Carr v R

Court of Criminal Appeal (NSW)|2014-10-01|Before: Hoeben CJ, Fullerton J, Adamson J

Judgment 1HOEBEN CJ AT CL: I agree with Fullerton J. 2FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 20 November 2013 after entering a plea of guilty in the Local Court to knowingly making an improvised explosive device, particularised in the charge as a "parcel bomb", with intent to injure contrary to s 55(a) of the Crimes Act 1900 (NSW). That offence attracts a maximum penalty of 10 years imprisonment. There is no applicable standard non-parole period. 3After applying a discount of 25 per cent for the early plea of guilty, the applicant was sentenced to 4 years imprisonment with a non-parole period of 3 years. 4The applicant relies upon two grounds of appeal: Ground 1: His Honour erred in finding that the applicant's motive increased the objective seriousness of the offending. Ground 2: The sentence was manifestly excessive.

Proceedings and remarks on sentence 5A statement of facts was tendered by consent. They were succinctly summarised in the sentencing reasons. 6On 18 September 2012 the victim, Michael Langley, and his partner, Lee Brindle, resided with Ms Brindle's young daughter in Ashcroft. At around 10.30am, Rosa Langley, the victim's aunt, arrived with a parcel addressed to Mr Langley which had been delivered to her home in Lurnea where the victim had lived from time to time for many years. 7Mr Langley's aunt told him that she thought that whatever was inside the parcel must be broken because it was rattling. After his aunt left, Mr Langley attempted to open the package in the presence of Ms Brindle and her daughter. 8He had difficulty in doing so as the parcel was sealed with a lot of tape. The parcel exploded in his hands when he was attempting to open it. Ms Brindle noticed a spark from inside the box and, as the parcel detonated, a loud bang was heard producing sufficient smoke to activate the smoke detector. They called triple-0 and left the house. 9Mr Langley sustained a small burn mark on his right inner thigh and a ringing in his ears which resolved after a couple of days. 10The New South Wales Police Bomb Squad attended and conducted an examination of the remnants of the parcel. They established that the parcel was a homemade explosive device constructed with a small six volt battery, a spring switch, electric wiring and a fire cracker. A number of ball bearings had been glued to the bottom of the parcel. 11The parcel also contained a handwritten, stencilled note. This note was reconstructed by crime scene officers. It read something to the effect, "You owe a lot, I'm goin to collect, you will never know when or where I'll strike DOG". The remnants of the device were collected for DNA testing and fingerprint analysis. Testing of the electrical wiring from the device produced a DNA profile that matched the applicant's. 12Police spoke with Rosa Langley who informed them that a male in a red van had delivered the parcel to her address. She said this did not arouse her suspicions as Mr Langley had previously lived with her at that address. She was unable to provide any description of the van. She described the man who delivered the item as having olive skin colour, possibly of Asian background, and aged in his 30s (this is inconsistent with the physical appearance of the applicant). A canvass of neighbours produced no further information. Australia Post had no record of any parcel being delivered to Ms Langley's address. 13Ms Brindle was previously in a relationship with the applicant from 2003 to around 2007. When Mr Langley, her current partner, was in prison in 2009, Ms Brindle reconnected with the applicant, but only on a platonic level, including her babysitting his children on occasion. Contact between them ceased after Mr Langley was released from prison. 14Ms Brindle told police that the applicant constructed electric devices on numerous occasions and she had witnessed him researching how to make bombs on the internet. 15On 18 December 2012, police executed a search warrant at the applicant's premises. In his bedroom police located a firecracker, a number of wires and tools which appeared to be consistent with being utilised for the purposes of construction of the explosive device. 16The applicant was arrested and conveyed to Campbelltown Police Station. He participated in an electronic record of interview. During the interview he denied any knowledge of the parcel bomb. He stated he had no formal training in electronics but tried to fix televisions and similar electrical equipment as a pastime. He said the wiring found when the search warrant was executed at his premises was from electrical equipment he had been fixing. He said a friend of his daughter had given him five firecrackers and that he had used the other four and kept one. He said the tools found by police were used for work with electrical equipment. 17The applicant told police that he had not spoken to Ms Brindle for about two years. He stated he knew her partner only as "Mick" and that he did not know where either of them lived. He said he was not happy with Ms Brindle commencing a new relationship with the victim. He denied knowledge of the note. When the applicant was informed of the DNA evidence located on the wires, he requested the interview be terminated. 18On 7 August 2013 he entered a plea of guilty in the Local Court and was committed to the District Court for sentence. 19The applicant gave evidence on sentence in which he conceded that there was a possibility that the parcel would injure its intended recipient but claimed that "he knew what he was doing", having had experience in making devices of a similar kind and that his only intention was to scare Mr Langley which he considered would be achieved by constructing a device that, on detonation, would make a lot of noise and smoke but not cause any physical injury. 