Court of Appeal (ACT)|2015-03-20|Before: Murrell CJ, Penfold and Ross JJ

Heard v The Queen [2015] ACTCA 6 (20 March 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL - GENERAL PRINICPLES - sentence manifestly excessive - burglary - obtaining property by deception - receiving stolen property - riding in a stolen motor vehicle

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Eacott v Western Australia [2009] WASCA 112

EG v The Queen [2012] ACTCA 17

Fusimalohi v The Queen [2012] ACTCA 49

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hinchcliffe v The Queen [2010] NSWCCA 306

House v The King [1936] HCA 40; (1936) 55 CLR 499

Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295

Love v The Queen [2012] ACTCA 8

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Flowers [2014] ACTCA 13

R v Hutchinson [2014] ACTCA 29

R v Thorn [2010] ACTCA 10

Simonds v The Queen [2013] ACTCA 13

Tazelaar v The Queen [2009] NSWCCA 119

1. On 26 July 2013 the appellant pleaded guilty to 19 counts of various dishonesty offences relating to 8 separate incidents which took place between 30 May 2012 and 27 June 2012. The 19 counts were as follows:

• Ten counts of obtaining property by deception pursuant to s 326 of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty was 10 years' imprisonment and/or a fine of $110,000.

• Six counts of receiving stolen property pursuant to s 313 of the Criminal Code. The maximum penalty was 10 years' imprisonment and/or a fine of $110,000.

• Two counts of riding in a stolen motor vehicle pursuant to s 318 of the Criminal Code. The maximum penalty was five years' imprisonment and/or a fine of $55,000.

• One count of burglary pursuant to s 311 of the Criminal Code. The maximum penalty was 14 years' imprisonment and/or a fine of $154,000.

2. The facts relating to each of the 19 counts are set out in the sentencing remarks of Burns J (the sentencing judge) and are not in dispute.

3. Count 1 occurred on 30 May 2012 when the appellant purchased some items of relatively small value (a pack of cigarettes and a Telstra recharge voucher). The purchase was made with a credit card which he did not have permission to use.

4. The burglary (count 2) occurred at about 5:15am on 3 June 2012 when the appellant entered a residential address in Campbell. An occupant of the residence was at home. There was a confrontation, during which the occupant attempted to apprehend the appellant and a struggle ensued. The appellant broke free and ran from the premises.

5. In the early hours of 17 June 2012 an unknown person entered premises in Deakin and stole a number of items, including credit cards and drivers licences. The unknown person gave the stolen items to the appellant, who knew that the items had been stolen (count 3). The appellant dealt with the stolen items in various ways which constituted counts 4 - 6:

• He used one of the stolen credit cards to purchase goods to the value of $60.30 from a 7/11 store (count 4).

• He used one of the stolen credit cards to purchase goods to the value of $46.25 from McDonalds outlet in Braddon (count 5).

• He took a number of stolen items (including a Cannon digital camera and two Cannon digital lenses and a charger) to a Cash Converters store in Belconnen and received $150 in exchange for the stolen property (count 6).

6. In the early hours of 17 June 2012 an unknown person entered premises in Forrest and stole a number of items, including credit cards and the keys to an Audi TT Quattro. The unknown person then drove the Audi and picked up the appellant, who got into the vehicle and rode away in it (count 7). Sometime later, the unknown person gave the appellant the items stolen from the Forrest premises. The appellant knew that the items were stolen when he received them. (count 8).

7. Count 9 involves receiving stolen property. Late on 26 June 2012 or early on 27 June 2012 an unknown person entered premises in Kingston and stole a number of items, including items of value and also items of personal significance. Sometime later, the unknown person gave the appellant the items that had been stolen from the Kingston premises. The appellant knew that the items were stolen at the time that he received them (count 9).

8. Late on 25 June 2012 or early on 26 June 2012 an unknown person stole items from premises in Turner. The stolen items included a brown leather wallet containing various credit cards; a handbag containing a green wallet in which there was cash and credit cards; a gift card and movie vouchers. Later, the unknown person gave the appellant the items stolen from the Turner premises. The appellant knew that the items were stolen at the time that he received them (count 10). The appellant used one of the stolen credit cards to make purchases. These purchases constituted counts 11 - 15:

• Purchase of items to the value of $21.25 from a McDonalds outlet (count 11).

• Purchase of various items from a Coles Express store. The total value of the goods purchased was $106.90 (count 13).

• Purchase of items to the value of $87.49 from a Woolworths petrol station (count 14).

• Payment of a further taxi fare in the sum of $16.65 (count 15).

9. In sentencing for these offences, the sentencing judge took into account that each of these transactions was of relatively little value.

10. Late on 26 June 2012 or early on 27 June 2012, an unknown person entered premises in Barton and stole items including a credit card. Later, the unknown person gave the appellant the items that had been stolen from the Barton premises. The appellant knew that the items had been stolen at the time that he received them (count 16). The appellant used the stolen credit card to purchase goods valued at $16.25 from a McDonalds outlet (count 17).

11. Late on 26 June 2012 or early on 27 June 2012, an unknown person stole items from premises in Griffith. The stolen items included a set of keys to a Toyota Corolla sedan. The unknown person then drove the Corolla and picked up the appellant, who got into the vehicle and rode away in it (count 18). Later, the unknown person gave the appellant the items that had been stolen from the Griffith premises. The appellant knew that the items were stolen at the time that he received them (count 19).

12. The appellant was apprehended on 27 June 2012 and has remained in custody since that time. The matter was committed for trial on 21 February 2013. On 20 June 2013 it was indicated to the Court that the matter had been resolved. The appellant was arraigned on 26 July 2013 and entered pleas of guilty.

13. The sentencing hearing took place on 19 September 2013. The following material was tendered in the sentencing proceedings:

• Pre-sentence report (PSR) dated 13 September 2013

14. The PSR dealt with the appellant's subjective circumstances. It detailed a childhood marred by neglect and abuse, with limited engagement in the school system. The appellant spent his formative years in and out of foster accommodation and the NSW correctional system.

15. As to the appellant's criminal history and compliance with ACT Corrective Services the PSR stated:

Mr Heard has a lengthy and undesirable criminal history, with convictions in NSW, SA and QLD and now in the ACT. The offender's criminal history is composed of numerous property, possess weapon and assault charges...

Mr Heard has received sentences of Good Behaviour Orders, fines, suspended sentences and custodial sentences. Mr Heard's criminal record indicates a history of breach action, both failing to adhere to Court ordered conditions and committing further offences during good behaviour periods.

Known to ACT Corrective Services since June 2012, the offender has developed a pattern of refusing to attend appointments with mental health, health, education and has received several warnings and discipline whilst in custody.

16. The appellant told the author of the PSR that he used the money obtained from committing these offences "for accommodation and food rather than to support his own drug use". As to the appellant's insight into his offending, the PSR stated:

The offender expressed little insight into the effects upon the victims and stated 'I didn't think at all' about what he was doing, simply focussing on the need to have finances available to him. He acknowledged it was 'no one else's fault but my own' and believed the past year in custody had given him the appropriate time to reassess his life.

17. The assessment of the author of the PSR was in the following terms:

A 29 year old man, Mr Heard spent his formative years in and out of foster care accommodation and the NSW correctional system.

Despite a lengthy criminal history, composed primarily of theft and burglary charges Mr Heard advised his current offences were committed for financial gain rather than motivated by any illicit substance use.

Assessed throughout his numerous periods in custody, the offender seems to have been treated irregularly for mental health concerns since his late teenage years. However, he acknowledged his uncertain commitment to continuing recommended treatment whilst in the community.

Mr Heard has been assessed as a high risk of re-offending. If the offender can secure stable accommodation, find employment and comply with appropriate mental health and illicit drug treatment his risk of re-offending may be reduced.

18. In his sentencing remarks, the sentencing judge set out the facts and addressed the various considerations which had to be taken into account in determining the sentences to be imposed, including:

(c) The appellant's "very significant criminal history" which disentitled the appellant to any leniency in the proceedings. However, the sentencing judge also took into account the fact that, in more recent years, the appellant's "criminal history seems to have reduced in frequency", apparently coinciding with a period during which he was employed.

(d) The appellant's subjective circumstances: including that the appellant was a 29 year old indigenous man whose childhood was marred by neglect and abuse. The sentencing judge noted:

You were taken from your mother's custody when you were nine, and thereafter, you had unsettled accommodation including a period of time when you were living on the streets.

His Honour also noted the appellant's use of illicit drugs. He first used cannabis when he was 13 years of age and commenced use of methylamphetamine two years ago. It was also noted that the appellant told the author of the PSR that he committed the subject offences for financial gain rather than to gain money to obtain drugs.

(e) Personal deterrence: given the appellant's previous criminal history the sentencing judge considered that personal deterrence was "an important sentencing consideration with respect to these offences".

(f) General deterrence: the sentencing judge noted that general deterrence was an important sentencing purpose and, in particular:

Receiving stolen goods is a serious offence. Without those willing to receive stolen goods, there would be less incentive for burglars and thieves to commit their offences.

(g) Prospects for rehabilitation: the sentencing judge observed that at the present time the appellant's prospects for rehabilitation "are not particularly good, although it is not a case where one can ignore the question of rehabilitation entirely".

(h) The guilty pleas, although not early pleas demonstrated some limited remorse and had significant utilitarian value. On that basis, the sentencing judge decided that a 15% reduction in sentence was appropriate.

(i) Totality: the sentencing judge noted that the application of the principle of totality:

...necessitates significant concurrency being granted with respect to a number of these sentences. The ordinary principles relating to the concurrency also require a significant degree of concurrency to be imposed with respect to these offences.

19. His Honour sentenced the appellant to a total effective sentence of six years and four months' imprisonment with a non-parole period of three years and 10 months' imprisonment.

20. The appellant has appealed against the sentences.

(a) That the sentence imposed and, in particular, the non-parole period is "manifestly excessive". That is, the sentencing judge made an error of the last kind mentioned in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. It was submitted that it could be inferred from the result that there was a "failure to properly exercise the discretion which the law reposes in a court of first instance".

(b) That the sentencing judge erred in characterising the appellant's guilty plea as a late plea. It was submitted that the appellant was entitled to a discount of 25% on the sentence, as opposed to the 15% discount that his Honour applied.

22. It is important to appreciate that the appellant's complaint is not about the individual sentences that were imposed but about the severity of the total effective sentence.

23. It is convenient to begin by examining the sentences that were imposed. The individual sentences imposed, and the effect of the sentencing judge's decisions as to accumulation and concurrency, are set out in the table below.

24. The structure of the sentence imposed by the sentencing judge contained a substantial degree of concurrency in relation to the individual sentences. This structure moderated the total effective sentence that was imposed. Hence the sentences imposed for count 3 (17 months' imprisonment for receiving stolen property) and for counts 1, 4, 5 and 6 (sentences of two or three months' imprisonment for obtaining property by deception) are effectively subsumed within the sentence imposed for the burglary count (count 2). Similarly, there was a degree of concurrency in relation to the other five counts of receiving stolen property. Although sentences of 17 months' imprisonment were imposed in respect of each count, the orders relating to the start and finish dates of those sentences resulted in an effective sentence of three years and one month's imprisonment (i.e. from 27 July 2015 to 26 August 2018). It would have been an effective sentence of seven years and one month's imprisonment had the individual sentences been cumulative. Further, the sentences relating to six counts of obtaining property by deception and one count of riding in a stolen motor vehicle were effectively subsumed within the sentences imposed for the receipt of the stolen property.

25. It is apparent from the structure of the sentences imposed by his Honour that the sentences imposed in respect of the burglary offence (count 2) and the six counts of receiving stolen property (counts 3, 7, 9, 10, 16 and 18) are central to the determination of the total effective sentence. Accordingly, it is appropriate to consider those sentences in some detail.

26. In respect of the burglary offence, it is important to observe at the outset that the maximum penalty for this offence is 14 years' imprisonment, a fine of $154,000, or both. The maximum penalty is a relevant sentencing consideration, as the plurality stated in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31]:

...careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

27. Of course an assessment of whether the sentence imposed was manifestly excessive necessitates an examination of all the relevant circumstances, not just the maximum penalty. This Court has considered current sentencing patterns in relation to the offence of burglary in a number of recent judgments: see Fusimalohi v The Queen [2012] ACTCA 49 and R v Hutchinson [2014] ACTCA 29.

