REGINA v. MACBAIN [2005] NSWCCA 358

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

Kitchener [2003] NSWCCA 134 Kaiva (NSWCCA, unreported 9.11.98) Walker [2004] NSWCCA 230 McHugh (1985) 1 NSWLR 588 Deeble (NSWCCA, unreported 19.9.91) Newman & Simpson (2004) 145 A. Crim. R. 361 Ponfield (1999) 48 NSWLR 327 CASES CITED: Veen (No. 2) (1987-88) 164 CLR 465 DPP v. Ottewell (1970) AC 642 Johnstone [2005] NSWSC 80 Gallagher (1981) 23 NSWLR 220 Markarian (2005) 79 ALJR 1048 H [2005] NSWCCA 282 Saleib [2005] NSWCCA 85 Thomson & Houlton (2000) 49 NSWLR 383

REGINA v. PARTIES: Mark Raymond MACBAIN

Crown: D. Arnott COUNSEL: App: H. Dhanji

Crown: S. Kavanagh SOLICITORS: App: S. O'Connor

IN THE COURT OF CRIMINAL APPEAL 2005/1460

SPIGELMAN, CJ. MCCLELLAN, CJ. AT CL. HALL, J.

THURSDAY 20 OCTOBER 2005 REGINA v. MARK RAYMOND MACBAIN Judgment

1 HALL, J: On 9 August 2005, the applicant, Mark Raymond MacBain, gave notice of application for leave to appeal in respect of the sentence imposed upon him by his Honour Judge McLoughlin, SC. in the District Court sitting at Parramatta on 4 February 2005. 2 On 11 November 2004, the applicant entered pleas of guilty in the Central Local Court in relation to two charges of break, enter and steal contrary to s.112(1) of the Crimes Act 1900 (NSW). The offences under that section each carry a maximum penalty of 14 years imprisonment. 3 There were a further seven charges which the applicant requested be taken into account on a Form 1 in respect of the offence committed on 16 April 2004. 4 Particulars of counts one and two are as follows:-

Count 1: 21 and 22 June 2001 Break, enter and commit serious indictable offence (larceny) between 21 June 2001 and 22 June 2001, s.112(1) Crimes Act 1900. Maximum penalty: 14 years imprisonment

Count 2: 16 April 2004 Break, enter and commit serious indictable offence (larceny) on 16 April 2004, s.112(1) Crimes Act 1900 Maximum penalty: 14 years imprisonment 5 Particulars of the sentences imposed are as follows:- Count 1: Imprisonment for two years, six months commencing 15 July 2004 with a non-parole period of one year to expire on 14 July 2005; Count 2: Imprisonment for five years, three months commencing 15 July 2004 with a non-parole period of three years to expire on 14 July 2007. 6 As both sentences were wholly concurrent, the effective sentence was accordingly five years and three months with a non-parole period of three years.

Count 1 7 In relation to the offence committed on the evening of 21 and 22 June 2001, the relevant facts are that the applicant removed the front right window of business premises at Unit 5, 16 Wingate Avenue, Mulgrave and stole one television, one Skill brand of power saw and one Bosch brand drill valued at $593. The applicant was not interviewed in relation to this offence until 16 July 2004, by which time he had been dealt with on a number of other offences. 8 The sentencing judge accepted that had the results of a fingerprint investigation been obtained more expeditiously, the applicant would have been dealt with for the offence at a much earlier point in time along with other offences.

Count 2 9 In relation to the offence of 16 April 2004, the applicant entered the home of the victims, a married couple who lived at 2 Rutherven Street, Milperra. The agreed facts reveal that damage to the home included jemmy marks on the rear security mesh door, the kitchen window with its aluminium frame also bearing jemmy marks, blinds had been broken away from the fixture and the timber laundry window also exhibited numerous damage points to its frame and hinge. The main bedroom window to the premises had its external blind removed and there were jemmy marks on its window frame. 10 The description of the premises is consistent with the applicant having ransacked parts of the home with bedroom side drawers opened and contents scattered on the floor of the main bedroom. The large number of objects taken, including a very substantial number of jewellery items, is reflected in the details of the offence set out in the Court Attendance Notice amounting in all to the value of $15,700.

