R v Thorn [2010] ACTCA 10

Court of Appeal (ACT)|2010-05-28|Before: Gray P, North JJ

1. The Director of Public Prosecutions has appealed against the inadequacy of a sentence imposed upon James Thorn (the respondent) in respect of the offences committed by him dating back to 3 October 2007 and concluding on 18 November 2008. The respondent was sentenced on 7 September 2009 to four years six months imprisonment (wrongly described in the good behaviour order as four years and nine months imprisonment). The court ordered that the sentence commence on 12 September 2007. A suspended sentence order was made releasing the respondent on the date that the sentence was handed down, namely, 7 September 2009.

2. The respondent presented a complex sentencing problem not only with respect to the scale of offending being dealt with but also with the respondent's complicated subjective circumstances. Further, the offences were committed at various times dating back to October 2007 with a series of offending that culminated in the last series of offending in August 2008.

4. The prosecution placed before the sentencing judge a schedule of offences which set out the list of offences in respect of which the respondent was to be sentenced. That set out the offences in order of the Supreme Court file numbers rather than in chronological order of the commission of the offences. It was on this schedule of offences that the sentencing judge acted. It is perhaps unfortunate that the offences were not placed in the latter chronological order but the sentencing judge understandably used that schedule in order to construct sentences to arrive at the overall head sentence which he imposed.

5. The notice of appeal adopts a similar device in setting out a summary of the sentences imposed. That is adopted for the purposes of these reasons with the offence date added together with a summary note of the nature of the offence.

1. SCC 420 of 2007

CC 2007/11056 - damage property, screwdriver/car, s 403 Criminal Code 2002 - 09.11.07

CC 2007/11057 - theft, ipod from car, s 308, Criminal Code 2002 - 09.11.07

Convicted

6 months imprisonment to commence 12 September 2007

Convicted

6 months imprisonment concurrent with 07/11056

2. SCC 75A of 2008

CC 2008/469 - burglary, residential premises, s 311 Criminal Code 2002 - 04.10.07

CC 2008/470 - theft, Chifley, TV $3,500; speakers $1,500; jewellery $150; DVDs $2,000, s 308 Criminal Code 2002 - 04.10.07

Convicted

6 months imprisonment concurrent with 08/469

3. SCC 75B of 2008

CC 2008/1447 - drive motor vehicle without consent, Criminal Code 2002 - 05.12.07

CC 2008/1448 - receiving, laptop in stolen car, s 313 Criminal Code 2002 - 05.12.07

Scheduled offence 14.12.07 possess stolen property, wallet, TV

Convicted

6 months imprisonment concurrent with 08/1447

4. SCC 75C of 2008

CC 2007/12512 - attempted take motor vehicle without consent, Criminal Code 2002 - 29.12.07

CC 2007/12511 - going equipped for theft, scissors, screwdriver, s 315 Criminal Code 2002 - 29.12.07

Ex officio - assault occasioning actual bodily harm, assault when accosted by car owner, small lesion from scissors or screwdriver, s 24 Crimes Act 1900 - 29.12.07

Scheduled offence, false identity to police 30.12.07

Convicted

6 months imprisonment, concurrent with 07/12512

Convicted

9 months imprisonment, concurrent with 07/12512

CC 2008/1860 - burglary, residential premises, Kingston, s 311 Criminal Code 2002 - 03.10.07

CC 2008/1861 - theft, computer, DVD etc $3,488, s 308 Criminal Code 2002 - 03.10.07

Ex officio theft - different owner computer $2,000 - 03.10.07

Convicted

6 months imprisonment concurrent with 08/1860

CC 2008/1852 - burglary, residential property, Chapman, s 311 Criminal Code 2002 - 16.10.07

CC 2008/1853 - theft, piggy bank $200, s 308, Criminal Code 2002 - 16.10.07

CC 2008/1854 - attempted theft, TV on ground outside damaged, s 308 Criminal Code 2002 - 16.10.07

Convicted

6 months imprisonment, concurrent with 08/1852

CC 2008/1858 - burglary, commercial premises, Erindale, s 311 Criminal Code 2002 - 31.10.07

CC 2008/1859 - attempted theft, safe damage, s 308 Criminal Code 2002 - 31.10.07

Convicted

6 months imprisonment concurrent with 08/1858

CC 2008/1857 - burglary, residential premises, Hughes, s 311 Criminal Code 2002 - 07.11.07

CC 2008/1856 - theft, mountain bike, $ 800, s 308 Criminal Code 2002 - 07.11.08

Convicted

6 months imprisonment concurrent with 08/1857

CC 2008/4044 - ride in motor vehicle without consent, passenger, s 318 Criminal Code 2002 - 01.04.08

CC 2008/6647 - burglary, residential premises, Kambah, occupied, s 311 Criminal Code 2002 - 30.10.07

CC 2008/6646 - theft, handbag contents and $240, s 308 Criminal Code 2002 - 30.10.07

CC 2008/6649 - burglary, residential premises, Wanniassa, s 311 Criminal Code 2002 - 12.12.07

CC 2008/6648 - theft, damage, LCD TV $2,340 recovered, s 311 Criminal Code 2002 - 12.12.07

Convicted

6 months imprisonment concurrent with 08/6647

Convicted

12 months imprisonment concurrent with 08/6647

Convicted

6 months imprisonment concurrent with 08/6647

CC 2008/7751 - burglary, commercial premises, Woden, s 311 Criminal Code 2002 - 29.03.08

CC 2008/8879 - theft, safe containing $1,911.55, s 308 Criminal Code 2002 - 29.03.08

CC 2008/7755 - burglary, residential premises, Yarralumla, s 311 Criminal Code 2002 - 01.04.08

CC 2008/7706 - theft, TV, computers, s 308 Criminal Code 2002 - 01.04.08

CC 2008/9062 - theft, commercial premises, Woden, jewellery, $3,795, s 308 Criminal Code 2002 - 12.08.08

CC 2008/10661 - theft, commercial premises, Belconnen, jewellery, $400, s 308 Criminal Code 2002 - 13.08.08

Convicted

6 months imprisonment concurrent with 08/7751

Convicted

12 months imprisonment concurrent with 08/7751

Convicted

6 months imprisonment concurrent with 08/7751

CC 2008/10299 - receiving, credit card attempt, s 315 Criminal Code 2002 - 09.08.08

CC 2008/11072 - obtain property by deception, s 326 Criminal Code 2002 - 09.08.08

Convicted

6 months imprisonment concurrent with 08/10299

CC 2008/12336 - aggravated burglary, 1:51 am, Tuggeranong Hyperdome, s 312 Criminal Code 2002 - 13.08.08

CC 2008/12337 - aggravated burglary, commercial premises, Tuggeranong Hyperdome, s 312 Criminal Code 2002 - 13.08.08

CC 2008/12725 - theft, jewellery $1,545, glass damage $3,531.17, s 308 Criminal Code 2002 - 13.08.08

Convicted

18 months imprisonment concurrent with 08/12336

Convicted

6 months imprisonment concurrent with 08/12336

CC 2009/6469 - ride in motor vehicle without consent, s 318 Criminal Code 2002 - 18.11.08

7. The appeal is on the basis that the sentences imposed were manifestly inadequate and that was specified in ground (a) of the notice of appeal. The other grounds allege error:

(b) ... in failing to give sufficient weight to deterrence and punishment in relation to the Respondent;

(c) ... in failing to give sufficient weight to the objective seriousness of the crimes;

(d) ... in failing to have adequate regard to the principle of totality;

(e) ... in failing to have adequate regard to principles of accumulation of sentences;

(f) ... in suspending the sentence immediately upon the pronouncement of sentence.

8. The Director of Public Prosecutions said that the essential complaint that underlies grounds (a), (b) and (c) of the notice of appeal is, what was said to be, a lack of acknowledgement in the sentence of the objective seriousness of the crimes and the necessity for specific deterrence of the offender.

9. It was then said that the essential complaint concerning grounds (d), (e) and (f) of the notice of appeal is the inadequacy of the individual sentences and the principle of totality not being properly applied which, it is said, resulted in a head sentence that is too low with inadequate time to be served.

10. Both of these general matters of complaint are in the nature of observations as to the result and do not take into account the course that the sentencing proceedings took, the submissions made to the sentencing judge and the particular circumstances pertinent to the offender.

11. The respondent had been in remand custody for periods of time in respect of the offences before the court. Section 63(2) of the Crimes (Sentencing) Act 2005 (ACT) mandates that the court take into account any period during which the offender has been held in custody in relation to the offence.

12. The respondent had been in custody in respect of the last series of offences since 18 August 2008 when he came before the court for sentence on 14 August 2009. In addition, in respect of the earlier series of offences, he had been in custody for almost another twelve months in varying blocks of time.

13. It is highly unusual for a person to be in remand custody for such a lengthy period. The opportunities for a person in the respondent's position to address issues concerning rehabilitation are clearly reduced by such a period of remand custody. That, of course, is a situation that could be said that the respondent brought upon himself by his conduct. Nevertheless, the steps taken and the attitude disclosed by the respondent to this period of imprisonment on remand are significant matters to take into account.

14. The pre-sentence reports on the respondent that were before the sentencing judge referred to numerous efforts that had been made in the past to assist the respondent in addressing his complex needs and developing productive activities and coping responses. The most recent report, dated 5 August 2009, recognised that the respondent's requests to get into residential rehabilitation programs had been declined because of his dual diagnosis status of amphetamine dependence and schizophrenia.

15. That pre-sentence report also incorporates a comprehensive assessment under the Drugs of Dependence Act 1989 (ACT) made by the Treatment Assessment Panel. That assessment reported:

The Panel believes the most suitable treatment is a 12 month Treatment Order, comprising of completion of a residential rehabilitation program followed by community based treatment options including counselling with Directions ACT and adherence to ACT Mental Health medication regime and any other treatment deemed appropriate by the Panel.

16. The recommendation in that pre-sentence report, as far as the respondent's drug issues were concerned, was that the respondent be assessed for admission to a residential treatment facility in New South Wales. As well, the pre-sentence report noted the respondent's mental health issues as follows:

Mr Thorn is a diagnosed schizophrenic subject to a current psychiatric treatment order which is administered through Forensic Mental Health. Liaison with the psychiatric nurse working at the Alexander Maconochie Centre confirmed that Mr Thorn is presently receptive to his medical requirements. He is being medicated with Seroquel, Avanza and Fluphenthixol, the latter consisting of a fortnightly injection. Because of his past history of drug abuse which exacerbates his psychiatric conditions Forensic Mental Health has rejected the suitability of all oral medication.

17. It should be noted that the recommended residential drug treatment facility could manage the respondent's mental health needs. This is often a problem where dual diagnosis offenders are quite frequently denied access to rehabilitation facilities as a result of either their mental impairment or drug addiction. The pre-sentence report concluded with the following:

It would appear desirable that Mr Thorn continue to be subject to a psychiatric treatment order and that he undertake a comprehensive program at a residential treatment centre, such as the Triple Care Farm. His active participation in a [Drugs of Dependence Act] treatment order would assist his capacity to forge a stable lifestyle in the community.

18. In the sentencing proceedings the prosecutor acknowledged that in the respondent's case, "rehabilitation is a principle that you ought and must take into account". The following exchange took place:

MR LUNDY: No. Your Honour, as I say, my submissions are that you would be entitled to impose, in addition to the time served, more time in relation to Mr Thorn. If your Honour was - - -

HIS HONOUR: Probably, although I'd have to say that, you know, the amount of time that would be imposed additional, although it would be significant probably wouldn't be stretching a long way into the future.

MR LUNDY: No. No, but then - - -

HIS HONOUR: It's near two years.

MR LUNDY: It is.

HIS HONOUR: He's spent in custody.

MR LUNDY: But then again, there are - - -

HIS HONOUR: Say a 5-year sentence.

MR LUNDY: Yes.

HIS HONOUR: It'd be pretty usual for it to have a 2 ½ year non-parole period. So you're not really looking at a huge additional amount of time anyway. So - - -

MR LUNDY: I'd still be asking for that, your Honour, but if your Honour was - - -

HIS HONOUR: Yes, quite, and I understand that, that that would be the appropriate response, but for the question of rehabilitation.

MR LUNDY: Yes. And if your Honour was minded not to give him more time, to consider the deferred sentence option, if that's possible, that then would act as - - -

HIS HONOUR: I have considered a deferred sentence option, and in a way that's what I'm doing but - - -

MR LUNDY: Yes.

HIS HONOUR: Or what I'm minded to do, at least, but not a long deferral.

MR LUNDY: No.

HIS HONOUR: And indeed, not a formal deferred sentence order at all, but my inclination is to adjourn the proceedings to enable the assessment and to grant limited bail for that purpose.

MR LUNDY: Yes.

19. The sentencing judge also indicated that he accepted that the respondent was genuine in "his current desire for rehabilitation".

20. It is clear from this exchange that the broad parameters for the respondent's sentence were being set. The prosecution did not demur from the approach to rehabilitation put forward by the pre-sentence report and endorsed by the sentencing judge albeit issue was being taken as to whether additional time should be served by the respondent.

21. When the matter returned to the court, by letter, the court was informed that the respondent had not been accepted into the residential rehabilitation facility but that the assessment committee of that facility had suggested that the Grow Community Residential Rehabilitation Program might be more suited to the respondent's needs and current goals.

22. The matter came before the sentencing judge on 4 September 2009. The respondent gave evidence. A handwritten letter setting out the respondent's intentions was tendered. He was cross-examined on those intentions and gave this evidence:

But something that's there, there's programs in place in relation to helping you address your - - -?---And I've attended every single one of them, that's why I made such a big change, because I've been attending education, doing my IT, I've attended drug and alcohol counselling, I've been getting counselling from Directions coming and seeing me in the community. I've been having mental health counselling, and I've been having my depots and everything while I've been in there, that's why I've come such a long way.

Being at the AMC has actually been good for you, hasn't it?---It hasn't been good for me, I didn't like a bit of it but I'm just trying to make the most of it so I can prove to people that when I get out in the community I that I'm ready to be out in the community.

23. The respondent also gave the following evidence:

Can you tell his Honour what arrangements you have been making for your hoped return to the community?---I've been trying as hard as I can to set myself up so I don't fail when I'm formally released. I've rung the Grow Community on numerous occasions to try and get an interview, however, they'll not accept me while I'm in custody so what I've done I've enrolled myself as an Outreach patient in the 12 step program at the Grow Community every Monday at 2 o'clock at the Belconnen Community Centre and Wednesday at 1, it's either 1 or 2 at the Woden Youth Centre and that's a two hour program each time.

I've also arranged counselling with Directions ACT on a weekly basis, and I've also been enrolled in a Smart Using Program through Directions which won't, which won't happen for another three to four weeks, but I've been enrolled, my name's on a list. I've also got job skills with Cooloola. I've got Probation and Parole and Mental Health counselling at Tuggeranong Mental Health. And I also have around the clock mental health counselling with the CAT team, I can call anytime of the day, anytime of the night if I'm having any problems, and I have that number in my mobile phone.

24. It was open to the sentencing judge to accept the respondent's expression of his present and future intentions as well as this program that the respondent put forward. It was submitted by the Director of Public Prosecutions that the respondent's past history made such an acceptance problematic. That is not an issue for this Court. It is an important aspect of the sentencing process that a sentencing judge makes the judgment as to when it is appropriate to extend to an offender the opportunity for rehabilitation. This Court will rarely interfere with such an assessment and only in the clearest of cases. To do otherwise would diminish the equal standing that the concept of rehabilitation referred to in S7(1)(d) has in the purposes of sentencing that are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 7 provides:

7 Purposes of sentencing

(1) A court may impose a sentence on an offender for 1 or more of the following purposes:

(a) to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b) to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c) to protect the community from the offender;

(d) to promote the rehabilitation of the offender;

(e) to make the offender accountable for his or her actions;

(f) to denounce the conduct of the offender;

(g) to recognise the harm done to the victim of the crime and the community.

(2) To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

25. It may be noted from the exchange between the sentencing judge and the prosecutor noted above that not only does it appear that it was conceded by the prosecution that this case called for consideration of rehabilitation, but it also implies that the other sentencing issues referred to in s 7 could be met by a sentence along the lines proposed by the sentencing judge.

26. It is clear that the general range of the sentence had not been challenged by the prosecution. There were, then, specific factors that needed to be considered for determination of the period of actual custody required and which were proper to take into account. These were:

(a) the respondent's mental impairment which rendered general deterrence of less significance in the sentences to be imposed;

(b) the fact that the possible rehabilitation agency required the respondent to be in the community and not in custody prior to his admission; and

(c) the evidence of the respondent that he was not finding imprisonment a pleasant experience, so that the need for specific deterrence had not been overlooked or discounted.

27. The determination of a disposition of that part of the sentence by a suspended sentence, non-parole period or other mechanism required a balancing of these factors with the need for any additional punishment through any further incarceration which was very much an exercise in the instinctive synthesis which is the sentencing discretion.

28. While the remarks on sentencing made by the sentencing judge are brief, they must be read in the light of the debate during sentencing submissions where the parameters of the sentence were clearly explored in some detail.

29. In Pearce v R (1998) 194 CLR 610 at 624, McHugh, Hayne and Callinan JJ said:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen (1988) 166 CLR 59).

30. As the majority also pointed out in that case, that is not a process that leads to a single correct answer arrived at by a process admitting of mathematical precision (see above also at 624).

31. In R v Stirrat [2003] NSWCCA 350, Handley JA (Grove and Adams JJ agreeing) observed at [25]:

However, the basic instruction to this court in Pearce v R (1998) 194 CLR 610 ... is that a sentencing Judge must impose a discrete sentence for each offence. He or she must then assess the overall effect of the sentences in the light of the principal of totality. In a proper case this will require the Judge to reduce the effect of those sentences on the prisoner by adjusting the period to be spent in full-time custody. This must be done so that the sentence does not crush the prisoner having regard to his overall criminality.

32. It seems to us that the sentencing judge had these principles in mind in imposing the sentence that he did. Although the Director of Public Prosecutions was critical of the individual sentences imposed and the concurrency adopted, these seem to be within the range of appropriate sentences open to the sentencing judge.

33. As Refshauge J observed in Hawkins v Hawkins (2009) 3 ACTLR 210 (at 221) it is incumbent on an appellant challenging a sentence as manifestly inadequate (or excessive)

To address the relevant factors, point to the sentencing patterns, with reference where appropriate to particular cases, or to more general statistical material ... and elaborate on the particular facts of the offence, or offences, and the subjective circumstances of the offender from which the court may draw the relevant conclusion.

34. The appellant did provide some reference to other sentences in this jurisdiction. A careful analysis of those sentences, however, does not reveal that the sentences imposed were outside the range of sentences imposed for the offences to which the respondent had pleaded guilty and for which he was to be sentenced.

35. There is no principle of sentencing which necessarily requires that a sentence imposed for an offence committed a second or subsequent time must be more severe than the sentence imposed on the first or earlier offences although that may well be the outcome where the circumstances require it.

36. In these circumstances, the sentences imposed do not manifest error. The overall sentence imposed by the sentencing judge does not appear outside the range open to him for the, admittedly, serious course of criminal offending engaged in by the respondent. It may well be said to be at the lower end but it is not the function of an appellate court to substitute its views for that of the sentencing judge if such views are fairly open to him. The individual approach to the respective instances of criminality may also vary but the sentences imposed for the respective offences before the sentencing judge seem to be generally proportionate to the offending and the extent of the cumulation of them accounts for the overall totality of the criminality represented by the overall result.

37. The Court is not persuaded that the sentence imposed is manifestly inadequate or that the sentencing judge erred.

38. For these reasons the Court dismissed the appeal.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Director of Public Prosecutions (ACT)

(Sentencing) Act 2005

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