Pattison v Regina

CATCHWORDS: Criminal law - sentencing - multiple offences - sentence manifestly excessive.

Crimes Act 1900 s 112(1), s 177, s 154A(1)(b), LEGISLATION CITED: s 178BA(1), s 188(1), s 300(2) Criminal Appeal Act 1912 s 6(3) Crimes (Sentencing Procedure) Act 1999

Des Rosiers v R [2006] NSWCCA 16 Johnson v The Queen (2004) 78 ALJR 616 Pearce v The Queen (1998) 194 CLR 610 R v M.A.K R v M.S.K [2006] NSWCCA 381 CASES CITED: R v McNaughton [2006] NSWCCA 242 R v Ponfield (1999) 48 NSWLR 327 R v Webster [2005] NSWCCA 110 Regina v Fernando [2002] NSWCCA 28 Regina v Stankovic [2006] NSWCCA 229

PARTIES: Nathan John Pattison Regina

COUNSEL: R Herps - DPP Nathan John Pattison - Self Represented

LOWER COURT JURISDICTION: District Court

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Nathan Pattison

IN THE COURT OF CRIMINAL APPEAL 2007/143

McClellan CJ at CL Hidden J Price J

29 June 2007 Nathan John PATTISON v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Price J. 2 HIDDEN J: I agree with Price J. 3 PRICE J: The applicant Nathan John Pattison seeks leave to appeal against the severity of sentences imposed upon him at the District Court at Penrith on 8 May 2006. 4 On 20 September 2004 the applicant had pleaded guilty in the District Court to an indictment containing two counts. The first count is one of break and enter a dwelling house at Cranebrook on 13 February 2002 and commit a serious indictable offence, namely larceny, contrary to s 112(1) of the Crimes Act 1900. An offence contrary to s 112(1) is punishable by imprisonment for 14 years. 5 The second count is one of receiving stolen property between 18 December 2001 and 10 October 2002 contrary to s 188(1) of the Crimes Act 1900. An offence contrary to s 188(1) is punishable by imprisonment for 10 years. Two matters of receiving contrary to s 188(1) and two matters of larceny contrary to s 154A(1)(b) of the Crimes Act on a Form 1 were taken into account on sentence on count two. 6 The applicant had pleaded guilty in the Local Court to charges, which were referred to by the sentencing Judge as charges numbered 7 to 12. The applicant adhered to those pleas before his Honour. 7 Charge number 7 is one of receiving stolen property between 23 December 2004 and 24 December 2004 contrary to s 188(1) of the Crimes Act 1900. 8 Charge number 8 is one of using a false instrument between 21 December and 23 December 2004 being a New South Wales driver licence in the name of Paul Ridgeway with the intent of inducing another person to accept the instrument as genuine. The offence being contrary to s 300(2) of the Crimes Act is punishable by 10 years imprisonment. 9 Charge 9 is one of dishonestly obtaining a valuable thing on 21 December 2004 being a $40,000 Toyota Hilux by deception, namely signing a lease agreement under a false name, contrary to s 178BA(1) of the Crimes Act. The offence is punishable by imprisonment for 5 years. For this charge, an indictment was presented before the sentencing Judge as the charge to which the applicant had pleaded guilty in the Local Court had not been properly framed. 10 Charge 10 is one of driving a conveyance, namely the Toyota Hilux, between 21 December and 23 December 2004 without the consent of the person in lawful possession of it. The offence being contrary to s 154A(1)(b) of the Crimes Act is punishable by imprisonment for 5 years. 11 Charge 11 is one of break and enter a storage shed at Cattai between 12 December 2004 and 23 December 2004 and steal property contrary to s 112(1) of the Crimes Act. 12 Charge 12 is one of larceny between the same dates as charge 11 at Cattai. The offence being contrary to s 117 of the Crimes Act is punishable by imprisonment for 5 years. 13 The following sentences were imposed by the sentencing Judge:

Count 1: A fixed term of 2 years imprisonment to date from 17 November 2004 and to expire on 16 November 2006.

