Simmons v R

1. [1]

   MACFARLAN JA: I agree with Adamson J.

2. [2]

   ADAMSON J: Fletcher Simmons (the applicant) applies for leave to appeal against an aggregate sentence imposed by Robison DCJ on 2 November 2018 of ten years’ imprisonment with a non-parole period of 5 years and 6 months. The sentence commenced on 26 October 2016, being the date of the applicant’s arrest.

3. [3]

   The applicant pleaded guilty to seven offences and indicated, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), that he wanted the sentencing judge to take into account a further six offences which were contained on a Form 1. The sentencing judge allowed the maximum discount of 25% for the applicant’s plea of guilty. All of the offences (those of which the applicant was convicted and those on the Form 1) were committed in a period of about three weeks from 4 October 2016. They arose from the applicant’s drug addiction, which led him to commit violent acts to obtain cash for drugs.

4. [4]

   There are four grounds of appeal, as follows:

5. [5]

   It is convenient to set out the offences, the relevant provisions, the maximum penalties and the indicative sentences in chronological order in a table.

6. [6]

   The proceedings on sentence were heard on 1 November 2018. The Crown tendered a bundle which included the court attendance notices, the Forms 1, the statement of agreed facts and the applicant’s criminal history in New South Wales and Queensland. The Crown also tendered a pre-sentence report dated 24 April 2018. The defence tendered medical reports from Dr Martin, Dr Farrar and Dr Seidler; a Concord Hospital assessment record and references from Carol Simmons (the applicant’s mother) and Jessica Henderson (the applicant’s former partner). The defence bundle also contained an affidavit affirmed by the applicant in which he deposed to his conditions of custody and to the truth of statements he had made to Dr Martin. He neither gave oral evidence nor was cross-examined. Both parties relied on written submissions. In each set of submissions, matters germane to subjective matters were included under a heading entitled “objective seriousness”. It was said, as will appear further below, that the parties led his Honour into error (this is relevant to grounds 1, 2 and 3).

7. [7]

   The Crown agreed that a discount of 25% for the plea of guilty was warranted and that it would be appropriate for the sentence to commence on 26 October 2016, being the date of the applicant’s arrest. It was common ground that the applicant was subject to a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act at the time of the subject offending. These charges caused the bond to be called up.

8. [8]

   Defence counsel before the sentencing judge accepted that a custodial sentence was required. He submitted that “full accumulation” would be “crushing” and that there should be a “degree of concurrency”. The Crown confined his oral submissions to the applicant’s prospects of rehabilitation and relied on six instances of institutional misconduct since the applicant has been in custody. The proceedings on sentence concluded at about 4pm on 1 November 2018. The sentencing judgment was delivered ex tempore at 10am on 2 November 2018.

9. [9]

   His Honour recounted the offences for which the applicant was to be sentenced and the offences on the Forms 1. His Honour noted that the applicant was on conditional liberty at the time of the offences, as a result of which the bond was called up and the applicant was sentenced to a fixed term of imprisonment for one month. The sentencing judge noted that the applicant had been in custody since his arrest on 26 October 2016.

10. [10]

    His Honour recounted the agreed facts (which are summarised in the table set out above), in the narrative which is substantially extracted below. The sequence numbers are set out in square brackets.

11. [11]

    The sentencing judge described the applicant’s criminal history as “serious and lengthy”. His Honour referred to the pre-sentence report and noted that, notwithstanding the extent to which the applicant had been supervised over the years he has been unable to rehabilitate himself and has re-offended. His Honour also noted the six institutional misconduct charges in the current period of custody and the applicant’s admission to the author of the pre-sentence report that he has continued to use drugs in custody, including non-prescribed buprenorphine. The sentencing judge referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and accepted that the principles were relevant, having regard to the applicant’s “traumatic” family and social circumstances. His Honour found that, at best, the applicant had “some glimmer of insight” of the effect of his conduct on his victims and that this fell short of remorse, contrition or empathy. His Honour also referred to Dr Martin’s report and his opinion about the applicant’s “chaotic development history”. The sentencing judge accepted Dr Martin’s opinion that the applicant’s judgment was impaired but also found that the offending was “relatively goal driven, presumably in order to obtain money to fund his drug use”.

12. [12]

    Because of what is alleged in grounds 1, 2 and 3 (which are related), I propose to set out extracts from the sentencing judgment in which it is said that his Honour elided the distinction between those matters relevant to objective seriousness on the one hand and subjective matters (such as the applicant being on conditional liberty and his criminal history) on the other.

