Aldridge v R [2014] ACTCA 34

Court of Appeal (ACT)|2014-08-04|Before: Murrell CJ, Ross J and Walmsley AJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Fusimalohi v The Queen [2012] ACTCA 49

1. I agree with the decision and reasons of Ross J.

2. On 15 October 2013, Nield AJ sentenced Edward Graham Aldridge to two years and eight months' imprisonment for one count of burglary and two counts of theft. At the time of committing the offences, the offender was serving a suspended sentence for other theft and burglary offences and was on bail for a theft offence.

3. His Honour imposed the suspended sentence and, after orders for partial concurrency, the total head sentence imposed was three years and three months, with a nonparole period of two years and three months. Reparation was also ordered to be paid in the sum of $2265. This is an appeal by Mr Aldridge against the sentence imposed by his Honour. The sole ground of appeal is that the sentence was manifestly excessive.

4. Briefly stated, the facts are that on 18 May 2012 the appellant burgled a home in the late afternoon while the occupants were out. Entry was gained by opening a flyscreen that covered an open bedroom window. The appellant stole cigarettes valued at $40 and electrical items valued at $2225. The appellant left before the occupants returned home and was identified by fingerprints left at the point of entry.

5. I will deal first with his Honour's decision before turning to the appellant's submissions. The appellant appeared before his Honour for sentence on 15 October 2013. The Crown tendered a presentence report and a Court Alcohol and Drug Assessment Service report. No evidence was tendered on behalf of the appellant. His Honour referred to the procedural history before turning to the circumstances of the offending, observing that such offences caused the homeowner to experience a sense of violation and must be treated seriously.

6. At the time of the sentence, the appellant was subject to a suspended sentence order and a good behaviour order. The appellant was also subject to bail in relation to a theft committed on 9 November 2011. His Honour found that the commission of these offences in breach of bail and a good behaviour order was a seriously aggravating factor. His Honour referred to the appellant's criminal record, particularly for offences of theft, and went on to refer to matters in the presentence report, including the appellant's addiction to prohibited drugs.

7. His Honour then referred to the appellant's guilty pleas. The pleas were not entered at the earliest opportunity, and his Honour found that they were not indicative of remorse, but had some utilitarian value. The sentences imposed were discounted by 10 per cent on account of these pleas. His Honour dealt with the appellant's prospects for rehabilitation at [28] of his sentencing reasons noting, among other things, that he was unable to say that the offender had good prospects for rehabilitation, but accepting that that was not to say that he could not act towards changing his lifestyle as he is relatively young and is not beyond redemption. His Honour went on to observe that the appellant's criminal history shows repeated failures to comply with court orders, leading him to conclude that he suspected that the appellant would continue to offend until he realises that repeat offending will result in ever increasing sentences of imprisonment.

8. I now turn to the proposition that the sentence imposed was manifestly excessive, dealing firstly with the head sentence. Nield AJ sentenced the appellant to two years and eight months' imprisonment for the burglary offence and to 16 months' imprisonment for each of the theft counts. The sentences for the two counts of theft were ordered to be served concurrently with the sentence imposed for the burglary offence.

9. At the time of the offending, the maximum penalty for burglary was 14 years' imprisonment; the maximum penalty for theft was 10 years' imprisonment. After imposing the suspended sentence, one year two months and 27 days, and ordering partial concurrency, the head sentence imposed was three years and three months. As I understand it, the appeal is directed at the sentence of two years and eight months' imprisonment imposed in relation to the burglary offence. I say that because in the proceedings at first instance neither counsel took issue with the course proposed in relation to the suspended sentence.

10. Turning to the burglary offence, the fact that the offence involved the burglary of residential premises is of some significance, as such offences are usually treated as being more serious than burglaries of commercial premises. In a judgment in Fusimalohi,[1] Refshauge J considered the current sentencing practices in relation to the offence of burglary. His Honour noted that sentences of burglary of residential premises in this jurisdiction are generally within the range of imprisonment for more than one year to two years and six months. His Honour also noted that, of course, more lenient or more severe sentences can be and have been imposed where the circumstances justify it.

11. In seeking consistency, sentencing judges have regard to what is done in other cases. Past sentences provide guidance to sentencing judges and stand as a yardstick against which to examine a proposed sentence. But while history of sentencing can establish a range of sentences that have, in fact, been imposed, that history does not establish that the range is the correct range, or that the upper and lower limits of the range are the correct upper or lower limits.

