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The Court

The Appeal

1. On 25 May 2018, the sentencing judge sentenced the offender for 10 offences to an effective sentence of six years and seven months’ imprisonment with a non-parole period of four years (60.8%): R v Dawson [2018] ACTSC 238 (R v Dawson). The offences related to two days: 10 December 2017 and 14 December 2017.

2. The Appellant appealed on the ground that the aggregate sentence and related non-parole period were manifestly excessive.

3. The individual sentences that were imposed were as follows:

Offences on 10 December 2017

1. CC18/2078 – burglary – 28 months’ imprisonment discounted from 37 months, from 14 December 2017 to 13 April 2020;

2. CC18/2093 – theft – 24 months’ imprisonment discounted from 32 months, from 14 June 2019 to 13 June 2021;

3. CC18/2080 – take motor vehicle – 6 months’ imprisonment discounted from 8 months, from 14 March 2021 to 13 September 2021;

Offences on 14 December 2017

4. CC17/13721 – burglary – 29 months’ imprisonment discounted from 36 months, from 14 June 2021 to 13 November 2023;

5. CC17/13722 – theft – 14 months’ imprisonment discounted from 17 months, from 14 March 2023 to 13 May 2024;

6. CC17/13723 – theft – 9 months’ imprisonment discounted from 11 months, from 14 October 2023 to 13 July 2024;

7. CC17/13725 – escape custody – 1 month’s imprisonment, from 14 June 2024 to 13 July 2024;

8. CC18/586 – unlawful possession of stolen property – 1 month’s imprisonment, from 14 June 2024 to 13 July 2024;

9. CC17/13724 – possess prohibited substance – 3 months’ imprisonment, from 14 April 2024 to 13 July 2024.

4. The last two offences were summary offences arising from items found in the appellant’s possession at the time of his arrest, and transferred from the Magistrates Court.

5. The Appellant accepted that the sentencing judge had imposed individual sentences that were within range. This concession was properly made. The maximum penalty for burglary is 14 years’ imprisonment and the maximum penalty for theft is 10 years’ imprisonment. As was observed in Fusimalohi v The Queen [2012] ACTCA 49 (Fusimalohi) by Refshauge J at [51] and, more recently, by Loukas-Karlsson J in R v Lockwood [2018] ACTSC 288 at [51], although there is a “significant range of available sentences” for burglary, in this jurisdiction sentences for burglary of residential premises are generally within the range of one to two years and six months’ imprisonment. Having regard to the objective seriousness of the principal offences in this case, the sentences that were imposed were well within range.

6. Further, the Appellant accepted that the sentencing judge had applied an appropriate discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). His Honour applied a discount of 20 per cent for the offences committed on 10 December 2017 and 25 per cent for the offences committed on 14 December 2017.

7. The Appellant said that the manifest excessiveness of the overall sentence resulted from:

(a) inadequate concurrency between sentences and excessive accumulation;

(b) failure to properly consider totality; and

(c) misreading the Appellant’s criminal history.

8. The first and second contentions address the same matter. The Appellant’s written submissions did not substantially address the last contention and, in oral submission, the Appellant’s counsel described it as a “minor matter”. We agree.

9. Consequently, the principal issue for this Court is whether, having regard to principles of totality (and the related issue of concurrency and accumulation), the effective sentence was manifestly excessive.

Facts

10. Offences 1 to 3. At about 1:42 AM on 10 December 2017, the Appellant forced entry to residential premises through a rear window, causing damage to the window (estimated value of $1,500). He spent more than five hours in the premises. Items of significant financial value (88 items, total value $56,705) were taken and most were not recovered. The stolen items included items of great sentimental value that were not recovered. Clothing and property was left strewn across the rooms. After disconnecting the computer system that controlled CCTV cameras around the residence, at about 7:24 AM the Appellant left in a vehicle that had been parked in the driveway of the premises. The vehicle was recovered on 12 December 2017.

11. Offences 4 and 5. At about 5:20 AM on 14 December 2017, the Appellant entered residential premises at a time when the residents would ordinarily have been at home. Two residents were at home in bed, one of whom was a young child. The Appellant stole a purse containing $50 and a credit card.

12. Offence 6. In an unrelated incident committed earlier on 14 December 2017, the offender stole a Navman GPS, a car charger and a pair of sunglasses (total value of $300) from a motor vehicle that was parked in a residential carport.

13. Offences 7 to 9. At about 5:45 AM on 14 December 2017, the Appellant was arrested. When told that he was under arrest, the offender began to run from police, but was quickly apprehended. He was in possession of two stolen bankcards belonging to a fourth victim and a prohibited substance, namely amphetamines.

14. A victim of the offence committed on 10 December 2017 provided a victim impact statement setting out the extensive psychological trauma caused by the offences to the whole family. As would be expected, the trauma relates to the violation and ransacking of their home and the loss of numerous items of high sentimental value, which are irreplaceable.

15. No doubt the victim of the burglary committed on 14 December 2017 was also highly traumatised, as she was woken by the sound of the Appellant entering her premises and a young child was present at the time.

