Avery v R

[2015] NSWCCA 50

Court of Criminal Appeal (NSW)|2015-03-23|Before: Hulme J, Davies J, Bellew J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2015-03-23

Before

Hulme J, Davies J, Bellew J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Judgment

R A HULME J: I agree with Bellew J.
DAVIES J: I agree with Bellew J.
BELLEW J: On 3 June 2013 Daniel Avery ("the applicant") appeared before the Grafton Local Court and pleaded guilty to the following offences: 1. aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 1); 2. allowing himself to be carried in conveyance knowing that it had been taken without the consent of the owner: Crimes Act 1900 s. 154A(1)(b) (count 2); 3. aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 3).
The maximum penalty for each of counts 1 and 3 is imprisonment for 20 years. A standard non-parole period of 5 years is prescribed.
The maximum penalty for count 2 is imprisonment for 5 years. There is no standard non-parole period for that offence.
On 17 December 2013 in the District Court her Honour Judge Wells imposed the following sentences: 1. in respect of count 1, a non-parole period of 9 months commencing on 6 May 2013 and expiring on 5 February 2014 with an additional term of 4 months, expiring on 5 June 2014; 2. in respect of count 2, imprisonment for a fixed term of 6 months commencing on 6 May 2013 and expiring on 5 November 2013; 3. in respect of count 3 a non-parole period of 2 years commencing on 6 November 2013 and expiring on 5 November 2015, with an additional term of 1 year and 10 months expiring on 5 September 2017.
The total effective sentence was one of imprisonment for 4 years and 4 months with a non-parole period of 2 years and 6 months, to date from 6 May 2013. The applicant now seeks leave to appeal on 8 grounds which are discussed below.

[2]

[5]

Count 3

The agreed facts in respect of count 3 were in the following terms: "…MA and her son, MK, reside at 13 Shores Drive Yamba and have done so for approximately 4 years. About 5:30am on Saturday 22 December 2012 MK and MA were at home asleep. MK awoke after hearing a loud knocking at the front door. The front door is situated to the left hand side of the house and leads straight into the room where MK sleeps. The knocking was loud and consistent and as a result woke MK, who got up and opened the front wooden door. As he opened the he was confronted by four male Offender's (sic) who he described as aboriginal in appearance and they were not wearing any disguises on their face. One of the male offenders punched MK to the face which caused MK's right front tooth to break. The punch also caused MK to be knocked backwards as two of the Offender's (sic) entered the home. On entering these premises one of the Offender's (sic) was yelling "where's the money, where's the money?" (MK) yelled out to his mother MA, who had been asleep in her bedroom, which is adjacent to the lounge room, "we're being robbed". MK began to run towards his mother's bedroom up three stairs into the lounge room and as he did so was assaulted from behind which resulted in him being knocked unconscious and was then left lying on the lounge room floor. MA got out of bed and dressed, as she was in her underwear and put on a loose fitting dress. When MA came out of her bedroom she saw Daniel Avery, TL and two other offences (sic) in the house and her son (MK) lying conscious on the lounge floor with two of the offender's (sic) over the top of MK punching him. As she looked out of her room MA saw TL coming towards her, she immediately returned to her room to find something with which to defend herself and closed her bedroom door. Once in the bedroom she heard the door coming off its track and turned back and saw the door had been broken by TL. She tried to push the door back but TL pushed the door and it came down over the top of MA. The door was on top of her only momentarily before TL grabbed the door and threw it to one side. He then grabbed hold of MA's arms and pulled her up. MA screamed and TL punched her to the left temple. This caused great distress to MA causing her to wet herself. TL punched MA a number of times knocking her over, breaking her nose and cheek bone. Her lip was split, her teeth became loose and she lost some of her fillings as a result of these punches. TL was yelling "I want the money, I want the money". MA was badly injured and fought back kicking and punching TL. When TL eventually stopped punching her, he pulled her dress off, up over her head and pushed MA (sic) face first down onto the bed. MA was able to turn over and continued to fight back by punching and kicking him. TL grabbed one of her legs to stop her from kicking him and came over the top of her, pushing her dress over her face so she was unable to see his face. TL held her down by placing his elbow on her collar bone. She then felt his other hand around her crotch and move inside her underwear. TL then felt around her vagina in a rubbing motion and she felt him insert 2 fingers inside her vagina. He then forcefully moved his fingers in and out of her vagina for at least at minute. Whilst this was occurring MA continued to fight TL and believed she may have kicked him in the testicles which caused him to stop his assault on her. TL then walked out of the room followed by MA to the Lounge room where he went to a coffee table and grabbed the keys to MA's car. MK was up by this time and made an attempt to stop this male but MA said "No, let him go." All four Offender's (sic) then ran out of the house. MA then heard her car start up and drive away."
The facts were summarised by her Honour (at ROS 1-3), following which her Honour made reference to the contents of an interview in which the applicant had participated with police. In particular her Honour said:
"A month late (sic) in January 2013 this offender was arrested in relation to another matter. He made admissions to the Yamba offence. He said that he had been drinking with others and they went to a house around daybreak to get some cannabis. He says that one of the offenders hit MK in the head hard. He was knocked out when the offender entered.
The offender searched around the lounge-room and took a pack of cigarettes. He saw TL hit MA. He did not see or participate in offences with her in the bedroom. He did see that once she came out of the bedroom her face was badly injured and black from bruising. At that stage, believing that TL had gone too far, he encouraged them to leave. Apparently they all later took part in burning her car, though he is not subject of a charge in relation to that.
He told the police that he believed that they were going there to buy cannabis and admits that he fully participated in taking some property that was taken, namely $1500 cash, an iPhone and a car from the house. He received, he says, $50 and a packet of cigarettes."

