FLICK v R [2012] NSWCCA 170 | Case summary

Court of Criminal Appeal (NSW)|2011-11-29|Before: Simpson J, Blanch J, Rothman J

Judgment 1SIMPSON J: I have read in draft the judgment of Rothman J. I regret that I am unable to agree with the approach his Honour takes. 2The applicant pleaded guilty in the District Court at Dubbo to two counts of aggravated break, enter and steal, each committed in a private residence, within the space of a few hours in the early morning of 10 June 2010, in Dubbo. In each case, the circumstance of aggravation was that persons were in the premises. 3Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") the applicant asked that a further two offences ("the Form 1 offences") be taken into account for sentencing purposes. One was an offence of break, enter and steal, committed in a shed on the property the subject of the first charge. The second was an offence of goods in custody; the Form 1 identified the "goods" as a pushbike, the property of another named person apparently not a resident of either of the properties the subject of the charges. When arrested later on the day of the offences, the applicant was also in possession of goods stolen in the course of the two burglaries. 4Pursuant to s 112(2) of the Crimes Act 1900 the maximum penalty applicable to the two offences the subject of the charges is imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, a standard non-parole period of 5 years is prescribed. (By reason of the applicant's pleas of guilty the standard non-parole period was not strictly applicable, although it remains relevant as a guide: R v Way [2004] NSWCCA 131; 60 NSWLR 168.) 5The applicant was sentenced on 17 December 2010. On the first count, taking into account the Form 1 offences, Woods ADCJ imposed a sentence of 3 years and 9 months, commencing on 10 March 2011, with a non-parole period of 2 years and 9 months, expiring on 9 December 2013. In respect of the second charge, his Honour imposed a sentence of imprisonment for 3 years, commencing on 10 June 2013, with a non-parole period of 1 year and 6 months, expiring on 9 December 2014. The aggregate sentence for the two offences was 5 years and 3 months, with a non-parole period of 3 years and 9 months. 6The commencement date of the first sentence was selected in order to take account of a period of pre-sentence custody (3 months and 5 days) referable to the present offences. At the date of the offences, the applicant was subject to a suspended sentence, imposed on 24 March 2010, in respect of two offences of larceny from retail stores (shoplifting). On 15 September 2010 he was called up in the Local Court at Dubbo in respect of those offences, presumably because of breaches of conditions of the order for suspension of the sentences. In respect of each of those offences, he was sentenced to imprisonment for 1 year, to be served concurrently, commencing that day (15 September 2010), with a non-parole period of 9 months, expiring on 14 June 2011. (In respect of a further offence of possession of a prohibited drug, an 18 month bond pursuant to s 9 of the Sentencing Procedure Act was imposed.) When these sentences are added to the sentences the subject of the present application, the time to be served in custody by the applicant is 4 years and 3 months with a possible parole period of 1 year and 6 months (a total head sentence of 5 years and 9 months). The facts 7The facts of the two offences on which the applicant was sentenced were put before the Court by way of an agreed statement. Those facts are unremarkable. The course of offending began either late in the night of 9 June, or in the early hours of 10 June, when the applicant broke into a closed but unlocked shed at the first residence (the first Form 1 offence). There he located a set of keys which he took to the main house with the intention of using them to gain entry. He knew that the occupants, one of whom was an elderly woman, were inside asleep. In the process, he forced his hand through a screen door, and used a key in the lock of the screen door to gain entry to the house. He ransacked the kitchen and living room, rummaging through drawers in the kitchen cabinet, selecting items to steal from both rooms. He fled when he heard the male occupant of the house stirring. 8At about 6.00am on 10 June he gained entry to the second home by lifting a laundry window off its rails. Again, he knew that the two male occupants of the house were inside, asleep. He rummaged through various rooms in the house, including a bedroom in which one of the occupants was asleep. At about 6.30am the other occupant emerged from his bedroom, saw the applicant, and shouted "Get the fuck out". The applicant ran out of the house through the laundry. Various of the items in the house had been positioned for removal. He was in possession of some of the items from each house, although the facts are not explicit as to what those items were. He was arrested later that day. He was in possession of a pushbike, which was the subject of the second Form 1 offence. The applicant's personal circumstances 9Limited information concerning the applicant's personal circumstances was available to the sentencing judge. What there was was contained in a Pre-Sentence Report prepared by the Probation and Parole Service. 10The applicant was born in August 1984 and was almost 26 years of age at the time of the offences. He had a lengthy criminal history, dating back to 2000, shortly before his 16th birthday. His record includes one previous entry for break, enter and steal, and one of possession of stolen property, as well as numerous motor vehicle offences, possession of implements to enter or drive conveyance, numerous offences of resisting arrest and assaulting police, and a number of others. Although he has been given the benefit of conditional liberty on a number of occasions, subject to the supervision of the Probation and Parole Service, his response has been unsatisfactory. The officer of the Probation and Parole Service who prepared the Pre-Sentence Report reported that he acknowledged being involved in the local drug subculture and spending his time procuring and using illicit drugs. He has had negligible employment. He told the officer that he was under the influence of amphetamines and methylamphetamines at the time of the offences. 