GARLAND v REGINA

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 CASES CITED : R v Ah-See [2004] NSWCCA 202 Van Cuong Nyuyen v R [2008] NSWCCA 322 Yi Hong Puan v R [2000] NSWCCA 194

PARTIES: Wayne GARLAND (Applicant) REGINA (Respondent)

COUNSEL: In Person (Applicant) Ms N Norman (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

• 12 - IN THE COURT OF CRIMINAL APPEAL 2008/13844

McCLELLAN CJ at CL HOWIE J McCALLUM J

31 AUGUST 2009 Wayne GARLAND v R Judgment 1 McCLELLAN CJ at CL: I agree with McCallum J. 2 HOWIE J: I have had the benefit of reading the judgment of McCallum J in draft. I agree with the orders she proposes. The sentences in my opinion were so inadequate and the sentencing remarks so obviously infested with error that it is highly likely that, if the Crown had appealed, the sentences would have been significantly increased. 3 The matters were clearly inappropriate for sentencing before the Local Court having regard to their seriousness, the applicant's criminal record and the fact that he was on parole when he committed all the offences and on bail when he committed most of them. Therefore, the maximum sentences that would have applied had the matters been dealt with in the Local Court and the statistics for sentences imposed in that jurisdiction were totally irrelevant. Yet these were matters that weighed heavily upon the sentencing judge in determining the sentences he imposed. The "extra curial punishment" was so minor and the offences committed by the applicant so serious that it should have been given no weight at all. In my opinion the applicant should consider himself very fortunate indeed that he received such undeserved leniency. 4 McCALLUM J: Wayne Garland seeks leave to appeal against the sentences imposed upon him in the District Court on 6 November 2008. 5 The offences for which he was sentenced that day were two charges of larceny contrary to s117 of the Crimes Act 1900, which carries a maximum penalty of 5 years imprisonment, two charges of intentionally or recklessly destroying or damaging property contrary to s 195(1)(a) of the Act, which carries a maximum penalty of 5 years imprisonment and two charges of possessing safebreaking implements contrary to s 114(1)(b) of the Act, which carries a maximum penalty of 7 years imprisonment. Eight further offences on two Form 1 documents were taken into account in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999. 6 The applicant pleaded guilty to all charges in the Local Court. The prosecutor elected to have the offences dealt with on indictment, apparently on the basis that the applicant had a lengthy record of prior convictions and had committed the offences whilst he was on parole. He was accordingly committed to the District Court for sentence. 7 The applicant had been released to parole on 25 February 2008 in respect of sentences imposed on him in 2004 for two charges of armed robbery. On 1 April 2008 he committed the offences which formed the basis of the first Form 1. He was arrested on that occasion after being seen looking inside a number of cars. He was charged with larceny of a car radio, "goods in custody" ($9.20 in cash) and possession of implements to drive a conveyance. 8 The applicant was subsequently released on bail for those offences. However, on 23 April 2008, his parole was revoked in respect of the sentences for the two armed robbery offences and a warrant was issued for his arrest. 9 All of the other offences dealt with by the sentencing Judge involved raids on ticket-vending machines at various railway stations. The first series of charges related to offences committed at Schofields Railway Station on 6 May 2008. The applicant and another male entered the station in the early hours of the morning wearing balaclavas and gloves. They broke into the ticket machine using crowbars, a screwdriver and a sledgehammer. They removed two cash boxes containing a total of $1,146. The damage to the ticket machine was estimated to be $11,221. 10 The Judge noted that the pleas of guilty were entered at an early opportunity and reduced the sentences by 25% on that account. The applicant was sentenced as follows:

(a) for the offence of larceny, a fixed term of 15 months imprisonment;

(b) for the offence of intentionally or recklessly destroying or damaging property, a fixed term of 9 months imprisonment;

(c) for the offence of possessing safebreaking implements, a fixed term of 12 months imprisonment. 11 Each sentence was fixed to commence on 29 August 2008, which was the date on which the applicant had been committed for sentence in the Local Court. 12 The second series of charges related to a similar incident involving a ticket machine at Windsor Railway Station. At about 2.00am on 19 May 2008 police patrolling the Windsor area were notified of the offences as they were in progress. They went to the station where they found the applicant and another male near the ticket machine. The machine was open and the cash box had been removed and placed on the station platform. The cash box contained $6,281. The applicant had a sports bag containing a large sledgehammer, two crowbars, hammers, screwdrivers and assorted tools. The damage caused to the ticket machine at Windsor was estimated to be in the sum of $3,186. 13 In respect of those offences the sentences imposed were:

