McDowall v R

1. [1]

   HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.

2. [2]

   SCHMIDT J: I also agree with Adamson J.

3. [3]

   ADAMSON J: The applicant, Kane McDowall, seeks leave to appeal against the aggregate sentence imposed on him by Frearson SC DCJ on 25 August 2017. Leave is sought on the following three grounds:

4. [4]

   Because a parity ground requires acceptance that the sentence is otherwise free from error, I propose to address grounds 1 and 3 before turning to ground 2.

5. [5]

   The applicant and his co-offender, Timothy Clynch, engaged in a series of offences on 9 or 10, 12 and 13 December 2015 which led to several charges against each of them. Because of the parity ground, the co-offender’s offences and indicative sentences are included in the table below, which summarises the offences, maximum terms, standard non-parole periods (SNPP), if any, and indicative sentences. I have highlighted any differences in the sentences indicated in respect of the applicant and the co-offender by using bold print for the applicant’s indicative sentences and italics for the co-offender’s indicative sentences

6. [6]

   As can be seen from the table, the applicant and the co-offender were charged with many of the same offences. The differences between them were:

   1. (1)

      The applicant was sentenced for possess prohibited firearm but the co-offender was not charged with this offence;

   2. (2)

      The applicant was charged with, and pleaded guilty to, aggravated taking of a motor vehicle with assault (s 154C(2) of the Crimes Act 1900 (NSW)), whereas the co-offender was charged with, and pleaded guilty to, the non-aggravated form of the offence (s 154C(1) of the Crimes Act); and

   3. (3)

      The co-offender also stood to be sentenced for two counts of police pursuit and the applicant also stood to be sentenced for two counts of resist officer in the execution of duty.

The facts

1. [7]

   The narrative set out below is taken from the agreed facts which were tendered on sentence.

2. [8]

   The applicant and the co-offender forced entry into a house and several sheds at a rural property in Murrumbateman. They stole items which included hand power tools and assorted calibres of ammunition.

3. [9]

   Some time after 8pm on 9 December 2015, the applicant and the co-offender forced entry into the rear door of the IGA Friendly Grocer Store at Gundaroo. They stole a cigarette machine, a cash register, a filing cabinet and one vodka Cruiser (valued at $6).

4. [10]

   Between 5am and 5.35am on 10 December 2015, the offenders broke into Bailey's Garage, a mechanic workshop, by smashing the front glass door, which caused the applicant to sustain a large laceration to his lower leg. A cash register drawer containing $500 cash was stolen.

5. [11]

   At about 5am on 10 December 2015, the offenders attended the Metro Service Station at Gunning and forced entry into two shipping containers at the rear of the premises. They stole a pair of bolt cutters, a blower vac and a number of security cameras which were stored there.

6. [12]

   When the offenders were taken into custody on 15 December 2015 (see below), investigations were already underway into a report that the BP Service Station at Jugiong had been broken into on 12 December 2015.

7. [13]

   The owner lived a short distance from the service station. When he attended the premises at about 8pm on 12 December 2015, he found them to be intact. Between 10 and 11pm that evening, the owner's wife heard banging and crashing from the direction of the service station. At about 11pm, a witness saw two males in a grey four-wheel drive utility which was stopped out the front of the service station. The witness also observed that the lights were on in the service station. As the witness passed, the lights went off. When the owner attended the premises the following morning at 9am he discovered that they had been broken into. A cigarette stand containing various brands had been stolen with packets of batteries, mobile phone chargers, energy drinks, Milky Ways and other items. Along the route taken by the offenders when they were evading police (see below), police found a number of items including Milky Ways, paperwork in the name of the owner of the BP Service Station at Jugiong and items in the name of Tyler. At the time of their arrest, the co-offender had in his possession cards in the name of Tyler.

8. [14]

   At about 1.50am on 13 December 2015 an owner of the Dog on the Tucker Box Cafe in Gundagai, who resided next to the café, was woken by the sound of dogs barking. She saw a torchlight moving inside the cafe premises and phoned the co-owner to confirm that he was not there before ringing the police. She heard banging and crashing from within the premises and observed a Land Rover Defender with ACT plates parked in front of the cafe. A short time later police highway patrol arrived. Senior Constable Fiddes entered the premises at the front and confronted the two offenders at the rear of the premises. When he attempted to arrest them they resisted. A struggle took place before they fled the premises which resulted in the offenders dropping a number of items including torches, a face mask, a beanie, the applicant’s wallet, a live .0410 gauge shotgun cartridge, cash and a small amount of cannabis.

