Appeal Dismissed: Sentence Not Manifestly Excessive

The Court of Criminal Appeal dismissed an appeal challenging a sentence for aggravated break enter and steal offences, finding the sentence was not manifestly excessive after considering the principle of totality and parity.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2013] NSWCCA 33 Hearing dates: 12 December 2012 Decision date: 15 February 2013 Before: McClellan CJ at CL at [1] Rothman J at [2] Adamson J at [3] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - whether sentence manifestly excessive - whether failure to apply principles of parity and totality Legislation Cited: - Crimes Act 1900 - Crimes (Sentencing Procedure) Act 1999 Cases Cited: - [NAME] v The Queen [1998] HCA 57; 194 CLR 610 - Attorney-General's Application (No 1) R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 - [NAME] v The Queen [1999] HCA 29; 195 CLR 665 - [NAME] v The Queen [2001] HCA 64; 207 CLR 584 - [NAME] v The Queen; [NAME] v The Queen [2010] HCA 45; 242 CLR 520 Category: Principal judgment Parties: [NAME] (Applicant) Regina (Respondent) Representation: Counsel: [redacted] [NAME] ([NAME]) Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2010/351748 Publication restriction: None Decision under appeal Citation: N/A Date of Decision: 2011-08-31 00:00:00 Before: Blackmore DCJ File Number(s): 2010/351748

Judgment

Introduction 1McCLELLAN CJ at CL: I agree with Adamson J. 2ROTHMAN J: I agree with Adamson J. 3ADAMSON J: The applicant seeks leave to appeal against sentence on the following three grounds: (1)The Sentencing Judge failed to apply the principle of totality in accordance with [NAME] v The Queen [1998] HCA 57; 194 CLR 610; (2)The applicant has a justifiable sense of grievance by reason of the disparity between his sentence and that of a co-offender, [NAME]; and (3)The sentence imposed was manifestly excessive. 4The applicant was arrested and charged in respect of a number of offences committed in the course of a spree in September 2010. He pleaded guilty in the [ADDRESS] and was committed for sentence in the District Court. 5The sentences imposed by the Sentencing Judge are summarised below: Date of offence Offence Max penalty SNPP Sentence, taking into account 30% discount for plea and assistance and special circumstances 8-9 September 2010 Aggravated break enter and steal (Albury Club): Crimes Act 1900 s 112(2) 20 years 5 years Total sentence of 3 years, 6 months for all four offences 9 September 2010 Aggravated break enter and steal (Classic Motor Inn): Crimes Act s 112(2) 20 years 5 years 15 September 2010 Aggravated break enter and steal ([NAME]): Crimes Act s 112(2) 20 years 5 years 20 September 2010 Aggravated break enter and steal ([NAME]): Crimes Act s 112(2) 20 years 5 years 17 September 2010 Aggravated break enter with intent ([NAME]): Crimes Act s 113(2) 14 years N/A 2 years, 6 months Aggregate sentence 5 years, 6 months, commencing on 22 October 2010, with a non-parole period of 3 years, 9 months. Ratio of non-parole period to total sentence is 68%.

6The applicant was almost 19 years old at the time the offences were committed. They were committed at locations that had closed for business at the time of the break-in. No persons were present. Cash and property were stolen. The motive for the offences was to obtain money, or goods that could readily be sold, to buy drugs to feed his addiction. 7In the Remarks on Sentence (ROS) the Sentencing Judge referred to the guideline sentencing judgment of Attorney-General's Application (No.

