had been made out, was 3 May 2010. The appellant accepted that the regular receipt of money from the victim consequent upon the conduct on 3 May 2010 may have constituted discrete criminal offences, e.g. receiving the proceeds of crime pursuant to s193B of the Crimes Act 1900, but they did not constitute offences contrary to s99.

20 This ground of appeal should be rejected. In support of the ground the appellant relied upon the analysis of Wood CJ at CL (with whom Beazley JA and Dunford J agreed) in Rae v R (1998) 45 NSWLR 546 at 554. Contrary to the submission by the appellant, I regard that case as supporting the position adopted by the Crown at trial, i.e., that a specific threat does not have to be articulated if the circumstances of the case make it clear that a threat exists. The facts in Rae involved a telephone call advising that a bomb had been placed in a Woolworths store. The particular offence under consideration was "use of a telecommunication service ... to menace". In Rae there was no threat other than the communication of the fact that a bomb had been placed in the Woolworths store.

21 In those circumstances, Wood CJ at CL said:

"I am of the view that, within the ordinary usage of language, the use of a telephone service to communicate advice of this nature constitutes a use of that service to menace the intended recipient or recipients of that message.

I am not persuaded that the objective test favoured by Hidden J in

L J Holland is inappropriate. It accords with ordinary usage; indeed it is difficult to conceive of anything more likely to engender fear of serious physical injury than a bomb call. Inevitably such a call leads to the immediate evacuation of the building or area believed to be affected. Often it occasions panic, because the consequences of a bomb exploding in areas occupied by

civilians are well-known.

I do not consider it necessary that the call convey the threat that actual physical harm will occur to any particular person or persons, although in this case that would have been a probable consequence if a bomb did exist that was not found before it exploded.

It is my view that if a person of normal stability and courage, in the place of the intended recipient, might be made apprehensive as to his safety or well- being, by a message conveyed by the use of a telephone service, then the service can properly be held to have been used for the offending purpose."

22 A similar situation arose in R v Collister (1955) 39 Cr App R 100. The offenders in that case were young police officers of the Metropolitan Police Force. The victim gave evidence that on a particular evening he was approached by Collister who told him that he was on leave from the merchant navy and that he was broke. The victim suggested that Collister should come back to his hotel for the purpose of arranging the night's lodging. As they were walking towards the hotel, Collister produced a police warrant and said "I'm going to arrest you on a charge of importuning". They were then joined by the co-offender, who was introduced as a police sergeant. Collister said, "This man invited me to come to his hotel. I'm satisfied that he is importuning". The victim protested against this suggestion but he was told "this is going to look very bad for you". The victim had the impression that both men were endeavouring to obtain money from him. Because he had little money on him at the time, he suggested that they meet the following night at 7pm.

23 The victim reported the matter to the police and acting on their instructions, kept the appointment with the offenders the following evening. When they met, one of the offenders asked him if he had brought anything with him and the victim handed over five pounds. The offenders were then arrested.

24 The offenders were charged with demanding money by menaces. One of the grounds of appeal was that neither a demand nor a menace had been proved by the prosecution. The Court held that on such a charge an actual explicit demand, either express or by unequivocal gesture, was not an essential ingredient of the offence nor need the menaces be expressed. The Court held that in circumstances where there had been no such express demand or threat, if the demeanour of the offender and the circumstances of the case were such that an ordinary reasonable person would understand a demand for money was being made and that demand was accompanied by menaces, whether direct or veiled, so that the balance of an ordinary mind would be likely to be upset, the elements of the offence were established.

25 In this case the demands of 3 May were clear, as was the threat. The contrary has not been submitted. The subsequent telephone call and communications on 4 May made it clear that the threat communicated on 3 May was continuing, and it was in those circumstances that the victim handed over the $200. Just as in Collister, the Crown did not have to prove an express demand with menaces on 4 May. The circumstances of the meeting on 4 May are to be looked at in the context of the appellant's attendance at the victim's premises the day before. Those circumstances were such that an ordinary reasonable person would understand that the demand for money was being made on 4 May and that the consequences of not paying that money were those which had been communicated on 3 May.

