CRIMINAL LAW - appeal against sentence - erroneous reference to standard non-parole period when sentencing for attempted aggravated break, enter and steal - appeal allowed - offender re-sentenced
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CRIMINAL LAW - appeal against sentence - erroneous reference to standard non-parole period when sentencing for attempted aggravated break, enter and steal - appeal allowed - offender re-sentenced
Judgment (3 paragraphs)
[1]
Solicitors:
C Hunter (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2013/199174
Decision under appeal Court or tribunal: District Court at Parramatta
Jurisdiction: Criminal
Date of Decision: 03 December 2014
Before: Colefax SC DCJ
File Number(s): 2013/199714
[2]
Judgment
BASTEN JA: I agree with Button J that the sentencing judge erred in accepting that the standard non-parole period applied to this offence, which involved an attempt, rather than the completed offence. It did not, on the basis of the authority referred to by Button J.
This was not a case of the judge turning over a red herring in order to identify and then discard it. Further, although it is sometimes said that a standard non-parole period does not "apply" to a case dealt with on a plea of guilty, it remains available as a relevant guidepost to be considered by the sentencing judge. In this case, the standard non-parole period did not "apply" in a stronger (legal) sense; it did not constitute a guidepost at all. Reference to it was equivalent to referring to a wrong statutory maximum term.
Once it is accepted that an extraneous factor was taken into account, it is necessary for the court to exercise its own independent discretion in determining the appropriate sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
While counsel for the applicant invited the Court to find special circumstances in order to vary the ratio between the non-parole period and the balance of term for the current sentence, that course is not appropriate in this case.
Where there is a composite sentence period, it is not uncommon for a sentencing judge to make a finding of "special circumstances" for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The effect is to allow a reduction of the non-parole period as a proportion of the sentence which would otherwise apply. The purpose is to retain the benefit for the offender of a period during which he or she may be subject to conditional release on parole at one-third of the period of mandatory custody. However, that purpose is not served by a finding of special circumstances in the present case. Unadjusted, on a sentence of 40 months, commencing on 24 April 2014, a non-parole period of 30 months would have expired on 23 October 2016. That date has passed: the applicant, in accordance with the sentence imposed on him by the sentencing judge, was not then eligible for parole. There is no practical purpose to be served in specifying an even earlier date of eligibility for release on parole. It is an unfortunate fact that he can now serve no more than six months of his sentence on supervised release. Accordingly, I agree with the sentence proposed by Button J.
Why the application for leave to appeal was not filed at an earlier time is not known. The judgment on sentence was delivered on 3 December 2014; the application for leave to appeal was filed on 2 September 2016. No such delay is tolerated in civil proceedings; no such delay should be tolerated in criminal proceedings where the liberty of the individual is at stake. The fact remains, however, that there is no purpose in reducing the non-parole period below that prescribed by statute. Accordingly, that is not a course which should be taken.
For completeness, I would add that, even had the non-parole period not yet expired, I would not have thought it appropriate to find special circumstances. The factual background outlined by Johnson J provides no basis for thinking that an extended period of supervised release will benefit the applicant, or serve the public interest.
JOHNSON J: I have had the advantage of reading the draft judgments of Basten JA and Button J in this matter. I have reached a different conclusion concerning the outcome of the appeal on resentencing. I should explain why I have come to that view.
I agree with their Honours that error has been demonstrated resulting from the reference to the inapplicable standard non-parole period. In these circumstances, it is necessary for the Court to move to the application of s.6(3) Criminal Appeal Act 1912 involving the exercise of the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]; Lehn v R [2016] NSWCCA 255 at [68], [125], [129] and [141]-[142].
In exercising the sentencing discretion, it is necessary to keep in mind the single statutory guidepost in this case, being the maximum penalty of 20 years' imprisonment applying to an offence of attempted aggravated break, enter and steal under ss.112(2) and 344A Crimes Act 1900.