Count 2: Taking into account the matters on the Form 1, a fixed term of 2 years imprisonment to date from 17 May 2005 and expire on 16 May 2007.

Charge 7: A fixed term of 2 years imprisonment to date from 17 November 2006 and expire on 16 November 2008.

Charges 8, 9 and 10: On each charge a fixed term of 6 months imprisonment to date from 17 November 2006 and expire on 16 May 2007.

Charge 11: Imprisonment with a non-parole period of 3 years to date from 17 November 2008 and to expire on 16 November 2011 with a non-parole period of 3 years to date from 17 November 2011 and to expire on 16 November 2014.

Charge 12: A fixed term of imprisonment of 12 months to date from 17 November 2008 and to expire on 16 November 2009. Total effective sentence: 14 As a result of total and partial accumulation, the total effective sentence imposed by the sentencing Judge was a non-parole period of 7 years to date from 17 November 2004 and to expire on 16 November 2011 with a balance of term of 3 years to date from 17 November 2011 and to expire on 16 November 2014.

Facts 15 Documents containing statements of facts for each of the offences were tendered without objection. What follows is drawn largely from those documents:

Count 1: On 13 February 2002 the applicant broke into and entered a dwelling house at Cranebrook owned by Phillip and Felice Pollicina. He stole from the house a number of firearms, a telescopic sight, a green army camouflage case, a quantity of ammunition, jewellery, a VCR, sunglasses, binoculars, a mobile phone and other items. The stolen items of jewellery included a gents diamond ring valued at $25,260.00. Mr Pollicina estimated the value of the stolen property to be over $50,000.00.

Count 2: Between 18 December 2001 and 10 October 2002, the applicant received a green coloured deed box containing British passports, banking documents, keys and jewellery the property of Doctor Roger Baxendale stolen during a break and enter at his home at 9 The Grove Austinmer on 18 December 2001.

Offence 1 Form 1: Between 18 December 2001 and 10 October 2002, the applicant received a nurses name plate, car keys, jewellery and a Ryobi Blower-vac the property of Cathy Negus stolen during a break and enter at her home at 7 The Grove Austinmer on 18 December 2001.

Offence 2 Form 1: Between 2 September 2000 and 10 October 2002, the applicant received medical prescription pads the property of Dr Roger Baxendale which were stolen from his home at 9 The Grove Austinmer during a break and enter offence on 2 September 2000.

Offence 3 Form 1: Between 2 September 2000 and 4 September 2000 the applicant took and drove a Mitsubishi Magna motor vehicle, registration number QSD 490, without the consent of the owner, Dr Roger Baxendale.

Offence 4 Form 1: On 13 February 2002 the applicant had allowed himself to be carried in a Mercedes Benz convertible knowing the vehicle had been taken without the consent of the owner, Phillip Pollicina. The Mercedes Benz had been in the garage of the Pollicina's house at Cranebrook. Mr Pollicina valued the vehicle at over $150,000.00.

Charge 7: The applicant received between 2am on 23 December 2004 and 10.05am on 24 December 2004 at McGraths Hill a large number of items of portable property belonging to Ms Robinson and Mr Conti which was stolen from their home during a break and enter offence on the night of 22 December 2004. The property received by the applicant included a laptop computer, digital cameras and mobile telephones of a value of $8,900.00.

Charges 8, 9 and 10: On 21 December 2004 the applicant used a driver licence in the name of Paul Anthony Ridgeway to hire a Toyota Hilux. After completing a lease agreement for the vehicle and paying a deposit, he did not return the vehicle by the agreed time. On the following day, the applicant returned the vehicle and asked if he could extend the lease for another day. When this was refused, he drove the vehicle away. Police subsequently located the vehicle and the applicant was arrested.

Charge 11: Between 6pm on 22 December 2004 and 7am on 23 December 2004 the applicant committed the offence of break enter and steal from a storage/tool shed on a property near Cattai. The storage/tool shed was divided into two sections by a sheet of steel mesh. There were two doors on the same side of the container, each door gaining access to each section. One end of the container had power tools in it valued at $4,500.00. The other had various items of little value. The door on the left was not locked whereas the door on the right was padlocked shut. The right section contained the power tools. Bolt cutters were used to cut through the steel mesh and the power tools were stolen by the applicant.

