Tate v R [2012] ACTCA 50

Court of Appeal (ACT)|2012-12-12|Before: Lander JJ

[2012] ACTCA 50 (12 December 2012)

APPEAL - Appeal against sentence - Specific error - Mistake of fact - Prospects for rehabilitation - No mistake of fact - Appeal ground dismissed.

APPEAL - Appeal against sentence - Manifest excess - Offence of burglary - Range of appropriate sentences - Instinctive synthesis - Sentence within range - Appeal ground dismissed.

Aldridge v The Queen [2012] ACTCA 17

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

EG v The Queen [2012] ACTCA 17

Fusimalohi v The Queen [2012] ACTCA 49

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Hanania v The Queen [2012] NSWCCA 220

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

House v The King [1936] HCA 40; (1936) 55 CLR 499

Kien v The Queen [2012] ACTCA 25

Kovacevic v Mills (2000) 76 SASR 404

Love v The Queen [2012] ACTCA 8

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357

Morris v East (1988) 83 ACTR 1

R v Campbell [2010] ACTCA 20

R v Eisenach [2011] ACTCA 2

R v Kelly (1993) 30 NSWLR 64

R v O'Donoghue (1988) 34 A Crim R 397

R v Thorn [2010] ACTCA 10

R v Visconti [1982] 2 NSWLR 104

Richards v The Queen [2012] ACTCA 10

Ritter v R [2012] NSWCCA 121

RR v The Queen [2011] NSWCCA 235

Scognamiglio v R (1991) 56 A Crim R 81

Taylor v R (1978) 22 ALR 599

Wickey v McVicar [2012] ACTCA 38

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 23 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal is dismissed and the sentences imposed by Nield AJ are confirmed.

IN THE SUPREME COURT OF THE ) No. ACTCA 23 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. In September and October 2009, the appellant, Patrick Tate, committed four burglaries of domestic premises and stole property from each of the premises. In each case, he left his blood in the premises, presumably as a result of cutting himself on the windows he broke when entering each of the premises.

2. A DNA profile was obtained from the blood stains identified by police in the premises and it matched Mr Tate's DNA profile. He was summonsed to appear in the Magistrates Court on 16 September 2010 to answer four charges of burglary and four charges of theft. He did so and, after some adjournments, pleaded guilty, on 20 January 2011, to each of the charges.

3. He was committed to the Supreme Court for sentence and appeared before the learned sentencing judge on 16 May 2011 when he adhered to his plea of guilty. After hearing evidence and submissions, his Honour adjourned the proceedings to 23 May 2011 when sentence was imposed. His Honour imposed the following sentences:

4. The total effective sentence was six years imprisonment and his Honour set a non-parole period of four years from 30 April 2011 to 29 April 2015.

5. In addition, he was ordered to pay $100 compensation to the owner of the house the subject of the second burglary.

6. On 16 June 2011, Mr Tate appealed from the sentence imposed on the following grounds:

(a) His Honour erred in imposing a sentence that in all of the circumstances was manifestly excessive.

(ii) His Honour erred in breaching the parity principle for sentences imposed for burglary offences in the Australian Capital Territory.

(iii) His Honour erred by failing to give sufficient weight to the Appellant's prospects of rehabilitation.

7. Each of the burglaries were of a kind regrettably commonly occurring in Canberra. In each case, Mr Tate entered the four houses, when they were empty and had been secured by each of the occupants when he or she left them. He gained entry in each case by smashing a window and took various items from the premises.

8. In the case of the burglary of the first house, entered between 21 and 29 September 2009, the property stolen was itemised in a list which, unfortunately and for some unexplained reason, was not reproduced in the Appeal Book, but in the Statement of Facts and in his Honour's reasons for sentence was noted to be valued at $19 008.94.

9. In the second burglary, Mr Tate stole a digital camera worth $495. In the third burglary, Mr Tate stole a television and a game console together worth $1 413.00.

10. In the fourth burglary, Mr Tate stole items again itemised in an Annexure A to the Statement of Facts tendered at the hearing but, again, not reproduced in the Appeal Book but stated in the Statement of Facts and in his Honour's reasons for sentence noted as valued at $10 100.00. Thus, Mr Tate stole in total property valued at

$31 016.94. His Honour assumed, and there was no challenge to this on the appeal, that none of the stolen property was recovered.

