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[2013] NSWCCA 296
Court of Criminal Appeal (NSW)
2013-10-16
Hoeben CJ, Johnson J, Bellew J
Original judgment source is linked above.
THE APPLICATION FOR AN EXTENSION OF TIME 47In Abdul (supra) this Court said (at [53]): "Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time". 48In the present case the delay is more than 5 years. It is sought to be explained on the basis of a change in applicable sentencing principles following the decision in Muldrock. Although a Muldrock error has been found such that ground 1 is made out, the matter raised by ground 2 is independent of ground 1. No explanation has been forthcoming as to why an appeal based on ground 2 was not brought at an earlier time, particularly in circumstances where his Honour's error was quite clear. In my view, matters of that nature tend against the grant of an extension of time. 49However, the errors in grounds 1 and 2, and the additional error which is apparent in respect of the sentence imposed for count 1, are all material in the sense described in Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83] per Latham J. In these circumstances, and for the reasons explained in Abdul, it is necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether any other sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).
Submissions of the parties 50The submissions of counsel for the applicant relied, to a large extent, upon a comparison of other cases in which sentences had been imposed for the kind of offending found in counts 1 and 2. In addition, counsel relied upon statistics produced by the Judicial Commission of NSW in respect of sentences imposed for such offences. 51In the course of oral submissions, counsel argued that it was evident from his Honour's remarks on sentence that he had intended that the applicant serve a period of his sentence on some form of conditional liberty in view of his addiction to drugs and his unfortunate upbringing. In these circumstances, counsel submitted that if this Court came to re-sentence the applicant, it should adopt a similar approach. 52The Crown submitted that in light of the identified errors in the sentences imposed in respect of counts 1 and 2, lesser individual sentences were required to be imposed. However, the Crown submitted that no lesser overall sentence was warranted. 53The Crown submitted that the offending in counts 1 and 2 was "extraordinarily serious", involving as it did the applicant preying upon children of a young age. The Crown also pointed to the numerous offences of breaking and entering which established a distinct pattern of offending. 54The Crown further submitted that the applicant's addiction to drugs was such that he posed a risk to the community, to the extent that if he were to return to such a lifestyle, re-offending was inevitable. In these circumstances, the Crown submitted that retribution and protection of the community were both important considerations.
Consideration and conclusion 55The offending in count 1, whilst opportunistic, was obviously serious. It involved an unwarranted and unprovoked attack on a young girl who was simply walking home from the beach. The only available conclusion is that the offending ended purely as the result of intervention by a neighbour. Offending of the kind in count 1 is of particular concern for a number of reasons, not the least of which is that members of the community are entitled to expect that they will be able to walk suburban streets in broad daylight without the fear of being attacked, be it sexually or otherwise. 56Perhaps unsurprisingly, the evidence before his Honour on sentence established that the victim of the offending in count 1, who was only 11 years of age at the time, had been psychologically damaged as a consequence of the attack which was perpetrated upon her. His Honour quite properly regarded this as an aggravating factor. 57The offending in count 2 was even more serious, and displayed even greater criminality. The victim was only 5 years old. Immediately prior to the offending she was within her primary school, an environment within which she was entitled to feel safe. The applicant lured her from the confines of that safe environment and sexually assaulted her. The offending, the entirety of which was committed within full view of a number of young school children, concluded with what could only be described as a lurid and sexually explicit act. 58The break and enter offences in counts 3, 4 and 5 were also serious. Offences of that nature have been previously described by this Court as a social evil from which the community looks for protection to the criminal courts (see R v Hayes [1984] 1 NSWLR 740 per Street CJ at 742 and Lee J at 744). The fact that those offences were committed by the applicant by reason of drug addiction does not mitigate them (see generally R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111). 59In addition, when sentencing the applicant in respect of count 5, his Honour took into account twelve other offences, the majority of which were of a similar nature to the offending in that count. 