REGINA v. GRUBE [2005] NSWCCA 140

Ground of appeal, count 3: excessive sentence 19 It was submitted on behalf of the applicant that a sentence of seven years imposed for count 3 was excessive. It was pointed out on behalf of the applicant that the 42 Form 1 offences included 35 similar offences where the value of property considerably exceeded the amount of property involved in the principal offence, which offence was central in the sentencing process. 20 Senior counsel for the applicant, Mr Haesler, SC. appropriately conceded that there could be no complaint that the use of the particular Form 1 offences must result in a "substantial" increase in the otherwise appropriate sentence, citing in this respect dicta of Spigelman, CJ. in Attorney-General's application under s.37 of the Crimes (Sentencing Procedure) Act 1999 [2002] 56 NSWLR 146 [18]. The applicant's submission was, however, that the increase was not a sentence for the offences on the Form 1 and it could only reflect in the sentence for the principal offence the need for personal deterrence and the community's entitlement to retribution (citing again dicta of Spigelman, CJ. in Attorney-General's application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (supra at [42], [43]). It was conceded, however, that given the amount of property taken by the applicant and his antecedents, these factors could be regarded as substantial (Applicant's written submissions, paragraph 26). 21 However, the central argument on the application for leave in this respect was that such factors should not lead to a sentence for the principal offence, which is out of all proportion to that which would reflect the objective seriousness of that offence and that:- "There must be some relativity between the offence and the sentence. The simple offence of break and enter at Morrison Avenue, Wombarra did not, even if the additional factors relating to the Form 1 are properly taken into account, justify a sentence of seven years and an additional three years non-parole period being added to the existing five years imposed for the other two offences." 22 Senior counsel for the applicant conceded that as the non-parole period of three years was partially concurrent, it was an effective non-parole period of two years. 23 The submission accordingly was that there must have been double counting involved as personal deterrence and retribution had already been taken into account in assessing the other two sentences imposed. 24 The conclusion to be drawn, so the argument ran, was that the learned sentencing judge either erred in taking too high a starting point before making allowances for the guilty pleas and the subjective factors, or in the process of accumulation, arrived at an overall sentence that was simply excessive (written submissions, paragraph 29).

Application of s.33 and the (Division 3 of Part 4) Guideline Judgment to the Form 1 offences 25 Senior counsel for the applicant sought to support his submissions by reference to the Div 3 of Part 3 guideline judgment of Spigelman, CJ. in Attorney-General's application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (supra). In doing so, particular attention was drawn to a number of propositions to be found in the judgment of Spigelman, CJ. including the following:- • The sentencing court is sentencing only for the 'principal offence' [39]; • The important point is that the focus throughout must be on sentencing for the primary offence [43]; • A sentencing judge is not imposing punishment for Form 1 offences [29]. • The process under the statutory scheme in Division 3 Part 3 of the Act involves a process under which a longer sentence may be imposed than if the primary offence had stood alone [18]; • Sometimes the additional penalty will be substantial [18]. 26 Central to the applicant's argument then was the notion that there is a concept of relativity or proportionality between the principal offence and the sentence that could be imposed when account is taken of the Form 1 offences and that such proportionality is one "which would reflect the objective seriousness of that offence" (applicant's written submissions, paragraph 27). Thus in relation to count 3, the particular offence involving the premises at Morrison Avenue, Wombarra and the seriousness of that offence had to be given appropriate recognition and weight in preserving what was suggested as the necessary relativity or proportionality. 27 Mr. Haesler, SC. sought to maintain this submission by reference to the hypothetical example put to him by Howie, J. during the course of oral submissions. The example involved a hypothetical case where the appropriate range for the principal offence (apart from Form 1 offences) was between 3 and 5 years. Senior counsel sought to contend that his submission meant that the inflation or increase in the sentence to be imposed for the principal or primary offence by reason of the Form 1 offences being taken into account would not exceed the upper end of the range of 3 to 5 years range. This result, it was contended, was supported by the principles stated by Spigelman, CJ. in the guideline judgment to which reference has already been made, in particular, that part of it which states that "the focus" must be on the "principal offence" alone (see paragraph 29 in the judgment of Spigelman, CJ. and also paragraph 43). 28 I am unable to accept this submission. It involves, in my respectful opinion, a misapplication of the principles enunciated by Spigelman, CJ. in the judgment as to the correct approach to be taken when a court is required to take into account matters on a Form 1. 29 It is fundamental, as Spigelman, CJ. observed in the guideline judgment, that the court must give effective to the statutory regime (paragraph 23). Examination of the provisions of Division 3 Part 3, supports the following propositions.

• The only upper limit on a penalty which a court taking a further offence or offences into account may impose for the principal offence is the one expressed in s.33(3), namely, the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken account. This is in line with the approach to sentencing that formerly existed under s.447B of the Crimes Act 1900, which was comparable to the provisions of s.33 of the 1999 Act in respect of which Campbell, J. in Regina v. Vougdis (1989) 41 A. Crim. R. 125 at 129 stated:- "I do not consider that there is any limitation as to penalty placed by practice or principle upon the sentence where matters are taken into account under a ninth schedule, other than that provided for in the section itself."

