Simpson v R

1. [1]

   LEEMING JA: I agree with Davies J

2. [2]

   DAVIES J: The applicant pleaded guilty in the Burwood Local Court to three charges as follows:

3. [3]

   On 15 June 2018, his Honour Judge Wilson SC in the District Court, after allowing a 25% discount for the early pleas, imposed an aggregate sentence of four years and six months commencing 28 October 2016 and concluding 27 April 2021 with a non-parole period of three years and one month expiring on 27 November 2019.

4. [4]

   The applicant now seeks leave to appeal against the sentence on two grounds:

5. [5]

   The circumstances of the offending appeared in a statement of agreed facts. They may be summarised as follows.

6. [6]

   Between 12:45pm and 6:15pm on 9 August 2016 the applicant entered a unit complex in Beresford Road, Strathfield. He scaled the building to a first floor balcony where he entered an apartment by forcing the lock to the screen door and a sliding glass door to the apartment.

7. [7]

   Whilst in the apartment, the applicant stole two sets of keys to the occupants’ black Volkswagen Golf which was locked and secured in the basement car park of the unit complex. During the ransacking of the apartment, the applicant dropped his mobile phone in the bedroom. He then left the apartment through the front door. He used the fire stairs and gained access to the basement car park. Using the stolen keys he entered the black Volkswagen Golf and left the unit complex.

8. [8]

   On 16 August 2016 the police conducted a number of checks which revealed that the applicant attended City Pawn Star in City Road, Chippendale on 10 August 2016. The applicant provided the attendant with his own photo identification and gave his address as XX Queen Street, Concord West. He then pawned a gold rope necklace and a gold yellow bracelet. These items belonged to persons other than the owners of the Beresford Road apartment.

9. [9]

   On the same day the applicant attended Combined Loan Office in George Street, Sydney. He provided the attendant with his own photo identification and gave the same address in Queen Street, Concord West. He then pawned the following items:

10. [10]

    All of these items belonged to the same persons who owned the two items pawned at City Pawn Star. The applicant obtained a total of $3,050 from the pawned items.

11. [11]

    When the police attended the Beresford Road apartment, they seized the mobile phone that had been left behind at the premises. When police conducted checks on the SIM and IMEI number of the phone, they ascertained that it was first registered at a Vodafone store on 24 May 2016 by the applicant. The phone number was the same as the one the applicant provided at the compulsory drug treatment correctional centre as his contact phone number as part of his parole conditions for a prior conviction.

12. [12]

    Police then attended the applicant's home in Queens Street, Concord West. As they drove west along Wallaroy Street, Concord West they observed the stolen black Volkswagen Golf parked on the northern side of Wallaroy Street.

13. [13]

    Police contacted the staff at the compulsory drug treatment correctional centre and arranged for them to transport the applicant to Auburn Police Station when he next attended the centre. The applicant was brought to Auburn Police Station on 17 August 2016.

Grounds of appeal

1. [14]

   It is convenient to deal, as the parties did at the hearing of the appeal, with ground 2 first.

2. [15]

   In his Remarks on Sentence, his Honour said this concerning the objective seriousness of the offending:

3. [16]

   The applicant, whilst accepting that the assessment of objective seriousness is quintessentially a matter for the trial judge and that this Court will be slow to interfere, submitted that less restraint would be exercised by this Court where the assessment was based on a short and straightforward set of agreed facts together with uncontroversial evidence from the applicant and the psychologist’s report. In that regard, the applicant submitted that the offences of both break, enter and steal, and of take and drive conveyance were ordinary examples of those offences with no aggravating features enhancing their objective seriousness.

4. [17]

   In relation to the offence in sequence 3 contrary to s 112(1)(a) of the Crimes Act, the applicant submitted that the offence of break, enter and steal was only one example of the offence covered by the section which was the offence of breaking, entering and committing a serious indictable offence. The applicant pointed to the matters listed in this Court’s decision in Re Attorney-General’s Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435 to submit that few if any of the matters listed there were present in the applicant’s offending. There was no significant degree of planning or organisation, the offence was not committed at the home of anyone who was in any way vulnerable, it was committed at a time when it was least likely that persons would be present and it was not accompanied by vandalism or any significant degree of damage.

5. [18]

   In relation to the sequence 2 offence of taking and driving a conveyance, it was submitted that all that occurred was that the vehicle was taken from the premises and driven to the street near where the applicant lived. There was no suggestion of any damage to the vehicle or of any particular unlawful manner of driving the vehicle.

6. [19]

   The applicant pointed to what was said to be the agreement between the Crown and his own counsel before the sentencing judge as to the level of objective seriousness of the offences, and to what the sentencing judge had said to the applicant’s counsel about that matter during submissions.

7. [20]

   The Crown drew attention to what was said in Mulato v R [2006] NSWCCA 282 concerning the characterisation of the degree of objective seriousness as being classically within the role of the sentencing judge. The Crown submitted that the defence submissions to the sentencing judge focused on the absence of aggravating factors in the offending. The Crown pointed out that the absence of such factors does not amount to mitigation. Reference was made to TM v R [2018] NSWCCA 88.