26 With respect to count 4, it was Mr Connell who attended with Mr Voss on 13 May. The opening comment of the other man "Have you got this week's money" and the comment by Mr Connell "I'm Joe, I'm here to pick up the protection money" were clear demands for the $200 amount specified on 3 May. When learning that the money had been paid to another person, the further comment of "Don't pay him, pay us" operated as a reinforcement of whom the recipients would be of the $200 with the implied consequences for disobedience being those communicated to the victim on 3 May.

27 In the context of what had occurred on 3 May with the demand for $200 and the specification of the consequences for not paying, the circumstances of the meeting on 13 May were such that an ordinary person would understand that the demand for $200 was being made and that the failure to make the payment would produce the consequences previously communicated.

28 The quotation from Austin does not assist the appellant. The issue in Austin was that for the offence to be made out, there was no need for there to be an actual payment. The offence was complete when the demand had been made. The Court held at [12] that it was appropriate to regard the offence of demanding money with menaces or threats as complete where the demand had been made in circumstances apt to achieve its communication to the person to whom it was directed and with the necessary intent. It was not necessary to regard actual communication as a necessary part of the offence.

29 It is significant that the appellant was unable to identify any authority directly in point to support the submission in Ground 1.

30 This ground of appeal has not been made out.

Ground 2: The inclusion of count 3 on the indictment was an abuse of process and has resulted in a miscarriage of justice.

31 The charge in count 3 was brought pursuant to s193B(2) of the Crimes Act 1900. That section relevantly provided:

"193B Money Laundering

...

(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence. "

32 The appellant submitted that the facts relied upon by the Crown in relation to count 3 were the same as those relied on with respect to count 2.

33 In support of that submission, the appellant relied upon Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463. There the Court (McClellan CJ at CL; Howie and Rothman JJ) considered a circumstance where an offender had been charged with offences contrary to s135ASB(1) and s135ASC(1) of the Copyright Act 1968 concerning the sale of and offering to sell unauthorised television decoders. He was also charged under s400.6(1) of the Commonwealth Criminal Code Act 1995 with an offence of dealing with the proceeds of crime. For every offence contrary to the Copyright Act where a sale was made, the offender was also charged with an offence under s400.6(1) of the Code.

34 The Court considered the use of s400.6(1) to be an abuse of process in those circumstances:

"14 In Thorn v R [2009] NSWCCA 294 this Court raised concerns about the use of the section in the circumstances of a person who was engaged in taxation fraud. As well as being charged with the actual fraudulent conduct, he was also charged with an offence involving dealing with the money obtained by the frauds. In that case the activity was merely accessing the funds that he had derived from the frauds. The sentencing judge in that case failed to appreciate the nature of the criminal activity involved in what was called "the money laundering offence" and sentenced the applicant to an excessive sentence for that offence. As in the case now before the Court, the offence to a certain extent concerned the profits of the applicant's own criminality and resulted in a miscarriage of justice. However, unlike the present case, there was some justification for the money laundering offence because it captured criminality of the applicant's co-offender, who had never been charged and yet was involved in a joint criminal enterprise with the applicant.

15 In Thorn Howie J, who delivered the principal judgment of the Court, stated at [27]:

"This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained. Further the money laundering charge was used to punish the applicant for his criminality arising from his partner's fraudulent conduct. As was noted earlier, there is no concept of a joint criminal enterprise under the Code, so the applicant could not be charged with his partner's fraudulent activity even though it was common activity of them both."

16 In the present case we can see no justification whatever for the applicant being charged with the Code offence. In relation to the 50 decoders the criminality was in the sale as a result of which the owners of the services were deprived of their financial entitlement to rental charges for their use. The concept of a "sale" necessarily involves the seller obtaining some financial gain from the transaction. The receipt of the money was merely an element of the offence under s135ASB(1).

17 We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty. We do not believe that there is anything in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 that conflicts with the view that we have taken as to the inappropriateness of the prosecution of the Code offence as well as the decoder offence; see particularly at [31]. We believe that in the circumstances of this case it was oppressive to charge the applicant with both the sale of the decoders and the receipt of the money as a result of the sale. That is because in our view the offence of sale encompassed the criminality of possessing the proceeds of the sale."

