REGINA v. PALMER [2005] NSWCCA 349

Crombie [1999] NSWCCA 297 LPY (2002) 136 A. Crim. R. 237 CASES CITED: El Masri [2005] NSWCCA 167 Doan (2000) 50 NSWLR 115 Depoma [2003] NSWCCA 382 Veen (No. 2) (1988) 164 CLR 465 Walker [2005] NSWCCA 109

REGINA v. PARTIES: PALMER, Michael James

Crown: D. Woodburne COUNSEL: App: S. McNaughton

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

LOWER COURT FILE NUMBER(S): 04/31/0179; 04/31/0180; 04/31/0399

IN THE COURT OF CRIMINAL APPEAL 2005/1050

GROVE, J. HALL, J. SMART, AJ.

THURSDAY 13 OCTOBER 2005 REGINA v. MICHAEL JAMES PALMER Judgment 1 HALL, J: By application dated 6 June 2005, the applicant, Michael James Palmer, seeks the leave of the Court pursuant to s.5(1)(c) of the Criminal Appeal Act 1912 to appeal the sentences imposed upon him by the District Court of New South Wales at Gosford (English, DCJ.) on 17 November 2004. 2 The applicant relies upon two grounds as follows:- "1. That the sentencing judge failed to take into account the fact that all the offences were capable of summary disposal. 2. The sentencing judge's treatment of the applicant's criminal history as an aggravating feature." 3 The Crown contends that no error, as claimed, was made and that, in any event, there is no basis, having regard to the relevant objective and subjective circumstances, for the formation of the opinion required by s.6(3) of the Criminal Appeal Act 1912, namely, that "some other sentence … is warranted in law and should have been passed": Regina v. Simpson (2001) 53 NSWLR 704; 126 A. Crim. R. 525 at [79].

Factual matters relating to the offences 4 The applicant entered pleas of guilty on various dates to the offences charged and stood for sentence in respect of those offences, as I have stated, on 17 November 2004. A further four matters were taken into account on two Form 1 documents in accordance with the procedure prescribed in Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. He was sentenced to an effective overall term of imprisonment of five years and six months comprised of a non-parole period of three years with a balance term of two years and six months. 5 The particulars of the offences are set out in the Crown's written submissions which, for convenience, I reproduce below:- " Offence 1:- Break, enter and steal committed at the NW^ café between 12.00 am on 9 March 2004 and 11.05 am on 10 March 2004 at Hardys Bay. The applicant attempted unsuccessfully to force entry to the premises by cracking a glass panelled rear entry door. He then broke in by throwing two rocks through a glass panelled concertina door causing the glass to smash. The applicant entered the premises and in doing so he sustained a cut causing his blood to drip on to the floor of the café. That blood was later examined and found to contain the applicant's DNA. The applicant stole a black leather attaché case containing 300 musical compact disks, $150 in cash from the cash register and $210 in cash from a Westpac Bank Bag behind the reception desk. The total value of the property stolen was $7,400. On 6 July 2004, police received a DNA link notification file, linking the applicant's DNA to the matched scene sample. On 10 August 2004, police spoke to the applicant at Parramatta Police Station. The applicant declined to be interviewed but consented to a DNA buccal swab which was obtained from him. The applicant was charged with this offence. He pleaded guilty on 7 October 2004 at Gosford Local Court and on 14 October 2004 he was committed for sentence to the District Court. (When sentenced for this offence, the sentence was ordered to commenced on 8 April 2004 - see below.)

