Kennedy v R

[2010] NSWCCA 260

Court of Criminal Appeal (NSW)|2010-10-22|Before: Simpson J, Fullerton J, Hulme J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2010-10-22

Before

Simpson J, Fullerton J, Hulme J

Source

Original judgment source is linked above.

Judgment (55 paragraphs)

[1]

JUDGMENT OF: Simpson J at 1; Fullerton J at 87; RA Hulme J at 88

[2]

The applicant re-sentenced as follows: Count 1: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2008 and expiring on 14 January 2011 with a balance of term of 9 months expiring on 14 October 2011. Count 2: Imprisonment for a fixed term of 2 years commencing on 15 October 2008 and expiring on 14 October 2010. Count 3: Imprisonment made up of a non-parole period of 3 years and 9 months commencing on 15 October 2009 and expiring on 14 July 2013 with a balance of term of 11 months expiring on 14 June 2014. Count 4: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2009 and expiring on 14 June 2011 with a balance of term of 7 months expiring on 14 January 2012. DECISION: Count 5: Imprisonment for a fixed term of 2 years commencing on 15 October 2009 and expiring on 14 October 2011. Count 6: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2010 and expiring on 14 June 2012 with a balance of term of 7 months expiring on 14 January 2013. Count 7: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2011 and expiring on 14 January 2014 with a balance of term of 9 months expiring on 14 October 2014. Count 8: Imprisonment for a fixed term of 2 years commencing on 15 October 2011 and expiring on 14 October 2013. Count 9: Imprisonment made up of a non-parole period of 2 years commencing on 15 October 2012 and expiring on 14 October 2014 with a balance of term of 3 years expiring on 14 October 2017. Count 10: Imprisonment for a fixed term of 1 year and 6 months commencing on 15 October 2012 and expiring on 14 April 2014. The aggregate sentence is therefore one of 9 years with a non-parole period of 6 years.

[17]

● one count of knowingly dealing in the proceeds of crime (money laundering). 5 Four additional offences, each of recruiting a child (or children) to carry out or assist in carrying out criminal activity, listed on a Form 1, were taken into account in the sentence imposed in respect of the aggravated break, enter and steal offence. 6 Each aggravated break, enter and steal offence carries, pursuant s 112(2) of the Crimes Act 1900, a maximum penalty of imprisonment for 20 years. Pursuant to Div 4 Pt 1A of the Sentencing Procedure Act, a standard non-parole period of 5 years is applicable. 7 Each offence of recruiting a child for the purpose of criminal activity carries, pursuant to s 351A of the Crimes Act, a maximum penalty of imprisonment for 10 years. The offence of stealing firearms carries, pursuant to s 154D(1) of the Crimes Act, a maximum penalty of imprisonment for 14 years. The offence of knowingly dealing in the proceeds of crime carries, pursuant to s 193B(2) of the Crimes Act, a maximum penalty of imprisonment for 15 years. 8 Freeman DCJ sentenced the applicant as follows: Count Offence Fixed term Head sentence NPP Commencement date 1 Aggravated break, enter and steal 3 years 2 years and 3 months 15 October 2008 2 Recruit child 2 years 15 October 2008 3 Aggravated break, enter and steal (plus Form 1 offences) 4 years and 8 months 3 years and 9 months 15 April 2010 4 Steal firearms 2 years and 3 months 1 year and 8 months 15 April 2010 5 Recruit children 2 years 15 April 2010 6 Aggravated break, enter and steal 2 years and 3 months 1 year and 8 months 15 October 2011 7 Aggravated break, enter and steal 3 years 2 years and 3 months 15 April 2013 8 Recruit children 2 years 15 April 2013 9 Aggravated break, enter and steal 5 years 2 years 15 April 2014 10 Money laundering 1 year and 6 months 15 April 2014 s 166 offence Drive whilst disqualified 3 months disqualification from driving for 5 years from 27 July 2009 15 April 2014

[23]

Counts 9-10: aggravated break, enter and steal; money laundering 25 These were referred to as "the October charges". They were committed on 4 October 2008. Count 9 was an offence of aggravated break, enter and steal. It followed a similar pattern to those already described. In company with seven young men (all under the age of 18) the applicant walked to a residential property in Albury. At his direction, one of the co-offenders knocked on the door. When there was no answer, the applicant told the others to jump the fence, which they did. The applicant smashed a rear window. Again at the applicant's direction, two of the co-offenders entered the house, and unlocked the sliding door. The others then entered. The offenders took various items of property, including a computer, a television set, and jewellery. They found keys to a vehicle that was in the garage, and put the stolen property into the vehicle, which the applicant then drove to his home. He then drove the vehicle to another location where he left it. 26 The applicant was at the time disqualified from holding a driver's licence. The driving of the vehicle constituted the s 166 offence. 27 Later, the applicant sold the television set. This constituted the offence of money laundering. 28 In respect of these offences the applicant was sentenced, respectively, to imprisonment for 5 years with a non-parole period of 2 years, and a fixed term of imprisonment for 18 months, each commencing on 15 April 2014, a further accumulation of 12 months. 29 I pause to observe that, in respect of each break and enter offence that was associated with a recruit child(ren) offence, the sentence imposed in respect of the latter was a fixed term, less than, and therefore wholly subsumed within, the sentence imposed in respect of the break and enter offence. The judge treated all offences committed on any occasion as part of a sub-set, with all sentences to be served concurrently. As it would have been entirely appropriate to have accumulated the recruit child(ren) offences upon the s 112(2) offences, this was a considerable benefit to the applicant.

