Clayton Matthew KEAN v R

3The differing sentences proposed respectively by the trial judge, RS Hulme J and Adams J can be represented as follows: Ground 2 4I agree with Adams J, for the reasons he gives, that the sentences are manifestly excessive and that resentencing is required. Ground 1 5The CAN offence related to a contravention of s 112(1) Crimes Act 1900. If that offence had been prosecuted in the Local Court, s 267(2) Criminal Procedure Act 1986 would have had the effect that the maximum sentence able to be imposed was 2 years. I agree with Adams J that the applicant's history made that maximum sentence inappropriate. However, in circumstances where the trial judge imposed a sentence of 5 years and a non-parole period of 2 years 6 months for the CAN offence, together with the Form 1 offence, and where the judge erred in failing to take into account that the CAN offence could have been dealt with in the Local Court, I am unable to reach a positive conclusion that this error did not prejudice the applicant. 6When there has been an error of principle by the trial judge in the course of sentencing, and I am unable to reach a positive conclusion that that error has not affected the sentence the judge imposed, the proper course, in my view, would be to uphold the appeal concerning ground 1. However, the only effect of my reaching that conclusion is that ground 1 and ground 2 each provide an independent reason for re-sentencing the applicant. Resentencing 7The only difference of substance between Adams J and RS Hulme J concerns the manner in which a total sentence of 3 years for count 1 (on which they agree) should be divided between the non-parole period and the balance of term. I agree with both of them concerning that total sentence. A term of 3 years bears an appropriate relationship to the maximum term that is permissible, bearing in mind the objective seriousness of this instance of offending by comparison with the total range of offending that could fall within the particular offence charged, the offender's subjective circumstances, and the objectives of sentencing. 8I agree with RS Hulme J concerning the length of the non-parole period that is appropriate for count 1. The non-parole period that his Honour proposes, of 2 years 3 months is well below the standard non-parole period of 5 years. It reflects the extent to which the objective seriousness of the crime is well below the mid-range for contraventions of s 112(2) Crimes Act . It reflects both the aspects of the subjective circumstances of the applicant that tend to a lesser sentence, and the aspects of his subjective circumstances (such as his record) that tend against a lesser sentence. It is in my view consistent with the objectives of sentencing. While the ways in which those considerations were exhibited in the present case would need to be articulated if this were a principal judgment in the appeal, I do not think that is necessary when I am agreeing with a judgment already written. 9The remaining differences between the sentences proposed by their Honours are consequential on their difference of view about the appropriate length of the non-parole period for count 1. 10It was not suggested, and could not have been suggested, that the 12 months fixed term sentence that the judge imposed for count 3 was greater than the term that this Court should impose in resentencing. 11Each of their Honours arranges the 12 months fixed term sentence for count 3 to run so that the first 6 months of that 12 month fixed term is concurrent with the last 6 months of the non-parole period for count 1, and the remaining 6 months of the 12 month fixed term for count 3 is not concurrent with any other sentence. This is, with respect, a correct application of a principle that had been overlooked by the primary judge. That principle is that when several sentences are imposed on an offender they should usually be arranged so that it is possible for both the offender and the community to see, concerning each offence, that there is an identifiable period of time when the offender is serving a non-parole period attributable only to that offence. This principle might need to be departed from in circumstances such as when considerations of totality make it impossible for the sentences to be arranged in that way, or if a very large number of offences are being sentenced for, but the present is not such a case. 12Adams J and RS Hulme J agree concerning both the appropriate non-parole period and the appropriate balance of term for the CAN offence together with the Form 1 offence. Both Adams J and RS Hulme J propose that the sentence for those offences should commence only at the end of the fixed term imposed for the count 3 offence. Their Honours have, in these respects, acted in a way with which I agree in composing an overall sentence. 13For these reasons, I agree with the orders proposed by RS Hulme J. 14RS HULME J : In this matter I have the advantage of reading the Reasons for Judgment of Adams J. Subject to the following remarks, I agree with his Honour. 