Stoeski v Regina

5There were two other offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW): drive at a speed dangerous for which the applicant was disqualified from driving for eight years from 1 January 2012 and possession of ammunition for which the applicant was fined $1,500.

Facts 6On 20 July 2011, in the evening, two males, who were armed and disguised, broke into a residence in Marrickville and demanded from the owner the keys for a Suburu WRX which was parked on the street. They took the keys and drove off in the Suburu. Three or four hours later, the applicant drove the Suburu to Belmore where it was parked in the garage of a unit (Count 1). 7On 22 July 2011, the applicant drove the Suburu to Penshurst (Form 1, charge 1). He sprayed the inside of the vehicle with WD-40 to destroy forensic evidence. However police had installed a listening device in the vehicle which recorded the applicant's conversations with his co-offenders. 8Between 1 and 2 August 2011, the applicant stole the front and rear registration plates from another Suburu which was in Brighton-Le-Sands (Form 1, Charge 2). He placed those plates on the original Suburu and dumped its registration plates in a drain in Sans Souci. 9At about 3.45 am on 2 August 2011 the applicant and Jason Andrews and Simon Ahmed (the co-offenders) drove to the Botany Bay Water Police complex at Sans Souci. The applicant gave instructions to the co-offenders about stealing a police radio from the complex, including as to its location. The co-offenders went into the complex and stole the base of a radio and three ballistic vests. Andrews was apprehended (Count 2 and Form 1, charge 3). The applicant and Ahmed fled in the Suburu. The applicant asked Ahmed whether he grabbed "the silver box", to which Ahmed replied, "I nearly grabbed it, I nearly got it." 10In the early morning of 3 August 2011, the applicant travelled with Roberts and Ahmed to Chatswood Police Station. The applicant told them: "Here's the scenario, we're getting a box". The box was a reference to a police radio. The applicant and Roberts reconnoitred the scene and discussed the plan to steal a radio (Count 3 and Form 1, charge 4). 11At about 2.34 am they arrived at Marrickville where Ahmed collected a Glock pistol, which was placed in the door compartment of the Suburu. The applicant and Roberts travelled to Belmore and left the Glock pistol in a garage there. The applicant and Roberts then continued to try to find a radio in a police vehicle that was unattended. 12At about 10 pm on 4 August 2011, the applicant drove the Suburu from the garage in Penshurst and collected Roberts, the co-offender. They drove to the Arncliffe Scots Sports and Social Club car park where there was an unattended Audi station wagon. The applicant instructed Roberts how to drive the Audi to avoid detection. He advised him not to "drive like a spastic" because he did not want him to be "seen and chased" after they had stolen it. The applicant instructed Roberts to "take their bags, everything. Fuck 'em, so they can't go back in and call the cops. Phones, everything". He also said to Roberts: "Even if it's a big cunt just whack him. Don't hesitate man. Say 'brother give me the keys. I'm asking you once, next time I crack you in the head,', do you know what I mean?" 13They planned to use a red and blue strobe light as if it were a police light to apprehend the driver of the Audi. Such a light was found plugged into the cigarette lighter of the Suburu (Counts 4 and 5). 14Police, who were monitoring the conversations via the listening device, were concerned for the safety of the owner of the Audi. When the applicant saw a fully marked police car which had been sent to the area, he drove to the M5 motorway and was recorded as travelling some 3.3 km in about one minute, which amounted to a speed in excess of 180 kph (s 166 certificate, charge 1). 15The applicant dropped Roberts off and proceeded to a driveway at Penshurst where he was arrested. At the time of his arrest he was wearing a black balaclava and black gloves (Count 6). A crowbar was found on the front sear and a number of housebreaking implements were in a bag on the rear seat (Count 7). 16On 5 August 2011 police executed a search warrant on an address at Belmore and found a .22 model Glock pistol (Count 8), further housebreaking implements (Form 1, charge 5), and fifty shotgun rounds (s 166 certificate, charge 2).

Findings of objective seriousness of the offence 17His Honour described the applicant's conduct as amounting, in various respects, to "serious criminal activity" (Count 1), "serious organised criminal activity" (Count 2 and Form 1, charge 3) and, in respect of the attempts to find a police radio in an unattended car, "brazen organised criminal activity". His Honour considered, in relation to Counts 2 and 3, that the offender played the "lead role" in the criminal conduct and, in respect of counts 4 and 5, found that the applicant was "the major organiser of this extremely serious conduct". 18His Honour assessed the seriousness of the applicant's offending conduct and said: "One can observe that the offender in a very short period of time, namely from 20 July until 5 August 2011, was involved in very serious criminal conduct. The conduct was not impetuous- it involved a good deal of planning in the main ... "In my view this was very serious criminal conduct indeed. All of it was calculated criminal behaviour for financial benefit. The serious matter of the planned carjacking was very much an example of extremely serious criminal conduct." 19His Honour addressed the effect of taking the Form 1 matters into account in the indicative sentence for Count 4 in the following terms: "I will take into account the maximum penalties when I come to consider how much the Form 1 will aggravate the penalty that I must impose in respect of the conspiracy to commit robbery whilst armed with an offensive weapon."

