Supreme Court of Tasmania|1998-02-03|Before: Crawford JJ, Underwood J, Wright J

Harland-White v R [1998] TASSC 1 (3 February 1998)

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Sentencing tariff - Duty to exercise independent discretion - Level of sentencing only one factor in the proper exercise of the discretion.

R v Nixon (1993) 66 A Crim R 83; ; ; ; , applied.

REASONS FOR JUDGMENT C****OURT OF CRIMINAL APPEAL

This is an appeal against a sentence of three years' imprisonment imposed on the appellant upon a plea of guilty to one count of burglary and one count of stealing. The appellant acquired some oxyacetylene cutting equipment and, with the help of another man, took this equipment to the Launceston General Hospital. The co-offender remained outside the hospital and waited. The appellant climbed up some scaffolding that was in place at the hospital in connection with some building work that had to be done. On gaining entry to the hospital through the roof, the appellant went to the pharmacy and cut open three safes. From these safes, the appellant removed a large quantity of drugs, mainly narcotics. The learned sentencing judge was told that the "street value" of these drugs was in the order of $250,000. There was a dispute at the sentencing hearing as to whether the appellant intended at the time he committed the crimes to sell any part of the stolen drugs. The learned sentencing judge made it clear at the time he passed sentence that he accepted that the appellant was addicted to narcotic substances. He said that it was not necessary to make a positive finding "that commercial gain was the primary motive behind the burglary". The learned sentencing judge found that the appellant "planned and prepared for the burglary in a professional manner". His Honour accepted that at the time of the taking, the appellant did not intend to sell the drugs, but quite properly took into account that having regard to the quantity involved, there was a substantial risk that some of them could find their way onto the street.

The appellant was a mature man, aged 32 at the time these crimes were committed. He had quite a substantial record of previous convictions. His first conviction was in 1977 when he was 14 years of age. Despite the length of his record, the appellant has only appeared in a court and been convicted of offences of dishonesty four times, once in 1977, once in 1979, once in 1989 and once in 1996. The penalty imposed on the last occasion indicates that that was a relatively trivial offence. The majority of the appellant's convictions are for offences of violence and for offences involving drugs. He has seventeen previous convictions for assault as well as a considerable number of convictions that appear to involve the use of cannabis. On three occasions the appellant was sentenced to short terms of imprisonment to take immediate effect. The appellant spent most of his formative years in institutions and became addicted to drugs at an early age. In his comments on passing sentence, the learned sentencing judge said that the appellant had developed a substance abuse problem with varying degrees of addiction as a consequence of a number of traumatic experiences in his life. On several occasions during his life the appellant stopped using narcotics. His counsel told the learned sentencing judge that the appellant was not using narcotics in 1993 when he went to live in Launceston, but he starting using them again in 1995 as a result of his contact with another user of narcotics, one Jeffrey Foggo. After the commission of the burglary and stealing that is the subject of this appeal, there was a disagreement between the appellant and Foggo in the course of which the appellant assaulted Foggo. With respect to this incident, the appellant was convicted of four counts of assault and sentenced to eight months' imprisonment to date from 18 October 1996. This Court subsequently increased this term to eighteen months' imprisonment. Accordingly, when he appeared for sentence on these matters on 12 May 1997, the appellant had served almost seven months of that sentence, leaving eleven months to serve. The sentence presently under review was ordered to start at the expiration of the other sentence.

The notice of appeal, as amended, relies on eight grounds. It appears that the notice of appeal was prepared by the appellant himself and some of the grounds are repetitious. The appellant argued his own appeal with considerable skill. There is no substance in the grounds of appeal that complain that there was unjustifiable disparity between the sentence imposed on the co-offender and the sentence imposed on the appellant. No comparison can be drawn between the two offenders. With respect to the roles played by the appellant and the co-offender, the learned judge who sentenced the co-offender said this in part:

"It seems to me that it cannot really be said that he was keeping watch at that time at all, but was simply waiting. During the time he did wait, the other offender cut open three safes in the pharmacy and removed a substantial quantity of drugs in bags. The accused subsequently helped to carry the bags away from the hospital and they hid them in the bush some short distance away, collected their vehicle, picked up the drugs in the bags and travelled to the Rocherlea area to an area of bush where, after sorting out what had been stolen, the other offender hid most of it."

