48 NSWLR 327
Attorney General's Reference No 1 of 2002 [2002] NSWCCA 518
56 NSWLR 146
Green and Quinn v The Queen [2011] HCA 49
244 CLR 462
Kentwell v The Queen [2014] HCA 37
Source
Original judgment source is linked above.
Catchwords
R v Ponfield and Ors [1999] NSWCCA 43548 NSWLR 327
Attorney General's Reference No 1 of 2002 [2002] NSWCCA 51856 NSWLR 146
Green and Quinn v The Queen [2011] HCA 49244 CLR 462
Kentwell v The Queen [2014] HCA 37313 ALR 451
Pearce v The Queen [1998] HCA 57194 CLR 610
Postiglione v The Queen [1997] HCA 26
Judgment (4 paragraphs)
[1]
Judgment
LEEMING JA: I agree with Hamill J, for the reasons his Honour gives, that the Crown was correct to concede that the sentence imposed on 23 October 2014 is attended by error, and that a lesser sentence is required. I agree with the aggregate sentence proposed by Hamill J and the indicative sentences indicated by his Honour, and the consequence that the applicant is entitled to be released immediately, in accordance with s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
HAMILL J: The applicant seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Cogswell SC in the District Court sitting at Albury on 23 October 2014. He raises two grounds of appeal, each of which has significant merit. The respondent concedes that error is established in relation to the first ground of appeal. The applicant accepts that the second ground of appeal, which relies on principles of parity and proportionality, need not be determined in terms but that the matters argued under that ground should inform the exercise of re-sentencing. The applicant submits that a different, less severe sentence is warranted and ought to be imposed. The respondent disputes this and argues that this Court would form the view that no lesser sentence than that imposed by the District Court is warranted.
The concession in relation to the first ground of appeal is correctly made. In exercising the sentencing discretion afresh, I have concluded that a different, less severe sentence is warranted and ought to be imposed. The application for leave to appeal should be granted, the appeal allowed and the applicant resentenced. The sentence I propose will result in the applicant's immediate release. These are my reasons for those conclusions.
The applicant pleaded guilty to seven offences pursuant to ss 112(2) and 113(2) of the Crimes Act 1900 (NSW). The four counts of aggravated break, enter and steal under s 112(2) carried a maximum penalty of 20 years and a standard non-parole period of 5 years. The three counts of aggravated break and enter with intent to steal carried a maximum penalty of 14 years: s 112(3). In each case, the circumstance of aggravation was being in company: s 105A.
Apart from three offences of drink-driving committed in 2002, 2005 and 2012, the applicant had no prior criminal history. His involvement in this series of offences was aptly explained in the opening paragraphs of the sentencing Judge's remarks on sentence:
"1. A young man was settling into family life here near Albury with his wife and daughter. They were planning on having another child. He had a good job. He described it as the best job he had ever had. A year later he was emaciated and had been charged with no fewer than seven very serious crimes under the Crimes Act 1900 (NSW).
2. The precipitous fall in this young man's lifestyle commenced casually. He casually shared drinks and stories with friends but they introduced him to the drug commonly known as ice. As the young man said, it grabbed him immediately and he was then chasing it until he was finally detained in custody."
The offences were serious by their nature and repetition but, as Cogswell DCJ found, they fell towards the bottom of the range of objective seriousness contemplated by ss 112(2) and 113(2). In particular, the circumstance of aggravation in each case was that the applicant was in company with his co-offenders: see paragraph (b) of the definition in s 105A. That may be contrasted with the other circumstances of aggravation defined in section 105A namely (a) being armed with a weapon, (c) using corporal violence, (d) inflicting injury, (e) depriving a person of their liberty and (f) entering premises knowing that there is a person inside. Further, the offences were committed in a very amateur fashion and were largely unplanned.
The facts of the offences were summarised by the sentencing judge in the following way:
"6. On 12 October 2013 Mr Glare and an accomplice took themselves to the Corowa Golf Club. Mr Glare kept watch whilst the accomplice broke in. The accomplice raided some poker machines, causing about $60,000 in damage. He got about two and a half thousand dollars in cash. Mr Glare was so reckless by that stage in his drug habit that he and his accomplice left behind an iron bar which had been used to break in, and the iron bar retained Mr Glare's DNA profile. I repeat that Mr Glare was the lookout although he is charged with the same offence as the man who broke in. That is an aggravated break, enter and steal which is an offence against s 112(2) of the Crimes Act. Parliament regards that offence as so serious that it has fixed a maximum of 20 years imprisonment to it. It has also fixed a standard non-parole period of five years.
