Gal v R

Background

1. On 6 August 2014 the applicant was sentenced in the District Court on two charges. The first was that he did on 16 December 2012 break, enter and steal from a home in Chalmers Street, Port Macquarie, contrary to s 112(1) of the Crimes Act 1900 ("count 1"). The second was that on the same date he did break, enter and steal from residential premises in Flynn Street, Port Macquarie in circumstances of aggravation contrary to s 112(2) of the Crimes Act 1900 ("count 2"). The circumstance of aggravation was that he knew that there was a person or persons in the place where the offence was committed (Crimes Act, s 105A). The maximum penalty for count 1 was fourteen years imprisonment. The maximum penalty for count 2 was twenty years imprisonment. Count 2 carried a standard non-parole period of five years.
2. In respect of count 1, the applicant was sentenced to a fixed term of imprisonment of eighteen months commencing on 24 October 2013 and expiring on 23 April 2015. In respect of count 2, the applicant was sentenced to a total term of imprisonment of five years commencing on 24 April 2014 with a non-parole period of two and a half years commencing on that date and expiring on 23 October 2016. In the end result, the applicant was sentenced to a total term of imprisonment of five years and six months commencing 24 October 2013 and expiring on 23 April 2019, and a non-parole period of three years expiring on 23 October 2016.

The offences

1. There was placed before the sentencing judge an agreed statement of facts. In summary they revealed that on or around 5:10am on 16 December 2012 a female adult resident of the home in Chalmers Street, Port Macquarie, went to bed. Her car was parked in the driveway. Her children were sleeping in the lounge room and bedrooms. She awoke at 8:00am on the same day. She saw an open empty suitcase. Before she fell asleep it had been full of Christmas presents hidden from her children. She also realised that a number of other items had been stolen from her home, including some valuable jewellery. Her door had been closed but unlocked while she had been asleep. The conduct of the applicant in entering her home and stealing these items was count 1 on the indictment.
2. At around 5:30am on the same day a seventeen year old boy who resided with his family in the residence in Flynn Street was woken by some movement near his bed. As he opened his eyes he saw the applicant crouched down next to his bed. The applicant was rifling through some nearby drawers. The resident said something to the applicant. The applicant left the bedroom and shortly afterwards left those premises. On his way out the applicant stole a $50 note, rummaged through a wallet and inspected a laptop computer. The conduct of the applicant in entering the home and stealing was count 2 on the indictment.
3. The applicant then went to the back door of a neighbouring unit, woke the neighbour up and asked her to call '000' stating "I'm having an epileptic fit". The neighbour dismissed him as drunk and affected by alcohol. One of the adult residents of Flynn Street then confronted the applicant. They also observed the applicant to be affected by alcohol and drugs. They asked for the return of the cigarettes and the $50 note. Eventually the applicant handed the $50 to him, stating "I'll go" and "[j]ust don't call the police". The police arrived at the scene at about 5:55am. They located the applicant and placed him under arrest. The applicant told the police that, in relation to the Flynn Street property, "I didn't break in. He owed me money".
4. While in custody at the police station the applicant was searched. This revealed a number of small items of jewellery stolen from the Chalmers Street residence. The applicant claimed he "got those for my girlfriend's Christmas presents". The police were then made aware of the break and enter at the Chalmers Street premises. They returned to the applicant's home with a search warrant. The search revealed a significant number of items stolen from the Chalmers Street premises, including eight wrapped Christmas presents, a pair of sunglasses, a mobile phone, a phone charger, three cameras, a pair of diamond stud earrings, a set of gold earrings, a pre-paid travel card, a phone, a phone charger, various gold and silver studs, a pandora bracelet, and a young child's fairy earrings.