The offence occurred in the early afternoon of Sunday, 30 June 2013 at Canley Heights. The Applicant (then aged 40 years) and his son (then aged 18 years) walked down an alley next to a residential address in Chancery Street, Canley Vale. The choice of that address is significant. Following the arrest of the Applicant and his son, police located in the son's trouser pocket a Centrelink Health Care Card in the name of the resident of that property which contained that address. It may be inferred that the property had been selected for burglary by the Applicant and his son as a result of their possession of that (apparently stolen) card.
The Applicant and his son were both wearing gloves. Each of them jumped the fence into the front area of the property. The Applicant walked to the front door and tried to open it using his hands. His son was standing next to him looking left and right, acting as a lookout. The two men opened the side fence of the property and walked into the backyard. They remained in the backyard area for about three-to-five minutes before returning to the front of the property. They returned to the front door and the Applicant attempted, once again, to open the front door with his hands whilst his son was looking around. Both men jumped back over the fence and into the alleyway.
Witnesses called police who arrived a short time later. Police observed the Applicant and his son about 15 metres from the alleyway wearing gloves. In answer to an enquiry as to why the men were wearing gloves, the Applicant claimed that he used them to "ride a bike" although, in answer to a further police question, he said that the bike was at his home. It was at this point that police located the card relating to a resident at the Chancery Street address in the pocket of the Applicant's son (see [11] above). The two men were arrested, and the Applicant later declined to participate in an interview with police.
In considering the objective gravity of the Applicant's offence, it is necessary to keep in mind that it was an attempt offence, and not the completed offence. As a result of this distinction, of course, the standard non-parole period of five years did not apply to the Applicant. The maximum penalty of 20 years' imprisonment did apply.
In sentencing for an attempt offence, this Court has said that it is important in evaluating the seriousness of the offence, to consider that the offence was not completed, the chances of its success, the seriousness of the attempt, whether the attempt was sophisticated or naïve and the competence of the attempt and all other surrounding circumstances: R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3 at [139].
In R v Doorey [2000] NSWCCA 456, Wood CJ at CL (Whealy J agreeing) said at [29] (with respect to an offence of attempted armed robbery):
"So far as it was suggested that the matter lacked objective seriousness being only an attempt, I would similarly reject that proposition. It is the case that an attempt attracts the same potential maximum penalty as the performance of the substantive crime. Every case has to be treated and assessed upon its merits. In some cases an attempt may constitute an offence of lesser seriousness, if there was a withdrawal or a failure to carry the matter through from a very early stage. In the present case, however, it was only the inability of the applicant to open the till, which meant that the substantive offence was not implemented. In the circumstances of this case I would regard the attempt as still constituting a matter of particular seriousness."
This was a serious effort on the part of the Applicant and his son to break into this residential property. There were two attempts, separated by a period of time, although ultimately unsuccessful. Both the Applicant and his son were wearing gloves thereby indicating a degree of planning. The inability of the Applicant and his son to break and enter the premises was not for want of trying. It appears that the two men had decided to discontinue their efforts to break into the property. It also appears that the offence was sufficiently obvious as to be observed by persons in the vicinity who called police.
In the context of offences of attempted break, enter and steal, this was a reasonably serious example. The Applicant was, of course, in company with his son and this was an aspect which rendered the offence an aggravated one: s.105A(1)(b) Crimes Act.
The Applicant has an extensive criminal history, including repeated break, enter and steal (and associated) offences committed in 1990, 1998, 1999, 2002, 2003, 2005, 2010 and 2012. Other offences of significance included being armed with intent to commit an indictable offence (in 2007) and reckless wounding (in 2008) with other offences of dishonesty (including shoplifting) together with possession of a prohibited drug (in 2007 and 2010).
The Applicant was subject to conditional liberty at the time of the commission of the present offence on 30 June 2013. He was nine months into the two-year suspended sentence which had been imposed at the Parramatta Drug Court on 5 September 2012 with respect to offences of entering a building with intent to commit an indictable offence and aggravated break, enter and commit serious indictable offence whilst in company. On 6 September 2013, the Applicant was sentenced for these matters to terms of imprisonment involving a non-parole period which expired on 23 April 2014. The sentencing Judge in the present case directed that the sentence commence on 23 April 2014.
