Warwick v R

Court of Criminal Appeal (NSW)|2016-08-10|Before: Payne JA, Hulme J, Adamson J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2014/321688 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 14 September 2015 Before: King SC DCJ File Number(s): 2014/321688

The facts

The Crown provided the following helpful timeline of events which sets out in chronological order the applicant's offending history and the timing of the sentences imposed: DATE EVENT 22 June 2010 Applicant commits a break, enter & steal. Applicant commits the present offence. 28 August 2010 Police subsequently take a swab from an orange juice container as well as a baseball cap which had fallen from the applicant's head during the struggle. Two unexecuted bench warrants existed at the time the offence was committed for offences of drive whilst disqualified and bring syringe into place of detention. 5 September 2010 Applicant commits a further aggravated break & enter & commit serious indictable offence, and an offence of goods in custody. 6 September 2010 Applicant admitted into custody bail refused re 5 September 2010 offences. 11 December 2010 Applicant released to bail re 5 September 2010 offences. 1 February 2011 Applicant admitted into custody. 5 February 2011 Applicant released to bail. 15 April 2011 Applicant admitted into custody. Applicant sentenced for 5 September 2010 offences as follows: 17 June 2011 Aggravated break & enter & commit serious indictable offence: 2 yrs 3 mths from 4.3.11 to 3.6.13; NPP 9 mths to 3.12.11. Goods in custody: Taken into account on Form 1 for above offence. 3 December 2011 Applicant released to parole re 5 September 2010 offences. 22 May 2012 Whilst on parole for the offences committed on 5 September 2010, the applicant commits the following offences: steal property in dwelling house; break & enter with intent to steal; destroy or damage property; goods in custody; enter enclosed land. 23 May 2012 Applicant admitted into custody bail refused re 22 May 2012 offences. Applicant sentenced for 22 May 2012 offences at Gosford Local Court as follows: Steal property in dwelling house: 18 mths from 22.11.13 to 21.5.15; NPP 3 mths to 22.2.14. 10 July 2012 Break & enter with intent to steal: Fixed term 18 months from 22.5.12 to 21.11.13. Destroy or damage property: Fixed term of 3 mths from 22.5.12 to 21.8.12. Goods in custody: Fixed term of 3 mths from 22.5.12 to 21.8.12. Enter enclosed land: Section 10A conviction with no other penalty. 21 February 2014 Applicant released to parole. 1 July 2014 Police are notified that the DNA sample obtained from the orange juice container and the baseball cap provided a match with the applicant. 31 October 2014 The applicant was charged with the present offence and then released the following day on bail. 21 May 2015 Parole order for the 22 May 2012 offences expired. 3 June 2015 Plea of guilty at Wyong Local Court. 4 September 2015 Sentenced at Gosford District Court and admitted into custody.

The sentence hearing

The Crown tendered the agreed facts from which the following narrative is taken.

The agreed facts

On Saturday 28 August 2010 Marguerite Sammut went out to dinner while her husband, Paul and three-year old son, Charles remained at home. When she returned she and Paul went to bed. Some time between 2 and 2.30am she woke up when a bathroom light was turned on. She heard footsteps and got up to investigate. When she came to the lounge room she saw that the light was on and the cabinet doors were open. She also discovered the kitchen door and window were open. She went to check on Charles and saw that he was sleeping. She returned to her bedroom to wake up her husband. Paul took a torch and went out to the back to the garage. He saw the applicant leaning into the back seat of the car. Paul called out "Oi". The applicant came towards him and struck Paul on the head with an object believed to be a torch. There was a struggle between the two men in the course of which Paul said, "I just want my stuff, my wallet and my keys."
In the meantime Marguerite came out and grabbed the applicant around his legs with both arms. When he tried to lift his leg out of her grip she said, "Stop it, I am pregnant." Paul, who was concerned for his wife's safety, released the applicant who ran off through the open garage door. In the course of the struggle the applicant's white baseball cap fell to the ground. He failed to retrieve it when he left.
Paul suffered a cut to his head which required stitching. He was taken to Gosford Hospital by ambulance. Although the applicant had taken a large amount of property and put it in the Sammut's car, the only property actually taken was Paul's set of house keys. Among the items found in the car was an open orange juice container which had not been put there by the Sammuts. A swab was taken from the orange juice container as well as from the baseball cap. In July 2014 the police were notified that the swab matched that of the applicant. He was arrested on 31 October 2014.

Other evidence at the sentence hearing

The Crown tendered the applicant's criminal history which included the offences set out in the time line above. A pre-sentence report dated 2 September 2015 was also tendered which recorded a history of offending largely as a result of drug abuse. The report recorded: "Mr Warwick recently completed a period of parole supervision throughout which he demonstrated a positive attitude and was compliant with supervision requirements. Mr Warwick appears to have developed significant insight into his offending and the underlying factors, primarily drug use."
The report recorded that the applicant lived in a caravan park which was managed by his mother and run by his family. These living arrangements provided him with physical, emotional and financial support as well as an occupation in which he could usefully engage notwithstanding his acquired brain injury and back injuries. The report noted the following with respect to the applicant's drug use: "Mr Warwick cited a long history of substance abuse particularly heroin. He acknowledged that at the time of the offences he was abusing heroin and the offences related to his need to obtain drugs. Since the offences, Mr Warwick stated that by having been incarcerated for other offences and involved in the Drug Court process he has gained insights into his drug abuse and offence history. These insights have prompted him to engage in several treatment options and reportedly achieve abstinence from illicit substances. Mr Warwick is currently involved in the Opiate Treatment program provided by local Drug and Alcohol services. Mr Warwick has made positive steps to address his drug use and claims abstinence since approximately 2012."
The applicant's counsel tendered a report of Dr Ian Nisbet, forensic psychologist, dated 28 August 2015. Dr Nisbet reported that the applicant appeared to have "reached a point of relative stability in his life and his involvement in criminal activity is on a downward trend". Mr Nisbet noted that the applicant had recently completed a period of parole supervision, which suggested that he might be a good candidate for a community-based sentencing option. Character references from the applicant's parents and Kristy Coleman, the mother of the applicant's three children, were also relied upon. The applicant's parents wrote that, since being released from goal in February 2014, the applicant had lived at the caravan park with them and that he had been a model father to his three children who come to stay at the caravan park every school holidays. Ms Coleman stated that she was prepared to allow her three children to stay with him for up to two weeks in the school holidays, which she would not do if she did not trust him completely.
The applicant gave evidence at his sentence hearing. He said that he did not particularly recall the circumstance of the offence but accepted his guilt. He gave evidence as to his life at the caravan park with his parents; his focus on his children; his continued participation in the methadone program; and his regret about what he did. He said that he no longer has anything to do with people who take drugs and, instead, associates with his family and "decent people".
The applicant's counsel made submissions as to the extent of the applicant's rehabilitation and noted that he had not committed any further offences since being released from custody in June 2013. He also referred to the delay in obtaining the DNA match, which was not obtained until July 2014 and which led to his being charged on 31 October 2014. It was submitted on behalf of the applicant that, had he been sentenced for this offence in 2010, it would have been difficult to paint a positive picture to argue against a custodial sentence but that in light of the fact that the applicant "has made some very positive steps to getting himself on the straight and narrow", his rehabilitation since that time ought be taken into account in his favour.
The Crown addressed the question of delay in the following terms: "Your Honour has noted the delay in this matter, not being a delay in prosecution but a delay in charging and it is noted that in that time the offender has done enough to impress on the authors of two reports that he is attempting to turn his life around and at least one of those authors deals regularly with offenders in terms of assessing them. However given the seriousness of the offence it is the Crown's respectful submission that this is one that must attract full-time custody although it is conceded it is perhaps open to your Honour given the material before the Court that there would be a finding of special circumstances being prospect of rehabilitation."
Neither counsel at the sentence hearing referred to the effect of the principle of totality on the proposed sentence, having regard to the sentence that had been imposed for the September 2010 offences.
Following the conclusion of the hearing, the sentencing judge delivered an ex tempore judgment.

