White JA, Bellew J, Wilson J, Bathurst J, Harrison J
Catchwords
(2013) 249 CLR 571
Markarian v The Queen [2005] HCA
(2005) 228 CLR 47
R v Dube (1987) 46 SASR 118
R v Henry (1999) 46 NSWLR 346
[1999] NSWCCA 111
R v Wong (1999) 48 NSWLR 340
[1999] NSWCCA 420
Texts Cited: Bagaric and Edrey, "The Sentencing Advisory Commission and the Hope of Smarter Sentencing": Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125
Source
Original judgment source is linked above.
Catchwords
(2013) 249 CLR 571
Markarian v The Queen [2005] HCA(2005) 228 CLR 47
R v Dube (1987) 46 SASR 118
R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111
R v Wong (1999) 48 NSWLR 340[1999] NSWCCA 420
Texts Cited: Bagaric and Edrey, "The Sentencing Advisory Commission and the Hope of Smarter Sentencing": Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125
Judgment (6 paragraphs)
[1]
Judgment
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Wilson J. I agree with those reasons which broadly express my reasons for joining in the orders of 8 June 2018.
In deference to the careful submission of Mr Ozen for the applicant I would add the following in relation to his argument on ground 3 of the proposed appeal, namely, that the sentence imposed on the applicant was manifestly excessive since it featured an element of general and specific deterrence. There were two limbs to Mr Ozen's argument. First, he submitted that the sentencing judge was in error in considering that he was obliged to have regard to specific or general deterrence. He submitted that the use of the word "may" in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) makes it clear that a judge has a discretion to determine which of the purposes set out in s 3A apply in a particular case. Section 3A provides:
"3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
Mr Ozen recognised that the guideline judgment in R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111 had as one of its objectives the attempt to promote general deterrence of crimes of aggravated robbery. He submitted that s 3A of the Crimes (Sentencing Procedure) Act that was introduced after the guideline judgment in R v Henry by its use of the word "may" recognised that deterrence may not be appropriate or effective in every case and it is within a judge's discretion to determine which of the purposes set out in s 3A in a particular case should apply. He submitted that s 3A has changed the approach that the courts can take to the question of deterrence.
Mr Ozen's submission then went further. He submitted that studies showed that, except in the case of white collar crimes, there is no evidence that increasing the sentence that would otherwise be applicable on account of principles of specific or general deterrence has a deterrent effect. Therefore, so the submission went, general or specific deterrence should not be taken into account in the sentencing of an offender unless there is evidence that increasing what would otherwise be the appropriate term of imprisonment would be likely to have a deterrent effect. In the absence of such evidence a sentencing judge should not take specific or general deterrence into account in assessing the appropriate sentence. Mr Ozen did not submit that deterrence would never have a role to play in sentencing. Rather he submitted that there was no evidence to support the proposition that an incremental increase in sentencing for the type of crime of which the applicant was convicted has any deterrent effect. He referred to a number of studies that showed that increasing the length of imprisonment did not have any impact on the rate of crime. One such study was that of Professor Weatherburn "The effect of prison on adult reoffending", Crime and Justice Bulletin BOCSAR, No 143, August 2010. That study addressed the specific deterrent effect of prison on offences of burglary and non-aggravated assault. Professor Weatherburn concluded that:
"After matching and statistical controls have been introduced, prison exerts no significant effect on the risk of recidivism for burglary. The effect of prison on those who are convicted of non-aggravated assault seems to have been to increase the risk of further offending. These findings are consistent with the results of overseas studies reviewed in the introduction to this bulletin, most of which either find no specific deterrent effect or a criminogenic effect",
and
"The consistency of the current findings with overseas evidence on the effects of prison on re-offending suggests that it would be unwise to imprison offenders when the only reason for doing [so] is a belief in the specific deterrent effect of prison." (at 10)
Mr Ozen also referred to a study of Wan et al., "The effect of arrest and imprisonment on crime", Crime and Justice Bulletin BOSCAR No 158, February 2012 which the authors said was one of only two studies to assess the joint effects of arrest risk, imprisonment risk and sentence length (at 15). The authors concluded that the criminal justice system exerted a significant effect on crime but some elements of the system exerted much stronger effects than others. They concluded: "Increasing the risk of arrest or the risk of imprisonment reduces crime while increasing the length of prison sentences exerts no measurable effect at all." (at 15-16) The authors expressed a qualification to this in the following terms (at 16-17):
"... Our results concern marginal rather than absolute effects. In other words, the effects of arrest risk, imprisonment risk and sentence length are the effects obtained when these variables are increased above their current levels ... our capacity to pick up marginal effects of the criminal justice system on crime depends critically on there being significant variation in our criminal justice variables over the time period covered by the study. The variation in average sentence length over this period was not especially large and it may be that sentence length exerts effects that we are unable to detect."