Offence 2:- Larceny committed on 14 March 2004 at Beverly Hills. The applicant broke into a car parked on King Georges Road at Beverly Hills and stole a plastic crate containing a large amount of mobile phones and accessories valued at $25,000 which were found in the applicant's possession (in a vehicle) on 15 March 2004 when he was arrested on other matters. The applicant declined to be interviewed in relation to the mobile phone and accessories. The applicant pleaded guilty to this offence on arraignment at Gosford District Court on 19 August 2004. He asked the court to take into account two charges of goods in custody on a Form 1 relating to stolen property found including person personal identification cards found in his possession on 15 March 2004, and in respect of which the applicant gave a false explanation for his possession. Offence 3:- Take and drive conveyance, a white Toyota Camry station wagon, between 3.00 pm on 14 March 2004 and 3.00 am on 15 March 2004 at Campsie. The applicant broke into a car which was parked, and left in a locked and clean condition, at the Bogas Service Station in Campsie. The applicant was seen driving the car at 3.00 pm on 15 March at Springfield, and was arrested a short time later when he opened the driver's side door and sat in the driver's seat. The applicant denied having driven the car earlier. A 'jiggle' key was in the ignition. The car had been driven about 250 kilometres since it had been taken and it was found to be littered with rubbish. Two matters of possess prohibited drug were taken into account on a Form 1 relating to cannabis and a white powder found on the applicant when he was arrested. The applicant was arrested and charged on 15 March 2004. He declined to be interviewed. On 10 May 2004, the applicant pleaded guilty and he was committed for sentence to the Gosford District Court. Offence 4:- Possess implement capable of being used to enter and drive a conveyance on 15 March 2004 at Springfield. When arrested in respect of count 3 above, the applicant was found to be in possession of a key which had the teeth filed off in order to make it a 'jiggle' key, that is, a key used to manipulate door and ignition locks in motor vehicles. 6 The particulars of the sentences imposed are also set forth in the Crown's submissions, which I reproduce:- " The sentences imposed Offence 1: Break, enter and steal (s.112(1) of the Crimes Act 1900, maximum penalty of imprisonment for 14 years):- • non-parole period of two years to date from 8 April 2004 and expiring on 7 April 2006; • balance of term of three years and six months concluding on 7 October 2009. (Note that the first six months of this sentence is being served concurrently with sentence for five other offences imposed on 16 December 2004 at the Gosford Local Court). Offence 2: Larceny (s.117 of the Crimes Act 1900 , maximum penalty of imprisonment for five years) (taking into account Form 1 matters of goods in custody):- • non-parole period of nine months to date from 8 April 2005 and expiring on 7 January 2006; • balance of term of 12 months expiring on 7 January 2007. Offence 3: Take and drive conveyance (s.165(1)(a) of the Crimes Act 1900 , maximum penalty of imprisonment for five years) (taking into account Form 1 matters of possess prohibited drug):- • non-parole period of two years to date from 8 April 2005 and expiring on 7 April 2007; • balance of term of six months expiring on 7 October 2007. Offence 4: Possess implements capable of being used to enter and drive a conveyance (s.114(1)(b) of the Crimes Act 1900 , maximum penalty of imprisonment for seven years);- • a non-parole period of two years to date from 8 April 2005 and expiring on 7 April 2007; • balance of term of eight months expiring on 7 December 2007."

Ground 1: The learned sentencing judge erred in failing to take into account the fact that all the offences were capable of summary disposal 7 The Criminal Procedure Act 1986 makes provision in Chapter 5 of the Act for some indictable offences to be dealt with summarily in certain circumstances. Section 260 is in the following terms:- "(1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment. (2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by a Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment." 8 In its written submissions, the Crown sets out particulars of the relevant maximum penalties in the event that counts 1, 2, 3 and 4 were dealt with summarily and it is convenient here to reproduce from the Crown submissions those particulars:- "• the offence the subject of count 1, namely, BES in contravention of s.112(1) Crimes Act , where the value of the property stolen does not exceed $15,000, is a Table 1 offence and is to be dealt with in a Local Court unless an election is made for trial on indictment. If dealt with summarily, the maximum penalty which can be imposed is two years imprisonment; • the offence the subject of count 2, namely, Larceny, in contravention of s.117 Crimes Act , where the value of the property stolen exceeds $5,000, is a Table 1 offence and is to be dealt with in a Local Court unless an election is made for trial on indictment. If dealt with summarily, the maximum penalty which can be imposed is two years imprisonment; • the offence the subject of count 3, namely, take and drive conveyance in contravention of s.154A(1)(a) Crimes Act , is a Table 2 offence and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor. If dealt with in the Local Court the maximum penalty which can be imposed is two years or 50 penalty units or both; • the offence the subject of count 4, namely, possess implements capable of being used to enter and drive a conveyance in contravention of s.114(1)(b) Crimes Act is a Table 2 offence and is to be dealt with in a Local Court unless an election is made for trial on indictment by the prosecutor. If dealt with in the Local Court, the maximum penalty which can be imposed is 12 months or 50 penalty units or both." 9 The Crown accepts that, although there is no record of it, it is likely that it was the prosecutor who made the relevant election in respect of counts 1 and 2 as they are Table 2 offences. It is suggested that this would have been based upon the fact of the objective seriousness of the offences and the applicant's criminal record which includes previous sentences for break, enter and steal and stealing and the fact that the applicant had been released from prison just some weeks before the commission of the offences that are the subject of this appeal. 10 The Court has been referred to the provisions of the relevant guideline which governs an election by a prosecutor: DPP Guideline No. 8. This provides that in all cases, other than those relating to standard non-parole period offences, an election for an offence to be dealt with on indictment should not be made unless:- "(i) the accused person's criminality (taking into account the objective seriousness and his or her subjective considerations) could not be adequately addressed within the sentencing limits of the Local Court; and/or (ii) for some other reason, consistently with these guidelines, it is in the interests of justice that the matter not be dealt with summarily (eg., a comparable co-offender is to be dealt with on indictment; or the accused person also faces a strictly indictable charge to which the instance charge is not a back-up)." 11 Counsel for the applicant, Ms. McNaughton, has observed that no reference was made by the sentencing judge to the "summary disposability" of the charges and contends that the failure to refer to that factor indicates that her Honour failed to attach weight to it on sentence and that as a result, a lesser sentence was warranted in law. 12 On the hearing of this appeal, Ms. McNaughton of counsel produced a chronology in the matter and it sets out the date of the offence, date of charge, date of plea and committal and date it was first mentioned in the District Court. The applicant's counsel has specifically observed that the break, enter and steal offence was charged later on 11 August 2004. It is submitted, alone, that would not have been an offence to be dealt with in the District Court. Ms. McNaughton's submission is supported by a contention, in particular, that the length of the sentence imposed for each offence when compared to the maximum sentences available on summary disposal as set out in the written submissions, validates Ground 1 of the appeal. 13 The submission therefore is that some mitigation of the sentence on this basis was appropriate, both on an objective and subjective basis. In this respect it is noted by counsel for the applicant that the offences were all committed over a short period of time, namely, between 9 and 15 March 2004, and further it is said that they were clearly related to the applicant's drug problem. Ms. McNaughton emphasised that it was one criminal episode, as she put it, over the period of one week. Whilst the submission asserts that all property was recovered intact and returned to its lawful owners, the Crown submissions observe that available information indicates that the property the subject of offence 1, the 300 CDs and cash amounting to $7,400, have not been returned to the victim. The outcome of this application for leave to appeal, however, will not turn upon any possible disagreement or dispute of fact on that particular aspect of the matter. 14 In dealing with ground 1, it is appropriate to make two preliminary observations:-

