Vinaisi v R

Court of Criminal Appeal (NSW)|2021-06-23|Before: Payne JA, Price J, Wright J

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

PAYNE JA: This decision is delivered ex tempore as the non-parole period of the applicant expires on 5 July 2021. The Court was informed at the outset of the hearing that arrangements have been made for the applicant's residential accommodation and supervision dating from 5 July 2021.
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by her Honour Judge Noman SC on 21 May 2020.
The applicant pleaded guilty on the first day of trial to one count of "enter with intent to commit a serious indictable offence, namely larceny, in circumstances of aggravation", contrary to s 111(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 14 years' imprisonment. The applicant asked that two further offences be taken into account on a Form 1, namely, stealing property in a dwelling-house contrary to s 148 of the Crimes Act which carries a maximum penalty of seven years' imprisonment and dishonestly obtain a financial advantage contrary to s 192E(1)(b) of the Crimes Act which carries a maximum penalty of 10 years' imprisonment.
The applicant was given a 5% discount for the late plea and was sentenced to two years and 10 months' imprisonment with a non-parole period of one year and nine months to date from 6 October 2019. As I have said, the non-parole period will expire on 5 July 2021.

The sentencing judgment

The sentencing judge noted that a plea had been entered on the first day of the trial and applied a 5% discount. The sentencing judge found the objective seriousness of the principal offence was just below the mid-level. Her Honour took into account the following considerations when determining objective seriousness: 1. the circumstances of aggravation being that three people were involved in the home invasion; 2. the intended serious indictable offence was larceny; 3. the offence was not sophisticated or well planned, but it was not spontaneous and the presence of the applicant with two others in the very early morning, a distance from his home, reflected some forethought even if the particular premises were not targeted; 4. the offenders were in the house for less than 15 minutes; and 5. there was some disturbance of items within the house.
As to the applicant's subjective case, the sentencing judge noted that at the time of the offending he was subject to conditional liberty, having been released to parole on 5 November 2018. The offences occurred about six weeks after his release. The applicant had also committed other offences on 17 and 23 November 2018.
The sentencing judge referred to the applicant's criminal history and his record of prior offences for violence and dishonesty committed as an adult for which he had been sentenced to imprisonment and which disentitled him to leniency. Her Honour noted that his criminal history reflected the offending was not an uncharacteristic aberration and personal deterrence and protection of society indicated a more severe penalty was warranted.
In considering the report of the clinical and forensic psychologist, the sentencing judge noted that the applicant declined to discuss the offending other than the use of the key card. The applicant did not appear to have considered the hardship he had caused nor the wrongdoing. The applicant told the psychologist he "shouldn't have done it" but was unable to articulate the impact of his conduct and minimised the seriousness of the offending. The sentencing judge did not accept that the applicant was truly remorseful for his conduct. The sentencing judge did, however, accept that the applicant's background had provided him with limited exposure to prosocial attitudes and that his cognitive difficulties limited his insight.
The sentencing judge found that the applicant had been exposed to hardship and difficulty, and that his social circumstances included a background of deprivation such as to engage the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Her Honour said: "As in Bugmy, they compromise his ability to mature and learn from experience. It is well established that the disadvantaged background of the offender may mitigate the sentence that would otherwise be appropriate. I determine some amelioration is necessary. I consider the offender's cognitive limitations and background serve to lessen his moral culpability."
The sentencing judge observed the applicant had ceased education in year seven, briefly had paid employment and had no skills to assist him to gain employment. The applicant had used different illicit substances from the age of 13. The applicant had been exposed to antisocial influences and was easily led astray by his social group, who were all involved in crime and drug use.
The sentencing judge found the applicant's prospects of rehabilitation and not reoffending were poor. Her Honour observed that he had recently indicated a motivation to obtain treatment and had unsuccessfully sought entry to the Drug Court. Her Honour noted that the applicant "has spent long periods in custody" and that he planned to return to live with his grandmother, which would place him back amongst his antisocial peers to whom he expressed loyalty. The psychologist stated that there was a need for support given that the applicant is easily influenced.
The sentencing judge noted that general deterrence was attributed less weight given the applicant's limited cognition, but that personal deterrence remained a relevant factor which had ongoing significance.
The applicant had been on parole for an offence of "armed with intent to rob" at the time of the offending. However, his parole was not revoked solely due to the offending in this case. The applicant served the balance of parole from 4 February 2019 to 18 June 2020. He was sentenced for two separate offences of carrying a knife in a public place. He was sentenced to four months' imprisonment for the first offence to date from 7 June 2019 and five months' imprisonment for the second offence to date from 8 July 2019, expiring on 7 December 2019.
The sentencing judge found that an entirely concurrent term would produce an outcome which was unjust and disproportionate, as it would fail to reflect the circumstances in which this offence was different from and unconnected with the circumstances of the other offences and balance of parole.
Her Honour noted the applicant was bail refused for the index offending on 28 June 2019 and took into account one day of pre-sentence custody on 20 December 2018. Her Honour ordered a commencement date for the sentence of 6 October 2019.
Her Honour made a finding of special circumstances on the identified factors of the risk of institutionalisation and the need for support and rehabilitation on release. Her Honour adopted a non-parole period ratio of 61% to give effect to the finding of special circumstances.

The appeal

The applicant seeks leave to appeal on the sole ground that the sentencing judge erred in not taking into account the pattern of recidivism relating to the incarceration of the applicant.
The applicant did not challenge the length of the sentence imposed, but submitted that the non-parole period should be less and the period under supervision greater to address the applicant's pattern of recidivism, being that he has repeatedly returned to custody after a short time in the community.
The applicant submitted that if the structure of the sentence remains undisturbed, the applicant will have spent two years and five months in continuous custody and will have one year and one month available to him to be in the community on parole. The applicant submitted that having spent nine and a half years of adult life in custody, the applicant was in need of more qualified help and guidance than having just 13 months to readjust to the community.
The applicant submitted that while the sentencing judge dealt with the salient sentencing principles, her Honour's consideration of the applicant's criminal history should have gone further. The applicant submitted that the sentencing judge did not consider the duration between periods of incarceration and did not have regard to the short periods out of custody as it might relate to difficulties in the process of rehabilitation.
The applicant submitted that it was more than likely that merely repeating the pattern of incarceration without harnessing the applicant's motivation to obtain treatment would lead to a repeat of the pattern evident over the last decade of the life of the applicant, which was one of there being brief durations between periods of incarceration.
The applicant also made reference to the primary judge's finding that the applicant "was desirous to be dealt with in the Drug Court" but "was rejected because of his offences of violence on his record". The applicant submitted that in this case the criminal antecedents of the applicant had prevented him from taking advantage of statutory rehabilitative programs through the Drug Court. In the instant offences there was no finding of a threat of violence or any violent conduct against the householder by the applicant.
The applicant submitted there was reference by the sentencing judge to the applicant's criminal history but that there was no analysis of the pattern of this incarceration. The applicant conducted a brief analysis of this pattern in his written submissions, which highlighted that the applicant had been out of custody for periods of 29 days, 19 days, 23 days, 20 days, 44 days, 14 days, 45 days and 44 days between periods of incarceration. The applicant calculated that he has only spent 211 days in the normal community since the time of his first entry to prison in 2011, and that he has only spent 240 days of his adult life (since turning 18) at liberty. This amounted to 92% of the applicant's adult life having been spent in custody.
The applicant submitted that this was an appropriate case for emphasis to be placed on s 3A(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as the promotion of the rehabilitation of the offender would give better effect to the protection of the community.

Consideration

I have concluded that there was no error disclosed in the sentencing judge's reasons such as to warrant intervention of this Court. The sentencing judge expressly took into account the entries on the applicant's criminal history "dating back to the Children's Court".
The sentencing judge took this into account "to inform his background and any periods of confinement as this informs the risk of institutionalisation". The issue was not overlooked by the sentencing judge who was cognisant that the applicant had "spent long periods in custody": "The offender's prospects of rehabilitation and of not reoffending are poor. He has recently indicated a motivation to obtain treatment and unsuccessfully sought access to the Drug Court regime. He has spent long periods in custody. He plans to return to live with his grandmother, which places him back amongst his antisocial peers. He expressed that he was loyal to these friends and that he would engage in behaviour if told to. The report states that there is a lack of consequential thinking and a limited capacity for self‑regulation and moderation. Ms Durkin also noted the need for support given that he is easily influenced."
The sentencing judge expressly identified the risk of institutionalisation and the need for the applicant to receive support and rehabilitation on his release. The sentencing judge noted that the recommendation of the psychologist Ms Durkin about programs and treatment options was as follows: "It was submitted that I make a finding of special circumstances relying on the identified factors of the risk of institutionalisation; and the need for support and rehabilitation on release. Ms Durkin recommended a number of programs and treatment options. I accept that both of these factors well support a finding of special circumstances."
These factors were properly taken into account by the sentencing judge in determining the sentence and length of time that the applicant would benefit from being on parole, namely 13 months.
Before the sentencing judge, the applicant cited a number of authorities for the proposition that the risk of institutionalisation was a basis for a finding of special circumstances. Such a finding was made by the sentencing judge as set out above and applied when determining the sentence and length of time that the applicant would benefit from being on parole: "For this offence, taking into account the two further offences listed on the form 1, I sentence you to a term of two years and ten months' imprisonment with a non‑parole period of one year and nine months to date from 6 October 2019. You will be released to parole on 5 July 2021. This is a ratio of 61% and gives effect to my finding of special circumstances. I accept this sentence is partially accumulated and this will influence the ratio."
The applicant's pattern of returning to custody after short periods in the community was not overlooked by the sentencing judge. This was evident from consideration of the applicant's criminal record and the sentencing judge's findings about the risk of institutionalisation.
In Elshaimy v R [2018] NSWCCA 169 Button J (with whom Meagher JA and R A Hulme J agreed) said at [57]: "[57] …one can accept that there is a general requirement upon a sentencing judge or magistrate to reflect in his or her remarks on sentence the written and oral submissions that have been made, on behalf of each party. But I do not accept that the law of sentencing in New South Wales is that a sentencing judge or magistrate must formalistically and mechanistically refer to each and every discrete submission made on behalf of the Crown or an offender - for fear of error being shown on appeal - when the whole flavour of the remarks on sentence is an implicit acceptance of the particular point being made in favour of that party."
The same conclusion applies in the present case. The sentencing judge's remarks on sentence correctly reflected the written and oral submissions that were made. Her Honour carefully considered the substance of those submissions. The sentencing judge was not required mechanistically to refer to each and every discrete submission made on behalf of the applicant, especially when, as here, the whole flavour of the remarks on sentence constituted an implicit acceptance of the particular point being made in favour of that party, here the applicant.
The sentencing judge specifically and sufficiently took into account "the pattern of recidivism relating to the incarceration of the applicant." The remaining complaints by the applicant demonstrate no appealable error. Whilst leave to appeal should be granted, the appeal should be dismissed.

Conclusion and orders

For the foregoing reasons I propose the following orders: 1. Leave to appeal against sentence granted; 2. Appeal dismissed.
PRICE J: I agree with Payne JA.
WRIGHT J: I also agree with Payne JA.

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At a glance

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