Ground 1: His Honour wrongly double punished the Appellant for the single act of larceny contained within Counts 3 and 4 of the indictment.
33 Counsel for the applicant pointed to the agreed facts relating to Count 3 (the aggravated break, enter and steal) and Count 4 (steal motor vehicle). They were the same. The larceny, the subject of Count 3, was precisely the same as the vehicle stolen in Count 4. Yet separate sentences were imposed in respect of each count, although they were made concurrent. Attention was drawn to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624. The separate charge for stealing a motor vehicle (Count 4) should have been dismissed. Counsel for the applicant, in written submissions, said this: (p 6)
"48. The criminality involved in the steal motor vehicle was entirely subsumed in the criminality involved in the break, enter and steal in company charge. In these circumstances the Applicant was punished twice for the same conduct."
34 The Crown submitted that there had been no practical injustice. His Honour recognised that the two charges were essentially the same. The sentence imposed in respect of the stealing of the motor vehicle was entirely subsumed within the sentence for Count 3. There was, therefore, "no effective punishment" or no additional punishment in respect of Count 4. In the context of an offence where the maximum penalty was 20 years, with a standard non parole period of 5 years (s 112(2) Crimes Act 1900), the sentence of 2 years was certainly not excessive.
35 Dealing with these arguments, in Pearce v The Queen (supra) the appellant was charged with a number of offences. They included two counts (Counts 9 and 10) that arose out of a single episode. The appellant broke into the victim's home and beat him. The indictment charged, first, that the offender had maliciously inflicted grievous bodily harm with intent to do the victim grievous bodily harm and, secondly, with breaking and entering the same victim's home and, whilst therein, inflicting grievous bodily harm. Counsel for the appellant sought a stay on the basis that the charges were an abuse of process. The application was refused. The appellant then pleaded guilty to a number of offences, including Counts 9 and 10. He was sentenced, in respect of Counts 9 and 10, to 12 years imprisonment with a minimum term of 8 years (less time in custody since his arrest) (Pearce supra [4]). The sentences were concurrent. An appeal to the Court of Criminal Appeal was dismissed. On appeal to the High Court, McHugh, Hayne and Callinan JJ dealt with the issue of double jeopardy for a single act. They said this: (at 623)
"42. It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. ... "
36 The Court considered whether, in these circumstances, the application for a stay should have succeeded. A plea in bar was not available since each offence contained elements not included in the other. Nor, for the same reasons, could either charge be dismissed as an abuse of process (Pearce supra [28]-[31]).
37 The Court, in these circumstances, turned its attention to the sentences that had been imposed. McHugh, Hayne and Callinan JJ said this: (at 623/4)
"45. To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
38 The order made was to set aside the sentences and remit the matter to the Court of Criminal Appeal for reconsideration. In making that order, their Honours said this: (at 624)
"49. Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. ... "
39 The Court of Criminal Appeal then confirmed the sentence on Count 9 as being well within the range of appropriate discretion. It quashed the sentence on Count 10 and resentenced the offender to a fixed term of 2 years imprisonment (R v Pearce (Court of Criminal Appeal, 18 December 1998, unreported)).
40 Here, there was no application to dismiss Count 4. Unlike the original sentence in Pearce, the sentencing Judge imposed separate sentences in respect of Count 3 (2 years) and Count 4 (1 year) of different lengths reflecting, no doubt, his assessment of the criminality in each offence. He recognised the difficulties created by two charges having the common element of stealing a motor vehicle. In the course of submissions and a discussion about whether the sentences on Counts 3 and 4 should be concurrent, his Honour said this: (T 16)
"The fourth offence must be because it's part and parcel of the same episode of criminality with the break, enter and steal because what he stole was the motor vehicle."
41 His Honour repeated that statement in his remarks on sentence: (ROS 4/5)
"It is apparent that the third offence which was the aggravated break and enter and commit serious indictable offence of larceny and the fourth offence are the same incident.
The break, enter and steal in company consisted of your breaking into the garage and stealing the motor vehicle and the offence of stealing the motor vehicle was the vehicle that you took and drove from that garage so that the third and fourth offences are as I have said essentially the same incident."
42 The sentences were concurrent, in contrast with the sentences imposed in the remaining counts where, in each case, there was partial accumulation. No doubt his Honour was attempting to avoid punishing the applicant twice for the same conduct.
43 But was there error entitling the applicant, subject to s 6(3) of the Criminal Appeal Act 1912, to be resentenced, at least in respect of Counts 3 and 4? In Pearce there were differences between the two offences but some overlap. Here, Count 4 simply required proof that the applicant intentionally stole a motor vehicle (s 154F Crimes Act 1900), which was also an element of Count 3. There was no separate act of criminality warranting a separate charge and penalty. The applicant's conduct whilst driving the stolen vehicle could have been the subject of separate offences (had the police chosen). In my view the indictment should not have included a separate charge in respect of stealing the motor vehicle (Count 4). Had there been an application to dismiss the charge, it would likely have succeeded. However, as I have stated, no such application was made. His Honour was confronted with an indictment which included the two charges. He recognised the problem. He was clearly conscious of the requirements of Pearce, including the need for separate sentences in respect of each offence and accumulation in respect of any additional criminality. The sentences were concurrent precisely because the sentencing Judge recognised there was no additional criminality in Count 4.
44 Similar issues have recent arisen under the Criminal Code Act 1995 (Cth) ("Criminal Code"). In Schembri v Regina [2010] NSWCCA 149, the offender was charged with obtaining a financial advantage by deception (contrary to s 134.2(1) of the Criminal Code) and an additional charge of dealing with the proceeds of crime (contrary to s 400.4(1) of the Criminal Code). On appeal, it was asserted there was error on the part of the sentencing Judge in not imposing sentences on the money laundering counts (s 400.4(1)) which were wholly concurrent. The Crown conceded error. It acknowledged that there were a number of recent decisions in this Court criticising the practice of charging both deception in obtaining money and then dealing with the proceeds of crime, once the money had been secured. In Thorn v Regina [2009] NSWCCA 294, Howie J said this:
"27. This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. ... "
45 In Nahlous v R [2010] NSWCCA 58, the offender was charged with breaching the Copyright Act 1968 (Cth) (and thereby obtaining money). At the same time he was charged with dealing in the proceeds of crime (s 400.6(1) of the Criminal Code), the Court said this:
"17. We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty."
46 In Schembri (supra), the Court re-emphasised this Court's disapproval of such prosecutorial actions (at [16]). The error was corrected by making the sentence on the money laundering offence concurrent with the substantive offence, so that there was no additional punishment.
47 Here his Honour dealt with the indictment before him. He made the sentences on Counts 3 and 4 concurrent. There was no additional punishment in respect of Count 4. In circumstances where there had been no application to strike out, I would not find error.