DEVINE, Kane Mitchell v R

CATCHWORDS: CRIMINAL LAW - appeal against sentence - dealing with property suspected of being the proceeds of crime - robbery - first charge is strictly a summary offence - no explicit reference to guilty plea in sentence

Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 Criminal Procedure Act 1986 Drug Court Act 1998

Hosseini v R [2009] NSWCCA 52 Leslie v R [2009] NSWCCA 203 CASES CITED : Morris, Morris and Snelson v R [2008] NSWCCA 182 R v Lawrence [2005] NSWCCA 91 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Kane Mitchell Devine (App) The Crown (Resp)

COUNSEL: W Hunt (App) M Cinque (Resp)

SOLICITORS: Legal Aid Commission (App) Solicitor for Public Prosecutions (Resp)

IN THE COURT OF CRIMINAL APPEAL 2008/13155

LATHAM J FULLERTON J SCHMIDT J

23 OCTOBER 2009 KANE MITCHELL DEVINE v R JUDGMENT 1 LATHAM J: I agree with Fullerton J. 2 FULLERTON J: On 25 August 2008 the applicant entered pleas of guilty in the Local Court to two charges. The first alleged that he dealt with property reasonably suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, attracting a maximum period of 2 years imprisonment and the second that he committed robbery contrary to s 94 of the Crimes Act, attracting a maximum period of 14 years imprisonment. He was committed to the District Court for sentence on both charges where he adhered to his pleas of guilty. 3 On 5 December 2008 he was sentenced by Toner DCJ to a fixed term of imprisonment for 6 months in respect of the first charge. In respect of the second charge he was sentenced to a term of imprisonment of 2 years, comprising a non-parole period of 18 months and a balance of term of 6 months. His Honour was not satisfied that the statutory ratio as provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 should be disturbed. The terms of imprisonment for both offences were fixed to commence on 1 September 2008. 4 The applicant initially filed an application for leave to appeal against the sentences imposed on both charges. However, prior to the hearing of the appeal, the applicant filed a Notice of Appeal in respect of his conviction on the first charge on the sole ground that an offence charged against s 193C(1) of the Crimes Act is, by operation of s 6 of the Criminal Procedure Act 1986, strictly a summary offence. Accordingly, the District Court did not have jurisdiction to deal with it. This Court was presented with the same circumstances in Hosseini v R [2009] NSWCCA 52. In that case the conviction was quashed. The Crown submitted that the appropriate order in the present case is that the conviction be quashed but to remit the matter to the Local Court pursuant to s 8A of the Criminal Appeal Act 1912. The applicant did not submit to the contrary. 5 In the result, the only remaining challenge is to the sentence imposed on the robbery charge. The facts of the robbery charge 6 A set of agreed facts were tendered on the sentence proceedings. His Honour described the facts of the robbery as somewhat peculiar. They are set out in full in the remarks on sentence. 7 In summary, the robbery occurred inside the Flame Grill Chicken Shop at Padstow at 12.15pm on 28 April 2008. The applicant was inside the shop when the victim, a 16-year-old, entered the shop to order a meal. The applicant and the victim were known to one another. As the victim paid the shopkeeper for his meal and was given change in return the applicant took the money and said "You're paying for my meal now". The victim then went to the rear of the shop, took his backpack off and placed it on a table. The applicant followed him. The victim asked the shopkeeper to call the police but he was ignored. The applicant then accused the victim of robbing another person, which he denied. The applicant then grabbed hold of the victim and demanded that he hand over his belongings saying that he would kill him if he didn't comply. The applicant took $50 from the victim's wallet and a mobile phone from his jeans pocket. He then demanded that the victim give him the Nokia brand headphones he was wearing around his neck. The applicant then left the shop with the victim's backpack. The victim contacted police. Police went to the chicken shop and seized the CCTV footage. 8 A search warrant was executed at the applicant's home on 6 May 2008. Police located the clothing he was wearing on the day of the robbery and the backpack he was carrying. Inside the backpack was a set of headphones. No other property was recovered. He told police in a recorded interview that he took the victim's property but denied that he applied any force. He also told police that the victim's backpack was in a friend's car and that the mobile phone was given to another friend. Neither of these people were named. The applicant was arrested and taken into custody. The applicant's prior record 9 At the time of his arrest the applicant was subject to the supervision of the New South Wales Drug Court under the terms of a suspension order imposed under s 7A(5) of the Drug Court Act 1998 after he entered pleas of guilty to one charge of driving whilst disqualified and one of goods in custody. The order suspending sentence was conditional on the applicant being of good behaviour and participating in a nominated drug treatment program. The sentencing judge properly assessed this as an aggravating feature in accordance with s 21A(2)(j) of Crimes (Sentencing Procedure) Act.

