[2010] NSWCCA 330
Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37
Newman (A Pseudonym) v R [2019] NSWCCA 157
R v Pham [2018] NSWSC 822
White v R (2016) 261 A Crim R 302
Source
Original judgment source is linked above.
Catchwords
Hunter v R (2010) 208 A Crim R 353[2010] NSWCCA 330
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Newman (A Pseudonym) v R [2019] NSWCCA 157
R v Pham [2018] NSWSC 822
White v R (2016) 261 A Crim R 302
Judgment (6 paragraphs)
[1]
The applicant's subjective case
The applicant was born in January 1991. He was 23 years old at the time he committed the offences and 28 years old at the time of sentence. He is currently 29. He was first charged with a criminal offence, being possession of a prohibited drug, in June 2013. A 12-month bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act was imposed for that offence on 26 February 2014. The applicant was subject to conditional liberty under that bond at the time he committed each of the index offences.
The applicant has entries on his criminal record after his trial (but before sentence) which include driving whilst disqualified (in December 2014) and driving under the influence of alcohol and refusing to provide blood and urine samples (in August 2018).
The applicant was born in Australia. His parents migrated from Croatia. He has one sibling: a younger sister. He reported a loving, stable and supportive upbringing. He attended school until part-way through Year 12. He reported an unstable work history with a poor work ethic. He has worked in various part-time positions after leaving school before working "on and off" with his father. The applicant reported that he and his father tended to "butt heads" at work which would lead to arguments. The applicant reported that he intended to become more involved in the family business after his release from custody because of his father's declining health.
The applicant reported suffering no significant periods of illness. In the opinion of the clinical psychologist whose report was tendered on sentence, the applicant appeared to have a stable mental health history. She noted that as at December 2018, when she prepared her report, he had experienced recent low levels of depressive mood symptomology but did not meet the diagnostic criteria for a diagnosis of depression. He did meet the diagnostic criteria for a severe opioid abuse disorder. The psychologist recommended that the applicant complete the EQUIPS Addiction program and attend Crystal-Methamphetamine Anonymous groups on a regular basis.
The applicant started consuming alcohol at age 18. He reported that he consumed 20 to 30 drinks two to three times weekly but denied that this led to any psychosocial impacts on his relationships or any health issues. The applicant reported having consumed one stick of cannabis daily between the ages of 16 or 17 and 20. He reported that he began "ingesting" ice at age 22 and that his habit quickly became a daily habit costing $200-$300 per day. He said that he was motivated to abstain (from the use of ice) due to feeling embarrassed about coming to the attention of police in 2014 when he was arrested for the offences for which he stood trial. .
The applicant reported a history of gambling from the age of 18 up until the time of the offending in 2014.
The applicant reported that the offending "wasn't his idea". He said it was motivated by one of his co-offenders wanting CCTV cameras for their home. He said that his judgment was impaired by the use of crystal-methamphetamine and that he did not stop to consider the potential repercussions of his actions. He said that he felt that he had been used as a "guinea pig" because in some of the offences he played the more active role by stealing CCTV equipment while his cooffenders were waiting in the vehicle. He reported that financial stress associated with him having upgraded his car contributed to his involvement in the offending.
The material before the sentencing judge and relied upon in this Court on resentence included, in addition to the report from the forensic psychologist, three Sentencing Assessment Reports dated 12 November 2018, 23 January 2019 and 18 June 2019. In the report dated 12 November 2018, the author noted that the applicant reported little recollection of his involvement in the offending due to his drug use at the time. He further noted that: "Notwithstanding his apparent lack of specific recollection, [the applicant] posited his offending in the context of drug use and the need to acquire resources to facilitate ongoing drug use".
I note that in the Sentencing Assessment Reports of January 2019 and June 2019 that the applicant enjoys the continued support of his family and is assessed as having a low-medium risk of reoffending.
No additional evidence was relied upon at the hearing of the appeal.
[2]
Relevant findings of the sentencing judge
The sentencing judge made the following findings:
1. Considering the nature of the offences, what was stolen, the wilful destruction of property and the impact that each of these offences would have had on small business owners, the objective seriousness for each offence is at or just below the mid-range..
2. Planning is inherent in offending of this type and for that reason not a statutory aggravating factor.
3. There had been delay as the matter progressed slowly through the trial listings at the Parramatta District Court. That delay provided the applicant with an opportunity to turn his life around in the manner described by his father and sister.
