Leslie v Regina

At the time the letter was received, Corey Alford was a prosecution witness and the applicant was in custody. 13 As to offence (7) between 28 October and 31 December 2005 the applicant and three other co-offenders tried to locate a Glock firearm for Mr Obierzinski to purchase. A number of conversations between the applicant and co-offenders were intercepted by the police. 14 As to offences (2) and (8), at 1am on 27 November 2005 the applicant and Messrs Alford, Obierzinski and Proietti drove a stolen Nissan Murano to the vicinity of O'Connell Street, Smithfield. They arrived shortly before 2am. The applicant and one other co-offender tried to enter a factory at that location. An employee was attempting to close the factory door when the applicant and the other offender struck the door with metal bars. Both men were wearing balaclavas. The employee was told to throw over the keys to his van or he would be shot. The co-offender showed him a firearm which was sticking out of the top of his pants. The van (being the stolen vehicle in offence (8)) and the stolen Nissan Murano drove to the main building at the Fairfield Showground where one of the offenders used a sledgehammer to smash a side window to the room housing the ATM. A steel cable was taken from the Murano for the purpose of placing it around the ATM. At that time the police arrived and the applicant and his co-offenders were apprehended trying to flee the scene. 15 As to offence (10), the applicant was remanded bail refused after his arrest on 27 November 2005. Mr Obierzinski was concerned to regain possession from the police of a WRX Impreza that he had purchased with the proceeds of an offence. As the vehicle was registered in the applicant's name he needed to have the applicant sign the transfer papers. Mr Obierzinski visited the applicant in gaol and had him sign the transfer which was lodged with the RTA on 15 December 2005. 16 As to offence (9), at about 9.09pm on 14 October 2005 a telephone call was intercepted between the applicant and Mr Obierzinski in which they discussed stealing a van for an "ATM job" they were planning at the Meadowbank Tafe. Motor vehicles were stolen in order to implement the theft. At about 5.30am on 15 October 2005 the applicant, Messrs Obierzinski and Johnson travelled to the Meadowbank Tafe in two stolen vehicles. One of the stolen vehicles was driven through the doors of the cafeteria and rammed the ATM. The ATM was lifted into the rear of the van and driven from the scene. When the ATM was cut open an amount of $78,000 was obtained. In the commission of this offence, more than $75,000 in damage was caused.

Subjective matters 17 The applicant did not give evidence in the sentencing proceedings but his Honour had before him a presentence report, dated 21 December 2007, and a report of a psychologist, Mr Rodriguez, dated 4 January 2008. 18 The applicant was born on 17 January 1981. He was 24 at the time of the offences and was 27 when sentenced by his Honour. At the time of his arrest he was living with his parents and came from a supportive home environment. He had an excellent relationship with his parents. 19 The applicant completed year 10 at school and then worked in the retail food industry, followed by work in the air conditioning industry. Since the age of about 18 he had been predominantly employed in his father's carpet business. 20 The applicant commenced using cannabis at the age of 14 and by the age of 18, was using cannabis daily. He abstained from cannabis use from the age of 20 to 22 years but recommenced its use when he was diagnosed with diabetes. At the time of his arrest the applicant was using cannabis and taking 4 to 5 ecstasy tablets daily. He was also using the drug "ice". 21 The applicant had been using steroids from the age of 21. In the 3 month period leading up to his arrest, the applicant's alcohol and illicit drug use was costing about $300 per day. The applicant told the probation officer that he was in an affected state when he committed the offences and that the offences were committed in order to finance his antisocial lifestyle. He told the psychologist, Mr Rodriguez, that he spent all the money he obtained from the offences on drugs, clothes, watches and jewellery. 22 In relation to the threaten witness offence, the applicant told the probation officer that he wrote the letter to Mr Alford's mother in anger when he was letting off steam. He said that it was never his intention to carry out the threat. (As his Honour pointed out the gravamen of that offence is the making of the threat with the intention to influence the witness, not whether or not the offender actually intended to carry out the threat). 23 The author of the probation report said that while the offender expressed contrition, "for the offences where there were no direct victims, the offender's sorrow appeared to lack substance". The report noted that the applicant appeared genuinely remorseful towards the victims of the armed robberies and the victims of his threatening letter and said that he had written letters of apology to them. Those letters were before his Honour. 24 Mr Rodriguez concluded that while the applicant's history was suggestive of a personality disorder, "he has capacity to conform to social norms and responsibility as reflected by his work history". Mr Rodriguez thought that the applicant had considerable insight into the seriousness of his addictions and their consequences and appeared motivated towards his rehabilitation while in prison. He thought the applicant's prospects of successful rehabilitation were encouraging. He thought that the applicant required intensive long-term drug and alcohol rehabilitation when he was reintroduced to the community and while he was serving his sentence. 25 His Honour had before him a letter to the Court from the applicant in which he stated that when he was diagnosed with diabetes in 2003 he became angry and stressed even though he was lucky enough to have good parents and their support. The applicant said that he became depressed by having to take daily injections for his diabetes and that he gradually became mixed up in drugs. The applicant said that while he had been in custody his sugar levels had fluctuated because he was unable to monitor and take insulin when he needed it. Nevertheless, while in custody he had completed a number of education courses and had obtained a number of certificates of attainment. Upon his release he wished to continue his father's carpet business.

