Chandler v R

Court of Criminal Appeal (NSW)|2008-09-22|Before: Beazley JA, Hislop J, Price J

The applicant was later interviewed electronically in relation to those and other offences. He was cooperative with police. He ultimately admitted all of the subject offences. The statement of facts contains details of the individual offences. It is unnecessary to reproduce that detail here. 6 The applicant was born on 27 May 1974. His parents separated when he was about four years of age and he had only intermittent contact with his father from that time onwards. He left home at the age of 14 and has since led an itinerant lifestyle. He has not held any significant employment. The applicant has symptoms of Asperger's syndrome. He has a long history of poly substance abuse starting at age 14 and has been diagnosed as suffering a major personality disorder. Dr Nelson, a psychologist who was qualified on the applicant's behalf, concluded: "He does appear to have some Asperger's features as listed in the DSM-IV TR, and this diagnosis may have some heuristic value for him, but it is my opinion that the long term management of his personality disorder and attendant substance abuse disorder should be the primary therapeutic foci in his case. Mr Chandler also is expressing a desire to change the direction of his life. I believe he might be capable of achieving this in a supervised setting. However, he first would have to show a willingness to complete the residential drug and alcohol rehabilitation program and then remain under long term psychological treatment and supervision for his personality disorder." 7 The applicant has an extensive criminal history both in New South Wales and particularly in Victoria. He has previously been in prison for similar types of offences. Counsel for the respondent stated that, on his count, the applicant had convictions for 186 break, enters and steal, or break and enter with intent, or like crimes by the age of 33. A number of the subject offences were committed whilst he was on conditional liberty. 8 The pleas of guilty were entered at the earliest opportunity. The applicant received the full discount in respect of those pleas. His Honour accepted the applicant's expression of remorse. 9 His Honour found special circumstances by reason of the Asperger's syndrome and "the length of the sentence overall in relation to his youth". 10 The applicant advanced five grounds of appeal in support of his application for leave to appeal against sentence. In a letter from the applicant dated 22 August 2008, the applicant added a sixth ground of appeal. The grounds of appeal are considered separately hereunder:

Ground 1 A decisive difference in the dollar value of bereft property. 11 In his remarks on sentence the sentencing judge said "…over $40,000 worth of valuables were stolen." His Honour made no reference to the recovery of any of the stolen property. 12 The applicant submitted: "His Honour overlooked that almost half [of the stolen property] was returned" and that had his Honour taken that fact into account a lesser sentence would have been imposed. 13 There was no evidence before the sentencing court that almost half of the stolen property was returned. The only evidence before the sentencing court of the return of property was contained in the statement of facts in the following terms: "During the search of the accused's motel room, police located three separate plastic bags containing cash. This totalled $1492.24. The accused admitted to having obtained this money from the offence he committed at 2 Cottee Street, East Lismore two days prior. Police also located a quantity of ladies' jewellery which the accused admitted to having obtained from the Cottee Street break and enter. Police also located a brand new Sansui brand home theatre/DVD player and receipt. The accused admitted to having bought the equipment from K-Mart with money from the proceeds of the Cottee Street break and enter."

Additionally a phone earlier stolen (count 8) was recovered. 14 The Cottee Street offence occurred on 28 October 2006. The statement of facts recorded that the value of property stolen from that address was $4829.29. It is apparent from this evidence that the amount recovered did not exceed $4829.29 and that the recovery of that property was fortuitous as the applicant still had it in his possession when the police attended. 15 In Thewlis v R [2008] NSWCCA 176 Spigelman CJ at [2] and [4] said: "Hunt CJ at CL in R v Phelan (1993) 66 A Crim R 446 at 448 said that it is not the case that 'an offender is able to purchase mitigation'. However, his Honour went on immediately to say where there has been a substantial degree of sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation…The reasons in Phelan were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough." 16 No submission was made by the applicant's legal representatives at the sentencing hearing that the sentence should have been reduced on this basis. 17 In my opinion, his Honour did not err in not reducing the sentence by reason of the fortuitous recovery of some of the stolen property. This ground of appeal fails.

Ground 2 A submitted proposal for an Ellis discount overlooked, by accident or error. 18 The applicant submitted that he had disclosed offences (counts 9, 11 and 12) to the police which the police otherwise could not have proved had been committed by him and also informed police of two offences (counts 10 and 13) which had not been reported. 19 The applicant's legal representatives, in their written submissions on sentence, submitted that the applicant was entitled to an Ellis discount by reason of those disclosures. 20 The sentencing judge made no express reference to the Ellis discount in his remarks on sentence. The applicant submitted this indicated his Honour had failed to take the Ellis discount into account on sentencing and, had he done so, a lesser sentence would have resulted. 21 In Ryan v R (2001) 206 CLR 267 McHugh J stated: [15] …the statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case." 22 In Lewins v R [2007] NSWCCA 189 at [18] Howie J (with whom the other members of the court agreed) said: "Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender. That was so in the case of the present applicant. There was, in my opinion, no warrant to apply any mathematical reduction to [the offender's] sentences by reason of his disclosure of unknown criminality." 23 The sentencing hearing commenced on Wednesday 8 August 2007 and was adjourned from that day to Friday 10 August 2007, when it was completed. His Honour pronounced sentence and gave his remarks on sentence on 10 August 2007. In my opinion it is unlikely in these circumstances that his Honour overlooked the question of an Ellis discount. It is impossible to say whether his Honour allowed a small Ellis discount or none at all. 24 In my opinion, the revelation of more criminality would not have entitled the applicant to an Ellis discount having regard to the extent of the known criminality of the applicant for which he was charged. This ground of appeal fails.