60As I have previously noted, the applicant's written submissions concentrated upon sentencing statistics, along with sentences imposed in cases which were said to be factually similar. Indeed, the written submissions were directed almost exclusively to those matters. In my view, such a significant reliance upon comparative material is problematic. It has been observed, on a number of occasions, that there are limitations upon the extent to which the Court can engage in such comparative exercises, or rely upon statistics (see for example Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54]; Han v R [2009] NSWCCA 300 at [2] (per Campbell JA) and at [34] per Rothman J). The underlying reasons for those limitations include the restricted information provided by statistics as well as the fundamental proposition that the factual circumstances of offending, and the subjective circumstances of an offender, will necessarily differ from case to case. These issues were the subject of observations by Adamson J (McClellan CJ at CL and Rothman J agreeing) in Vandeventer v R [2013] NSWCCA 33 at [45] - [46]: "One cannot adjudge whether a sentence falls in an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive. The sentencing consistency to which the law aspires is, as the High Court said in Hili: ....'consistency in the application of relevant legal principles, not some numerical or mathematical equivalence' ". 61It is, of course, not incumbent upon the applicant to demonstrate that the sentences imposed were manifestly excessive in order to establish that some other sentence is warranted in law. However, Adamson J's observations as to the use of what are said to be comparative cases are directly applicable to the present case, and I gratefully adopt them. 62Because of the nature of the errors in respect of counts 1 and 2, lesser sentences are warranted in law for each of those matters. There have been no identified errors in respect of the sentences imposed in respect of counts 3, 4 and 5 and no lesser sentences are warranted. For the reasons advanced by the Crown, there is a necessity to approach the sentencing of the applicant having regard to the totality of his offending. 63The re-sentencing of the applicant in respect of counts 1 and 2 will necessarily have the effect of shortening the aggregate term of imprisonment. However, I propose that the applicant serve a non-parole period of the same length as that imposed at first instance. In order to give effect to this, adjustments have been made to the structure and starting dates of the sentences imposed in counts 3, 4 and 5, although not to the length of those sentences. 64The end result is that the applicant's aggregate non-parole period will remain the same as that imposed by his Honour, although his aggregate total sentence will be shorter. The sentence I propose reflects the totality of the applicant's offending. 65In re-sentencing the applicant I have had regard to the provisions of s. 54B of the Sentencing Act as amended by Schedule 1[3] of the Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act NSW 2013 ("the Amendment Act"). In particular: (i)I have taken into account the standard non-parole periods applicable to counts 1 and 2 as required by s. 54B(2) (as amended by the Amendment Act); (ii)I have set out above my reasons for the sentences which I would propose be imposed in lieu of those imposed by his Honour at first instance as required by s. 54B(3); (iii)I have indicated the non-parole periods which I consider appropriate in respect of counts 1 and 2 as required by s. 54B(4); and (iv)I have set out above the reasons why I consider those non-parole periods to be appropriate as required by s. 54B(5). 66In addition, in re-sentencing the applicant in respect of count 5, I have taken into account the twelve matters on the Form 1 to which I previously referred.
ORDERS 67For the foregoing reasons, I propose the following orders: (i)the application for extension of time in which to seek leave to appeal against sentence is granted; (ii)leave to appeal against sentence is granted; (iii)the appeal is allowed; (iv)the sentence imposed in respect of count 1 is quashed, and in lieu thereof a non-parole period of 2 years and 10 months, commencing on 11 July 2010 and expiring on 10 May 2013, with an additional term of 11 months expiring on 10 April 2014, is imposed; (v)the sentence imposed in respect of count 2 is quashed, and in lieu thereof a non-parole period of 4 years, commencing on 11 October 2010 and expiring on 10 October 2014, with an additional term of 3 years expiring on 10 October 2017, is imposed; (vi)the sentence imposed in respect of count 3 is quashed, and in lieu thereof a non-parole period of 9 months commencing on 11 October 2009, and expiring on 10 July 2010, with an additional term of 9 months expiring on 10 April 2011, is imposed; (vii)the sentence imposed in respect of count 4 is quashed and in lieu thereof a non-parole period of 12 months commencing on 11 April 2007 and expiring on 10 April 2008, with an additional term of 6 months expiring on 10 October 2008, is imposed; (viii)the sentence in respect of count 5 is quashed and in lieu thereof, having taken into account the matters on the Form 1 signed by the applicant on 7 February 2008, a non-parole period of 18 months commencing on 11 April 2008 and expiring on 10 October 2009, with an additional term of 18 months expiring on 10 April 2011, is imposed; (ix)the applicant is sentenced to an overall non-parole period of 7 years and 6 months, commencing on 11 April 2007 and expiring on 10 October 2014, with an additional term of 3 years expiring on 10 October 2017; (x)the applicant will be eligible for release on parole on 10 October 2014 and his sentence will expire on 10 October 2017.
