R v Barton [2001] NSWCCA 63 | Case summary

6 Taking into account the twenty-seven charges on the Form 1, his Honour sentenced the respondent on the first charge to imprisonment for four years to commence on 5 September 1999, (the date on which he was taken into custody), and to expire on 4 September 2003. His Honour fixed a non-parole period of two years to commence on 5 September 1999 and to expire on 4 September 2001, his Honour having determined that there were special circumstances. 7 With regard to the second charge, his Honour sentenced the respondent to a fixed term of imprisonment for two years to commence on 5 September 1999 and to expire on 4 September 2001. Thus, the respondent was required to serve the sentences concurrently. 8 Before I turn to the relevant facts, the respondent's background should be briefly noted. He was born on 19 January 1967 in the Lismore area. Mr Allan Andreasen, a Consulting Clinical Psychologist, recorded in a report dated 15 August 2000 that testing of the respondent's intellectual functioning and social comprehension demonstrated that the respondent suffers from quite marked intellectual limitations. The respondent has an appalling prior criminal record, starting in September 1982 when he was fifteen years of age. Prior to the commission of the subject offences he was continually before the Tamworth Local Court or the Lismore Local Court on a variety of serious offences and others less serious. 9 On 27 May 1996 he was convicted before the Lismore District Court on a charge of harbouring a felon, for which he was sentenced to a minimum term of twelve months. 10 After he had served this sentence he went to Queensland. There he committed various offences and was dealt with by the Toowoomba Circuit Court on 9 November 1998 on a number of serious offences and was sentenced to a variety of custodial sentences, with a probation order for three years. Having served those sentences, the respondent returned to New South Wales and, in particular, to the Tamworth/Lismore area. Thereupon he resumed his criminal career. 11 One can see by reference to the Form 1, that he committed the offence of goods in custody between 1 and 2 March 1999 and, thereafter, a number of offences in the period up to and including September 1999. Thus it was that in September 1999 the local police were seeking to locate the respondent. At about 6am on Sunday 5 September 1999, police received information that the respondent was at an address in Woodburn. Woodburn police attended that address and saw the respondent leaving those premises in a Mitsubishi utility. The police followed that vehicle from Woodburn to Coraki. The responded was observed to stop the vehicle to make a telephone call. 12 When he resumed driving, police continued to follow him along the Lismore/Coraki Road towards Lismore. At a point near Pelican Creek Road at Ruthven, the respondent turned off the road into a driveway to the east. He then turned around and started to drive his vehicle back along the Lismore/Coraki Road towards Coraki. At that time there was a marked police vehicle driving towards Lismore and the police occupants attempted to stop the respondent in the Mitsubishi utility by activating their blue/red strobe light. 13 This police vehicle was obviously clearly visible to the respondent who was proceeding in the opposite direction. However, instead of stopping his vehicle or attempting to avoid the police vehicle, the respondent drove his utility directly towards the police vehicle. This caused the police vehicle to brake heavily and move so that it straddled the centre line. At that stage the Mitsubishi was still about eighty metres distant. It was still open to the respondent to brake and stop or swerve off the road on to the grass verge in an attempt to continue his southward path. However, the respondent continued to drive the utility towards the police vehicle making no attempt to deviate, thus causing the utility to collide with the front of the police vehicle which, at that stage, was being driven at about thirty to forty kilometres an hour and braking heavily. 14 At the point of impact the respondent's vehicle was estimated to be travelling at about eighty kilometres per hour. 15 The utility crashed into the front of the police vehicle with such velocity that the front of the police vehicle was totally destroyed. Somewhat remarkably, the respondent was not injured as a result of the collision. At the most he appears to have displayed some temporary lack of consciousness. 16 Again, somewhat remarkably, neither of the two occupants of the police car were seriously injured. However, one of them sustained a whiplash injury which required his attendance at the Lismore Base Hospital and with some absence from work and continuing physiotherapy. 17 I turn then to the facts of the break, enter and steal charge. Between 27 and 28 August 1999, the respondent and two other persons entered the Broadwater Bowling Club through a hole in the front wall of the club. They smashed the push-button pad of the club's alarm system and opened the front door. They then removed eighteen bottles of spirits, ransacked the bar area, smashed an alarm on a cigarette dispenser and removed money from it. They also ransacked the office and stole a large free-standing Ajax safe containing $3860 cash, keys to the club and to the poker machines. Later that morning the respondent and a co-offender drove in the respondent's station wagon to a property owned by a third man. The safe was eventually opened by the use of power tools and grinders and the respondent was seen leaving the property holding a calico bag which contained the stolen money and keys. 18 Having been arrested on 5 September 1999, following the commission of the s 33B offence, the respondent remained in custody until sentenced by Judge Hosking. 