Regina v John Gordon Porteous

It should be observed that the Applicant was subject to a bond at the time of the present offences. His Honour did not refer to this fact in the remarks on sentence by way of reference to s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 or otherwise, although there was a passing reference in the Applicant's evidence to the offences which gave rise to the bond (Transcript, page 14).

Determination of Objective Seriousness of Offence 21 As previously mentioned, s.54A Crimes (Sentencing Procedure) Act 1999 provides for a standard non-parole period of five years in the case of an offence under s.112(2) Crimes Act 1900. The standard non-parole period must be taken to be intended for an offence in the middle of the range of objective seriousness where the offender was convicted after trial: R v Way (2004) 60 NSWLR 168 at paragraph 68. However, the standard non-parole period remains relevant as a reference point where there is a guilty plea: R v Way, above, at paragraph 122; R v GJ Davies [2004] NSWCCA 319 at paragraphs 6, 29; R v Pellew [2004] NSWCCA 434 at paragraph 13. 22 In the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness. In R v Pellew, above, Simpson J at paragraph 13 included the following propositions in a summary of principles emerging from R v Way: "… (iii) A sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence ( R v Way , paras 74-77);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness ( R v Way , paras 85-86); …". 23 In the present case, the sentencing judge did not make a finding as to where the s.112(2) offence lay in the range of objective seriousness. His Honour said (remarks on sentence, page 13): "Section 54A of the Act provides for a standard non-parole period in this matter of five years. I have taken into account the decision of the Court of Criminal Appeal in R v Way as to how I must approach the effect of that section. Of course the plea of guilty by the offender affects what approach the Court takes to the standard non-parole, I am guided by the judgment of Spigelman CJ in that regard. I refer to the matters of mitigation that I have recounted as being matters that entitle me to depart from the standard non-parole period, and of course I am aware that the plea of guilty occasions one to have the possibility of a significant departure from that standard non-parole period. The criminality of this offence is significant in my view. The offence was a very serious matter." 24 Specific reference had been made during submissions to the standard non-parole period, with the Applicant's then legal representative advancing the following argument (Transcript, page 26): "DAMPNEY: Well as a second or perhaps last resort I would say perhaps your Honour could be guided by the table and fit this matter to the top end of the medium range.

DAMPNEY: Well it says, according to the table, 5 years.

HIS HONOUR: But that implies a head sentence of six and three-quarters does it?

HIS HONOUR: Yes, six and two thirds. What special circumstances are there do you say?" 25 The Crown also touched upon this issue during submissions on sentence in the District Court (Transcript, page 28): "FRASER: Yes. But in fairness he does have quite a number of the mitigating factors also your Honour and it may be a case where your Honour will think that notwithstanding that your Honour is not to be unduly influenced by the standard non-parole period in light of Way's case, it may well be close to the mark in this particular instance.

FRASER: 5 years your Honour, and it may well be that when your Honour does the balancing between those aggravating and mitigating factors that that would be a figure that may be appropriate.

HIS HONOUR: There is an issue of special circumstances for this man?

FRASER: I think it is open to your Honour to find them to some limited degree in this case." 26 I shall return to the "range of objective seriousness" issue in the context of the second ground of appeal.

Some Other Findings by Sentencing Judge 27 His Honour found that the offence was out of character for the Applicant and accepted that he was genuinely remorseful for what he had done. 28 His Honour noted the requirement, in passing sentence, for personal deterrence and "significant general deterrence". His Honour observed, rightly, that "the community expects to be protected when members of the public are in their own homes at night". 29 As will be seen in the context of the first ground of appeal, the sentencing judge allowed a discount of 15 months from a starting point head sentence of eight years for the Applicant's early plea of guilty and remorse. As a result, a head sentence of six years and nine months was arrived at for the s.112(2) offence. 30 His Honour found special circumstances by way of the Applicant's "trivial past record in the scheme of things" and his "excellent prospects of rehabilitation". Accordingly, his Honour varied the proportion between the non-parole period and the balance of the sentence and fixed a non-parole period of three years and nine months, being about 55.5% of the full term.

Ground 1 - The Learned Sentencing Judge Failed to Allow a Sufficient Discount for the Plea of Guilty 31 The Applicant's first ground of appeal relates to the discount provided to him by the sentencing judge for his pleas of guilty and the sentencing judge's findings of remorse. Charteris DCJ said (remarks on sentence, page 15): "Weighing up all of the matters that are appropriate on sentence, I form the view that subject, to a discount for his remorse and his facilitation of the course of justice, a sentence of eight years imprisonment should be imposed. I intend to deduct from that period an allowance for his early plea of guilty and his remorse. The case against him would have been a strong one in my view as he was found in possession of Mr and Mrs Fox's car taken from the house and also other possessions. However, he made immediately a record of interview and made full admissions about his behaviour. He pleaded guilty at the earliest opportunity. He has expressed publicly his contrition and remorse. I accept him as genuine in that matter. I intend to allow him a discount of 15 months from his sentence because of his remorse and his facilitation of the course of justice. I therefore arrive at a head sentence of six years and nine months". 32 A discount of 15 months from a sentence of eight years represents a reduction of 15.5%. The Applicant submits that, in the circumstances of this case, the sentencing judge has erred in one or more respects:

(a) Firstly, it is submitted that his Honour failed to have regard to the utilitarian discount provided for in R v Thomson and Houlton (2000) 49 NSWLR 383. It is said that his Honour's reference to the Applicant's "facilitation of the course of justice" is a reference to the subjective factor identified in Cameron v The Queen (2002) 209 CLR 339 at paragraph 343 (paragraph 11). The Applicant contends that the sentencing judge gave credit for subjective elements (the Cameron factor and the Applicant's remorse and contrition), but not for the objective (utilitarian) element referred to in R v Thomson;

(b) secondly, and alternatively to (a), the Applicant submits that, assuming that his Honour did include in the discount of 15.5% an objective element for utilitarian value, the sentencing judge erred, in the circumstances of this case, in not explaining his process of reasoning for allowing a discount significantly less than 25%: R v Johnstone [2004] NSWCCA 307 at paragraphs 28, 43;

(c) thirdly, the Applicant submits that error is disclosed in this case in allowance by way of total discount for both objective (utilitarian) and subjective (remorse) reasons of only 15.5%. 33 The Applicant contends that the appropriate discount for the utilitarian value of the plea alone was in the order of 25%: R v Thomson. It was submitted that a further discount was appropriate in this case given his Honour's findings with respect to the Applicant's remorse and contrition. 34 The Crown submits that the sentencing judge was not bound by s.22 Crimes (Sentencing Procedure) Act 1999 or by R v Thomson to give either a discount at all or one of a particular order. It was stressed that the range of discount referred to in R v Thomson is a guideline which creates no presumption of, or entitlement to, a particular discount in a given situation: R v Scott [2003] NSWCCA 286 at paragraph 28 and R v Newman [2004] NSWCCA 113 at paragraph 12. 35 The Crown draws attention to comments made by the sentencing judge during the proceedings indicating an intention to take into account that the Applicant had "pleaded guilty from the earliest possible opportunity and expressed regret at the earliest possible opportunity". It is said that the sentencing judge had both objective and subjective elements in mind.

36 The Crown relies upon the statement of Sperling J in Johnstone, above, at paragraph 45: "A fortiori, in some cases, a plea of guilty, in combination with other relevant factors, will not attract a discount which would be appropriate in isolation. If a discount which may be appropriate in isolation would reduce the sentence below that warranted for the offence, priority has to be given to setting an appropriate sentence." 37 It is submitted by the Crown that it ought be implied from the remarks of the sentencing judge that a discount of more than 15 months from a head sentence of eight years would reduce the sentence below a level which was warranted in the circumstances of the case and that, for that reason, his Honour limited the discount to the order of 15.5%. It is argued that a lesser sentence for such an extremely serious example of this offence was not warranted and that no error is revealed in his Honour's exercise of discretion in confining the discount. 38 In reaching the discount of 15 months in this case, the sentencing judge rolled up both the objective and subjective factors (R v Sharma (2002) 54 NSWLR 300 at 308, paragraph 37) flowing from an early plea of guilty and a finding of genuine remorse. I am not satisfied that his Honour failed to have regard to utilitarian elements in accordance with the principles in R v Thomson. This is a well-known and fundamental sentencing principle in this State. Although his Honour's language did not expressly use the R v Thomson formula, I consider that his Honour has taken into account objective utilitarian elements in accordance with that principle. 39 At the same time, his Honour has made a finding of genuine remorse on the Applicant's part and, in that context, referred to the strength of the Crown case against him. The strength of the Crown case is relevant to the subjective element of remorse, but irrelevant to the objective utilitarian element: R v Thomson, above, at paragraph 136ff. 40 In the present case there was a strong finding of genuine remorse on the Applicant's part. His Honour correctly observed that the Applicant had "expressed regret at the earliest opportunity", there being a number of statements in the electronically recorded interview which pointed to remorse at that early time. 41 In the ordinary course, the Applicant would have a strong case for a discount for the objective (utilitarian) element towards the top end of the 10%-25% range in R v Thomson, and an additional allowance for the subjective (remorse) element which featured strongly in this case. It is clear that discounts do not flow in a mandatory or automatic way. They remain as part of a sentencing discretion to be exercised in the particular case by reference to all relevant circumstances. However, it is the policy of the criminal law to encourage offenders to plead guilty at an early time, to be accountable for their actions, and to recognise the seriousness of their crimes and the impact of those crimes upon their victims and the community: s.3A(e), (g) Crimes (Sentencing Procedure) Act 1999. This policy is usually applied by practical and real discounts where the foundation is established for them in a particular case. In my view, the Applicant was entitled to a higher discount than that provided by the sentencing judge in this case, unless such a discount would reduce the head sentence to a level below that which was appropriate given the seriousness of his offence. If his Honour made a conscious decision to confine the discount because of the objective seriousness of the offence, an explanation to that effect was required: R v Johnstone, above. It was not given. 42 As appears below, I consider that a starting point of eight years by way of head sentence was appropriate in this case. In my view, a reduction of that period by two years three months was warranted in recognition of the discount appropriate for the substantial objective and subjective elements flowing from the Applicant's early plea of guilty and genuine remorse. A head sentence of five years nine months would not reduce the sentence below a level which was appropriate for the objective seriousness of the offence. 43 I conclude that the Applicant has made good his first ground of appeal and that a reduction in the head sentence for the s.112(2) offence is appropriate in this case. 44 I do not consider that a consequential reduction flows automatically to the non-parole period. The finding of special circumstances by the sentencing judge led to a significant variation in the statutory proportion. I will return to the question whether the Court should interfere with the non-parole period in the context of the second ground of appeal.

