Solicitors:
S E O'Connor - Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/84486
Decision under appeal Court or tribunal: District Court
Date of Decision: 3 April 2014
Before: Charteris DCJ
File Number(s): 2013/84486
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Judgment
HOEBEN CJ at CL: I agree with Button J.
HALL J: I agree with the reasons of Button J and with the orders he proposes.
BUTTON J: This is an application for leave to appeal against an aggregate sentence imposed by his Honour Judge Charteris on 3 April 2014 in the District Court at Moree. The aggregate sentence pertained to two offences of breaking entering and stealing in circumstances of aggravation, those circumstances being the fact that the applicant was in the company of another person. That offence carries a maximum penalty of imprisonment for 20 years (pursuant to s 112(2) of the Crimes Act 1900 (NSW)), and a standard non-parole period of five years (pursuant to s 54B of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
Objective features
The first offence in time (although it was sequence two) was committed in the evening of 23 May 2012. The applicant broke and entered a funeral home in Moree. A co-offender was present. The applicant tried to smash through a glass panel in the front door of the premises with a rock, but failed. Thereafter he kicked his way into the building through the front door and a security grille. The applicant and his co-offender carried away a flat screen television and a stereo system between the two of them. Both items were later sold for cash.
The second offence in time (although it was sequence one) was committed in the afternoon of 24 May 2012. The applicant attended at residential premises, and noted that there was no car in the driveway. He departed, obtained the assistance of the co-offender, and they returned to the home. Between the two of them, they removed a number of timber panels from the structure of the house. The co-offender climbed through the hole that was created, and passed a number of items out to the applicant. They included a flat screen television, a laptop, a computer gaming console, a welder, a rattle gun, a cordless drill, and a socket set. Those items were secreted nearby, and the two men departed. Later, all of the stolen property was sold for cash.
Taken into account on sentence with regard to the offence committed upon the residential premises was a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act. It contained five charges. Again, all offences were committed in the township of Moree. All offences were expressed in the document to be pending before the Local Court in the same town.
The first offence was a larceny that occurred on 17 April 2012. The maximum penalty for that offence on indictment is imprisonment for five years (s 117 of the Crimes Act), and, when dealt with summarily, imprisonment for two years.
In short, the applicant attended a freight distribution depot in search of prescription drugs that are open to abuse. He was disturbed by staff, and ended up running away, taking with him nothing more than a box containing medication for diabetes.
The second offence was a break, enter and steal that occurred on or about 8 May 2012. The maximum penalty for that offence on indictment is imprisonment for 14 years (s 109 of the Crimes Act), and, when dealt with summarily, imprisonment for two years.
The applicant gained entry to a second story residential unit by way of an adjacent balcony and a window that he was able to open. He stole two digital cameras, two bottles of liquor, and a sum of money. He subsequently sold one of the cameras for about $150.
The third offence was a break, enter and steal committed on 14 August 2012. The applicant broke into a private home by forcing open a sliding front window. He departed with a plasma screen television, which he accidentally damaged in the process. He carried it a short distance further before destroying it deliberately. It was found in the rear yard of a neighbour.
The fourth offence was also a break enter and steal, and was committed on 25 November 2012. The applicant observed that the female victim was away from her home, attending church. He went to her residence, and entered through the front door, which was closed but not locked. He removed $350 in cash from a purse and also took with him a mobile phone.
I interpolate to say that that offence was committed in breach of bail that the applicant had entered on 8 October 2012.
The fifth and final offence contained on the Form 1 was another break, enter and steal committed on 12 December 2012. Again, the target was a residential home. Finding it to be secured, the applicant forced a rear window open and gained entry. He found a laptop computer, a mobile phone, and a modem. He departed with those three items.
Subjective features
The applicant pleaded guilty in the Local Court to the two substantive offences, and was accorded a 25% discount for the utilitarian value of his pleas. That discount is not impugned in this application.
The applicant is an Aboriginal man. He was 36 years of age when he stood for sentence. Born in the Sydney suburb of Liverpool, he was raised in Campbelltown. One of five siblings, he left school in year eight at the age of 14. He had fallen in with the wrong crowd, and ended up being detained in a juvenile detention centre from an early stage. Although he possessed a talent for rugby league, it was not sufficient for him to make a career of it. He had done some work as a janitor and cleaner.
The applicant had met the mother of his three children in Moree. Regrettably, both he and she have a long-standing problem with prohibited drugs, including heroin. Granted Supreme Court bail at one stage with regard to the charges under discussion, he had succeeded for a time, but returned to prohibited drugs in due course. He explained in evidence that all of the offences were "thieving", committed in order to feed the habit of the applicant and his romantic partner.