That material was before the learned judge who sentenced the appellant. Further, there is great disparity between the ages of the appellant and the co-offender, the former was, as mentioned, 32 at the relevant time and the latter was 20. In addition, there is a substantial difference between the criminal histories of the two offenders. Finally, the co-offender pleaded guilty at an early stage and offered co-operation in the prosecution of the appellant. I am well satisfied that the appellant and his co-offender are not comparable offenders and, accordingly, there is no room for the application of the parity principle.

A ground of appeal which was added to the original notice of appeal alleges error in the learned sentencing judge's finding that the value of the drugs stolen amounted to approximately $250,000 "street value". As argued, the complaint was not against that finding of fact but against the learned trial judge referring to the "street value" of the drugs, rather than referring to the replacement value. No such error is known to law. It was not suggested that the expression used by his Honour led to error in the sentence itself, and although reference has been made to the replacement value of drugs in other cases, that does not mean that in this case a reference to the "street value" was an error of law or fact.

Ground 5 of the notice of appeal, as drawn, alleges error in the failure to obtain a pre-sentence report. It is well established that such failure itself is not a ground of appeal. However, error will be established if sentence is imposed on inadequate materials, in the sense that the materials on which sentence was passed were insufficient to enable the learned sentencing judge to properly consider all the factors he ought to have considered. See Conlon v Arnol 56/1969; Suckling v Ling 27/1973; Rigby v Dillon 56/1984. This was not the case here. Counsel for the appellant in the court below gave the learned sentencing judge very detailed information concerning his background and personal circumstances. A psychologist's report was tendered. In these circumstance there was no obligation, as may have been suggested by the appellant in argument, for a sentencing judge to do investigative work and call for any other reports. No error is established with respect to this ground.

The remaining grounds of appeal are, in effect, subsumed in ground 1 which alleges that the sentence of three years' imprisonment was manifestly excessive. A complaint under this general ground was that the learned judge failed to give a sufficient discount for the appellant's plea of guilty. The learned sentencing judge said this with respect to the appellant's plea of guilty:

"Minor allowance is afforded the making of a plea of guilty. The offender was interviewed on 3 February 1996 and declined to answer questions. He was charged and elected to contest a committal order. On 23 October 1996, he was committed for trial and an indictment was filed on 12 November. The proposed plea was notified shortly before the commencement of the sentencing hearing on 15 April 1997. Some allowance is afforded for the saving of time, although it is lessened by the withdrawn challenge to facts and the fact that there existed a good case against him. No time in custody has been served with respect to these proceedings."

The appellant did not challenge the accuracy of the factual statements set out above. The learned sentencing judge's expression of opinion with respect to the mitigatory weight of the plea of guilty in this case was in accordance with the law as recently expounded by this Court. See Hyland v R A82/1996. In argument, the appellant pressed the proposition upon us that the Crown case was not strong because the co-offenders had been coerced into making their statements and therefore their evidence would not be admissible or, alternatively, of little weight. Of course, coerced evidence would not have the same weight as would evidence that had not been the result of coercion but such evidence is nonetheless admissible. It is not clear to me on the material before the learned sentencing judge that the principal evidence against the appellant was obtained by coercion. For my part, I am far from satisfied that, at the end of the day, the evidence against the accused was not quite strong and accordingly, I see no fault with the learned sentencing judge's proposition that "there existed a good case against [the appellant]".

