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1. The appellant appealed against sentences imposed on 3 September 2015 for offences committed on 3 December 2014 and 29 January 2015.

2. After allowing a 25% discount for the pleas of guilty, the sentencing judge imposed the following sentences:

Charge Maximum Sentence Penalty Drive motor vehicle without 5 years’ 4 months’ imprisonment from 19 consent (CC14/11797) imprisonment January 2015 - 8 May 2015 s 318(2) Criminal Code 2002

Drive while disqualified 6 months’ 3 months’ imprisonment from 19 (CC14/11798) imprisonment March 2015 - 18 June 2015 s 32(1) Road Transport (Driver Licensing) Act 1999

Attempt burglary (CC15/1360) 14 years’ 15 months’ imprisonment from 19 imprisonment June 2015 - 18 September 2016 s 311 Criminal Code 2002 Attempt aggravated robbery 25 years’ 2 years and 3 months’ (CC15/1361) imprisonment imprisonment from 19 December 2015 - 18 March 2018 s 31O Criminal Code 2002 Obstruct territory public 2 years’ 2 months’ imprisonment from 19 official (CC 15/1364) s 361(1) imprisonment December 2015 - 18 February Criminal Code 2002 2016. Possess offensive weapon 1 year 2 months’ imprisonment from 19 with intent (CC15/1366) imprisonment December 2015 - 18 February s 381 Crimes Act 1900 2016. Theft (CC15/275) 10 years’ 3 months’ imprisonment from 19 imprisonment December 2015 - 18 March 2016 s 308 Criminal Code 2002 Burglary - intent to commit 14 years’ 18 months’ imprisonment from 19 theft (CC15/5642) imprisonment September 2017 - 18 March s 311 Criminal Code 2002 2019 Possess article with intent to 5 years’ 9 months’ imprisonment from 19 use in the course of a imprisonment September 2018 - 18 June 2019 burglary (CC15/5643) s 316(1) Criminal Code 2002

3. The total sentence was four years and five months’ imprisonment from 19 January 2015 to 18 June 2019. The sentencing judge fixed a nonparole period of two years and eight months’ imprisonment from 19 January 2015 to 18 September 2017. The appeal

4. The sole appeal ground was that the sentences were manifestly excessive.

5. The appellant was self-represented. He filed no written submissions.

6. At the hearing of the appeal, the appellant submitted that the sentencing judge should have fixed a lower nonparole period, facilitating the appellant’s early release to undertake residential rehabilitation at Oolong House. The appellant stated that he had stabilised in prison; his medication had been supervised, he had received counselling and there had been limited access to illicit drugs. He stated that he was highly motivated to change his lifestyle.

Facts

Offences on 3 December 2014

7. On 3 December 2014, the appellant was seen driving a motor vehicle belonging to a Mr O'Sullivan. In October 2014, Mr O’Sullivan’s vehicle had been taken without his permission. When the police spoke to the appellant, he said that the car belonged to “a mate” and that he preferred not to name the source of the car.

8. When the appellant drove the motor vehicle on 3 December 2014, he was a disqualified driver. Because he failed to provide a breath sample in March 2012, he was disqualified from driving until March 2015.

9. On 3 December 2014, the appellant was apprehended. He remained in custody until 11 December 2014, when bail was granted.

Offences on 29 January 2015

Attempt burglary (CC15/1360)

10. While on bail for the offences committed in December 2014, between 12 pm and 1 pm on 29 January 2015, the appellant attempted to enter a Palmerston residence by opening a sliding screen door. A female occupant heard the sound of the door and turned to see the appellant. The appellant stated that he would like to pick up the keys to her vehicle. She shouted that the appellant should leave, and he did so. She called the police.

Attempt aggravated robbery (CC15/1361)

11. At about 1:25 pm, a Mr Eagles was in Palmerston for work purposes. He parked his vehicle, leaving the keys in the ignition. He walked a short distance, then turned and saw the appellant sitting in the driver’s seat. The appellant told Mr Eagles that he needed the car. Mr Eagles seized the car keys from the ignition. The appellant got out of the vehicle and approached Mr Eagles holding a metal pole and demanding the keys. When the vehicle started to roll forward, the appellant ran away.

Burglary – intent to commit theft (CC15/5642); Theft (CC15/2752)

12. At about 1:30 pm, the appellant attempted to enter another Palmerston residence. A female occupant heard the front gate and then heard a rear sliding screen door being opened. The appellant approached her from the sliding door, wearing a hooded jumper that hid his face. He was carrying a metal pole. The appellant had taken the metal pole and black knife from the residence. The occupant ran to a neighbour’s residence and called the police.

Obstruct territory public official (CC15/1364); Possess offensive weapon with intent (CC15/1366); Possess article with intent to use in the course of a burglary (CC15/5643)

13. Police attended the Palmerston area in response to the first telephone call and observed the appellant carrying a metal pole and black knife. He failed to stop when ordered to do so. The police released their police dog. The appellant raised the metal pole and black knife towards the dog. Eventually, he dropped the metal pole and knife. When police searched the appellant, they found a pair of gloves, a beanie, a screwdriver and a second knife.

