Gray v R

Court of Criminal Appeal (NSW)|2018-03-05|Before: Macfarlan JA, Johnson J, Campbell J, MacFarlan JA

Solicitors: Legal Aid NSW (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2015/244277 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2016] NSWDC 368 Date of Decision: 16 December 2016 Before: Hatzistergos DCJ File Number(s): 2013/193884

Judgment

MACFARLAN JA: I agree with Campbell J.
JOHNSON J: I agree with the orders proposed by Campbell J and generally with his Honour's reasons.
CAMPBELL J: The applicant, Dylan Gray, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by his Honour Judge Hatzistergos in the District Court at Parramatta on 16 December 2016.

Grounds of appeal relied upon

The applicant challenges the sentence imposed by the sentencing judge on the following three grounds: 1. Ground 1: the sentencing judge erred in his assessment of the objective seriousness of the property offences; 2. Ground 2: the sentencing judge erred in applying the principle in Frigiani v R [2007] NSWCCA 81 ("Frigiani v R") to Sequence 6 of the indictment; and 3. Ground 3: the sentence imposed is manifestly excessive.

Nature of the offending

The following summary is adapted from the sentencing judge's remarks and the agreed facts tendered on sentence. The offending is dealt with chronologically.

Form 1 offence taken into account with Sequence 5

On 9 August 2015, the applicant attended the Precious Metal Exchange where he signed a document that indicated that he was the owner of three gold pendants and a gold necklace. He sold these items for $442 despite not owning them. The owner of such property later identified the applicant from photographs.

Sequence 5 - The first break and enter with intent and s 166(1)(b) related offending of drive recklessly dealt with as Sequence 6

On 12 August 2015 at 11:50 am, plain clothed police travelling in two unmarked vehicles observed the applicant alight from a white Holden Cruze hatchback car ("the applicant's car") and enter the front yard of residential premises in Carlingford ("the property"). The applicant was then observed to walk down the right side of the property, before disappearing from sight. While out of sight of the police the applicant smashed a rear window in an attempt to gain entry to the rear of the premises. Shortly afterwards, the applicant returned to view and drove away in his car. Police activated the lights and sirens of their unmarked vehicles and pursued the applicant until the applicant pulled his car over. Four police exited their vehicles and approached the applicant's car. The applicant then accelerated in a forward direction narrowly missing the four police officers.
On 15 August 2015 at 3:22 pm, CCTV footage shows the applicant entered the 'Chinatown Centre' building at Sussex Street, Haymarket via the ground floor doors and then proceeded to an upper level of the complex. The applicant can then be observed walking down the corridor, stopping on occasion to look into two suites of offices.

Sequence 8 - Break and enter with intent to commit serious indictable offence

The applicant forced entry into the first suite, occupied by a mortgage broker. The applicant gained access by using a tool similar to a flat-head screw driver. He left without taking any items.

Sequence 9 - Break and enter and commit serious indictable offence

The applicant then forced entry into the second suite, occupied by another corporation. Tool marks consistent with those left at the first suite were found at the entrance of the second suite. The applicant picked up a duffle bag inside the property and filled it with various electrical items, including several laptops, mobile phones and tablets, valued at approximately $7,750. The applicant left the property with the duffle bag containing the stolen goods. The applicant is captured on CCTV footage walking through the building.

