McCabe v R

1. [1]

   MEAGHER JA: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with Bellew J.

3. [3]

   BELLEW J: On 30 October 2014 Shane McCabe (“the applicant”) pleaded guilty in the Local Court to an offence of break enter and steal contrary to s 112(1)(a) of the Crimes Act 1900. He was committed to the District Court for sentence.

4. [4]

   On 17 February 2015 the applicant was sentenced in the District Court to a non-parole period of 2½ years imprisonment to date from 20 November 2014 with an additional term of 2 years imprisonment commencing on 20 May 2017. In imposing that sentence, the sentencing judge applied a discount of 25% to reflect the applicant’s plea of guilty, and made a finding of special circumstances in accordance with s. 44(2) of the Crimes (Sentencing Procedure Act) 1999 (“the Sentencing Act”).

5. [5]

   By notice dated 17 August 2015 the applicant seeks leave to appeal against the sentence imposed on the grounds that:

THE FACTS

1. [6]

   The sentencing judge found the facts to be as follows.

2. [7]

   On 12 June 2014 the applicant was on bail for a number of offences including common assault, dishonestly obtaining property by deception, larceny, shoplifting, break enter and steal and supplying a prohibited drug. On that day he went to a unit block in Harris Park. The occupiers of one of the units in the block secured their premises before leaving at about 10.45 am. After they had left, the applicant smashed the kitchen window and gained access to the premises. A neighbour heard the smashing of the glass and immediately contacted the police.

3. [8]

   The police went to the premises where they saw the applicant leaving the unit block through a security door. When confronted by police, the applicant gave an untruthful account of why he was there. Police searched a backpack which was in his possession. Items belonging to occupiers of the premises, valued at approximately $1,000.00, were found. The applicant admitted to police that he had taken the items in order to obtain money. There was no evidence that the premises had been ransacked. All of the items were ultimately returned to the owners.

The findings of the sentencing judge

1. [9]

   Having set out the facts of the offending, the sentencing judge said (at ROS 2):

Submissions of the applicant

1. [10]

   Counsel for the applicant, whilst accepting that a prior history of similar offending was a relevant consideration on sentence, submitted that the principle of proportionality required the sentencing judge to set the upper limit of the sentence by reference to the objective seriousness of the offence. It was submitted that by taking into account the applicant’s criminal history in determining such objective seriousness, the sentencing judge had erred.

2. [11]

   In advancing that submission, counsel for the applicant drew attention to the fact that both parties had submitted to the sentencing judge that the objective seriousness of the offending fell below the mid-range. It was submitted that against this background, and quite apart from the express terms of what the sentencing judge said, the conclusion that the objective seriousness of the offending fell only “slightly” below that range was a further indication that the applicant’s prior criminal history had been taken into account in an impermissible way.

Submissions of the Crown

1. [12]

   The Crown submitted that the applicant’s criminal history was a matter which was highly relevant to the exercise of the sentencing discretion. The Crown also relied upon the conduct of the proceedings before the sentencing judge, and pointed out that neither party had submitted that the applicant’s criminal history was relevant to an assessment of the objective seriousness of the offending. It was submitted that the finding of the sentencing judge that the offence was slightly below the mid-range was broadly consistent with the submissions advanced by the parties.

2. [13]

   The Crown also emphasised the reference made by the sentencing judge to the decision in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. It was submitted that it would be “somewhat unusual” for his Honour to have expressly referred to the decision in Veen No 2, only then to approach the sentencing of the applicant in a manner which was not consistent with that decision. The Crown further submitted that when the sentencing remarks were read as a whole, it was evident that the sentencing judge had applied his focus to all relevant considerations.

3. [14]

   Finally, the Crown drew attention to the fact that the sentencing remarks were delivered ex tempore, immediately following evidence and submissions. It was submitted that in these circumstances it was inappropriate to parse, and minutely analyse, what had been said by the sentencing judge.

Consideration

1. [15]

   The principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence: Veen v The Queen (No 2) (supra); Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51. Those objective circumstances do not encompass an offender’s prior convictions: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ.

2. [16]

   In the present case, the sentencing judge made express reference to the decision in Veen (No 2). He concluded that it “would be inappropriate to regard [the present case] as a Veen 2 situation” and stated that he would develop his reasons for reaching that conclusion. However on a fair reading of the sentencing remarks, the issue was not revisited.

3. [17]

   Immediately following the reference to Veen (No 2) the sentencing judge concluded that the offending was “slightly below the mid-range of objective seriousness”. On a plain reading of his Honour’s remarks, he reached that conclusion “by taking into account (the applicant’s) past criminal history”.