28. In Fusimalohi the offender had been sentenced to an aggregate term of imprisonment of seven years and four months for a series of offences of dishonesty, primarily burglary and theft, which had occurred between April 2007 and February 2008. The schedule to the reasons shows one count of aggravated burglary, six counts of burglary, eight counts of theft and one count of possessing house-breaking articles. After disposing of one ground of appeal which involved an alleged error of fact, the majority (Burns and Lander JJ) considered the submission that the sentences were manifestly excessive. In so doing, their Honours referred to a number of comparable sentences referred to by the parties. Their Honours explained the factors which affected the comparability of those cases. In R v Thorn [2010] ACTCA 10 the offender had "significant mental health issues"; in Love v The Queen [2012] ACTCA 8 the offender's judgment was impaired by serious physical injury; and in EG v The Queen [2012] ACTCA 17 the offender was younger than Fusimalohi, had no relevant prior criminal history as an adult and had good prospects of rehabilitation

29. The majority in Fusimalohi at [15] concluded that the relevant sentences were not, either individually or in aggregate, manifestly excessive:

None of these cases suggest that the sentences imposed upon the appellant, either individually or in aggregate, are manifestly excessive. These cases simply underline the proposition that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender. The fact that other offenders have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive.

30. In a separate judgment, Refshauge J at [49]-[52] agreed that the sentences were not manifestly excessive and made the following observation about current sentencing patterns in relation to the offence of burglary:

To determine what "the collective wisdom of judges" actually is can be difficult in the case of a single offence, but where there are multiple offences, different almost always in nature and circumstances, it becomes almost impossible to find useful comparisons.

Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.

These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.

Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were present in the premises and the offender's antecedents may all require a more severe sentence. There will be also other aggravating factors.

31. Refshauge J's findings with respect to the range of previous sentences for burglary were not subject to comment by the majority. However, as the plurality cautioned in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, care must be taken in applying what has been done in other cases. Manifest excess is not demonstrated by reference to the sentence imposed in another case. A history of sentencing can establish a range of sentences that have in fact been imposed, but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper or lower limits.

32. The reviews of current sentencing practice in Fusimalohi and Hutchinson revealed a significant range of available sentences for this particular offence; depending on the objective seriousness of the offending and the subjective circumstances of the offender.

33. As to the objective seriousness of the burglary in the present matter, the fact that the burglary was of a residential premises is of some significance. As this Court observed in Simonds v The Queen [2013] ACTCA 13 at [54]:

Burglaries at residential premises are frequently treated as being more serious than burglaries at commercial premises. In part, such treatment reflects the chance that intrusion into a residence may end in violence, and a deeply held belief that a person's home should be safe.

34. The confrontation between the appellant and the occupier of the premises also goes to the objective seriousness of the offence. In his sentencing remarks, the sentencing judge made the following comment about the objective seriousness of the offence:

I note that matters of significance in terms of the objective seriousness of that offence are that the offence involved entry to residential premises at night, and also entry to premises when they were occupied. It also led to a physical confrontation with the occupier

35. The burglary offence in this matter may be characterised as being of moderate to high objective seriousness.

36. The other relevant sentencing considerations in respect of the present matter are set out above (at [14] - [18]). The appellant's subjective circumstances reveal a childhood marred by neglect and abuse. As the plurality observed in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43], the experience of growing up in a deprived background may leave its mark on a person throughout life:

Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

37. Of course an offender's deprived background may give rise to considerations which enliven a number of sentencing purposes, as the plurality in Bugmy at [44] observed:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. (citations omitted)

38. So it is in the present case. The appellant's deprived background is a factor which may be said to reduce his moral culpability for these offences, but his very significant criminal history, limited insight into his offending and the fact that his prospects of rehabilitation are "not particularly good" all support the sentencing judge's observation that personal deterrence was an important consideration in sentencing for these offences.

39. Taking account of all the relevant considerations we are not persuaded that the sentence imposed for the burglary offence was manifestly excessive.

40. Turning to the sentences imposed for the offence of receiving stolen property. The maximum penalty for this offence is 10 years' imprisonment and/or a fine of $110,000. The appellant was sentenced in respect of six counts of receiving stolen property. A sentence of 17 months' imprisonment was imposed in respect of each count, though as noted above (at [24]) the sentencing judge ordered a significant degree of concurrency.