19 His Honour had before him a summary of the agreed facts in relation to each of the offences listed in the Form 1. As the Crown has pointed out, these facts show a multitude of serious offences committed over a relatively short period of time, involving violence in many cases and numerous instances of stealing and associated offences, as well as several firearm offences. 20 With respect to an argument in the careful and forceful address on behalf of the respondent by Ms Kluss, it is important to note that of the twenty-seven charges on the Form 1, specifically one assault occasioning actual bodily harm under s 59 of the Act was the subject of a committal for trial in the District Court, with no election by the Crown to proceed in the Local Court. In respect of two assaults under the same section, there were committals to the District Court, but in both cases the Crown elected to proceed in the Local Court. There was one break, enter and steal charge under s 112 of the Act which was the subject of committal to the District Court with no election by the Crown to proceed in the Local Court, and there was one threaten injury with intent to prevent lawful apprehension under s 33B(b) of the Act in which there was a committal to the District Court, with no election by the Crown to proceed in the Local Court. 21 Thus, in the absence of pleas of guilty, there were three matters which would have been heard in the District Court and a number of serious matters which would have been heard in the Local Court. 22 In their written submissions, the Crown focused on seven of the offences in the Form 1 which acutely demonstrated how prone the respondent is to violent behaviour. Brief details of these offences should be noted. 23 With regard to charge 3, the facts are that on 14 March 1999 at Lismore, the respondent attended the home of his estranged wife and during an argument placed his hand around her throat. Later he kicked her. Later again, he produced a pocket knife and threatened that he would cut her throat should she try to leave. His violence against his wife, and those associated with her, flared up again in 1999 when he assaulted her by punching her in the face (charge 12). The respondent then went to her home and, after refusing to leave, threatened to kill her if she called the police (charge 14). About that time he also struck a male friend of hers on the back of his head, causing actual bodily harm (charge 13). 24 With regard to charge 11 the facts are that on 23 July 1999 the respondent held a machete towards his then ex-girlfriend. Charge 18 concerned a threat to kill his ex-girlfriend on 23 August 1999 if she did not return keys to him within forty-eight hours. 25 Charge 19 relates to a second break, enter and steal on the Broadwater Bowling Club (two days after the offence on the indictment) in which the respondent opened the bar safe and stole $5043. 26 It is convenient to note at this stage certain further aspects of the report by Mr Andreasen. 27 Mr Andreasen found that on a test of intellectual capacity in terms of verbal reasoning, verbal concept formation and the capacity for logical and abstract thinking, the respondent scored in the intellectually handicapped range of less than percentile 1, that is to say, he did worse than more than 99 per cent of his age peers. He scored slightly higher in the borderline intellectually handicapped range with percentile 2 on a test of comprehension of social realities, understanding of causal effect relationships, commonsense and the capacity for the evaluation and use of past experience. There were, however, no indications of psychosis or thought disorder. There was little anxiety and no indication of distress or depression. 28 Mr Andreasen recorded the following conclusions and implications for sentencing: "This is a man with very limited intellectual capacity who is poorly socialised and has considerable and widespread immaturity and distortion of personality development. His background is one of considerable rural isolation and poverty. He had an alcoholic and violent father and he both witnessed and received considerable violent treatment in his childhood. This man in his adult life, particularly whilst intoxicated with alcohol, repeats his father's pattern of solving his difficulties and frustrations through violence. He is impulsive and he is not given to considering the problematic outcomes of his impulsive acts and violent behaviour. The rehabilitation for this man will be difficult because of his intellectual limitations and because he tends to see other people (particularly his wife Michelle) as being the cause of his problems and other people again (his new girlfriend Lauren) as being the solution to his problems. He has been unable to accept participation in an anger management course in custody and, given his intellectual limitations, it is not hopeful that any such courses would be acceptable to him. This man claims that he does not drink often but when he does he drinks to get drunk and is then prone to reactive violence and this is a most difficult pattern of behaviour to change. I should recommend that there be a long period of supervision with attendance at anger management and alcohol counselling despite the limited prognosis after he has finished his custodial sentencing. His new relationship appears to be the one hopeful factor in his life." 29 In sentencing the respondent, Judge Hosking stated that he proposed to discount the sentence that the respondent would otherwise have received because of the utilitarian value of the pleas of guilty, notwithstanding the apparent strength of the Crown case. His Honour took into account, to a limited degree, expressions of remorse on the respondent's part. 30 His Honour accepted that general deterrence was of lesser significance in a case where the offender has serious intellectual limitations: see Letteri (CCA, 18 March 1992 unreported). Nevertheless, his Honour took the view that the sentence should reflect some degree of general deterrence. 