Regina v Perese

"In the present context it is clear that the provisions of the statutory regime to which I have referred must have the effect of resulting in a longer sentence or greater penalty than would have been the case if one was dealing only with what is referred to as the primary offence. This has frequently been acknowledged in the authorities. ( R v Bachelor (1952) 36 CAR 64 at 67-8; R v White (1981) 28 SASR 9 at 12-14; and R v J (1992) 59 SASR 145 at 152). The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in subs 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. " 39 Sperling J agreed with the reasons of the Chief Justice and Carruthers J. 40 In R v Harris [2001] NSWCCA 322 Simpson J returned to the topic. On this occasion her Honour said:- "A judge sentencing for an offence in relation to which he or she is asked to take into account additional offences should give due recognition to the gravity of those offences: ( R v Morgan (1993) 70 A Crim R 368; R v Barton [2001] NSWCCA 63, unreported, 5 March 2001; R v Bavadra [200j] NSWCCA 292; 115 A Crim R 152. " 41 Her Honour went on to refer to many of the passages I have quoted above, including some of my remarks in Dawson, expressing the view that her opinion stated in Lemene was consistent with that expressed by Wood CJ at CL in R v Bavadra. She continued:- "A particular difficulty confronts sentencing judges where the additional offences are numerous or very serious. The only restriction placed upon the sentencing judge is that the sentence imposed for the offence in relation to which the additional offence is (or offences are) taken into account must not exceed the; 'maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.'" 42 Spigelman CJ and Einfeld AJ agreed with Simpson J. 43 What conclusions follow from the statutory provisions and the remarks that I have quoted. It seems to me that they include the following. Firstly, the taking into account of the additional offences should generally lead to a higher sentence than would otherwise have been imposed. The additional offences demonstrate greater criminality than had the offence charged, and in relation to which the additional offences were taken into account, stood on its own. As the Chief Justice said in R v Barton, " a court … takes into account the matter for which guilt has been admitted, with a view to increasing a penalty that would otherwise be appropriate for the particular offence". The first sentence in the passage I have quoted from R v Lemene is to similar effect. 44 Of course, I do not suggest that a higher sentence will result in all cases. Sometimes the offences taken into account are almost but incidents of the offence charged. Sometimes the criminality in them pales into insignificance compared with that involved in the offence charged. And no doubt there are other circumstances which will lead to the same result. 45 Secondly, to adapt the words of Wood CJ at CL in Bavadra, "proper weight (should) be given to the additional offences" and "the sentence imposed, in respect of the count for which they are taken into account, must reflect the totality of the criminal involvement". I acknowledge that the last passage was contained in a sentence wherein his Honour was referring to serious offences. However it cannot be thought that his Honour intended an illogical departure from the basic principle that all sentences, not only those for serious offences, should reflect the criminality involved. See also the first sentence I have quoted from R v Harris. 46 Thirdly, at least many other common facets of sentencing practice are to be taken into account. These include acknowledgments of guilt, principles of totality and the utilitarian benefits resulting to the justice system. - Bavadra and R v Dawson. 47 Fourthly, subject to the statutory limit and two other matters, there is nothing to suggest that in the determination of the weight to be given to the offences taken into account, there should be any departure from normal sentencing principles. 48 One of these matters is the Chief Justice's suggestion that the way in which the court takes additional offences into account is by giving greater weight to personal deterrence and retribution - only two of the five purposes of criminal punishment mentioned in Veen v R (No 2) (1987-1988) 164 CLR465 at 476. His Honour cited no authority for the implicit suggestion that the other three purposes do not figure in the exercise and, with respect, I am unable to see that they should not. Protection of the community and general deterrence, to mention two of the other purposes, are no less important in the case of the burglar who has a dozen or so such offences taken into account. And in Bavadra Wood CJ at CL referred to the issue of rehabilitation. 49 The second of the matters is Simpson J's statement in Lemene that:- "an offender who adopts the procedure (of having offences taken into account) is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted. If that were not so, the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts. For it to be attractive to an offender, it must afford some benefit to him or her also." 50 It would appear from the report that in R v Lemene Simpson J was not referred to Bavadra or Dawson. However she was clearly aware of these authorities in R v Harris where she said, with the concurrence of the other members of the court that her opinion stated in Lemene was consistent with that expressed by Wood CJ at CL in R v Bavadra. 