Ground 2 - The Sentence is Excessive and a Less Severe Sentence is Warranted at Law 45 Whilst acknowledging that the s.112(2) offence is a very serious one, Counsel for the Applicant submits that the sentence for that offence is manifestly excessive. It was submitted that the starting point of eight years imprisonment as a head sentence was too high and the non-parole period was excessive. The Applicant contended that the s.112(2) offence lay at the upper end of the mid-range of objective seriousness. However, it was argued that there was a powerful subjective case which warranted a lesser head sentence and non-parole period. 46 The Crown submitted that this was an offence which fell well above the mid-range of objective seriousness for an offence of this type. There were circumstances of aggravation relevant to the determination of an appropriate sentence, including the fact that the offences were committed whilst the Applicant was subject to conditional liberty. 47 In my view applying the principles referred to in Way and Pellew, this was an offence which lay above the mid-range of objective seriousness for an offence of this type. Counsel for the Applicant accepted that this offence could be characterised as a "home invasion". The victims were terrified by the sudden intrusion into their holiday home. They were verbally threatened and physically bound. The Applicant was aware that Mr Fox was disabled and was using a walking frame, although the Applicant was not aware of his terminal cancer. The Applicant took the precaution of wearing gloves to avoid leaving fingerprints. The offences were committed whilst the Applicant was subject to a good-behaviour bond. 48 His Honour made findings that the offence was out of character for the Applicant and was committed at a time when he was depressed in the wake of his retrenchment. The sentencing judge found that the Applicant had good prospects of rehabilitation. 49 Counsel for the Applicant relied upon Judicial Commission sentencing statistics in support of the argument that the sentence imposed for the s.112(2) offence was manifestly excessive. In ordinary circumstances, care must be taken in the use of sentencing statistics: R v Bloomfield (1998) 44 NSWLR 734 at 739; R v Nai Poon [2003] NSWCCA 42 at paragraphs 50-51. In the present case, it must be borne in mind that such statistics related to offences committed before the commencement of the standard non-parole provisions on 1 February 2003. Such statistics will be of very limited use given the significant change in sentencing law flowing from those amendments: R v Way, above, at paragraphs 54, 122, 132-134, 139. There are now two statutory guideposts or reference points available - the maximum penalty and the standard non-parole period: R v Way, above, at paragraph 50. 50 In my view, a head sentence with a starting point of eight years was appropriate in this case. This was a most serious offence where the maximum penalty was 20 years imprisonment. Further, a reduction of the non-parole period below three years and nine months as fixed by the sentencing judge would not adequately reflect the objective criminality of this offence. 51 I would reject the second ground of appeal.

Conclusion 52 In my view, the first ground of appeal has been established with respect to the head sentence, with the result that a head sentence of five years nine months imprisonment ought be imposed in place of six years and nine months imprisonment. 53 However, I do not consider that any reduction in the non-parole period ought be made in this case. In my opinion, a non-parole period of three years and nine months represents the minimum term of imprisonment which ought be served by the Applicant for this objectively serious offence: Power v The Queen (1974) 131 CLR 623 at 628. The sentencing judge's finding as to the presence of special circumstances was appropriate. A non-parole period of three years and nine months represents 65.2% of a head sentence of five years nine months. This remains a significant variation of the statutory proportion having regard to the finding of special circumstances. 54 I propose the following orders:

(a) Leave to appeal granted as to the sentence for the offence under s.112(2) Crimes Act 1900 ;

(b) leave to appeal refused as to the sentence for the offence under s.154A Crimes Act 1900 ;

(c) appeal allowed with respect to the offence under s.112(2) and the sentence quashed;

(d) sentence for the s.112(2) offence to imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009;

(e) the recommendations to prison authorities made by Charteris DCJ on 24 June 2004 are confirmed.

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