[24]

The applicant's personal circumstances 30 Evidence of the applicant's personal circumstances was put before the sentencing judge through a Pre-Sentence Report prepared by Ms Kellie Becquet. The information it yielded was relatively scanty. 31 The applicant was born in July 1984, and was 23 and 24 years of age at the time of this offending. He has a criminal record that began in the Children's Court in 2001, when he was 17, and contains entries for assault, larceny, and public order offences. There are also a number of instances of break, enter and steal, although some of these appear to be entries in relation to the same offence or offences, following breaches of bonds imposed. Although, on two occasions, he was sentenced to terms of imprisonment, in each of those cases execution of the sentence was suspended under s 12 of the Sentencing Procedure Act. The applicant had therefore never served a sentence of imprisonment in custody. Where, in respect of these earlier offences, the applicant was subject to supervised liberty, he initially responded positively, so much so that a recommendation for early termination was made. However, that auspicious beginning was short-lived. 32 On 14 January 2008, just one week before this spate of criminality began, the applicant appeared at the Local Court in Albury charged with having custody of an offensive weapon in a public place, resist police officer in the execution of duty, intimidate police officer in the execution of duty, offensive behaviour, and affray. He was subjected to three bonds and a Community Service Order. Those bonds were, of course, current at the time of the present offences. His response to this supervision was described as "unsatisfactory to the extreme" and he was assessed as unsuitable for further supervised community based sentencing options in the foreseeable future. 33 This deterioration was attributed by Ms Becquet to an increase by the applicant in his alcohol consumption. 34 Ms Becquet recorded that the applicant is the eldest of eight children of an Aboriginal family, born in Mildura. When he was about seven years of age he and his three eldest siblings were placed in the care of his maternal grandmother in Albury. This was because, due to significant alcohol issues, his mother was unable to take care of them. The applicant has had no relationship with his father. 35 The applicant left school at 14 years of age, prior to completing year eight. He is said to have attended an unidentified TAFE course, but no detail about this was available. 36 The applicant himself had significant drug and alcohol issues. He began drinking alcohol at 13, and his use escalated. As a result, for two years he was sent to live with another relative. By the age of 23 he had kidney damage. He ceased drinking spirits, but did not give up beer, which he consumed in large quantities. Ms Becquet considered that he lacked insight into the seriousness of his alcohol consumption. 37 He began using cannabis also at about the age of 13, and continued doing so until the age of 20 when, he said, a lung collapsed and he ceased its use. 38 He acknowledged to Ms Becquet that he needed assistance with rehabilitation. 39 At the age of 25 (at the date of sentencing) the applicant was the father of four children, of whom one was in his care because the mother of the children was unable to look after all of them. He has maintained amicable relations with the children's mother although they are separated. 40 Ms Becquet did not express any level of optimism about the applicant's prospects of rehabilitation.

[41]

as one such factor. 60 In the sentencing proceedings, the applicant's legal representative catalogued those aggravating factors that he contended were relevant. One that he expressly mentioned was sub-para (m). The Crown's legal representative did not demur. 61 In those circumstances, his Honour accepted the submission and identified that factor as one of the aggravating factors he took into account. 62 It was, as was conceded by the Crown in this Court, incorrect to do so. The series of offences committed by the applicant involved "multiple victims and a series of criminal acts", but that cannot be said of any of the individual offences. 63 Precisely the same issue arose in R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740. Howie J, with whom Grove and Hall JJ agreed, said: "28 His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) 'the offence involved multiple victims or a series of criminal acts'. Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court." 64 On appeal, the Crown, while conceding the error, contended that it was of "little significance", because the outcome would, in all likelihood, have been the same even in the absence of mention of s 21A(2)(m). 65 The difficulty with this submission is that his Honour merely recited the aggravating factors that had been mentioned by the applicant's legal representative, without additional comment. There is no indication as to how this so-called aggravating factor impacted upon the ultimate sentence or sentences. 66 It would, of course, have been perfectly appropriate for the judge to take into account, on the question of totality, that each offence was one of a series of connected, or similar, criminal activity. But, as is well known, the principles stated in Pearce v The Queen [2009] HCA 57; 194 CLR 610 demand that an appropriate sentence be imposed in respect of each offence. It would be wrong if any individual sentence were increased by reason that it "involved multiple victims or a series of criminal acts". 67 As I have said, it is not clear how, if at all, taking into account this factor affected the outcome. Since I have come to the view that other errors affected the sentences, it is unnecessary to determine the actual impact of this error.