8. [21]

   The Crown submitted that the sentencing judge was not bound by the apparent agreement between the parties as to the degree of objective seriousness. Nor, the Crown submitted, was there any procedural unfairness because the sentencing judge made reference to the arguments put forward by defence counsel which were based on the absence of aggravating factors.

9. [22]

   At the sentence hearing counsel for the Crown described the objective criminality of the offending as:

10. [23]

    When counsel for the applicant was addressing, the sentencing judge said this:

11. [24]

    During the Crown’s submissions in reply, the following exchange occurred:

12. [25]

    Whilst his Honour in his Remarks on Sentence noted the submission of counsel for the applicant that the break and enter charge fell at the lower end of the range of objective seriousness, his Honour said nothing about the Crown’s submission in that regard. Further, without providing any explanation for it in the face of both of those submissions, his Honour simply said that he considered the offending fell within the mid-range or perhaps just below the mid-range of objective seriousness. He expressed a similar opinion about the take and drive offence and the offence of dispose of stolen goods.

13. [26]

    It may be accepted that the determination of objective seriousness is an important aspect of the sentencing judge’s responsibility and will not lightly be interfered with by this Court. However, the exchange set out at [23] above raises matters of procedural fairness. Counsel for the applicant was entitled to believe that the sentencing judge had accepted the Crown’s submission that the objective criminality was towards the bottom of the range. Further, his Honour’s lack of explanation for the view at which he arrived, particularly in the light of the Crown’s submission, and taken with the objective indicia of the offending, indicate to me that his Honour has fallen into error.

14. [27]

    In some cases, the only way an adequate explanation can be provided for where an offence lies in the range of objective criminality, is to note not only what factors are present but also what factors are absent. That is not to conclude that the absence of some factors will mitigate the offending, but only to help to place the offending correctly on the spectrum. The need to do this may be highlighted in cases where guideline judgments list factors which should be taken to aggravate an offence.

15. [28]

    In Ponfield Grove J (Spigelman CJ and Sully J agreeing) said this of an offence against s 112 of the Crimes Act at [19]:

16. [29]

    There may be some doubt about whether the sentencing judge was assessing objective seriousness of the offence of break, enter and steal in contradistinction to the offence to which s 112(1)(a) refers (break, enter and commit a serious indictable offence), but I am prepared to accept that his Honour was considering the former.

17. [30]

    This Court in Ponfield also listed some 11 factors about which it said at [48]:

18. [31]

    In relation to sequence 2, the only evidence was that the vehicle was driven from the Beresford Road premises to Concord West and parked in the street.

19. [32]

    It may be accepted that a sentencing judge is not expected to provide elaborate reasons for a conclusion about objective seriousness, but the parties and, for that matter, this Court, need to understand the basis for the conclusion. In this matter, his Honour simply recited submissions from the applicant, said nothing about the Crown’s submissions which were to similar effect, and then stated his conclusions which were not obviously supported by the facts. The need for reasons is emphasised by the exchange recorded at [23] above, even if such an exchange did not result in procedural unfairness to the applicant.

20. [33]

    In relation to the charge of disposing of stolen goods, his Honour’s remarks provide a strong indication that his Honour believed that the offence was concerned with the disposal of goods up to a maximum of $5000 when in fact there is no limit to the value of the goods under s 189 of the Crimes Act. The Crown submitted that the error was not material, and that the real value of the pawned goods was likely to have been more than the $3050.

21. [34]

    I do not agree that the error is immaterial. It is impossible to accept that a belief by the sentencing judge that the maximum value in respect of which s 189 applies would not have influenced his view about the objective seriousness of the offence. On any view, the value of the goods disposed of would be a significant factor in coming to that view. That is the more so here because there was nothing in the objective evidence that pointed to any aggravating features of the offending.

22. [35]

    In my opinion, his Honour’s assessment of the objective seriousness of each of the offences is attended with error. This ground is made out.

23. [36]

    Since error has been found in relation to the assessment of objective seriousness, it is not strictly necessary to deal with this ground. Submissions in relation to it will be taken into account on the re-sentence exercise.

Re-sentence

1. [37]

   The Crown sought to rely on its submissions relating to manifest excess in relation to re-sentencing. The Crown’s position was that the sentence imposed was neither unreasonable nor plainly unjust. The Crown drew attention to the applicant’s unsatisfactory criminal history and to the fact that the offences were committed whilst the applicant was on parole for another offence against s 112 of the Crimes Act. The Crown submitted that the indicative sentences and the aggregate sentence were lenient when those aggravating factors were considered, and when regard was had to the applicant’s poor prospects of rehabilitation and likelihood of reoffending. In that way, it was submitted, no lesser sentence was warranted.

