Glare v R

LEEMING JA: I agree with Hamill J, for the reasons his Honour gives, that the Crown was correct to concede that the sentence imposed on 23 October 2014 is attended by error, and that a lesser sentence is required. I agree with the aggregate sentence proposed by Hamill J and the indicative sentences indicated by his Honour, and the consequence that the applicant is entitled to be released immediately, in accordance with s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

HAMILL J: The applicant seeks leave to appeal against an aggregate sentence imposed by his Honour Judge Cogswell SC in the District Court sitting at Albury on 23 October 2014. He raises two grounds of appeal, each of which has significant merit. The respondent concedes that error is established in relation to the first ground of appeal. The applicant accepts that the second ground of appeal, which relies on principles of parity and proportionality, need not be determined in terms but that the matters argued under that ground should inform the exercise of re-sentencing. The applicant submits that a different, less severe sentence is warranted and ought to be imposed. The respondent disputes this and argues that this Court would form the view that no lesser sentence than that imposed by the District Court is warranted.

The concession in relation to the first ground of appeal is correctly made. In exercising the sentencing discretion afresh, I have concluded that a different, less severe sentence is warranted and ought to be imposed. The application for leave to appeal should be granted, the appeal allowed and the applicant resentenced. The sentence I propose will result in the applicant’s immediate release. These are my reasons for those conclusions.

The applicant pleaded guilty to seven offences pursuant to ss 112(2) and 113(2) of the Crimes Act 1900 (NSW). The four counts of aggravated break, enter and steal under s 112(2) carried a maximum penalty of 20 years and a standard non-parole period of 5 years. The three counts of aggravated break and enter with intent to steal carried a maximum penalty of 14 years: s 112(3). In each case, the circumstance of aggravation was being in company: s 105A.

Apart from three offences of drink-driving committed in 2002, 2005 and 2012, the applicant had no prior criminal history. His involvement in this series of offences was aptly explained in the opening paragraphs of the sentencing Judge’s remarks on sentence:

The offences were serious by their nature and repetition but, as Cogswell DCJ found, they fell towards the bottom of the range of objective seriousness contemplated by ss 112(2) and 113(2). In particular, the circumstance of aggravation in each case was that the applicant was in company with his co-offenders: see paragraph (b) of the definition in s 105A. That may be contrasted with the other circumstances of aggravation defined in section 105A namely (a) being armed with a weapon, (c) using corporal violence, (d) inflicting injury, (e) depriving a person of their liberty and (f) entering premises knowing that there is a person inside. Further, the offences were committed in a very amateur fashion and were largely unplanned.

The facts of the offences were summarised by the sentencing judge in the following way:

Counts 1-3 took place over a seven day period while counts 4-7 occurred six months later over a period of a little less than one month.

There were four offences on a Form 1 to be taken into account in sentencing for count 5: s 33 Crimes (Sentencing Procedure) Act 1999 (NSW). These were possession of housebreaking implements, receiving stolen property, larceny and enter a building with intent. There were twelve offences on a Form 1 attached to count 7. These were 7 counts of receiving, 3 counts of dealing with the proceeds of crime and 2 counts of possessing unlawfully obtained goods.

The original notice of appeal, filed on 26 May 2015, contained this single ground. In view of the delay and proximity of the applicant’s release date, the Registrar listed the matter urgently. The respondent fairly acknowledges that this ground is established.

The learned sentencing Judge held that the applicant was entitled to a reduction in his sentence of 40% based on his plea of guilty and cooperation with law enforcement authorities. His Honour indicated the individual sentences that he would have imposed and then indicated the starting point for the aggregate sentence (5 years). It was at that point that the 40% discount was applied; resulting in a term of three years in relation to which his Honour fixed a non-parole period of 18 months.

Where a sentencing judge imposes an aggregate sentence under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), the Judge must record the individual sentences that would have been imposed on each count. These individual “indicative” sentences should represent the sentence after the application of a discount for a plea of guilty or similar: s 53A(2)(b); R v Cahill [2015] NSWCCA 53. In R v Cahill Johnson J (with whom Leeming JA and Schmidt J agreed) said:

The respondent’s concession that error is disclosed should be accepted.

It is accordingly necessary for this Court to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [40]-[43].

The applicant has raised a second ground of appeal based around considerations of parity in relation to count 3 and count 6. While there is some ostensible merit in this ground, it is not necessary to come to any final conclusion given that the Court is to exercise the sentencing discretion afresh and, in doing so, will take into account the known sentencing outcomes for the co-offenders in respect of count 3 (Simon Garsed) and count 6 (Benjamin Clancy).

While the offences are serious and repetitive, they are at the lower end of the range of objective seriousness that might be encountered for offences under ss 112(2) and 113(2).

In Attorney General’s Application (No 1); R v Ponfield and Ors [1999] NSWCCA 435; 48 NSWLR 327, Grove J (with whom Spigelman CJ and Sully J agreed) pronounced a non-numerical guideline judgment in relation to the offence of break, enter and steal. While the present case concerns the aggravated offence in relation to which a standard non-parole period now applies, the factors identified in the guideline judgment remain important in assessing the objective seriousness and the appropriate level of sentence in any particular case. Grove J said:

The first count charged against the applicant involved significant damage to property committed by one of the co-offenders. Counts 4 through to 7 were committed while the offender was on bail. There was also a “multiplicity” of counts. Otherwise, the matters that Grove J identified as aggravating the criminality from an objective perspective were absent in the present offences. While there was a return to two of the premises, this was indicative of the amateur nature of the offending rather than the kind of systematic “repeat incursions” of which Grove J was speaking in paragraph (vii).