The Form 1 matters 11 The Form 1 matters all occurred on 8 May 2004. They involved take and drive a conveyance, driving whilst disqualified, three occasions of driving through a red light, possessing amphetamines and resisting an officer in the execution of his duty. These offences were connected with a police chase of the applicant when he drove a stolen car. He was arrested for the Form 1 matters on the latter date and has been in continuous custody since then. 12 The applicant was charged on 15 July 2004 with the abovementioned offences.

Grounds of appeal 13 There are two grounds of appeal. I will deal with each in turn.

Ground 1: That the sentences contain an aspect of double punishment for the fact that they were committed on parole 14 In the written submissions on behalf of the applicant it is acknowledged that his Honour correctly took into account as an aggravating factor in determining the sentences that the offences were committed whilst he was on parole. 15 The applicant's complaint is that the sentencing judge chose to partially backdate the sentence to 15 July 2004 and that it should have been backdated to 8 May 2004, the date upon which the applicant was taken into custody. Accordingly, ground 1, in essence, seeks to establish error in the failure to backdate the sentence by approximately 10 weeks. 16 The applicant had been released to parole on 4 March 2004 following serving the custodial part of a term of imprisonment for a number of offences. He had been imprisoned on 5 December 2001 and was released on 5 March 2004 to serve a parole period to expire on 4 December 2005. He was accordingly on parole at the time of committing the offence on 16 April 2004. 17 In support of the applicant's contention that the failure to fully backdate the sentence contains an aspect of "double punishment", reliance is placed upon the decisions of this Court in Regina v. Kitchener [2003] NSWCCA 134, Regina v. Kaiva (NSWCCA, unreported 9 November 1998) and Regina v. Walker [2004] NSWCCA 230. 18 The Crown's inquiries with the Parole Board confirms that the applicant's parole was revoked by reason of his having committed the offences in question and that accordingly the argument on behalf of the applicant is well founded. The Crown accepted there was no good reason for not backdating the sentence and in its written submissions acknowledges relevant authority which establishes the desirability of backdating the sentencing to the commencement of the pre-sentence custody: see Regina v. McHugh (1985) 1 NSWLR 588, Regina v. Deeble (NSWCCA, unreported 19 September 1991), Kaiva (supra) and Regina v. Newman & Simpson (2004) 145 A. Crim. R. 361. 19 Accordingly, the Crown's concession is that the sentence should date from 8 May 2004, but that otherwise the Court should impose the same sentence.

Ground 2: The sentences imposed are, in all the circumstances, manifestly excessive and a lesser overall sentence is warranted at law 20 In relation to count 2, it has been submitted on behalf of the applicant that the sentence of five years and three months is outside the available range. In the applicant's written submissions, it is observed that the sentencing judge arrived at the five years and three months sentence after deciding that a discount of 25% was allowable for the utilitarian value of the early plea of guilty. The applicant also observes that no separate discount is recorded as relating to the factor of remorse. I will deal with this latter aspect shortly. 21 The applicant's submissions focus, firstly, on the absence of those factors which are accepted as enhancing the seriousness of an offence contrary to s.112(1) of the Crimes Act (see Regina v. Ponfield & Ors (1999) 48 NSWLR 327 per Grove, J. at 337-338 (Spigelman, CJ. and Sully, J. agreeing). Secondly, the submissions emphasise affirmative mitigating factors. 22 Whilst the Crimes (Sentencing Procedure) Act 1999, s.21A(3), permits the absence of certain specified matters to be treated as mitigating factors to be taken into account, as for example, s.21(3)(b) which refers to "the offence was not part of a planned or organised criminal activity", I do not accept that the absence of certain of the enhancing or aggravating factors identified in the guideline judgment in Ponfield (supra), is an approach that is necessarily instructive in determining whether the sentence imposed in relation to an offence under s.112(1) of the Crimes Act was appropriate. In that respect, I accept the Crown's submission (in particular, paragraph 32), which I reproduce in part;- "This Court in Regina v. Webster [2005] NSWCCA 110, recently made the point (at [26]) that sentencing for these types of offences is not a matter of simply adding up the factors referred to in Ponfield as enhancing the seriousness of the offence. It might be added, nor is it a matter of simply subtracting those factors which are absent, being the suggestion implicit in the applicant's submissions." 23 The applicant's submissions proceed to identify the following mitigating factors:-