35 The appellant submitted that on the facts of this case, there was no proper basis for count 3. He submitted that the receipt of the money, as a result of the alleged commission of a further s99(2) offence (count 2) did not result in a separate act of criminality that warranted a separate charge and a separate penalty. He submitted that even if it were open to the Crown to charge him with a s99 Crimes Act offence for the events of 4 May 2010, it was an abuse of process to also prosecute him for a breach of s193B(2) on the same facts.

36 The simple answer to this ground of appeal is that the elements of offences contrary to s99(2) and s193B(2) of the Crimes Act are different. Neither offence is wholly included in the other. Each of the offences requires proof of a fact which the other did not. In the case of the s99(2) offence, there is the element of the demand with menaces, and in the s193B(2) offence there is the dealing with the proceeds of crime.

37 This issue was dealt with in Pearce. There the offences under consideration involved conduct contrary to sections 33 and 110 of the Crimes Act 1900 (NSW). Section 33 referred to maliciously inflicting grievous bodily harm with intent to do so and s110 referred to breaking and entering a dwelling house and while therein inflicting grievous bodily harm. The appellant in Pearce had been convicted of both offences which had arisen out of a single episode. In relation to whether the bringing of those two counts constituted an abuse of process, the plurality (McHugh, Hayne and Callinan JJ) said:

"7 The elements of the offences charged against the appellant overlap but they are not identical. The offence under s33 requires a specific intent to do grievous bodily harm; the offence under s110 does not. The latter section requires only an intention to do the acts that caused the harm. The offence under s110 requires a breaking and entering; the offence under s33 does not. Did charging both offences subject the appellant to double jeopardy?

...

31 There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose. To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately."

38 This is sufficient to deal with the ground of appeal. There are, however, other consequences which flow from the overlap between the offending in counts 2 and 3 when sentencing is considered.

39 This ground of appeal has not been made out.

CROWN SENTENCE APPEAL

40 The factual background to the offending has already been set out.

41 In his remarks on sentence, the primary judge took into account the appellant's subjective circumstances. He was born in November 1964 and was aged 48 at the time of sentencing. He was born in Sydney, the middle child of a family of three. When he was aged 10 his parents split up. He described his father as "scary" and said that he was abusive to everyone. He remained with his mother at the time of separation. She commenced a new relationship with a person named "John" whom the appellant described as being cruel and physically abusive to him. That abuse included him being thrown against a wall. At the age of 11, he was ordered out of the home. Shortly after, he joined Ashtons Circus. His mother eventually left "John", but the appellant has had little contact with her. He said that his biological father is now retired and he sees him from time to time.

42 The appellant commenced working as a tattoo artist at the age of 11. At the age of 19 he opened his own shop in Newcastle. He closed the tattoo shop when he was given the sole custody of his two daughters. This occurred approximately 7 years ago. At the time his daughters were aged 8 weeks and 12 months. His personal relationship history has been dysfunctional and the two partnerships he has had have both broken down.

43 In relation to his criminal record, the primary judge noted that "it was not a bad one". There had been some convictions when he was aged 20, but thereafter there had been no convictions until a low-range PCA offence in 2002. In June 2005 he was charged with assault occasioning actual bodily harm and was sentenced to 80 hours community service.

44 His criminal record was complicated by the fact that in May 2010 he was charged with assault occasioning actual bodily harm in company. That related to an incident which occurred after these offences, but which was related to them. The circumstances were that a Mr Stolzenberg (who was the person who had "impermissibly" demanded $200 from the victim on 13 May), was severely beaten by Mr Ivory as punishment for that action. The appellant was present but did not actively participate. He was sentenced by Judge Frearson to 128 days in prison. That sentence had expired by the time the appellant was sentenced for these offences.