A review of the sentences passed in this Court on single counts of burglary show that this sentence is outside the range or "tariff". However, there is no rule of law that requires a sentence to fall within the range of sentences previously imposed for any particular crime. The sentencing discretion is unfettered by statute. The only requirement of the common law governing the exercise of that discretion is that all the relevant considerations must be taken into account and all irrelevant considerations must be excluded. A relevant matter is that there must be consistency in punishment. (Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610 - 611). Punishment is imposed for criminal conduct in the commission of a crime or crimes. The seriousness of the conduct is more important than the name of the crime or crimes committed by such conduct. See R v Williscroft [1975] VicRp 27; [1975] VR 292 at 299; R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 185. Of course, the range of sentences passed for similar crimes is a relevant matter but no so-called "tariff" should be applied inflexibly. Any standard range is intended to accommodate the "ordinary run" of cases but that does not mean that sentence for the same crime must always fall within the range, for that overlooks the importance of the criminal conduct in each case. In this respect I would adopt the following passage from the judgment of Cox J in R v King (1988) 34 A Crim R 412 at 414 - 415. It was subsequently approved by a differently constituted Court of Criminal Appeal (SA) in R v Nixon (1993) 66 A Crim R 83 at 88 - 89:

"In a word, this case is about sentencing standards, but it is important, I think, to bear in mind that when a standard is created, either by the cumulative force of individual sentences or by a deliberate act of policy on the part of the Full Court, there is nothing rigid about it. Such standards are general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases. The terms of approximation in which such standards are usually expressed - 'about' and 'of the order of' and 'suggest' and so on - are not merely conventional. The same notion must qualify, in my opinion, any inclination to apply the policy of s302 in a purely mechanical way. It follows that a particular sentence will not necessarily represent a departure from the standard because it is outside the usual or nominal range; before one could make that judgment it would be necessary to look at all of the circumstances of the case. Those circumstances will include, but of course not be confined to, the questions whether or not the offences charged are multiple or single and whether the defendant is a first offender with respect to the particular crime charged. That is not to undermine the established standard but simply to acknowledge that no two cases, not even two 'standard' cases, are the same."

This Court has previously said that the "tariff" is but one factor to be taken into account in the proper exercise of the discretion. See Devine v R (1993) 2 Tas R 458 at 468; Smart v R A43/1995. Although the appellant was only convicted of one count of burglary and one count of stealing, the number of offences does not reflect their gravity. The commission of these crimes was premeditated and planned. They were quite different from the burglary and safe breaking of a commercial property in order to steal money. The Launceston General Hospital is a public institution maintained to alleviate injury, sickness and suffering. Central to its public function is the administration of drugs under medical supervision. The appellant's crimes attacked the core of the hospital's security. The appellant risked causing harm to those in the hospital who may have needed the stolen drugs for medical treatment. The crimes were likely to raise alarm in the general public, already alarmed at the incidence of crime associated with the use of illicit drugs. The quantity of drugs stolen was very large and the risk of them becoming available to those not already users of narcotics was not inconsiderable. These are the circumstances that take the appellant's crimes out of the "run of the mill" crimes involving burglary and stealing and outside the "tariff" for such crimes.

There was little to say by way of mitigation. The learned sentencing judge clearly took into account material in the report of Dr J von Bamberger to the effect that the appellant suffered from a chronic post-traumatic stress disorder and that there were indications that the treatment he was undergoing in order to overcome the effects of that disorder were beginning to show some prospects of success. The report does not suggest that the post-traumatic stress disorder caused the commission of the crimes. The circumstances of the appellant's crimes were such that, in the sentencing process, the personal circumstances of the offender had to give way in large measure to the need to impose a sentence that will act as, and be seen to act as, a general and personal deterrent. In my opinion, the sentence of three years' imprisonment is not manifestly excessive.

The learned sentencing judge was required to, and did, have regard to the totality principle. He had to take into account the fact that at the time of sentence the appellant was already serving another sentence and that there remained eleven months of that sentence to serve. The task of the learned sentencing judge was to "ensure that [the appellant] is not subjected to a 'crushing sentence' not in keeping with his record and prospects" per Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 145 ALR 408 at 413. In my opinion, having regard to the enormity of the appellant's carefully planned criminal conduct, a sentence of three years' imprisonment to be served at the expiration of the sentence the appellant was and is serving reflects no error in the exercise of the judicial sentencing discretion.