31 His Honour concluded there were special circumstances because the respondent had, for a long time, been unable to restrain himself from committing serious criminal offences and needed extended supervision and guidance upon his release. Such guidance was necessary in an attempt to try and stop the root cause of his continuing offending in terms of anger management, alcohol counselling and such other programs as may be suitable for him. 32 His Honour acknowledged, with regard to the twenty-seven matters on the Form 1, that the sentence with regard to the s 33B(a) matter required that there be some inbuilt consideration of the criminality involved in those twenty-seven matters in addition to the criminality in the s 33B offence itself. 33 Turning to the s 33B(a) matter, this Court has stressed in numerous authorities that the use of weapons to prevent lawful apprehension, where the lives and safety of police officers discharging their duty are put in danger, is to be regarded as an extremely serious matter by the criminal law for a reason so obvious it does not need to be stated. Hamilton (1993) 66 A Crim R 575 is authority for that proposition. It will be recalled that at p 581, Gleeson CJ said: "In that regard I should make it clear that offences against s 33B which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension are regarded by the Court extremely seriously. It is incumbent upon the Court in dealing with offences of this nature to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task." 34 Reference should also be made to Perez (CCA, unreported, 11 December 1991) in which Kirby P made remarks to a similar effect. 35 It is also important to recall that in Morgan (1993) 70 A Crim R 368 at 371-372 Hunt CJ at CL emphasised that when dealing with matters on a Form 1 an otherwise appropriate sentence for the foundation offence should not be only slightly increased when the offences to be taken into account in the Form 1 are serious in their own right. 36 The Crown in the instant case argues that his Honour appears to have had insufficient regard to this statement of principle in Morgan. It was submitted his Honour gave far too much weight to the respondent's prospect's of rehabilitation, such as they were. These errors, it was argued, led to a manifestly inadequate overall sentence and a manifestly inadequate non-parole period. 37 It was further submitted that his Honour appears to have ignored the respondent's appalling record when he considered the respondent's prospects of rehabilitation. Further, his Honour appears to have ignored the respondent's many failed attempts at rehabilitation, as demonstrated by numerous breaches of recognisances and other similar orders recorded on his criminal record. Further, his Honour apparently overlooked that the commission of the subject offences, was in violation of the probation granted in respect of the Queensland offences. In accepting, of course, that his Honour could not revoke the probation order made outside the jurisdiction, nevertheless Andrew Skillan Jones (CCA, unreported 30 June 1994) is authority for the proposition that the breach is a matter which should have been taken into account. 38 Both in the submissions of the Crown and Ms Kluss on behalf of the respondent, the history of these proceedings was traced. The Crown relies upon such history in support of the contention that his Honour made excessive allowances for pleas of guilty. Ms Kluss relies upon the history, however, in support of her argument that his Honour in fact recognised that the respondent had pleaded guilty to the two indictable matters at the earliest possible time. It is not necessary for this Court, in my view, to trace and record the history of the matters for present purposes, albeit both submissions require consideration. 39 The Crown submitted that, in all the circumstances, this is one of those cases where the sentencing regime was so inadequate as to indicate error on the part of the Judge to such an extent that the Crown is entitled to have this Court intervene. 40 Counsel for the respondent has relied upon the well-established line of authority to the effect that Crown appeals should be rare and subject to very considerable restraints. 41 For a number of reasons, which are all recorded in the written submissions, the respondent submitted that the sentences were not manifestly inadequate and his Honour was not in error in his finding of special circumstances. 