1) R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 (Ponfield) which applies to the offence of break and enter and commit serious indictable offence. In Ponfield, this Court said, at [42], that it was not appropriate to express the guideline in quantitative terms, but said, at [48], that greater sentences ought be imposed when one or more of eleven factors was present. The Sentencing Judge identified two such factors as being relevant: the multiplicity of offences committed and the amounts of money taken. 8The money and property stolen from the various premises included: (1)Cash of no less that $4,498, three antique watches and electronic and computer equipment from the Albury Club; (2)Cash of about $750 from the Classic Motor Inn; (3)Computers and $2,000 from the [NAME]; and (4)Alcohol, a 50-inch television and $4,980.75 from the [COMPANY]. 9Although the applicant had a record for similar offences, the Sentencing Judge did not place weight on this, except to the extent that it disentitled the applicant to the leniency afforded to first offenders, because the offences had been committed when the applicant was a juvenile. 10The Sentencing Judge noted that although a degree of planning was involved, it was of a rudimentary and spontaneous kind. For example, the applicant wore socks on his hands in one of the offences to avoid leaving fingerprints. [NAME] considered the offences for which a standard non-parole period is prescribed to fall below the mid-range of objective seriousness. [NAME] considered that: "...the series of offences committed by the offender were so serious that a total sentence of at least eight years imprisonment would have been applied if these matters had gone to trial." 11The applicant gave evidence at the sentence hearing, as did his partner, [NAME]. He also relied on a report of [NAME], neuropsychologist, who noted that he displayed symptoms consistent with Attention Deficit Disorder, Paranoid Schizophrenia and prior Substance Abuse Disorder. 12The applicant's subjective circumstances included that he had a disrupted upbringing that resulted in his becoming homeless at the age of 12. He began drinking alcohol and taking cannabis at that time. 13The Sentencing Judge found special circumstances on the basis that the applicant requires treatment for mental illness caused by his drug use. 14The Sentencing Judge applied a discount of 30% for the plea of guilty and the offer of assistance. 15As can be seen from the table above, the Sentencing Judge imposed an aggregate sentence in respect of the four offences of aggravated break enter and steal, as was permitted by s 53A(1) of the Crimes (Sentencing Procedure) Act 1999. 16The Sentencing Judge did not, however, comply with the obligation imposed by s 54(4A) of the Crimes (Sentencing Procedure) Act 1999 to indicate, for each of the four offences of aggravated break enter and steal, the length of the non-parole period he would have set had [NAME] imposed a sentence of imprisonment for each of the offences. 17The applicant submitted that this omission meant that it was more difficult to understand the Sentencing Judge's process of reasoning and, more specifically, how the sentence imposed on the applicant compared with that imposed on [NAME] for the offence that was committed at the [NAME] (which is considered further below). However, the applicant did not suggest that it had the effect of impermissibly inflating the sentence. [ADDRESS]'s power under s 44(2C) of the Crimes (Sentencing Procedure Act 1999 to impose an aggregate sentence without specifying the non-parole period that would have been imposed for each offence had separate sentences been imposed is not qualified by s54B(4A) since no standard non-parole period has been specified for the offence.

The grounds of appeal: the sentences imposed were manifestly excessive, there is an justifiable sense of grievance and the Sentencing Judge failed to apply the principle of totality

The sentence imposed on [NAME] 19Many of the applicant's submissions rely on a comparison between his sentence and that imposed on [NAME], who was also sentenced for a number of similar offences, one of which was committed in company with the applicant at the [NAME] on 20 September 2010. 20The Sentencing Judge sentenced the applicant on 31 August 2011. [NAME] sentenced [NAME] almost three months later, on 24 November 2011. [NAME] said, of the sentence imposed on the applicant: [redacted] 21I infer that [NAME] was informed from the bar table of the matters set out in his ROS above but was not provided with the Sentencing Judge's ROS. 22I propose to set out in some detail the matters that were taken into account by [NAME] in sentencing [NAME] to demonstrate the extent to which the sentence imposed reflects the weighing up of objective factors germane to the offence, and subjective factors that are germane to the offender. 23The offences committed and the sentence imposed on [NAME] is summarised in the table below: Time of offence Offence Max penalty SNPP Sentence Discount for plea and assistance 29 March 2007 Aggravated break enter and steal (Charles Sturt University, Albury): Crimes Act s 112(2), including Form 1 matters 20 years 5 years 3 years, 9 months including Form 1. 25% 20 September 2010 Aggravated break enter and steal ([NAME]) in company with applicant and another: Crimes Act s 112(2) 20 years 5 years 2 years, 6 months with a non-parole period of 1 year. 37.5% 5 October 2010 Aggravated break enter and steal ([NAME]): Crimes Act s 112(2) 20 years 5 years 2 years, 3 months, with non-parole period of 9 months. 40%, plus further discount of 3 months for future assistance

24Charteris DCJ was also asked to take into account the following Form 1 offences when sentencing [NAME] for the first offence set out above: (1)Aggravated break enter and steal at [NAME] in about 2002, when the offender was 15; (2)Four additional occasions of break enter and steal in the period 20 March 2007 to 13 April 2007, including at the premises of the [NAME] in Albury, where some electronic equipment was stolen, [NAME] where $100 was stolen and [NAME], where liquor was stolen; and (3)Break enter and steal at [NAME] in September 2009. 25The total aggregate sentence imposed was five years with a two-year non-parole period, to take account of special circumstances. But for future co-operation, which gave rise to a further reduction of 3 months, the total sentence would have been 5 years, 3 months with a 2 year, 3 month non-parole period. 26Charteris DCJ found that each of the offences, with the possible exception of the Form 1 offence committed in 2002, was committed when the applicant was addicted to heroin. 27Mr [NAME] was born in [DATE]. He came before the Children's Court where he was initially dealt with leniently. He continued to offend. As an adult he was convicted of shoplifting for which he received a fine in 2008. In 2009 he received four s 9 bonds for a period of 15 months involving stealing, disposing of stolen property or receiving it and making a statement that was false and misleading. He was, accordingly, on conditional liberty when he committed the offences for which he was sentenced by [NAME]. 28Mr [NAME] lived with his mother in respect of whom he receives a carer's pension by reason of her infirmity as a result of arthritis. He had a troubled childhood and suffered violence from the age of 9 until he was 16 at the hands of his stepfather. His mother was an alcoholic. As a child he would regularly have to go to hotels to try to persuade his mother to come home. At times he sought the assistance of the police. He sought refuge with his natural father whose partner was a prostitute. He experimented with drugs and from about 2005 until 2010 he was addicted to heroin. His addiction cost him in the order of $500 per day. Since he was incapable of earning that sum, he relied on criminal activity to fuel his habit. 29Mr [NAME] commenced taking methadone on 9 February 2011. [NAME] was satisfied that he had been on the treatment continuously since then up to the time of sentence on 24 November 2011. 30Mr [NAME] was arrested in October 2010. He agreed to be interviewed and was forthcoming about his involvement in respect of the offences for which he was being sentenced. He co-operated with police and assisted to identify co-offenders who have since been charged. He was prepared to give evidence against another co-offender for the Planet Power offence. [NAME] accepted that [NAME] had "extensively co-operated with police". [NAME] applied the discounts for the pleas of guilty and assistance set out in the table above. 31Charteris DCJ said of [NAME], who gave evidence at the sentence hearing: "I think he genuinely wishes to turn his life around. For virtually all of this year, he has been free of illicit drugs. He has been taking methadone; he has been abiding by his very strict bail conditions. He wants to eventually rid himself of the need to take methadone, and he has expressed the view that he wants to obtain a job, get his life back on track so to speak and support his partner and young child. ... He has been on his rehabilitation since February of this year... he stopped taking those illicit drugs and he has had favourable urine tests with no drug in his system since April 2011... He described himself as feeling "the best I have ever felt". I accept his evidence... He holds his partner in high regard and he wishes to turn his life around." 32Mr [NAME]'s partner gave evidence. [NAME] accepted that she was a very positive influence on the applicant. Their child was born in 2008. [NAME] was satisfied that there were special circumstances.

