Johan v R

1. [1]

   PAYNE JA: On 23 June 2017, Blackmore SC DCJ sentenced the applicant together with a Ms Quintero, a Ms Carvajal and a Ms Salazar in respect of four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW). Three further such charges and a charge of aggravated break and enter with intent under s 113(2), were taken into account on a Form 1. [1]

2. [2]

   The applicant was sentenced to an aggregate sentence of 6 years and 9 months’ imprisonment, with a non-parole period of 5 years commencing 17 September 2015 and ending on 16 September 2020. His Honour recommended that the applicant be released on parole without supervision at the end of the non-parole period.

3. [3]

   On 31 August 2018, this Court (Simpson AJA, Schmidt and Button JJ) upheld the appeal against the sentences of the applicant’s three co-offenders: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190. This applicant had filed a notice of intention to appeal but for reasons not presently relevant he took no part in that appeal. The orders made by the Court were:

4. [4]

   The indicative sentences imposed were:

5. [5]

   The applicant now seeks leave to appeal against his sentence out of time. The Crown does not oppose leave to appeal out of time being granted. Leave should be granted.

6. [6]

   The applicant seeks leave to appeal against his sentence on the following grounds:

   1. (1)

      “His Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period.

   2. (2)

      His Honour erred in failing to nominate non-parole periods for each offence as required by s.54B(4) of the Crimes (Sentencing Procedure) Act 1999.”

7. [7]

   On this appeal, the Crown conceded that his Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period. Ground 1 must be allowed. Ground 2 was abandoned by Mr McLachlan, counsel for the applicant, at the commencement of his submissions.

8. [8]

   Given that error has been acknowledged by the Crown in relation to ground 1 this Court must proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

9. [9]

   In conducting that resentence, the Crown accepted that lesser indicative sentences and a lesser aggregate sentence were warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3).

Resentence

1. [10]

   For the purposes of resentencing, it is appropriate, in the absence of challenge by either party to findings of the sentencing judge, to adopt those findings of fact for the purposes of resentencing: DL v The Queen [2018] HCA 32; 92 ALJR 764. I take into account the legislative guideposts of the maximum penalty of 20 years and the standard non-parole period of 5 years.

2. [11]

   Between 10 and 17 September 2015, the applicant was part of a joint criminal enterprise that broke into eight homes. The applicant and three co-offenders pleaded guilty at the first available opportunity to four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act, and requested that a further three such charges, and an aggravated break and enter with intent under s 113(2), be taken into account on a Form 1. A statement of agreed facts was tendered before the sentencing judge. His Honour summarised those facts as providing:

3. [12]

   The agreed facts also established that:

   1. (1)

      during the commission of each offence, Mr Johan was one of those who entered the premises, with an unknown male. In some cases they forced open locks, windows or doors. In another they removed a flyscreen from a window which had been left open. In some cases, a security alarm panel was taken off a wall, in one case causing $7,000 damage;

   2. (2)

      on 9 September and during the third offence committed on 14 September, Ms Carvajal also entered the premises, while Ms Salazar and Ms Quintero remained outside as lookouts;

   3. (3)

      on 10 and 16 September, it was Ms Salazar who entered the premises and Ms Carvajal and Ms Quintero who remained outside as lookouts;

   4. (4)

      on 11 September and twice on 14 September, Ms Carvajal, Ms Salazar and Ms Quintero all remained outside as lookouts; and

   5. (5)

      during the final offence on 17 September, Ms Salazar and Ms Quintero remained outside as lookouts, while Ms Carvajal waited in one of the vehicles, which she eventually drove off, with Ms Salazar then driving the second vehicle.

4. [13]

   The sentencing judge found:

5. [14]

   I adopt his Honour’s characterisation of the objective seriousness of each of the offences as just below the middle of the range.