15For the reasons stated by Adams J the sentencing Judge, to adapt the words of ground 1, "erred in failing to have any... regard to the fact that counts 2 and 3 [a mistake respectively for count 3 and the CAN offence] could have been dealt with in the Local Court". It follows that he failed to have "proper regard". 16However, for the reasons given by Adams J, proper regard would have involved his Honour in concluding that the jurisdiction of the Local Court was inadequate, that that court was an inappropriate forum, and that the possibility that it could have been dealt with there, a matter of no weight. 17Thus, essentially for the reasons given by Adams J, but contrary to his Honour's conclusion, it seems to me that this ground, in the precise language in which it is expressed, should be upheld. That said, while the sentencing Judge erred, the error the subject of this ground was of no consequence. 18In R v Harris [2007] NSWCCA 130 the Court, of which I was a member, considered at some length the seriousness of offences of breaking, entering and stealing and car stealing. I see no reason to depart from anything said there and my approach to the Applicant's offending reflects those remarks. 19Immediately prior to committing the offence, the subject of Count 1, the Applicant was on premises that were not his, it is to be inferred, for the purposes of offending. He then tried to break in. His failure to do so would not seem due to any pangs of conscience but in consequence of finding some other, presumably more convenient, way of obtaining possession of the handbag he stole. 20The Applicant is to be sentenced for what he did and it is relevant that he did not extend his activities to causing his whole body to enter the premises, the subject of the first charge. However, that he made no more extensive efforts than he did to obtain access to the property stolen, is not a matter for which he is entitled to much credit. His return visit on the following day to steal the motor vehicle confirms that view. 21It may well be as Adams J has suggested that incarceration has little value as a deterrent to the Applicant. However, there remain considerations of general deterrence, retribution, and protection of the community. While I do not suggest this last mentioned factor should lead to imprisonment of the Applicant for longer than his offence otherwise merits, his appalling history to date indicates that this is not a matter to be treated lightly. 22I agree with Adams J that an appropriate head sentence for the Count 1 offence is 3 years. However, I can see no reason why the non-parole period should be any less than the proportion envisaged by s 44 of the Crimes (Sentencing Procedure) Act , viz. three-quarters of the head sentence. 23Accordingly I propose the following orders:- (i) Grant leave to appeal. (ii) Allow the appeal. (iii) Quash the sentences imposed on the Applicant by Berman DCJ on 12 February 2010. (iv) In respect of Count 1, sentence the Applicant to imprisonment for a non-parole period of 2 years and 3 months commencing on 1 December 2008 together with a further term of 9 months commencing on 1 March 2011. (v) In respect of Count 3, sentence the Applicant to imprisonment for a fixed term of 1 year commencing on 1 September 2010. (vi) In respect of the CAN offence, and taking into account the Form 1 offence, sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 1 September 2011 together with a further term of 2 years commencing on 1 June 2012. (vii) Record as the date upon which it appears that the Applicant is entitled to release on parole, 1 June 2012. 24ADAMS J: Introduction 25On 16 November 2009 the applicant was convicted in the District Court of the offence of breaking and entering a dwelling house and stealing an item from it, knowing that a person was inside the premises, the latter being a circumstance of aggravation (count 1). He had pleaded guilty to an alternative count which did not allege the aggravating circumstance but the Crown declined to accept this plea in discharge of the indictment. The applicant was tried (by judge alone) and convicted of the principal count. On the same date, he pleaded guilty to an offence of stealing a motor vehicle from the occupier of the premises (count 3). In addition, the applicant pleaded guilty to breaking, entering and stealing from commercial premises, this being before the Court by virtue of a court attendance notice, to which he had pleaded guilty in the Local Court (CAN offence). He asked that the theft of another motor vehicle should be taken into account on a Form 1. The offences were committed respectively on 29 and 30 September and 11 and 6 December 2008. 26The count 1 offence carries a maximum term of imprisonment of 20 years with a standard non-parole period of five years. The CAN offence carries a maximum term of imprisonment of fourteen years whilst count 3 carries a maximum penalty of five years imprisonment. 27On count 1 he was sentenced to imprisonment for four years commencing on 1 December 2008 with a non-parole period of two years and six months. On count 3 he was sentenced (allowing a discount of 25% for the plea) to imprisonment for a fixed term of 12 months commencing on 1 December 2010. On the CAN offence (taking into account the Form 1 offence and allowing a discount of 25% for the plea) the applicant was sentenced to imprisonment for five years commencing on 1 June 2010 with a non-parole period of two years and six months. The effective aggregate sentence was therefore imprisonment for six years and six months commencing on 1 December 2008 with a non-parole period of four years. The commencement date reflected backdating accounting for the time spent in custody of one year, two months and 12 days. 28The applicant seeks leave to appeal upon the following grounds - Ground 1 - The learned sentencing judge erred in failing to have any or proper regard to the fact that counts 2 and 3 [a mistake respectively for count 3 and the CAN offence] could have been dealt with in the Local Court and failed to have any or proper regard to the maximum penalty in such a case. Ground 2 - The individual sentences imposed on counts 1 and 3 [this being an error for the CAN offence] were manifestly excessive and the overall sentence was manifestly excessive. The facts 29For the purpose of the sentencing proceedings, the facts were not controversial. The following is taken largely from the sentencing judge's reasons. 30On 29 September 2008 the female victim and her husband were at home in the afternoon, the latter leaving at about 5.30pm, his wife then in a study on the third storey of their home. The applicant, seeing the male victim leave the house, looked through one of the windows and saw a bag on a chest of drawers. He removed a flyscreen in order to enter the house through a window but could not open it because it was deadlocked. Seeing a dog door in a set of doors on the ground floor, he got a garden stake and, putting part of his body through, lifted the bag off the chest of drawers using the stake. He escaped with the bag. Whilst he was doing this, the female victim heard noises from downstairs and called out. Receiving no answer, she ignored the noise and went back to work. The sentencing judge found that the applicant knew that it was likely that a person was home when the offence was committed but that, although the offence was aggravated because the premises were occupied, the female victim did not realise she had been burgled until some time later and, of course, it was not a case where there was any confrontation with an offender. The bag contained a wallet, housekeys, miscellaneous personal papers and the key to the victim's motor vehicle. There is no evidence, one way or another, as to whether the bag and its contents were recovered or what happened to the motor vehicle. 31So far as count 3 is concerned, on the day following the break-in, the applicant returned to the premises and stole the motor vehicle using the keys that were in the bag. 32The CAN offence committed on 11 December 2008 involved the applicant entering commercial premises through an unlocked steel security gate. People who were inside heard the door being opened and went to investigate, finding the applicant standing next to the safe. They panicked, ran out the front of the store and used a bystander's phone to call police. In the meantime, the applicant opened the safe, removed about $200 in cash from it and ran away. When police attended they discovered his fingerprint. The Form 1 offence involved the theft of a motor vehicle on 6 December 2008. Prior offences 33The applicant had a very lengthy criminal history and, as his Honour observed, had spent a great deal of his life in custody. He was 32 years of age at the time of the offences. His first conviction occurred in June 1993 when he was 16 years of age. This conviction was followed by further convictions of stealing and burglary in 1995, forgery, uttering, obtaining goods by false pretences, stealing and burglary, attempted armed robbery in 1999, burglary and stealing offences in 2002, possessing firearms in 2003, stealing, aggravated robbery and burglary and other offences of dishonesty in 2003, burglary and stealing in 2004 and 2005 in which year he was also convicted of further firearm offences. He has also been convicted of a large number of traffic offences and offences involving the use and possession of drugs. He had been released on parole in March 2008 and the count 1 offence was committed only 11 days and the count 2 offence 12 days after the expiry of that period. Ground of appeal 1 34It is not disputed that count 3 and the CAN offence could have been dealt with in the Local Court as a matter of jurisdiction. It is not clear why, apart from convenience, these counts were dealt with in the District Court. In written submissions counsel for the Crown drew the sentencing judge's attention to the maximum penalty in the Local Court for the count 3 offence in the context of the application of the guideline judgment of R v Ponfield & Others (1999) 48 NSWLR 327 in which Grove J (with whom the other members of the bench agreed) pointed out that it was a matter of "particular significance" that statutory provision was made for disposing of offences contrary to s 112(1) of the Crimes Act 1900 summarily in the Local Court and noting "the vast proportion of offences under ... [this provision] are, and every indication is that they will continue to be, dealt with in the Local Courts". However, as it happened, no oral submissions were made to the sentencing judge by counsel either for the prosecution or the defence on the possible significance of the concurrent Local Court jurisdiction in respect of these counts and the sentencing judge did not refer to the matter. 35The relevant principles were distilled by Hall J (the other judges agreeing) in R v Palmer [2005] NSWCCA 349 as follows - (a) The first is that 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: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30]. (b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie ( supra ) at [15]. (c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16]. (d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115. (e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17]. (f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). 36It is submitted on behalf of the Crown that the applicant's criminal history, together with the fact that the CAN offence was committed whilst on bail (granted 26 November 2008) meant that considerations of personal deterrence required a sentence beyond the jurisdictional limit of the Local Court and, hence, the mere fact that the Local Court might otherwise have appropriately exercised its jurisdiction was immaterial. On the other hand, it is contended by Mr Averre of counsel for the applicant that, although these were material factors, the actual criminality involved in the offence itself was not such as would have required a removal of the count into the District Court were it not for the incidental fact that he was to be sentenced for count 1. 37The first question to be determined is whether the sentencing judge overlooked the matter. Certainly, as I have mentioned, his Honour did not mention it in his reasons. It seems clear that, if the matter had come before the District Court as an administrative convenience, the fact that it could have been dealt with in the Local Court and, in the normal course, is a matter of significance. Here, the fact that this issue was not raised by counsel and not referred to by the sentencing judge persuades me that it was overlooked. This would not matter very much, of course, were the submission of the Crown in this Court correct that, at all events, counts 2 and 3 were appropriately removed to the District Court because of the requirement to impose a more serious penalty than would have been otherwise available. 38So far as the criminality of the offences were concerned, the Crown prosecutor submitted that count 3 was a fairly standard example of offences of this kind, a submission which I would accept. However, as he pointed out, the applicant was not in the result punished for this offence because the fixed term in respect of it was wholly subsumed in the sentence for the housebreaking. So far as the CAN offence is concerned, it is submitted that it "was a serious example of offences of its kind, given the presence of people in the premises at the time of the breaking and entering". Although certainly the applicant's theft from the safe after he had been seen by the person in the premises was brazen, I do not see how it adds significantly to the criminality either of the breaking and entering or the theft. It was no part of the prosecution case that the applicant knew or had reason to believe that persons were present. This is not only evident from the agreed facts on sentence but also, of course, that he was not charged with the aggravated form of the offence. Although the objective fact that persons were frightened by the criminal act of an accused is a material factor which renders it, to a greater or lesser degree, more objectively serious, in the circumstances here, it was to my mind of only minor significance. 39In respect of the applicant's prior offences, the Crown points out that this offence was the applicant's thirty-third conviction for a burglary offence in addition to his numerous other convictions for offences involving dishonesty. 40Were it not for the applicant's criminal record, it would in my view have been necessary, in respect of count 3 and the CAN offence, to give significant weight to the fact that they could have been dealt with in the Local Court. However, the need to impose a sentence which, though not involving any element of preventive detention, would protect the community from the applicant's continuing depredations meant that the jurisdictional limit in the Local Court was inadequate. Although the learned sentencing judge, with respect, erred in failing to consider the fact that count 3 and the CAN offence could have been dealt with in the Local Court, this did not prejudice the applicant. It follows that this ground of appeal must be dismissed. Ground of appeal 2 41Neither the offence in count 1 and the CAN offence were serious examples of their kind. The count 1 offence, of course, attracted a standard non-parole period of five years for an offence in the middle of the range of objective circumstances. The only damage to the premises, if it can be so termed, was the removal of a fly screen. It is clear that , following the thwarted attempt to enter through the window from which the flyscreen was removed, the applicant made no further attempt to entirely enter the home and limited his actions to taking the victim's handbag by use of the garden stake. It may be, of course, that he did so because he was aware that someone was or might be at home and did not wish to raise a hue and cry but, whatever his motives, the way in which he committed this offence, the fact that the victim, although initially disturbed, did not know of his intrusion and the relatively small value of what was stolen, places it at or close to the bottom of the range of objective seriousness for offences of this kind. I do not suggest, with respect, that the applicant is entitled to any credit for the limited extent of his break-in but simply that this is an objective fact of substantial significance in assessing the objective criminality involved in the offence. 42In respect of the CAN offence on 11 December 2008, as the sentencing judge observed, objectively this was a more serious offence than count 1, though the latter carried a much higher maximum sentence and also a standard non-parole period. The premises were commercial premises and the theft was, as I have mentioned, a brazen one. The applicant gained entry by opening the steel security door but it is not suggested that he caused any damage. Nor, it appears, did he search the premises for items to steal but confined his attentions to the safe. The amount stolen was $200, which is a relatively small sum. In my view this offence also was very much at the lower end of objective seriousness, bearing in mind particularly the range of serious indictable offences to which the maximum sentence of 14 years applies. The theft of the car added considerably to the property taken by the applicant from the victim and, to my mind, necessitated a significant degree of accumulation of the sentence. 43With respect, I do not disagree with the observations in R v Harris [2007] NSWCCA 130 concerning the seriousness of the offences committed by the applicant. It suffices to say that the sentences that I propose in my view reflect that very view. 44Subjectively, as I have already pointed out, the applicant had only recently completed a period on parole when he committed the offences in counts one and three. He was on bail when he committed the CAN offence and that on the Form 1. 45A clinical psychologist's report, which was not controversial, was tendered on the sentencing proceedings. In brief, the applicant was some 32 years of age as at the date of these offences. He was born in Tasmania where he lived for most of his life. He gave a history of a traumatic childhood and of poly substance abuse from an early age, with what the psychologist describes as "addiction/dependency and mental state impacts". He did not complete his high school education and, although he worked in his teens as a labourer in the forestry industry, essentially he had not worked since he was 17 or 18 years of age because of substance abuse and the series of prison sentences. Test results did not indicate any development disability or global limitation in intelligence. So far as his drug use is concerned, he reported using cannabis from 11 years of age, sniffing petrol when he was 13 to 14 years of age and also using hallucinogenic mushrooms in adolescence, commencing amphetamine use when he was 16 or 17 years of age. There were some approaches to rehabilitation but these were ineffectual. At times his abuse of amphetamines and, latterly, cocaine produced episodes of drug induced psychosis with paranoid delusions and hallucinations with significant personality distortion. The psychologist described the applicant's history as "suggestive of institutionalisation", a scarcely surprising opinion. The applicant acknowledged that the best way he could effect a change in his conduct was to be taken to a residential rehabilitation program with a view to being provided with treatment and socialisation and a gradual return to the community. The psychologist opined that, if the applicant could not control his substance abuse and make a more effective return to the community than hitherto, his "prognosis is very poor". It seems to me that this conclusion is entirely justified. 46Also tendered on the sentencing proceedings was a letter from the applicant in which he acknowledged his problem with drug abuse and accepted his need for the assistance of a rehabilitation program to enable him to avoid committing further offences in the community. 47The sentencing judge found that the objective criminality of the count 1 offence was lower than the middle of the range of seriousness though, as I apprehend it, not at or near the bottom of the range. In respect of the CAN offence, his Honour accepted the submission of applicant's counsel that "in objective gravity terms, [the] non-aggravated offence is probably more serious than the aggravated offence, involving as it did [the applicant] entering the premises completely and stealing from a safe there after he had been seen by people working on the premises". However, these factors could not, in my respectful view, increase the seriousness of the criminality significantly above the bottom of the range, nor could they significantly affect the distinction implied by the much lower applicable maximum penalty. 48Of course, reasonable minds might well differ on the seriousness of the criminality involved in an offence and the degree to which, where it is relevant, it departs from the middle of the range and an appellate court cannot substitute a merely different opinion: in the absence of error, the appeal must fail. The sentence imposed on the count 1 offence was four years imprisonment and the starting point for the CAN offence, taking into account the Form 1 offence, before discounting for the plea, was six years and eight months imprisonment. I have concluded, with respect, that although there is no patent error, both the sentences were manifestly excessive, such as to require intervention. Noting that the sentence for count three was entirely (though, in my view, wrongly) concurrent, I have nevertheless formed the opinion that, with respect, the overall sentence of six years and six months imprisonment was manifestly greater than the totality of the criminality involved in the offences. It follows that the applicant must be resentenced. Resentencing 49The relevant objective and subjective matters have been sufficiently set out above. I am prepared to accept that the applicant's desire for rehabilitation is sincere and, in that sense, is evidence of contrition but it is impossible to avoid substantial scepticism as to whether he can make this intention good when he is eventually released into the community. Certainly, only a close and continuous supervision, such as that provided by a residential rehabilitation program, appears to have any chance of success in this regard. Whether he seeks entry into such a program will be a matter for him in due course. 50An additional point is that, as the psychologist points out, it is questionable whether incarceration has much deterrent value at this stage as the applicant seems well able to cope with any sentence he receives, having been effectively institutionalised. In short, an increase in punishment for the purpose of personal deterrence beyond what would otherwise be appropriate would not seem to be useful. 51The statutory ratio between sentence and parole period as provided in s 44 of the Crimes (Sentencing Procedure) Act 1999 will need to be adjusted because of the accumulation of the sentences. A further adjustment is, in my view, appropriate because of the considerable difficulties that this applicant will have in carrying through his intentions for rehabilitation. 52So far as the non-parole period is concerned, this case does not call for an examination of the statistics as to the rates of departure from the statutory calculus prescribed by s44 of the Sentencing (Criminal Procedure) Act 1999 in cases involving the present offences, but I would respectfully point out, a propos the observation in para [67] of the Court's judgment in Harris ( supra ) about the number of cases in which "special circumstances" are found, that the statistics do not provide a sound basis for criticism of the sentencing practices of the District Court in this respect. Such a matter is very much determined by the particular facts of each case, details which were not available to the Court. 53The discount of 25% on the sentence for the CAN offence has been continued. Proposed orders 54I propose the following orders -

1. Leave to appeal is granted.
2. The sentence on count 1 is quashed and in lieu thereof the appellant is sentenced to a non-parole period of one year and six months commencing on 1 December 2008 and expiring on 31 May 2010 with a balance of term of one year and six months.
3. The sentence of a 12 months fixed term on count 3 is varied to commence on 1 December 2009.
4. On the offence contained in the CAN, the sentence is quashed and in lieu thereof, taking into account the Form 1 offence, the appellant is sentenced to a non-parole period of nine months commencing on 1 December 2010 and ending on 31 August 2011 and a balance of term of two years commencing on 1 September 2011 and expiring on 31 August 2013. 55The dates of the fixed one year term for count 3 were varied because of the variation to the sentence on count 1. 56The effective sentence is therefore four years and nine months with a non-parole period of two years nine months.