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[2016] ACTSC 176
Supreme Court of the ACT
2016-07-22
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal from the Magistrates Court - Appeal against sentence - burglary - drug use - mental impairment - failure to classify mental impairment as potential mitigating factor - failure to acknowledge guilty plea - specific error - sentence manifestly excessive - resentence
Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 33(1)(j), 35
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Allred v The Queen [2015] ACTCA 21
Ashdown v The Queen (2011) 219 A Crim R 454
Carpenter v Purcell [2008] ACTSC 34
Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151
Cotter v Corvisy [2008] ACTSC 64; (2008) 1 ACTLR 299
De Angelis v The Queen [2015] NSWCCA 197
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fusimalohi v The Queen [2012] ACTCA 49
Hanks v The Queen [2011] VSCA 7
Mansour v Watkins [2014] ACTSC 361
McDonald v Vandervalk (No 1) [2014] ACTSC 67
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Roberts v Smorhun [2013] ACTSC 218
R v Israil [2002] NSWCCA 255
R v McMahon [2014] ACTSC 280
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Riddle [2010] ACTCA 8; (2010) 4 ACTLR 153
R v Taylor [2015] ACTSC 122
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Saga v Reid [2010] ACTSC 59
Simonds v The Queen [2013] ACTCA 13
Valentini (1989) 46 A Crim R 23
P A Fairall and S Yeo, Criminal Defences in Australia (LexisNexis, Sydney, 2005) 4th ed
Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishing Pty Ltd, Sydney, 2009)
C Laird (ed), Roget's A-Z Thesaurus (Macmillan, New York, 1999)
D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015)
Director of Public Prosecutions (ACT) (Respondents)
1. On 27 September 2015, the appellant, Jeffrey John Smith, entered the Canberra Centre, despite being subject to a banning order, climbed over the counter of a "pop-up" store in the Centre, removed a professional cutlery set valued at $349.99 and left the store.
2. Police identified Mr Smith and arrested him early in the morning of the next day. On searching his clothing, they located a bag containing green vegetable matter that turned out to be cannabis.
3. He was charged with burglary, minor theft and possession of cannabis.
4. On 15 December 2015, he entered pleas of guilty to each charge and, on 27 January 2015, was sentenced for those offences to a total of eighteen months imprisonment from that date.
5. Mr Smith has now appealed from the sentence imposed for the burglary offence.
6. This Court has jurisdiction to hear appeals from the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 of that Act regulates those appeals.
7. I have described in Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows. Sentences imposed in the Magistrates Court may be set aside if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate. Sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
8. Errors may be specific errors. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find a specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.
9. Even if I cannot identify specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find that the original sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong.
11. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
12. Mr Smith lodged a Notice of Appeal on 24 February 2016. This stayed the sentence from that date. He was not granted bail pending the hearing of the appeal and has remained in custody.
(a) the sentence of twenty-two months was manifestly excessive;
(b) the non parole period of fifteen months was manifestly excessive in all the circumstances;
(c) the honourable Magistrate erred in not taking into account the defendant's plea of guilty.
14. On 21 April 2015, Mr Smith was given a notice by a person lawfully in charge of the premises located at 148 Bunda Street, Canberra City, ACT, known as the Canberra Centre, a large shopping mall in Civic. The notice informed Mr Smith that he "must not return" to the Canberra Centre for a period of twelve months, that is until 21 April 2016.
15. The notice informed him that if he returned to the premises, the police would be notified and that entry into the premises in contravention of the notice could amount to the offence of trespass.
16. At about 7:12 am on 27 September 2015, Mr Smith entered the Canberra Centre in contravention of the notice.
17. He went to a "pop-up" store in the Centre, lifted up the cover to the store and climbed over the service counter. He concealed himself from view before climbing back over the service counter, obviously concealing an item under his jacket, before leaving the store.
18. Later that morning, staff conducting a stock take noted that a "Masuta" five-piece professional cutlery set had been removed from a display case on the serving counter. It was valued at $349.99.
19. The display case in which the cutlery set had been located had been closed the previous night but was open when the staff inspected it the next day.