Considerations of deterrence, both general and personal, mean that the only appropriate penalty was (and remains) the imposition of a custodial sentence: s 5(1) Crimes (Sentencing Procedure) Act. However, the subjective or personal case presented by the applicant was a moving and compelling one. He came to court with significant family and community support and had taken significant steps in overcoming his pernicious addiction to methylamphetamine which had led him into the company of those with whom he committed the offences and into the commission of the offences as a means to obtain money to fund his drug habit.

A pre-sentence report described the applicant’s personal history. He was born and raised in the town of Corowa and was the youngest of 3 children who had a positive upbringing. Nothing in his family background explained his resort to crime. By the time he came to be sentenced he was married with two children aged 4 and 1 years old. He enjoyed excellent support from his family. He had completed year 10 in the local high school and then held a variety of jobs including two years of service with the Australian Navy. Until his 12 month interaction with the drug “ice” it seems that he was in full-time employment for all or most of his adult life. He expressed genuine contrition and remorse and was described as “fundamentally pro-social, and appeared to demonstrate good insight into his offending behaviour”. The author of the presentence report assessed him as being a low to medium risk of reoffending.

There were a variety of references and testimonials tendered on his behalf. These spoke highly of his character, work ethic and involvement in the local community. He had played football and cricket with local clubs and was an active contributor to these clubs. Subject to the drink driving offences to which I have referred, he was a person of good character prior to his involvement with drugs.

An affidavit read on re-sentencing showed that the applicant has made the most of the limited opportunities to rehabilitate while in custody. He is undertaking a TAFE course in Skills for Work and mathematics. Upon his release he has a job opportunity with a qualified mechanic with whom he previously worked. He has been subject to threats from other inmates and some acts of victimisation as a result of the assistance he provided to police. As a result, he has been kept in protective custody.

Based on his strong employment record, family support and the efforts he has made to defeat his drug habit, his prospects of rehabilitation appear to be very good. Subject to the obvious caveat that this is an exercise in prediction, he is unlikely to offend again. Those assessments are also strongly related to the expectation that his experience in custody will have a salutary impact on him and will achieve the purpose of specific or personal deterrence. His prospects really turn on his ability to avoid illegal drug use.

The sentencing Judge allowed a combined discount of 40% and that appears to be an appropriate one given the early plea and contents of his recorded interview on 4 April 2014. The sentencing Judge also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and made a significant adjustment to the proportion between the total sentence and the non-parole period.

Like the sentencing Judge, I am of the view that it is appropriate to impose an aggregate sentence under s 53A. I would also find special circumstances pursuant to s 44(2B) largely in the desirability for the applicant to have a lengthy period of supervised parole so that he has the best chance to remain drug-free and to become again a valuable member of the community. In reaching that conclusion, I also take into account the difficulties that the applicant has experienced in custody.

I have considered and taken into account the sentences imposed on the co-offenders in respect of counts 3 and 6. Timothy Garsed was sentenced to a total sentence of 18 months with a non-parole period of six months in relation to count 3. He had a substantial and relevant criminal history and there was an offence of possessing house-breaking implements taken into account in sentencing. Benjamin Clancy was sentenced to a total sentence of one year and ten months with a non-parole period of nine months in relation to count six. He too had a significant criminal history. On the other hand, the applicant committed count 6 while he was on bail for similar offences. Each of those co-offenders received a discount of 25% for their pleas of guilty but, unlike the applicant, had not assisted the authorities. However, the applicant was sentenced in relation to a multiplicity of similar offences. While a comparison between the individual circumstances is difficult, the task must be undertaken: see at Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [30]. I agree with the applicant’s submission that considerations of equal justice suggest that the indicative sentences for the applicant should be somewhat less than those imposed on the co-offenders. As Dawson and Gaudron JJ said in Postiglione v The Queen [1997] HCA 26;189 CLR 295 at 301:

For the purpose of s 53A(2), I record that I would propose an aggregate sentence and that the individual sentences that would have been imposed (after taking into account relevant matters, the application of the 40% discount and some rounding up and down of the numbers) are as follows:

The indicative sentence for count 1 is significantly higher than counts 2 and 3 because of the property damage occasioned to the Corowa Golf Club. Counts 4-7 attract higher sentences because each of those offences was committed while the applicant was on bail. That is a matter of significant aggravation. Count 7 is the highest indicative sentence because of the other (12) offences to be taken into account on the Form 1. Personal deterrence and retribution have greater weight in relation to that matter: Attorney General’s Reference No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42].

If aggregate sentences were not to be imposed there would necessarily be a degree of accumulation between the sentences. Given their proximity in time there would be very little accumulation between counts 1, 2 and 3 and those sentences would largely be ordered to be served concurrently. Similarly, there would be little accumulation as between counts 4, 5, 6 and 7 themselves. However, there would be an accumulation of something in the order of three months between the two sets of offences that is between counts 1 – 3 and counts 4 – 7. I have reached those discretionary conclusions by reference to the principle of totality and noting the similarity in the offending, the timing of the offences and the fact that the multiplicity of offending is a factor taken into account under the guideline judgment in assessing the objective criminality (while, at the same time, complying with Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45]).

The aggregate sentence that I would impose is 2½ years with an aggregate non-parole period of one year and three months. This sentence has already expired and, under its terms and the provision in s 50 Crimes (Sentencing Procedure) Act, the applicant is entitled to be released immediately.

The orders that I would propose are:

FAGAN J: I agree with Hamill J.