Rumble v Regina

Subjective matters 14 The applicant was born on 14 September 1972 and was 31 at the time of the offences. He was born and raised in Sydney. 15 His parents separated before he was born and he has never had any contact with his father. He was raised by his mother until the age of 4 and by his mother and his stepfather thereafter. His parents are now aged in their late fifties and live in Sydney. His mother is employed as a childcare worker and his stepfather works as an accountant. Neither parent has any criminal history. The applicant has one half brother and two half sisters. He has always enjoyed a loving relationship with his parents. 16 The applicant began to associate with antisocial peers and to use illicit substances at the age of 15. Conduct problems followed. He left school at the age of 15 without gaining formal qualifications. Although from time to time he has engaged in manual employment, as his drug habit developed, his employment suffered accordingly. He has held a number semi-skilled and unskilled positions over the years, interspersed with periods of unemployment and imprisonment. 17 The applicant began using cocaine and heroin on a regular basis between the ages of 15 and 16 and has been using those substances on a daily basis ever since. On occasion he has also used benzodiazepines. The applicant has from time to time achieved periods of partial and total abstinence, in particular 9 months in 1995 when he was prescribed methadone and 9 months following his release from custody in 2003. The applicant apparently derived significant benefit from his participation in the William Booth program in 2003/4. 18 The applicant has never married but does have a 10 year old daughter from a previous relationship which lasted for 6 years. That relationship ended in 1997. That former partner has no history of substance abuse and the relationship broke up because of the applicant's use of drugs and other offending behaviour. At the time of these offences the applicant had been in a 5 year relationship with a woman who also had a cocaine and heroin habit. It was while this person was in custody during 2003 that the applicant participated in the William Booth program and appeared to be making progress. It was when his partner was released from custody in mid 2004 that they both relapsed into chronic drug use and these offences occurred. 19 In his evidence in the sentence proceedings and in the history which he gave to a psychologist, Mr Ashkar, the applicant described his drug usage at the time of these offences as "totally out of control". The offences were committed to support his addiction. At the time of the offences the applicant said that he and his partner were using 3 to 4 grams of cocaine and 1 weight of heroin per day. He was taking the drugs intravenously. 20 Despite the applicant's 17 year history of substance abuse, his Honour was prepared to accept that the applicant's drug use did appear to cease whenever his partner was taken into custody and that their relationship was particularly destructive. At the time of the sentencing proceedings this relationship had come to an end. His Honour thought there was some prospect that the applicant might overcome his drug problems and rehabilitate himself. His Honour, however, was conscious of the opinion of the psychologist that the applicant remained extremely vulnerable to relapse. His Honour accepted that the applicant was genuinely remorseful for what he had done. 21 The applicant has a lengthy criminal history. He was first before the Children's Court in 1989 for matters which included malicious damage, possess implements, goods in custody and break, enter and steal. Property offences continued at a steady rate. The applicant received his first custodial sentence in 1991 for offences of stealing and being an accessory after the fact. Thereafter sentences of imprisonment continued, principally for property offences such as break, enter and steal and goods in custody. In 2000 the applicant was sentenced to a non-parole period of 12 months imprisonment and in 2002, to a non-parole period of 18 months imprisonment. In each case the offences were break, enter and steal. 22 A particularly disturbing feature of the applicant's criminal history was that at least seven of the offences had occurred while the applicant was on conditional liberty. Nevertheless, none of his previous offences had involved threats of violence and the use of weapons such as occurred in relation to the offences, the subject of this application. 23 On 22 July 2004 the applicant had been placed on a s9 good behaviour bond for a period of 12 months supervised probation. This was imposed by the Local Court in respect of an unrelated matter involving malicious damage to property. Counts 2 and 3 and the last of the Form 1 matters took place while the applicant was subject to that bond. In his evidence in the sentence proceedings the applicant said that he had been under the influence of pills when he attended Court on 22 July 2004 and was not fully aware of what sentence he had received on that occasion.

