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The facts

4. The full statement of facts that was before the primary judge described Mr Schwalm’s conduct as follows (at [10] to [18]):

On 4 July 2018, in the early hours of the morning, the offender and another unknown male offender went to the Wayfarer Apartments, 20 Eastern Valley Way, Belconnen. At about 2:35am the two offenders entered the Wayfarer Apartment through the front doors. They did so and remained therein for about 2 hours with the purpose of committing theft (Aggravated Burglary – CC2018/8705). The offenders proceeded to the carpark of the apartment block, gaining entry via the bin enclosure and then jumping a concrete barrier. This was captured on CCTV footage. The two offenders then went up to the second level and commenced looking through car windows. This was captured on CCTV footage at around 2:49am. From 2:49am until 3:37am, the two offenders went into the area that contained storage lockers. This area is not covered by CCTV footage. Upon leaving the locker area, the two offenders walked behind a silver Hyundai with ACT registration [redacted], which is owned by Ms Pimkamol Gee. a. The offenders damaged this car by smashing the rear passenger window in order to gain entry to it (Transferred Charge – Damage property – CC2018/9705). b. The offenders took her Givenchy handbag containing Mimco wallet (containing bank cards), sunglasses and Elevit vitamins along with other personal belongings of $3000 in value from her car (Theft – CC2018/9682). The offender is subsequently seen to search through the handbag and remove a yellow purse as he walked through the carpark. From around 3:49am to 4:25am, the two offenders walked around searching cars. At around 4:25am, the offenders moved next to a Ford Territory with ACT Registration [redacted]. This car is registered to the Australian Federal Police and is an unmarked police car. a. The offenders damaged this car by smashing the rear passenger side window. This also caused damage to the window frame. (Transferred Charge – Damage property – CC2018/9704). b. The offenders took the police emergency dash light, AFP polo shirt and staff cap, two AFP media liaison vests to the value of $2000 (Theft – CC2018/8706).

5. It can therefore be seen that all of the offences, other than the goods in custody summary offence, took place between about 2.35 am and about 4.25 am on 4 July 2018. Mr Schwalm was swiftly identified by police from closed circuit television footage, but was not located until the afternoon of the next day, whereupon he was arrested. He has remained in custody since 5 July 2018.

6. When interviewed later that day, he told police that he had consumed the drug “ice” the previous evening, did not remember what he had done, but remembered being in the car park. At the time of his arrest, he was in possession of a camera which had been stolen, the owner being identified from images on the camera, resulting in the goods in custody charge. Subsequently, when asked about the cars he had broken into, he stated that one was a police car from which he took the dashboard light, torch, small boots, two police shirts, a cap and three high visibility vests. By reason of him identifying the location of those items, all but the torch was recovered. He was later able to recall stealing a black bag containing the yellow purse referred to above, which were yet to be recovered.

7. Mr Schwalm stated that he committed the offences to repay his son’s drug debt to a dealer, his son being threatened with harm of being killed if the debt was not paid.

8. Mr Schwalm did not name his co-offender, who has not been able to be identified.

Before the primary judge

9. After reciting a summary of the facts reproduced above, the primary judge made the following salient observations and findings (at [9]-[19]):