45 The appellant did not give evidence in the sentencing proceedings, but had given evidence at trial. A psychologist's report was tendered on his behalf. By reference to the appellant's evidence at trial, and the contents of that report, his Honour concluded that the appellant was a loving father to his two daughters and that he had fully honoured his responsibilities to them as a father. The appellant had seen the psychologist, Ms Robilliard, on three occasions, at the commencement of trial, after verdict and while in prison. She had observed that the appellant had become very depressed, particularly at the prospect of not being able to care and provide for his two young daughters. They are now aged 6 and 7.

46 The psychologist recorded her observations of the appellant interacting with his daughters and his Honour accepted that evidence. She observed that he treated the children appropriately and affectionately. She was particularly impressed by the politeness of the children. His Honour accepted that the appellant was genuinely worried about the welfare of the children who were now living with their mother.

47 The psychologist recorded how the appellant had become a member of the Rebels Motorcycle Club. This had occurred almost inadvertently because much of his tattoo work was done for club members. They had not paid for the tattoo work. At the time of the offending, he had been a member of the club for a couple of years.

48 His Honour accepted the conclusions of the psychologist, which were that the appellant genuinely regretted his involvement with the Rebels Motorcycle Club. He had a long history of a complex post traumatic stress disorder from his childhood. She concluded that a psychiatric assessment would be of benefit to him. She thought that now that he had left the Rebels Motorcycle Club his chances of re-offending were significantly reduced.

49 His Honour noted in relation to the seriousness of the charges that although only $400 had been extorted from the victim the evidence satisfied him that other club members had continued to take "protection money" from the victim. While his Honour accepted that the appellant was not linked to that conduct, he noted that after the extortion had commenced, others chose to take advantage of it. Nevertheless, his Honour was mindful that he must only punish the appellant for the conduct reflected in the indictment and not for what other persons did after 13 May 2012.

50 His Honour found special circumstances; being the need for rehabilitation and the care required by his two daughters. His Honour was not prepared to find exceptional circumstances in relation to the care of the children. His Honour was, however, concerned that the current arrangements for the children were not particularly satisfactory. His Honour noted that he had seen their mother give evidence and was concerned that she might be somewhat unreliable, if not unstable, on occasions. In that regard, the mother had had nine children and in recent times had experienced periods of homelessness. She was already looking after two other children.

51 His Honour found that the motivation for the offending was financial gain, although in that regard, under the club rules, the appellant was subservient to Mr Ivory.

52 His Honour concluded that in respect of counts 1, 2 and 3 a sentence of 2 years was appropriate. He considered that this sentence should be served concurrently since the conduct took place over three separate days, over a period of 10 days between 3 and 13 May. In reaching that conclusion he took into account the maximum penalty, the length of time the conduct took place and the appellant's role in it.

53 In fixing a minimum term of 10 months, his Honour was particularly concerned with the welfare of the appellant's children. He selected 1 September 2012 as the commencement date of the sentence. He did so because the appellant had been on bail for 2 years and reported to police every day, i.e. in excess of 700 occasions. His Honour noted that while this could never amount to fulltime custody, it did involve a significant restriction on the appellant's liberty.

54 His Honour also had regard to considerations of parity, particularly in relation to Mr Ivory, who had been more significantly involved in the offending but who had received a comparatively light sentence.

Ground 1: His Honour failed to determine the objective criminality of the offences.

55 The Crown submitted that this was a fundamental part of the sentencing process which his Honour had failed to carry out. The Crown submitted that the offending was a serious example of criminality of this kind because it was premeditated, ongoing and seriously undermined the civil rights of the victim.

56 While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.

57 It is well established that a sentencing judge's characterisation of the degree of objective seriousness of an offence is an evaluative judgment with which the Court will not interfere unless the finding was not open. The sentencing judge here had the benefit of hearing all of the evidence at the trial and seeing the appellant give evidence. While it is true that his Honour gave considerable weight to the appellant's subjective case, this was an approach well open to him, given the somewhat unusual circumstances of this case.

58 This ground of appeal has not been made out.

Ground 2: The dating of the sentences.

Ground 3: His Honour's failure to accumulate.

Ground 4: His Honour did not have regard to "matters of parity".