Applicant's subjective circumstances

The applicant was aged 29 years and 6 months at the time of the offences and 30 years and 10 months at the date of sentence. There is no challenge to the findings his Honour made in relation to the applicant's subjective case and I will deal with it in accordance with his Honour's approach. My summary of the relevant factors is derived principally from his Honour's remarks on sentence.
The applicant is the third eldest of four children. At the time of the offending and when sentenced he was not in a relationship and had no children of his own.
He was born in the western suburbs of Sydney and raised by his biological family. His father was a plumber and drainer. His parents separated for a period when he was 9 years of age, later reconciling and continuing in their marriage. The applicant's impression is that before the separation his parents would imbibe alcohol at home and argue, but there was no physical violence between them. After their reconciliation when the applicant was about 10 years of age, his parents seemed to have settled their differences. On the whole, the applicant has supportive parents and a good relationship with his siblings.
He was apparently diagnosed with Attention Deficit Hyperactivity Disorder in early adolescence. His disruptive behaviour led to frequent changes of school. He finally left school at the age of 15 and commenced an apprenticeship as a chef, but did not continue on this path for longer than 12 months. His employment thereafter was sporadic involving work of a labouring type until his offending first brought him into custody. On a work release program, he worked for a furniture distribution and assembly company.
He commenced smoking cannabis at the age of 15. It became a daily habit, progressing to the use of heroin, amphetamines and ecstasy. Occasionally he used cocaine. He rapidly became addicted to heroin and was using on a daily basis within a relatively short period of time.
He attempted rehabilitation unsuccessfully. Previously in custody he participated in a compulsory drug treatment program and during his current time in custody he has engaged in Explore, Question, Understand, Investigate, Practice, Succeed ("EQUIPS"). The applicant received positive reports for this participation. However, he developed a pattern of periods of abstinence followed by relapse.
The applicant has a lengthy criminal history, mainly involving property offences including larceny, various break, enter and steal offences and obtaining property by deception. Doubtless these offences are related to his substance abuse difficulties.
His offending resulted in prison sentences previously. Most recently before this offending, on 13 July 2012, he was sentenced to imprisonment for property offences including an aggravated break and enter and commit serious indictable offence and other break and enter offences. The term of imprisonment was one of 7 years commencing on 13 July 2011 and concluding on 12 July 2018. Obviously that sentence remains current. The non-parole period was one of 4 years commencing on 13 July 2011 and concluding on 12 July 2015. Accordingly, he had been at liberty on parole for about 1 month before the offending, the subject of these proceedings.
The sentencing judge had the benefit of a psychological assessment by Jason Borkowski, a forensic psychologist. His Honour seemed to accept generally the contents of Mr Borkowski's report. There is no doubt that the applicant's offending was very largely related to his substance abuse and that the likelihood of reoffending depended in no small measure upon the applicant's ability to manage that problem in the future.
Both the applicant and his father gave evidence before the sentencing judge and his Honour was satisfied that the offender enjoyed good familial support, no doubt a positive prognosticator. However, given his substance abuse problems, and his record, the sentencing judge regarded the applicant's prospects of rehabilitation as at best guarded.
His Honour was prepared to accept that the applicant was genuinely remorseful in relation to the property offending "in the sense that [the applicant] has acknowledged the injury, loss or damage caused" (ROS [34]). His Honour also accepted that the applicant had pleaded guilty at the first available opportunity and allowed a discount of 25 per cent.

Sentencing Judge's reasons

As I have already said, the sentencing judge assessed the objective seriousness of the three indictable property offences viewed individually as at the low level. As is conceded by the Crown (see [37] below), his Honour fell into error by regarding each of them as having been aggravated by reference to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"). Given the obvious dangerousness of the driving underpinning the reckless driving offence, his Honour assessed that matter to fall within the high-range (ROS [23]), notwithstanding the relatively short period of time involved.
Although satisfied that there was a degree of planning involved in the offending, having regard to the fact that the applicant equipped himself with a screwdriver to use as a jemmy for the purposes of Sequences 8 and 9, his Honour was not persuaded that there was any "professional planning, organisation or execution involved" (ROS [18]). The value of the goods stolen was not insignificant and indicated that the offending had been committed for the purpose of financial gain (ROS [18]-[19]).
His Honour treated the consideration that each offence was committed whilst the applicant was at conditional liberty on parole as a significantly aggravating factor, applying s 21A(2)(j) of the Sentencing Procedure Act. His Honour also referred to the judgment of Johnson J in Porter v R [2008] NSWCCA 145 at [86] (Bell JA and McCallum J agreeing). The aggravating effect of the s 21A(2)(j) factor was enhanced in relation to the property offences because the applicant was on parole (and recently on parole) for prior similar offences: Frigiani v R at [24], Howie J, Simpson and Barr JJ agreeing.
His Honour found that the applicant had absented himself from his approved parole residence (his parents' home) to avoid arrest, leading to his parole being revoked (ROS [26]-[27]).
His Honour declined a finding of special circumstances given the applicant's antecedents. Naturally enough his Honour laid emphasis on deterrence, both general and specific.

