Daniel FORBES v R

Court of Criminal Appeal (NSW)|2009-06-26|Before: Hidden J, McCallum J, Kirby J, Clellan CJ, Callum J

The application 31 There are three grounds of the application: "1. His Honour failed to have regard to Crimes (Sentencing Procedure) Act 1999 and authority in dealing with offences carrying a standard non-parole period. 2. His Honour failed to assess and have proper regard to the applicant's role in the joint criminal enterprise for the s 112(2) offence. 3. Each sentence was excessive such that other less severe sentences are warranted."

The grounds are related, and the applicant also relies upon the sentence subsequently imposed upon Crowden by Walmsley DCJ. 32 Before considering each of the grounds, it is convenient to deal with the challenge to his Honour's findings of fact and the approach of Walmsley DCJ to the sentence of Crowden. Counsel for the applicant, Mr Haesler SC, submitted that there was "no cogent basis" for rejecting what he had said in evidence, and what he had told Dr Jacmon and Dr Westmore, about Crowden's intimidation of him and the influence that had exerted upon his involvement in the offences. Mr Haesler also argued that his Honour had failed to give proper weight to the opinions of Dr Jacmon and Dr Westmore on this issue. 33 It must be borne in mind, however, that his Honour had the advantage of observing the applicant as a witness. As I have said, whatever might be the truth of the history of the applicant's relationship with Crowden, there were good reasons for his Honour to be guarded about his account of how he became involved in these offences. Any view expressed by Dr Jacmon or Dr Westmore was largely dependent upon the truth of what the applicant told them and, in any event, Dr Westmore's assessment of the significance of the incident with the gun was at best tentative. His Honour gave the applicant the benefit of the qualified finding of a degree of persuasion or intimidation by Crowden, and that approach was clearly open. 34 Mr Haesler also submitted that it was not open to his Honour to have rejected the applicant's expression of remorse. It is true that his Honour did not flesh out his reasons for doing so. However, again, he had the advantage of observing the applicant as a witness. Moreover, as the Crown prosecutor in this Court pointed out in written submissions, the applicant's claim to be contrite stood to be weighed against his initial denial of the offences to police, his late pleas of guilty and, most importantly, his exaggeration of the extent to which his involvement was a result of Crowden's influence. This finding also was open. 35 When Judge Walmsley sentenced Crowden, he was aware of the sentences passed upon the applicant but did not have his Honour's remarks. In relation to the ram-raid, Crowden pleaded guilty to the same offence as the applicant and asked for the same three related offences to be taken into account on a Form 1. He also pleaded guilty to stealing the Shark Cat vessel. He was also dealt with for an entirely unrelated offence under s 112(2) of the Crimes Act (a home invasion), in respect of which two further offences were taken into account on another Form 1, including another offence under s 112(2). 36 For the offence of stealing the boat, Crowden was sentenced to a fixed term of imprisonment for 18 months, dating from 20 March 2007. For the unrelated offence under s 112(2), with the matters on that Form 1, he was sentenced to imprisonment for 3 years, comprising a minimum term of 18 months and a balance of term of 18 months, commencing on 20 May 2007. For the ram-raid offence, with the related matters on the Form 1, he was sentenced to the same term as the applicant: imprisonment for 6 years and 8 months with a non-parole period of 3 years and 4 months, in his case to date from 20 November 2007. 37 In the result, for the whole of the criminality for which he was to be dealt with, Crowden was sentenced to an overall term of 7 years and 3 months, with an effective non-parole period of 4 years. The applicant's overall term, it will be remembered, was imprisonment for 6 years and 11 months with a non-parole period of 3 years and 7 months. 38 Judge Walmsley saw the ram-raid offence as falling in the mid-range of objective gravity. The statement of facts in Crowden's case recited his involvement in that offence and the related offences but did not assert that he was the ringleader, and his Honour saw no reason to differentiate between his role and that of the applicant. He imposed upon Crowden the same sentence as that of the applicant "because of the need for parity". He noted that the offence of stealing the boat to which Crowden had pleaded guilty was less serious than the applicant's offence of facilitating the rebirthing of that vessel, which carries a higher maximum sentence. This, no doubt, is why his Honour sentenced Crowden to 18 months imprisonment for that offence, while the applicant had been sentenced to 2 years for his offence.

