REGINA v Jason Leslie HORNE

Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Justices Act 1902 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 Dinsdale v R [2000] HCA 54; 202 CLR 321 Lowe v The Queen (1984) 154 CLR 606 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Allpass (1994) 72 A Crim R 561 R v Dickson [2002] NSWCCA 327; 132 A Crim R 137 R v Hammoud (2000) 118 A Crim R 66 CASES CITED : R v McIvor [2002] NSWCCA 490 R v Ponfield (1999) 48 NSWLR 327 R v Robinson [2000] NSWCCA 182 R v Steff (1997) 96 A Crim R 1 R v Thomson [2000] NSWCCA 309; 49 NSWLR 383 R v Tisilandis [1982] 2 NSWLR 430 R v Thomson, Court of Criminal Appeal, unreported, 21 May 1986 R v Hauser, Court of Criminal Appeal, unreported, 11 December 1997 PARTIES : REGINA (Appellant) Jason Leslie HORNE (Respondent) FILE NUMBER(S) : CCA 60329/03 COUNSEL : G Rowling (Crown) P Byrne SC (Respondent) SOLICITORS : S Kavanagh R Hill (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0075 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60329/03

BEAZLEY JA O'KEEFE J BELL J

Friday 19 March 2004 REGINA v Jason Leslie HORNE Judgment 1 BEAZLEY JA: I agree with Bell J. 2 O'KEEFE J: I agree with Bell J. 3 BELL J: This is an appeal brought by the Director of Public Prosecutions against the inadequacy of sentences imposed on the Respondent by his Honour, Judge Goldring (the Judge) at the Wollongong District Court on 1 August 2003. On that occasion the Respondent appeared for sentence on one charge of escaping from lawful custody and four charges of breaking, entering and stealing in circumstances of aggravation (aggravated breaking, entering and stealing). 4 The offence of escaping from lawful custody was charged pursuant to s 310D(a) of the Crimes Act 1900 and carries a maximum penalty of ten years' imprisonment. The offence of aggravated breaking, entering and stealing is provided by s 112(2) of the Crimes Act and carries a maximum penalty of twenty years' imprisonment. 5 For the offence of escaping from lawful custody, the Respondent was sentenced to a term of imprisonment for eight months, commencing on 4 February 2003 and expiring on 3 October 2003. 6 For the offences of aggravated breaking, entering and stealing the Respondent was sentenced to concurrent terms of three years' imprisonment, commencing on 4 October 2003 and expiring on 3 October 2006. A non-parole period of twenty months, commencing on 4 October 2003 was specified. The non-parole period in each case will expire on 3 June 2005. 7 In relation to one of the counts of aggravated breaking, entering and stealing the Respondent asked the Judge to take into account thirteen offences that were described in a Form 1 document under s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). 8 The circumstance of aggravation relied upon in relation to each of the four charges of breaking, entering and stealing was that the offence was committed in company. The co-offender in each case was the Respondent's de facto wife, Melissa Edwards. 9 The offences of aggravated breaking, entering and stealing occurred between 30 June and 18 July 2002. Each involved the forced entry into a private home located on the Southern Tablelands and the theft of property of considerable value. The interior of the premises was in each case ransacked. 10 The offences set out in the Form 1 comprised three charges of being carried in a conveyance without the consent of the owner contrary to s 154A(1)(b) of the Crimes Act, one count of taking and driving a conveyance without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act, five charges of breaking, entering and stealing contrary to s 112(1) of the Crimes Act and four charges of breaking, entering and stealing in circumstances of aggravation contrary to s 112(2) of the Crimes Act. In each of the latter group of offences the circumstance of aggravation was that the offence was committed in company with the co-offender, Melissa Edwards. Three of the aggravated breaking, entering and stealing offences were associated with the criminal spree embarked upon by the Respondent and Melissa Edwards in June and July 2002 and also involved the breaking into private homes on the Southern Tablelands and the theft of property of substantial value. The charges of being carried in a conveyance were in each case associated with one of the breaking, entering and stealing offences. 11 Of the thirteen offences set out in the Form 1, eight were committed in July 2002. One offence of breaking, entering and stealing, involving the theft of a quantity of sporting goods, was committed in January 2001. This offence was not associated with Melissa Edwards. 12 The Respondent's criminal spree of June and July 2002 was brought to an end when he was taken into custody in relation to a number of unrelated offences. The Wollongong Local Court sentenced him in respect of these offences on 11 September 2002. Sentences in the aggregate amounting to fifteen months' imprisonment were imposed on him. 13 On 20 October 2002 the Respondent escaped from the Mannus Correctional Centre following a visit from Melissa Edwards. The two of them appear to have spent the following eight days together until their arrest at Albion Park on Monday 28 October 2002. 14 At the time of their arrest the Respondent and Melissa Edwards were travelling in a stolen vehicle, WQN 835. One of the charges of being carried in a conveyance without the consent of the owner contained in the Form 1 relates to this vehicle. The Form 1 document also contains details of a breaking, entering and stealing charge committed on 27 October 2002 at Gerringong. This charge related to the entry through the closed, but unlocked door of premises in Gerringong and the theft of the keys to the vehicle, WQN 835. 15 The Form 1 included an aggravated breaking, entering and stealing offence committed between 26 and 28 October 2002 at Wildes Meadow. The circumstance of aggravation relied upon was that it was committed in company with Melissa Edwards. There was a further offence of breaking, entering and stealing at Wildes Meadow committed on 27 October 2002 contained on the Form 1. This offence was not alleged to have been committed in company. 16 The effective sentence imposed upon the Respondent in respect of this considerable raft of criminality was one of three years and eight months' imprisonment with a non-parole period of two years and four months. The sentence proceedings relating to Melissa Edwards