Charge 12: On 22 December 2004 the applicant whilst on the same property near Cattai stole a large black coloured Bawer brand heavy vehicle tool box of the value of $500.00 from a large open carport type shed.

Subjective Circumstances 16 The applicant and Lisa Maree Phipps gave evidence during the proceedings on sentence. Two probation and parole reports were tendered. 17 The applicant was born on 13 May 1975 and at the time of sentence was nearly 31 years old. He told the sentencing Judge that he was raised primarily by his mother and stepfather. He left school in year 7, aged fourteen being always far behind other students because of ADD and dyslexia. He worked as an apprentice floor and wall tiler, then as an apprentice fitter and machinist but could not complete these apprenticeships because of his inability to do the mathematics. His Honour noted that since last in gaol, the applicant worked at a land-scaping business for a year and a half. 18 The sentencing Judge observed that the applicant had a significant drug problem commencing with marijuana at age 14 and progressing to heroin when in Parramatta gaol at age 18. His Honour remarked that since then the applicant had been addicted to heroin most of the time. The applicant had participated in the Drug Court programme but after about a year having re-offended, was taken off the programme and served six months [imprisonment] for the [offence] of goods in custody. 19 The sentencing Judge noted that the applicant began a relationship with Ms Phipps and they have a son then aged three. The relationship broke up which the applicant said he could not deal with and had returned to taking drugs. The applicant told the sentencing Judge that he wanted to enter a proper rehabilitation programme to deal with his drug use and had not used drugs since his arrest in December 2004. 20 During her evidence Ms Phipps confirmed that they had a relationship but it broke down because of the applicant's drug usage. The sentencing Judge noted Ms Phipps's evidence that when the applicant was not on drugs he was excellent and got on well with all of her children. She was prepared to offer him support when released to enable him to be rehabilitated. 21 His Honour referred to the pre-sentence report of 25 November 2004 as not being favourable. He expressly mentioned the probation officer's assessment that a stalemate existed in relation to the applicant's offending and the applicant's failure to accept assistance to resolve issues including his drug addiction. His Honour commented that the probation officer's reservations appeared to have been justified as a month later the applicant was arrested for the offences committed in December 2004. The sentencing Judge remarked that the pre-sentence report dated 31 March 2006 was a little more positive and quoted from the summary in which the probation officer had observed that the applicant seemed capable of working and behaving responsibly and had concluded that serious doubts remained as to the applicant's ability to remain consistently law-abiding. 22 The applicant's prior criminal antecedents are extensive. Offences include prior convictions for break, enter and steal, stealing, assault with intent to rob armed with an offensive weapon, driving a conveyance taken without consent of the owner, receiving and goods in custody. His Honour accepted that the applicant's present offences were drug related as were those in his past. 23 It is appropriate to note that at the time of the commission of the offences being charges 7 to 12 the applicant was on bail for the offences committed in 2001-2002. 24 The Notice of Appeal identifies two grounds namely:

The sentence was manifestly excessive in accumulation of sentences (sic) result in a sentence that is excessive. Ground 2

His Honour erred when he failed to consider special circumstances (sic) pleaded guilty to all offences and long-term drug abuse. No personal monetary gain from totality of crimes committed. 25 In a further document presented to the Court the applicant raised additional grounds, which are conveniently summarised as:

Ground 3 The sentence for count 11 was manifestly excessive. Ground 4

His Honour stated that there was a possibility of rehabilitation a factor that his Honour appears to have overlooked when imposing sentence. 26 Grounds 1 and 3 may be conveniently dealt with together. The applicant, who represented himself before this Court, contends that the total [effective] sentence is manifestly excessive and out of proportion to comparative sentences. He provided the Court with a list of comparative sentences for the offence of break enter and steal and submits that offenders with similar facts, lengthy criminal antecedents and drug addiction have received an average sentence of 3 - 4 years "mid range". The applicant argues that these comparative sentences were committed on dwelling houses whereas charge 11 involved the entering of an unlocked "disused railway" carriage which was used as a storage shed. 27 The Crown submits that the sentencing Judge dealt leniently with the applicant. The Crown points to the aggravating factors identified by his Honour under s 21A of the Crimes (Sentencing Procedure) Act (the Crimes (SP) Act) and the relatively minor sentences imposed when compared with the available statutory maximums. The Crown submits that the reason for the imposition of these relatively minor sentences and the significant degree of concurrency of sentences lies in his Honour's determination that the principle of totality would not operate to destroy the utilitarian discount for the pleas of guilty by the extent of the accumulation. The Crown further contends that the sentencing Judge could have structured the sentences differently and had he done so a more lengthy sentence could have been imposed. 28 His Honour was faced with a difficult sentencing task, which involved eight counts as well as four matters on a Form 1. As the sentencing Judge was sentencing the applicant for a number of offences, he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. From his Honour's remarks and the structure of the sentences imposed, it is evident that the sentencing Judge carefully considered the principle of totality. His Honour remarked (ROS at 10): "The way I have decided to structure the sentences means that the total non-parole period will be seven years and the parole period three years. I have considered the matter of accumulation which was dealt with at considerable length in the Crown's written submissions. There are eight substantive charges and one of them has four charges to be taken into account on a Form 1. If I were to totally accumulate sequential sentences then the principle of totality would require such a diminution of sentence on each charge as to make the individual sentences inappropriate." And; "…..As there will be partial accumulation it is inexpedient to impose non-parole and parole periods for charges 1, 2 and 7. I will fix a non-parole period on charge 11. I propose to impose fixed terms on charges 8, 9 and 10 to be concurrent with the sentence on charge 7 and a fixed term on charge 12 to be concurrent with the non-parole period on charge number 11. The reason for making those charges concurrent with others is that I cannot effectively incorporate accumulation that is compatible with the principle of totality and those charges are much less serious than the others." 29 The course adopted by the sentencing Judge was consistent with the principles stated in Pearce provided that an appropriate sentence had been fixed for each offence. The structure of the sentences and the collective discount allowed for the utilitarian value of the pleas of guilty suggest, however, that his Honour's primary focus was on the total effective sentence to be imposed. 30 The most lengthy sentence imposed by the sentencing Judge was for charge 11 which as a result of total accumulation commences on 17 November 2008. The applicant's criminality for that offence involved the breaking into of what was described as a "rusted train carriage" which was used as a storage container on a property at Cattai. Although one of the container doors was unlocked, as the applicant contends, a bolt cutter was used to cut through steel mesh and power tools valued at $4,500.00 were stolen. An aggravating factor to be taken into account on sentence for the offence was that it was committed whilst the applicant was on bail. The commission of an offence whilst on conditional liberty has long been recognised as a factor of aggravation requiring the passing of deterrent sentences for those who abuse their freedom on bail: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42] and R v Ponfield (1999) 48 NSWLR 327 at [48]. After making allowance for a discount of 15 per cent for the utilitarian benefit of the plea of guilty, the applicant was sentenced to a term of imprisonment of six years for the offence. A non-parole period of 3 years was fixed. The undiscounted starting point of the sentence must have been 7 years and 22 days. 31 Notwithstanding the seriousness of the offence, the applicant's offending behaviour for which he was sentenced for count 1, it seems to me, was of a more serious kind. The applicant's criminality in the commission of the offence being count 1 involved his breaking into the Pollicina's house and stealing items of property including firearms and jewellery with a value of over $50,000.00. 32 The sentencing for the offence of receiving being count 2 included the taking into account of four matters on the Form 1. Each of these matters were acts of dishonesty. The motor vehicle [offence 4 Form 1] in which the applicant allowed himself to be conveyed was a Mercedes Benz convertible valued at over $150,000.00 which had been stolen from the Pollicina's garage. His Honour was entitled to take into account the offences on the Form 1 so as to impose a longer sentence for the receiving than would otherwise have been imposed had it been the only offence: see Des Rosiers v R [2006] NSWCCA 16, Regina v Stankovic [2006] NSWCCA 229. 33 The applicant was sentenced to fixed terms of 2 years imprisonment for counts 1 and 2 which were partially accumulated. The approach adopted by his Honour to the totality of the sentences imposed did not involve the lowering of the individual sentences for counts 1 and 2 before aggregation: see Johnson v The Queen (2004) 78 ALJR 616. His Honour determined that it was inexpedient to impose non-parole and parole periods for those counts. 34 When considering the applicant's pleas of guilty, his Honour remarked (ROS at 8): "The mitigating factors are firstly, that he has pleaded guilty to all of the offences, these were not at the first opportunity but followed negotiations. I do not detect any significant remorse for his crimes but the pleas of guilty have utilitarian value. I allow a discount of fifteen per cent for the pleas of guilty." 35 It is true that the pleas of guilty to counts 1 and 2 were entered following negotiations after the applicant's arraignment in the District Court but this was not so in the case of charges 7 to 12. Pleas of guilty to those charges had been entered in the Local Court and the applicant was entitled to have the utilitarian value of the pleas assessed on that basis. Whilst it is established that no course taken by a person offering a plea of guilty creates an entitlement to any particular discount, or to a discount at the maximum of the range of 10-25 per cent (see R v Wilson [2005] NSWCCA 112 [at 27]), the mistake by the sentencing Judge denied the applicant the possibility of the assessment of the utilitarian value of the pleas entered in the Local Court being in the range of 20-25 per cent. These pleas of guilty had significant utilitarian value avoiding the need for a committal hearing and a trial. With respect, the sentencing Judge in my opinion erred in overlooking this consideration by applying the same utilitarian discount for all the offences. There is no criticism of his Honour's assessment of a discount of 15 per cent for counts 1 and 2.

