Warner (AKA Jeremy Pachenko) v Regina

Grounds of appeal 8The applicant advances the following grounds: (i)The failure to identify the details of the applicant's criminal record with accuracy, and, how it was relevant to the sentencing exercise gives rise to error in ... this case; (ii)The proceedings miscarried by the failure of the sentencing judge to adequately refer, as required by s.54B(4) [of the Sentencing Act] to the "reasons for increasing or reducing the standard non-parole period"; (iii)The sentence is manifestly excessive. A further ground was advanced in the applicant's written submissions in these terms [at 1.14] [The] approach to the assessment firstly of the appropriate overall penalty and secondly structuring the sentences ... gives rise to a Pearce error. 9No application to amend the Application for Leave to Appeal was made, but the Crown acknowledged the existence of this ground and advanced argument to refute it: Crown Submissions page 2 [9]. In these circumstances, I will treat this additional ground as having been properly raised for consideration: Dare v. Pulham [1982] HCA 70; 148 CLR 658; R. v. Logan [2012] QCA 210 at [102]; [105] per White JA.

Facts 10The evidence before the primary judge consisted of a statement of agreed facts, a pre-sentence report by Ms. Judith Woldseth, a report of psychological examination by Ms. Anna Robilliard, the oral evidence of the applicant, and the written record of his prior criminal antecedents. 11There was no real dispute about the facts. At about 9:20 p.m. on 21st November 2010, the applicant and two others drove to the Fingal Trading Post at Fingal Head. They gained entry to the premises by smashing the glass front door with a concrete paver, which was found in the van driven by the applicant after his arrest. The offenders stole an esky and a quantity of wine. In the process a bottle was dropped, smashing on the floor. They escaped in the van, after being disturbed by a passerby. The total value of the stolen property was $350. 12About an hour later on the same night, the applicant and one other broke into the Palms Village Convenience Store at Tweed Heads South, again gaining entry by smashing the glass door with a concrete paver. They stole straw hats and snack food totalling $250 in value. 13Patrolling police who had received a description of the vehicle used in the earlier offence came upon the van at a boat ramp at Tweeds Head South. There was a pursuit during which the fleeing vehicle was all over the road. After about a kilometre, the applicant, who was driving the van, brought it to a halt and attempted to escape on foot, but was caught by police. A second occupant made good his escape. From their perception of his condition, the police formed the view that the applicant was drunk, but he refused a roadside breath test. He had never been licensed to drive. Police inspected the van, finding the property which had been stolen that night as well as a hat and a grocery basket which had been stolen from other premises by an unidentified person earlier on the 21st November 2010. These latter facts founding the Form 1 offence. 14The applicant's criminal record related to offences committed in the state of Queensland between 22nd June 1999 and 10th May 2010 including a number of break and enter, or burglary offences, some of which were committed when he was a juvenile, (the applicant having been born on 30th April 1982.) He had received terms of imprisonment for some of the offences as a juvenile, having been dealt with after he achieved his majority, and also a suspended sentence (after serving one month) in 2005. 15The Brisbane District Court had imposed a term of imprisonment of 12 months to be served by way of an intensive correction order upon him on 11th December 2009 for a burglary offence. A suspended sentence was imposed on 23rd March 2010 for a common assault conviction, the terms of which he breached on 10th May 2010 by committing a public nuisance. These orders for his conditional liberty seem to have become subsumed in a short term of imprisonment imposed on 11th May 2010. That sentence required his release on parole on 17th May 2010. The period on parole was not specified in the evidence before the primary judge. However, counsel who appeared on sentence, but not on appeal, conceded that the intensive correctional order was extant at the time of these offences (POS page 11.15). 16The pre-sentence report and the psychologist's report were not challenged in any way before the primary judge. The material contained in them evinced that the applicant was of Aboriginal heritage, though his father was a Pacific Islander. His mother, who had a problem with alcohol, raised him and from an early age the applicant abused alcohol and illicit drugs. His schooling was interrupted, but he had received an education to year 9 level. His employment history since leaving school was not impressive, but he had worked from time to time in the building industry. He had formed a relationship with the mother of his five children, who had three children from a prior relationship. At the time of the subject offending the family were housed in emergency accommodation provided by Housing New South Wales. His partner had her own difficulties with illicit drugs and, following the applicant's arrest, his children had gone into care. 17The Probation and Parole Officer was of the view that the applicant might benefit from a long term and intensive therapy program. She opined that he was suitable for a high level of intervention given his assessed risk of re-offending. He was unsuitable for a community service order because of his unresolved drug and alcohol dependency. 18The clinical psychologist expressed the view, based on the results of tests she administered, that the applicant's intelligence fell into the borderline category and that he had a high risk of re-offending. She agreed he needed high intensity programs in custody and post release. She said that the results indicated wide ranging problematic issues and behaviours. 19The applicant gave evidence (contrary to what he told the psychologist) that he had used illicit drugs occasionally whilst in custody awaiting sentence. He expressed a strong desire to rehabilitate himself to enable him to re-unite his family on his release. In cross-examination he said I have only got one aim in life at this point of time and that is to better myself so I can be a better father for my children.

