R v DBN

Court of Criminal Appeal (NSW)|2005-09-28|Before: McClellan CJ, Hislop J, Rothman J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 8; Rothman J at 9

DECISION: (a) Leave to appeal against sentence be granted;; (b) Appeal against sentence be dismissed.

CATCHWORDS: Criminal Law - appeal against sentence - use of aggravating factors under s.21A Crimes (Sentencing Procedure) Act - Special circumstances - different sentence is not warranted

Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act

R v Hathaway [2005] NSWCCA 368 Veen v The Queen (No 2) (1988) 165 CLR 465 R v Simpson (2001) 53 NSWLR 704 CASES CITED: R v Johnson [2004] NSWCCA 765 R v Swan [2005] NSWCCA 252 R v LWP [2003] NSWCCA 215

S O'Connor - Legal Aid Commission for Appellant SOLICITORS: S Kavanagh - Crown

LOWER COURT FILE NUMBER(S): 03/21/1215 and 4/21/3010

1 - IN THE COURT OF CRIMINAL APPEAL 2005/1610

McCLELLAN CJ at CL HISLOP J ROTHMAN J

14 December 2005 REGINA v DBN Judgment 1 McCLELLAN CJ at CL: I generally agree with the reasons of Rothman J which I have had the advantage of reading in draft. 2 His Honour refers to the difficulties which s.21A has provoked on a number of occasions when sentences are being imposed. Although the section has proved useful in many cases it is important that the sentencing judge carefully identify the elements of the offence so that they are not also considered as an aggravating factor contrary to s 21A(2). 3 With respect to the relevance of prior convictions I identified in R v Hathaway [2005] NSWCCA 368 that the recent and consistent approach of this Court was that they could be relevant only to subjective matters. However, the matter may not be without controversy and may require further consideration in an appropriate case (see [2] and [30]-[34] in Hathaway). It may be necessary to consider the correct understanding of the joint judgment in Veen v The Queen (No 2) (1988) 165 CLR 465 at 477. 4 In the present matter Andrew ADCJ twice refers to the fact that the applicant "had previous convictions". Although not entirely clear it is tolerably plain that his Honour had in mind that the applicant's record was an aggravating feature of the relevant offences. The present state of the authorities would suggest that, if his Honour, adopted this view he was in error. However, as I pointed out in Hathaway even if, in this respect, his Honour erred it is necessary to give careful consideration to whether this has lead to a sentence being imposed which would cause this Court to intervene. 5 As the Chief Justice pointed out in R v Simpson (2001) 53 NSWLR 704 s 6(3) of the Criminal Appeal Act 1912 imposes the obligation on this Court, if error is identified, to nevertheless consider whether some other sentence to that which was imposed is warranted in law. 6 In the present case the various offences related by Rothman J and the matters on the Form 1 reveal a serious collection of offences more than justifying the sentences which the sentencing judge imposed. 7 I agree with the orders proposed by Rothman J. 8 HISLOP J: I agree with Rothman J. 9 ROTHMAN J: DBN was sentenced for nine offences under 2 indictments. The first indictment consisted of the counts for taking and driving conveyance in contravention of s.154A of the Crimes Act 1900; aggravated break and enter with intent to steal (in company) in contravention of s.113(2) of the Crimes Act. Two counts of malicious damage contrary to s.195(a) of the Crimes Act; and in the alternative to count two a count of aggravated attempt break enter and steal contrary to s.112(2) and s.344A of the Crimes Act. 10 The second indictment was for robbery in company contrary to s.97(1) of the Crimes Act; aggravating stealing from the person, contrary to s.95(1) of the Crimes Act; steal from the person contrary to s.94 of the Crimes Act; a further count of steal from the person contrary to s.94 of the Crimes Act; and a third count of steal from the person contrary to s.94 of the Crimes Act. 11 DBN pleaded not guilty to all of the charges (including the alternate charge) in indictment one and pleaded guilty to all of the charges in indictment two. 12 DBN was convicted of all except the alternative count in the first indictment and was sentenced for all matters at the one time by his Honour Acting Judge Andrew of the District Court. His Honour was asked to take into account, and did, a number of offences contained in a Form One being twelve offences of steal from the person, two offences of attempt to obtain benefit by deception and two offences of steal motor vehicle. 13 His Honour Andrew ADCJ imposed the following sentences:

Indictment One: Count One : Imprisonment for a fixed term of twelve months to date from 15 June 2003 and expire 14 June 2004. Count Two : Imprisonment for five years to date from 15 June 2003 and expire 14 June 2008 with a non-parole period of 3 years to date from 15 June 2003 and expire 14 June 2006. Counts Three and Four : On each count imprisonment for a fixed term of six months to date from 15 June 2003 and expire 14 December 2003.

Indictment Two : (Robbery in Company): Imprisonment for six years to date from 15 June 2004 and expire 14 June 2010 with a non-parole period of 4 years to date from 15 June 2004 and expire 14 June 2008. Aggravated stealing from the person (05.01.03): Imprisonment for six years to date from 15 June 2005 and expire on 14 June 2010 with a non-parole period of 4 years to date from 15 June 2005 and expire on 14 June 2008. (Form One matters taken into account). All other matters on Indictment Two: On each count, imprisonment for a fixed term of three years to date from 15 June 2005 and expire 14 June 2008.

The total effective sentence is eight years with a non-parole period of six years expiring on 14 June 2009. From all of these sentences, the applicant seeks leave to appeal and, if leave is granted, appeals the sentences imposed. 14 It is least confusing to deal with the offences in the manner suggested by counsel for the applicant on appeal, namely: a Steal motor vehicle between 1 and 5 November 2002 (s.154A Crimes Act); b Aggravated break and enter with intent to commit indictable offence, circumstance of aggravation being in company and the serious indictable offence being stealing, on 4 November 2002 (s.113(2), Crimes Act); c Malicious damage to a shop, 4 November 2002 (s.195, Crimes Act); d Malicious damage to an automatic teller machine, 4 November 2002 (s.195, Crimes Act);

All of the above are matters on which the applicant was convicted after a plea of not guilty. The following matters were the subject to a plea of guilty. e Robbery in company on 25 October 2002 (s.97(1), Crimes Act); f Aggravated steal from a person on 5 January 2003, the circumstance of aggravation being the malicious infliction of actual bodily harm (s.95, Crimes Act); g Steal from the person on 5 January 2003 (s.94, Crimes Act); h Steal from the person on 7 January 2003 (s.94, Crimes Act); i Steal from the person on 31 March 2003 (s.94, Crimes Act). 15 In the first group of offences Offence (b) was an attempt, by ramming the wall of a bank with a car to steal an automatic teller machine. Offences (a), (c) and (d) were offences associated with that attempted stealing of an ATM which were the stealing of the motor vehicle used in the raid and the damage to the bank and ATM respectively.

In the early hours of Sunday, 3 November 2002, the applicant stole a Toyota Hino truck outside premises in Lenora. The vehicle had been locked and secured. At about 3.30 am on Monday, 4 November 2002 the applicant reversed the stolen truck into a shop front at Guildford, the front of which was a St George ATM. As a result of the impact, the majority of the building collapsed. The vehicle was located nearby. The vehicle had collided with a telephone pole which had snapped in half and landed on the truck. On the rear of the truck there was a large amount of bricks and two large welding cylinders. The ram raid was captured on surveillance footage. 16 The next offence, Offence (e), was the first of the offences to which DBN pleaded guilty and is described in a document, being the Facts on Sentence, to which recital the applicant agrees. 17 In April 2002 the victim purchased a second hand Yamaha motorbike for $6,300.00. In September 2002, the victim decided to sell his motor bike and placed an advertisement in the Trading Post. At about 5 pm on Thursday, 24 October 2002 the victim was at his home address in Erskine Park when he received a telephone call from a male identifying himself as "Brett" who, in fact, was the applicant. The applicant said he was interested in purchasing the motorbike. After speaking on the phone on a couple of occasions, arrangements were made for the applicant to come to the victim's house to look at the motorbike. After some rearranging of times the applicant arrived at the victim's home at about 7.50 pm on 24 October 2002. He arrived in a Holden Commodore and entered the premises with another man while a third man remained in the car. There was a discussion about the bike. The bike was started and there was a discussion concerning the fact that the victim had the bike chained up and always kept it so. They negotiated a sale price and arrangements were made for the applicant to return the next day. Before doing so the victim gave the applicant an exercise book containing the chassis numbers for the bike which he needed to read and for which purpose he borrowed the victim's torch. 18 No contact was made at the arranged time on 25 October 2002 and at or about 11.00 am that day, the victim attempted to call the applicant with no success. At or about 2.00 pm on 25 October 2002, contact was made by the applicant who informed the victim that he was "keen and about 20 minutes away." The victim returned home and by the time the applicant arrived, the victim was home with his wife and their five month old daughter. The applicant arrived with three others, one of whom remained in the van, that, by that time, they were driving. After about 5 minutes while the three men, including the applicant, were looking at the bike and talking about it, the victim's wife entered the garage with the daughter, gave their daughter to the victim and left the house. The victim placed his daughter in a rocker in the garage, next to him. There was some discussion about the capacity to take the bike for a test drive and the fact that the paper work for the bike was not presently available. 19 The applicant and his companion from the previous evening returned to the van ostensibly to obtain money while the third man remained talking with the victim. While they were talking, the victim bent over to check on his daughter who remained, at all relevant times, in her rocker in the garage. While the applicant and the companion from the previous evening were still at the van, the victim looked up and saw the third person in company standing close to him with a wheel brace in his right hand. The wheel brace was not the property of the victim. The victim backed out of the garage and into the back yard. Two of the four persons followed him out. As he was doing so, the victim saw the applicant and one of the other persons in the garage, taking away the bike. He was told by one of the offenders to "get on your knees and face the back fence". The victim said "no, it's not happening." One of the other offenders came at the victim again who shaped to punch him. The offender backed away towards the garage while another picked up a pitch fork from the victim's garden and held it up to keep the victim away from him as he walked back into the garage with the other offender. The victim followed them back into the garage. The victim checked on his daughter then opened the garage door to see the white van, the applicant and the others were in, driving away. 20 Offence (f) was a bag snatching incident which occurred at the BP Service Station at Casula. The victim got out of her car and another vehicle, which happened to have been stolen, drove up beside her. The applicant got out of the vehicle and moved to the victim's passenger door and opened it while the victim was on the opposite side of the car. The victim saw the offender take her purse from inside the car. The offender ran back to his car and the victim ran after him. The applicant got into the driver's seat of the stolen vehicle and the victim grabbed hold of the applicant's right hip and upper thigh in an attempt to prevent him from leaving with her bag. The applicant's car moved away with the victim holding onto him. The victim fell to the ground and was dragged along on her knees for four metres at which point she let go. As a result of the incident the victim sustained bruising, swelling and abrasions to the left side of her back and rib cage, both knees and one hand. The victim's purse contained $160 cash, a credit card and personal items. 21 Offence (g) occurred on 5 January 2003 at about 7.15 pm. The victim drove to a Caltex Service Station at West Hoxton. The victim parked her car in the car park and the applicant drove up beside her in the stolen vehicle described above. The victim was sitting in her car when the offender got out of the car, walked over to the victim's car and opened the front passenger door. The applicant grabbed the victim's hand bag from the centre console and pulled the strap from the victim's grasp. The applicant got back into the stolen car and drove out of the service station. The victim's hand bag contained $700 in cash, credit cards and personal papers. 22 Offence (h) occurred at 5.00 pm on 7 January 2003. The victim was at the Narellan Town Centre Car Park placing groceries in the rear of her vehicle. The applicant walked up to the victim and grabbed her hand bag off the shopping trolley. The applicant ran away with the hand bag before getting into the passenger seat of the same stolen vehicle used on the other two occasions. The victim's hand bag contained a leather purse with $2,910 cash, credit cards, cheque books, a Nokia phone, a bracelet and three rings valued at $46,000. None of the items have been recovered. 23 Offence (i) occurred on 31 March 2003 at about 4.50 pm. The victim was in the car park at Westfield Shopping Centre Liverpool. The victim placed her groceries and handbag in the rear seat and was in the driver's seat. The applicant approached the victim's car, opened the rear door and took the victim's hand bag. The applicant ran to a motor vehicle and drove from the scene. The victim's hand bag contained $180 cash, a Nokia mobile phone and personal items. 24 As earlier stated, to these offences must be added those matters on a Form One which were sixteen offences and which were sought to be taken into account in relation to the sentencing of offence (f). The sixteen offences consisted of twelve further steal from person offences committed between 6 January and 30 March 2003, two offences of attempt to obtain benefit by deception and two offences of steal motor vehicle. The steal from person offences on the Form One were a series of bag snatches. 25 As earlier stated the applicant seeks leave to appeal the sentence imposed and, if leave were granted, seeks that the appeal be allowed and a lesser sentence imposed by this Court. The applicant raises three grounds, the first two of which relate to the inappropriate use of purported aggravating factors arising under s.21A of the Crimes (Sentencing Procedure) Act and the third ground relates to the alleged failure by the sentencing judge to give effect to his finding of special circumstances in the aggregation of the sentences imposed for each of the groups of offences.

Grounds one and two: aggravating features pursuant to s.21A of the Crimes (Sentencing Procedure) Act . 26 His Honour, Andrew ADCJ took into account the Applicant's criminal record of convictions as part of a passage which seems to have examined s.21A of the Crimes (Sentencing Procedure) Act and used it as an aide memoire in dealing with the sentence imposed on offences (a) to (d). Likewise, and dealing with the same offences, his Honour treated the fact that the offence was committed in company as an aggravating factor in the determination of offences (a) to (d). Further, and in the same way, his Honour took into account the fact that the robbery was committed in company as an aggravating feature for the purpose of sentencing in relation to offence (e) and took into account as an aggravating feature the malicious infliction of actual bodily harm in relation to offence (f). 27 This Court has been required over the recent past to deal with the application by sentencing judges of one or more of the factors adumbrated in s.21A(2) of the Crimes (Sentencing Procedure) Act without regard by them to the concluding words of that sub-section. The concluding words of sub-section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 require the Court "not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." Further, ss.21A(4) of the Act prohibits the Court from having regard to "any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so." To have regard to a factor as an aggravating factor in sentencing when it is an element of the offence is to double count the factor. 28 Further, the use by the sentencing judge of previous convictions is said to be "as an aggravating factor" pursuant to the terms of s.21A(2)(f) the Crimes (Sentencing Procedure) Act. Prior convictions may be taken into account in the sentencing of an offender, but only in accordance with the principles established by the High Court of Australia in Veen [No 2] (1998) 164 CLR 465 and particularly at page 477. (See also R v Johnson [2004] NSWCCA 765 at [32] [37]). Where, as here, the sentencing judge relies upon the criminal history as "an aggravating factor" without any explanation, it may be taken that the criminal history is being used in an impermissible sense. Given the comments of his Honour, this too seems, on its face, to be an error in the sentencing principles. 29 It must be said, however, in dealing with errors of the kind referred to above, that the Court appreciates the lack of resources that are available to sentencing judges, often including the lack of transcript and the temptation to use s.21A as an aide memoire to ensure that the sentencing judge considers each of the factors required by that section. Often, it is obvious that, notwithstanding technical error in the manner in which s.21A factors have been said to be used, that error seems to have had little or no effect on the sentence imposed. I will return to this later.

Ground three: Special circumstances 30 The sentencing judge held that there were special circumstances in relation to each of the sentences making up the total effective sentence based on the applicant's perceived prospects of rehabilitation. 31 His Honour fixed a non-parole period for each of the sentences of 60%, 66% and 66% for offences (b), (e) and (f) of the head sentence imposed in each of the matters. 32 Almost invariably, the effect of a partial accumulation on sentencing will be to increase the ratio between non-parole period and the head sentence. It is for that reason that the partial accumulation of sentences will itself be a special circumstance to allow a Judge to reduce the last sentence for the purpose of ensuring that the overall effective non-parole period is, to the extent desired by the Judge, 75% of the period of the combined head sentences. (See R v Swan [2005] NSWCCA 252 at [3], [19] and [24]) 33 In circumstances where a sentencing judge deliberately fixes a non-parole period which is less than the statutory ratio described in s.44(2) of the Crimes (Sentencing Procedure) Act it will be assumed that that ratio is to be reflected in the overall sentence ratio, unless the judge expressly signifies otherwise. (See R v Swan, supra, R v LWP [2003] NSWCCA 215 at [10]-[13])

Conclusion 34 The sentences imposed in this matter which are now the subject of appeal have been imposed for a number of different offences and are said to include consideration of a further sixteen criminal acts contained in a Form One submitted to the sentencing judge. As was sought to be earlier conveyed, some of those offences are particularly problematic and are at above mid-range in criminality of the kind of offence of which the applicant was convicted. For example, the robbery in company in which the victim (i.e. the person from whom the bike was stolen) was separated from his five month old daughter who was, during the episode, at the whim of the offenders. Even though there is nothing before the Court that would suggest that a threat was made to the daughter, it is obvious from the facts as recited that this was a major concern of the victim. Further, the maximum sentence for that offence was 20 years' imprisonment, as was the maximum sentence for offence (f). In the circumstances of the number and type of offences for which the applicant was sentenced, a total effective sentence of eight years with a non-parole period of six years is not inappropriate or excessive. The Court must be satisfied that it would impose a less severe sentence on the whole of the evidence or, in the words of s.6(3) of the Criminal Appeal Act 1912, the Court must form an opinion that "some other sentence, whether more or less severe is warranted in law and should have been passed". (R v Simpson (2001) 53 NSWLR 704). If that opinion is not formed, the existence of error is insufficient of itself to justify interference. 35 The errors in the application of s.21A of the Crimes (Sentencing Procedure) Act seem to have had little or no effect on the sentence ultimately passed by his Honour. Further, the sentences imposed by his Honour, as earlier stated, even in the circumstances of the matters to which his Honour made reference, are lenient. 36 In the particular circumstances of the applicant and the offences for which he was being sentenced, a reduction in the effective sentence of six years non-parole period would bring the sentence to a level which, in my opinion, would be unjustly low, and I am not of the opinion that a different sentence than that which was ultimately imposed is warranted. 37 In the circumstances I propose the following orders: a Leave to appeal against sentence be granted; b Appeal against sentence be dismissed.

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