The criminal record of the applicant did not assist him. It commenced in 1991 when he was a juvenile. He was subject to control orders for offences against property and person, including attempted sexual assault and attempted robbery.
As an adult he had been fined for assault and resisting arrest, and placed on a bond for breaching an apprehended domestic violence order. Almost 20 years ago, he was ordered to perform community service for breaking entering and stealing. In 2011 he was sentenced to three months' imprisonment for stealing from the person. His criminal record featured offences of violence as an adult as well.
To be weighed against those adverse aspects was the fact that a substantial proportion of his criminal record arose when he was a juvenile, and the fact that every previous offence committed as an adult had been prosecuted in the Local Court.
By the time of the proceedings on sentence, the applicant, his partner, and two of their three children were all incarcerated or detained.
As for the future, he gave evidence before his Honour that his plan was to find a job, earn money, and "just stay away from drugs". In cross-examination, however, he stated that he did not regard himself as an addict; he blamed his problem on the fact that prohibited drugs have been freely available to him.
Undoubtedly the most noteworthy subjective feature on sentence was that the applicant had voluntarily admitted all offences. He explained in evidence that he had been at court with regard to a charge that he was defending, and he had "just thought I'll go over to the police with that, put myself in, before it even comes up or anything". He gave evidence that he "just wanted a clean slate". After that, he drove around the township with the police, pointing out the locations at which he had admitted he committed the offences. His Honour found that the applicant had not been a suspect when he took those steps.
With regard to that conduct of the applicant, his Honour accorded a further discount of 15%: see generally R v Ellis (1986) 6 NSWLR 603 and s 22 of the Crimes (Sentencing Procedure) Act. Accordingly, the aggregate sentence imposed, and indicative sentences underpinning it, need to be understood as reflecting a total discount of 40% from notional starting points.
In the remarks on sentence, his Honour accepted that the applicant had some insight, and was trying to be frank in his evidence. His Honour accepted that the applicant regretted his conduct. Because of the ongoing relationship with the applicant's partner, herself burdened by a serious problem with prohibited drugs, the optimism of his Honour did not extend far beyond those aspects.
Sentence structure
As I have said, a single aggregate sentence was imposed, pursuant to s 53A of the Crimes (Sentencing Procedure) Act.
With regard to the offence committed against the funeral home on 23 May 2012, his Honour indicated (pursuant to s 53A of the Crimes (Sentencing Procedure) Act) a head sentence of imprisonment for three years with a non-parole period of 18 months, having found special circumstances.
With regard to the offence second in time against the residential premises, which had the Form 1 attaching to it, his Honour indicated a head sentence of three years nine months with a non-parole period of half that; namely 22.5 months, or one year 10 months and two weeks.
Ultimately, an aggregate sentence of imprisonment for five years with a non-parole period of two years six months was imposed. That sentence commenced on 26 May 2014, in order to reflect a period during which the applicant was at liberty on bail. That backdate is not impugned in this application.
Grounds of appeal
The following three grounds were notified and pressed:
1. His Honour erred in concluding that the criminality (objective seriousness) of both offences fell within the middle range.
2. His Honour erred in taking into account the Form 1 matters in assessing the criminality of Count 1 on the indictment.
3. Manifest excess.
Ground one
This ground was based upon the assessment of objective seriousness that his Honour made in the remarks on sentence at p 9. It was as follows:
It is submitted that the criminality is lower than the middle range but I agree with the Crown Prosecutor that these two offences find themselves in the middle range. They are break and enter offences, forcing entry into premises and stealing property. The broad range of offences that respond to this section includes, in my view, the two matters for which I have to impose sentence.
In the same vein, his Honour also said at p 9, "as regards the criminality, I do find that these offences find themselves in the broad middle range of offences that respond to this section".
In short, it was submitted that the evaluative judgment that the two substantive matters fell within "the broad middle range of offences that respond to this section" was not open to his Honour. Reference was made to another decision of this Court in which, in the context of determining whether sentences were manifestly excessive, the evaluation of objective seriousness of another judge was impugned: see Mitchell Allan v R; Mitchell Paul v R; Mitchell Michael v R [2014] NSWCCA 212.
I would reject this ground. It is soundly well established that the evaluation of objective seriousness is something very much vouchsafed to the sentencing judge: see Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ, with whom Simpson J agreed), referred to most recently in Browning v R [2015] NSWCCA 147 at [91] (Garling J, with whom Gleeson JA and Johnson J agreed).
And in any event, even if one embarks upon a review of the evaluation of his Honour, I do not detect error in it. It is true that neither of the substantive offences was the most severe example of an aggravated break enter and steal that one can imagine. But nor were they patently trivial.
The first offence featured determinedly breaking into secured commercial premises with a co-offender and stealing electronic items of considerable value, and thereafter selling them for cash.
