Dickinson v R

Subjective case

1. The applicant turned 28 during the period over which the offences were committed, and is now 30. He has a bad criminal record, primarily for offences of the same kind, and had previously been sentenced to terms of imprisonment. Moreover, at the time of these offences he was on parole for such an offence. Indeed, he had been released on parole only three days before the first of the present offences, committed on 22 January 2014.
2. He was arrested for the present offences on 10 May 2014. His parole was revoked and, while in custody, he was dealt with in the Local Court for an outstanding offence of assaulting an officer in the execution of his duty. The sentencing judge had regard to those matters in determining the commencement date of the aggregate sentence. To this I shall return, as it is the subject of one of the grounds of appeal.
3. The applicant's background is to be found in a psychological report that was before the sentencing judge. His parents separated when he was young, and his mother took to the abuse of alcohol and heroin. When he was 13 years old she died of a heroin overdose, which he described to the psychologist as a crisis point in his life. He began to associate with anti-social peers, leading to drug abuse and a criminal lifestyle. He left school after year 7, but later completed year 10 while he was in juvenile detention.
4. He was introduced to drugs by his associates following his mother's death, and became addicted to heroin. He was also abusing Xanax tablets and benzodiazepines. Several attempts at drug rehabilitation had been unsuccessful.
5. In a letter to the sentencing judge, and in oral evidence, he expressed remorse for his offences and a desire to take steps to remain drug free. His Honour was prepared to find that he had accepted responsibility for his actions. He enjoyed the support of his father and two older sisters.

The application

1. The primary focus of the application is a complaint that the sentencing judge erred in his assessment of the objective gravity of the offences. Ground 1 is that in that assessment his Honour wrongly treated as relevant the fact that the applicant had a prior record for similar offences. Ground 2 is that his Honour erred in characterising each of the offences as objectively very serious.
2. There is a third ground relating to the commencement date of the sentence, to which I shall turn later.

Objective gravity

1. The source of the first two grounds is the following passage from his Honour's remarks on sentence: "The Court of Criminal Appeal in Ponfield [1999] NSWCCA 435 [48 NSWLR 327] set down some guidelines for sentencing judges when it comes to considering matters such as this. They include the fact that the offence was committed while on conditional liberty; the level of planning, which here appears slight; the fact that an offender had a prior record for similar offences, whether there was accompanying vandalism; they speak there of significant damage to property, which does not appear to be the case here but a number of premises I note were ransacked; they note the multiplicity of offences, in which case the Court directed sentencing judges to have particular regard to the criminality involved in each offence; the value of the stolen property is one significant factor and that includes the sentimental value of property which often attaches to items such as jewellery, many of which were stolen and I suspect sold for very little or exchanged for drugs. The Court also noted matters which could and will be taken into account in mitigation. Objectively each offence was very serious."
2. Ground 1 is directed to his Honour's reference in that passage to an offender's "prior record for similar offences." In the guideline judgment in Ponfield at [48] (337), it was said that a court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act "as enhanced and reflect that enhanced seriousness in the quantum of sentence" where any of a number of factors set out in the paragraph was present. Eleven such factors were then set out, including that the offender "has a prior record particularly for like offences": (iii).
3. Ponfield was decided before the enactment of s 21A of the Crimes (Sentencing Procedure) Act, dealing with aggravating and mitigating factors on sentence, and before the examination by this Court of the relevance to sentence of a prior criminal history in R v McNaughton (2006) 66 NSWLR 566, [2006] NSWCCA 242. In that case, Spigelman CJ, delivering the leading judgment, after referring to Veen v The Queen (No 2) (1988) 164 CLR 465, Baumer v The Queen (1988) 166 CLR 51 and R v Wickham [2004] NSWCCA 193, observed at [24] and [26] (574): "24 Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen No 2 and in Baumer as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. In this respect I agree with the reasoning of Howie J in R v Wickham …. …… 26 There is a difficulty with the reference in Veen No 2 to prior convictions 'illuminating' the offender's 'moral culpability'. Nevertheless, as Howie J stated in R v Wickham, the majority judgment in Veen No 2 recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. I refer specifically to the reference to an 'attitude of disobedience of the law' and to the increased weight to be given to 'retribution', 'deterrence' (relevantly personal deterrence) and 'the protection of society'."
4. More recently this Court had occasion to consider Ponfield in Mapp v R (2010) 206 A Crim R 497, [2010] NSWCCA 269. In that case Simpson J (as she then was) observed at [10] (502): "10 Ponfield is, in my respectful opinion, of limited utility. Although that matter came before the Court by way of an application by the Attorney General for sentencing guidelines in respect of offences against s 112(1) of the Crimes Act 1900, the Court declined to specify a numerical guideline, instead listing factors that "enhanced" ("aggravated") the seriousness of an offence against s 112(1). This was, in my view, little (if anything) more than a statement of the general sentencing principles that applied at the time. Ponfield was decided before the insertion into the Sentencing Procedure Act of s 21A, which, in statutory form, and somewhat more comprehensively, does the same thing (with general application to all offences, not only offences against s 112(1)). In my opinion, therefore, Ponfield has been largely overtaken by statute."
5. Counsel for the applicant, Mr Barrow, submitted that the passage from his Honour's remarks quoted above conveys that the applicant's record for similar offences was erroneously taken into account in assessing the objective gravity of the offences. However, I am persuaded by the submission of the Crown Prosecutor in this Court that the passage should not be read in that way. It should be noted that, whereas the relevant passage in Ponfield at [48] described the enumerated factors as enhancing the seriousness of an offence, his Honour in the quoted passage described the factors to which he referred as no more than "some guidelines for sentencing judges when it comes to considering matters such as this." Later in his remarks, his Honour said: "His record, as I said, does not help. It means greater weight has to be given to community protection." As the Crown Prosecutor pointed out, this observation was in accordance with McNaughton.
6. In my view, a fair reading of the earlier passage from his Honour's remarks is that he was referring, by reference to Ponfield, to a number of factors bearing upon sentencing for offences of this kind. Plainly enough, consideration of the applicant's criminal history was an important aspect in determining the appropriate sentence, but I do not understand his Honour to have been referring to that as a matter bearing upon the objective gravity of the offences. In the quoted passage his Honour went on to observe that the Court in Ponfield had also noted matters to be taken into account in mitigation. It was after that that his Honour observed, "Objectively each offence is very serious".
7. In my view, it is clear enough that his Honour did deal with objective gravity as a discrete issue, separately from his consideration of the applicant's criminal history. It is to be borne in mind that his Honour delivered his remarks ex tempore after hearing submissions, and on a number of occasions this Court has said that the scrutiny of such reasons should be tempered by a degree of latitude: see, for example, Gal v R [2015] NSWCCA 242, per Beech-Jones J at [35]. I would reject this ground.
8. Ground 2, that his Honour erred in characterising each offence as objectively "very serious", is to an extent allied to ground 1.
9. In the first of the passages from his remarks quoted above, his Honour described the level of planning of the applicant's offences as "slight". This, no doubt, is consistent with his having plainly taken no steps to ensure that his fingerprints were not left at the premises. Although property of substantial value was taken, his Honour accepted that the offences were committed to obtain drugs and that the applicant's resort to drugs from his early teenage years "was not really a matter of personal choice".
10. Mr Barrow noted that a number of the aggravating factors referred in Ponfield at [48] were absent in the present case. For example, the offences were not committed at the premises of persons who were elderly, sick or disabled; there were not repeated intrusions into the same premises; there is no evidence of actual trauma suffered by any victims; and no force was used or threatened. Only one offence, the attempted break and enter the subject of Form 1, was committed when the victim was present at the premises, and all the offences were committed during the day time rather than at night, when it might have been anticipated that victims would be at home.
11. In all the circumstances, Mr Barrow argued, the offences could not fairly be described as objectively very serious. Rather, they would fall in the mid-range of objective gravity. His Honour's description of them as very serious, Mr Barrow submitted, conveyed that he did have regard to the applicant's criminal history when making that assessment.
12. It should be noted that, while describing the offences as very serious, his Honour did not attempt to place them within some notional scale of objective gravity. It must be recognised that remarks on sentence are not a clinical exercise, and that it is sometimes appropriate for a sentencing judge to use emphatic language to bring home to an offender the gravity of his or her conduct. This is particularly so with a repeat offender such as the applicant. His Honour said in his remarks that he saw him "in a sense … at the cross roads." The tenor of his remarks as a whole was to convey to the applicant, for his benefit, the seriousness of the offences and the prospect that, if he did not pursue his rehabilitation on parole and continued to offend in this way, the only way the community might be protected is by "his removal from it for as long as possible."
13. In any event, it is well established that the assessment of the objective gravity of an offence is a matter very much within the province of a sentencing judge and is a finding which this Court would be slow to set aside: Mulato v R [2006] NSWCCA 282, per Spigelman CJ at [37] and Simpson J at [46]. Notwithstanding the absence of a number of the aggravating features referred to in Ponfield, these offences were serious. In the eight offences of break, enter and steal a large amount of property of considerable value was stolen. Estimates of the value range from $5,000 (the third offence - Form 1) to $100,500 (the fourth offence - Count 2). Some of the property stolen was jewellery, which was likely to attract sentimental value apart from its monetary worth. In one case (the sixth offence - count 3) the owners' insurance fell well short of covering them for their loss. As noted, six of the houses in which property was stolen had been ransacked to a greater or lesser degree.
14. I am not persuaded that his Honour's description of the gravity of these offences demonstrates error. I would reject this ground also.

