Lehn v R

The applicant's subjective circumstances

1. The applicant was aged 24 years at the date of the offence. He had a criminal record, which the sentencing judge described as, though not extensive, not one entitling him to leniency. He was convicted in the Children's Court in 2005 of two charges of armed robbery for which he received 18 months control orders. In 2009, he was fined for possession of a prohibited drug and for stealing in a dwelling house and received a good behaviour bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). In 2010, he was fined for possessing a prohibited drug and placed on a s 9 bond for shoplifting. In 2011, he was convicted of common assault and damaging property and again received s 9 bonds.
2. Tendered at the hearing was the report of a forensic psychologist, Mr Patrick Sheehan, who interviewed the applicant on 2 October 2014. Mr Sheehan stated that the applicant believed he was raised by his natural parents until aged 15 when he was told his father was in fact his stepfather, a discovery he found painful and bewildering. The applicant told Mr Sheehan he had no contact with his biological father, who he heard was a chronic drug addict. The applicant described his mother as "sweet natured and loving" but that his stepfather was a strict disciplinarian who "flogged" him up to three times a day. He told Mr Sheehan he remained in close contact with his mother, who visited him weekly, and his sister, who visited him intermittently.
3. The applicant told Mr Sheehan that he had difficulties from a young age. He said he frequently ran away from home. He said that aged 13 he was placed in a "Youth off the Streets" residential home in the Southern Highlands, where he was exposed to violence and illicit drug use. He told Mr Sheehan his conduct pattern worsened thereafter and, since the age of 13 years, he did not reside consistently with his family.
4. The applicant was diagnosed with ADHD during kindergarten. So far as his education was concerned, he said that he obtained Year 9 equivalence. He mainly held "cash in hand jobs", the longest period of continuous employment being 13 months as an assessor and detailer.
5. The applicant told the psychologist that his most significant intimate relationship lasted for 6 years with a fellow drug user and homeless person he met in his late teens. He said his partner overcame her substance problem. He said that he had fathered a child and that he tried to take parenthood seriously. He said his partner left him after he was charged with the offences the subject of these proceedings. However, he told the psychologist that his relationship with his former partner remained reasonable and his mother brought his daughter to see him every weekend.
6. So far as his drug use was concerned, the applicant told Mr Sheehan that he used cannabis but escalated to amphetamines by the age of 15. He said he started using heroin from the age of 18, although he abstained from heroin between the ages of 18 and 20 years, during which time he commenced methylamphetamine use.
7. The psychologist stated the applicant's drug history met the diagnostic threshold of substance use disorder. He stated that in his view the culmination of anxiety, substance use disorder and personality disorder played the dominant role in sustaining the applicant's community maladjustment and criminality.
8. The applicant gave evidence at the sentencing hearing. He expressed remorse and read a letter to the sentencing judge in which he reiterated that remorse and stated that he resolved to do whatever he had to do to rehabilitate himself.

The remarks on sentence

1. The sentencing judge referred to the guideline judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte), which he said set out a number of aggravating factors for this type of offence, whilst recognising that they operated as a guide, not a checklist. He referred to the fact that the applicant was driving at an excessive speed and in a manner which caused his passenger to scream at him to slow down when he started showing off. He noted that the applicant's driving was substantially impaired by the use of illicit drugs.
2. The sentencing judge pointed to the fact there was a significant potential for adult and child pedestrians to be put at risk. He concluded that the applicant had abandoned his responsibility to other users of the road and therefore his moral culpability was high.
3. Dealing with the objective seriousness of the offence, the sentencing judge stated that, while the circumstances in question did not perhaps fall into the worst case category, they fell within the upper end of the range.
4. The sentencing judge referred to the subjective circumstances of the applicant which I have set out above. He noted that the applicant intended to work through the prison classification system to obtain a work release program. He accepted that the applicant had time to reflect on the enormity of his conduct and that his expressions of remorse were genuine. He stated that he was satisfied that, provided he remained drug free, he had reasonable prospects of rehabilitation.
5. The sentencing judge concluded that both general and specific deterrence were significant factors. In relation to the accumulation of the sentences, his Honour stated that, although the offences occurred on the same day they were separate and distinct. He noted that the applicant always contemplated the destruction of the motor vehicle and thus, it was his intention to permanently deprive the owner of its possession. In those circumstances, he considered partial accumulation was called for.
6. With respect to the Form 1 offences, the sentencing judge noted what was said by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 that the essence of the process is to impose a longer sentence than would be imposed if the primary offence stood alone: at [18].