Remarks on sentence 26 His Honour expressed some sympathy for the applicant because of the stresses placed upon him following his diagnosis with diabetes but was unable to see how those factors, which were said to be associated with his illicit drug use, called for mitigation of his sentences. He found the applicant to be a young person of average intellectual ability, who had an excellent and supportive upbringing, who had apparently made a free decision to escalate his drug use because of stresses and difficulties which he was experiencing in life. While his drug use explained to some degree his serious criminal behaviour, it did not excuse it. 27 His Honour noted that the applicant had a number of matters on his record with convictions recorded between September 2002 and July 2004 for offences of assault occasioning actual bodily harm, larceny, assault officer in the execution of his duty, resist officer, a high range PCA and drive while disqualified. The offender had received a 6 month suspended sentence for his conviction for larceny in July 2003. His Honour noted that while the applicant's record did not aggravate the offences, it disentitled him to leniency in that he was not appearing before the Court as a first offender. 28 In relation to offences (1) - (8), his Honour found that the applicant had pleaded guilty at the first reasonable opportunity and was entitled to a reduction of 25 percent for the utilitarian value of those pleas of guilty. In respect of offences (9) and (10), because pleas of guilty were entered at the commencement or shortly before the date when the trial was listed to commence, his Honour reduced the sentences which he would otherwise have passed by 15 percent. 29 Because of the number of offences involved, his Honour noted the necessity to consider the principle of totality. His Honour correctly referred to the principles associated with taking into account matters on the Form 1 documents as set out in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. His Honour referred to the requirement to award an appropriate sentence in respect of each offence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. 30 In relation to totality, his Honour noted that a number of very serious offences had been committed over a three month period. The exception was the threaten witness offence which occurred six months after his arrest while he was on remand bail refused. 31 Although pleas of guilty had been entered in respect of the two offences contrary to s 112(2) his Honour had regard to the standard non-parole period of 5 years imprisonment in respect of those offences. His Honour directed himself in accordance with the requirement in R v Way (2004) 60 NSWLR 168 that although the standard non-parole period was not directly applicable, it still had to be considered as a reference point, benchmark or guidepost when sentencing for the offences to which it applied. 32 His Honour assessed the s 112(2) offence at the Meadowbank Tafe on 15 October 2005 at a midpoint between the midrange and the high range of objective seriousness for such an offence. He reached that conclusion because of the substantial sum of money stolen, the high degree of planning involved in the commission of the offence, including the stealing of the two motor vehicles which were used in the offence. His Honour also had regard to the substantial amount of property damage which was caused in the commission of the offence, being $75,000. 33 In relation to the s 112(2) offence at the Meadowbank Convenience Store on 22 November 2005, his Honour assessed that at just below the midrange of objective seriousness for such an offence. In reaching that conclusion, his Honour took into account that a sum of $3000 was stolen and relatively little property damage was caused. 34 His Honour took into account that the applicant's co-offenders (except for Mr Johnson) had been sentenced by another judge of the Court on a previous occasion. His Honour gave careful attention to the principle of parity and in particular the different subjective cases of all of the offenders and the objective seriousness of each of the offences. His Honour noted that some of the co-offenders had been dealt with in the Children's Court. Despite that fact, his Honour understood that he should still have some regard to those sentences. 35 Counsel for the applicant conceded that the aggravated break enter and steal offence at the Meadowbank Tafe lay towards the more serious end of objective seriousness for such an offence. She took his Honour to the sentences imposed on the co-offenders and asked that his Honour take those into account. She submitted that in general the applicant's criminal conduct covered a relatively short and discrete period of offending, which was fuelled by a voracious intake of drugs and alcohol. She asked the Court to take into account the support which the applicant had from his family and his favourable prospects of rehabilitation. 36 His Honour accepted that the applicant had favourable prospects of rehabilitation with respect to his drug and alcohol problems. His Honour felt optimistic with respect to his future prospects. 37 His Honour found special circumstances warranting a variation in the statutory ratio between the total sentence and non-parole period on the basis that this was the applicant's first custodial sentence. His Honour took into account that some of the sentences would be partially accumulated, which also warranted a variation in the statutory ratio. Finally, his Honour found that the applicant would require an extended period of intense supervision by the Probation and Parole Service when he returned to the community after serving his sentence. 38 His Honour then reviewed the serious nature of the offences and the various purposes of punishment. His Honour had regard to the necessity for general deterrence and for particular deterrence. His Honour took into account the need for the community to be protected from such conduct. Finally, his Honour took into account the need for the sentences to reflect appropriate retribution and punishment for the seriousness of the offences. 39 Keeping in mind the complexity of the sentencing exercise, his Honour concluded: "I must consider what is an appropriate sentence for each discrete matter but then stand back and determine what is the totality of criminality over the period of the offending …"

Ground 1 - The sentence of 5 years non-parole and the total sentence of 10 years imposed by the learned sentencing judge for the offence of aggravated break enter and steal at Meadowbank Tafe on 15 October 2005 was manifestly excessive. 40 The applicant submitted that his Honour erred in his assessment of the objective seriousness of that offence (offence (9)) when he placed it at a level of seriousness midway between the middle of the range and the top of the range for offences of that kind. The applicant submitted that it was impermissible for his Honour to take into account the stealing of the two motor vehicles in assessing the objective seriousness of the offence, since these were matters included on the third Form 1. As such those offences were to be taken into account in the sentencing of the applicant but not in the assessment of the seriousness of this offence. 41 I do not read his Honour's reasons in that way. While his Honour did specifically refer to the theft of the two vehicles in the context of assessing the objective seriousness of this offence, he did so when commenting on the level of planning associated with the offence. As I read his Honour's comments, he was referring to the theft of the two vehicles as forming part of and demonstrating the high degree of planning which had gone into the commission of this offence. His Honour was not double counting or impermissibly having regard to the two motor vehicle theft offences. 42 The applicant submitted that his Honour's assessment of the objective seriousness of this offence offended the principle of proportionality. The applicant submitted that looked at objectively, the gravity of the offence was at the midrange level of seriousness. 43 The difficulty with this submission is that it challenges an exercise of discretion by the trial judge on an issue where minds may well differ. In reaching his conclusion as to the objective seriousness of the offence, his Honour referred to the relevant principles and correctly applied them. His finding on this issue was well open to him and error has not been identified. Moreover, the submission ignores the concession made by counsel for the applicant on the hearing before his Honour that the offence "lay towards the more serious end of objective seriousness". 44 This Court will not normally interfere with a sentencing judge's findings in respect of the objective seriousness of an offence: Mulato v Regina [2006] NSWCCA 282. In that case Spigelman CJ said: "[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open …" 45 The applicant submitted that the imposition of what was in effect the standard non-parole period for this offence was inappropriate in all the circumstances. He submitted that having pleaded guilty the standard non-parole period became at most a guidepost or benchmark in determining the appropriate sentence and should not have been the starting point. He submitted that his Honour had fallen into error because he failed to have sufficient regard to the 15 percent discount for the plea of guilty, the finding of special circumstances and the applicant's objective circumstances and explanation for his drug abuse. 46 This submission should not be accepted. This Court has on many occasions stressed the need for sentencing judges to not merely pay lip service to the existence of standard non-parole periods, but to genuinely give them force and effect as guideposts or benchmarks in determining appropriate sentences. 47 Standard non-parole periods are to be imposed, absent other considerations, in relation to offences at the midrange level of seriousness. Once one accepts that it was open to his Honour to assess the level of seriousness of this offence at above the midrange of seriousness, no criticism can be made of him fixing a non-parole period which was the same as the standard specified by statute. His Honour was doing exactly that which was mandated by R v Way, i.e. using the standard non-parole period as a guidepost or benchmark. R v Way makes it clear that such an approach is to be followed even where a plea of guilty has been entered. 48 As his Honour pointed out the applicant's subjective case was not particularly strong and there were no particular features of it which suggested a more lenient sentence. His Honour gave effect to his finding of special circumstances. As a result a substantial period of time on parole was provided so that the ratio between the non-parole period and the total sentence was 50 percent.