51 With respect, I am unable to agree. Firstly, in R v Bavadra Wood CJ at CL drew attention to a number of benefits to an offender in agreeing to have offences taken into account which would exist irrespective of whether there was a discount for adopting that procedure rather than pleading guilty to the same offences charged. Secondly, while Wood CJ at CL recognised that "there can be a saving of the resources of the law enforcement agencies and the courts concerned", that is not a necessary incident of the adoption of the procedure. Thus while in the case of this offender, the offence charged was that committed at the National Bank and that committed at the Westpac Bank was taken into account, his co-offenders were charged with the offence committed at the Westpac Bank and in the case of one of them the offence at the National Bank was taken into account. The applicant and his co-offenders were dealt with together before Judge Kirkham. It seems clear that both offences were fully investigated and there is nothing to suggest that there was any benefit to the administration of justice from the adoption of one course rather than another. Previous experience - e.g. in R v Kay [2000] NSWSC 716 is to similar effect. 52 I do not doubt for one moment that where there is utilitarian benefit to the justice system from the taking into account of additional offences it is appropriate that that be recognised in a sentence lower than would otherwise be imposed. Considerations which result in discount for a plea of guilty - see R v Thomson and Houlton (2000) 49 NSWLR 383 so dictate. And as in the case of a plea, the reward or discount given to an offender should, within limits, vary with the benefit to the justice system. 53 Of course when offences are taken into account, general considerations such as totality are likely to operate as reducing factors. An offender's willingness to admit to the offences may be a firmer indication of contrition and prospects of rehabilitation. However, as I said in R v Dawson, I see no justification for a general approach of imposing a lower penalty for matters taken into account than when they are the subject of a charge, in effect, just because they figure on a different piece of paper. Experience shows that it is impossible to predicate that in all cases, the justice or law enforcement systems benefit from the difference and there is otherwise no basis in the statute or logic for introducing yet another discount from what the considerations in Veen v R (No 2) would indicate to be a proper sentence. 54 Because of the length of the sentence imposed, I would propose that leave to appeal be given. However, the appeal should be dismissed. 55 Before leaving the matter, there is one further matter to which I would wish to advert. During the course of the appeal, statistics kept by the Judicial Commission in respect of offences under s 97(1) were brought to the court's attention. They reveal that since May 1999 (when the decision in R v Henry was delivered), of 205 offenders dealt with for offences under s 97(1) and who were under twenty-one and who had pleaded guilty, 165 were sent to prison. Of those that were, 57 or 34% had head sentences imposed of, or of less than, 36 months, and 80 or 48% had head sentences imposed of, or of less than, 42 months. 56 Of the 165 sent to prison, 82 (50%) had minimum, fixed or non-parole periods of 18 months or less. A further 38 (23%) had minimum, fixed or non-parole periods of between 18 and 24 months and a further 19 (12%) had minimum, fixed or non-parole periods of between 24 and 30 months. 57 I appreciate that not all offences under s 97(1) are as serious as those fulfilling the guidelines in R v Henry, generally meriting head sentences of between four and five years, but the above statistics do give cause for concern that insufficient attention is being given to both what was decided and the reasons in that case. For the prevalent and serious offences falling within s 97(1), only 45 out of 205 offenders (22%) falling within the description indicated were sentenced to non-parole or minimum terms of more than two years. It is perhaps no wonder such offences are prevalent. 58 Since the above was written the High Court has made its decision in Wong and Leung v R [2001] HCA 64. Notwithstanding the remarks in that case concerning guideline judgments, when regard is had to the limited reliance which I have placed on the guideline in R v Henry, I do not regard it as necessary to rewrite anything I have said. However I would add this. I was a member of the Court in R v Henry. I took the view that as a general proposition, an appropriate sentence for offences of the nature described in the guideline should be higher than did the majority. I set out at some length my reasons for that conclusion. Not all that I said applies to the circumstances here, particularly because of the absence of a weapon, but much does. I do not need to repeat them but the remarks that do apply demonstrate that the sentence imposed by Judge Kirkham was not excessive, let alone manifestly so.