13. [13]

    The grounds of appeal are set out above. Ms Wasley, who appeared for the applicant, accepted that grounds 1, 2 and 3 are related in that, if this Court is satisfied of ground 1 or 2, ground 3 will be made out, but otherwise it will not be made out. Each of these grounds turns on whether the applicant has established that the sentencing judge erroneously took either the applicant’s conditional liberty or his criminal history into account in assessing objective seriousness. It was accepted that if either of those matters had been taken into account in such assessment, this would amount to an error which would cause the sentencing discretion to miscarry, and require this Court to re-sentence in accordance with the principles in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

14. [14]

    The relevant principles can be shortly stated. The assessment of the objective seriousness of an offence is an important part of the sentencing process. It is relevant to the sentence overall and also to the non-parole period. The first principle is that, as its name implies, an assessment of objective seriousness is confined to objective matters and not matters pertaining to the individual offender. Plainly, whether the offender is on conditional liberty at the time of the offending and the offender’s criminal history are subjective matters and are not to be taken into account in the assessment of objective seriousness. The distinction between matters which can be taken into account in the assessment of objective seriousness and those which cannot is not an arcane one. It is required to be drawn whenever a sentence is imposed. The second relevant principle is that a sentence is arrived at by taking into account all relevant objective matters (such as objective seriousness) and subjective matters (such as whether the offender was on conditional liberty at the time of the offending and the offender’s criminal history). This process has been described as “instinctive synthesis”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (Gaudron, Gummow and Hayne JJ).

15. [15]

    The other matter of significance is that the sentencing judgment was delivered ex tempore, albeit after an overnight adjournment at 4pm to permit the sentencing judge to read the material and commence the reasons at 10am the following morning. As any judicial officer who is accustomed to give ex tempore judgments knows, elegant segregation of topics into strictly quarantined categories is unlikely to be achieved, even if it were desired. What is required is the clear expression of the reasons for decision. In the case of sentencing, this requires an articulation of the relevant findings, an assessment of objective seriousness and a consideration of all relevant aggravating and mitigating factors. Some aggravating factors, such as whether the offence occurred in the home of the victim, will be relevant to objective seriousness but others, such as that the offence was committed while the applicant was on conditional liberty, will not be. Further, it is desirable that each offence be addressed in sequence, which requires a consideration of all relevant factors for each. This will be the case whether individual sentences are imposed for each offence (taking into account, where relevant, offences on a Form 1) or whether an aggregate sentence is imposed for more than one offence, as occurred here.

16. [16]

    It can be seen from the passages extracted above that his Honour ranged over both objective and subjective matters in a manner which was, at times, discursive. However, I am not persuaded that his Honour elided the distinction between matters germane to objective seriousness and those aggravating matters of conditional liberty and criminal history which are the subject of grounds 1 and 2. Indeed, there are several passages which indicate that his Honour had firmly in mind the difference between the two concepts.

17. [17]

    For example, in the passages extracted above for sequence 1 on 4 October 2016, his Honour used the conjunction “but” when turning from objective seriousness to subjective aggravating factors (conditional liberty and criminal history). His Honour used the prefatory words “[c]oming back to the offence overall” at the beginning of the next paragraph before returning to an assessment of objective seriousness. These words are consistent with the maintenance of the distinction. A similar formulation was used by the sentencing judge for sequence 13 on 6 October 2016 when his Honour addressed objective seriousness in the same sentence as the subjective aggravating factors but separated the clauses with the word “but” to indicate the distinction. His Honour adopted a different formulation with respect to sequence 11 on 11 October 2016 by separating the concepts by commencing a new sentence. His Honour flagged the distinction between objective seriousness on the one hand and subjective aggravating factors on the other by the use of the words “as well” in the second sentence from the extract.

18. [18]

    In the extract from the passage addressing sequence 1 on 26 October 2016, his Honour used the conjunction “and” when linking the clause concerning objective seriousness with the clause concerning subjective aggravating factors. However, his Honour signalled the distinction by the words “must also be taken into account” in the second clause. In the extract from the passage concerning sequence 16 on 26 October 2016, his Honour raised objective seriousness and an objective aggravating matter (that the offence was in the home of the victim), before turning to a subjective aggravating matter (conditional liberty). His Honour then indicated that there had been a departure from objective seriousness by commencing a subsequent sentence with the words, “[r]eturning to the objective seriousness”. In the extract from the passage regarding sequence 17 on 26 October 2016, his Honour addressed both concepts in a single sentence and stated, uncontroversially, that all matters (including objective seriousness, conditional liberty and criminal history) needed to be taken into account in sentencing.

19. [19]

    I regard these passages (which were also the ones on which the applicant relied) as being sufficient to indicate the sentencing judge’s appreciation of the distinction between an assessment of objective seriousness, which is confined to objective matters, and the subjective aggravating features of conditional liberty and criminal history. Although there was some ambiguity in the parties’ written submissions as to the categorisation of these concepts and the distinction between them which was occasioned by the heading, “objective seriousness”, I do not discern otherwise in the parties’ submissions any misapprehension as to the distinction.

20. [20]

    In these circumstances, I am not persuaded that either ground 1 or ground 2 has been made out. It was accepted that ground 3 depended on the plaintiff establishing either or both of grounds 1 and 2.

21. [21]

    The applicant submitted that the sentence imposed was manifestly excessive. Ms Wasley accepted that the indicative sentences are not susceptible to appeal but contended that the starting points for three of the indicative sentences were too high, having regard to the discount of 25% which had been applied to them by reason of the plea. She submitted that this explained, at least in part, what she contended to be a manifestly excessive aggregate sentence.

22. [22]

    First, the applicant submitted that the starting point for the indicative sentence for sequence 11 on 11 October 2016 (robbery armed with offensive weapon) was 6 years and 8 months and that this was too high having regard to this Court’s guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. In R v Henry, this Court said that for armed robbery characterised by certain features (young offender with little or no criminal history; weapon such as a knife capable of inflicting serious injury; limited degree of planning; limited, if any, actual violence but a real threat thereof; victim in a vulnerable position such as a shopkeeper or taxi driver; small amount taken; and a plea of guilty, in circumstances of a strong Crown case) the sentence imposed should fall within the range of 4-5 years.

23. [23]

    While sequence 11 on 11 October 2016 corresponds with many of the features in R v Henry, notable differences included that the applicant was almost 27 years old at the time of offending and had a substantial criminal history. Since the plea of guilty is one of the features in R v Henry, the indication in the guideline judgment is that the sentence ought be within the range of 4-5 years, not that the starting point (undiscounted for the plea) ought be in that range. In these circumstances I am not persuaded that the indicative sentence for sequence 11 reveals any error such as would cause the aggregate sentence to be excessive.

24. [24]

    Secondly, Ms Wasley submitted that the starting point of 8 years for the 6-year indicative sentence for sequence 1 on 26 October 2016 (aggravated break and enter, commit serious indictable offence) was too high and that this error infected the aggregate sentence and made it manifestly excessive. She relied on the circumstances that the serious indictable offence was larceny and that the possession of the garden tool with intent to intimidate was the subject of a separate charge, sequence 3 on 26 October 2016 (armed with intent to commit an indictable offence) for which the indicative sentence was only 1 year and 4 months.

25. [25]

    The gravamen of the offence was break and enter. The aggravating circumstance was that the applicant knew that persons were present. The residence into which the applicant broke and entered was the home of a family of five. The two parents were awake and their three children were asleep at the time the applicant broke into their residence through the dog door and threatened them with a gardening tool, which was originally thought to be a knife or a screwdriver. The maximum penalty for the offence was 20 years’ imprisonment, with a standard non-parole period of 5 years. In the circumstances of this offence, I do not regard the indicative sentence as revealing any excess.

26. [26]

    Ms Wasley contended that the circumstances of the common assault (sequence 17 on 26 October 2016) were such as to make the indicative sentence of 11 months (which equated to a starting sentence of 1 year and 2 months) excessive. She submitted that the agreed facts were that although the applicant had caused Ms Towers to stumble back towards the wall out of his way and fall, the applicant had not made physical contact with her.

27. [27]

    One of the difficulties with this submission is that it fails to have regard to the effect of the four additional matters on the Form 1, to which his Honour was entitled to have regard when indicating the sentence for sequence 17: s 33(2) of the Crimes (Sentencing Procedure) Act. The effect of s 33(2) is that the sentence indicated for sequence 17, having regard to the four offences on the Form 1 may be greater than would be warranted if the sentence was indicated merely for sequence 17 without the matters on the Form 1: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]-[43] (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing).

28. [28]

    Another difficulty with the submission is that the context in which the offence was committed is highly significant. The applicant approached Ms Towers after she had asked him for the keys. His movement led Ms Feil to tell him not to touch Ms Towers. Ms Towers’ movements (stumbling backwards) were in response to his and designed to put distance between him and her. It was a highly charged situation where the three women, who were at home at the time the applicant broke in, were endeavouring to deal with the applicant and keep him away from the two-year old child who was also there. In these circumstances, the fact that there was no physical contact between the applicant and Ms Feil, while relevant, does not make the indicative sentence excessive, particularly having regard to the matters on the Form 1.

29. [29]

    In addition to the challenge based on the indicative sentences, the applicant submitted that the degree of accumulation was too great and that the aggregate sentence was excessive having regard to Bugmy factors and the applicant’s alleged willingness to address his addiction and mental health issues.

30. [30]

    A claim of manifest excess requires the applicant to establish that the sentence imposed was unreasonable or plainly unjust. There is no single “correct” sentence. Sentencing judges are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Whether a sentence is manifestly excessive is a conclusion. It is not necessary to identify any particular error in the process.

31. [31]

    As referred to above, counsel appearing for the applicant at the proceedings on sentence accepted that some degree of accumulation was appropriate. The sum of the indicative sentences is 21 years and 5 months; the aggregate sentence had a total term of 10 years. It can thus be seen that there was both accumulation and concurrency. Although Ms Wasley criticised the sentencing judge for not quantifying the accumulation, the imposition of an aggregate sentence does not require any such specificity since only one sentence is actually imposed thereby obviating the need to specify the commencement and expiry dates of individual sentences. There was a significant allowance for special circumstances, in that the statutory ratio of 75% was reduced to 55%.

32. [32]

    The offending conduct took place over a period of about three weeks. The applicant broke into three residential premises, in two of which the occupants were at home. The occupants were understandably fearful when they came into contact with the applicant. The offence against the taxi driver caused the victim to fear for his life. I am not persuaded that the aggregate sentence was manifestly excessive. Ground 4 has not been made out.

Proposed orders

1. [33]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.

2. [34]

   BEECH-JONES J: I agree with Adamson J.