17 Melissa Edwards appeared for sentence before his Honour Judge Phelan in the District Court at Wollongong on 5 June 2003. She adhered to pleas of guilty in respect of the same four counts of aggravated breaking, entering and stealing. She also adhered to pleas of guilty in respect of charges that on 20 October 2002 at Mannus she aided the Respondent to escape from lawful custody and that between 20 and 28 October 2002 she knowingly harboured, maintained and assisted him. Ms Edwards asked Phelan DCJ to take into account five offences set out on a Form 1. These comprised an offence of taking and driving a conveyance without the consent of the owner on 27 October 2002. This offence mirrors item 2 in the Respondent's Form 1 and relates to the vehicle WQN 835. There were four offences of aggravated breaking, entering and stealing corresponding to items 3, 4, 6 and 10 as recorded in the Respondent's Form 1. Three of these offences were committed in July 2002. The fourth was the aggravated breaking, entering and stealing offence committed at Wildes Meadow between 26 and 28 October 2002. 18 It would appear that Ms Edwards was not charged with a number of the s 154A(1) offences with which the Respondent was charged and to which it would seem she was alleged to have been a party. Thus, the Respondent was charged with the offence of being carried in a conveyance taken without the consent of the owner at Bowral between 14 and 17 July 2002 (item 5 on the Form 1). This offence is related to the commission of the aggravated breaking, entering and stealing offence at Bowral that is said to have taken place between the same dates. It is the Crown case that the vehicle was used by the two in connection with the commission of that offence. The same observation may be made of item 7 in the Form 1 in the Respondent's sentencing proceedings. This charges an offence of being carried in a conveyance taken without the consent of the owner between 23 and 26 July 2002 at Exeter. It is related to the commission of the aggravated breaking, entering and stealing offence that took place between the same dates at Exeter (item 6 on the Form 1). Melissa Edwards was not charged with the breaking, entering and theft of the car keys at Gerringong on 27 October 2002. The facts tendered by the Crown assert that this offence was committed jointly by him and Melissa Edwards. 19 Melissa Edwards was sentenced to concurrent fixed terms of imprisonment for six months to date from 5 October 2002 for the offences of aiding and abetting the Respondent's escape and of harbouring him. In relation to the four charges of aggravated breaking, entering and stealing Phelan DCJ imposed concurrent sentences of two years' imprisonment to date from 4 April 2003. His Honour imposed a non-parole period of twelve months to date from 5 April 2003. Phelan DCJ took into account the matters on the Form 1 in relation to the offences of aggravated breaking, entering and stealing. His Honour did not state in respect of which of the four counts the Form 1 matters were taken into account. In imposing concurrent sentences of the same length for each of the aggravated breaking, entering and stealing charges Phelan DCJ said that he took into account the principle of totality and the short interval of time during which the offences were committed.

20 Judge Phelan sentenced Melissa Edwards upon factual findings that included: "I have no doubt that the moving force behind the crimes was Jason Horne who had a lengthy history of dishonest [sic] and who had also been a drug addict over a number of years." (Phelan DCJ ROS pp 2-3). 21 His Honour found that Melissa Edwards was addicted to amphetamines and that her dependence had increased after she met the Respondent. Phelan DCJ accepted Melissa Edwards' account that she had aided the Respondent to escape because he had threatened to commit suicide if she did not. 22 Ms Edwards was cooperative with the police and gave detailed accounts of the commission of each of the offences. She pleaded guilty at an early stage and indicated her willingness to give evidence against the Respondent. The Respondent's case on sentence

23 The Respondent gave evidence. He said that he had been aged thirty-one years at the date of the offences. He was in a de facto relationship with Melissa Edwards. As at the date of the aggravated breaking, entering and stealing offences he had known Ms Edwards for about eight months. Both of them were addicted to amphetamines and the offences were committed to finance their addiction. His daily habit had been costing "anything from five hundred to one thousand dollars". 24 The Respondent said that, save for some offences committed when he was aged nine years, he had not previously committed offences of breaking, entering and stealing and that these were out of character for him. When asked to explain this assertion he said: "Yeah, I think Melissa was a big influence on me. When I first met her that's all she wanted to do with me and like - was - like the escape type thing she more or less threatened me if I didn't do like the break then she would harm herself or the baby and it was to supply our habit as well." (01/08/03 - 12). 25 In cross-examination the Respondent repeated his assertion that the breaking, entering and stealing offences commenced after he met Melissa Edwards. He conceded that prior to meeting her he had committed offences involving the taking and driving of motor vehicles without the consent of the owner. 26 The Respondent had been employed as a butcher and slaughterman for twelve or thirteen years. He had been married and was the father of three children. He said that he and his wife had commenced experimenting with the use of amphetamines and that this had led to the break up of the marriage. His wife left and took the children with her. Following these events the Respondent left his employment and his drug use escalated. It was at this time that he began to commit criminal offences. He was sentenced to a number of relatively short terms of imprisonment following his conviction for these offences in July 2002. 27 The Judge found that during the nine months in which the Respondent had been back in custody he had overcome his addition to amphetamines. He approached the matter upon the basis that the Respondent had some prospects of rehabilitation. The Judge's reasons