4. [18]

   On a number of occasions this Court has cautioned against parsing, and finely analysing, sentencing remarks which are delivered ex tempore: see for example McNaughton (supra) at [48] per Spigelman CJ; Warner v R [2013] NSWCCA 10 at [33] per Campbell J (Hoeben JA and Davies J agreeing); Gommesen v R [2012] NSWCCA 226; 62 MVR 196 at [37] – [38] per Garling J (McClellan CJ at CL and McCallum J agreeing). However in the present case, the remarks were revised by the sentencing judge. So much is clear from the note (at ROS 6) which records that a draft of the remarks “was received …. and revised….”. In these circumstances, I am left to conclude that the revised remarks represent what his Honour in fact said, and meant, when imposing sentence.

5. [19]

   I have had regard to the Crown’s submission as to the adoption, by the sentencing judge, of an approach which was contrary to the authority he expressly cited. However, acceptance of that submission would require this Court to ignore the plain language used by the sentencing judge, and to then substitute the word “before” for the word “by” in the second paragraph of the extract of the sentencing remarks set out in [9] above.

6. [20]

   Conceivably there could be cases where, notwithstanding what appears in the sentencing remarks, it is obvious that a slip has occurred which requires those remarks to be read and interpreted in a way which might appear to be contrary to the express language adopted. However the present is not such a case. There is nothing to suggest a slip. The sentencing remarks were revised and effect must be given to the plain language which was used. There is no warrant in the present case for substituting one word for another.

7. [21]

   In all of these circumstances I am left to conclude that the sentencing judge took the applicant’s criminal history into account when assessing the objective seriousness of the offence. Reaching that conclusion involves no element of parsing, or over analysing, the remarks on sentence. It involves nothing more than ascribing the only available meaning to what the sentencing judge plainly said. In taking the applicant’s criminal history into account as he did, the sentencing judge erred.

8. [22]

   In reaching that conclusion, I am fortified firstly by the circumstances surrounding the offending, and secondly by the manner in which the case was conducted by the parties before the sentencing judge. Viewed objectively, the circumstances of the offending were unremarkable. The applicant’s conduct was typical of this kind of offending. Consistent with those factors, both parties submitted to the sentencing judge that the offending was below the mid-range. There was no aspect of the objective circumstances of the offending which supported the finding of the sentencing judge that it fell only “slightly” below the mid-range. That finding is consistent with some other factor having been taken into account in a way which increased the level of the objective seriousness of the offending beyond that which was submitted by both parties.

9. [23]

   For all of these reasons, this ground is made out.

The approach of this Court

1. [24]

   Having found error, the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) apply. In these circumstances, it is not incumbent upon the applicant to demonstrate that the sentence imposed was manifestly excessive. It is the duty of this Court to exercise the sentencing discretion afresh: Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42] – [43] per French CJ, Hayne, Bell and Keane JJ.

The evidence

1. [25]

   Dr Jonathon Adams, Forensic Psychiatrist, examined the applicant on 11 February 2015. Dr Adams noted (at p. 2 and following) that the applicant commenced to have concerns about his emotional state in his early teenage years. He also noted the applicant’s previous episodes of self-harm and attempted suicide, the first of which occurred at 16 years of age. There had been 10 suicide attempts in total.

2. [26]

   Dr Adams reported that the applicant had described experiencing symptoms suggestive of a psychosis from the age of 15 years. He also noted the applicant’s history of abuse of drugs and alcohol, as well as the fact that he had been to psychiatric hospitals on several occasions since that time, usually in a disturbed state, and experiencing psychotic features.

3. [27]

   Ultimately, in terms of the applicant’s mental health, Dr Adams expressed the following opinion:

4. [28]

   Dr Adams reported that the applicant had described an improved state of mental health since being taken into custody, in the context of reported compliance with psychiatric medication and abstinence from the abuse of illicit substances. He concluded that the applicant was presently free of symptoms of a major mental illness and that he manifested a reasonable level of insight into his difficulties with substance abuse, mental illness, and repeated offending behaviour.

5. [29]

   In terms of the future, Dr Adams concluded that the applicant would require “assertive input” from mental health, drug and alcohol, and social services upon his release from custody, so as to increase his chances of stability. He agreed with the view expressed by the applicant that a period of residential drug and alcohol rehabilitation would be of benefit. He said that this should occur simultaneously with monitoring by mental health services, continuing prescription of psychiatric medication, and ongoing psychological therapy in order to address issues of emotional regulation, adaptive coping strategies, and the avoidance of offending behaviour.

6. [30]

   Dr Adams concluded:

7. [31]

   A pre-sentence report is also before the Court which documents the applicant’s personal history in terms which are generally consistent with those outlined by Dr Adams. The author of that report expressed the view that the applicant “showed little insight into his offending behaviour”.

8. [32]

   The applicant gave evidence before the sentencing judge in which he acknowledged the necessity to undertake, and adhere to, a rehabilitation program upon his eventual release from custody. Whilst the applicant acknowledged (commencing at T7 L5) that there had been several unsuccessful attempts at rehabilitation in the past, he gave the following evidence (commencing at T7 L25):

9. [33]

   The applicant was then asked (commencing at T8 L6):

10. [34]

    The applicant’s criminal history is before the Court. It is frankly appalling and contains a multiplicity of entries for offending of a similar kind.

