R v Denney

Pearce v The Queen (1998) 194 CLR 610 R v Thomson (2000) 49 NSWLR 383 CASES CITED: R v Carter [2001] NSWCCA 245 R v Parkinson [2001] NSWCCA 244 Veen v The Queen (No. 2) (1987-88) 164 CLR 465 DECISION : Leave to appeal granted; appeal dismissed.

1 STUDDERT J: William George Denney seeks leave to appeal against sentences imposed upon him by his Honour Judge McGuire in the District Court at Gosford on 26 October 2000. On that date the applicant maintained pleas of guilty first entered in the Local Court in respect of a number of offences:

(i) an offence of break enter and steal committed between 3 and 5 March 2000;

(ii) an offence of receiving committed on 16 March 2000;

(iii) an offence of break enter and steal committed on 2 April 2000. 2 When sentencing the applicant for the first of the above offences, his Honour was asked to take into account three scheduled matters:

(b) goods in custody committed on 27 February 2000;

(c) goods in custody committed on 20 March 2000. 3 In respect of the first count, and taking into account the scheduled offences, his Honour sentenced the applicant to a term of imprisonment of four years eight months. His Honour set a non parole period of three years six months. In respect of the second break enter and steal offence charged as a principle offence (count 3), his Honour sentenced the applicant to a fixed term of three years imprisonment. In respect of the receiving offence (count 2), his Honour sentenced the applicant to a fixed term of two years imprisonment. All three sentences imposed were directed to be served concurrently and to commence on 2 April 2000 which was the date upon which the applicant was arrested and subsequent to which he remained in custody until sentenced. 4 Before addressing the various grounds upon which Mr Craigie has submitted this Court should intervene, it is necessary to consider the objective features of the offences.

Count 1: The offence of break enter and steal committed between 3 and 5 March 2000 5 At a time between 5.30 pm on 3 March and 11.00 am on 5 March the applicant entered what were then unattended premises, being a residence at Gosford. Entry was gained through a side window that was smashed. Property stolen included ladies' jewellery, watches, a ghetto blaster and other electronic equipment. The estimated value of the property stolen was $5000. Fingerprint officers who attended the scene found the applicant's fingerprints on broken glass from a downstairs storeroom window.

The scheduled offences 6 (i) Larceny : On 1 March 2000 the applicant stole number plates from a vehicle at Kariong and displayed them on his vehicle. 7 (ii) Goods in custody : On 11 March 2000 the applicant displayed on his vehicle a registration label that had been stolen from a vehicle some twelve days previously. 8 (iii) Goods in custody : On 20 March 2000 the applicant was found in possession of seven fishing rods which had been stolen from premises earlier that day.

Count 2: The receiving charge 9 On 16 March 2000 premises at Erina were broken into and property was stolen that included a Rolex watch engraved "To Stephen, Happy 21st, Love Mum and Dad" . The applicant pawned this watch on that same date, 16 March 2000. The pawnbroker's documents showed that the applicant used his own name and personal details when pawning this watch.

Count 3: The break enter and steal on 2 April 10 On 2 April 2000 the applicant, with his female accomplice, broke into residential premises at Frederick Street, East Gosford, forcing entry through the front door. A considerable amount of property was stolen. The occupants of the premises returned home in time to see the applicant and his accomplice walking from the front door on to the street. The elderly male occupant of the premises ran up to the female accomplice attempting to stop her but she broke free and the applicant and his accomplice ran off down the street. The applicant's accomplice abandoned at the scene of the struggle the bag she had been carrying. This was found to contain a large quantity of jewellery identified as belonging to one of the residents of the premises outside which the struggle had occurred. The bag also contained a stolen CD player. 11 The applicant and his accomplice were followed and observed to enter a motel at Gosford. Police were called and entered the room which the applicant and his accomplice were occupying. A search there undertaken led to the discovery of further stolen jewellery, and a camera stolen from the same premises. 12 Following his arrest on this date the applicant was taken to the police station and interviewed. He admitted having forced entry at the East Gosford premises he had been seen leaving earlier that day. 13 Inquiries resulted in the applicant being charged for the further matters the subject of counts 1 and 2. 14 The applicant was born on 20 June 1959, so that when these offences were committed he was forty years of age. He had what the sentencing judge described as, and what Mr Craigie conceded to be, an appalling record which commenced when he was a juvenile. The record contained six convictions for break enter and steal, seventeen stealing offences, one goods in custody offence and a conviction for armed robbery and convictions for escape lawful custody. 15 The applicant gave no evidence before the sentencing judge although two letters which he wrote were tendered and the judge referred to their content in his remarks on sentence. The judge was informed that the applicant had a partner who was HIV positive and a son who had fallen foul of the law. His explanation proffered in the correspondence for the commission of the offences was the need for income and pressure imposed by his partner to provide for her. In his ERISP interview, the applicant told the police that his partner had put forward the idea of the break enter and steal committed on 2 April and he acted in desperation because he and his accomplice were homeless and destitute. 16 The applicant had certain disabilities in his left hand and a disability affecting the right eye. 17 His Honour indicated that he had regard to those matters in his sentencing task. 18 This brings me to the various grounds of appeal. 19 Mr Craigie submitted that consideration of the remarks on sentence discloses a number of errors:

(1) that the judge did not give due weight to the early pleas of guilty;

(2) that the sentences were manifestly excessive, particularly having regard to the early pleas;

(3) that the judge did not sentence in accordance with the correct approach as identified in Pearce v The Queen (1998) 194 CLR 610; see, in particular, paras 45-49 of the joint judgment of McHugh, Hayne and Callinan JJ;

(4) that the judge erred in failing to find special circumstances which warranted a longer opportunity for release upon parole. 20 I propose to consider Grounds 3 and 4 before returning to Grounds 1 and 2.

Ground 3 21 It was submitted that his Honour did not apply his mind to fixing appropriate sentences for each offence before proceeding to address questions of accumulation or concurrence as well as totality. Mr Craigie drew attention to the longer sentence imposed on the first count than on the third count as reflecting such error. 22 It is true that the judge imposed a longer sentence for the offence identified in the first count than for the offence identified in the third count but, it seems to me, that is to be explained by reason of the need recognised by his Honour to bring into account the three scheduled offences when determining a sentence for that first count. I see no reason to conclude that the judge did other than fix what he perceived to be an appropriate sentence for each of the offences before then proceeding to consider whether the sentences should be cumulative or concurrent. Moreover, the judge said that he had regard to the principle of totality and it is to be accepted, in my opinion, that he did so. I add that this was an appropriate case in which to direct that the sentences be served concurrently. In my opinion, the submission that the sentences as structured offend the principles expressed in Pearce has not been established.

Ground 4 23 It was submitted that the judge was in error in not finding special circumstances. His Honour expressly considered that issue but said that he could find no special circumstances. The judge remarked upon the opportunities that the applicant had been offered in the past to rehabilitate himself and opined that the applicant had no intention of attempting to rehabilitate himself. That was a finding which was open to his Honour and it seems to me that the judge was entitled to structure the sentences in the way that he did. This ground of challenge has not been made good.

Grounds 1 and 2 24 Mr Craigie has submitted that the judge expressly said that he gave the applicant only "minimal consideration" for the fact that the pleas of guilty had been entered at the earliest opportunity and in doing so he was in error having regard to the principles enunciated in R v Thomson (2000) 49 NSWLR 383. 25 His Honour did say early in the sentencing remarks: "The prisoner will receive minimal consideration for the fact that he has entered pleas of guilty, having regard to the fact that he was virtually apprehended in the act in relation to the break and enter on 2 April. In relation to the break and enter on 3 March, his fingerprints were found on the premises the subject of the break and enter. As to the receiving, he pawned a Rolex watch which was engraved 'To Stephen, Happy 21st, Love Mum and Dad'." (Emphasis added) 26 It is correct, as his Honour remarked, that the Crown case was powerful, having regard to the fact that the applicant was virtually caught in the act for the later of the break enter and steal offences and having regard to the fingerprints found at the premises the subject of the earlier of the break enter and steal matters. Nevertheless, the applicant was entitled to appropriate consideration for the utilitarian aspects of the plea. Mr Craigie has submitted that the judge erred in not giving the applicant such consideration. 27 There was a need for the sentencing judge to allow an appropriate discount for the guilty plea, whether the Crown case was a strong one or not. The utility value of the plea required this, and in assessing the discount it was relevant to have regard to:

(b) the complexity of the evidence, the need to gather which was avoided by the plea. 28 Two recent decisions of this court emphasise this: see R v Carter [2001] NSWCCA 245 and R v Parkinson [2001] NSWCCA 244. 29 In Carter, Howie J said in point: "It is perfectly clear from the reasons of the Chief Justice in the guideline judgment [referring to R v Thomson & Houlton (2000) NSWLR 383], with whom all other members of the Court agree, that, although the evaluation of the discount is a matter for the discretion of the sentencing judge, that (sic) are two circumstances that will generally affect the appropriate level of the discount in a particular case. They are, firstly, the time when the plea is entered, so that the earlier the plea the larger the discount and, secondly, the complexity of the evidence to be gathered and adduced to prove the charge, so that the greater the difficulty in collecting evidence or the greater the length and complexity of the trial, the greater the utilitarian value of the plea and, therefore, the greater the discount. In a particularly difficult and complex matter the early plea may, according to the Chief Justice, exceed the normal upper range of 25 per cent." 30 Did the sentencing judge fail to give an appropriate discount for the utilitarian aspect of the plea? 31 The Crown has submitted that when one looks at the remarks on sentence, the judge expressly referred to the utilitarian aspects in the paragraph of his remarks immediately following those which I have cited in para 25 above: "I appreciate that he has saved the community the cost of a trial and the victims the ordeal of having to attend court and relive their experience." 32 The Crown submitted that his Honour would not have referred to those savings which he identified if he did not regard them as matters to be taken into account, even though he did not expressly state that he was going to make some adjustment because of those matters. Moreover, the Crown submitted, whilst sentencing judges are encouraged to identify the extent of any discount, failure to do so does not necessarily attract the intervention of this court. 33 In the context of stating the applicable guidelines in Thomson , Spigelman CJ said (para 160): "(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount…" (Emphasis added) 34 Later, the Chief Justice identified the reason for specifying the discount range (at para 162): "The purpose of identifying a discount range is to improve the transparency of the process and to alter the widespread perception that there is no benefit from an early plea…" 35 In this case the learned judge expressly considered the pleas of guilty. However, his Honour's remarks do not make it clear that the applicant received appropriate allowance for the utilitarian consequences of his early plea and the " transparency of the sentencing process" to which the Chief Justice remarked in Thomson has not been achieved. If all his Honour did was to give "minimal" allowance for the early pleas, then this would have been wrong. The sentence should have reflected an allowance somewhere in the range identified in Thomson , that is, between ten percent and twenty-five percent and probably towards the upper end of that range because the pleas were offered so early. Such an allowance could not be considered to be "minimal" . Viewed literally, his Honour's remarks are suggestive of error, although it may be, as the Crown argued, that the "minimal" consideration was being given to the element of contrition rather than to the "saving" which the judge went on to address in the next paragraph. 36 Were these sentences manifestly excessive or were they appropriate in the circumstances, including the very significant circumstance that early pleas of guilty were entered? 37 Mr Craigie referred this Court to sentencing statistics. Amongst those statistics were included statistics based on 109 cases of multiple counts of break enter and steal with a scheduled offence (or offences) and a plea of guilty. In only twenty percent of those cases were full terms of five years or more imposed. Those statistics, it was submitted, reinforce the submission that the sentences in this case were manifestly too high. 38 It seems to me that care has to be taken in having regard to the statistics advanced by Mr Craigie in this case in which the applicant had such a bad criminal record. I referred to this earlier and I will not now record such record exhaustively but it is to be noted that in recent years prior to the present sentences being imposed:

(i) in March 1995 the same judge sentenced the applicant to a head sentence of four years with a minimum term of three years for the offence of break enter and steal;

(ii) in July 1998 the applicant was again sentenced in the District Court for break enter and steal, this time attracting concurrent head sentences of sixteen months;

(iii) the applicant was dealt with in the Local Court also in July 1998 and prison sentences were imposed for offences of dishonesty, with the sentences to commence in April 1999. 39 It seems to me that the applicant's record was such as to warrant a need for condign punishment by way of retribution, deterrence and the protection of society: see Veen v The Queen (No. 2) (1987-88) 164 CLR 465 at 477. 40 There was no recognition in Thomson that prior to that decision sentences imposed where pleas of guilty had been entered were too high. On the contrary, it was expressly stated in the judgment of the Chief Justice at para 162: "The discount range propounded for a guilty plea based on utilitarian considerations is not intended to result in any change in the level of sentences generally. Nothing in these reasons should be construed as indicating an opinion that trial judges have not in fact been giving appropriate consideration and weight to pleas in such a way as to distort the general level of sentences…" 41 I have reached the conclusion that when due regard is had to all the circumstances of this case the sentences imposed upon the applicant were appropriate. This suggests that the sentencing judge did in fact make proper allowance for the early pleas but even if his Honour's remarks are to be treated as reflecting error, the result achieved was nevertheless correct. 42 It follows that, in my opinion, there is no occasion for this Court to disturb the sentences imposed upon the applicant. 43 Accordingly, I propose that leave to appeal be granted but that the appeal be dismissed. 44 McCLELLAN J: I agree with Studdert J. **********

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