11. A claim for compensation was made for $100, being the excess under an insurance policy of the owner of the house the subject of the second burglary.

12. In each case a window was broken, and in one case other damage was done (a not uncommon feature of burglaries dealt with in the Supreme Court). Other than that, in one case some items had been "tipped over" (though no suggestion of vandalism) and that in two cases the amount of property stolen had a quite significant value, there were no particularly aggravating features of any of the offences.

13. Burglary is an offence under s 311 of the Criminal Code 2002 (ACT), for which the maximum penalty is 1 400 penalty units, at the time of the offences a fine of

14. Theft is an offence under s 308 of the Criminal Code, attracting a maximum penalty of 1 000 penalty units, being at the time of the offences a fine of $100 000, or imprisonment for 10 years or both.

15. A Pre-Sentence Report, prepared under pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) was tendered, together with Mr Tate's criminal history and a character reference.

16. His Honour made the following findings from this evidence (at [1]-[16]):

The offender is Patrick Michael Tate. He was born in 1983...

The offender is the younger of his parent's two children. He has a brother. Also, he has two younger half siblings from his mother's relationship with his stepfather. His mother is alive. His father is dead. His stepfather is alive. His full and half siblings are alive.

The offender was cared for by his parents together until he was aged four years, when, in 1986, his parents separated. Thereafter he was cared for by his mother alone until he was aged 8 years when, in 1991, his mother formed a relationship with the man who would become his stepfather. Thereafter he was cared for by his mother and stepfather, whom his mother married during 2005, until he was aged 15 years, when, in 1998, he left the family home to live with his older brother.

The offender's upbringing was affected by his parent's separation and by his mother's and stepfather's abuse of alcohol and cannabis. I accept that his upbringing has shaped the way he has lived his life.

Not only was his upbringing affected by his mother and stepfather's abuse of alcohol and cannabis, the offender was sexually assaulted by a family friend during 1989 when he was aged six years. He did not report this assault to anyone until during late 2003, when he was aged 20 years, he told his mother about it. I do not doubt that this assault has had a marked effect upon him.

The offender has some contact with his mother and stepfather and some contact with his older brother. I do not know whether he has any contact with his youngest half siblings.

The offender attended primary and secondary schools in Queensland. He left school during year 10 without obtaining the School Certificate. He left school at the same time when he left his mother's home to live with his older brother.

Since leaving school, the offender has been employed as an apprentice chef, a kitchen hand, a gyprock plasterer, a bricklayer's labourer, a scaffolder, a landscaper and a concreter. I do not have details of those employments, other than that he has been employed as a concreter since the last week of April 2011 by TLC Pumping Pty Limited, see Exhibit 1.

The offender has abused both alcohol and prohibited drugs. He commenced to smoke cannabis when he was aged 13 years, to drink alcohol when he was aged 14 years, to use amphetamine when he was aged 16 years and to use heroin when he was aged 18 years. He claims that he has ceased to drink alcohol, to smoke cannabis and to use heroin. He has participated in the Methadone maintenance program when in prison.

Notwithstanding his abuse of alcohol and prohibited drugs, the offender enjoys good physical and mental health, albeit he suffered from situational depression when he was imprisoned from 1 September 2008 to 30 May 2009 and from 28 October 2009 to 27 February 2011, for which he was prescribed antidepressant medication.

The offender is single, never having married, and he does not have anyone dependent upon him.

The offender's income and liabilities are referred to in the pre-sentence report, see Exhibit D, and need not be revealed. I do not know whether the offender has any assets.

The offender does not have an unblemished character. He has a long and varied criminal record. He has been dealt with by courts in Queensland and courts in the Australian Capital Territory for a total of 55 offences. Of these offences, 18 have involved dishonesty, those being one offence of burglary, one offence of breaking, entering and stealing, two offences of breaking and entering with intent to steal, 10 offences of stealing including theft and shop lifting, five offences of receiving stolen property and one offence of taking a motor vehicle without the consent of the owner. I am now to impose sentences upon him for four offences of burglary and four offences of theft associated with the burglaries. I think that it is obvious and fair to say that he has learnt nothing from his earlier offending and the penalties imposed upon him therefor. I do not refer to his criminal record as an aggravating factor of the subject offences, but because it is relevant to such questions as rehabilitation, re-offending and deterrence.