(a) the applicant's status as a protected prisoner;

(b) the applicant's prospect of rehabilitation as determined by the sentencing judge when finding special circumstances;

(c) the fact that there was little planning and certainly no "professional planning" in relation to either offence;

(d) that both offences were committed in order to fuel a long-standing drug problem and were not attributable to financial greed;

(e) both offences were committed at times when it could be expected no-one would be present;

(f) while there was some damage to the premises caused by the forced entry to the house at Milperra, there was no associated vandalism or gratuitous damage;

(g) the property in relation to the 2004 offence contained some personal items, but in terms of its monetary value was only just above the strictly indictable level. 24 That latter factor has again been emphasised today in oral submissions Mr. Dhanji of counsel. 25 In determining the weight and significance of these matters in the context of evaluating the submission that a lesser sentence than that imposed was warranted in law, it is important to take into account that the relevant frame of reference for the purposes of sentencing evaluation in this case also included the following matters:-

• the offence committed on 15 April 2004 was far from being an impulsive act and, as observed by the sentencing judge "took some planning" .

• the offences were both committed whilst the applicant was on parole.

• the applicant had a prior record of break, enter and steal offences (see below).

• the offence committed on 16 April 2004 was accompanied by an amount of damage to residential premises.

• the value of the stolen property taken from the residential premises of the victims is properly measured both in terms of its monetary value and taking into account its sentimental value, at least so far as the substantial number of jewellery items taken by the applicant are concerned. 26 The factors identified in the preceding paragraph to which I have just referred provide an adequate foundation for the sentencing judge's observation: "there is serious criminality involved" (ROS, p.5). 27 The primary issue which has emerged in relation to this second ground of appeal is the significance to be attached to the applicant's criminal history. 28 It is plain from the remarks on sentence that in determining the sentence some significance was attached by the sentencing judge to that matter. In the remarks on sentence the following passage appears:- "The offender was born on 21 September 1966 and has convictions and impositions of sentences of imprisonment in New South Wales going back to 1996 for possessing prohibited drugs, break, enter and steal, robbery, take and drive conveyances, larceny, driving while suspended, goods in custody, possessing implements, driving recklessly and when disqualified, maliciously destroy property, receive stolen property, the last period of imprisonment being four months commencing 6 December 2001 and for 12 months commencing 4 December 2003, two years and six months with nine months non-parole, both periods commencing 5 June 2003 concluding 4 March 2004 and 4 December 2005 respectively. It can be seen, of course, that … the last sentence is still current and current at least until December this year. In Victoria the offender has similar type convictions commencing in 1978 and periods of incarceration, a truly deplorable record. The record would not allow the Court to extend leniency to the offender." 29 The sentencing judge later in the remarks on sentence (p.5) again referred to the applicant's "lengthy record for like offences …". He added "the sentence must be a deterrent to others and must … be recognised as such in the community. These offences (sic) prevalent and they are prevalent to fund drug habits" (p.5). 30 It is unnecessary here to set out the full particulars relating to prior break, enter and steal offences for which the applicant was convicted. It is sufficient to state that between November 1996 and November 2003, the applicant was convicted of eight counts of break, enter and steal in an otherwise lengthy criminal history in that period. 31 In answer to the applicant's submission that a starting head sentence of 7 years before an allowance of a 25% discount for the early plea is too high, the Crown's submission is that, should count 2 be considered in isolation, then the objective seriousness of that offence is far from the most serious. However, the Crown argues, this point overlooks the significance of the applicant's criminal record (paragraph 18). 32 The applicant has had a long and troubled history and the details and explanation for it are, at least in part, to be found in the psychological report of Mary Anderson, clinical psychologist, dated 19 January 2005 which was tendered at the sentencing hearing. 33 The applicant was aged 37 years at the date of the offence in April 2004 and then had a criminal record which reached back some 26 years with the convictions as I have stated in both Victoria and New South Wales. The extensive number and nature of all offences have been summarised in the Crown's submissions at paragraph 19 of the written submissions. 34 It is important for a sentencing judge in a matter such as the present to take into account the antecedent criminal history of the offender in determining the sentence to be imposed, but not for the purpose of giving such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the particular offence for which he or she is being sentenced: Veen (No. 2) v. The Queen (1987-1988) 164 CLR 465, 477. To do otherwise, as the High Court there observed, would be to impose a fresh penalty for past offences citing Director of Public Prosecution v. Ottewell (1970) AC 642, 650. The High Court stated:- ""… the antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind …" (at p.477)