2. [38]

   The level of objective seriousness for the charge of break, enter and commit a serious indictable offence should be regarded as being in the low range of offending. Minimal planning was involved. The locks on the screen door and the sliding glass door were forced and it may be accepted that the applicant went through the victim’s belongings in an endeavour to find the car keys. It does not appear that any other damage was caused to the victim’s property. An aggravating factor was that it was committed at the home of the victims.

3. [39]

   The offence of take and drive a conveyance without consent should also be assessed as being in the low range of objective seriousness. The motor vehicle was driven to a street near where the applicant lived. Nothing else is known about the offence. There is also something of an "overlap" with the offence of break, enter and steal, in that the subject matter of the stealing (the car keys) served only to permit the taking of the motor vehicle.

4. [40]

   The offence of disposing of stolen property should be regarded as being in the low range of objective seriousness. Although eight items of property were involved, the total value was said to be $3,050. The applicant provided his own photo identification and gave his own street address with the result that he was readily apprehended.

5. [41]

   Two aggravating factors of some seriousness in relation to all offences are the applicant’s extensive criminal history including a number of offences involving break, enter and steal, and that fact that the applicant was on parole from one such offence at the time of the present offending.

6. [42]

   A report from a forensic psychologist, Mr Megan Godbee, reported that the applicant’s early childhood was good and that he felt very lucky compared to people who did not have parents to care for them or food on the table. He told the psychologist that his parents’ relationship was ‘really good’ and said that he never witnessed any violence between them. However, in a subsequent letter written to the sentencing judge, the applicant said that what he left out when he was interviewed by the psychologist was his parents’ excessive alcohol abuse and domestic violence. He said that the reason he did not want to talk to the psychologist about it was out of respect for his mother, and that he did not want her to feel embarrassed or feel like she was in any way responsible for the bad choices he had made.

7. [43]

   The applicant had told the psychologist that his father engaged in heavy alcohol consumption throughout his childhood and he said that it "wasn't nice growing up with that". He said that his father was not much of a positive role model. He said that his mother ended the relationship with his father when the applicant was approximately 15 years old because she had had enough of the arguing.

8. [44]

   The psychologist reported that the applicant first consumed alcohol when he was approximately ten years old. He told the psychologist that alcohol had never caused any problems for him. He said that he began smoking cannabis at the age of 13, and that he used cannabis once every three or so months.

9. [45]

   When he was about 15 years old the family moved to Redfern and at that time he began using heroin with other teenagers in the neighbourhood. He was using up to half a gram per day until the age of 30 despite overdosing on two occasions. He participated in two four-month rehabilitation programs and also went through the Youth Drug Court, but did not find these helpful. By the age of 30 he began to realise the impact that heroin use was having on his life, and he decided to abstain from the drug. At the time he spoke with the psychologist he had been on the methadone program for four years. He had also completed the Compulsory Drug Treatment Centre program whilst in custody, and found that helpful.

10. [46]

    The applicant gave evidence before the sentencing judge that he had been subject to urinalysis well over 100 times whilst in the drug treatment program and he had never returned a positive result for illicit substances. The applicant told the psychologist that he had not used substances in the last five years including when he was most recently in the community. There was evidence of one subsequent custodial infringement of failing a prescribed drug test. The drug involved was Quetiapine (Seroquel), an anti-psychotic, which was not prescribed for him. That is said to be a drug which is also used as a sleeping pill in prison.

11. [47]

    The sentencing judge was satisfied that the applicant was remorseful for the offending and that rehabilitation was not entirely out of the question, given the advances he had made in relation to his drug habit. On the basis of his criminal history the sentencing judge considered that the likelihood of reoffending was high which increased the need for specific deterrence. Subject to what follows, I agree with those assessments.

12. [48]

    A recent affidavit from the applicant, prepared for the purpose of resentencing, discloses that the applicant has completed a number of courses whilst in custody including the EQUIPS Addiction Program. In addition, whilst at Macquarie Correctional Centre the applicant attends Narcotics Anonymous. He remains on the methadone program. He has recently been reclassified to a “B” classification, which is a minimum classification. That has enabled him to move to Macquarie Correctional Centre which is a “working gaol”. That unchallenged material suggests that the applicant’s prospects for rehabilitation may be better than they were at the time he was sentenced on 15 June 2018.

13. [49]

    The applicant is entitled to a discount of 25% for his early pleas.

14. [50]

    I consider, for the reasons given by the sentencing judge, that special circumstances exist. There is a high risk of institutionalisation and he needs an extended period of supervision in the community.

15. [51]

    I propose an aggregate sentence of four years commencing 28 October 2016 and expiring 27 October 2020 with a non-parole period of two years and eight months expiring 27 June 2019. The indicative sentences are as follows:

Conclusion

1. [52]

   In my opinion the following orders should be made:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed by Judge Wilson SC in the District Court on 15 June 2018.

   4. (4)

      In lieu, sentence the appellant to an aggregate sentence of four years’ imprisonment commencing 28 October 2016 and expiring 27 October 2020 with a non-parole period of two years and eight months expiring 27 June 2019.

2. [53]

   BUTTON J: I agree with Davies J.