20In addition to the agreed facts, his Honour expressly took into account the applicant's evidence for the purpose of assessing the extent to which the explosive device had the capacity to injure someone who opened the parcel (or someone in the near vicinity), and the nature of the injury the applicant was intending to inflict when he addressed the parcel and arranged for it to be delivered to a Mr Langley. Both of these features had a critical bearing upon his Honour's assessment of the objective criminality of the applicant's offending relative to the offending comprehended by the section. His Honour took into account what he described as "the events subsequent to the making of the parcel bomb", including the fact that the applicant deliberately made it so as to give the outward appearance that it was safe to handle. In that context, he found that being disguised as a postage article, it had the capacity to pass through a number of hands with at least a possibility of it being opened in the presence of people for whom no injury was intended. 21He also found that the parcel bomb was capable of detonating, making a loud noise and creating a great deal of smoke which, in combination, had the capacity to cause Mr Langley to have great fears for his safety. He was also satisfied that the applicant should have been aware that in creating a capacity for the device to detonate, it had the capacity to inflict minor burns and to damage a person's hearing. However, in the absence of any scientific evidence as to the extent to which the parcel bomb had the capacity to cause significant physical injuries, his Honour was not prepared to make a finding beyond reasonable doubt that the applicant's intention extended beyond scaring Mr Langley and intentionally causing him psychological injury. Were he satisfied to the requisite standard that the applicant's intention was to cause serious physical injury he would have considered the criminality as being in a worst case category. 22He also noted that the applicant gave evidence that his motivation for wanting to scare Mr Langley was because he had threatened his daughter with harm some months before. He denied that he was motivated by revenge because Ms Brindle had rejected him and was in a de facto relationship with Mr Langley. The applicant's evidence was supplemented by evidence from his daughter who said that Mr Langley had in fact approached her at a railway station some months before the parcel was sent (albeit unknown to her) and that he threatened her in vague terms. His Honour noted that the threatening notes contained within the parcel made no mention of Mr Langley's alleged misconduct toward his daughter, and that no complaint had been made to police at any time. The applicant gave evidence that he did not go to the police because he did not think that they would "do much". He said he did not go down and confront Mr Langley because he had a lot of assault charges on his record and he (the applicant) was "trying to settle down a bit". 23In the result, his Honour was not persuaded that the applicant's evidence reflected his actual motives in sending the parcel bomb. Rather, he was satisfied, and to the criminal standard, that the applicant was motivated by a desire to seek revenge for the fact that Ms Brindle was living with Mr Langley, a factor which he considered increased the objective seriousness of his offending behaviour. This finding was the subject of the first ground of appeal. 24His Honour concluded that the objective seriousness of the offending, which he was satisfied involved planning and preparation, was diminished only by the applicant's intention to cause psychological injury and not physical injury. 25The Crown also tendered the applicant's criminal history which included offences of violence that had been dealt with in the Local Court with non-custodial penalties imposed in 2006 and 2008. He was sentenced to periodic detention in 2000 for an offence of stalk and intimidate with the intention of causing fear of personal injury and to a period of imprisonment in 2005 for assaulting a police officer in the execution of his duty. 26At the time of his arrest in December 2012, he was subject to a s 12 bond for a further offence of assaulting police and a s 9 bond for resisting arrest. In subsequent proceedings for breach no action was taken in respect of the s 9 bond for resisting arrest. He was sentenced to 12 months imprisonment for the assault police charge to date from his arrest on the subject charge. 27It is not suggested that his Honour's reference to the applicant's criminal record and, in particular, the various entries for offences of violence, was otherwise than in accordance with a principled approach disentitling the applicant to any leniency and allowing greater emphasis to be placed upon other sentencing objectives. His Honour concluded that this was a case where considerations of retribution, deterrence and the protection of society indicated a more severe penalty was warranted than might otherwise have been the case where a person was able to rely upon previous good character. He did not take into account the fact that the offences were committed whilst subject to conditional liberty as aggravating the offending (as he would have been entitled to do under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) but rather that this was a further basis for disqualifying the applicant from leniency, further confirming the need for the sentence to reflect the need for specific deterrence.