The grounds of appeal

1. The grounds of appeal are: "1 The sentencing judge erred in applying only a 20 per cent utilitarian discount for the applicant's plea of guilty entered at the earliest opportunity in the Local Court. 2 The sentence imposed on the applicant was manifestly excessive."

Ground 1

1. The Crown accepted that the judge had erred in giving a discount for the utilitarian value of the plea of 20% rather than 25%. The Crown stated that it had made no submission that anything less than a 25% discount was appropriate and the sentencing judge gave no indication of his intention to grant a lesser discount. It was accepted, in those circumstances, that procedural unfairness had occurred.
2. The issue which divided the parties was the consequence of the error. The Crown submitted that it did not vitiate the entire sentencing discretion but only a discrete component, namely the discount for the plea and thus only required a re-exercise of the discretion so far as it concerned the discount to be applied for the plea of guilty. The applicant, on the other hand, contended that once error had been established, the Court was required by s 6(3) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) to resentence the applicant, taking into account any additional material placed before the Court for that purpose. Having regard to the importance of this issue, a five judge bench was convened to consider it.
3. It is convenient to deal with this issue prior to dealing with Ground 2. This is because, if the Court has to form an independent view of whether a lesser sentence is warranted in law, it will be necessary for it to form a view as to the appropriate sentence as distinct from determining whether the sentence imposed by the sentencing judge was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59]. Thus, if the Court is required to resentence, Ground 2 will fall away.

Submissions

1. The Crown, in its original submissions, placed reliance on the decision of R A Hulme J in Application by Darush Majid pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2016] NSWSC 561. In that decision, his Honour referred to some errors as only affecting a discrete component of the sentencing outcome, giving examples which included the extent of the discount for a plea of guilty. His Honour expressed the view that, in those circumstances, there was a persuasive argument in favour of the view that all that was required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) was to re-exercise the discretion in respect of the discrete component of the sentence infected by error.
2. The Crown submitted that that approach was consistent with the approach taken by this Court in O'Connell v R [2016] NSWCCA 43 (O'Connell) at [29] and Daniels v R [2016] NSWCCA 35 (Daniels) at [61].
3. At the hearing, the Crown accepted that the grant of a discount for a plea was not entirely a matter of arithmetic, as it was necessary to ask whether the sentence derived after the application of any discount was reasonably proportionate or disproportionate to the offending the subject of the sentence to be imposed.
4. In supplementary submissions filed after the hearing, the Crown, whilst noting that the High Court in Kentwell adopted the analysis of Spigelman CJ in Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 (Baxter), submitted that both Kentwell and Baxter were dealing with error that vitiated the sentencing process. It submitted that, by contrast, this appeal was concerned with an error in respect of a discrete part of the process. Reliance was placed on what was said by R A Hulme J in Martin v R [2016] NSWCCA 104 (Martin) to the effect that all a court should do in circumstances such as the present is re-exercise the discretion so far as it concerns, in the words of the Crown, "the discount for plea". The Crown placed particular reliance on the statement in Kentwell that not every error vitiates the exercise of the sentencing discretion: at [42].
5. The Crown emphasised that the only error in the present case was in respect of a discrete component of the sentence, which, it said, referring to the remarks of R A Hulme J in Martin, had no potential bearing on the whole sentence.
6. The Crown submitted that the judgment of R A Hulme J in Martin accepts that the correction of a "discrete component" error does enliven the discretion of the Court of Criminal Appeal but only to the limited extent of that error. It submitted that s 6(3) of the Criminal Appeal Act is capable of facilitating the exercise of the discretion limited to a component of the sentencing outcome. It submitted that this was the approach taken by Fullerton J in O'Connell.

Consideration

1. In my opinion, the Court having found error, it is necessary for it to exercise its discretion to resentence the applicant, rather than to focus on correcting the discrete component of the sentence which was the subject of the error. That this is so can be demonstrated by consideration of the nature of the error, a consideration of the text of s 6(3) of the Criminal Appeal Act and the authorities which have dealt with the issue.

The nature of the error

1. It is important to bear in mind that the error in the present case was not, for example, a mistake in the calculation of the discount to be granted for the early plea, nor a mistake as to when the plea was entered. By contrast, the sentencing judge expressly noted that the plea was entered at the earliest opportunity but he considered that a 20% discount was appropriate so as not to reduce the sentence below that which would reflect the Court's assessment of the objective gravity of the offence.
2. In that context, it must be emphasised that the grant of the utilitarian discount of 25% for a plea entered at the earliest possible opportunity is not mandatory. Section 22(1A) of the Sentencing Procedure Act provides that a lesser penalty imposed under that section must not be unreasonably disproportionate to the nature and gravity of the offence. Although it is well accepted, consistent with the guideline judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 (Thomson), that a utilitarian discount of 25% will generally be granted for a plea entered at the earliest possible opportunity, it remains a matter for the discretion of the sentencing judge: Thomson at [153]; see also Marrow at [39].
3. This is not to suggest that the instinctive synthesis approach in sentencing is inconsistent with the award of a discount for a factor which can be seen to relate to a purpose distinct from a sentencing purpose, as is the case with a discount solely related to the utilitarian value of the plea. So much was made clear by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [74]: "[74] Nor is the instinctive synthesis approach inconsistent with awarding a discount for some factor, provided that discount relates to a purpose distinct from a sentencing purpose. The distinction between permissible and impermissible quantification of 'discounts' on a sentence will usually be found in whether the quantification relates to a sentencing purpose rather than some other purpose. So, the quantification of the discount commonly applied for an early plea of guilty or assistance to authorities is offered as an incentive for specific outcomes in the administration of criminal justice and is not related to sentencing purposes. The non-sentencing purpose of the discount for an early guilty plea or assistance is demonstrated by the fact that offenders are ordinarily entitled to additional mitigation for any remorse or contrition demonstrated with the plea or assistance, aside from the discount for willingness to facilitate the course of justice. That said, I think the use of discounts should be reserved for only one - maybe two - factors in a particular sentence that serve some goal other than a sentencing goal."

The relevant legislation

1. Whether or not it is necessary to re-exercise the sentencing discretion generally, as distinct from the discrete component of the sentence affected by the error, depends ultimately on the construction of s 6(3) of the Criminal Appeal Act. The subsection is predicated on error of the nature of that described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505. The subsection is in the following terms: "6 Determination of appeals in ordinary cases … (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
2. As was stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, the task of statutory construction must begin with a consideration of the text itself, although the meaning of the text may require consideration of the context which includes the general purposes and policy of the provision: at [47]; see also Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. The text of the section under consideration in this case, where it applies, requires a court to form an opinion as to whether some other sentence, whether more or less severe, is warranted in law. The section, as a matter of language, does not provide that if a discrete error is found, the sentence can be adjusted to take account of that error. It seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence, although, as pointed out in Kentwell at [43], not necessarily to resentence.
3. That seems to me consistent with what is evidently the purpose of the section, namely to ensure that a person whose sentence is affected by error is sentenced according to law.
4. Further, there are difficulties with the alternative approach. The instinctive synthesis approach to sentencing is now well-established. As explained by McHugh J in Markarian, it involves identifying all factors relevant to the sentencing discretion, discussing their significance and making a value judgment as to what is the appropriate sentence: at [51]. A separate adjustment of a particular component of a sentence infected by error does not seem consistent with this approach.

The authorities

1. What I have stated, in my view, is consistent with the authorities which have dealt with this issue, subject to two exceptions. In Simpson, Spigelman CJ noted that the appellant's submission in that case proceeded on the assumption that if he could identify some error then the Court would proceed to resentence: at [74]. He made the following remarks at [79]: "[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense."
2. Spigelman CJ explained these remarks in Baxter. In that case, his Honour made the following remarks concerning the construction of s 6(3): "[8] The dominant and active verbs in s 6(3) are both in the present tense, ie if the Court of Criminal Appeal 'is of opinion' and 'some other sentence … is warranted in law'. The employment of the past tense in the phrase 'should have been passed' is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence. [9] This interpretation is consistent with the reference in s 6(3) to s 5(1). That section permits an appeal 'against the sentence passed on the person's conviction'. The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s 6(3) should not be understood as saying 'should have been passed by the sentencing judge'. It should be understood as an institutional reference, ie 'should have been passed by the Court'. [10] When the Court of Criminal Appeal turns its mind to forming the opinion which s 6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court."

Is a lesser sentence warranted in law?

1. The parties were in agreement that their submissions on Ground 2 of the grounds of appeal could be treated as submissions on this issue.
2. In addition, the applicant relied on an affidavit sworn by him on 13 May 2016 and an affidavit of his solicitor, Stephen Eccleshall, affirmed on 13 May 2016. In his affidavit, the applicant repeated his remorse for what had occurred and indicated that, since his sentence, he has not breached any prison disciplinary rules. This was confirmed by the Corrective Services records annexed to Mr Eccleshall's affidavit.
3. The applicant stated in his affidavit that being on a methadone program has reduced his desire for illegal drugs and that he has been taking Zyprexa, the antipsychotic medication prescribed for him.
4. The applicant also stated in his affidavit that he wants to participate in programs to help him with his drug problem, but has, as yet, been unable to enrol in them. This was confirmed by the prison records annexed to Mr Eccleshall's affidavit.
5. The applicant also stated that, whilst at Goulburn Gaol and currently at Cooma Gaol, he has worked in the textile shop and has started studying for his Year 10 School Certificate. He remains in contact with his family and daughter. He stated that in the future he hopes he can get a job and become a good father to his children.
6. The applicant, whilst recognising the limitations, referred to the Judicial Commission's statistics for the period from April 2008 to March 2015, which shows that the head sentence imposed by the sentencing judge was the highest recorded sentence for the offence in question over that period. He pointed out that the statistics showed that, of the 43 offenders who were sentenced to imprisonment for an offence under s 52A(2) of the Crimes Act, 25 were sentenced to head sentences ranging between 3 to 5 years, 11 to sentences of approximately 6 years, three for approximately 7 years, one to 8 years imprisonment, two to 9 years imprisonment and the applicant to 10 years imprisonment.
7. The applicant referred to three cases where sentences of 8 to 9 years were imposed. The first of these cases was Bombardieri v R [2010] NSWCCA 161; (2010) 203 A Crim R 89 (Bombardieri). The applicant in that case, who was 20 years of age at the time of his offence, left the Gold Coast intending to drive to South Australia. He drove 290 kms before the fatal collision, driving at a high speed and erratically, including overtaking on the nearside of the road and crossing double lines.

The offence of aggravated dangerous driving causing death

1. I have set out the facts surrounding the commission of the offence above. The offence was a particularly serious one of its kind. The applicant was driving a manual vehicle which, on his own admission, he had no knowledge or experience of driving, at a time when he was substantially affected by drugs and sleep deprivation. Although I cannot be satisfied beyond reasonable doubt that he was driving at a speed in excess of 45 km/h above the speed limit at the time of the offence (see Crimes Act s 52A(7)(b)), he was driving at a grossly excessive speed, having regard to the state and contours of the road at the time of the incident. The circumstances in which the accident occurred put the offence in the upper range of objective seriousness for offences of this nature. In addition, it is necessary to take into account the offence on the Form 1. Further, as the sentencing judge remarked, specific and general deterrence are of considerable importance in relation to offences of this nature.
2. I have also set out the applicant's objective circumstances. He was relatively young (aged 24) at the time of the offence and had a difficult upbringing, hardly assisted by his lengthy drug abuse. The sentencing judge considered that his remorse was genuine and that, if he remained drug free, his prospects of rehabilitation were reasonable, matters which were not disputed on the appeal. The evidence provided on the appeal showed that, to the extent that he was able to do so, he was seeking treatment for his drug addiction. In addition, he was complying with prison discipline and seeking to enhance his educational qualifications.
3. I have also set out the applicant's past criminal record above. As the sentencing judge pointed out, it disentitles him to leniency.
4. In the guideline judgment of Whyte, Spigelman CJ set out what he described as a typical case of an offence of dangerous driving causing death: at [204]. The applicant's offence falls generally within such a case, he was a young man with limited prior convictions. A single person was killed, the victim was a stranger and the applicant showed genuine remorse. There was a plea of guilty which had, in the present case, more than limited utilitarian value.
5. Spigelman CJ also set out what he described as aggravating features: at [215]-[217]. All of these, with the exception of escaping police pursuit, were present, although failing to stop should not be regarded as a separate aggravating factor having regard to the Form 1 offence. Although these factors should not be used as a checklist, they demonstrate in the present case why it is correct to say that the applicant bore a very high degree of moral culpability.

The offence of stealing a motor vehicle

1. No separate submissions were made in respect of the sentence imposed by the sentencing judge on this count. However, it was not contested that it was appropriate to grant a 25% discount on sentence for the utilitarian value of the plea.

Conclusion

1. Taking the matters referred to above into account, I am of the view that a lesser sentence is warranted in law. In the circumstances, in my opinion, the appropriate sentence for the offence of stealing a motor vehicle is a fixed term of imprisonment of 1 year and 9 months to date from 10 June 2013.
2. So far as the offence of aggravated dangerous driving causing death is concerned, in my opinion the applicant should be sentenced to a total term of 8 years and 3 months. As the offence the subject of that count was separate to the offence of stealing a motor vehicle, some degree of accumulation is necessary and the sentence should commence on 10 December 2013. Having regard to the need for extended supervision of the applicant on his release to parole because of his addiction difficulties, I find special circumstances and would fix a non-parole period of 5 years.
3. Each of the sentences has been reached after allowing a 25% discount for the utilitarian value of the applicant's pleas.
4. The sentencing judge also disqualified the applicant from driving for a period of 10 years expiring on 9 June 2023. The effect of this order was the applicant was disqualified effective from two years from the expiration of the non-parole period fixed by his Honour. That approach should be maintained. The appropriate order is to disqualify the applicant for a period of 2 years. By virtue of s 206A of the Road Transport Act 2013 (NSW) that period will be extended by the period the applicant is incarcerated.
5. In those circumstances, I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed on the applicant on 4 March 2015 and in lieu thereof impose the following sentence: 1. For the offence of stealing a motor vehicle contrary to s 154F of the Crimes Act 1900 (NSW), a fixed term of imprisonment of 1 year and 9 months to date from 10 June 2013 and expire on 9 March 2015. 2. For the offence of aggravated dangerous driving causing death contrary to s 52A of the Crimes Act 1900 (NSW), a non-parole period of 5 years commencing on 10 December 2013 with a balance of term of 3 years and 3 months expiring on 9 March 2022. The earliest date the applicant will be eligible for release to parole is 9 December 2018. 1. Order that the appellant be disqualified from holding a driver's licence pursuant to s 205(2)(d)(ii) and s 206A(3) of the Road Transport Act 2013 (NSW) for a period of 2 years.

Amendments 25 November 2016 - Coversheet: Counsel amended 01 June 2017 - Coversheet: Case names amended [65]: Case names amended [147] s 154A(2) changed to s 52A(2) 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: 01 June 2017