Ground 5: His Honour's failure to have regard to the respondent's role.

Ground 6: His Honour's failure to have regard to the aggravating features.

Ground 7: The weight his Honour afforded to the respondent's subjective case has impermissibly ameliorated the appropriate sentence.

Ground 8: His Honour's failure to acknowledge the significance of general deterrence.

Ground 9: The sentences are individually and as aggregated manifestly inadequate.

59 It is convenient to deal with all of these grounds of appeal together, since they essentially raise the same issue, i.e. manifest inadequacy by reference to the particular factors set out in the Grounds of Appeal.

Ground 2:

60 The commencement date for a sentence has always been a matter of discretion for the sentencing judge. If appropriate reasons have been given, it is necessary for a party challenging that decision to identify a House v R [1936] HCA 40; 55 CLR 499 error if the challenge is to be successful.

61 In fixing the commencement date at 1 September 2012, his Honour had regard to the appellant's bail conditions with which he had complied for over two years. His Honour also had regard to the period of imprisonment imposed by Frearson DCJ which commenced 2 August 2012 and concluded 7 December 2012. The offence, for which he was sentenced by Frearson DCJ, while different to these offences, was directly related to them.

62 These were matters which his Honour could properly take into account (R v Anderson [2012] NSWCCA 175 at [41] - [45]). Accordingly, the Crown has failed to establish that his Honour's exercise of discretion miscarried in this respect.

Ground 3:

63 The Crown submitted that because four offences were involved, there should have been some accumulation of sentences and his Honour's failure to do so constituted error. In support of that proposition, the Crown relied upon the statement of principle by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

"27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

64 The statement of principle by Howie J in Cahyadi does not support the Crown submission. There was a considerable overlap in relation to all four offences. Counts 2 - 4 were inextricably linked to count 1. The offences can be readily characterised as a course of conduct. They were committed within a short period of time, had a number of common features and were a consequence of the first offence. The appellant was not present when count 4 occurred.

65 Significantly, the Crown made no submission during the sentencing proceedings to the effect that his Honour was bound to accumulate or that he would fall into error by imposing concurrent sentences. Moreover, Robison DCJ imposed concurrent sentences when sentencing Mr Ivory for the same offences on 3 May 2010 and on 4 May 2010.

66 There is an added difficulty which was not raised by either party in submissions but needs to be kept in mind. In Pearce the plurality said 623:

"40 To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

67 As indicated, there was a substantial overlap in relation to all of the offences. It was the appellant's initial participation in the demand with menaces which was an element in all of the subsequent offences. This is particularly so in relation to count 3. In the somewhat unusual circumstances of this case, I am not persuaded that error of the kind contended for by the Crown has been made out.

Ground 4:

68 The Crown submitted that by reference to the sentence imposed on Mr Ivory by Robison DCJ, it was clear that the appellant's sentence was out of proportion and inadequate in that the punishment for the same offending was not equal. The Crown submitted that as a result the parity principle had been offended.

69 This submission is misconceived. The parity principle is one of amelioration designed to benefit offenders. It was not developed as a means by which the Crown could have sentences increased. It is for this reason that seminal cases such as Lowe v R [1984] HCA 46; 154 CLR 606 express the parity principle as follows:

"3 ... It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. ..." (Gibbs CJ at 610, see also Mason J at 612, Wilson J at 616 and Dawson J at 623.)

70 In any event, the submission does not accurately reflect the basis upon which Mr Ivory was sentenced. The most serious charge to which he pleaded was wounding with intent to cause grievous bodily harm. That charge related to the beating which he gave to Mr Stolzenberg. The sentence imposed by Robison DCJ in respect of the two counts of demand money with menaces was almost entirely concurrent with the sentence for the more serious offence. The effective period, which Mr Ivory was required to serve for the offences committed with the respondent, was 3 months.

