R v Toumo'ua [2017] ACTCA 9

[2017] ACTCA 9

Court of Appeal (ACT)|2017-03-22|Before: Murrell CJ, Rangiah J and Walmsley AJ

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Court of Appeal (ACT)

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2017-03-22

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Murrell CJ, Rangiah J and Walmsley AJ

Catchwords

APPEAL – Criminal Law – Crown appeal against sentence –
nature of Crown appeal – whether specific error in
allowing a discount of
25 per cent for each guilty plea – approach to discount for guilty pleas

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Original judgment source is linked above.

Catchwords

APPEAL – Criminal Law – Crown appeal against sentence –nature of Crown appeal – whether specific error inallowing a discount of25 per cent for each guilty plea – approach to discount for guilty pleas– whether sentenceswere manifestly inadequate – whether specificerror in setting a low nonparole period – re-sentence

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Authorised report: 12 ACTLR 103

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL Case Title: R v Toumo’ua

Citation: [2017] ACTCA 9

Hearing Date: 24 February 2017

Decision Date: 22 March 2017

Before: Murrell CJ, Rangiah J and Walmsley AJ

Decision: 1. Appeal allowed. 2. Sentences imposed by the primary judge set aside. 3. Respondent re-sentenced to a total of 6 years’ imprisonment (see [113]–[114]). 4. Nonparole period of 3 years’ imprisonment.

Catchwords: APPEAL – Criminal Law – Crown appeal against sentence – nature of Crown appeal – whether specific error in allowing a discount of 25 per cent for each guilty plea – approach to discount for guilty pleas – whether sentences were manifestly inadequate – whether specific error in setting a low nonparole period – re-sentence

Legislation Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 Cited: Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10(2)–(3), 33(1), 35, 65 Crimes Act 1900 (ACT) s 114B Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(g) Criminal Appeal Act 1912 (NSW) s 5D Criminal Code 2002 (ACT) ss 308, 311 Human Rights Act 2004 (ACT) ss 22(2)(i), 30 Supreme Court Act 1933 (ACT) ss 37E(2)(a), 37)(1)(b), 37O(7)

The prosecution may appeal against a sentence pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA). Leave is not required. On such an appeal, the Court of Appeal is empowered to increase or decrease the sentence and substitute a different sentence: s 37O(7).
The SCA does not distinguish between a prosecution appeal against sentence and an offender appeal against sentence; it does not prescribe a different approach to the institution of the appeal, the establishment of error or re-sentencing.
However, on many occasions this Court has said that, whereas an offender appeal is concerned with the correction of error in a particular case, a Crown appeal against sentence should be a rarity, brought for the purpose of laying down principles for the general governance and guidance of courts: Thomson v R [2015] ACTCA 16 at [68] per Murrell CJ and Ross J, citing CMB v Attorney-General (NSW) [2015] HCA 9; 317 ALR 308; R v Duffy [2014] ACTCA 53; 297 FLR 359 at [54]–[60].
A number of NSW decisions deal with s 5D of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act), which provides that, on a Crown appeal, the appellate court “may in its discretion vary the sentence”. The decisions include: R v Baker [2000] NSWCCA 85 (Baker); R v Lachlan [2015] NSWCCA 178; and R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 (Hatzisavvas). In Hatzisavvas, Hoeben CJ at CL confirmed that, under s 5D Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with the sentence even if it is erroneously lenient: at [70], citing Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] (Green). In Green, the High Court considered the proper approach to a Crown appeal in NSW, where s 5D applies. At [1]–[2] and [42]–[43], the majority (French CJ, Crennan and Kiefel JJ) confirmed that, in the case of a Crown appeal where manifest inadequacy is established, the Court may nevertheless exercise its residual discretion to dismiss the appeal where injustice would flow if the appeal was allowed. Factors such as parity with an inadequately sentenced co-offender, imminent release to parole or the effect of re-sentencing on progress towards rehabilitation were identified as relevant to the exercise of the residual discretion.
However, as noted above, in this jurisdiction the SCA does not distinguish between re-sentencing in the case of a successful prosecution appeal and re-sentencing in the case of a successful offender appeal. In R v Chatfield [2012] ACTCA 32, this Court held that s 7(1)(a) of the Sentencing Act has an effect that is similar to s 16A(1) of the Crimes Act 1914 (Cth). One consequence is that, as the High Court held in Bui v Director of Public Prosecutions [2012] HCA 1; 244 CLR 638, when the issue of re-sentencing arises following a successful prosecution appeal, the Court must disregard any “principle” of double jeopardy (presumed anxiety and distress associated with re-sentencing) and impose a sentence that constitutes adequate punishment. A related consequence is that, as explained in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell), the Court should re-sentence by exercising the sentencing discretion afresh, rather than merely confirming the original sentence on the basis that it fell within the available range: at [42] per French CJ, Hayne, Bell and Keane JJ.

In January 2012, the respondent began to work for the Tibbitts’ family security company in Canberra. The company was contracted by firms who provided security services to banks and other financial institutions. It serviced automatic teller machines (ATMs) in the ACT and regional NSW.
At the time of the offences, the respondent was second in charge to the principal, Mr Tibbitts. On 13 May 2013, pressing family concerns required Mr Tibbitts to travel interstate at short notice. He left the respondent in charge of the business.
That night, the respondent attended the business premises. With his head and face concealed so that he could not be identified via closed circuit television, he removed keys to bank ATMs from the safe. The respondent also took the keys for a Hyundai business vehicle that was kept at the premises.
The respondent drove the Hyundai vehicle to Charnwood, where he entered a St George Bank ATM bunker. Using the keys that he had taken and passwords that had been entrusted to his employer, he removed about $212,000. From there, he drove to a St George Bank bunker at Mitchell and removed about $246,000. Next, he went to Wanniassa, where he removed about $73,000 from another ATM. The total amount appropriated in the ACT was $531,330. That night, the respondent also removed $244,010 from a St George Bank ATM bunker in Queanbeyan, New South Wales. The respondent abandoned the Hyundai vehicle in the suburb of Holder.
On 19 May 2013, a co-offender hired a Holden vehicle at Canberra Airport and the respondent drove to Melbourne, taking the stolen cash with him. There, the respondent’s cousin leased a storage unit in her own name for 12 months, which the respondent used to store incriminating documents and cash. Between May and October 2013, he laundered much of the proceeds of the theft through betting. Most bets were placed with Tabcorp, a company that permits customers to operate telephone betting accounts.
It was several months before the respondent was identified as the culprit. During this period, other staff members suffered the adverse psychological effects of being under a cloud of suspicion. Mr Tibbitts and his family experienced severe psychological effects and their business was financially devastated. Clients were lost, and the business went into liquidation, with the consequence that about 15 staff lost employment, debts were incurred, Mr Tibbitts became depressed and family relationships were placed under pressure. Obligations under vehicle leases and legal fees caused direct losses of more than $30,000.
Ultimately, police recovered $193,782 in cash. They collected a further $152,249 from a successful bet (with a face value $52,758) that the respondent had placed on the 2013 AFL Grand Final.

The primary judge observed that the offences were all “serious offences”.
Her Honour noted that, although the burglaries related to commercial rather than domestic premises, the indirect effect of the burglaries (both psychological and financial) on the owners of the family business “was far more dramatic than the impact of most domestic burglaries”: at [26]. Her Honour referred to “a carefully planned course of offending for financial gain”; the offences were not committed on the spur of the moment: at [63]. On the other hand, most of the offences occurred over a relatively short period of a couple of hours and did not entail “the sustained and repeated acts of dishonesty involved in many cases in which employees have stolen large sums”: at [28].
The primary judge considered that the offences involved a “dramatic” abuse of trust, particularly because Mr Tibbitts had left the respondent in charge so that he could attend to a pressing personal problem: at [29]. The abuse of trust was twofold; there was an abuse of the trust of both the respondent’s employer and the employer’s clients, from whom the respondent stole a large sum of money, which was only partially recovered.
We accept the appellant’s submission that the primary judge’s characterisations of the burglaries as “around mid-range seriousness” and the theft as “slightly above mid-range seriousness” were, at least, conservative: at [46].
However, we consider it most unlikely that the sentences were influenced by the primary judge’s views in relation to “mid-range seriousness”. Rather, her Honour sentenced the respondent by reference to relevant specific matters bearing upon objective seriousness. Consequently, it is unnecessary to give this matter further consideration, other than to observe that references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.
We can identify no error in the primary judge’s approach to the assessment of the objective seriousness of the offences that is likely to have influenced the sentencing outcome and the appellant did not contend that there was such an error.

In R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 (Borkowski), Howie J (McClellan CJ at CL and Simpson J agreeing) restated the principles applicable to discounts in New South Wales.
The NSW Court of Criminal Appeal has held that, generally speaking, the reason for delay in indicating a plea is irrelevant because the mere fact that a plea of guilty is not forthcoming means that the utilitarian value is reduced: see, for example, R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 at [11]; Borkowski at [32]; and Shine v The Queen [2016] NSWCCA 149 (Shine) at [111].
However, more recently, the Court has emphasised that particular circumstances may mean that the degree of discount is not dictated just by the timing of a plea of guilty. In particular, it may be unreasonable to expect an offender to indicate a plea of guilty before their fitness to plead has been determined and before expert evidence has been obtained to determine whether they may have a defence of mental impairment: Haines v The Queen [2016] NSWCCA 90; Shine at [114]. In Barbieri v The Queen [2016] NSWCCA 295 (Barbieri) at [95], Simpson AJ said that s 22 was “susceptible of a less rigid interpretation than may appear to be derived from decisions such as Thomson and Houlton and Borkowski.”
In Milat v The Queen [2014] NSWCCA 29, the Court of Appeal found no error where the sentencing judge had allowed no discount for an early plea of guilty because the offender posed a substantial risk of violent re-offending and was a serious potential danger to the community. At [84], R A Hulme J (with whom Bathurst CJ and Hall J agreed) clarified that there are rare cases where the policy of transparency in allowing quantified discounts on sentence to encourage early pleas of guilty need not be applied because of exceptional circumstances. Such cases include those where protection of the public requires a long sentence and those which so offend the public that the maximum sentence without any discount is appropriate, notwithstanding the plea.

However, the ACT statutory scheme does differ from that in NSW. Where the NSW provision requires the sentencing court to consider the fact and timing of the plea and “the circumstances” in which the offender indicated an intention to plead guilty, the ACT provision is much more prescriptive. In addition to requiring the sentencing court to consider “the circumstances” in which a plea was entered or indicated, the ACT provision requires the sentencing court to consider particular circumstances, i.e. whether negotiations have occurred, the seriousness of the offence, the effect on victims and others entitled to make a victim impact statement, and whether the prosecution case “was overwhelmingly strong”.
It is necessary to consider whether and in what way those particular circumstances detract from a focus on rewarding a plea of guilty according to its timing and general circumstances, and the associated utilitarian value.
Where possible, ACT statutory provisions are to be interpreted consistently with the Human Rights Act 2004 (ACT) (HRA): s 30. Section 22(2)(i) of the HRA provides a “minimum guarantee” that a person charged with a criminal offence will “not be compelled to testify against himself or herself or to confess guilt”. As in Monfries (at [45]), in this case we have not been asked to consider the impact (if any) of s 22(2)(i) on the interpretation of s 35 of the Sentencing Act. Nor have we revisited what may be a related question: the proper approach to a sentencing discount in situations where s 16A(2)(g) of the Crimes Act 1914 (Cth) applies. The interpretation of s 16A(2)(g) (which invites a discount for “the fact” of a plea of guilty to a Commonwealth offence, without elaboration) in the context of the principle of equal justice under the law is controversial. In Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208; 298 FLR 397 (Gow), Basten JA departed from NSW Court of Criminal Appeal decisions such as Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 (Tyler) which suggested that, when sentencing for a Commonwealth offence, there should be no discount for utilitarian value. Notwithstanding Gow, in R v Saleh [2015] NSWCCA 299, Beech-Jones J opined that Tyler “represents the applicable law in this Court”: at [5]. This Court considered Basten JA’s reasoning in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (Harrington), and Refshauge ACJ and Gilmour J opined that, on this point, Basten JA’s decision was “clearly wrong”: at [131]. But in Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237, the Victorian Court of Appeal concluded that s 16A(2)(g) does permit a discount for the utilitarian value of a plea to a Commonwealth offence. Further, in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [31], the plurality (French CJ, Hayne, Kiefel and Bell JJ) suggested that the utilitarian value of a plea of guilty was relevant, although the comment was obiter dicta, and was made in a different context.

What is the purpose of s 35(2)(d) of the Sentencing Act (“the seriousness of the offence”)? The seriousness of a charge is indicated by the maximum penalty, a critical parameter for the sentencing court. The seriousness of the particular offence before the sentencing court is taken into account when assessing its objective seriousness as compared to other offences of its type. These matters are crucial to determining both the starting point for the head sentence and the actual head sentence after discount, both as a matter of general principle and pursuant to s 35(6) of the Sentencing Act. In those circumstances, what work is left for s 35(2)(d)?
The Explanatory Statement is silent about the purpose of s 35(2)(d) and how it is to be applied. Is an offender to receive a greater discount for the utilitarian value of pleading guilty to a serious offence which, because serious offences are often associated with longer and more complex trials, may have spared the community the cost of such a trial and spared the victim from being re-traumatised? Or is the offender to receive a lower discount for pleading guilty to a more serious offence because such offences often call for greater community protection? Both approaches are unsatisfactory; the first disadvantages less serious offenders and the second tends to disadvantage more serious offenders, and may be financially costly to the community and psychologically costly for victims.
In New South Wales, in Thomson, the Court said that the strength of the prosecution case had no bearing on the discount given for utilitarian considerations: at [136]. Spigelman CJ acknowledged that exceptional complexity and trial duration (often associated with more serious offences) may justify a higher discount, and that protection of the public from dangerous offenders (generally associated with more serious offences) may require a longer sentence and hence no discount: at [156]–[158] (see above [44]). However, the fact that an offence is a serious offence of its type is usually reflected in the starting point for the sentence and, of itself, is not a reason to refuse a discount for the utilitarian value of the plea: R v El- Andouri [2004] NSWCCA 178 at [35].
While the seriousness of an offence, trial length/complexity, and protection of the public from dangerous offenders tend to be associated, each consideration is different from, and not necessarily associated with, the others. In New South Wales, the seriousness of an offence does not affect the discount, but trial length/complexity and protection of the public from dangerous offenders may affect the discount.
In contrast, in this jurisdiction, the seriousness of the offence must be considered by the sentencing court under s 35(2)(d) of the Sentencing Act.
In this case, we are not required to decide the way in which s 35 (2)(d) may affect a s 35 discount. The appellant did not argue that, when assessing the discount, the primary judge erred in her approach to this consideration.

At [65]–[67] of the primary judge’s decision, under the heading of “Pleas of guilty”, her Honour noted the history of negotiations between the parties, before stating:
I understand that the Crown accepts these pleas as having been entered as soon as possible after negotiations had been completed. I also note that they did come before any trial date had been set, and avoided what would undoubtedly have been a long and difficult trial. The original witness list identified 35 witnesses to be called in the Crown case, with another 150-odd whose evidence would be tendered through the informant unless the defence required them to appear, and the original estimated duration for the trial was up to 4 weeks. 67. Sentencing discounts will be provided in recognition of the utilitarian value of the pleas. I also accept the pleas as some indication of remorse.
It is apparent that at least three considerations informed the primary judge’s assessment of the appropriate discount for the pleas of guilty.
First, her Honour considered the relationship between the pleas of guilty and the negotiations. Her Honour considered that a plea of guilty entered as soon as possible after negotiations were completed was to be rewarded in the same way as a plea of guilty entered soon after the original charges were laid.
As noted above, in this case the negotiations secured an amended indictment that was more favourable to the respondent in that it contained fewer charges, but there was no substantial change in the subject matter covered by the charges. For the reasons explained in [55]–[56], the respondent was entitled to the benefit of being sentenced on the negotiated charges, but there was no additional entitlement to a s 35 discount on the basis that the pleas of guilty were entered at the earliest reasonable opportunity; the timing of the plea was to be assessed by reference to the charge date, not the date when the indictment was finalised after negotiation.
Second, her Honour took into account the utilitarian value of avoiding a lengthy and complex trial. Her Honour was right to take this consideration into account.
Third, her Honour factored the consideration of remorse into the discount for a plea of guilty. It was inappropriate to do so; remorse is a separate consideration to be taken into account when fixing the starting point for the head sentence and it may also be relevant to the nonparole period.
The result was that the respondent received a discount of 25 per cent. As explained in Monfries, in this jurisdiction a 25 per cent discount is generally reserved for cases in which a plea of guilty is entered at an early stage. In exceptional circumstances, it may apply in other cases. However, this was not such a case.

The appellant submitted that the primary judge imposed an inadequate nonparole period as a result of a specific error in approach; her Honour said that there was a “practice if not actually a principle ... that for offences such as these where an offender is not apparently a direct danger to the community, a relatively low period of full-time custody may be adequate”: at [76]. Her Honour stated that she would “recognis[e] the practice” by enabling the respondent to be released after serving a relatively low proportion of the head sentence: at [77].
The primary judge said that she was unable to predict how the appellant would cope or behave in custody. Consequently, her Honour decided to set a nonparole period rather than suspend part of the sentence. Her Honour was concerned to provide an incentive for the appellant to be of good behaviour while in custody and to make the most of his custodial time. Accordingly, her Honour imposed what she described as “a relatively short” nonparole period of 20 months’ imprisonment, one third of the total sentence: at [78]. Consideration of ground concerning nonparole period
A sentence of any type is to be imposed for one or more of the purposes set out in s 7 of the Sentencing Act (adequate punishment, general and personal deterrence, community protection, rehabilitation, accountability, denunciation and recognition of harm to the victim and the community).
A sentence of imprisonment is to be imposed only “if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate”: Sentencing Act s 10(2). A sentence of imprisonment “must be served by full-time detention at a correctional centre”, unless the sentencing court “orders otherwise”, e.g. by making an intensive correction order or a suspended sentence order: s 10(3).
Section 65 of the Sentencing Act requires a sentencing court to set a nonparole period when imposing a total term of imprisonment of one year or longer (disregarding any period for which the sentence is suspended). At the conclusion of the nonparole period, the offender is eligible to be released to parole and to serve the balance of the sentence in the community.
The Sentencing Act says nothing about the length of a nonparole period, its purpose or its relationship to the total head sentence, although s 65(4) provides:

Recently, in Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47], Hoeben CJ at CL (Latham and Price JJ agreeing) emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term. Further, the need for rehabilitation had to be balanced against the overarching requirement (in that case, found in s 16A(1) of the Crimes Act 1914) that the sentence be of a severity appropriate in all the circumstances of the offence.
In Taylor v The Queen [2014] ACTCA 9 at [19], this Court summarised the proper approach to fixing a nonparole period as follows:
A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536. 2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532. 3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625. 4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods.
In this jurisdiction, the considerations that are relevant to fixing a nonparole period are to be found in ss 7 and 33 of the Sentencing Act and understood in the context of the above cases.
In fixing a nonparole period, it is generally important to focus on the offender’s prospects of rehabilitation, although other s 7 sentencing purposes should not be forgotten. In the case of white collar offences, the fixing of a very low nonparole period may undermine the sentencing purpose of general deterrence, which is often important in such cases.
Ordinarily, a nonparole period should constitute a substantial part of the total sentence. In some cases, a nonparole period of less than 50 per cent of the total sentence may bear an appropriate relationship to the total sentence. However, when an unusually low nonparole period is set, the sentencing court should explain why, in the particular case, it considers that the low nonparole period bears an “appropriate relationship” to the total sentence and is therefore a proper exercise of the sentencing discretion.
In this case, the primary judge explained the unusually low nonparole period by reference to a “practice if not actually a principle” that offenders who represent no apparent “direct danger” to the community should receive a relatively short nonparole period. There is no such practice or principle. One of the sentencing purposes in s 7 of the Sentencing Act is protection of the community from the offender: s 7(1)(c). If that is the matter to which her Honour was referring, then she was entitled to consider it when fixing the nonparole period. However, the s 7(1)(c) purpose would usually be reflected in a higher nonparole period for an offender from whom the community needed to be protected, rather than a very low nonparole period in the case of an offender from whom the community needed little protection.
The manner in which the primary judge fixed the nonparole period involved error, with the result that the nonparole period lacks an “appropriate relationship” to the total sentence.

R v Toumo'ua [2017] ACTCA 9

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