10 As a consequence of his arrest the applicant's participation in the Drug Court treatment program was terminated and he was called up for sentence. On 9 July 2008 he was sentenced by that Court to 10 months imprisonment with a non-parole period of 6 months. He was eligible for release to parole in respect of those offences on 11 December 2008, a week after the sentence proceedings in the District Court. The sentencing judge observed that the robbery offence could have been dealt with by the Drug Court and, were that to have occurred, in all probability some degree of concurrence would have been applied to reflect the principal of totality. It was for that reason that he ordered that the sentence for the robbery commence on 1 September 2008. 11 The applicant had an extensive criminal record. His Honour characterised the applicant's offending as comprising street offences and otherwise relatively petty matters. A significant number of convictions were entered in the applicant's absence after warrants issued under s 80AA of the Justices Act 1902 (repealed). His record as a juvenile contained multiple entries for fines (on one occasion accompanied with a recognisance to be of good behaviour) and orders to perform community service. He was first sentenced to a term of imprisonment for 6 months in June 2007 at age 27 for a series of offences committed over a period of 18 months, including driving whilst disqualified, shoplifting, common assault and goods in custody. This was moderated to 4 months imprisonment on appeal to the District Court. Soon after his release from custody he committed further offences of driving whilst disqualified and goods in custody for which he was dealt with in the Drug Court first in February 2008 where his sentence was suspended and then in July 2008 when he was sentenced to imprisonment. The applicant's case on sentence 12 The applicant gave evidence that his past offending was as a consequence of his addiction to drugs, an addiction which commenced with his use of heroin as an adolescent and which developed into a chronic addiction to amphetamines as an adult. Under the supervision of the Drug Court he claimed to have made genuine attempts to address his addiction and remain drug free, albeit with admitted lapses, and to maintain regular employment. He said throughout the period of his participation in the drug treatment program until his arrest he committed himself to the shared custody and maintenance of his young son pursuant to orders made by the Family Court in April 2008. 13 He gave evidence that he was sorry for robbing the victim (a person he suspected of having robbed a friend of his) and not thinking through the consequences of his actions. Although the robbery does not appear to have been motivated by a need to obtain drugs, or to have been committed whilst he was subject to the influence of drugs, his performance over the 12 weeks of the drug treatment program before he was arrested was described by his Honour as "patchy at best". He had tested positive to prohibited drugs on multiple occasions on urinalysis administered as part of the drug treatment program by the Drug Court with the most recent positive test result recorded three weeks before he was arrested. 14 A report from Mr Mark Milic, a clinical psychologist, was tendered on sentence. It detailed the applicant's drug and alcohol history, his interrupted education, his work history and his current social circumstances. A report from Dr Alex Gilandas, a clinical psychologist and neuropsychologist, was also tendered. Both psychologists noted that the applicant was of above average intelligence, with a capacity to learn and to improve his level of adaptation. They also noted that he was motivated to participate actively in a structured drug rehabilitation program with some predicted success. At the Crown's request Dr Gilandas attended the sentence proceedings and gave evidence. Under questioning from his Honour his attention was principally directed to an assessment of the applicant's realistic prospects of rehabilitation, and his likely response to treatment in a non-custodial setting given his poor performance under the Drug Court treatment program. The findings of fact for sentencing purposes

15 The objective seriousness of the robbery was assessed by his Honour at the bottom of the range for offences of its kind, aggravated only by the fact that the applicant was on conditional liberty at the time of the offending. His Honour did not regard the applicant's criminal history of great significance for sentencing purposes, from which I assume he did not regard his prior record as a statutory aggravating feature. He also accepted, although not without hesitation, that the applicant's contrition and remorse were genuine and that they operated in mitigation of sentence under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. The significance of the plea of guilty 16 In his sentencing remarks his Honour noted that the applicant entered pleas of guilty in the Local Court and noted the Crown's concession that the pleas were entered at the first available opportunity. He did not however quantify the utilitarian value of the plea or make explicit reference to the sentence being discounted to reflect that fact. At the close of submissions on the first day of the sentencing proceedings his Honour indicated that he intended to impose a non-parole period of 18 months for the robbery. He made no reference at that time to having taken the plea of guilty into account in the calculation of sentence. When the sentencing order was imposed the following day he did not refer to the plea of guilty at all otherwise than to note that it had been entered in the Local Court before the Drug Court imposed sentence in July 2008, a matter he took into account in determining to order partial accumulation of the sentences. 17 The applicant submitted that his Honour's failure to qualify the discount for the plea of guilty, and to refer expressly to the fact that it had been taken into account in the calculation of sentence was an error entitling him to be re-sentenced and that in that exercise a discount of 25 per cent should be applied reducing the non-parole period for the robbery by at least 6 months. 18 The applicant also submitted that his Honour was in error in refusing to make a finding of special circumstances. This was put on two bases. The first that his Honour had failed to give proper weight to Dr Gilandas' opinion concerning the applicant's predicted prospects of rehabilitation and secondly, because his Honour had partially accumulated the sentence for the robbery on the sentence imposed by the Drug Court. The applicant submitted that this Court should adjust the statutory ratio even if the first ground of the appeal is unsuccessful. Ground 1: The sentencing judge erred in failing to identify, calculate or apply a sentencing discount to reflect the utilitarian value of the applicant's early plea of guilty

