Simonds v R [2013] ACTCA 13

Court of Appeal (ACT)|2013-03-15|Before: Higgins CJ, Dowsett JJ

1. The appellant appeals against sentences of imprisonment imposed upon him on 5 July 2012 and against associated orders.

2. After a jury trial the appellant was convicted of aggravated burglary and theft. The offences were committed on 23 September 2010 (the "September offences"). On 5 July 2012 the appellant was sentenced to imprisonment for four years and six months on the count of aggravated burglary, such sentence to date from 12 January 2011, reflecting time previously spent in custody. On the theft count he was sentenced to imprisonment for one year and six months. The sentences were to be served concurrently.

3. On the same day, the appellant entered pleas of "guilty" to three charges arising out of events which occurred on 19 November 2010. Those offences were aggravated burglary, assault occasioning actual bodily harm and intentional damage to property (the "November offences"). He was sentenced to imprisonment for three years and four months, one year and eight months and six months respectively. Each sentence reflected a reduction of about 15 percent in recognition of the appellant's "guilty" pleas. Those sentences were to be served concurrently but, in part, cumulatively upon the sentences for the September offences. This effect was achieved by ordering that the sentences for the November offences commence on 16 March 2013. The total time to be served pursuant to all five sentences was fixed at five years and six months, with a non-parole period of three years and nine months, and a parole period of one year and nine months.

4. The relevant circumstances of the September offences appear in the sentencing Judge's reasons as follows:

At some time during the night of 22-23 September 2010 one of a group of five people stole a Nissan Pulsar sedan, which was intended to be used later by the group as a getaway car after they had committed a burglary and theft. They travelled in the car to the Fitness First gym, near to the intersection of Hopetoun Circuit, Grose Street and Grey Street in Deakin. They left the car on Hopetoun Circuit and went to the Fitness First gym.
At about 2.47 am on 23 September 2010, the group of five people broke into and entered the premises of the Fitness First gym in Deakin. Of the group, four were males and one was a female. The break in was recorded by the gym's security cameras see Exhibit B.
Of the four males, three were wearing hooded jackets, one of which carried the brand name "Lonsdale" and three were wearing tracksuit pants, two of which had a single white stripe on the outside of the pants legs, and the other of which had three white stripes on the outside of the pants legs. The male wearing the hooded jacket carrying the "Lonsdale" brand name was wearing the tracksuit pants which had three white stripes on the outside of the pants legs.
After searching through the drawers and cupboards, the burglars stole $200 cash which was the property of the Fitness First gym. This money was the "float" for the next day's trading and the denominations of the money were recorded.
After taking the money, the burglars left the premises of the Fitness First gym and ran to the stolen car. However, for some or other reason, the car could not be driven and they abandoned it with its engine running, and three of the males ran along Grey Street and one of the males and the female ran along Adelaide Avenue. This was witnessed by Mr Bender, a security guard at the nearby Ambassador Apartments building.
At some time after running along Adelaide Avenue, the female, who was in the company of one of the males, telephoned her sister, who was at home, and asked her to come to Kent Street in Deakin to pick her up. This, the sister did.
At about 3.30 am Constable Lawler, together with Constable Childs, and Constable Baird together with Constable Beans, arrived at the stolen and abandoned Nissan Pulsar car and, shortly afterwards, they went to the Fitness First gym, where they found the two front sliding doors to be opened, see photograph number 9 of Exhibit A; with the lock on one door damaged, see photograph number 8 of Exhibit A; and the reception and office area to be ransacked, see photographs numbered 1-5 and 7 of Exhibit A.
At about 3.40 am Sergeant Mothersole was driving a marked police car in a southerly direction along Kent Street when he was passed by a white Holden Commodore car being driven in a northerly direction along Kent Street at about 80 kilometres per hour. Not surprisingly, he gave chase to the car and he caused the driver of it to stop it. The driver of the car was Cherish Campbell, the front seat passenger was Shahn Campbell, and the left-side rear-seat passenger was the offender. The offender was wearing track pants which had three white stripes on the outside of the pants legs; see photographs 12 and 13 of Exhibit C. Under the front passenger's seat police found a hooded jacket carrying the brand name "Lonsdale," see photographs 10 and 11 of Exhibit C, and a handbag, see photographs 7, 8 and 9 of Exhibit C, containing a black glove, a packet of cigarettes, a pair of sunglasses, and $200 cash, see photographs 1 and 2 of Exhibit C. Not surprisingly or unexpectedly Sergeant Mothersole arrested Shahn Campbell and the offender.