Mr Ozen referred to other academic studies that found no evidence of a direct correlation between the imposition of heavier sentences and rates of crime (Bagaric and Edrey, "The Sentencing Advisory Commission and the Hope of Smarter Sentencing": Current Issues in Criminal Justice, Vol 16 No. 2 (2004) 125, 132; Robinson, "The role of Deterrence in the Formulation of Criminal Law Rules: At Its Worst When Doing Its Best", University of Pennsylvania Law School, Penn Law: Legal Scholarship Repository, Georgetown Law Journal, Vol 91: 949 at 976 ff).
In R v Wong (1999) 48 NSWLR 340; [1999] NSWCCA 420 Spigelman CJ said (at [127]):
"[127] There are significant differences of opinion as to the deterrent effect of
sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter."
Mr Ozen submitted that s 3A of the Crimes (Sentencing Procedure) Act in its use of the word "may" was a legislative change that justified and, so he submitted, required, the Court not to have regard to the possible deterrent effect of marginal changes in sentence, unless there was evidence to support a conclusion that increasing the length of what would otherwise be an appropriate sentence would have a deterrent effect. Mr Ozen recognised that the guideline judgment in R v Henry proceeded on the basis that imposition of terms of imprisonment and imposition of longer terms of imprisonment than indicated in the then statistics could be expected to have a deterrent effect (at [109] and [110], [113]-[118], [123], [151]-[152], [205] and [207] per Spigelman CJ, [265] per Wood CJ at CL, [330] per Hulme J referring to R v Dube (1987) 46 SASR 118 at 119-120; [278] per Newman J).
A sentencing judge is not required to apply a guideline judgment. A guideline judgment serves the purpose of endeavouring to achieve consistency in sentencing so far as that is possible having regard to the multifarious differences between cases. But a sentencing judge who departs from a guideline judgment must explain his or her reasons for doing so (R v Henry per Spigelman CJ at 357, [31]).
The sentencing judge was not in error in adopting the assumption, consistently with s 3A(b), that both specific and general deterrence were relevant to fixing the sentence. Mr Ozen referred to two parts of the remarks on sentence. The sentencing judge said in relation to the applicant:
"The fact that she has a prior history and re-offended whilst on parole are factors that ... also indicate a need for considerable degree of specific deterrence to be incorporated in any sentence."
The sentencing judge did not say that irrespective of the facts of the case he was required to take specific deterrence into account in fixing the sentence. Rather, he said that by reason of the particular facts of the applicant's circumstances there was a need for specific deterrence to be incorporated in her sentence. Section 3A permitted the sentencing judge to take this factor into account without the need for evidence as to the likely specific deterrent effect of the sentence.
Mr Ozen also relied upon the following remark:
"In sentencing the offender I take into account for purposes as set out in s 3A of the Crimes (Sentencing Procedure) Act. As I have noted general and specific deterrence are significant factors that should be taken into account when sentencing for this type of offence. These offences are prevalent and there is a need to dissuade others by imposing appropriate sentences."
The sentencing judge did not say that he had no choice except to take general deterrence into account in fixing the sentence. Rather, he considered it appropriate to do so having regard to the need to dissuade others by imposing appropriate sentences.
The argument advanced by Mr Ozen is that although s 3A provides that the sentencing judge may take general deterrence into account in fixing a sentence, the sentencing judge cannot do so unless there is evidence that to increase for reasons of general deterrence what would otherwise be an appropriate sentence is not authorised. Section 3A does not bear that construction. To the contrary, it entitles the sentencing judge to assume that specific or general deterrence is a relevant factor in sentencing without requiring proof that that is so. Section 3A retains the legislative imprimatur to which Wood CJ at CL referred in R v Henry at [265]. Whether the assumption upon which s 3A(b) is enacted is justified is a different question. The extra-judicial speeches of the Chief Justice and of Harrison J to which Mr Ozen referred (Chief Justice Bathurst, "Beyond the Stocks - a Community Approach to Crime", Keynote address to the Legal Aid Conference, 1 August 2012 and Justice Harrison, "Sentencing Conference Speech, Australian National University, 8 February 2008) did not support the applicant's submission as to what the law is in relation to specific or general deterrence in sentencing, as distinct from what the law should be. As Wilson J says, what the law should be is a matter for the legislature.
For these reasons the sentencing judge was not in error in taking both specific and general deterrence into account in fixing the sentence. That is not to say that he was required to take those matters into account. Specific and general deterrence are relevant considerations under s 3A(b), but they are matters that "may", not must, be taken into account. The extent that it is appropriate to take those matters into account is a matter for the determination of the sentencing judge which might be influenced by the existence or absence of any evidence as to the likely deterrent effect, either specifically or generally, of an increase in what would otherwise be an appropriate sentence. But the applicant did not demonstrate error in relation to the sentence imposed by the sentencing judge.
For these reasons, and those reflected in the reasons of Wilson J, I concurred in the orders made.
BELLEW J: I agree with Wilson J.
WILSON J: The applicant, Chantelle Weribone, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon her on 21 September 2017 for the offence of robbery in company. That offence, contrary to s 97(1) of the Crimes Act 1900 (NSW), carries a maximum penalty upon conviction of 20 years imprisonment.
The applicant having pleaded guilty in the Local Court, Hanley SC DCJ imposed a sentence of 3 years imprisonment upon her, with a non-parole period ("NPP") of 18 months specified. The sentence, which imported a discount of 25% to reflect the early entry of the plea, commenced on 23 February 2017, the date upon which the applicant entered custody. The NPP will expire on 22 August 2018.
A Notice of Intention to Appeal was filed on 10 November 2017, within the extended period allowed by the Registrar. The Notice of Appeal was filed on 24 April 2018, also within the extended time allowed.
If granted leave, the applicant advances two grounds of appeal, the intended ground 1 being abandoned at the hearing before the Court. They are:
1. Abandoned;
2. "The sentencing judge proceeded upon the basis of a material error - being an erroneous belief that the applicant would be allowed to keep and look after her soon to be born child whilst serving any sentence of imprisonment"; and
3. "That the sentence imposed was manifestly excessive, in particular since it featured an element of general and specific deterrence".
At the conclusion of the hearing, the Court made orders refusing the applicant leave to appeal. These are my reasons for joining those orders.
[2]
The Facts of the Offence
Agreed facts were tendered by the Crown on sentence, and the sentencing judge drew his recitation of the facts of the offence from that document.
The victim of the applicant's crime, Sahil Saini, struck up an online friendship with the applicant's co-offender, Sheree Whitton, on a social media website. After some on-line exchanges between Mr Saini and Ms Whitton, an arrangement was made to meet at an early hour on 12 February 2017 at an address in Willmot.
On driving to the address, Mr Saini was met by Ms Whitton and the applicant. The three then drove to a shopping area, where Mr Saini gave Ms Whitton $100 to purchase some drinks. She returned with drinks and other items, but did not give the victim any change from the $100. The three then drove back to Willmot, going into a residence in Van Diemen Avenue. Inside the premises were Ricky Whitton and a female named as Melissa.