The remarks on sentence

The sentencing judge noted the maximum penalty and the standard non-parole period. His Honour recorded the agreed facts. His Honour noted that there were persons present in the home and that the applicant was presumed to be aware of that fact: s 105A(2A) of the Crimes Act. His Honour assessed the objective seriousness of the offence as falling within the midrange. The sentencing judge noted: "The offender's DNA being matched in July 2014 resulted in his being arrested on 31 October 2014. He was however released, having spent one day in custody. It was not until seven months after he had been arrested that he entered his plea of guilty in the Wyong Local Court on 3 June 2015."
His Honour allowed a 25% discount for the utilitarian value of the applicant's plea of guilty. His Honour addressed the applicant's subjective history and criminal history. The sentencing judge said, of his post-release period: "Since February of 2014, when he was released, he has committed no further offences. He has of course had the added incentive for not committing offences that he was not only on parole for part of that period, but that he was subsequently charged with this offence in October of 2014, which must have acted as an added encouragement not to commit further offences and to take stock of the course of his life."
His Honour said that the risk of re-offending remained significant since, as the applicant was on a methadone program, he was free of prohibited drugs but had not yet become free of their replacements. As to rehabilitation his Honour said: "It has been argued on behalf of the offender by Mr Newton that specific deterrence must take a lower role than might usually be the case because of what he has argued is his client's effective rehabilitation over the last 15 months. I do not agree with that. In my view, specific deterrence in relation to this offender, considering his past history, remains a significant consideration in respect of sentence."
His Honour accepted the applicant's expressions of remorse "but not without some misgivings". His Honour also referred to general deterrence. His Honour accepted that the applicant was at low to medium risk of re-offending.

The grounds

Although the parties have addressed the two grounds together, they are logically distinct and need to be considered separately.

Ground 1: failure properly to take into account the progress of the applicant's rehabilitation

The applicant argued that he had taken significant steps towards his rehabilitation by the time of the sentence hearing and that these were not adequately taken into account by the sentencing judge.
Because the sentencing exercise is a discretionary one, the weight to be given to relevant considerations was a matter for the sentencing judge: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [75]-[77]. Evidence was adduced and submissions made as to the progress of the applicant's rehabilitation. His Honour referred to this evidence and these submissions and found that, while the rehabilitation progress had started, he could not view the prospects of rehabilitation as being good because the applicant was still on methadone. This was a view that was open to his Honour whose reasons for coming to that view are apparent from the remarks on sentence. His Honour took into account the progress of the applicant's rehabilitation; the weight to be accorded to that factor was a matter for his Honour.
I do not consider this ground to have been made out.

Ground 2: Failure to apply the totality principle

It was common ground that the principle of totality had not been raised either by the applicant or the Crown at the sentence hearing. The Crown contended that, for this reason, this Court ought not entertain the applicant's second ground and relied on Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [75]-[83] per Johnson J (McClellan CJ at CL agreeing). The applicant accepted that it ought to have been raised but contended that the principle of totality was so fundamental to the sentencing process that leave ought to be granted to argue this ground.
It is regrettable that the principle of totality was not raised before the sentencing judge. His Honour was entitled to expect, and receive, greater assistance than was provided. However, the principle of totality is not properly classified as a "mitigating factor" (which was what Johnson J was addressing in Zreika) which needs to be brought forward on behalf of the applicant in a sentence hearing before a sentencing judge is required to take it into account.
The principle of totality is, in my view, so fundamental that the failure to apply it will necessarily lead to error. A sentencing judge is required as a matter of law to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J). As Giles JA said in Wu v R [2011] NSWCCA 102; 211 A Crim R 88: "52 Application of totality principles is not a matter of leniency. . . 53 The cases have well recognised that totality principles are applicable where there is separate and later sentencing for one of a number of offences of similar character committed in the same episode of criminality, beyond where the delay was due to an interstate element or otherwise because of the operation of the criminal justice system."
The importance of the sentencing task being undertaken in accordance with correct principle was emphasised by Gummow J in Pearce v The Queen (1998) 194 CLR 610 at [46] in the following passage: "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."
As can be seen from the timeline reproduced above, the present offence (the August 2010 offence) was committed by the applicant about a week before a similar offence (the September 2010 offence). However, because the DNA match was not made until July 2014, the applicant was charged, convicted and served his sentence for the September 2010 offence before he was even charged with the August 2010 offence. Had the DNA match been made earlier he would probably have been sentenced for the August 2010 and the September 2010 offences at the same time and could have expected a degree of concurrency to operate between those offences because they were so similar and proximate in time.
Where, as in the present case, a sentencing judge imposes a sentence on an offender who has already been sentenced by another judge, the second judge must not only regard the first sentence as an appropriate exercise of the first judge's discretion, but must also seek to determine what the overall sentence would have been had the offender been sentenced at the one time for all offences: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [99] (Spigelman CJ, Whealy and Howie JJ). The difficulty of this task imposes an additional obligation on counsel to provide assistance as to how the principles of totality ought operate in the particular case.
The correct application of the principle of totality serves to remove from consideration arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced later for an offence committed earlier than one for which he has already been sentenced. The totality principle has the effect that, if all other things were equal, the total sentence imposed on the applicant for the August 2010 and the September 2010 offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences.
Because of the significant delay between the commission of the August 2010 offence and the sentencing of the applicant for that offence, there was material available to the sentencing judge that would not have been available had he been sentenced for that offence at the same time as he was sentenced for the September 2010 offence. For example, the material relevant to his rehabilitation in the interim would not have been available. Nonetheless, the question for the sentencing judge in the present case was: having regard to the sentence imposed for the September 2010 offence, what additional penalty is required to be imposed for the commission of the August 2010 offence, taking account all relevant circumstances, including the applicant's progress towards rehabilitation in the interim period. The sentence imposed for the September 2010 offence was a matter that the sentencing judge was required to take into account when sentencing the applicant as part of the so-called "instinctive synthesis": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 384-388 per McHugh J.
In my view, the sentencing judge failed to ask the correct question because his Honour's attention was not drawn to the sentence for the September 2010 offence in the context of the totality principle. For these reasons I consider his Honour's discretion to have miscarried.

