Riley v R

Court of Criminal Appeal (NSW)|2019-04-05|Before: Macfarlan JA, Hulme J, Davies J, MacFarlan JA

Judgment

MACFARLAN JA: I agree with Davies J.
R A HULME J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Orange Local Court to an offence of enter a dwelling with intent to commit a serious indictable offence, being the offence of larceny, in circumstances of aggravation. The circumstance of aggravation was that she entered knowing that a person was present in the dwelling. The maximum penalty for this offence is 14 years' imprisonment.
She was committed to the District Court for sentence. The matter came before his Honour Judge King SC who was asked to take into account three offences on a Form 1 as follows: (1) Take and drive conveyance; and (2) and (3) Dishonestly obtain property by deception.
On 31 Mary 2018 Judge King sentenced the applicant to a non-parole period of two years and nine months commencing 15 December 2017 and expiring 14 September 2020, with a balance of term of one year expiring 14 September 2021.
The applicant now seeks leave to appeal against the sentence on the following grounds:
That the learned sentencing judge erred in applying the principles applicable to the applicant's deprived background; and
That the learned sentencing judge erred in his Honour's consideration of the aggravating features of the offence.

Subjective matters

The applicant gave evidence before Judge King. In addition, his Honour had a pre-sentence report from Ms Claudia Carroll, a Community Corrections Officer, and a psychological report by Anne Lucas, a forensic psychologist.
The evidence and the reports disclosed that the applicant was an Aboriginal woman aged 35 years at the time of sentencing. She was raised in Wellington until approximately the age of 18. Her parents had substance abuse issues, with her mother being a chronic heroin addict who was unable to provide stable and adequate care for the applicant. Her father was not a presence in her childhood, having had a criminal history involving long periods spent incarcerated for offences including murder.
The applicant was predominately raised by her maternal grandparents. She described them as warm, caring individuals who had done their best to raise her in a manner which protected her as far as possible from the instability and deleterious behaviour of her biological parents.
Her grandfather died in 2000 and her grandmother in 2014. She described their death on each occasion as causing a significant destabilisation to her.
Despite the care of her grandparents, the applicant had been a victim of violence from an older cousin, and sexual assault by her biological uncle when she was a child of around eight years of age.
The applicant had her first serious intimate relationship at the age of 18 resulting in a daughter who was aged 15, and another child aged ten or eleven at the time of the sentence proceedings. Those two children were raised by relatives and not the applicant. The applicant's partner had serious substance abuse issues, and the relationship involved violence.
In 2008 the applicant entered another relationship which also had issues relating to violence, substance abuse and instability in a similar fashion to her first relationship. There are two further children of the second relationship being a girl aged eight or nine years and another daughter aged three. Both of those children resided with their father. The applicant described her relationship with that former partner as "toxic".
The pre-sentence report noted that the applicant described an extensive pattern of poly-drug use. She reported using heroin from the age of 16, and the illegal use of prescription medication and methylamphetamine in more recent years. She told Ms Carroll that she had been participating in an opiate substitute program (apparently, methadone) for 15 years and had remained abstinent since she went onto that program. The report noted, however, that the records indicated her continued use of illicit substances which negated any suggestion of abstinence.
Both the pre-sentence report and the psychological report indicated that the applicant had been diagnosed with depression and continued to suffer from that. She had been medicated for it. Ms Lucas also said that the information provided by the applicant suggested long standing problems associated with characteristics of personality disorder, depressed mood and anxiety.
Judge King SC noted the applicant's lengthy and serious criminal history which commenced when she was approximately 12 years old. His Honour noted that she had been convicted of 16 previous offences which could be regarded as being of a relatively similar nature to the offence for which his Honour was sentencing her.
The applicant told Ms Lucas that most of her offending was related to her drug use. His Honour noted that although the applicant had few drug offences on her record, the type of offences in respect of which she had been convicted were offences committed by persons with unresolved drug habits.

