McCALLUM J: A103 seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to four offences of aggravated breaking, entering and stealing contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation in each case was that the offences were committed in company. The maximum penalty for each offence was imprisonment for 20 years. A standard non-parole period of five years applied.
In sentencing the applicant on count 1, the judge was asked to take into account 15 further offences on a Form 1 schedule. The judge sentenced the applicant as follows:
(a) on counts 2 and 3, to a non-parole period of three years commencing on 14 August 2011 and expiring on 13 August 2014 with a balance of term of 2 years expiring on 13 August 2016.
(b) on count 4, to a non-parole period of three years commencing on 14 August 2013 and expiring on 13 August 2016 with a balance of term of 2 years expiring on 13 August 2018.
(c) on count 1 (the count on which the judge took into account the Form 1 matters), to a non-parole period of 4 years commencing on 14 August 2014 and expiring on 13 August 2013 with a balance of term of 3 years expiring on 13 August 2021.
The total sentence was accordingly a non-parole period of 7 years with a balance of term of 3 years.
The applicant was sentenced on the strength of agreed facts. In summary, the four offences on the indictment involved the applicant together with a number of other offenders breaking into licensed premises, usually by smashing or forcing open a door or glass panel. In each case the offenders worked together to remove cigarette machines, automatic teller machines and in one instance a TAB machine. The offences involved the use of stolen vehicles which were subsequently damaged or destroyed. The amount of property stolen was substantial and significant damage was caused.
The offences listed on the schedule to the Form 1 were 8 offences of stealing a motor vehicle, 5 offences of aggravated breaking, entering and stealing, one offence of destroying property by fire and one offence of intimidation.
The same judge sentenced each of the co-offenders.
At the proceedings on sentence, the applicant's representative argued that he should receive a discount of 25% for his pleas of guilty. There had been extensive negotiations in respect of a plea which commenced early during the proceedings in the local court. Following the withdrawal of other "very serious" related charges, the pleas were entered to the 4 counts on the indictment but that did not occur until arraignment in the District Court. The judge took the view that the pleas could not be regarded as having been entered at the earliest opportunity and allowed a discount of about 15%.
The applicant represented himself in the appeal. At the outset of the hearing of the appeal, he provided an affidavit of assistance sworn by a very senior member of the NSW Police Force. It is not appropriate to recount the content of the affidavit. It is enough to observe that, since being sentenced, the applicant has provided important and substantial assistance to authorities. Had that occurred before the proceedings on sentence in the District Court, he would undoubtedly have received a substantial discount on that account. At this stage of the sentencing process, the affidavit is not relevant unless the Court comes to re-exercise the sentencing discretion under s 6(3) of the Criminal Appeal Act 1912 (NSW).
The applicant relies on 7 grounds of appeal. Ground 3 to 7 allege specific errors on the part of the sentencing judge. Ground 1 is that the sentence imposed was manifestly excessive. Ground 2 complains that the sentencing judge failed to impose sentences that were in parity with those imposed on the applicant's co-offenders. I am not persuaded that any of those specific alleged errors has been established. In my view, however, the sentence imposed was manifestly excessive. In that circumstance, it is not necessary to deal with the parity ground. My reasons for reaching those conclusions are as follows.
[2]
Ground 3 - special circumstances
Ground 3 is "the learned sentencing judge erred in making a finding of special circumstances on the basis of partially accumulated sentences but did not give effect to this finding by allowing only a 5% variation to the usual ratio".
The judge said:
When considering the issue of totality I am satisfied that partial accumulation is appropriate to properly reflect the criminality involved. In my view that fact of partial accumulation is also sufficient to make a finding of special circumstances and to the various statutory ratio [sic].
It is clear that the words "to the various statutory ratio" should read "to vary the statutory ratio".
The reference to the statutory ratio is a reference to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, which provides:
The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the Court decides that there are special circumstances for it being more (in which case the Court must make a record of its reasons for that decision).
The judge's remarks should probably be understood to explain the adjustment to the statutory ratio in respect of each individual sentence passed rather than to the ratio of the balance of term to the total non-parole period. That would accord with a literal reading of the section and if that was his Honour's approach it was, with respect, entirely correct.
Even if his Honour intended to express an intention to impose a total sentence in which the balance of term was more than one-third of the total non-parole period, that is the result that was achieved (albeit by a small percentage). Application of the statutory ratio produces a non-parole period which is not less than 75% of the total sentence. In the present case it was 70%. A finding of special circumstances does not create an entitlement to any particular adjustment to the ratio. No error is established by ground 3.
[3]
Ground 4 - remorse
Ground 4 is:
The learned sentencing judge erred in placing no weight on the [applicant's] remorse, indicated by virtue of pleas of guilty and the material contained in the report of the psychologist, Mr Watson-Munro dated 10 September 2012.
Mr Watson-Munro's report was exhibit 1 in the proceedings on sentence. The report included the following statement at page 5:
At examination Mr [A103] expressed considerable remorse for his actions which I believe to be genuine. I say this advisably on the basis of his improved mood state and judgment now that he has detoxified from crystal methylamphetamines.
The judge made extensive reference to the report in his remarks on sentence, including quoting that part of Mr Watson-Munro's opinion. The complaint appears to be that, since his Honour made no further reference to remorse, he did not have regard to that evidence, even though he took the trouble to set it out in his remarks on sentence. Although the judge was not obliged to accept the evidence, he appears to have done so. I do not think error is established by ground 4.
