MacBlane v R

1. [1]

   GARLING J: I agree with the orders proposed by Sweeney J and with her Honour’s reasons for concluding that error has been shown on Ground 1.

2. [2]

   However, I wish to add some remarks with respect to the decision of this Court in R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 (“Ponfield”).

3. [3]

   As Sweeney J’s judgment shows, Blackmore SC ADCJ (“the Judge”) was led into error by a submission from the applicant’s counsel that the factors identified in Ponfield were, without any qualification, to be considered in assessing the seriousness of the offending.

4. [4]

   But as the judgment of Simpson J (as her Honour then was) in Mapp v R [2010] NSWCCA 269; (2010) 206 A Crim R 297 (“Mapp”) makes clear, Ponfield is a decision of limited utility, which had been largely overtaken by statute at the time of that decision. This evaluation was made 15 years ago.

5. [5]

   By the time Mapp was decided, the authority of Ponfield had been significantly diminished by the introduction of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”), the terms of which were not considered or discussed in the judgment in Ponfield. The Crimes (Sentencing Procedure) Bill 1999, which became the Sentencing Procedure Act, was first introduced into Parliament after the judgment was reserved in Ponfield. It was assented to eight days before delivery of that judgment. There is no indication in the judgment that the terms of the Bill (or the Act) were ever drawn to the attention of the Court.

6. [6]

   Between the coming into effect of the Sentencing Procedure Act and prior to the decision in Mapp, there were three amendments of significance introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW).

7. [7]

   First, was the introduction of s 3A, which legislated the purposes of sentencing in a way which largely reflected the common law. These purposes must be kept in mind and reflected when imposing a sentence.

8. [8]

   The second amendment was the insertion of s 21A. The section obliges a Court to take into account, when determining sentence, the aggravating and mitigating factors in the section which are relevant in the circumstances. Those aggravating and mitigating factors are listed within s 21A. The aggravating factors set out in s 21A(2) are not to be taken into account if the factor is an element of the offence. The terms of s 21A are such as to indicate that the aggravating factors may include factors which go to a subjective case, or else which may be required to be taken into account on the issue of the objective seriousness of the offence concerned.

9. [9]

   The third amendment of significance was the inclusion of Division 1A in Part 4 of the Sentencing Procedure Act. This Division introduced standard non‑parole periods for particular offences identified in the Table to that Division. Section 54A(2) sets out the following:

10. [10]

    The provisions introduced into the statute a concept of objective seriousness for the offence. In order to give effect to the requirements of the standard non‑parole period regime, an essential component of the determination of the appropriate sentence was an assessment of objective seriousness.

11. [11]

    Section 54B(2) and (3) were also important amendments:

12. [12]

    The effect of s 54B(3) was to exclude factors which may arise from the common law (such as some of those nominated in Ponfield) as affecting the reasons for imposing a non-parole period which differed from the standard non-parole period, unless the factors were contained in s 21A.

13. [13]

    This legislation and the nature of the amendments are the source of Simpson J’s reluctance to continue with the unqualified application of Ponfield.

14. [14]

    On 14 March 2011, which was after the decision in Mapp was delivered, the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) commenced. It had been assented to in December 2010. That Amending Act introduced aggregate sentencing by the insertion of s 53A. The Act also introduced s 54B(4A) and (4B). Section 54B(4B) had the effect of allowing a Court to formulate reasons for fixing a non-parole period which differed from a standard non-parole period, where “Table” offences were included in an aggregate sentence that was not limited by the reasons set out in s 21A.

15. [15]

    The Amending Act was assented to two days before the judgment in Mapp was handed down. The terms of the Amending Act were not considered in any of the judgments in Mapp.

16. [16]

    Within 12 months of the decision in Mapp being delivered, the High Court considered provisions of Division 1A of Part 4 of the Sentencing Procedure Act in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 (“Muldrock”). In a joint judgment, with respect to the proper application of that Part, it said at [17]:

17. [17]

    Importantly, at [19], the Court noted that s 21A enabled the consideration of factors which did not affect the assessment of the relative seriousness of the offence, but which may be relevant to the determination of an appropriate sentence.