28 The Judge took into account the sentences that had been imposed on Melissa Edwards. He observed: "Sometime before he was sentenced for those offences he had started a relationship with Melissa Edwards. She pleaded guilty to identical offences to this and on 5 June this year his Honour Judge Phelan sentenced her to a number of sentences. Basically, what his Honour said was that for the aggravated break, enter and steal charges the appropriate sentence was one of four years but that would be reduced because of Ms Edwards' assistance to the authorities and to her early plea of guilty. I am bound to take account of this. His Honour, it seems to me, was quite lenient but I am required to impose a sentence which in all the circumstances is in parity with the sentence imposed on Ms Edwards. She was involved with all the offences here. It appears that she told his Honour Judge Phelan that she was the minor player in the offences. Mr Horne has told me that he committed these offences because of her influence. What I would have to find is that both of them are equally culpable. They were in it together and they must equally take the responsibility for the offences they committed. (ROS 2-3) … Mr Horne is convicted of the offences to which he has pleaded guilty and I take into account the thirteen matters in Form 1. I should say that when his Honour, Judge Phelan sentenced Ms Edwards, she also asked him to take into account additional matters. Judge Phelan came to the conclusion that in respect of the aggravated break and enter offences the appropriate sentence but for a plea of guilty would be four years. In my view that is at the bottom end of the range, but because the sentence must be in all respects comparable with that imposed on the co-offender, I would also take that as a starting point. Mr Horne has never denied his guilt and has pleaded guilty at the first opportunity which has had a utilitarian effect in that we have not been given the expense and time of a trial so he is entitled to a maximum discount. He must however be sentenced first for the escape and in respect of that matter he is sentenced to a term of eight months imprisonment. That will commence on 4 February 2003 and expire on 3 October 2003. That sentence must be served consecutively with other sentences so I now turn to the aggravated break, enter and steal. It appears to me that although these are separate offences they are part of a common pattern of offending. They were committed in a similar manner in a relatively brief period of time and again having regard to the issue of parity I am going to direct that those sentences be served concurrently. They will be sentences of three years and they will commence on 4 October 2003 and expire on 3 October 2006. Because of the special circumstances that I have mentioned, and this is the sentence that is imposed in respect of each matter, there will be a non-parole period of twenty months." (ROS 6-7) 29 The Respondent was given a discount of twenty-five percent to reflect the utilitarian value of his early pleas of guilty. 30 The special circumstances that the Judge identified were the Respondent's prospects of rehabilitation and his need for continued support in remaining drug free on his return to the community.

The grounds of challenge - count 1 escaping from lawful custody 31 The ground upon which the Director of Public Prosecutions appeals against the sentences is that they are manifestly inadequate. In written submissions the Crown Prosecutor identified a number of respects in which it was contended the Judge had fallen into error. 32 The first matter complained of related to the sentence of eight months' imprisonment imposed in respect of the offence of escaping from lawful custody. The sentence was said to be too short to reflect the requirement for general deterrence in offences of this description: R v Thomson, Court of Criminal Appeal, unreported, 21 May 1986. It was also submitted that the Judge failed to correctly apply s 57(2)(b) of the Sentencing Procedure Act in fixing the date of commencement of the sentence.

33 In the Crown's submission, a further reason for concluding that the sentence was manifestly inadequate was the circumstance that the Respondent had committed further offences while at large. This was said to be a factor that aggravated the offence. Reliance was placed on the decision of a two-judge bench of this Court in R v Steff (1997) 96 A Crim R 1 in support of this submission. 34 Steff was an application for leave to appeal against the severity of sentence. The applicant was sentenced to a term of five years and four months' imprisonment on his conviction for escaping from lawful custody. Fixed term sentences were imposed on him in relation to convictions for stealing a motor vehicle; breaking, entering and stealing; stealing; and stealing from a dwelling. These sentences were subsumed by the sentence on the escape count. On the hearing of the appeal it was submitted that the sentencing judge had paid insufficient regard to the principle of totality. It was in this context that Bruce J observed at 5: "In my view the applicant was properly sentenced on the charge of escape and the other offences which were required to be taken into account to reflect the overall criminality of his time at large. The sentence was within the proper sentencing range in the circumstances of this case." 35 The approach taken by the sentencing judge in Steff was to impose a sentence on the escape count that was appropriate to reflect the overall criminality involved in all the offences. Prior to the decision of the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610 such an approach was unexceptional: R v Hammoud (2000) 118 A Crim R 66 per Simpson J at 67 [9]. In sentencing an offender in conformity with Pearce for the offence of escaping from lawful custody together with offences that were committed while an escapee it is necessary to avoid double punishment. The circumstance that an offence is one committed by an escapee aggravates the offence and in the ordinary course would be reflected in the sentence for that offence. 36 In this case the Respondent was charged with the commission of a number of serious offences committed while he was an escapee. In light of the stance the Crown now takes it may be thought surprising that it did not seek to have the Respondent sentenced in respect of any of these offences. They were all dealt with on the Form 1. The Judge was required to take them into account in determining the appropriate sentence for one of the counts of aggravated breaking, entering and stealing. These offences should have served to increase the sentence on the count to which they were attached but only in the way that is explained in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 per Spigelman CJ at [40] - [42].

