Regina v Webster

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

Attorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146 at para 42 R v Kay [2004] NSWCCA 130 Osenkowski v The Queen (1982) 30 SASR 212 CASES CITED: R v Pearce (1998) 194 CLR 610 Ponfield" (1999) 48 NSWLR 327 R v Richards (1981) 2 NSWLR 464 R v Wheeler [2000] NSWCCA 34

Andrew John Webster - Applicant PARTIES: Crown - Respondent

R Hulme SC - Applicant COUNSEL: A Woodburne - Respondent

SE O'Connor - Legal Aid Commission of NSW SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2004/3286

GILES JA HOEBEN J JOHNSON J

Thursday, 31 March, 2005 REGINA v Andrew John WEBSTER Judgment 1 GILES JA: I will ask Hoeben J to give the first reasons. 2 HOEBEN J: Offences and sentence 3 On 11 March 2004 the applicant pleaded guilty in the Local Court to three counts of break, enter and steal (s112(1) Crimes Act 1900), one count of larceny (s117 Crimes Act 1900) and one count of malicious damage to property (s195(a) Crimes Act 1900). Three further break and enter offences were included on a Form 1. The break, enter and steal offences each carry a maximum penalty of 14 years imprisonment. The larceny and malicious damage offences each carry a maximum penalty of 5 years imprisonment. The applicant was sentenced by Latham DCJ on 28 May 2004. 4 The details of each offence and sentence were: (i) 18/19 May 2001 break, enter and steal - unit block under construction at Marrickville - theft of building materials. Sentenced to 4 years imprisonment with a non-parole period of 2 years commencing 29 February 2004.

(ii) 20 August 2001 malicious damage and larceny - broke back window of tradesman's van and stole variety of tools valued at $1000. Sentenced for each offence to 2 years fixed term both commencing 29 February 2004.

(iii) 21/22 November 2002 break, enter and steal - broke into townhouses under construction at Camperdown and stole fittings such as toilet cisterns etc. Sentenced to 6 years with non-parole period of 3 years commencing 28 February 1995 (the Form 1 offences were taken into account in relation to this offence).

(iv) 10/11 December 2002 break, enter and steal - broke into a building site at Surry Hills and stole kitchen appliances. No specific sentence - item 1 on Form 1.

(v) 20/21 January 2003 break, enter and steal - broke into building site at Dulwich Hill and stole building items. No specific sentence - item 2 on Form 1.

(vi) 25/26 May 2003 break, enter and steal - broke into a house at Enmore and stole building tools and electrical fittings. Sentenced to 5 years imprisonment with non-parole period of 2 years commencing 29 August 2005.

(vii) 30 May - 1 June 2003 break and enter with intent to steal - broke into a unit at Rockdale with intention of stealing. No specific sentence - item 3 on Form 1. 5 The effect of the sentences was a head sentence of 7 years with a non-parole period of 4 years. 6 The value of the items stolen was in the order of $20,000. None of the stolen property has been recovered. Except for the last two offences (25/26 May 2003 and 30 May -1 June 2003) the applicant was either on bail or on parole at the time when the offences were committed. 7 The applicant was in custody serving sentences for other matters from 9 September 2001 until 8 June 2002 and from 30 August 2003 until 28 February 2004. It was for this reason that some of the sentences for the matters presently under consideration were expressed to have commenced on 29 February 2004.

Factual background 8 The applicant was born on 1 January 1959 and is now forty-five. 9 The applicant had a lengthy criminal history which went back to when he was thirteen. The offences mostly involved dishonesty and driving matters. There were previous episodes of imprisonment and subsequent breaches of parole. The longest sentence imposed was 2½ years with a non-parole period of twelve months in 1995 for aiding and abetting an armed robbery. 10 The applicant had a relatively normal childhood. His parents separated when he was very young but his mother remarried and he related well to his stepfather. His mother died in 1986 and he was affected quite significantly by this tragedy. He remained close to his stepfather and has lived with him when not in custody in recent years. He has no present partner but has two daughters, aged thirteen and twenty-one, from an earlier relationship. Both daughters maintain contact with him. 11 Drug dependence has been a significant feature in the applicant's life. He used cannabis excessively and LSD occasionally in his youth. He became addicted to heroin at age twenty-nine, shortly after the death of his mother. Cocaine use followed soon after. There has been no attempt at rehabilitation until the present period of incarceration.

Remarks on sentence 12 In considering the objective seriousness of the offences, her Honour noted that they consisted mainly of thefts from buildings under construction of building materials and fittings. Apart from the value of the goods stolen ($20,000), her Honour considered that the offences were objectively serious because of the lengthy course of criminality which they represented. She also noted that six out of the eight offences were committed whilst the applicant was either on bail or on parole. She regarded that as a significant aggravating feature. 13 In relation to subjective matters, her Honour had regard to the delay between the commission of the offences and the matters coming before the court. This had occurred because the applicant had only been identified in relation to the particular offences by DNA analyses of material left at each crime scene. The DNA examination process had taken some time. 14 Her Honour placed particular emphasis on the applicant's lengthy criminal history. She noted that his past offences were drug related and involved the theft of property. Except for the minimum term of twelve months awarded in April 1995 at the Parramatta District Court, the offences had all been dealt with at a summary level. Her Honour observed that "the recidivist nature of his offending now exposes him to increasingly more severe terms of imprisonment." 15 Her Honour had regard to the applicant's relatively normal background, the details of which have been previously recorded. He had a reasonable employment history until he developed his long-standing drug addiction at age twenty-nine. The applicant attributed his continuing criminality from that time to his drug addiction. 16 Despite his age, her Honour noted that he had not sought to deal with his drug addiction until he was incarcerated in 2002. At the time of sentencing he was on a methadone program, which had given him some insight into his behaviour. The pre-sentence report and the psychologist's report were reasonably optimistic about his prospects of rehabilitating himself from drug addiction. 17 Her Honour took into account the applicant's early plea of guilty and considered that the applicant was entitled to "the maximum discount, which they attract". 18 In fixing the sentences for each offence, her Honour had regard to the principles in R v Pearce (1998) 194 CLR 610. Her Honour specifically considered the totality of the applicant's criminality and for that reason partially accumulated the sentences so that the sentence in respect of the 21/22 November 2002 offence was to commence on 28 February 2005. Because of the partial accumulation of sentences and the significant need for supervision if the applicant was to overcome his drug addictions, her Honour found special circumstances and fixed quite lengthy periods for parole supervision.

Appeal 19 The only ground of appeal was that the sentences were manifestly excessive. As was candidly conceded by senior counsel for the applicant, there was no patent error discernible in her Honour's remarks on sentence. The thrust of the applicant's submissions was that, looked at in their totality, the sentences imposed by her Honour were beyond those which were appropriate in all the circumstances of the case. To support that proposition, the applicant relied upon a number of discrete arguments.

Starting point too high 20 The first was an alleged discrepancy between the objective criminality of the offences and the notional starting point for her Honour's sentences. For the purpose of that argument, the applicant assumed (correctly in my opinion) that her Honour had allowed a twenty-five per cent discount for the utilitarian value of the applicant's early plea of guilty. 21 This argument was developed by adding twenty-five per cent to each head sentence to demonstrate that the notional starting points were too high. Emphasis was placed on the fact that building sites and empty houses were generally targeted and that the value of the items stolen was not particularly great. 22 Reliance was also placed upon the guideline judgment in Ponfield (1999) 48 NSWLR 327 in that most of the aggravating features identified in that judgment were absent from these offences. It was submitted that the only aggravating features which were applicable were that the offences were committed whilst on conditional liberty, that the applicant had a past record for similar offences and that a significant number of offences was involved. 23 The approach of adding twenty-five per cent to each head sentence and then applying that derived figure as a percentage of the maximum sentence provided a distorted picture of what her Honour did. Quite apart from other considerations, it failed to have regard to the concurrency and partial accumulation in the sentences and the significant parole periods which were provided for. It was not only each individual sentence which needed to be considered, but the total result. 24 Such an approach failed to have regard to the substantial element of recidivism to which her Honour referred and which was amply demonstrated by the applicant's criminal record. It included a large number of property offences, many of which were aggravated by the fact that they were committed by the applicant whilst on conditional liberty. The five offences for which he was sentenced and the three offences in the Form 1 represented a replication of the same sort of criminality in respect of which more lenient sentences had proved ineffective insofar as personal deterrence was concerned. 25 Such an approach also failed to have regard to the considerable period of time over which the offences had been committed - 18 May 2001 until 1 June 2003 - and that the consistent commission of offences while on conditional liberty required that the sentences reflect a significant element of general deterrence if the integrity of the conditional liberty system was to be maintained. 26 In my opinion, the reliance upon the guideline judgment in Ponfield is misconceived. Sentencing in relation to these kinds of offences does not involve simply adding up aggravating features. It involves a qualitative analysis of the particular facts surrounding the relevant offences, which includes the part played by particular aggravating features. In this case her Honour was not only entitled to but obliged to have regard not only to the sheer number of offences but to their like nature and the fact that many were committed whilst the applicant was on conditional liberty. 27 The remarks of Street CJ in R v Richards (1981) 2 NSWLR 464 remain apposite: "The community must be protected as far as possible from further criminal activities by persons who take advantage of their liberty on bail to commit further crimes. The only means open to the criminal courts to seek to provide this protection is to pass severely deterrent sentences upon those who thus abuse their freedom on bail. This will ordinarily involve a significant accumulation of the sentence for any subsequent offences on top of the sentence proper to be passed for the original offence. It must be made abundantly plain that persons at large on bail cannot expect to commit further crimes 'for free'. On the contrary, they will receive salutary penalties for the very reason that they have abused their freedom on bail by taking the opportunity to commit further crimes."

