R v Johnston

Court of Criminal Appeal (NSW)|2005-11-25|Before: Santow JA, Bell J, Howie J

JUDGMENT OF: Santow JA at 1; Bell J at 34; Howie J at 35

DECISION: 1. Grant leave to appeal; 2. Dismiss the appeal with respect to the sentences imposed on counts 1, 2 and 4 and confirm the sentences imposed in the District Court; 3. Allow the appeal with respect to the sentence imposed on count 3, confirm the head sentence imposed in the District Court but quash the non-parole period and substitute in lieu thereof a non-parole period of one year. The non-parole period commences on 8 November 2005 and will expire on 7 November 2006, which is the first date on which the applicant will be eligible for consideration for release on parole.

CATCHWORDS: SENTENCE- Application for leave to appeal against severity of sentence - Whether wrong principle applied to whether contrition could be found to exist - whether incorrect approach taken as to whether special circumstances existed - sentencing discretion required to be re-exercised - appropriate sentence and non-parole period.

Crimes (Sentencing Procedure) Act 1999 s33 LEGISLATION CITED: Criminal Appeal Act 1912 s5(1)(c)

R v Fidow [2004] NSWCCA 172 R v Pearce (1998) 194 CLR 610 CASES CITED: R v Ponfield & Ors (1999) 48 NSWLR 327 R v Tolley [2004] NSWCCA 165

Matthew Peter JOHNSTON (applicant/appellant) PARTIES: Regina (opponent/respondent)

R BUTTON (applicant/appellant) COUNSEL: D ARNOTT (opponent/respondent)

S E O'Connor (applicant/appellant) SOLICITORS: S Kavanagh (solicitor for Public Prosecutions)

2 - IN THE COURT OF CRIMINAL APPEAL 2004/2059 CCAP

SANTOW JA BELL J HOWIE J

14 MARCH 2005 REGINA v Matthew Peter JOHNSTON Judgment 1 SANTOW JA: INTRODUCTION The applicant, Matthew Peter Johnston, applies pursuant to s5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against the severity of the sentence imposed on him by Nield DCJ on 20 February 2004. 2 The applicant entered a plea of guilty to charges in respect of four offences of break, enter and steal under s112(1) of the Crimes Act 1900, each of which carried a maximum penalty of 14 years imprisonment. The applicant made further admissions in relation to a further six, namely one offence of larceny, one offence of receiving stolen property and four offences of disposing of stolen property (all six offences occurred when he was 21 years old, and between July and September 1999, the same period as the four principal offences). In accordance with s33 of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge took these six further offences ("the Form 1 offences") into account in dealing with the applicant for the four principal offences charged. The aggregate sentence imposed was a term of imprisonment for 5 years, with a non-parole period of 3 years and 9 months. The applicant would be eligible for release on 7 August 2007. 3 Two features of the sentence need here be noted. First, the judge applied a discount of 25% for the utilitarian value of the pleas of guilty in respect of each offence charged. Second, the judge declined to make a finding of special circumstances. 4 Essentially the applicant relies on two grounds of appeal in support of his application for leave to appeal against the severity of the sentence imposed. First, the applicant submits that the sentencing judge applied a wrong principle with regard to whether contrition could be found to exist, this error leading the judge to apply a lesser discount than was warranted in the circumstances. Second, the applicant submits that the sentencing judge incorrectly approached the question of whether there existed special circumstances.

