Facenfield v R

Court of Criminal Appeal (NSW)|2021-05-31|Before: Harrison J, Beech-Jones J, Cavanagh J, Jones J

Judgment

HARRISON J: I agree with Cavanagh J.
BEECH-JONES J: I agree with Cavanagh J.
CAVANAGH J: The applicant, Damien John Facenfield, seeks leave to appeal from an aggregate sentence imposed upon him under the Drug Court Act 1998 (NSW) in respect of 13 offences. The applicant entered pleas of guilty in respect of each offence.
The applicant initially pleaded guilty to 8 offences. He was sentenced by Judge Still DCJ of the Drug Court on 11 July 2019 exercising Local Court jurisdiction (the initial sentence) as follows: Seq Offence Maximum / LC jurisdiction Indicative Sentence Seq 1 Enter dwelling with intent S 111(2) Crimes Act 1900 (NSW) 10 years / 2 years 8 months Seq 2 Break, enter with intent S 113(1) Crimes Act 1900 (NSW) 10 years / 2 years 8 months Seq 3 Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW) 14 years / 2 years 9 months Seq 4 Enter dwelling with intent S 111(1) Crimes Act 1900 (NSW) 10 years / 2 years 9 months Seq 5 Larceny (bicycle) S 117 Crimes Act 1900 (NSW) 5 years / 2 years 10 months Seq 6 Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW) 14 years / 2 years 12 months Seq 7 Possess prohibited drug S 10 Drug Misuse and Trafficking Act 1985 (NSW) 2 years 3 months Seq 8 Goods in custody S 527C Crimes Act 1900 (NSW) 6 months 6 months no discount

The applicant was admitted into the Drug Court programme as he satisfied the criteria for admission (see s 7A Drug Court Act 1998 (NSW)). The aggregate sentence of 34 months was suspended whilst he participated in the programme. Unfortunately, his progress was deemed to be unsatisfactory and on 5 March 2020 his participation was terminated.
He then appeared for final sentence before his Honour on 7 May 2020 (s 12 Drug Court Act 1998). At that time, his Honour confirmed the sentence imposed in respect of the original 8 offences and considered further sentence in respect of an additional 5 offences. One of those offences pre-dated the applicant's participation in the Drug Court programme. The other 4 were committed whilst he was in the programme.
His Honour stated indicative sentences for the additional 5 offences as follows: Seq Offence Maximum / LC jurisdiction Indicative Sentence Seq 9 Aggravated break and enter / company S 112(2) Crimes Act 1900 (NSW) 20 years SNPP 5 years 14 months Seq 10 Shoplifting S 117 Crimes Act 1900 (NSW) 5 years / 2 years 3 months Seq 11 Possess prohibited drug 1g cannabis S 10(1) DMTA 1985 (NSW) 2 years 4 months Seq 12 Possess prohibited drug 0.9g methylamphetamine S 10(1) DMTA 1985 (NSW) 2 years 4 months Seq 13 Supply prohibited drug (deemed) S 25(1) DMTA 1985 (NSW) (63mls GBL) 15 years / 2 years 12 months

His Honour then imposed, in respect of all of the offences, an aggregate sentence of 4 years 2 months imprisonment with a non-parole period of 2 years 1 month (the final sentence). The sentence commenced on 30 July 2019 and will expire on 29 September 2023. The non-parole period will expire on 29 August 2021.
The applicant relies on two grounds of appeal: 1. Ground 1 - The sentencing judge erred in his approach to the applicant's plea of guilty in respect of Sequence 8. 2. Ground 2 - The sentence is manifestly excessive.
The applicant read an affidavit affirmed 26 May 2021 which is only relevant should it be necessary to resentence.

Background

The offending is all of a somewhat similar nature, being property and drug related crimes. The offending commenced on 27 March 2019 when the applicant and co-offender broke into a shop in Norton Street, Leichhardt and, after rummaging through the shop, stole a tip jar containing $200 to $300 (Sequence 9).
Then on 15 April 2019 the applicant entered an underground carpark in Alexandra and unsuccessfully attempted to open a number of vehicle doors (Sequence 1). He then forced open a storage cage which he entered. He left with a hammer and opened an unlocked letterbox (Sequence 2).
The next day, he returned to the same location and stole a giant pushbike (Sequence 3).
Then on 18 April 2019, he again entered an underground carpark in Waterloo (Sequence 4). He stole a golf bag, clubs, shoes and a pair of sunglasses to a total value of $11,147 from a car in the underground carpark (Sequence 5).
On 28 April 2019 (10 days later), he entered another underground carpark and stole a pushbike, cycling shoes and a helmet from a storage shed (Sequence 6).
On 10 May 2019, the Police executed a search warrant at his home and located 5 grams of cannabis (Sequence 7) as well as a large amount of property including debit and credit cards in other people's names, bikes, laptops, passports (Sequence 8).
Finally, on 24 February 2020 he stole a number of items from Woolworths Metro at Surry Hills after being stopped by Police outside and searched. He was found with 1 gram of cannabis (Sequence 11), 0.9 grams of methylamphetamine (Sequence 12) and 4 bottles containing a total of 63 mils of gamma-butyrolactone (GBL) (Sequence 13).