59 McCLELLAN J: The applicant, Jonathon Perese, seeks leave to appeal against a sentence imposed on him by Kirkham DCJ on 26 May 2000. The applicant pleaded guilty to an indictment charging him with the offence of robbery in company. The offence is one for which s 97(1) of the Crimes Act provides a maximum penalty of twenty years imprisonment. Although the indictment included only one offence, the sentencing judge was asked to take into account, under s 33(3) of the Crimes (Sentencing Procedure) Act 1999 the fact that the applicant also participated in another robbery in company with his brother who participated in both robberies. 60 The applicant was sentenced to a term of six years and six months imprisonment, and Kirkham DCJ, having found special circumstances, set a non-parole period of four years. 61 The applicant submits that the sentence imposed was excessive. It is submitted that: the sentencing judge failed to correctly apply the principles provided in R v Henry & Ors (1999) 46 NSWLR 346; failed to give adequate weight to the applicant's plea of guilty; erred by not separately identifying the component of the sentence relating to the other offence, and; imposed a sentence which was manifestly excessive. 62 The offence on the indictment was committed on 12 February 1999 when at about 5 pm the applicant, his brother, Leasuasu Perese, and a third man entered the National Australian Bank at Parramatta. They jumped over the service counter, intimidated the staff who were made to stand back against a wall and took a total of $99,000 including money from a safe. No weapon was apparent, the offenders escaping on foot. No person was injured. None of the stolen monies has been recovered. 63 The other offence took place at about 3.50 pm on 17 February 1999 when the applicant, his brother, another male and a female entered the Parramatta branch of the Westpac Bank. The female joined the queue and, when at the counter, one of the men lifted her onto it where she cried out "Don't hit the button", a reference to the button that operated the robbery shutters in the bank. The men then jumped over the counter and threatened the staff and took cash totalling $26,532. Again, no weapon was observed and no one was injured. 64 The applicant was arrested later that day. A search of the premises where he was found with his brother recovered cash totalling $1,100. 65 Kirkham DCJ was urged to consider the appropriate sentence having regard to the guideline judgment of this Court in Henry. His Honour expressly determined that it was not applicable with respect to Leasuasu Perese, however, with respect to the applicant, the position is not entirely clear. Although Kirkham DCJ does not indicate whether Henry should be applied, his Honour considers the matters relevant to sentence having regard to the factors identified as relevant in Henry. 66 The decision in Henry concerned the offence of armed robbery and the principles which it provides must be understood as particularly relevantly to an offence which involves a weapon (p 380). Because the present matter did not involve a weapon, the guidelines set out in Henry were of less utility than might otherwise have been the case. 67 Kirkham DCJ identified the following matters as relevant when sentencing the applicant.

1. The applicant was, at the date of sentence, aged nineteen years and although young, he has a significant criminal history. His first appearance was before the Cobham Children's Court, on two charges of armed robbery in company. Following an appeal there was a reduction in the control order provided. In December, 1997, some three months after the amelioration of his control order, he appeared again at the Cobham Children's Court on one charge of robbery, one of assault with intent to rob and three of robbery in company. A further control order was imposed of some ten months. Two months later he appeared at the same court on one count of break, enter and steal. In June 1998 he appeared at Redcliffe Magistrate's Court in Queensland on two charges of wilful destruction and was dealt with according to the equivalent provisions of the then s 556A of the Crimes Act , now s 10 of Crimes (Sentencing Procedure) Act 1999. He appeared again at the same court on 29 June 1998 on a count of break and enter and, together with Leasuasu Perese, he was dealt with in the same way. 2. Although he, at first, denied any involvement in the robbery when indicted, he pleaded guilty to the offence. He also asked that the second matter be taken into account. 3. In neither of the matters was a weapon used. 4. There was a degree of planning between the applicant and his brother in relation to the offences. 5. There was no violence in either robbery although there was the real threat of violence. 6. The victims, being bank officers, were in a vulnerable position. 7. Large amounts were stolen, $99,000 at National Australia Bank and $26,000 at Westpac. 68 Kirkham DCJ found that it was necessary to consider the principles of totality when sentencing, stating that the crimes displayed criminality in the mid range of seriousness for these types of offences. 69 The subjective material before the court revealed that the applicant had grown up in a dysfunctional Samoan family where there was an extensive history of alcohol and drug abuse. His mother walked out on the family when the applicant was aged five years, leaving him without significant adult supervision. He achieved little at school, leaving at age fourteen, and has virtually no work experience. 70 The applicant has lived in a de facto relationship for some years and has a four year old son from that relationship. The applicant has abused narcotics since age fourteen, becoming an intravenous heroin user, spending about $200 per day on his habit. His crimes have been motivated by a desire to have money with which to acquire drugs. 71 Kirkham DCJ found that because of his youth, genuine contrition and regret, the applicant had good prospects of rehabilitation. For these reasons he provided, upon release, for an extended period of supervision by the Probation and Parole Service.

The application of Henry 72 As I have indicated, it is not entirely clear how, if at all, the sentencing judge utilised the guideline judgment in Henry in the sentencing process. However, he did not consider the judgment relevant to the sentencing of the applicant's brother, and, as he found that they each carried the same degree of criminality in relation to the relevant offences, it is likely that he ultimately decided that the Henry guidelines were not appropriate. The applicant submits that Kirkham DCJ should be understood to have determined that Henry should be distinguished having regard to the amount stolen, the degree of planning and the prior record of the offender. It is submitted that his Honour placed undue emphasis on these matters with the consequence that the sentence was unduly harsh, falling outside the sentence which the guideline would suggest to be appropriate. 73 There may be a question as to whether the "guideline judgment" in Henry can withstand challenge having regard to the decision of the High Court in Wong v The Queen; Leung v The Queen (2001) HCA 64 in which judgment was delivered after the present appeal was argued. However, it is unnecessary to consider that question for I am of the opinion that this was not a case where it was appropriate to apply the guideline judgment. There are a number of relevant matters. The offence was committed without the use of a weapon although there was, nevertheless a real and significant threat of violence. The robbery was obviously planned and executed in a coordinated manner. Although the applicant was young he has a very poor criminal record and a large amount of money was taken. The applicant entered a plea of guilty but the Crown had a strong case and the value of the plea must accordingly be discounted.

The plea of guilty 74 The applicant submits that the sentencing judge erred because he did not indicate the extent, if at all, that the applicant was to receive some benefit for having pleaded guilty to the count on the indictment and admitting the further offence. It is submitted that his Honour should have spelt out the manner in which the plea of guilty was taken into account and what, if any, discount was allowed and the basis for that discount. 75 Kirkham DCJ adverted to the applicant's guilty plea acknowledging that "as in Henry's case, there was a plea of guilty." However, he does not indicate how he has dealt with that plea in the ultimate sentence. 76 In R v Thompson (2000) 49 NSWLR 383, this Court considered the appropriate approach to sentencing offenders who have entered pleas of guilty. A sentencing judge is required to state that a plea of guilty has been taken into account and encouraged to quantify the effect of the plea on the sentence. The requirement to state that a plea has been considered is designed to ensure that the sentencing judge considers the matter. The encouragement to quantification is, inter alia, designed to ensure that the benefits which flow to the criminal justice system from a plea are articulated with the intention that there be an identified incentive to others to take the same course. 77 In the present case, the reference by Kirkham DCJ, to the plea of guilty is sufficient to satisfy me that he considered that matter when imposing the sentence. Although it would have been preferable if he had proceeded to quantify the effect of that plea on the ultimate sentence, when the term imposed is considered, I do not believe that error is revealed.