20. The police were called and they viewed CCTV footage which showed the area of the "pop-up" store.
21. A security officer retained by the Canberra Centre also viewed the footage and identified Mr Smith as the person who had climbed over the counter as he had had "multiple dealings with him" in the past. Police also recognised Mr Smith.
22. Early on Monday morning, police attended at Mr Smith's apartment and spoke with him about the incident. Mr Smith permitted them to enter his unit and they observed clothing consistent with the clothing worn by the person who had entered the Canberra Centre as shown on the CCTV footage.
23. Mr Smith was then arrested. He appears to have made admissions to the offence as he informed police that he could not get the knives back as he had sold them to someone on the street for drugs. There was no evidence to show that, when making the admissions, Mr Smith was aware of the strength of the evidence that police had at that stage.
24. Mr Smith's clothes were searched and police located a small clip seal bag inside his jacket. The bag contained green vegetable matter which Mr Smith informed police was cannabis.
25. Mr Smith was charged with burglary, minor theft and possession of cannabis and appeared in the Magistrates Court later that day. He applied for bail but bail was refused and he was remanded in custody.
26. There were several adjournments until, on 18 November 2015, he entered a plea of not guilty to the offences and a date was set for hearing.
27. On 15 December 2015, however, he entered a plea of guilty and was remanded to 27 January 2016 for sentence.
28. On 27 January 2016, Mr Smith was also sentenced for an unrelated charge of theft, apparently a shoplifting offence from a department store committed some time earlier. He was sentenced to four months imprisonment for that earlier theft, to commence on 27 September 2015 and end on 26 January 2016.
29. On the charge of burglary, he was sentenced to eighteen months imprisonment to commence on 27 January 2016. He was sentenced to concurrent terms of imprisonment for the charge of minor theft and possession of cannabis. Those terms of imprisonment have now expired.
30. Her Honour then set a single non parole period of fifteen months from 27 September 2015 to 26 December 2015.
31. In order to evaluate the appeal, it is necessary to set out the objective seriousness of the offence, the subjective circumstances of Mr Smith and a summary of her Honour's sentencing remarks.
32. Burglary is a serious offence. That is immediately shown by the maximum penalty that the legislature has provided for it. The offence, which is contrary to s 311 of the Criminal Code 2002 (ACT), attracts a maximum penalty of 1,400 penalty units (that is, at the time, a fine of $210,000) and imprisonment for fourteen years.
33. It is, then, to be regarded by the courts as a serious offence relative to other offences, an approach to the offence required by the High Court in, for example, Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31].
34. Some factors relevant to an assessment of the seriousness of the offence have been identified by the NSW Court of Criminal Appeal in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 at 337-8; [48]. Relevantly, the factors identified in that case include the following:
35. No other factors of aggravation as to the seriousness of the offence were relied on by the prosecutor.
36. The other seven identified aggravating features were not present in this case. Indeed, apart from the banning of Mr Smith from the premises, his entry to the shopping complex would have been perfectly legal.
37. The factor of a prior record, however, has since been expressly disavowed as affecting the seriousness of an offence. In R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at 574; [25], Spigelman CJ, with whom McClellan CJ at CL, Barr and Bell JJ agreed, and with whom Grove J effectively agreed in separate reasons, said that it was not open to "use prior convictions to determine the upper boundary of a proportionate sentence".
38. It was, otherwise, an unremarkable example of a burglary of commercial premises. Burglary of such offences is generally regarded as less serious than burglary of residential premises. See Simonds v The Queen [2013] ACTCA 13 at [54].
39. It was obviously an opportunistic offence with no pre-meditation or planning involved. This was accepted by the prosecutor and by the learned sentencing Magistrate.
40. A Pre-Sentence Report and comprehensive and helpful submissions from Mr Smith's counsel were available to the Magistrates Court to provide the personal background of Mr Smith. I have relied on them for the following findings.
41. Mr Smith was born forty-seven years ago in Leeton, NSW, the middle child of his parents. He was raised in a supportive family but he displayed behavioural problems from an early age which caused relationship difficulties between him and his parents, particularly his father, who used strict disciplinary methods and was described by Mr Smith as a "hard man".
42. His parents separated when he was sixteen years old and, despite the view he expressed of his father, Mr Smith went to live with him until he left home at age twenty. He then lived in Wagga Wagga, Sydney and Adelaide before coming to Canberra in 2009.
43. Mr Smith has had two previous relationships, from which he has three children. His sixteen year old daughter is, he believes, in foster care in New South Wales. He has contact with her occasionally through letters but has had no personal contact for many years.
44. Mr Smith and his most recent former partner had a difficult relationship because of his drug taking. He was also violent with her, resulting in a number of convictions.
45. Prior to his arrest and remand in custody, he was, however, seeing his sons who were born of that relationship.
46. He has a partner now of some ten months but he is not confident of the status of the relationship as, unsurprisingly, it deteriorated when he was remanded in custody.
47. Mr Smith completed his education to Year 10 when he was sixteen years old. He had average grades and found it difficult to be accepted by his peers or form friendships in school.
48. Mr Smith has had minimal employment though, in 2010, he was employed as the assistant manager of a local opportunity shop but lost the position when he relapsed into problematic drug use.
49. He was employed in the Alexander Maconochie Centre as a "dixie" but lost this job on 12 January 2016 when he contravened a direction and was disrespectful to an officer.
50. In the community, Mr Smith is in receipt of a Disability Support Pension as a result of injuries he suffered in a motor vehicle collision.
51. Most of Mr Smith's associates are involved in some form of criminal activity, which poses a significant problem in his attempts to address his drug addiction.
52. He first experimented with alcohol when he was sixteen years old and was soon drinking spirits daily. He started to moderate his drinking when he was thirty and, since 2002, has reduced his consumption to two or three drinks only on social occasions.
53. He began using cannabis in his mid teens leading up to smoking about a gram a day, except when in custody or ill. He started using heroin and methamphetamine when he was twenty-seven and thirty respectively, using these drugs off and on throughout his life. By the time of his arrest, he was using 1 gram of heroin intravenously each day.
54. Mr Smith has had drug and alcohol interventions but they do not seem to have been effective. These have included pharmacotherapy, counselling and long term residential drug rehabilitation in the Canberra Recovery Services Program.
55. On admission to the Alexander Maconochie Centre, he undertook a drug test which proved positive for cannabis.
56. Mr Smith has suffered from depression. He declined treatment for his depression in 2012 when in custody but, in 2013, was reviewed by a psychiatrist and was prescribed treatment with which he was compliant and which significantly improved his condition.
57. He has also a diagnosis of schizophrenia. In 2015 he was prescribed with Olanzapine but declined to take it because he said it had no effect. He presented with psychotic symptoms in May 2015. Since returning to custody, his engagement with treatment and mental health staff was initially sporadic but has recently improved.
58. Mr Smith no longer has any physical health issues but was treated for facial and skull fractures in November 2015 as a result of being assaulted in custody.
59. He has accepted responsibility for his offending, but said he was affected by drugs at the time and so could not recall details. He demonstrated insight into the impact of the offending on his victims but blamed his offending on his drug use.
60. Mr Smith has a long criminal history with one hundred and twenty-eight offences on his criminal record. The vast majority of them are dishonesty offences, including a very large number of offences of burglary or breaking, entering and stealing. He also has a worrying number of offences for violence, as well contraventions of protection orders and a large number of drug offences. Of the other offences, there are a number of traffic offences and offences of damaging property.
61. He has breached court orders and breached bail conditions on a large number of occasions.
62. It is clear that his drug addiction has led to him committing many of the offences and it is of concern that there have been only limited attempts to address his drug addiction. Despite a long-term residential program in Canberra Recovery Services in 2010, Mr Smith has committed, not including the current offences, ten offences of dishonesty since that time. A reasonably clear inference could fairly be drawn that these offences were committed in connection with drug offending although there may, of course, be other explanations. The fact that he was found in possession of cannabis when arrested would strongly support the inference.
63. While I have acknowledged, in cases such as Saga v Reid [2010] ACTSC 59 at [89], that a single attempt or few half-hearted attempts at drug rehabilitation are often unsuccessful, Mr Smith does not seem to have made significant efforts since it was clear that his residential rehabilitation did not resolve his drug issues or give him sufficient protection from relapse.
64. In submissions on sentencing in the Magistrates Court, Mr Smith's counsel expressed, on behalf of his client, an apology to the victims of his crimes. He submitted that the main contributor to Mr Smith's offending behaviour was his entrenched drug use, though "he struggles with alcohol as well".
65. His counsel referred to the diagnosis of schizophrenia. This had not previously been recognised as a contributor to his offending. His mental impairment did not require a mental health diversionary disposition, it was submitted, but it gave him an inflated sense of self, believing that he was above the law, leading to some "state of illusion" all the time. This submission was not contested by the prosecutor.
66. It was submitted further that the offence displayed a low level of criminality as it was opportunistic and, given his familiarity to security personnel and police, his identification and arrest were inevitable.
67. It was submitted that he was, at the time of sentencing, abstinent and drug testing conducted in custody had been negative for illicit substances.
68. His family circumstances were mentioned, especially the pro-social contact with his sons. His counsel also referred to his early plea of guilty which was an indication of remorse.
69. In submissions, the prosecutor acknowledged that Mr Smith could be given credit for his plea of guilty but then referred to his criminal history and the assessment in the Pre-Sentence Report that he was at a high risk of re-offending unless he addressed his personal issues, particularly his drug dependency.
70. He agreed that the offences were opportunistic and with the characterisation of the offences by Mr Smith's counsel. I take this agreement to include the submission by Mr Smith's counsel that they were at a low level of criminality.
71. He submitted that personal deterrence was significant, particularly because of Mr Smith's criminal history and the reliance on his drug addiction which, the prosecutor pointed out, he had had opportunities to address.
72. He submitted that a term of imprisonment was appropriate but that it was "obviously a matter for [the learned Magistrate] how that term of imprisonment [was] structured".
73. Her Honour then proceeded with her sentencing remarks. Her Honour identified the offences and agreed that they were opportunistic. Her Honour referred to Mr Smith's criminal history which she described as "absolutely prolific".
74. Her Honour commented, in agreement with the prosecutor, that the "excuse" Mr Smith offered for his offending, namely his drug use, was no excuse at all. That, of course, is the law. In Valentini (1989) 46 A Crim R 23 at 25, the NSW Court of Criminal Appeal said:
This Court has said on countless occasions that addiction to heroin is not to be considered as a factor for the reduction of what would otherwise be an appropriate sentence for the nature of the offences which have been committed. It serves, however, to provide an explanation for the commission of the offences.
75. The explanation may, of course, provide important considerations to address in the nature and structure of the sentence to be imposed.
76. Her Honour then criticised Mr Smith for not getting a job, suggesting that he had not "bothered". It is not clear on what evidence that finding was based. Mr Smith had had some minimal employment but his limited education and mental impairment would be some barriers to his employability. Of course, his drug addiction, which he does not seem seriously to have addressed, was also a bar to employment but one over which he had some control. He had made efforts to rehabilitate, though they were, to date, unsuccessful in preventing his relapse into problematic drug use.
77. Her Honour considered that protection of the community, general deterrence and specific deterrence were "compelling factors" and that a sentence of imprisonment was appropriate.
78. Her Honour referred to Mr Smith's mental impairment and made a somewhat curious comment, of a kind which her Honour has made in other cases, when she said:
Your mental health issues are not an excuse to you. There are many people living in this community, many people living in this community with mental health issues. They don't go out there and steal, and they haven't been stealing for the past 30 years of their lives like you have, or committing offences for the last 30 years of their lives like you have. You are a danger to people in this community and you're a risk to have around.
79. The use of the word "excuse" (both here and in connection with Mr Smith's drug addiction) is problematic. In criminal law, "excuse" is regarded as a defence, that is, an answer to a criminal charge which, if accepted, would necessitate an acquittal: P A Fairall and S Yeo, Criminal Defences in Australia (LexisNexis, Sydney, 2005) 4th ed at 1-2; [1.1]-[1.2].
80. Of course, outside the law it has perhaps a less specific meaning. Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishing Pty Ltd, Sydney, 2009) at 579 defines it also as including "to regard or judge with indulgence" and so it may be available as a synonym of mitigating: C Laird (ed), Roget's A-Z Thesaurus (Macmillan, New York, 1999) at 279. I shall assume that her Honour was using the term in the latter way, for there can be no sentence for someone whose alleged criminal conduct is to be excused in the first sense. See R v Israil [2002] NSWCCA 255 at [23].
