Hagen v R [2009] NSWCCA 268 | Case summary

30 OCTOBER 2009 Darren Glenn HAGEN v R Judgment 1 THE COURT: The applicant sought leave to appeal against the sentences passed in the District Court after he pleaded guilty to one count of aggravated breaking and entering a dwelling house and committing a serious indictable offence contrary to s 112(2) of the Crimes Act 1900 and one count of damaging property by fire contrary to s 195(1)(b) of the Act. On 26 October 2009, the Court granted leave to appeal and allowed the appeal, but reserved its reasons. These are the reasons of the Court for the orders made that day. 2 On Friday 20 April 2007 the applicant turned 21. He had been celebrating that occasion by drinking alcohol for at least two days when the offences were committed. He could not remember the amount of alcohol he had consumed, but described it to a psychologist as "a good bucketful". He was very intoxicated when the offences were committed. 3 In the early hours of the morning of Sunday 22 April 2007, the applicant and a friend were walking home from a hotel in Wagga Wagga. The applicant's friend decided that he needed to rest, and lay down in a garden bed at the front of a house. The applicant sat next to him for a while. Then, for reasons he can neither remember nor explain, the applicant walked up the driveway of the house and forced open an access door underneath the house, where he lit a fire with clothing and wood that was under the house. A short time later, he left the house and the two men ran away. 4 Those events were observed by a neighbour, who called the police. A police car arrived soon afterwards and stopped the applicant and his friend. In the meantime, the neighbour went to check the house, where he saw smoke and discovered the fire. He was unable to find a hose and yelled for assistance from the police, who it appears were still nearby. They came to the house, found the hose and extinguished the fire. 5 The house was owned by an elderly woman who lived alone. She had locked her front door from the inside earlier in the evening. A smoke alarm woke her and she was initially unable to find her keys but ultimately found them and was able to open the door. 6 The applicant was charged with the aggravated offence under s 112(2) on the basis that he knew that there was a person in the place where the offence was committed. There was no evidence to suggest that he had in fact known there was a person there. That element of the offence was proved by means of the statutory presumption contained in s 105A(2A) of the Crimes Act. 7 The offence under s 112(2) carries a maximum term of imprisonment of 20 years. There is a standard non-parole period for that offence of 5 years. The offence under s 195(1)(b) carries a maximum term of imprisonment of 10 years. The applicant initially pleaded not guilty to both offences but entered pleas of guilty on the day before the matters would have come on for trial. 8 The applicant gave evidence at the sentence hearing that he had no recollection of lighting the fire but that he had accepted, after reading the statements of witnesses, that he must be guilty of the offences. He did not know the woman who owned the house and could think of no reason whatsoever for lighting the fire. It is apparent that the sentencing Judge accepted that evidence. His Honour found that the offence involved no premeditation or deliberation and was "one of foolishness rather than one of any deep seated malice or criminality". 9 The Judge stated that the case did not appear to be a case within the upper range of offences of that kind and that the standard non-parole period did "not appear to be an appropriate measure". However, his Honour did not proceed to make a specific finding as to where the offence fell within the range of conduct caught by s 112(2), that is, whether, and to what degree, the offence fell below the middle of the range of objective seriousness. The Crown concedes that, in failing to do so, the Judge fell into error: R v Van Rysewyk [2008] NSWCCA 130 at [26] per Latham J, Bell J and RS Hulme J agreeing; citing R v Mitchell, R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [25] per Howie J, Giles JA and Fullerton J agreeing. 10 The Judge noted that the applicant had prior convictions for traffic offences including two offences of drink-driving but stated that, with the exception of those matters, the applicant had a negligible criminal history. 11 A report from the New South Wales Department of Corrective Services tendered at the sentence hearing stated that the applicant had been assessed as suitable for both a community service order and a periodic detention order. The Judge formed the view, however, that neither of those sentencing options was appropriate in the present case. The Judge stated: "I might say that if I felt it available to me to arrive at an aggregate sentence of 3 years or less I would strongly favour the opportunity of giving this young man the benefit of periodic detention. Unfortunately, it appears simply to be not available". 12 The Judge determined that the appropriate starting point for the sentence in respect of the offence under s 112(2) (before applying a discount to reflect the utilitarian value of the plea) was 4 years and, accordingly, that he had no power to make an order directing that the sentence be served by way of periodic detention under s 6 of the Crimes (Sentencing Procedure) Act 1999. After applying a reduction of 10% for the plea, his Honour imposed a sentence on the first count of 3 years and 7 months imprisonment. His Honour made a finding of special circumstances, so as to warrant adjusting the statutory ratio of the non-parole period to the balance of term, and fixed a non-parole period of 2 years: see s 44 of the Crimes (Sentencing Procedure) Act. 13 In respect of the second count, the Judge imposed a sentence of 2 years imprisonment. His Honour did not apply a discount to that sentence on account of the plea of guilty and did not fix a non-parole period. After the conclusion of the sentence hearing, the Judge returned to that issue, apparently in the absence of the applicant and his counsel. The Judge asked the Crown whether he should fix a non-parole period for the sentence on count 2. The Crown stated: "Well, there is a non-parole period for the major offence. The other one, your Honour, I think can be a fixed term of 2 years since that is the non-parole period for the major offence".

