Anderson v Dunne
[2017] NTSC 16
•3 March 2017
CITATION:Anderson v Dunne [2017] NTSC 16
PARTIES:ANDERSON, Aaron
v
DUNNE, Andrew
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 3 of 2016 (21630934)
DELIVERED ON: 3 March 2017
DELIVERED AT: Darwin
HEARING DATES: 10 November 2016
JUDGMENT OF: GRANT CJ
CATCHWORDS:
CRIMINAL LAW – PROPERTY OFFENCES – JUDGMENT AND PUNISHMENT
Appeal against sentence – appellant convicted in the Local Court of unlawful entry at night-time, causing damage to property and stealing – aggregate sentence of imprisonment of 18 months, with a non-parole period of nine months – no prior convictions for property-related offences – prior convictions for assault and breaching court orders – manifest excess not established – appeal dismissed.
Criminal Code (NT) s 210, s 213, s 241
Local Court (Criminal Procedure) Act (NT) s 163
Sentencing Act (NT) s 5(2)(e), s 5(2)(g), s 6(a)
Baumer v The Queen (1988) 166 CLR 51; DPP v Terrick (2009) 24 VR 457; Hanks v The Queen [2011] VSCA 7; JMS v The Queen [2010] NSWCCA 229; Martin v Scotland (1972) 2 SASR 271; McCoy v Fenton [1960] Tas SR 149; McGrath v The King (1916) 18 WALR 124; Namala v Whittington [2016] NTSC 71; O'Toole v Samuels (1972) 3 SASR 30; R v Bateman (unreported, VCCA, Young CJ, Gillard J and McGarvie J, 29 June 1977); R v Baumer (1989) 40 A Crim R 74; R v Boyd [1975] VR 168; R v Cartwright (1989) 17 NSWLR 243; R v Dube (1987) 46 SASR 118; R v Gallagher (1991) 23 NSWLR 220; R v Jabaltjari (1989) 46 A Crim R 47; R v McInerney (1986) 42 SASR 111; R v McNaughton (2006) 66 NSWLR 566; R v Morse (1979) 23 SASR 98; R v Mulholland (1991) 1 NTLR 1; R v Peterson [1984] WAR 329; R v Piercey [1971] VR 647; R v Pota [2007] VSCA 198; Truong v The Queen (2015) 35 NTLR 186; Veen v The Queen [No 2] (1988) 164 CLR 465, referred to.
REPRESENTATION:
Counsel:
Appellant:D Thomas
Respondent: S Barnaart
Solicitors:
Appellant:Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: GRA1701
Number of pages: 22
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSAnderson v Dunne [2017] NTSC 16
No. 21630934
BETWEEN:
ANDERSON, Aaron
Appellant
AND:
DUNNE, Andrew
Respondent
CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 3 March 2017)
This is an appeal brought pursuant to s 163 of the Local Court (Criminal Procedure) Act (NT).
On 29 August 2016, the appellant was convicted in the Local Court of the offences of unlawful entry at night-time, causing damage to property and stealing.
The Local Court sentenced the appellant to an effective total term of imprisonment of 18 months with a non-parole period of nine months in respect of those offences.
The sole ground of appeal is that the sentence imposed was manifestly excessive.
The appeal is dismissed for the reasons that follow.
The circumstances of the offending
The charges were brought by way of an information for an indictable offence taken on 18 July 2016. The offences charged were:
(a)that on 5 April 2016 the appellant unlawfully entered a building, namely the Eldorado Motor Lodge in Tennant Creek, with the intention to commit an offence therein, namely stealing, contrary to s 213 of the Criminal Code (NT). That offence involved the circumstance of aggravation that the unlawful entry occurred at night-time;
(b)that on 5 April 2016 the appellant intentionally or recklessly caused damage to property, namely a window in the Eldorado Motor Lodge, contrary to s 241(1) of the Criminal Code; and
(c)that on 5 April 2016 the appellant stole one bottle of gin and three bottles of red wine valued at $127 from the Eldorado Motor Lodge contrary to s 210 of the Criminal Code.
It may be noted at the outset that the maximum penalty prescribed for the first two of those offences was imprisonment for 14 years, and the maximum penalty prescribed for the stealing offence was imprisonment for seven years.
Before the Local Court on 29 August 2016 the appellant entered pleas of guilty to those charges and the matter proceeded on that basis. The agreed facts may be summarised as follows.
(a)On the day in question the appellant consumed an unknown amount of alcohol and became intoxicated. At some stage that evening he decided to break into the Eldorado Motor Lodge with the intention of stealing alcohol from the restaurant there.
(b)He entered the rear yard of the premises, climbed onto the roof of a shed adjoining the main building, and smashed a window in order to gain entry.
(c)Once inside, the appellant went to the bar area, took the bottle of gin and three bottles of wine, and left the premises through the rear door.
(d)The appellant then went to the Wuppa Camp where he lived and consumed the alcohol.
The appellant was identified from CCTV footage captured by security cameras within the motel premises, and subsequently arrested on 2 July 2016. He participated in an electronic record of interview the following day and made full admissions to the offending. The cost to repair the window was estimated at $1,000.
[10]The appellant was granted bail, but subsequently breached the conditions of his bail. An estreatment order was entered on 26 July 2016.
The circumstances of the offender
[11]The appellant was approximately 30 years old when he came before the Local Court in respect of this offending. Although he has little by way of formal education, he has a reasonable employment history. He has worked as a labourer and as a bricklayer, and has also worked in various mines in central Australia. He had also undertaken at some stage three months’ work at the Eldorado Motor Lodge and there was some suggestion during the course of sentencing submissions that the appellant believed he was owed $1,500 in unpaid wages from that employment.
[12]At the time the appellant committed these offences he was experiencing difficulty finding employment and had been out of work for some time. He was then in receipt of a Centrelink benefit. His instructions were that he derived a great deal of satisfaction from paid physical labour, and during periods in employment he had no difficulty with alcohol.
[13]When the appellant was questioned in relation to the reasons for the subject offending, he sought to attribute his conduct to relationship problems and the fact that on the night in question he was upset with his partner.
Proceedings in the Local Court
[14]During the course of the hearing in the Local Court, counsel for the appellant submitted that the court might properly consider a community work assessment for the appellant having regard to the fact that he had no prior convictions for property-related offences, and he had pleaded guilty at the earliest available opportunity. It was further submitted that a disposition in those terms would permit the appellant an opportunity to seek gainful employment. It was submitted in the alternative that some form of order suspending sentence with a community work component would be appropriate. Those submissions were obviously speaking to an earlier contention that the appellant had no difficulty with alcohol when engaged in employment.
[15]During the course of his sentencing remarks, the judge noted that this form of unlawful entry was a prevalent offence in Tennant Creek. The court had dealt with previous cases involving offenders under the influence of alcohol breaking into that same restaurant area for the purpose of stealing alcohol. Those types of offences had significant financial implications for business owners, and on very few occasions was any restitution made. So far as the appellant’s particular circumstances were concerned, the sentencing judge noted that the appellant had approximately $5,000 in fines outstanding and the court could have no confidence that he had any capacity to pay restitution.
[16]Against that background, the sentencing judge observed that general deterrence had a particular role to play in this sentencing calculus. So far as personal deterrence was concerned, the sentencing judge noted that the appellant had previously been convicted of other types of offences in circumstances involving alcohol. The court concluded that neither a community work order nor a community custody order was appropriate in the circumstances.
[17]The sentencing judge imposed an aggregate sentence of imprisonment of 18 months in respect of all three offences, and fixed a non-parole period of nine months backdated to 28 August 2016. The head sentence was derived from a starting point of 24 months reduced by 25% to take into account the fact that the appellant entered a plea of guilty at the earliest opportunity.
The contentions on appeal
[18]The appellant’s central contention is that the sentence is manifestly excessive having regard to the maximum sentence prescribed for the crimes in question, the standards of sentencing customarily observed with respect to those crimes, where the criminal conduct lay on the scale of objective seriousness of crimes of that type, and the appellant’s personal circumstances (particularly the absence of relevant prior convictions).[1]
[19]Counsel for the appellant characterised the objective seriousness of this offending at the lower end of the scale having regard to the fact that it did not occur in company; it was unsophisticated and relatively unplanned; the building was an unoccupied commercial building; the property stolen did not have any significant monetary or sentimental value; no weapon was used; and the cost of repairs to the damage was not high in relative terms. These features of the offending in combination may be accepted as placing it at the lower end of the scale of objective seriousness for each of the three offences.
[20]Against that background, counsel for the appellant then identified a number of occasions on which the sentencing judge referred to the offending as “serious”, in support of the proposition that his Honour fell into error by assessing the objective seriousness of this offending at a point higher on the scale than it otherwise warranted. That submission should not be accepted.
[21]On a neutral reading of the sentencing remarks, his Honour’s characterisation of the offending as “serious” was to set it apart from offending of a trivial nature. An offence may be both objectively serious in that sense and one that sits towards the lower end of the scale of objective seriousness. The features of this offending were such as to warrant that description and distinction. The appellant effected a premeditated and forced entry on commercial premises with the intent to steal from those premises. In doing so he caused substantial damage and ultimately carried out that intention. That conduct is properly characterised as objectively serious even taking into account the features of the offending identified by counsel for the appellant.
[22]Nor should it be accepted that the sentencing judge’s starting point of 24 months demonstrated that he assessed the seriousness of the offending at some high point on the scale. The starting point of 24 months fell clearly at the lower end of the range, particularly in circumstances where the sentencing judge was imposing an aggregate sentence of imprisonment for three offences, two of which attracted a maximum penalty of imprisonment for 14 years. Even had his Honour been sentencing for only one of those offences, a starting point of 24 months represents one seventh, or approximately 14%, of the maximum penalty.
[23]Counsel for the appellant also sought to characterise the sentencing judge’s approach as one that acknowledged the appellant’s lack of relevant prior offending (discussed further below), but still treated the appellant on the basis that he was a recidivist property offender. That submission should also be rejected.
[24]The submission is based on the following passage appearing in the sentencing remarks:
The periods of imprisonment that have been imposed upon people in the past, unlike yourself who is here for the first time, have, in my view, had a deterrent effect from further offending.
[25]That passage followed immediately on from the sentencing judge’s observation that general deterrence was a significant factor in this particular sentencing calculus. What the sentencing judge then went on to say in the passage extracted above was that, in his view, the imposition of periods of imprisonment for this category of offending did in fact operate as a general deterrent. The reference to the fact that the appellant was being sentenced for this category of offending for the first time was simply to say that he had not personally been the subject of one of the deterrent dispositions to which the sentencing judge was referring.
[26]Counsel for the appellant also contended that the sentencing judge gave insufficient weight to the appellant’s cooperation with police and the fact that he made full admissions at the time of his arrest in July 2016. That submission should also be rejected.
[27]The argument suffers from a threshold lack of clarity. It seems to be put on the basis that the head sentence was manifestly excessive because the sentencing judge did not give appropriate weight to, amongst other factors, the appellant’s cooperation with police. The orthodox approach to sentencing is to undertake an instinctive synthesis which involves a consideration of the objective circumstances of the offending and the offender’s subjective personal circumstances (including character, prior offending and prospects for rehabilitation), in order to arrive at an appropriate disposition.
[28]If that disposition is a sentence of imprisonment, consideration is then given to whether some discount should be applied to that term on account of a plea of guilty and/or cooperation with the authorities. There is a structural anomaly in the proposition that an offender’s cooperation with police is both a relevant and significant consideration which bears on fixing the “starting point” for any term of imprisonment at that first stage of the process, and a matter then properly also taken into account in the subsequent assessment of any discount.
[29]Leaving aside that conceptual difficulty, the rationale for providing offenders with a discount for the provision of assistance to authorities is explained in R v Cartwright.[2] It is clearly in the public interest that offenders should be encouraged to supply information to the authorities which will assist them in bringing other offenders to justice. In order to ensure that such encouragement is given, an appropriate reward for providing assistance should be granted regardless whether it is motivated by genuine remorse or simply self-interest.[3]
[30]This is not a case in which the appellant has supplied information to law enforcement authorities in relation to any other offender. This is also not a case in which but for the appellant’s admissions the authorities would not have had any evidence of his offending. He was arrested because he had been identified from the surveillance footage taken inside the Eldorado Motor Lodge. The admission was by no means the first or most crucial evidence in relation to the nature of the appellant’s offending.
[31]In those circumstances, the appellant was entitled only to the ordinary discount accorded in recognition of an early plea of guilty, to the extent that the plea demonstrated a willingness to facilitate the course of justice and to the extent that it demonstrated any remorse on his part. In these circumstances, the discount of 25% applied by the sentencing judge might be considered generous. It was certainly not reflective of a failure to accord appropriate or adequate weight to that consideration.
[32]Those submissions having been rejected, the appellant’s case resolves essentially to two contentions. The first contention is that the sentencing judge acted on a wrong principle by placing undue weight on the purpose of general deterrence and/or by failing to give sufficient weight to the appellant’s lack of relevant priors. The second contention is that even in the absence of some demonstrable error of principle in the sentencing remarks, the sentence is clearly and obviously excessive on its face.
General deterrence
[33]During the course of his sentencing remarks, the sentencing judge addressed the following observations to the question of general deterrence.
Mr Anderson, the unlawful entry that occurred in April is a serious offence. It is a very prevalent offence here in Tennant Creek and I am not sure how many cases I have dealt with over the years of people under the influence of alcohol breaking into that restaurant area and stealing grog. As a result of that, the owners of those premises are faced with an ever expanding bill to have the damage repaired and their property such as alcohol replaced.
….
General deterrence in this case is a very relevant sentencing factor ….
….
In dealing with those sorts of cases where people break into people’s premises, particularly commercial licensed premises, there is a very significant factor of general deterrence. As I have told you, I do not know how many times I have dealt with people for breaking into premises like the Eldorado Motel, the Tennant Creek Hotel and other places here in Tennant Creek just to get more alcohol. They do not care that it costs those providers more money to get their premises fixed and replace the stuff that has been stolen.
The periods of imprisonment that had been imposed upon people in the past, unlike yourself who is here for the first time, have, in my view, had a deterrent effect from further offending.
[34]It is well accepted that the prevalence of an offence is a valid consideration when imposing sentence, and that offences of greater prevalence may require higher penalties.[4] The principle receives express statutory expression in s 5(2)(g) of the Sentencing Act (NT), which requires the sentencing court to have regard to “the prevalence of the offence”. The principle has application to the prevalence of a particular offence generally,[5] to a particular offence committed by a particular group,[6] or to a particular offence in a particular locality.[7]
[35]It is further accepted that the principal rationale for the imposition of an increased penalty on the basis of prevalence is founded on general deterrence.[8] As Burt CJ observed in R v Peterson:[9]
[I]t must be accepted that the prevalence of a particular offence in a particular locality or generally at the time of the commission of the offence to be dealt with must play some part in the sentencing process, particularly in emphasising the importance of general deterrence.
[36]This is not to say that the courts require empirical substantiation that increased penalties have a deterrent effect and so bear on the incidence of the particular type of criminal conduct in question. As King CJ observed in R v Dube:[10]
The much discussed question of the effectiveness of imprisonment as a deterrent to crime, and in particular of the effectiveness of increased levels of punishment, was adverted to during argument. I think that it must be conceded that there is no proven correlation between the level of punishment and the incidence of crime and that there is no clear evidence that increased levels of punishment have any effect upon the prevalence of crime. Nevertheless the criminal justice system has always proceeded upon the assumption that punishment deters and that the proper response to increased prevalence of crime of a particular type is to increase the level of punishment for that crime. I think that courts have to make the assumption that the punishments which they impose operate as a deterrent.
[37]Accepting those matters to be so, there remain clear limitations on the manner in which the prevalence of the offence in question may be taken into account in the sentencing calculus. As the Victorian Court of Criminal Appeal observed in R v Bateman, “the judicial response in such a situation needs to be a controlled and measured one … particularly so at times when well-organised and well-orchestrated campaigns for heavy sentences are being conducted in the community”.[11]
[38]Similarly, in Martin v Scotland the court observed:[12]
The prevalence of the offence of shop-lifting and the necessity of setting an example to likely offenders by the imposition of a sentence which would serve as a deterrent were matters which the Special Magistrate was entitled to take into account as factors relevant to his consideration of the appropriate penalty … But the prevalence of a particular offence can only be a proper consideration so long as it does not result in the offender being made the ‘scapegoat of other people who have committed similar crimes but have not been caught and convicted’ … Additionally, I respectfully subscribe to the view expressed by Bray CJ in Giles v Barnes [1967] SASR 174 that the prevalence of a particular offence ‘can seldom, if ever, be the dominant’ factor.
[39]The courts are required to exercise caution in order to ensure that the relative weight accorded to prevalence and deterrence does not result in the imposition of a sentence disproportionate to the objective circumstances of the offending. As Burt CJ went on to observe in R v Peterson:[13]
That is not done by imposing an ‘exemplary’ sentence, so-called, which is more severe than the nature of the offence and the circumstances of its commission in justice calls for, but by giving less weight to – which is not to ignore – mitigating factors which may be found within the antecedents of the prisoner. That results in a ‘firming up’ of the sentence for such an offence and results in a sentence which more closely fits the crime and a sentence which, if the offender thinks about it in advance, is in reason, predictable and certain, each of those qualities being central to the idea of deterrence.
[40]There is nothing in the approach taken by the sentencing judge that suggests his Honour misapplied the relevant principles, treated the appellant as a “scapegoat”, considered the prevalence of this type of offending as the dominant factor in the sentencing calculus, or imposed an “exemplary” sentence. The only manner in which error in the sentencing judge’s approach to the prevalence of offending and the consideration of general deterrence might be made out is if the appellant establishes that the penalty imposed was manifestly more severe than called for by the nature of the offence and the circumstances of its commission. That matter is addressed further below in the context of the contention that the sentence was clearly and obviously excessive on its face.
Prior convictions
[41]While the appellant has a relatively extensive criminal history, that prior offending does not include any property-related offences of the type with which this appeal is concerned. His prior offending relates exclusively to assault, resisting police, and motor vehicle and driving offences (with associated breaches of bail, parole and orders suspending sentence).
[42]The appellant was convicted of a spate of motor vehicle-related offences over a 12 month period when he was approximately 18 years of age. Leaving that earlier episode of offending aside, over the last 10 years the appellant has been convicted of aggravated assault on five occasions; assaulting a police officer on one occasion; resisting police in the execution of duty on three occasions; failing to obey the direction of a police officer on one occasion; engaging in conduct that contravenes a domestic violence order (or the antecedent offence of failing to comply with a restraining order) on three occasions; driving unlicensed on three occasions; driving while disqualified on one occasion; driving under the influence of alcohol while disqualified on one occasion; and driving under the influence of alcohol on three occasions.
[43]The prior convictions for assault generally involved female victims and bear the usual hallmarks of domestic violence offending. By way of example, the appellant’s most recent conviction before the charges here under consideration was in respect of an aggravated assault committed on 11 March 2013. That assault was attended by a number of circumstances of aggravation. The victim suffered harm, the victim was a female and the offender was a male, and the assault involved the use of a weapon.
[44]On 16 June 2014, this Court sentenced the appellant to imprisonment for one year and 11 months, backdated to 3 July 2013. A non-parole period of 12 months was fixed. The appellant was released on parole and subsequently breached the conditions of his parole. As a result, the parole was revoked on 15 June 2015. The appellant presumably served the balance of imprisonment for 11 months backdated to the time of his arrest for the breach of parole. That recent history of incarceration may serve to explain in some part the fact that the appellant did not commit any criminal offence between March 2013 and the current offending in April 2016.[14]
[45]Sections 5(2)(e) and 6(a) of the Sentencing Act provide that a court must have regard to “the offender’s character” in passing sentence, and that in determining the character of an offender may have regard to “the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender”. In making that determination, prior convictions may be an aggravating consideration in the sense that they may offset claims for leniency, but they are not a justification for imposing a sentence that is disproportionate to the gravity of the instant offence.[15]
[46]An accused’s prior criminal record will operate as an aggravating consideration where it establishes that he or she is not of good character and so entitled to leniency on that account; and/or where it indicates that, within proper limits, greater punishment is required to protect the public by deterring him or her from future criminal activity.[16]
[47]As counsel for the appellant drew attention to in his submission that the appellant had no “relevant” prior offences, not all prior offences are of equal weight in the exercise of the sentencing discretion. Offences of the same character will weigh more heavily in the synthesis. On the other hand, previous convictions of an entirely different character may attract little or no weight. So, by way of example, prior traffic offences will ordinarily be irrelevant when passing sentence for more substantive offending;[17] and prior offences of dishonesty might be considered of limited relevance to an offence involving drug importation.[18] In other cases, however, an extensive record of substantive offending may indicate that the offender holds the law in contempt and operate as an aggravating factor even where the offence for which the accused is being sentenced is of a different character.
[48]Although the appellant has no history of property offending, his criminal record over the last 10 years certainly indicates an attitude of disobedience to the law and to the orders of the courts.[19] That attitude bears on moral culpability and the gravity of the offence. There is no doubt that the appellant knew what he was doing was unlawful, but he nevertheless proceeded in that conduct. There is also no doubt that the appellant has not made a conscious decision to stop offending in response to sanctions previously imposed on him. That is so even allowing for the fact that the present offence is of a different character, and even accepting that he commits offences when under the influence of alcohol.
[49]While the current offences are significantly different from those for which the appellant has previously been convicted, that is not to say that his criminal record should be given little or no weight for these purposes. It is clearly a matter that is properly taken into account when fixing sentence, but only in the manner and for the purposes described above.
[50]During the course of his sentencing remarks, the judge addressed the following observations to the question of the appellant’s record of prior offending.
General deterrence in this case is a very relevant sentencing factor. I note that in the past you have been involved in other types of trouble often when alcohol has been involved, but you have never been before the Court for this sort of trouble.
….
…. As I have already alluded to, although you do have a very bad criminal record for offences of violence, you have not been involved in this sort of trouble before.
[51]The sentencing judge concluded by finding that having regard to the seriousness of the appellant’s conduct, the requirement for general deterrence, and the appellant’s prior criminal record, a sentence of actual imprisonment was required and that a non-parole period should be fixed to provide for supervision upon his release.
[52]Those remarks do not disclose any error of principle. In the absence of anything in the sentencing remarks demonstrating some error of principle in the manner in which the sentencing judge approached the question of the appellant’s previous convictions, the only manner in which error in the sentencing judge’s approach to that matter might be made out is, again, if the appellant establishes that the penalty imposed was manifestly more severe than called for by the nature of the offence and the circumstances of its commission.
Manifestly excessive
[53]In Truong v The Queen,[20] the Court of Criminal Appeal referred with approval to the following statement in relation to manifest excess made by Bongiorno JA in Hanks v The Queen:[21]
The term ‘manifest excess’ is usually used when a ground of appeal alleges that a sentence is so egregiously erroneous that the sentencing judge must have made a sentencing error although that error cannot be identified. To succeed on this ground the excess must be obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error.
[54]While counsel for the appellant accepted that there is no sentencing tariff as such for the offences in question, and did not seek to identify a range for this type of offending, attention was drawn to four sentencing dispositions from this Court which were said to involve similar factual circumstances and higher levels of objective seriousness but which drew markedly lower head sentences than was imposed in the present case.
[55]Barr J made the following observations in relation to a similar process undertaken by counsel for the appellant in Namala v Whittington:[22]
The three sentencing appeal decisions (and only three were relied on) were specific to their own facts. None of them stated any principle which necessarily applies in the case of the within appellant: a 32 year old male offender with a relatively recent prior conviction for stealing, who has re-offended by stealing alcohol in company and who has entered a plea of guilty only after being arrested for breach of bail. In any event, even if one assumes that three offenders have received more lenient sentences than the appellant, for similar offending, that does not mean that the sentence imposed on the appellant was manifestly excessive (nor that the earlier sentences were manifestly inadequate). As Heydon J observed in Hili v The Queen [(2010) 242 CLR 520 at [79]], the ability of a later sentencing judge to differ from an earlier sentence exists where the judge simply disagrees with the earlier sentence. Further, as pointed out by the Court in Truong v The Queen [[2015] NTCCA 5; (2015) 35 NTLR 186 at [30]], it may not even be a situation of frank disagreement; an obvious example is where the later judge sees the need to emphasise different sentencing objectives to those emphasised in an earlier sentence or series of sentences.
[56]The same may be said in relation to the present matter, and to the sentencing dispositions identified by counsel for the appellant. The general thrust of the appellant’s submission in this respect was that unarmed offenders who cause relatively minor property damage in the course of effecting an unlawful entry to an unoccupied building with intent to steal, and who then steal goods with a relatively low monetary and sentimental value, might expect to receive a head sentence in the order of imprisonment for nine months. That was said to be the case even where the offender has a history of like offending.
[57]The difficulty with an approach which involves individual comparison is highlighted by the respondent’s advertence in submissions to comparable cases which illustrate the wide range of sentencing outcomes for this type of offending. In particular, counsel for the respondent drew attention to the matter of R v Grant Moore in which Martin J observed that “the individual unlawful entries with intent to steal would attract sentences ranging from nine months to two and a half years, depending upon the circumstances of aggravation”.[23] That observation is borne out by a broadscale review of the recent sentencing dispositions by this Court for this type of offending.
[58]While the sentencing disposition by the Local Court in this case might be considered stern, and perhaps even severe, it is not so far outside the range as to bespeak error.
Disposition
[59]The appeal is dismissed.
-------------------------------------
[1] R v Morse (1979) 23 SASR 98 at 99.
[2](1989) 17 NSWLR 243 at 252.
[3]There was a note of caution sounded in R v Gallagher (1991) 23 NSWLR 220 at 223 to the effect that the discount given cannot be such as to produce a sentencing result that is so far out of touch with the circumstances of the particular offence that it constituted an affront to community standards.
[4] Early expression of the principle may be found in R v Ragen (1916) 33 WN (NSW) 106.
[5]See, for example, Curtis v Sidik[1999] NTSC 135 at [14]; 9 NTLR 115; Miles v The Queen (1997) 17 WAR 518 at 521.
[6]Ris v Wills [1966] Tas SR 92 at 96.
[7]Parnell v Rigby[2008] NTSC 40 at [30]-[40]; 24 NTLR 1.
[8] The other rationale for justifying an increased penalty on the basis of prevalence is to satisfy the public expectation of denunciation: see, for example, R v Dube (1987) 46 SASR 118 per King CJ at 119; R v Everett (1994) 72 A Crim R 422 per Zeeman J at 441.
[9] [1984] WAR 329 at 332.
[10](1987) 46 SASR 118 at 120.
[11]R v Bateman (unreported, VCCA, Young CJ, Gillard J and McGarvie J, 29 June 1977); cited with approval in R v Jabaltjari (1989) 46 A Crim R 47 per Martin J at 71.
[12](1972) 2 SASR 271 per Walters J at 272; approved by R v Peterson [1984] WAR 329 per Burt CJ at 332 and Smith J at 334.
[13][1984] WAR 329 at 332.
[14]A significant period without a conviction will only constitute a mitigating factor if it is due to the offender's efforts to rehabilitate and not because the offender has been in prison: see R v Piercey [1971] VR 647; R v Boyd [1975] VR 168; McCoy v Fenton [1960] Tas SR 149 per Burbury CJ at 154; McGrath v The King (1916) 18 WALR 124; O'Toole v Samuels (1972) 3 SASR 30.
[15]Veen v The Queen [No 2] (1988) 164 CLR 465 per Mason CJ, Brennan, Dawson and Toohey JJ at 477–478; Baumer v The Queen (1988) 166 CLR 51 at 57–58; R v Baumer (1989) 40 A Crim R 74 per Kearney J at 85.
[16]See, for example, JMS v The Queen [2010] NSWCCA 229 at [42]; R v McInerney (1986) 42 SASR 111 per King CJ at 113, Cox J at 124.
[17]Gray v Strickland (unreported, Supreme Court of Tasmania, 9 October 1978); R v Causby [1984] Tas R 54.
[18]R v Law (unreported, Victorian Court of Criminal Appeal, 14 October 1977); R v Piercey [1971] VR 647.
[19]R v Mulholland (1991) 1 NTLR 1 at 13; R v Pota [2007] VSCA 198; DPP v Terrick [2009] VSCA 220; 24 VR 457 at [60]; R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [26].
[20][2015] NTCCA 5; 35 NTLR 186 at [37].
[21][2011] VSCA 7 per Bongiorno JA at [22], Redlich JA agreeing. Also cited in Namala v Whittington [2016] NTSC 71 at [25].
[22][2016] NTSC 71 at [31].
[23]R v Moore (Sentencing Remarks, NTSC, Martin J, 3 June 2016).
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