19 The Crown accepted that his Honour did not make any explicit reference to the plea of guilty either when he indicated that a non-parole period of 18 months would be imposed at the end of the first day of proceedings or when he imposed sentence the following day. Although the Crown conceded that it would have been preferable for his Honour to have made it clear that he had applied a discount for the plea of guilty in accordance with the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, she submitted that the Court should not assume from his failure to do so that he failed to take into account the plea of guilty in the calculation of sentence, or that he failed to give it appropriate weight by discounting the sentence by 25 per cent. She placed particular emphasis on the fact that his Honour expressly acknowledged the Crown's concession that the pleas were entered at the first available opportunity, a clear acknowledgment that the utilitarian value of a plea of guilty had been assessed and that the sentence warranted a discount of 25 per cent. 20 The Crown relied upon the observations of Spigelman CJ in R v Lawrence [2005] NSWCCA 91 at [13]-[15] in support of the submission that in this case, as in Lawrence, it should be inferred that his Honour in fact applied the appropriate discount when imposing sentence, but had simply overlooked saying so: [13] The Applicant submits that the sentencing Judge fell into error in failing to give proper weight to the plea of guilty and in failing to make plain the fact that, and the extent to which, the Applicant's sentence was reduced for the plea. The Crown contends that his Honour did take into account the plea and it puts forward a plausible computation that the final head sentence of 27 months happens to constitute a 25% discount from the sentence of 36 months. Although this is a plausible, indeed likely, reconstruction, it would have been easy for his Honour to say so. [14] Goldring DCJ is an experienced District Court Judge. He cannot be unaware of the line of authority on this matter, particularly Thomson and Houlton , as affirmed in R v Sharma (2002) 54 NSWLR 300 . The guideline established in Thomson at 160 encouraged, but did not require, the sentencing judge to quantify any discount. It did, however, indicate that judges should explicitly state that the plea of guilty has been taken into account and added "failure to do so will generally be taken to indicate that the plea was not given weight" (at 416 [160]). [15] This Court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused. It would have been preferable, for that reason, if his Honour had mentioned that he had done so. However, in view of his Honour's long experience and the structure and length of the sentence he imposed, I am not prepared to act on the basis that his Honour failed to take into account the plea, or that he failed to give it appropriate weight. I think the likely situation is that contended for by the Crown: that his Honour commenced with a sentence of 36 months and applied a full discount. Accordingly, I would not uphold this ground of appeal. 21 The Crown submitted that it was open for this Court to adopt the approach of the Chief Justice in Lawrence and assume that his Honour commenced with an undiscounted sentence of 32 months such that, after applying a 25 per cent discount for the plea, the total term of imprisonment was reduced to 24 months and a non-parole period of 18 months fixed in accordance with the statutory ratio fixed by s 44 of the Crimes (Sentencing Procedure) Act. 22 In his oral submissions counsel for the applicant also relied upon Lawrence but as a restatement of the principled approach to valuing a plea of guilty in a sentencing exercise. He drew particular support from the passage extracted above where the Chief Justice noted that although the guideline judgment does not require sentencing judges to quantify a discount for the plea of guilty, judges should explicitly state the fact that a plea of guilty has been taken into account as a failure to do so will generally be taken to indicate that the plea was not given weight in the sentencing exercise. The applicant submitted that this Court would involve itself in an over-rationalisation of the approach of the sentencing judge in this case were we to assume that simply because it was open to conclude that his Honour applied a 25 per cent discount to an undiscounted sentence of 32 months to explain his appointment of 24 months (ie a notional starting point for sentence that was divisible by four) that was in fact what his Honour intended. He submitted that in circumstances where the sentencing judge assessed the objective criminality at the lower end of the range, and where the single feature of aggravation under the Crimes (Sentencing Procedure) Act was largely counterbalanced by a range of mitigating factors, this Court could not be confident a reconstruction of the sentencing exercise in the way the Crown proposed afforded the applicant the benefit of the plea of guilty to which he was entitled.