14. The appellant has been in custody since his arrest on 29 January 2015.

15. On 12 June 2015, the appellant pleaded guilty to all charges and was committed for sentence to the Supreme Court.

Sentencing remarks

Objective seriousness of the offences

16. In his remarks, the sentencing judge did not deal at length with the objective seriousness of the offences. However, the objective seriousness of the offences had been canvassed extensively in the oral submissions made on behalf of the appellant. Those submissions were uncontroversial and, except in one respect, they appear to have been accepted by the prosecution and the sentencing judge. The prosecution made a brief submission about the degree of planning associated with the offences. The sentencing judge said that he accepted that the offences involved limited planning, but that the offences of 29 January 2015 involved some premeditation, as evidenced by the fact that the appellant was equipped with a metal pole and items to facilitate burglary and theft.

17. His Honour was well aware that the burglary and attempted burglary offences targeted residences (not commercial premises) and that, in the case of each offence, a resident was confronted. These matters gave the offences considerable objective seriousness. On the other hand, the offences occurred in the daytime, entry was not forced and nothing of sentimental or significant monetary value was stolen.

18. In relation to the attempted aggravated robbery offence, the appellant was armed with a metal pole rather than a more dangerous object such as a firearm. The offence occurred in daytime. The appellant did not initiate the immediate confrontation with the victim. Although it was the victim who challenged the appellant, the offence must have been quite frightening for the victim.

19. The offence of possessing an article with intent to use it in the course of the burglary involved the possession of numerous items in circumstances where there was a very immediate prospect of them being used in the course of a burglary or burglaries.

20. Having regard to the range of offences covered by the relevant provisions, each of the offences of burglary, attempted burglary, attempted aggravated robbery and possess article with intent to use in the course of a burglary was of significant objective seriousness. Each was an offence for which the legislature has prescribed a significant maximum penalty. Subjective circumstances

21. The sentencing judge canvassed the appellant’s subjective circumstances in some detail.

22. His Honour observed that, as the appellant had a lengthy criminal record, including many convictions for dishonesty and violence, he was not entitled to leniency on the basis of his prior criminal history. In 2011, the appellant had served four months’ imprisonment for a burglary offence. In 2003, he had served a sentence for assault occasioning actual bodily harm.

23. His Honour examined the appellant’s dysfunctional and disadvantaged background, referring to the appellant’s ongoing physical problems caused by a car accident, mental health problems that were, possibly, drug-induced (correctly identifying the ways in which mental illness may inform sentencing) and the appellant’s long-standing poly-substance abuse. His Honour referred to recent stresses, including the death of close family members.

24. His Honour’s remarks acknowledged that the appellant’s substance abuse derived from his childhood experiences; substance abuse was a form of self-medication, originating in the appellant’s unsettled and disadvantaged childhood, as one of nine children of alcoholic Aboriginal parents.

25. His Honour noted that the appellant had limited insight into his offending behaviour, a poor history of compliance with community based orders and that there was a high risk of reoffending, mainly due to substance abuse.

26. His Honour observed that the offences of 29 January 2015 had occurred while the appellant was on conditional liberty.

27. His Honour also recorded more positive features: when drug-free, the appellant displayed the potential to lead a normal and productive life; the appellant had shown commitment to education and work programs while in custody; and the appellant was keen to undertake a residential rehabilitation program in the community.

28. The remarks focused on the need for the appellant to address substance abuse. The sentencing judge referred to the fact that the appellant had attended a residential rehabilitation program in 2003 but had left before completing the program.

Sentencing outcome

29. The sentencing judge dealt with and rejected the proposal that he should defer sentencing to allow the appellant to attend a residential rehabilitation program at Oolong House. His Honour stated:

30. ... I would encourage you to use the time while you are in custody to engage in and undertake a drug rehabilitation program. Your best prospect for rehabilitation is to engage in drug rehabilitation programs whilst you are in custody, and to continue that process by attending programs or counselling after you are released. 25. I did not accept the submission that I should defer sentencing to allow you to attend a residential rehabilitation program in the community because of your past history of poor compliance with community based orders. Placing you in a program, such as that offered at Oolong House, where you could leave the program at any time, was, in my opinion, too great a risk for someone with such a lengthy drug addiction and who has been essentially untreated. 26. In addition, sentencing considerations of punishment and deterrence are important … rehabilitation is not the only relevant sentencing consideration.

Consideration

30. The appellant could not identify any specific error in the manner in which the sentencing judge approached the sentencing exercise. We detect none.

31. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive”; but manifest excess is a conclusion that can be drawn only if the excess is “plainly apparent” in that the sentence is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J. “Manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL, Balthazaar v The Queen [2012] ACTCA 26 at [61].

32. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen (2005) 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including ss 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT)) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.