6. [15]

   Adapting the findings of the sentencing judge on this topic, I find that the applicant came to Australia from Mexico apparently intending to learn English. He was married at one stage and has two children from that former relationship. He also has two other children. When the applicant came to Australia he decided to work to increase his income. He worked in Melbourne doing some painting. During the course of that work he fell from a ladder and exacerbated a previous injury he had acquired from a motor vehicle accident. He has been left with a painful leg injury which has not been treated in custody except with analgesia.

7. [16]

   The applicant has the injury, which he acquired before these offences. There was no evidence at the original sentencing hearing or on this appeal that his present medical treatment in custody is not appropriate. Since being in custody the applicant has been employed as a sweeper, which indicates that he is a trusted inmate.

8. [17]

   The applicant is a native Spanish speaker and, whilst he now has some English language skills, those language skills are minimal and that fact limits his interactions in custody. The prison documents that were tendered in the proceedings indicate that the offender had no contact phone numbers for family in Mexico; it may be that has been corrected now. In any case the applicant has been isolated in custody and I accept this is a more difficult situation for this offender than for other offenders.

9. [18]

   The applicant expressed contrition in his evidence to the sentencing judge and in the affidavit tendered without objection in this Court. I accept that expression of contrition is genuine. The applicant has potential to be employed upon his release. He was working as a painter in Australia. In Mexico he had entered university to study engineering but did not complete that degree. The applicant’s prospects of rehabilitation are reasonable. The applicant was not addicted to drugs at the time of the offending. He was motivated by a desire for personal profit to support himself in this country. I do not find there are any special circumstances in this case.

10. [19]

    I take into account the delay. In Quintero, Simpson AJA, explained in a way relevant to this appeal that:

11. [20]

    Parity requires that like cases are treated alike and different cases are treated differently: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. On the face of it, parity considerations militate strongly in favour of a sentence being imposed on the applicant which is very similar to that imposed upon his co-offenders.

12. [21]

    In expressing that view I am conscious that in Quintero Schmidt J concluded that the sentencing judge erred in finding that the same sentences should have been imposed on all of the offenders, given relevant differences in their subjective circumstances. Her Honour stated:

13. [22]

    Her Honour’s view was based on the absence of evidence in relation to the applicant of hardship, a deprived background, drug abuse or mental health problems. I do not understand Simpson AJA and Button J to have joined in that observation, at least explicitly.

14. [23]

    Whilst it is true that the applicant's subjective circumstances differed from those of his co-offenders, the disparity is not such to warrant a significantly greater sentence. The applicant is entitled to a discount of 25% for the early guilty plea.

15. [24]

    I propose that the applicant be re-sentenced to an aggregate sentence of 5 years, 8 months and a non-parole period of 4 years, 3 months.

16. [25]

    The indicative sentences are as follows:

    1. (1)

       The first aggravated break enter and steal offence – taking into account the Form 1 offences – 2 years, 6 months’ imprisonment, with a non-parole period of 1 year, 11 months;

    2. (2)

       The three other aggravated break enter and steal offences – for each offence – 2 years, 2 months’ imprisonment, with a non-parole period 1 year, 8 months.

17. [26]

    A degree of accumulation of those indicative sentences is obviously appropriate and is reflected in the aggregate sentence.

Orders

1. [27]

   For the foregoing reasons, I propose the following orders:

   1. (1)

      Leave granted to appeal out of time.

   2. (2)

      Leave to appeal granted.

   3. (3)

      Appeal allowed.

   4. (4)

      Sentence imposed by Blackmore SC DCJ on 23 June 2017 upon Mr Johan set aside.

   5. (5)

      Mr Johan is resentenced to an aggregate period of imprisonment of 5 years and 8 months commencing on 17 September 2015 and expiring on 16 May 2021. He is sentenced to an aggregate non-parole period of 4 years, 3 months’ imprisonment commencing on 17 September 2015 and ending on 17 December 2019. His release to parole on 17 December 2019 is recommended.

2. [28]

   DAVIES J: I agree with Payne JA.

3. [29]

   BUTTON J: I agree with Payne JA.