49 The applicant's submission on this issue does not have regard to the very significant matters included on the first Form 1. They comprised four aggravated break enter and steal offences contrary to s 112(2), one of which involved the theft of an ATM containing in excess of $40,000. 50 The applicant submitted that his Honour's sentence for this offence did not take into account the principle of parity and in particular the sentence imposed on the co-offender Mr Obierzinski. Because of the significant differences in the sentences, the applicant submitted that he had a justified sense of grievance. For the same offence Mr Obierzinski had been sentenced in the Children's Court to a 2 year control order with a non-parole period of 6 months. 51 The parity principle is no more than a manifestation of the application of the principles of equal justice. It requires that like should be treated alike and, where there are relevant differences, due allowance should be made for such differences (Postiglione v The Queen (1997) 189 CLR 295 at 310). Discrepancy of itself is not sufficient to warrant intervention by an appellate court. The discrepancy, viewed objectively, must be unjustifiable when due account is taken of the objective and subjective differences in the co-offenders. Even when such unjustifiable differences occur, an appellate court will not intervene if the result of intervention would be to reduce the sentence of an offender to a level which would be inappropriate for the offence in question: McKenna v Regina [2007] NSWCCA 113 at [48] - [55]. 52 Both before his Honour and in this Court a "parity table" was prepared which set out the sentences imposed in respect of the applicant and Obierzinski and which also set out the differences in their circumstances. 53 The most obvious difference is their age. At the time of the offences the applicant was aged 24 and Obierzinski was 17. This meant that the applicant was sentenced as an adult and Obierzinski was sentenced in the Children's Court. In the Children's Court there are different sentencing objectives and considerations which have to be taken into account by the Court. These significantly limit the value of any comparison with a sentence passed by the Children's Court. In most cases it is not a comparison of like with like. 54 While R v Boney [2001] NSWCCA 432 makes it clear that there is no inflexible rule that there is no utility in comparing sentences upon co-offenders one of whom is dealt with in the Children's Court, considerable care has to be exercised in doing so and the value of such a comparison may well be low. This is not one of those cases where such a comparison is particularly useful. 55 A significant difference between the applicant and Obierzinski is that the applicant had numerous and serious matters to be taken into account on Forms 1. Obierzinski had only two - steal a motor vehicle and conspiracy to purchase a firearm. Another important area of difference is that the applicant had a weak subjective case whereas Obierzinski had suffered serious brain injury in a motor vehicle accident in 2005 as a result of which he suffered ongoing mental impairment. 56 When considering the principle of parity, the principle of totality also needs to be considered. The sentence imposed on the applicant in respect of this offence was part of an overall sentencing regime which not only included reference to matters on Forms 1, but also nine other offences. These offences were in the most part different to those with which Obierzinski had been charged. Accordingly, to compare the sentences imposed for this offence without taking into account the part played by the sentences in the overall sentencing regime for each offender is to obtain a distorted result. 57 I have concluded that this is not a case of comparing like with like and there can be no justifiable sense of grievance on the part of the applicant.