The second offence involved breaking into a residential home, and featured a degree of organisation. Again, quite valuable items were stolen with the assistance of a co-offender.
To my mind, it was well open to his Honour to find that these offences fell within the "broad middle range of offences that respond to this section".
I would reject ground one.
Ground two
This ground was founded upon the things said by his Honour in the remarks on sentence about the effect of the Form 1 offences upon the substantive offence of 24 May 2012, with regard to which they were taken into account.
The first thing said about that topic in the remarks on sentence was as follows: "The matters on the Form 1 must aggravate the penalty I impose in relation to sequence 1. Each of the individual offences was serious in its own right".
The second was as follows: "The aggravating matters are, of course, confined to sequence 1, which has the Form 1 matters to be taken into account".
The third was as follows: "I do find that the Form 1 aggravates sequence 1 - that is the only aggravating matter of which I am satisfied beyond reasonable doubt".
It was submitted, in short, that his Honour had misapplied the principles that apply when further offences are taken into account in sentencing by way of a Form 1. In particular, it was said that the guideline judgment makes it clear that, in those circumstances, one is sentencing only for the substantive offence; that sentences are not to be imposed notionally for the offences on the Form 1; that the Form 1 offences may be taken into account "with a view to increasing the penalty that would otherwise be appropriate for the particular offence"; and that that is done by giving greater weight to personal deterrence and retribution: see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (the guideline judgment) at [42] (Spigelman CJ, with whom Wood CJ at CL, Grove, Sully and James JJ agreed).
The Crown submitted that, as for the first reference that I have extracted above, although inexactly expressed, it was free from any effective error: when one is sentenced for a substantive offence that has a Form 1 attached to it, the ultimate sentence to be imposed is "aggravated" by the presence of the Form 1, in the way explained by the Spigelman CJ in the guideline judgment.
As for the second and third extracts, the Crown submitted that one available inference was that his Honour had simply misspoken, rather than misapplied principle.
Turning to my determination of this ground, I accept the submissions of the Crown that, although infelicitously expressed, the first extract is not erroneous.
As for the second extract, I accept the submission of the applicant that it is not correct to say that the substantive offence is "aggravated" by the presence of offences on a Form 1.
The same may be said of the third extract: the offences on the Form 1 do not "aggravate" the substantive offence, although they do have an effect on the sentence ultimately imposed, in the way explained in the guideline judgment.
I turn to consider whether those misstatements of principle establish a misapplication of principle.
The proceedings on sentence occurred on 2 April 2014, and his Honour imposed sentence the following day. The District Court was sitting in a country town that no doubt had a busy list of trials and short matters. The transcript of the proceedings on sentence shows that the question of the correct approach to a Form 1 was the subject of no debate whatsoever; that is not surprising, because any controversy about the topic was settled by the guideline judgment well over 10 years ago.
As I have said, the first reference to the Form 1 was correct, in a practical sense, though to the extent that it spoke of "aggravating" a sentence, it was perhaps infelicitous.
As I have said, the second and third references were, in my respectful opinion, not correct.
But having reflected on the matter, I do not accept that the sentencing judge was applying a wrong principle. Rather, I have come to believe that what was said in the second and third extracts was a combination of a slip in language and the use of a shorthand with regard to a very commonly encountered procedure and very well-established principles. That occurred in remarks on sentence delivered, if not extemporaneously, then shortly after the proceedings on sentence had concluded.
In the result, despite the infelicity of language, I am not satisfied that the sentencing judge applied a wrong principle with regard to taking the Form 1 into account. For that reason, I would not uphold ground two.
Ground three
This ground was founded upon consideration of the notional starting points that must have been adopted by his Honour. Although it is true that only the aggregate sentence can be the subject of appeal (see, for example, R v Rae [2013] NSWCCA 9 at [32]), it is also true that discounts are to be applied by sentencing judges to the indicative sentences, and not to the ultimate aggregate sentence: see, for example, SHR v R [2014] NSWCCA 94 at [42].
It is also true, of course, as R A Hulme J (with whom Leeming JA and Price J agreed) very recently emphasised in Alpha v R [2015] NSWCCA 225 at [32], that it is the sentence ultimately imposed that is under appeal, not the starting point. Nevertheless, in that context I do not think it inapposite to reflect upon the notional starting points of both the indicative sentences and the aggregate sentence (the latter as a way of generally testing the application of the principle of totality) as a guide to analysis, so long as one does so cautiously, and bears in mind that it is the aggregate sentence actually imposed that is the subject of the application for leave to appeal, nothing else.
Removing for analysis the discount of 40% from the offence of 23 May 2012, it can be seen that there must have been a notional starting point of a head sentence of five years.
Removing the discount from the offence second in time of 24 May 2012, which featured the Form 1, it can be seen that there must have been a notional starting point of a head sentence of imprisonment for six years three months.
Completing my analysis with regard to the aggregate head sentence, the starting point without the discount of 40% must have been eight years four months.
Those notional starting points immediately give one pause for thought. Could it be said that an aggregate head sentence that is derived from a starting point head sentence of over eight years was within the discretion of his Honour, even allowing for the filing of the Form 1 as well?
In oral submissions before us, the Crown Prosecutor frankly conceded that the sentence, taking into account all objective and subjective features, and especially the substantial discount, could not be characterised as anything other than "towards the high side". She did not seek to resist vigorously the proposition that, in the unusual circumstances of this matter, ground three may have some force.
Turning to my view of this question, it is true that the criminal record of the applicant did not assist him. As I have said, it featured offences against property and person committed both as a juvenile and as an adult. It will be recalled that one of the Form 1 offences was committed on bail. It is also the case that, as I have said, neither of the substantive offences was trivial (nor indeed were the majority of the offences on the Form 1). It is to be remembered that the applicant was to be sentenced for two offences, not one, and that with regard to one of them considerations of personal deterrence and retribution were to be given extra weight by way of the presence of the offences on the Form 1. Finally, special circumstances were found that substantially reduced the aggregate non parole period actually imposed.
All of that must be accepted. And it must also be accepted that, but for the discount that his Honour applied, neither the aggregate sentence nor the indicative sentences would have been in any way exceptionable.
Nevertheless, whether one analyses the notional starting points of each of the indicative sentences, or the notional starting point of the aggregate sentence ultimately imposed, on reflection I have come to the view that the starting points to which a discount of 40% was applied was simply too high, especially in light of the objective seriousness of the offences.
I consider that, in the unusual circumstances of this case, the applicant has made good the proposition that the aggregate sentence imposed is manifestly excessive. I would uphold ground three.
Resentence
An affidavit by counsel for the applicant was read contingent upon this stage being reached in the appeal. It showed that in custody the applicant has achieved a C2 classification; that he is participating in a program of intensive drug and alcohol treatment; that he has been achieving qualifications by way of TAFE; that he has been working part-time; and that he continues to enjoy the support of his family. He maintains a firm intention that he will "keep away from the life that I previously had".
Much of the approach of the learned sentencing judge should be replicated on resentence. The offences fell within the broad middle range of objective seriousness for aggravated break, enters and steal. The sentence for the break, enter and steal offence of 24 May 2012 must be increased by the presence of the Form 1, in order to give greater weight to personal deterrence and retribution. There should be a 40% discount that reflects the early pleas of guilty and the exceptional self-inculpation by the applicant. The backdate should be identical. The finding of special circumstances that led to the imposition of indicative and aggregate non-parole periods that were half of the indicative and aggregate head sentences should be maintained. As was his Honour, I am generally guardedly impressed by the evidence of and about the applicant, both at the time of sentence and since that time.
With regard to the sentence for the first offence in time against the funeral home, which does not feature the Form 1, I would adopt a starting point of a head sentence of four years. Applying a 40% discount, that leads to an indicative head sentence of imprisonment for a little under 29 months, which I would round down to two years four months. I would provide an indicative non-parole period of one year two months.
With regard to the sentence for the offence of 24 May 2012 against the private home, which features the Form 1, I would adopt a starting point of five years. Applying a discount of 40% to sixty months, one arrives at an indicative head sentence of three years. The indicative non-parole period should be 18 months.
Turning to the aggregate sentence and thereby reflecting principles of totality, I consider that there should be an aggregate head sentence of imprisonment for four years, with an aggregate non-parole period of two years, each to date from 26 May 2013.
In accordance with my proposed aggregate non-parole period, the applicant would have become eligible for consideration for release to parole on 25 May 2015, and that should now occur urgently.
That leads me, finally, to emphasise a remark made by the Chief Judge at Common Law at the hearing of this matter; namely, that this matter languished in the list for over two years. By the time it came on for hearing on 24 July 2015, it was only a few months short of the expiry of the impugned aggregate non-parole period on 25 November 2015. The legal profession should be aware that the Court has mechanisms whereby matters that feature relatively short non-parole periods can be fast tracked, in order to avoid successful appeals being rendered otiose.
I propose the following orders:
1. Leave to appeal granted.
2. Appeal allowed.
3. The aggregate sentence of 3 April 2014 is quashed.
4. The applicant is sentenced to an aggregate head sentence of imprisonment for four years to commence on 26 May 2013 and expire on 25 May 2017 with a non-parole period of 2 years to date from 26 May 2013 and expire on 25 May 2015.
5. The earliest possible date of release of the applicant to parole was 25 May 2015.
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Decision last updated: 11 September 2015