The proceedings on sentence

1. Seven matters should be noted about the course of the sentencing proceedings.
2. First, the applicant entered a plea of guilty to count 2 while it was still before the Local Court, and maintained that plea after he was committed for sentence. The applicant only entered a plea to count 1 when the matter was listed for trial in the District Court.
3. Second, there was placed before the sentencing judge the applicant's criminal history both in New South Wales and in Queensland. The applicant was born in October 1982 and was thirty-one years old when he was sentenced. He accumulated convictions as a juvenile in New South Wales and Queensland for break and enter, assault and attempted fraud. Between 2002 and 2011 he was convicted of a number of drug related property and breaking and entering charges in Queensland. He received the full range of sentencing outcomes, including bonds, suspended sentences as well as custodial sentences.
4. Sometime around 2012 the applicant returned to New South Wales. His record revealed that in October 2012 he received an eighteen month bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") in the Dubbo Local Court in respect of an outstanding charge from November 2003 of entering a building with the intent to commit an indictable offence. He was still subject to this bond when he committed count 1 and count 2. This was not drawn to the sentencing judge's attention.
5. In June 2013 the applicant was sentenced to imprisonment for six months in respect of a charge of larceny said to have been committed in November 2003. On the same date he received a term of imprisonment in respect of stealing offences committed in March 2013.
6. Third, a pre-sentence report was tendered. The report stated that he had ceased education in Year 8 and commenced a traineeship as a cabinet maker. The applicant stated that he completed eighteen months of the traineeship. The report recounted the applicant stating that he had been in receipt of a disability support pension "for the past nine years" following a motor vehicle accident, but that he was now physically fit to participate in work. The report recounted the applicant as having a sustained history of substance abuse.
7. Fourth, a psychologist's report was tendered. The psychologist described the applicant's personal background consistent with what has already been stated. The psychologist estimated that he had an intellectual capacity in the low average range, but considered that he would be able to meet the requirements of a range of TAFE training courses. The psychologist recommended an ongoing drug treatment plan for him on his release, and expressed the view that he was capable of "intellectually and physically responding to the outlined treatment plan".
8. Fifth, the applicant wrote a letter to the sentencing judge stating how "deeply sorry" he was for the victims of the offences. He stated he was "highly intoxicated on Xanax" on the night of the offences and that his time in custody had made him realise he needed to pursue rehabilitation.
9. Sixth, the applicant gave evidence before the sentencing judge. He stated he had no recollection of committing any of the offences because he was affected by drugs. He said at the time of the offences he was in a relationship with a woman who was also abusing drugs. He said that he had since formed a new relationship and his new partner did not have a problem with drugs and had given up alcohol. He explained that she was on a methadone programme and she had "been stable for three years". He said that his partner had recently given birth to their child. He said he "had enough of gaol. I want to get my life together and start a family". He said that since being in gaol he had taken steps to address his drug issues including attending Narcotics Anonymous.
10. Seventh, during the course of the sentence hearing the sentencing judge made various comments that reflected upon the seriousness of the applicant's conduct. His Honour noted that the factors in "Ponfield apply to these cases" (i.e. Re Attorney General's Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327; "Ponfield"), a matter I will return to. His Honour noted that with count 2 it "must [have] been very scary for [the] people" in the residence. In discussing the fact that one of the offences was aggravated by his knowledge that persons were in the residence his Honour referred to it as "in the middle of the aggravating factors". At one point the Crown Prosecutor referred to "an offence that is objectively serious". His Honour did not state anything in relation to that assessment.