The applicant' subjective circumstances 28The applicant was 37 years old at the time of sentence. His two daughters were in his care and the sentencing judge accepted they regarded their father with deep affection. His Honour noted an undated reference from a former employer in which the applicant was well regarded. He also noted a suitability report in respect of the applicant's eligibility to be accepted into the MERIT program. His Honour observed that, by its nature, the report was "pithy" with its purpose being to assess the offender's suitability to be admitted to the program. The applicant could not avail himself of that offer because he was bail refused on the subject charges. His Honour noted that the report stated that the applicant "has a problem with cannabis use" but that there was no other evidence concerning a history of drug abuse or previous attempts at rehabilitation. 29His Honour declined to make a finding that the applicant was remorseful. In view of the applicant's evidence in the proceedings, and in the context of his criminal history, his Honour did not consider the applicant as having good prospects of rehabilitation. He made a positive finding that he was likely to reoffend. 30In sentencing the applicant his Honour made express reference to the governing sections of s 3A of the Crimes (Sentencing Procedure) Act, emphasising that in determining upon an appropriate sentence in this case retribution, punishment, and specific and general deterrence should take predominance over the other objects of sentencing.

Ground 1: His Honour erred in finding that the applicant's motive increased the objective seriousness of the offending 31The sentencing judge was referred by the Crown to the decision of this Court in R v Bonnet [2013] NSWCCA 234 as authority for the proposition that were he to accept the applicant's evidence that he was motivated to send the parcel bomb to punish Mr Langley for what he believed were inappropriate advances to his daughter, the objective seriousness of the offence would be "significantly elevated". That submission is a misreading of Bonnet and misstates the law. 32The applicant in Bonnet had pleaded guilty to robbery in company with deprivation of liberty contrary to s 95(1) of the Crimes Act. It was her role in a targeted attack on the victim to administer a drug to enable the robbery to occur. The applicant and her co-offenders sought to justify the robbery on the basis they believed that the victim, a man aged 41, had been using one of their friends , aged 16, for sexual favours, which they considered to be morally wrong. There was no evidence to suggest that such sexual activity as involved the victim and their friend was non-consensual. The issue on the appeal was whether the sentencing judge was in error when referring to the need for the sentence to deter others who might be motivated to exact revenge or to administer punishment by inflicting or threatening violence on a person or people adjudged to be deserving of it. As Adamson J observed at [34] (Gleeson JA and Hulme J agreeing), the approach of the sentencing judge was entirely consonant with what Latham J concluded in Quealey v R [2010] NSWCCA 116 at [23]-[28] after her review of the authorities where offending was motivated by vigilantism. Adamson J also rejected the applicant's related submission that the applicant's motive ameliorated her moral culpability so as to operate in mitigation of sentence. 33In R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 (one of the authorities to which Latham J referred), at [32] Howie J observed that the relevance of motive in any given case will depend upon the particular facts of that case. As his Honour expressed it, motive may frequently explain why the offence was committed without condoning or excusing it. He also observed that the existence of a motive may not be relevant in mitigation but to other factors that may impact upon the exercise of the sentencing discretion, which, in some cases, may point in opposing directions. He went on to say: [32] It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry (1999) 46 NSWLR 346. 34In neither Bonnet nor Quealey, nor in the cases to which Latham J referred, was consideration given to whether motives of revenge or retaliation at some actual or perceived wrong have the capacity to aggravate the objective seriousness of an offence. This is likely because, irrespective of whether an offender is motivated by vengeance or some grievance or simply hatred to commit an offence which involves the deliberate infliction of violence, the threats of harm or perhaps deliberate damage to property, it is the nature of the particular offending and its consequences, and the offender's appreciation of the consequences of the offending, that informs an assessment of objective seriousness (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 at [27] - cf under s 21A(2)(o) where financial motives are a statutory aggravating factor. See also the cases which have considered the impact of competing motives of drug addiction and financial gain for sentencing purposes: Dang v R [2013] NSWCCA 246 per Basten JA at [20]-[30], Adams J at [44] and Latham J at [111]-[112]). Whilst an assessment of an offender's moral culpability is part of an assessment of objective seriousness, care must be taken to ensure that an offender's motives (which might, in a given case, render his or her moral culpability of a high order) do not overwhelm the assessment of objective seriousness referable to the offending conduct itself. 35In this case, irrespective of whether the applicant's motive in constructing the explosive device and parcelling it for delivery to Mr Langley was to punish him for the advances he believed had made to his (the applicant's) daughter, or, as his Honour found, to exact revenge because of Mr Langley's relationship with Ms Brindle, his motives did not elevate his moral culpability in any relevant sense nor did they serve to elevate the objective seriousness of the offending. Were that the case, an untargeted delivery of a parcel bomb with a generalised intent to cause harm to whomever opened it might be regarded as less morally culpable. Clearly that analysis cannot be correct. As I see it, the only significance of the applicant's motive for sentencing purposes in this case was to meet the need for the sentence to address both general and specific deterrence. 36The applicant submitted that since motive was an erroneous or extraneous factor that has entered the sentencing process, on a proper assessment of objective seriousness a lesser sentence was warranted at law. The features of the applicant's offending relied upon in assessing objective seriousness in the application of s 6(3) of the Criminal Appeal Act 1912 (NSW) are the same as those relied upon by counsel as exposing a manifestly excessive sentence. If that ground of appeal is made good the applicant must be re-sentenced. That being so, it seems to me appropriate to deal with the challenge to the sentence on the basis of it being erroneously excessive before returning to the question whether his Honour's approach to the issue of motive will result in re-sentence.

Ground 2 37To assert that a sentence is manifestly excessive is a conclusion that is arrived at after an examination of the sentence imposed and the process of reasoning which delivered that result. While it may be helpful to enquire into the reasoning process by which a sentence was arrived at, sentencing judges at first instance must be afforded as much flexibility in the exercise of their individual sentencing discretion as is consonant with the application of principle and a consistency of approach (see Hili v The Queen [2010] HCA 45; 242 CLR 520; 204 A Crim R 434 at [58]-59]). 38A claim of manifest excess also requires the applicant to establish that the sentencing judge has failed to properly exercise her or his sentencing discretion and that an unjust and plainly unreasonable sentence has resulted (see Dinsdale v R [2000] HCA 54; 202 CLR 321; 115 A Crim R 558). 39In seeking to discharge that onus in this case, the applicant placed significant reliance upon the sentencing judge being satisfied that the applicant intended only to cause Mr Langley psychological injury. Whilst an intention to cause him physical injury might have justified the imposition of a much heavier sentence, the inverse does not apply. In my view, the fact that his Honour accepted that psychological harm was the intended result in delivery of the explosive device does not derogate from the seriousness of the applicant's offending. Psychological injury may, depending upon the person subjected to it, be no less disabling and permanent than physical injury. In providing for an offence under s 55(a) of the Crimes Act, the Parliament did not discriminate between an intention to cause physical or psychological harm, equally as it is not to the point for sentencing purposes that the intended victim may have been psychologically robust (about which there is no evidence in this case in any event). 40The applicant also submitted that although the sentencing judge found there was a level of sophistication in the construction of the device, the corollary of that finding, as a matter of necessary inference, is that the applicant carefully constructed the device to ensure it would only frighten Mr Langley and that there was no danger that he (or those that handled the device or those who were in his presence when it was opened) would be physically harmed. That submission proceeds on the assumption that the applicant had such a refined level of expertise that he could ensure the device would not operate contrary to its intended capacity. There was no evidence of that fact, and no scientific evidence which addressed the extent of the risk of the device malfunctioning and exploding before it was opened. The fact that the applicant incorporated ball bearings as an additional design feature, with at least a risk of them being emitted under the force of the explosion, and without it being apparent that they added to the sound of the explosion, suggests to me that something more than psychological harm was intended. I accept, however, that without scientific evidence as to the capacity of the device to cause physical injury that was not a finding his Honour considered he could make beyond reasonable doubt 41Counsel's submission that because the applicant intentionally disguised the parcel to resemble a postage article addressed only to Mr Langley, thereby narrowing the range of potential victims, also assumes that the parcel would only be opened by Mr Langley. While the applicant may have intended that only Mr Langley would open the parcel, it was in fact hand-delivered to Mr Langley's aunt at his direction which, at least theoretically, extended the range of potential victims to include the person who delivered it and Ms Langley. 