37 In R v Robinson [2000] NSWCCA 182 Foster AJA (with whom Priestley JA and Smart AJA agreed) observed that Thomson is not to be seen as providing a minimum tariff for the offence of escaping from lawful custody. A sentence of six months in that case was held not to be manifestly inadequate. 38 The sentence of eight months' imprisonment imposed in this case was a lenient one. However, in light of the discussion in Robinson I am not persuaded that the Crown can succeed upon a challenge that it falls outside the range of sound discretion.

39 In written submissions the Crown complained that the Judge failed to conform to the requirements of s 57(2)(b) of the Sentencing Procedure Act in the way in which he structured the sentences. It was the Crown's contention that s 57(2)(b) required that the sentence for the offence of escaping from lawful custody commence at the expiration of the non-parole period specified with respect to the sentences for the offences of aggravated breaking, entering and stealing. This submission was not pressed on the hearing of the appeal. In R v Dickson [2002] NSWCCA 327; 132 A Crim R 137 such a construction of s 57(2)(b) was rejected. It is not necessary to further deal with this aspect. I do not accept that the Judge erred either in fixing the term of the sentence or the date of its commencement.

The grounds of challenge - counts 2 to 5 40 I now turn to the challenge to the adequacy of the sentences imposed for the offences of aggravated breaking, entering and stealing. The central argument that the Crown advances is that having regard to the number and seriousness of these offences concurrent terms of three years' imprisonment bespeak error. In written submissions the Crown identified a number of matters in the Judge's remarks on sentence that were said to demonstrate patent error. 41 Firstly, the Crown complained of the following observation: "In Mr Horne's favour it must be said that all these offences were committed in premises which were not occupied at the time."

In the Crown's submission this remark shows that the Judge wrongly took into account as a circumstance of mitigation that the offences were committed when the householders were not at home. Section 105A(1)(f) of the Crimes Act defines, as a circumstance of aggravation for the purpose of offences under s 112, that the offender knows there is a person or that there are persons in the place where the offence is alleged to be committed. The absence of a circumstance of aggravation does not mitigate the commission of the offence. 42 It is appropriate to set out the further remarks that the Judge made relating to the aggravated breaking, entering and stealing offences: "When people commit offences such as breaking and entering dwelling houses - and Mr Horne admitted when he spoke to the police that all the premises he had broken into were houses rather than business premises - it means that people's own security is threatened and the property that they have managed to acquire over the years is taken or destroyed, as happened in this case. Some of them have insurance, some of them do not. It causes a great deal of loss and it is a type of crime which is prevalent in the community. The court must send a message to the community that anyone who commits these crimes is going to be punished and as the prosecution submitted there really is no alternative to a fulltime jail sentence as a penalty for these offences" (ROS 4). 43 The Judge's remarks were delivered ex tempore. It is apparent that his Honour had an appreciation of the objective seriousness of the offences of breaking, entering and stealing. When the impugned remark is read in context I am not inclined to view it as amounting to error or, if it does, I would not consider it to be an error that would justify intervention by this Court on a Crown appeal. 44 Prominent in the way the Crown argued the appeal was the approach that the Judge took to the principles of parity in sentencing. In written submissions the Crown contended that: "In treating himself (Remarks on Sentence, page 6) as being required to fix a sentence taking into account the sentences imposed upon the co-offender his Honour fell into error R v SY & Anor [2003] NSWCCA 291, paragraph 92 - 3 per Howie J." 45 The submission that the Judge erred by taking into account the sentences that had been imposed upon Melissa Edwards is one that cannot succeed. Melissa Edwards was a co-offender in relation to each of the offences of aggravated breaking, entering and stealing. In addition to those four offences she aided the Respondent's escape. It was necessary for the Judge to take into account the sentences that had been imposed on her. The question is whether his Honour was right to regard himself as bound by the four year starting point that Phelan DCJ nominated for the aggravated breaking, entering and stealing charges for which he sentenced Melissa Edwards. Allied to this is the question of whether the Judge erred in structuring the sentences for the aggravated breaking, entering and stealing offences (taking into account in respect of one of them the matters set out on the Form 1) in the way that Phelan DCJ structured the sentences imposed on Melissa Edwards such that each was to be served concurrently. 46 The Crown challenged the Judge's finding that the culpability of the Respondent and Ms Melissa Edwards was to be assessed as being equal. In the Crown's submission such a finding was not open on the evidence. 47 The transcripts of two interviews conducted by the police with Melissa Edwards were in evidence at the Respondent's sentence hearing. They were tendered by the Crown without objection. In these she gave an account of the commission of each of the aggravated breaking, entering and stealing offences. She described the Respondent as the prime mover in the commission of the offences. He was the one who jemmied open premises, did most of the damage to the properties and arranged for the sale of the stolen goods.

48 The Respondent gave evidence that he was a person for whom the commission of an offence of the seriousness of breaking, entering and stealing was out of character and that he had carried out these offences under the influence of Melissa Edwards. He said that he had escaped from the Mannus Correctional Centre because she had threatened to kill herself if he did not. She was pregnant with his child at the time. Prison officers observed that the Respondent and Edwards appeared to be arguing during the course of her visit. It will be remembered that at her sentence hearing there was evidence that Phelan DCJ accepted that she assisted the Respondent to escape under the pressure of his threats to commit suicide if she did not. This case underlines the desirability of co-offenders being sentenced at the same time and by the same Judge.

49 If the Respondent's evidence was accepted, these offences were carried out at the instigation of Melissa Edwards. On such a view it seems to me to have been open to assess the culpability of the two as equal notwithstanding that it was the Respondent who played a more active role in the physical commission of the offences. 50 It is not clear from the Judge's remarks that he did accept the Respondent's evidence on this aspect. Rather, after noting that Melissa Edwards told Judge Phelan that she was the minor player, and that the Respondent told him that he committed the offences under her influence, his Honour went onto say: "What I would have to find is that both of them are equally culpable. They were in it together and they must equally take the responsibility for the offences they committed." (ROS 2 - 3). 51 The remarks are susceptible of a view that the Judge sentenced the Respondent upon the basis that he and his co-offender had both made self-serving statements about their participation in the offences, that it was not possible to know where the truth lay, and that the just result was to treat them as equally responsible. If this was the Judge's approach then I consider that it was wrong. There was conflicting evidence as to who was the instigator of the offences. This was a matter of some significance having regard to considerations of parity. It was necessary for the Judge to make factual findings on the evidence that was before him.

52 In my opinion there was evidence which, if accepted, admitted of the conclusion that the culpability of the Respondent and Melissa Edwards was equal. While it is not clear from the ex tempore remarks that his Honour did accept the Respondent's evidence in this respect, I do not consider that this Court on a Crown appeal should uphold that part of the Crown's submission that contends that the Judge "ought not to have found they were equally culpable" (WS [19]). 53 The Judge sentenced the Respondent upon the basis that parity in sentencing required him to take as the starting point for the aggravated breaking, entering and stealing offences the sentence that had been nominated by Phelan DCJ as his starting point. Given that it was open to the Judge to sentence the Respondent on the basis that he was no more culpable than Melissa Edwards, was he right to consider that Phelan DCJ's sentence set the upper limit? 54 In Lowe v The Queen (1984) 154 CLR 606 at 609 Gibbs CJ stated the principle of parity in sentencing in this way: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." 55 Disparity in the sentences imposed on co-offenders whose circumstances are comparable gives rise to a justifiable sense of grievance in the offender who receives the more severe sentence. It is this that the law seeks to avoid. 56 In the Crown's submission, when the age, background, and previous criminal history of the two offenders are taken into account, along with the assessment that Phelan DCJ made of the part played by Melissa Edwards in the commission of the offences, the Respondent could not have a justifiable sense of grievance were he to be sentenced to terms of imprisonment reflecting a higher starting point than one of four years. 57 The Crown observed that Melissa Edwards was still relatively young at the date of the offences. She was aged twenty-two years. Prior to March 2002 she was a person with no criminal convictions. By contrast the Respondent was aged thirty-one years at the date of the offences. He had a criminal record dating back to the Children's Court where offences of breaking, entering and stealing had been found proven against him. Thereafter he had been convicted of a number of offences between 1994 and the date of the subject offences. 58 In light of the competing submissions advanced on the hearing of the appeal concerning the Respondent's criminal record it is desirable to set it out in full. No. Date Where tried Offence Sentence 1. Break and enter with intent 1. Recognisance of self $100 good behaviour 18 months 1 12/11/81 Wollongong Children's Court 2. Break enter and steal (x3) 2. On each charge admonished 2 14/11/94 Yass Local Court Offensive behaviour Fine $150 3 11/10/95 Port Kembla Local Court Low PCA Fine 4300 Disqualified 2 months 4 24/6/98 Goulburn Local Court Licence cancelled for drive vehicle Recognisance self $500 12 months. Disqualification concluding 23.12.98 (appealed) 5 7/9/98 Goulburn District Court Appeal against conviction of 24/6/98 Conviction confirmed 1. Self administer prohibited drug 1. Fine 450

2 & 3. Goods in custody 2. 2 & 3. On each count recognisance self $100 12 Months 6 3/11/99 Goulburn Local Court 4. Possession of equipment for administering prohibited drug 4. Fine $50

Possess prohibited drug 5. Fine $50 drug to be destroyed 1. Drive while under influence alcohol - 1st offence within 5 years 1. Fine $450 Disqualification 12 months 7 13/3/00 Wollongong Local Court 2. Common assault 2. Recognisance self 4500 12 months 8 12/10/00 Port Kembla Local Court Possess prohibited rug Fine $120 1. Contravene Apprehended Domestic Violence Order (x2) 1. On each charge Community service Order 100 hours

2. Drive while disqualified 2. Community Service Order 100 hours without conditions. 2 years disqualification commencing 12/3/01

3. Possess prohibited rug (x2) 3. Rising of the Court

4. Drive conveyance taken without consent 4. Community Service Order 100 hours without conditions.

9 22/2/01 Wollongong Local Court 5. Goods in custody 5. Rising of the Court

Drive conveyance taken without consent 6. s9 Bond 12 months supervision NSW Probation Service

Possess implements to enter/drive conveyance 7. Rising of the Court

Drive while disqualified 8. Community Service Order 100 hours. 2 years disqualification commencing 13.3.03

Larceny 9. s9 Bond 12 months supervision NSW Probation Service. Compensation $1,900

10 29/6/01 Lismore Local Court Contravene apprehended domestic violence order Fine $300 1. Breach of recognisance (first instance warrant)

2. Failure to comply with community service order (first instance warrant

5. Drive while disqualified (first instance warrant)

6.Possess implements to enter/drive conveyance (x3) (first instance warrant) 1, 2, 6-11 & 15. on each count imprisonment 5 months commencing 27/7/02 and expiring on 26/12/02 7. Larceny, value equal to $2,000 (first instance warrant) 3, 4, 12, 13, 14 & 16. On each count imprisonment 10 months commencing 27/12/02. non parole period with conditions 1 months concluding 26/1/03 release subject to supervision and enter such rehabilitation program as directed by Probation and Parole Service 8. Drive conveyance taken without consent (first instance warrant) 11 11/9/02 Wollongong Local Court 5. Imprisonment 5 months commencing 27/7/02 and expiring on 26/12/02 9. Goods in custody (first instance warrant) Disqualification 2 years commencing 12.3.05 10. Custody of knife in public place (first instance warrant) (severity appeal on all counts) 11. Goods in custody (x2)

16. Take and drive conveyance without consent 12 16/10/02 Wollongong District Court Appeal against orders of the 11/9/02 Conviction confirmed on all counts

59 If one puts to one side the offences of break, enter and steal committed when the Respondent was aged ten or eleven years, it appears that his first convictions for any offences of dishonesty were those recorded by the Local Court on 22 February 2001. Subsequently he was convicted by the Local Court in September 2002 of further offences of dishonesty, including being carried in a conveyance taken without the consent of the owner and the possession of implements to enter/drive a conveyance. He was serving sentences of imprisonment imposed in respect of these convictions at the date of the escape. This was the first time he had been sentenced to imprisonment. 60 Melissa Edwards was charged on 28 July 2001 with six counts of larceny and six counts of make/furnish a statement which is false or misleading. On 15 March 2002 she was sentenced by the Wollongong Local Court for these offences. She was placed on a bond under s 9 of the Sentencing Procedure Act to be of good behaviour for twelve months.

61 Melissa Edwards was charged on 5 June 2002 with five counts of obtaining money by deception and with receiving/disposing of stolen property. On 24 June 2002 she was charged with: (i) larceny (property in excess of $2,000); (ii) take and drive a conveyance without the consent of the owner (two counts); (iii) drive conveyance taken without the consent of the owner; (iv) disobey a request to stop for a breath test, and (v) goods in custody. All matters were listed before the Local Court on 9 July 2002. On that occasion she failed to attend court. She was convicted in her absence of the two offences charged on 5 June 2002. Warrants pursuant to s 25(2) of the Justices Act 1902 (NSW) (as it then stood) were directed to issue in relation to these matters and the matters for which she had been charged on 24 June 2002. 62 Ms Edwards came before the Local Court on 22 January 2003. In relation to the charge of larceny she was sentenced to six months' imprisonment to date from 27 December 2002. In relation to the offences of taking and driving a conveyance without the consent of the owner, driving a conveyance taken without the consent of the owner, obtaining money by deception, and receiving/disposing of stolen property she was sentenced to concurrent terms of six months' imprisonment. She was also convicted of carrying a cutting weapon for which she was sentenced to three months' imprisonment to be served concurrently with the other sentences. A concurrent sentence of three months' imprisonment was imposed in relation to the goods in custody matters.

63 It does not seem to me that the differences between the criminal records of the two were such as to justify disparate sentences if all else were equal. It is true that the Respondent committed offences while an escapee. However, Ms Edwards was subject to a s 9 bond at the date of the commission of the October 2002 offences. She was a person who had failed to appear at Court and for whom arrest warrants were in existence at the date of the July and October offences. 64 The central issue on the hearing of the appeal related to the circumstance that Phelan DCJ arrived at a notional four year term for the aggravated breaking, entering and stealing offences on the basis of a finding that Melissa Edwards was a minor participant in the criminal offending. In the Crown's submission, the Respondent could not have a justifiable sense of grievance had the Judge imposed a sentence of greater severity than one with a notional starting point of four years given that he did not have the benefit of a finding that he was a minor participant. 65 In supplementary written submissions Mr Byrne SC, who appeared on behalf of the Respondent, contended: "Even where the sentence imposed upon a co-offender has been reduced because of considerations that the co-offender was not in fact entitled to have taken into account, that reduction is something which must be taken into account in determining the sentence to be imposed: R v Hodges (1997) 95 A Crim R 85."