Ground 1: offences carrying standard non-parole periods 39 As I have said, it is common ground that his Honour erred in failing to specify a non-parole period in respect of the 2 year sentence for the boat rebirthing offence. It will be necessary for this Court to intervene, if only to the extent of fixing a non-parole period. 40 However, Mr Haesler argued that his Honour also fell into error in arriving at the sentence for the ram-raid offence. His Honour considered that that offence, but for the plea of guilty, should attract a sentence of 8 years imprisonment. After the 20% reduction for the plea, he arrived in round figures at the sentence of 6 years and 8 months. He set the non-parole period of 3 years and 4 months having found special circumstances. 41 Mr Haesler argued that his Honour had failed to follow the process for sentencing for an offence carrying a standard non-parole period set out in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act, in accordance with the principles enunciated by this Court in R v Way [2004] NSWCCA 131, 60 NSWLR 168. The standard non-parole period for the offence is 5 years. Mr Haesler pointed out that, in the absence of special circumstances, that non-parole period would result in a head sentence of 6 years and 8 months, the sentenced passed upon the applicant. A head sentence of 8 years, again in the absence of special circumstances, would produce a non-parole period of 6 years. 42 However, as Mr Haesler observed, there were a number of reasons in this case to depart from the standard non-parole period in the applicant's favour. His Honour had found that the objective gravity of the offence fell short of the mid-range. The applicant had pleaded guilty and had good prospects of rehabilitation. Mr Haesler also referred to evidence of the applicant's contrition, but I have found that it was open to his Honour to reject that evidence. Reliance was also placed on what Mr Haesler described as the applicant's "lesser and subsidiary role in the offence", a matter to which I shall return when I deal with the second ground of the application. 43 Mr Haesler submitted that his Honour had not had regard to the standard non-parole period as a guidepost in arriving at the appropriate sentence, in the manner expressed in Way at [122]. Rather, he had "focused first on the head sentence and then made allowances for the plea and special circumstances when fixing the non-parole period". At no stage, argued Mr Haesler, "did he stand back and assess the sentence imposed by reference to any finding about the objective seriousness of what the applicant did". 44 In his remarks, his Honour did deal with matters capable of warranting a departure from the standard non-parole period, and he gave the applicant the benefit of a significant reduction of that period. Nevertheless, he did not expressly refer to the standard non-parole period and record his reasons for departing from it, as required by s 54B of the Crimes (Sentencing Procedure) Act. Nor does it appear that he had regard to the standard non-parole period as a guidepost in arriving at the sentence he did. However, the question for this Court is whether it should intervene on the basis that, for those reasons, the sentencing process miscarried. 45 The gravamen of Mr Haesler's complaint is that, viewed against the standard non-parole period of 5 years for an offence in the mid-range of objective gravity where there has not been a plea of guilty, his Honour's starting point of 8 years is demonstrably excessive. However, more than once, this Court has had occasion to consider the difficulty in sentencing for an offence under s 112(2) of the Crimes Act, given that it carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years and that it embraces such a wide range of criminality: see, for example, Marshall v R [2007] NSWCCA 24, per Howie J at [34] - [38]. In arriving at the starting point in the present case, his Honour was required not only to reflect the objective gravity of the ram-raid offence but also to take into account the five offences, themselves serious, on the Form 1. 46 Whether the sentence passed upon the applicant is manifestly excessive is a matter which I shall examine when dealing with ground 3. The matters the subject of this ground do point to a significant irregularity in the sentencing process, but whether they justify intervention turns on the question whether any lesser sentence than that which his Honour passed was warranted: s 6(3) of the Criminal Appeal Act 1912. To that question I shall return.