I note that the circumstance of aggravation with respect to the aggravated burglary was that you were in company with one person. The offence occurred at night. The offence took place in a garage rather than in a residence as such. It may be anticipated that there would be less of a sense of violation on the part of those who were residents in the complex to which the garage was attached than had there been an entry into one of the actual residences. The value of the property stolen was not insignificant, but it was also not particularly high. The cost of repair to the damage to the vehicles, I am told, is likely to be a couple of hundred dollars each, such that I am satisfied that there was not a significant amount of damage undertaken. As I have said, much of the property in relation to charge CC8706 of 2018 has been recovered. I would assess these offences as being in the lower range of such offences. A Pre-Sentence Report was prepared for the sentence hearing. You are currently 35 years old and you have been known to Corrective Services since 2003. In the past, you have had a history of poor compliance and engagement with Corrective Services, resulting in breach action. However, to your credit, during the most recent period of parole you provided four urine samples without traces of illicit substances and two samples which contained only low levels of cannabis. Since your most recent remand in custody, your compliance has been considered largely positive with no instances of disciplinary action being recorded. I take into account the background information which is set out in the Pre-Sentence Report. I will not now repeat it. I will simply refer to the opinion of the author of the Pre-Sentence Report which coincides with my personal opinion based upon the material in the Report. The author of the Report was of the opinion that you are a 35 year old man with an extensive criminal history and a significant history of illicit polysubstance abuse. It appears that your attitudes towards your offending, which seem largely positive and reflective, conflict greatly with your actions and behaviours in the community. To your credit, you were able to verbalise the significant risk domains that continue to contribute to your ongoing criminal offending and you have expressed a willingness to engage in appropriate interventions to address and manage these. However, your history of compliance in the community and your recent incident report whilst in custody is of significant concern. You were assessed as being at a high risk of general reoffending. Your primary areas of criminogenic risk appear to be your history of using illicit substances, mental health issues and attitude towards offending behaviours. Your risk of offending also relates to accommodation, employment, family concerns and negative associations. As such, supervision in the community would aim to address those specific risk categories. I take into account in sentencing you that you made full admissions to the police when you were interviewed by them. You have a very significant criminal history, particularly in relation to offences of dishonesty. That criminal history disentitles you to any leniency with respect to sentencing in the present matters and also speaks of the need for specific deterrence. I take into account your generally good performance with regard to your most recent parole period. However, it appears that you clearly relapsed into the use of drugs after having concluded your parole period and subsequently you have relapsed into re offending. The reason which you gave for having engaged in these offences does not to my mind significantly mitigate the offences. Whether you truly feel remorse for these offences is difficult to determine. As the author of the Pre-Sentence Report notes, you say the right things to the author of the Report whilst you are in custody, but you seem to have difficulty in maintaining any commitment to avoiding drugs and criminal offending when you are not in custody. Your prospects for rehabilitation must remain guarded, but you are not without hope of rehabilitation and as such rehabilitation is not to be entirely discarded with respect to sentencing. These offences call for nothing less than the imposition of full-time periods of imprisonment.

10. The primary judge convicted Mr Schwalm and imposed sentences as set out in Appendix A, depicted in the form of a bar chart to better understand the relationship between each sentence, the head sentence, and non-parole period imposed.

The notice and grounds of appeal

11. The notice of appeal indicates that Mr Schwalm appeals against all six sentences, with the sole ground identified as being that “[t]he sentence was excessive in relation to the charges”, which should be taken to be asserting manifest excess as to each charge, as to the degree of accumulation and concurrency and as to the overall aggregate sentence having regard to both duration and totality. Mr Schwalm therefore seeks, as indicated in his notice of appeal, a reduction in his custodial sentence.

The submissions by Mr Schwalm

12. As Mr Schwalm was not legally represented, legal aid apparently being refused, he was not required to file written submissions. His oral submissions were to the effect that the primary judge: (a) had not sufficiently accounted for his time in custody (backdating the sentences to account for only three of the six months of the existing sentence, referred to at [8] of his Honour’s judgment, and noted above at [2]);

(b) recorded a discount of 25 per cent in respect of the guilty plea for the aggravated burglary charge, but not in relation to his other charges;

(c) failed to treat the offences as a single course of conduct; and

(d) had imposed a sentence that was too severe in all the circumstances – he asserted that the sentence imposed on him being out of proportion to other sentences imposed in the same circumstances – he had not had enough time to find this or any other comparative cases in the four weeks prior to the appeal hearing, being the time at which he became aware that legal aid was not available to provide him with legal representation for his appeal.

13. As to the last of the above points, the Court, via an associate, obtained sentencing statistics in the Supreme Court over the five and a half years from 1 July 2012 to 31 December 2018 for the most serious offence of aggravated burglary, in circumstances of having a prior conviction for the same type of offence with a custodial sentence, and his age. A copy was also provided to Mr Schwalm and to the Crown. Relevantly, those statistics, which are of very limited value on their own, indicate that about 71 per cent of such offenders received a custodial sentence. Of those offenders, 80 per cent received a sentence of three years imprisonment or more.

14. Mr Schwalm referred to circumstances that were addressed by the primary judge:

(a) his son being threatened if a debt were not paid to unnamed drug dealers – he added a reference to him being contacted by telephone and being told that his son would be killed and put in the bush unless $10,000 was paid; and

(b) he had told the police where the stolen property was – he added that he had done this out of compassion for the owner, who was threatened with losing her job; and

(c) his relapse into using drugs.

15. Mr Schwalm also referred to circumstances that were not apparently before the primary judge and were not the subject of any evidence:

(a) a death in his family at the time of the offending; and

(b) being assaulted by police in a separate incident and him suffering brain damage as a result, which has caused him cognitive difficulties, such as forgetting words and other mental health issues.

The Crown submissions

16. The Crown filed and served comprehensive submissions as to the relevant sentencing principles and to the effect that there was no identifiable error in the primary judge’s reasons, nor in the sentencing result arrived at. The Crown submits that the sentences were wholly appropriate and that there was nothing excessive, let alone manifestly so, arising from the duration or the structure of any aspect of the sentences imposed, including as to concurrency, accumulation and totality. Relevant principles: manifest excess and sentence structure for multiple offences

17. In Dalton v The Queen [2015] ACTCA 48 (Dalton), this Court said (at [18]):

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:  Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).  The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].  In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].  It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

18. In O'Brien v The Queen [2015] ACTCA 47 (O'Brien), this Court (at [25]) adopted the above quote from Dalton, and then said the following (at [26]):

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following: (a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: [Mill v The Queen (1988) 166 CLR 59] at 63. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18]. (d) Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27]. Consideration

19. The response to the three substantive grounds that Mr Schwalm identified in his oral submissions is as follows.

20. As to the issue of backdating the sentence, the primary judge was well-aware of the impact of the prior sentence and accounted for that by making the sentences his Honour imposed concurrent as to half (three months) and cumulative as to half (also three months). This was done on the basis of totality. His Honour expressly (at [8]) did this so that, as much as possible, the result was the same as if the prior sentence had been imposed at the same time. There was no error in the approach that his Honour took.

21. As to the issue of failing to give a 25 per cent discount for the guilty plea on all of the sentences imposed, Mr Schwalm is mistaken. The primary judge in his Honour’s reasons at [4], expressly said that he applied that discount to “the sentences that [his - Honour] would otherwise have imposed” (emphasis added). The later reference to the numerical effect of the discount for the aggravated burglary offence at [20], with no corresponding reference to the numerical effect of the discount for the other offences at [21]-[23], does not demonstrate that the discount expressly referred to at [4] was not applied to all the sentences.

22. As to the asserted failure to treat the offences as a single course of conduct, there is no basis for finding that the primary judge departed from the principles applicable to the sentencing for multiple offences summarised in O’Brien at [26], reproduced above at [18].

23. No error has been demonstrated as to the primary judge’s treatment of the issues of the threat allegedly made to Mr Schwalm’s son’s life, or telling the police where to find the stolen property. The matters that were not before the primary judge can only be possibly relevant in the circumstance of re-sentencing by this Court.

24. As to the central issue of whether the sentences imposed were manifestly excessive, by reason of individual duration, undue accumulation or inadequate concurrency, or the overall sentences in combination, Mr Schwalm was not able to identify any error in the primary judge’s identification of the objective seriousness of the offences, nor in the subjective features his Honour referred to. Nor was he able to point to any specific error in any aspect of the sentences imposed, either taken individually, or as whole and in relation to each other sentence.

25. Far from any error being apparent, there is no proper basis for concluding that the sentences, individually, in the way that they were structured, or their overall effect, were unreasonable, plainly unjust, or outside the range of any permissible sentence alone or in aggregate. As is apparent from the primary judge’s reasons and the bar chart at Appendix A, his Honour must have, and did, carefully consider each offence, had regard to concurrency and totality, and arrived at an overall sentence that was not shown to be outside the applicable range available to his Honour, including with respect to the backdating of the sentences. The ratio of the non-parole period to the head sentence of about two thirds (rounded to 66 per cent) was fairly open to his Honour given Mr Schwalm’s prior criminal record and his Honour’s conclusion that the prospects of rehabilitation were guarded, and was otherwise unremarkable.

26. No proper basis for appellate intervention has been demonstrated. Fresh evidence sought to be relied upon by Mr Schwalm

27. The notice of appeal indicated that Mr Schwalm also wished to adduce fresh evidence, described as “Bed placement for rehab”. The proposed evidence was not filed or served, nor was any application made in accordance with r 5606 of the Court Procedure Rules 2006 (ACT): see Leighton v The Queen [2017] ACTCA 55 (Leighton) at [23]-[24]. However, at the appeal hearing, Mr Schwalm identified the material sought to be relied upon as being a support letter, dated 8 July 2019, from Arcadia House, indicating that Mr Schwalm had completed an assessment for participation in a residential rehabilitation program, was on the waitlist for admission, and that he had shown commitment to the program by completing their pre-admission requirements.

28. The Crown objected in its written submissions to any foreshadowed fresh evidence being admitted, by reason of Mr Schwalm’s non-compliance with r 5606 and the principles identified in Leighton. At the hearing, the Crown did not, however, oppose the material being provisionally admitted for the determination of the application to adduce fresh evidence. It was convenient for the Court to admit the evidence upon the basis that it would only be considered in the event that the appeal was successful and that this Court was required to exercise the sentencing discretion afresh, and the Crown then be given an opportunity to respond if sought. This approach in the particular circumstances of the appeal is not to be regarded as any dilution of the principles stated in Leighton, which will ordinarily be applied, nor as excusing compliance with the requirements of r 5606, which is not to be departed from lightly, but rather a pragmatic way of dealing with the issue in all the circumstances, including a preliminary assessment of the likelihood that a sufficient case would be made for appellate intervention. As it transpired from the above, the need to intervene did not arise and accordingly that evidence was not relevant and was not considered.

Conclusion

29. The appeal must be dismissed.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal

Associate:

Date: Appendix A: Offences Year 2018 2019 2020 2021 (Maximum Month Oct Jan Feb July Oct Jan March April May June penalty) I I I Aggravated burglary 2 years and 3 months: (CC18/8705) 6.10.2018 – 5.01.2021 (20 years’ imprisonment and/or $300,000 fine) Theft 6 months: (CC18/8706) 6.10.2020 – 5.04.2021 (10 years’ imprisonment and/or $150,000 fine) Theft 6 months: (CC18/9682) 6.10.2020 – 5.04.2021 (10 years’ imprisonment and/or $150,000 fine) Destroy/damage property 2 months: not exceeding $5000 6.03.2021– (CC18/9704) 5.05.2021 (2 years imprisonment and/or $7,500 fine) Destroy/damage property 2 months: not exceeding $5000 6.03.2021– (CC18/9705) 5.05.2021 (2 years imprisonment and/or $7,500 fine) Possessing property 1 month: suspected of being stolen 6.05.2021– or unlawfully obtained 5.06.2021 (CC18/8707) (6 months imprisonment and/or fine of $7,500) Head sentence 2 years and 8 months: 6.10.2018 – 5.06.2021 Non-parole period 21 months: 6.10.2018 – 5.07.2020 I