Re-sentence

It is, accordingly, necessary for this Court to exercise its own discretion to re-sentence the applicant in accordance with the totality principle: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. The delay is also a significant factor to be taken into account in this respect.
The applicant relied on R v Todd [1982] 2 NSWLR 517 which concerned an appeal against a sentence imposed on an offender in New South Wales which disregarded a sentence imposed for similar offending that had occurred in Queensland during the same period. This Court allowed the appeal against sentence and imposed a lesser sentence on the ground that the sentencing judge ought to have taken into account the Queensland sentence. Street CJ said at 519-520: "It would be both relevant and material to pay regard to the totality of the imprisonment being visited on the appellant in consequence of the totality of his criminality over this period of eight days of committing offences of similar character. . . . Moreover, where there has been a lengthy postponement, whetherdue to an interstate sentence or otherwise, fairness to the prisoner requiresweight to be given to the progress of his rehabilitation during the term of hisearlier sentence, to the circumstance that he has been left in a state ofuncertain suspense as to what will happen to him when in due course hecomes up for sentence on the subsequent occasion, and to the fact thatsentencing for a stale crime, long after the committing of the offences, callsfor a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often leadto considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter ofsentence; at times this can require what might otherwise be a quite unduedegree of leniency being extended to the prisoner."
R v Todd was cited with approval by the High Court in Mill v The Queen (1988) 166 CLR 59 at 64-65. In Postiglione v The Queen, the correctness of the statement of the totality principle in Mill v Queen was confirmed (at [342] by Kirby J).
It is not to the point that the applicant could have, but did not, volunteer information about his commission of the August 2010 offences when charged with the September 2010 offences. To take this matter into account against the applicant would be inconsistent with his right to silence: Wu v R at [52]-[53] per Giles J. The totality principle applies, even where the separate and later sentencing is as a result of the offender remaining silent about earlier offending for which he was later charged and sentenced.
I note that the sentencing judge applied a discount of 25% for the plea of guilty and altered the statutory ratio between the non-parole period and the total term under s 44(2) from 75% to 50% on the basis of a finding of special circumstances. In the exercise of my discretion on a re-sentence, and having regard to the principle of totality and the delay between the offending conduct and the time of sentence, I propose a sentence of two years, commencing on 3 September 2015 and concluding on 2 September 2017, with a non-parole period of one year. The date on which the applicant is to be released on parole would be 2 September 2016.

Proposed orders

I propose the following orders: 1. Grant leave to the applicant to appeal against the sentence imposed on him on 4 September 2015. 2. Allow the appeal. 3. Quash the sentence imposed on the applicant by the District Court on 4 September 2015 and instead impose in substitution a sentence of two years commencing on 3 September 2015 and expiring on 2 September 2017, with a non-parole period of one year commencing on 3 September 2015 and expiring on 2 September 2016. 4. The applicant is to be released on parole on 2 September 2016, being the end of the non-parole period. Parole is to be subject to the standard conditions prescribed under the Crimes (Administration of Sentences) Act 1999 including as to supervision by the Probation and Parole Service.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2016

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