Commencement date

1. As noted above, the applicant was arrested for these offences on 10 May 2014 but the aggregate sentence was directed to commence on 10 November 2014. This was because he was serving the balance of an earlier sentence after his arrest, his parole having been revoked, and he had been dealt with for an outstanding offence of assaulting an officer in the execution of his duty. For that offence he had been sentenced to imprisonment for 9 months with a non-parole period of 5 months, dating from 10 May 2014.
2. In his remarks, his Honour noted that the applicant had been serving balance of parole and the sentence for assaulting an officer, but he mistakenly said that for that offence he had received a 9 month non-parole period. In determining the commencement date for the aggregate sentence of 10 November 2014, his Honour said: "The sentence should date from 10 November 2014 for the matters I have outlined particularly to give effect to the principle of totality, the need for there to be a sentence for the assault police matter and taking into account that I have already increased the sentence because they were committed on parole."
3. It is apparent that his Honour's intention was to make the aggregate sentence partially cumulative upon what he understood to be the non-parole period for the offence of assaulting an officer. In fact the non-parole period for that offence was 5 months and it had expired by 10 October 2014, one month before the aggregate sentence commenced. Mr Barrow submitted that this Court should adjust the commencement date of the aggregate sentence. He saw this as a limited error which would not warrant the sentence being set aside in its entirety and this Court re-sentencing at its own discretion, referring to the discussion of that issue in Martin v R [2016] NSWCCA 104. However, this matter was argued before the decision of this Court in Lehn v R [2016] NSWCCA 225. In the light of that decision, the Court's discretion to re-sentence generally is enlivened. This is not a mere arithmetical error in the calculation of the commencement date of the sentence: cf Lehn at [71]. His Honour's misapprehension about the non-parole period for the sentence of assaulting an officer affected the exercise of his sentencing discretion.
4. The Crown Prosecutor in this Court pointed out that the sentence as it stands is valid and that it does achieve his Honour's aim that the applicant suffers some measure of punishment referable only to the assaulting an officer offence. Nevertheless, given that it was his Honour's intention that the aggregate sentence be partly concurrent with the non-parole period for that offence, I am satisfied that the commencement date of the aggregate sentence should be adjusted. I would not otherwise interfere with the sentence because, in the exercise of my discretion, I consider that it is appropriate.
5. Mr Barrow argued that the aggregate sentence should be directed to commence on a date no later than 10 October 2014, when the 5 month non-parole period expired. In my view, it would be appropriate to backdate the aggregate sentence by 2 months so as to maintain a moderate degree of concurrency with the non-parole period for assaulting an officer, while leaving most of that non-parole period referable only to that offence. I would direct that the aggregate sentence commence on 10 September 2014.

Referral to Drug Court

1. At the time he sentenced the applicant the sentencing judge referred him to the Drug Court for assessment of his suitability for a compulsory drug treatment order. However, he was ineligible to be assessed because of the length of his outstanding head sentence which, at that time, was a little over 6 years and 9 months. Section 5A(1) of the Drug Court Act 1998 defines "eligible convicted offender" by reference to a number of criteria, one of which is that the offender's unexpired total sentence was a period of not more than 6 years: sub paragraph (b)(ii). However, as at the date of the hearing of this application the remaining time on the applicant's sentence was a little over 5 years and 8 months. Accordingly, he was by then an eligible convicted offender.
2. Section 18B of the Drug Court Act deals with the referral of eligible convicted offenders to that court. Relevantly that section provides: (1) This section applies to such courts as are prescribed by the regulations. (2) It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence of imprisonment imposed on the person by some other court (whether or not on the same terms as the other court): (a) to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and (b) if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order. (2A) The duty imposed on a court by this section does not apply to a court on determining an appeal (an "appeal court") if the person whose sentence is confirmed in the appeal is already the subject of a compulsory drug treatment order as a consequence of a referral made to the Drug Court by the court that imposed the sentence confirmed by the appeal court. (2B) However, if the person whose sentence is confirmed by the appeal court is not already the subject of a compulsory drug treatment order, the duty imposed by this section applies to the appeal court, whether or not the court that imposed the sentence confirmed by the appeal court referred the person to the Drug Court under this section. Clause 9(d) of the Drug Court Regulation 2015 includes this Court as a referring court.
3. Mr Barrow asked us to refer the applicant for assessment as the subject of a compulsory drug treatment order, whatever the outcome of the application might be. The Crown Prosecutor did not wish to be heard on the matter and, in my view, it is an appropriate course.

Orders

1. I propose the following orders: 1. Leave to appeal is granted and appeal is allowed. 2. The aggregate sentence passed in the District Court is confirmed, but is directed to commence on 10 September 2014. Accordingly, that sentence will comprise a non-parole period of 5 years, commencing on 10 September 2014 and expiring on 9 September 2019, and a balance of term of 2½ years, commencing on 10 September 2019 and expiring on 9 March 2022. 3. The applicant is referred to the Drug Court for assessment as the subject of a compulsory drug treatment order.

Amendments 19 April 2018 - Para [3] change "five" to "four" Para [4(9)] change "Count 5" to "Form 1" Para [22] change "Count 5" to "Form 1" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2018