[30]

Submissions of the applicant

Counsel for the applicant submitted that there were three errors arising out of the manner in which her Honour dealt with the issue of assistance. It was submitted that her Honour had: 1. erroneously found that the applicant had only identified one of his three co-offenders; 2. failed to specify the sentences which would have been imposed but for the assistance and, in particular, failed to specify the proportion of the discount referable to each of past and future assistance; and 3. failed, in relation to the offending in count 2, to ensure that the discount effectively applied to the non-parole period.
As to the first of those matters, it was submitted that the applicant had in fact identified his three co-offenders in respect of the offence in count 3, both in his interview with police and when giving evidence. It was also pointed out that when giving evidence the applicant had expressly undertaken to give evidence against the co-offenders Walker and Williams in the event that either of them was apprehended in the future. It was submitted that her Honour's error in this regard was significant and that a proper understanding of the level of the applicant's past and future assistance may have led her Honour to allow a greater discount than she did.
As to the second matter, it was submitted that it had been incumbent upon the sentencing judge to quantify the amount by which the sentences had been reduced for each of past and future assistance in accordance with s. 23(4) of the Crimes (Sentencing Procedure) Act 1999 NSW ("the Sentencing Act"). It was submitted that her Honour had erred in failing to do so and that although, in light of s.23(6) of the Sentencing Act, that error did not invalidate the sentence, it was indicative of the fact that her Honour may not have given proper consideration to the value of the applicant's past assistance.
Finally, counsel for the applicant pointed out that the sentencing judge had imposed a fixed term of 6 months imprisonment in respect of the offending in count 2 but had given no reason for doing so. It was submitted that in view of her Honour's failure to comply with s. 23(4)(b) of the Sentencing Act, this Court was left to speculate as to her Honour's intentions in setting a fixed term.
In oral argument before this Court, counsel for the applicant conceded that the discount which was applied was "not ungenerous" but stressed the importance of correctly identifying the level of assistance. Counsel then submitted that the considerations discussed in R v Ellis (1986) 6 NSWLR 603 should operate in the applicant's favour to increase the discount to one of 50 per cent. No such submission was put to the sentencing judge.

[32]