Applicant's submissions

In relation to Ground 1, Ms Paingakulam of Counsel for the applicant submits that his Honour erred in having regard to the multiplicity of property offending before him for sentence as aggravating factors, pursuant to s 21A(2)(m) of the Sentencing Procedure Act. Counsel argues this ultimately caused his Honour to over assess the seriousness of each of the property offences as being "just below the mid-range of offending" (ROS [22]), rather than being in the "lower level" mentioned earlier (ROS [21]). Counsel relied on R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 ("Tadrosse") at [28]-[29].
Counsel's second point was that it was in any event an error to treat each of the break and enter offences as exhibiting the same level of seriousness as the others. The circumstances of each were quite different from the circumstances of the others according to Counsel's analysis of the objective features.
Counsel pointed out Sequence 5 involved the smashing of a window to gain entry into a residential premises, making this an aggravated offence as a consequence of s 21A(2)(eb) of the Sentencing Procedure Act. Sequence 8, however, concerned the jemmying of a door with a screwdriver to gain access to unoccupied commercial premises. There were no circumstances of aggravation. Counsel argued that although the same cannot be said of Sequence 9, this sequence did not enliven s 21A(2)(eb) of the Sentencing Procedure Act, and only minimal damage was caused in order to access to the premises.
Ground 2 invokes the principle discussed in Frigiani v R at ROS [24]-[30]. Although this was apposite for Sequences 5, 8 and 9, Counsel points out it is not for Sequence 6. The principle in Frigiani v R should not have been applied to Sequence 6.
For Ground 3, the manifest excess ground, Counsel submitted that the degree of notional accumulation reflected in the aggregate sentence is excessive, for the following reasons: 1. Sequences 5, 8 and 9 were found to be "below mid-range", although it is conceded that this classification was prefaced with the word "just"; 2. Sequences 8 and 9 occurred in a single episode; 3. Sequence 6 occurred shortly after Sequence 5 and under circumstances which can be described as an attempt to escape apprehension; and 4. All 6 offences occurred within a space of a week.
It is on these bases that Counsel argues that the indicative sentences, although, not appellable themselves, ought to be utilised as a guide to assess whether an error is established in the aggregate sentence. Crown's submissions
In relation to Ground 1, the Crown concedes that his Honour erred in having regard to the multiplicity of property matters as an aggravating factor. The Crown accepts that s 21A(2)(m) of the Sentencing Procedure Act has no operation because the applicant's case is not one whereby there was a single offence involving a course of criminal conduct or a series of criminal acts.
The Crown, however, argues that it was open to the sentencing judge to assess the objective seriousness of the offending as being the same for Sequences 5, 8 and 9. Although the indicative sentences reflect some differences in the seriousness of the offences, his Honour was not required to nominate specifically where in his range each of the offences fell. Furthermore, individual differences existed within the sequences, for example, Sequence 5 reflected the taking into account of matters listed on the Form 1.
In relation to Ground 2, the Crown contends, that his Honour did not apply the Frigiani v R principle erroneously to Sequence 6. Rather reading the relevant section of his Honour's remarks on sentence as a whole, it was clear that his Honour was then focusing only on Sequences 5, 8 and 9.
In relation to the manifest excess ground, the Crown accepts that indicative sentences may be a guide to determining whether error is established in relation to an aggregate sentence: JM v R (2014) 246 A Crim R 528 at 40. The Crown submitted that it could not be said that the sentence imposed was plainly unjust when one had regard to all the facts, matters and circumstances relevant to sentencing this offender for these offences. General and specific deterrence (having regard to his previous record) were important factors to be brought to bear in fixing a sentence for the break and enter matters. The reckless driving offence was a serious example, involving as it did significant danger to the safety of police officers discharging their public office in attempting to arrest the applicant. That he was on parole at the time was of particular significance.

