Dixon v Regina

The remarks on sentence

1. The sentencing judge summarised the facts as I have outlined them. He rejected the applicant's evidence that he only wanted a cigarette lighter, stating that was "inherently implausible". No complaint was made concerning this finding.
2. In dealing with the objective seriousness of the offence, the sentencing judge made the following remarks which formed the basis of Ground 2a of the grounds of appeal: "In terms of the objective seriousness of the principal offence, it is somewhere equidistant between the middle and the bottom of the range. It is certainly not at the bottom of the range. It is aggravated by the fact that at the time of the offence, the offender was on parole. Further, by having regard to the offender's long criminal history, Veen (Number 2) is engaged. Mr Dixon is now 44 years of age and his background is a most distressing one. He is an Aboriginal Australian. His upbringing was, on any view of it, a dysfunctional one within the meaning of Bugmy and related cases. Consequently his moral culpability is to be reduced in the manner in which the High Court has directed sentencing judges to do."
3. His Honour then dealt with the subjective circumstances, which I have summarised. In addition, he noted that the applicant left school at Year 9 and had "virtually no work experience in the community". The sentencing judge stated that "it seems more likely than not that the use of illicit drugs, and the abuse of legal drugs, has, at least in part, been some form of self-medication to address the challenges (for want of a better term) that his upbringing presented to him". He also noted, however, that the applicant "does not have any diagnosable psychological condition".
4. The sentencing judge noted that the applicant gave evidence and consistent with what he told Ms Durkin "he purported to express remorse". However, the sentencing judge stated that he was ultimately left with the impression that the applicant was "saying something that he has said many times before and what he thought the Court wanted to hear". He stated that he was "not persuaded, on the balance of probabilities, that there was genuine remorse - as opposed to regret that he was caught". He stated that the applicant's prospects of rehabilitation were, at best, "guarded".
5. The sentencing judge allowed a discount of 10 per cent for the utilitarian value of a relatively late plea. In those circumstances, he imposed the sentence to which I have referred (see [2] above).

The grounds of appeal

1. The applicant relied on the following grounds of appeal: "Ground 1: His Honour erred in failing to take into account the evidence or submissions in relation to institutionalisation. Ground 2: His Honour erred in his assessment of the objective seriousness of the offence; 2a. In taking into account the applicant's criminal record and status as a parolee when assessing the objective seriousness of the offence, and/or 2b. By taking into account that the applicant had broken into the premises. Ground 3: The sentence is manifestly excessive."

The parties' submissions

1. In written submissions filed on the applicant's behalf, it was noted that the applicant's criminal record showed that as an adult, prior to the offence the subject of this appeal, he had spent 16 years or 64 per cent of his adult life in custody and the longest he had been at liberty in any one period had been 8 months.
2. The written submissions noted that in those circumstances, the question of institutionalisation was raised and debated at the sentencing hearing. At the hearing, counsel for the applicant accepted that the risk of institutionalisation was only raised in relation to the question of special circumstances. Counsel for the applicant submitted that notwithstanding the matter being raised, the sentencing judge erroneously failed to consider it. He pointed to the fact that the issue was not referred to in the remarks on sentence and that having regard to this issue, the need for an extended period of supervision, and the evident difficulties in rehabilitation resulting from the applicant's drug use, it was a factor which should have been taken into account.
3. It was noted that the sentencing judge failed to record a reason for the allowance for special circumstances which he made as required by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It was submitted that the Court should conclude that the allowance was made solely because of the applicant's "entrenched drug problem" rather than the risk of institutionalisation due to the "absence of any discussion of the applicant's institutionalisation".
4. The Crown pointed out that at first instance, the applicant made two submissions in respect of special circumstances: first, risk of institutionalisation and second, significant assistance with the applicant's entrenched drug use. She submitted that both submissions were made in support of the need for rehabilitation. She stated that a reduction of 10 per cent of the statutory ratio was not an insignificant reduction on the basis of a need for rehabilitation.
5. She also noted in that context that the sentencing judge made express reference to the very considerable period of time the applicant had spent in custody.
6. She stated that in a short ex tempore judgment, where reference was made both to the length of time spent in custody and the drug use, it was apparent that the finding of special circumstances was clearly made for the purpose of rehabilitation which was justified for both of these reasons.
7. The Crown distinguished the decision of this Court in Hart v R [2014] NSWCCA 172, where it was held that the sentencing judge erred in failing to take into account evidence in relation to the applicant's institutionalisation where no finding of special circumstances was made. To this may be added that in that case, the finding was made on the basis that no reference at all was made to the opinion expressed in a report of Dr Allnutt, a forensic psychiatrist, concerning the applicant's rehabilitative needs. This opinion of Dr Allnutt was the basis of submissions made in relation to the issue of institutionalisation which the sentencing judge said he had unequivocally accepted.

Consideration

1. In RG v R [2017] NSWCCA 60, Hoeben CJ at CL with whom Garling and Beech-Jones JJ agreed, made the following remarks concerning the concept of institutionalisation: "[109] … Institutionalisation is a label which is frequently used but its meaning and application to sentencing principles are unclear. What the label seems to suggest is that a person's time in prison will be so lengthy that the person is unable to be rehabilitated and that further time in prison will not achieve that purpose. What the consequences of a finding that institutionalisation might occur, or has occurred, in a sentencing context is also not clear. Does it mean that despite the seriousness of offending, further imprisonment should not take place? Surely not. In this case, because of his own conduct, the applicant had at the time of sentence already spent a considerable amount of time in prison with relatively short periods of living in the community. Her Honour was aware of that and acknowledged it in her reasons. Even so, there remained an obligation on her Honour to impose a sentence which was appropriate to the seriousness of the offending and which was otherwise consistent with proper sentencing principles." See also Hurst v R [2017] NSWCCA 114 at [124]; Judge v R [2018] NSWCCA 203 at [36]-[37].
2. Counsel for the applicant acknowledged that the question of institutionalisation was only raised in the Court below on the question of special circumstances. He noted that the submissions raised two separate and distinct grounds which warranted a finding of special circumstances, namely the risk of institutionalisation and the need for significant assistance to be provided for the applicant due to his entrenched drug use.
3. The difficulty with the present case is that contrary to the requirements of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge did not set out the reasons for his finding of special circumstances. Although a failure to do so does not constitute an error (s 44(3)), the present case with respect to his Honour demonstrates why it is desirable to set out such reasons.
4. However, I do not think it can be said that the sentencing judge did not take it into account. The departure from the statutory ratio was not insignificant and the judge expressly referred to both the drug problem and the substantial portion of the applicant's adult life which he had spent in prison.
5. The case, in these circumstances, may be contrasted with Hart v R where there was no finding of special circumstances and no reference was made to the psychiatric evidence of the need for rehabilitation. In the present case, the sentencing judge took the need for rehabilitation and the extent of past incarceration into account.
6. It follows that this ground has not been made out.

The parties' submissions

1. Counsel for the applicant referred to the fact that at the sentencing hearing, the parties essentially agreed that the offence was at the bottom end of the scale of objective seriousness. He pointed to the fact that at the sentencing hearing, the Crown acknowledged that the offence was at "the lower end" of the range.
2. Counsel for the appellant noted that the principle of proportionality required that the upper boundary of the sentence be set by the objective circumstances of the offence and those circumstances do not encompass an offender's prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]-[81]; McCabe v The Queen [2016] NSWCCA 7 at [15]. He also submitted that it was erroneous to take into account the fact that the applicant was on conditional liberty in assessing the objective seriousness of the offence: Elhassan v R [2018] NSWCCA 118. In that case McCallum J (as her Honour then was) helpfully summarised the principle in the following terms: "[13] The Crown concedes the error. It was correct that the applicant was on parole at the time he committed the offence. As provided by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that was an 'aggravating factor' to be taken into account in determining the appropriate sentence for the offence. The confusion generated by the use of the term 'aggravating' in that context was resolved in the decision of this Court in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. At common law, an 'aggravating factor' was understood to mean one that makes the offence more serious. However, as explained in McNaughton, that is not the sense in which the word 'aggravating' is used in the Act. The list of 'aggravating factors' in s 21A(2) was intended to encompass both subjective and objective considerations: McNaughton at [30]-[34] per Spigelman CJ; McClellan CJ at CL agreeing at [60]; Grove J agreeing at [76]; Barr and Bell JJ agreeing at [81]. [14] The fact that the offence was committed while the offender was on conditional liberty was relevant as a subjective consideration but not as part of the assessment of the objective seriousness of the offence: Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 at [30] per Basten JA; at [74] per R A Hulme J; applied in Smith v R [2011] NSWCCA 163 at [26] per R S Hulme J; Giles JA and Adams J agreeing at [1] and [72]. The distinction is important because the principle of proportionality requires that a sentence should not exceed (or fall short of) what is proportionate to the gravity of the crime, having regard to the objective circumstances: McNaughton at [15], citing Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14."
3. Counsel for the applicant submitted that in the passage from the remarks on sentence to which I have referred at [22], the sentencing judge was explaining his conclusion why, in his view, the objective seriousness of the offence was somewhere equidistant between the middle and the bottom of the range. He rejected the submission by the Crown that the expression "it is aggravated" referred to the total sentence rather than the objective seriousness.
4. Counsel for the applicant accepted that it was an ex tempore judgment, but pointed to the fact that it was a revised judgment.
5. Counsel for the applicant submitted that his Honour's finding of the objective seriousness of the offence could only be explained by the fact that he took into account the fact that the offender was on parole and his lengthy criminal record.
6. The Crown accepted that if, on a proper construction of the reasoning of the sentencing judge, the applicant's prior criminal history or his breach of parole were incorporated into the finding of objective seriousness, it would be in error. She submitted, however, that on a fair reading it was clear that the finding of objective seriousness was "made only by reference to the matters which preceded that conclusion".
7. The Crown submitted that it was entirely open and appropriate for the finding of objective seriousness made by the sentencing judge to be made in circumstances where there was a weapon that was not only used to threaten the victim but was brought into the premises by the applicant. She also pointed to the fact that there was a direct confrontation with the victim involving threats of violence.
8. The Crown submitted that her submissions were supported by the reference to Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 referring to "the need to protect the community, which has never been understood as being relevant to the objective seriousness of offending".

Consideration

1. The Crown seeks to have any ambiguity in the words used by the sentencing judge resolved in favour of the proposition that his Honour did not erroneously conclude that the objective seriousness of the offence was aggravated by the fact that the applicant was on conditional liberty at the time he committed the offence.
2. In the present case, I am not prepared to agree with that conclusion. First, making due allowance for the fact that it was an ex tempore judgment, Rotner v R [2011] NSWCCA 207 at [57], and that it is necessary to consider the substance of the remarks, rather than undertaking a technical or grammatical analysis, Gommesen v R [2012] NSWCCA 226 at [37], it must be remembered that in the present case, the sentencing judge had an opportunity to revise his judgment.
3. Second, although the word "it" in the second paragraph of the passage of the judgment of the sentencing judge, which I have cited at [22], could refer to the objective seriousness or the principal offence, it seems to me that his Honour commenced to deal with the other matters required to be considered by s 21A of the Crimes (Sentencing Procedure) Act in the following paragraph, even taking into account his reference to moral culpability in the last paragraph which was relevant to objective seriousness: Gommesen v R at [30]-[32]; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [229]-[230].
4. More importantly, it seems to me difficult to see how the sentencing judge could have concluded that the objective seriousness of the offence was between the middle and low range, without taking into account as aggravating factors that the offender was on parole and his long criminal history.
5. I have set out the facts above. The offence could hardly be described as planned. Once the appellant saw the victim he attempted to crawl backwards. It is not clear whether this was because he was scared of being crushed by the door or because he saw the victim.
6. The applicant then left. The subsequent confrontation and the threats seemed to follow from the victim following the applicant with a baseball bat and ultimately seeking to apprehend him. This is not to criticise the victim, but merely to take into account the context in which the offence and the offence on the Form 1 occurred.
7. When one takes this context into account and the express finding by the sentencing judge of the applicant's reduced moral culpability, it is difficult to see how he reached his conclusion as to the objective seriousness of the offence, without taking into account the fact that the applicant was on conditional liberty at the time it was committed and the applicant's criminal history.
8. In these circumstances, I am of the view that the sentencing judge erroneously took the factors complained of into account in arriving at his conclusion of the objective seriousness of the offence.
9. This ground has been made out.

The parties' submissions

1. It was submitted on behalf of the applicant that the sentencing judge erred by his statement in the opening paragraph of his remarks on sentence that the principal offence was "entering with intent to commit a serious indictable offence (larceny) in circumstances of aggravation, i.e. that he knew there was a person inside the dwelling house when he broke and entered it".
2. The applicant in his written submissions noted that breaking and entering of premises was not an element of the offence for which the applicant was charged, namely a contravention of s 111(2) of the Crimes Act. The applicant noted that breaking and entering of premises was an element of the offence contrary to s 112(2) of the Crimes Act, being an aggravated break and enter and committing a serious indictable offence which carries a maximum penalty of 20 years with a standard non-parole period of 5 years.
3. The Crown submitted that not very much could be made of the use by the sentencing judge of the word "broke" in the first paragraph of his judgment. She noted that it was said in circumstances where the sentencing remarks correctly described the offence as entering with intent to commit a serious indictable offence, being a contravention of s 111(2), and correctly identified the maximum penalty. She also noted that in assessing the objective seriousness in the subsequent portion of his judgment, his Honour made no reference to "break". She submitted that in those circumstances, "the reference to 'broke' was a slip" and would not be an error such as to enliven the duty of the Court to resentence.

Consideration

1. This ground of appeal related to the use by the sentencing judge of the word "broke" in the opening paragraph of his remarks on sentence.
2. However, in the balance of his remarks the sentencing judge directed himself to the correct section and set out the maximum penalty and noted there was no standard non-parole period.
3. In these circumstances, the use of the word "broke" was evidently a slip. This ground of appeal has not been made out.

Ground 3

1. As I have concluded that Ground 2a is made out, it is not necessary to deal with Ground 3.
2. However, I have taken the submissions made in respect of this ground into account in resentencing the applicant.

Resentence

1. It is, thus, necessary to resentence the applicant. I have explained above why I consider that the offence is at the low end of seriousness of an offence of this nature. To this must be added that the serious indictable offence, the subject of the charge, falls at the low end of the range of serious indictable offences.
2. It is, of course, necessary to take into account in determining the appropriate sentence the fact that it was committed whilst the applicant was on parole, his serious criminal record and, subject to the principle of proportionality, the need to protect the community.
3. I have also set out the applicant's subjective case. It is undoubtedly a strong one and as I have pointed out was necessary to be taken into account to determine the applicant's moral culpability: R v Bugmy (2013) 249 CLR 571; [2013] HCA 37 at [44].
4. I have considered the risk of institutionalisation, although I do not regard it of particular significance in the present case. However, the lengthy period the applicant has spent in prison, coupled with his need for assistance in rehabilitation in light of his entrenched drug habit, warrants a finding of special circumstances and a relatively generous departure from the statutory ratio.
5. In an affidavit filed at the hearing, to be read if the Court came to resentence, the applicant stated that he had passed every urine test whilst he had been in custody. He also stated that he was classified minimum security and was working in the engineering department at Macquarie Correctional Centre. He stated that he was undertaking a TAFE welding course.
6. In his affidavit, the applicant also stated that he had completed the EQUIPS Addiction Program, which assists with dealing with offending triggers like anger management and drug and alcohol addiction. He stated that he is also engaged in cognitive behaviour therapy.
7. It appears from that evidence that, at least whilst in prison, the applicant is seeking to undertake real steps in relation to his rehabilitation. I have taken that into account.
8. Whilst recognising the limited use that can be made of so-called comparable cases in this area where the circumstances surrounding the offences and the offender's subjective circumstances are quite diverse, Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [28]; Pham v R (2015) 256 CLR 550; [2015] HCA 39 at [28]-[32], I have had regard to the fact that the sentence imposed by the sentencing judge, compared to the limited number of cases which could be said to be comparable, was severe.
9. Consistent with the conclusion of the sentencing judge I have allowed a discount of 10 per cent for the relatively late plea of guilty.
10. In these circumstances, taking into account the offence on the Form 1, I would sentence the applicant to a term of imprisonment consisting of a non-parole period of 2 years and 6 months commencing on 31 October 2016 and expiring on 30 April 2019, with a balance of term of 1 year and 6 months expiring on 31 October 2020.

Conclusion

1. In the result I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. The sentence imposed on the applicant on 23 March 2018 is set aside and in lieu thereof the following sentence is imposed: The applicant is sentenced to a total term of imprisonment of 4 years commencing on 31 October 2016 and expiring on 31 October 2020, consisting of a non-parole period of 2 years and 6 months expiring on 30 April 2019, with a balance of term of 1 year and 6 months expiring on 31 October 2020.
2. IERACE J: I agree with the Chief Justice.
3. HIDDEN AJ: I agree with Bathurst CJ.

Amendments 24 April 2019 - Headnote and judgment: Order (3) changed to "23 March 2018". 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: 24 April 2019