The sentencing judgment

1. The sentencing Judge delivered ex tempore reasons in support of the sentences imposed upon the applicant. His Honour's reasons were brief. The following matters should be noted about the judgment.
2. First, on account of the late entry of a plea to count 1, his Honour stated that he would allow a 15% discount for the utilitarian value of the plea. In relation to count 2, his Honour allowed a 25% discount. No complaint was made about this by the applicant in his grounds of appeal, nor was it suggested that if this Court came to resentence the applicant it should act on any different basis.
3. Second, his Honour noted the nature of the charges, correctly stated the maximum penalties, and noted that count 2 carried a standard non-parole period. His Honour described the significance of the non-parole period in terms consistent with Muldrock v R [2011] HCA 39; 244 CLR 120 ("Muldrock").
4. Third, his Honour calculated the period that the applicant was detained in custody prior to sentence that was solely referable to these charges as nine months and thirteen days. Based on this his Honour fixed the commencement date for the sentences as 24 October 2013.
5. Fourth, the sentencing judge identified the "underlying pathology" behind the crimes as being the applicant's drug addiction. His Honour noted that the applicant had clean urine analysis tests undertaken in custody. In a finding that can only be described as very favourable to the applicant his Honour found that he "represent[ed] fairly good prospects of rehabilitation.
6. Fifth, his Honour described the applicant's subjective circumstances in terms consistent with the pre-sentence report and psychologist's report. His Honour noted that the applicant had been sexually abused in his youth.
7. Sixth, the sentencing judge did not outline any of the facts or circumstances surrounding the subject offences, nor describe their relative seriousness. The only statement that his Honour made that was arguably relevant to that topic was as follows: "There does not appear to be any feature of either crimes which aggravate the offences which is not either an element of the crimes themselves or inherent in those elements."
8. Seventh, the sentencing judge found that there were special circumstances. Although the basis for finding special circumstances was not stated, it appears to be a combination of his past drug addiction and his Honour's finding as to his prospects of rehabilitation.