The Applicant's subjective circumstances were not helpful to him. Button J outlined aspects of the Applicant's background. In a report dated 2 December 2014, Mr Gorrell, psychologist, observed that the Applicant had spent many years in custody and was "very much institutionalised". Mr Gorrell observed that, if the Applicant was to be rehabilitated, "the best scenario for such to occur would be through a residential drug rehabilitation facility".
It does not help the Applicant on sentence that he (as a mature and recidivist burglar) was involved with his 18-year old son in the commission of this offence.
Although the Applicant is to be sentenced for an attempt offence, it is pertinent to keep in mind what this Court has said concerning the approach on sentence for offences of break, enter and steal as summarised in R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130 at [24]-[31]. General deterrence is a particularly important sentencing consideration for break and enter offences (and attempted break and enter offences): R v Maher [2004] NSWCCA 177 at [44].
The Applicant's criminal history for offences of this type (and other offences) is relevant to the question as to where, within the boundaries set by the objective circumstances of this offence, a sentence should lie, particularly with reference to his attitude of disobedience of the law and to the increased weight to be given to retribution, personal deterrence and the protection of society: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]-[28].
I note that the Applicant pleaded guilty after his trial had commenced. I would maintain the discount of five per cent for his plea of guilty as applied by the sentencing Judge.
Like the sentencing Judge, I would fix a commencement date for the sentence of 23 April 2014, that being the date from which the Applicant has been in custody for this matter alone.
As to whether there are special circumstances, I have kept in mind the evidence that the Applicant is already institutionalised. In approaching sentence, the Court should keep in mind the need for a sufficient period of conditional and supervised liberty to assist the protection of the community by maximising the prospect that the Applicant will not reoffend, whilst at the same time providing such assistance as is possible towards his rehabilitation: Jinnette v R [2012] NSWCCA 217 at [103].
I have kept in mind the period of time for which the Applicant has been in custody for the sentences imposed by the Parramatta Drug Court, which has led to a continuous period of custody since his arrest on the present matter on 30 June 2013. As mentioned, the sentences imposed by the Parramatta Drug Court on 6 September 2013 involved the imposition of a non-parole period which expired on 23 April 2014. In considering the special circumstances question, I have kept in mind the fact that the Applicant has had an unbroken period of custody since 30 June 2013.
Having considered matters which bear upon the question of special circumstances, I am satisfied that the statutory ratio of 75% should be maintained as between the non-parole period and head sentence which I would impose with a commencement date of 23 April 2014.
I have kept in mind that the purposes of sentencing in this case include ensuring that the Applicant is adequately punished for his offence, the need for specific and general deterrence and the protection of the community, the promotion of the Applicant's rehabilitation and the denunciation of his criminal conduct: s.3A Crimes (Sentencing Procedure) Act.
Having regard to all factors relevant to the exercise of instinctive synthesis, I consider that a head sentence of imprisonment for four years and two months is appropriate in this case. After applying the five per cent discount for his plea of guilty (and with some rounding), I would sentence the Applicant to a term of imprisonment for three years and 11 months commencing on 23 April 2014 and expiring on 22 March 2018 with a non-parole period of two years and 11 months commencing on 23 April 2014 and expiring on 22 March 2017.
I share the concern expressed by Basten JA as to the length of time which passed before the application for an extension of time was made in this Court. The sentence was passed on 3 December 2014, but the Notice of Application for Extension of Time was not filed until 2 September 2016. Such a delay impacts significantly upon the discharge of this Court's functions on a sentence appeal, quite apart from the difficulties which may arise with the hearing proceeding in this Court at a point which is late in the sentence being served.
I would make the following orders:
1. grant the Applicant an extension of time to 2 September 2016 to file his application for leave to appeal against sentence;
2. grant leave to appeal against sentence;
3. appeal against sentence allowed;
4. the sentence imposed at the Parramatta District Court on 3 December 2014 is quashed;
5. in its place, for the offence of attempted aggravated break, enter and steal, the Applicant is sentenced to imprisonment for a term of three years and 11 months, comprising a non-parole period of two years and 11 months commencing on 24 April 2014 and expiring on 23 March 2017 with a balance of term of one year commencing on 24 March 2017 and expiring on 23 March 2018.