Ground 2 - the applicant's role 47 Mr Haesler submitted that his Honour fell into error in failing to distinguish between the role of the applicant and that of Crowden in the ram-raid offence (and the Form 1 offences associated with it). In part, he pursued this ground on the basis that his Honour should have found that the applicant was intimidated by Crowden to the extent he claimed, but I have already determined that it was open to his Honour to arrive at the conclusion he did about that matter. Otherwise, Mr Haesler noted that in the statement of facts Crowden was described as the ringleader of the group. He also relied on Judge Walmsley's approach to the sentencing of Crowden, although there was no separate ground relating to parity of sentence. 48 Both Mr Haesler and the Crown prosecutor referred to R v Goundar [2001] NSWCCA 198, 127 A Crim R 331, in which the Court considered the approach to sentence of co-offenders involved in a joint criminal enterprise. Wood CJ at CL, delivering the leading judgment, referred to R v Breedon (CCA, unreported, 3 December 1992), a case concerned with the same issue. The Chief Judge said at [31] - [33]: "31. This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as "being of the same quality" upon the basis that they had involved themselves "in a course of criminal conduct which could be described as a joint criminal enterprise". 32. This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect. 33. On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, …" 49 In the present case, his Honour noted the Crown's position that Crowden was the ringleader but did not distinguish his role in the planning and execution of the offence from that of the applicant. However, the statement of facts provided him with little or no basis to do so. It may be accepted that Crowden initiated the criminal enterprise. Nevertheless, as the Crown prosecutor pointed out in written submissions, the characterisation of Crowden as the ringleader "tells us very little about their respective roles, which had to be determined on the material before his Honour". 50 It is apparent from a reading of his remarks that this is what his Honour did. He determined the applicant's criminality upon an assessment of his role in the enterprise as it was disclosed by the statement of facts. Judge Walmsley took the same approach in sentencing Crowden, and it was open to him to find no basis to differentiate between the part played by each of them. There is, in truth, no inconsistency between the findings of the two sentencing judges. In the applicant's case I can detect no error in his Honour's assessment of his role in the criminal enterprise, and it does not appear to me that he has any legitimate complaint of injustice arising from Judge Walmsley's approach in Crowden's case. 51 The question remains whether the applicant has a justifiable sense of grievance from the fact that for the ram-raid (and the associated Form 1 offences) he and Crowden received the same sentence. As I have said, Judge Walmsley did not have his Honour's remarks on sentence in the applicant's case. There was a minor difference between the two judges' assessments of the objective gravity of the ram-raid offence, but this is of no moment. Presumably, Judge Walmsley was not aware that his Honour found the applicant to have been subjected to a degree of intimidation by Crowden and, if he had been, he may have seen some distinction between their criminality. 52 However, that was at best a limited finding in the applicant's favour and it is not apparent how much weight his Honour gave it in determining the appropriate sentence. It does not appear to me to have been worthy of much weight, given the applicant's active involvement in the planning and pursuit of the enterprise. It would not merit such disparity of sentence between the applicant and Crowden as to justify this Court's intervention on that basis.