18. [18]

    At [27] the Court said:

19. [19]

    Muldrock contains an exposition of the need to clarify, when sentencing, the factors which have been taken into account which affect the assessment of the relative seriousness of the offence compared with a hypothetical middle-of-the-range offence, and additionally all of the factors, including any aggravating and mitigating factors listed in s 21A that bear on sentencing in an individual case. Because of the existence of Division 1A, the High Court, at [31], notes that the Division is not intended to have the standard non-parole period as the starting point of sentencing for a mid-range offence after conviction.

20. [20]

    In addition to the matters set out from [11]-[16] above, there have been a number of decisions which have thrown doubt on Ponfield, or aspects of it: see R v McNaughton v R [2006] NSWCCA 242; (2006) 66 NSWLR 566; Dickinson v R [2016] NSWCCA 301; and Abdul-Rahman v R [2016] NSWCCA 192.

21. [21]

    This brief overview of the developments of the law relating to sentencing since Ponfield was decided over 25 years ago, serves to reinforce the view, expressed perceptively by Simpson J in Mapp, that the decision in Ponfield must be treated with caution. In fact, the developments since Mapp suggest that an unqualified reliance on the so‑called “Ponfield guidelines” will surely lead a sentencing Judge into error.

22. [22]

    That any ongoing assistance that can be attained from the guideline judgment in Ponfield must now be doubtful. In order to avoid error, the occasions for the citing of Ponfield will be very rare indeed, and it should never be cited without drawing the sentencing Judge’s attention to the developments in the law since the time it was decided.

23. [23]

    As earlier noted, I agree with the judgment of Sweeney J.

24. [24]

    CHEN J: I agree with Sweeney J.

25. [25]

    SWEENEY J: Mark MacBlane, the applicant, seeks leave to appeal against the sentence imposed upon him by Blackmore SC ADCJ in the District Court on 4 July 2024 for one offence of break, enter and commit a serious indictable offence, namely larceny. He had pleaded guilty to that offence in the Local Court, for which he received a 25% discount of his sentence. The maximum penalty for the offence was 20 years imprisonment and a standard non-parole period of 5 years was prescribed. The sentence imposed was 3 years and 3 months imprisonment, with a non-parole period of 2 years and 3 months, commencing on 12 May 2023. The non-parole period will expire on 11 August 2025 and the sentence on 11 August 2026.

Grounds of appeal

1. [26]

   The applicant seeks leave to rely on two grounds of appeal:

   1. (1)

      The sentencing judge erred by taking into account the applicant’s criminal history and conditional liberty when assessing the objective seriousness of the subject offence and treating the applicant’s criminal history as a matter of aggravation.

   2. (2)

      The sentencing judge:

Findings on sentence not in dispute

1. [27]

   Because the applicant did not dispute any of the sentencing judge’s findings other than those the subject of the grounds of appeal, I will deal with the facts of the offence and the applicant’s relevant personal circumstances briefly.

2. [28]

   At about 1:30 am on Monday 8 May 2023 the applicant and an unknown person broke into a motorcycle dealership at Morisset, near Newcastle, by using tools to create a large hole in the external wall and entering the store through the hole. They then removed two motorcycles through the same hole. The motorcycles were driven away in a utility. The applicant and the other person returned just after 2 am, went through the same entry point and stole two more motorcycles. They returned to the store just before 5 am, entering through the original entry point, and stole a child sized motorcycle and some helmets, clothing and other motorcycle accessories.

3. [29]

   The five motorcycles stolen were valued in total at $47,744.49. The clothing, helmets and other accessories were valued in total at $5,345.80.