5. The relevant facts concerning the November offences were as follows:

The complainant states that approximately two years ago he purchased drugs and he still owes money for the drugs. About 12.30pm on 19 November 2010 the accused went to the complainant's house with a view to collecting the debt.

After loudly knocking on the front door, the accused was allowed into the premises. The complainant knew the accused as "Deano" having met him previously. Also present at the time was the complainant's 15 year old son Brandan and a neighbour, Michael Temby.

There were then words spoken between the accused and the complainant and the accused saying that he was there to collect money. The complainant asked the accused to leave the premises however the accused refused and remained in the premises. The complainant was carrying a crow bar and after hitting the accused, the accused became increasingly agitated and took the crow bar off the complainant. The accused then swing the crow bar at the complainant missing his head but on a second swing, the accused struck the complainant on the left leg above the knee and on the thigh. This caused cuts and abrasions to the complainant. (Counts 1 and 2).

The complainant then went into the kitchen and closed the door and held it closed. The accused could be heard hitting the kitchen door and the complainant saw that the accused had caused a hole in the door with the crow bar and he then saw the accused kick a further hole in the door. (Count 3)

Shortly after this the accused left the complainant's house and was seen to enter a white Holden Commodore sedan parked near the house.

About 6.35pm that same day, police conducted a traffic stop on a vehicle in Narrabundah and the accused was taken into custody. At that time he was in the company of Aaron Campbell and Shahn Campbell.

6. His Honour noted that burglary was a prevalent offence, causing loss and damage to owners and occupiers of property and to insurance companies. Concerning the appellant his Honour noted that he was born in February 1982 and was aged 28 years and eight months when he committed the offences. He has some degree of Aboriginal ethnicity. He had an unfortunate upbringing and has no real educational or trade qualifications. There is no evidence of any substantial work history. The appellant has abused alcohol and prohibited drugs for many years. On 8 May 2011 he tested positive to methamphetamine. His Honour was unable to conclude that the appellant would not resume the use of prohibited drugs upon release from prison. He claimed not to suffer from mental health problems but to suffer from conjunctivitis, back pain and hepatitis C. There was no medical evidence to support these claims. He is single and has never married. He was in a relationship from 2000 to 2007 and has three children from that relationship. He has no contact with them. Some time after the commission of the November offences, he commenced a relationship with one of his co-offenders in the September offences ("Ms Campbell").

7. The appellant has a long criminal record in Queensland, New South Wales and in the Australian Capital Territory. He was on parole at the time of all offences. His criminal history includes convictions for possession, supply of, and trafficking in prohibited substances, receiving, unlawful possession, assault, entering a dwelling with intent, unlawful use of a motor vehicle and driving offences. The sentencing Judge was unable to conclude that the appellant had reasonable prospects of rehabilitation but did not entirely dismiss the possibility. His Honour was also unable to conclude that the appellant would not re-offend and considered that personal and general deterrence was an important factor. He noted that the appellant had entered pleas of "guilty" to the November offences, although not at the earliest opportunity. As we have said his Honour discounted those sentences by about 15% to reflect these pleas.

8. The sentencing Judge also noted the need for parity with the treatment of Ms Campbell. However his Honour pointed out that:

• she pleaded "guilty" to the September offences; he did not;

• he had a lengthy criminal record; she, a less serious record;

• while he had no real prospect of rehabilitation, the Chief Justice (who sentenced Ms Campbell) had concluded that she had good prospects of rehabilitation.

9. Ms Campbell was sentenced to imprisonment for two years for the offence of aggravated burglary and six months for theft. In the present case the sentencing Judge concluded that the appellant could not have a justifiable sense of grievance if his sentences were more severe than those imposed on Ms Campbell for the September offences.

10. The appellant appeals against all orders. However, in argument, the appeal was pressed only in relation to the two burglary counts, the total aggregate sentence and the non-parole period. The grounds are:

• that the sentences are manifestly excessive in all respects; and

• that the sentences are unsafe and unsatisfactory.

11. The latter assertion is not a ground of appeal against sentence. The phrase is relevant only to consideration by a court of criminal appeal of a verdict of "guilty".

12. Counsel for the appellant has provided a table of comparable sentences for single counts of aggravated burglary. The respondent has also provided a table of comparable sentences. We will discuss these tables at a later stage. Counsel for the appellant also submitted that he "was entitled to a little leniency". This seems to have meant that leniency was due because he had previously served lengthy sentences. The logic of the proposition escapes us.

13. Under the heading "Unsafe and Unsatisfactory" counsel addressed three particular considerations concerning the aggravated burglary sentences, namely:

• the need for "parity" between Ms Campbell's sentence for the September aggravated burglary and the appellant's sentence for that offence;

• whether the appellant's "guilty" plea to the November aggravated burglary count should have been treated as "early" for the purpose of calculating any discount ; and

• whether the sentence for the November aggravated burglary was inconsistent with that for the September aggravated burglary given that, in the appellant's submission, the former offence was the more serious.

14. In addition to these attacks on the sentences for aggravated burglary, the appellant submits that the total cumulative period of imprisonment and the associated non-parole period are manifestly excessive.

ARE THE SENTENCES FOR AGGRAVATED BURGLARY MANIFESTLY EXCESSIVE?

15. The maximum penalty for burglary is 1400 penalty units or imprisonment for 14 years. For aggravated burglary, the maximum penalty is 2000 penalty units or imprisonment for 20 years. The features which convert burglary into aggravated burglary are that either:

• at the time of the offence, the offender has an offensive weapon.

16. When sentencing offenders for multiple offences, Judges use various mechanisms in order to achieve an appropriate overall result. In most of the cases to which we have been referred, the burglary or aggravated burglary counts have been dealt with in conjunction with other offences, in some, but not all cases, associated with the burglary or aggravated burglary counts. Frequently, it is difficult to identify the extent to which the sentences reflect the overall criminality of any one offence, taken in isolation from the others. Given the relative seriousness of burglary and aggravated burglary it is likely that generally, such counts will contribute substantially to the assessment of the overall seriousness of an offender's criminal conduct.

17. The comparable sentences relied upon by the appellant might suggest that a sentence of two years is at the higher end of any appropriate range. However an examination of the notes provided by the appellant concerning those cases suggests that many of them have features which make them of little assistance for present purposes. Many of the offenders were young people, aged about 20 years or less. Others involved suspended sentences or other, effectively non-custodial orders, suggesting special circumstances. Some of the cases involved persons serving other sentences, so that the new sentences merely extended the time to be served. Many were said to involve strong subjective cases for leniency, whatever that may mean.

18. The respondent's comparable sentences were generally for longer periods than those cited on behalf of the appellant. However they also reflected many of the complicating features to which we have referred. Most involved offenders who had significant criminal records, unfortunate personal circumstances and histories of substance abuse. In those respects they were comparable with the appellant. The longer sentences were imprisonment for five years for four counts of burglary, seven years and four months for six counts of burglary (with two years and nine months for one count of aggravated burglary), six years for four counts of burglary and five years for four counts of burglary. Some sentences suggested a discounting factor of 20 percent or 25 percent for early "guilty" pleas.

19. Two of the cases referred to by the respondent are of particular importance. They are Fusimalohi v R [2012] ACTCA 49 and Tate v R [2012] ACTCA 50. Both were appeals to this Court, constituted by Refshauge, Burns and Lander JJ. The two appeals were heard together. In each case, judgment was delivered on 12 December 2012. In each case Burns and Lander JJ delivered joint reasons.

20. In Fusimalohi the appellant had been sentenced to an aggregate term of imprisonment of seven years and four months for a series of offences of dishonesty, primarily burglary and theft, which had occurred between April 2007 and February 2008. The schedule to the reasons showed one count of aggravated burglary, six counts of burglary, eight counts of theft and one count of possessing house-breaking articles. After disposing of one ground of appeal which involved an alleged error of fact, their Honours considered the submission that the sentences were manifestly excessive. In so doing their Honours referred to some of the comparable sentences to which the respondent has referred in the present case. Their Honours explained the factors which detracted from the comparability of those cases. In one case (R v Thorn [2010] ACTCA 10) the offender had "significant" mental health issues. In another (Love v R [2012] ACTCA 8) the offender was much younger than Fusimalohe. In a third case (Richards v R [2012] ACTCA 10) the offender's judgment was impaired by serious physical injury. In a fourth case (EG v R [2012] ACTCA 17) the offender was younger than Fusimalohe, had no relevant prior criminal history as an adult and had good prospects of rehabilitation. For similar reasons these cases are also of reduced value for present purposes.

None of these cases suggest that the sentences imposed upon the appellant, either individually or in aggregate, are manifestly excessive. These cases simply underline the proposition that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender. The fact that other offenders have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive. As Johnson J, with whom James J agreed, said in RR v The Queen [2011] NSWCCA 235 at [152]:

Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen ... [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v The Queen [(2010) [2010] HCA 45; 242 CLR 520] at 538-539 [58]- [59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen ... [1999] HCA 29; 195 CLR 665 at 671-672 [15].

22. On that basis Burns and Lander JJ concluded that the relevant sentences were not, either individually or in the aggregate, manifestly excessive.

23. In Tate the appellant had been sentenced to imprisonment for a total period of six years for four offences of burglary and four associated thefts, with a non-parole period of four years. The grounds of appeal included an alleged error of fact and the assertion that the sentences were manifestly excessive "and/or inconsistent with ACT sentencing standards for like offences". Burns and Lander JJ observed:

Our task is to determine whether there was an error made in sentencing the appellant. In the absence of demonstrated error we may not interfere with the sentences imposed, even if they are sentences we would not have imposed ourselves: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. The type of error that an appellant must demonstrate is explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

24. After dealing with the alleged error of fact their Honours turned to the question of whether the sentences were manifestly excessive, considering a number of cases to which have also been referred. Their Honours referred to Thorn, Love and Richards, indicating that they were to be distinguished from the case then under consideration, for reasons similar to those which distinguished them for the purposes of the decision in Fusimalohi. Their Honours also referred to Aldridge v R [2012] ACTCA 17. In that case, the offender was again very young, with no relevant prior adult criminal history and good prospects of rehabilitation. Their Honours then observed:

These cases do not suggest that the sentences imposed on the appellant, either individually or in the aggregate, are manifestly excessive.
We do not consider the table of sentencing decisions prepared by the appellant's counsel establishes that the sentences imposed on the appellant are manifestly excessive. What the table does establish, as with the decisions referred to above, is that there is no single, correct sentence for offences of burglary. Sentencing is not a simple arithmetical process, but instead requires the sentencer to determine a sentence based upon "instinctive synthesis" of the facts and circumstances relevant to the offences and offender: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357. As such, there will always be a range of sentences that may legitimately be imposed for an offence of this type.

25. Their Honours then referred to the decision in Fusimalohe and to the extract from RR v The Queen to which we have previously referred, concluding that Tate's sentences had not been shown to be manifestly excessive, either individually or in the aggregate.

26. We have been referred to three other cases. In R v Hawkins (unreported, ACTSC, 5 October 2009, SCC 110 and 114 of 2001), the offender was sentenced on five counts of burglary, one of which was committed in company. One offence involved the taking of property and cash totalling more than $8,000 in value. He was aged 26 years at the time of sentence. The offences occurred in 2000 and 2001. At the time of arrest he was serving periodic detention. He was drug-dependent but there was some hope of rehabilitation.

27. In Hawkins, the sentencing Judge ordered that a series of relatively short periods of imprisonment (six months to two years) be served, in large part cumulatively, in order to produce an overall effect. In the present case, the sentencing Judge took a slightly different approach. He fixed sentences which reflected the individual seriousness of each offences and sought to determine the overall outcome by ordering that large parts of the sentences for the November offences be served cumulatively with the sentences for the September offences. The former approach may have led to lower individual sentences than did the latter approach, but the overall results were reasonably consistent.

28. We were also referred to R v Goward (unreported, ACTSC, 24 October 2011, SCC 380 of 2009). Goward was sentenced to imprisonment for two years and six months for one count of aggravated burglary. He was aged 25 at the time of sentence (October 2011). The offence was committed in August 2008 when he was aged about 22. He was also dealt with for a separate offence of riding dishonestly in a vehicle. He pleaded "guilty", but not at an early stage. However it seems to have been accepted that there may have been an earlier plea but for the fact that the offender's memory of events was adversely affected by drug use. The offence was treated as being "at the lower range of seriousness". The sentence was also reduced to reflect a delay in bringing the matter to finality, which delay was not substantially caused by the offender.

29. The offender's age, his early plea of "guilt" (as opposed to the present appellant's late plea) and the delay, together with Goward's reasonable prospects of rehabilitation and the sentencing Judge's assessment of the seriousness of the offence explain any discrepancy between Goward's sentence and the appellant's sentences.

30. Finally, we were referred to R v Valetich (unreported, ACTSC, 20 December 2011, SCC No 220 of 2011). The offender was charged with two burglaries and associated offences which occurred in July-August 2010. His Honour had dealt with the offender in earlier proceedings. The offences were committed shortly after release on parole. It is sufficient to say that the sentences appear to have been tailored so as to supplement a sentence of three years and six months which the offender was, in effect, already serving. The case gives no guidance for present purposes.

31. The commencing point for any consideration as to the appropriateness of the relevant sentence must be the prescribed maximum penalty for aggravated burglary. As we have observed it is imprisonment for 20 years. We do not consider the September burglary to be at the bottom of the range of offences of that description. It was carried out by five people, suggesting some degree of prior arrangement. Further, one of them had previously stolen a motor vehicle to be used as a get-away car. Although the burglary did not yield much in the way of money, it could well have been otherwise. Some damage was done to the door to the premises, and it was left open.

32. As we have demonstrated, the sentencing Judge considered that in the appellant's case, there was little in the way of mitigation, either in the circumstances of the offence or in his personal circumstances. The most serious offences in his criminal record appear to have been entering a dwelling house with intent to commit an indictable offence (in 2001). On each of two counts, he was sentenced to two years imprisonment. In 2007 he was convicted of trafficking in a controlled drug, namely methamphetamine, and sentenced to 18 months imprisonment, suspended after six weeks. In 2008 he was convicted on two counts of supplying a prohibited drug (not cannabis). On one count he was sentenced to imprisonment for three years and ten months, with a non-parole period of two years and four months. On the second count he was sentenced to imprisonment for two years. At the same time he was also sentenced to two years imprisonment for supplying cannabis.

33. No doubt, substance abuse has, to some extent, led to his criminal conduct. However it is clear that relatively lengthy periods of imprisonment have not deterred him from such conduct. The present sentence of four years and six months is less than 25 percent of the prescribed maximum sentence. It is thus at the lower end of the range of sentences fixed by the legislature. Having regard to the comparable sentences to which we have referred, and to this Court's limited role in the sentencing process, we are unable to conclude that the sentence, per se, is manifestly excessive.

34. We turn to the appellant's complaint that the sentence failed to recognize the need for "parity" with the sentence imposed upon Ms Campbell for her involvement in the September burglary, that is two years imprisonment. Her sentence was no doubt substantially discounted to recognize her early plea of guilty. As we have indicated, the cases demonstrate that an early plea may attract a discount of 20 or 25 percent. We note that, although Ms Campbell's criminal record may not have been as bad as the appellant's, it was nonetheless significant for a person of her age. The Chief Justice concluded that she had good prospects of rehabilitation.

35. In the present case the sentencing Judge recognized the need for parity with Ms Campbell's sentence, but also recognized that achieving parity involved assessment of the differences between the two cases. The significance of those differences should not be under-estimated. The likely quantum of the discount for an early plea can be identified, with some confidence, from the comparable cases. The other differences identified by the sentencing Judge focus upon Ms Campbell's age, her less serious record and prospects of rehabilitation. Her remorse is at least partially recognized in her early plea.

36. Where a young person is before a court, the sentencing Judge must often decide whether or not he or she should go to jail at all. A period of imprisonment imposed upon a young person may have an adverse impact upon his or her personal development far beyond that which a similar sentence may have on an older offender. It is in the public interest that young people be kept out of prison, if it is at all possible. However Ms Campbell was already subject to a sentence at the time of her offences. Nonetheless there can be little doubt that where a young person has good prospects of rehabilitation, there is much to be said for ensuring that the period of imprisonment is no longer than is necessary in order to recognize the seriousness of the offence, whilst also recognizing the community's interest in exploiting all reasonable opportunities for rehabilitation. When sentencing a young person, a sentencing Judge's discretion is even wider than usual. Much will depend upon his or her assessment of the offender.

37. It is quite likely that his Honour reduced Ms Campbell's sentence by between 12 and 18 months in order to recognize her youth and prospects of rehabilitation. If one takes the sentence of four years and six months and discounts it by 20 or 25 percent for an early plea, the likely discount is a period between 11 and 13 and a half months, say 12 months. If one allows 12 to 18 months for the other features present in Ms Campbell's case, but not in the appellant's, the reduced sentence would be two to two and a half years. If one starts with Ms Campbell's sentence, the result is not dissimilar. The calculations would suggest a sentence between three years and six months and four years and four months. We use these simple arithmetical exercises to demonstrate the relative weight which the sentencing Judge may have given to each factor which he considered.

38. In the circumstances we do not accept that the sentence was manifestly excessive.

39. For the reasons which we have given in connection with the September burglary (other than as to parity with Ms Campbell's sentence), we do not consider that the appellant's sentence of four years imprisonment, taken in isolation from two other factors, was manifestly excessive. The first factor is that the appellant's plea was to a fresh indictment presented on the morning of trial, in place of an indictment dated 29 March 2011. The sentencing Judge reduced the appellant's sentence from four years to three years four months, reflecting a 15 percent discount for his "late" plea of guilty. The appellant submits that his Honour ought to have treated his plea as "early", it being at the earliest opportunity, given that it was in answer to the indictment presented on the morning of the day fixed for his trial.

40. The appellant relies upon the decision of the High Court in Cameron v R (2002) 209 CLR 339. In that case the appellant was arrested on 22 April 1999 and charged with possession of a prohibited drug (identified in the complaint) with intent to deal in, and supply it. He entered a plea of "not guilty". In the course of various subsequent appearances in the Magistrates Court, he indicated that the matter should proceed to a preliminary hearing. On 2 July 1999 such hearing was fixed for 19 November 1999. On 28 June 1999 an analyst had certified that the substance in the appellant's possession was not that alleged in the charge, but another prohibited drug. At a point in time as to which there was no evidence, the appellant's legal advisers learned of the analyst's certificate. On 10 November 1999 they advised the Director of Public Prosecutions that the appellant wished to enter a plea of "guilty", pointing out that the indictment needed amendment to reflect the analyst's findings.

41. On 12 January 2000 the appellant was arraigned in the District Court and entered his plea of "guilty". His legal advisers submitted that this should be treated as a plea entered at "the earliest possible opportunity", a description in common use in the administration of the criminal law in Western Australia where there was a "fast track" procedure for dealing with pleas of "guilty". The prosecution did not oppose that submission. As a matter of practice the effect of such characterization would probably have been to increase the range of any reduction in the sentence from 20-25 percent to 30-35 percent. In fact the sentencing Judge reduced the sentence by only 10 percent, from ten years to nine years.

42. At [22], Gaudron, Gummow and Callinan JJ said, concerning the practice of taking a plea into account in mitigation, that:

... leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.

43. Concerning "first reasonable opportunity" their Honours said at [23]-[25]:

Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularized the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.
More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularized in the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.
The Court of Criminal Appeal was in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly specify the substance which he had in his possession. Moreover, it was in error in stating that there had been "no saving in the Magistrates Court" for the appellant's plea of guilty rendered a preliminary hearing unnecessary.

44. The original indictment in connection with the November offences charged six counts, namely:

• intentionally causing damage to property (two counts); and

45. The amended indictment changed only three counts, namely:

46. The circumstances of the aggravated burglary count in the second indictment were also less serious than those of the aggravated burglary count in the first indictment. Originally, the offence charged was entering a building as a trespasser, with intent to threaten to cause harm, and at the time of doing so, having an offensive weapon, namely a knife. In the second indictment, the aggravated burglary count was remaining on premises with intent, whilst armed with a crow bar. Of course, the aggravated burglary count on the second indictment arose out of the same facts as that count on the first indictment. There is no suggestion that the presentation of the fresh indictment reflected any error by the prosecution in the presentation of the earlier indictment. We were told, and understand it to be common ground, that the presentation of the fresh indictment followed "discussions" between the prosecution and the appellant's counsel.

47. There is no suggestion that at any stage in those discussions, the prosecution indicated that it was willing to treat the plea as being "early" or, at least, earlier than was actually the case. It has not been suggested that the presentation of the fresh indictment was motivated by any clear absence of evidence as to the offences originally charged. No doubt, however, the prosecution's decision was, at least in part, motivated by its assessment of the likelihood of obtaining convictions on one or more of the counts originally charged, in particular the more serious version of the aggravated burglary count.

48. The majority in Cameron relied upon the error in the original charge. In the present case, there was no such error. In our view the plea was correctly accepted at face value, as a plea entered immediately before trial. In those circumstances we see no error in the way in which the sentencing Judge recognized the plea.

49. The appellant also submits that his Honour erred in treating the plea as having "utilitarian value only", apparently indicating that it did not indicate remorse. The appellant gave evidence in which he said, concerning the September burglary:

I feel that it was wrong. I should never have done it. I cannot change what I've done and I feel that I only can just move forward and know that I've done wrong and apologize for it.

I'd just like to apologize, like to the community and to anyone that it has affected. I was tied up in collecting money for drugs and what so for and my behaviours were wrong and I only deserve to be sentenced for it and, yes.

51. At [47] his Honour, in dealing with the question of rehabilitation, referred to the appellant's oral evidence and to a letter to the Court (exhibit 1) which appears not to be part of the appeal record. His Honour concluded that the appellant's past did not instil confidence in him for the future, notwithstanding the content of the letter and his oral evidence.

52. Given his Honour's finding as to the slim prospects of rehabilitation and the prospects of his re-offending, it would be hardly surprising if his Honour also concluded that the appellant was not remorseful in connection with the November burglary. Further, his Honour's view may have been influenced by the fact that the plea came when it did, and in the circumstances in which it did. His Honour may have concluded that there was no remorse concerning the November offences, but it is not clear that he did so. If he did, then that conclusion was fairly open.

53. The appellant also submits that the sentences for the September aggravated burglary and the November aggravated burglary are demonstrably inconsistent. This submission is based upon the appellant's assertion that the November offence was a more serious case of aggravated burglary than was the September offence. The assertion is based upon the fact that the November offence occurred at a private home, whereas the September offence was at commercial premises. Further, it is said that whilst the November offence involved a threat of harm to the householder, the September offence was motivated by an intention to steal.

54. Burglaries at residential premises are frequently treated as being more serious than burglaries at commercial premises. In part, such treatment reflects the chance that intrusion into a residence may end in violence, and a deeply held belief that a person's home should be safe. With respect to the count of aggravated burglary as originally charged, the appellant's submission may have had substance. However the appellant was sentenced on the basis that he had lawfully entered the premises. The offence was committed:

• by his remaining in the house after being asked to leave; and

• his taking the crow bar from the householder after the latter had attacked him with it.

55. These matters tend to reduce the seriousness of the November offence. In any event his Honour obviously assessed the September offence as being the more serious, no doubt because of the apparent degree of premeditation, and the involvement of five people. We see no lack of relativity as between the sentence for the November aggravated burglary and that for the September aggravated burglary.

56. His Honour fixed the overall sentence at five years and six months, with a non-parole period of three years and nine months. This outcome was achieved by ordering that the sentences for the September offences and the November offences be, in each case, served concurrently. However he ordered that the sentences for the November offences be partially cumulative upon the sentences for the September offences. After taking into account time already spent in custody, his Honour identified the dates upon which each sentence was to commence and conclude. With respect to the September offences, both sentences were to commence on 16 January 2011, the aggravated burglary sentence expiring on 11 July 2015. For the November offences the concurrent sentences were to commence on 16 March 2013, with the aggravated burglary sentence expiring on 11 July 2016. Thus the further period to be served in connection with the November offences was one year. We do not consider that the period of five years and six months imprisonment was manifestly excessive, having regard to the overall criminality of the appellant's conduct, and taking into account his record. We also see no basis for concluding that the non-parole period of three years and nine months was manifestly excessive.

57. In those circumstances the appeal must be dismissed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Darryl Perkins Solicitors

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

At a glance

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Before

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Judgment (82 paragraphs)

Parties

Cases Cited (4)