71 This ground has not been made out.

Ground 5:

72 The Crown submitted that there was an unresolved conflict between the finding by his Honour in his conviction judgment that the appellant was "one of the prime movers and negotiators of the joint criminal enterprise that commenced on 3 May" and the finding in the remarks on sentence:

"I accept the club rules were that, as a member of the club, Mr Delaney was subservient to Mr Julian Ivory. Mr Ivory's conduct with Mr Metcalf confirmed that." (ROS 19)

73 The conflict in those findings is more apparent than real. The fact that the appellant played a significant role with Mr Ivory in the events of 3 May is not inconsistent with him acting under the direction of Mr Ivory at the time, and within the club structure being in a subservient position to Mr Ivory.

74 What is important is that after 3 May, the appellant played little or no part in the offending. Put at its highest, his remarks to the victim on 4 May can be seen as reinforcing the statements made on 3 May, but they did not constitute fresh threats.

75 This ground needs to be considered against his Honour's finding in the remarks on sentence that the appellant had "comparatively recently joined the Rebels Motorcycle Group and was very recently made a full member" and that the co-offender, Mr Ivory, was the sergeant-at-arms for the Newcastle Chapter of the Rebels Motorcycle Club with responsibility for discipline (ROS 3).

76 This ground has not been made out.

Ground 6:

77 The Crown submitted that his Honour referred in passing to aggravating features without specifically taking them into account and without giving any real consideration to how those aggravating features impacted on the seriousness of the offending.

78 The only aggravating feature identified by the sentencing judge and by the Crown to support that submission was his Honour's finding that the demand by the appellant and his co-offenders was part of "organised criminal behaviour". His Honour also found that "his membership of the club has resulted in his engaging in the serious criminal activity of extortion" (ROS 18). His Honour clearly identified this aggravating feature of the offending and it is implicit in his Honour's reference to that factor, that he took it into account when sentencing. This ground has not been made out.

Ground 7:

79 The Crown submitted that his children's circumstances did not amount to "exceptional circumstances" as required by such cases as R v Edwards (1996) 90 A Crim R 510 at 516. The Crown submitted that even allowing for the need for rehabilitation, the ratio between the non-parole period and the head sentence was excessively lenient (i.e. 45 percent) which was indicative of error.

80 The appellant's need for rehabilitation was conceded by the Crown in the sentence proceedings. His Honour rejected the appellant's submission that the situation relating to his daughters amounted to exceptional circumstances. Despite the undoubted hardship to be experienced by the children, his Honour determined that a custodial sentence was necessary.

81 His Honour's rejection of the appellant's submission as to exceptional circumstances did not prevent his Honour determining that the welfare of the appellant's children remained an important factor which could be taken into account as part of his subjective case. It did not prevent his Honour expressing reservations about the capacity of their mother to adequately look after them. While these matters did not amount to "exceptional circumstances", they were matters which his Honour could take into account when determining whether special circumstances existed which would affect the length of the non-parole period.

82 This much was expressly conceded by the Crown in the sentence proceedings, when the Crown said:

"The Crown does not say that it is not a proper matter for your Honour to have regard to in the mix of the matters your Honour would consider ..." (T.16.20)

"... The overall sentence that your Honour imposes may very well reflect the objective seriousness of the offence and those matters that your Honour indicates plus other subjective material may be had regard to in determining the non-parole period ..." (T.16.35)

83 The approach by his Honour was similar to that approved by Dunford J in Regina v Robert Brian Grbin [2004] NSWCCA 220 at [28] - [34]. At [33] Dunford J said:

"33 As I say in this case I consider that the son's condition, and the need for his father's assistance in his supervision and management constituted an exceptional circumstance such as to justify a finding of special circumstances and a reduction in what would otherwise have been the non-parole period."

84 This ground has not been made out.

Ground 8:

85 The Crown submitted that nowhere in his remarks on sentence did his Honour refer to the purposes of sentencing and in particular, the significance of general deterrence. The Crown submitted that the extortion of money from a legitimate business by a predatory group required that general deterrence be an important factor in sentencing. The Crown submitted that this was the type of crime which required denunciation. The Crown submitted that his Honour's failure to refer to general deterrence might indicate that his Honour did not take it into account.