Consideration

1. [35]

   In my view, the objective seriousness of the offending is below the mid-range, albeit not at the lowest level. In terms of the factors contained in s 21A of the Sentencing Act, the following matters are relevant.

2. [36]

   Clearly, the applicant has a record of previous convictions, many of which are of a similar kind. That is an aggravating factor under s 21A(2)(d).

3. [37]

   Notwithstanding the observations in the pre-sentence report, I am satisfied on the basis of the evidence given by the applicant before the sentencing judge (which was not challenged) that he has shown remorse for his offending. That is a mitigating factor under s 21A(3)(i).

4. [38]

   The applicant pleaded guilty to the offence in the Local Court. That is a mitigating factor under s 21A(3)(k). He is entitled to a discount of 25% to reflect the utilitarian value of that plea.

5. [39]

   Assessing the applicant’s prospects of rehabilitation is obviously problematic in light of his criminal history. On his own admission, the applicant has had opportunities in the past to address his abuse of illicit drugs, and the relationship between that abuse and his repeated offending. He has not made good use of those opportunities. In light of this history it is necessary to adopt a cautious approach to assessing his expressed intention to undergo rehabilitation when eventually he is released from custody.

6. [40]

   Rehabilitative measures will obviously be available to the applicant. The effect of Dr Adams’ conclusions is that the applicant is capable of being rehabilitated. Whether this is successfully achieved will necessarily depend, in large measure, upon whether the applicant is genuinely willing to make the most of any opportunity he might be given and, importantly, to adhere to a program of the kind to which Dr Adams referred. Whilst I have taken into account the applicant’s expressed willingness to do so, his background is such that I am left to conclude that his prospects of rehabilitation are guarded.

7. [41]

   In light of the opinion of Dr Adams, the applicant clearly has a mental illness. The principles applicable to the sentencing of mentally ill offenders were outlined by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 commencing at [177]. Those principles include the following:

8. [42]

   In view of Dr Adams’ opinion, the applicant’s moral culpability is reduced as a consequence of the causal nexus between his mental state and his offending. Further, and because of his mental state, the applicant is an inappropriate vehicle for general deterrence. Those matters operate to reduce the sentence which might otherwise be appropriate.

9. [43]

   In Re Attorney General’s Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327 Grove J (with whom Spigelman CJ and Sully J agreed) concluded (at [48]) that a court should regard the seriousness of an offence contrary to s 112(1) as being enhanced, and should reflect that enhanced seriousness in the quantum of sentence imposed, if any of the following factors are present:

10. [44]

    Grove J observed that if more than one of those circumstances was present there would be a cumulative effect to be reflected in any sentence imposed. However his Honour also stressed (at [49]):

11. [45]

    In the present case, the factors in [43](i) and (iii) above are present. Balanced against those matters however, must be the various subjective considerations to which I have referred, not the least of which is the applicant’s mental illness.

12. [46]

    In the event that this Court came to re-sentence the applicant, the Crown relied upon an affidavit of Meagan Betteridge, Solicitor, of 19 October 2015. That affidavit annexes documents provided by the Department of Corrective Services in relation to an incident in August this year when the applicant was found in possession of a syringe. The applicant pleaded guilty to a disciplinary offence and was prohibited from having any contact visits for a period of 28 days.

13. [47]

    With the Court’s leave, the applicant filed two affidavits in response, one from himself dated 6 November 2015, and the other from his Solicitor, Alexandra Heffernan, dated 5 November 2015. In his affidavit, the applicant explained the circumstances surrounding the disciplinary breach. He also expressed positive sentiments about his future. The affidavit of Ms Heffernan annexes various case notes obtained from the Department of Corrective Services regarding the applicant’s behaviour in custody.

14. [48]

    In my view, the applicant’s disciplinary breach is of relatively little moment. Of more significance are the case notes attached to Ms Heffernan’s affidavit, which variously refer to there being “no issues” as to any aspect of the applicant’s incarceration. They also refer to the applicant consistently presenting in a stable mental state. Significantly, at an interview conducted with the applicant on 20 August last, it was noted that the applicant was “well behaved at all times”, that there were “nil issues” and that he had “no thoughts of self-harm”. On the whole of the evidence, the disciplinary breach appears to be something of an aberration.

CONCLUSION

1. [49]

   In my view, the appropriate starting point is a sentence of 4 years and 6 months imprisonment, to which a discount of 25% should be applied to reflect the utilitarian value of the applicant’s plea of guilty. That reduces the sentence to one of 3 years and 4 months imprisonment.

2. [50]

   I am satisfied that there should be a finding of special circumstances in the present case. In reaching that conclusion I have taken into account the evidence of the applicant, and the opinion of Dr Adams, as to the question of rehabilitation. In applying the finding of special circumstances to the sentence that I consider appropriate, I have adopted the same ratio as between the non-parole period and the head sentence as that adopted by the sentencing judge, namely 55%.

ORDERS

1. [51]

   For all of these reasons I propose the following orders: