Kane v R

Court of Criminal Appeal (NSW)|2021-08-11|Before: Leeming JA, Hulme J, Campbell J

Facts of the offending

The facts relevant to the offending were the subject of a Statement of Agreed Facts. The offending covered a period from around 11 pm on 4 July 2019 to the early morning of 6 July 2019. The following narrative is derived from her Honour's judgment.
At around 11:23 pm on 4 July 2019 the applicant and his co-offender attended a hairdressing salon in Sylvania Waters. The co-offender attempted to force his way through the front door with an unknown tool. When unsuccessful, he kicked the door several times causing the glass to shatter. He then entered through the shattered door and stole a laptop computer, a cash register containing money, a hair dryer and hair products. The applicant had remained outside of the shop throughout. Both men then ran away from the scene.
At around 1 am on 5 July 2019, the co-offenders and an unknown male broke into a sporting centre in Caringbah. All three men entered the premises. While inside, the men searched the cash register and manager's office before stealing an EFTPOS machine.
At about 4 am on 5 July 2019, the co-offenders broke into café premises in Monterey. They gained entry by jumping the rear fence of the property and then smashing a glass door. The men were there for two minutes. The applicant searched the cash register while the co-offender searched the kitchen. They decamped in a stolen white Ford Fiesta.
At about 11 pm on 5 July 2019, the co-offenders arrived at a beauty salon in Sylvania Waters in the white Ford Fiesta. The co-offender was driving with the applicant in the passenger seat. The co-offender forced entry to the salon with a crowbar. Both men entered the salon and stole a locked box containing $100 cash, two keys and an Apple iPad Pro.
At about 1:20 am on 6 July 2019, the co-offenders attended a café in Woolooware. After walking past the café and peering into its windows, the men returned to the white Ford Fiesta parking it opposite the shop. Both offenders then unsuccessfully attempted to pry the café door open. The co-offender kicked the front door several times, causing the lower glass panel to shatter. The co-offender crawled through the opening, removed a cash register, containing $80 cash, and passed it back through the opening to the applicant. The men quit the scene in the white Ford Fiesta.
At about 2:05 am on the same date, the police happened across the men. The co-offender was then walking along a road holding the stolen locked box. The applicant was located hiding behind some bushes. The police stopped, questioned and searched the men. The applicant was in possession of green and white rubber gloves and $35 in cash. Mr Belsham was in possession of blue rubber gloves and $38.10 in cash. They were arrested.
Shortly after the men's arrest, the police located the white Ford Fiesta, which had been previously reported stolen by its owner. Inside, the police discovered two screwdrivers, two crow bars, a large hammer, an iPhone box and the stolen Apple iPad Pro. A door lock and the ignition mechanism of the car had been tampered with.

Subjective circumstances

The applicant was 24 years of age when he offended. He pleaded guilty at the first available opportunity and her Honour indicated that she would allow a discount of 25% for the utilitarian value of the plea.
As noted above, the applicant was on parole serving the balance of a term of imprisonment in the community for recklessly cause grievous bodily harm in company. His other criminal antecedents appear to be of little consequence, dealt with as they were by way of fines and bonds.
Her Honour outlined the applicant's childhood and early life, marred as it was by drug addiction, domestic violence and foster care. His older brother died in his teenage years in a car accident, causing the applicant "significant grief and psychological turmoil for a long time" (AB p 12). He has had little contact with either his biological father since he was five or his biological mother since he was 15. While in foster care he suffered sexual abuse.
When he offended, the applicant was living with his stepmother, with whom he enjoyed a good relationship. I interpolate that the co-offender is his stepbrother, and by her Honour's statement that he "had taken him in" upon the applicant's release from prison, her Honour concluded the stepbrothers were living together as well.
Mr Kane has young children; however they have little contact.
As for substance abuse, Mr Kane's history is troublingly extensive. He began smoking marijuana at the age of 11 or 13 and was smoking daily by the age of 14. He began drinking alcohol from 12 or 13 and consumed it daily between the ages of 14 to 17. At 15 he had first used methylamphetamines and became addicted until the age of 17. Between the ages of 17 and 19 it appears Mr Kane largely abstained from substance use, likely motivated by the birth of his first child. Unfortunately, however, at the age of 19 he relapsed and was abusing prescription opiates and heroin. He abused ice up until his incarceration in 2017 for the reckless wounding offence.
Exhibit 1 before her Honour was a psychologist's report by Ms Kerry Watson dated 16 April 2020. Ms Watson diagnosed the applicant as suffering from Schizophrenia and Major Depressive Disorder with Anxiety. Her Honour rejected her opinion because, first, as a registered psychologist rather than a psychiatrist she was not qualified to make medical diagnoses, and secondly, as to the psychotic illness she had acted solely on the applicant's own account without verification by primary clinical material, including hospital notes from institutions were the applicant claimed to have been involuntarily incarcerated or from Justice Health. No challenge is made to her Honour's fact-finding in this regard, or at all. Nonetheless, her Honour accepted the genuineness of "some mental health issues" which she considered would make the applicant's time in custody "more onerous and burdensome" (AB 17).
Her Honour also drew upon the history recorded by Ms Watson to find a dysfunctional childhood and difficult life which "reduced his moral culpability to some extent."