BUTTON J:
Introduction
On 3 December 2014, Judge Colefax SC, sitting in the District Court at Parramatta, sentenced Jason Potts (the applicant) for one count of attempting to commit an aggravated break, enter and steal, the circumstance of aggravation being that the applicant was in the company of a co-offender, his adult son. At the commencement of the remarks on sentence, his Honour said "The maximum penalty for that offence is 20 years' imprisonment and there is a standard non-parole period of five years".
Although the first part of that statement of his Honour was correct, the second was not. That is because the regime of standard non-parole periods to be found in Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to attempts to commit the substantive offences listed within that Division: see D A C v R [2006] NSWCCA 265 at [9]-[10]. Regrettably, his Honour had been led into error by a document tendered by the Crown that was uncorrected by defence counsel.
Error
That error on the part of his Honour formed the basis of the first ground proposed to be argued in the application for leave to appeal. The Crown, whilst accepting that what his Honour had said was not correct, resisted the validity of the ground on the basis that one cannot be certain that the error had had any effect on the sentence ultimately imposed by his Honour. That is true; having said that, there are a number of factors that suggest that it may well have.
First, at an early stage of the remarks on sentence, his Honour said the following:
Those are the matters which constitute the immediate offence. It is necessary to make a finding of the level of objective seriousness of that offence. It is towards, but not at the bottom of, the range for such offences. But that is not the end of the assessment process because that offence is very substantially aggravated by the offender's criminal history.
Although that analysis does not conclusively demonstrate application of the standard non-parole period, to my mind it certainly has that flavour. (I regard the reference by his Honour to the criminal record of the applicant aggravating the offence, as opposed to the moral culpability of the offender, as nothing more than a slip; it did not found a ground of appeal.)
Secondly, (in all the circumstances of the matter, which I shall shortly explain) the sentence imposed was, in my respectful opinion, quite a stern one: a head sentence of 4 years and 9 months with a non-parole period of 3 years and 6 months, fully cumulative on a pre-existing term of imprisonment. That also suggests that the standard non-parole period may have played a role in his Honour's instinctive synthesis leading to the ultimate sentence.
Separately, in other cases in which a sentencing judge has erroneously referred to a standard non-parole period that, in truth, did not apply, this Court has adopted a cautious approach by accepting that error has been established, and moving to re-sentence: see BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 (erroneous reference to standard non-parole period when sentencing a juvenile offender); and McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48 (erroneous reference to standard non-parole period that had been introduced after the date of the commission of the offences).
In the circumstances, I consider that the appropriate course is for ground 1 to be upheld, and for the Court to move immediately to consider re-sentence. Other grounds were pressed by counsel for the applicant, focussing upon an alleged failure to have regard to the principles of totality, and an allegedly manifestly excessive sentence. But in the circumstance of the primary error asserted having been established, I do not consider that there is any need for those proposed grounds to be determined. Rather, I consider that the more sensible course is to regard all that has been said by counsel for the applicant and the Crown about those other grounds as submissions that should be taken into account with regard to re-sentence.
Re-sentence
Objective features
Turning then to consider re-sentence, the objective features of the matter may be shortly stated.
On 30 June 2013 at about 2PM, the applicant and the co-offender were seen in each other's company trying to gain entry to a suburban home. They jumped over the fence to the property, attempted to open the front door with their hands, went to the backyard of the property for 3 to 5 minutes, and then attempted a second time to open the front door of the property, again with their hands.
Neighbours observed what was occurring, and the police attended. The applicant was found to be wearing gloves on his hands, as was his son. When questioned about that fact, the applicant explained that he always wore gloves whilst riding his bicycle. When he went on to explain that his bicycle was in fact at home, the police understandably rejected his explanation, and he was arrested and charged.
The agreed facts that were placed before his Honour recount some further criminality, but, as the proceedings on sentence made clear, a charge that encapsulated the further offending was remitted to the Local Court, and accordingly I shall say nothing more about it.
By way of the combined effect of s 112(2) and s 344A of the Crimes Act 1900 (NSW), the applicable maximum penalty was imprisonment for 20 years. As I have already said, there was no applicable standard non-parole period.
In short, the objective aspects of the matter may be summarised as an attempt by two persons to break into residential premises that was wholly unsuccessful; readily detected; and lacking in any flavour of preparation or professionalism, except for the wearing of gloves, for which an implausible explanation was given. The offence must be assessed as being well towards the less serious end of the spectrum of offences of attempted aggravated breaking, entering and stealing.
Subjective features
Turning to the subjective features of the matter, no evidence of events between the date of imposition of sentence and the date of the hearing of the application was placed before us by counsel for the applicant.
The applicant pleaded guilty to the offence after a trial had commenced before his Honour. On re-sentence, I would replicate the discount of 5% that was granted at first instance.
The applicant was born in July 1972, and accordingly was a mature man of almost 41 years when the offence was committed. He is now aged 44 years. He enjoyed an unremarkable suburban upbringing, but regrettably commenced to use prohibited drugs at the age of 17 years. That quickly escalated to an addiction to heroin that has dominated, and very badly damaged, his life for two decades.
At the time of sentence, the applicant was residing with his parents and his 19 year old son in the same suburb in which the offence was committed. He had no contact with the mother of his son. He has never been steadily employed; no doubt his drug addiction has played a role in that.
The applicant was first sentenced to imprisonment in 2000. He has spent only 5 years and 5 months out of custody since March 2004, he having been repeatedly convicted of offences against property, entirely consistently with his dependence upon prohibited drugs. At the least, it can be said that his criminal record does not entitle him to any leniency with regard to him having attempted to commit a serious offence against property yet again. Nor is his criminal record entirely free of a flavour of violence; it includes an offence of reckless wounding that resulted in a head sentence of 1 year and 8 months and a non-parole period of 1 year and 3 months being imposed by the District Court at Campbelltown in late 2008. There have been other, less serious, offences against the person as well.
Furthermore, at the time of the commission of this offence, the applicant was subject to a suspended sentence of two years that had been imposed by the New South Wales Drug Court for a number of offences against property. His conditional liberty pursuant to that court order is a serious aggravating feature of this matter. In due course, after the applicant was charged with the offence under consideration, that suspended sentence was called up, and on 6 September 2013 he was sentenced by the Drug Court to a head sentence of imprisonment for a period of 2 years, with a non-parole period of 1 year and 4 months, each to date from 24 December 2012. As I have said, the sentencing judge made the sentence for the offence under consideration cumulative upon the expiry of the non-parole period of that pre-existing sentence.
Yet another adverse subjective feature of the matter is the conduct of the applicant in custody. Reports placed before his Honour showed that he has been a disruptive, manipulative, and at times intimidating presence whilst in various prisons over the years.
Separately, like the sentencing judge, I am not satisfied that the applicant is remorseful for this latest of the many crimes against property that he has committed.
Finally, with regard to adverse subjective factors, the applicant was described in a psychological report placed before his Honour as being (as one would entirely expect) thoroughly institutionalised.
In short, the subjective picture is quite a bleak one. There are, however, a number of countervailing factors.
The first is the fact that, in the past, the applicant has repeatedly sought help: by way of the MERIT program, by residing in a drug and alcohol rehabilitation centre more than once, and by undertaking opioid replacement therapy. There was evidence before his Honour that his efforts were sincere and had borne some fruit. I accept on the balance of probabilities the proposition in the evidence that he was able at one stage to abstain from prohibited drugs for a year, albeit some time ago.
Secondly, he was sufficiently cognisant of the problem that underpins his criminality to be a part of the therapeutic regime of the Drug Court, at least for a time.