Section 33 of the Crimes (Sentencing Procedure) Act 1999 78 Kirkham DCJ dealt with the other robbery to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 by saying "in my view, applying the principle of totality to these two robberies the applicant will be sentenced upon the basis that his crimes display criminality in the mid range of seriousness for these types of offences." His Honour then proceeded to impose the sentence without identifying the components of it, as they derived from each offence. It is submitted that by not articulating the various components comprising the sentence, his Honour was in error. 79 It is further submitted that the principles provided by the High Court in Pearce v R (1998) 194 CLR 610 require that, if it be the case that an additional penalty is required to be imposed, then quantification of the additional penalty is required. His Honour is said to have erred by:

(i) Failing to consider and identify the appropriate sentencing in respect of the matter on indictment and the additional penalty imposed in respect of the matter taken into account;

(ii) Failing to consider and identify the discount attributable to the applicant adopting the procedure provided for by s 33 of the Crimes (Sentencing Procedure) Act 1999;

(iii) Having separately considered the appropriate penalties, failing to correctly consider the issue of accumulation of any penalty and the application of the totality principle. 80 This Court has had occasion to consider the appropriate approach to sentencing when additional offences are taken into account. They are currently known as "Form 1 matters", a reference to the form on which they are set out, and, although the relevant section has changed, and the appropriate legislation has evolved, the substantive provisions have remained the same. Recognising the utilitarian value of an offender asking for other matters to be dealt with and thereby avoiding the necessity for a further trial, this Court has been prepared to impose a lesser penalty in respect of the additional matters, than it would if they had been separately prosecuted. However, the extent of the reduction in penalty has been the subject of some disagreement. 81 The settled principles are:

(a) the penalty imposed when a matter is taken into account must not exceed the maximum penalty which the court could have imposed in respect of the primary offence; (s 33(3)).

(b) the sentence for the foundation offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton [2001] NSWCCA 63.

(c) the sentence to be imposed must reflect the totality of a person's criminality: R v Morgan (1993) 70 A Crim R 368 at 372; R v Bavadra (2000) 115 A Crim R 152 at 158, [2000] NSWCCA 292; 115 A Crim R 152 at 158.

(d) two important elements which must be reflected in the sentence imposed when additional matters are taken into account are the need for personal deterrence and the community's entitlement to extract retribution from serious offenders: Barton .