11While incarcerated the applicant had commenced a fulltime education course in the Intensive Learning Centre of the Wellington Correctional Centre, having been identified as needing remedial education. However, he expressed resistance to participating in further education or training while in custody. He also expressed a lack of interest in any further community based supervision, stating that he would prefer to serve any parole period of the sentences in custody. This was, it seems, because supervised liberty on parole would require him to live without illicit drugs. 12His only expressed remorse for the commission of the present offences related to the anticipated sentencing consequences. The remarks on sentence 13The applicant was sentenced on 17 December 2010. That was before the delivery of the judgment of the High Court in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. However, his Honour observed that, in the light of the applicant's pleas of guilty, he retained full discretion to identify an appropriate penalty, after considering the objective gravity of the offences, and the objective and subjective circumstances; he also recognised that the standard non-parole period remained relevant as a reference point for a mid-range case. 14His Honour expressly found that the offences were in the mid-range of objective seriousness. He found the prospects of rehabilitation to be bleak, saying: "There does not appear to be any signs of any real consideration by the offender to want to become a law abiding member of society." 15He took the period between 10 June when the applicant was arrested, and 15 September, when he was sentenced on the larceny charges, to have been referable only to the current offences, and made due allowance for that period of custody. That, I have mentioned above, explains the commencement date of the first sentence. The consequence of this structure was that, apart from backdating the commencement of the first sentence to allow for pre-sentence custody, the sentences were wholly accumulated on the non-parole period of the larceny sentences. 16His Honour took into account the principle of totality. Notwithstanding the evidence that the applicant had no interest in a period of conditional liberty under supervision, he determined to allow an appropriate time potentially on parole in the hope that the applicant might, towards the end of his sentences, take a different view of his place in society. 17Not surprisingly in light of the applicant's expressed attitude, his Honour did not make any reference to the question of special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, and the sentences, whether or not taking into account the larceny sentences, broadly conform to the proportion therein specified. 18With reference to the standard non-parole period, his Honour assessed the objective gravity of the two offences as in the middle of the range. He then said: "I consider that with the maximum penalty of 20 years, these two break and enters initially warrant a consideration of a penalty in the area of five years imprisonment. In considering the penalty of the first offence ... I must also take into account the matters on the form 1 which raise the implications of the plan to get what he could from the property. I would start there at five years and allowing for the plea of guilty that reduces to three years and nine months. On the second offence later that night, I would start at four years and this reduces to three years for the plea of guilty." From this passage it can be seen that, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, his Honour allowed a reduction in each sentence of 25 percent. 19Apart from the Form 1 offences, and the indication that the first gave of planning, there is little to distinguish the two offences. The grounds of appeal 20The grounds of appeal are set out in full in the judgment of Rothman J. They concern the approach taken to the Form 1 offences, and the degree of accumulation. This latter has two parts - accumulation on the sentences imposed in respect of the larceny offences, and accumulation of the second sentence for aggravated break, enter and steal on the first such sentence. Neither ground of appeal raises the absence of a finding of special circumstances pursuant to s 44 of the Sentencing Procedure Act. Ground 1: the Form 1 offences 21The first ground of appeal, as pleaded, merely complains of the "approach to effect (sic) of the offences on the Form 1 ...". It does not specify the respect in which the "approach" is said to be erroneous. I have extracted above the passage in the Remarks on Sentence from which Ground 1 is drawn. It presents significant questions of construction. 22Both the written and oral submissions proceeded on the premise that the starting point for each sentence was 4 years, subject to the reduction to be allowed in recognition of the plea of guilty, and, in the case of the first sentence, consideration of the Form 1 offences. On that analysis, the sentencing judge included, in the first sentence, an increment of 1 year, referable to the Form 1 offences. That, it was submitted, was excessive, particularly having regard to the close connection between the first Form 1 offence and the first offence charged. 23This argument was developed in oral submissions. It was pointed out that the first Form 1 offence was in truth part of a single transaction of breaking and entering the residence, and obtaining the means of entry. There was no evidence as to the source of the pushbike the subject of the second Form 1 offence, but, it was argued, neither it alone, nor the two offences in combination, could justify an increase of 25 percent on the proposed starting point. It was submitted that the first Form 1 offence (break, enter and steal in the shed) was clearly linked to the commission of the offence of aggravated break, enter and steal and: "... whilst technically a separate offence ought not have increased the penalty to be imposed on the substantive offence." The result, it was argued, was a manifestly excessive sentence for the first offence. 24That argument would have considerable force if the premise upon which it was based is correct. That premise is that the starting point of sentencing for the first offence was 4 years, and an increment of 1 year was made for the Form 1 offences. 25It is not at all apparent to me that that premise is correct. The passage in the Remarks on Sentence in question opens with an express view by his Honour that "these two break and enters initially warrant a consideration of a penalty in the area of five years imprisonment". (While it would be open to anyone that his Honour considered that the two offences together warranted a combined sentence of 5 years, in my opinion it is much more likely that he considered that each offence warranted such a penalty, with consideration of questions of accumulation and concurrency to follow. That is consistent with a reference, very shortly after, to totality. It is also consistent with the assessment of the offences as being in the middle of the range of objective gravity, having regard to the prescribed standard non-parole period.) 26If, as seems to me to be the case, his Honour did consider an appropriate starting point for each sentence to be 5 years, then, far from including an excessive increment for the Form 1 offences, he made no increment at all. 27What is unexplained is why, his Honour having come to his stated views of objective gravity and the appropriate penalty, he then departed from that penalty, to a significant degree, in reaching the starting point for the second sentence. That might be indicative of error in the approach to his Form 1 offences, but it is scarcely error of which the applicant can be heard to complain. 28A supplementary argument concerned the finding of the sentencing judge that the offences were in the mid-range of objective seriousness (although it was immediately acknowledged that such a finding is one of fact). It was submitted that it is difficult to reconcile that conclusion with the facts of the case. I would reject this proposition. In my opinion, the finding that each offence lay in the mid-range of objective seriousness was one perfectly open to his Honour. It is true that there was little, if anything, to distinguish the two offences in terms of objective gravity, and that the 4 year starting point of the sentence imposed in respect of the second count does not reflect a finding of mid-range objective gravity. This, it was argued, suggested that his Honour did not, in reality, regard the offences as being in the mid-range of objective gravity. 29In the face of the explicit finding, I am unable to accept this proposition. Just why his Honour decided to impose a sentence that included a non-parole period less than the standard non-parole period (after making due allowance for the plea of guilty) does not emerge with any clarity from the Remarks on Sentence. It is clear that he did appreciate that, by reason of the pleas of guilty, the standard non-parole period did not apply (see R v Way), although it remained relevant as a guide. 30In any event, those findings are not relevant to the manner in which the Form 1 offences were taken into account. 31The sentencing judge took the first Form 1 offence into account as evidence of a degree of planning in relation to the principal offence. That was logical and reasonable and correct. The degree of planning of an offence is a relevant consideration. I accept that the break and entry of the shed was integrally connected to the break and entry of the house, and so connected with that offence in time, as well as geography, that it did not, even in combination with the goods in custody offence, call for an increment to the sentence it actually attracted, ie of 1 year or 25 percent. But I am satisfied, on a fair reading of the Remarks on Sentence, that that is not what happened. I would therefore reject this ground of appeal. Ground 2: accumulation 32As indicated above, there were two aspects of accumulation. The first sentence imposed was accumulated wholly (after backdating) on the sentences imposed in the Local Court for the larceny offences. The second sentence imposed was accumulated on the first by 2 years and 3 months. The effect was that, of a non-parole period of 3 years and 9 months imposed in respect of the first offence, only the last 6 months was concurrent with the second sentence. 33I see no error in the accumulation of the first sentence upon the sentences for the larceny offences. Those offences were unrelated, and committed at an earlier time than the offences the subject of the present sentences. 34However, I have concluded that the degree of accumulation of the second aggravated break, enter and steal sentence on the first was excessive, and erroneously so. That is because the two offences were closely related in time, and were part of a single criminal episode. That does not mean that there should be no accumulation, but recognition should be given to the degree of connection between the two offences. 35I would reduce the degree of accumulation, to a relatively moderate a degree. 