Ground 1

The applicant entered early pleas in respect of each of the offences which was noted by the sentencing judge as follows: "You have pleaded guilty at an early opportunity. You are entitled to a full 25% discount for those pleas. That discount will be reflected in the indicative sentences today and ultimately reflected in the aggregate sentence I am going to impose. I am not going to apply that discount after considering the other factors to the goods in custody count. In my view, the appropriate sentence for that matter will be at the maximum."
Then in respect of Sequence 8, being the goods in custody offence, the sentencing judge said further: "As I have already said, in relation to the goods in custody charge, you were caught red handed with all that, so there is no real utility value in the plea because the plea, in my view, would have been inevitable, in relation to that matter, I indicate a sentence of six months."
The sentencing judge did not further consider any discount which ought to be applied in respect of Counts 1 to 8 when imposing final sentence on 7 May 2020.
When the Police executed a search warrant at the appellant's home on 10 May 2019, a large amount of property including debit and credit cards, a racing bike, clothes, golf clubs, laptops, passports and drivers' licences in other peoples' names were discovered. This led to Sequence 8, being a goods and custody charge contrary to s 527C of the Crimes Act 1900 (NSW).
The maximum sentence in respect of the offence was imprisonment for 6 months. The sentencing judge gave an indicative sentence in respect of Sequence 8 of the maximum sentence and declined to apply any discount for the utilitarian value of the early plea of guilty.

The applicant's submissions

For the purposes of Ground 1, the applicant does not submit that the sentencing judge erred in imposing the maximum sentence but submits that his Honour erred in failing to apply any discount despite the early plea of guilty.
The applicant submits (correctly) that in the process of determining the aggregate sentence, the sentencing judge was required to indicate the sentences that would have been imposed if separate sentences had been imposed instead (s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)). In assessing the indicative sentences, the sentencing judge was required to take into account relevant matters as specified in Part 3 of the Crimes (Sentencing Procedure) Act. Those relevant matters specifically include reductions for guilty pleas [1] .
The applicant submits that the finding in respect of Sequence 8 that there was no real utility value in the early plea as the outcome would have been inevitable was contrary to established principle, particularly as set out in the guideline judgment of R v Thomson & Houlton [2] per Spigelman CJ as follows: " … A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea."
Even assuming the sentencing judge should have applied a 25% discount, that would have only resulted in a reduction in the indicative sentence in respect of Sequence 8 of 1½ months. Nevertheless, the applicant submits that error has been shown and that it is an error which must lead to resentencing by this Court.

The respondent's submissions

The respondent submits that, although s 22 of the Crimes (Sentencing Procedure) Act imposes an obligation to have regard to the fact of the early plea, the time at which it was proffered and the circumstances in which it was offered, the Court still has a discretion whether to impose a lesser penalty than it would otherwise have imposed.
The respondent submits that nothing said in Thomson detracts from the discretion remaining in the sentencing judge as to whether to apply a discount. Further, having regard to s 22(2), there may be occasions when the sentencing court will not pass on the discount. The respondent submits that on a fair reading of the sentencing judge's comments, the sentencing judge exercised his discretion in a permissible way.
Further, the respondent submits that, even if there was error: 1. the error was in the initial sentencing judgment. The sentencing judge made it plain on the final sentence judgment that he intended to impose the same indicative sentences in respect of Sequences 1 to 8 and the applicant's Counsel took no issue with this; 2. it is necessary to consider whether the error had the capacity to impact upon the aggregate sentence. The applicant submits that this Court would not accept that any error had the capacity to impact upon the final aggregate sentence; and 3. if it is necessary to resentence, this Court would not form the opinion that a less severe sentence is warranted in law and would dismiss the appeal.

Consideration

I accept that by virtue of s 22 of the Crimes (Sentencing Procedure) Act, the sentencing judge had a discretion whether to impose a lesser penalty than would otherwise have been imposed. However, that discretion is not unfettered. The Court must take account of the matters set out in s 22(1)(a), (b) and (c) and, if a lesser penalty is imposed, it must not be unreasonably disproportionate to the nature and circumstances of the offence (s 22(1)(a)).
Plainly, the sentencing judge determined not to apply a discount to the indicative sentence. He exercised his discretion not to reduce the sentence. Further, the sentencing judge complied with s 22(2) in that his Honour indicated to the applicant the reasons for not doing so and made a record of those reasons.
Having said that, I do not accept the respondent's submissions that his Honour's observation as to the lack of utility in the plea was merely an observation additional to the reasons why no discount was afforded.
When his Honour referred to not applying the discount after considering "the other factors", his Honour could only have been referring to the factors he first identified when considering Count 8. Those factors were primarily the nature and extent of the goods that were the subject of the offence. Those factors plainly influenced his Honour in determining to impose the maximum penalty.
If, as the respondent submits, they were truly his Honour's reasons for not applying a discount, then it is not apparent that his Honour has had regard to all the matters set out in s 22(1)(a), (b) and (c).
Whilst the sentencing judge initially said that he was not going to apply the discount after considering "the other factors" to the goods in custody count, he ultimately concluded that there was no real utility value in the plea because the plea would have been inevitable.
The better view is thus that his Honour formed the view that the maximum penalty of six months was appropriate having regard to all of the factors to which he referred but, when considering the matters set out in s 22(1)(a), (b) and (c), and recording his reasons for not imposing a lesser sentence, his Honour recorded the reason as being that that there was no real utility value in the plea because the plea would have been inevitable.
Whilst the consideration of whether to award a lesser penalty under s 22 is not confined to the matters set out in s 22(1)(a), (b) and (c), on a proper application of s 22, the seriousness or circumstances of the offending do not guide the exercise of the discretion. Those factors may impact upon the overall penalty imposed but not whether to apply the discount available under s 22.
It seems likely that his Honour recognised this and ultimately recorded his reasons for not imposing a lesser sentence (as required by s 22) as being the absence of any real utility value in the plea because a plea would have been inevitable. Approaching his Honour's reasons in that way leaves only the question of whether such an approach was permissible in all the circumstances.
In the guideline judgment of Thomson, Spigelman CJ said at [115]: "The benefits to the criminal justice system as a whole, which flows from a plea of guilty, particularly an early plea of guilty, are not related to the circumstances of the offence or to the conduct of the offender. Such benefits flow from an act by the offender that is not directly related to any of the multifarious objectives designed to be served by the sentencing process: deterrence, rehabilitation, punishment, etc. Rather, they are a collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole, which require acknowledgment of some character by way of an incentive, so that the benefits will in fact be derived by the system."
Further, his Honour went on to say: "136. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater supra at 525-526; R v Bond supra at 7; R v Winchester supra at 350; R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564. 137. In R v Winchester Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused (c/f R v Beavan supra at 12). As his Honour put it at 350: 'The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable.' In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea."
Accordingly, as identified by the Chief Justice, a recognition of the inevitable may qualify the extent of genuine contrition but it does not qualify the utilitarian value of the plea of guilty.
I do have regard to the fact that the sentencing took place in the busy Drug Court. That fact is important in analysing the content of the sentencing judgment. Remarks on sentence should not be treated and scrutinised to an unrealistic standard. However, that is not an answer to the applicant's identification of error, being the finding that there should be no discount on account of the utilitarian value of the early plea in respect of Count 8.
Further, nor is it an answer (as the Crown submits) to suggest that the applicant's Counsel did not raise an issue with the indicative sentence in respect of Count 8, when the matter came on for final sentence. There was opportunity to do so at that time, but the applicant is not complaining about a lack of procedural fairness.
In the circumstances, I accept the applicant's submission that the sentencing judge erred in declining to indicate a lesser penalty on the basis that there was no real utility value in the plea because the plea would have been inevitable.
Of course, if the maximum discount of 25% had been applied it would only have resulted in a reduction in the indicative sentence for Sequence 8 of approximately 6 weeks.
The Crown submits that in the circumstances in which an appeal only lies in respect of the aggregate sentence imposed, the Court would not be satisfied that the error had the capacity to impact upon the aggregate sentence.
Not all errors lead to a conclusion that the exercise of the sentencing discretion has miscarried [3] . In Newman (a pseudonym) v R, Basten JA said at [12]-[14] (with reference to the High Court's judgment in Kentwell v The Queen) [4] : "12. The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not "guide or affect the determination" involves no miscarriage. It is true that Kentwell referred to a statement by Latham J in Baxter that "confined error to those that are material in the sense that they have the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the outcome", as differing from the reasoning of the Chief Justice, [6] but did not dismiss it as erroneous. It appears to conform to the High Court's own statement of principle, although the term "material" is avoided. 13. In stating that the error need not be "material", Roberts should be understood as eschewing the analysis of effect, rather than capacity to affect. On that understanding, counsel for the Director misread Roberts as saying something different; but the error is understandable and language of materiality is readily open to such a misunderstanding. Following Kentwell, it is best avoided. 14. In contrast to the circumstances in Roberts, where the error was clearly capable of affecting the outcome in a significant manner, the present case raised a question as to whether that was so. Counsel for the applicant, apparently assuming that the Director's concession would warrant this Court setting aside the sentence imposed in the District Court and resentencing the applicant, did not press his ground 2, which alleged that the total sentence was manifestly excessive."
I am not assessing whether and to what degree the error influenced the outcome [5] . I am assessing whether the error had the capacity to affect the outcome.
Unlike cases such as A v R [6] and Rizk v R [7] in which the Court did not accept that errors in the sentencing process affected the exercise of the sentencing judge's discretion, I am unable to conclude that the error did not have the capacity to affect the sentencing discretion.
In the circumstances, the sentencing discretion must be exercised afresh [8] . As such it is not necessary that I consider the second ground of appeal (manifest excess).

Resentence

There is no challenge to any of the findings of fact made by the sentencing judge as to the circumstances of the offending. I have already described the nature of the offending in respect of each sequence. I adopt the sentencing judge's findings.
Similarly, there is no dispute as to the findings as to objective seriousness in respect of each sequence and I adopt the sentencing judge's findings in this regard.
In terms of the applicant's subjective case, I have regard to all of the material relied upon on initial and final sentence, as well as the affidavit of the applicant dated 26 May 2021 relied upon for the purposes of resentence.
Unfortunately, for much of the applicant's life he has been exposed to and then been involved in drug abuse. He had a difficult childhood, suffering the effects of a relationship breakdown, seemingly based on his father's extensive drug use and time in prison. He did not get on with his mother's new partner and formed a relationship with an uncle who was also a drug user. He was thus exposed to drug use from an early age.
He left school whilst repeating Year 8 and his criminal history commenced at the age of 15. Since 2012, he has offended regularly and been subject to a range of penalties including imprisonment in respect of this offending. Again, much of his offending appears to have been drug-related, including drug possession charges and the range of property charges including other goods in custody charges, larceny and dishonestly obtain financial advantage by perception charges.
In 2017, he was convicted of a series of violence-related charges such as stalk and intimidate, having custody of a knife in a public place and using it to carry and serve as to threaten to kill for which he received a term of imprisonment of 12 months commencing on 25 January 2017 with a non-parole period of 6 months concluding on 24 July 2017.
Unfortunately, after being released, he again committed drug-related offences in 2017 and 2018, all being prior to the offending the subject of these proceedings.
At the time of sentence for the offences the subject of these proceedings, the applicant thus presented with a criminal history which disentitled him to leniency.
I have regard to the report of Laura Durkin, Clinical and Forensic Psychologist, dated 12 April 2020. I accept Ms Durkin's opinion that since 2012, the applicant had been caught in the cycle of repeat offending in order to self-satisfy his perceived needs for drugs, despite the adverse consequences.
I accept that in more recent years, he has experienced episodes of major depression and anxiety, albeit as Ms Durkin says, there is no evidence of any cognitive impairment that would account for his difficulties in engaging in the Drug Court programme.
In reality, he did not refrain from the use of ice and cannabis, despite being afforded the opportunity to participate in the programme and having the initial sentence suspended.
Having said that, I also have regard to the most recent evidence as set out in the applicant's affidavit of 26 May 2021. As stated by the applicant, he was accepted into the Individual Drug and Alcohol Treatment Program (IDATP).
He says he is undertaking the programme for 4 hours a week for a few hours a day. He also intends to undertake an employment programme and obtain his forklift licence. There have been no major incidences of misconduct since he was sentenced. He has been suffering with an aggravation of his depressive symptoms since the death of his grandmother and his anti-depressant medication has increased. He says that his persistence with the IDATP programme is a positive sign for him (albeit he could not complete it because he was moved).
Like the sentencing judge, I am satisfied that there should be a finding of special circumstances. I am satisfied that he does have some prospects of rehabilitation now that his attitude to drug programmes has improved and he has made more of an effort to complete such a programme whilst in custody. He would benefit from a longer time on parole.