Relevance of maximum penalty 28 The applicant submitted that the maximum penalty prescribed for the break, enter and steal offences of 14 years was not particularly useful because it referred to the commission of a felony and on the scale of felonies stealing was amongst the least serious. Reliance was placed upon the observations of Grove J in Ponfield at [19]. "Nevertheless, the fact that s112 does, in terms, apply to the full range of felonies renders the maximum less than usually useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies." 29 The remarks of Grove J were made in the context of explaining why s112 offences were not appropriate in a conventional sense for a guideline judgment. The factual permutations were simply too many. His Honour's remarks should not be read as indicating that the maximum sentence prescribed by s112 should not be taken account of. That maximum penalty was specifically set by parliament and reflects the seriousness with which the community views the offence, particularly when in most cases the felony involved is that of sealing. As his Honour pointed out, where a felony other than stealing was involved, "It would be unusual where such a felony had been committed for the Crown not to proceed with charges for that felony which, in many cases, would carry a penalty greater than the fourteen years for which s112 provides." 30 It should also be noted that the aggravating and mitigating factors in sentencing in s21A of the Crimes (Sentencing Procedure) Act 1999 took effect after the judgment in Ponfield was delivered. It is clear that her Honour had regard not just to the maximum sentence provided by s112 but also to the s21A considerations when fixing the sentences. Her approach in this regard does not reveal error.

Delay 31 It was submitted by the applicant that he was disadvantaged by the delay in sentencing (eg the earliest offences were over two years before the applicant was charged) in that during the period of delay, he was in custody for other unrelated matters (9 September 2001 - 8 June 2002, 30 August 2003 - 29 February 2004) and thus lost the benefit of the principle of totality. Had the applicant been charged more promptly, her Honour would have had greater regard for those other periods of imprisonment. 32 Her Honour specifically referred to the delay and the reasons for it. It was only after DNA analyses had taken place that the applicant was identified as the perpetrator of the earlier offences. In that regard the delay was brought about by the applicant's own conduct in remaining silent in respect of those offences. In circumstances where an offender remains silent hoping that the offences will not be discovered, he or she cannot expect a reduced sentence in the absence of demonstrated prejudice. 33 A similar circumstance was considered by McColl JA in R v Kay [2004] NSWCCA 130: "[29] In the present case the applicant's guilt was only determined when the DNA samples taken at the scene of the October 2001 offence were connected to DNA samples given by the applicant in March 2002. There was then a period of some nine months or so in the analysis of the March 2002 sample." [30] During this period the applicant was not suffering any uncertainty as to what might happen to him - other than, it might be surmised, uncertainty as to whether he would be caught and charged in relation to the October 2001 offence. [31] After his arrest on 6 April 2003 he declined to answer any questions in relation to the allegations. He did not enter a plea of guilty until the third occasion on which he came before the Local Court. [32] This is not, therefore, a case where, to paraphrase Wood J in Abookahled , there is reason to suppose that the October 2001 offence should have been dealt with earlier and that during the period of delay the applicant suffered a period of uncertainty as to his fate. It is not a case where the operation of the criminal justice system prevented the October 2001 offence from being dealt with in connection with the January 2002 proceedings. At that stage the applicant's DNA sample had not been obtained. It is true that there was a delay in analysing the sample, but there was no evidence that the applicant was in a state of suspense pending the analysis. [33] Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view, the circumstances of this case do not attract the Todd principle." 34 In relation to the principle of totality, it is not without significance that the offences for which the applicant was sentenced by her Honour both predated and post-dated the first period of imprisonment (9 September 2001 - 8 June 2002). This, it seems to me, is an aggravating feature of the later offences, not a matter which ought properly be considered for the benefit of the applicant. In any event, her Honour had specific regard to the principle of totality and was well aware of the earlier periods of incarceration. It is for that reason that she chose 29 February 2004 as the start point for some of the sentences. No error in her Honour's treatment of the question of delay has been made out.