Ground 3 Excessive starting sentence. 25 His Honour, in his remarks on sentence, said: "Had it not been for the pleas, the minimum overall sentence in my view that would have been called for would have been one of 7-8 years, so it will be seen I have reduced that by a quarter." 26 The applicant submitted a starting point of 7-8 years was too high relative to the nature of the offences which, he contended, were neither ambitious nor planned. 27 I do not agree. Each of the offences with which the applicant was charged was a separate offence involving separate victims and the total value of the property stolen was not insignificant. As his Honour observed, each of "those householders have had their privacy invaded and it is well known and acknowledged the distress that causes people when some stranger had been ransacking around inside their home." Additionally, in some cases, damage was occasioned to the premises as a result of the break in. A number of the offences were committed whilst the applicant was on conditional liberty. All were committed against a history of a great number of like offences which had continued over a lengthy period of time. As his Honour observed, this meant it was more difficult to extend any leniency to the applicant. 28 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478 it was said: "…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell ... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

See also R v McNaughton [2006] NSWCCA 242. 29 The sentencing discretion which is afforded to a first instance judge is a wide one. In my opinion, it has not been demonstrated that the sentencing judge's starting point was manifestly excessive such as to result in the sentences falling outside the discretionary range open to his Honour. 30 This ground of appeal fails.

Ground 4 A misunderstood intention of a cited diagnosis, that may have affected the response. 31 His Honour, in his remarks on sentence, said: "…according to the reports he also has the misfortune to suffer from some symptoms of a particular condition. That condition has not been easily treatable in the past, I think it is a relevant factor, but I do not see it myself as giving rise to the behaviour which I have to deal with here. Nevertheless it is something to take into account when assessing the appropriate way to deal with the various sentences." 32 The condition to which his Honour referred was Asperger's Syndrome. His Honour dealt with it by finding special circumstances due to that condition. 33 The applicant, in his written submissions, stated: "His Honour's remarks read as though I'd offered Asperger's Syndrome as an excuse; whereas I'd explicitly stipulated I wasn't. I'd merely put it forward as a reason - now that it's diagnosed - why my future will be brighter." 34 In my opinion, neither the applicant nor his Honour were of the opinion that the Asperger's syndrome was causative of the behaviour which led to the offences. Each was of the opinion that the condition was something to take into account in assessing the future. His Honour did this by having regard to the condition as a special circumstance. I do not perceive any error in this regard. Accordingly, this ground of appeal fails.

Ground 5 Reduction sought in partial proportion of time I'll spend at residential rehabilitation if paroled. 35 The applicant, in his written submissions, stated: "Time was deducted for time I'd been at rehab, which I appreciate. Even more important is the time I plan to spend at rehab if paroled. This was submitted, and mentioned in my testimony. I'm booked at The Glen for three months. I have a letter showing acceptance should be in exhibits. I'd hoped his Honour would make it a condition of parole and deduct 1½ months in lieu." 36 The Glen Centre is an alcohol and other drug rehabilitation centre that conducts a residential programme. The letter from that organisation referred to by the applicant is dated 7 May 2008 and states that the applicant has been assessed as suitable for the rehabilitation programme but that, at present, no bed is available. 37 The Probation and Parole pre sentence report dated 16 July 2007 stated that the applicant "has participated in approximately six residential rehabilitation programs, failing to complete any for a variety of reasons…Mr Chandler stated that he has applied to The Glen Residential Rehabilitation Centre to address his substance abuse, and claims that he has been accepted. It is uncertain though whether this would be of any benefit to him because of his dual diagnosis and his history of unsuccessful attempts of addressing his substance abuse through residential rehabilitation programmes." 38 Dr Nelson also expressed some doubts in his report that the applicant would complete the residential drug and alcohol rehabilitation programme. 39 A sentencing judge has a very wide sentencing discretion. It has not been demonstrated, having regard to the evidence, that his Honour fell into appealable error in not making attendance at The Glen a condition of parole and "deducting 1½ months in lieu".

Ground 6: The sentence exceeded a sentence which would have been imposed in the Local Court 40 The applicant submits the matters could have been dealt with in the Local Court and that he has suffered detriment by reason of having the matters heard in the District Court in that the maximum penalty to which he would have been exposed in the Local Court was imprisonment for five years on all the charges he faced. 41 The Crown was entitled to determine that the charges be dealt with in the District Court and the applicant's criminal history and the number of offences for which he appeared for sentence rendered this an appropriate course to take. 42 The sentencing judge, in determining sentence, was not restricted to the sentence which may have been imposed in the Local Court or subject to any maximum sentence in the Local Court. 43 As Johnson J observed in El Masri [2005] NSWCCA 167 at [29]-[30]: " [29] It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford ; R v Griggs ; Crombie , at para 16; Doan , at 123ff (para 35ff); R v LPY at 240. But it is not a universal rule ( Sandford , at 195) nor a factor which operates universally to reduce sentence ( Doan , at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow at para 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma at para 13.

[30] … A judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court…" 44 His Honour referred to the suggestion that the matter could have been determined in the Local Court. His Honour stated that in his view the matter was perfectly properly brought in the District Court and he did not think it was very constructive to enter into any consideration as to whether or not a magistrate could or would have given more or less. No error is demonstrated in this regard. 45 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79]. 46 In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 47 I propose the following orders:

Appeal dismissed. 48 PRICE J: I agree with Hislop J. **********

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Thewlis v R [2008] NSWCCA 176 Ryan v R (2001) 206 CLR 267 Lewins v R [2007] NSWCCA 189 CASES CITED : Veen v The Queen (No 2) (1988) 164 CLR 465 R v McNaughton [2006] NSWCCA 242 R v El Masri [2005] NSWCCA 167 R v Simpson (2001) 53 NSWLR 704

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