[43]

(By s 45, if it considers it appropriate to do so, the court may decline to set a non-parole period and instead impose a fixed term; where it takes that course it is required to give reasons (s 45(2)). As will be seen from the table of sentences above, that is the course his Honour took in relation to a number of the offences. He did not, as s 45(2) required him to do, give reasons for doing so; by reason of sub-s (4), failure to state the reasons does not invalidate the sentences. It may readily be inferred that the reason for declining to set non-parole periods in respect of those sentences was that he intended to accumulate subsequent sentences, which would wholly swallow the sentences: setting a non-parole period would have no practical effect.) 69 Having given the reasons I have set out above - that this would be the applicant's first time in custody, his need for rehabilitation, and the need for adjustment required by virtue of the accumulation of sentence - his Honour expressly found that special circumstances within s 44(2) existed. 70 His Honour then imposed fixed terms of imprisonment in respect of counts 2, 5, 8 and 10. In respect of counts 1, 4, 6 and 7 he imposed sentences in accordance with the s 44(2) proportions. In respect of count 3 he imposed a sentence of 4 years and 8 months, with a non-parole period of 3 years and 9 months - the non-parole period being 80 percent of the total sentence. In respect of count 9, he imposed a sentence of 5 years with a non-parole period of 2 years - giving substantial effect to the finding of special circumstances. 71 However, by reason of the accumulation he ordered, the overall sentence, of 10 years and 6 months with a non-parole period of 7 years and 6 months was 71.5 percent of the overall sentence - a small variation of the s 44 proportion of 75 percent, ie 4½ months. The complaint made under this ground is primarily directed, not to the proportions between the non-parole periods and head sentences of the individual sentences, but the ratio to be found in the aggregate sentence. 72 To determine whether error occurred in the outcome it is necessary to understand what his Honour intended to achieve by the finding of special circumstances. In expressing his finding of special circumstances, the judge gave as reasons: "… the prisoner's first time in custody, his need for rehabilitation … but the most potent factor has been the adjustment required by virtue of the accumulation of sentence." 73 That a sentence being imposed will represent an offender's first time in custody is frequently cited as a reason for a finding of special circumstances. Why that should be so is seldom spelled out. It may be that, in a particular case, it is considered that a first term of imprisonment may be seen as diminishing the emphasis to be placed upon specific deterrence (it being assumed that any custodial sentence will operate as such a deterrent); it may be seen as relevant to that offender's need for protracted supervision in order to reintegrate into community life on release; it may, in some undefined way, merely reflect a compassionate approach, particularly where there is evidence of already accomplished rehabilitation. Whether the fact that a sentence will represent a first period of incarceration for an offender ought to constitute a s 44(2) special circumstance has previously attracted the attention of this Court: see, for example, Clarke v R [2009] NSWCCA 49 at [12] per McClellan CJ at CL. 74 Both that circumstance and the need for rehabilitation are factors that would suggest a variation in the statutory proportions of the aggregate sentence, as distinct from the individual sentences. 75 The "adjustment required by virtue of accumulation" suggests a variation in the proportions of individual sentences - sometimes in order to restore the s 44(2) proportions to the overall sentence. 76 Here, it was submitted on behalf of the applicant that his Honour intended to use the finding of special circumstances to accommodate accumulation - by implication, to depart from the s 44(2) proportion in the overall sentence. 77 I am not convinced that this was his Honour's intention. He described the adjustment required by virtue of accumulation as "the most potent factor". However, the fact of a first term of imprisonment, and need for rehabilitation were not insignificant factors, and they are factors that would result in departure from the ratio in the overall sentence. 78 In any event, I am satisfied that the applicant's personal circumstances were such that intensive rehabilitation will be required on his release if he is to avoid recidivism. 79 Affidavit evidence was received against the possibility that this Court might proceed to re-sentence. The applicant affirmed that, since his incarceration, he has sought rehabilitation for his alcohol addiction and has completed a drug and alcohol program and was due to commence another program shortly. He has become an Aboriginal delegate in gaol. He has been assessed for depression but told that he did not need medication. 80 In a separate affidavit, the applicant's solicitor annexed a letter written by the applicant in which he expresses his remorse for his offences, and his desire to resume normal life and look after his four children. 81 It is difficult to assess the extent to which these offer hope of rehabilitation greater than before the sentencing judge.