Ground 2 - The sentence of a fixed term of 3 years imposed by the learned sentencing judge for the offence of aggravated break enter and steal at Meadowbank Convenience Store on 22 November 2005 was manifestly excessive. 58 The applicant submitted that the sentence imposed by his Honour in respect of this offence offended the principle of parity when compared with the sentence received by a co-offender, Mr McGaughey. McGaughey was sentenced on 8 December 2006 by Norrish DCJ. The sentence imposed by his Honour was imprisonment with a non-parole period of 18 months and a balance of term of 18 months, i.e. a total term of imprisonment for 3 years. 59 In support of this ground of appeal the applicant relied upon the following matters:

(i) McGaughey was 20 years of age at the time of the offence.

(ii) McGaughey was the subject of three good behaviour bonds at the time when the offence was committed.

(iii) McGaughey's criminal history was minor compared to that of the applicant.

(iv) McGaughey was being sentenced for only one offence.

(v) McGaughey was found to be the least culpable because of his late involvement in the offence. 60 The applicant submitted that even though McGaughey was sentenced for a single offence, whereas the applicant was subject to the principle of totality, the parity principle still applied. He submitted that he still had a justifiable sense of grievance in that even allowing for the principle of totality, he would serve 2 years and 3 months of his 3 year fixed term which exceeded the sentence imposed on McGaughey by 9 months. 61 The Crown pointed out that his Honour was in error in failing to fix a non-parole period in respect of this offence. Section 45 Crimes (Sentencing Procedure) Act 1999 and SGJ v R [2008] NSWCCA 258 at [76] - [78] made it clear that for an offence with an applicable standard non-parole period, a parole period had to be specified in the sentence. Accordingly, regardless of the outcome of this application, this sentence will have to be adjusted to comply with s 45. 62 I am not satisfied that the parity principle applies. There are significant differences between the position of the applicant and McGaughey. The complexity of the sentencing exercise in respect of the applicant, taking into account as it has to, a large number of offences together with a significant number of matters on Forms 1, significantly distorts any comparison between a single sentence imposed for one of those offences and the sentence passed in respect of one offence only. Leaving that aside, however, the differences between the applicant and McGaughey remain substantial. 63 There was a significant age difference in that McGaughey was aged 20 and the applicant was aged 24. The applicant had a serious criminal history whereas McGaughey did not. The level of culpability of McGaughey was substantially less because of his late involvement in the offence, whereas the applicant was a major player. 64 These considerations are sufficient to distinguish the sentence passed on the applicant from that passed on McGaughey in respect of this offence. The applicant has no basis for a justified sense of grievance in respect of the sentence he received for this offence.

Ground 3 - The overall sentence imposed by the learned sentencing judge of 14 years and 7 months with a non-parole period of 9 years and 7 months was manifestly excessive.

Ground 4 - The learned sentencing judge erred in not adequately applying the principles of totality in respect of the overall sentence imposed. 65 The applicant submitted that his Honour had failed to take into account that all but one of the offences were committed over a discrete period of 3 months when the applicant was fuelled by the effects of drugs and alcohol. The applicant submitted that the accumulation of the fixed term sentences was such that the overall effect was so crushing as to justify the intervention of this Court. When one looked at the total effect of the sentences, it was clear that the principle of totality had not been followed. 66 The fact that these offences were committed within a short period of time of each other is not determinative. Not only was each offence quite separate from the other, but most were serious and involved a significant degree of pre-planning. Where appropriate (as in the case of the robbery offences on 21 November 2005) his Honour did make the sentences concurrent. In relation to other offences, his Honour decided that the sentence for one particular offence did not comprehend and reflect the criminality of the other offences so that further concurrency was not warranted. The offences for which the applicant was sentenced varied considerably and included the very serious offence of threatening and attempting to influence a witness. Accordingly some measure of accumulation was not only appropriate but almost inevitable. 67 Given the nature and extent of the applicant's offending (being sentenced for 10 serious offences, together with 13 offences on Forms 1 some of which were themselves quite serious), it cannot be said that the overall sentences were "unreasonable or plainly unjust".

Ground 5 - Incorrectly determining that special circumstances exist, the learned sentencing judge erred in adjusting the statutory ratio inconsistently between the non-parole period and the total sentence imposed in the overall sentence (approximately 66 percent) and the sentence imposed in respect of the 15 October 2005 offence where the learned sentencing judge set a non-parole period of 50 percent of the total sentence. 68 The applicant submitted that having found that special circumstances existed and having fixed a ratio between the non-parole period and the head sentence of 50 percent in respect of the most serious offence (offence (9)), his Honour should have so adjusted the sentences for the other offences so as to maintain that same ratio between the non-parole period and the head sentence. In fact the ratio between the total non-parole period and the total sentence was approximately 66 percent. 69 I find it somewhat difficult to understand the precise nature of the complaint being made by the applicant. His Honour's reasons for finding special circumstances were that it was the applicant's first custodial sentence and there was to be a partial accumulation of sentences. His Honour also noted that the applicant would require a significant amount of supervision upon his release from imprisonment. The effect of the overall sentencing regime imposed by his Honour was a non-parole period of 66 percent. This, it seems to me, makes adequate allowance for special circumstances and for supervision of the applicant upon his release from custody. His Honour's purpose in finding special circumstances has been achieved. 70 As was stated in Clarke v R [2009] NSWCCA 49 by McClellan CJ at CL the extent of any adjustment to the statutory ratio specified in s 44 of the Crimes (Sentencing Procedure) Act 1999 is very much a matter for the discretion of the sentencing judge: "13 … the extent of any adjustment to the statutory requirement is essentially a matter within the sentencing judge's discretion. In R v Cramp [2004] NSWCCA 264 at [31] Spigelman CJ said that an adjustment for special circumstances "raises so many matters of a discretionary character that this Court should be very slow to intervene." Only if the non-parole period provided is manifestly inadequate or manifestly excessive should this Court intervene: Cramp at [36]; R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [19]." 71 This ground of appeal has not been made out.

Conclusion 72 Subject to the need to adjust the sentence in respect of Offence (1) so as to comply with s 45 Crimes (Sentencing Procedure) Act 1999 the applicant has not made out his grounds of appeal. 73 The orders which I propose are as follows:

(2) His Honour's sentence in respect of offence (1) (being the aggravated break enter and steal (in company) on 22 November 2005 at Meadowbank Convenience Store) be quashed and be replaced with the following sentence: "That the applicant be sentenced to a term of imprisonment with a non-parole period of 3 years commencing on 27 December 2008 and expiring on 26 December 2011 with a balance of term of 1 year expiring 26 December 2012."

(3) His Honour's sentences in respect of the other offences are confirmed.

(4) The appeal is otherwise dismissed. **********

08/09/2009 - typographical error - Paragraph(s) 73(4).

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