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: 27 November 2013
Harris
R
Judgment 1HOEBEN CJ at CL: I agree with Bellew J. 2JOHNSON J: I agree with Bellew J. 3BELLEW J: On 21 November 2007 the applicant pleaded guilty to an indictment containing the following counts: (i)on 1 December 2005 did assault SO, and at the time did commit an act of indecency upon SO, she being under the age of 16 years, namely 11 years, contrary to s. 61M(1) of the Crimes Act 1900 NSW (count 1); (ii)on 11 December 2006 did assault SM, and at the time did commit an act of indecency upon SM, she being a child under the age of 10 years, namely 5 years, contrary to s. 61M(2) of the same Act (count 2); (iii)on 25 January 2007 did break and enter the premises of John Westnedge and steal certain property, contrary to s. 112(1) of the same Act (count 3); (iv)on 15 June 2006 did break and enter the premises of Marilyn and Michael Laffey and steal certain property, contrary to s. 112(1) of the same Act (count 4); (v)on 9 January 2007 did break and enter the premises of Irit Markus and Mike Kontorovich and steal certain property, contrary to s. 112(1) of the same Act (count 5). 4The applicable maximum penalties were as follows: (i)count 1 - 7 years imprisonment, with a standard non-parole period of 5 years; (ii)count 2 - 10 years imprisonment with a standard non-parole period of 5 years; (iii)counts 3, 4 and 5 - 14 years imprisonment with no prescribed standard non-parole period. 5On 29 February 2008 his Honour Judge Blackmore imposed the following sentences: (i)as to count 1, a non-parole period of 4 years imprisonment to date from 11 April 2009, with an additional term of 2 years to expire on 10 April 2015; (ii)as to count 2, a non-parole period of 3 years and 6 months imprisonment to date from 11 April 2011, with an additional term of 4 years and 6 months to expire on 10 April 2019; (iii)as to count 3, a non-parole period of 9 months imprisonment to date from 11 October 2007 with an additional term of 9 months to expire on 10 April 2009; (iv)as to count 4, a non-parole period of 9 months imprisonment to date from 11 April 2007, with an additional term of 9 months to expire on 10 October 2008; (v)as to count 5, a non-parole period of 18 months imprisonment to date from 11 April 2008 with an additional parole period of 18 months to expire on 10 April 2011. 6In imposing the sentence in respect of count 5, his Honour took into account twelve other offences contained on a Form 1 which were committed between August 2004 and October 2006. Ten of those were offences of break enter and steal, one was an offence of attempting to break enter and steal and one was an offence of causing malicious damage. 7The overall sentence imposed by his Honour was a non-parole period of 7 years and 6 months, with an additional term of 4 years and 6 months. The applicant will be eligible for release on parole on 10 October 2014. 8The applicant seeks an extension of time in which to seek leave to appeal against the sentences imposed. The background to that application is set out in an affidavit of the applicant of 18 September 2013, along with an affidavit of Jasmine Stanton, solicitor, of the same date. 9The applicant filed a Notice of intention to appeal against sentence on or about 5 June 2008. A subsequent application for legal aid was refused and for that reason, the proposed appeal did not proceed. The applicant conferred with Ms Stanton on 18 November 2012. At that time he was informed that the sentence imposed upon him had been reviewed to determine whether there was a so-called "Muldrock error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, so-called "Muldrock errors". 10Following the conference with Ms Stanton on 18 November 2012, counsel was briefed and a Notice of application for leave to appeal was filed on 29 July 2013. 11The Crown has opposed an extension of time.
The approach of the sentencing judge 33At ROS 11, his Honour said the following: "There is a standard non-parole period of five years for the commission of (the offence in count 1). It was submitted that the plea of guilty here removes it from the mid range of objective seriousness such that the standard non-parole period should not be applied. I am of the view that the facts make it clear that the offence falls within the mid range of objective seriousness, but I accept that with the plea in this case there is no need for the imposition of the standard non-parole period. Of course the standard non-parole period remains as a guide as to the sort of non-parole period that should be applied in this case (see R v AJP [2004] NSWCCA 434 at para 13). 34When dealing with the offending in count 2, his Honour said (at ROS 12): "Again this offence carries a standard non-parole period, in this case it is eight years. In my view this offence falls towards the top of the range of seriousness. Given the guide provided by the standard non-parole period, the non-parole period here must be substantial. Having said that the figure of eight years as a standard non-parole period in this case is a somewhat difficult one to reconcile with the maximum penalty of ten years for this offence".
Consideration and conclusion 37Taken in isolation, his Honour's use of the term "guide" in reference to the standard non-parole period may tend against a conclusion that he gave the standard non-parole period primary or determinative significance (see Aslett v R [2012] NSWCCA 235 at [35]). However, in determining whether error has been established, his Honour's reasons must be read as a whole (see Essex v R [2013] NSWCCA 11 at [30], citing Aldous v R [2012] NSWCCA 153 at [2] and Zreika v R [2012] NSWCCA 44 at [43]). 38When sentencing the applicant in respect of count 1, and prior to his use of the term "guide", his Honour had effectively concluded that he should depart from the imposition of the standard non-parole period because of the plea of guilty. Although he did not expressly state that he was adopting that same approach in respect of count 2, it is to be inferred that he did so. Such an approach was a two stage one, in which his Honour, having cited the standard non-parole period, determined that he should depart from it for a specific reason. Having regard to the decision in Muldrock, that approach was reflective of error. 39Moreover, such an approach was not saved by his Honour's reference to the standard non-parole period being a guide. It is impossible to ignore what preceded his Honour's use of that term. 40For these reasons ground 1 is made out.
(2010) 242 CLR 520
(2011) 244 CLR 120
(1999) 46 NSWLR 346