Challis v The Queen

[2008] NSWCCA 210

New South Wales
Court of Criminal Appeal

CITATION:	Challis v R [2008] NSWCCA 210
HEARING DATE(S):	21/08/2008
JUDGMENT DATE:	18 September 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hislop J at 2; Hoeben J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Sentence appeal - use of sentencing statistics - aggravating factors - prior criminal record - whether sentencing judge erred in the use which he made of prior criminal record - application of s 44 of Crimes (Sentencing Procedure) Act 1999 - whether some lesser sentence was warranted in law.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	Baumer v The Queen (1988) 166 CLR 51 at 57-58 Director of Public Prosecutions v Ottewell (1970) AC 642 Markarian v The Queen (2005) 228 CLR 357 R v Berg [2004] NSWCCA 300 at [40] R v McNaughton [2006] NSWCCA 242 R v Misiepo [2005] NSWCCA 405 R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 R v Ponfield and Ors (1999) 48 NSWLR 327 R v Simpson (2001) 53 NSWLR 704 R v Way (2004) 60 NSWLR 168 at [85]-[99] Robertson v R [2007] NSW CCA 270 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Michael David Challis - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 5641/2007
COUNSEL:	TJ Golding - Applicant Ms V Lydiard - Respondent Crown
SOLICITORS:	S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/21/3170
LOWER COURT JUDICIAL OFFICER:	Christie DCJ
LOWER COURT DATE OF DECISION:	04/12/2007

5641/2007

McCLELLAN CJ at CL
HISLOP J
HOEBEN J

Thursday, 18 September 2008

Michael David CHALLIS v R

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HISLOP J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
On 4 December 2007 the applicant was sentenced by Christie DCJ in respect of the following offences. Before his Honour the applicant adhered to a plea of guilty entered at the Liverpool Local Court on 23 May 2007.

Count 1 – Between 24–26 December 2006 breaking and entering the Camden Golf Club and stealing $28,140 contrary to s 112 of the Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 2 – Between 24–26 December 2006 maliciously damaging an automatic teller machine contrary to s 195(a) of the Crimes Act 1900 (maximum penalty imprisonment for 5 years).

Count 3 - Between 24-26 December 2006 maliciously damaging a video surveillance camera contrary to s 195(a) of the Crimes Act 1900 (maximum penalty imprisonment for 5 years).

An offence of maliciously damaging a “Chubb” brand safe contrary to s 195(a) of the Crimes Act 1900 was taken into account on a Form 1 when the applicant was sentenced in respect of count 1.

4 His Honour imposed the following sentences:

Count 1 – Imprisonment with a non-parole period of 4 years commencing 5 January 2007 and expiring 4 January 2011 with a balance of term of 2 years expiring 4 January 2013.

Count 2 – A fixed term of imprisonment of 1 year commencing 5 January 2007 and expiring 4 January 2008.

Count 3 – A fixed term of imprisonment of 1 year commencing 5 January 2007 and expiring 4 January 2008.

5 The effect of those sentences was imprisonment with a non-parole period of 4 years and a balance of term of 2 years. It should be noted that at the time of sentencing the applicant had served a balance of parole from a previous sentence from 5 January 2007 to 30 May 2007. He had also served a 4 month sentence for goods in custody, which was backdated to 12 December 2006 and which expired on 11 April 2007.

Background to offences

6 On 21 and 22 December 2006 the applicant attended the Camden Golf Club. He signed the guest register under a false name. It was accepted that these attendances were made to investigate the premises for the purpose of the subsequent break and enter.

7 On the evening of 24 December 2006 after the club had closed, the applicant entered. He was wearing a Batman mask and was carrying a sledge hammer. He attempted to destroy a security camera using the sledge hammer. The applicant placed a white square sticker over a sensor monitor to prevent any movement being detected while he was walking inside the club. After attempting to destroy the surveillance camera, the applicant opened an ATM using what appeared to be a jemmy bar and damaged the ATM in the course of doing so. The applicant took from that machine $9,750 in cash.

8 The applicant then entered the rear storeroom area of the club, behind the main bar, where he forced open a steel secure cabinet and obtained keys for the nearby floor safe and locks to the adjoining storerooms. It was accepted that the applicant must have had some knowledge of where he would find those keys.