81. Her Honour's comments, however, were wrong in law and unfair. Mental impairment can, where it does not excuse (in the first sense) conduct, provide mitigation (excuse in the second sense) of punishment. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32].
82. There is no principle of law, including sentencing law, which says that a person who has a mental impairment cannot rely on it for mitigation because other people with a mental impairment (indeed, perhaps with the same impairment) have not committed offences.
83. That others have overcome their impairment, managed it or been sufficiently supported or treated that they do not commit offences does not negate the principles in R v Verdins. See Muldrock v The Queen at 138-9; [53]-[54]. Where the conditions exist for taking an offender's mental impairment into account, it should be taken into account.
84. It is also an unfair comment, for her Honour was not comparing like to like. That is to say, her Honour had no information that other people in the community diagnosed with depression, schizophrenia and polysubstance abuse disorder did not commit crimes. Indeed, her Honour would be aware that people with such diagnosed impairments frequently come before the courts. It is not clear with whom her Honour was comparing Mr Smith and, without that, her comments did not fairly compare Mr Smith with others whose comparative circumstances were completely unknown.
86. The major issue on the appeal was whether the learned Magistrate had taken into account the plea of guilty entered by Mr Smith. As noted above (at [26]-[27]), it was not entered at the earliest opportunity, but it was entered before a hearing date had been set.
87. Mr Smith also challenged the length of the sentence for burglary on the basis that it was manifestly excessive.
88. While the Notice of Appeal did challenge the non parole period, at the appeal it was made clear that, on the present head sentences, there was no challenge to the non parole period but, if the sentence for burglary was to be varied then the non parole period would need also to be varied.
89. As to the plea of guilty, it was submitted that, because the learned Magistrate made no reference to the plea of guilty, I should find that her Honour had not taken that matter into account.
90. Her Honour made no mention of the plea of guilty. Her Honour did not address what, if any, discount to the sentence it attracted and, if none, why that was so.
91. Section 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) requires the court sentencing an offender to consider (it "must" consider) any plea of guilty. This is clearly re-inforced by s 35 of the same Act which, again, provides that "the court must consider ... the fact that the offender pleaded guilty". I have noted that this is an obligation of a sentencing court in Cotter v Corvisy [2008] ACTSC 64; (2008) 1 ACTLR 299 at 311; [56].
92. In this case, her Honour made no mention of the plea of guilty at all. In R v Thomson (2000) 49 NSWLR 383 at 395; [46]-[52], Spigelman CJ said:
As part of the duty of sentencing judges to give reasons for their decisions, express reference to the fact that consideration has been given to [a plea of guilty] ought to be included in reasons on sentence.
...
The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations.
93. I followed that decision in Cotter v Corvisy at 310-1; [54]. This approach was also adopted by Penfold J in Carpenter v Purcell [2008] ACTSC 34 at [18]- [19], Burns J in McDonald v Vandervalk (No 1) [2014] ACTSC 67 at [10]- [11] and Murrell CJ in Mansour v Watkins [2014] ACTSC 361 at [32]- [33].
94. In Cotter v Corvisy at 310; [54], I did point out that not much may be required to discharge the court's statutory obligation, especially in the Magistrates Court, when I said:
Given the constraints on a Magistrate, (see Lumby v Cooper [2008] ACTSC 53 at [19]), not much may be required to discharge the obligation under s 35(2)(a) of the Crimes (Sentencing) Act 2005 (ACT) to do so. An express reference is usually sufficient: Moutrage v Haines [2008] ACTSC 36 at [25]. Acknowledgement by the sentencer of the submission by the prosecution that the plea will be taken into account may also be sufficient and this would be a helpful way in which the prosecution could assist a sentencer to avoid appellable error.
95. None of these matters apply here; her Honour gave no indication that she had, as required, considered the plea of guilty.
96. Accordingly, it is clear that her Honour made a specific error when, so far as can be determined from her Honour's remarks on sentence, her Honour did not consider the plea of guilty.
97. The respondent's counsel submitted that the discount to be given for a plea of guilty is a matter of discretion and referred to cases such as De Angelis v The Queen [2015] NSWCCA 197 at [55] and Roberts v Smorhun [2013] ACTSC 218 where the discretion of the court as to the effect of the plea was made clear. Indeed, as pointed out in R v Riddle [2010] ACTCA 8; (2010) 4 ACTLR 153 at 158-9; [28], there are cases where no discount on sentence at all may be allowed for a plea of guilty. That was a case where the plea was entered on the first day of the trial. In Fusimalohi v The Queen [2012] ACTCA 49 at [35], I noted that a limited discount or no discount at all may be appropriate if entered in the face of an overwhelming prosecution case.
98. While these are important principles, they do not overtake the principal complaint that her Honour did not consider the plea of guilty which her Honour was mandatorily required to consider. That the discount was a matter of discretion and may have been quite limited, if not absent in the light of the very strong prosecution case, does not mean that there was not an error.
99. The consequence of the finding of this error was stated by Hayne J in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 160; [130], as follows:
In the [case of specific error], once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.
100. While his Honour was in dissent on the outcome, this conclusion is, it has been said, "undoubtedly correct": D Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, Sydney, 2015) at 123; [10.16], footnote 38.
101. Thus, in order to determine how to proceed, it is necessary to consider the second ground of appeal.
102. Whether a sentence is manifestly excessive is a conclusion: a sentence either is or is not manifestly excessive by being unreasonable or plainly unjust and excess (or inadequacy) is or is not plainly apparent. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [6].
103. Recently, the Court of Appeal in Allred v The Queen [2015] ACTCA 21 at [29], set out the approach of a court to the question as follows:
60. In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]):
32. In Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
See also R v Thorn [2010] ACTCA 10 (at [33]).
33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
104. It is also worth noting that the excess of the sentence must be manifestly excessive and not merely arguably excessive. See Hanks v The Queen [2011] VSCA 7 at [22].
105. In drawing the conclusion of manifest excess in the sentence, Mr Smith's counsel drew attention to the following matters:
• the opportunistic nature of the offending, acknowledged by the prosecutor and the learned Magistrate;
• the fact that the offence was at the lower end of objective seriousness, also apparently acknowledged by both the prosecutor and the learned Magistrate;
• that Mr Smith, while having a shocking record, had not committed a burglary (or the NSW equivalent offence of breaking, entering and stealing) since May 2005, some ten years before this offence;
• the absence of any aggravating feature of the commission of the offence, namely planning, damage or vandalism, repeated incursions into the same premises or a high value of the property (which was, in fact, quite modest);
• there was no personal victim on the premises and thus no trauma suffered by any victim.
106. Further, the relationship between Mr Smith's mental condition and the offending was not challenged, unless the finding of her Honour, which I have addressed above (at [78]-[84]), amounted to that. In this case, that attracts the operation of the appropriate principles in R v Verdins.
107. The respondent submitted that the following matters were relevant:
• the maximum penalty of the offence, which is 1,400 penalty units (namely, at the time, a fine of $220,000) and imprisonment for fourteen years;
• the criminal history of Mr Smith, which was important to assess what, if any leniency can be afforded to Mr Smith;
• the property stolen was never recovered and it was "not of insignificant value", but this does not mean that it was of significant value;
• the Mr Smith's prospects of rehabilitation are poor;
• the offending was not an uncharacteristic aberration on the part of Mr Smith;
• Mr Smith was assessed as at a high risk of re-offending;
• the plea of guilty was not at a particularly early stage and was made in the light of a strong prosecution case;
108. The respondent also cited the comments of Murrell CJ in R v Taylor [2015] ACTSC 122 at [42]:
Despite the maximum available penalty for burglary in the ACT being 14 years' imprisonment, current sentencing patterns showed that offenders frequently receive sentences of between 18 months and two and a half years' imprisonment.
109. On the other hand, in Fusimalohi v The Queen at [50], I considered a number of decisions of the Court of Appeal and a table of decisions in the Supreme Court and Court of Appeal in respect of burglary offences. I concluded at [51]:
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
110. The respondent's counsel in this case helpfully provided an extract from the ACT Sentencing Database which was a tabulation of 180 sentences imposed for burglary offences.
111. It showed that 69% (124) of all sentences were of full-time imprisonment; 26% (48) were wholly or partially suspended. Of the 124 sentences of full-time custody, 19% (23) were for twelve months imprisonment or less. Two sentences were for forty-eight months and seven were for forty-two months. The balance were for between eighteen and thirty-six months. That, however, included sentences following a plea of not guilty where the sentences were somewhat lengthier and none were fully non-custodial.
112. I am acutely aware of the limitations of statistics, as explained in Ashdown v The Queen (2011) 219 A Crim R 454 at 511. Nevertheless, it seems to me that what I said in Fusimalohi v The Queen, as set out above (at [109]), is the more accurate assessment of the general range of sentences in the Territory, though, of course, a sentencing court is not bound by such a range.
113. In my view, the only two matters of seriousness in this case are that the property stolen was not recovered and Mr Smith's criminal record. He is not entitled to much discount, if any, for his plea because of the obvious almost overwhelming strength of the prosecution case (not the Crown case as put in the respondent's submissions). Mr Smith, however, appeared to make admissions when first questioned. On the other hand, he did enter his first plea as a plea of not guilty before entering the guilty plea.
114. There is a real risk to the community if Mr Smith does not address his mental health and his drug addiction. Given that he has made previous attempts at rehabilitation, his future prospects of reform must be considered with significant reservation.
115. I also note the fact that his most recent offence of a burglary-type offence was on 5 May 2005 when Mr Smith was released on a bond to be of good behaviour for three years. His criminal record show some breaches of that bond but not for the same offending. Since then, all his offences have been offences of theft, including minor theft, for which he has, on occasion, been imprisoned.
116. The offence involved no damage during the trespass, involved theft of a relatively low value item, was not a burglary of residential premises but commercial premises, and was opportunistic with no pre-meditation or planning.
117. It seems to me that the sentence imposed in the light of the sentencing remarks appeared to include an element of sentencing Mr Smith again for his prior offences as well as for this offence.
118. I am satisfied that the sentence was manifestly excessive.
119. As a result of the specific error, therefore, the sentencing discretion is enlivened and, in the independent exercise of my discretion on re-sentencing, a different sentence is appropriate.
120. Despite finding that the sentence was manifestly excessive, I am satisfied that no other sentence but a sentence of imprisonment is appropriate.
121. Section 7 of the Crimes (Sentencing) Act sets out the purposes of punishment to which I must have regard. In this case, general deterrence does loom large and there is also a requirement for specific deterrence to play a part in the sentence.
122. I have regard to the matters which I am required to consider set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.
123. I take into account the plea of guilty. In all the circumstances, I do not consider that it justifies more than a marginal discount because of the overwhelming case of the prosecution. Nevertheless, it is evidence of some remorse, which is supported by the expressions of remorse and insight recorded in the Pre-Sentence Report. In that context, it is a relevant mitigating factor.
124. In my view, a sentence of twelve months imprisonment is appropriate for the offence of burglary, even when the sentence for theft is concurrent. As I pointed out in R v McMahon [2014] ACTSC 280 at [94], that is the usual, but not invariable, order.
125. Had Mr Smith not pleaded guilty, I would have sentenced him to fourteen months imprisonment, I have rounded down to twelve months imprisonment.
126. There is no reason why the sentence for burglary should not have been cumulative on the sentence for the earlier theft offence.
127. This will require me to set aside the sentence and re-sentence Mr Smith accordingly and set a new non parole period. My hesitation at Mr Smith's commitment to reform suggests that a lengthy non parole period is warranted.
128. I will make orders to give effect to these reasons.
129. The specification of the starting date for the sentence will mean that the period of custody which Mr Smith has served, pending the appeal, will be fully taken into account in the sentences without further order, despite the stay under s 216 of the Magistrates Court Act.
I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Smith
O'Dell [2016] ACTSC 176
(1999) 198 CLR 111
(2010) 5 ACTLR 151
(2008) 1 ACTLR 299
(2000) 202 CLR 321
(2011) 244 CLR 120
(2006) 66 NSWLR 566
(1999) 48 NSWLR 327
(2010) 4 ACTLR 153
(2000) 49 NSWLR 383
(2007) 16 VR 269
(2011) 6 ACTLR 18
(2009) 3 ACTLR 210
(1979) 23 SASR 98