33. The proper approach to deciding whether a sentence is “manifestly excessive” was summarised recently in O’Brien v The Queen [2015] ACTCA 47 (O’Brien) at [25] and Dalton v The Queen [2015] ACTCA 48 at [18].

34. It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.

Individual sentences

35. The sentences were reduced by 25% for the early pleas of guilty. The starting points for the sentences for attempted burglary, burglary and attempted aggravated robbery were 20 months’ imprisonment, two years’ imprisonment and three years’ imprisonment respectively.

36. The maximum penalties were 14 years’ imprisonment (for attempted burglary and burglary) and 25 years’ imprisonment (for attempted aggravated robbery).

37. As observed by the Court in Rubino v The Queen [2015] ACTCA 22 at [41], there is no single correct sentence for burglary or aggravated burglary.

38. On the appeal, we were not taken to other particular sentences for the purpose of demonstrating that the sentence imposed in this case was manifestly excessive.

39. Bare statistics do not provide a reliable guide to appropriate sentencing because they refer only to sentence lengths, saying nothing about why a sentence was fixed as it was or whether the sentencing pattern reflects a correct approach to sentencing: R v Hili [2010] HCA 45 at [48] and [54].

40. Nevertheless, to the limited extent that they may be relevant, the ACT Sentencing Database statistics suggest that the sentences that were imposed in this case are well within the usual sentencing range. The Database shows that, for the offence of burglary, 69% of offenders received a sentence of full-time imprisonment and, where there was a guilty plea, 80% of those sentences fell within the range of 12 to 30 months. For aggravated robbery, where there was a plea of guilty, most sentences were in the range of 30 months to 4 years.

41. An example of a sentence imposed for aggravated robbery is the case of R v Dugdale (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 15 August 2012), in which a 22-year-old offender from a disadvantaged background with an extensive criminal record committed a daytime robbery of a shop at knifepoint when he was heavily intoxicated. After s 25% discount, he received a sentence of two years and 10 months’ imprisonment with a nonparole period of 22 months.

42. Having regard to the maximum penalties, the significant objective seriousness of each offence and the appellant’s subjective circumstances (including a background of severe disadvantage, an unresolved problem of poly-substance abuse, a significant criminal history and the fact that the offences of 29 January 2015 were committed while the appellant was on conditional liberty), the sentences that were imposed for the principal matters were unexceptional.

43. The sentencing judge was entitled to give considerable weight to the sentencing purposes of punishment and deterrence.

Accumulation

44. The sentencing chart that is Annexure A to the respondent’s written submissions graphically illustrates the manner in which the sentences were accumulated in this case.

45. Despite their different subject matter, the sentences that were imposed for the offences on 3 December 2014 were largely concurrent. The sentence for drive while disqualified added only one month and 10 days to the sentence for driving a motor vehicle without consent.

46. The sentences that were imposed for the three serious offences committed on 29 January 2015 (attempted burglary, attempted aggravated robbery and burglary) were wholly accumulated on the sentence for driving a motor vehicle without consent committed on 3 December 2014, and were substantially accumulated on each other. A substantial degree of accumulation was appropriate to mark the seriousness of each incident and the fact that there were three discrete victims, each of whom was confronted by the appellant. Overall, the sentences imposed for these offences added three years and nine months to the effective sentence for the events on 3 December 2014.

47. The sentences imposed for the other four offences committed on 29 January 2015 (resisting a public official; two offences of possession of an offensive weapon; and theft) were made wholly concurrent with the sentences imposed for the more serious offences.

48. When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.

49. There is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: R v TW (2011) 6 ACTLR 18 at [83] per Penfold J.

50. The appellant has not shown that the manner in which the individual sentences were accumulated or the overall sentence was not “just and appropriate”: Mill v The Queen (1988) 166 CLR 59 at 63–64, O’Brien at [26].

Nonparole period

51. The nonparole period of two years and eight months’ imprisonment is 60% of the total sentence.

52. As summarised in Taylor v The Queen [2014] ACTCA 9 at [19], when setting a nonparole period, a sentencing court must have regard to all relevant sentencing considerations, but generally the nonparole period will be strongly informed by an offender’s prospects of rehabilitation. Although the proportion of a sentence that is to be served by way of a nonparole period is a matter for judicial discretion, in this jurisdiction nonparole periods frequently fall in the range of 50% to 70% of the total sentence.

53. In this case, the sentencing judge concluded that the appellant was most likely to rehabilitate from substance abuse if he undertook drug rehabilitation within the custodial setting. The appellant’s prospects of maintaining rehabilitation once he re-entered the community were somewhat uncertain. Given this finding, a nonparole period of 60% of the total sentence was well within the sentencing judge’s discretion.

54. We accept that, while in custody, the appellant has applied himself to education and work programs and has made significant progress towards drug rehabilitation. We accept that he is motivated to change and to continue the rehabilitation process once he is released into the community. The sentencing judge also accepted that the appellant was committed to changing his lifestyle. That may be why, despite the appellant’s criminal history, the nonparole period was fixed at 60%.

Order

55. The appeal is dismissed.

I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 11 August 2016