9 The applicant opened a storeroom using the keys before opening a small floor safe with the keys. He took a further amount of $18,390 in cash from the small floor safe.

10 The applicant went to another storeroom where he attempted to gain entry to a large 1.5 metre high floor safe. The applicant used what appeared to be an angle grinder to cut through the door of the safe near the combination mechanism. He failed to gain entry to the safe, but caused considerable damage to the mechanism.

11 The applicant left the club via a window in the female toilet and attempted to disguise the manner in which he had left the premises.

12 On the morning of 3 January 2007 the police attended the applicant’s residence and executed a search warrant. They seized a number of significant items, including a sledge hammer and a number of white square labels, similar to those used to cover the sensor monitors inside the club. Angle grinder discs were found in the garage of the premises.

13 While the police were exercising the search warrant, the applicant drove into the car-park, noticed the police and then drove from the scene at high speed. He was driving a silver Ford Falcon, which it was subsequently discovered, had been purchased after 24 December 2006 for $18,265 paid in cash, largely with $50 notes.

14 When the applicant attended the Gladesville Police Station on 5 January 2007 pursuant to bail conditions in relation to another matter, he was arrested in respect of these matters. The applicant has been in custody since 5 January 2007.

Remarks on sentence

15 The applicant gave evidence in the sentence proceedings. He told his Honour that the silver Ford Falcon had been purchased by his cousin and that it had not been purchased from the proceeds of these offences. His Honour did not accept that evidence.

16 His Honour found that the applicant had entered a plea of guilty at the earliest opportunity and that he was entitled to a discount of 25 percent because of the utilitarian value of that plea and because of the contrition and remorse which it reflected.

17 In assessing the objective seriousness of the offences his Honour took into account that they had been committed while the applicant was on parole and while he was on bail. His Honour had regard to the fact that quite detailed planning was involved in the offences. There had been preliminary visits to the premises, the applicant took with him all the equipment which he needed and the way in which the offences were committed indicated that he had gained considerable knowledge about the premises.

18 His Honour remarked on the applicant’s bad criminal record for a person so young (dob 18.5.76). The applicant had served sentences of imprisonment for break and enter, and similar offences, since 1992. Some of those sentences had been significant including a sentence of imprisonment for 4 years with a non-parole period of 2 ½ years imposed on 20 May 2003.

19 Because of this poor criminal record which included so many break enter and steal offences his Honour was of the opinion that specific deterrence would have to play a big part in the applicant’s sentence. His Honour also had regard to general deterrence. He was, however, prepared to temper the application of those principles by taking into account that there had been some delay in the applicant being sentenced and the offences had not involved violence.

20 His Honour then went on to make the following observation:

“Now maximum penalties of course are reserved for offences the worst in their category or are reserved for repetitive offenders. This offence is not the worst in its category but quite frankly in my view it is way past the half way mark in terms of objective seriousness. … Maximum penalties are of course reserved also for repetitive offenders. This man must now be in that category.” (ROS 7-8)

21 His Honour considered the applicant’s subjective case. He noted that a psychological report had been tendered which referred to the applicant having alcohol and drug addiction problems. The report indicated that the applicant had a young child and a supportive partner. Nevertheless, his Honour concluded that despite these favourable subjective features, the seriousness of the offence was such that a custodial sentence was unavoidable.

22 In assessing the appropriate sentence, his Honour sought to follow the guideline judgment in R v Ponfield and Ors (1999) 48 NSWLR 327. In that regard his Honour noted the list of factors in Ponfield which enhanced the seriousness of an offence of this kind (Ponfield, Grove J at [48]). Of those factors his Honour specifically referred to the fact that the offences were committed whilst the applicant was at conditional liberty on bail and on parole, the fact of the professional planning, organisation and execution, the applicant’s prior record of like offences and the fact that the offence was accompanied by vandalism. His Honour took into account the value of the stolen property, being in excess of $28,000.