Mr Saini sat in the lounge room of the house speaking with Melissa, whilst the applicant and Ricky Whitton went in and out of the house. The co-offender went to another room to change, in preparation for attending a club. When she returned Mr Saini asked Ms Whitton for his change, but she said that Ricky had taken it and run off. She walked away.
Mr Saini saw Ricky Whitton near his car and went and spoke to him, asking for his money. Ricky denied having it. The applicant then approached and spoke to the victim, asking to borrow his mobile telephone. He handed over the telephone and the applicant appeared to call and speak to someone. She told Mr Saini that her cousin had his money, and they had to drive to a nearby location to get it. She said that Ricky would accompany them. She still had the telephone, and continued to speak into it.
Mr Saini, the applicant, and Ricky Whitton got into Mr Saini's car and drove a short distance. On getting out of the car, the applicant continued to speak into Mr Saini's telephone. They waited for a period, after which the applicant told Mr Saini that his money would be recovered, but they needed to walk further along. She then held out Mr Saini's mobile telephone, at which point Ricky Whitton grabbed it and ran off.
The victim confronted the applicant about the theft of the phone, but she told him she would help him get it back. She said "Give me $500 and I will get your phone". He accompanied her to a house, where they saw Sheree Whitton and Ricky Whitton. The applicant told them, "We're going to get $500 for the phone". Ricky Whitton gave the telephone to the applicant, and she pocketed it.
The four then walked to Mr Saini's vehicle and the applicant directed him to drive to a bank to use the automatic teller machine. When he did not have a card to access the machine, the applicant returned his telephone to him so that he could use it to access funds without a card. When he used the feature, it was seen that he had no money in his bank account.
He offered to drive to his home to obtain the $500. When the applicant tried to take his telephone from him, he held onto it. She then pushed Mr Saini against a wall of the bank, and she and Sheree Whitton began to kick and punch him. He was struck to the head and face area at least twenty times, and kicked at least twice by the women. During the assault, Mr Saini's car keys fell from his pocket and the applicant picked them up. She threatened to smash his car, and demanded his telephone.
The applicant picked up a glass bottle from the ground and held it above her head. She demanded that Mr Saini give her his telephone, threatening to take his car and sell it. He handed over the telephone, giving it to the co-offender. After returning the car keys, the applicant and Ms Whitton ran off, with Mr Saini giving chase. When he caught the applicant by grasping a bag that she was carrying, she and her co-offender again punched Mr Saini to the head and face.
The applicant slipped out of the bag and the two women fled.
Bystanders assisted Mr Saini, who had blood running down his neck, a cut to his head, and a further cut to an eyebrow.
The applicant was arrested on 23 February 2017. She told police that she had been helping the victim to recover his telephone. She claimed that he had assaulted her.
[3]
Ground 2: The sentencing judge proceeded upon the basis of a material error - being an erroneous belief that the applicant would be allowed to keep and look after her soon to be born child whilst serving any sentence of imprisonment
This ground is based upon a misreading, or misunderstanding, of the sentencing judge's conclusions and findings on this subject, and may be quickly dealt with.
When she appeared for sentence, the applicant was eight months pregnant. The issue of what might happen to the child after the applicant's confinement was a feature of the case on sentence. A pre-sentence report had been earlier ordered by the sentencing court, with a specific request for information as to the prospect of a newborn being accommodated in custody. When produced, the report failed to address the issue.
The matter was discussed during the proceedings on sentence, with some information being conveyed to the sentencing judge about the possibility of suitable accommodation being available to the applicant and her child in custody. The applicant's representative, referring to a special mother and child unit within the custodial system known as Jacaranda House, told his Honour that "the child can stay there until school age". His Honour returned,
That's what I thought. Yes. It used to be that way.
The representative for the Crown added,
The only constraint is accessing the unit. I presume there's limitations as [to] numbers, and there'd also be just assessment process, I suppose, but other than that, your Honour, that appears to be promising. […] We don't have any information about whether there's any places […].
Soon after that exchange, the offender gave evidence on sentence. She was asked about Jacaranda House and her understanding of the programme offered there to mothers and children. She deposed,
If I get approved to go there, I get to go there with my baby […] so I can try get a house and stuff there too.
When asked if Jacaranda House would assist her when she was close to finishing her sentence, the applicant said "When I'm cap [sic, cat, or category] 2".
She later said,
I'm just trying to get into Jacaranda so I can get a house there […]
In his remarks on sentence, delivered ex tempore, the sentencing judge said,
I note that the material before me indicates that her child can be born in custody and that she can be cared for in custody by the offender, certainly during the period of time that I propose to sentence her to.
The applicant was not subsequently admitted to Jacaranda House; her child was removed from her by the Department of Family and Community Services two days after the birth and placed under the parental responsibility of the Minister, pursuant to a Court order.
The applicant complains that the sentencing judge was "invited" to proceed to sentence on the assumption that she would be able to keep her child with her in custody. The applicant submits,
The sentencing judge was under a misapprehension, based on his own experience, and what he had been told by counsel for both the applicant and the Crown, that she would be admitted to Jacaranda House.
The sentencing judge in fact reached no conclusion that the applicant "would be admitted" to a custodial facility where she would be able to keep her child. The language used in the sentencing judgment was that of possibility, not certainty. If his Honour did draw upon his own experience (and there is nothing in the judgment to support that conclusion) he would have well understood that placements to Jacaranda House are few, infrequently available, and available only to a limited range of prisoners. There was no guarantee that the applicant would be housed there, and permitted to keep her child; those facts doubtless explain his Honour's use of the word "can" rather than "will" in the impugned section of his judgment, extracted at [26].
The applicant in her evidence seems to have herself well understood that admission to Jacaranda House and the maintenance of her child was uncertain, and dependent upon her being assessed as "cat 2".
The applicant seeks to rely upon an affidavit sworn by her solicitor, Carli Rothman, on 24 April 2018, in which Ms Rothman relates the results of inquiries made of the Manager of the Mothers and Children Programme at Emu Plains Correctional Centre, to the effect that a "CAT 3", or category 3 prisoner, as the applicant was at the time of sentencing, would not be considered for placement at Jacaranda House.
The Crown objects to the Court receiving Ms Rothman's affidavit, since the evidence contained within it is not fresh evidence, in that it was evidence that would have readily been available to her during the sentence proceedings, had the inquiry been made.
Ultimately, there is no basis upon which to grant leave to the applicant to adduce this evidence, since she has failed to establish that the sentencing judge made a material error in the conclusions he reached relevant to the imposition of sentence.
His Honour proceeded to sentence on the basis that the applicant's admission to Jacaranda House was not certain, being a possibility only. He also had the benefit of the applicant's evidence that she could only access the programme offered there if she was accepted, and if she was assessed as a category 2 prisoner. There was no material error.
[4]
Ground 3: That the sentence imposed was manifestly excessive, in particular since it featured an element of general and specific deterrence
The applicant contends that, in imposing a sentence of 3 years imprisonment with a NPP of 18 months for the offence of robbery in company, his Honour fell into error, because that sentence is plainly unjust. In particular, it is asserted that the sentencing judge wrongly concluded that he was obliged to impose a sentence that imported a significant element to reflect the principles of specific and general deterrence. It is submitted that
"it is no longer imperative for courts to impose sentences with 'deterrent' purposes".