On 21 August 2008 the offender committed, inter alia, the offence of burglary and associated theft and on 11 March 2009 he was sentenced by a judge of this court to imprisonment for 15 months with nine months, from 1 September 2008 to 31 May 2009, to be served on a full time basis and six months, from 1 June 2009 to 30 November 2009, to be served on a periodic detention basis for the burglary offence, and to imprisonment for nine months, from 1 September 2008 to 31 May 2009, for the theft offence.

On 5 January 2009 the offender committed two offences of knowingly obstructing a public official in the exercise of duty and on 27 January 2010 he was sentenced by a magistrate of the ACT Magistrates Court to imprisonment for 10 months, from 28 October 2009 to 27 August 2010, for one offence and to imprisonment for eight months, from 28 January 2010 to 27 September 2010, for the other offence.

On 27 August 2009 the offender committed an offence of assault occasioning actual bodily harm and on 28 April 2010 he was sentenced by a judge of this court to imprisonment for ten months, from 28 April 2010 to 27 February 2011, for the offence.

17. In the light of the grounds of appeal, two matters appearing in the evidence before his Honour should also be mentioned.

18. In the Pre-Sentence Report, the author wrote in respect of Mr Tate's drug history:

Whilst in a stable relationship, Mr Tate maintained that he had been drug free and it was not until the breakdown of the relationship that he became depressed and found himself returning to illicit drug use.

Mr Tate reported that prior to being incarcerated, he was using $100 worth of heroin every two days and regularly consuming cannabis.

Now back in the community, he reported he has ceased the Methadone Maintenance Program which he was on during his time in custody. He stated he completed a number of alcohol and drug programs whilst in the AMC. Additionally he stated he has been maintaining regular contact with Directions ACT, where he is part of the Inside Out Program. With strategies he has learnt and support from Directions ACT, Mr Tate is presently committed to leading a drug free life.

Mr Tate's counsellor at Directions ACT has verified Mr Tate's participation and stated he appears to be doing really well.

19. The author of the Report was not cross-examined by either counsel for the Crown or for Mr Tate and neither counsel challenged these opinions in submissions. Mr Tate's counsel relied on the evidence of rehabilitation as a basis for submitting that a Deferred Sentence Order should be imposed. The Crown prosecutor did say, somewhat inaccurately:

My friend urges your Honour for a deferred sentence. I submit that's not appropriate in these circumstances. Whilst there is the letter from his employer, we have nothing else to satisfy the court of the attempts at rehabilitation.

20. The unchallenged and verified evidence of the author of the Pre-Sentence Report that Mr Tate had had some success in his drug rehabilitation was a significant matter. The Crown prosecutor, however, did not really challenge the fact of the steps Mr Tate had made towards rehabilitation, but said:

Rehabilitation can never be ignored, but there are times when the other factors in sentencing need to be given a greater primacy than rehabilitation. In my submission that would be obviously the issues of specific and general deterrence, but also to mark to other people who may commit offences of this nature that the courts will take them seriously.

21. In the letter tendered to the court, Mr Tate's employer said, as well as confirming his employment, that Mr Tate was "a very hard and enthusiastic worker". He also noted that Mr Tate had been "very honest by explaining his criminal history which includes jail time". It was, his employer said, because of this honesty and his "enthusiastic attitude towards work" that he had been offered a full-time job.

22. His Honour dealt with these issues as follows (at [41]-[42]):

Notwithstanding that he is participating in the Directions ACT Inside Out Program and that he has employment, I doubt that the offender has good prospects for rehabilitation. His past ten years have been filled with drug use and criminal activity. He has failed to comply with court orders directed towards his rehabilitation. Notwithstanding that, I accept that he, like every other sinner, is not beyond redemption. I expect that his future will be much like his past, although I accept that, like so many things in life, only time will tell.