Ground 1: That the learned sentencing judge erred in applying the principles applicable to the applicant's deprived background

After his Honour had summarised the material concerning the applicant's background and subjective features, he said this: I accept that the offender's childhood and indeed adolescence, at least up to the age of 18 years, was difficult, being raised in Wellington, a New South Wales town well-known for its social problems, particularly in relation to indigenous persons. I accept that the principles in Fernando and Bugmy are relevant in relation to this matter and operate to have a mitigating effect in relation to the offender's moral culpability, coming from such a poor background. However, she has had many years to overcome that background, in the process of which she has been entirely unsuccessful. There is, however, still some mitigation as a result of that background.

Submissions

The applicant submitted that it was clear from those remarks that his Honour considered that the relevance of the applicant's background diminished in relevance over time because of her failure to make the most of opportunities for rehabilitation, and that such a background could be "overcome".
The applicant submitted, however, that the dysfunction she experienced whilst growing up had continued to have an impact throughout her life, resulting in her own addiction to heroin and a lack of stability in her family. Neither her parents nor her grandparents are alive, and her four children are not in her care.
The applicant submitted that when there was no challenge to the evidence of deprivation, it ought to have resulted in a finding that her moral culpability was lower than someone without that background. The inability of the applicant to take advantage of opportunities to rehabilitate herself did not warrant the giving of less weight to that background, but might be thought to be a product of it. The applicant further submitted that giving "full weight" to a background of social deprivation required consideration of whether that deprivation might moderate considerations of personal and general deterrence, in favour of rehabilitation. The applicant submitted that no such consideration was evident from his Honour's reasons.
The Crown submitted that the sentencing judge accepted that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58 at 62-63 applied, and he expressly found that they operated to have a mitigating effect in relation to the applicant's moral culpability. The Crown submitted, however, that the weight to be placed on this factor remained a matter falling within the discretion of the sentencing judge. The Crown submitted that the authorities, including Bugmy, show that there may be countervailing factors which might reduce or eliminate its effect. The Crown submitted that the sentencing judge did not impermissibly minimise the relevance of the applicant's background. His Honour accepted that the applicant's background of disadvantage should ameliorate to some degree the sentence that would otherwise have been imposed, while still having regard to the issues of general and specific deterrence and the protection of the community.

Consideration

In Bugmy the High Court said at [36]-[37]: [36] …There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. [37] An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando: Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. The Court also said at [43]-[44]: [43] …The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. [44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
Making all due allowance for the fact that the Remarks on Sentence were delivered ex tempore, it is difficult to resist the conclusion that his Honour's remarks (at [31] above) are inconsistent with what was said in Bugmy at [44]. His Honour first notes the relevance of the Bugmy principle, but then appears to qualify it when suggesting that the applicant had time to overcome her background, with the result that her background provides "some mitigation". It may be accepted that what his Honour said is perhaps ambiguous, but the last two sentences of the passage suggest that "full weight" was not given to the applicant's background, as Bugmy requires. Similar remarks made in this Court in Bugmy [2012] NSWCCA 223 at [50] resulted in the High Court upholding the offender's appeal in that case.
On the other hand, the giving of full weight to the applicant's deprived background is but one of a number of considerations when fixing the appropriate sentence: Bugmy at [24], [40] and [44] - [46]; Ingrey v R [2016] NSWCCA 31 at [34]-[35]; Johan v R [2015] NSWCCA 58 at [19]. It may be that this was what the sentencing judge in the present case was intending when making the remarks set out, but the matter is attended with sufficient doubt to conclude that error has been demonstrated.

Ground 2: That the learned sentencing judge erred in his Honour's consideration of the aggravating features of the offence.

In his Remarks on Sentence, Judge King said this: Her criminal record indicates that she has a contumelious disregard for the law. An aggravating circumstance in relation to the enter dwelling house with intent is that there was in fact a person inside, as must have been realised by her on seeing an open door with the car keys accessible. A further aggravating circumstance is her criminal history. Each of those circumstances must be taken into account in determining the appropriate sentence. A further aggravating circumstance is that at the time of this offence, and the matters on the Form 1, she was in fact on parole. (emphasis added)
Much earlier in his Remarks, his Honour said this: I accept that the objective seriousness of the offence in the circumstances is somewhat below the mid-range of objective seriousness for offences of this nature.

Submissions

In his written submissions, counsel for the applicant submitted that the passage set out (at [39] above) demonstrated error in two ways. First, the fact that a person was inside the residence was in fact an element of the offence. In that way there had been double counting in respect of the offending. Secondly, counsel submitted that his Honour erred by finding that the applicant's criminal history was a "further aggravating circumstance".
At the hearing of the appeal, the second asserted error was abandoned.
The Crown submitted that his Honour was not treating the presence of the person in the house as an additional aggravating factor, but was noting the particular circumstance of aggravation that applied to the charge. The Crown submitted that the particular circumstance of aggravation could not have been confused with a factor appearing in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) so as to suggest that there was double counting. The Crown pointed out that his Honour had already dealt with the issue of the objective seriousness of the offence sometime before he came to deal with aggravating factors.

Consideration

It is not clear why his Honour mentions, at this point in his Remarks, that an aggravating circumstance was that there was a person inside the house. A person present in the house to the knowledge of the applicant was an element of the offence. In any event, his Honour had already dealt with the objective seriousness of the offending at an earlier point in the Remarks. Further, his Honour identified two other aggravating factors mentioned in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): see at [39] above.
As the Crown acknowledged, the matter could not have been considered as an aggravating factor beyond its being an element of the offence. It seems likely, therefore, that his Honour has inadvertently double counted the factor. Since, however, error has been found in relation to ground 1 and it will be necessary to resentence, it is not necessary to reach a final view in relation to the error asserted in ground 2.

Resentence

The applicant submitted that the offending should be regarded as well below the mid-range of objective seriousness, particularly because it was an opportunistic offence. Further, there was no significant damage to the property, with the motor vehicle being recovered. The applicant submitted that full weight should be given to the applicant's deprived background in accordance with what was said in Bugmy. The applicant submitted that, taking all those matters into account, a lesser sentence was warranted.
The Crown submitted that the objective seriousness was below the mid-range. The Crown submitted that the applicant's very lengthy criminal history meant that she was not entitled to any leniency, and also required that greater regard be given to specific and general deterrence, and the protection of the community. The Crown drew attention to the applicant's failure to engage in any meaningful way with rehabilitation programs whether she was in custody or in the community, particularly where her history of offending was, on her own account, directly related to drug use.

Consideration

In my opinion, the objective seriousness of the offending should be regarded as well below the mid-range of offending for offences of this type. It was opportunistic offending with the applicant observing the keys on the table through an open door to the property. The vehicle itself was driven only a short distance and was left undamaged, although there was a cost for the replacement of the keys and re-programming of the vehicle.
The applicant's deprived background was significant and it was clear that her background was still operative on her behaviour and wellbeing. She had longstanding problems associated with a personality disorder as well as depression and anxiety. It is likely that her background and untreated drug and mental health problems contributed to her lack of insight into her ongoing criminal behaviour, as well as her inability to do anything to help herself. In that way, her subjective circumstances are powerfully in her favour, although protection of the community and deterrence must play a significant role in any sentence.
I have had regard to both the pre-sentence report and the psychological report from Ms Anne Lucas in considering the applicant's personal circumstances. Having regard to what is contained in those reports and also to the applicant's criminal history, I share the sentencing judge's views that it cannot be said that there is a good prospect of rehabilitation or low prospect of reoffending. However, I consider that a lesser sentence is warranted.
I would accord a discount of 25% for the utility of the early plea. There will be a slight adjustment to the statutory period to provide a similar proportion to that provided by the sentencing judge.
Taking into account the matters on the Form 1, I would propose a notional starting point of four years' imprisonment. In those circumstances, the applicant should be sentenced to a non-parole period of two years and two months with a balance of term of ten months. The sentence should commence on 15 December 2017 and expire on 14 December 2020. The applicant will be eligible for parole on 14 February 2020.

Conclusion

I propose the following orders: (1) Leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by Judge King SC in the District Court on 31 May 2018, in lieu, sentence the appellant to a non-parole period of two years and two months commencing 15 December 2017 and expiring 14 February 2020 with a balance of term of ten months expiring 14 December 2020.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2019

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