36Before proposing the sentences I favour, I mention that some reference was made in the written submissions to the absence of a finding of special circumstances. It can be hardly be thought that any error infected the sentencing process in that respect, given the applicant's intransigent opposition to any period on parole. To reduce the statutory proportion would, in the circumstances, have been absurd. 37That, however, is not the applicant's present position. 38Against the possibility of re-sentencing, the Court accepted an affidavit of the applicant affirmed on 29 November 2011. That affidavit gives some moderate cause for optimism in relation to the applicant's prospects of rehabilitation. He said that he has had work while in prison and now understands that he has to do something about his drug addiction. He said that before his incarceration he was regularly using morphine, heroin and ice. He said he has not used drugs since being taken into custody. He said in about June 2011 - one year after his arrest - he put his name down for rehabilitation programmes but they had not yet been available to him. 39These circumstances, if they are correct, give some cause for optimism. At least, the applicant's former intransigence in respect of rehabilitation can be seen to have moderated. 40There was also some evidence in the form of a letter written by the applicant's stepfather, Wesley French. Mr French wrote of significant disabilities suffered by himself and his partner, the applicant's mother, and of the physical support previously provided by the applicant. While these matters give cause for sympathy, they are not such as can have any real bearing on the sentences to be imposed: see R v Edwards (1996) 90 A Crim R 510. 41I part company with the judgment of Rothman J in three respects. First, although, like his Honour, I would reject Ground 1, it is for different reasons. Second, Rothman J refers to the decision of the High Court in Mill v The Queen [1988] HCA 70; 166 CLR 59. In my opinion, reference to Mill is a distraction. That case has no relevance to the present. It concerned sentencing of an offender, many years after the date of his offences, the offender having served a lengthy period of incarceration in another state. Those circumstances are far from the present case. As I have noted above, the applicant's offences for which he stood to be sentenced were committed within a very short space of time, and in a narrow geographical band. Even when the larceny sentences are factored in, there is nothing in the circumstances that invokes the reasoning in Mill. Woods ADCJ was called upon to sentence the applicant for two discrete offences bearing in mind that, by the time he did so, the applicant was serving a different sentence for different offences. This he did. Mill throws no light on the sentencing procedure in the present case. 42Third, although he has not found error in the sentence imposed in respect of the first offence, Rothman J proposes a reduction in that sentence. I see no basis for taking that course. I have rejected the only basis on which it was proposed that the sentence was excessive. The only error that has been demonstrated is in the accumulation. Intervention by this Court should be confined to correcting that error. 43In sum: (1)The sentence imposed in respect of Count 1 was not manifestly excessive, and, in particular, did not include an unjustified increment to take account of the Form 1 offences. (2)It was reasonable and proper that the sentences be made wholly cumulative upon the sentences for larceny, after making due allowance for time spent in custody referable only to the present offences. (3)The degree of accumulation of the second sentence on the first was manifestly excessive. (4)The sentence imposed in respect of Count 2 was not manifestly excessive, and not otherwise erroneous. 44Accordingly, I propose the following orders: (i) Leave to appeal granted; (ii) Appeal allowed, to the extent only of varying the commencement date of the second sentence, such that that sentence commences on 10 March 2012, and expires on 9 March 2015, with a non-parole period of 1 year and 6 months expiring on 9 September 2013. The sentences would therefore be as follows: Count 1: Imprisonment for 3 years and 9 months, commencing on 10 March 2011 and expiring on 9 December 2014, with a non-parole period of 2 years and 9 months, expiring on 9 December 2013. Count 2: Imprisonment for 3 years, commencing on 10 March 2012 and expiring on 9 March 2015, with a non-parole period of 1 year and 6 months, expiring on 9 September 2013. The aggregate sentence is one of 4 years, commencing on 10 March 2011, with a non-parole period of 2 years and 9 months, expiring on 9 December 2013, on which date the applicant will first be eligible for release on parole. 45BLANCH J: I agree with Rothman J. 46ROTHMAN J: Daniel Flick seeks leave to appeal, and, if leave were granted, to appeal, the sentence imposed on him in the District Court on 17 December 2010. Mr Flick pleaded guilty to two counts of aggravated break, enter and commit serious indictable offence in contravention of s 112(2) of the Crimes Act 1900. The offences were committed between 9 June 2010 and 10 June 2010 and they carry a maximum penalty of 20 years' imprisonment and a standard non-parole period of five years' imprisonment. 47The sentencing judge imposed a sentence for the first count (to which the Form 1 notification of offences relates) of imprisonment of 3 years and 9 months, including a non-parole period (npp) of 2 years and 9 months. For the second count, his Honour imposed a sentence of 3 years' imprisonment, including a non-parole period of 18 months. This sentence was imposed so as to commence 27 months after the commencement of the sentence imposed for the first offence. At the time that the sentence was imposed by the District Court, Mr Flick, was serving a sentence imposed by the Local Court for larceny (shoplifting), apparently committed on 5 December 2009. SENTENCE COMMENCEMENT CONCLUSION NPP CONCLUSION HEAD SENTENCE Shoplifting (Local Court) 15.9.2010 14.6.2011 14.9.2011 Break and enter (Count 1) (including form 1) 10.3.2011 9.12.2013 9.12.2014 Break and enter (Count 2) 10.6.2013 9.12.2014 9.6.2016 Overall (incl. Shoplifting) 15.9.2010 9.12.2014 9.6.2016 Overall (excl.shoplifting) 10.3.2011 9.12.2014 9.6.2016

48The overall sentence (excluding the shoplifting sentence imposed by the Local Court) was for a non-parole period of 3 years and 9 months as part of a head sentence of 5 years and 3 months. If the shoplifting sentence were included, the overall sentence is a non-parole period of 4 years and 3 months (less 5 days) as part of an overall head sentence of 5 years and 9 months (again less 5 days). 49The sentences were imposed by the District Court on 17 December 2010 and the first sentence commenced on 10 March 2011 (almost at the conclusion of the sentence for larceny then being served, the difference being a period to account for previous time spent in custody solely as a result of these offences). 50On 15 September 2010, the same date as the original sentencing for the offence of shoplifting, Mr Flick was convicted of the offence of possession of a prohibited drug committed on 29 May 2012 for which he was given a bond under s 9 of the Act. The sentence for the shoplifting offence, committed it seems on 5 December 2009, which complicated the exercise for the sentencing judge, was originally imposed as a suspended sentence on entering a bond under s 12 of the Act. 51On 15 September 2010, the Local Court found that Mr Flick had breached the bond and imposed a sentence of 12 months' imprisonment with a non-parole period of 9 months. As already stated, Mr Flick was arrested on 10 June 2010 and thus spent from 10 June to 15 September (3 months and 5 days) on remand for these break and enter offences. The 12 months' sentence for shoplifting was to expire on 14 September 2011 and the sentencing judge imposed the aggregate sentence for the two counts of aggravated break, enter and commit serious indictable offence commencing 10 March 2011 (i.e. 3 months and 5 days before the conclusion of the non-parole period for the shoplifting offence). 52Mr Flick raises two grounds of appeal, in the following terms: "Ground One The sentencing judge erred in his approach to effect of [sic] the offences on the form 1 on the sentence imposed on the first offence of aggravated break, enter and commit serious indictable offence Ground Two The sentencing judge erred in the structuring of the sentences for the individual offences in that there was an inappropriate accumulation of the sentences imposed which led to a combined sentence that overstated the total criminality of the offences" 53The foregoing grounds of appeal need explanation. Mr Flick seeks to appeal the severity of the sentence imposed on him as a result of two particular factors, namely, the lack of sufficient concurrency of the two sentences imposed upon him and the failure of the sentencing judge to commence the sentences from a time which would render them more concurrent with the sentence being served for an earlier offence that Mr Flick was required to complete. The other issue, raised by ground one above, is the manner in which the sentencing judge has treated the sentence for count 1, in light of the offences notified on the Form 1. The offences on the Form 1 were one count of break, enter and commit serious indictable offence (on the same date and premises as on count 1) and one count of goods in custody.

54Agreed facts were tendered to the sentencing judge and those facts formed the basis of the sentence that was imposed. His Honour summarised the agreed facts in the following terms: "At 9.30p.m. on Wednesday 9 June the victim, Michael Winter, locked and secured his home at ... Gilgandra Road Dubbo [and left].... During the early hours of 10 June 2010 the offender entered a shed within that property through an unlocked but closed door. The offender rummaged through the contents of the shed and took a set of keys from the shed. The offender then unlocked the wooden door at the rear of the dwelling house... with the keys he took from the closed shed. Knowing that the occupants were inside asleep, he forced his hand through the fly screen door and gained entry to the home. He ransacked the kitchen of the home; he rummaged through the drawers in the kitchen cabinet; and searched through the place. He ransacked the lounge room of the location, opening drawers and stealing pharmaceutical items and jewellery. Mr Winter heard the offender in his home, and saw a light coming from the kitchen. The offender heard Mr Winter stirring and fled the premises. He stole a number of items listed from the premises.... Then at about 6am on 10 June the offender lifted the laundry window off its rails, knowing the occupants were inside asleep and entered the dwelling house at ...Longabardi Street, Dubbo. He rummaged through various rooms within the location including the laundry, lounge room, kitchen and bedroom in which the victim, Leon Burgess, was sleeping. At about 6.30am the victim, Brett Burgess, walked out of his room and into the hallway. He saw the offender standing in the laundry doorway to the hall. [He said:] "Get F; get out!" And the offender ran out of the laundry door. A number of items had been moved and a number of items listed were taken. The victim rang the police and provided a description of the offender. At around 6.45am police officers were standing at the front door of the police station when they heard a request to attend at Longabardi Street and they observed the offender a short distance from the police station wearing clothing that matched the report and the physical appearance. The offender was found in possession of a blue and white Northern Star bicycle belonging to Kareena Vincent. The offender was stopped and searched and eventually questioned and charged."