Submissions below 20It is apparent from the transcript of the proceedings on sentence that the evidence of subjective circumstances to which I have referred was led to support what the primary judge identified as an application for an adjournment of the sentencing procedure to allow the applicant to undertake a six month residential rehabilitation program. Counsel then appearing also made detailed submissions in an attempt to have the primary judge see the extensive prior record in the best possible light. In view of the applicant's social background, counsel submitted that the primary judge could, to some extent, consider drug and alcohol use as actually a mitigating factor. Reference was made to R. v. Fernando (1992) 76 A Crim R 58, although counsel said: That's not a submission that I can make with as much force... [but] in my submission to some extent that's applicable in this case.

Remarks on sentence 21The learned primary judge made his remarks on sentence ex tempore, immediately at the conclusion of the proceedings on sentence. His Honour reminded himself of the maximum sentence and the standard non-parole period for the offences, in conformity with Muldrock v. The Queen [2011] HCA 39; 244 CLR 120 at 132 [27] - [30]. Having thus drawn these two legislative guideposts to mind, his Honour considered the objective seriousness of each offence together, presumably given their great similarity. He assessed them as not coming anywhere near mid-range at this type of offence (sic). I interpolate that it is not argued that by this verbal formulation his Honour contravened what the High Court of Australia said in Muldrock at 132 [28]. 22His Honour then turned to consider the facts, matters and circumstances which he considered bore upon the judgment that he was required to reach about the appropriate sentence to be imposed. Those matters included: (a) The Form 1 offence; (b) Credit for the early plea; (c) The submissions made in relation to providing an opportunity for the applicant to undergo rehabilitation in a residential facility before sentence was finally passed; (d) The applicant's unfortunate addiction to alcohol and drugs; (e) The applicant's age; (f) The applicant's previous record, which the judge described as bad ... involving, amongst other offences, burglaries; (g) The applicant's use of drugs in custody, which his Honour said he did not hold against him. Indeed he gave him some credit for his truthfulness; (h) His Honour accepted the applicant's strong desire to do something to help his children, which he regarded as a very strong motivation which is very much going to stay with him; (i) A twice-expressed reference to Fernando, in the context of the applicant's unfortunate background. He regarded those considerations as a principal reason for finding special circumstances. 23The primary judge decided against the application made for an adjournment to enable the applicant to undergo a residential rehabilitation program, because in his view there had been plenty of opportunity in the past. He decided that because of the seriousness of the subject offences, and the past history, taking the risk of rehabilitation programs would not be justified. Again, I interpolate no complaint is made about that part of the primary judge's decision. 24His Honour drew the various considerations together and concluded in the following terms (at ROS p4): ...despite the fact they are not midrange, [these offences] are still serious attacks on business people's property and they cannot be regarded lightly. Had it not been for the plea something in excess of five years would have been called for as a head sentence but I have to bear in mind the principles of Pearce and assess the overall position and identify individual sentences and so forth but of course what matters to the individual at the end of the day is what is the non-parole period. The overall situation here is that I regard the overall sentence to be one of four years but the non-parole period to be one of two and a half and that will be achieved in the following way; on count 1 three years imprisonment commencing 21 November 2010 and ending on 20 November 2013, the non-parole period on that, although part of it will be subsumed, would be 21 November 2010 to 20 February 2013. When I say part will be subsumed I mean part of the parole period because the sentence on count 2 is one of also three years imprisonment commencing 21 November 2011 and that will end on 20 November 2014, and the non-parole period for that offence will be from 21 November 2011 to 20 May 2013. That, on my mathematics, achieves an overall sentence of four years with a non-parole period of two and a half years, which is what I seek to achieve, taking into account the Form 1 matter as far as count 1 is concerned on the indictment. (Emphasis added).