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

These were crimes of a very special kind. They were well planned and involved an attack upon an essential public utility by a mature offender. The appellant opened three safes and stole the contents. Safe breaking has always been placed in a special category of seriousness by the courts. See, eg, R v Paget and Wells, 64/1989 (CCA). The appellant's drug dependency goes some way towards explaining his conduct, but it is by no means an excuse for what he did. Drug dependency is responsible for a vast amount of dishonest crime these days. To seek to excuse criminal conduct because of such a condition is facile nonsense.

It is difficult to make any sensible comparison between this and other offences of burglary and stealing. Yet, insofar as it is possible, it is necessary for the Court to do so, as it has been submitted by the appellant that the sentence imposed was manifestly excessive. This crime is not really comparable to a house breaking in which a television set, a video cassette recorder, white goods, or an amount of cash, is stolen. These are by far the most common types of burglary to come before Tasmanian Courts at the present time. Nor is it comparable to a burglary of commercial premises where equipment or goods of modest value have been taken. Offences of this kind are also reasonably common. In the present case, no violence was actually offered to any person, but the appellant has convictions for violence and his presence on the hospital premises occurred over such a period of time and in such circumstances that had he been detected by hospital staff, a risk of violence must have been present. The fruits of the criminal enterprise, whilst perhaps unexpected, were of very significant value. These were major criminal offences likely to cause public apprehension, both as to the vulnerability of the hospital, and also as to the potential release of dangerous substances into the public arena. Furthermore, the hospital's deprivation of these drugs could have created problems in the treatment of seriously ill patients.

The appellant has invited us to consider the range of sentences actually imposed by the Court in recent years, in the expectation that by so doing we shall conclude that the sentence imposed upon him is out of range and should be reduced accordingly. The appellant correctly pointed out that there have been cases in which repeat offenders have committed multiple burglaries in which property of substantial value has been stolen and yet, the global sentence imposed on the relevant indictment, charging perhaps a dozen or more offences, has not exceeded three years' imprisonment. However, in considering such cases, it is as well to remember that the totality principle will often play a large part in determining the way in which they are disposed of.

In Viney v R 8/1969 the appellant, who had three prior convictions for breaking and entering with intent to steal and three for stealing, was convicted of breaking and entering a golf club with intent to steal, and stealing liquor, chocolates and cigars, with an approximate value of less than $30. He was sentenced to four years' imprisonment by Crisp J. He appealed to the Court of Criminal Appeal and on 12 March 1969, his sentence was reduced to one of two years. In the course of its unanimous judgment, the Court of Criminal Appeal made the following observations:

"The learned trial judge was perfectly entitled for the reasons he gave to regard the crimes as deserving of a substantial term of imprisonment. But with respect, we take the view that a sentence of four years for this particular case of club breaking was manifestly excessive. It was one criminal enterprise and the value of the goods stolen was comparatively small. We would infer from the evidence that the value of the goods stolen was less than $30. The main purpose of the Appellants in breaking into the premises appears to have been to obtain liquor. But we cannot regard this as such a serious case of breaking and entering as to justify a sentence of four years. The circumstances of this type of crime and of those who commit vary infinitely, and a judge who is called upon to determine the appropriate sentence in a particular case has a wide measure of discretion. Our concern in the present case is that a sentence of four years too closely approximates sentences imposed for very serious cases of shopbreaking or office-breaking involving careful planning where large sums of money or very valuable goods are stolen or where safe-blowing or violence is involved or where multiple crimes of this kind have been committed by one offender. It is not for this Court to fix anything in the nature of a tariff or to attempt to prescribe maximum sentences where the Legislature has not done so. But it is the duty of the Court to ensure that within very wide limits sentences for various classes of crime conform to a broad pattern or standard. We take the view that the sentence of four years is disproportionate to the seriousness of this particular case of breaking and entering and of stealing in comparison with others of the kind to which we have referred." [My emphasis.]

These observations are as valid today as they were at the time at which they were made and they emphasise that even with a comparatively short record of dishonesty, a substantial term of imprisonment is appropriate for an offender who commits crimes of serious dishonesty such as those committed by the appellant.