7. Next in time were two break-ins, both at the Tocumwal Golf Club. They were committed on 18 and 19 October last year. Again he was with an accomplice. They climbed onto a roof but the accomplice fell through and they left the scene. Their expertise in these crimes was such that they returned to the same scene the following morning. Police were waiting. They broke in again and the police arrested them. At that stage Mr Glare admitted his offences. He was put on bail.
8. Because those two offences did not involve any actual theft, he was charged with aggravated break and enter with intent to commit a crime. That and the first offence I spoke about were aggravated because Mr Glare was in company.
9. Returning to the break and enter with intent, Parliament has fixed a maximum of 14 years imprisonment to that offence but no standard non-parole period. One of his accomplices - there were apparently two - received a prison sentence of 18 months with a non-parole period of six months.
10. About six months later, Mr Glare was at it again. On 6 March 2014, he and another accomplice turned up at the Oaklands RSL Bowling Club. They used a jemmy bar to prise open the door and get into the kitchen. They found nothing of value so they decided to leave. That resulted in another charge of aggravated break and enter with intent, under s 113(2) of the Crimes Act. Again they decided to return to the same scene a day later on 7 March 2014. They broke in and walked around again. This time all that they were able to find was a tub of ice cream, to which Mr Glare helped himself. That gave rise to a charge of aggravated break and enter and commit serious indictable offence against s 112(2) of the Crimes Act. That is one of the crimes to which, as I mentioned, Parliament has fixed a maximum of 20 years imprisonment and five years standard non-parole period.
…
12. Over the evening of 9 -10 March 2014, Mr Glare and an accomplice broke into the Redlands Cafe in Redlands Road, Corowa. They cut security bars off the window and forced the window open. The owners found that over $800 of goods had been stolen, mostly snack food and confectionary. This too resulted in a charge of aggravated break and enter and commit a serious indictable offence against s 112(2) of the Crimes Act.
13. The final and seventh offence is a further aggravated break, enter and commit serious indictable offence against s 112. That is a crime that Mr Glare admitted to committing when he was being interviewed about other crimes. He said that he had broken into the Rennie Football Club with someone else and they stole some equipment and some beer as well as even a heart defibrillator. That resulted in another charge against s 112(2) of the Crimes Act."
Counts 1-3 took place over a seven day period while counts 4-7 occurred six months later over a period of a little less than one month.
There were four offences on a Form 1 to be taken into account in sentencing for count 5: s 33 Crimes (Sentencing Procedure) Act 1999 (NSW). These were possession of housebreaking implements, receiving stolen property, larceny and enter a building with intent. There were twelve offences on a Form 1 attached to count 7. These were 7 counts of receiving, 3 counts of dealing with the proceeds of crime and 2 counts of possessing unlawfully obtained goods.
[2]
ground one
"His Honour erred in failing to take into account the pleas of guilty and assistance in the specification of the indicative sentences for each count in accordance with s 53A(2)(B) Crimes (Sentencing Procedure) Act 1999 (NSW)."
The original notice of appeal, filed on 26 May 2015, contained this single ground. In view of the delay and proximity of the applicant's release date, the Registrar listed the matter urgently. The respondent fairly acknowledges that this ground is established.
The learned sentencing Judge held that the applicant was entitled to a reduction in his sentence of 40% based on his plea of guilty and cooperation with law enforcement authorities. His Honour indicated the individual sentences that he would have imposed and then indicated the starting point for the aggregate sentence (5 years). It was at that point that the 40% discount was applied; resulting in a term of three years in relation to which his Honour fixed a non-parole period of 18 months.
Where a sentencing judge imposes an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), the Judge must record the individual sentences that would have been imposed on each count. These individual "indicative" sentences should represent the sentence after the application of a discount for a plea of guilty or similar: s 53A(2)(b); R v Cahill [2015] NSWCCA 53. In R v Cahill Johnson J (with whom Leeming JA and Schmidt J agreed) said:
"107. The indicative sentences here constituted a series of head sentences. The indicative sentences should have factored in the discount for the Respondent's pleas of guilty: s.53A(2)(b); JM v R [2014] NSWCCA 297 at 39.
108. The sentencing Judge did not comply with the requirements of s.53A(2)(b) and s.54B(4) Crimes (Sentencing Procedure) Act 1999. Compliance with s.53A(2)(b) would have seen indicative sentences assessed by taking into account such matters in Part 3 (ss.21-43) or elsewhere in the Crimes (Sentencing Procedure) Act 1999 as were relevant. These included, amongst other things, the Respondent's pleas of guilty and any factors under s.21A Crimes (Sentencing Procedure) Act 1999 which applied.