Submissions on appeal 25Ms. Francis, who appeared in this Court, but not below, argued strongly that in categorising the applicant's criminal record as bad, his Honour misapprehended the facts. Properly understood, and putting to one side the offences committed whilst a juvenile, the record did not demonstrate real recidivism in the face of court imposed rehabilitation (4.30T). Having regard to his age (this was the first time that he was facing a substantial prison sentence as an adult), and, it was submitted, his strong subjective case attracting the Fernando principles, his prior record did not militate against leniency. Moreover, it was submitted, his Honour erred in principle, in treating the prior record as an aggravating factor, notwithstanding s.21A(2)(d) of the Sentencing Act. The proper use of antecedent criminal history of an offender continues to be governed by Veen v. The Queen [No. 2] [1988] HCA 14; 164 CLR 465 at 477. Ms. Francis argued that the applicant's prior history did not aggravate the offence, but was only relevant to show whether the instant offence was an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In which latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. 26In relation to Ground 2, Ms. Francis argued that s.54B(4) was governed by the reasoning of the High Court in Muldrock at 132 [29]. What was required was for the judge to identify fully the facts, matters and circumstances which the Judge considers bear upon the judgment that is reached about the appropriate sentence to be imposed. Counsel argued that the failure of the primary judge to properly articulate the applicant's strong subjective case demonstrated that his reasons fell short of that standard. 27Concerning the manifest excess ground, Ms. Francis argued that a notional starting point of about six years, before the discount for the early plea, in the all the circumstances demonstrated latent error of a type which supports the conclusion that the sentence is manifestly excessive: Hili v.The Queen [2010] HCA 45; 242 CLR 520 at 538 [59] - 539 [60]; Wong v. The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]. In all the circumstances, counsel argued, there must have been some misapplication of principle even though where and how is not apparent from the statement of reasons: Wong at 605 [58]. 28By reference to Pearce v. The Queen [1998] HCA 57; 194 CLR 610 at 623 [45] - 624 [47], either the totality principle was offended, or the learned primary judge failed to apply proper methodology: he should have fixed an appropriate sentence for each offence (in relation to Count 1 including the Form 1 offence) and then considered the questions of cumulation or concurrence as well, of course, as, questions of totality. 29Ms. Cinque for the Crown, argued that in reviewing his Honour's ex tempore remarks delivered in a busy regional court, one needed to bear in mind the position as summarised by Garling J (with the agreement of McClellan CJ at CL and McCallum J) in Gommesen v. R. [2012] NSWCCA 226 at [37] - [38]. The requirement was to read the remarks fairly and as a whole and not in an unduly technical way. She argued that, with regard to the antecedent criminal history, nothing in the remarks should be taken as suggesting that the primary judge had contravened Veen [No. 2]. On the contrary, read as a whole, his remarks demonstrated that he had applied that principle correctly. The explanation for the consideration that the applicant had not previously faced lengthy full time custody as an adult was to be found in the fact that he was continually treated with leniency in the sentencing for offences committed since he attained his majority (Crown submissions page 8 [45]). It was further submitted that there was no error in relation to the application of Fernando; arguably, his Honour's approach to that case was generous: R. v. Mason [2005] NSWCCA 403 McClellan CJ at CL (Adams and Johnson JJA agreeing, at [44] - [46]). It was submitted that his Honour neither misapprehended the facts nor made any error of principle. 30In relation to Ground 2, Ms. Cinque answered, by parity of reasoning with R. v. Dungay [2012] NSWCCA 197 at [29] - [32] per McCallum J (Macfarlan and Grove AJA agreeing), that reading the ex tempore remarks sensibly and mindful of ... context, it was clear that the learned trial judge had complied with the requirements of Muldrock in this regard. 31The Crown joined issue on the manifest excess ground: it was submitted that there was no latent error, and on the material available to this Court, it could not form a positive opinion that some other, less severe, sentence is warranted in respect of either offence: R. v. Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [79] per Spigelman CJ (Mason P, Grove J and Newman A-J agreeing; Sully J substantially agreeing). 32With regard to the "Pearce ground" the Crown argued that his Honour's approach would appear to comply with the aggregate sentencing provisions in s.53A of the Sentencing Act.