55Slightly different principles apply to each of the grounds of appeal raised by Mr Flick. The commencement point, however, must be a recognition of the purposes of sentencing, which are described in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Act). 56As has been stated a number of times the purposes of criminal punishment are various and, at least to some degree, the purposes pull in different directions. Those purposes include the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform/rehabilitation. As also stated, those purposes overlap and cannot be considered in isolation when determining an appropriate sentence: Veen v R (No 2) (1988) 164 CLR 465 at 476 (per Mason CJ, Brennan, Dawson and Toohey JJ). 57There is no suggestion, in his application for leave to appeal, that any one of the individual sentences that the sentencing judge imposed, lacked proportionality to the criminal conduct involved, except insofar as the first ground of appeal raises the allegedly impermissible effect of offences notified on a Form 1. 58Further to the foregoing, this Court must bear in mind that it sits on appeal from an exercise of judicial discretion: House v The King (1936) 55 CLR 499. The manner in which such an appeal must be exercised is governed by well-known and established principles. It would not be enough if this Court were to consider that if it were sentencing at first instance it would have taken a different course or imposed a different sentence. There must be some error made by the sentencing judge in exercising the primary judicial discretion. 59In order for this Court to intervene, the sentencing judge must have: acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or to affect the exercise of discretion; mistaken the facts; or not take into account some material consideration. In such circumstances the determination may be reviewed, and generally must be reviewed, and the Court may exercise its own discretion. 60The foregoing error may be identifiable or may be manifest. Manifest error does not arise simply because there is a result, which this Court would not have imposed. It arises when it does not appear how the sentencing judge has reached the result imposed and that result is unreasonable or plainly unjust, giving rise to an inference that there has been a failure to exercise the discretion properly: House v The King at 504 - 505 (per Dixon, Evatt and McTiernan JJ).

61The sentencing judge recited the agreed facts, or summarised them, in the manner reiterated above. He discussed the objective and subjective factors associated with the offences. For obvious reasons associated with timing, he did not take account of the comments of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154. Nevertheless, his Honour did not apply the standard non-parole period and, overall, regarded it only as another factor in the sentencing process. 62Most relevant to the grounds of appeal that have been raised, are the following comments by his Honour: "Whilst I must consider s 5 of the Crimes (Sentencing Procedure) Act a court must not sentence an offender to a term of imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The break and enter of a private home while people are asleep inside can never be an accidental matter. It is a deliberate intrusion and warrants a salutary penalty as a deterrence, both specific to the offender and a general message to the community that at all times a private home should be respected. I consider that with a maximum penalty of 20 years, these two break and enters initially warrant a consideration of a penalty in the area of five years imprisonment. In considering the penalty in the first offence at ... Gilgandra Road, I must also take into account the matters on the form 1 which raise the implications of the plan to get what he could from the property. I would start therefore at five years and allowing for the plea of guilty that reduces to three years and nine months. On the second offence later that night, I would start at four years and this reduces to three years for the plea of guilty. The offender was taken into custody following his arrest on 10 June, however since then he has been dealt with for an earlier offence for which he is now serving a term of imprisonment dating from 15 September this year with a non-parole term expiring on 14 June 2011. So there has been at least three months and five days remand custody for these offences. I must also consider the totality of the sentences along with the accumulation on the sentence that he is already serving. Whilst he has indicated a casual consideration for any parole period, to allow him to consider the implications of so offending I should give an appropriate period on parole at the end of the terms in custody to hope that eventually he may consider his position in society and the need to become a law abiding citizen." 63His Honour has expressly dealt with the Form 1 offences and indicated precisely the effect that those offences had on the sentence to be imposed. The sentence imposed related to the sentence before the Court and his Honour dealt with the notified offences in a manner seemingly consistent (at least expressly) with the principles to which I have referred. 64Further, his Honour expressly dealt with the need for totality, and the separateness of the criminal conduct, albeit in circumstances where similar offences were committed over a very short period of time. His Honour also expressly dealt with the relationship between the sentences that he was imposing and the sentence that Mr Flick was already serving as a result of earlier criminal conduct.

