R v Rae

Court of Criminal Appeal (NSW)|2012-08-29|Before: Macfarlan JA, Price J, Button J

Judgment 1Macfarlan JA: I agree with Button J. 2Price J: I agree with Button J. 3Button J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on 26 August 2011 by his Honour Judge Robison in the District Court of New South Wales sitting at Newcastle. 4The respondent had pleaded guilty to four offences. The first was aggravated break enter and steal offence pursuant to s 112(2) of the Crimes Act 1900. The circumstance of aggravation was that the respondent was in company when he committed that offence. There was an applicable maximum penalty of imprisonment for 20 years, and a standard non-parole period of imprisonment for 5 years. 5The second offence was discharging a firearm with intent to inflict grievous bodily harm, pursuant to s 33A of the Crimes Act. That offence attracted a maximum penalty of imprisonment for 25 years. 6The third offence was unauthorised possession of a prohibited firearm, pursuant to s 7(1) of the Firearms Act 1996. That offence attracted a maximum penalty of imprisonment for 14 years, and a standard non-parole period of imprisonment for 3 years. 7Finally, his Honour dealt with an offence of unauthorised possession of ammunition, pursuant to s 65(3) of the Firearms Act. That matter was placed before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. That matter resulted in a fine of $200 being imposed. In light of its relative lack of seriousness and its disposition, it will not be discussed in detail in this judgment. 8His Honour imposed an aggregate sentence with regard to the three offences, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. Before doing so, his Honour indicated the sentences that would have been imposed for each individual offence if an aggregate sentence had not been imposed, pursuant to s 53A(2)(b) of the same Act. 9With regard to the aggravated break enter and steal, his Honour indicated that there would have been imposed a head sentence of imprisonment for 3 years 9 months with a non-parole period of 2 years 6 months. With regard to discharging the firearm, his Honour indicated that a head sentence of 5 years 7 months would have been imposed. In accordance with s 54B(4A) of the Crimes (Sentencing Procedure) Act, his Honour did not indicate what non-parole period would have been imposed with regard to this offence, because it did not attract a standard non-parole period. With regard to the possession of the firearm, his Honour indicated that, if an individual sentence had been imposed, there would have been a head sentence of imprisonment for 2 years 7 months with a non-parole period of imprisonment for 1 year 11 months. 10Ultimately, his Honour imposed an aggregate head sentence of imprisonment for 5 years 7 months with an aggregate non-parole period of imprisonment for 4 years. 11Annexed to this judgment is a diagram that seeks to express the structure of the aggregate sentence and the indicative sentences in a readily comprehensible form. 12It is immediately noteworthy that the aggregate head sentence imposed is identical with the indicative head sentence that would have been imposed for the second offence if an individual sentence had been imposed for that offence.

Objective features 13There was no dispute between the parties in the District Court as to the facts of the four offences. Nor was there dispute about that topic in this Court. 14As for the first offence, on 13 July 2010 the respondent and a co-offender broke through the roof and ceiling of a veterinary practice. His Honour found that there was a "significant element of planning". Various medications that could be used illicitly were gathered up from the premises. As well as that, a floor safe containing a large amount of veterinary medication, including tranquilisers, was taken from the scene. The practice had obviously been deliberately targeted. The value of the items taken was in the order of $16,000. About $4,000 worth of damage was done to the premises. 15As for the second offence, on 16 July 2010 the victim, a young man of 26 years of age, was driving his truck in the Newcastle area. The respondent, who was driving a car, came across him without planning to do so. They were known to each other and there had been some previous animosity between them. The respondent swung his car in front of the truck, thereby blocking its progress. Each man alighted from his vehicle and a confrontation developed. The respondent produced a pistol. Although he had not expected to come across the victim, it seems that the respondent had available to him in the car a pistol and ammunition whilst he was driving around. The respondent pointed the pistol at various parts of the body of the victim, including his head, from a distance of no more than three metres away. He also said the words "I'll fucking kill you". The victim turned to run. The respondent discharged the pistol and a projectile entered the body of the victim from behind. He felt a burning sensation to his left thigh. The respondent decamped. Subsequently the victim was treated in hospital and had an operation to remove the projectile. He remained in hospital for three days. By the time of the remarks on sentence, the victim had made a full recovery. 16The facts of the third offence were as follows. On searching the home of the respondent, the police located a shortened firearm fitted with an empty magazine. To be clear, that was not the pistol that had been discharged on the occasion giving rise to the second offence. Ammunition was found on the same occasion, but it did not fit the shortened firearm. The firearm was not stored securely, and there were children in the home.

Subjective features 17The respondent pleaded guilty in the Local Court and received a discount of 25 per cent as a result. That discount plays no role in this appeal. 18Despite the early plea, his Honour did not find that the respondent was remorseful with regard to any offence. 19The respondent was born in August 1985. Accordingly, at the time of the offences, he was a little short of his 25th birthday. At the time of sentence in August 2011, he was about to turn 26. 20The criminal record of the respondent was not unblemished. Although neither overly lengthy nor featuring extended periods of imprisonment, it had a flavour of threats and violence. In February 2005, when the respondent was 19 years of age, he was charged with assault occasioning actual bodily harm and menacing driving. He was given a bond for each offence in the Local Court. On call-up he was sentenced to imprisonment for 4 months in the same Court. On appeal against severity to the District Court, he received a short sentence of periodic detention for both offences. In June 2006 he was charged with common assault. In the Local Court he was sentenced to imprisonment for 4 months. On appeal that sentence was reduced to periodic detention as well. 21In April 2007 he was convicted of possessing a prohibited firearm and common assault. He received a total sentence of imprisonment for 6 months. On the same day he was charged with receiving or disposing of stolen property. That resulted in a head sentence of imprisonment for 12 months with a non-parole period of imprisonment for 9 months. 22In July 2007 the respondent was charged with stalking or intimidating with intent to induce fear of physical or mental harm. For that offence he received a sentence of imprisonment for 3 months. 23In October 2008, the respondent was charged with two counts of common assault. He received a sentence of imprisonment for 1 month for those offences. 24There was also a number of driving offences scattered throughout the criminal record of the respondent that it is not necessary for me to recount. 25The respondent was bail refused after his arrest for the offences under discussion on 16 July 2010. By the time of the proceedings on sentence in August 2011, there was a deal of documentary evidence that showed that the respondent had used that year in custody constructively, and in particular had been seeking to address issues of substance abuse and violent behaviour. 26The most important subjective material placed before his Honour came in the form of a letter from the cousin of the respondent, Ms Leah Martin. In short, it showed that, when the respondent was aged 15 years, his father committed suicide after a long battle with mood disorders, including bipolar disorder. Referring to the respondent and his brother, Ms Martin remarked "I cannot even begin to relate or explain how deeply my Uncle's death affected my cousins, their mother, my own mother and extended family and of course myself". 27Eight years later, in May 2008, the respondent's mother lost her own battle with severe depression and grief. She also committed suicide. The cousin of the respondent said in the letter "[a]gain there are really no words to describe how this two fold tragedy has affected Michael and Joshua, and their brother Ben". The letter concluded with the cousin indicating that she would continue to give as much support as she could to the respondent and his siblings. She noted that "[m]ost have found it difficult to know how to support my cousins effectively under such difficult, heart breaking circumstances, therefore, Ben, Michael and Joshua have often not had what they needed, or perhaps have not recognized it in their grief." 28His Honour did not recount this central subjective feature in any depth in the remarks on sentence. However, it is apparent that His Honour accepted it without demurrer.

Some procedural aspects 29The solicitor appearing for the Crown and counsel appearing for the respondent in the District Court both accepted that there should be a degree of partial accumulation. Very shortly after counsel for the respondent made that clear orally, his Honour suggested that "an aggregate sentence under the recent amendments to the legislation" could be imposed. Neither the solicitor for the Crown nor counsel for the respondent made submissions to the contrary. Neither of them was asked by his Honour at that stage whether that could have any effect on the question of partial accumulation. After his Honour had made the remark about imposing an aggregate sentence, neither lawyer renewed his submission about the topic of partial accumulation. 30The remarks on sentence were delivered and sentence imposed on 26 August 2011. The Director of Public Prosecutions signed a notice of appeal on 16 September 2011. That document was filed and served upon the respondent on 21 September 2011.

Grounds of appeal 31Three grounds of appeal were notified. I shall deal with each of them in turn.

"The indicative sentence pronounced in respect of Count 2 (s.33A offence) is manifestly inadequate and fails to reflect the objective seriousness of that offence."

Determination 32At the hearing in this Court, counsel for the Crown was asked whether that ground could be maintained as a separate ground of appeal. That was on the basis of the words of s 5D(1) of the Criminal Appeal Act, which are as follows: "The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper." The simple point was that in truth his Honour pronounced only one sentence in the District Court: the aggregate sentence with regard to all three offences. The indicative sentences were, by their nature, not pronounced. Nor would it be appropriate for this Court to "impose" any sentence with regard to an offence upon which no sentence had been imposed at first instance. 33Counsel for the Crown accepted that the correct approach would be to consider all of the submissions as to the inadequacy or otherwise of the indicative sentence with regard to the second offence when this Court came to consider ground three. That approach accords with the recent decisions of this Court in PD v R [2012] NSWCCA 242 at [44] and R v Brown [2012] NSWCCA 199 at [17]. 34It follows that I would not uphold ground one as a separate ground.

"His Honour erred in imposing an aggregate sentence that failed to reflect any degree of partial accumulation"

Submissions 35It will be recalled that the indicative head sentence for the second offence was imprisonment for 5 years 7 months, and that that period is identical with the aggregate head sentence imposed with regard to all three offences. That must mean that the indicative head sentence of 3 years 9 months for the first offence, a serious offence committed entirely separately from the second offence, is not reflected by way of implicit accumulation in the aggregate head sentence. The Crown submitted that that state of affairs demonstrates of error. 36It will also be recalled that both parties in the District Court submitted that there should be some degree of partial accumulation. 37Senior counsel for the respondent in this Court submitted that perhaps his Honour had increased the aggregate non-parole period to 4 years beyond what would have been its length otherwise, in order to reflect the criminality encompassed in the first and third offences. In other words, she submitted that, although no accumulation can be seen in the aggregate head sentence, perhaps it is reflected in the aggregate non-parole period.

Determination 38It may be accepted that sentencing judges who are dealing with multiple offences have a very wide discretion as to questions of accumulation, concurrence, and partial accumulation and partial concurrence. However, it is not easy to understand how it is that the aggregate head sentence seemingly reflects none of the criminality of, at the least, the first offence, reflecting as that offence did a serious, planned break enter and steal in company that was entirely separate from the second offence, and that was committed by an offender who had previously been sentenced to imprisonment for a property offence. 39I turn to consider the submission of senior counsel for the respondent. No indicative non-parole period was expressed for the second offence. That means that one cannot undertake a comparison between what the non-parole period of that offence would have been, and the aggregate non-parole period actually imposed, in order to test the submission of senior counsel for the respondent. However, it is noteworthy that the indicative non-parole period for the third offence is 74 per cent of the indicative head sentence, and the indicative non-parole period of the first offence is 67 per cent of the indicative head sentence. The aggregate non-parole period is a little under 72 per cent of the aggregate head sentence actually imposed. In short, a comparison of the ratios between the indicative head sentences and the indicative non-parole periods of the first offence and third offence with the ratio between the aggregate head sentence and the aggregate non-parole period does not support the proposition that his Honour has increased the aggregate non-parole period in order to reflect questions of partial accumulation. 40Secondly, that would be an unusual way for a sentencing judge or magistrate to reflect questions of accumulation. The more usual approach, even with regard to the relatively new process of aggregate sentencing, would surely be to increase first the head sentence, and then the non-parole period to a commensurate degree. 41It follows that for two reasons I respectfully reject the submission of senior counsel for the respondent that this Court should proceed on the basis that the aggregate non-parole period reflects considerations of partial accumulation. 42It is true that, pursuant to the new procedure, a single aggregate sentence was imposed reflecting the criminality of all three offences. Therefore to speak of questions of partial accumulation is perhaps not entirely apt. 43However, I consider that Parliament called for sentencing judges and magistrates to indicate the sentences that would have been imposed with regard to individual charges or counts so that an analysis of the kind that the Crown has asked this Court to undertake is available. 44It may be that there was, with respect, perhaps some misunderstanding as to the relationship that an aggregate head sentence must have to indicative head sentences. It is noteworthy that, as I have said, his Honour imposed an aggregate head sentence that is identical with the longest indicative head sentence in circumstances in which both parties accepted that there must be partial accumulation. 45Of course, the newly available option of aggregate sentencing will free sentencing judges and magistrates from the laborious and complicated task of creating a cascading or "stairway" sentencing structure when sentences for multiple offences are being imposed and partial accumulation is desired. That will be especially beneficial in cases where an offender is to be dealt with for a very large number of offences. However, merely because an offender is to receive an aggregate sentence does not mean that considerations of accumulation, whether partial or complete, need no longer be taken into account. 46In all of the circumstances outlined by me above, I consider that the submission of the Crown has force. I consider that it was an error for the aggregate head sentence not to reflect some degree of cumulation as between the three offences. In particular, I consider that the conclusion is unavoidable that the separate and serious criminality encompassed by the first offence should have led to some implicit accumulation upon the indicative head sentence expressed for the second offence, and that accumulation should have been reflected in the aggregate head sentence. 47I would uphold ground two.

"The resulting aggregate sentence is manifestly inadequate." 48I shall first consider the complaint about the indicative head sentence for the second offence, which previously formed the basis of ground one.

Submissions 49The Crown submitted that the objective gravity of the second offence was profound. It featured the discharging of a pistol at close range in the direction of a fleeing victim. It had been preceded by an ordeal that must have induced terror and fear of death in the victim. Because it is not an element of the offence, the fact that, as a result of the discharge of the firearm, a projectile actually entered the body of the victim must be a serious aggravating feature. Although the offence was unplanned, it did feature the respondent using his own motor vehicle to block the progress of the truck being driven by the victim. That meant that the victim could not escape and led to the confrontation. There was no suggestion that the respondent had somehow been provoked, or that the shooting could be in any way justified. The maximum penalty of imprisonment for 25 years was emphasised. 50Reference was made to the fact that heavy sentences are imposed for the offence under consideration. Particular reference was made to the decision of Melbom v R [2011] NSWCCA 22. In that matter, a head sentence of imprisonment for 15 years with a non-parole period of 9 years 6 months was not disturbed by this Court. However, counsel for the Crown conceded that the consequences of the offence in that case were extremely grave, and could be sharply contrasted with the consequences of the offence here, in that the victim in that matter had suffered amputation of her leg as a result of a gunshot wound. 51Senior counsel for the respondent resisted the proposition that the indicative sentence for the second offence was manifestly inadequate. She drew the contrast with Melbom v R to which I have just referred. She also sought to develop an argument founded upon the analysis undertaken by this Court in cases such as Sproates v R [2009] NSWCCA 29. That was done whilst accepting that, in that case, the extent of the harm actually suffered was an element of the offence, and therefore amenable to more detailed analysis as to its seriousness. 52Senior counsel emphasised the compelling subjective features of the adolescence and early manhood of the respondent, and the progress that was already in evidence by the time his Honour came to sentence the respondent. She submitted that the indicative sentence is not manifestly inadequate.

Determination 53I have already indicated that, in my opinion, ground two should be upheld. I have also approached the question of the manifest inadequacy of the indicative sentence for the second offence on the basis that it is nothing more than a particular of ground three. In those senses, my consideration of the latter question is not determinative of the appeal. Having said that, I think it is useful for me to express an opinion about the submission. 54It is true that the offence demonstrated very substantial objective criminality. Balanced against that must be the tragic subjective circumstances of this case. Whilst it is true that the respondent was not free of criminality before he had appeared before his Honour, and his criminal record included periods in custody, those periods were short. The sentence was the subject of the utilitarian discount to which I have referred. It is well established that this Court should be slow to determine that a sentence is erroneous on the basis that it is manifestly inadequate or excessive, and should only do so when the sentence is unreasonable or plainly unjust: see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. Although I regard the indicative head sentence expressed with regard to the second offence as being remarkably lenient, in all of the circumstances I do not consider that it fell outside the discretion available to his Honour. It follows that I would not characterise it as erroneous by way of being manifestly inadequate. I therefore reject this part of the Crown submissions with regard to ground three. 55I turn to consider whether the aggregate head sentence and the aggregate non-parole period can be characterised as manifestly inadequate.

Submissions 56The submissions of the Crown on this final question did not go much beyond what had been said with regard to ground one and ground two. The Crown submitted that the aggregate head sentence and aggregate non-parole period simply did not reflect the criminality contained in all three offences. Emphasis was placed upon the fact that the first offence was an entirely separate incident from the second offence, even though they were separated by the passage of only a few days. 57Senior counsel for the respondent emphasised the unusual subjective features and characterised them as compelling. She submitted that the respondent had, by the time of sentencing, demonstrated sound progress in custody. In all the circumstances, she submitted that the aggregate head sentence and the aggregate non-parole period were open to the discretion of his Honour.

Determination 58The respondent committed a break enter and steal in company that netted $16,000 worth of drugs that could be used illicitly. Planning obviously preceded the crime, and the premises were clearly specifically targeted. The offence can be sharply contrasted with the situation where two young people snatch a DVD player worth $200 through a window that they have jemmied open. 59Three days later, the respondent shot a young man from behind having deliberately discharged a pistol that was in his possession, with the intention of inflicting really serious physical injury. Shortly before its discharge, the pistol had been pointed at the head of the victim and the respondent had made a threat to kill. At the time of the discharge of the firearm the victim was fleeing. 60During a search conducted by police on the evening of the same day, the respondent was found to possess an entirely separate firearm that had been shortened. 61The criminal record of the respondent was not unblemished, and featured prior convictions for violence and one firearm offence. He had been imprisoned before. 62Despite the compelling subjective aspects, and the good progress that had been made in the year or so that the respondent had been in custody, I am affirmatively satisfied that an aggregate head sentence of imprisonment for 5 years 7 months with an aggregate non-parole period of imprisonment for 4 years is manifestly inadequate. To my mind, it simply does not reflect appropriately the very substantial objective criminality of the respondent. 63It follows that I would uphold ground three.

Submissions 64Senior counsel for the respondent submitted that this Court would not intervene on two bases. The first was founded on a large amount of fresh evidence placed before the Court. That included two affidavits of the respondent affirmed since the date of sentence, and an expansive report prepared by a social worker. 65The fresh evidence demonstrated that the respondent continues to make good progress in custody and is obviously a person of significant potential. The affidavits also detail his fear of an increased sentence, and the adverse consequences that has had on his emotional well-being. 66The report of the social worker explored in far more detail than had been done at first instance the severely deleterious effect that the suicide of both of his parents had upon the respondent during his adolescence and young adulthood. It included the fact that, after the death of his mother in 2008, the respondent sought to dull the pain of that loss by use of heroin, and quickly developed an addiction to that drug. The report revealed that the progress made by the respondent since he was sentenced in August 2011 is significant, and includes genuine progress and commitment to rehabilitation, and remaining drug free since withdrawing from the methadone program. 67The second basis upon which it was submitted that this Court should exercise its discretion not to intervene was as follows. Senior counsel for the respondent submitted that, to the extent that the problem identified with regard to the sentence is in truth founded upon the absence of partial accumulation, then the Crown should bear some responsibility for that state of affairs. In short it was submitted that the failure of the solicitor for the Crown to re-emphasise the question of partial accumulation, after his Honour had raised an aggregate sentence as a possible option, could be relied upon by this Court to exercise the discretion not to intervene. 68The Crown did not deny that the subjective features were compelling. That included not only those that existed before sentencing, but also those that have come into focus since that time. Nevertheless, she submitted that there must be some increase in the aggregate head sentence and the aggregate non-parole period. She also resisted the proposition that the Crown had done anything at first instance that would lead to the exercise of the discretion not to intervene.

Determination 69I do not consider that a basis has been established upon which this Court should exercise its discretion not to intervene. As I have indicated above, I consider that the aggregate head sentence and the aggregate non-parole period failed to reflect the criminality encompassed in the offences to a degree that is obvious, apparent, or plain, to use the synonyms of "manifest" contained in the Macquarie Dictionary. Nor do I consider that there can be any criticism made of the conduct of either lawyer in the proceedings at first instance, let alone one that could found the exercise of the discretion not to intervene. There has been no delay by the Director of Public Prosecutions in notifying or prosecuting the appeal. The adverse emotional effects on the respondent are regrettable, but cannot stand in the way of intervention in the circumstances of this case: see R v JW [2010] NSWCCA 49; (2010) 199 A Crim R 486 at [95] and [141]. I consider that justice requires that this Court intervene to increase both the aggregate head sentence and the aggregate non-parole period.

Re-sentence 70I shall not repeat all of the objective and subjective features to which I have referred. The tragic events that have marred the life of the respondent through no fault of his own, and their undoubted consequences in the development of his psychological problems, drug addiction, and criminality, must be balanced against the seriousness of his criminal acts. I fully accept that any increase in the aggregate head sentence and the aggregate non-parole period will be a bitter blow for the respondent, and may have the effect of deflecting him from the path of rehabilitation upon which he appears to be travelling. It is to be hoped that, despite this setback, he has the strength to overcome it. 71In accordance with long-standing practice, the new sentence will be shorter than should have been imposed at first instance, on the basis of the demonstrated distress of the respondent: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 at [175]. 72I consider that the aggregate head sentence should be increased by a period of 2 years. I consider that the aggregate non-parole period should be increased by a commensurate period of imprisonment for 18 months. In order to reflect the ratio imposed by his Honour, I would reduce that increase to the aggregate non-parole period by one month. 73That would lead to a new aggregate head sentence of imprisonment for 7 years 7 months, with a new aggregate non-parole period of imprisonment for 5 years 5 months. 74In accordance with the fact that the Crown did not appeal against the aggregate sentence on the basis of the indicative sentences for the first and third offences, and the fact that I do not regard the indicative sentence for the second offence as erroneous, I am content for the indicative sentences at first instance to constitute my indicative sentences with regard to the new aggregate sentence for the purpose of s 53A(2)(b) of the Crimes Sentencing Procedure Act.

Orders 75 I propose the following orders: (1)Crown appeal against sentence allowed. (2)The aggregate sentence imposed by the District Court on 26 August 2011 is quashed. (3)The respondent is re-sentenced as follows: an aggregate head sentence of imprisonment for 7 years 7 months to date from 16 July 2010 and expire on 15 February 2018 is imposed, with an aggregate non-parole period of imprisonment for 5 years 5 months to date from 16 July 2010 and expire on 15 December 2015.

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. Decision last updated: 04 February 2013

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