42The applicant also submitted that it was relevant to the assessment of objective seriousness that there was no risk to the public by sending the item through the public postal service because the applicant's unchallenged evidence was that he did not pay for the delivery of the parcel and that the person who delivered it knew what he was carrying. It would appear that the evidence before the sentencing judge supported the applicant's evidence, since enquiries of Australia Post revealed no record of delivery by them. To the extent that his Honour considered that those who used the services of Australia Post were put at risk by the applicant's conduct, or that the trust that was placed in that public service was jeopardised, this may have been misplaced. 43There was little to which the applicant could refer by way of mitigation and nothing in his subjective circumstances that called for any leniency. 44I am satisfied that the sentence imposed was well within the range of a sound exercise of his Honour's sentencing discretion and that appropriate regard was given to relevant sentencing principles. The predominant sentencing considerations in this case were punishment, personal deterrence and general deterrence which, in combination, warranted a stern sentence. In my view, there is nothing in the sentence imposed or the reasoning that preceded it that demonstrates the sentence was unreasonable or plainly unjust. 45I would reject second ground appeal.

Is a lesser sentence warranted? 46Although the applicant has demonstrated specific error in his Honour's approach to the issue of motive, the subject of the first ground of appeal, and although I accept that it is not necessary for the purposes of s 6(3) of the Criminal Appeal Act to establish that the sentence is manifestly excessive, it remains necessary for this Court to come to the positive view that a lesser sentence is warranted in law. 47The applicant relied upon an affidavit of 5 September 2014 as bearing on that question. He deposes to having successfully detoxified from poly-drug use over the course of the eleven months of his remand pending sentence, that he remains drug-free and intends to maintain his sobriety on his release. On 7 June 2014 he successfully completed the Getting SMART program which he attended twice a week for 12 weeks. He is currently participating in group therapy on a weekly basis with a view to maintaining his resolve. He has also obtained TAFE qualifications in thermal cutting, OHS and Manual Handling of Shift Materials. He has worked in the pallet making shop since entering custody. He expresses an understandable parental concern at being separated from his three teenage children, although there is no evidence to suggest that they are in any way at risk in his absence, with his eldest daughter having taken over his Department of Housing lease. He also said that, on reflection, he should not have sent the device and that he well appreciates that it was wrong to do so. He said: I didn't realise I scared them as much as I did until after I read their statements. When I think about the victims I feel terrible having made someone else go through that. I didn't know at the time that they have a baby in the house. Knowing that now and having kids myself, I know that it was really bad and it made me feel really guilty. 48Although it appears the applicant has gained additional insight whilst serving his sentence which, I am prepared to accept, improves his prospects of rehabilitation from the adverse finding made by the sentencing judge, I am not persuaded that a lesser sentence is warranted in law, having regard to what I am satisfied was very serious offending against the section, even accepting that the undiscounted sentence is half of the maximum penalty provided by the legislature. 49The orders I propose are:

Leave to appeal is granted.
The appeal is dismissed. 50ADAMSON J: I agree with Fullerton J.

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