42 One particular matter which requires attention is that during the course of argument before his Honour, reference was made to the fact that the respondent had given assistance to the authorities. During the course of his remarks on sentence his Honour did not, however, make specific reference to that fact. I find it difficult to conclude, nevertheless, that it was overlooked by his Honour. In any event, this Court now has the benefit of an affidavit by a police officer which details specifically the significant assistance which the respondent has rendered to the authorities. This is important, Ms Kluss stresses, because it indicates, in a dramatic way, a change of attitude on the part of the respondent which augers well for his rehabilitation. It is a specific matter, she submits, which justifies his Honour's finding of special circumstances. 43 Having given due consideration to the competing arguments I am persuaded that in the circumstances of this case his Honour has, giving full weight to the relevant principles associated with Crown appeals, imposed sentences which were outside the sentencing discretion available to him. With respect to his Honour, the sentences failed to give due consideration, in particular, to the seriousness of the two indictable matters and the serious nature of so many of the matters on the Form 1. In my view, therefore, it is necessary for this Court to intervene and re-sentence the Respondent. It is appropriate that the sentences be served concurrently. The serious nature of the break, enter and steal matter necessarily requires that the fixed term for that sentence be increased. 44 There are two factors that are relevant to the re-sentencing in relation to the s 33B matter. The first is the serious nature of the offence itself, which could well have resulted in a loss of life or serious injury, to the police officers. Further, there is the serious nature of many of the Form 1 matters, to which, if I may respectfully say so, his Honour did not give sufficient weight. 45 I would propose that the appeal be allowed, and that the sentences imposed by his Honour be set aside. In lieu thereof I would propose, with regard to the break, enter and steal matter, that there be a sentence of a fixed term of three years imprisonment, to commence on 5 September 1999 and to expire on 4 September 2002. This sentence would, in my view, take into account the plea of guilty, the assistance rendered to the authorities, and the principle of double jeopardy. 46 In relation to the s 33B(a) matter and the Form 1 matters, I would have fixed an overall term of seven years but, taking into account the plea of guilty, I would reduce that to six years. Thus in relation to the s 33B(a) matter and the Form 1 matters I would propose the respondent be sentenced to a term of imprisonment of six years to date from 5 September 1999 and to expire on 4 September 2005. I would propose a non-parole period of three years, commencing on 5 September 1999 and concluding on 4 September 2002. This sentence would, in my view also take into account the assistance rendered to the authorities and the principle of double jeopardy. 47 I would merely conclude by saying that the special circumstances in my view are the extraordinary limited intellectual capacity of the respondent, his prior history and the need for a longer period of supervision upon his release. He is eligible to apply for release on parole on 4 September 2002. 48 SPIGELMAN CJ: I agree for the reasons Carruthers AJ has given that the sentence imposed was manifestly inadequate. I also agree with the order his Honour proposes for the reasons his Honour has given. I would however, wish to state some additional reasons with respect to the limited weight Hosking DCJ appears to have given to the twenty-seven offences listed on the Form 1. 49 His Honour outlined the list of offences and gave some detail of their scope and variety. Over a course of many months during 1999 the Respondent committed a series of criminal offences involving violence to persons and appropriation of property of others of a character which caused considerable anxiety to the victims and was also significantly detrimental to the peace of the community as a whole. 50 The list of matters included assaults, possession of stolen vehicles, possession of weapons, theft and some acts of violence occasioning actual bodily harm. They were taken into account on the Form 1 but, in my opinion, the ultimate result of the sentencing exercise indicated that together with the seriousness of the s33B offence itself, they were not given appropriate weight. 51 A submission was made to the effect that the Court should give consideration to the fact that many, albeit not all, of the matters on the Form 1 would be dealt with in the Local Court and subject to the jurisdictional limits of that Court. As Carruthers AJ has indicated, there were some matters on the Form 1 for which there had been no consent to the exercise of the jurisdiction of the Local Court which would make them subject to the jurisdictional limits of that Court. Those limits are now contained in s58 of the Crimes (Sentencing Procedure) Act 1999. I note that by force of s58(3) the section does not apply if the old sentence was imposed by a court other than a Local Court. 52 The Local Court may not impose a sentence to extend beyond three years save in a case in which there is a sentence imposed by a court other than a Local Court. In that regard the offences presently before this Court, and those matters on the Form 1 in which the consent to the exercise of discretion by the Local Court had not been forthcoming, mean that a Local Court could have sentenced for a period of an additional period of three years for the range of offences which were within its jurisdiction. 53 It must be remembered that the provisions of s58 are a jurisdictional maximum. They are not a maximum penalty in any sense. This was recently confirmed in R v Doan [2000] NSWCCA 317. In that case the Court set out the authorities, especially at paras 38-41, which indicate that it was relevant to take into consideration the fact that offences were of a character which could be with a Local Court and subject to its jurisdictional limits. For those same reasons it is relevant to consider this restraint in this case. However, by reason of the fact that there remain offences both before this Court and on the Form 1 that have and would otherwise proceed by way of presentation of an indictment, this consideration is of limited significance in the present case. 54 The provisions for "taking" other offences "into account" are now found in Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 in a form which has existed for some years. Previously they were found in s21 of the Criminal Procedure Act 1986. The position has not changed from that which Fox J indicated in Murrell v The Queen (1985) 4 FCR 168 at 175. His Honour, in a judgment with which Bowen CJ and Blackburn J agreed in this respect, said: "No real guidance is offered by the authorities as to the effect on sentence which offences to be taken into account should have. It is clear that one is only sentencing for the offence for which there has been a conviction, on plea, or verdict, of guilty (448 (1) and (7) and see R v Hobson (1942) 29 CrAppR 30). The fact that the maximum sentence is that provided for the particular offence (see subs (4)) is evidence of this. The other matters are to be "taken into account"." 55 By reason of a reference in that judgment, it was submitted subsequently in this Court that the matters taken into account upon a schedule should require that "there be little addition to penalty". That submission was made and rejected in R v Vougdis (1989) 41 ACrimR 125 at 128-129. That position was affirmed in this Court in the case to which Carruthers AJ has referred, R v Morgan (1993) 70 ACrimR 368 at 371-372. 56 The structure of the legislative scheme in Part 3 Division 3 makes provision for a prosecutor to file a list of additional charges (s32), and authorises the Court to take further offences into account (s33). Those offences, however, must bear the following characteristics: first, that the offender admits guilt to the further offences (subparagraph 33(2)(a)(i)); second, that the offender indicates to the Court that he or she wishes that those further offences be taken into account (subparagraph 33(2)(a)(ii)); finally, that the Court does consider it appropriate to so take these matters into account (paragraph 33(2)(b)). 57 By subs 33(3) the fact that the Court is still sentencing for the particular offence is confirmed by the imposition of a restriction on the ability of the Court to sentence by reference to the Form 1 offences, in an express provision that the sentence must not exceed the maximum penalty for the principal offence. 58 The Court is empowered to make ancillary orders of a character such as restitution, compensation, costs, forfeiture and loss of licences or privileges (s34). However, subs 34(1) makes it plain that the Court may not impose a separate penalty for the offences taken into account on the Form 1. 59 The position is also indicated by subs 35(4) which states that the fact that an offence is taken into account for purposes of sentencing does not have the consequence that it is to be regarded, for any other purpose, as an offence for which the offender has been convicted. 60 These provisions are a specific statutory regime to which the Court must give effect. Nevertheless, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence for which he or she has not been convicted (The Queen v De Simoni (1981) 147 CLR 383 at 389; The Queen v Olbrich (1999) 199 CLR 270 at [18]). 61 This Court has recently considered the position of representative counts and their compatibility with this principle. By representative counts I am referring to the presentation of an indictment covering a range of criminal conduct with reference being made to the fact that some of the charges represent a number of other offences. In that context there is a very real issue as to whether or not the uncharged offences are matters of aggravation or whether or not they are simply taken into account as the absence of matters of mitigation. (See R v JCW (2000) 112 ACrimR 466. 62 In the present context it is clear that the provisions of the statutory regime to which I have referred must have the effect of resulting in a longer sentence or greater penalty than would have been the case if one was dealing only with what is referred to as the primary offence. This has frequently been acknowledged in the authorities (R v Bachelor (1952) 36 CAR 64 at 67-68; R v White (1981) 28 SASR 9 at 12-14; and R v J (1992) 59 SASR 145 at 152). 63 It would not be correct to say that when one takes into account matters on the Form 1 that the matters of which guilt has been admitted are in the same position as previous convictions. The reason for that, as Wells J emphasised in White (supra) p12, is that these matters, unlike previous convictions, have not been the subject of any punishment. 64 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 65 In the present circumstances, for the reasons given by Carruthers AJ, I agree with the sentences his Honour proposes.

R v Barton

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