Grounds 1 and 2: Failure to assess and explain objective seriousness

1. Ground 1 of the application contends that the sentencing judge failed to assess the objective seriousness of the offences. Ground 2 contends that the sentencing judge failed to give reasons for his Honour's assessment of the objective seriousness of the offences. The parties addressed both grounds together and I will do likewise.
2. Counsel for the Applicant, Mr Brady, submitted that the sentencing judge erred in failing to undertake an assessment of the objective seriousness of each of the offences or, in the alternative, failing to set out the reasons for that assessment. He contended that, while it can be accepted that there is no necessity to express a finding of objective seriousness by reference to a range of offending (see Muldrock), an assessment of the gravity of the offence was nevertheless critical to the sentencing process and it was either not undertaken or not explained in his Honour's sentencing judgment. The Crown accepted the existence of the obligation on the sentencing judge to assess the objective seriousness of the offences, but pointed to the observations of his Honour on that topic during the sentencing hearing which it said "were immediately before" his Honour's reasons were delivered. Based on those observations the Crown contended that his Honour "did clearly take the objective seriousness into account in determining the sentence".
3. In R v Campbell [2014] NSWCCA 102 at [27] Simpson J (with whom Hall J agreed) stated: "In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA."
4. In stating this principle Simpson J expressed disagreement with Harrison J in Campbell who stated that he was doubtful "about the utility for appellate purposes of the minute dissection of the extent to which a sentencing judge may or may not have referred in terms or by implication to the objective seriousness of particular criminal conduct" (at [86]). The differences between their Honours concerned the extent of the obligation on a sentencing judge to undertake and record their assessment of the seriousness of criminal conduct and an offender's culpability. I do not understand Harrison J to have disputed the existence of such an obligation.
5. In considering this obligation two matters warranting restraint by an appellate court should be noted. The first is that error will not be demonstrated by a failure of the sentencing judge to include some specific formula of words reflecting their assessment. In Delaney v R; R v Delaney [2013] NSWCCA 150 at [56] Hoeben CJ at CL (with whom Harrison J and I agreed) stated: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
6. However this is not a case of that kind. Not only did the sentencing judge not make any comment about the objective seriousness of the offence beyond that stated in [27], his Honour did not describe the facts of the offence at all. There is nothing in the sentencing judgment that reveals what the sentencing judge considered those facts represented in terms of the seriousness of the offence. A conclusion that no aggravating or mitigating factors were demonstrated by itself says little, if anything, about the relative seriousness of the offences. Even if one was cognisant of the facts of these offences there was room for disagreement about how serious the offences were. The first count involved the theft of a substantial amount of property, including children's Christmas presents. The second count involved the disturbance of a number of people in a family home. The applicant's conduct appears to be anything but premeditated. What did the sentencing judge make of those matters, if anything? As I will explain the guideline judgment in Ponfield identified a number of factors applicable to an assessment of the appropriate sentence but not all of them were applicable. Which factors, if any, did his Honour consider applicable to the two counts? In the end result it may be that his Honour considered that the applicant's conduct was neither particularly serious nor a trivial example of each offence. If so his Honour should have stated that. If his Honour did not address the issue then he should have. Either way error is established.
7. Second, a degree of latitude is to be afforded in the scrutiny of sentencing judgments delivered ex tempore immediately after the conclusion of submissions (see Cullen v R [2014] NSWCCA 162 at [38] per Adamson J). In Opacic v R [2013] NSWCCA 294 at [46] R A Hulme J (with whom Macfarlan JA and Latham J agreed) stated: "In the assessment of the adequacy of his Honour's reasons it must be borne in mind that his Honour proceeded immediately to deliver judgment upon the conclusion of submissions. In those circumstances it would be both unrealistic and impractical to expect a judge to slavishly repeat every conclusion he or she had reached and announced only minutes before."
8. Similarly in R v AB [2015] NSWCCA 57 at [49] Simpson J stated: "Senior counsel who appeared for the respondent, both at first instance and on appeal, referred to further observations made by the judge during the hearing as to the limiting term to be nominated. Although those observations did not find their way into the reasons formally given, it is clear that his Honour did appreciate the objective gravity of the offence."
9. As noted the Crown referred to various comments made by the sentencing judge during the course of the sentence proceeding from which it might be discerned what his Honour's assessment of the objective seriousness of the offences might have been, including the reference to the "middle of the range of aggravating factors". However the difficulty is that the complete absence of any discussion in the sentencing judgment on this topic coupled with the imprecision of the observations made during the sentencing hearing mean that, even if recourse could be had to those comments, there was an insufficient statement of the basis upon which the applicant was sentenced (cf Opacic). This is illustrated by the above passage from AB. In that passage Simpson J was only referring to the comments during the hearing as observations "further" to those made in a sentencing judgment and which were supportive of it.
10. The position relevant to this case was correctly stated by Bellew J in Cowan v R [2015] NSWCCA 118 at [60] namely: "In my view, the sentencing remarks do not reflect his Honour having made any assessment of the objective seriousness of the offending. Such assessment is an important part of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27] per Simpson J. The importance of that assessment is such that its absence in the present case cannot be explained by the fact that the remarks were delivered ex tempore."
11. Ultimately any practice of having recourse to the transcript of sentence hearings as an adjunct to the reasons for sentence has significant limitations. Sentencing judges are not bound by the observations made during the course of sentencing hearings. Sentencing judgments speak to a wider audience than simply the parties and even this Court, none of whom can be expected to consult the transcript. Nothing in this judgment is meant to suggest that a sentencing judgment must dwell upon either the facts of an offence or their objective seriousness at any length. Instead, at a minimum such reasons should state or refer to the essential facts upon which an offender is sentenced and provide at least some assessment of, or reflection upon, the seriousness of the offending conduct.
12. I uphold grounds 1 and 2.