23 Having reviewed those factors, his Honour concluded as follows:

“I take a much more serious view of this case than does the representative of the defendant in terms of the likely outcome, in terms of non-parole period and overall sentence. I would commence having regard to the fact that the maximum penalty for this offence is 14 years. I am of the view that this offence in objective seriousness is significantly past the halfway mark and also I am of the view that the man is now a repetitive offender. I propose to commence my calculations at 8 years imprisonment”. (ROS 11)

24 His Honour found special circumstances because of the applicant’s express desire to rehabilitate himself and because significant supervision would be required after his release to parole, if that rehabilitation were to be successful. As indicated, his Honour backdated the commencement of the sentences which he imposed to 5 January 2007, when the applicant was taken into custody. Accordingly, the sentences for counts 2 and 3, the balance of parole custody and the sentence for goods in custody were wholly concurrent with the sentence imposed in respect of count 1. His Honour made no mention of the fact that count 1 took into account the malicious damage Form 1 offence.

Grounds of Appeal
Ground of Appeal A - The total sentence imposed by his Honour is manifestly excessive.
Ground of Appeal D - His Honour wrongly considered that the applicant’s prior criminal history aggravated the offences for which he stood to be sentenced.

25 It is convenient to consider these two grounds of appeal together since there is a considerable overlap between them.

26 The applicant submitted that the non-parole period of 4 years was at the very top of the range of sentences imposed for offences contrary to s 112(1) when one took into account the Judicial Commission statistics. The applicant submitted that even if it were correct to characterise the offence as “in objective seriousness significantly past the halfway mark” (a concession which the applicant did not make) this would still not justify a non-parole period as high as that imposed by his Honour. This was because there were offences contrary to s 112(1) which were considerably more serious and heavy sentences such as this should only be applied to that category of offence.

27 Implicit in the submission is the proposition that the top of the range sentences, as disclosed by the Judicial Commission statistics should represent the top of the range for sentences in respect of s 112(1) offences. If that were so there would be no point in having a maximum sentence of 14 years imprisonment. This point was forcefully made by Rothman J in Robertson v R [2007] NSW CCA 270:

“36 While the provision of statistical information on sentencing patterns may be useful in discerning the range of sentences that have thus far been imposed for a particular offence, this Court has often stated that they must be used with care. The major guideposts, imposed by the statute, are the maximum sentence, any standard non-parole period and the general principles of sentencing as espoused, particularly, in relation to the particular offences for which sentence is being imposed. The use of statistics as a measure of the appropriateness of the sentence has the effect of creating a self-fulfilling range of sentences, which may bear little relationship to the maximum sentence imposed by the legislature.”

28 As Ponfield recognised, the facts and circumstances giving rise to offences contrary to s 112(1) are so varied that it was not appropriate in that case to fix any kind of start point for sentencing purposes. All that the court could do was to identify factors which should be taken into account by sentencing judges when determining the objective seriousness of the particular offence or offences before them.

29 While the use of statistics can assist in the sentencing process, they are least likely to be useful where the circumstances of the individual instances of the offence vary greatly. Section 112(1) offences fall squarely within that category. What is clear is that such statistics should not be allowed to constrain the proper application of sentencing principles by judges carrying out the sentencing process. Statistics provided little assistance in this case and do not provide a proper basis for challenging the sentence.

30 The applicant submitted that the sentence imposed by his Honour was excessive because his Honour had wrongly applied Veen v The Queen (No 2) (1988) 164 CLR 465. The applicant submitted that his Honour had inappropriately taken into account the applicant’s criminal record as a matter relevant to the objective seriousness of the offence. The court’s attention was drawn to the statements in the remarks on sentence that the applicant was a repeat offender and that this meant that a more severe penalty should be imposed. This approach, it was submitted, revealed error and had caused his Honour to impose a sentence which was manifestly excessive.

31 His Honour’s references to ‘repeat offender’ were unfortunate and invite the criticism which has been made. It is not clear, however, that his Honour did in fact use the applicant’s criminal record in an impermissible way.