Comparison between the applicant's sentence and [NAME]'s sentence 33Mr [NAME]'s total sentence for the aggravated break enter and steal at the [COMPANY], once the discount for plea and assistance is ignored for the purposes of comparison, was 4 years. If the ratio of the non-parole period to the total term is applied to that offence alone, the non-parole period for that offence would have been 19 months. 34Because an aggregate sentence was imposed on the applicant which included the aggravated break enter and steal at the [COMPANY], it is not possible to make a straight comparison with [NAME]'s sentence. If one ignores the effect of the discount of 30% for the applicant's plea and assistance given, the aggregate sentence was five years for all four aggravated break enter and steal offences. One cannot take the matter further by way of comparison since the aggregate sentence imposed on the applicant does not provide a guide to how the sentence would have been constructed had the Sentencing Judge been required to impose individual sentences. 35All that can be said is that there is no basis for inferring that the portion of the aggregate sentence that is notionally referable to the [COMPANY] offence imposed on the applicant was different from the individual total sentence imposed on [NAME] for the same offence. 36Although for reasons given above, the Sentencing Judge could have shed further light on the sentences for individual offences by recording the non-parole period he would have imposed for the [COMPANY] offence, the total term is a more relevant figure for the purposes of comparison, since special circumstances germane to the applicant have a more significant influence on the proportion to which the non-parole period bears to the whole than does the objective seriousness of the offence. 37Even if one were to assume that the applicant and [NAME] were equally culpable with respect to the [COMPANY] offence, it by no means follows that they ought to have received the same sentence. 38To feel a sense of grievance on the basis that they received different sentences, even if it could be inferred that they did, would be to disregard the process of sentencing and the manifold relevant factors that are germane to its exercise: in particular, matters which pertain to the individual offender and to his or her prospects of rehabilitation and how the sentencing judge considers they can best be advanced. 39As the plurality said in Markarian [2005] HCA 25; (2005) 228 CLR 357, at [27]: Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 40There are, sadly, many similarities between the circumstances and patterns of offending between the applicant and [NAME]: their disruptive and unsupportive childhoods; the age at which they became addicted to drugs; the commission of crime to feed the addiction; and their respective need for assistance to overcome drug dependency. However, there are also many differences between them as the respective ROS indicate. In light of the constellation of factors that play a part in the sentencing discretion, any sense of grievance that the applicant harbours by reason of a perceived disparity between his own sentence and that of [NAME], is, in my view, not justified by reference to any objective criteria.

Whether the sentence is otherwise manifestly excessive 41The applicant contended that his sentence was excessive in itself, even if this Court were not satisfied that there was an unjustified disparity between his sentence and that of [NAME]. 42This Court may not substitute its own opinion for that of the Sentencing Judge merely because it would have exercised its discretion in a manner different from the manner in which the Sentencing Judge did so: [NAME] v The Queen [1999] HCA 29; 195 CLR 665 at [15]. 43This Court is not entitled to intervene on the ground that the sentence is manifestly excessive merely because the sentence is different from other sentences that have been imposed in other cases: [NAME] v The Queen [2001] HCA 64; 207 CLR 584 at [58]; [NAME] v The Queen; [NAME] v The Queen [2010] HCA 45; 242 CLR 520 ([NAME]) at [59]. 44The statistical information relied on by the applicant's written submissions is of little utility in the context of an aggregate sentence for five offences. 45One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the [NAME] be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive. 46The sentencing consistency to which the law aspires is, as the High Court said in [NAME], at [18]: "...consistency in the application of relevant legal principles, not some numerical or mathematical equivalence." 47I am not persuaded that there was any error in the way in which the Sentencing Judge applied the principles of parity, consistency and totality. Nor do I consider that any basis has been established on which it could otherwise be concluded that the sentence was manifestly excessive. 48I propose the following orders: (1)Leave to appeal granted. (2)Appeal dismissed.

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