His Honour then indicated that the sentence passed in respect of count 2 "can be described as 2 years fixed term". 14 The applicant maintained the following grounds of appeal at the hearing (ground 3 was abandoned except as a consequential argument if ground 4 was upheld): " Ground 1 The learned sentencing Judge erred in properly applying the sentencing discount available as a result of the plea of guilty. Ground 2 The learned sentencing Judge erred in failing to assess the objective seriousness of the offence. Ground 3 The learned sentencing judge erred in the approach to the issue of alternatives to full-time detention. Ground 4 The sentence was manifestly excessive." 15 The Court was not persuaded that there was any substance in ground 1. In light of the Court's conclusions in respect of the other grounds, it is not necessary to discuss that ground further. 16 As to ground 2, as already noted, the Crown conceded that the Judge erred in failing to make a specific finding as to the objective seriousness of the offence under s 112(2) of the Crimes Act. That concession did not, on its own, warrant the intervention of this Court. It was necessary first for the Court to assess the objective gravity of the offence by reference to the findings of the sentencing Judge, before turning to consider whether the sentence imposed was appropriate. 17 In our view, in light of his Honour's findings, including the findings that the offence involved no premeditation or deliberation and was one of foolishness rather than malice or criminality, the appropriate finding as to the objective seriousness of the offence was that it was towards the lower end of the range, falling below the middle of the range to a substantial degree. 18 On that basis, in conjunction with the strong subjective case presented on behalf of the applicant, we concluded that the sentence imposed was manifestly excessive. As to the offender's subjective case, the Judge noted that the applicant was a young man with negligible criminal history. The Judge recorded the evidence that the applicant was a responsible employee and found that he had demonstrated an appreciation of the risk that he had caused to others. His Honour found, further, that the applicant had "quite good prospects for the future", a finding well-supported by the evidence. Although the sentencing Judge applied a discount for the plea of guilty, his Honour did not otherwise reduce the sentence, notwithstanding that strong subjective case. 19 In those circumstances, we concluded that a less severe sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912. 20 In respect of count 2, we were of the view that the appropriate term was 6 months imprisonment. The Crown appearing at the sentence hearing stated that the offence was "to some extent subsumed completely in the other offence". There is no evidence of any separate act giving rise to the damage to the telephone cable. 21 As to count 1, in our view, a term of imprisonment of not more than 3 years was appropriate. It followed from that conclusion that the Judge's approach to the question of periodic detention also entailed error, as alleged in ground 3. The remarks of the sentencing Judge set out above disclose that, had his Honour approached his task on that basis, he would have directed that the sentence be served by way of periodic detention. 22 The Court was of the view that an appropriate starting point was three years. The discount of 10% for the guilty plea was appropriate. There should have been some further reduction in the sentence to take account of the applicant's strong subjective case. The appropriate sentence would accordingly have been in the order of 29 months. 23 The ratio of the non-parole period to the total term imposed by the Judge was approximately 60% and in our view that was appropriate, in light of the special circumstances found. On that basis, the appropriate non-parole would have been about 18 months. 24 It is clear that the sentencing Judge considered that it would have been appropriate to order that the sentence be served by way of periodic detention if his Honour had not considered himself precluded from doing so. We also considered it appropriate to make such an order. However, the task of re-sentencing the applicant was complicated by the fact that, when the appeal was heard, the applicant had already served 12 months imprisonment by way of full-time detention. The Court was informed that that would not be regarded, administratively, as the equivalent of 365 days worth of periodic detention. 25 Further, as a consequence of the applicant's having served that period of full-time imprisonment, a periodic detention order cannot now be made, having regard to the terms of s 65A of the Crimes (Sentencing Procedure) Act. That section provides : "A periodic detention order may not be made for an offender who has previously served imprisonment for more than 6 months by way of full-time detention in relation to any one sentence of imprisonment, whether in New South Wales or elsewhere". 26 The applicant has previously served such imprisonment, albeit on a sentence that has now been quashed by this Court. On that basis, it was not open to this Court to pass a sentence that included an order directing that any future portion of the applicant's sentence be served by way of periodic detention. The Court was accordingly faced with the paradox that a period of imprisonment served in respect of a sentence that entailed error has become an impediment to its correction on appeal. The Court concluded that that circumstance was in itself a special circumstance such as to warrant a further adjustment to the ratio of the non-parole period to the total term. On that basis, the Court fixed a non-parole period of 12 months. That period having already been served, the Court directed the applicant's immediate release. 27 The orders made on 26 October 2009 were: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences imposed on 7 November 2008 and in lieu thereof: (a) In respect of count 2, impose a fixed term of six months' to commence on 25 October 2008 and to expire on 24 April 2009. (b) In respect of count 1, non-parole period to commence on 25 October 2008 for 12 months and with a balance of term of 17 months to expire on 24 March 2011. (c) Pursuant to s 50 of the Crimes (Sentencing Procedure) Act direct the immediate release of the applicant/appellant on parole. **********

Hagen v R

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