Honeysett v R

Consideration

1. Importantly, any exercise of reviewing a sentence imposed at first instance to determine a complaint of manifest excess proceeds on the well-understood basis that sentencing is a discretionary process and there is no single correct sentence for any particular offence. This principle was stated in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; by the High Court at [27]: "Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies" (footnotes omitted).
2. See also Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46], and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [5] per Gleeson CJ, and at [26] per Gummow, Callinan and Heydon JJ.
3. For any offence, after taking into account all relevant features of the objective and subjective cases, and having regard to the applicable principles of sentencing law, there will be a range of sentences that could be properly imposed for that offence. In Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 the High Court gave consideration to what was meant by the phrase "an available range of sentence", at [24]-[28]. The plurality (French CJ, Hayne, Kiefel, and Bell JJ) said, at [25]-[27]: "Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law. […] Reference to an "available range" of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order "is unreasonable or plainly unjust" and the appellate court infers "that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance". In the field of sentencing appeals, this kind of error is usually referred to as "manifest excess" or "manifest inadequacy". But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences. The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some "substantial wrong has in fact occurred" in fixing that sentence" (footnotes omitted).
4. To be successful then, a ground of appeal that complains of a manifestly excessive sentence must establish that the sentence imposed was outside the available range of sentence such as to be plainly unjust or unreasonable. Only if the sentence is outside the proper range such that there must have been some misapplication of principle will appellate intervention be warranted: The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].
5. It is immaterial to establishing such a ground that one or all of the judges comprising the intermediate appellate court might have imposed a lesser sentence at first instance. That is not the test and ignores the important constitutional role of sentencing judges in our system of criminal justice. If that was the test, it would have the effect of rendering this Court a court of opinion, rather than a court of law.
6. Applying the principles of law enunciated in Markarian, Pham and Barbaro & Zirilli to the applicant's case, I do not accept that the sentence imposed by her Honour was plainly unfair or unjust. To the contrary, her Honour gave full weight to the subjective case, allowing what must have been a substantial reduction in sentence in recognition of the applicant's tragic personal background and dysfunctional past and, favourably to him, accepting that he had developed both insight into the negative role of drug and alcohol abuse in his life, and a positive plan for the future. Her Honour was even prepared to find that the applicant was remorseful, despite a complete absence of evidence of it, beyond the entries of the pleas of guilty. She made proper allowance for the applicant's mental illness, and for the difficulties he had faced in custody due to the COVID-19 pandemic, and allowed the maximum available discount to recognise the pleas of guilty.
7. What her Honour could not do was ignore the large number of property offences the applicant had committed, in the context of a long and repetitive history of like offending, in breach of conditional liberty, where the applicant had frequently been in breach of parole and other sentencing orders in the past.
8. Although the applicant's submissions were apt to suggest that these were minor crimes that did not warrant the indicative sentences announced, that is to overlook the circumstances of their commission, at a time when the applicant was subject to parole and multiple CCOs, and against the further aggravating feature of the applicant's criminal record.
9. In submitting that the offences were relatively minor the applicant tended to ignore that these were all offences committed in circumstances that were likely to have alarmed, even significantly distressed, the property owners. For the offence involving Ms Wray and her young grandchild, the gravity of the crime was not with respect to property that the applicant might have stolen had he the opportunity; it is the distress and sense of fear and insecurity inevitably occasioned to those whose home was unlawfully entered by a stranger, in the night. In the brief period when the applicant stood by Ms Wray's bed with his hands on her three year old grandchild, Ms Wray must have been very frightened indeed for his safety, and hers. It is irrelevant that there was no violence or threat of violence in the commission of the offence.
10. After the applicant left, Ms Wray likely remained fearful. Such feelings can be on-going for those who have had the security of their homes breached by a criminal, a feature reflected in the maximum penalty of 14 years for an offence of this nature.
11. It is also not without significance that the indicated sentence of 5 years comprehended not just this offence, but three more crimes of a similar nature, each of which when separately prosecuted carried maximum penalties of 14 years imprisonment. There had to be some increase in the sentence indicated to reflect the offences on the Form 1 document, and there was no reason to expect that the increase should have been small.
12. All of the applicant's crimes are likely to have caused alarm to those whose homes or lands he entered, or whose property he stole. Even the two counts of larceny were witnessed by a person at each premises where the property was taken, likely leaving an unsettled feeling in those persons. The seriousness of a larceny committed in such circumstances is not determined only by reference to the monetary worth of the property; other features also have relevance. Whilst the applicant complains that a 6 month sentence was completely unjustified, justification can be readily found in the circumstances in which each was committed, the fact that the applicant had only days earlier made a written promise to a court to be of good behaviour when entering a number of CCOs, and his decades long record for the commission of dishonesty offences. The protection of the community had to be a consideration on sentence, having regard to the applicant's record, and the evidence before the sentencing court as to the high risk he posed of recidivism.
13. Further, any complaint about the sentences indicated for individual offences fails to take note of the high degree of notional concurrency of sentence reflected by the aggregate term imposed, or give due weight to the significant leniency inherent in the variation to the ratio of sentence, with the NPP representing only 50% of the total term.
14. The imposition of any sentence imposed upon an offender must have regard to s 3A of the Crimes (Sentencing Procedure) Act. The sentence imposed upon the applicant allowed generously for his rehabilitation, but it also had to denounce his crimes, make the applicant accountable, and recognise the harm done to those in the community who had suffered at his hands. By allowing such a generous variation to the ratio of sentence, her Honour gave due weight to all of the features referred to in s 3A. With 3 years on parole, her Honour also ensured that the applicant would have the sort of support he needed for an extended period, giving him the best chance of making good on the positive goals he has formed, whilst still protecting the community should the applicant return to criminal conduct.
15. Having considered all of the features of the objective and subjective cases, and noting the applicable sentencing law, I cannot conclude that the sentence imposed upon the applicant was unjust. It was within the available range for crimes such as these committed by a person with the applicant's subjective case. The broad discretion that reposed in the sentencing judge did not miscarry.

Conclusion

1. For these reasons, the orders I propose are: 1. Leave to appeal is granted; 2. The appeal is dismissed.
2. SWEENEY J: I agree with Wilson J.

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: 16 June 2023