9. [15]

   Examination of the café indicated that entry had been gained by jemmying the front security screen door. The premises had been ransacked and a coin pressing machine and a number of soft drinks were stolen. A milk crate was located and was loaded with a number of items from the cafe including a medical kit. A large silver-coloured spanner and a jemmy bar, neither of which belonged at the premises, were found.

10. [16]

    Police chased the offenders from the café to the utility vehicle. Senior Constable Fiddes smashed one of the windows of the vehicle by striking it with his torch. The vehicle accelerated away from the police, travelling south down Annie Pyres Drive towards the Hume Highway. The co-offender was the driver and the applicant was the passenger. The two officers returned to their vehicle and drove after the offenders. As the utility continued south on the Hume Highway, a shot was fired from the utility in the direction of the highway patrol vehicle containing the officers. The police continued to follow the utility into the township of Gundagai.

11. [17]

    At about 3.40am when police sighted the utility again on Burley Griffin Way heading back to the Hume Highway, they began another pursuit. Further shots were fired from the utility in the direction of police. Police used road spikes on the Hume Highway which caused the front tyres of the utility to go down. The utility continued north along the Hume Highway. In the Binalong area a further shot was fired towards the police, causing police to drop back from the utility. Some of the pellets hit the police vehicle. Police continued to follow the utility, which was travelling on deflated tyres. The utility left the Hume Highway and entered the Yass Service Centre.

12. [18]

    The two offenders got out of the utility and approached a silver Ford Falcon sedan parked out the front of the Caltex Petrol Station. At the time the vehicle was occupied by the owner Shane Hinchcliff and his 14-year old nephew. The applicant approached Mr Hinchcliff, armed with a shortened 20-gauge shotgun, and yelled, “Get the fuck out of the car or I'll kill you”. Mr Hinchcliff put his hands in the air saying, “Okay, okay, it's no drama" and began to get out of the vehicle. The applicant then pulled him from the vehicle and forced his arm into Mr Hinchcliff’s back, causing a graze and bruising to the skin. At the same time, the co-offender approached the 14-year old from the passenger side and yelled, “Get the fuck out. Get the fuck out.” The child saw something in the hands of the co-offender and assumed it was a firearm because of the one he had seen pointed at his uncle. The child got out of the vehicle and ran away. Around this time, police arrived at the petrol station. The applicant got into the Ford Falcon. Police approached the offenders with their firearms drawn and fired two rounds, although no one was hit. The applicant and the co-offender were arrested.

13. [19]

    Police located the firearm used in the offences in the Ford Falcon sedan which was found to be a 20-gauge standard single shot. The firearm barrel had been sawn off to shorten it and it had a wooden stock. The firearm had been stolen during a break and enter offence at Gundaroo on 6 December 2015.

14. [20]

    An examination of the police vehicle showed lead consistent with lead pellets having being fired at the vehicle during the police pursuit. The near side bumper and windscreen pillar of the police vehicle were also impacted.

15. [21]

    Investigations revealed that the utility had been stolen on 7 December 2015 from Pambula. The number plates on the front did not belong to the vehicle. Also located in the utility were a number of unopened packets of batteries, iPhone chargers, cigarettes, energy drinks, Milky Ways, chocolate bars and cigarette lighters.

16. [22]

    The sentence hearing of the applicant and the co-offender took place on 10 August 2017. The Crown tendered the court attendance notices and the facts, which were agreed, the applicant’s criminal and custodial histories, a DVD of the police pursuit and six photographs, including photographs of the gun. The applicant tendered a letter to the Court which he had written, references and a psychological report dated 17 May 2017 by Alison Cullen, forensic psychologist. The co-offender tendered three references and a report of a psychologist, Jason Borkowski. No oral evidence was adduced.

