Sampson v R

Court of Criminal Appeal (NSW)|2010-05-21|Before: James J, Simpson J, Barr AJ

The applicant's personal circumstances 27 Sides DCJ had available to him a Pre-Sentence Report. The applicant gave evidence. 28 The applicant was born in January 1987 and was 20 years of age at the time of the offending. His criminal record (though not inconsequential) was, with two exceptions, confined to motor vehicle and driving offences. (It included offences as serious as driving whilst disqualified, and "drive recklessly/furiously or in a manner dangerous".) This last was sufficiently serious to result (after appeal) in imprisonment for 3 months. The exceptions mentioned are an offence of larceny, for which the applicant was sentenced to imprisonment for 1 month, and an offence of break, enter and steal, for which he was sentenced to imprisonment for 12 months with a non-parole period of 9 months. 29 The applicant is one of five children of a blended family. As a child he was exposed to domestic violence as a result of his stepfather's abuse of alcohol and cannabis. That has ceased, and the applicant now has a close relationship with both his stepfather and his mother. He has minimal contact with his biological father, who has himself been incarcerated. 30 He has two children, who, it may be calculated, were born when the applicant was 19 and 20 years of age. The relationship to which they were born has ceased, but the applicant maintains contact with his children. 31 He attended school to the age of 12, leaving prior to the completion of Year 8. He has had minimal employment. 32 He began using illicit drugs as a young teenager, and the use escalated. At one point, on his evidence, his drug use was costing $2000 per week. He claimed, to the author of the Pre-Sentence Report, and in his evidence, that he is motivated to give up drug use, and has, in fact, detoxified (without assistance) whilst in custody. 33 He receives continued support from his family, many of whom were in court for the sentencing proceedings.

The remarks on sentence 34 Sides DCJ recounted the facts of each offence, and the applicant's personal circumstances. 35 For the purposes of Pt 3 Div 1A of the Sentencing Procedure Act, he assessed each of the s 112(2) (break and enter) offences as being in the mid-range of objective gravity, but recognised, the applicant having pleaded guilty to each, that the standard non-parole period fixed by s 54B, and the Table to the Division, did not, strictly, apply. He also recognised, in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, that the standard non-parole period remained relevant as a "benchmark" or guidepost. 36 His Honour assessed count 6, the money laundering charge, as below mid-range in objective gravity. Since no standard non-parole period applies to such an offence, the finding was not strictly necessary; but such an approach is, nevertheless, a useful check on the sentencing process. 37 Having regard to his "past performance and drug addiction", his Honour expressed doubts about the applicant's prospects of rehabilitation. He followed this, however, by noting that, in his present incarceration, unlike the past, the applicant had remained drug free and that he had been motivated by a number of tragedies in his life "to turn his life around". (This appears to be a reference to the death of the applicant's "pop", presumably his grandfather, while the applicant was in custody. He was not able to attend the funeral.) 38 In accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, his Honour allowed a reduction in each sentence of 25 percent.

The grounds of appeal 39 Three grounds of appeal were pleaded, as follows: "(1) The disparity in sentences imposed on a co-offender, Bobby Delaney, and upon the applicant for the same offence of Aggravated break, enter and steal on 2 July 2007, and the way in which the sentence judge structured the sentence he imposed on Delaney, gives rise to a justifiable sense of grievance on the part of the applicant.

(2) The extent to which the sentences were accumulated was excessive, so that the overall sentence imposed was manifestly excessive.

Ground 1: parity 40 On 19 December 2008, prior to sentencing the applicant, Sides DCJ sentenced Delaney with respect to the two offences in which he was involved. These were counts 2 and 3. On the first of those (aggravated break, enter and steal, at Harvey Norman, Moss Vale, on 7 July 2007), he imposed a sentence of imprisonment for 4 years and 6 months made up of a non-parole period of 2 years with a balance of term of 2 years and 6 months, to commence on 8 January 2008. For the second, aggravated break, enter and steal (Domayne store, Campbelltown, on 2 July 2007), and taking into account the Form 1 offence, he imposed a term of imprisonment of 5 years made up of a non-parole period of 1 year and balance of term of 4 years, commencing on 8 January 2009, and therefore accumulated by one year. It is this sentence which is the subject of the parity argument advanced on behalf of the applicant. 41 The total term of imprisonment for Delaney was imprisonment for 6 years with a non-parole period of 2 years. Thus, the sentences imposed upon the offenders with respect of the Moss Vale offence were identical - 4½ years with a non-parole period of 2 years. The disparity arises when consideration is given to the sentence imposed in respect of the Campbelltown offence: the sentence imposed upon the applicant was of 7 years with a non-parole period of 3½ years; that imposed upon Delaney was of 5 years with a non-parole period of 1 year. 42 Sides DCJ was conscious of the issue of parity. He recorded the sentences imposed upon Delaney with respect to the common offences, and noted "relevant similarities" between the two offenders. These were: "● their criminal histories;