Remarks on sentence 24 His Honour took as his start point the objective seriousness of the offences as demonstrated by the maximum penalty of 20 years imprisonment fixed by the legislature. His Honour observed that in quality the three Form 1 offences were as serious as those for which the applicant was being sentenced. 25 His Honour had particular regard to the weapon used in Counts 2 and 3, ie a blood filled syringe. In that regard his Honour referred to R v Hodge NSWCCA 2 November 1993 (unreported): "The Court should see that objectively deterrent sentences are imposed on persons who use syringes, apparently filled with blood to inflict dread on their victims of the fear of AIDS, and the sentence should reflect also that this type of weapon is used in most cases by persons who are associated with drug taking." 26 His Honour took into account as an aggravating factor that, in respect of Counts 2 and 3 and one of the Form 1 matters, the applicant had been subject to a s9 good behaviour bond when those offences had been committed. 27 His Honour also noted as matters of aggravation that the class of persons who were the victims of the offences were vulnerable, that the offences occurred during the hours of darkness and that they were prevalent offences. On the other hand, his Honour also noted that no physical injury (as distinct from psychological injury) had been caused during the offences and that they were essentially opportunistic with little planning involved. 28 His Honour then had regard to the subjective matters to which I have already referred, in particular the background to the offences and the applicant's substantial criminal record. 29 His Honour concluded that the guideline judgment of R v Henry (1999) 46 NSWLR 346 was of only limited application in that there were significant differences between the facts of these offences and the scenario considered in Henry. His Honour regarded these offences as significantly more serious than that in Henry. 30 While his Honour was prepared to take account of the applicant's drug addiction as explaining the offences and as a matter relevant to rehabilitation, he did not regard it as a mitigating circumstance so that general deterrence should be given less weight. His Honour regarded the offences in Counts 2 and 3 as more serious than that in Count 1 because of the use of the blood-filled syringe. It was against that background that his Honour passed the sentences which form the subject of this application.

Ground 1 - The learned judge erred in the manner in which he purported to "take into account" the Form 1 matters. 31 The Crown accepted that his Honour erred in purporting to take the Form 1 matters into account when passing sentence on Count 2. The Crown accepted that his Honour was required to take the Form 1 offences into account in relation to "the principal offence" which was Count 3 (Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146.) 32 It was submitted, on behalf of the applicant, that because his Honour had set out in detail the facts of the Form 1 offences, his Honour was using those offences as a basis for the imposition of an additional sentence by way of increasing the sentences for the principal offence. What his Honour should have done (it was submitted) was to have regard to the Form 1 matters by giving greater weight to personal deterrence and need for retribution when fixing the sentence in relation to Count 3. It was still necessary for his Honour to observe the principles of totality and proportionality even when taking the Form 1 matters into account. 33 I do not see a problem with his Honour setting out the factual background to the Form 1 offences. To do otherwise would create a false impression of the background against which the offences for which the applicant was being sentenced had occurred. Unless those background facts were fully set out, it would not be possible to properly assess the weight to be given to personal deterrence and the need for retribution. 34 I am not persuaded that by setting out the full facts of the Form 1 offences his Honour was intending to or was in actuality imposing additional sentences for those offences. It seems to me that his Honour was doing no more than providing a complete background to the offences in respect of which the applicant was to be sentenced. 35 Quite clearly, however, his Honour did err as has been conceded by the Crown by taking the Form 1 matters into account when passing sentence on Count 2. If this Court is satisfied that some other less severe sentence was warranted in law in respect of Count 2 and should have been imposed, then such error would permit intervention and re-sentencing of the applicant in respect of Count 2. (S6(3) of the Criminal Appeal Act 1912.) 36 In that regard the statement of principle by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 is relevant: "74 The applicant's submissions to the court proceeded on the assumption that if he could identify some kind of error - either the failure to give proper weight to the plea, or a failure to state reasons with respect to the issue of special circumstances or a failure to make a finding of special circumstances that ought to have been made - then this Court would proceed to allow the appeal and re-sentence the applicant. This assumption is not in accordance with the jurisdiction which this Court exercises. … 79. Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By s6(3) this Court must form a positive opinion that "some other sentence is warranted in law and should have been passed". Unless such an opinion is formed, the essential precondition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefore" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense."

Ground 2 - The sentences imposed were manifestly excessive 37 It was submitted, on behalf of the applicant, that when one took into account the 25% discount on sentence, the start point for the head sentences imposed by his Honour must have been 8 years for Count 1 and 10 years 8 months for each of Counts 2 and 3. Against that background when one took into account the guideline judgment in R v Henry where the range proposed was between 4 and 5 years by way of head sentence, it became obvious that the sentences imposed were manifestly excessive. 38 It was submitted that the points of distinction between these offences, particularly the offence in Count 1, and the matters taken into account in Henry were not sufficient to justify the significant disparity in head sentences between those imposed by his Honour and recommended in R v Henry. 39 In R v Henry the characteristics which were taken into account were:

(i) A young offender with no or little criminal history. (ii) A weapon like a knife capable of killing or inflicting serious injury. (iii) A limited degree of planning. (iv) Limited actual violence but a real threat thereof. (v) A victim in a vulnerable position such as a shopkeeper or taxi driver. (vi) A small amount taken. (vii) A plea of guilty. 40 On behalf of the applicant it was conceded that he was not a young offender and that he had a considerable criminal history. It was also accepted that for Counts 2 and 3 the blood-filled syringe involved a more serious category of weapon. The breach of the s9 bond, it was submitted, was not a matter of particular significance given the applicant's mental state at the time that the bond was imposed due to his ingestion of pills. It was accepted that the Form 1 matters affected the sentence in respect of Count 3 but were irrelevant to Counts 1 and 2. 41 It was submitted that those distinguishing features were not sufficient to justify such a significant departure from the guideline judgment in Henry as to result in a start point for the head sentence in Counts 2 and 3 more than double that recommended in that judgment. In respect of Count 1 the applicant's age and criminal history and the circumstances of the offence did not warrant a starting point of 8 years. Similarly, with Count 2 where the Form 1 matters were not being taken into account it was submitted that a starting point of 10 years and 8 months for the head sentence was so out of step with the recommendations in Henry as to demonstrate error. 42 On behalf of the applicant the Court was referred to statistics for offences contrary to s97(1) of the Crimes Act. It was clear from those statistics that the sentences individually and in aggregate were towards the top of the range for offences of that kind. The Court was also referred to a number of cases involving s97(1) offences which involved the use of a blood-filled syringe where on appeal the head sentences and non-parole periods were less than those in this application. 43 Like his Honour I am not persuaded that the guideline decision in R v Henry is of much assistance in this matter. The points of distinction are such (particularly in relation to Count 3) as to place these offences in a significantly more severe category. 44 Not only was the applicant a person of mature years but he had an extensive criminal history. That latter consideration is of importance. While the applicant's previous criminal record does not go to the seriousness of the offences, it may go directly to the objectives of punishment. (R v Blair [2005] NSWCCA 78 at [53].) 45 Despite that distinction the consequences for the applicant are largely the same. This was made clear in Veen v The Queen (No 2) (1998) 164 CLR 465 at p 477: "There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 46 Those last strictures appear to me to apply to the applicant. Although this was not expressly referred to by the sentencing judge his criminal record shows a continuing attitude of disobedience of the law and requires consideration to be given to retribution, deterrence and protection of the public. It is not without significance that this series of offences involved a significant escalation in the level of criminality to that perpetrated by the applicant in the past. There were no such factors operating in Henry. 47 Another factor which distinguishes this matter from the facts considered in Henry is that the applicant was at conditional liberty at the time that Counts 2 and 3 and one of the Form 1 offences occurred. By reference to the applicant's previous criminal history, this was the seventh instance of the applicant abusing a grant of conditional liberty. In accordance with what was said in Veen No 2 this would seem to indicate a continuing disregard for the privilege implicit in such grants of conditional liberty. 48 In relation to Counts 2 and 3, there was a more serious weapon involved than that envisaged in Henry (ie a syringe apparently containing blood). As his Honour pointed out in his remarks on sentence, there is a particular abhorrence and dread created by such weapons because of the fear of contracting a slow but potentially fatal disease. 49 Henry involved a single offence. The applicant was being sentenced for three offences with three other offences of similar gravity to be taken account of on a Form 1. Although the period of criminality was brief, the offences which occurred during that period were objectively very serious. In relation to Count 3 the Form 1 matters had to be taken into account. This required greater weight to be given to personal deterrence and society's entitlement to exact retribution for offences for which no specific punishment had been imposed (Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [40-42]). 50 It follows that in relation to the offences presently under consideration that the guideline sentence in Henry has little relevance. Consequently the submission that the sentences imposed either individually or in aggregate for these offences are manifestly excessive because they are significantly greater than the guideline judgment in Henry is not persuasive. 51 The cases to which the Court was referred turn on their own facts and are not authority for any principle which was breached by his Honour. 52 It is apparent from the statistics, to which the Court was referred, that the sentences awarded were towards the top of the range for this type of offence. That of itself does not indicate error. Furthermore there are real practical difficulties in the application of such statistics. They should not be regarded as providing the upper limit for a judge's sentencing discretion. That is provided by the statutory maximum prescribed by the legislature - in this case 20 years. 53 Another problem with such statistics is that they do not show the start point for the consideration of a sentence, only the end point. Of necessity each case must depend upon its own facts. Sentencing statistics are silent as to the aggravating factors, subjective matters and the effect of an offender's prior criminal record. In Wong and Leung v The Queen (2001) 207 CLR 584 at [59] the High Court noted: "The production of bare statistics about sentences that have been passed tells a judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

What must be determined ultimately is what sentence is appropriate in a particular case having regard to its features, both objective and subjective. That, it seems to me, was the process correctly followed by his Honour in this case. 54 The sentences which his Honour passed were criticised not only individually but as to their aggregate effect. The thrust of the submission was that because the offences occurred over 5 days, they should properly be regarded as a single continuing episode of criminality rather than discrete offences. I do not agree. That may be true of the offences which occurred on the same day within a comparatively narrow timeframe, but it is not true of the offences which occurred on different days. It would have been open to his Honour without criticism to have allowed for some accumulation between Count 1 on the one hand and Counts 2 and 3 on the other. He did not do so but made all sentences concurrent. In doing so considerable leniency was extended to the applicant. Accordingly I am not persuaded that the aggregate effect of the sentences, ie a head sentence of 8 years with a non-parole period of 5 years, was manifestly excessive or that it offended the principle of totality.

Conclusion 55 To establish that sentences are manifestly excessive an applicant has to demonstrate that the sentences were "unreasonable or plainly unjust" (Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and the judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge (Markarian v The Queen [2005] HCA 25 at [26-28]). 56 In the present case his Honour had a substantial discretion in sentencing the applicant for what could only be regarded as very serious offences contrary to s97(1) of the Crimes Act 1900. With one qualification, it has not been shown that the sentences which he imposed fell outside the range of a proper exercise of his Honour's sentencing discretion. The qualification relates to his Honour's incorrect use of the Form 1 offences in respect of Count 2. Not only was clear error involved but the Form 1 offences were of such a serious kind in themselves that they would have had an influence on the sentence which his Honour passed in respect of Count 2. It will therefore be necessary for the applicant to be re-sentenced in respect of Count 2. 57 The orders which I propose are as follows:

(1) Leave to appeal is granted and the appeal is allowed.

(2) His Honour's sentence in respect of Count 1 is confirmed.

(3) His Honour's sentence in respect of Count 2 is quashed. In lieu thereof the applicant is sentenced to a period of imprisonment with a non-parole period of 4 years and 6 months to commence on 24 July 2004 and expire on 23 January 2009 with a balance of term of 2 ½ years to expire on 23 July 2011.

(4) His Honour's sentence in respect of Count 3 is confirmed.

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