(2007) 168 A Crim R 41
Geagea v R [2020] NSWCCA 350
GG v R [2023] NSWCCA 102
He v Sun (2021) 104 NSWLR 518
[2021] NSWCA 95
HT v The Queen (2019) 269 CLR 403
Source
Original judgment source is linked above.
Catchwords
[2002] NSWCCA 518
Cahyadi v R [2007] NSWCCA 1(2007) 168 A Crim R 41
Geagea v R [2020] NSWCCA 350
GG v R [2023] NSWCCA 102
He v Sun (2021) 104 NSWLR 518[2021] NSWCA 95
HT v The Queen (2019) 269 CLR 403
Judgment (19 paragraphs)
[1]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant was sentenced in the District Court for two counts of break, enter and steal, contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). A further offence of break, enter and steal was considered on a Form 1 attaching to the first count and three further offences were considered on a Form 1 in relation to the second count.
In the course of the sentencing remarks, the sentencing judge stated that the Form 1 offence in relation to the first count involved a re-entry to the same premises, and such re-entry was an aggravating factor for this type of offence. The sentencing judge also referred to sentencing remarks he had given when he had sentenced the applicant previously in 2018.
The applicant was sentenced to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 5 years and 6 months. This figure represented a large portion of the total indicative sentences.
The applicant sought leave to appeal against his sentence on three grounds:
Ground 1: The sentencing judge erred in denying the applicant procedural fairness in taking into account material that was not properly before the Court.
Ground 2: In sentencing for the first charge, the sentencing judge erred in taking the attached Form 1 offence into account as an aggravating factor.
Ground 3: The aggregate sentence imposed was manifestly excessive.
The Court (McNaughton J, Bell CJ and Button J agreeing) held, granting leave to appeal but dismissing the appeal:
As to ground one of the appeal:
Section 4 of the Evidence Act 1995 (NSW) recognises that there is less formality and less evidentiary precision in sentence proceedings than in other proceedings, but these features do not impinge upon the fundamental requirement that such proceedings must be fair: per McNaughton J at [74]-[77] (Bell CJ agreeing at [1]; Button J agreeing at [2]).
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17]-[18]; Munday v R [2017] NSWCCA 95 at [24]-[25], referred to.
While it would have been preferable for the sentencing judge to make available the prior sentencing remarks to the parties, given that the relevant material was read out, and that there was a sufficient opportunity for the parties to deal with the matters raised by that material, no practical injustice occurred: per McNaughton J at [80]-[87] (Bell CJ agreeing at [1]; Button J agreeing at [2]-[3]).
The procedure adopted by the sentencing judge was unorthodox and should be avoided: per Button J at [3].
As to ground two of the appeal:
When read fairly and in context, the sentencing judge's reference to aggravation concerned his assessment of the seriousness of the Form 1 offence itself, requiring a significant increase to the indicative sentence: per McNaughton J at [91]-[93] (Bell CJ agreeing at [1]; Button J agreeing at [2], [4]).
As to ground three of the appeal:
In the circumstances, considering the sophistication and seriousness of the offences, the applicant's criminal history, his limited prospects of rehabilitation and the absence of significant mitigating factors, the notional accumulation was open to the sentencing judge and the aggregate sentence was not unreasonable or plainly unjust: per McNaughton J at [99]-[103] (Bell CJ agreeing at [1]; Button J agreeing at [2], [5]).
Obeid v R (2017) 96 NSWLR 155 at [443]; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42]; Cahyadi v R (2007) 168 A Crim R 41 at [27]; XY (A Pseudonym) v R [2023] NSWCCA 50 at [66]-[67], referred to.
[2]
JUDGMENT
BELL CJ: I agree with the reasons of McNaughton J and the orders her Honour proposes.
BUTTON J: I agree with McNaughton J.
As for ground one, in my respectful opinion the procedure adopted by the learned sentencing judge was unorthodox and should be avoided. However, to be added to the reasons why it did not deny the applicant procedural fairness explained by her Honour is the fact that his counsel was clearly content with that procedure.
As for ground two, I agree that, on close analysis, the better reading of the remarks on sentence is that the sentencing judge was saying that the re-entry aggravated the offence at Torrens University on the Form 1, not the substantive offence at the same institution.
As for ground three, in light of the gravity of the offending and the adverse subjective matters, in my opinion this substantial sentence was open to the discretion of the sentencing judge.
MCNAUGHTON J:
[3]
Introduction
The applicant, Michael Tasker, has sought leave to appeal against the sentence imposed upon him on 15 June 2023, by Blackmore SC ADCJ ("the sentencing judge") in the District Court at Sydney for two offences of break, enter and steal. Additional matters were taken into account on a Form 1 in relation to both offences. The applicant received an aggregate sentence of 7 years and 6 months' imprisonment, with a non-parole period of 5 years and 6 months, commencing on 13 January 2022. The applicant will be eligible for parole on 12 July 2027.
The applicant relies upon three grounds of appeal:
Ground 1: The sentencing judge erred in denying the applicant procedural fairness in taking into account material that was not properly before the Court.
Ground 2: In sentencing for the first charge, the sentencing judge erred in taking the attached Form 1 offence into account as an aggravating factor.
Ground 3: The aggregate sentence imposed was manifestly excessive.
The applicant had pleaded guilty to the two offences in the Downing Centre Local Court on 15 December 2022. The offences were committed about four weeks apart in December 2021 and involved commercial premises.
In relation to the first offence, an additional break, enter and steal offence was taken into account on a Form 1 schedule pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the second offence, a further three matters were also taken into account on a Form 1, namely: enter with intent to commit a serious indictable offence, larceny, and dishonestly obtain a benefit by deception.
The following table shows the offences, the Form 1 matters, relevant maximum penalties, and the indicative sentences. No standard non-parole periods applied.
Sequence Offence Maximum Penalty Indicative Sentence
H87892652 Break, enter and steal from Torrens University - 78 Lenovo ThinkPad Laptops (s 112(1)(a) Crimes Act > $60,000) 14 years 3 years' and 9 months' imprisonment
Sequence 1
H8792652 Break, enter and steal from Torrens University -ThinkPad laptops and Apple computers (s 112(1)(a) Crimes Act) 14 years Form 1 for H87892652/1
Sequence 2
H87903716 Break, enter and steal from Louis Vuitton - 98 luxury goods valued at $464,935 (s 112(1)(a) Crimes Act < $60,000) 14 years 4 years' and 6 months' imprisonment
Sequence 1
H15867601 Enter with intent to commit a serious indictable offence, namely larceny - Cornwall's Lawyers (s 111(1) Crimes Act) 10 years Form 1 for H87903716/1
Sequence 5
H15867601 Larceny - three laptops, one phone and credit cards of Glenn Hughes (s 117 Crimes Act) 5 years Form 1 for H87903716/1
Sequence 6
H15867601 Dishonestly obtain a financial advantage of $292.53 by using stolen credit cards of Glenn Hughes (s 192E(1)(b) Crimes Act) 10 years Form 1 for H87903716/1
Sequence 2
[4]
The applicant had an extensive record for similar offending and had previously been sentenced by the sentencing judge in 2018 for break and enter offences.
[5]
Brief facts of offending
A Statement of Agreed Facts was tendered in the sentencing proceedings. The factual background set out below is based on that document.
[6]
Count 1 - Break, enter and steal from Torrens University on 4 December 2021
On Friday 3 December 2021, Torrens University, a multi-storey building located in the inner-city suburb of Ultimo, received a delivery of 100 new Lenovo ThinkPad laptop computers. In the early afternoon of Saturday 4 December 2021, the applicant entered Torrens University, reached over the reception desk and took a swipe card belonging to an employee. He then left the building.
Later that afternoon at around 5:48pm, the applicant re-entered the building and at 6:12pm he accessed the IT storeroom using the stolen swipe card. Over the next two and a half hours, the applicant, using a trolley, made three trips to the IT room and the lift and stole 78 laptops, worth more than $60,000.00.
[7]
Form 1 offence - Break, enter and steal from Torrens University on 5 December 2021 - sequence 2
On the evening of Sunday 5 December 2021, the applicant returned to Torrens University and the IT storeroom within. Using the same swipe card and an empty trolley, the applicant stole approximately 21 boxes of laptops and 20 Apple products.
[8]
Count 2 - Break, enter and steal from Louis Vuitton on 1 January 2022, goods valued at $464,935.00
The Louis Vuitton store on George Street, Sydney was locked and alarmed at 6:00pm on 31 December 2021. Closed circuit television cameras were used for security. In the early hours of 1 January 2022, the applicant gained access to the building via the staff access door and used a swipe card to gain access to the lift. He used a second swipe card to open another door. The applicant then used two screwdrivers to force open a middle door secured by a pin code, and then gained access to the storeroom. He put on gloves and went through some of the merchandise before leaving the store. Around 50 minutes later, the applicant returned to the store with bins and went to the shop floor - stealing 98 items, equivalent to a monetary value of $464,935.00, including sunglasses, clothing and handbags. He was seen walking along the street wheeling two red bins.
[9]
Form 1 offences - enter with intent to commit serious indictable offence - sequence 5; larceny - sequence 6; dishonestly obtain benefit by deception - sequence 1
On 5 December 2021, the applicant entered a law firm on level 3 of a building in Martin Place. At 1:10pm, the two people working there left for lunch. At 1:52pm, the applicant entered the premises, went to level 3, and took three Microsoft Surface pro computers and an Apple iPhone (sequence 5). He also took three credit cards belonging to one of the two employees (sequence 6). On 24 December 2021, the applicant used the stolen credit cards to purchase items including cigarettes, totalling $292.53 (sequence 1).
The applicant was arrested on 13 January 2022 in Burwood. In his possession were two Louis Vuitton bags stolen on 1 January 2022.
[10]
Relevant aspects of the sentencing hearing
Given the nature of the first ground of appeal, it is necessary to set out a number of aspects of the sentencing hearing in some detail.
The sentencing proceedings were heard before the sentencing judge on 15 June 2023, and his Honour delivered an ex tempore judgment that day.
When the matter was mentioned prior to the hearing proper commencing, the sentencing judge stated:
"You might know or you might not know that [the applicant] was sentenced by me back in - the last time he did a significant period of custody".
The applicant's counsel stated:
"I didn't know that. There can be no argument about apprehended bias. There's no issue about that if that's why your Honour's raising it."
When the matter was called for hearing, while the applicant was being brought up from the cells, the sentencing judge asked the applicant's counsel if there was any objection to the Crown material or to him reviewing that material. The applicant's counsel confirmed there was no objection to the material nor to the sentencing judge reviewing the material. Shortly after, the Crown bundle on sentence was tendered and marked Exhibit A.