Reasons for sentence

In evaluating the objective gravity of the break and enter offending, her Honour stated (AB p 10): "Here the serious indictable offence is stealing and that it involved the theft of small amounts of cash from business premises. I also note the circumstance of aggravation relied upon was being was being in company in all instances, and one must ensure this inherent feature is not double counted in the sentencing exercise. "Considering all matters relevant to the objective gravity of the offences before the Court, including the premises broken into, the role the offender actually played, noting it was a joint criminal enterprise, but the offender had no weapon, inflicted no violence and the aggravating circumstance that applies, I have determined that the offending falls between the low to mid-range of seriousness for all offences."
As to the aggravating factors of the offending, her Honour determined (AB p 16): "In relation to the Court's findings for aggravating factors, in relation to the offender's criminal record, he has a criminal history and I find it clearly disentitles him to the leniency one is warranted to those who come before the courts with little or no prior offending. Whilst consideration has been given to it I have not regarded it as an aggravating feature upon sentence today. The offender though was on parole when he committed these offences. Indeed, he had only been released five days prior. It is well established that committing offences whilst being granted conditional liberty clearly amounts to an aggravating feature and impacts upon the issue of specific deterrence."
Having made this assessment of the objective seriousness of the applicant's offending, her Honour added the following (AB 10-11): "These type of offences though are just not crimes against property, but also are crimes against people. Homes and businesses are broken into and personal valuables with sentimental or financial value taken and this can have a significant impact upon people. Such crimes can have serious consequences. People also question the ability of police to protect them or their business and they learn to fear and lose trust in others. People work hard for their businesses and this type of offending makes people feel less safe and less secure which can have a more general effect on society as a whole. "As submitted by the Crown, the courts have consistently held that general deterrence is a particular important sentencing factor for these brazen offences. There is also a significant need for specific deterrence to indicate to the offender the … seriousness of his offending and the criminality of it."
Her Honour also considered that the applicant's statement to a Community Corrections Officer, Dimity Hemphill who prepared the Sentencing Assessment Report of 21 April 2020 (Exhibit B), that he "needed money for drugs, that's why I did crimes. I needed clothes, food and drugs" as "of considerable relevance" (AB 15). Her Honour thought this statement undermined any suggestion that the applicant's mental health issues were a contributing factor to his criminal conduct (AB 19). Her Honour appeared to have accepted that his statement of acceptance of responsibility to Ms Watson and his expression of regret, remorse and contrition to the Community Corrections Office were genuine. As to the latter, he had said: "Now I'm not using drugs I feel sorry for [the business owners], that's their livelihood, I feel selfish. And they go to work to build business and support their families then someone like me comes along and interrupts it."
Her Honour recorded that the Community Corrections Order assessed the applicant's risk of re-offending, according to the Level of Service Inventory - Revised, as High. Her Honour thought this "unsurprising considering his relapse into drugs and crimes only 5 days after entering parole" (AB 19). She did note that the applicant "claimed" to be prepared to undertake intervention to address "his drug issues" and that he had behaved satisfactorily in custody. As he was serving the balance of his term, courses had been made available to him which he had undertaken. However, her Honour regarded the applicant's prospects of rehabilitation as "guarded at best". Those prospects "would significantly improve if [the applicant] is to obtain employment and abstain from drug use upon his release." (AB 19).
Regarding mitigating factors, her Honour did not take into account his drug use and addiction. She did take into account the applicant's relative youth, immaturity and his mental health issues, even though she did not consider the mental health issues to be causally connected to his offending. Her Honour accepted the mental health issues would make the applicant's time in custody more onerous. Further, she took Mr Kane's disadvantaged upbringing and life into account.
On the issue of parity, she remarked (AB p 20): "The offender is approximately ten years younger … I note he has less convictions and less similar convictions and played a slightly lesser role in their joint offending, but I also note he was on conditional liberty. Both have drug and mental health issues." Her Honour seemed to accept that the co-offender suffered from PTSD from childhood trauma. She also thought the differences in the charges brought against each of them complicated the parity issue.
Her Honour made a finding of special circumstances and reduced the statutory ratio between the non-parole period and the balance of term to 66%.