Supplementary written submissions filed by the parties - driving disqualification

As I have pointed out (at [6] above), Sequence 6 also carried an automatic period of 3 years disqualification from holding a driver's licence. His Honour had a discretionary power to reduce that period to no less than 12 months. He did not do so (ROS [64]), but imposed the "automatic" disqualification. If the Court proceeded to re-sentence, an issue arose about the appropriate period of disqualification and its commencement date. It is convenient to record the arguments about that matter now.
To provide context, I should say that Sequence 6 is a major disqualification offence for the purpose of s 206A of the Road Transport Act. The effect of that provision is that a period of disqualification imposed upon conviction for a major disqualification offence for which the offender is sentenced to imprisonment extends the specified period of disqualification by the period of imprisonment for that conviction, for the duration of the period actually served in full-time custody prior to release on parole. The purpose, of course, is to ensure that the disqualification has real effect so that it affects the offender while he is in the community rather than when in custody, when he would not be driving anyway. The Court has power to make an order varying the effect of the section in a given case: s 206A(5) Road Transport Act.
Both Counsel, in the end, agreed that where a major disqualification offence is one of a number of offences dealt with by the imposition of an aggregate sentence, the aggregate sentence is the sentence relevantly referred to in subsections 206A(2)(b) and (3) of the Road Transport Act. Section 206A(3) of the Road Transport Act is in the following terms: The specified period of disqualification of a person is extended (by the operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification. (Emphasis added.)
The language of s 53A(1) of the Sentencing Procedure Act makes clear that an aggregate sentence when imposed is the sentence "with respect to all … of those offences"; the aggregate sentence is imposed "instead of … a separate sentence … for each" offence. The indicative sentences are just that: an indication of what would have been done "had separate sentences been imposed instead of an aggregate sentence". This is the effect of what Button J said (Gleeson JA and Fagan J agreeing) in R v Price [2016] NSWCCA 50 at [141].
In passing, I observe that Ms Paingakulam is probably correct in her submission that both the Sentencing Bench Book (at [18-410] Licence Disqualification) and the Local Court Bench Book (in its section concerning Road Transport legislation) may overstate the effect of s 206A of the Road Transport Act. Both refer to the period of disqualification being extended by any period of imprisonment served after the commencement of the disqualification. The only period of imprisonment having that effect is the sentence for the major disqualification offence which attracted the period of licence disqualification in the first place.