• A limitation exists upon the nature of certain offences that may be taken into account under s.33(4).

• There is no provision within Division 3 Part 3 that expressly, or by implication, invokes notions of proportionality or relativity as was submitted on behalf of the applicant in the present application. 30 When discussing the subject of the selection by a prosecutor of matters to be included in a list of additional charges specifying other offences Spigelman, CJ. observed at paragraph [47] "…nor is there any statutory indication of any desirable, let alone necessary, relationship between a principal offence and offences on such a list." I appreciate that the absence of any relativity or relationship between offences is different from the point under discussion. However, it does point to a measure of independence between the principal offence and Form 1 offences for sentencing purposes. 31 Whilst as Spigelman, CJ. stated in the guideline judgment the focus throughout must be on sentencing for the primary offence, the term focus (in the sense of 'concentrate on') does not in itself involve or import a concept of constraint or relativity in the way in which the applicant has submitted. It is to be observed in this respect that the Chief Justice in the preceding paragraph in the judgment [42] identifies two elements in particular that are always material in the sentencing process, namely, the elements of personal deterrence and retribution and are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the particular or principal offence. In this respect Spigelman, CJ. also identified two matters that limit the extent to which this is so. First the express provisions in s.33(3) (referring to the maximum penalty for the primary offence). Second, the principle of totality. 32 Whilst the focus must be on sentencing for the primary or principal offence which in turn will require attention to be given to a number of factors, including the objective seriousness of the offence, that particular focus does not necessarily act as a limiting or constraining factor or device to prevent the imposition of a penalty that is above what might be considered to be the appropriate range for the principal offence. Thus in the hypothetical example posed by Howie, J. in argument, taking into account matters on a Form 1 may well put the appropriate penalty above the range of 3 to 5 years that would otherwise apply to the principal offence. An appeal to notions of proportionality or relativity is then neither supported by the terms of Division 3 of Part 3 nor by the principles as stated by the Chief Justice in the guideline judgment. 33 Moreover, this conclusion is in conformity with accepted principles. In Regina v. Barton (2001) 121 A. Crim. R. 184, 194, Spigelman, CJ. stated:- "In the present context it is clear that the provisions of the statutory regime to which I have referred must have the effect of resulting in a longer sentence or greater penalty than would have been the case if one was dealing only with what is referred to as the primary offence. This has been frequently acknowledged in the authorities ( Regina v. Bachelor (1952) 36 CAR 64 at 67-68; Regina v. White (1981) 28 SASR 9 at 12-14; and Regina v. J (1992) 59 SASR 145 at 152 [17]-[19]." 34 There is only one other observation to make before turning to the sentence in question. In the guideline judgment the only issue of proportionality mentioned by Spigelman, CJ. was in relation to the subject of offences that are appropriately to be included in a Form 1. It may not be appropriate, for example, to include a diverse range of offences to the primary or principal offence. After referring to a number of authorities on the point the Chief Justice observed: "These various observations reflect the difficulties involved in the intellectual exercise of 'taking into account', in a particular respect, matters which may appear to be disproportionate or not comparable to the primary matter under consideration." 35 Accordingly, applying the provisions of Division 3 of Part 3 to the facts of the present matter, I do not believe that the imposition of a sentence of seven years for count 3 and an effective non-parole period of two years was excessive, when due regard or focus is maintained throughout on sentencing for the principal offence and additionally the Form 1 offences are taken into account. 36 Many of the 42 offences on the Form 1 involved invasions of residential premises and property stolen was of considerable value. When the court is required to take into account a multiplicity of serious offences, as in this case, it is required to allow for the total criminality revealed by the whole course of the offender's conduct as appropriately reflected in the sentence. If there was, as argued in the present application, a requirement to apply a proportionality or relativity concept, then in some circumstances, including those that arise in the present matter, there would be a risk of the imposition of a penalty that did not adequately reflect the total criminality. The seriousness of such an outcome is apparent for it would potentially, if not actually, tend to bring the administration of justice into disrepute in certain cases by mandating a process or approach that produced a manifestly inadequate sentence determined on an unduly narrow or artificial basis. 37 The number and magnitude of the offences in the Form 1 in the present matter, in my opinion, justified the sentence imposed by Patten, DCJ. which increased the sentence that was appropriate for the principal offence to reflect the total criminality that took place over a considerable period of time arising from so many offences committed over a widespread geographical area in Sydney and beyond. Patten, DCJ. was required to have regard to the elements of personal deterrence and retribution in relation to the Form 1 offences and I believe he did so without any double counting as asserted by the applicant. 38 I accordingly am of the opinion that the sentence imposed was not manifestly excessive. 39 I would dismiss the application. **********

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