4. [30]

   The applicant was identified from the CCTV footage. Police attended his address on 11 May 2023. They found one of the stolen motorcycles in the backyard of his residence and clothing and a helmet stolen from the motorcycle dealership inside his residence. On his phone they found messages which implicated him in the offence.

5. [31]

   Judge Blackmore took into account the following subjective circumstances of the applicant. He was 50 years of age at the time of sentence. He had an “extensive criminal history”. Judge Blackmore considered that “the consumption of illicit drugs [was] behind most if not all of his offending.” He reported to a psychologist a relatively happy childhood until he was sexually assaulted by a priest at the age of eight. After the assault his life changed. He began using drugs at 13 and progressed to being a long term addict. He had Post-Traumatic Stress Disorder (“PTSD”) as a result of his abuse. His Honour accepted that his abuse was a significant matter in mitigation of his moral culpability for the offending, and that his PTSD would make his time in custody more difficult. His Honour accepted that the applicant was remorseful. He found that the applicant needed counselling for his childhood abuse, and made a finding of special circumstances (to reduce the ratio of the non-parole period to the sentence). His Honour noted that the applicant had an offer of employment when he was released from custody, which was a positive factor for his potential rehabilitation, but said that, given the applicant’s criminal history, his prospects of rehabilitation were guarded.

Ground one

1. [32]

   This ground concerns the relationship between the guideline judgment of R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 (“Ponfield”) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).

2. [33]

   In Ponfield, the guideline was expressed as follows (at [48]):

3. [34]

   Section 21A(2) of the Sentencing Procedure Act states relevantly:

4. [35]

   In Mapp v R [2010] NSWCCA 269 Simpson J said of the relationship between Ponfield and s 21A at [10] - [11]:

5. [36]

   It is also well established that a person’s prior criminal history is not relevant to the assessment of the objective gravity of an offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24], [32] and Kelly v R [2017] NSWCCA 82 at [58].

6. [37]

   In the part of his Honour’s Remarks on Sentence the subject of ground one, his Honour said the following:

The applicant’s submissions in respect of ground one

1. [38]

   Counsel for the applicant accepted that there is a way to read the challenged part of the Remarks on Sentence so that his Honour treated the applicant’s criminal history and that he was subject to an Intensive Correction Order (“ICO”) in orthodox fashion. However, he submitted that on a fair reading of the Remarks on Sentence his Honour took the applicant’s criminal history and conditional liberty into account in assessing the seriousness of the offence, and thus acted on a wrong principle.

2. [39]

   He acknowledged that counsel for the applicant in the sentence proceedings contributed to the asserted error by making submissions referring to the Ponfield factors, including the applicant’s prior history of similar offending and his being subject to an ICO at the time of the offence.

3. [40]

   He submitted that although his Honour assessed the offence as below the mid range of seriousness, he did not identify where he assessed the offence in the continuum below mid range.

The Crown’s submissions in respect of ground one

1. [41]

   The Crown submitted that his Honour did not take the applicant’s criminal history into account when assessing the objective seriousness of the offence, but rather noted his record as requiring increased weight to be placed on specific deterrence. The Crown submitted that his Honour did not use the applicant being on conditional liberty when he committed the subject offence to elevate the objective seriousness of the offence, but only used it as an aggravating factor on sentence, properly.

Consideration

1. [42]

   Given the reference to Ponfield and the references thereafter to the applicant’s extensive criminal record of similar offences and his being subject to an ICO at the time of the offence in that part of the judgment, and the intermixing of those subjective factors with objective factors of the offending, it is difficult to read Judge Blackmore’s remarks as other than he considered the applicant’s criminal record and him being subject to an ICO in assessing the objective seriousness of the offence. In that way, his Honour erred.

2. [43]

   In that way, ground one is made out.

Ground two

1. [44]

   In evidence was a psychologist’s report, which recorded that the applicant had said he was assaulted in custody in mid-2023 and in response he voluntarily placed himself in protection. There were also in evidence medical documents and documents from Kempsey District Hospital. The applicant did not give evidence in the sentence proceedings.