Further, although any remorse appears to have been late in coming, I accept that the applicant is remorseful. Perhaps those events which have happened whilst he has been in custody most recently have impacted upon his realisation of the consequences of his conduct and his determination to refrain from drug use and related offending.
The applicant entered pleas of guilty to 13 separate offences. It is necessary that on resentence, I provide indicative sentences in respect of each of those offences. The applicant has entered a plea of guilty in respect of each of the offences at an early stage. I am satisfied that he is entitled to a 25% discount in respect of each offence which will be reflected in the indicative sentences and the aggregate sentence.
Having said that, I agree with the sentencing judge's indicative sentences in respect of each of the counts except as follows: 1. Sequence 11 - Possess prohibited drug s 10 Drug Misuse and Trafficking Act: When stopped by police on 22 February 2020, he was found in possession of 1 gram of cannabis (Sequence 11) as well as 0.9 grams of methamphetamine (Sequence 12). I would impose an indicative sentence of 1 month for Sequence 11. 2. Count 8 - Goods in custody s 527C Crimes Act 1900: The maximum penalty in respect of Count 8 is 6 months. I would not impose the maximum penalty. After discount, I would impose an indicative sentence of 3½ months.
I set out below a table providing my indicative sentences in respect of each of the offences: Seq Offence Maximum / LC jurisdiction Indicative Sentence Seq 1 Enter dwelling with intent S 111(2) Crimes Act 1900 (NSW) 10 years / 2 years 8 months Seq 2 Break, enter with intent S 113(1) Crimes Act 1900 (NSW) 10 years / 2 years 8 months Seq 3 Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW) 14 years / 2 years 9 months Seq 4 Enter dwelling with intent S 111(1) Crimes Act 1900 (NSW) 10 years / 2 years 9 months Seq 5 Larceny (bicycle) S 117 Crimes Act 1900 (NSW) 5 years / 2 years 10 months Seq 6 Break, enter and steal (bicycle) S 112(1) Crimes Act 1900 (NSW) 14 years / 2 years 12 months Seq 7 Possess prohibited drug S 10 Drug Misuse and Trafficking Act 1985 (NSW) 2 years 3 months Seq 8 Goods in custody S 527C Crimes Act 1900 (NSW) 6 months 3½ months Seq 9 Aggravated break and enter / company S 112(2) Crimes Act 1900 (NSW) 20 years SNPP 5 years 14 months Seq 10 Shoplifting S 117 Crimes Act 1900 (NSW) 5 years / 2 years 3 months Seq 11 Possess prohibited drug 1g cannabis S 10(1) DMTA 1985 (NSW) 2 years 1 month Seq 12 Possess prohibited drug 0.9g methylamphetamine S 10(1) DMTA 1985 (NSW) 2 years 4 months Seq 13 Supply prohibited drug (deemed) S 25(1) DMTA 1985 (NSW) (63mls GBL) 15 years / 2 years 12 months

I am satisfied that there must be some accumulation. Much of the offending involves discrete offences at different times, albeit, it is very much of a similar nature. Having said that, the aggregate sentence must reflect the totality of the offending (Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]).
I impose an aggregate sentence of 3 years 9 months commencing on 30 July 2019 and expiring on 29 April 2023.
I specify a non-parole period of 23 months. The applicant will be eligible for parole on 29 June 2021.
I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to 3 years and 9 months imprisonment commencing on 30 July 2019 and expiring on 29 April 2023. 5. I specify a non-parole period of 23 months commencing on 30 July 2019 and ending on 29 June 2021. The earliest the applicant will be eligible for release will be 29 June 2021.

Endnotes

Section 25D
(2000) 14 NSWLR 374; [2000] NSWCCA 309 at [137]
Newman (a pseudonym) v R [2019] NSWCCA 157 per Basten JA at [12]-[14]
(2014) 252 CLR 601; [2014] HCA 37
See Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] per French CJ, Hayne, Bell and Keane JJ
[2020] NSWCCA 145
[2020] NSWCCA 291
Kentwell at [42] 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: 23 June 2021

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