(a) for the offence of larceny, a term of imprisonment with a non-parole period of 9 months commencing on 1 March 2009 and a balance of term of 9 months;

(b) for the offence of intentionally or recklessly destroying or damaging property, a fixed term of 6 months imprisonment commencing on 1 March 2009;

(c) for the offence of possessing safebreaking implements, taking into account the offences on the two Form 1 documents, a term of imprisonment with a non-parole period of 12 months commencing on 1 March 2009 and a balance of term of 12 months. 14 The offences taken into account on the second Form 1 were charges arising from similar raids on ticket machines at Marayong Railway Station on 1 May 2008 and at Rooty Hill Railway Station on 12 May 2008. No cash was stolen from Marayong but there was damage to the ticket machine estimated to be in the sum of $7,345. At Rooty Hill, the offenders removed a cash box containing $2,040. The damage caused to the machine there was estimated to be in the sum of $11,573. 15 The total effective sentence before the applicant is eligible for release to parole is a period of 18 months expiring on 28 February 2010 with a balance of term of 12 months expiring on 28 February 2011. 16 The applicant was represented by a solicitor at the sentence hearing. The solicitor called the applicant to give evidence. He also tendered a report from a psychologist, Kathryn Wakely and a two-page letter written by the applicant to the Court explaining how he came to commit the offences. 17 The psychologist's report recited the applicant's history of using alcohol and cannabis from the age of 13. The offender told her that, from the age of 10, he had lived on his own in a granny flat at the back of his parents home because the house was too small to accommodate them. He reported that he used to sneak out and associate with older teenagers who introduced him to illegal drugs. He first tried heroin at the age of 16 and described that as his problem drug. The psychologist's findings relate principally to the applicant's history of drug abuse. Her examination of the applicant produced the unsurprising conclusion that he probably has a substance dependence disorder. She did not identify the existence of any mental illness such as to reduce the applicant's culpability for the offences. 18 Before closing the case for the applicant on sentence, the solicitor indicated that he wished to make a submission to the Court in relation to "extra curial punishment" and stated that there was CCTV footage available to show what had happened. He invited the Crown to make a concession in relation to those events to avoid the technical difficulties of playing the CD ROM in Court. The Crown in due course conceded that the footage shows a police officer placing his foot on the applicant's head whilst the applicant was lying on the ground with his arms outstretched and his head to one side. The Crown indicated that the police officer did that on two occasions briefly. She also conceded that those events occurred in the context of the arrest for the offences at Windsor on 19 May 2008. 19 In the face of those concessions, the solicitor representing the applicant expressed the view that it was not necessary to play the CCTV footage and the sentencing Judge agreed. 20 In his remarks on sentence, the Judge found, contrary to the submission of the Crown, that the acts of the police officer did constitute extra curial punishment for which some allowance must be made in sentencing. His Honour noted that the applicant had sustained a split to the eyebrow and a graze above his left eye as a result of those acts. His Honour stated, however, that the weight to be given to that consideration in the present case was "somewhat minimal", there being a need for the Court "to place such extra curial punishment in proper and balanced perspective".

Ground 1 - incompetent legal representation 21 The first ground of appeal is that the applicant was not represented properly at the sentence hearing. The broad complaint under that ground is that the solicitor did not say or do some of the things asked of him by the applicant. The applicant was not legally represented in the proceedings before this Court. He provided written submissions in support of his grounds of appeal, which he supplemented with further written submissions at the hearing. 22 In his written submissions, the applicant states by way of example that the solicitor did not argue for the sentence to commence in May 2008, when the applicant first pleaded guilty at Windsor Local Court. In fact, the solicitor did make that submission (at T21). In particular, the solicitor submitted that, considering all the evidence before the Court, the Judge could seriously consider backdating the sentence to the date of arrest in May 2008, notwithstanding the fact that the applicant was serving the balance of his sentence for the offences of armed robbery from that date. 23 A second complaint in respect of the competence of the solicitor relates to the Crown's written submissions. The applicant complains that, when the submissions were handed up, his solicitor said "I haven't read them your Honour but I've got no objection". In fact, that is what the solicitor said when the submissions were provided to the Court informally before the lunch adjournment. After the adjournment (at T22) the solicitor said "I've read the learned Crown's submissions, I'm not going to go through them point by point". Accordingly, to the extent that the complaint is that the solicitor did not consider the content of the submissions, it is without substance.

24 Separately, the applicant complains that he was not shown the submissions and "never heard them". The transcript of the proceedings on sentence discloses that, when the submissions were first handed up, the applicant was not in Court. No criticism should be directed at any person on that account. The applicant was to be called for sentence at 2.00pm. Before the break at 1.00pm, the Crown Prosecutor provided her written submissions to the Judge and the solicitor representing the applicant to enable them to consider that material before the hearing commenced. That was entirely appropriate. 25 After the lunch adjournment, the solicitor representing the applicant stated that he had read the Crown's submissions. The Crown then did not address the Court orally at the hearing, stating that she relied on the written submissions. The Judge indicated that there was no need for her to take him through them. Again, no person is to be criticised on that account - it was a proper and efficient use of Court time. Although the applicant did not see the written submissions himself at any stage, it is clear that the contents of the submissions were considered by his solicitor. 26 In determining whether the ground of appeal of incompetence of the solicitor is made out, the test is whether, on an objective determination, this Court is satisfied that there was a miscarriage of justice arising from the manner in which the defence was conducted: Yi Hong Puan v R [2000] NSWCCA 194 at [28]. That principle applies equally to sentence proceedings: Puan at [54]. 27 The sentence proceedings in the present case entailed neither incompetent representation nor a miscarriage of justice. On the contrary, in my view, the solicitor ably represented the applicant and the sentence imposed was, if anything, lenient in all the circumstances. 28 A third complaint as to the solicitor's competence relates to the fact that the CCTV footage was never watched by the Judge in the Court. In my view, there is no substance in that complaint. As already noted, the applicant's solicitor indicated that he wished to rely on the events depicted in that footage in support of a submission based on extra curial punishment. He indicated, appropriately in my view, that the need to play the footage would be obviated if the Crown were to make appropriate concessions, which in due course the Crown did. The Judge made a finding that the conduct of the police officer did amount to extra curial punishment and took that into account in accordance with the relevant authorities. There was no incompetence and no miscarriage of justice. This ground is not made out.

Ground 2 - manifestly excessive sentence 29 The second ground of appeal is that the "sentence is outside the range". The principal complaint under this ground relates to the sentence of 2 years imposed in respect of the second of the two offences of possessing safebreaking implements. The applicant submits that, according to the statistics maintained by the Judicial Commission, no other person has ever been sentenced to a term longer than 12 months imprisonment for that offence. 30 That submission is apparently based on statistics that were provided to the sentencing Judge by the Crown in respect of sentences imposed in the Local Court. It is to be anticipated that the statistics in that Court would disclose a lower range. 31 The statistics maintained in respect of "higher courts" disclose that, between January 2001 and June 2008, six offenders were sentenced to terms of imprisonment for the offence of possessing housebreaking implements. As acknowledged by the Crown, those statistics are unhelpful having regard to the small size of the class. I note, however, that three of those six were sentences longer than 12 months. 32 In any event, it is well established that the upper limit of the sentencing discretion in any case is the maximum penalty for the offence in question, not the highest penalty revealed in the statistics kept by the Judicial Commission: Van Cuong Nyuyen v R [2008] NSWCCA 322 at [24]. 33 Further, as noted by the Crown, the offence for which a term of 2 years was imposed was the offence in respect of which 8 additional offences were taken into account on two Form 1 documents. That in itself is enough to explain the length of the term imposed. I do not think there is any substance in this ground. In my view, the sentences imposed in the present case were manifestly within the permissible range. Ground 3 - extra curial punishment

34 The third ground of appeal is "the extra curial punishment was not taken into account when sentencing". This ground is manifestly unarguable. As already noted, the sentencing Judge expressly found that the conduct of the police officer in placing his foot on the applicant's head fell within the description of extra curial punishment for which some allowance must be made in sentencing (ROS 21). His Honour observed, however, that the injury was "relatively minor", although the fact of its occurrence was totally inappropriate. 35 That finding was plainly open to his Honour. His Honour had regard to the relevant authorities and concluded that, while the conduct must be taken into account in the present case, the weight to be given to it was "somewhat minimal". No error is disclosed in that approach.