Submissions of the parties

As mentioned above, the sole ground by which Mr Kane sought to challenge his sentence was on the basis that it was manifestly excessive. He did not seek to challenge any findings of fact made by the learned sentencing judge. Ms Kluss of counsel, who appeared for the applicant, did not seek to cavil with her Honour's evaluation of objective seriousness. She accepted that the proximity between the applicant's release on parole and the offending was significant as an aggravating feature of the offending.
There were two basic contentions underpinning the argument that the aggregate sentence passed was manifestly excessive. The first is that, with reference to the applicant's social and familial circumstances, the application of the factors enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Fernando (1992) 76 A Crim R 58 should have resulted in a lower aggregate sentence than that passed. The second is that her Honour should have backdated the sentence further to allow a greater degree of concurrency with the balance of the previous sentence in order to more appropriately reflect the totality of the offending.
In response, the Crown emphasised the significant aggravating circumstance of the applicant's conditional liberty at the time of the offending, especially the almost immediate lapse into further offending following his release to the community. The Crown submitted that her Honour had appropriately dealt with the applicant's subjective circumstances. Pointing to that conclusion, the Crown submitted, were her Honour's finding of special circumstances of 66% and her regard to his mental health issues despite her conclusion they were not causally related to the offending and her rejection of Ms Watson's opinion.

Principles - manifest excess

Where an offender seeks leave to appeal on the ground of manifest excess no specific error need be identified (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [61]). Rather the case falls to be considered as of the kind last-mentioned by the High Court in House v The King at 504-5, by Dixon, Evatt and McTiernan JJ. To my mind it is worth recording exactly what their Honours said in context: "… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error had been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. In such a case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." (My emphasis)
The enquiry in the present case is therefore: was the aggregate sentence passed by her Honour Judge O'Rourke unreasonable or plainly unjust? The plurality of the High Court in Wong v The Queen (Gaudron, Gummow and Hayne JJ) said the following (at [58]): "… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." With respect, I do not regard this statement as establishing that only implied errors of principle animate appellate intervention for manifest excess.
With respect to the Court's focus where an aggregate sentence is said to be manifestly excessive, Bathurst CJ in Kerr v R [2016] NSWCCA 218 stated the following at [114]: "… the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
It is the "consideration of all of the matters relevant to fixing the sentence" that may reveal manifest error in the sentenced passed: Hili at [60]. However, the Court's task is subject to the principle stated in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671, [15]: "… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion."
Naturally, a finding of manifest excess is a conclusion, and "does not admit of lengthy exposition": Hili at [59].
In written submissions, Ms Kluss drew the Court's attention to Mitchell, Allan v R; Mitchell, Paul v R; Mitchell, Michael v R [2014] NSWCCA 212. In the case of the Mitchell brothers, the sentencing judge sentenced Allan to 6 years imprisonment with an overall non-parole period of 4 years and 6 months; Paul to 5 years and 9 months imprisonment with an overall non-parole period of 4 years and 1 month; and Michael to 5 years and 3 months imprisonment with a non-parole period of 3 years and 9 months. After finding the sentences to be manifestly excessive, R A Hulme J (with whom Bathurst CJ and Adams J agreed) resentenced the brothers as follows: for Paul, 4 years and 4 months with a non-parole period of 2 years and 10 months; for Allan, an overall term of 4 years and 8 months with a non-parole period of 3 years and 3 months; and for Michael, an overall term of 4 years with a non-parole period of 2 years and 7 months.
Ms Kluss for the applicant sought to emphasise the following observations of R A Hulme J on manifest excess in the Mitchell brothers' case (at [90]-[91]): "… They were offences of a lower order of seriousness than it may be inferred that [the sentencing judge] considered them to be, although certainly not at the lowest end of the range. They involved incursions into commercial premises rather than private residential homes and the property stolen was unlikely to have had sentimental value to the owners. The serious indictable offence was stealing as opposed to something more serious; and the circumstance of aggravation was constituted by the offenders being in company. Circumstances of aggravation that may be involved in offences of this type include offenders being armed; using corporal violence; inflicting bodily harm; depriving a person of their liberty; or knowing that someone is within the premises. Generally speaking, those circumstances are usually of greater seriousness than when an offence is committed 'in company', particularly where no victim is confronted by the offenders. "Further, it was accepted that there were none of the aggravating factors listed in s 21A(2) of the Crimes (Sentencing Procedure) Act such as the offences being committed in a home; the offences causing substantial loss; or the offences being part of planned or organised criminal activity. As to the latter, it may fairly be said that the offences were executed in a rather clumsy and amateurish fashion."
The offending by the Mitchell brothers were break enter and steal, larceny and enter enclosed lands offences. The short facts are: they broke into enclosed lands and stole a spare tyre and badges belonging to a Toyota motor vehicle; they forced entry onto a property and stole a barbecue, alcohol, a tent and gardening equipment; they broke into a store and stole a safe and cash in the sum of $8,613.50; and they stole around $1250 worth of work equipment from a work vehicle on a rural property. Brother Paul was also sentenced for an independent break, enter and steal offence involving the theft by forcing open a safe of $12,500.
The Crown argued that the outcomes in Mitchell demonstrated that the sentence passed on the applicant was not unreasonable or plainly unjust.
Comparable cases are of course relevant to sentencing because they can provide "a yardstick against which to examine a proposed sentence": Hili at [54]; Director of Public Prosecutions (Commonwealth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at 70-71, [303]-[305]. A consideration of the outcomes in like cases may also promote consistency in sentencing. However, what is sought is consistency in the application of applicable principles, not numerical outcomes. Normally, for comparable cases to be of value a range of cases needs to be considered. Even so, a consideration of comparable cases will but rarely be determinative of the issue.