32 The question of the correct application of Veen (No 2) was fully examined in R v McNaughton [2006] NSWCCA 242. The court there recognised that there is some tension between the various statements of principle on this question by the High Court. The classic statement of principle from Veen (No 2) is at 477-478:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”

33 The passage from Ottewell specifically referred to in Veen (No 2) reads:

“Judges have always (and I think rightly) felt themselves entitled to deal with a persistent offender by increasing the sentence they would have passed if he were not. This is not to punish the offender again for his past crimes. Nor is it always primarily for the protection of the public. It may simply be because in the judge’s view the sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried, perhaps in the offender’s own interests. Or, it may be that repetition has itself increased the gravity of the offence. Eventually, in some cases, a stage is reached where it becomes clear that progressively increasing sentences are not a deterrent; and the protection of the public against a persistent offender then comes to the forefront of the considerations which the judge must take into account.”

34 In the later case of Baumer v The Queen (1988) 166 CLR 51 at 57-58 the court said:

“We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence.”

35 Spigelman CJ sought to reconcile that tension in McNaughton as follows:

“24 Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen No 2 and in Baumer as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. In this respect I agree with the reasoning of Howie J in Wickham, which I had left open in R v Berg [2004] NSWCCA 300 at [40].
25 The Crown submissions to this Court put forward a cogent case for accepting that prior convictions are relevant to the mens rea element of an offence and are particularly significant in the assessment of the moral culpability of the offender in the commission of the offence for which s/he stands to be sentenced. Nevertheless, such considerations can be taken into account in determining the appropriate level of punishment for the particular offence and for determining where in the spectrum of seriousness of offences of this character, the facts of the case lie. (See R v Way (2004) 60 NSWLR 168 at [85]-[99] and especially at [90]-[93].) However, on the authority of Veen No 2 and Baumer, it is not open to this Court to adopt the approach submitted by the Crown so as to use prior convictions to determine the upper boundary of a proportionate sentence.

26 There is a difficulty with the reference in Veen No 2 to prior convictions ‘illuminating’ the offender’s “moral culpability”. Nevertheless, as Howie J stated in Wickham, the majority judgment in Veen No 2 recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. I refer specifically to the reference to an “attitude of disobedience of the law” and to the increased weight to be given to “retribution”, “deterrence” (relevantly personal deterrence) and “the protection of society”.”

36 In the light of the analysis of the authorities carried out in McNaughton, I am not persuaded that his Honour erred in his use of the applicant’s criminal record. It is clear from the remarks on sentence that when determining that the s 112(1) offence was beyond midrange, and in taking as his start point a head sentence of 8 years, his Honour was taking into account the specific circumstances of this offence and the aggravating features specifically identified in Ponfield. These were the substantial amount of money stolen, the detailed planning, preparation and execution associated with the offence and that the applicant was at liberty on bail and on parole. It was these considerations which determined the upper boundary of the sentencing range available to his Honour, ie 8 years. It was then open to his Honour within that upper boundary to use the applicant’s prior criminal record, with its implications as to retribution, deterrence and the protection of society to determine the final sentence, in particular the non-parole period.

37 Within the constraints imposed by McNaughton it was clear from the applicant’s criminal record that this further serious break, enter and steal offence merited more serious punishment than if the offence were looked at in isolation. The serious objective features of this offence, together with the applicant’s criminal record, required that a significant sentence be imposed.

38 It follows that I am not persuaded that in the circumstances of this case his Honour erred in his use of the appellant’s criminal record of that the sentence imposed was manifestly excessive. On the contrary, the concurrency of the sentences for the malicious damage counts and the backdating of the commencement date of the sentence to include the balance of parole and the sentence for goods in custody substantially favoured the applicant.

Ground of Appeal B – His Honour failed to properly apply the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 and impermissibly arrived at a non-parole period by a process of simple arithmetic deduction

39 The applicant submitted that his Honour had arbitrarily selected a figure of 8 years as the start point for his reasoning process leading to the formulation of the sentence finally imposed. The applicant submitted that having chosen this start point, his Honour then followed a simple mechanical process by reducing the figure by 25 percent for the plea of guilty, making an adjustment for special circumstances and then determining the non-parole period. The applicant submitted that this was contrary to s 44(1) of the Crimes (Sentencing Procedure) Act 1999 and was contrary to the guidance provided by the High Court in Markarian v The Queen (2005) 228 CLR 357 at [39]:

“Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden.”

