Paese v R

Court of Criminal Appeal (NSW)|2010-08-09|Before: James J, Davies J, McClellan CJ, Davies JJ, Clellan CJ

The Applicant's submissions 23 Three matters were put forward in support of the submission that the sentence was manifestly excessive. First, it was said that objective seriousness of the offence was not in the upper end of the range of objective seriousness for offences of its kind. Secondly, it was said that the agreed facts identified a number of features constituting circumstances of aggravation within the meaning of s 105A Crimes Act that would establish the more serious offence of aggravated break enter and steal contrary to s 112(2). Thirdly, it was suggested that an examination of the statistics for sentences in relation to the offence would show that the present sentence was outside the range of sentences for this offence.

(a) Objective seriousness and statistics 24 Although the written submissions for the Applicant said that the objective seriousness of the offence was not such as to situate it in the upper end of the range of objective seriousness for offences of its kind, the sentencing Judge did not so situate it. In oral submissions, it was explained that what was intended to be conveyed was that the sentence imposed was consistent with offences at the upper end or top of the range of objective seriousness for an offence of that kind. That submission appeared to relate to the submission concerning the statistics which tended to show that the sentence imposed on the Applicant was in the top 2% of the range for all offenders and, maybe, even in the top 1%. 25 This Court has noted on a number of occasions the care that must be taken in the use of statistics: R v Way (2004) 60 NSWLR 168 at [140]; Graham v R [2009] NSWCCA 212 at [35]-[37]. Although it may be appropriate to have regard to the statistics, the problem for the Applicant in the present case was in endeavoring to suggest that the sentence imposed placed the offence at the top of the range of objective seriousness. That submission ignores the significant aggravating subjective matters that the sentencing Judge appropriately took into account, not the least of which was that this offence was committed whilst the Applicant was on conditional liberty and within only a month of that conditional release. 26 In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R V Ponfield [1999] NSWCCA 435 Grove J (with whom Spigelman CJ and Sully J agreed) said: [48] A court should regard the seriousness of offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organization and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen 1998 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s 105A(1)(c), (d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s 105A(1)(a)).

Of these matters, (i), (iii), (v) and (ix) were relevantly circumstances of aggravation not listed in s 105A(1) Crimes Act in respect of the offence with which the Applicant was charged. 27 Further, as McClellan CJ at CL, Hulme and Hislop JJ pointed out in R v Harris [2007] NSWCCA 130 when dealing with the statistics in respect of s 112(1) and s 112(2) offences, the statistics suggest that inadequate weight was being given to the presence of circumstances of aggravation (at [66]) and, further, that the statistics did not record the extent of the prior records of the offenders, nor whether offenders were on conditional liberty at the time (at [68]). 28 A comparison between the sentence in the present case and the statistics does not, in all the circumstances, cause me to consider that either the sentencing Judge has effectively situated the present offence in the upper end of the range of objective seriousness, nor that there has been any error in the sentence given.

(b) Circumstances of aggravation 29 The Applicant drew attention to the fact that the aggravated version of the offence attracted a standard non-parole period of 5 years which was applicable to the offence in the middle of the range of objective seriousness for an offence of that kind where an offender is convicted after trial. It was said that the sentence ultimately imposed on him was the sort of a sentence for a middle of the range aggravated version of the offence once the discount for the plea of guilty and the finding of special circumstances was taken into account. In that way, it was submitted, the sentence imposed was consistent with the aggravated version of the offence rather than the offence for which the Applicant was to be sentenced. 30 That submission appears to me to fall into the sort of error that the High Court corrected in Markarian v R (2005) 228 CLR 357 especially at [31] and [33]. As was made clear in those passages, the proper approach for the sentencing Judge is to start with the maximum penalty for the offence in question and not the penalty for another offence up or down the scale of seriousness from the offence for which the sentence is being passed. 31 The sentencing Judge quite appropriately drew attention to the maximum penalty for the offence to which the Applicant had pleaded guilty and referred only to the aggravated version of the offence in respect of matters that his Honour had rightly excluded from consideration when sentencing. 32 It is inappropriate to argue from the result of any otherwise appropriately fixed sentence to argue that such a sentence more appropriately fits into an aggravated form of the same offence, and to argue from that that error must have been committed by the sentencing Judge. 33 In my opinion, no error on the part of the sentencing Judge has been demonstrated. 34 In my opinion the following orders should be made: (1) Leave to appeal granted.

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Graham v R [2009] NSWCCA 212 In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R V Ponfield [1999] NSWCCA 435 CASES CITED : Markarian v R (2005) 228 CLR 35 R v Harris [2007] NSWCCA 130 R v Way (2004) 60 NSWLR 168

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