Exhibit A consisted of the various charge certificates, court attendance notices, and s 166 certificate underpinning the two charges and Form 1 matters, the signed Statement of Agreed Facts on sentence, the criminal history, custodial record and the two signed Form 1 documents.
The applicant had an extensive criminal record for property crime, including being dealt with for many offences of larceny, enter dwelling/break and enter and dishonestly obtain benefit by deception. Included in the applicant's extensive criminal history was:
3 years' imprisonment with a non-parole period of 18 months for aggravated break, enter and steal committed in 2010, commencing in June 2011 and concluding in June 2014.
1 year and 5 months' imprisonment with a non-parole period of 12 months for break, enter and steal (value less than $60,000) committed in 2015, commencing in July 2015 and expiring in December 2016.
3 years and 6 months' imprisonment with a non-parole period of 2 years and 3 months, for 4 counts of break, enter and steal (value less than $60,000) committed in 2016. This sentence commenced on 8 November 2016 and expired on 7 May 2020. This is the previous sentence imposed by the sentencing judge on 29 June 2018 ("the 2018 sentence").
2 years' imprisonment with a non-parole period of 18 months for enter dwelling with intent to steal and larceny committed in 2019. This sentence commenced in September 2019 and expired in September 2021.
The applicant's counsel tendered, without objection, a psychological report prepared by Forensic Psychology Registrar, Bonnie Harris of 5 May 2023, marked Exhibit 1, and Corrective Services Case Notes, marked Exhibit 2.
Both counsel provided written submissions.
The report prepared by Ms Harris was based, in part, on an interview with the applicant on 7 March 2023, via audio visual link, as well as on other sources of information including previous psychological reports prepared by Dr Robyn Goodwin dated 20 December 2017, and Debbie Case dated 2 December 2011.
Ms Harris outlined that the applicant had been raised by his parents who had always been supportive towards him. He described his upbringing as positive, but that at a young age he began absconding and engaged in substance abuse. He said that since childhood he was the "black sheep" and was considered a "lost cause". Ms Harris noted that the applicant felt he was intelligent and had done well academically at school, including being accelerated due to high performance but had difficulty paying attention, listening to others and concentrating. He told Ms Harris he was sexually abused at primary school when he was seven or eight years old and after this began spending time with an older group of people. He started using cannabis from the age of 10 and heroin from the age of 14. He completed Year 10 of high school but was expelled due to truancy.
Ms Harris noted that the self-reported information provided to her by the applicant was generally consistent with the 2017 report of Dr Goodwin, with the difference being that the applicant did not report childhood sexual abuse at the time of the 2017 assessment.
Ms Harris' report referred to the applicant's use of drugs, his addiction and its relationship to his criminal activity. The applicant had attempted a diversion program through the Drug Court in 2014 but was unsuccessful in completing the program due to substance use. The applicant reported that he had effectively participated in programs when under supervision but would relapse when no longer supervised and had difficulty in maintaining motivation to abstain from drugs.
The applicant told Ms Harris of his desire to remain abstinent in the future. He had completed therapeutic programs in custody on multiple occasions. The applicant identified his mother and sister as positive supports. Ms Harris opined that he had developed insight into his offending and was able to identify that he needed more intensive drug treatment.
After the material had been tendered, the following exchange occurred:
Sentencing judge: "As I say, I sentenced him before for a similar offence. The distinguishing factors between this and then are: that he's older; he hasn't rehabilitated; he refers to his assault as a child which he is apparently taking some proceedings about; and the extreme value of the property involved in this occasion."
Applicant's counsel: "There's another difference if your Honour would hear me on that."
Sentencing judge: "Of course."
[11]
Summary of the 2023 Remarks on Sentence
The sentencing judge delivered short ex tempore Remarks on Sentence.
First, the sentencing judge set out the two substantive offences, together with their maximum penalties. His Honour referred to the facts of the offences, Form 1 matters and maximum penalties. He correctly referred to the way in which he should deal with the Form 1 offences, stating:
"The manner in which a court takes such matters into account is by increasing the sentence for the offence to which the Form 1 attaches. That is how I will deal I will deal with the Form 1 here."
As explained further at [55] below, the sentencing judge found the two break and enter offences to be "no more than around the middle of the range of seriousness".
The sentencing judge noted the seriousness of the offending was demonstrated by the maximum penalty attaching to each offence. His Honour noted that the Torrens University offence was a very serious example of this type of offending. This was said to highlight a degree of sophistication in the planning of the offence; noting that a security swipe card had been taken from an unsuspecting employee to gain entry at night. Further, the offence involved the removal of a very large quantity of, apparently, new laptops still in their original packaging worth more than $60,000.00.
The sentencing judge then stated:
"The Form 1 offence involves a re-entry to the same premises to remove further items. The re-entry to the premises is an aggravating factor of this type of offence. It requires the Court to treat the Form 1 offence to increase the sentence for the principal offence by some significant degree."
In relation to the Louis Vuitton charge, the sentencing judge also found that it was a very serious example of this type of offending, involving some "considerable sophistication" beyond merely breaking a door to gain entrance. The combined value of the property stolen in the two offences was more than half a million dollars and virtually none of the property was recovered. The sentencing judge stated that the combination of the two offences demonstrates an offender who is capable of planning and executing sophisticated large scale stealing offences, and the seriousness of the offences was well above the range of offences normally found in the District Court.
The sentencing judge found that the applicant was motivated principally by financial gain, rather than a need to feed a drug habit.
The sentencing judge also noted that the "indictable offence" in question in the offences was stealing. As an indictable offence, stealing falls towards the lowest end of seriousness for such offences as it carries a 5 years' maximum penalty, as opposed to others which can carry up to 25 years' maximum. As such, the sentencing judge noted that, even though the offences might be near the most serious of their type, they were still no more than around the middle of the range of seriousness for the general offence of break, enter and commit a serious indictable offence.
His Honour found the Form 1 offences to have "significantly enhanced" the Louis Vuitton charge, for the reasons outlined in the well-known authority Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
As to the applicant's criminal history, it was noted that he had a very extensive criminal history for committing similar offences and was not entitled to any leniency on account of that record. The sentencing judge stated both general deterrence and specific deterrence needed to be reflected in the sentence. His Honour then stated:
"I have previously dealt with this [applicant] - that was in 2018, when I sentenced the [applicant] to a period of imprisonment for three and a half years. That sentence expired on 7 May 2020. On 8 May 2020 he was dealt with [in relation to] two further offences which appear to have been committed whilst he was on parole. Namely the offence of enter dwelling and stealing, which were committed on 24 August 2019, and two other offences for which he was sentenced to two years imprisonment with a non-parole period of 18 months. He was released from that sentence to parole on 23 March 2021. These offences were committed in December 2021. The [applicant] has been in custody since 13 December 2021."1
The sentencing judge then noted the submission made on behalf of the applicant that a sentence of six years, or less, in total would allow for the applicant to attend the compulsory drug court course whilst in custody (should he be admitted). His Honour concluded, however, that such a sentence would be unduly lenient given the need for the sentence to reflect general and specific deterrence.
The sentencing judge then recorded the following:
"When I sentenced the [applicant] in 2018 I outlined in a summary the history of his background taken from his then psychologist. I quoted these notes to the [applicant's] counsel during the hearing. In my view, the notes still represent the situation that pertains [to] the [applicant]."
The sentencing judge then set out in full the passage he had read out, which is set out above at [42], only noting, in addition, that the applicant was now 39.
The sentencing judge stated:
"Having quoted the above notes, I asked counsel what had changed. I note that I have also read a psychologist's report prepared by Ms Bonnie Harris for the [applicant] for these proceedings. The [applicant's] counsel acknowledged that in fact little has changed. It was submitted that during the period of his parole, he had not apparently taken drugs. Whilst that might be true, it did not stop him offending as quoted above. There was one matter of which I was not aware in 2018, and that was the allegation that the [applicant] had been subject to a sexual assault when he was a child. His present psychologist opined that the [applicant's] drug use was not a direct result of this assault. It could be seen to be indirectly causative when combined with other factors, such as a reported difficult relationship with his father."
The sentencing judge then recorded other factors he would take into account on sentence, namely:
1. Some of the current sentence had been served during a period of COVID-19 restrictions with the attendant additional difficulties for prisoners.
2. The applicant had expressed an understanding in relation to the present impact of his offending to his current psychologist and, thus, had shown some remorse.
3. The applicant had some positive support in the community and planned to live with his mother on release.
4. Rehabilitation was in the hands of the applicant, and it involved not only ceasing using illicit drugs but ceasing offending.
5. The offending on this occasion appeared to be a significant increase in the seriousness over previous occasions.
6. The applicant pleaded guilty at the first opportunity and was entitled to a 25% discount.
7. There was no need to extend the period on parole for rehabilitation due to the time the applicant would be on parole.
8. The factors set out in s 21A of the Crimes (Sentencing Procedure) Act had been taken into account.
[12]
Ground 1: The sentencing judge erred in denying the applicant procedural fairness in taking into account material that was not properly before the Court
The applicant contends that the sentencing judge denied the applicant procedural fairness because the evidence tendered before the Court,
"did not include any material the subject of the 2018 sentence proceedings beyond a bare statement of the outcome of those proceedings as contained in the applicant's criminal and custodial history".
The 2018 Remarks on Sentence were not in the Crown tender bundle, nor was "any other evidence that [the sentencing judge] may have had reference to". It is contended that procedural unfairness arose from the sentencing judge referring to the earlier sentence material, which was "not properly placed by the parties before the Court and about which they had no detailed knowledge".
The applicant noted that Ms Harris' report which had been tendered by the applicant did, in turn, refer to a 'Psychological Assessment Report', dated in 2017, but the applicant submitted it was unclear whether that particular report was before the court in 2018.
The applicant highlighted that part of the sentencing proceedings where the sentencing judge stated:
"I'll read to you a bit of what I had to say. That will probably inform you a bit."
(Emphasis added.)
It is contended that - although the applicant's counsel engaged with the sentencing judge in relation to points of distinction between the 2018 position and the 2023 position - such matters were limited to superficial matters, such as the age of the applicant and the conditions of custody affected by COVID-19. Any specific detail relating to, for instance, whether or not the applicant had the support of his mother on the previous occasion was not able to be ascertained and was a matter of speculation.
The applicant contends that counsel for the applicant should not have been put in a situation where he was asked to make concessions against his client's interest "on the run". Absent the availability of the prior sentencing material, it is submitted that counsel was essentially left to engage in speculation, albeit "well-educated" speculation, as to the applicant's previous position.
The applicant argued that, although no adjournment was sought, the fact there was no such application, nor any opposition to the course the matter took, does not and could not remedy the procedural unfairness to the applicant. The applicant submitted that the reading of the portion of the previous judgment was not sufficient, as such subjective findings, without the primary evidence underpinning them, could not have been properly assessed.
The Crown emphasised that the concern of the law is to avoid practical injustice. Further, in pointing to the decision of Garling J in Weir v R [2011] NSWCCA 123 at [66] (McFarlan JA and Johnson J agreeing), the Crown submitted that the ultimate issue is whether any departure from the dictates of proper procedure has resulted in unfairness. His Honour further observed at [67] that a common basis for demonstrating practical injustice was whether the individual lost the opportunity to make submissions on the course to be adopted.
The Crown submitted that the sentencing judge's reference to the earlier 2018 sentencing remarks did not result in practical injustice for three reasons. First, the applicant was put on notice that the sentencing judge had previously sentenced the applicant before oral submissions were made. Second, the relevant portion relied upon by the sentencing judge was read aloud to the parties. And, third, no request was made by the applicant's counsel for the remarks to be handed down, or for an adjournment so that copies could be obtained.
Further, the Crown contended that there was nothing the sentencing judge referred to as a distinguishing factor that was not already known on the evidence tendered in the proceedings and on which counsel had an opportunity to address.
In the Crown's submission, the circumstances of this particular case did not raise the necessity for the previous sentencing remarks to be tendered. The sentencing judge read out the relevant portion. No practical injustice arose. Even accepting the degree of informality attending the way in which the previous sentencing remarks were referred to, no findings were made on the applicant's prospects of rehabilitation that were not otherwise available on the evidence tendered in the proceedings. Again, no practical injustice arose.
[13]
Consideration of Ground 1
In HT v The Queen (2019) 269 CLR 403; [2019] HCA 40 at [17]-[18] the plurality stated:
"It is a fundamental principle of our system of justice that all courts, whether superior or inferior, are obliged to accord procedural fairness to parties to a proceeding. This obligation requires not only that courts be open and judges impartial but that the person against whom a claim or charge is made be given a reasonable opportunity of being heard, which is to say appearing and presenting his or her case. In an adversarial system it is assumed, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. A party can only be in a position to put his or her case if the party is able to test and respond to the evidence on which an order is sought to be made.
Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept, rather, it is essentially practical. The concern of the law is the avoidance of practical injustice".
(Footnotes omitted.)
Another useful articulation of relevant principles can be found in Munday v R [2017] NSWCCA 95 in which Beech-Jones J (Johnson and Fagan JJ agreeing) stated at [24]-[25]:
"[…] if a sentencing judge proposes to rely on facts ascertained from a source external to the proceedings, then the parties should be so advised and given the opportunity to respond. Even if notice is given, it may still be erroneous to rely on such facts if evidence supporting them has not been adduced by the parties and proven in the proper manner.
[…] if it was established that a sentencing judge proposed to treat a sentence imposed in another case in that manner, then procedural fairness may require the judge to bring that to the parties' attention. Such a case may provide an example in a judicial context of the analogous obligation imposed on administrative decision-makers 'to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that they may have an opportunity of dealing with it'".
(Citations omitted.)
It is also worth noting that s 4 of the Evidence Act 1995 (NSW), especially sub-s 4(2), recognises that sentence proceedings usually proceed with less formality and less evidentiary precision than other proceedings, unless a court directs that the law of evidence applies to some or all of the sentence hearing. Section 4 reads:
4 Courts and proceedings to which Act applies
(1) This Act applies to all proceedings in a NSW court, including proceedings that -
(a) relate to bail, subject to Division 4 of Part 3 of the Bail Act 2013, or
(b) are interlocutory proceedings or proceedings of a similar kind, or
(c) are heard in chambers, or
(d) subject to subsection (2), relate to sentencing.
(2) If such a proceeding relates to sentencing -
(a) this Act applies only if the court directs that the law of evidence applies in the proceeding, and
(b) if the court specifies in the direction that the law of evidence applies only in relation to specified matters - the direction has effect accordingly.
(3) The court must make a direction if -
(a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and
(b) in the court's opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding.
(4) The court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.
Clearly, this reduced level of evidentiary formality for sentencing proceedings (absent an order to the contrary) does not impinge upon the fundamental requirement that such proceedings must be fair. A judge must ensure that the parties are accorded procedural fairness and practical injustice is avoided.
The question here is whether procedural fairness was afforded to the parties - was the material on which the sentencing judge proposed to rely in his 2023 Remarks on Sentence placed before the parties, and were they given an opportunity to respond?
In my view, the answer to these questions is yes.
Whilst it would no doubt have been preferable for the sentencing judge to hand down to the parties the 2018 sentencing remarks from which he appeared to be reading, a failure to do so does not mean that procedural fairness was denied. The portion the sentencing judge read out was the portion that was included in the 2023 sentencing remarks. The material before this Court does not support the proposition that some amorphous body of past information was used by the sentencing judge which was, unfairly, not put to the parties for comment. There was no practical injustice.
Further, as outlined above at [59], the sentencing judge made it clear that the portion of the previous judgment his Honour read out to the parties was a summary of the history of his background taken from the applicant's then psychologist. The following paragraphs demonstrate that the relevant previous psychologist's report was available to the applicant at the time of 2023 sentence.
It can be observed that Ms Harris' report stated at [3], that it was based on material including "documents forwarded by [the applicant's solicitors'] office." In turn, the documents set out under the heading "Sources of information" included two Psychological Assessment Reports - one dated 20 December 2017 by Dr Robyn Goodwin ("the 2017 report") and the other dated 2 December 2011 by Debbie Case.
Although, in this Court, the applicant argued that one could not properly ascertain whether the 2017 report referred to in Ms Harris' report was the report referred to by the sentencing judge in the passage his Honour read to the parties, in my view, one could be comfortably satisfied they were one and the same. That is because the applicant's criminal history indicates that the date of the 2018 sentence (29 June 2018) and the date of the 2017 report (20 December 2017) align neatly with each other and there is no other such alignment with any other sentencing proceedings on the applicant's record. If that is accepted, there is a strong inference that the applicant's solicitor at the time of the sentencing hearing in 2023 had (or had access to) the 2017 report as referred to in the passage the sentencing judge read out to the parties in the 2018 Remarks on Sentence.
This inference is further strengthened by the following. In her report, Ms Harris referred to the 2017 report, in part, as follows:
"Dr Goodwin's report (2017)
[The applicant's] self-reported information provided during the assessment with Dr Goodwin was generally consistent with the current interview regarding his psychosocial history however the following differences were observed. He did not report experiencing childhood sexual abuse in the 2017 assessment."
This passage resonates with the sentencing judge's observations.
So far as it is suggested that the material underpinning the passage read out by the sentencing judge was not known to the applicant or ascertainable by him, it would appear that the report underpinning that passage was in his lawyer's possession, either actually or constructively.
It is worth repeating that it would have been preferable for the sentencing judge to make available to the parties the document from which his Honour read. That would have put to rest any issue around procedural fairness. In this case, however, given the sentencing judge read out the relevant material, and provided sufficient opportunity for the matters on which he proposed to rely to be dealt with by each of the parties, no practical injustice occurred. Further, it appears that the applicant had access to, if not possession of, the material underlying the relevant portion.
Ground 1 is not made out.
[14]
Ground 2: In sentencing for the first charge, the sentencing judge erred in taking the attached Form 1 offence into account as an aggravating factor
The applicant contends that the sentencing judge erred by taking the Form 1 offence attached to the Torrens University charge into account as a matter of aggravation when assessing the objective seriousness of the primary offence. Counsel for the applicant relied upon a decision of this Court in Geagea v R [2020] NSWCCA 350 at [25] as authority for the proposition that conduct which occurred on a later date could not form a part of the objective circumstances of the first charge.
The Crown submits in response that, when the sentencing remarks are read fairly and in context, it is apparent that his Honour was indicating that the Form 1 offence was serious and, therefore, required an increase to the indicative sentence. In other words, the sentencing judge dealt with the Form 1 offence in an entirely orthodox manner. It was further noted that the Remarks on Sentence were delivered in an ex tempore judgment, and a degree of latitude should be permitted.
[15]
Consideration of Ground 2
The passage in the Remarks on Sentence which underpins Ground 2 reads as follows:
"The Form 1 offence involves a re-entry to the same premises to remove further items. The re-entry to the premises is an aggravating factor of this type of offence. It requires the Court to treat the Form 1 offence to increase the sentence for the principal offence by some significant degree."
When read carefully, his Honour's words did not show error. His Honour's reference to aggravation concerned his assessment of the seriousness of the break and enter offence on the Form 1, which itself involved a further entry to the same premises. When the Remarks on Sentence are read fairly and in their full context, it is clear that his Honour was indicating that the Form 1 offence was itself a serious offence (notably involving a re-entry of the same premises) and, therefore, required an increase to the indicative sentence to a significant degree, consistent with the authorities.
This conclusion is reinforced by the clearly correct statement of law in relation to the treatment of Form 1 offences that is set out in the first paragraph of the Remarks on Sentence and reproduced in [49] of this judgment. His Honour also correctly referred to the relevant principles when taking into account the Form 1 offences in relation to the Louis Vuitton substantive count, set out above at [56]. The approach was also consistent with, and reflected the submissions of, the parties; that is, the manner in which the Form 1 offences could be used to increase the sentence. No error has been established.
Ground 2 is not made out.
[16]
Ground 3: The aggregate sentence imposed was manifestly excessive
The applicant contends that the aggregate sentence imposed was manifestly excessive. Whilst accepting that only the aggregate sentence is the subject of the appeal, the applicant makes plain that there is no issue with the lengths of the indicative sentences considered alone. Rather, the excessive degree of notional accumulation is highlighted as the underlying error: Lee v R [2020] NSWCCA 244 at [32]ff; Noonan v R [2021] NSWCCA 35 at [26]ff; GG v R [2023] NSWCCA 102 at [65]ff.
The applicant notes that, if the two indicative sentences were added together with no concurrency, they would represent a period of 8 years and 3 months (or 99 months). The aggregate head sentence was one of 7 years 6 months (or 90 months), representing more than 91% of the indicative sentences. The applicant submits that this demonstrates there was negligible notional concurrency. This also had the effect that the applicant was ineligible for the Compulsory Drug Treatment Correctional Centre program because the aggregate sentence was more than 6 years.
The Crown submits that the aggregate sentence is not unreasonable or plainly unjust when considering: (1) the nature of the two offences, (2) the matters on the Form 1 schedules, (3) the offences were committed for financial gain, (4) the offences were committed a month apart, (5) the applicant's extensive criminal history disentitled him to leniency, and (6) he had limited prospects of rehabilitation, as well as very few matters in mitigation.
[17]
Consideration of Ground 3
The principles to be applied in determining a ground asserting manifest excess (or inadequacy) of sentences are well known. They were collected in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:
"• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
As further noted by Bell P (as Bell CJ then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42] to these principles can be added:
"To this oft-cited summary of principles, may be added the following:
(1) Sentencing is an 'exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions' - Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].
(2) Each case has to be considered on its own merits, and no case is entirely similar to any other - Windle at [61].
(3) There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate - Windle at [61].
(4) An applicant seeking to challenge a sentence on the ground of manifest excess has a 'very heavy practical burden', and must show a kind of disproportion which is so 'manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law' - R v Elemes [2000] NSWCCA 235 at [22]-[23].
(5) The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 - Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].
(6) The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) - Turner at [68].
(7) Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process - Dinsdale at [6]; Simmons at [30].
(8) Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range - Martinez v R [2020] NSWCCA 250 at [39].
(9) Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight - Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].
(10) Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender - Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64]."
Further, the well-known principles in relation to the question of accumulation or concurrency of sentences as set out in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] are also relevant:
"[…] The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Finally, given the sentence in this matter is an aggregate sentence, it is also important to remember the following principles conveniently set out in XY (A Pseudonym) v R [2023] NSWCCA 50 at [66]-[67]:
"Where an aggregate sentence is imposed, as in this case, the operative sentence is the aggregate sentence and it is this sentence which must be shown to be manifestly excessive if an applicant is to succeed on such a ground of appeal. Indicative sentences are not themselves amenable to appeal but they may be a guide as to whether the aggregate sentence reflects error: Benn v R [2023] NSWCCA 24 (Benn) at [81] (Gleeson JA, N Adams and Ierace JJ agreeing) citing JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40].
In an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved: Aryal at [49]-[50], citing JM v R at [14]."
With these principles in mind, the following can be noted about the offences and Form 1 matters in relation to which the applicant was sentenced.
1. The two offences were serious, sophisticated examples of their type involving high value goods;
2. The two offences were committed about one month apart and could not be regarded as part of a single episode of criminality. Rather, they were discrete and independent criminal acts involving different business premises and different goods;
3. The Form 1 matters themselves involved some real seriousness, and significant increases in the indicative sentences were properly warranted to reflect the need for personal deterrence;
4. The offences were committed for financial gain. They were properly categorised as in the middle range of objective seriousness;
5. The applicant's extensive criminal history for larceny, dishonesty and break and enters did not entitle him to leniency. Greater weight needed to be given to both general and specific deterrence;
6. The applicant's prospects of rehabilitation were limited given he had relapsed into drug use and offended shortly after the expiry of his last sentence; and
7. Other than his plea of guilty and expression of remorse there were no significant mitigating factors.
As indicated above, the gravamen of this ground of appeal is the limited degree of concurrency allowed between the two indicative sentences. In my view, given the circumstances of the two offences, together with the criminal history of the applicant and his limited prospects of rehabilitation, it was open to the sentencing judge to arrive at the notional accumulation as determined. The aggregate sentence was not unreasonable or plainly unjust. The applicant has failed to demonstrate that the sentence is manifestly excessive.
Ground 3 is not made out.
[18]
Proposed orders
The orders I propose are:
1. Leave to appeal granted.
2. Appeal dismissed.
[19]
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Decision last updated: 03 May 2024
The applicant's counsel then made a submission about the period of parole imposed by the sentencing judge on the prior occasion. The applicant had managed to complete this period successfully, indicating a positive change in the applicant, to which the sentencing judge responded,
"It would be if he wasn't back here."
The applicant's counsel then referred to Ms Harris' psychological report, which indicated the applicant was motivated to participate in a compulsory drug treatment program at Parklea.
The sentencing judge then stated:
"I just don't think he's going to fit within the parameters though, is he? He only got three years and six months last time. This is a vastly more serious offence than last time."
There was further discussion about whether the applicant would be eligible for the drug treatment program at Parklea given the likely sentence the applicant would receive for the current matters.
The applicant's counsel then stated:
"There's a couple of other distinguishing features just to take up your Honour's lead in terms of that as a starting point."
These "distinguishing features" were:
1. For some of the period the applicant had been in custody, there were restrictions because of COVID-19 which were relevant, if for nothing else, to the question of special circumstances.
2. The applicant's mother was present in court, and,
"For all that it can be conceded that, as your Honour put it that [the applicant] hasn't rehabilitated, he does have and continues to have support and […] there is a chance to direct real change."
1. The applicant was older and, accordingly, able to make better decisions.
2. The applicant had completed his parole period successfully, which was positive given the number of failed attempts previously.
The applicant's counsel then conceded that personal deterrence continued to be relevant but that a different approach, for example, involving a compulsory drug treatment program, was required. Further, a finding of special circumstances was warranted because the parole period last time "seems to have achieved at least something".
The following exchange then occurred:
Sentencing judge: "For what it's worth, this is what I said last time in terms of parole: supervision should focus on assistance with re[-]establishing the [applicant] in the community; drug rehabilitation; and assistance with housing. As I did point to the - he was saying to me last time he was prepared to do rehabilitation - drug rehabilitation. I certainly took it into account on that occasion. He didn't refer - I didn't refer to his mother. I don't know whether he did or not. One of the things I was certainly focussing on was him saying he was prepared to rehabilitate on the last occasion."
Applicant's counsel: "I'm in a slight disadvantage insofar as I don't know what your Honour said last time. I don't have access to it."