The appellant also referred to Professor Warner's excellent book Sentencing in Tasmania and drew attention to the sentencing range in respect of burglary and stealing discussed in par12.806 et seq. In par12.808, the learned author says:

"The decisions of the Court of Criminal Appeal in Donaldson, Hrvojevic and Prestage indicate that it regards sentences of 2 years as the upper end of the range for one incident of burglary and stealing."

With all respect, I think that this proposition is misleading, as the three cases mentioned involved appeals by prisoners who were claiming that sentences actually imposed upon them were manifestly excessive. To dismiss the appeals as was done in Donaldson and Hrvojevic, does not imply that the Court of Criminal Appeal considered that the sentences actually imposed were at the upper end of the appropriate range. In Prestage, although the sentence was reduced, this was on the basis that it was out of parity with a co-offender, not on the basis that it was, in itself, excessive or at the top end of a permissible range. In my opinion, the cases referred to do not support the notion that two years' imprisonment is near the limit of a proper sentence for such offences.

A perusal of sentencing records kept since the publication of Professor Warner's book in 1991, discloses that within the last six years there has not been a sentence of three years or over in respect of any burglary and stealing conviction in this State. Superficially that suggests that a sentence of three years may be out of range, but closer inspection of the data fails to disclose any offences which are comparable in gravity to those of which the appellant was convicted. It therefore cannot be said that there is any perceived tariff or even range which is directly relevant to crimes of this particular kind at the present time. In my opinion, the sentence of three years' imprisonment imposed upon the appellant was not manifestly excessive as is alleged in ground 1 of the appeal.

As to the remaining grounds of appeal, I agree with the reasons published by my learned brother Underwood J and cannot usefully add anything. I would dismiss the appeal.

The appellant was sentenced to three years imprisonment upon his plea of guilty to one count of burglary and one count of stealing, the sentence being imposed cumulatively on a sentence of eighteen months imprisonment for crimes of violence then being served by him. The only ground of appeal which has troubled me is the first, which complains of manifest excessiveness in the sentence. Upon reading the appeal book my immediate reaction was to conclude that the sentence was utterly justified. It is a very bad case of burglary and stealing, I would think the worst of the many which have come before me for consideration. It was only upon the appellant drawing to the Court's attention the fact that the sentence was higher than any other sentence for a single count of burglary and stealing which has been imposed in recent years, that I paused to reflect upon whether my immediate response to the magnitude of the sentence was an appropriate one.

There is no doubt that the sentence was very high for a single episode of burglary and stealing. Sentencing records reveal that eighteen months imprisonment is high for a single episode. The highest sentence imposed in the last fifteen years that I have been able to discover, was one of two years imprisonment for burglary and stealing from a fish factory. There is therefore no doubt that for the sentence of three years imprisonment to be justified this must be regarded as a special case, one so serious as to justify a sentence of imprisonment of such severity. But this was a particularly bad case, one involving burglary late at night of a hospital, a public institution dedicated to the treatment of the sick and injured, breaking into three safes there and stealing a considerable quantity of drugs, mainly narcotics, intended for the treatment and alleviation of the suffering of those in pain or otherwise in need of them. The street value of the drugs was substantial, about $250,000, and there can be little doubt that many of them would have found their way to other persons with harmful consequences. Involved was a professionally planned and executed criminal enterprise carried out by two men, the ring-leader and principal offender being the appellant, who at the age of thirty-four years, has a substantial record of convictions for crimes and offences of violence and dishonesty and offences involving drugs.

These crimes require condemnation. They are possibly the worst examples of burglary and stealing to come before a Tasmanian court for many years. It was plainly within the discretion of the sentencing judge to impose a very long sentence of imprisonment, an unusually long one, to signify the level of concern and condemnation the public reasonably would want expressed in a case such as this. The conclusion I have therefore reached is to keep to the reaction with which I started, that the sentence was fully justified and the punishment appropriate. It was not manifestly excessive.

I respectfully agree with the reasons for judgment of the learned President concerning the other grounds and with the conclusion that the appeal should be dismissed.

Harland-White v R [1998] TASSC 1

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Judgment (36 paragraphs)

Harland-White v R [1998] TASSC 1 (3 February 1998)

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