Principles - Bugmy

The Bugmy principle is well understood and may be taken to have been expressed by the plurality of the High Court at [43] - [44]: "… The experience of growing up in an environment surrounded by alcohol abuse and violence 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. "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 the 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."
In the case at hand, we are not considering the effect of profound childhood deprivation upon an offender who has been sentenced for crimes of violence. Even so, the general principle will operate and apply across a range of offending. For instance, in the present case it may explain the applicant's almost immediate relapse into offending on release to parole for the purpose of funding a drug habit and supporting himself. It may also have served to mitigate the offending more generally, given that the applicant's substance abuse appears to have had its origin in his childhood deprivation. This too, may have served to further reduce his moral culpability.

Consideration

Given the sole ground for the proposed appeal, there has been no challenge to the factual findings made by her Honour nor to her assessment of the objective criminality in the circumstances. It is not said that her Honour erred by rejecting Ms Watson's diagnosis of the applicant's "mental health issues". Having said this, I interpolate that an affidavit of the applicant's solicitor affirmed on 11 April 2021 was read on the usual basis in the event of re-sentencing. A report of Dr Olav Nielssen, psychiatrist, dated 10 March 2021 was annexed, a matter to which I will return.
Bearing firmly in mind the principle emphasised in Lowndes (at [53] above) that mere disagreement with the outcome at first instance does not justify appellate intervention in sentencing matters, and having reviewed the material at first instance, I am persuaded that the sentence passed on the applicant is manifestly excessive.
Although a single comparator provides a very insecure foundation for the drawing of conclusions, the short facts in the Mitchell Brothers case as I have summarised them above (at [57]) suggests that the offending in those cases was somewhat more serious than the applicant's offending, if only because significant sums of money were involved in some of the offences. Although not decisive, the value of the property stolen is of some significance in assessing the objective seriousness of offending of the type with which we are concerned in this case. Looked at this way, I am of the view that the applicant's offending fell more into the low range than the mid-range of seriousness for this offending.
I am also of the view that her Honour laid rather more emphasis upon general deterrence than was called for in the circumstances by treating this kind of offending involving commercial premises as of equal seriousness with offending involving dwellings or residential premises (see [42] above). As R A Hulme J made clear in Mitchell (at [90]-[91]), there is an important difference between commercial premises, on the one hand, and homes, on the other, for the purpose of assessing objective seriousness. To my mind, this difference applies generally. Her treatment of the difference between commercial and residential as, in effect, immaterial, led her Honour to lay more emphasis on the need for general deterrence than the circumstances of the offending required. That is not say that the law should not seek to discourage break and enter offending of all types. I acknowledge that offending of the type engaged in by the applicant involving damage to property, a degree of ransacking and the theft of business equipment exposes business owners to unnecessary expense, inconvenience and not inconsiderable vexation. Comparisons may be odious, but the law constantly requires them to be made including for the purpose of sentencing.
I accept that the reckless wounding offence for which the applicant was on parole at the time of this offending was a serious one of a concerning nature. On the other hand, the balance of his record was of less concern than many. It may have disentitled the applicant to the leniency that might be extended to a first-time, relatively young offender, but it was not such as to call for any particular consideration of community protection as a factor indicating a longer rather than shorter sentence within the range as being called for.
For reasons I have already adverted to when discussing the Bugmy principle, the relationship between the applicant's substance abuse and his offending had its origin in his childhood deprivation. It should be added to the applicant's childhood deprivation generally to produce a greater degree of reduction in his moral culpability for the offending than allowed by her Honour.
I have not lost sight of the considerations that this was a crime-spree over two or three days involving breaking into a number of commercial premises, and the use of a stolen car when the applicant had only just been released to parole for previous serious offending. There is no doubt that no other sentence than a further term of imprisonment was called for. The separate criminality for each of the charged offences and the requirement to take into account the Form 1 offending when dealing with sequence 12 were matters which had to inform the length of the sentence imposed. When one considers her Honour's indicative sentences in light of the aggregate sentence imposed, it is clear that she factored in a not inconsiderable degree of concurrency in the sentence. Perhaps a greater degree of concurrency with the previous sentence could have been adopted by further backdating. But her Honour's approach to this issue in the applicant's case is the same approach as she adopted when dealing with the co-offender. Notwithstanding these factors which I accept are of some force, and cannot be overlooked, I remain of the view that the sentence imposed is unreasonable and that a lesser sentence is called for.
For the purpose of re-sentencing, I have had regard to Dr Nielssen's report in addition to the evidence led at first instance. Although Dr Nielssen had access to the Justice Health records relating to the applicant which disclose that the applicant is being treated in custody with anti-psychotic medication, the expert did not have previous clinical records confirming a pre-existing diagnosis of Schizophrenia or any other psychotic illness. So far as that issue is concerned, the diagnosis he proposes is a "possible underlying psychotic illness". This does not in my judgment take that issue any further. It does not displace her Honour's rejection of Ms Watson's diagnosis, and it is not possible to make a positive finding in relation to any underlying psychotic illness on the basis of such a guarded expression of professional opinion. Dr Nielssen was unable to confirm any previous admission to any psychiatric hospital. He does, however, confirm a diagnosis of substance use disorder, which of course, appears to be a significant factor in the applicant's past offending as well as the index offending. It informs the risk of future offending and represents the substantial reason why her Honour was guarded about the applicant's prospects of rehabilitation.
On the whole, I would maintain her Honour's approach subject to reducing the assessment of objective seriousness more to the low range, reduce to a degree the weight her Honour placed upon general and specific deterrence, and further reduce the assessment of moral culpability by giving greater emphasis to Bugmy considerations. I would not alter the degree of backdating allowed by her Honour and I would maintain her finding of special circumstances to the same degree.
Concerning parity, I too am of the view, as was her Honour, that the applicant should receive a lower sentence than co-offender: he is younger and less mature; his record is somewhat better; and he was a junior partner in the enterprise. At the same time, it needs to be born in mind that unlike the applicant, the co-offender was not on conditional bail when the offending occurred.

Re-sentence

Since writing my judgment, I have had the benefit of reading the joint judgment of Leeming JA and R A Hulme J in draft. As my views are a minority opinion, I consider it inappropriate to formulate the sentence I would otherwise propose. Suffice it to say that I would grant leave, allow the appeal, quash the sentence passed in the District Court, and re-sentence the applicant to a lesser term of imprisonment.

Amendments 27 October 2021 - Paragraph [73] R A Hulme amended to R A Hulme 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: 27 October 2021

Crimes Act 1900(NSW)ss 112, 113, 154A

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