[4]
Ground 5 - role of the applicant
Ground 5 is:
The learned sentencing judge erred by determining the [applicant] was a "major player" in these offences, notwithstanding that one of the co-offenders in his evidence indicated to the contrary.
The judge did make a finding that the applicant was "a major player in the joint criminal enterprise with his co-offenders" (ROS, page 7). A finding in those terms was open on the agreed statement of facts. If one of the co-offenders gave evidence to the contrary at some point, that evidence was not given in the applicant's proceedings on sentence. No error is established by ground 5.
[5]
Ground 6 - coercion
Ground 6 is:
The learned sentencing judge erred by determining the [applicant] "coerced" others to commit the offences.
There is no such finding in the remarks on sentence. This ground appears to be based upon a remark made by the sentencing judge during the proceedings on sentence when considering the issue of parity with one of the co-offenders. The judge said:
I think I might have seen a document which indicates that he [the co-offender] as under a degree of pressure and coercion to commit the offences.
Those remarks do not suggest that the judge was satisfied to the requisite standard that the appellant coerced one of the co-offenders, nor is there any suggestion in the remarks on sentence that his Honour sentenced the applicant on that basis.
No error is established by ground 6.
[6]
Ground 7 - periodic detention.
Ground 7 is:
The learned sentencing judge erred by stating the [applicant] was on periodic detention at the time of the offences, when he was on an intensive correction order. This was a "significant point of difference" in determining the "level of discount".
The reference to a significant point of difference in determining the level of discount in that ground is obscure. It appears to have been intended to be an aspect of the parity argument. The applicant received the longest sentence of any of the co-offenders by a considerable margin. The closest sentence was that imposed on the co-offender, Mr H. In sentencing Mr H to a lesser sentence, the judge noted that there was little difference in their respective criminality (Mr H pleaded guilty to identical offences on the indictment and had 13 matters taken into account on a Form 1). The judge said in respect of Mr H:
However, a difference is clearly in respect of the level of discount that [Mr H] receives as a result of his early plea, and the other significant point of difference is that [the applicant] had committed the various offences whilst he was subject to serving a sentence of periodic detention.
The true position was that the applicant was subject to an intensive correction order (not periodic detention) at the time of the offences. Accordingly, it appears that ground 7 is intended as an elaboration of the parity ground. It does not otherwise appear to assert specific error other than the factual error in the description of the sentence the applicant was serving at the time of the offences. That error was of little moment.
Error is not established by ground 7.
[7]
Ground 1 - manifest excess
Ground 1 is that the sentence imposed was manifestly excessive.
In Markarian v R [2005] HCA 25; (2006) 228 CLR 357 at [25], the High Court explained that, if specific error is not shown, the inquiry for this Court is whether the result embodied in the order is unreasonable or plainly unjust. In support of this ground, the applicant relied upon a table of cases drawn from the Public Defender's sentencing tables. It was submitted that those cases demonstrate a discernible pattern of sentencing for offences of this type involving pleas of guilty and multiple offences. It was further submitted that, considering that pattern, the sentence that ought to have been imposed in the present case would be in the order of "an effective head sentence of about 6 years with a non-parole period of 4 years, reflecting a finding of special circumstances".
Without endorsing a submission of such specificity, my consideration of the cases set out in the schedule has led me to conclude that the sentence imposed upon the applicant was well above the usual range. That of course does not establish error in itself.
My conclusion that the sentence was unreasonable or unjust has been re-enforced by my reading of all of the remarks on sentence in respect of the co-offenders. I am not here considering the parity ground. But, having read each of the remarks on sentence in the order in which those sentences were passed, I have been left with the strong impression that, for the applicant, almost all of the evaluative judgments and discretionary determinations went against him whereas for his co-offenders many issues were determined more favourably.
Having regard to the discount of 15% allowed for the applicant's pleas of guilty, the starting point for the sentence imposed upon him was 11.1 years with a total non-parole period of 8.3 years. Although these were undoubtedly serious property offences, they were committed at night when the relevant premises were closed and did not involve violence against any person. The starting point was, in my respectful opinion, unduly severe.
For those reasons, I am persuaded that the sentencing process miscarried and that it is necessary for this Court to exercise the sentencing discretion afresh.
The most significant consideration in that task is the affidavit of assistance. Having regard to the content of that affidavit, I consider that the applicant is entitled to a combined discount (together with the discount allowed for the plea) of about 40%.
Having regard to the matters recited by the sentencing judge and in the additional evidence before this Court, I would impose an aggregate sentence with a non-parole period of 4 years and a balance of term of 2 years. I would indicate that the sentences I would have imposed if not imposing an aggregate sentence (before the application of the combined discount) would have been in the order of those stated by the sentencing judge, the difference lying in the degree of accumulation.
For those reasons, the orders I propose are:
1. that leave to appeal be granted;
2. that the appeal be allowed;
3. that the sentences passed at first instance be quashed and, in lieu thereof, that the applicant be sentenced to an aggregate term of imprisonment with a non-parole period of 4 years commencing on 14 August 2011 and expiring on 13 August 2015 and a balance of term of 2 years expiring on 13 August 2017.
[8]
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Decision last updated: 10 August 2015