R v Keen

Court of Criminal Appeal (NSW)|2004-03-08|Before: Sully J, Simpson J, Sperling J

the application for leave to appeal against sentence 27 The applicant was sentenced under the Crimes (Sentencing Procedure) Act 1999. Essentially, the application was argued on three bases. These were:

(i) that the sentences, in their overall effect, were manifestly excessive, indicating that the sentencing judge failed to give adequate weight to certain relevant considerations, including totality and the applicant's rehabilitation;

(ii) that, having regard to the sentences imposed on his co-offender Watts by his Honour on the preceding day, the applicant has a legitimate sense of grievance such as to bring into play the principles of parity: Lowe v The Queen (1984) 154 CLR 606; R v Postigilione (1997) 189 CLR 295;

(iii) that his Honour erred in specifying that the sentences be served cumulatively rather than concurrently. 28 I will commence with the question of parity.

parity 29 The day before he sentenced the applicant, the sentencing judge also sentenced two co-offenders, Kidwell and Watt. It was not contended by either party that the principles of parity applied to the sentences imposed upon Kidwell. He pleaded guilty to thirteen charges, eleven of which were armed robbery, one of assault with intent to rob, and one of robbery inflicting actual bodily harm. He was, at twenty-six, older than the applicant, and had a lengthy criminal history. 30 It is appropriate, however, to have regard to the sentences imposed upon Watt. He pleaded guilty to four offences of armed robbery, all committed jointly with Kidwell, the first of which was the offence at the pharmacy in which the applicant was also involved. This was the only offence in which both the applicant and Watt participated, or, at least, the only offence with which both were charged. Because, his Honour held, two of the offences could not have been proved against Watt without his own admissions, his sentences on those counts were discounted by twenty-five per cent (R v Ellis (1986) 6 NSWLR 603); the sentences on the other two counts were reduced, in recognition of his contrition, by twenty per cent. Watt was thirty-one years of age at the time of the offences, and had a criminal record which commenced when he was a fourteen year old, and had resulted in some short terms of imprisonment. He had had a six year crime free period whilst living in Queensland; none of his prior offences was at the level of gravity of armed robbery. He was a heroin addict. His Honour found special circumstances pursuant to s44 of the Crimes (Sentencing Procedure) Act 1999 and extended the non-parole periods of the sentences. 31 On three of the four charges, and having applied the discounts already mentioned, his Honour sentenced Watt to imprisonment for four years with non-parole periods of two years and eight months. On the fourth charge, he sentenced him to imprisonment for four years and four months, with a non-parole period of two years and ten months. He specified that the first sentence was to commence on 19 February 2002, and the other sentences be accumulated on the non-parole period of the first. The overall effect was a sentence of imprisonment for six years and four months with a non-parole period of five years and six months. 32 The principles of parity in sentencing are well known and need not here be recited. I have already referred to the decisions of the High Court in Lowe and Postigilione. To say that the principles are well known is not to say that their application is always easy. 33 Here, it was only in relation to one of the armed robberies that the applicant and Watt were sentenced as co-offenders. However, the circumstances of Watt's other offences were so similar as to make comparison legitimate. On all points of comparison or contrast except one the exercise favours the applicant. He faced three counts of armed robbery against Watt's four; he had youth on his side; he had a prior exemplary history; he had demonstrated rehabilitation. On the other side of the ledger, two of the applicant's offences were committed whilst he was on bail for the first. 34 Of course, it also has to be observed that Watt's non-parole period is significantly longer than the applicant's. 35 In order properly to compare the sentences imposed it is necessary to engage in something of a reconstruction exercise. The sentences imposed upon the applicant incorporated a thirty-five per cent discount, in part attributable to Cartwright factors, and in part to contrition. Counsel for the applicant submitted that, by adding in the discount, it could be seen that the overall starting point for the total of the sentences was approximately 13.7 years. This is roughly correct. He then submitted that, by a simple mathematical exercise, it could further be seen that the average pre-discount sentence for each robbery (leaving aside the motor vehicle offence) was four and a half years. 36 Watt also pleaded guilty, and his Honour also found that his expressions of contrition were genuine, but he had no entitlement to a reduction corresponding to the applicant's Cartwright discount. Watt's sentences were reduced by twenty and twenty-five per cent respectively, attributable to contrition only. 37 Counsel for the applicant pointed out that the overall head sentence imposed upon Watt was sixteen years and four months. He calculated this as an average sentence of four years and one month for each robbery. 38 I think this mathematical approach should be rejected. A correct appreciation of parity of sentencing is not to be obtained by division of total sentences into portions attributable to individual offences. It is not correct to average multiple sentences in order to determine a tariff for each offence. That would be to circumvent what is required by the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610. The task of a sentencing judge is to sentence in respect of each individual offence and then determine questions of totality, cumulation and concurrence. The initial exercise involves consideration of the circumstances of the offences, and the offender's subjective circumstances. These last matters were, in the two cases, very different. 39 No argument was advanced in this Court challenging the relative discounts allowed to the two men. Having considered the material contained in a sealed envelope (exhibit A on this application) and bearing in mind that, except where he incriminated himself, Watt's contrition discount was twenty per cent, I am of the view that the decision not to mount such a challenge was a considered and realistic one. It may be inferred that the proportion of the applicant's discount attributable to contrition was, like Watt's, twenty per cent, and the Cartwright discount a further fifteen per cent. That appears to me to be consonant with the material contained in the sealed envelope. 40 The overall sentences, both head sentences and non-parole periods, show Watt was sentenced significantly more heavily than the applicant - as was appropriate. 41 It seems to me that the real complaint made on behalf of the applicant is that each of his robbery sentences was accumulated upon the non-parole period specified in respect of the preceding sentence. In Watt's case, those sentences were successively accumulated upon the non-parole period of the first sentence. But this cannot be shown to have caused any injustice.

concurrence 42 Compliance with the dictates of Pearce requires that a sentencing judge's first task is to fix the correct sentence for each offence, and then consider questions of totality and concurrence or accumulation. It seems to me that, logically, the issue of totality must follow the fixing of the sentences and precede the accumulation or concurrence question. Once totality is determined cumulation and concurrence will fall into place, although, the more offences that are being dealt with, the more complex is likely to be the exercise. 43 Here, it was pointed out that the applicant's offences were all committed over a very short period of time, beginning on 31 January and ending on 12 February. That is a period of less than two weeks. In those circumstances there is something to be said for the proposition that it would have been open to the judge to have made the sentences concurrent, or partly concurrent: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66; in a passage that has been endorsed by other members of this Court, I there said: "Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong.

8 As a result of the decision of the High Court in R v Pearce [1998] HCA 57; 194 CLR 610, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce , a judge is required to fix 'an appropriate sentence' for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced." 44 Since the first draft of this judgment was prepared, the High Court has delivered judgment in Johnson v The Queen [2004] HCA 15, (unreported, 30 March 2004) in which the Pearce principles were considered. There is nothing in the judgments, as I read them (and particularly having regard to [26]) that would require revision of what I said in Hammoud. The judgment in Johnson has, however identified a level of flexibility in sentencing that was widely perceived by sentencing judges, and judges of this Court, as having been limited by Pearce. 45 It was far from incumbent upon the sentencing judge to make the sentences concurrent. Cumulation was equally open. In my opinion no error has been shown in this respect.

totality 46 In considering totality, the focus must be upon the undiscounted sentences. That is because, to focus upon the sentences post-discount could have the consequence of robbing the offender of all or part of the reduction to which he or she is entitled. Discounts, particularly for assistance to authorities, can be significant and can give the resultant sentence an appearance of (sometimes undue) leniency. Nevertheless, offenders are entitled to their discounts and the assessment of the severity or leniency of the sentences should ordinarily (apart from bearing in mind the requirement of s23(3) of the Crimes (Sentencing Procedure) Act), in my view, be made in the context of the undiscounted starting point. In this case, however, that is the starting of the sentences as imposed - that is, subsequent sentences accumulated upon the expiration of the non-parole periods, not the head sentences. 47 In Henry, this Court promulgated a guideline sentence for offences of the kind committed by the applicant of between four and five years for the full term ([165]). This sentence was said to be applicable to offenders of the kind described in a profile in [162]. The applicant fits largely, but not completely, into this profile. The offences showed rather more than a limited degree of planning, although, I would add, it was not shown that the applicant was in any real way involved in that planning; and there was rather more than a small amount taken, at least from the first victim. 48 As I read the judgment in Henry, the guideline promulgated is predicated upon a single offence. Multiple offences evidence an escalating criminality. 49 On this basis the individual sentences were within the Henry guideline, although, having regard to the rather unusual circumstances of this case, in my opinion, the first sentence was towards the high end of the available range. For the first offence, it seems to me that the applicant could reasonably have expected to be sentenced at the lower and not the mid range of the guideline. Nevertheless, I do not think it can be said that error has been shown in the selection of the individual sentences. 50 It was appropriate for the second and third sentences to be longer than the first: the applicant was no longer a first offender, the offences represented an escalation in his criminality, and they were committed whilst he was on bail. 51 The question is whether the end result, an effective total head sentence of nine years and four months and an overall non-parole period of seven years (before discounting) exceeded what was properly available in the sound exercise of discretion. In this respect, considerable weight must be afforded to the applicant's demonstrated rehabilitation by the time he was sentenced, and his excellent prospects for a crime free life on his release. Also of significance was his short period of criminality. On the other side of the ledger, of course, those factors could not be allowed to outweigh the demands of appropriate punishment and denunciation referable to the objective criminality of the applicant's behaviour. 52 I have come to the view that the overall head sentence, while at the upper limit of the range available, did not exceed those bounds. I have reached a different view in relation to the overall non-parole period of seven years. This came about because of the concertina effect of the accumulation of sentences upon the expiration of the non-parole period. 53 That conclusion will require a determination of the appropriate pre-discount range for the whole of the applicant's criminality, which includes consideration of the subjective circumstances. However, before coming to that, it is necessary to consider the last matter raised on behalf of the applicant.

special circumstances 54 That final matter concerns the manner in which his Honour sought to give effect to his finding of special circumstances. It will be recalled that he clearly stated, on more than one occasion, that the reason for so doing was the applicant's need for supervision on his release. That is of some significance. That is because it was put to the court by the Crown that, where sentences are to be accumulated, that might of itself be a reason for a finding of special circumstances, in order to bring about a conventional ratio between the head sentence and non-parole periods. That can be so in some cases, but it is clearly not what his Honour had in mind in this case. He envisaged, as the Crown conceded during the course of argument, that the applicant would have the benefit of an extended period of parole. And yet the result did not achieve that. The sentences ultimately imposed gave the applicant a head sentence of almost six years, with a non-parole period of almost four and a half years - almost precisely the statutory proportions. This, in itself, in my opinion, demonstrates error requiring re-sentencing.

re-sentencing 55 In order to re-sentence, it is appropriate to mention two additional matters that were put before the Court in a somewhat unorthodox fashion. Firstly, and of lesser significance, the Court received evidence of the applicant's progress in custody. He has successfully completed courses or programmes in anti-violence, relapse prevention, drug awareness and HIV health promotion. On his behalf these were characterised (in a submission challenged by the Crown) as evidence of "giant strides" he had made in rehabilitation. To my mind, they demonstrate that the applicant has continued steadily on the path towards rehabilitation that he had already taken at sentencing. Of more significance is material concerning the applicant's custodial regime. This information was provided, very fairly, to the Court by the Crown. The applicant has been held in protective custody from 13 March 2003 until 7 April 2003 and again since March 2004. It is anticipated that he will spend the remainder of his sentence in protective custody. This is a very different position from that which pertained when the matter was before the sentencing judge, who did not expect that the applicant would be so held. It is well established that, because of its more onerous conditions, protective custody is a factor relevant to sentencing, pointing towards some reduction in sentence. I would proceed on the basis that the balance of the applicant's incarceration will be spent in those circumstances. This justifies a reduction in the head sentences as well as the non-parole periods. In re-sentencing I would adhere to the finding of special circumstances, both for the reason given by the sentencing judge and also by reason of the circumstance that the sentences will be served in protective custody. Compliance with Pearce creates some complications: the sentence I propose in respect of the fourth count may appear to be disproportionate. That comes about because of the partial accumulation of sentences, and the need to ensure that the overall sentences achieve the objective of extending the parole period. In this I am comforted by the judgment in Johnson. Such a course is expressly authorised at [26]. The overall sentence should be of imprisonment for five years with a non-parole period of three years. 56 I propose the following orders:

(iii) in lieu thereof the applicant be sentenced as follows: count 1: imprisonment for two years to date from 2 March 2003, and expire on 1 March 2005, with a non-parole period of one year, to expire on 1 March 2004; count 2: imprisonment for two years and nine months, to date from 2 March 2004, and expire on 1 December 2006, with a non-parole period of one year and four months, to expire on 1 July 2005; count 3: imprisonment for a fixed term of six months, to date from 2 March 2004, and expire on 1 September 2004; count 4: imprisonment for three years to date from 2 March 2005, and expire on 1 March 2008, with a non-parole period of one year, to expire on 1 March 2006. 57 SPERLING J: I agree with Simpson J.

Last Modified: 04/22/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : R v Keen [2004] NSWCCA 86 HEARING DATE(S) : 8 March 2004 JUDGMENT DATE : 15 April 2004

CATCHWORDS : appeal against severity of sentences - pleas of guilty - robbery in company - robbery whilst armed with an offensive weapon - driving a conveyance without consent of owner - subjective circumstances - gambling addiction - parity - concurrence - totality - special circumstances - re-sentencing - protective custody - rehabilitation LEGISLATION CITED : Crimes Act 1900, s 97(1), s145A(1)(b) Crimes (Sentencing Procedure) Act 1999, s23(3), s44 Johnson v The Queen [2004] HCA 15 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Cartwright (1989) 17 NSWLR 243 CASES CITED : R v Ellis (1986) 6 NSWLR 603 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Henry and others [1999] NSWCCA 111; 46 NSWLR 346 R v Postigilione (1997) 189 CLR 295 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES : Crown - Respondent Dane Keen - Applicant FILE NUMBER(S) : CCA 60406/03 COUNSEL : B Knox SC - Crown FP Thraves - Applicant SOLICITORS : S Kavanagh - Crown M Rush - Applicant

the remarks on sentence 15 On 12 March 2003 the sentencing judge sentenced two of the co-offenders, Kidwell and Watt. It will be necessary to refer later, in particular, to the sentences imposed on Watt. The following day, 13 March, he sentenced the applicant. 16 The sentencing judge recounted the facts of the offences, and reviewed the subjective circumstances. He accepted the applicant's expressed "manifest" contrition as "largely due to real sorrow for the suffering of his victims and his family" and regarded that as a significant matter. He considered that the gambling addiction was not a mitigating factor, but that it negated a disposition to crime or anti-social behaviour. He noted the significant degree of planning that had gone into the offences, demonstrated by the measures to effect disguise or concealment of facial features. He recognised, however, that the applicant could not be said to have been involved in any planning in relation to the first robbery. I would interpolate that that observation is amply borne out by the simple fact that the applicant used his own vehicle, with no attempt even to conceal the registration plates. Even for a novice criminal, as the applicant then was, that denotes an unusual lack of sophistication and forethought. 17 The judge quoted the report of a psychologist in which the likelihood of the applicant's re-offending was described as "minimal", but he added that this forecast was predicated upon supervision and regular counselling. 18 The sentencing judge noted that the second and third robberies were committed whilst the applicant was on bail for the first. That is, of course, a seriously aggravating feature. 19 The sentencing judge referred to the principles stated in R v Cartwright (1989) 17 NSWLR 243 and referred, somewhat elliptically, to evidence that supported the applicant's claim for a reduction in sentence referrable to those principles. In a finding which was perhaps then of little or no major significance, his Honour said that there was no evidence to suggest that the applicant would have to serve his sentence on protection. For reasons which will appear below, it has acquired much greater significance. 20 His Honour then referred to the pleas of guilty, and, in the same context, also referred to the guideline judgment in R v Henry and others [1999] NSWCCA 111; 46 NSWLR 346. This was because he noted that the plea of guilty was already factored into the guideline sentence there promulgated; plainly his Honour was recognising that if he were to sentence the applicant in accordance with that guideline, he would not be entitled to a further reduction by reference to his pleas of guilty. In this regard it is to be noted that the Henry guideline presumes a late plea of guilty (see R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [160]). The applicant was entitled to more substantial consideration because of his very early plea. 21 His Honour considered, however, that he was entitled to take into account the pleas of guilty as evidence of contrition; he accepted the contrition as genuine. In recognition of the accepted contrition, together with the Cartwright factors, he stated his intention of reducing the sentences by thirty-five per cent. In respect of count 1, he then fixed on four and a half years as the appropriate head sentence, which he discounted, as he indicated he would do, by thirty-five per cent, producing a head sentence of two years and eleven months. He took the same course in relation to the second offence, resulting in a head sentence of three years. On the third (the motor vehicle offence) he imposed a fixed term of six months. On the fourth he determined that, before discounting, a sentence of four years and nine months would be appropriate and discounted this by a little over thirty-five per cent, again imposing a head sentence of three years. 22 Although he did not nominate his starting point in respect of the second offence, the result shows that that also was four years and nine months. 23 The sentencing judge then moved to consider the fixing of non-parole periods and questions of totality. In relation to special circumstances he said this: "The offender is obviously in need of a finding of special circumstances by reason of his youth and the fact that these crimes are his first venture into crime. He will require strong and skilful support in the general community to ensure, as far as possible, his stability as a law abiding person. This will involve help to overcome his gambling addiction. He impresses me as an easily led person, one who seems ever ready to make a good impression with his peers. He is still fairly young. Taking into account too his youth and the negative influence that gaol may have on him, where he will come to regard his fellow prisoners as his peers, I propose to take the unusual course of setting a non-parole period at half of the head sentence. The aggregate of head sentences is eight years and eleven months." 24 Earlier when extracting passages from the psychologist's report, including that mentioned in [17] above, his Honour said: "For this last stated reason [the need for supervision and regular counselling], if for no other, this is a case for the finding of special circumstance." 25 His Honour was told (incorrectly, it now appears) that the applicant had served twelve days in pre-trial custody, and he accordingly backdated the first sentence to commence on 2 March. He then specified that the sentences in respect of counts 2 and 3 were to be served concurrently with one another but cumulatively upon the earlier specified non-parole period; the sentence in respect of count 4 was to be served cumulatively upon the non-parole period of the sentence on the second count. 26 The result of this exercise was effectively, as set out above, a maximum sentence of five years and eleven months and a non-parole period of four years and five months.

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