66 Hodges seems to me to raise somewhat different considerations to those raised by this appeal. In that case a co-offender was given a significant discount because he had given an undertaking to give evidence on behalf of the Crown. He did not fulfil his undertaking satisfactorily but, nonetheless, the Crown did not bring an appeal pursuant to s 5DA of the Criminal Appeal Act 1912 (NSW). Hodges was sentenced after the co-offender and by a different Judge. He was sentenced to a significantly greater term than had been imposed upon the co-offender. Simpson J, in a judgment with which Hidden J agreed (Hunt CJ at CL dissenting), considered that an observer would perceive it to be a flawed system of justice that permits an offender to obtain a reduction in sentence, at least in part attributable to a promise to provide assistance which is not ultimately forthcoming, while another who makes no such promise receives no such reduction. Thus, Hodges had a sense of grievance that was, in the view of the majority, a justifiable one.

67 Mr Byrne placed considerable reliance on the decision in R v Tisilandis [1982] 2 NSWLR 430. In that case Street CJ held: "Where one judge is passing sentence, at a time after another judge has given a co-offender what appears to be an erroneously lenient sentence, that fact is a most relevant and material consideration to be taken into account by the second judge who, having given it full and adequate weight, may feel obliged to pass a sentence which in his own unfettered judgment he would regard as erroneously lenient. Consequently it is, ordinarily, better to strive to avoid disparity than for the second judge to give effect to his own unfettered view and leave it to the Court of Appeal to reduce it." 68 In Tisilandis Street CJ was speaking of the case in which the circumstances of the co-offenders are comparable. Phelan DCJ's sentence is not contended to have been erroneously lenient. It was a sentence imposed upon a person who was found to have been a minor participant. 69 In R v Hauser, Court of Criminal Appeal, unreported, 11 December 1997, consideration was given to parity in a case where two co-offenders were dealt with by different judges upon different findings as to the degree of their respective participation in the offence. Hauser sought leave to appeal against the severity of a sentence imposed on him by Herron DCJ following his plea of guilty to a charge of attempting to obtain possession of a commercial quantity of the drug known as ecstasy. Herron DCJ found Hauser to have played a role greater than that of a mere courier. He sentenced him as a junior partner in the enterprise. The co-offender, Catlin, had been sentenced by Hosking DCJ to a substantially lesser sentence upon his plea of guilty to the same charge. Herron DCJ found Hauser's culpability to be more serious than that of Catlin. On appeal it was contended that the sentence imposed on Hauser, by comparison with that imposed upon Catlin was so disparate as to give rise to a justifiable sense of grievance. Dunford J (in a judgment with which Gleeson CJ and Barr J concurred) considered the sentence imposed upon Hauser, standing by itself, to be well within the range of discretion. His Honour noted that the co-offenders had been sentenced upon different factual findings relating to their level of participation in the criminal enterprise. He observed at 7: "In all the circumstances, I am of the view that this was not a case where it was proper to impose on the applicant a sentence which was the same as that imposed on Catlin. However, a justifiable sense of grievance may arise, not only because all the sentences are not equal but may also arise in cases where, even though the co-accused are sentenced on a different factual basis so as to justify unequal sentences, the sentences are disproportionate to the difference that is appropriate." 70 I consider that the Judge erred in holding that parity required that he apply the same notional starting point in sentencing the Respondent as Phelan DCJ applied in sentencing Melissa Edwards. The Judge was not constrained by the same starting point when sentencing the Respondent upon a different factual basis. It was necessary for his Honour to have regard to the sentences imposed upon Edwards so as to ensure that the sentences that he imposed on the Respondent were not disproportionate after proper allowance was made for the differences in their circumstances. 71 The Crown submitted that the Judge erred in failing to give sufficient weight to the objective seriousness of the offences of aggravated breaking, entering and stealing. In this respect the Crown relied upon the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 at [48]. In the Crown's submission the seriousness of the offences was increased by the presence of the following factors: (a) The Respondent stood for sentence with respect to a multiplicity of offences when regard was had to the Form 1 offences in addition to those on the 51A Committal for Sentence document; (b) The offences were planned; (c) The offences were accompanied by vandalism or significant damage to property; (d) The value of the property taken was substantial; (e) the Respondent had a prior criminal record that included convictions for breaking, entering and stealing and for larceny and in the nature of larceny. 72 I do not regard factor (e) as established. I would put to one side the offences committed when the Respondent was aged ten or eleven years. However, he did stand for sentence as a person with prior convictions for offences of dishonesty. The other factors on which the Crown relies were present and it is right to characterise the seriousness of these offences as enhanced by each of them.

73 In relation to one of the aggravated breaking, entering and stealing offences it was necessary for the Judge to take into account the thirteen offences on the Form 1. These included offences committed several months after the breaking, entering and stealing offences while he was an escapee. The Form 1 offences should not have been taken into account globally in relation to each of the aggravated breaking, entering and stealing charges. It would seem that they were and this in itself is suggestive of a failure to give proper consideration to them. The Judge was not assisted in this respect by the failure of the Crown to specify on the Form 1 the offence in respect of which the Form 1 offences were to be taken into account.