Thirdly, although late and not evidencing remorse, his plea of guilty was at least a public and solemn expression of responsibility for this offence, when the applicant must have known that a further sentence of imprisonment was almost inevitable.
Fourthly, it seems that his family remains supportive of him, his mother having been recorded around the time of sentence as saying that he is "not a bad person, he just has a problem with drugs".
Fifthly, the applicant is recorded as wanting to avoid future incarceration. At the time of sentence, he believed that, if he were able to gain employment and move to a new suburb or city upon release, he would also be able to abstain from prohibited drugs. One cannot be confident that, when released, he will be readily able to obtain employment, in light of his life history. Even if he does, one can very much doubt that a full-time job and a fresh start away from bad influences is the complete answer to all that has gone wrong. Nevertheless, I accept on the balance of probabilities that this 44 year old man has tired of incarceration, and is open to trying, yet again, to do something about the underlying problem that has led to years of his life being wasted in prison.
Other aspects
Turning to other aspects of re-sentencing, it was conceded at first instance that the sentence imposed on the co-offender had no role to play in the sentence to be imposed on the applicant. Nor did the sentence imposed upon the co-offender form the basis of any proposed ground of appeal. Counsel for the applicant did not submit before us that it had any role to play on re-sentencing. In those circumstances, the sentence imposed on the co-offender need not be discussed.
The sentence to be imposed upon the applicant must reflect a degree of general and personal deterrence. It must also reflect the seriousness of the offence of attempting to break into and steal from a home.
As well as that, there is nothing to suggest that this offence was temporally connected to the offences that led to the sentence of imprisonment imposed by the Drug Court. For that reason, as at first instance, the sentence should be fully cumulative upon the non-parole period of 1 year and 4 months that commenced on 24 December 2012 and expired on 23 April 2014; counsel for the applicant did not submit to the contrary.
To my mind, synthesising all of the objective and subjective features to which I have referred, the head sentence should have a starting point of imprisonment for 3 years and 6 months. Application of the discount of 5% leads to a head sentence to be imposed of 3 years and 4 months, to commence on 24 April 2014 and expire on 23 August 2017.
As for special circumstances, the applicant is a mature man with a lengthy criminal record. He has been incarcerated repeatedly, including by way of more than one sentence that featured downward adjustment from the statutory ratio between the non-parole period and head sentence. In those circumstances, and contrary to the submission before us of counsel for the applicant, I would replicate the approach of his Honour, and not find special circumstances for any "subjective" reason.
Having said that, if there were any utility in doing so, and contrary to the approach of Basten JA and Johnson J, I would find special circumstances, but only to ensure that the ratio between the total non-parole period (that is, the non-parole period imposed by the Drug Court and the cumulative non-parole period to be imposed by this Court) is not more than 75% of the total head sentence.
However, as Basten JA has written, the practical reality is that, because of the lateness of the hearing date of the appeal, such a finding would have no effect whatsoever upon the potential or actual release date of the applicant.
For that reason, I agree with Basten JA that the non-parole period of the sentence to be imposed by this Court should be 75% of the proposed head sentence of 3 years and 4 months; that is, a non-parole period of 2 years and 6 months commencing on 24 April 2014 and expiring on 23 October 2016.
The above analysis demonstrates that, in my opinion, the precondition for re-sentence by this Court has been established: a less severe sentence than that imposed at first instance is warranted in law.
The result of my proposed orders would be that the State Parole Authority should consider the applicant for parole as soon as reasonably practicable.
Proposed orders
I propose the following orders:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. The sentence imposed by Judge Colefax SC upon the applicant on 3 December 2014 is quashed.
4. In its place, the applicant is sentenced to a non-parole period of 2 years and 6 months, to date from 24 April 2014, and which expired on 23 October 2016, with a parole period of 10 months to expire on 23 August 2017.
To express my proposed orders another way, the applicant would be sentenced to a head sentence of imprisonment of 3 years and 4 months with a non-parole period of 2 years and 6 months, fully cumulative on the non-parole period of the pre-existing sentence imposed by the Drug Court.
[3]
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Decision last updated: 15 February 2017