Criminal history

16. The Appellant’s criminal history includes three convictions for burglary and six convictions for stealing.

17. In Western Australia, the Appellant has convictions for burglary (one offence in 2009 and one offence in 2013), stealing (one offence in 2010, five offences in 2013) and other minor matters in which fines were imposed. In April 2014, the Appellant received a seven months’ sentence for the 2013 burglary (of which he served only one month and the remainder was suspended) and six month concurrent intensive supervision orders for the 2013 stealing offences (which were also concurrent with the suspended sentence for the burglary).

18. In NSW, the Appellant has convictions for larceny (one offence in 2016), goods in custody suspected of being stolen (one offence in 2016), two offences of aggravated burglary (both committed in 2016, the aggravating feature being that persons were in the premises) and possibly other matters; the “Criminal History – Bail Report” is difficult to follow. In relation to the aggravated burglary matters, the proceedings were adjourned under s 11 of the Crimes (Sentence Procedure) Act 1999 (NSW) by the NSW District Court at Lismore until 11 December 2017, when the Appellant failed to appear and a bench warrant issued. Of course, that date was in the middle of the two sets of offences that are before the Court today.

19. At the time of the subject offences, the Appellant was on conditional liberty, being the two good behaviour orders that had been imposed on 16 May 2016 by the NSW Local Court for offences of dishonesty. In addition, the proceedings for aggravated burglary were pending before the NSW District Court in Lismore.

Subjective features

20. The Appellant is an Aboriginal man who was 29 years old at the date of sentence. He was raised in the Port Hedland area of Western Australia by his mother, with whom he continues to enjoy a supportive relationship. However, the offender’s childhood was somewhat unstable as the family frequently relocated.

21. The Appellant has one child, currently five years of age, whom the Appellant has not seen for four years as the child resides interstate.

22. The Appellant completed Year 9 at school. He has been employed as a truck driver for a mining company and as a labourer. His most recent employment was in 2014. Before his arrest in December 2017, he was receiving a Newstart allowance.

23. The Appellant has a long-standing problem of polysubstance abuse. From 15 years of age, he consumed cannabis on a daily basis. From 21 years of age until mid-2017, the Appellant was a heavy user of methamphetamine. He attempted residential rehabilitation at Benelong Haven in 2017, but left after six weeks following a relapse. The Appellant told the author of the pre-sentence report that he wished to enter a residential rehabilitation program and had made an application to enter a program in the ACT.

24. When arrested on 14 December 2017, the offender told police that he had consumed “ice” earlier that morning. The Appellant told the authors of the pre-sentence report that, prior to the offences in December 2017, he had relapsed into methamphetamine abuse.

25. The Appellant expressed remorse to the authors of the pre-sentence report.

Sentencing remarks

26. In sentencing the Appellant, the sentencing judge noted relevant matters, including the features that rendered the offences objectively serious, the Appellant’s subjective circumstances, the pleas of guilty and relevant sentencing purposes.

27. In relation to the Appellant’s criminal history, the sentencing judge said in R v Dawson at [6]:

You have an extensive criminal history, particularly for offences of dishonesty, from 2010 onwards in Western Australia and New South Wales. I note that there are currently warrants outstanding for you in those states. There is no leniency that can be afforded to you based upon your prior criminal history.

28. The sentencing judge accepted that the offences had been committed to support the Appellant’s substance abuse problem. His Honour noted at [10]–[11]:

[The Appellant’s substance abuse problem] is relevant to your prospects of rehabilitation as cessation of drug use is likely to result in reduction in criminal offending. … Your prospects for rehabilitation at the present time must be guarded and depends very significantly on you successfully addressing drug abuse.

29. The sentencing judge observed that he must give significant weight to specific and general deterrence: at [12].

30. His Honour stated that he had considered all sentencing options but had formed the view that immediate terms of imprisonment were required.

31. On the appeal, no issue was taken with this approach, other than to quibble in passing with the reference to an “extensive” criminal history.

Applicable principles

32. The principles that are applicable to offender appeals claiming manifest excess are well established. Inter alia, they have been summarised by this court in O’Brien v The Queen [2015] ACTCA 47 (O’Brien) at [25], Dalton v The Queen [2015] ACTCA 48 at [18] and, recently, in Henry v The Queen [2019] ACTCA 5 at [30]–[32].

33. In O’Brien at [25], the Court said:

The considerations that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following: (a) Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale). (b) The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61]. (c) In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85]. (d) It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

34. It is trite to say that current sentencing practice is a factor to be taken into account (pursuant to s 33(1)(za) of the Sentencing Act) and that sentences should be reasonably consistent, but sentencing is not a mathematical exercise and reasonable consistency does not require numerical equivalence but, rather, consistency in the application of relevant legal principles: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48]–[49]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]–[41].

35. The common but not invariable practice of this court is that the sentence for an offence of theft that was committed in the course of a burglary is made concurrent with the sentence for the related burglary: R v McMahon [2014] ACTSC 280 per Refshauge J at [94]; Millard v The Queen [2016] ACTCA 14 at [56] (Refshauge, Penfold and North JJ).

36. In Fusimalohi, the Court dismissed an offender appeal against sentences imposed for aggravated burglary, burglary and other counts, in relation to which the offender had claimed manifest excess. The offender had received an effective sentence of seven years and four months’ imprisonment for one count of aggravated burglary, six counts of burglary, eight counts of theft and one count of possessing housebreaking articles, committed over a 10 month period.

37. As to concurrence and accumulation, the principles were set out in O’Brien at [26], where this Court said:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following: (a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18]. (d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

Was the effective sentence manifestly excessive having regard to what was just and appropriate to reflect the totality of the criminal behaviour?

38. We have concluded that the effective sentence imposed by the sentencing judge was manifestly excessive because it unreasonably exceeded the total sentence that was appropriate to reflect the totality of the Appellant’s criminal behaviour on 10 and 14 December 2017.

39. The sentencing scheme adopted by the sentencing judge has two unusual features.

40. First, neither of the sentences for theft in the course of a burglary was made concurrent or largely concurrent with the related burglary sentence. As to the theft on 10 December 2017, this outcome required no explanation; the value and nature of the items taken was such that the theft justified a substantial additional penalty. On the other hand, the theft that occurred on 14 December was of lower objective seriousness and there is no obvious reason for the decision to accumulate the sentence for that theft on the related burglary sentence by a factor of six months. However, if that was the only matter that was raised, we would not interfere with the sentencing judge’s exercise of discretion.

41. The second unusual feature is much more important and had a considerable effect on the effective sentence. Although the burglaries of 10 December and 14 December 2017 both followed the Appellant’s relapse into drug addiction and were similar in nature, the sentences for the two groups of offences were made almost entirely cumulative. Only three months’ concurrency was allowed between the two groups of matters, the period from 14 June 2021 to 13 September 2021. The burglaries themselves were not directly accumulated; there was a gap between the end of the sentence for the first burglary and the commencement of the sentence for the second burglary.

42. Neither the sentencing judge’s reasons nor the structure of the sentences that were imposed indicate that his Honour applied the principle of totality.

43. Stepping back and considering the collective effect of the sentences as currently structured, the lack of concurrency has resulted in an overall sentence that is unreasonable in that it is manifestly too long to reflect the total criminality. The associated non-parole period is also manifestly excessive.

44. The totality of the criminal behaviour associated with the burglaries and the thefts committed in the course of the burglaries will be appropriately reflected if the sentence for the second burglary is brought forward by 14 months to commence at the expiry of the sentence for the first burglary and runs from 14 April 2020 to 13 September 2022, and the sentences imposed for theft, escape custody, unlawful possession of stolen property and possession of prohibited substance are correspondingly each brought forward by 14 months, maintaining the current general sentencing structure.

45. The new effective sentence will run from 14 December 2017 to 13 May 2023. That is an effective sentence of five years and five months’ imprisonment (65 months).

46. As this will be the Appellant’s first significant period in custody and the impact of imprisonment is difficult to determine, it is appropriate to leave the parole authority with significant scope to determine when the Appellant is suitable for release to parole. A non-parole period of three years (approximate 55% of the effective sentence, from 14 December 2017 to 13 December 2020) will enable scope for consideration of rehabilitation but is also adequate to address sentencing purposes such as general deterrence, accountability, denunciation and recognition of harm to the victims.

Orders

47. The orders of the Court are:

1. The appeal is allowed.

2. The sentences imposed by the sentencing judge on 25 May 2018 are set aside and the Appellant is resentenced as follows:

(1) As to the offences committed on 10 December 2017:

a) CC18/2078 – burglary – 28 months’ imprisonment, from 14 December 2017 to 13 April 2020;

b) CC18/2093 – theft – 24 months’ imprisonment, from 14 June 2019 to 13 June 2021;

c) CC18/2080 – take motor vehicle – 6 months’ imprisonment, from 14 March 2021 to 13 September 2021;

(2) As to the offences committed on 14 December 2017:

a) CC17/13721 – burglary – 29 months’ imprisonment, from 14 April 2020 to 13 September 2022;

b) CC17/13722 – theft – 14 months’ imprisonment, from 14 January 2022 to 13 March 2023;

c) CC17/13723 – theft – 9 months’ imprisonment, from 14 August 2022 to 13 May 2023;

d) CC17/13725 – escape custody – 1 month’s imprisonment, from 14 April 2023 to 13 May 2023;

e) CC18/586 – unlawful possession of stolen property – 1 month’s imprisonment, from 14 April 2023 to 13 May 2023;

f) CC17/13724 – possess prohibited substance – 3 months’ imprisonment, from 14 February 2023 to 13 May 2023;

3. The total head sentence is therefore 5 years and 5 months’ imprisonment, from 14 December 2017 to 13 May 2023. 4) The non-parole period is 3 years, from 14 December 2017 to 13 December 2020.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justices Loukas-Karlsson and Bromwich.

Associate:

Date: