Regina v A.

PARTIES : REGINA v A. JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : J S Andrews for the Appellant R E Ellis for the Crown SOLICITORS : T A Murphy for the Applicant S E O'Connor for the Crown CATCHWORDS : Severity of sentence - larceny of motor vehicles - malicious damage to property - obtaining money by deception - accessory after fact to thefts of motor vehicles - possession of implements capable of being used in motor vehicle theft - Discount for assistance. ACTS CITED : s.154AA, S.188, s.178BA, s.344A, s.177, s.195(b) & s.114(1)(b) of Crimes Act 1900 R. v Cartwright (1989) 17 NSWLR 243 CASES CITED: R. v Ellis (1986) 6 NSWLR 603 Pearce v R. (1998) 72 ALJR1416 DECISION : 1 The Court makes the following orders; (1) Order that the applicant be known by the letter "A" and that no material be published which would identify or tend to identify the applicant; (2) Leave to appeal granted; (3) Each sentence quashed; (4) In lieu thereof; (i) on counts 5,6 and 7 on the second indictment ; (all of which were offences of larceny of motor vehicles) the applicant be sentenced to a total term of penal servitude for three and a half years made up of a minimum term of two years and four months to commence on 24 November 1997 and expire on 23 March 2000 and an additional term of one year and two months to commence on 24 March 2000 and expire on 23 May 2001; (ii) on counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 on the first indictment, and counts 1 - 4 in the second indictment and the first count on which the applicant was committed for sentence by the Local Court ; (ie, all remaining offences of larceny of motor vehicles, one offence of stealing, the offences of receiving, and of malicious damage to property); a total term of penal servitude for two years eight months, made up of a minimum term of one year and eight months to commence on 24 March 1999 and expire on 23 November 2000, and an additional term of twelve months to commence on 24 November 2000 and expire on 23 November 2001; (iii) on counts 12, 18, 24, 26 and 27 on the first indictment ; (ie. the offences of obtaining or attempting to obtain money by deception); a fixed term of penal servitude for one year and nine months to be served concurrently with the earlier of the sentences already imposed, that is, to commence on 24 November 1997 and expire on 23 August 1999; (iv) on counts 6 and 25 on the first indictment and counts 8, 9 and 10 on the second indictment; (that is, offences of stealing and the accessorial offences); a fixed term of penal servitude for one year and three months, also to be served concurrently with the sentences earlier imposed, that is, to commence on 24 November 1997 and expire on 23 February 1999; (v) on the second count on which the applicant was committed for sentence (implements possession); a fixed term of penal servitude for three months, also to be served concurrently with the sentences earlier imposed, that is, to commence on 24 November 1997 and expire on 23 February 1998.; (5) The Supplementary Reasons be placed in a sealed envelope within the Court file not to be opened save with the leave of a judge of the Court of Criminal Appeal and that envelope be endorsed accordingly. A copy of the Supplementary Reasons is to be made available to the sentencing judge and to the Director of Public Prosecutions (for perusal by him and his nominated officers) and the solicitor for the applicant for perusal by the applicant's legal advisers and the applicant. They are not to be otherwise published or distributed except with the leave of a judge of the Court of Criminal Appeal.

N THE COURT OF CRIMINAL APPEAL 60639/97 SIMPSON J SMART AJ

JUDGMENT THE COURT: 1 Because of the sensitivity of the material in this matter, the need to avoid harm to the applicant and his family and other proceedings, the Court orders that no material be published which would identify or tend to identify the applicant. A letter has been used in lieu of his name. 2 The applicant seeks leave to appeal against the severity of sentences imposed by the District Court in respect of twenty-four charges of larceny of motor vehicles; twelve of receiving; four of obtaining money by deception and one of attempting to do so; three of stealing property other than motor vehicles; two of malicious damage to property; three of being an accessory after the fact to thefts of motor vehicles; and one of possession of implements capable of being used in motor vehicle theft. He had pleaded guilty to all these charges. 3 The judge sentenced the applicant on the first charge on the first indictment, an offence of larceny of a motor vehicle committed in the latter half of 1994 to a total term of penal servitude for eight years and four months, which, having found special circumstances pursuant to s.5 of the Sentencing Act 1989, he divided into a minimum term of five and a half years and an additional term of two years and ten months. 4 In respect of each of the remaining counts of larceny of motor vehicles, one of the stealing charges, each of the twelve receiving charges and each of the two charges of malicious damage to property, he imposed a minimum term of four years and an additional term of two years; on each of the counts of obtaining and attempting to obtain money by deception, he imposed a minimum term of three years and an additional term of one year; on each of two stealing charges, and each of the three accessorial charges, he imposed a minimum term of two years and an additional term of one year; and on the implements in possession charge he imposed a fixed term of six months. He specified that all sentences were to commence on 24 November 1997 and be served concurrently. 5 The applicant was about 21 years of age when the first offence was committed. The offences continued for about three years. He was involved in an extensive organised car stealing enterprise which had a distinct commercial flavour. Some vehicles were stolen "to order" and others were "re-birthed" for the purposes of sale. The vehicles tended to be expensive and the enterprise covered substantial parts of the State. 6 The applicant began to use mid and low range drugs. Others engaged in the car stealing business involved him. He was useful because of his knowledge of parts of the car industry. 7 After becoming involved, the applicant attempted to extricate himself by moving to a new locality, many miles away, but to no avail. His former associates found him and harassed him, pressing him back into service. He again became active in the criminal syndicate. 8 When he again sought to withdraw, parts of his house were damaged. He was also separately threatened a little later. On a further occasion he was taken to a deserted area and threatened with guns. 9 The applicant was arrested on a number of occasions. Initially, he denied any involvement. After he was first arrested he committed a further eight offences. 10 Shortly after his arrest and questioning on one occasion he was savagely beaten by a group of villains. This included being punched, kicked and attacked with weapons. He needed considerable treatment for his injuries. He was fortunate to have survived the vicious attack. It was believed, albeit wrongly at that stage, that he had told the police about the organisation's activities and those involved. 11 Consequent upon the assault the applicant gave some useful information to the police including disclosures of his own involvement in the theft of a substantial number of motor vehicles of which the police did not already know. The applicant was charged with these offences. 12 The applicant said that he had received some but not a large amount of money. He had made little profit out of his involvement. 13 The applicant's prior record consisted principally of offences in connection with the use of motor vehicles. When aged eighteen, he was convicted of driving in a dangerous manner. He had subsequent convictions for driving whilst unlicensed and negligent driving, and later for driving whilst disqualified and for assault. 14 There were also substantial subjective features in the applicant's favour. Some of these have already been mentioned. One was his youth; another was the circumstances in which he became involved, and another the efforts he made, unsuccessfully, to sever his connection; another powerful factor was the severe assault he suffered. 15 The applicant had a history of behavioural disorder dating back to his primary school days and continuing throughout his adolescence, for which his parents had sought, without benefit, medical advice. 16 A consultant psychiatrist retained by Corrective Services diagnosed drug induced hypomania and bi- polar disorder, possibly also triggered by the use of drugs. When the doctor saw the applicant for the second time, he was complaining of sleep disturbance, weight loss, poor concentration, ideas of hopelessness and suicide. The doctor considered him to be significantly depressed at that time. 17 As a result of this diagnosis, medication has been prescribed for the applicant, which has stabilised his condition. 18 The applicant enjoys the support of his parents and his family. 19 The judge found that the applicant had good prospects for rehabilitation, one express reason for which was the medical stabilisation of his bi-polar condition, and an implied reason for which was the increased stability of his domestic arrangements. Another was his abstinence from illegal drugs. The Sentences 20 The judge recited, in some detail, the circumstances of each offence, and the subjective features already mentioned, including the applicant's history of illegal drug use, and referred quite extensively to the medical evidence. He gave the applicant credit for his co-operation with the authorities and his pleas of guilty. He took into account the applicant's past record, and, in the applicant's favour, his favourable assessment of his prospects of rehabilitation. Also in the applicant's favour he took into account the fact that he had already spent some time, and could expect to serve the whole of his sentence, in protective custody. 21 He considered, correctly, that general deterrence was an important factor in the sentencing determination, particularly having regard to the prevalence and the social and economic impact of motor vehicle theft. He also considered that specific deterrence was an important factor. Again correctly, he thought that retribution, while a relevant factor, was of less importance in the circumstances of this case. 22 Finally, he mentioned the principal of totality and concluded that the application of that principle resulted in the imposition of a total sentence of twelve years. Although he did not spell it out, it seems that he arrived at this figure having regard to the objective circumstances of the offences, the number of charges, the lengthy period and extensive geographical area over which they were committed, balanced against the subjective features, but leaving out of the equation the discount to be awarded for co-operation with the authorities. Having arrived at the sentence of twelve years, he then applied a discount to which the applicant was entitled under s 442B of the Crimes Act 1900 and the principles stated in R v Cartwright (1989) 17 NSWLR 243 specifically in relation to his co-operation with the authorities, and reduced the longest term imposed by 30.5 percent, thus arriving at the sentence of penal servitude of eight years four months. Having found that special circumstances warranting variation of the statutory ratio existed, he sentenced the applicant as set out above (paragraphs 3 and 4). 23 The process by which his Honour arrived at the various individual sentences is not entirely clear, but it seems that, having determined the total sentence appropriate for the overall criminality, and having imposed that sentence in relation to a single offence, he then worked backwards, imposing, in relation to the remaining charges, sentences of less severity. Why the charge first mentioned in the indictment, which was not the first offence in time, nor apparently more serious than any of the other car-stealing charges, was chosen as the charge to carry the heaviest sentence does not appear. No doubt his Honour's principal concern was the retention of the appropriate total effective sentence. The Application for Leave to Appeal 24 It was not argued that any specific error could be identified in the sentencing judge's process of reasoning. Rather it was argued that the sentences (or the lengthier of them) were manifestly excessive in the circumstances, and that either the starting point of twelve years was excessive, or the discount applied was inadequate, or both. The argument centred about the proposition that a total term of eight years and four months (requiring the applicant to serve a minimum term of five and a half years) was, in all the circumstances, excessive. 25 This was an unusual case. The applicant had given a good deal of co-operation, implicating himself in a substantial number of offences of his involvement in which police had no knowledge, resulting in his pleas of guilty to additional charges. That is an important factor, warranting substantial credit in the sentencing process: R v Ellis (1986) 6 NSWLR 603. 26 As mentioned earlier, the subjective circumstances were very strong. Not least of these is the applicant's youth, together with justified optimism about his future conduct, bearing in mind the changes in his previously undiagnosed medical condition, and the recently acquired stability in his domestic life. Not mentioned in the remarks on sentence, or in argument, but of significance, is the degree to which the applicant was coerced into joining and continuing his involvement in the criminal organisation. Balanced against these factors, of course, had to be the objective circumstances which, included the multiplicity of offences and the extended period over which they were committed, the pre-meditation which was plainly a feature, and the prevalence of crimes of this kind with the consequent need for sentences to contain a substantial element of general deterrence. 27 Having regard to all these factors, the starting point of twelve years was too high. The judge did not give adequate recognition to the applicant's disclosure of the substantial number of offences of which police did not have prior knowledge. It is worth repeating what Street CJ said in Ellis : "This Court has said on a number of occasions that a plea of guilty would entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities as well as guilt being established against the person concerned." (604). 28 Of course the Ellis discount should not be overstated. The offences which fall into the category that entitles the applicant to a reduction in his sentence for this reason constitute under one quarter of the total number for which he stood to be sentenced. However, as well as bringing the applicant within the Ellis principle, his voluntary disclosures are weighty evidence of genuine contrition and real prospects of rehabilitation. 29 Moreover, in the special circumstances of this case, specific deterrence was a factor to which little weight should be attached. The applicant's full and frank confessions of offences of which the authorities were not aware is a compelling indication that considerations of specific deterrence were of minimal importance in this case. 30 In addition to disclosing the offences he had committed of which the authorities were not aware the applicant has rendered other valuable assistance to them. It is not appropriate here to canvass this and other matters. The details are included in supplementary reasons to be given to the parties and the sentencing judge but otherwise to be placed in a sealed envelope not to be opened or otherwise published except with the leave of a judge of the Court. The applicant is entitled to a substantial discount for the totality of his assistance. 31 The maximum sentence available for any one of the offences was penal servitude for ten years. Of course, that maximum has to be seen in the light of the number of offences as well as the other matters to which reference has been made. 32 As previously noted the judge began with the sentence for the offence of larceny of a motor vehicle first charged, and worked downwards, proportionately to the seriousness of the generic offences, from there. This meant that, in respect of a single offence that carried a maximum term of penal servitude for ten years, he imposed a sentence that amounted to 83.3 percent of the maximum available. While there is frequently a degree of artificiality injected into the end result when sentences are passed for multiple offences and the principle of totality applied, it is undesirable that the sentence in respect of any individual offence be disproportionate to the seriousness of that offence. It is true that practical justice can be achieved in this way, but this was an occasion on which, if proper assessment of the whole of the circumstances required the applicant to serve a sentence of that length, consideration might have been given to the accumulation of some sentences, rather than the imposition of a sentence in respect to one charge that carried such a high proportion to the maximum available. 33 This view is in accordance with the majority judgment in Pearce v R (1998) 72 ALJR 1416 (which had not been decided when the judge sentenced the applicant) in which McHugh, Hayne and Callinan JJ said: "[45] To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. 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. [46] Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. [47] Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. [48] Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences." 