86 While it is true that his Honour made no express reference to any of the purposes of sentencing in his remarks, it is also true that his overall approach made it clear that he had those principles in mind. A similar complaint was rejected by this Court in R v Nguyen [2010] NSWCCA 331 (Simpson, Hall and Garling JJ) where the Court said:

"43 Two principal points were made on behalf of the CDPP. One can be disposed of quickly. It was that, there being no mention in the Remarks on Sentence of the need for the sentences to recognise principles of general deterrence (one of the factors explicitly contained in s16A(2)), it may be inferred that that consideration had been overlooked or given inadequate weight.

44 I would reject that contention. The issue of general deterrence is fundamental to any sentencing decision, and is known to be of particular importance in offences involving drugs. I would not infer that this was overlooked. Rather, I would infer that, by reason of its very primacy, it called for no express statement (although, I would add, it would generally be wise at least to record that it has been taken into account)."

87 It is apparent from the contents of the remarks on sentence that his Honour was fully cognisant of the issues which the case presented. It was the need for general deterrence and denunciation that made this a case where a fulltime sentence of imprisonment had to be imposed. His Honour plainly recognised this by immediately refusing the respondent bail upon conviction even in the knowledge that this was going to immediately separate the appellant's daughters from their sole carer.

88 This ground of appeal has not been made out.

Ground 9:

89 The Crown accepted that in order to make good this ground, it had to be demonstrated that the sentences were manifestly inadequate in the well recognised sense that they were unreasonable or plainly unjust (Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371 [25]; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8] - [9]).

90 The Crown also recognised that absent error, this Court should not substitute its own opinion for that of the sentencing judge merely because (if it be the case) the Court would have exercised its discretion differently.

91 The Crown submitted that the relevant test was satisfied because in relation to the events of 3 May 2010, the appellant was the principal speaker. The same was true of the second count. Thus by the time of the offence in the fourth count the pattern had been established for the extortion of money from the victim. The Crown submitted that the circumstances of the offences were such that they constituted serious examples of offences of this kind, so that not only the sentences themselves, but their structure, demonstrated error in accordance with the principles in House v R.

92 The sentencing of the appellant was not an easy exercise. He was convicted of engaging in serious criminal conduct on three occasions over a period of 10 days. He had participated with others in an act of extortion, upon a man trying to establish a legitimate business. Nevertheless, the amount of money was limited, there was no violence and the circumstances relating counts 3 and 4 strongly pointed to the sentences for those counts at the very least being substantially, if not fully concurrent with the sentences for counts 1 and 2. Although four separate offences were involved, there was a substantial overlap in the offending.

93 Apart from the objective seriousness of the offending there were other features of the case that required consideration. By the time of sentence, the appellant was 45 years of age. Until 2010 he had offended rarely and had not been sentenced to fulltime custody. He had experienced a dreadful childhood that had resulted in him suffering post traumatic stress disorder. It was the opinion of the psychologist that he was suffering severe depression, largely as a consequence of his concern for the welfare of his children.

94 A significant factor in his subjective case was that he was the sole carer for his two young children and had been in that role since they were infants. The evidence was overwhelmingly to the effect that he was a committed and capable parent. For the period of his imprisonment, the children would be without him and would be in the care of their mother who might not have been able to properly care for them.

95 In a number of recent decisions (Muldrock v The Queen [2011] HCA 39; 244 CLR 120), the importance of a sentencing court taking all relevant matters into account and by a process of intuitive synthesis arriving at an appropriate sentence has been emphasised. In this case, his Honour concluded that no lesser a sentence than fulltime imprisonment was warranted, but also concluded that concurrent sentences were appropriate and that the non-parole period should be adjusted to reflect the particular circumstances of the case.

96 This was an approach well open to his Honour. I am not persuaded that in all the circumstances the sentences imposed were manifestly inadequate. This ground of appeal should be dismissed.

Conclusion

97 The orders which I propose are:

(1) I would dismiss the appellant's appeal against conviction.

(2) I would dismiss the Crown's appeal against sentence.

98 HARRISON J: I agree with Hoeben CJ at CL.

99 BEECH-JONES J: I agree with Hoeben CJ at CL.

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Decision last updated: 26 June 2013