I am unable to say that the offender is unlikely to re-offend. His criminal past suggests to me that he is more likely to re-offend than he is not to re-offend.

23. As noted above (at [6]), there were three grounds of appeal. It is appropriate to deal with each separately.

24. This Court has set out in a number of authorities the approach that should be taken to this ground of appeal. In R v TW (2011) 6 ACTLR 18, I said, in a passage with which Penfold and Lander JJ agreed (at 27-8; [59]-[61]):

Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called 'the collective wisdom of the judges': per Hunt CJ at CL in

R v Ellis (1993) 68 A Crim R 449 at 460.

In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]):

In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
1. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
2. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.

25. In this case, Mr M Hassall, counsel for Mr Tate, did attach to his submissions a list of decisions of this Court where the offender had committed one or more burglaries and thefts, in some cases with other offences, as well as a list of sentences imposed by the Supreme Court on offenders who had committed one or more burglaries and theft, also in some cases with other offences.

26. While of some assistance, they were not particularly helpful for a number of reasons. In the first place, they did not in many cases identify the term of imprisonment imposed for the individual offences of burglary and theft, so as to have some understanding of the appropriate range of terms of imprisonment that could be said to be the "standards of sentencing customarily observed", representing the "collective wisdom of the judges."

27. Secondly, there was insufficient material to allow any comparison between the objective and subjective factors that must be taken into account when the instinctive synthesis that is the sentence is determined.

28. In this, it is, of course, often very difficult to compare sentences imposed for multiple offending, though with the proper information, it can be made of more value. Merely to refer to other cases and the outcome is of little assistance. As R S Hulme J, with whom Hoeben JA agreed (Fullerton J dissenting), pointed out in Ritter v R [2012] NSWCCA 121 at [24], it is not enough for counsel to argue from what happened in one or a limited number of other cases. It might be added that no sentence is in the nature of a precedent. Further, as the High Court pointed out in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 535; [48], numerical equivalence is not the way to show consistency in sentencing.

29. Hence, the need to show manifest excess in the sentence imposed. Nothing less will overcome the judicial restraint expected of courts of appeal, which are required to respect what Maxwell P pointed out in R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309; [14] is the legislative policy "that sentencing is for judges and magistrates at first instance. Sentencing is not the task for appellate courts, except where clear error is shown."

30. In this case, however, this Court has given guidance as to the appropriate sentences to be imposed for the crime of burglary. There have been a number of decisions in this area and Mr Hassall referred to one, Love v The Queen [2012] ACTCA 8. In that case, the appellant had been sentenced to a total sentence of five years imprisonment for seven offences of burglary together with associated offences of theft and also an offence of aggravated burglary and an associated offence of theft. Four offences of burglary and the offence of aggravated burglary required re-sentencing as they had been earlier dealt with when a sentence of imprisonment had been suspended and the further offences constituted a breach of the Good Behaviour Order required when the sentence of imprisonment was suspended. His Honour simply imposed the sentences that had been suspended. As to the further offences, the learned sentencing judge imposed 18 months imprisonment for two of the burglaries and 27 months imprisonment for the third.

31. When considering the ground of appeal that the sentence was manifestly excessive, the Court said (at [13]):

A table of cases was put before us showing sentences imposed for burglaries in the ACT Supreme Court. That indicated that sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances. We note that the sentence imposed for the last burglary and theft could appropriately have been higher than the earlier sentences and could also have justified a greater accumulation, given that it was committed so soon after the appellant was released on parole.

32. The Court did not identify a tariff (Morris v East (1988) 83 ACTR 1 at 3) but did approach the task of considering the sentence in the light of this finding. Thus, it confirmed the sentences of 18 months imprisonment for the two "fresh" offences of burglary but reduced the sentence for the third from 27 months to 24 months. The partial accumulation in respect of the seven offences of burglary and the one offence of aggravated burglary resulted in a total sentence of four years imprisonment with a non-parole period of two years and three months.

33. This Court has recently addressed a number of further cases involving appeals against sentences imposed for the offence of burglary.

34. Thus, in EG v The Queen [2012] ACTCA 17, the Court reduced sentences of imprisonment for offences of burglary from one year and seven months to one year and for the offence of aggravated burglary from two years and four months to

18 months. There were important issues in that case of youth and the use of drugs and alcohol that, of course, needed to be taken into account.