36 Although the offence at Cattai (charge 11) was committed whilst the applicant was on conditional liberty (an aggravating factor which was not present on sentence for counts 1 and 2) these considerations lead me to conclude that his Honour did not fix an appropriate sentence for charge 11 before considering accumulation and the principle of totality. By focussing on the total effective sentence to be imposed his Honour, with respect, was in error. 37 The Crown argues that the sentences for the break, enter and steal offences contrary to s 112(1) Crimes Act (count 1 and charge 11) were lenient as the sentencing Judge gave insufficient weight to the seriousness with which these offences are viewed. The purpose of this argument is to support the Crown's contention that the total effective sentence is not manifestly excessive. 38 In the guideline judgment in Ponfield this Court emphasised the seriousness of an offence contrary to s 112(1) and referred to a number of factors the presence of which enhanced the seriousness of the offence. One of those factors namely the applicant's prior record particularly for like offences was present at the time of the commission of both offences. As mentioned, the second factor namely the offence being committed whilst the applicant was on conditional liberty was present for charge 11. 39 It is apparent from the sentencing Judge's remarks that he took these factors into account. His Honour, as he was obliged to do, did not take into account the applicant's prior record of similar offending as increasing the seriousness of the offences but as a factor disentitling the applicant to "further leniency" (ROS at 7). His Honour was entitled to have regard to the applicant's record in giving more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: see R v McNaughton [2006] NSWCCA 242; R v M.A.K R v M.S.K [2006] NSWCCA 381 [at 51]. 40 His Honour was clearly aware of the seriousness of the offences and I am not persuaded that the sentence for count 1 of a fixed term of imprisonment of two years was unduly lenient. On the other hand, an undiscounted starting point of 7 years and 22 days imprisonment for charge 11 is, to my mind, beyond the range appropriate for that offence. This Court has said that sentencing for offences contrary to s 112(1) does not involve simply adding up aggravating features. It involves a qualitative analysis of the particular facts surrounding the relevant offence: see R v Webster [2005] NSWCCA 110 [at 26]. 41 The Crown contends that his Honour gave insufficient weighting in count 2 for the four offences on the Form 1. It is evident from the sentencing Judge's remarks that he was mindful of the offences included on the Form 1. In my opinion, the sentences for each of the offences other than charge 11 were within an appropriate range. His Honour furthermore gave proper consideration to the accumulation or concurrence of all the sentences. As a consequence of my finding of manifest excess for charge 11, it follows that the total effective sentence of 10 years imprisonment is manifestly excessive.

42 The principal complaint of the applicant in ground 2 of the appeal is that his Honour erred in failing to consider special circumstances. The applicant's complaint is without merit as the sentencing Judge found special circumstances because of the applicant's need for "extended supervision" (ROS at 9). As a result, the balance of term of the total effective sentence exceeded one third of the non-parole period an adjustment of 6 months being made in the applicant's favour.

43 Ground 4 of the appeal is that his Honour overlooked the possibility of rehabilitation when imposing sentence. Contrary to the applicant's submission, the sentencing Judge was clearly mindful of the applicant's prospects of rehabilitation. This ground of appeal has not been established. 44 Further matters have been raised by the applicant in written material provided to the Court. The applicant complains that his Honour erred when he failed to take into account that some of the offences arise out of the same set of facts. It appears that the applicant is referring to charges 8, 9 and 10 (as one group) and charges 11 and 12 (as another group). It is evident that the sentencing Judge recognised that there was an element of commonality in these charges by requiring that the individual sentences imposed be served concurrently. A further complaint is that an error was made when the sentencing Judge said "he didn't detect any remorse". What his Honour did say was that he did not detect any significant remorse. Such a finding was open to the sentencing Judge and there is no error. 45 The applicant complains that the sentencing Judge failed to take into account his strict bail conditions. As mentioned, the applicant's criminal offending in 2004 occurred whilst he was at liberty on bail and there is no entitlement to a reduction in sentence for the terms of that conditional liberty which he breached. 46 Error having been identified, the Court, in my view, should consider whether "some other sentence ……is warranted in law and should have been passed": s6(3) of the Criminal Appeal Act 1912. 47 The appropriate undiscounted starting point of the sentence for charge 11 is 6 years. This sentence is reduced by 25 per cent for the utilitarian value of the early plea of guilty in the Local Court to 4 years 6 months. 48 Although his Honour erred by over looking the entry of the pleas of guilty at the earlier stage for charges 7, 8, 9, 10 and 12, I am of the view that for these offences lesser sentences are not warranted in law. 49 The applicant has informed this Court that he is currently serving his sentence on protection. From an affidavit of Senior Assistant Superintendent Hornery, it appears that the applicant became a special management area placement inmate on 10 June 2006 at his own request as he feared for his safety. He was transferred to Parklea Correctional Centre and recently signed a further inmate protection application. He is currently housed in Unit 5C at Parklea where he is free to mix with all of the inmates in the Unit and has access to the services detailed in the affidavit. Area 5C inmates it seems have limited employment opportunities, however, the applicant is presently ineligible for employment. The applicant in response points out that inmates on protection do not have the opportunity to participate in work release and spend more time locked in their cells. His Honour found special circumstances. I am not persuaded that the conditions in which the applicant is presently serving his sentence are such to allow for a further adjustment in the balance of term. 50 A total effective sentence of 8 years and 6 months with a non-parole period of 6 years, in my view, appropriately reflects the totality of the criminality. This may be achieved by quashing the sentence imposed by the sentencing Judge for charge 11 and by fixing for that offence a non-parole period of 2 years with a balance of term of 2 years and 6 months. 51 In my opinion, the Court should make the following orders:

(ii) Quash the sentence imposed by Viney ADCJ for charge 11 being an offence contrary to s 112(1) of the Crimes Act 1900.

(iii) Sentence the applicant to imprisonment for a non-parole period of 2 years to date from 17 November 2008 and expire on 16 November 2010 with a balance of term of 2 years and 6 months expiring on 16 May 2013 for charge 11.

The earliest date the applicant will be eligible for release to parole is 16 November 2010. **********

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