Sparkes v R

FACTS

1. The facts of the offences were recounted by the judge on pages 1-3 of his sentencing remarks. The applicant's counsel in written submissions provided a helpful summary of the facts that I propose to adopt (AWS pg3-4): "Aggravated Break, Enter and Commit a Serious Indictable Offence [Count 1] On 17 September 2013, at about 2:45am, the applicant and an unknown co-offender attended the residence at … Toongabbie. The victim and her adult son were asleep inside the premises at the time. The applicant entered the premises through the fly screen door and the main door, which was closed but not locked. The applicant removed the victim's handbag and car keys from the house. The applicant and his co-offender looked through the handbag and removed the victim's wallet, before leaving the handbag on the driveway. The wallet contained personal cards and about $410 in cash. The applicant used the car keys to unlock and access the victim's silver Ford Falcon. Take and drive conveyance [Count 2] The applicant entered the driver's seat of the silver Ford Falcon,…, and reversed it out of the driveway and away from the premises. Intentionally Damage Property [Form 1a - Count 1] In order to gain access to the Silver Ford Falcon, it was necessary to move a black Ford Utility,…, parked behind it. The applicant therefore smashed the side window of the utility, leant in and released the handbrake. The co-offender pushed the utility out of the driveway and left it stationary in the middle of…[the] Road. Larceny [Form 1a - Count 1] The applicant also stole a wallet from the utility, containing $500 in cash, a driver's licence, a keycard and personal papers. Take and drive conveyance [Form 1b - Count 2] Between 11:30pm on 7 September 2013 and 6:30am on 8 September 2013, the applicant broke into residential premises at…, Dean Park, obtaining the keys to Holden Commodore…, which he then stole."

Some findings by the judge

1. The judge found: 1. an aggravating feature of both offences is that the applicant was on conditional liberty, namely s 11 bail at the time; 2. the objective seriousness of count 1 was below mid-range but not at the bottom of the range of seriousness; 3. the objective seriousness of count 2 was slightly above the mid-range of objective seriousness; 4. the applicant was 23 years old. He had a very unhappy background. He was the only child of his parents both of whom were Aboriginal Australians. The relationship between his parents ended when he was two years old. The applicant had no adult supervision of a positive kind since the age of 14 years; 5. at the age of 12, the applicant commenced consuming alcohol and ice. At 15 years, he was smoking methamphetamine on a daily basis and also started using ecstasy and speed. He graduated to smoking heroin at the age of 17; 6. the applicant "never had an effective treatment for his sustained, prolonged and multifaceted drug abuse issues" (ROS 5); 7. the applicant had an appalling criminal history. As an adult, his criminal activities since 2008, included "driving offences, aggravated assaults, aggravated break and enters, police pursuits, stealing motor cars and the like" (ROS 5); 8. the applicant had no diagnosable mental illness "at this stage" (ROS 5); 9. the applicant had not expressed remorse and had poor prospects of rehabilitation; 10. the plea of guilty was entered at the first opportunity and it was appropriate he be given a 25 per cent discount; and 11. the Crown's aide memoire chronology showed the various periods of imprisonment which the applicant had served and was continuing to serve. His earliest release date was 4 February 2016. Whilst there was much to be said for the start date being later than the date of his arrest, "by reference to his age and having regard to notions of totality, the start date will be the date of his arrest, namely 23 September 2013" (ROS 6).
2. The applicant does not challenge any of these findings.

Argument

1. The applicant contended in written submissions that the aggregate sentence was excessive both in respect of the head sentence and the non-parole period. The applicant submitted that the indicative sentence should have incorporated the 25 per cent discount for the plea of guilty. If this discount had been applied to the indicative sentences, the applicant pointed out that the starting point for those terms must have been 9 years 4 months for count 1 and 5 years 4 months for count 2. The indicative sentence for count 2, the applicant said, was in excess of the maximum penalty for an offence contrary to s 154A(1)(a) of the Crimes Act and was clearly beyond what was reasonable (or indeed available) for an offence "slightly above the mid-range of objective seriousness."
2. Although the applicant accepted that the indicative sentences are not of themselves appealable, the judge's indicative sentence for count 2 was a clear guide to the existence of manifest excess. Furthermore, the indicative sentence for count 1, the applicant argued, did not appear consistent with the judge's findings about the objective seriousness of that offending.
3. The applicant referred to Judicial Commission sentencing statistics which were said to demonstrate that 65 per cent of offenders who were sentenced to a term of imprisonment for an offence contrary to s112(2) of the Crimes Act, less than two per cent of offenders were sentenced to a non-parole period of more than four years. As to the offence contrary to s 154A(1)(a) of the Crimes Act, the statistics disclosed that no offender sentenced for that offence in the District Court has been sentenced to imprisonment in excess of 3.5 years.
4. Another argument was that the benefit to him of commencing the sentence from the date of arrest was offset by the judge declining to find special circumstances. He was, it was said, a person with a very significant drug abuse problem which demonstrated a need for an extended period of supervision upon return to the community.
5. In oral address, the applicant argued that the applicant's drug addiction at a young age was a mitigating factor. The applicant also referred to his present age of 23 years and the risk of institutionalisation.

Decision

1. The applicant must show that the sentence was unreasonable or plainly unjust in order to make good his complaint that the sentence is manifestly excessive: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. Intervention by this Court is not warranted simply because it might have exercised the sentencing discretion in a manner different to the judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57].
2. The applicant's argument of manifest excess is founded upon the submission that the judge's indicative head sentence of 7 years for count 1 and 4 years for count 2, did not take into account the 25 per cent discount for the pleas of guilty. If this was the case, the undiscounted starting point for count 1 was 9 years 4 months and 5 years 4 months for count 2. Such an indicative sentence for count 2 would have plainly been excessive as it exceeded the maximum penalty for an offence contrary to s 154A(1)(a) of the Crimes Act. The total undiscounted indicative sentence would have been 14 years 8 months.
3. Should the judge not have taken into account the 25 per cent discount before announcing the indicative sentences, the total undiscounted indicative sentence would have been 11 years. After applying the discount of 25 per cent, the indicative head sentence for count 1 would have been 5 years 3 months and 3 years for count 2.
4. In his sentencing remarks, the judge did not state that the indicative sentences had been discounted. However, before imposing the aggregate sentence, his Honour said (ROS 7): "Except for your plea of guilty I would have imposed an aggregate sentence of eight years and six months. Because of the plea of guilty, the term of the sentence will be six years and four months."
5. In my view, the undiscounted aggregate sentence of 8 years 6 months sits happily with a total undiscounted indicative sentence of 11 years. It, however, does not bear a reasonable relationship with a total undiscounted indicative sentence of 14 years 8 months. Furthermore, I do not think that the judge, who is an experienced sentencing judge, would indicate a sentence for count 2 that was more than the maximum penalty for an offence contrary to s 154A(1)(a) of the Crimes Act.
6. I am not persuaded that the indicative sentences are reflective of error in relation to the aggregate sentence imposed by the judge. In any event, the "principal focus of determination of a ground alleging manifest … excess will be whether the aggregate sentence reflects the totality of the criminality involved": JM v R [2014] NSWCCA 297 at [13] (R A Hulme J).
7. I do, however, mention that sentencing judges should apply the relevant sentencing discount when setting an indicative sentence and state that they have done so.
8. The applicant does not challenge the judge's assessment of the objective seriousness of the applicant's offending.
9. Although the applicant's offences were not the most serious of their kind, the applicant's offending occurred at a time that he was on conditional liberty. On 13 August 2013, he was granted bail by Craigie SC DCJ under s 11 of the Crimes (Sentencing Procedure) Act, having pleaded guilty to earlier unrelated charges of aggravated assault with intent to take or drive a motor vehicle and an aggravated break enter and steal. The conditions of his s 11 bail, included that he enter the Glen Rehabilitation Centre and remain there for 12 weeks from 14 August 2013, until 13 November 2013. The present offences were committed only five weeks after his release from custody. This was an aggravating factor.
10. The judge described the applicant's prior criminal history "as appalling". His Honour was entitled to have regard to the applicant's record of offending in giving more weight to retribution, personal deterrence and protection of the community than would be the case if such a record did not exist: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 and R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159.
11. The judge plainly took into account the applicant's subjective case. He referred in his sentencing remarks in some detail to the applicant's age, his difficult background, his lack of positive adult contact since the age of 14 and the early age that he became addicted to drugs. The applicant makes no complaint about the judge's finding that he was not remorseful and his prospects of rehabilitation are poor.
12. It is often stated that the upper limit of the range of sentences is not provided by the Judicial Commission sentencing statistics, but this material provides guidance and achieves consistency in sentencing: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1.
13. As the Crown submits, in the applicant's case, the statistics have limited value as the Judicial Commission database does not provide as one of the factors that can be selected to attempt to individualise the statistics, the aggravating feature of being on conditional liberty at the time of the offending. Furthermore, whatever assistance is provided by the statistics is limited when an offender is subject to a number of different sentences that overlap.
14. At the time the applicant was sentenced by the judge, he was serving sentences of imprisonment with an effective non-parole period to expire on 4 February 2016. The applicant had been arrested on 17 September 2013, but none of his pre-sentence custody prior to the date of sentence, was wholly referable to the present offences. His Honour's commencement of the sentences from the date of arrest was, in my opinion, generous to the applicant. The result was an effective non-parole period of just over 2 years 4 months.
15. In my view, it was open to the judge in the exercise of his discretion not to find special circumstances. The applicant's lack of remorse, poor prospects of rehabilitation and breach of s 11 bail, did not assist a finding of special circumstances founded on a need to overcome his drug addiction.
16. I am not persuaded that the aggregate sentence imposed by the judge was in any way manifestly excessive.
17. The orders I propose are:
18. Leave to appeal granted.
19. Appeal dismissed.
20. Hoeben CJ at CL: I agree.
21. Fagan J: I agree with Price J.
22. Hoeben CJ at CL: Accordingly, the orders of the Court will be those proposed by Price J.

Amendments 03 August 2015 - Removed field instructions from coversheet fields Corrected paragraph numbering from [10] - [37] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2015