35 In the present case, the sentencing judge had well in mind both the length and nature of the applicant's prior criminal history and the issue of deterrence, in particular, general deterrence (see, in particular, remarks on sentence at p.5). In doing so, I do not consider that he contravened the principles in Veen (No. 2) (supra). Rather, I consider he properly applied those principles in determining the appropriate sentence in respect of count 2. It, of course, was not lost upon the sentencing judge that the applicant had only been released on parole a little over a month prior to the commission of the offence on 16 April 2004 and was then on parole. Criminal conduct of that kind does reflect a continuing attitude of disobedience to the law and can result in a heavier sentence being imposed for the very reason identified by the sentencing judge. 36 I accordingly do not consider that the effective sentence of five years and three months with a non-parole period of three years was outside the appropriate range for the offence involved in count 2. Indeed, I am of the opinion that no lesser sentence than that imposed was warranted in law. 37 In Regina v. Johnstone [2005] NSWSC 80, a case involving offences under s.112(1) of the Crimes Act 1900 and which involves some similarities to the present case, the Crown pointed to the absence of a sufficient sample of comparable cases for statistics to be of any particular use. In that case, the applicant, who was 21 years of age at the time of the offence and who was addicted to amphetamines, pleaded guilty to four offences of break, enter and steal under s.112(1). He made admissions in relation to a further six offences, larceny, receiving stolen property and disposing of stolen property. 38 The applicant was sentenced in relation to each of the four formal charges. The value of property in relation to charges 2 and 3 were respectively between $5,000 and $15,000, the other two charges not involving property of significant value. The sentence imposed resulted in a head sentence of five years with an effective non-parole period of three years and nine months. I note as Mr. Dhanji pointed out in argument today that the aggregate sentence imposed was in terms as I have just indicated. This Court (Santow, JA. Bell and Howie, JJ.), apart from changing the non-parole period in relation to count 3 (from one year nine months to one year), declined otherwise to intervene. The aggravating factors which contributed to the objective seriousness of the offences, in terms of Ponfield (supra) were similar to those in the present case, namely:-

(b) the applicant had a lengthy prior record and particularly for later offences (those later offences being concentrated over six months to support a drug habit);

(d) over $20,000 was taken from private houses in aggregate, excluding the Form 1 matters and the offences were planned, albeit without sophistication. 39 Whilst there are some different facts in the case of Johnstone (supra) and the present case, the sentencing outcome in Johnstone (supra) is not wholly irrelevant as it may, in my opinion be seen as a touchstone in considering the relevant or appropriate range of sentences in cases such as the present, although no more than a touchstone or indicator of what the range may be for each case depends upon an evaluation of all factors that enhance or mitigate the objective criminality of the s.112(1) offence.

The discount for remorse or contrition 40 A specific aspect in relation to this ground is raised as to the discount or absence of discount for remorse or contrition and, particularly, the applicant relies, as a discrete point, upon the failure by the sentencing judge to expressly record a separate discount relating to the factor of remorse. This raises two further points. The first is whether a sentencing judge must specify a discrete discount for remorse assuming that there is evidence of genuine remorse as it was expressed in by Grove, J. in Ponfield (supra) at [49]. The second is whether in this case error has been established in the failure by the sentencing judge to specifically allow for the appellant's expression of remorse. 41 As to the first point:-

• It will often be the case that an offender's conduct in pleading guilty, his expressions of contrition and other relevant factors (including a willingness to co-operate and assist the authorities and the personal risks to which the person thereby exposes himself) form a complex of inter-related considerations: Regina v. Gallagher (1981) 23 NSWLR 220, 228 per Gleeson, CJ.

• Accordingly, an attempt to separate out one or more of those considerations (including, in particular, remorse or contrition) might not only be artificial and contrived but also will be illogical: Gallagher (supra) per Gleeson, CJ.