Treatment of Form 1 offences 35 Error on the part of her Honour is asserted by reference to her Honour's comment that the offence of 21/22 November 2002 was "aggravated by the offences on the Form 1." 36 The comment occurred at remarks on sentence p 2.6. The context is: "The break, enter and steal offence on 22 November 2002 is aggravated by the offences on the Form 1 and was committed whilst on parole for larceny and malicious damage offences for which the prisoner was sentenced on 20 November 2001." 37 Her Honour could have expressed herself more clearly and sentencing judges should be careful to express themselves in accordance with what was said by the Chief Justice in Attorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146 at para 42. However, in the full context I am not persuaded that her Honour was saying more than that the offence was aggravated by it having been committed whilst the applicant was on parole and that the sentence was increased by reason of taking into account the Form 1 matters, having regard to considerations of personal deterrence and retribution. No error has been shown.

Optimism in relation to drug rehabilitation 38 The applicant submitted that her Honour's reference to him being "at the crossroads" should have brought about a similar approach to that considered in Osenkowski v The Queen (1982) 30 SASR 212. Accordingly, it was argued, the sentences imposed should have reflected the "degree of optimism" set out in the pre-sentence report and the psychologist's report concerning the applicant's prospects of being rehabilitated from his drug habit. 39 In her remarks on sentence, her Honour fully reviewed the applicant's history of drug addiction. She accepted the material in the pre-sentence report and in the psychologist's report that the applicant was genuine and enthusiastic in his first attempt at rehabilitation from his drug addictions. Her Honour was not required to reflect these considerations in the total sentence but I am not persuaded that she failed to do so. It was for this reason that she gave the applicant the benefit of a finding of special circumstances and significantly varied the "statutory ratio" to allow him a longer than usual parole period during which he would be supervised. The total non-parole period of 4 years is fifty-seven per cent of the total head sentence.

Sentences at the top of the range of sentences imposed in other cases unwarranted 40 It was submitted that the Judicial Commission's sentencing statistics and the large number of case summaries that were placed before her Honour indicated that the sentences imposed were at the top of the range of sentences previously imposed for offences of this nature. Even having regard to the applicant's history and his conditional liberty status, the offences for which he was sentenced were not of such a nature that called for sentences at that extreme end of the established spectrum. 41 It is true that the sentences were at the higher end of the sentencing range for this type of offence, if one had regard to the sentencing statistics. Her Honour was aware of this in that the statistical and other case materials had been placed before her. Equally, however, her Honour was mindful of the need to fix sentences appropriate to the level of criminality involved. 42 In R v Wheeler [2000] NSWCCA 34 (a case involving sentences for multiple counts of armed robbery) Sully J emphasised that in cases of multiple offences there was a legitimate need to ensure public confidence in the administration of criminal justice and in particular to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose. Her Honour's sentences were in accordance with that guidance. No error has been revealed.

Conclusion 43 The arguments raised by the applicant do not persuade me that the sentences imposed by her Honour were beyond those which were appropriate in the circumstances of the case. The orders which I propose are:

1. Leave to appeal granted. 2. Appeal dismissed. 44 GILES JA: I agree. 45 JOHNSON J: I also agree. 46 GILES JA: Those will, therefore, be the orders.

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