Consideration

This Court has previously emphasised that where a discount is to be applied to reflect a plea of guilty along with past and future assistance, the relevant apportionment should be indicated: Hutchinson v R [2014] NSWCCA 317 per Fullerton J at [31] citing LB v R [2013] NSWCCA 70 and R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415. Her Honour did not approach the matter in accordance with those authorities and in doing so failed to comply with s. 23(4) of the Sentencing Act. However, given the provisions of s. 23(6), her Honour's failure in that regard does not invalidate the sentence she imposed.
The terms of the applicant's signed undertaking to give evidence were limited to giving evidence against the co-offender TL in respect of the offending in count 3. Although the applicant identified the other two co-offenders by name, there was no evidence before her Honour that such identification was in fact correct. Neither person, it seems, has ever been arrested. In these circumstances, her Honour's observation (in the passage set out in [55] above) that the applicant had identified only one of his co-offenders in respect of count 3 was, strictly speaking, correct. Moreover, there was no assistance rendered by the applicant in terms of identifying, or agreeing to give evidence against, any of those involved with him in the offending which was the subject of count 1 or count 2.
The real issue which arises in respect of this ground is whether the discount applied by her Honour was appropriate in all of the circumstances. This Court has previously observed that it would be exceptional for a discount of more than 40 per cent to be given in respect of a plea of guilty and assistance absent evidence that the offender will serve the sentence in more difficult conditions than other prisoners because of the assistance given: R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151. It has also been observed by this Court that a combined discount for plea and assistance should not normally exceed 50 per cent and that a discount exceeding that amount should normally be reserved for cases which are regarded as exceptional: SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249. In SL v R [2015] NSWCCA 30 Davies J, having cited the decisions in Sukkar and SZ observed (at [44]) that it is not exceptional for an applicant simply to provide information on the identity of a co-accused or even to give evidence against a co-accused. His Honour observed that such assistance often results in an offender requiring protective custody but that such hardship is inherent in the offer and the discount that results. In any event, as I have observed, there was no evidence in the present case that the applicant's conditions of custody were rendered more harsh as a consequence of his assistance. These authorities recognise that the discount for plea and assistance must not be such as to result in the imposition of a sentence which is unreasonably disproportionate to the nature and circumstances of the offence: Hutchinson (supra).
In the present case her Honour found that there was no evidence that the applicant's conditions of custody would be rendered harsher as a consequence of his assistance. Notwithstanding that, the discount applied by her Honour was in excess of the 40% referred to in Sukkar. Viewed in that light, the discount is a generous one. So much was conceded by counsel for the applicant in oral argument.
To the extent that the applicant's submissions relied upon the application of the principles in Ellis, no such submission was ever put to the sentencing judge. It is not open for a party to come to this Court and assert error on the part of a sentencing judge based upon a failure to take a particular course which the judge was never asked to take. Generally speaking, a party is bound by the manner in which the case is conducted at first instance: Zreika v R [2012] NSWCCA 44 at [80] and [82] per Johnson J.
The applicant's assistance, whilst obviously valuable, was limited. There was, as I have indicated, no evidence which suggested that his conditions of custody were rendered more onerous as a result. In my view, given these circumstances, the discount applied by her Honour was, to say the least, generous.
Ground 6 is not made out.

[39]