Aggravating factors 20The sentencing judge took into account the fact that the applicant was on parole for the offence of possessing a precursor with intent to use in manufacture or production at the time of the offending.

The applicant's criminal history 21The sentencing judge noted that the applicant's criminal history does not entitle him to leniency "to say the least". His Honour noted that the applicant had been before the Children's Court for serious offences with respect to motor vehicles and had a finding of guilt for using a weapon to prevent lawful detection. In 2001 a sentence imposed on him for driving a motor vehicle without the consent of the owner and breaking and entering a building and stealing was suspended. In 2005 he was sentenced for stealing and attempting to steal motor vehicles, larceny, receiving and goods in custody as well as doing an act with intent to pervert the course of justice. He served sentences for these offences from 6 November 2005 until 5 November 2007, although he was on parole from 6 May 2007. While still on parole he committed further offences for which he was sentenced on 29 November 2007, which included the offence of possess precursor for which he was on parole when he committed the subject offending.

Subjective circumstances 22The sentencing judge took into account the report of Dr Nielssen who did not regard the applicant as meeting an accepted criteria for a diagnosis of psychiatric disorder. His Honour also referred to the evidence of the applicant's wife, whom he married in March 2011, who operated a hairdressing salon in Carlingford. His Honour noted his wife's high opinion of the applicant and her preparedness to wait for him until he is at liberty. She gave birth to a daughter in early 2012.

Prospects of rehabilitation 23His Honour found that the applicant had the capacity to rehabilitate himself but could not conclude that he had good prospects of so doing, having regard to his substantial criminal history. In the remarks on sentence his Honour said: "I cannot conclude that the offender has good prospects of rehabilitation. He has the capacity to rehabilitate himself but his conduct over the last ten years or so does not instil one with confidence that he will turn his life around. Having seen him in the witness box I conclude it is a tragedy that he has decided to involve himself in considerable unlawful activity over a long period of time. He is a person with potential. If he chooses not to engage in criminal activity in the future I consider he has the capacity to become a worthwhile member of our community. He certainly has in my view the capacity to be engaged in useful employment."

The applicant's evidence before the Sentencing Judge 24The sentencing judge found the applicant to be an honest witness in that he admitted that if the marked police car had not arrived at the club at Arncliffe the robbery would have taken place. His Honour found: "I thought Mr Stoeski gave his evidence in a straightforward fashion. He did not seem to me to be seeking to avoid the consequences of his serious criminal conduct. From within the witness box, as best as I could detect, he expressed his wish to rehabilitate himself and turn his life around. He is very conscious of the fact that he engaged in serious criminal behaviour following the rekindling of relationships with peers who likely also, I think, have significant criminal records."

The plea of guilty 25The sentencing judge allowed a discount of 25% for the utilitarian value of the plea of guilty.

Commencement date of the sentence 26The sentencing judge noted that the applicant had been in custody since his parole was revoked on 19 August 2011 and that his sentence for the earlier offences expired on 6 June 2012. His Honour fixed the commencement date of the sentence at 1 January 2012.

Special circumstances 27Before the sentencing judge, the applicant accepted that there was no basis for a finding of special circumstances. However, the sentencing judge noted that as the sentence will be accumulated on an earlier sentence there could be some allowance for the ratio between the minimum term and the parole period to take account of time already spent in custody.

Co-offenders 28The sentencing judge, when addressing considerations of parity, said: "Certainly for the major offence of 4 and 5 August 2011 I conclude he very much was the organiser of that activity. He may well have been engaged by others to procure the police radio and other equipment but it is evident from the transcripts that it was the offender who was giving the directions to Mr Andrews and Mr Ahmed."

The grounds of appeal 29The grounds of appeal that appear in the notice of appeal as filed are: (1)His Honour erred in imposing a sentence of three years and nine months for "Count 1" and some lesser sentence is warranted, in that: (a)His Honour gave greater weight to the objective criminality of the offence of accessory after the fact offence than was warranted; (b)His Honour selected a starting point when settling on a sentence that was too high in all the circumstances. (2)His Honour erred in imposing a sentence of seven and a half years for "Count 4" and some lesser sentence is warranted, in that: (a)His Honour gave greater weight to the objective criminality of the offence of conspiracy to rob whilst armed with an offence weapon than was warranted; (b)His Honour gave greater weight to the five matters on the Form 1 than was warranted. (3)His Honour failed to apply properly the doctrine of totality when determining individual sentences and the aggregate sentence - in that his Honour failed to have regard to the fact that the sentences being imposed upon the appellant was 95% cumulative to earlier cumulative sentences of nearly ten years imprisonment. (4) (i) His Honour erred when determining the aggregate sentence in that he failed to apply to it the 25% utilitarian discount he had earlier given when setting individual sentences. (ii) Alternatively, when determining the aggregate sentence a starting point of 13 years and 4 months with a 9 year 4 month non-parole period was excessive and a lesser sentence was required. (5) His Honour erred when making his finding that he "could not conclude that the offender has good prospects of rehabilitation" [Sent. T. 25/06/13 p. 18.9] in that: (a)His Honour erred in rejecting the uncontested evidence of Dr Nielssen, psychiatrist, without giving reasons why it was not to be accepted on the balance of probabilities. (b)His Honour erred in failing to give any basis for preferring to rely upon the offender's conduct of the past ten or so years in circumstances where the defence had tendered evidence relevant to and contrary to the finding. 30Mr Nicholson SC, who appeared on behalf of the applicant, conceded that grounds 1 and 2 were inapposite since there is no appeal from "indicative sentences" that are indicated in the course of imposing an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). The application for leave to appeal must be in respect of a "sentence", which is a sentence actually imposed, being the aggregate sentence, not an indicative sentence which, by definition, has not been imposed. 31Accordingly, the applicant sought leave to amend his notice of appeal to add the following further ground: "His Honour erred in imposing an aggregate sentence which is manifestly excessive." 32The applicant accepted that grounds 1 and 2 ought be treated as particulars of the new ground and that the submissions made in respect of them ought be regarded as being made in respect of it. I propose to address the indicative sentences for counts 1 and 4 in the context of the allegation of manifest excess in respect of the aggregate sentence. Ground 3, which concerns totality, is also relevant to the new ground of manifest excess. I will address the remainder of the grounds before turning to the new ground and ground 3, which will be dealt with together.

Ground 4: alleged failure to apply 25% discount when setting the aggregate sentence and manifest excess of aggregate sentence 33The applicant submitted that, if the sentencing judge applied the 25% discount, the starting point for the aggregate sentence must have been 13 years and 4 months with a 9 year and 4 month non-parole period. He submitted that this sentence would have been excessive. Accordingly, he contended that either the sentencing judge failed to apply the discount (in which case the sentence of 10 years with a 7 year non-parole period would need to be discounted by 25%) or the sentencing judge must have started at a point that was excessive (13 years and 4 months with a 9 year and 4 month non-parole period). 34I do not discern in the sentencing remarks any indication that the sentencing judge failed to apply the discount of 25% to the aggregate sentence. Indeed, I am satisfied by the remarks that his Honour applied the discount in accordance with his stated intention to do so. The starting point for the aggregate sentence was, accordingly, 13 years and 4 months with a 9 year and 4 month non-parole period. Whether this was manifestly excessive will be considered when the new ground is addressed below.

Ground 5: alleged error in sentencing judge's finding on prospects of rehabilitation 35The applicant submitted that the sentencing judge "rejected the uncontested evidence of Dr Nielssen". Dr Nielssen's opinion as to the applicant's prospects of rehabilitation was as follows: "Notwithstanding the apparent return to criminal activity so soon after release, Mr Stoeski was thought to have reasonably good prospects for longer term rehabilitation, on the basis of his capacity for work, the strength of his relationship and the absence of a current substance use disorder or an unremitting pattern of antisocial conduct." 36The applicant also contended (in ground 5(b)) that the sentencing judge did not give reasons for relying on the applicant's conduct for the previous decade although the defence had tendered evidence "relevant to and contrary to that finding". 37As referred to earlier the applicant gave evidence at the sentence hearing about which his Honour made findings which are set out above. 38The assessment of an offender's prospects of rehabilitation is a question of fact that is to be determined by the sentencing judge. As with the prediction of any further course of events or conduct, it is necessarily uncertain. Although judges may be assisted by reports of psychiatrists or psychologists, the assessment is to be made having regard to all the evidence of which the reports form a part. Those reports may be based on a particular history which may not correspond exactly with the facts as found by the sentencing judge. The sentencing judge was not bound to accept Dr Nielssen's opinion in terms since it was a piece of evidence to be weighed with all the other evidence admitted at the sentence hearing, including the applicant's own evidence and his criminal history. His Honour was obliged to come to an independent assessment of whether the offender had good prospects of rehabilitation and, if so, take it into account as a mitigating circumstance under s 21A(3)(h) of the Act. 39Although the future is not determined by the past, the past is a relevant circumstance when ascertaining future prospects. On the one hand, the applicant has a substantial criminal history; on the other he is not afflicted by mental illness or drug addiction. On the one hand, he is married to a woman who is devoted to him and who has had a child with him; on the other, he has several criminal associates who may tempt him, or be led by him, into recidivism. On the one hand he is motivated by financial gain; on the other, the financial rewards of criminal conduct are frequently greater in the short term than lawful means, although the risks of the former are greater. These are the matters which the sentencing judge had to balance and assess in forming a judgment as to whether the applicant had good prospects of rehabilitation. I consider his Honour's reasons to be ample to explain the conclusion, which was open to his Honour on the evidence. 40Ground 5 has not been made out.

New ground: manifest excess- indicative sentences for Counts 1 and 4 too high and too great a weight given to objective seriousness and Form 1 matters (formerly grounds 1 and 2) and totality (ground 3) 41Before addressing the substance of this ground, I propose to address the significance of indicative sentences in the context of an aggregate sentence imposed under s 53A of the Act. The Act requires a sentencing judge to set out the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence: s 53A(2)(b) of the Act. However, the specification of indicative sentences is not necessary for the aggregate sentence to be valid, since a failure to comply with s 53A does not invalidate an aggregate sentence: s 53A(5) of the Act. 42Nonetheless although the consequence of invalidity does not follow non-compliance, this is not to disparage their worth. The specification of indicative sentences serves a number of purposes, which were identified by R A Hulme J (Hall J agreeing) in R v Nykolyn [2012] NSWCCA 219 at [58] as follows: (1)to assist the sentencing judge in the application of the totality principle; (2)to expose for appellate review how the aggregate sentence was arrived at; (3)to allow victims of crime and the public at large to appreciate the seriousness with which the court regards particular offences; and (4)to allow this Court to assess an appropriate aggregate sentence if one or some of the convictions are quashed on appeal. 43The only purpose in examining the individual indicative sentences for counts 1 and 4 in the present application is that, if one or more of the individual indicative sentences is excessive, it may support the contention that the aggregate sentence was manifestly so. However, it must be borne in mind that the relationship between the indicative sentences for individual counts and the aggregate sentence depends at least as much on the degree of internal accumulation or concurrence implicit within the aggregate sentence as in the individual indicative integers. Furthermore, since manifest excess, like manifest inadequacy, is a conclusion, it is not necessary for the applicant to identify a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].

The indicative sentence for count 1 44The starting point for the indicative sentence for count 1 was 5 years (before the application of the 25% discount for the plea of guilty). As the narrative of facts set out above indicates, the applicant was trusted by the two offenders who handed over the Subaru vehicle to him soon after the robbery. He concealed it in a garage and used WD-40 to reduce the risk of detection. When he took it out of the garage on the night of 1 August 2011, he stole number plates from another Subaru and dumped the original number plates in the drain. 45In my view it was well open to the sentencing judge to regard the offence in count 1 as amounting to "serious criminal activity". The course of conduct was planned and carried out with a view to avoiding detection and identification. The objective seriousness of the offence is not reduced by the fact that, as the applicant submitted, it was "spectacularly futile" since "police were already aware of the vehicle and its location". Diligent police investigation and the use of surveillance devices do not operate in an offender's favour on sentencing. 46The assessment of objective seriousness of an offence and the weight to be given to such an assessment are pre-eminently within the discretion of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] per Spigelman CJ and at [46] per Simpson J (referred to with approval in R v KB; R v RJB [2011] NSWCCA 190 at [51]-[52]; see also Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [24]). Such assessment is an important factor to be taken into account in what has been described as the "instinctive synthesis" involved in sentencing: see, for example, Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75] per Gaudron, Gummow and Hayne JJ and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37]-[39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. 47An appellate court ought adopt a cautious approach before coming to the conclusion that the primary judge gave too much weight to one factor over another when no error in the sense addressed in House v The King [1936] HCA 40; 55 CLR 499 has been identified, much less demonstrated. 48There is, in my view, no basis for concluding that the indicative sentence for count 1 would, if imposed, have been unreasonable or plainly unjust: Dinsdale v The Queen. The seriousness of the offending, the circumstance that the offence was committed while the applicant was on parole, his criminal history of similar theft and the absence of mitigating circumstances are all relevant factors. I am not persuaded either that the starting point of five years for the indicative sentence for count 1 was too high or that any error in the sentencing judge's assessment of the objective seriousness of the offence has been shown.

The indicative sentence for Count 4 49For similar reasons as are set out in respect of count 1, I am not satisfied that any error has been shown in the sentencing judge's assessment of the objective seriousness of count 4 or the weight attributed to this factor in either the indicative sentence or the overall sentence. 50For the reasons given by the sentencing judge, the applicant was the dominant actor in the commission of this offence which he was bent on committing. The Form 1 offences are themselves very serious and are to be taken into account with a view to increasing the sentence for the principal offence due to the greater weight to be given to personal deterrence and retribution: Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] per Spigelman CJ. As Spigelman CJ said at [18]: "A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See eg R v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)"

Ground 3: alleged failure to apply totality having regard to earlier periods in custody 51The remarks on sentence disclose that his Honour was aware of the periods spent in custody for past offences and also the revocation of parole as a result of the offending conduct. Indeed, the sentence hearing was adjourned for the material relevant to the time in custody and the question of special circumstances to be obtained and considered. 52His Honour determined that the sentence for the index offences ought commence from 1 January 2012, which was some months before the expiry of the earlier sentence (which was unsuccessfully challenged in the Court: Stoeski v R [2008] NSWCCA 230). No criticism could, in my view, reasonably be made of the sentencing judge's exercise of discretion. The remarks on sentence reveal that the sentencing judge considered that there ought be a degree of concurrence between the aggregate sentence his Honour was imposing and the sentence for the previous offences. In these circumstances it must be concluded that his Honour took into account the previous offending in assessing the date from which the aggregate sentence ought commence and, accordingly, the totality of the criminal conduct. 53Furthermore no inference can be drawn from the fact that the sentencing judge did not perform a calculation to ascertain what proportion the sum of the non-parole period and the period already spent in custody bore to the total term of the sentence. Such a calculation would be irrelevant. Nor is such a calculation required by s 44(2) of the Act. His Honour, having found special circumstances and stipulated the ratio between the non-parole period to the total term to be 70%, applied the ratio to the aggregate sentence his Honour imposed which was backdated to take account of some time spent in custody for previous offences as a result of revocation of parole. His Honour's approach was entirely orthodox and consistent with principle. 54The applicant's submission that the aggregate sentence was "crushing" does not assist in the analysis of whether it was open to the sentencing judge to impose such a sentence. The adjective "crushing" in this context is apt to refer to the type of sentence that is of such a length that it tends to deprive the offender of the hope and expectation of a useful life after release: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17]. I do not regard the word as apposite to describe the sentence in the instant case. The applicant will be eligible for parole on 31 December 2018, at which time he will be 37 years old. 55The applicant took exception to the sentencing judge describing the offending as "extremely serious criminal conduct" and submitted that the words disclosed error since they implied that the offending was in the worst case, when this could not reasonably be concluded. I do not consider this to be a fair construction of the phrase. I read it as saying no more than "very, very serious" criminal conduct. I regard the description as apt. Such semantic pedantry has no place in an analysis of remarks on sentence.

Whether the aggregate sentence is manifestly excessive 56The starting point for the aggregate sentence, before the discount for the plea of guilty was applied, was 13 years and 4 months with a 9 year 4 month non-parole period. The sentence was imposed in respect of significant offending conduct that occurred in the period between 20 July 2011 and 5 August 2011. The most serious offence, as was reflected in the indicative sentence, was count 4, which incorporated five Form 1 charges. For the reasons given above I discern no error in the indicative sentences for either counts 1 or 4, which are the most substantial indicative sentences. 57The sentence must take into account all relevant factors including the seriousness of the offending and the characteristics of the offender. The length of the sentence is a product of these matters. The seriousness of the offending conduct and the applicant's substantial criminal history do not suggest that the sentence was other than appropriate. The offences which involved a conspiracy to steal a police radio or acts that were designed to make the public believe that a private car was a police car are particularly heinous. Such offences have a tendency to undermine law enforcement by the police and interfere with police investigation and detection. The offences were committed deliberately and with considerable foresight, planning and cunning. I am not persuaded that the aggregate sentence imposed was manifestly excessive. 58Accordingly, the new ground, which incorporates grounds 1, 2 and 3, has not been made out.

Proposed orders 59The orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed. 60BELLEW J: I agree with Adamson J.

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: 15 August 2014