SALIENT FACTS 5 The background facts giving rise to the charges and the Form 1 offences are not substantially in dispute, being contained in two statements of facts constituting Exhibit A (dealing with Offences 1 to 9) and Exhibit B (dealing with Offence 10) on sentence. 6 Matthew Peter Johnston is a 27 year-old single man from Sydney. He was 21 years old at the time of the offences and was unemployed and addicted to amphetamines. The Pre-Sentence Report tendered on sentence reveals that he has limited education, having left school in year 8 aged 14 working thereafter "mainly as a furniture removalist" (Pre-Sentence Report from Probation and Parole Officer Mr Griffiths). There is no indication of when he had last worked. He commenced substance abuse at age 16 and had progressed to amphetamines at age 19 and ecstasy by age 23. He told Mr Griffiths in 2004 that he spent $100 a day on ecstasy committing the offences to support his drug addiction. He has been estranged from his family since his family "fell apart" after his mother died in 1996. 7 As previously mentioned, the applicant committed a total of ten offences between June and December 1999 essentially to finance his drug addiction. The details of these offences in chronological order are contained in the following table (drawn from the Crown's written submissions and the Exhibits), with the four charged offences being separately identified: Charge Date Offence Items stolen Value Comment Charge 4 7 Jun 1999 Break enter steal Keyboard $15,000 Charge 2 1 Oct 1999 Break enter steal Laptop PC, video recorder, jewellery (incl. wedding rings), cash, video camera $5,000 > $15,000 Front door damaged by being kicked. Charge 1 12 Dec 1999 Break, enter steal Portable stereo Door kicked in and frame broken resulting in $1,465 damage

8 The applicant has a substantial list of prior convictions, including a large number of property offences similar to the ones for which he was here convicted, including shoplifting, stealing a conveyance, and break enter and steal. Among these number convictions in respect of seven counts of break, enter and steal for which the applicant served a period of imprisonment from 1998 to 1999. There are also recorded convictions for malicious damage to property, assault, offensive behaviour and language, obtaining money by deception, which offences were apparently committed while he was on bail pending trial of the offences the subject of these proceedings. 9 Furthermore, at the time of committing the offences for which he was here convicted, the applicant was subject to conditional liberty.

THE REMARKS ON SENTENCING 10 After setting out the background and facts, the sentencing judge commented that in his view there was nothing special about the offences which were the type of offences commonly committed by a person with a drug habit. The judge then considered the fairly scant subjective features of the applicant, referring to his youth (now 25 years old), estrangement from his family, criminal record, drug addiction, committing the offences to support his habit and noting the scant information as to his education and employments referred to in the Pre-Sentence Report. I note that the sentencing judge made no further express reference to the contents of that report. 11 The sentencing judge then took into account the principles outlined in s3A of the Crimes (Sentencing Procedure) Act and the factors referred to in s21A. The judge considered there were three aggravating factors present, namely that the offences were planned (s21A(2)(n)), the applicant has a record of having committed similar offences (s21A(2)(d)), and that the applicant was on conditional liberty at the time of committing them (s21A(2)(j)). The judge considered that there were three mitigating factors present, namely that the value of the property stolen and the damage caused by breaking and entering was not substantial (s21A(3)(a)), the applicant admitted committing the offences when spoken to by the Police, whereas they may have had difficulty in proving they had been committed by him (s21A(3)(m), s23), and that the applicant pleaded guilty at the earliest appropriate opportunity, thereby entitling him to a 25% discount (s21A(3)(k), s23). 12 The judge then referred to the decision of the High Court in R v Pearce (1998) 194 CLR 610 and the principle that the sentence must first be determined as applicable to each offence, weighing the factors in s21A. The judge then imposed sentences in respect of the four formal charges, in each case with a discount of 25% for the utilitarian value of the pleas of guilty. He determined that in respect of each of Charges 1, 2 and 4 (of break enter and steal) a sentence (with 25% discount) of 2 years and 3 months was appropriate as reducing a sentence of 3 years to 2 years 3 months (ROS6). He then determined that as to Charge 3 (of break enter and steal and taking into account the Form 1 offences) a sentence (with discount) of three years was appropriate so reducing a sentence of 4 years to 3. 13 Having so fixed an initial sentence in respect of each of the offences, the judge (in accordance with Pearce) then considered the principle of totality. He concluded that the overall sentence should be for a term of imprisonment of 5 years with a non-parole period in the absence of special circumstances of 3 years and 9 months (in conformity with the statutory ratio mandated by s44 of the Crimes (Sentencing Procedure) Act as it applies to offences committed prior to 1 February 2003). The sentencing judge doubted the applicant was contrite, given that he was a drug addict, stealing to support his habit. 14 In order to reconcile the determinations of the sentence for each charge with the 5 years determined by reference to totality, the judge then fixed the individual sentences as partially concurrent and partially consecutive. Ultimately the following sentences were imposed: (a) Charges 2 (committed 1 October 1999) and 4 (committed 7 June 1999) - fixed terms of imprisonment of 1 year and 6 months to be served concurrently from 8 November 2003 to 7 May 2005; (b) Charge 1 (committed 12 December 1999) - a fixed term of imprisonment of 1 year and 6 months, from 8 November 2004 to 7 May 2006; (c) Charge 3 (committed 18 September 1999) (and taking into account the Form 1 offences) - imprisonment for 3 years from 8 November 2005 to 7 November 2008, with a non-parole period of 1 year and 9 months commencing 8 November 2005 to expire on 7 August 2007 (on which date he would be eligible for release on parole); 15 It appears that the "fixed terms of imprisonment" of 18 months imposed in respect of Charges 1, 2 and 4 are such because they are fractionally less than what would be the non-parole period calculated according to the usual ratio for the sentence of 2 years and 3 months initially fixed by the sentencing judge in respect of each of those charges. Each sentence is effectively consecutive upon a reduced non-parole period for the previous sentence, indicating that the sentencing judge has in fact reduced the head sentence by reference to the principle of totality. In the case of Charges 1, 2 and 4, a head sentence of 2 years and 3 months would ordinarily produce a non-parole period of at least 20¼ months instead of the 18 months here imposed. That is, the head sentence has effectively been reduced to 2 years. Applying a similar analysis to the sentence imposed in respect of Charge 3, a head sentence of 3 years would produce a non-parole period of 2 years and 3 months, instead of the 1 year and 9 months here imposed, which is well below the three-quarters of the head sentence mandated by the statute. 16 In this case, the sentencing judge by reference to the principle of totality has reduced what he found to be the appropriate sentence in order to arrive at a head sentence of 5 years with an effective non-parole period of 3 years and 9 months in accordance with the statutory ratio. 17 In considering the question of special circumstances (and whether that statutory ratio should be varied in respect of the aggregate sentence), the sentencing judge commented: "As to special circumstances, it is difficult to see any circumstance that is special. The offender is a relatively young man. He has what is commonly called a drug habit. He committed these offences because of his drug habit. He has pleaded guilty after admitting what he has done. I doubt that he is contrite for having committed the offences because I doubt that a drug addict hanging out, to use that expression, and needing money for his drug of choice, would give a moments thought to the victim or victims of the criminal offence or offences. So I cannot see any special circumstance, with the result that the overall sentence of five years will produce a non parole period of three years nine months and a parole period of one year three months."

It is from these comments that both the applicant's complaints stem.

THE APPEAL Ground 1 - contrition 18 As to "contrition", the applicant submits that there was cogent evidence before the Court that he was contrite from an early stage. This was in the form of the Pre-sentence Report which referred to Mr Johntson stating "that he knew what he did was wrong" and that he "appears to genuinely regret the commission of the offences" and there was also the ERISP Report of 13 December 1999. The applicant submits that the sentencing judge's approach was erroneous in that it assumed that the grip of addiction at the time of committing the offences meant that the applicant was (thereafter) incapable of being contrite. The applicant submits that almost all offenders do not regret their offences at the time when they commit them but that does not mean that they are not capable of contrition when reflecting calmly on what they have done after the event. According to the applicant if this error had not been made there would have been a somewhat shorter sentence. 19 In response, the Crown concedes that the applicant's interpretation of the judge's remarks on this issue does reveal an illogicality, but submits that it is the interpretation which is flawed. The Crown argues that this would be so unsound a statement of sentencing policy by a trial judge that the Judge could not have meant this interpretation: R v Tolley [2004] NSWCCA 165 at [58]. The Crown argues that the applicant's submission amounts to a claim that having regard to the Pre-Sentence Report and other materials, the allowance of 25% for the guilty plea was inadequate, and submits that there is no warrant for a greater allowance. It is "genuine regret and remorse" which is a mitigating factor (R v Ponfield & Ors (1999) 48 NSWLR 327 per Grove J at [49]). A judge must be satisfied that remorse that is expressed (or recounted by counsel) is genuine.

Ground 2 - special circumstances 20 The applicant submits that the Judge treated the commonness of property offences by young drug addicts as determinative of whether special circumstances existed in this case, and failed to have regard to either: (a) The applicant's deep emotional problems, exacerbated by the death of his mother, which contributed to his turning to drugs; or (b) The applicant's willingness to take steps to remediate his drug problem, and the fact that the Pre-Sentence Report reveals that he had enrolled in a 12 Step Program and wanted to rehabilitate himself; 21 The applicant submits that although the question of special circumstances is within the trial judge's discretion, the approach here was too generic, resulting in an excessive aggregate non-parole period. Reliance is placed on the statement in the Pre-Sentence Report that he "has begun to acquire some insight into his drug problem" [emphasis added]. 22 The Crown rejoined by submitting that, albeit in a concise way, the Judge addressed, and took account of, the matters suggested by Mr Johnson as foundations for a finding of special circumstances. As to the drug problem, the Crown points to a consistent track record indicating lack of insight. As to emotional problems, the Crown points to the fact that the applicant's mother died about six or seven years prior to his being sentenced. While there is a possibility of drug and other rehabilitation within a longer period on parole, it is no more than that. It pointed to the well-known principle that merely because there is a circumstance which is capable of constituting "special circumstances" does not mean a judge is obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [22]. The question is whether the circumstances "be sufficiently special to justify a variation". The Crown submitted that to permit a reduction, the circumstance must be "purposeful", and meaning "have a real purpose" and submits that there would be no such purpose in decreasing the non-parole period of 3 years and 9 months.

Re-sentence? 23 Should this Court come to re-sentence, the applicant submits that the aggregate head sentence taking into account the 25% discount is a substantial 5 years and there is scope for reduction which would not lead to an erroneously short aggregate sentence. Further, the applicant submits that a finding of special circumstance ought be made. 24 The applicant tenders his own affidavit in support setting out further relevant matters and an affidavit sworn by a Legal Aid solicitor annexing Inmate Work Performance records of 19 November 2004 does indeed indicate some positive signs. This is in terms of a good prison work record and attitude. It is supported by an affidavit from the Legal Aid solicitor annexing work performance records. The applicant states that he attended weekly narcotics anonymous meetings for five months until August 2004 when the necessity to work became a priority as he had no financial support from outside gaol and is totally dependent on his gaol income. He says, though in the constraints of gaol, that he is "now totally free of illegal drugs". He concludes as follows: "8. I truly regret committing the offences I did. I want to make sure I don't relapse into using drugs again and that I get my life together. I am afraid that if I don't keep working and get my life together now I might become habituated to being in gaol. I don't want that to happen.

When I am released from gaol I intend to get work as soon as I can. I don't have any family support but I think my old boss will help me out. I expect to go back to working as a removalist. This was the last work I had before I was sent to gaol although since I left school in year 8 I have worked as a kitchen hand, with cars and in a cemetery. I stopped working in the cemetery after my mother died. I found I couldn't work there any longer." 25 The Crown submits that no lesser sentence is warranted in law, pointing to the presence of serious aggravating factors to enhance objective criminality. The Crown pointed to the absence of a sufficient sample of comparable cases for statistics to be of any particular use. The Crown in particular refers to Ponfield (supra) (Grove J with whom Spigelman CJ and Sully J agreed) and the enhanced objective criminality of the applicant who committed these offences while on parole for similar offences. In addition the Crown supports the structure of the sentence imposed by the sentencing judge, in allowing for partial accumulation which was appropriate given there were multiple victims. 26 I should first quote from Ponfield: " Guidelines :

[48] A court should regard the seriousness of an offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.

(ii) The offence is the result of professional planning, organisation and execution.

(iii) The offender has a prior record particularly for like offences.

(iv) The offence is committed at premises of the elderly, the sick or the disabled.

(v) The offence is accompanied by vandalism and by any other significant damage to property.

(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Procedure Act ). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416.

(vii) The offence is committed in a series of repeat incursions into the same premises.

(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act , s105A(1)(f)), it was likely that the premises would be occupied, particularly at night.

(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act, s 105A(1)(c), (d) and (e)).

(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation: Crimes Act , s105A(1)(a)).

[49] It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor: see R v Henry (at 384 [193]-[203] and 387 [217]-[259])." 27 The Crown's summation of aggravating factors by reference to Ponfield was as follows: "26. The sentencing judge found (ROS 5) that two [guideline factors] applied to the applicant. They were: (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole (iii) The offender has a prior record particularly for like offences. Arguable, (vi) and (viii) also applied. Multiple offences were clearly committed. Not only did the offence on 1.10.99 involve the theft of wedding rings of no doubt sentimental value but also in all, $20,600 was taken excluding the Form 1 matters. This amount, when it is remembered it was from private homes that the property was stolen, was not insignificant. Although the planning of the offences might be said to fall short of the "professional planning" envisaged in (ii), his Honour correctly found the "offences were planned, albeit without any sophistication" in terms of s21A(2)(n) Crimes (Sentencing Procedure) Act 1999."

There were, in short, a number of serious aggravating factors which in terms of the guideline judgment in Ponfield enhanced the seriousness of the offences. The structure of the sentence, in allowing for partial accumulation, was appropriate having regard to there being multiple victims. The Form 1 matters obliged the sentencing judge to look at the enlargement of the penalty to take those matters into account. Furthermore, the real relevance of the applicant's criminal record was the fact that he was on conditional liberty for offences, one of which included being in possession of housebreaking implements, when he committed the offences. It is part of the objective criminality of the offence. Such a feature generally requires the sentence acts as a deterrent to others in the community who are similarly on conditional liberty. It also raised the need for personal deterrence in this case (see R v Readman (1990) 47 A Crim R 181; R v Vranic NSWCCA 7 May 1991 and s21A(2)(j) Crimes (Sentencing Procedure) Act 1999).

The Crown submits that once these circumstances are taken into account that a lesser sentence was not warranted in law and should not be imposed."

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL 28 Concededly there was error on the part of the sentencing judge. This was in judging absence of contrition only at the time of commission of the offence, without regard to what evidence there might be of contrition at a later date. Here there was such later evidence of contrition which appeared to be genuine and the beginning only of progress towards doing rehabilitation. Error having been shown, this Court should reconsider the sentence, taking contrition and any other relevant factors into account. 29 The aggravating factors identified by the sentencing judge clearly contributed to the objective seriousness of the offences, more especially in terms of Ponfield. That is to say (i) the offences were committed while on bail, (ii) the applicant had a lengthy prior record and particularly for later offences, though the latter were concentrated over six months, supporting a drug habit, (iii) multiple offences were committed, (iv) over $20,000 was taken from private homes in aggregate, excluding the Form 1 matters and the offences were planned albeit without sophistication. 30 As against those factors, there was, as I have recounted at [18], evidence of contrition both in the ERISP and Pre-sentence Report. The 1999 offences were committed when the applicant was aged only 21 years. He is now 25. The Pre-sentence Report indicates some insight, at that time, into his drug problem. 31 The present sentence is by far the longest sentence he has ever been required to serve. Previously short parole perhaps gave little opportunity for the close supervision he would need. As to his prospects of rehabilitation, the further evidence before this Court is that the applicant is totally free of drugs and has been attending a drug rehabilitation course. 32 I would find special circumstances, to which I include his youth, earlier emotional problems and the prospect of a turning point in his drug problem. While, exercising the sentencing discretion I would not alter the substantial head sentence of five years, given the aggravating factors earlier noted, I would in light of special circumstances reduce the overall non-parole period to three years.

ORDERS 33 I would propose orders as follows: (1) Grant leave to appeal; (2) Dismiss the appeal with respect to the sentences imposed on counts 1, 2 and 4 and confirm the sentences imposed in the District Court; (3) Allow the appeal with respect to the sentence imposed on count 3, confirm the head sentence imposed in the District Court but quash the non-parole period and substitute in lieu thereof a non-parole period of one year. The non-parole period commences on 8 November 2005 and will expire on 7 November 2006, which is the first date on which the applicant will be eligible for consideration for release on parole. 34 BELL JA: I agree with Santow JA. 35 HOWIE JA: I agree with Santow JA. **********

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