The applicant has referred to and relies upon a range of judicial speeches, jurisprudential literature, and statistical analyses to make good a proposition that the effectiveness of deterrence as an element of sentencing practice is questionable, and courts should no longer determine sentences with that element in mind, absent specific evidence of its utility. It is argued that the use of the word "may" in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates to remove the long established sentencing principles that apply with respect to specific and general deterrence, and that the sentencing judge erred in importing an element of each in sentencing the applicant. The applicant,
[…] does not submit that the sentencing judge could not in the appropriate exercise of his discretion, have imposed a gaol term for this offence. Indeed, the other purposes of sentencing set out at s 3A provide ample scope for sentencing judges to impose sentences that punish offenders for their actions, and promote the protection of the community, and where appropriate, affirm the dignity and worth of victims. What is an error, is the fact that what the sentencing judge considered was an appropriate sentence, His Honour then felt compelled to increase it. The sentencing judge increased the otherwise appropriate sentence because of the oft-asserted need to impose a deterrent sentence, with little or no evidence to support the utility of such an incremental increase. That is not to say that sentences should never incorporate a deterrent component, only that if courts are to impose penalties with such a component, they should do so on the basis of some evidence that the increase will in fact have that effect.
It is not necessary to consider this argument further other than to observe that there is no support for it in authority, or in the wording of s 3A of the Crimes (Sentencing Procedure) Act. If long standing law is to be overturned, something rather more than the adoption of a modal verb in a section of a statute will be required. Such a significant change to legal principle would have to be clearly stated by the legislature.
In any event, the applicant's contention that the sentencing judge determined the sentence to be imposed upon her on the basis that he was required to increase an otherwise appropriate sentence to reflect the principles of specific and general deterrence has not been made good. It is of some significance that the applicant has not pointed to any statement made by his Honour in which such an obligation was cited.
It is clear from the sentencing judgment that, having first made a careful assessment of both the objective and subjective matters relevant to sentence, his Honour concluded that it was necessary, in the applicant's case, and having regard to the circumstances of the offence, for specific and general deterrence to play a role in the sentence to be imposed. That was a conclusion well open to his Honour, in the exercise of the sentencing discretion.
In concluding that an element of specific deterrence should be incorporated into the sentence, the sentencing judge referred to the fact that the applicant was subject to parole at the time of the offending conduct, having been released from custody on 2 January 2017, and committing this offence on 12 February 2017. His Honour observed that there was "a need for [a] considerable degree of specific deterrence to be incorporated" into the sentence.
Having earlier referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, in which it was said of the other offence created by s 97(1) of the Crimes Act, at [99] by Spigelman CJ that,
Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment,
the sentencing judge observed that both general and specific deterrence were significant factors that he concluded should be taken into account. It was open to him to so conclude, and wholly consistent with authority. There was nothing in the applicant's subjective case that made it inappropriate or wrong to do so.
The applicant could lay claim to a degree of leniency by reference to the deprived circumstances of her later childhood, and did so. Initially brought up by her grandparents in a loving and stable home, the applicant's situation changed markedly with the death in 2009 of her grandmother, when she was aged about 14. The applicant was placed with her mother, and was thereafter exposed to alcohol abuse, domestic violence, and material deprivation. The sentencing judge set out at considerable length those features of the applicant's case which called for mitigation of sentence.
It is notable that his Honour specifically "tempered" the application of the principles of specific and general deterrence because of the applicant's deprived background, referring to the principles laid down in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571.
The sentencing judge was clearly well aware that deterrence may have a lesser role to play when sentence is imposed upon an individual from a deprived and disadvantaged background. It was, however, open to him to conclude that it remained a relevant feature to some extent.
I am unable to conclude that the sentence imposed upon the applicant for what was a violent robbery was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA; (2005) 228 CLR 47 at [25]. Indeed, it was one which, in my view, extended to the applicant a marked degree of leniency, leniency given further emphasis by the finding of special circumstances in her favour, and the fact that the sentence ran concurrently with an unrelated term of imprisonment the applicant was already serving, wholly subsuming that other sentence.
[5]
Conclusion
I consider the application for leave to appeal to be without merit. Given that conclusion, I joined the orders made by the Court on 8 June 2018.
[6]
Amendments
08 August 2018 - [52] quotation marks added to quote
[58] from [58] the para numbers change
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Decision last updated: 08 August 2018