17. [23]

    The sentencing judge noted that both offenders were entitled to a 25% discount on sentence by reason of their pleas of guilty. His Honour described the offending conduct as a “drug-fuelled rampage of crime, replete with irresponsibility and, on some occasions, considerable danger.” After setting out the facts, his Honour, when addressing sequences 13, 14, 15 and 16 on 9-10 December 2015, said:

18. [24]

    The sentencing judge set out the facts in detail, saying “one has to read the facts to glean just how serious some of the offences are”. Of the assault with intent to take the motor vehicle (for which the applicant was sentenced to the aggravated form of the offence), the sentencing judge said:

19. [25]

    After addressing the police pursuit matters (for which the co-offender, but not the applicant, was to be sentenced) his Honour addressed the two counts of discharge with intent to prevent apprehension (sequences 17 and 18 on 13 December 2015) and said:

20. [26]

    The sentencing judge referred to the possession of the unauthorised prohibited firearm (for which the applicant alone was to be sentenced) and said:

21. [27]

    The sentencing judge compared the criminal histories of the offenders and noted that they both had criminal histories which deprived them of leniency and noted that the applicant was subject to a bond at the time of the offending, which was an aggravating factor on sentence: s 21A(2)(j) of the Act. His Honour summarised the subjective material in relation to each offender. The sentencing judge referred to the co-offender’s childhood and adolescence and noted the following history of substance abuse:

22. [28]

    The sentencing judge referred to the co-offender’s background as “considerably disadvantaged”, accepted that he was remorseful but considered his prospects to be guarded and did not conclude that the co-offender was unlikely to re-offend.

23. [29]

    His Honour turned to the applicant’s subjective circumstances and noted the report which chronicled his history “in enormous detail”. The applicant identified as indigenous through his father. His Honour said of the applicant’s “extremely traumatic childhood” which comprised “physical, mental and psychological abuse perpetrated by his father towards himself, his mother and half-sister”. When the applicant was five years old, his father went to gaol and his mother turned to alcohol which caused her to become abusive and act “like she hated [the applicant]”. He was bullied at school. He spent three separate periods spent in juvenile detention. He did not learn to read at school. He has been in a seven-year relationship with his partner, Sarah, with whom he had a five-year old son. His Honour summarised the applicant’s drug and alcohol history and mental illnesses as follows:

24. [30]

    His Honour continued:

25. [31]

    His Honour accepted that the applicant’s background was “considerably disadvantaged” but referred to the applicant’s possession of a shotgun as being a factor which implied a level of planning. The sentencing judge referred to the risk of serious injury posed by the shooting at police and the need to protect the community. When addressing the purposes of sentencing, his Honour said:

26. [32]

    The applicant submitted that no finding of the objective seriousness of the offence of aggravated take motor vehicle with assault (sequence 13 on 13 December 2015) had been made. It was common ground that the assessment of objective seriousness was an integral part of the sentencing process. The Crown submitted that the sentencing judge had made such an assessment in the following passage in the sentencing judgment (part of which is extracted above):

27. [33]

    The question is whether this passage fulfils the judicial obligation to assess objective seriousness for the purposes of sentencing. There is a statutory requirement to give reasons in s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), which applies to the offence of take and drive motor vehicle with assault because it is listed in the table in Division 1A of Part 4 of the Act. As such, a standard non-parole period has been prescribed, as well as a maximum penalty.

28. [34]

    In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said at [29] of the statutory requirement to give reasons in s 54B(4) of the Act:

29. [35]

    This Court, by reference to this passage has observed that there is no obligation to “classify” the objective seriousness by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63] (RA Hulme J, Beazley P and Walton J agreeing). The imposition of any such obligation would not assist in the transparency of the reasons for sentence in any event. As Basten JA (Beazley P and Wilson J agreeing) observed in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]:

30. [36]

    The requirement to give reasons for an assessment of objective seriousness cannot be satisfied by the use of words such as “mid-range” or “high” or “low”, without more, although these words may often be used in the context of an evaluative description of the offending conduct which fulfils the requirements enunciated in Muldrock v The Queen. What is required is that the judge “identify fully the facts, matters and circumstances” which bear on the sentence imposed, including those which go to objective seriousness.

31. [37]

    In the passage extracted above, the sentencing judge described the offence and its effect on the victims in evaluative terms which fulfilled the requirement to assess objective seriousness. As a matter of substance, the sentencing judge did identify the facts (by setting out a detailed narrative which is summarised above), matters and circumstances (which are set out in the extracted passage) for the sentence imposed for this offence by reference to matters germane to objective seriousness. This ground has not been made out.

32. [38]

    The ground of manifest excess is a challenge to the result of the sentence. It is not necessary for the applicant to identify any particular error in the process that led to the result but merely to persuade the Court that the result was manifestly excessive. The applicant must establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single “correct” sentence and that judges at first instance are to be allowed as much flexibility in sentencing as the application of principle and consistency of approach allow: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).