Sentencing judge: "I'll read to you a bit of what I had to say. That will probably inform you a bit. Obviously I had more material than I put in the judgment. Judgments only have summary, at best, of what I was told:
'The [applicant] is a 33 year old man. He does not complain of an unhappy upbringing. His three siblings are all people who have pro-social lifestyles with no criminal records. He described himself to the psychologist at that point, as a black sheep in the family. His criminal history is consistent with the history given by the [applicant] of being a drug user from a relatively young age. He started using cannabis from around the age of ten and progressed to using MDMA and cocaine on a weekly basis. He then used heroin intravenously to come down from stimulant drugs. This led to an addiction.
He told the psychologist that he had been addicted to heroin since he was 20 and continued throughout his twenties. He has attempted to rehabilitate but those attempts have not been entirely successful as is reflected in the latest episode of criminality in these offences. The [applicant] has spent a significant period of time in his 20s in custody and runs the risk of being institutionalised. The risk of institutionalisation is that the [applicant] becomes more comfortable in custody rather than being able to live in the community. The problem for the [applicant] is that he does not have a history of employment or a group of pro-social friends who can support his transition to living in the community.
Many of his friends and associates are also drug users or sellers or both. The question is whether the [applicant] has reached the stage in his life where: he's prepared to give up the use of drugs; to avoid previous associates; and seek rehabilitation from illicit drug use. Ultimately it will only be if the [applicant's] reached a situation where he is prepared to make the effort and maybe a considerable effort, to move into the wider community being drug free and not offending. The [applicant] indicated to the psychologist that he does want to change and is prepared to undertake further drug rehabilitation. Of course, it is difficult to gauge the [applicant's] prospects of rehabilitation given his recidivism.
It is positive that he is prepared to undertake drug rehabilitation but given that he has attempted that before, it does not rate his prospects of rehabilitation much higher than guarded. The [applicant] did appropriately express to his psychologist an understanding of the effects of the commission of the multitude of offences and the effect that that would have on the victims of the crimes. To that extent I do find that he is remorseful for his actions.'
I go on to talk about special circumstances which I gave in that particular judgment. That was very much a summary of what I was told on the last occasion. Rings pretty much true from what I'm hearing on this occasion in terms of the psychologist, except for the factors that I've referred to. One, I wasn't aware of [is] the assault when he was a child. That can have an effect on his whole life history. The other objective factor is the extreme value of the property stolen on this occasion. This is not a minor offence. This is one of the more major break and enters that I've actually had to deal with."
Applicant's counsel: "Could I raise two points out of what you[r] Honour raises with me."
Sentencing judge: "Sure."
Applicant's counsel: "This first is that, in principle, though what your Honour respectfully says is correct, that the position remains similar. Your Honour's obviously in a position where your Honour needs to assess the prospects based on the evidence before your Honour now, and I'm stating the obvious there but only to say that the position in the previous, not least because at least I and assume also the Crown don't have access to all of what was before the Court then is not there. That's the trite statement. The other point, in terms of the value, is impossible to get away from. That is that the value of the goods stolen in relation to the counts is very significant."
(Emphasis added.)
After further submissions were made by the applicant's counsel in relation to: (1) the quantity and value of the goods stolen, (2) that the offences fell slightly below mid-range of objective seriousness, (3) the correct day on which the applicant was taken into custody, and (4) submissions about concurrency, the sentencing judge then invited the applicant to address the court about the "child assault". The applicant's counsel addressed the court on this issue by reference to Ms Harris' report and submitted that it moderated his moral culpability to some extent. An exchange about the amount realised from the stolen goods then took place.
The sentencing judge then asked the applicant's counsel about the issue of repeated incursions into one premises. The applicant's counsel noted that there were three incursions involved in the Torrens University principal offence, in addition to an additional incursion in the Form 1 matter involving Torrens University. He also noted two incursions in the Louis Vuitton second principal offence. In relation to that matter, the applicant's counsel submitted that it "cut both ways" as it also indicated a lack of planning or forethought; that is, the applicant left to get bins that would assist him in carrying out the offence. The applicant's counsel then stated:
Applicant's counsel: "In relation to the first offence, it seems like he's w[a]ndering around in the premises for 20 minutes before he gets into the IT room and then uses a trolley which is in there. He returns the following day, so the form 1 offence does fall into a slightly different category there. Then in the Louis Vuitton offence, there's no evidence about how he got the card for that one, but he appears to have not brought a way to carry out any items and goes out, gets bins and comes back. Were there any other issues with which I could assist your Honour?"
Sentencing judge: "They're the ones I can think of. […] If the Crown thinks of some more, you can respond. Yes, Mr Crown."
The Crown prosecutor then addressed on the following matters:
1. The applicant's first date of custody.
2. The objective seriousness of the offences - submitted to be above mid-range - followed by a discussion with the sentencing judge.
3. Aggravating factors, including that the offence was committed for financial gain.
4. The issue of the sexual assault on the applicant when he was a child. The Crown prosecutor addressed on this issue solely based on material within Ms Harris' report.
5. Repeated incursions into the premises.
The Crown prosecutor concluded his submissions with the following:
Crown prosecutor: "The overarching submission of the Crown is that not only has nothing changed significantly for the [applicant] between his last sentence and today, the circumstances of the offending and their objective seriousness are quite different that would lead the Court to have doubts about his prospects for rehabilitation. Unless there's anything else that I can assist with, those are my submissions."
Sentencing Judge: "Anything you wanted to respond to?"
Applicant's counsel: "No, your Honour, no. No there's nothing."
After a short discussion about documents on the court file, the matter was adjourned for sentence to 2:00pm later the same day.