2. [45]

   Justice Health notes of 9 July 2023 record the following history and treatment:

3. [46]

   The note recorded that the applicant was transferred to Kempsey District Hospital.

4. [47]

   The hospital’s “Discharge Referral Notes” contained the following:

5. [48]

   Counsel for the applicant in the sentence hearing made the following written submissions:

6. [49]

   In oral submissions counsel said:

7. [50]

   In the Remarks on Sentence, Judge Blackmore found that because the applicant suffered from PTSD his time in custody would be more difficult for him.

8. [51]

   In the portion of the Remarks on Sentence the subject of ground two his Honour said:

9. [52]

   Counsel for the applicant acknowledged that the applicant had told the psychologist he recovered physically from the assaults.

The applicant’s submissions in respect of ground two

1. [53]

   Counsel for the applicant submitted that Judge Blackmore minimised the assault to which the applicant had been subject in custody. He noted that the applicant had been assaulted by five or six men, received multiple fist strikes to his head, ear and face and was attacked with a sharp object. He submitted that the Kempsey District Hospital notes indicated that the applicant’s injuries were not inconsequential.

2. [54]

   Counsel for the applicant acknowledged that there was little evidence to support the submission that his placement in protection would necessarily make his time in custody more onerous, and that there was no evidence put before the sentencing judge as to the likelihood of the applicant’s experience in custody being more onerous by reason of his being held with sexual abuse offenders.

3. [55]

   However, he submitted that the submissions made on the applicant’s behalf in the sentence proceedings went beyond the matter of protective custody. He submitted the sentencing judge was directed to the applicant having been assaulted in custody and having sustained injuries, which had made the time he had already served in custody more onerous and to be given greater weight. He submitted that Judge Blackmore erred by not taking those matters into account.

4. [56]

   Counsel submitted that the medical evidence about the assault and injuries was all one way; that the Crown did not join issue on the assault and therefore his Honour’s not accepting the injuries the applicant suffered in the assault did not permit the parties the opportunity to address that issue; that his Honour mistook the facts of the assault, and his Honour’s remarks about the assault suggested he treated it as a trifling matter.

The Crown’s submissions in respect of ground two

1. [57]

   The Crown submitted that the applicant’s appeal ground two was really a complaint about insufficient weight having been given to the assault and its consequences, which is not a proper ground of appeal: Ahmad v R [2021] NSWCCA 30 at [18].

2. [58]

   The Crown submitted that his Honour took into account that the applicant was assaulted in custody but was not satisfied that the evidence established injury of a severity that made custody more onerous for him. The Crown submitted that his Honour did not mistake the facts of the assault, but rather his Honour’s finding was based on the medical evidence tendered on behalf of the applicant in the sentence proceedings, and that his Honour’s assessment of the significance of the injury was open to him on that evidence. The Crown submitted that his Honour did not say anything to the applicant’s counsel in the sentence proceedings to indicate he had formed a positive preliminary view about the matters counsel was submitting on, and thereby did not deny the applicant procedural fairness on the issue of the assault and consequences thereof.

Consideration

1. [59]

   Judge Blackmore took into account that the applicant had been set upon by five or six people and was, as a consequence, being kept in protective custody. His Honour also took into account that the applicant’s PTSD made his time in custody more difficult. There was, as counsel for the applicant acknowledged, no evidence that the applicant was being housed in custody with sex offenders. Nor was there any evidence about the conditions of his protective custody.

2. [60]

   His Honour had regard to the medical evidence. That medical evidence showed a difference between the history reported of a stab injury to the applicant’s left cheekbone and left ear and the results of examination by medical professionals which referred to a “superficial abrasion” to the left cheek, clean and not bleeding, a tiny laceration on the lower earlobe, clean and not bleeding, and no penetrating injuries. The findings his Honour made were open to him on the evidence before him.