The findings of the sentencing judge

Having dealt with the facts of the matter, her Honour turned to consider the issue of objective seriousness (commencing at ROS 4): "In relation to the objective seriousness, the Casino matter it is accepted, falls below the midrange and towards the lower end of objective seriousness. Though it is not by any means at the lowest end. It is a very serious offence. There was an element of planning, albeit not sophisticated given the attempt at disguises worn by the offenders. It did occur during a week day and at a time of night when no one was likely to be present. It was a business premises and not a residence which means that it is less serious. There was damage done to this small club that can ill afford the cost of offences such as this occurring there, in particular to pay for repairs. Not a lot of property was taken but the damage to this small club was considerable and would have cost a significant amount. The offenders ran away on foot. The circumstance of aggravation is that they were in company, which also is one of the less serious circumstances of aggravation available for offences of this kind. In relation to the Yamba matter, it is clearly a much more serious matterand falls at the midrange or slightly above. There were four people involved,four young men, including this offender, who is clearly a fit strong young man.They entered a residence where people should expect to feel safe and secureat around 5.30am. This would have caused considerable alarm to theoccupants of the house. There was a flurry of extreme violence in which thisoffender was involved. The injuries though do not fall at the more serious end of the scale. The property taken, though substantial for the complainants, is not at the more serious end for offences of this kind. Whilst, as part of the agreed facts, it must be accepted that the offenders went there to get drugs, this offender joined in this serious offence with a great deal of enthusiasm. On the other hand in his favour he did at a later point encourage the others to desist and leave. In all it caused a great deal of trouble for everyone, most particularly the complainants, but also for this offender and for very little return at all. According to the facts, at the moment they knocked on the door there was no attempt to buy drugs both on the version of the complainant and the accused. Their plan obviously changed very quickly indeed."
Her Honour then proceeded to deal with the applicant's subjective case. At the time of the offending in counts 1 and 2 the applicant had just turned 18 years and by the time of the offending in count 3 he had just turned 20. Her Honour noted his criminal history and the fact that it contained a number of offences of a similar kind before stating (at ROS 5): "He has a record that indicates that he is, in terms of break and enter offences, a one man crime wave. At the time of the Yamba offence he was on bail for other break and enter offences which was the one for which he has just completed serving a sentence."
Tendered to the court on sentence was a report of Allan Anderson, a Psychologist who had assessed the applicant. He reported that the applicant had provided a history of his mother having left his family when he was a baby and that he remained along with "about nine siblings" with his father. The applicant did not report being subjected to "much" physical abuse whilst growing up. He left school in Year 9 and had not worked since that time. Thus, the applicant had been unemployed from about the age of 15 to the age of 21. The applicant reported that he had started to drink alcohol at about the age of 15, and also stated that he started using cannabis at that time. Those matters were described as "usual in that family and in that local area".
Testing administered by Mr Anderson indicated that the applicant showed no inclination on the part of the applicant towards violent behaviour, and no evidence of anxiety or stress. Mr Anderson said (at p. 3 of his report): "Daniel impresses as a young man of average intelligence. He has not used any illicit substances whilst in jail and presents as a pleasant and polite young man who has, in my opinion, been the victim of circumstances and could not have had any other lifestyle other than the one in which he is being caught up. Daniel has told me that when he is able to leave gaol this time he wanted to return to live with his father who, according to Daniel, has "lined up" some kind of work for him under the "work for the dole" program. … I would hope that when Daniel leaves jail on this occasion he may voluntarily decide to enter a rehabilitation centre such as Balunda, where he has previous experience, and probably try to complete a six month program there. I believe this would be very good for him if he were to have the patience and tolerance to do so. Daniel has convinced me that when he leaves detention he does not want to use cannabis and he does not want to drink alcohol. I think this will be very difficult unless he undertakes a period of rehabilitation in a suitable centre. It would be very difficult, in my opinion, for Daniel to return to his home, live with his siblings and his father without being susceptible to alcohol and drug use again. Daniel would certainly have been under the influence of alcohol and/or drugs when these offences were committed. He would certainly have been suffering from deep depression at the time of the said offences".
It must be noted that nowhere in Mr Anderson's report is there a reference to any history provided by the applicant as to his use of alcohol or drugs at the time of any of the offending. Moreover, Mr Anderson did not diagnose depression. His references to the applicant having been under the influence and in a "deep depression" at the time of his offending were apparently based solely upon the history provided by the applicant. They are deserving of little weight in the circumstances.
Having summarised Mr Anderson's report, her Honour concluded (as previously noted) that the principles enunciated in Fernando clearly applied in light of the applicant's Aboriginal heritage and the deprived circumstances in which he was brought up, both within his immediate family and within the broader community group.
Her Honour concluded that the offending, and particularly the offending in count 3, attracted application of principles of general and specific deterrence. She concluded (at ROS 7): "As indicated he has been for some time now something of a one man crime wave, his offending has been rather unrelenting. As he is still, and was certainly at the time of the offences, a young man, rehabilitation remains a significant factor. On the one hand his remorse is indicated by his admissions to the police when arrested, by the early indication of a plea and by his willingness to assist the authorities. On the other hand his behaviour in committing these types of offences on an ongoing basis and the fact that he left Balunda, a program that would have assisted him greatly, means that his prospects of rehabilitation are guarded at this stage."

[42]

Consideration

In my view, the submissions of counsel for the applicant tend to understate the seriousness of the applicant's offending.
The offending in count 1 reflected steps having been taken by the applicant and his co-offenders to hide their identity. That was a clear indication of some degree of planning. The applicant was responsible for breaking into the premises by engaging in the violent act of throwing a brick through the rear entrance. Thankfully, because of the time at which the offending took place, no member of the public was placed in any danger. Once inside, the applicant proceeded to engage in further violence by smashing the front refrigerator door for the purposes of stealing quantities of alcohol.
The gravamen of the offending in count 2 was that that the applicant allowed himself to be carried in a stolen conveyance, knowing that it had been stolen. The fact that the use of the stolen conveyance may have been limited to use within the confines of an Aboriginal mission does not, in my view, significantly mitigate the offending.
The offending in count 3 was in the nature of what is generally described a home invasion. Its seriousness is self-evident, as is the fear which would have been engendered in the two occupants of the home.
Quite apart from the objective seriousness of the offending, the complaint of manifest excess also tends to overlook the fact that the applicant's offending was committed against a background of a substantial criminal history for offending of this nature. Notwithstanding the applicant's relative youth and his background, both of which her Honour took into account, considerations of general and personal deterrence were of obvious significance in determining an appropriate sentence.
The applicant was the beneficiary of a generous discount for his plea and assistance. He was also the beneficiary of a finding of special circumstances which resulted in a substantial variation being made to the length of the non-parole period.
In all of these circumstances I am unpersuaded that the sentences are manifestly excessive, in the sense of being unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.

Avery v R

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