41. Receiving stolen property is a serious offence. As the sentencing judge observed:

Without those willing to receive stolen goods, there would be less incentive for burglars and thieves to commit their offences.

42. The authorities to which we were referred (Eacott v Western Australia [2009] WASCA 112; Tazelaar v The Queen [2009] NSWCCA 119 and Hinchcliffe v The Queen [2010] NSWCCA 306) are of limited assistance.

43. In Eacott, Wheeler JA noted that it is not easy to discern a "range" for offences of this type as they are often part of a series of offences, hence totality may be an important consideration. Moreover, the value of the stolen property and the way in which an offender comes to possess the property vary widely. Her Honour however recognised a "range" of between 18 months and 2 years and six months' imprisonment for an offence of this type. In Tazelaar the NSW Court of Criminal Appeal held that sentences of four years' imprisonment for each of the five counts of receiving stolen property involving very modest items were manifestly excessive. Sentences of six months' imprisonment for each offence, to be served concurrently, were imposed.

44. The sentences imposed in Tazelaar for the receiving offences did not affect the total effective sentence as the sentences were made wholly concurrent with the sentences imposed on related break and enter offences.

45. In the present matter, each of the receiving offences arose from a distinct set of circumstances such that it was appropriate to regard them as separate incidents of offending. The value of the stolen property in each case was modest.

46. Viewed in isolation, a sentence of 17 months' imprisonment for one count of receiving stolen property which had a modest value may be considered severe. But such an analysis ignores the structure of the sentence imposed. It would have been open to the sentencing judge to order a series of relatively short periods of imprisonment for each of the six counts of receiving stolen property to be served cumulatively. Instead, the sentencing judge imposed more severe individual sentences but moderated the total effective sentence by ordering a substantial degree of concurrency. The former approach would have led to lower individual sentences than the latter, but the overall result may be the same. The appellant's complaint is about the overall result and we are not persuaded that the effective sentence imposed in respect of the six counts of receiving stolen property is manifestly excessive. Appellate interference is not warranted in these circumstances. It would only result in the imposition of shorter sentences for each count of receiving stolen property, such sentences to be served consecutively or with limited concurrency. While the structure of the sentence would change, we would not alter the total effective sentence. Such a result would rightly be characterised as tinkering and it is not appropriate.

47. Having regard to the relevant sentencing considerations we are not persuaded that the sentences imposed (either individually or in totality) can properly be characterised as manifestly excessive. Accordingly we would dismiss this ground of appeal.

48. We now turn to the non-parole period. It will be recalled that the sentencing judge imposed a total effective sentence of six years and four months' imprisonment with a non-parole period of three years and 10 months' imprisonment. The essence of the appellant's complaint is that the non-parole period was manifestly excessive; that it should have been shorter.

49. The purpose of a non-parole period was referred to by Barwick CJ and Menzies, Stephen and Mason JJ in Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at [10], in these terms:

To provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, where appropriate, once the prisoner has served the minimum period that the judge determines justice requires that he must serve having regards to all the circumstances of the offence.

50. Sentencing judges have a wide discretion in the setting of a non-parole period. The sentencing task is to set an "appropriate relationship" between the head sentence and the non-parole period. In Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 at [59] Kirby J discussed the requirement of a 'proper proportionality' between the non-parole period and the head sentence, in these terms:

In the ordinary case, where a head sentence comprises a determinate period in the prison, the non-parole period will constitute a substantial part of that sentence. . . The achievement of a proper proportionality between the head sentence and the non-parole period is a judicial obligation. However, even in the majority of cases where the head sentence is one for a determinate period it is recognised that proportionality is something that cannot be reduced to a mathematical formula (footnotes omitted).

51. What constitutes an appropriate relationship between the head sentence and the non-parole period depends on the circumstances of the particular case. Non-parole periods are not assessed mathematically by reference to some norm or usual ratio to the head sentence. In fixing a non-parole period, a sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence, but the weight attached to these factors and the way in which they are relevant will differ. Generally speaking, an offender's prospects of rehabilitation will be given significant weight in the determination of a non-parole period.

52. In this case the sentencing judge assessed the appellant's prospects for rehabilitation as "not particularly good". Given the appellant's lengthy criminal history, including a history of failing to adhere to Court-ordered conditions and committing further offences during good behaviour periods, the sentencing judge's assessment was well founded.