65The first ground of appeal refers to the treatment by the sentencing judge of offences to which reference has been made on a Form 1. The principles to be applied in an exercise of discretion of that kind were clarified by this Court in Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518. In the foregoing, Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) said: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. ... The important point is that the focus throughout must be on sentencing for the primary offence. The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences." (See [42]-[44]) 66The effect of the offences notified on the Form 1 is ultimately a matter for the discretion of the sentencing judge and the offences notified are one more factor to be taken into account in determining an appropriate sentence. The foregoing statement of principle, however, makes clear that the task is one in which the sentencing judge imposes a sentence for the primary offence and the other notified offences may be matters that affect relevant aspects of that sentencing task. There is no basis for the suggestion that, in this matter, the sentencing judge was not aware of the foregoing principles or that the sentencing judge did not apply them. 67The foregoing extract of the Remarks on Sentence discloses precisely the manner in which his Honour approached the task of taking into account the further notified offences. His Honour expressed the view that the further notified offences highlighted the aggravating aspect associated with the degree of planning that was part of the charged offence and the premeditation in the offending conduct. In that regard he was correct. 68Further, the notified offences show the need for condign punishment that may amount to a longer sentence than might otherwise be imposed. Judicial officers may differ as to the additional length of the sentence required to reflect the notified offences, but nothing said by his Honour discloses a misunderstanding or misapplication of principle or an error of the kind that would permit the Court to intervene. Nor does the resulting sentence for each offence manifest a misunderstanding or misapplication of the principles or any other relevant error.

69As earlier stated, there are two aspects to this ground: the relationship between each of the two sentences imposed; and the relationship between the two sentences imposed and the then current sentence (hereinafter "the previous sentence") being served for shoplifting. Again, as can be discerned from the extract of the Remarks on Sentence, his Honour expressly referred to the previous sentence and took it into account. 70His Honour also expressly referred to the necessity to consider the totality of the sentence to be served arising from each of the three sentences before the court below (the two for which the judge was to sentence and the previous sentence). 71The second ground of appeal essentially raises issues associated with totality. On one view, at least, this may be a different way of arguing the same issue raised by the first ground of appeal. However, this second ground has a particular aspect, which is unusual. Mr Flick submits that the sentences imposed disclose error, not only because of insufficient concurrency in the two sentences, but also because they have been imposed consecutively to another sentence that was being served at the time that these impugned sentences were imposed. 72The charging of two offences that involve common elements requires a court to ensure that there is no double punishment for the one offending course of conduct: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]. In identifying whether a single act was an element of each offence charged, a court should approach the matter as a matter of common sense and not as a matter of semantics: Pearce at [42]. 73When sentencing an offender for more than one offence, a sentencing judge must fix an appropriate sentence for each offence and only then consider questions of cumulation or concurrence and questions of totality: Pearce at [45]; even in circumstances where there is delay and different jurisdictions or judges are imposing the sentence: Mill v The Queen (1988) 166 CLR 59. 74There is no single correct answer to the foregoing exercise of discretion and it cannot be conducted arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The principle of totality, which underpins the two grounds of appeal raised, requires that each individual sentence reflect the criminality of that offence and the overall sentence imposed reflects the total criminality of the crimes committed: Pearce. 75The proper approach in sentencing an offender who is already serving a sentence for a like offence is for the sentencing judge to impose a sentence which would be the likely sentence to have been imposed if the offender had committed all of the offences in one jurisdiction and had been sentenced at one time. Assuming, as I do, that the larceny offence is a like offence, or that the same approach should be taken to it, the total sentence imposed for one count of shoplifting, and two counts of aggravated break, enter and commit serious indictable offence (one of which counts was to be imposed taking into account two further offences on a Form 1 of break, enter and commit serious indictable offence and goods in custody) was in aggregate a period of 5 years 9 months (less 5 days), including a potential parole period of 18 months. 76Again, when one examines the relationship between each sentence imposed, the sentencing judge has disclosed no identifiable error in his approach to the exercise and to the application of the principles. Further, there is no manifest error of the kind that would allow this Court to interfere with the discretion exercised below in relation to each sentence. 77The two offences for which the applicant was sentenced occurred, as has already been stated, over a very short period of time, with both being committed in the early morning of 10 June 2012. Each of the Form 1 offences relate to the circumstances of the offences in count 1 and count 2. The first was the break and enter into the shed and the second was the possession of the goods stolen in one or other of the charged break and enter offences. 78As such the two offences charged, and the two Form 1 offences, seem to arise from one course of conduct: a break and enter spree for which some greater allowance in concurrency may have been warranted. A further 27 months for one offence arising out of the one course of conduct seems to pay insufficient attention to the principles of totality. Yet the combined sentencing for the offences is not so severe as to indicate, of itself, manifest error. And the sentencing judge's remarks do not disclose identifiable error. 79However, when one considers the effect of the sentences imposed being served consecutively with the previous sentence, the problem becomes more pronounced. If, as is required, the sentencing court were considering the totality of all three sentences (two for the instant offences together with the previous sentence), an overall sentence that effectively required 5 years and 9 months imprisonment for these offences discloses error in application of the principle of totality, and manifest excess in the overall sentence imposed for these offences. I consider this ground should succeed.

