Simpson v R

Grounds of appeal

1. It is convenient to deal, as the parties did at the hearing of the appeal, with ground 2 first.

Ground 2: The sentencing judge erred in his assessment of the objective gravity of the offences

1. In his Remarks on Sentence, his Honour said this concerning the objective seriousness of the offending: A predominant factor relevant to the sentence in any case is the objective seriousness of the offence, or in this case the offences. It is not, however, necessary to articulate a determination by placing the offence along a hypothetical range, although that is commonly done. It remains an essential task to undertake an evaluation or assessment of the objective seriousness of the offence. The starting point of course [is] the legislative guidepost to which I have already referred. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality involved. On behalf of the offender in relation to the break and enter charge it was submitted that it falls at the lower end of the range of objective seriousness. It was submitted that, although a lock was forced, there was no evidence of any permanent damage. It was further submitted, although the evidence for this is unclear, that there was no degree of planning or organisation involved beyond that which would ordinarily be expected for this particular type of offence. Next it was submitted that the car keys stolen from the premises would not be considered property of substantial or significant value. Further it was submitted that the offence was committed sometime in the afternoon between 12:45pm and 6:15pm and there is no evidence of actual trauma suffered by the victims. In relation to the charge of break, enter and steal, it being the second charge on the Crown Sentence Summary I consider the offending to fall within the mid-range or perhaps just below the mid-range of objective seriousness. In respect of the first charge on the Crown's Sentence Summary, namely to take and drive a conveyance without the consent of the owner, it was submitted on behalf of the offender that the offence forms part of the same course of criminal conduct as the break and enter. What is to be made of that submission is a little unclear as of course there are two charges, there is no doubt that the offender, as he accepted by his plea of guilty did take and drive the car of the victims without their consent. I see no reason why that ought not fall at the medium or mid-point of objective seriousness. The fact that the car was located at the same location as the break and enter of the house and steal, whilst convenient, does not mitigate against the seriousness of the offending. In relation to the third charge, that is disposal of stolen goods the amount received by the offender for the jewellery which he pawned was $3,050. The section under which he is being charged relates to stolen property of less than or equal to $5,000. Having regard to the range of offending that that section would cover, I consider the objective seriousness of the offending as being also in the mid-range or at the very best to the offender, just below it. (emphasis added)

Submissions

1. The applicant, whilst accepting that the assessment of objective seriousness is quintessentially a matter for the trial judge and that this Court will be slow to interfere, submitted that less restraint would be exercised by this Court where the assessment was based on a short and straightforward set of agreed facts together with uncontroversial evidence from the applicant and the psychologist's report. In that regard, the applicant submitted that the offences of both break, enter and steal, and of take and drive conveyance were ordinary examples of those offences with no aggravating features enhancing their objective seriousness.
2. In relation to the offence in sequence 3 contrary to s 112(1)(a) of the Crimes Act, the applicant submitted that the offence of break, enter and steal was only one example of the offence covered by the section which was the offence of breaking, entering and committing a serious indictable offence. The applicant pointed to the matters listed in this Court's decision in Re Attorney-General's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435 to submit that few if any of the matters listed there were present in the applicant's offending. There was no significant degree of planning or organisation, the offence was not committed at the home of anyone who was in any way vulnerable, it was committed at a time when it was least likely that persons would be present and it was not accompanied by vandalism or any significant degree of damage.
3. In relation to the sequence 2 offence of taking and driving a conveyance, it was submitted that all that occurred was that the vehicle was taken from the premises and driven to the street near where the applicant lived. There was no suggestion of any damage to the vehicle or of any particular unlawful manner of driving the vehicle.
4. The applicant pointed to what was said to be the agreement between the Crown and his own counsel before the sentencing judge as to the level of objective seriousness of the offences, and to what the sentencing judge had said to the applicant's counsel about that matter during submissions.
5. The Crown drew attention to what was said in Mulato v R [2006] NSWCCA 282 concerning the characterisation of the degree of objective seriousness as being classically within the role of the sentencing judge. The Crown submitted that the defence submissions to the sentencing judge focused on the absence of aggravating factors in the offending. The Crown pointed out that the absence of such factors does not amount to mitigation. Reference was made to TM v R [2018] NSWCCA 88.
6. The Crown submitted that the sentencing judge was not bound by the apparent agreement between the parties as to the degree of objective seriousness. Nor, the Crown submitted, was there any procedural unfairness because the sentencing judge made reference to the arguments put forward by defence counsel which were based on the absence of aggravating factors.

Consideration

1. At the sentence hearing counsel for the Crown described the objective criminality of the offending as: Towards the bottom end of the range but the circumstances of the offender being on parole and what the Crown says to be the aggravating features being that in itself now your Honour has to look at the need for both specific and general deterrence in relation to his particular type of behaviour, his criminal record is one of being essentially a person who commits break, enter and steal offences.
2. When counsel for the applicant was addressing, the sentencing judge said this: I'm guessing that you would accept the submission from the Crown that the objective criminality is towards the bottom end of the range. Counsel for the applicant replied: I would in relation to all three offences. There's no substantial damage. There's a forced lock is [sic] the mechanism of entry. There's no vandalism. For the series of reasons that I have set out in the submissions, yes, I agree that its [sic] very much towards the lower end of the range.
3. During the Crown's submissions in reply, the following exchange occurred: HIS HONOUR: So in terms of the break and enter, having regard to the maximum sentence for larceny, it being five years, that is what allows you to submit that it's at the lower end of the range of objective seriousness. LAIRD: Yes. Where you get an offence which is break, enter and commit serious indictable offence, which is robbery, then you start to think of far more serious criminal offending.
4. Whilst his Honour in his Remarks on Sentence noted the submission of counsel for the applicant that the break and enter charge fell at the lower end of the range of objective seriousness, his Honour said nothing about the Crown's submission in that regard. Further, without providing any explanation for it in the face of both of those submissions, his Honour simply said that he considered the offending fell within the mid-range or perhaps just below the mid-range of objective seriousness. He expressed a similar opinion about the take and drive offence and the offence of dispose of stolen goods.
5. It may be accepted that the determination of objective seriousness is an important aspect of the sentencing judge's responsibility and will not lightly be interfered with by this Court. However, the exchange set out at [23] above raises matters of procedural fairness. Counsel for the applicant was entitled to believe that the sentencing judge had accepted the Crown's submission that the objective criminality was towards the bottom of the range. Further, his Honour's lack of explanation for the view at which he arrived, particularly in the light of the Crown's submission, and taken with the objective indicia of the offending, indicate to me that his Honour has fallen into error.
6. In some cases, the only way an adequate explanation can be provided for where an offence lies in the range of objective criminality, is to note not only what factors are present but also what factors are absent. That is not to conclude that the absence of some factors will mitigate the offending, but only to help to place the offending correctly on the spectrum. The need to do this may be highlighted in cases where guideline judgments list factors which should be taken to aggravate an offence.
7. In Ponfield Grove J (Spigelman CJ and Sully J agreeing) said this of an offence against s 112 of the Crimes Act at [19]: Whilst the maximum sentence for an offence is always a relevant consideration in the exercise of the sentencing discretion a particular difficulty arises in this respect with s 112. The offence is expressed in terms of breaking and entering and then committing a felony. In the normal course the relevant felony is stealing, however it need not be. There are many other felonies which, at least in theory, could be the subject of a charge under s 112 and which are more serious than stealing. It would be unusual where such a felony had been committed for the Crown not to proceed with charges for that felony, which in many cases would carry a penalty greater than the fourteen years for which s 112 provides. Nevertheless, the fact that s112 does, in terms, apply to the full range of felonies renders the maximum less than usually useful as an indicator for sentencing where the felony involved in a particular case is not one of the more serious felonies.
8. There may be some doubt about whether the sentencing judge was assessing objective seriousness of the offence of break, enter and steal in contradistinction to the offence to which s 112(1)(a) refers (break, enter and commit a serious indictable offence), but I am prepared to accept that his Honour was considering the former.
9. This Court in Ponfield also listed some 11 factors about which it said at [48]: A court should regard the seriousness of the offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the [11] factors are present. Of the factors listed, only one that is relevant to the assessment of objective seriousness was arguably present, namely, that the offence was accompanied by vandalism. The Crown relied on that factor on the basis that the agreed facts referred to a ransacking of the premises. Counsel for the applicant sought to distinguish ransacking from vandalism as such. I am prepared for present purposes to consider that the "ransacking" was an aggravating feature.
10. In relation to sequence 2, the only evidence was that the vehicle was driven from the Beresford Road premises to Concord West and parked in the street.
11. It may be accepted that a sentencing judge is not expected to provide elaborate reasons for a conclusion about objective seriousness, but the parties and, for that matter, this Court, need to understand the basis for the conclusion. In this matter, his Honour simply recited submissions from the applicant, said nothing about the Crown's submissions which were to similar effect, and then stated his conclusions which were not obviously supported by the facts. The need for reasons is emphasised by the exchange recorded at [23] above, even if such an exchange did not result in procedural unfairness to the applicant.
12. In relation to the charge of disposing of stolen goods, his Honour's remarks provide a strong indication that his Honour believed that the offence was concerned with the disposal of goods up to a maximum of $5000 when in fact there is no limit to the value of the goods under s 189 of the Crimes Act. The Crown submitted that the error was not material, and that the real value of the pawned goods was likely to have been more than the $3050.
13. I do not agree that the error is immaterial. It is impossible to accept that a belief by the sentencing judge that the maximum value in respect of which s 189 applies would not have influenced his view about the objective seriousness of the offence. On any view, the value of the goods disposed of would be a significant factor in coming to that view. That is the more so here because there was nothing in the objective evidence that pointed to any aggravating features of the offending.
14. In my opinion, his Honour's assessment of the objective seriousness of each of the offences is attended with error. This ground is made out.

Ground 1: The sentence imposed on the applicant was manifestly excessive.

1. Since error has been found in relation to the assessment of objective seriousness, it is not strictly necessary to deal with this ground. Submissions in relation to it will be taken into account on the re-sentence exercise.

Submissions

1. The Crown sought to rely on its submissions relating to manifest excess in relation to re-sentencing. The Crown's position was that the sentence imposed was neither unreasonable nor plainly unjust. The Crown drew attention to the applicant's unsatisfactory criminal history and to the fact that the offences were committed whilst the applicant was on parole for another offence against s 112 of the Crimes Act. The Crown submitted that the indicative sentences and the aggregate sentence were lenient when those aggravating factors were considered, and when regard was had to the applicant's poor prospects of rehabilitation and likelihood of reoffending. In that way, it was submitted, no lesser sentence was warranted.

Consideration

1. The level of objective seriousness for the charge of break, enter and commit a serious indictable offence should be regarded as being in the low range of offending. Minimal planning was involved. The locks on the screen door and the sliding glass door were forced and it may be accepted that the applicant went through the victim's belongings in an endeavour to find the car keys. It does not appear that any other damage was caused to the victim's property. An aggravating factor was that it was committed at the home of the victims.
2. The offence of take and drive a conveyance without consent should also be assessed as being in the low range of objective seriousness. The motor vehicle was driven to a street near where the applicant lived. Nothing else is known about the offence. There is also something of an "overlap" with the offence of break, enter and steal, in that the subject matter of the stealing (the car keys) served only to permit the taking of the motor vehicle.
3. The offence of disposing of stolen property should be regarded as being in the low range of objective seriousness. Although eight items of property were involved, the total value was said to be $3,050. The applicant provided his own photo identification and gave his own street address with the result that he was readily apprehended.
4. Two aggravating factors of some seriousness in relation to all offences are the applicant's extensive criminal history including a number of offences involving break, enter and steal, and that fact that the applicant was on parole from one such offence at the time of the present offending.
5. A report from a forensic psychologist, Mr Megan Godbee, reported that the applicant's early childhood was good and that he felt very lucky compared to people who did not have parents to care for them or food on the table. He told the psychologist that his parents' relationship was 'really good' and said that he never witnessed any violence between them. However, in a subsequent letter written to the sentencing judge, the applicant said that what he left out when he was interviewed by the psychologist was his parents' excessive alcohol abuse and domestic violence. He said that the reason he did not want to talk to the psychologist about it was out of respect for his mother, and that he did not want her to feel embarrassed or feel like she was in any way responsible for the bad choices he had made.
6. The applicant had told the psychologist that his father engaged in heavy alcohol consumption throughout his childhood and he said that it "wasn't nice growing up with that". He said that his father was not much of a positive role model. He said that his mother ended the relationship with his father when the applicant was approximately 15 years old because she had had enough of the arguing.
7. The psychologist reported that the applicant first consumed alcohol when he was approximately ten years old. He told the psychologist that alcohol had never caused any problems for him. He said that he began smoking cannabis at the age of 13, and that he used cannabis once every three or so months.
8. When he was about 15 years old the family moved to Redfern and at that time he began using heroin with other teenagers in the neighbourhood. He was using up to half a gram per day until the age of 30 despite overdosing on two occasions. He participated in two four-month rehabilitation programs and also went through the Youth Drug Court, but did not find these helpful. By the age of 30 he began to realise the impact that heroin use was having on his life, and he decided to abstain from the drug. At the time he spoke with the psychologist he had been on the methadone program for four years. He had also completed the Compulsory Drug Treatment Centre program whilst in custody, and found that helpful.
9. The applicant gave evidence before the sentencing judge that he had been subject to urinalysis well over 100 times whilst in the drug treatment program and he had never returned a positive result for illicit substances. The applicant told the psychologist that he had not used substances in the last five years including when he was most recently in the community. There was evidence of one subsequent custodial infringement of failing a prescribed drug test. The drug involved was Quetiapine (Seroquel), an anti-psychotic, which was not prescribed for him. That is said to be a drug which is also used as a sleeping pill in prison.
10. The sentencing judge was satisfied that the applicant was remorseful for the offending and that rehabilitation was not entirely out of the question, given the advances he had made in relation to his drug habit. On the basis of his criminal history the sentencing judge considered that the likelihood of reoffending was high which increased the need for specific deterrence. Subject to what follows, I agree with those assessments.
11. A recent affidavit from the applicant, prepared for the purpose of resentencing, discloses that the applicant has completed a number of courses whilst in custody including the EQUIPS Addiction Program. In addition, whilst at Macquarie Correctional Centre the applicant attends Narcotics Anonymous. He remains on the methadone program. He has recently been reclassified to a "B" classification, which is a minimum classification. That has enabled him to move to Macquarie Correctional Centre which is a "working gaol". That unchallenged material suggests that the applicant's prospects for rehabilitation may be better than they were at the time he was sentenced on 15 June 2018.
12. The applicant is entitled to a discount of 25% for his early pleas.
13. I consider, for the reasons given by the sentencing judge, that special circumstances exist. There is a high risk of institutionalisation and he needs an extended period of supervision in the community.
14. I propose an aggregate sentence of four years commencing 28 October 2016 and expiring 27 October 2020 with a non-parole period of two years and eight months expiring 27 June 2019. The indicative sentences are as follows: Sequence 2: One year nine months. Sequence 3: Two years six months. Sequence 14: Six months.

Conclusion

1. In my opinion the following orders should be made: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Judge Wilson SC in the District Court on 15 June 2018. 4. In lieu, sentence the appellant to an aggregate sentence of four years' imprisonment commencing 28 October 2016 and expiring 27 October 2020 with a non-parole period of two years and eight months expiring 27 June 2019.
2. BUTTON J: I agree with Davies J.

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