12. In this case, the offences were committed in breach of bail and a good behaviour order. The appellant at first instance demonstrated no remorse or insight into his offending and his prospects for rehabilitation were assessed as not being good. In such circumstances, the sentence imposed for the burglary, while stern, was not manifestly excessive.

13. I will now turn to the nonparole period that was imposed. In relation to nonparole periods, sentencing judges have a wide discretion in setting the period. While there must be an appropriate relationship between the head sentence and the nonparole period, what constitutes an appropriate relationship depends on the circumstances of the particular case. Nonparole periods are not assessed mathematically by reference to some norm or usual ratio to the head sentence.

14. In fixing a nonparole period, a sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence, but the weight attached to these factors and the way in which they are relevant will differ. Generally speaking, an offender's prospects of rehabilitation will be given significant weight in the determination of a nonparole period. In support of the contention that the nonparole period in this case was manifestly excessive, the appellant submitted that, in essence, the sentencing judge was mistaken in his assessment of the appellant's rehabilitation prospects. It will be recalled that his Honour had found that the offender - that he was unable to say that the offender had good prospects for his rehabilitation.

15. Contrary to the appellant's submissions, the material that was before his Honour supported the observation he made about the appellant's prospects for rehabilitation at that time. The presentence report contained the following statement:

Mr Aldridge acknowledged his lack of motivation in the past and stated that since then he feels he has matured a lot and he is eager to maintain abstinence and "Willing to do anything I have to. I'd rather be home with my kids. I want a proper life now."

16. While this statement may be said to support the appellant's submissions as to the prospects for rehabilitation, it must be assessed in context. The presentence report also states that:

While in custody the appellant has maintained or has displayed motivation to address his substance abuse issues, but once in the community his motivation has been less than positive and he has historically displayed little interest in drug-related interventions in the past.

17. The report notes that the appellant failed to make contact with ACT Health's Alcohol Drug Program for counselling, as directed, while he was subject to a supervised good behaviour order in 2012 and 2014. The presentence report also states:

Mr Aldridge has a long history with this service, with numerous breach actions being undertaken, including his periodic detention order cancelled in 2008 and 2009, resulting in fulltime detention.

18. The CADAS assessment report provided to his Honour is also relevant. It states:

Mr Aldridge reflected an awareness of potential difficulties and triggers for his substance abuse. He acknowledged that his capacity to sustain abstinence from alcohol and other drugs is very good when he is in custody and poor when he is in the community.

19. I am satisfied that his Honour's assessment of the appellant's prospects for rehabilitation was reasonably open to him on the material before him in the first instance proceedings. In support of the submission that the nonparole period was manifestly excessive and that his Honour erred in his assessment of his rehabilitation prospects, the appellant also referred to a number of courses he has completed while he has been in custody, the efforts he has taken to address his drug and alcohol dependence and the number of jobs he has held while in custody.

20. Mr Aldridge also read a letter to the court detailing the steps he has taken while in custody to change his life and turn it around. Mr Aldridge also spoke of his difficult background and desire to change and spend more time with his young family. The appellant is to be commended for undertaking these steps as part of his rehabilitation and for his efforts to change the course of his life. But these matters are not relevant to the determination of the appeal.

21. The matters referred to by the appellant relate to actions he has taken while in custody, after he was sentenced by Nield AJ. Such matters cannot be relied on to demonstrate that the sentence imposed was manifestly excessive, or that his Honour erred in his assessment of the appellant's prospects for rehabilitation. I also note that both the presentence report and the CADAS report speak of the difference between the appellant's willingness to address his substance abuse issues while in custody compared with his lack of interest in addressing those issues once back in the community.

22. The court's power to substitute a sentence for that imposed at first instance can only be exercised if it is satisfied that his Honour's discretion miscarried in the result; that is, that his Honour imposed a sentence that was above the range of sentences that could justly be imposed for the offence. In all the circumstances, I am not satisfied that the sentence imposed was manifestly excessive, and I would order that the appeal be dismissed.

23. I agree with the decision and reasons of Ross J.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

[1] Fusimalohi v The Queen [2012] ACTCA 49

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