53. The non-parole period of three years and 10 months in this case reflects a period of slightly over 60% of the head sentence. There is nothing unusual about the non-parole period imposed by the sentencing judge (by way of contrast, see R v Flowers [2014] ACTCA 13). We are not persuaded that it is manifestly excessive. We note that, in support of this ground of appeal, the appellant referred to the efforts that he has taken to rehabilitate himself since sentence. While the appellant is to be commended for taking these steps, rehabilitation that occurs after sentence does not provide a basis for interfering with the sentences originally imposed.

54. We now turn to the second ground of appeal; that the sentencing judge erred in characterising the appellant's plea as a late plea.

55. The appellant submitted that he had made an early plea and was therefore entitled to a discount of 25% on the sentence. At the time of the appeal hearing, there was some confusion about the date when the plea offer was communicated to the Crown. The Crown undertook to file supplementary submissions after reviewing the file and speaking to the Legal Aid solicitor who was representing the appellant at the time.

• 9 August 2012 - Appellant first appears before the ACT Magistrates Court.

• 30 August and 18 October 2012 - Further Magistrates Court appearances.

• 15 November 2012 - Pleas of not guilty entered and matter adjourned to 13 December 2012.

• 13 December 2012 - Matter adjourned to 21 February 2013 with a note on the bench sheet that the Legal Aid solicitor was to "send formal reps".

• 14 December 2012 - Email sent from Legal Aid solicitor to Crown offering to plead guilty if a number of burglary and theft charges were replaced by receive stolen property charges. This offer is essentially what was later accepted by the Crown.

• 26 July 2013 - Appellant formally arraigned and entered pleas of guilty.

57. The Crown was unable to find any correspondence in relation to the plea offer of 14 December 2012, except for an email dated 15 May 2013 referring to "previous discussions" in relation to the representations sent "last year" (respondent's supplementary submissions at [8]).

58. It appears from the above chronology that the pleas were proffered in December 2012. On that basis, they would properly be characterised as early pleas, albeit not pleas at the earliest reasonable opportunity.

59. At the sentencing hearing counsel for the appellant submitted that these were early pleas. The Crown did not cavil with that submission, but did point to the strength of the Crown case. The sentencing judge dealt with this issue in the course of his sentencing remarks, as follows:

I take into account your pleas of guilty, although it cannot be said that those were early pleas. I accept that your pleas demonstrate some limited remorse with respect to these offences, and also, I accept that your pleas have significant utilitarian value. I will reduce by approximately 15% the sentences that I would have otherwise imposed but for your pleas.

60. Given the objective facts and the submissions of the parties at the sentencing hearing, it is clear that the sentencing judge mistakenly characterised the timing of the pleas. In short, the sentencing judge was in error in finding that "it cannot be said that those were early pleas". Accordingly we would uphold this ground of appeal.

61. The error identified re-opens the sentencing discretion, which we propose to re-exercise, having concluded that another sentence is appropriate.

62. We reject the appellant's submissions that, given the timing of his pleas he was "entitled" to a discount of 25% on the sentence. There is no such entitlement. While the discount for plea is generally assessed in the range of a 10-25%, the actual discount applied is a discretionary matter for the sentencing judge. In the circumstances of this case, we consider that a discount of about 20% would have been appropriate across the board. However, having regard to the large number of sentences that are very short and entirely concurrent with other sentences, we propose to apply that discount only to the more significant sentences, but also to make some minor adjustments to the accumulations.

63. Accordingly, the appeal is upheld, and we make the following changes to the sentences:

(a) the sentence for count 2 is reduced from 42 months to 40 months;

(b) the six sentences of 17 months' imprisonment (counts 3, 7, 9, 10, 16 and 18) are reduced to 16 months each; and

(c) the sentences are to be served, and accumulated, as shown in the following table:

64. For that new total sentence of five years and nine months, we set a non-parole period of three years and six months, from 27 June 2012 to 26 December 2015.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Heard v The Queen [2015] ACTCA 6

At a glance

Court

Decision date

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Judgment (128 paragraphs)

Heard v The Queen [2015] ACTCA 6 (20 March 2015)

Parties

Cases Cited (6)