80Sentencing, particularly at first instance, can be a difficult task, for which many matters are relevant and impression plays a significant role. Absent error of the kind to which the High Court referred in House v The King, and recently emphasised in Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520, Muldrock, and Green v The Queen; Quinn v The Queen [2011] HCA 49, intermediate courts of appeal ought not interfere with the exercise of the discretion conferred. 81An outcome that discloses error in the application of the principle of totality is error of that kind. By definition, manifest error of that kind satisfies the provisions of s 6(3) of the Criminal Appeal Act 1912 and warrants intervention. 82It is necessary for the Court to consider the sentence to be imposed. I would respectfully adopt the matters, objective and subjective, to which the learned sentencing judge referred with the following qualifications. I allow the same discount for the plea and allow the time served solely for these offences on remand. However, I round the sentences imposed. 83In the proceedings before the sentencing judge, the applicant displayed a somewhat cavalier attitude to rehabilitation to which his Honour referred. That attitude seems to have changed significantly and the applicant now professes (and displays) an improved attitude to his offending and, probably more importantly from a long-term rehabilitation viewpoint, to his drug issues. The better prospects for rehabilitation and the need for longer supervision in the community in relation to his drug dependence allows for a finding of special circumstances and a longer period of parole should be implemented. 84Further, as is clear from these reasons in relation to Ground 2 of the appeal, I would structure the sentences to allow for less cumulation and a greater degree of concurrency with the previous sentence for larceny (shoplifting) in accordance with the principle described by the High Court in Pearce above. 85Moreover, as I am now re-sentencing and not examining whether error is disclosed, I would not impose a sentence for the first offence that was as different from the second offence as that imposed by his Honour. In other words, while I do not consider the sentencing judge was in error in the way in which he took into account the Form 1 offences, given their connection with the charged offences, I do not give the Form 1 offences as much significance as did the sentencing judge. I adjust the non-parole period in count 2 to take account of the effect of the accumulation of the sentences and to give effect to the special circumstances I now otherwise determine. 86Taking all of those matters in to account, both objective and subjective, the maximum sentence, standard non-parole period and the plea of guilty, and bearing in mind the sentence for the shoplifting offence imposed by the Local Court, I propose the following orders: (1) Leave to appeal granted; (2) Appeal allowed; (3) The sentence imposed on the applicant by Woods ADCJ on 17 December 2010 be quashed and in lieu thereof the applicant be sentenced as follows: (i) On the first count of aggravated break, enter and commit serious indictable offence committed on 9 or 10 June 2010, and taking account of the offences disclosed on the Form 1, the applicant be sentenced to a non-parole period of 2 years' imprisonment commencing 15 December 2010 and concluding 14 December 2012 with a remainder of term of a further 15 months concluding 14 March 2014; (ii) On the second count of aggravated break, enter and commit serious indictable offence committed on 10 June 2010, the applicant be sentenced to a non-parole period of 12 months commencing 15 March 2012 and concluding 14 March 2013, and a remainder of term of a further 2 years concluding 14 March 2015; (iii) The overall sentence imposed for the two offences charged is a total sentence of 4 years and 3 months' imprisonment, commencing 15 December 2010 and concluding 14 March 2015, including a non-parole period of 2 years and 3 months concluding 14 March 2013. The applicant is first eligible for parole commencing on 14 March 2013.

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FLICK v R

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