33. [39]

    In support of the third ground, the applicant contended, first, that there was no indication that the sentencing judge considered the degree of accumulation which produced a lengthy period of imprisonment; and, secondly, that the sentence is “crushing” having regard to his age and background.

34. [40]

    As to the first contention, the sentencing judge specifically referred to accumulation in the reasons as follows:

35. [41]

    The sentencing judge’s reference to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 is a reference to the principle of totality. After Pearce v The Queen, s 53A was inserted into the Act to permit aggregate sentences to be imposed, thereby avoiding the need to impose a sentence for each individual offence and the corresponding requirement to specify commencement and expiry dates for each such sentence. In order to ascertain the degree of concurrency and accumulation for an aggregate sentence, the sum of the indicative sentences may be compared with the aggregate sentence. In the present case, the sum of the indicative sentences is 35 years. The aggregate sentence imposed was 14 years. It can be seen from this comparison that there was a substantial degree of concurrency, as well as some accumulation.

36. [42]

    I turn now to the submission that the sentence is “crushing”, having regard to the applicant’s age and background. The sentence was imposed just before the applicant turned 25. If the applicant is granted parole at the end of the non-parole period of 9 years he will be almost 34 when he is released. The sentence imposed has the effect that he will spend a significant time in what might be regarded as the prime of life in custody.

37. [43]

    Mr Pararajasingham, who appeared on behalf of the applicant, relied on the following passage from R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17] (Spigelman CJ, Whealy and Howie JJ) in support of the submission that the sentence imposed was crushing:

38. [44]

    He submitted that the present case was not one which disentitled the applicant to the “element of mercy” referred to in the above passage. Mr Pararajasingham submitted that the applicant’s “dysfunctional and tumultuous upbringing and the explicit link between that background and his offending behaviours” made applicable the principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. He accepted that the following passage from Bugmy v The Queen at [44] was reflected in the sentencing judge’s reference to “countervailing considerations” in the sentencing judgment:

39. [45]

    The passage relied on by the applicant from R v MAK set out above, appears in a longer consideration of the totality principle in the following passage:

40. [46]

    Although the offending occurred over a few days, it was very serious. The acts of the applicant and co-offender posed a substantial risk to the general community, both in the manner of the driving to avoid police and the use of the firearm to shoot at police and threaten members of the community. As referred to above, there was a substantial measure of concurrency. The indicative sentences were relatively short compared with the maximum penalties and the parole periods indicated were significantly below the standard non-parole periods prescribed for those offences. The sentencing judge was obliged to take into account all objective and subjective factors in determining the sentence to be imposed.

41. [47]

    His Honour was also required to have regard to the purposes of sentencing which include: to ensure that the applicant is adequately punished for the offending; specific and general deterrence; protection of the community; rehabilitation of the applicant; to make the applicant accountable for his actions; to denounce the conduct of the applicant; and to recognise the harm done to the community by the offending conduct: s 3A of the Act.

42. [48]

    Although the sentence was lengthy from the applicant’s point of view and may be regarded by him as “crushing” because of the proportion its length and the non-parole period bear to his age when taken into custody and upon his earliest release day, the length of the indicative sentences and the substantial degree of concurrency would appear to contain a degree of mercy.

43. [49]

    I am not persuaded that the sentence imposed is manifestly excessive. Ground 3 has not been made out.

44. [50]

    As referred to above, the applicant’s sentence was for a term of imprisonment of 14 years with a non-parole period of 9 years. The co-offender’s sentence was for a term of imprisonment of 12 years with a non-parole period of 7 years and 8 months. The table at the commencement of these reasons sets out the indicative sentences for each offence incorporated within the aggregate for both the applicant and the co-offender.

45. [51]

    Some observations may be made from the comparison. First, with the exception of the two discharge firearm with intent to resist arrest offences, for each offence with which the applicant and his co-offender were both charged, the indicative sentence is identical. The differences in the aggregate sentences can be accounted for by the circumstance that the applicant received a greater sentence for take motor vehicle with assault since he was charged with the aggravated version of that offence (sequence 13 on 13 December 2015), whereas the co-offender was charged with the non-aggravated version. Although the co-offender was charged with two counts of police pursuit and the applicant was not, the maximum penalty for a first offence of police pursuit was only 3 years. The sentences imposed on the co-offender for these two offences were 22 months’ imprisonment and 2 years and 3 months’ imprisonment respectively. By contrast, the principal additional offence for which the applicant was sentenced was possess unauthorised prohibited firearm which carried a maximum penalty of 14 years with a standard non-parole period of 4 years, for which the applicant was sentenced to a term of 3 years 6 months with a non-parole period of 2 years and 4 months.

46. [52]

    For the two offences of discharge firearm with intent to resist arrest, the sentences imposed on the applicant were greater, having regard to his role in actually shooting at police whereas the co-offender was driving the vehicle at the time.

47. [53]

    Mr Pararajasingham contended that the co-offender, by driving the vehicle “contributed equally, if not more, to the overall criminal objective of evading arrest” and that the indicative sentences for these offences revealed error which contributed to the disparity.

48. [54]

    It does not follow from the principle that co-offenders engaged in a joint criminal enterprise are equally guilty for offences committed jointly (R v Tangye (1997) 92 A Crim R 545 (Hunt CJ at CL, McInerney J and Sully JJ agreeing), citing McAuliffe v The Queen (1995) 183 CLR 108 at 113-116; [1995] HCA 37) that they are equally culpable for the purposes of sentencing. It is a matter for the sentencing judge to determine how their relative moral culpability (as opposed to legal liability, which has, by definition, been established) should be reflected in their respective sentences. As Dawson J said in Lowe v The Queen (1984) 154 CLR 606 at 623; [1984] HCA 46:

49. [55]

    It was, in my view, open to the sentencing judge to regard the applicant’s culpability for the two discharge firearm with intent to resist arrest offences as greater than the co-offender’s. His Honour was entitled to place weight on the circumstance that the applicant was the one who was firing at police and regard the co-offender’s role in driving the vehicle as lesser.

50. [56]

    Mr Pararajasingham also raised in support of ground 2 the alleged “artificiality” in the charging of the applicant with aggravated assault with intent to take a motor vehicle without consent when the co-offender was charged with the non-aggravated form of the offence. He relied on the following passage from the sentencing judgment in support of this submission:

51. [57]

    In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 the plurality (French CJ, Crennan and Kiefel JJ) referred at [30] to “the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions”. In substance, the sentencing judge in the passage set out above was saying that the differential charging of the offenders with different offences (the applicant under s 154C(2) and the co-offender under s 154C(1)) was “a little artificial” but that his Honour was required to take into account in sentencing the offenders that they had been, in that instance, charged with, and stood to be sentenced for, different offences. I discern no error in the sentencing judge’s approach, which accorded with what the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [35]:

52. [58]

    The applicant’s allegation of disparity was also founded on the differences between their subjective circumstances. Mr Pararajasingham contended that the sentencing judge distinguished between the applicant’s and the co-offender’s subjective circumstances in a way that appeared to recognise that the applicant’s traumatic and abusive childhood may have rendered him more susceptible to substance abuse and using violence to obtain drugs. However, Mr Pararajasingham submitted that, notwithstanding this recognition, the sentencing judge did not ameliorate the sentence imposed on the applicant to give such factors full weight.

53. [59]

    It can reasonably be inferred from the identical sentences imposed on the applicant and the co-offender, when read with the reasons, that the sentencing judge regarded the respective subjective circumstances of the applicant and the co-offender as effectively neutral as between them. While the sentencing judge noted that the applicant was on a bond at the time of the offending which aggravated the sentence, this plainly did not have the effect of increasing the applicant’s indicative sentence for the offences for which the co-offender was also charged. I consider that a fair reading of the sentencing judgment indicates that the sentencing judge considered the applicant’s subjective circumstances (including mental health issues) made him less culpable but more dangerous. Thus, there was less reason to punish the applicant (s 3A(a) of the Act) or make him accountable for his offences (s 3A(e)) but a greater need to protect the community from him (s 3A(c)). I consider this to be evident from the passage in the sentencing judgement (extracted above) in which his Honour referred to “countervailing considerations”.

54. [60]

    His Honour’s approach was consistent with that endorsed by the High Court in the following passage from Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14:

55. [61]

    The sentencing judge’s detailed and carefully reasoned judgment reflected the challenges of imposing aggregate sentences on two co-offenders with different subjective circumstances and some different (although much of the same) involvement in a series of offences. I discern no error in the respective sentences of the applicant and his co-offender which could rationally give rise to a justifiable sense of grievance. The sentences imposed were open to his Honour and the reasons adequately explain why they were different. Ground 2 has not been made out.

56. [62]

    I propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.