Ground 3 - manifest excess 53 Finally, Mr Haesler submitted that the sentence on each count is manifestly excessive. 54 He noted that the ram-raid was an offence committed at commercial premises after hours, rather than a home invasion. He referred us to five decisions of this Court in sentence appeals involving ram-raid offences, all of them committed at commercial premises: R v DBN [2005] NSWCCA 435, Douglas v R [2006] NSWCCA 94, R v Lenthall [2004] NSWCCA 248, R v Guthrie [2002] NSWCCA 77 and R v Ceissman [2004] NSWCCA 466. 55 With the exception of DBN, all those cases involved pleas of guilty. DBN was similar to the present case, in that a stolen vehicle was used and significant damage was caused to the premises and an ATM machine. However, the principal offence charged was aggravated break and enter with intent to steal under s 113(2) of the Crimes Act, carrying the lesser maximum sentence of 14 years imprisonment. Also charged on the indictment were two counts of malicious damage and deemed larceny of a motor vehicle. On the major charge the sentence was imprisonment for 5 years with a non-parole period of 3 years, and for the other charges shorter concurrent terms were imposed. 56 However, the offender was also charged with unrelated serious offences on a separate indictment, to which he pleaded guilty. Terms of imprisonment imposed for those offences were partly accumulated upon the sentence for the ram-raid, so as to produce an aggregate term of 8 years with a non-parole period of 6 years. An appeal against all these sentences was dismissed. 57 In Douglas, the charge was under s 112(2), with the deemed larceny of a motor vehicle taken into account on a Form 1. That applicant was a 20 year old offender who, although he had a criminal history and was on a bond at the time, impressed the sentencing judge as being genuinely remorseful and showed reasonable prospects of rehabilitation. His appeal against a sentence of 3 years and 4 months with a non-parole period of 1 year and 8 months was dismissed. In Lenthall the applicant was charged under s 113(2), with some relatively minor offences of dishonesty taken into account on a Form 1. His appeal was allowed, and his sentence was reduced to 3 years and 9 months with a non-parole period of 2 ½ years. He was seen as an offender genuinely "at the cross-roads", and there was an issue of the relativity of his sentence to a much more lenient sentence passed upon a co-offender. 58 Guthrie and Ceissman were both Crown appeals. In each case this Court allowed the appeal and substituted a sentence of imprisonment for 6 ½ years with a non-parole period of 4 ½ years. In both cases offences were taken into account on a Form 1: in Guthrie's case, two offences of possessing a firearm without authorisation and in Ceissman's case, two minor offences of dishonesty. Both offenders had unfavourable criminal history, and Ceissman had been on parole at the time of the offence. 59 It will be noted that in three of the cases, DBN, Lenthall and Guthrie the ram-raid was charged under s 113(2). Moreover, in DBN the sentence passed for that offence was part of a complex of sentences for a series of offences, some of them wholly unrelated, and considerations of totality must have arisen. The most lenient sentences were those in Douglas and Lenthall, in which subjective considerations appear to have loomed large. No doubt, in passing sentence in Guthrie and Ceissman, the Court exercised the restraint appropriate when re-sentencing after a successful Crown appeal. 60 Importantly, in none of those cases were there the number and gravity of the Form 1 matters which had to be taken into account in the present case. In the context of emphasising the care with which sentencing statistics should be approached, Wood CJ at CL said in Lenthall at [47]: "Additionally it is not to be overlooked that the comparison with the statistics is complicated where Form 1 offences have been taken into account, since that will require some increase in the sentence, for the reasons discussed in The Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The extent of the increase will vary according to the number and nature of the offences included in the Form 1." 61 It does not appear to me that these cases disclose a pattern of sentence such as might found a submission that the sentence for the applicant's ram-raid offence is manifestly excessive. Given the care with which the enterprise was planned and executed, the substantial sum of money stolen and the damage to the arcade, this was a serious offence of its kind. Having regard to the Form 1 offences, it appears to me that the sentence which his Honour passed was within the legitimate bounds of his sentencing discretion. 62 Mr Haesler also argued that the applicant has a legitimate sense of grievance when his aggregate sentence is compared to that passed by Judge Walmsley on Crowden. He noted that Crowden's aggregate sentence is only marginally greater than the applicant's, despite the fact that Crowden was also dealt with for a series of offences unrelated to those in which he was involved with the applicant. However, the aggregate sentence in his case was the result of the fact that the sentences passed by Judge Walmsley were largely concurrent. Like DBN, the consideration of totality was important when dealing with him. It is not easy to mount a parity argument by reference to the global sentences passed upon two offenders when one of them was also sentenced for unrelated matters not common to them. I am not persuaded that a comparison of the global sentences passed upon the two men provides the applicant with any legitimate sense of grievance, so as to warrant this Court's intervention. 63 Finally, Mr Haesler submitted, with less vigour, that the 2 year sentence on the charge of facilitating boat rebirthing is manifestly excessive. He noted that the applicant had pleaded guilty to that charge also, and that the offence "appears to be a one-off and not part of an organised business activity". However, he also noted that this is an offence which has rarely been prosecuted and any pattern of sentence for it is yet to emerge. His Honour said that the applicant was entitled to a discount for what he saw as his early plea of guilty to that charge, but he did not quantify it. 64 Given the maximum sentence for the offence of imprisonment for 14 years, and the standard non-parole period of 4 years, it cannot be said that a sentence of 2 years for this offence is manifestly excessive. It should also be noted that it is almost entirely concurrent with the sentence on the first count. However, a non-parole period should have been set and this Court should now do so. I would set a non-parole period of 18 months. While there may be special circumstances, the structure of the sentences is such that there would be no utility in departing from the statutory ratio.

Conclusion and orders 65 Let me return, then, to the first ground, relating to the standard non-parole period in respect of the ram-raid offence. As I have said, there was irregularity in his Honour's approach to that matter but, in all the circumstances, I am satisfied that no lesser sentence for that offence was warranted and this Court should not intervene. 66 Accordingly, in respect of the sentence on the first count I would grant leave to appeal but dismiss the appeal. In respect of the sentence on the second count, I would grant leave to appeal and allow the appeal. On that count I would re-sentence the applicant to a non-parole period of 18 months, commencing on 20 March 2007 and expiring on 19 September 2008, and a balance of term of 6 months, commencing on 20 September 2008 and expiring on 19 March 2009. 67 McCALLUM J: I agree with Hidden J. **********

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CITATION: Daniel FORBES v R [2009] NSWCCA 292

SGJ & KU v R [2008] NSWCCA 258 R v Way [2004] NSWCCA 131, 60 NSWLR 168 Marshall v R [2007] NSWCCA 24 R v Goundar [2001] NSWCCA 198, 127 A Crim R 331 CASES CITED : R v Breedon (CCA, unreported, 3 December 1992) R v DBN [2005] NSWCCA 435 Douglas v R [2006] NSWCCA 94 R v Lenthall [2004] NSWCCA 248 R v Guthrie [2002] NSWCCA 77 R v Ceissman [2004] NSWCCA 466

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