(a) there is no specific statutory requirement or obligation to bring into account in determining the appropriate sentence for an offence, the fact that a matter may have been dealt with summarily had no election otherwise been made;

(b) as the Crown, however, has observed, to the extent that the Crimes (Sentencing Procedure) Act 1999 otherwise obliges a sentencing judge to have regard to the general law in determining the appropriate sentences (s.21A(1)), then a number of propositions may be taken from several judgments of this Court. 15 The written submissions on behalf of the applicant and those also on behalf of the respondent refer to a number of decisions of this Court. For the purposes of this application, they are stated in short form as a series of propositions or principles as follows:-

(a) The first is that a judge in the District Court is not bound by the jurisdictional limit imposed on the Local Court when dealing with an offence on indictment which was capable of summary disposal, but may have regard to that limit when the case is one which could appropriately have been disposed of in the Local Court: Regina v. Crombie [1999] NSWCCA 297 at [16]; Regina v. LPY (2002) 136 A. Crim. R. 237 at 240 and Regina v. El Masri [2005] NSWCCA 167 at [30].

(b) Secondly, the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge: Crombie (supra) at [15].

(c) Thirdly, however, the relevant decisions that establish that principle do not go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and the subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Where it appears that that circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal: Crombie (supra) at [16].

(d) Fourthly, the significance of the loss of the chance of the matter being dealt with in the Local Court varies from case to case. In some cases it would contribute to mitigation of sentence. It is a matter to be taken into account, but is not a universal factor for the reduction of sentence: Regina v. Doan (2000) 50 NSWLR 115.

(e) Fifthly, the failure by a sentencing judge to mention the matter in his or her remarks on sentence and the length of the sentence does not necessarily establish that the sentencing judge failed to have regard to the matter. In some circumstances the length of the sentence may not suggest that the matter was overlooked: Regina v. Depoma [2003] NSWCCA 382 at [17].

(f) Finally, in circumstances where a sentencing judge has made no reference to the summary disposal argument in his or her remarks on sentence, it is necessary to consider whether that omission is indicative of error. One way of testing that proposition is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case - if the factor had been taken into account and given appropriate weight, a substantially lesser sentence was appropriate in the case: El Masri (supra) at [45] per Johnson, J. (with whom Hunt, AJA. and Hulme, J. agreed). 16 The circumstances do not, in my opinion, indicate that any significance should be attached to the error said to have occurred in the sentencing judge's failure to mention that the offences could have been dealt with summarily had there been no election by the prosecutor. I mention in passing, as the Crown has observed, that no submission was made by counsel upon this matter, particularly to the sentencing judge. The applicant within approximately a month of release from prison on 12 February 2004 embarked upon a series of offences, the nature and number of which reflect a significant level of criminality against a background which reveals that he had been previously sentenced for similar offences. In my opinion, it has not been demonstrated that the failure or omission said to constitute an error resulted in a misapplication of the sentencing discretion in all the circumstances and I accordingly would dismiss this ground of appeal. 17 I accordingly would dismiss this ground of appeal.