Ground 4 - time fixed for commencement of the sentences 36 The fourth ground of appeal is "no backdate to time of arrest". The applicant states that he pleaded guilty on 19 May 2008, which was the date upon which he was arrested, and that he had sought to be sentenced immediately. According to the Crown's written submissions in the proceedings in this Court, the date upon which the applicant indicated his pleas of guilty was 26 May 2008, but the applicant was adamant that the pleas were first entered on the date of his arrest. 37 In any event, assuming that the position is as stated by the applicant, it does not follow that he was entitled to be sentenced that day, nor that he was entitled to have his sentence backdated to that day if sentenced on a later date. The applicant's complaint ignores the fact that his parole was revoked on 23 April 2008 as a result of the offences he committed on 1 April 2008. The period of custody following his arrest on 19 May 2008 was accordingly referrable to the sentences imposed for the two offences of armed robbery. 38 The sentencing Judge correctly identified the existence of a discretion, in those circumstances, to backdate the sentence: see Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21] per Simpson J, James and Hall JJ agreeing.

39 The Judge gave careful consideration to the proper exercise of that discretion in accordance with the principles stated in Callaghan. As already noted, the solicitor representing the applicant had submitted that the sentences could properly be backdated to the date of the applicant's arrest. It would equally have been open to the Judge not to backdate the sentences at all. The Crown had in fact submitted that the sentences should commence on 7 April the following year (2009), which was the date of expiration of the earlier parole period. His Honour, however, took the view that it was not open to him to do so, presumably having regard to the provisions of s 47(4)(b) of the Crimes (Sentencing Procedure) Act 1999 and accepting, as stated by Simpson J in Callaghan at [23], that an offender who has served his non-parole period is always eligible to seek and be granted parole even after a revocation. 40 In the result, the Judge backdated the sentences for the first series of charges by more than 2 months, to a date roughly half-way between the date of sentence and the commencement of the period of custody referrable to the earlier parole period. No error is disclosed in that approach. Ground 5 - discount 41 The final ground of appeal is "more discount could/should have been given in sentencing". The applicant's submissions in support of this ground are that a greater discount should have been allowed for his early guilty plea, the fact that he is serving his sentence on protection, the extra curial punishment, the fact that his girlfriend has just given birth to a child and the fact that he has addressed his offending behaviour by attending courses at Junee jail. 42 As already noted, the Judge reduced the sentence he would otherwise have imposed on account of the early plea by 25%. No greater discount was appropriate on that account. 43 In respect of the fact that the applicant is serving his sentence on protection, the Judge noted that there had been threats to the applicant's safety whilst he was in custody for the earlier matters and that those threats had prompted him to escape. He had been in protection since returning to custody. The Judge proceeded on the basis that he will remain in protection for the rest of his sentence, and plainly took that factor into account.

44 In any event, the fact that an offender may be likely to serve his sentence in protection will not necessarily result in a shorter sentence. The proper weight to be given to that consideration will depend on the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period: R v Ah-See [2004] NSWCCA 202 at [27] per Hislop J, with whom Bell and Howie JJ agreed. 45 I have already discussed his Honour's consideration of the appropriate weight to be given to the extra curial punishment. 46 In respect of the fact that the applicant's girlfriend has given birth to their child, the Judge was aware of the impending birth of the child and referred to that event in the context of his consideration of the significant changes in the applicant's circumstances since the offences were committed. It is apparent that his Honour took a generous approach to the question of the applicant's prospects of rehabilitation on that account, notwithstanding the applicant's lengthy criminal record and the short time frame within which he re-offended after his release to parole: see ROS at 13.4. 47 The remarks on sentence also disclose that the Judge paid proper regard to the steps taken by the applicant whilst in custody to address the causes of his offending behaviour by attending various courses. I do not think the Judge's approach to any of the issues raised by the applicant under ground 5 discloses error. 48 I do not think the applicant has established any of his grounds of appeal. Even if error had been established, the overall sentence was, in my view, relatively lenient in all the circumstances and I do not think any lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912. 49 The orders I propose are that leave to appeal be granted but that the appeal be dismissed. **********

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