Decision

The concession by the Crown that his Honour made an error of principle by treating s 21A(2)(m) of the Sentencing Procedure Act as an aggravating factor for each of the property offences was properly made. In Tadrosse Howie J (at [28]-[29]) said (Grove and Hall JJ agreeing): "[28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court. [29] Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act. Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act. When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged."
Notwithstanding the restraint that this Court normally exercises when a sentencing judge's evaluation of objective seriousness is called into question on an application for leave to appeal from the sentence, with respect to his Honour, the clear error of principle in this case engages directly with a House v The King (1936) 55 CLR 499; [1936] HCA 40 error and the sentencing discretion must be taken to have miscarried, requiring this court to re-exercise it for itself in order to determine whether another, lesser, sentence is warranted in law: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 618-619 [43].
This being so, it is unnecessary to consider the other grounds of appeal. I will however, say that I would not have been satisfied that his Honour misapplied Frigiani v R. It is clear that his Honour had already arrived at his conclusion about the objective seriousness of the reckless driving offence (ROS [23]) before considering the application of s 21A(2)(j), and its enhanced effect on the property offences by application of Frigiani v R. At [23] of his Honour's remarks on sentence, his Honour found the reckless driving offence to be "high-range". There is no suggestion anywhere in the reasons his Honour actually gave that he treated that offence as being "more aggravated" by the commission of the offence while on conditional liberty. Doubtless he was entitled to treat that offence as having been aggravated, per se by that consideration. But I am not persuaded he misapplied Frigiani v R.
As it is necessary to re-exercise the sentencing discretion in any event because Ground 1 has been made good, it is pointless to consider the manifest excess ground (Ground 3).
In the event that the Court would be required to re-exercise the discretion, evidence of the applicant's progress since sentence was read in the form of an affidavit from the applicant himself sworn on 1 March 2018 and an affidavit of his solicitor, Stephen Eccleshall affirmed on 1 March 2018.
As it was not argued that his Honour was mistaken as to the facts relevant to sentencing, it is appropriate for this Court to proceed on the basis of the facts as his Honour found them to be augmented by the evidence I have referred to.
Clearly a central issue in this sentencing exercise is the applicant's poor record which, I accept, is inextricably bound up with his substance abuse. His prospects of rehabilitation and reformation must largely depend upon him putting his substance abuse behind him. The evidence does not establish that the applicant has overcome those difficulties yet. Custodial punishment was inflicted in December 2017 for a disciplinary offence on 6 November 2017 of failing a prescribed drug test. In his affidavit, the applicant explained (at [14]-[15]): "[14] Unfortunately, because I still struggle with my addiction, I took some methadone from another inmate late last year. I was asked to provide a urine sample around this time which showed I had used methadone. I received various punishments including 84 days off buy-ups and contact visits. [15] I have not used illegal methadone again since I was punished and will do my best to resist the temptation to take it again. I know that if I take drugs not prescribed for me I will be unlikely to get released to parole at the earliest time."
He has undertaken the EQUIPS addiction program and his case notes (dated 27 July 2017) indicate that he participated very well; was punctual and did not miss any sessions. He fully participated in all group activities and was appropriately respectful in his communications.
He tries to occupy himself in custody by keeping fit and he is entrusted with work as a barber.
Even taking account of the encouraging developments, as the sentencing judge said, one must remain guarded about the applicant's prospects of rehabilitation and hence his risk of reoffending. I am prepared to find that progress is being made, even if at the rate of two steps forward and one back.
General and specific deterrence remain significant factors and it is clear he needs further time to undertake other programs, if available, in custody.
Having said this, the finding of objective seriousness is, of course, a central consideration in the sentencing exercise given the importance of the principle of proportionality. If one adopts his Honour's original assessment of the seriousness of the property offences as "lower level", notwithstanding the aggravating factors, some sentence less than the sentence passed by his Honour is warranted.
The applicant remains entitled to the 25 per cent discount allowed by his Honour (to be taken into account when fixing the indicative sentences) and I too, would make no finding of special circumstances.
I bear in mind that the maximum penalties for Sequences 5 and 8 is imprisonment for 10 years; and for Sequence 9, imprisonment for 14 years. The offences are not standard non-parole period offences. The reckless driving offence carries a maximum penalty of 9 months and/or a $2,000 fine together with a period of disqualification. It remains appropriate to deal with the offences by way of an aggregate sentence under s 53A of the Sentencing Procedure Act.
Having regard to the 25 per cent discount for the early guilty plea, I indicate that the sentences I would have imposed had I decided to impose separate sentences for each offence are as follows: 1. Sequence 5, break, enter with intent including (taking into account the Form 1 offending) - 2 years; 2. Sequence 6, (unchanged) - 5 months; 3. Sequence 8 - 1 year and 3 months; and 4. Sequence 9 - 2 years.
In fixing the aggregate sentence, I have had regard to the principle of totality and the need to reflect the separate criminality involved in each offending in a degree of partial accumulation. Like the trial judge, I will commence the sentence on 16 December 2016 to allow a degree of concurrence on the as of yet unexpired previous sentence in application of the totality principle.
I would impose an aggregate sentence of 4 years and 4 months imprisonment commencing on 16 December 2016 and expiring on 15 April 2021. The non-parole period, being the minimum period justice requires the applicant to serve in full-time custody will be one of 3 years and 3 months, meaning the applicant would first be eligible for parole on 16 March 2020.
Before proposing orders, I will return to the question of the licence disqualification. I accept Ms Paingakulam's submission that the availability of a driver's licence is likely to be an important factor in the applicant's prospects of finding worthwhile employment which in turn will enhance his prospects of rehabilitation and reduce the risk of re-offending. Bad as his record is, it is not characterised by serious driving offences or, on the material available to us, repeated disregard of the Road Transport legislation. In the circumstances, I think it appropriate to reduce the period of disqualification from 3 years to 18 months which will operate from his date of release on parole.
I propose the following orders: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentence passed in the District Court on 16 December 2016 and instead sentence the applicant to an aggregate term of imprisonment under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), having a non-parole period of 3 years and 3 months commencing on 16 December 2016 and expiring on 15 March 2020 with a balance of term of 1 year and 1 month commencing on 16 March 2020 and expiring on 15 April 2021. 3. For the purpose of s 206A Road Transport Act 2013 (NSW), the applicant is disqualified from holding a driver's licence for a period of 18 months. 4. The applicant will be first eligible for release on parole at the expiration of the non-parole period on 16 March 2020.

Amendments 06 July 2018 - corrected paragraph numbering 10 July 2018 - Paragraph 45 - second sentence the word "qualification" has been amended to "disqualification". 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: 10 July 2018

Crimes (Sentencing and Procedure) Act 1999(NSW)

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