35. In Richards v The Queen [2012] ACTCA 10, a sentence of three years and two months was reduced to two years for the offence of burglary.

36. Finally, in Wickey v McVicar [2012] ACTCA 38, a sentence of three years for the offence of burglary was reduced to two years and six months. Again, the Court had specific regards to sentencing standards in the Supreme Court when considering the sentence that should be imposed. The Court said (at [25]):

Having regard to the sentences routinely imposed in the Supreme Court for burglaries and associated thefts, but taking account also of Mr Wickey's poor criminal record and fairly unconvincing prospects of rehabilitation, we consider that a more appropriate total sentence for Mr Wickey's offending would be in the order of four years and three months, made up as follows:

(a) for the burglary and associated theft, two and a half years imprisonment and six months imprisonment, to be served concurrently ...

37. It is to be noted that, in this case, the Court noted several serious and aggravating matters:

(a) the burglary took place at night when Mr Wickey entered a bedroom in which a woman was asleep, taking her handbag and its contents;

(b) Mr Wickey had a substantial criminal history which denied him leniency;

(c) The Court considered the learned Sentencing Magistrate was justified in being sceptical about his professed determination to overcome his drug problems.

38. Having regard to these matters, it seems to me that this Court, through these decisions, has been attempting to provide a level of consistency in sentencing for offences of burglary which is an appropriate part of its function, activated, of course, only by the finding of error. In this sense, the approach of the Court is the same, whether the appeal is an appeal by an offender or by the Crown as pointed out by Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [4].

39. There is no doubt that consistency of sentencing is an important matter as disparity has the capacity to undermine the community's confidence in the criminal justice system. This has been emphasised time and again in both offender appeals and Crown appeals: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at 326; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-11; Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 591; [6]; R v Visconti [1982] 2 NSWLR 104 at 107-8; R v Allinson (1987) 49 NTR 38 at 39. While a sentencing standard cannot dictate the outcome in every case, or remove the need for a consideration of the facts in each case, a standard is set by the cumulative force of individual sentences or a deliberate decision of an intermediate court of appeal: Kovacevic v Mills (2000) 76 SASR 404 at 410; [31]-[34]. It appears that both were in play in this case.

40. In my view, the sentences here imposed for each burglary were inconsistent with the approach of this Court as seen in the decisions to which I have referred. Of course, there are individual differences, of significance, which render it inappropriate to make a direct comparison with any particular sentence, but the Court is to have regard to what this Court has earlier identified, by its use of them to assess other appeals, as the appropriate sentencing standards.

41. Despite difficulty in identifying the sentences imposed for burglary offences in the table annexed to Mr Hassall's submissions on behalf of Mr Tate, the various sentences imposed in the Supreme Court seem to confirm the assessment made by this Court, particularly in Love v The Queen and Wickey v McVicar as to the range within which sentences are ordinarily imposed for the offence of burglary. That is between 12 months and two years and six months.

42. In this light, I consider that, unless there are particular features of aggravation showing that a greater sentence is appropriate, a sentencing of two years and eleven months is manifestly excessive especially for the offences where the value of property was relatively low. In my view, a sentence in the order of two years imprisonment would be appropriate and in the case where property valued in excess of $10 000 had been stolen it may have been appropriate to accumulate the sentence imposed for the theft of the property by perhaps six months imprisonment.

43. Indeed, the fact that Mr Tate had taken advantage of the opportunity to progress his rehabilitation to the extent of gaining employment where he was regarded as a valuable employee and where he had engaged in counselling and committed himself to a drug-free life, seems to me to warrant a lesser sentence than that imposed.

44. After appropriate accumulation, I would have reduced the overall sentence to one of four years and six months with an appropriate non-parole period of two years and nine months.

46. Insofar as this ground of appeal is intended to address a different issue from the ground of manifest excess, it is misconceived.

47. It is true that the courts have sometimes referred to disparity in the context of consistency of sentencing in general. See, for example, per Jacobs J in Griffiths v The Queen at 326. While this may be a particular of the general ground, that the sentence was manifestly excessive (as to which, see R v Eisenach [2011] ACTCA 2 at

48. Parity and disparity as an appellate error is usually reserved as for the requirement that co-offenders should, absent distinguishing features, be treated equally. As Dawson J said in Lowe v The Queen (at 623):

[J]ustice should be even-handed and it has come to be recognised ... that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been don [sic] ...

49. As there is no co-offender here, the ground has no substance.

50. A ground where, as here, it is alleged that insufficient weight has been given to a factor, here Mr Tate's rehabilitation, is not a specific error. As Hunt J (as his Honour then was), with whom Carruthers and Wood JJ agreed, said in O'Donoghue (1988) 34 A Crim R 397 at 401 of the role and function of a Court of Criminal Appeal:

Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the court cannot for that reason interfere with those findings.

See, also, Scognamiglio (1991) 56 A Crim R 81 at 83-4.

51. Rather, an appeal ground asserting that the learned sentencing judge did not give a particular feature sufficient weight is, "in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient": Hanania v The Queen [2012] NSWCCA 220 per Button J, with whom Hoeben JA and Johnson J agreed.

52. Thus, a court is really limited to determining whether the facts found by the sentencer were really open to him or her to be found: R v Kelly (1993) 30 NSWLR 64 at 66.

53. In this case, the evidence of Mr Tate's participation in rehabilitation and his employment, including his work standards, was uncontradicted and unchallenged. Ordinarily, while a judge of the facts may reject such evidence, it is only permissible if there is other evidence to sustain such a rejection as set out in Taylor v R (1978) 22 ALR 599 at 607-8; 617-18.

54. The inferences that can be drawn from such facts, however, may be assessed by the appeal court to see whether the inference was open. Here, the learned sentencing judge drew adverse inferences. Whether he was entitled to do so was not challenged on the appeal and is not encompassed within the ground of appeal.

56. Accordingly, I would uphold the appeal and re-sentence Mr Tate as indicated above.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.

IN THE SUPREME COURT OF THE ) No. ACTCA 23 - 2011

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

57. On 23 May 2011 the appellant was sentenced by Nield AJ to sentences of imprisonment totalling six years for four offences of burglary and four associated thefts. A schedule setting out the offences and the sentences imposed is Annexure A to this judgment. A non-parole period of four years was imposed.

58. The appellant appeals from the sentences imposed on the following grounds as ultimately expressed in the course of the appeal:

The learned sentencing judge erred in fact in sentencing the appellant on the basis that he lacked prospects for rehabilitation; and
The sentence imposed is manifestly excessive and/or inconsistent with ACT sentencing standards for like offences.

59. Our task is to determine whether there was an error made in sentencing the appellant. In the absence of demonstrated error we may not interfere with the sentences imposed, even if they are sentences we would not have imposed ourselves: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. The type of error that an appellant must demonstrate was explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

60. The appellant submits that the learned sentencing judge made an error of fact which justifies us reviewing the exercise of his sentencing discretion, and that error may otherwise be inferred because the sentences imposed are plainly unjust. This appeal was heard in conjunction with the appeal in Fusimalohi v The Queen [2012] ACTCA 49 (Fusimalohi) due to both appeals raising common issues.

61. In the course of his sentencing remarks the learned trial judge said at [41]:

Notwithstanding that he is participating in the Directions ACT Inside Out Program and that he has employment, I doubt that the offender has good prospects for rehabilitation. His past ten years have been filled with drug use and criminal activity. He has failed to comply with court orders directed towards his rehabilitation. Notwithstanding that, I accept that he, like every other sinner, is not beyond redemption. I expect that his future will be much like his past, although I accept that, like so many things in life, only time will tell.

62. The appellant submits that this constitutes a finding that the appellant "lacked prospects for rehabilitation" and was contrary to the evidence before the learned sentencing judge. We do not agree.

63. The appellant refers to two pieces of evidence before his Honour in order to establish that the finding was not supported by the evidence. The first is the following passage from the pre-sentence report dated 6 May 2011:

Mr Tate has demonstrated he has the ability maintain (sic) a stable lifestyle when supported with positive influences as he appears to remain free of illicit substances. However, concern is raised when Mr Tate experiences difficult situations and turns to illicit substance use. He acknowledges that at this time, he can rapidly descend into criminal activity to maintain his use.

To his credit Mr Tate has committed himself to programs designed to reduce further risk including continuing participation in alcohol and drug programs. He also appears to be benefitting from support in his current accommodation and has linked with Housing ACT to secure future accommodation. Additionally he has short and long term employment plans with goals he wants to achieve. It is hoped he can realise these goals by maintaining stability in the employment.

If Mr Tate's present mindset does not waiver and he willingly engages with his current support networks, refrains from illicit substance use and establishes positive influences, Mr Tate will give himself a greater opportunity to succeed with his future goals and maintain a lawful lifestyle.

64. This passage provides limited support for the proposition that the appellant has good prospects for rehabilitation. The author of the pre-sentence report acknowledges that the appellant is capable of maintaining a drug-free, stable lifestyle, but also notes that the appellant has a tendency to return to the use of illicit drugs and criminal activity when he "experiences difficult situations".

65. The second piece of evidence referred to by the appellant is a letter dated 15 May 2011 from his employer testifying that the appellant had been employed for three weeks, had been honest in telling his employer of his prior criminal history, and was an enthusiastic worker. This letter was, of course, relevant to the question of the appellant's rehabilitation prospects, and the learned Sentencing Judge specifically referred to the appellant's employment in the course of his sentencing remarks. However, his Honour was entitled to give this evidence little weight bearing in mind the short period during which the appellant had been employed.

66. The appellant's submission ignores a very important piece of evidence relevant to assessing the appellant's rehabilitation prospects; namely his criminal history. The appellant has over forty prior criminal convictions recorded between 2001 and 2010, including convictions for burglary, theft, arson and assault occasioning actual bodily harm. Sentences directed towards his rehabilitation have been imposed in the past, as well as sentences of imprisonment. None have been successful in rehabilitating the appellant. We consider that his Honour was entitled to be pessimistic as to the appellant's rehabilitation prospects based on this history. Sentencing does not occur in an historical vacuum. Whilst sentencing judges may genuinely hope for rehabilitation of an offender, that hope is no substitute for rational judgment based on proven facts. One of the best indicators of the future actions of an individual is what they have done in the past, particularly where there is a significant history of relevant acts, such as criminal offending.

67. We consider that the learned sentencing judge was entitled to form the view that he did of the appellant's prospects of rehabilitation.

68. Recently, in Kien v The Queen [2012] ACTCA 25, this Court referred to R v Campbell [2010] ACTCA 20 as setting out what is required when appealing against the manifest excess or mangiest inadequacy of a sentence [32]-[35]:

In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 21[46]-[47]):

The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen ... must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).

Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

69. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325, Gleeson CJ and Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.

70. The appellant says that the sentences imposed, both individually and in the aggregate, are manifestly excessive in that the sentences of imprisonment are too long. He submits that they are "outside the range of sentences imposed for similar offences in the Australian Capital Territory". To that end he referred us to a number of previous decisions of this Court, and to a table of sentences imposed in this Territory for burglary and theft type offences.

71. The first decision referred to by the appellant was R v Thorn [2010] ACTCA 10 (Thorn), where the offender was sentenced to an aggregate term of imprisonment of four years six months imprisonment, partly suspended, for a lengthy series of offences of dishonesty, including numerous burglaries and thefts. A Crown appeal against the adequacy of sentences imposed was unsuccessful. We do not think this case assists the appellant. It is clear that the offender in Thorn had significant mental health issues. In rejecting the Crown appeal, the Court referred to the offender's mental illness as a circumstance which rendered general deterrence of less significance than would otherwise have been the case. The appellant has no history of mental illness, so that one cannot compare the sentences imposed on the appellant with those imposed in Thorn.

72. The second case referred to by the appellant was Love v The Queen [2012] ACTCA 8 (Love), where this Court found an aggregate sentence of five years imprisonment, with a non-parole period of three and a half years, for numerous offences of burglary and theft was manifestly excessive, and reduced the aggregate sentence to one of four years imprisonment, with a non-parole period of two years and three months. An examination of the circumstances of the offender in Love reveals why this course was adopted, and why it cannot be used as a comparator with the sentence imposed on the appellant. The offender in Love was a young man when he committed the offences for which he was sentenced, those having occurred when he was 21 years old, compared with the appellant who was nearly 26 years old at the time of his offending. In addition, the evidence established that the offender in Love had a childhood and adolescence characterised by deprivation and abuse, including sexual abuse, resulting in him being exposed to drug abuse from an early age. Whilst the appellant had a dysfunctional family upbringing, being exposed to the use of cannabis from an early age, it was not as significantly deprived as that of the offender in Love. In addition, while the offender in Love had a prior criminal history, it was not as significant as that of the appellant.

73. The third case the appellant referred us to was Richards v The Queen [2012] ACTCA 10 (Richards), where the offender's sentence of three years and two months imprisonment for an offence of burglary was reduced to two years on appeal. The sentence imposed on appeal is not inconsistent with the sentences imposed by the learned Sentencing Judge for the burglary offences committed by the appellant. In addition, one of the circumstances that moved the Court to reduce the sentence for burglary in Richards was the impairment of the offender's judgment by reason of serious physical injury at the time of the offence.

74. The final case to which we were referred is Aldridge v The Queen [2012] ACTCA 17, where this Court found sentences of one year and seven months imprisonment for offences of burglary, and two years and four months imprisonment for aggravated burglary to be excessive. Sentences of 12 months imprisonment and 18 months imprisonment respectively were substituted. The offender in that matter had no relevant prior adult criminal history and was only 20 years old at the time of offending. His rehabilitation prospects were considered to be good.

75. These cases do not suggest that the sentences imposed on the appellant, either individually or in the aggregate, are manifestly excessive.

76. We do not consider the table of sentencing decisions prepared by the appellant's counsel establishes that the sentences imposed on the appellant are manifestly excessive. What the table does establish, as with the decisions referred to above, is that there is no single, correct sentence for offences of burglary. Sentencing is not a simple arithmetic process, but instead requires the sentencer to determine a sentence based upon an "instinctive synthesis" of the facts and circumstances relevant to the offences and offender: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357. As such, there will always be a range of sentences that may legitimately be imposed for an offence of this type.

77. As we noted in Fusimalohi, the fact that other offender's may have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive. As Johnson J, with whom James J agreed, said in RR v The Queen [2011] NSWCCA 235 at [152]:

Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; Hill v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538-539. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672 [15].

78. We do not consider that the sentences passed on the appellant, either individually or in the aggregate, to be manifestly excessive.

79. The appeal is dismissed, and the sentences imposed by Nield AJ are confirmed.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Burns and Lander.

Solicitor for the Appellant: Craig Lynch & Associates

Counsel for the Respondent: Mr A Doig and Mr T Jackson

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

(1) Burglary committed between 21 September 2009 and 29 September 2009, charge case 7566 of 2010: imprisonment for two years 11 months from 30 April 2011 to 29 March 2014;

(2) Theft committed between 21 September 2009 and 29 September 2009, charge case 7578 of 2010: imprisonment for one year seven months from 30 April 2011 to 29 November 2012;

(3) Burglary committed between 7 October 2009 and 15 October 2009, charge case 7572 of 2010: imprisonment for two years 11 months from 30 May 2012 to 29 April 2014;

(4) Theft committed between 7 October 2009 and 15 October 2009, charge case 7573 of 2010: imprisonment for one year seven months from 30 May 2012 to 29 December 2013;

(5) Burglary committed on 12 October 2009, charge case 7391 of 2010: imprisonment for two years 11 months from 30 May 2013 to 29 April 2016;

(6) Theft committed on 12 October 2009, charge case 7392 of 2010: imprisonment for one year seven months from 30 May 2013 to 29 December 2014;

(7) Burglary committed on 13 October 2009, charge case 7393 of 2010: imprisonment for two years 11 months from 30 May 2014 to 29 April 2017;

(8) Theft committed on 13 October 2009, charge case 7394 of 2010: imprisonment for one year seven months from 30 May 2014 to 29 December 2015.

(Sentencing) Act 2005

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Judgment (160 paragraphs)

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Cases Cited (14)