4. The sentencing judge accepted the concession on behalf of the applicant that, as a result of having chosen to plead not guilty, he was not entitled to a discount and a submission could not be made as to remorse.
5. The applicant's risk of reoffending was low and his prospects of rehabilitation ought to be considered "good".
6. The applicant's addiction to drugs was precipitated by choices he made as an adult. It is not a matter which mitigates the sentence to be imposed.
7. Offending of this type calls for the need for general deterrence as well as specific deterrence, although the need for specific deterrence was moderated by the fact that the applicant had remained drug-free and was found to be at low risk of reoffending.
8. The applicant's prospects of rehabilitation, his relative youth and the fact that it would be his first time in custody justified a finding of special circumstances.
9. The sentencing judge considered the principles of totality and the need to impose an aggregate sentence which reflected the criminality of the offending behaviour but was not a crushing sentence.
The sentencing judge noted that the co-offender, Mr Hamouda, was to be sentenced (by him) the following day for two offences with a further four offences to be taken into account on a Form 1. They included six of the ten offences the applicant was convicted of at trial, being counts 2 and 10 on the indictment, with four of the remaining eight counts on the indictment on a Form 1. His Honour took into account the level of culpability of the applicant relative to that of the co-offender who was to be sentenced on the agreed basis that he was a principal in the second degree. His Honour also had regard to relevant differences in their subjective cases (the co-offender's record was extensive although largely driving offences) and was mindful of the need to impose sentences on both the applicant and co-offender so as not to give rise to a justifiable sense of grievance by either of them. No complaint is made by the applicant that the sentencing judge's application of the parity principle was productive of error. That principle, however, remains to be considered on resentence.
[3]
The authorities
This Court has referred in a line of authority as to how, if at all, offending might be aggravated by the "in company" factor in s 21A(2)(e) of the Crimes (Sentencing Procedure) Act.
In Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 per Adams J:
"[29] ... At all events, the fact that offences occur in company, whilst it is capable of being an aggravating feature, might or might not in fact be aggravating: it is still necessary for the judge to determine whether in all the circumstances the offence is made more culpable than otherwise, as where two robbers overawe a victim. ...
[30] Although s 21A of the Sentencing Act regrettably introduces unnecessary complexity into the sentencing process, it does not make something more culpable unless it is in reality more culpable in the particular case: there are no legal fictions in sentencing and the mere fact that a particular feature is listed in s 21A(2) should not have a significant effect on a sentence unless, having regard to the ordinary principles of sentencing, it actually aggravates the particular offending in question. …"
Howie AJ agreed with His Honour's observations at [100]-[102]:
"[100] This court has frequently encouraged sentencing courts and, hence legal practitioners appearing before them, to take a principled approach to the provisions of s 21A(2) of the Crimes Sentencing (Procedure) Act based upon an understanding that generally the provisions were not intended to change the common law. In R v Tadrosse [2005] NSWCCA 145 ; 65 NSWLR 740 it was stated that, if a court takes into account an aggravating feature that was not available at common law, then the court is probably using s 21A(2) incorrectly.
[101] That approach should have at least raised a question about whether a factor of aggravation that an offence was committed in company meant that the factor was engaged simply because another person other than the offender was present or engaged in the offending regardless of the nature of the offending or the purpose of the other person's presence. The common law understanding of "in company" should have informed an appreciation of the nature of the aggravating factor contained in s 21A(2)(e). It relates to the presence of one or more persons with the offender in order to convey a threat of violence to the victim by the combined presence of more than one person. That factor had no application to the applicant simply because he happened to use Ms Hunter to assist in his drug trade. …
[102] I agree with Adams J that it is not sufficient for a court simply to refer to an aggravating factor in the section without considering whether, in light of a discernable policy making the factor aggravating, that it is truly aggravating in the context of the offence being committed. There was no policy that would make the applicant's offending more serious simply because it happened to be in the presence and with the assistance of Ms Hunter in the circumstances of this case. Again any understanding of the approach taken to s 21A(2) by this court would make it clear that it is not to be used as a checklist without any regard to the particular facts before the court and the nature of the offence for which sentence is being passed."
These comments were subsequently cited with approval by this Court in White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190 at [79], where Simpson JA (with whom Bathurst CJ agreed) held:
"It is not, however, sufficient merely to find that the circumstance exists; it is necessary also, in sentencing, for the judge to determine the extent (if any) to which the offence has been aggravated."
Finally, in R v Pham [2018] NSWSC 822 at [17], Bellew J said of the authorities extracted above:
"In my view, the judgments in Hunter and Gore make it clear that the mere fact that two persons are in the company of each other at the time of particular offending is not, of itself, a sufficient basis upon which to conclude that the offending is aggravated within the meaning of s 21A(2)(e) of the Sentencing Act. The fact that the present offender was in the company of W4 at the time of the offending did not, to use the phrase adopted by Adams J, add any significant culpability to the offending. The fact that W4 and the present offender assisted each other in the offending did not render them 'in company' for the purposes of that section."
At no point in his sentencing remarks did the sentencing judge consider the relevance of the fact that the offences (all of them erroneously in his view) had been committed whilst the applicant was "in company" with others. Were his Honour to have been taken to the authorities extracted above, and applied a principled approach to whether the "in company" feature of statutory aggravation under s 21A(2)(e) was borne out by the available evidence, in my view, it would not have been open to him to conclude all offences were relevantly aggravated by the presence of one or two other men, even if it might have allowed him to find that some offences were.
The error contended for by the applicant is made out for that reason.
[4]
Resentence
The Crown submitted that the agreed facts on sentence, when considered with the available still images from the CCTV footage, support the proposition that the offences the subject of each of counts 2-6, 8 and 9 were committed by the applicant while other men were present (sometimes one male, sometimes two) and, in particular, that in respect of the counts which involved larceny of the CCTV cameras (being counts 2, 3, 4 and 5), their presence allows for a finding that one or both men were either actively assisting the applicant or encouraging him to commit the particular offence by their presence. I accept that submission insofar as it relates to the four larceny offences. However, on my reading of the agreed facts, and having considered the CCTV footage, there is no sufficient factual foundation for a finding that the applicant's offending the subject of counts 6 and 9 (being the take and drive offences) and count 8 (being the destruction of property) was in any material sense assisted or encouraged by the fact that, in respect of counts 6 and 8, two of the men were present and in some unspecified sense involved in the driving away of the vehicle or that, in respect of count 9, one other man was present when a vehicle was removed. Neither am I able to find any assistance or encouragement was provided to the applicant in the commission of the offence the subject of count 8. I regard the taking and driving away of the vehicles as opportunistic and the damage to property as either opportunistic or incidental to other offending. As fairly and properly conceded by the Crown, there is no evidence at all from which a finding of "in company" could be made in respect of the offending the subject of counts 1 and 7.
In considering the extent to which counts 2, 3, 4 and 5 are relevantly aggravated, it cannot be overlooked that the offences were committed in an industrial complex at a time when no tenants or owners of units within the complex were present. While doubtless that was a factor inherent in the planning that must have accompanied a committed course of persistent offending by multiple offenders at those premises over a three-week period (a factor which the Crown on the appeal accepted was not a statutory aggravating factor under s 21A(2) but a feature of the objective gravity of the offending), it also operates to ameliorate one of the central features of the "in company" factor of statutory aggravation in that no member of the public was overborne by the presence of multiple offenders or subject to any threat of violence.
I propose the following indicative sentences for each of the ten counts (only count 10 remains unaltered):
Count Offence Maximum penalty & SNPP Indicative
Sentence
1 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 10 months
2 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 12 months
3 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 14 months
4 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 14 months
5 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 14 months
6 Take and drive conveyance, contrary to s 154A(1)(a) of the Crimes Act 5 years' imprisonment 12 months
7 Larceny, contrary to s 117 of the Crimes Act 5 years' imprisonment 12 months
8 Destroy or damage property, contrary to s 195(1)(a) of the Crimes Act 5 years' imprisonment 6 months
9 Take and drive conveyance, contrary to s 154A(1)(a) of the Crimes Act 5 years' imprisonment 14 months
10 Aggravated break, enter and commit serious indictable offence (larceny) (the aggravation specified was "in company"), contrary to s 112(2) of the Crimes Act 20 years' imprisonment 2 years with a NPP of 16 months
SNPP 5 years
[5]
I indicate those sentences for the following reasons. I am satisfied that the offending the subject of counts 2, 3, 4 and 5 was aggravated by the fact that those discrete offences of larceny, in each case of CCTV cameras, were removed from the premises within the industrial complex by the applicant acting in company with one or two other men in what I am satisfied beyond reasonable doubt was a joint criminal enterprise to steal. I consider, however, that the offending in each case is aggravated in that way but, ultimately, to a relatively minor degree, given that there is no evidence the applicant inveigled their assistance or promised them a reward; in fact there was some evidence that one of them was the beneficiary of the theft of at least one of the CCTV cameras. The fact that the offences were committed at night with no witnesses and no confrontation with people at the premises or any bystanders (even if that was fortuitous) serves to ameliorate the impact of the aggravating "in company" factor under s 21A(2)(e) such that it does not add significantly to the applicant's culpability for counts 2, 3, 4 and 5 relative to counts 1 and 7 in which the applicant acted alone.
The difference between the sentences indicated for counts 1 and 7 reflects the values of the items stolen, and the difference between counts 6 and 9 reflects the fact that the vehicle the subject of count 6 was apparently driven only a short distance while the vehicle the subject of count 9 was used to commit the offence the subject of count 10.
After preserving the finding of special circumstances made by the sentencing judge, and allowing for a large measure of notional concurrency between counts 2, 3, 4, 5 and 6 (each offence having been committed on the same night and some within minutes of each other) and some degree of notional concurrency between counts 8, 9 and 10 for the same reason, although not to the same extent given the seriousness of the offending the subject of count 10, I would impose an aggregate sentence of 4 years and 6 months to date from 27 September 2018 and to expire on 26 March 2023 with a non-parole period of 2 years and 3 months to expire on 26 December 2020.
I propose the following orders:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Sentence imposed by Wilson SC DCJ on 12 August 2019 is quashed and in lieu thereof an aggregate sentence of 4 years and 6 months is imposed to commence on 27 September 2018 and expire on 26 March 2023, with a non-parole period of 2 years and 3 months to expire on 26 December 2020.
WILSON J: I agree with Fullerton J.
[6]
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Decision last updated: 05 June 2020
The applicant relies on a single ground of appeal:
His Honour erred in failing to determine the extent to which, if at all, counts 1-9 were aggravated by the fact that they were committed in company (see s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999).
On the appeal, the Crown accepted that the finding by the sentencing judge that all 10 offences were committed "in company" and that the offending the subject of each of offences 1-9 was aggravated for that reason pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), constituted a sentencing error when neither the facts which were agreed for sentencing purposes as they relate to counts 1 and 7 nor the available CCTV footage which related to the commission of those offences (in each case the theft of CCTV cameras) suggest that either was committed other than by the applicant acting alone.
The Crown accepted that this error in relation to counts 1 and 7 has the capacity to affect the exercise of this Court's sentencing discretion in the sense discussed by Basten JA in Newman (A Pseudonym) v R [2019] NSWCCA 157 by an adjustment to the indicative sentences for counts 1 and 7.
However, the Crown maintained that after considering all relevant factors in the exercise of the Court's sentencing discretion in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] including, but not limited to, the leniency afforded the applicant in the sentence indicated for count 10, this Court would not be satisfied that a lesser aggregate sentence is warranted and the appeal should be dismissed under s 6(3) of the Criminal Appeal Act for that reason.
Further, the Crown invited the Court to conclude that the evidence available to the sentencing judge, properly understood and assessed, supported a finding that, save for counts 1 and 7 (and excluding count 10 where aggravation is an element of the offence), each of counts 2-6, 8 and 9 were committed by the applicant in circumstances where the aggravating "in company" factor in s 21A(2)(e) is made out.
In the Crown's submission, each of those offences was committed by the applicant in a public place, in the presence of at least one and sometimes two other men, and with at least a danger of confrontation with either a tenant or owner of premises within the industrial complex where the offences were committed, or a member of the public were they in the complex or were they to arrive after hours. The Crown submitted that being "in company" with one or two co-offenders also afforded the applicant the assurance that there were others nearby to assist him, thereby adding to the criminality of his offending.
For the reasons which follow, I am persuaded that the error for which the applicant contends has been made out and that on resentence this Court would not reach a finding, beyond reasonable doubt, that the "in company" statutory factor of aggravation applied to all of the seven offences; counts 2-6, 8 and 9. I am satisfied, however, that it applies to some of them. On resentence, indicative sentences will reflect that finding. I am also satisfied that a lesser aggregate sentence is warranted.