23 Despite the obvious attraction of the Crown's analysis I am not persuaded that the approach in Lawrence can be safely applied in this case. For my part, I would be cautious about its application other than in those relatively rare cases where it can be safely inferred that a sentencing judge has forgotten to state expressly that a discount for the plea of guilty has been applied and its quantification. This is consistent with the approach of Hidden J in Morris, Morris and Snelson v R [2008] NSWCCA 182 at [21]-[23]. I am not satisfied that this is such a case. Although the Crown's analysis is mathematically plausible, I do not consider it likely that his Honour commenced with a sentence of 2 years and 8 months (or 32 months) before application of the discount, although it may theoretically have been open for him to have done so. While it is clear that his Honour did not suggest that any particular leniency should be afforded the applicant, it is equally as clear that he did not regard the circumstances of the robbery as particularly serious. This was a finding open to him and one that the Crown on sentence did not seek to argue against. In addition, although his Honour was not persuaded that special circumstances had been demonstrated, he did not find that the applicant was without prospects of rehabilitation, although its weight as a factor in mitigation was likely to have been diminished by the applicant's reoffending when subject to the drug treatment program administered by the Drug Court. 24 In the result, taking into account the tenor of the sentencing proceedings as a whole, and his Honour's remarks on sentence in particular, I am left with the distinct impression that he overlooked the need to factor into the sentence a 25 per cent discount for the plea of guilty. I am satisfied the error contended for in the first ground of appeal has been made out. 25 Before turning to consider the operation of s 6(3) of the Criminal Appeal Act, error having been established, I propose to deal briefly with the second ground of appeal. Ground 2: His Honour was in error in refusing to make a finding of special circumstances either on the basis of the applicant's prospects of rehabilitation when proper weight is given to Dr Gilandas' opinion or because of the partial accumulation of the robbery sentence

26 I have already noted that Dr Gilandas reported favourably upon the applicant's prospects of rehabilitation were he afforded appropriate treatment in a structured program. The sentencing judge sought clarification of his views as to the applicant's prospects of rehabilitation particularly given his inconsistent response to treatment under the supervision of the Drug Court. On any fair reading of Dr Gilandas' evidence his Honour was entitled to find that the best that any treatment program could offer the applicant was support and assistance in his resolve to cease all drug use, and that the optimum environment in which that will likely occur was in custody given his most recent and intermittent success in a non-custodial setting and for that reason an extended period on parole was not warranted. 27 In so far as the second ground of appeal also contends that insufficient weight was given to the question of accumulation his Honour was at pains to ensure that very issue was appropriately factored into the sentencing order and adjourned the proceedings overnight to consider when the sentence should commence having regard to the fact that the applicant was serving the sentence imposed by the Drug Court. When coupled with what this Court has recently emphasised in Leslie v R [2009] NSWCCA 203 at [70], namely that the extent of any adjustment to the statutory ratio specified in s 44 of the Crimes (Sentencing Procedure) Act is discretely at the discretion of the sentencing judge, such that only if a non-parole period is manifestly excessive should this Court intervene, the second ground of appeal must fail.

Is another sentence warranted at law? 28 The Crown submitted that given the circumstances of the offending, in particular the age of the victim, the breach of conditional liberty granted to the applicant by the Drug Court within months of the robbery and his repeated lapses into drug use during that period, coupled with what was submitted to be a generous approach to the treatment of his prior record for sentencing purposes, this Court would be persuaded that no other sentence than an 18 month non-parole period with an additional term of 6 months is warranted at law. That submission was advanced by the Crown irrespective of whether the applicant made out error on either or both grounds of appeal. 29 While the submission has force I am not persuaded that his Honour understated the level of objective seriousness in what appears to me to be impulsive as distinct from a predatory robbery on a young person and where relatively mild force was applied to the young person when his property was taken. In addition, although the applicant's improved work prospects and social integration are conditional on him ceasing drug use, a fair reading of his evidence and the tendered reports are suggestive of positive moves in that direction. In the result, I am persuaded that a lesser sentence is warranted at law. 30 The orders I propose are as follow: 1. The conviction entered in respect of the offence of dealing with property suspected of being the proceeds of crime is quashed and the matter remitted to the Local Court. 2. Leave to appeal against the sentence imposed in respect of the charge of robbery is granted and the appeal is allowed. 3. The sentence imposed on the robbery is quashed and in lieu thereof a non-parole period of 12 months and a balance of term of 6 months is imposed. The sentence is to commence on 1 September 2008. The applicant is entitled to be released. 31 SCHMIDT J: I agree with Fullerton J.

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