34 For all these reasons and the supplementary reasons the judge's starting point of twelve years was excessive. The discount which he applied with that starting point was too low. Thus the overall term fixed by the judge of eight years and four months and those sentences amounting to a total term of six years fell outside the bounds of a legitimate sentencing discretion. Applying the principles of totality and having in mind the objective circumstances and the strong subjective features but excluding the Ellis reduction and the discount for assistance the sentences properly available fell within the range of eight to ten years in total, allowing for those which should be concurrent and those which should be cumulative. When the reduction and assistance are taken into account the correct total of the sentences is five years. Correctly, there was no challenge to the finding of special circumstances. There should be a minimum term of three years and an additional term of two years. 35 As this court is re-sentencing, it must approach the task in accordance with the dictates of Pearce . The count must determine the appropriate sentence for each offence, and then, having regard to the principle of totality, decide the question of concurrence or accumulation. 36 On the materials, there was no reason to regard the first offence on the first indictment as materially more serious than any of the other offences of larceny of motor vehicle. That offence was committed relatively early in the applicant's involvement. If there were any good reason to distinguish one or more of the car stealing offences from others, it was the escalation of the applicant's involvement and in respect of those offences committed whilst he was on bail. It was, therefore, the latest of the larceny of motor vehicle offences that, logically, warranted the most severe penalty. 37 Even in respect of those offences the applicant is entitled to the relevant discounts. The appropriate sentences for counts 5, 6 and 7 on the second indictment, taking into account all such discounts, is a total term of three and a half years made up of a minimum term of two years and four months and an additional term of one year and two months. The minimum terms should commence on 24 November 1997. Those sentences do not adequately reflect the total criminality but they are proper sentences for the facts and circumstances of those charges. On each of the remaining motor vehicle larceny charges, the applicant should be sentenced to a total term of two years and eight months, made up of a minimum term of one year eight months and an additional term of twelve months. Having regard to the principle of totality, these sentences should be concurrent with one another but partly accumulated on those already mentioned, so as to result in a total overall sentence of five years made up of a minimum term of three years and an additional term of two years. 38 Once that result is achieved, it is unnecessary to specify minimum and additional terms for the remaining charges. As all will be subsumed in the major sentences, it is appropriate to impose fixed terms. 39 These sentences are heavily discounted for the reasons set forth both in these reasons and the supplementary reasons and should not be taken to reflect the ordinary approach to sentencing in a case of this magnitude. This case had very unusual features. 40 The Court makes the following orders: (1) Order that the applicant be known by the letter "A" and that no material be published which would identify or tend to identify the applicant. (2) Leave to appeal granted. (3) Each sentence quashed. (4) In lieu thereof: (i) on counts 5,6 and 7 on the second indictment : (all of which were offences of larceny of motor vehicles): the applicant be sentenced to a total term of penal servitude for three and a half years made up of a minimum term of two years and four months to commence on 24 November 1997 and expire on 23 March 2000 and an additional term of one year and two months to commence on 24 March 2000 and expire on 23 May 2001. (ii) on counts 1, 2, 3, 4, 5, 7, 9, 10, 11, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 on the first indictment, and counts 1 - 4 in the second indictment and the first count on which the applicant was committed for sentence by the Local Court: (ie, all remaining offences of larceny of motor vehicles, one offence of stealing, the offences of receiving, and of malicious damage to property) a total term of penal servitude for two years and eight months, made up of a minimum term of one year and eight months to commence on 24 March 1999 and expire on 23 November 2000, and an additional term of twelve months to commence on 24 November 2000 and expire on 23 November 2001. (iii) on counts 12, 18, 24, 26 and 27 on the first indictment : (ie. the offences of obtaining or attempting to obtain money by deception) a fixed term of penal servitude for one year and nine months to be served concurrently with the earlier of the sentences already imposed, that is, to commence on 24 November 1997 and expire on 23 August 1999. (iv) on counts 6 and 25 on the first indictment and counts 8, 9 and 10 on the second indictment : (that is, offences of stealing and the accessorial offences) a fixed term of penal servitude for one year and three months, also to be served concurrently with the sentences earlier imposed, that is, to commence on 24 November 1997 and expire on 23 February 1999: (v) on the second count on which the applicant was committed for sentence (implements possession): a fixed term of penal servitude for three months, also to be served concurrently with the sentences earlier imposed, that is, to commence on 24 November 1997 and expire on 23 February 1998. (5) The Supplementary Reasons be placed in a sealed envelope within the Court file not to be opened save with the leave of a judge of the Court of Criminal Appeal and that the envelope be endorsed accordingly. A copy of the Supplementary Reasons is to be made available to the sentencing judge and to the Director of Public Prosecutions (for perusal by him and his nominated officers) and the solicitor for the applicant for perusal by the applicant's legal advisers and the applicant. They are not to be otherwise published or distributed except with the leave of a judge of the Court of Criminal Appeal. **********

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