Resentencing and whether no lesser sentence is warranted

1. Having found error the function of this Court was described in Kentwell at [43] as follows: "After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing …, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal …" Thus the Court must embark upon an "independent exercise" of the discretion. Two questions arise about that process.
2. First, it is not clear whether the "independent exercise of the discretion" referred to in Kentwell necessarily requires, or at least is capable of encompassing, a re-agitation of findings of primary fact made by a sentencing judge that were derived at least in part from the benefit that he or she had in observing a witness give evidence. In this case the Crown challenged the sentencing judge's finding that the applicant "represent[ed] fairly good prospects of rehabilitation". In light of the applicant's record, especially his commission of the offences while on a bond under s 9 of the Sentencing Act, that finding appears dubious. However the applicant gave evidence before the sentencing judge. Thus his Honour enjoyed an advantage in assessing the genuineness of his stated intention to reform that this Court did not. In the absence of detailed argument concerning the scope of this Court's power to re-agitate findings of fact of this kind, I propose to reconsider the exercise of the sentencing discretion on the same basis as his Honour.
3. Second, it is also not clear whether if error is found and this Court considers that a greater sentence is warranted it should specify what the sentence would have been even though it dismisses the application. In O'Grady v R [2015] NSWCCA 168 an error in the sentencing process was identified. Rothman J proceeded to specify the sentences that would have been imposed which were in excess of the sentence appealed from (at [45] to [46]) but added that he did not intend "to suggest the Court needs, in all cases, or at all, to specify the sentence it would have imposed, before coming to the conclusion that no lesser sentence is warranted". Similarly Bathurst CJ stated (at [3]): "I also agree with Rothman J that where, as in this case, the Court is of the view, on the re-exercise of the sentencing discretion, that a greater sentence than the one imposed by the sentencing judge is warranted, it is not always necessary to specify the actual sentence which the Court believes is warranted. My present view is that it would generally be sufficient that the judgment demonstrates that the re-sentencing exercise has in fact been carried out and provides reasons as to why the Court was of the view that a greater sentence was warranted in law. However, it is not necessary to come to a final conclusion on this matter."
4. I respectfully agree with this approach. The specification of the sentence that would have been imposed has the potential to leave a provisional quality attaching to the sentence appealed from even though, following the dismissal of an application for leave to appeal, considerations of finality dictate that it be taken as representing the definitive sentence. In a practical sense such an approach could be unfair to an applicant in that suggesting they deserved more, and specifically how much more, may affect decisions such as whether to release them on parole or their classification within the prison system.
5. Otherwise it follows from [22] that in undertaking a fresh exercise of the sentencing discretion I will accept the sentencing judge's assessment of the applicant's prospects of rehabilitation and determination of the appropriate discount to be proffered on account of his pleas of guilty. Further, contrary to the sentencing judge's approach, I will proceed on the basis that his commission of the offences while on a bond under s 9 of the Sentencing Act constitutes a circumstance of aggravation (Sentencing Act; s 21A(2)(j)). Denunciation of the applicant's conduct is a significant aspect of any sentence that should be imposed. Against that, implicit in the sentencing judge's acceptance of the applicant's evidence is an acceptance that the remorse expressed in his letter referred to in [18] was genuine. I will consider the matter on that basis
6. I have summarised the facts of the offences above. There remains to be considered the objective seriousness of the offence. In Ponfield at [48] Grove J (with whom Spigelman CJ and Sully J agreed) specified a guideline applicable to offences under s 112(1) as follows: ""A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is a cumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s105A(1)(a))."
7. In relation to count 1, factors (i), (iii), (vi) (viii) and (ix) are applicable. In particular the items stolen clearly had sentimental value. There is an obvious degree of callousness involved in stealing wrapped Christmas presents and children's jewellery. In breaking into residential premises at around 6:00am there was a strong likelihood that the family living there would be home. In my view count 1 was a reasonably serious example of an offence under s 112(1). In relation to count 2, factor (ix) is not applicable at this point as it is an element of the offence, but factors (i), (iii) and (vi) are present. I consider count 2 to be an example of an offence under s 112(2) that is below the middle range of objective seriousness for offences of that kind.
8. Bearing in mind the relative seriousness of count 1 and the other factors relevant to sentencing noted above, I would have imposed a sentence that exceeded that imposed by the sentencing judge for that offence. In relation to count 2 and given the guidance offered by the standard non-parole period I would have imposed the same sentence imposed by the sentencing judge. It follows from the above passage in Kentwell that, in those circumstances, the Court is not required to resentence the applicant.
9. Accordingly I propose the following orders: 1. Leave to appeal be granted; 2. The Appeal be dismissed.

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: 09 September 2015