40 There is nothing in his Honour’s approach which is contrary to the guidance provided in Markarian. His Honour took as an important guidepost the maximum penalty for this offence. Such an approach was fully endorsed in Markarian [31]:

“It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. …”

41 In choosing as his start point a term of 8 years, his Honour was doing no more than engaging in the process of “instinctive synthesis” recommended in Markarian. The reason why his Honour chose that start point was because in the exercise of his discretion, his Honour had assessed the objective seriousness of this offence as being beyond the midrange. The only arithmetical calculation engaged in by his Honour was the application of a discount for the plea of guilty, a process also approved in Markarian.

42 Insofar as the application of s 44 is concerned, that section does not mandate a particular sequence of reasoning. This was made clear by Simpson J in R v Misiepo [2005] NSWCCA 405 at [42]:

“When he ultimately sentenced the respondent, his Honour did so in accordance with the current version of s 44. However, when he earlier stated his view of what the sentence should have been absent the plea of guilty he specified this as a sentence of 6 years and 4 months imprisonment, presumably, a reference to the total term of the sentence he had in mind. The Crown has made some criticism of him for this, suggesting that he applied the early version of s 44 by setting the head sentence first. Given that the sentence as imposed was correctly done, in accordance with the current s 44, I do not think this criticism can be sustained. Further, there is nothing in the current version of s 44 that demands that the reasoning process follows a particular sequence. Provided a judge complies with the requirements of the section it is not necessary that his or her thought processes commence with the non-parole period …”

43 A similar observation was made by Hulme J in R v P [2004] NSWCCA 218 at [26]:

“Notwithstanding the temptation, provided by the terms of s 44 of the Crimes (Sentencing Procedure) Act , to think that his Honour’s approach of fixing a non-parole period and then independently fixing the balance of the term is the correct approach, in fact it is not. That was decided in R v Moffitt (1990) 20 NSWLR 114 at 134 in respect of earlier legislation but in R v Way the Court indicated that R v Moffitt should be followed in relation to the current wording of s 44.”

See also Tidona v Regina [2005] NSWCCA 410 at [39] – [42].

44 This ground of appeal has not been made out.

Ground of Appeal C – His Honour wrongly took into account, in sentencing for the s 112(1) offence, as aggravating circumstances, the offences under s 195(1)(a)

45 The applicant submitted that his Honour’s statement when assessing the objective seriousness of the offence that “his offence was accompanied by vandalism” meant that his Honour was taking into account matters for which the applicant had been separately charged, ie damage to the security camera, damage to the ATM and damage to the door of the safe. The applicant submitted that by taking those matters into account in that way, his Honour had erred in that he was doubly punishing the applicant for one or more of the offences of malicious damage.

46 It is not clear from the way in which his Honour has expressed himself what matter his Honour was referring to when he made this comment. As the Crown pointed out, there was another instance of damage which was not the subject of a separate charge in that the applicant had forced open a steel secure cabinet to gain access to some keys. That having been said, the unqualified way in which his Honour expressed himself suggests that there is substance in the applicant’s complaint.

47 In order to understand what effect, if any, that consideration had on the sentence ultimately imposed it is necessary to place the comment in context. His Honour said:

“I do note that his offence was accompanied by vandalism, although I think I am entitled to say that it is not of its worst kind. I have seen plenty worse and I could make the same remark in relation to the value of the property stolen.”

48 It is clear that if his Honour did impermissibly take these matters into account, he did not give not them particularly great weight. It is also not without significance that the concurrency of the malicious damage sentences meant that in a practical sense the applicant received no extra punishment for them.

49 As has been said on a number of occasions, for this Court to quash a sentence and impose a lesser one it is not sufficient for the applicant to establish error. It is necessary that this Court be satisfied that “some other sentence … is warranted in law and should have been passed” – subs 6(3) Criminal Appeal Act 1912, R v Simpson (2001) 53 NSWLR 704 at [79] and [99-100]. Accordingly, although his Honour erred in referring to vandalism in the way in which he did, I am not persuaded that some lesser sentence is warranted in law.

50 The orders which I propose are as follows:

(1) Leave to appeal be granted.
(2) The appeal be dismissed.

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