● their prospects of rehabilitation are about the same;

● the criminality in relation to the two offences they have in common is about the same;

● in relation to the offence that is the subject of count 3 for [the applicant] the co-offender Delaney received a discount of twenty-five percent for the utility of this guilty plea." 43 The relevant differences between them are: "● the co-offender Delaney is about eighteen months younger than [the applicant];

● Delaney had breached conditional liberty in committing these offences;

● in relation to the offence that is the same as count two for [the applicant], the co-offender Delaney received a discount of twenty percent for the utility of his plea of guilty [as against the 25 percent the applicant was allowed]; and

● the co-offender Delaney only had one matter on a Form 1 schedule involving the car used to drive to … Domayne shop in Campbelltown. [The applicant] has a total of seven other matters not related to that car and three of those involve offences contrary to sub-s 112(2)." 44 It was not strictly correct to say that the age difference between the two was of 18 months. Although, in accordance with current practice designed to inhibit identity fraud, the sentencing judge did not specify the date of birth of either offender, he did note that Delaney was 19 years of age at the time of the offences and that the applicant was 20. This Court was told, in written submissions, (and not contested by the Crown) that the age difference is in fact 12 months. This is borne out by the date of birth given on Delaney's criminal record. 45 That does have some significance in the question of parity. 46 In sentencing Delaney, Sides DCJ said; "The Offender was relatively young when he committed these offences. Hence, consistent with authority, the court gave greater weight to rehabilitation and less weight to deterrence. That does not mean that it gave no weight to either personal or general deterrence." 47 In sentencing the applicant, his Honour said: "The Court took into account his age and accordingly gave lesser weight to rehabilitation than to deterrence." 48 This gave rise to a submission that, although the age difference between the two is slight, the applicant was treated unfairly in this respect. 49 However, I am satisfied that what is recorded is either a typographical error, or, more likely, a slip of the tongue on the part of a judge giving reasons orally. What follows persuades me that his Honour intended, in sentencing the applicant, as he did in sentencing Delaney, to give less weight to deterrence than to rehabilitation. This follows from the reference to his age, and to the following sentence, which is: "That does not mean that no weight was given to deterrence, it simply means that less weight was given than might have been the case had he been an older individual."

I am satisfied that this point should not be accepted. 50 There are other issues concerning parity. Delaney's offences were committed whilst he was on conditional liberty. He pleaded guilty to the second count at a later stage, and accordingly was given a reduction of 20 percent (as contrasted with 25 percent for the applicant). 51 Against that, it was this offence in relation to which the Form 1 offences were taken account, and, where Delaney had only one such offence, the applicant had eight. 52 I have given careful thought to the arguments advanced on behalf of the applicant. There is, indeed, a significant discrepancy between the two sentences imposed in respect of this offence - imprisonment for 7 years with a non-parole period of 3½ years in the case of the applicant, and imprisonment for 5 years with a non-parole period of 1 year, in the case of Delaney. 53 Of some significance, to my mind, is the circumstance that, in respect of the other offence common to the two (count 3, in the applicant's case), the two offenders were sentenced identically. That establishes to my satisfaction that, in selecting the sentence he did for count 2, Sides DCJ had very much in mind the nature and severity of the Form 1 offences. In Delaney's case this was a single offence of larceny of a motor vehicle, committed on the same day as the substantive offence; in the applicant's case, it involved no less than eight other offences, three of which were serious offences of aggravated break, enter and steal. It is true that Delaney's offence was committed whilst he was on conditional liberty, and that provides some balance against the severity of the total number of offences for which the applicant was to be sentenced in respect of this count, but it is far from a complete counter weight. 54 I have concluded that the sentence selected by Sides DCJ was appropriate and, having regard to all of the relevant circumstances, well within the range available.

55 Complaint is not made that sentences were accumulated; the complaint is that the accumulation was excessive, giving rise to an excessive total sentence. 56 I accept that, for a 20 year old offender (22 at sentencing), a sentence of 11 years with a non-parole period of 7½ years is lengthy. I bear in mind what I have said earlier about the nature of the applicant's prior record. 57 But it is necessary also to bear in mind the nature and extent of his period of criminality. These were very significant break and enters, some of them yielding property to very significant value. 58 While it may have been open to the sentencing judge to have accumulated to a lesser extent than he did, it is not possible to say that the course he took was not one within his sentencing discretion. 59 Accordingly, I would grant leave to appeal but dismiss the appeal. 60 BARR AJ: I agree with Simpson J. **********

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CASES CITED : R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168

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