• The High Court recently in Regina v. Markarian (2005) 79 ALJR 1048 at 1057, citing the abovementioned dicta of Gleeson, CJ. in Gallagher (supra) again has emphasised the difficulties in discounting a sentence by a nominated amount on account of a plea of guilty.

• In Markarian , the High Court, whilst noting that the law strongly favours transparency and that accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public (at 1058), noted also that whilst there may be occasions when some indulgence in an arithmetical process will better serve these ends, there will nonetheless be cases where that is not so because of the number and complexity of the considerations which have to be weighed by a trial judge (and, of course, by extension, a sentencing judge).

• In Regina v. H [2005] NSWCCA 282 at [74], this Court (Studdert, Bell and Latham, JJ.) rejected the submission in that case that the trial judge had erred by failing to quantify a discount for the applicant's pleas of guilty. The pleas included a component representing the contrition that they evidenced.

• Finally in relation to this point I note the observations in Regina v. Saleib [2005] NSWCCA 85, in particular, the observations of Bell, J. (with whom Adam, J. and myself agreed) at [37]. 42 Accordingly, in relation to the first point, having regard to the principles that have now authoritatively been stated and to which I have briefly referred, there is, in my opinion, no specific error established in the circumstances of the present case in the failure by the sentencing judge to specify a discrete discount for the applicant's remorse or contrition. 43 The second point raises the question as to whether or not the sentencing judge erred in failing to expressly consider the evidence as to remorse and contrition. 44 The applicant gave evidence on 21 January 2005 and at transcript (p.8) stated that he now felt "terrible" about having committed all of the offences and "I feel sorry for what I did … I have to pay for what I've done". He stated that having himself had his own wallet stolen since he has come to realise "how other people would feel too". 45 Remorse or contrition may be reflected or demonstrated by an offender's conduct following his or her apprehension (eg., assistance provided to law enforcement authorities) or otherwise. There is no evidence of specific conduct which manifests remorse in this case. Whilst the applicant gave the brief evidence to which I have referred, I do not consider that the sentencing judge was bound to consider that the evidence established such genuine contrition or remorse that he was required to identify it as a factor so material as to warrant specific attention in the instinctive synthesis sentencing approach which his Honour adopted and applied. 46 His Honour correctly identified the offences as having been committed against a personal background of the applicant which his Honour described as "… a repetitious cycle of drugs, drug abuse, crime in gaol over the last 18 years". Against that background and having regard to the brief evidence given by the applicant on the question, any attempt to separate out the applicant's claimed contrition for the purposes of sentencing would, to use the words of Gleeson, CJ. in Gallagher (supra), be artificial and contrived. 47 In Regina v. Thomson & Houlton (2000) 49 NSWLR 383, Spigelman, CJ. (at [117]) observed that a guilty plea is, of itself, equivocal with respect to remorse, stating:- "… A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case, a plea does not indicate genuine remorse or contrition …" 48 It was open to the sentencing judge to proceed upon the basis that, having given the applicant a 25% discount on sentence for the offences in question, the applicant's pleas of guilty were motivated by the obvious advantages which would flow from doing so rather than as reflecting some genuine feeling of shame or guilt about his offending. I am of the opinion that this is the approach his Honour adopted. I do not consider that that approach manifests error. 49 I accordingly propose:-

(b) The appeal is allowed in relation to the commencement date of each of the sentences imposed in respect of count 1 (committed between 21 and 22 June 2001) and count 2 (committed on 16 April 2004), the appeal otherwise be dismissed.

(c) The appellant is accordingly to be sentenced to concurrent terms of imprisonment as follows:-

Count 1: to a term of imprisonment for a period of two years and six months commencing on 8 May 2004 with a non-parole period of one year to expire on 7 May 2005.,

Count 2: to a term of imprisonment of five years and three months commencing on 8 May 2004 with a non-parole period of three years to expire on 7 May 2007. The appellant, accordingly, will be eligible for release on parole on 7 May 2007. 50 SPIGELMAN, CJ: I agree. 51 McCLELLAN, CJ. at CL: I agree. 52 SPIGELMAN, CJ: The orders of the Court are as indicated by Justice Hall. **********

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