(e) the sentence must reflect the fact that the Form 1 procedure provides significant advantages to the administration of justice. These are savings similar to those when a plea of guilty is entered and the opportunity is provided "to clear the offender's slate" allowing an enhanced prospect of rehabilitation: Bavadra . However, there has been some discussion by members of this Court with respect to the reduction to be allowed for these advantages. 82 In R v Harris [2001] NSWCCA 322, Simpson J suggested that there are differences in the approach her Honour took to determining the benefit to be allowed to an offender who adopted the Form 1 procedure and that of some other members of this Court. In R v Lemene [2001] NSWCCA 5, 118 A Crim R 131, her Honour expressed the view that an offender who "adopts the procedure is entitled to expect an additional penalty significantly less than had separate charges been presented." Her Honour added: "If that were not so then the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts and must therefore be implemented in such a way as to afford benefit to an offender." 83 In R v Dawson, [2000] NSWCCA 399, Hulme J, with whom Barr J agreed, said: "However, subject to the limits imposed by s 21 itself, (now replaced by s 33 of the Crimes (Sentencing Procedure) Act 1999) it seems to me that there is no basis in either the statute or logic to justify a general approach of treating matters taken into account as thereby meriting a lower penalty than had they been the subject of specific charge. If the practice of sentencing courts is as Mr Byrne asserts, it is in my view, wrong." 84 In my opinion the approach which should be taken to the sentence to be imposed when additional matters are taken into account, must reflect the elements which I have previously identified. However, because the procedure may often allow matters to be finalised, which have not been investigated or, where an investigation has failed, I am of the view that the penalty imposed must, depending on the circumstances of the individual case, reflect this element of the utilitarian benefit in the offender adopting the procedure. This element requires a greater leniency of sentence than might otherwise have been imposed if the matters had been investigated and charges brought which result in a guilty plea. Accordingly, there may be cases where a significant reduction on this account is appropriate but this will not always be the case. 85 An unusual feature of the present case is that although the applicant was indicted with respect to the National Australia Bank robbery, he was not, with respect to the Westpac robbery, although his brother was indicted for the Westpac robbery but not the National Bank robbery. As a consequence there could have been no utilitarian benefit arising from the avoidance of an investigation. It follows that there is little to distinguish this case from the situation where a plea has been entered to a specific charge. 86 It was pointed out by Simpson J in Harris that it has not been the practice in sentencing where additional offences are taken into account to identify any increase in the sentence imposed by reason of the additional matters. Her Honour, although not determining the matter, expressed the view that because lack of quantification of any increase may leave the sentencing process unclear, "it would be appropriate to reconsider the approach taken to sentencing in these circumstances." See para 32. 87 In Pearce, the High Court stated that when sentencing an offender for multiple offences it is necessary for the judge to fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as issues of totality. Explaining the need for this approach, McHugh, Hayne and Callinan JJ in their joint judgment said, at 624: "Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision [cf House v King (1936) 55 CLR 499]. It is, then, all the more important that proper principle be applied throughout the process. Questions of cumulation and concurrence may well be affected by particular statutory rules. [See Crimes Act, s 444(2) and (3); Sentencing Act 1989 (NSW), s 9, see also Sentencing Act 1991 (Vict), s 16]. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences [R v Lomax [1998] 1 VR 551 at 564 per Ormiston JA]." 88 There are of course, significant differences between the circumstances considered in Pearce and the exercise of the discretion pursuant s 33(3). Under s 33(3), a sentencing judge is imposing a sentence in relation to the principal offence and although required to take the further offence into account, and impose an additional penalty, no separate penalty is imposed. Indeed, s 34(1) provides that a separate penalty may not be imposed. Accordingly no question of accumulation or concurrence will arise although problems of disparity between co-offenders could arise. 89 In my opinion, the approach tentatively supported by Simpson J, should be encouraged by this Court, but I do not believe that a failure to identify each element should constitute appellable error. The same approach as that which has been adopted in relation to a plea of guilty should be followed when further offences are taken into account: (see Thompson at 419). 90 Sentencing judges should endeavour to articulate the component of the sentence which relates to the original offence and that which relates to the other matters.

Was the sentence excessive? 91 It is finally necessary to consider whether the sentence imposed was manifestly excessive. Having regard to the serious nature of the offence, which included the threat of violence, the large amount stolen, and the fact that the robbery occurred in company, a significant prison sentence was appropriate. Although the applicant is a relatively young person, his criminal history demands a sentence at the higher end of the appropriate range. 92 In my opinion, a sentence of six years discounted by fifteen percent for the plea of guilty would have been well within the appropriate range for this offence. The plea had utilitarian benefit although the case against the applicant was strong. 93 The additional matter was also objectively serious and standing alone would have deserved a similar sentence in the event of a plea of guilty. In these circumstances a total prison term of six years and six months was in my view low. Accordingly, I am satisfied that no error has occurred. 94 For these reasons I would grant leave to appeal but dismiss the appeal.

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