3. [61]

   His Honour did not mistake the facts of the assault or injuries. Rather, his Honour’s remarks followed closely the applicant’s account that he was assaulted by five or six people and followed closely the terms of the medical records.

4. [62]

   Having considered the evidence on the subject presented to him, permitted counsel to present written and oral submissions on the subject, and made findings based on the evidence presented to him, though not accepting all of the submissions made on the applicant’s behalf, his Honour did not deny the applicant procedural fairness. His Honour was not bound to accept all of the submissions made to him on that subject; he accepted much of what was submitted to him on that subject.

5. [63]

   I do not consider that his Honour’s remarks indicate that he treated the assault on the applicant as trifling.

6. [64]

   The applicant’s complaint does appear to be that his Honour gave less weight to the applicant’s injuries suffered in the assault on him than was submitted to him. The applicant has not made out ground two.

Resentencing

1. [65]

   Error having been established in respect of ground one, this Court must proceed to re-sentence: Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37.

2. [66]

   In that event the applicant relied on an affidavit in which he said that he works in custody as a yard sweeper; he has support from and contact with his partner and daughter and on his release will live with his partner; he has an offer of employment when he is released; he is on the Buvidal Program and on his release intends to attend the WHOS rehabilitation program. He has not yet had counselling in respect of the effects of his childhood assaults, but intends to undertake such when he is released.

3. [67]

   The Crown sought to rely on a report of an incident involving the applicant in custody on 19 July 2024, described in the reports as a fight. Counsel for the applicant cautioned that if the Court was to take that incident into account adversely to the applicant the Crown would have to prove beyond reasonable doubt that he was the aggressor in the incident. The Crown accepted that. The records contain various accounts of the incident by correctional officers and the applicant and his then cellmate. Each of the applicant and his cellmate accuses the other of an assault and accuses the other of instigating the incident. Each was observed to have some injuries. In those circumstances, on the documents, I am unable to find beyond reasonable doubt that the applicant instigated an assault on his cellmate or assaulted his cellmate without any prior conduct by his cellmate. Therefore I do not use the incident adversely to the applicant in resentencing him.

4. [68]

   In resentencing the applicant I have considered the facts of the offence as noted above, and the maximum penalty and standard non-parole period prescribed for the offence.

5. [69]

   Judge Blackmore assessed the offence as below the mid-range of seriousness. That assessment seems appropriate. The offence could not be considered an offence of low seriousness, considering the manner of entry to the shop and the damage thereby caused, that there were three entries into the property, although in the one night, and the nature of the property stolen and its value.

6. [70]

   The applicant has a long record, which includes many offences of break, enter and steal dating from 1999. That is a matter to be taken into account on sentence, as is his being subject to an ICO for an offence of break, enter and steal at the time of the commission of this offence.

7. [71]

   I have taken into account the applicant’s subjective circumstances, as Judge Blackmore did, and particularly his childhood abuse, as a consequence of which he suffers from PTSD, which reduces his moral culpability for his offence and will make his time in custody more difficult and has done so to date. I also take into account that the applicant resorted to drug use at a young age in an attempt to cope with the impact of the abuse, and the correlation between his drug addiction and his history of criminal offending.

8. [72]

   I take into account that he has attended to his drug addiction, by undertaking the Buvidal program and intends to address that issue upon his release from custody. I also take into account his intention to commence treatment for the trauma resulting from his abuse upon his release from custody. Those matters warrant a finding of special circumstances to reduce the non-parole period from the statutory ratio of 75% of the head sentence, as Judge Blackmore did.

9. [73]

   Taking all those matters into account the sentence I have reached is not less than that imposed by Judge Blackmore. Therefore I would allow the applicant leave to appeal, but dismiss his appeal.

Orders

1. [74]

   I propose the following orders:

   1. (1)

      Grant the applicant leave to appeal against his sentence.

   2. (2)

      Dismiss the appeal.