Consideration and decision 33I agree with Ms. Cinque's argument that an important starting point here - and indeed on all sentence appeals, especially those dealing with ex tempore reasons in a busy list - is the avoidance of the temptation to analyse the remarks too finely. To the cases referred to by Ms. Cinque I would add Simpson at 722 [90]; R. v. Majors (1991) 27 NSWLR 624 and 628; and R. v. Salameh (1991) 55 A Crim R 384 at 394 per Lee CJ at CL. These decisions in my judgment are a manifestation in this area of discourse of a broader principle which applies to judges as well as administrative decision makers: The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error (see Collector of Customs v. Pozzolanic [1993] FCA 456; 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v. Wu [1996] HCA 6; 185 CLR 259 at 287; Hall v. Van der Poel [2009] NSWCA 436 at [54]. 34It may be better to say that Pozzolanic, and the other decisions referred to, mandate an approach rather than establish a principle. As Hayne J said in Waterways Authority v. Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129] - [130] (citations omitted): Reference was made in argument to the "sufficiency" of the primary judge's reasons. When it is said that a judge did not give "sufficient" reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of the judicial officer "to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision". To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction. In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue. 35Moreover, in the present case, dealing as it does with an offence subject to a standard non-parole period, the general judicial obligation to state reasons is entrenched, as it were, by s.54B(4) of the Sentencing Act invoked by Ground 2. As Ms Francis correctly, with respect, pointed out, the content of that obligation extends beyond the mere grammatical meaning of the expression ma[king] a record of its reasons for increasing or reducing the standard non-parole period. In Muldrock at 132[29] to [30] the unanimous Court said: A central purpose of Div. 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. ...[s.54B(4)] does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed... The full statement of reasons for the specification of non-parole periods either higher or lower than the standard assists appellate review and in this way promotes consistency in sentencing for Div 1A offences. It may also increase public awareness of the sentencing process (footnote omitted). By reference to this passage, I conclude that the Pozzolanic approach must yield in an appropriate case to the legal obligation of the judge to identify fully the considerations which bore upon the sentence actually passed in the sense discussed by Hayne J in Fitzgibbon: by this I mean, applying the Pozzolanic approach, a court of criminal appeal will not fill in any gaps which appear from a balanced and fair review of the reasons actually expressed by a judge for the sentence in fact passed. 36Bearing in mind the approach I have described, I am not satisfied that the learned primary judge either misapprehended the facts or erred in principle in his treatment of the applicant's background and his antecedent criminal history. About the latter, the adjective "bad" was fairly open. Moreover, the proper principle discussed in Veen No. 2 was fairly engaged. His Honour was entitled to conclude by a reference to the record that the applicant has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. Accordingly, that consideration engaged the sentencing purposes of retribution, deterrence and protection of society (cf s.3A Sentencing Act) and accordingly warranted a more severe penalty (Veen [No. 2] at 477). Section 21A (2)(d) entitled the primary judge to reason in this way. 37And the reasoning in Fernando did not undermine the legitimacy of this approach to the applicant's antecedent criminal history. 38As Muldrock establishes, s.54B read as a whole requires of a sentencing judge the instinctive synthesis approach described by McHugh J in Markarian v. the Queen [2005] HCA 25; 228 CLR 357 at 378 [51]. His Honour, in my opinion, applied this approach. I am not satisfied that he failed to have regard to the subjective features upon which Ms. Francis, appropriately, placed emphasis before us. In my judgment, his Honour's two references to the "Fernando principles" make this clear notwithstanding that he did not quote from the pre-sentencing report or the psychologist's report. The phrase "Fernando principles" was, in an ex tempore expression of reasons for sentence, a permissible shorthand for the type of factors advanced on behalf of the applicant before us, especially given, with respect, trial counsel's palpable diffidence of expression before the learned primary judge. 39Adopting Pozzolanic, I would give full weight to his Honour's shorthand. In my judgment he did not overlook the applicant's subjective case. 40Some of the applicant's arguments on Ground 1 seemed to invoke "youth" as a relevant mitigating factor, which, it was said, the sentencing judge overlooked. In R. v. Mills [1998] 4 VR 235 at 241 Batt JA emphasised that youth, particularly for a first offender, should receive primary consideration by a sentencing judge; that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence; and that a youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The applicant was 28 at the date of the offences and 29 when sentenced. The observations of Rothman J in BP v. R. [2010] NSWCCA 159; 201 A Crim R 379 at [108] notwithstanding, I am not satisfied that the considerations identified by Batt JA have any application to the present case. 28 generally should be regarded as an age of maturity. 41I now turn to Ground 2. I have set out what I regard as the relevant principles already. I accept the accuracy of the applicant's arguments as to principle. At [22] hereof, I identified the factors that the learned trial judge considered bore upon the appropriate sentence to be passed for each offence. In my judgment, his Honour did not fail to observe the requirement imposed by s.54B (4), as expounded in Muldrock at 132 [29], to identify fully the facts, matters and circumstances which [his Honour] conclude[d] [bore] upon the judgment that he reached about the appropriate sentences to be imposed. I would reject Ground 2. 42Now is not the occasion to expound the full import of a successful argument that a sentence appealed from is affected by manifest excess. The authorities to which I have referred in summarising the arguments of the parties point out that a successful argument depends upon the Court of Criminal Appeal concluding that there is latent error. In Wong at 605 [58] the plurality said that such a conclusion depends upon the appellate court finding that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It is apposite to refer to such a matter as latent error. For the reasons I have already given, I am not satisfied that either sentence passed in relation to the individual offences the subject of this appeal is plainly unjust, or wholly erroneous, or outside the bounds of a sound discretionary range. I would reject this ground. 43This then leaves the question of the Pearce error. I think it worth setting out the whole of the passage at 623[45] - 624[49] from Pearce: To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process. Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation. Further, the need to ensure proper sentencing on each count is reinforced when it is recalled that a failure to do so may give rise to artificial claims of disparity between co-offenders or otherwise distort general sentencing practices in relation to particular offences. Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against "a sentence" it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the Court "is of opinion that some other sentence ... is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor" (Emphasis added). 44For the reasons already given, I could not form a positive opinion in respect of the individual sentences that fall for consideration that some other sentence ... is warranted in law and should have been passed. However, a question remains about their overall effect, or to put it another way, the questions of concurrency and accumulation. 45In my judgment, when one considers the passage from his Honour's remarks on sentence that I have emphasised at [24] above in the light of [45] of Pearce, it is clear that by first directing himself by the question "how long?" his Honour fell into error. 46The error is that his Honour inverted the process mandated by the concluding sentence to [45] of Pearce. He did not first fix an appropriate sentence for each offence and then consider the questions of cumulation or occurrence, and totality. Rather, his Honour first fixed a total or overall sentence and then, by an impermissible process of top-down reasoning, fashioned individual sentences for each offence to justify a result already arrived at. 47It was certainly open to his Honour to conclude that the relevant offences involved were incidents of an overall episode of criminality which engaged the totality principle, but by inverting the sequence in which the questions were to be addressed, I am of the view that his Honour failed to give due consideration to the appropriate sentence for each offence individually and also to the question of concurrence or cumulation separately. His Honour's approach impermissibly gave totality precedence over the logically anterior questions. 48I would reject Ms Cinque's argument that his Honour was aggregating the sentences under s53A of the Sentencing Act. He did not say he was proceeding in that way, and in fact pronounced two sentences rather than an aggregate sentence. He did not comply with s53A (2). 49Notwithstanding that I have found that the learned sentencing judge made an error of principle by inverting what might be referred to as the Pearce process, I am not of the opinion that any other sentence is warranted in law. As I have said, in my view, the individual sentences imposed were warranted. And even though the separate counts were each incidents in an overall episode of criminality they represented, nonetheless, separate offences: R. v. Merrin (2007) 174 A Crim R 100 at [38] - [43]; R v. XX (2009) 195 A Crim R 38 at [52] (especially sub par. [11]). It was clearly necessary that the sentence for the Count 1 offence also reflected the incorporation of the Form 1 offence; to that extent it needed to be somewhat more severe: R. v. Harris (2007) 171 A Crim R 267 at 274 [32]. His Honour sought to differentiate the sentences by imposing a longer non-parole period for the first. This was a permissible approach. Moreover, to punish the additional criminality inherent in the second count, some accumulation of sentences was required: Harris 275 [39] - [40]; and it was appropriate that the accumulation should be effected by extending somewhat the time that must be spent in prison. Otherwise there would be no effective extra punishment for the further offending. 50For these reasons, the orders I propose are:

1. Leave to appeal granted.
2. Appeal dismissed.

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