Police v VIMPANI

Police v VIMPANI - [2008] NSWLC 14 - NSWLC 2008 case summary — Zoe

[20]

In Harris [2007] NSWCCA 130 the Court (McClellan CJ at CL, Hulme & Hislop JJ said at [30]-[31]: "30 It is also to be observed that nowhere in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors was doubt cast on the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were: - "The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community. In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders. Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim. It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes. Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment." 31 Although in Attorney-General's Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown's application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112 (1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:- (i) The offence is committed whilst the offender is at conditional liberty; (ii) The offender has a prior record, particularly of like offences; (iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act); (iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

[24]

On this same issue of concurrent sentences for multiple offending, in R -v- Nguyen [2007] NSWCCA 14 at [12] Howie J. (Sully and Price JJ agreeing) said: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order than sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R -v- MMK [2006] NSWCCA 272. The position was explained in Cahyadi -v- R [2007] NSWCCA 1 as follows: "27…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both".

[44]

The situation with the offender presently under consideration is analogous to the situation in R -v- Gordon (1994) 71 A Crim R 459, where the offender in that case had made substantial efforts towards rehabilitation while in custody awaiting sentence. Hunt CJ at CL (McInerney & Sully JJ agreeing) in Gordon said at 468-9: An important element in the sentencing of the respondent, as the judge correctly recognized, was the positive steps taken by him towards his rehabilitation since being in custody. The reports from the gaol indicate that he had made a very constructive use of his time, undertaking both education and industry. He had been given responsible positions which he had filled with remarkable success. And, as pointed out earlier, he had maintained a co-operative and positive attitude towards members of the staff and his peers. As it is not unknown for drugs and alcohol to be available inside the gaols, this achievement cannot be dismissed simply upon the basis that the respondent has always behaved well when not intoxicated. Indeed, the respondent should be commended for his efforts. But the sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place: Regina v Dodd (1991) 57 A Crim R 349 at 354. Except in well defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed: Regina v Rushby [1977] 1 NSWLR 594 at 597-598. Retribution, or the taking of vengeance for the injury which was done by the offender, is also an important aspect of sentencing: Regina v Goodrich (1952) 70 WN 42 at 43; Regina v Cuthbert (1967) 86 WN (Pt 1) 272 at 274; Regina v Rushby (at 598). Not only must the community be satisfied that the offender is given his just deserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done. What all of those principles make clear is that rehabilitation (or reform) - the hope that the offender will be released back into the community a better person than when he or she left it - is only one of the purposes of punishment and that, even when some measure of rehabilitation has been achieved, such a subjective consideration remains necessarily subsidiary to the need for the sentence to act as a deterrent to the public. Clearly enough, the issue of rehabilitation is subsidiary to the issue of general deterrence.

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