Ground 2: the learned sentencing judge erred in treating the applicant's criminal history as an aggravating feature 18 In the remarks on sentence, the sentencing judge stated:- "The offences are objectively serious, although in respect of the larceny and the take and drive conveyance in each instance, the stolen goods were returned to their rightful owners. The only aggravating feature is that the offender has a criminal record, previous convictions for similar offences in respect of each count. In mitigation, he has, of course, pleaded guilty." (p.8) 19 Counsel for the applicant has contended that her Honour erred in regarding the criminal history as a matter which aggravated the offence. Reliance is placed upon the context in which the relevant reference occurs, namely, following the statement as to the objective seriousness of the offences. It is contended that that context makes it apparent that her Honour was not referring to the criminal history as permitted by Veen v. The Queen No. 2 (1988) 164 CLR 465, but rather the sentencing judge fell into error by using the criminal history to aggravate the objective seriousness of the offences. 20 The Crown contends, on the other hand, that the relevant sentence concerning the applicant's criminal record is immediately followed by the sentence "in mitigation he has, of course, pleaded guilty". This sentence, it is said, demonstrates that the sentencing judge should not be taken to have been referring to matters which aggravate or mitigate the offence (because, it is put, how can a plea of guilty mitigate the objective seriousness of the offence?), but rather to matters which are to be taken into account in determining the appropriate sentences for the offences. 21 Reference to the criminal history can, of course, be relevant to the determination of an appropriate sentence. See Veen (No. 2) (supra). 22 In Regina v. Walker [2005] NSWCCA 109 at [27], Johnson, J. (Giles, JA. and Hoeben, JJ. agreeing) stated:- "Section 21A(4) of that Act provides that the Court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to an Act or rule of law to do so. It has been held that the effect of s.21A(2)(d) and (4) is to require the Court to apply the common law principles in Veen v. The Queen (No. 2) (1988) 164 CLR 465 with respect to use of a prior criminal record on sentence: Regina v. Johnson [2004] NSWCCA 76 at [32]-[37]; Regina v. Wickham [2004] NSWCCA 193 at [24]. In Regina v. Shankley [2003] NSWCCA 253, Howie, J. expressed the principle in Veen (No. 2) as follows:- '[31] The effect of the prior criminal record of the offender, which is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'.'" 23 In the Crown submissions it is observed that Johnson, J. stated at [31], that error had not been demonstrated in the use by the sentencing judge of the applicant's criminal history. Johnson, J. said in that respect:- "As in Berg , there were parts of the applicant's criminal history which the sentencing judge would have been entitled to take into account in accordance with the principles in Veen (No. 2) ." 24 Prior to the passage in question in relation to ground 2 in the remarks on sentence and which provides the basis of complaint, there appears (at p.5) of the remarks on sentence reference by the sentencing judge to the applicant's lengthy criminal history which commenced in 1986, and the nature of prior offences committed by him. The sentencing judge was, in accordance with authority previously referred to, entitled, when sentencing the applicant, to have reference to the applicant's criminal history, but I am inclined to accept that the second or later reference to the criminal record as an aggravating feature should be taken, as counsel for the applicant contends, as referring to a feature which aggravated the seriousness of the offences and in so doing constituted an error. However, upon consideration of all the circumstances in this matter, I am of the opinion that the error is not one which, having regard to the remarks in their totality and, as I have said, the nature and circumstances of the offences committed by the applicant, to have been one which had any relevant significance to the ultimate sentence that was imposed. 25 In summary, given that the sentencing judge in determining the appropriate sentences for each charge was entitled to have regard to the nature of past offences and the repeated commission of similar offences, no significance in my opinion has been demonstrated in the identified error. 26 I am of the view the Court should not intervene on this basis for it has not been demonstrated, in my opinion, that some other less severe sentence was "warranted in law". 27 Accordingly, the orders I would propose would be as follows:-

(b) the appeal be dismissed. 28 GROVE, J: I agree with Justice Hall. 29 SMART, AJ: I also agree. **********

17/10/2005 - Date within the body of the judgment did not correspond with the date on the cover sheet - Paragraph(s) N/A

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