74 A similar global approach to the Form 1 offences was taken to the sentencing of Melissa Edwards. The Crown did not appeal against the inadequacy of the sentences imposed upon her. There was thus no complaint about the failure to reflect the Form 1 offences in the sentence for one of the aggravated breaking, entering and stealing offences or the determination to impose concurrent sentences for each of these offences. 75 The Crown chose to have the October 2002 offences dealt with on a Form 1. The extent to which offences taken into account on a Form 1 may be reflected in the sentence for the principal offence is as explained in the Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002. The determination not to proceed with any charge in respect of the October 2002 criminal conduct, save for the offence of escaping, produced the result that the objective seriousness of these offences, aggravated as they were by the circumstance that the Respondent was unlawfully at large, could not be properly reflected in the sentences to be imposed on him. 76 In R v McIvor [2002] NSWCCA 490 the Crown appealed against the inadequacy of sentences imposed upon the Respondent following his conviction for offences of robbery in company. A Crown appeal against the inadequacy of the same sentence imposed upon a co-offender was dismissed because of the lateness with which the appeal had been brought. The appeal was dismissed in McIvor. Heydon JA (in a judgment with which Levine J and Carruthers AJ concurred) observed at [10]: "[10] It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the Court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position - a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality. [11] Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender's background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge's approaches in the two cases, Hernando's sentence is not to be changed by reason of the adventitious circumstance of the Crown's gross delay." 77 In the case of Melissa Edwards the Crown did not challenge Phelan DCJ's determination that the spree of offending in June and July 2002 admitted of the imposition of concurrent sentences. I do not consider that the Crown should succeed with a challenge in this case to the order for concurrency with respect to the aggravated breaking, entering and stealing sentences. 78 However, the Crown's acceptance that the sentences imposed upon Melissa Edwards were not manifestly inadequate reflected that she was being sentenced as a minor participant. As I have noted, the Judge erred in considering himself bound by a notional staring point of four years when he came to consider the breaking, entering and stealing offences. The result of that error was the imposition of sentences upon this Respondent for the offences of breaking, entering and stealing in circumstances of aggravation that were manifestly inadequate. 79 Error has been established and I would allow the appeal. The Court retains an overriding discretion not to do so: R v Allpass (1994) 72 A Crim R 561. However, the inadequacy of the sentences for the aggravated breaking, entering and stealing offences to my mind require that the Court intervene and re-sentence. In so doing it is appropriate to fix sentences at the lower end of the range having regard to the double jeopardy inherent in a Crown appeal: Dinsdale v R [2000] HCA 54; 202 CLR 321 per Kirby J at 341 [62].

80 In arriving at the appropriate sentences I have regard to considerations to which s 21A of the Sentencing Procedure Act directs attention. I take into account the favourable findings made by the Judge concerning the Respondent's prospects of rehabilitation including that he has overcome his addiction to drugs, that he has a trade qualification and a supportive family. 81 The Judge found that there were special circumstances that justified a departure from the statutory proportion between the sentence and the non-parole period. I consider that it is appropriate to preserve this finding for the purposes of re-sentencing. The special circumstances that I identify are those that the Judge identified; the need for the Respondent to have the benefit of a lengthy period of supervision to assist with his rehabilitation.

82 The Judge allowed a discount reflecting the utilitarian value of the early pleas of guilty at the top of the range proposed in R v Thomson [2000] NSWCCA 309; 49 NSWLR 383. It is appropriate that the Respondent receive the benefit of that discount on the sentences that I propose. 83 While I propose that the sentences for the four counts of aggravated breaking, entering and stealing will be concurrent with one another in order to preserve some proportion with the sentences imposed upon Melissa Edwards, it is necessary to distinguish the count to which the Form 1 offences are attached. I am mindful that Phelan DCJ did not adopt this approach in sentencing Melissa Edwards. Not to do so was an error. It is not appropriate that upon re-sentencing this Court repeat that error. It will be remembered that Melissa Edwards asked the Court to take into account on a Form 1 less than half the number of offences that the Respondent asked the Court to take into account in sentencing him. 84 The maximum sentence for the offence of breaking, entering and stealing in circumstances of aggravation is twenty years. I consider that the lowest starting point for the aggravated breaking, entering and stealing offences, absent the Form 1 offences, to be one of six years. It is necessary to increase the sentence on count 5 to take into account the thirteen offences on the Form 1. The starting point that I propose for this offence is one of eight years' imprisonment. For these reasons the orders that I propose are as follows.

1. Dismiss the appeal against the inadequacy of sentence imposed with respect to the offence of escaping from lawful custody, and confirm the sentence of eight months' imprisonment to date from 4 February 2003 and to expire on 3 October 2003.

2. In respect of counts 2, 3, 4 and 5, allow the appeal and quash the sentences imposed in the District Court.

3. In lieu thereof, in respect of counts 2, 3 and 4 substitute a sentence of four years and six months' imprisonment to commence on 4 October 2003. Those sentences will expire on 3 April 2008. In each case specify a non-parole period of two years and eight months. The non-parole period for each sentence will expire on 3 June 2006 and, but for the sentence to be imposed in respect of count 5, the Respondent would be eligible for consideration of release to parole on that date.

4. In respect of count 5, substitute a sentence of six years' imprisonment to commence on 4 October 2003. That sentence will expire on 3 October 2009. Specify a non-parole period of three years and four months to date from 4 October 2003. The non-parole period will expire on 3 February 2007. The Respondent will be eligible for consideration for release on parole on that date.

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