109. It was erroneous to select an aggregate sentence and then apply a 25% discount for the Respondent's pleas of guilty to that sentence. The purpose of s.53A should be kept in mind. In the course of a valuable summary of principles surrounding aggregate sentencing, RA Hulme J (Hoeben CJ at CL and Adamson J agreeing) said in JM v R at 39:
'Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a 'cascading or 'stairway' sentencing structure' when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57].'"
The respondent's concession that error is disclosed should be accepted.
It is accordingly necessary for this Court to exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [40]-[43].
[3]
ground 2 and re-sentencing
The applicant has raised a second ground of appeal based around considerations of parity in relation to count 3 and count 6. While there is some ostensible merit in this ground, it is not necessary to come to any final conclusion given that the Court is to exercise the sentencing discretion afresh and, in doing so, will take into account the known sentencing outcomes for the co-offenders in respect of count 3 (Simon Garsed) and count 6 (Benjamin Clancy).
While the offences are serious and repetitive, they are at the lower end of the range of objective seriousness that might be encountered for offences under ss 112(2) and 113(2).
In Attorney General's Application (No 1); R v Ponfield and Ors [1999] NSWCCA 435; 48 NSWLR 327, Grove J (with whom Spigelman CJ and Sully J agreed) pronounced a non-numerical guideline judgment in relation to the offence of break, enter and steal. While the present case concerns the aggravated offence in relation to which a standard non-parole period now applies, the factors identified in the guideline judgment remain important in assessing the objective seriousness and the appropriate level of sentence in any particular case. Grove J said:
"48. A court should regard the seriousness of offence contrary to s 112(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 accumulative 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, organization 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 offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP 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)).
49. It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor (See R v Henry supra at pars [193] - [203] and [217] to [259])."
The first count charged against the applicant involved significant damage to property committed by one of the co-offenders. Counts 4 through to 7 were committed while the offender was on bail. There was also a "multiplicity" of counts. Otherwise, the matters that Grove J identified as aggravating the criminality from an objective perspective were absent in the present offences. While there was a return to two of the premises, this was indicative of the amateur nature of the offending rather than the kind of systematic "repeat incursions" of which Grove J was speaking in paragraph (vii).
Considerations of deterrence, both general and personal, mean that the only appropriate penalty was (and remains) the imposition of a custodial sentence: s 5(1) Crimes (Sentencing Procedure) Act. However, the subjective or personal case presented by the applicant was a moving and compelling one. He came to court with significant family and community support and had taken significant steps in overcoming his pernicious addiction to methylamphetamine which had led him into the company of those with whom he committed the offences and into the commission of the offences as a means to obtain money to fund his drug habit.
A pre-sentence report described the applicant's personal history. He was born and raised in the town of Corowa and was the youngest of 3 children who had a positive upbringing. Nothing in his family background explained his resort to crime. By the time he came to be sentenced he was married with two children aged 4 and 1 years old. He enjoyed excellent support from his family. He had completed year 10 in the local high school and then held a variety of jobs including two years of service with the Australian Navy. Until his 12 month interaction with the drug "ice" it seems that he was in full-time employment for all or most of his adult life. He expressed genuine contrition and remorse and was described as "fundamentally pro-social, and appeared to demonstrate good insight into his offending behaviour". The author of the presentence report assessed him as being a low to medium risk of reoffending.
There were a variety of references and testimonials tendered on his behalf. These spoke highly of his character, work ethic and involvement in the local community. He had played football and cricket with local clubs and was an active contributor to these clubs. Subject to the drink driving offences to which I have referred, he was a person of good character prior to his involvement with drugs.
An affidavit read on re-sentencing showed that the applicant has made the most of the limited opportunities to rehabilitate while in custody. He is undertaking a TAFE course in Skills for Work and mathematics. Upon his release he has a job opportunity with a qualified mechanic with whom he previously worked. He has been subject to threats from other inmates and some acts of victimisation as a result of the assistance he provided to police. As a result, he has been kept in protective custody.
Based on his strong employment record, family support and the efforts he has made to defeat his drug habit, his prospects of rehabilitation appear to be very good. Subject to the obvious caveat that this is an exercise in prediction, he is unlikely to offend again. Those assessments are also strongly related to the expectation that his experience in custody will have a salutary impact on him and will achieve the purpose of specific or personal deterrence. His prospects really turn on his ability to avoid illegal drug use.
The sentencing Judge allowed a combined discount of 40% and that appears to be an appropriate one given the early plea and contents of his recorded interview on 4 April 2014. The sentencing Judge also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and made a significant adjustment to the proportion between the total sentence and the non-parole period.
Like the sentencing Judge, I am of the view that it is appropriate to impose an aggregate sentence under s 53A. I would also find special circumstances pursuant to s 44(2B) largely in the desirability for the applicant to have a lengthy period of supervised parole so that he has the best chance to remain drug-free and to become again a valuable member of the community. In reaching that conclusion, I also take into account the difficulties that the applicant has experienced in custody.
I have considered and taken into account the sentences imposed on the co-offenders in respect of counts 3 and 6. Timothy Garsed was sentenced to a total sentence of 18 months with a non-parole period of six months in relation to count 3. He had a substantial and relevant criminal history and there was an offence of possessing house-breaking implements taken into account in sentencing. Benjamin Clancy was sentenced to a total sentence of one year and ten months with a non-parole period of nine months in relation to count six. He too had a significant criminal history. On the other hand, the applicant committed count 6 while he was on bail for similar offences. Each of those co-offenders received a discount of 25% for their pleas of guilty but, unlike the applicant, had not assisted the authorities. However, the applicant was sentenced in relation to a multiplicity of similar offences. While a comparison between the individual circumstances is difficult, the task must be undertaken: see at Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [30]. I agree with the applicant's submission that considerations of equal justice suggest that the indicative sentences for the applicant should be somewhat less than those imposed on the co-offenders. As Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26;189 CLR 295 at 301:
"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
For the purpose of s 53A(2), I record that I would propose an aggregate sentence and that the individual sentences that would have been imposed (after taking into account relevant matters, the application of the 40% discount and some rounding up and down of the numbers) are as follows:
Count 1: 1 year 8 months
Count 2: 10 months
Count 3: 9 months
Count 4: 1 year 6 months
Count 5: 1 year 10 months
Count 6: 1 year 7 months
Count 7: 2 years 3 months.
The indicative sentence for count 1 is significantly higher than counts 2 and 3 because of the property damage occasioned to the Corowa Golf Club. Counts 4-7 attract higher sentences because each of those offences was committed while the applicant was on bail. That is a matter of significant aggravation. Count 7 is the highest indicative sentence because of the other (12) offences to be taken into account on the Form 1. Personal deterrence and retribution have greater weight in relation to that matter: Attorney General's Reference No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42].
If aggregate sentences were not to be imposed there would necessarily be a degree of accumulation between the sentences. Given their proximity in time there would be very little accumulation between counts 1, 2 and 3 and those sentences would largely be ordered to be served concurrently. Similarly, there would be little accumulation as between counts 4, 5, 6 and 7 themselves. However, there would be an accumulation of something in the order of three months between the two sets of offences that is between counts 1 - 3 and counts 4 - 7. I have reached those discretionary conclusions by reference to the principle of totality and noting the similarity in the offending, the timing of the offences and the fact that the multiplicity of offending is a factor taken into account under the guideline judgment in assessing the objective criminality (while, at the same time, complying with Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45]).
The aggregate sentence that I would impose is 2½ years with an aggregate non-parole period of one year and three months. This sentence has already expired and, under its terms and the provision in s 50 Crimes (Sentencing Procedure) Act, the applicant is entitled to be released immediately.
The orders that I would propose are:
1. Grant the application for leave to appeal against sentence and allow the appeal.
2. Quash the sentence imposed in the District Court and in lieu thereof the applicant is sentenced to an aggregate sentence comprising an aggregate non-parole period of one year and three months commencing 30 March 2014 and expiring 29 June 2015 with a balance of term of one year and three months commencing 30 June 2015 and expiring 29 September 2016.
3. Pursuant to s 50(1) Crimes (Sentencing Procedure) Act 1999 (NSW), order that the applicant is to be released on parole at the conclusion of the non-parole period. Note that the non-parole period has expired and that the applicant is entitled to be released forthwith.
4. Pursuant to s 51(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) order that the applicant's parole be subject to the usual conditions under the Crimes (Administration of Sentences) Act 1999 (NSW) including a condition that the applicant is to obey the reasonable directions of the probation and parole service including such directions as to counselling in relation to drug rehabilitation as the officers of that service may provide.
FAGAN J: I agree with Hamill J.
[4]
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Decision last updated: 22 July 2015