Edmond and Moreen v The Queen
[2017] NTCCA 9
•29 August 2017
CITATION:Edmond and Moreen v The Queen [2017] NTCCA 9
PARTIES:EDMOND, Malcolm & MOREEN, Mark James
v
THE QUEEN
TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CRIMINAL APPEAL from the SUPREME COURT exercising Northern Territory jurisdiction
FILE NO:No. CA 2 of 2017 (21601340 & 21601341) & CA 14 of 2016 (21563377 & 21601324)
DELIVERED: 29 August 2017
HEARING DATES: 7 June 2017
JUDGMENT OF: Grant CJ, Blokland and Hiley JJ
APPEALED FROM: Kelly J
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – JUDGMENT AND PUNISHMENT
Whether sentences manifestly excessive having regard to the circumstances of the offending and the appellants – determination of objective seriousness influenced by the need to protect vulnerable members of the community including taxi drivers – stealing from taxi driver at night time considered towards the higher level of seriousness – both appellants considered to have poor prospects of rehabilitation – sentence not manifestly excessive – appeal dismissed.
Sentencing Act (NT) s 5, s 6.
Dinsdale v The Queen [2000] HCA 54, Emitja v The Queen [2016] NTCCA 4, Veen v The Queen (No 1) (1979) 143 CLR 458, Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, applied.
Bara v The Queen [2016] NTCCA 5, Baumer v The Queen (1988) 166 CLR 51, Dinsdale v The Queen (2000) 202 CLR 321, Director of Public Prosecutions v Ottewell [1970] AC 642, Hoare v The Queen (1989) 167 CLR 348, Kuvanci v Scott [2004] ACTSC 16, Morrow v The Queen [2013] NTCCA 7, R v Anthony [2013] QCA 95, R v Devine (unreported, Tasmanian Court of Criminal Appeal, Cox, Crawford, Zeeman JJ, 22 December 1992), R v Dodd (1991) 57 A Crim R 349, R v Ellis (1993) 68 A Crim R 449, R v Gannon [2009] SASC 73, (2009) 103 SASR 398, R v Hamilton [2009] QCA 391, R v Lee [2006] VSCA 80, R v Rushby [1977] 1 NSWLR 594, R v Yousef (2005) 155 A Crim R 134, R v Jones (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Lee CJ at CL and Smart J, 2 March 1991), Woods v The Queen [1999] WASCA 299, referred to.
Phan v Western Australia [2014] WASCA 144, followed.
Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thompson Reuters, 3rd ed, 2014)
Australian Law Reform Commission, Same Crime Same Time: Sentencing of Federal Offenders, Report No 103 (ALRC, 2006)REPRESENTATION:
Counsel:
Appellant Moreen: JCA Tippett QC
Appellant Edmond: P Bellach
Respondent: WJ Karczewski QC, Director of Public Prosecutions
Solicitors:
Appellant Moreen: Northern Territory Legal Aid Commission
Appellant Edmond: Pipers Barristers and Solicitors
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Number of pages: 38
IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINEdmond and Moreen v The Queen [2017] NTCCA 9
No. CA 2 of 2017 (21601340 & 21601341)
No. CA 14 of 2016 (21563377 & 21601324)
BETWEEN:
MALCOM EDMOND & MARK JAMES MOREEN
Appellants
AND:
THE QUEEN
Respondent
CORAM: GRANT CJ, BLOKLAND and HILEY JJ
REASONS FOR JUDGMENT
(Delivered 29 August 2017)
GRANT CJ AND HILEY J:
On 26 September 2016 the appellants were convicted and sentenced for stealing $460 from a taxi driver on 17 October 2015 (count 1) and robbing a service station attendant on 24 December 2015 (count 2).
Each appellant was sentenced to two years’ imprisonment on count 1. In relation to count 2, Malcolm Edmond was sentenced to two years and ten months’ imprisonment and Mark Moreen was sentenced to three years and three months’ imprisonment due to his greater involvement in that particular offending. After applying totality principles Mr Edmond’s total sentence was three years and ten months and Mr Moreen’s was four years and three months.
Each appellant has appealed against his sentence of two years in relation to count 1 on the basis that it was manifestly excessive (Ground 1). Ground 2 on each appeal is that the total sentence imposed across both counts was manifestly excessive because of the manifest excess of the sentence imposed on count 1.
Relevant principles
As this Court has frequently observed,[1] the principles which govern appeals on the ground that a sentence is manifestly excessive in all the circumstances are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.
In making that assessment, the objective seriousness of the offence is a vital matter for consideration in determining whether the punishment fits the crime. That determination must be influenced by the need to protect vulnerable members of the community.[2]
It is well recognised that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.[3] Objective circumstances may include the maximum statutory penalty for the offence, the degree of harm caused, the method by which the offence was committed, and the offender’s culpability.[4] The seriousness of a crime has two main elements – the degree of harmfulness of the conduct and the extent of the offender’s culpability.[5]
In most cases the harm will only be sustained by the particular individual who is the immediate victim of the offending, such as the person who is assaulted or the person whose money is stolen. However in some cases, such as the present one, the harm may well have much broader ramifications. These factors are reflected in provisions such as ss 5(2)(b) and (da) of the Sentencing Act (NT), which require the court to have regard to any physical, psychological or emotional harm done to a victim and to any harm done (whether directly or indirectly) to a community as a result of the offence.
Taxi drivers provide an important service to people in the Northern Territory. This is particularly so in relation to members of the community who are otherwise unable to travel from one place to another; for example, to travel to and in places where there is no public transport or where the member of the public does not have access to or is incapable of driving a motor vehicle. Young women also rely on taxis as a safe means of transport. In the Northern Territory many of the people who fall within these categories are people who live outside the central business districts of cities and towns and/or Aboriginal people who live in communities.
Unlike most service providers, taxi drivers are generally required to accept into their cabs any person who is willing and able to pay the fare, and to take them to a location no matter how remote. This is so irrespective of the person’s age, ethnicity, gender or disability, physical and or mental, and notwithstanding that there may be a number of prospective passengers some or all of whom are affected by alcohol or drugs. Some taxi drivers necessarily work and perform these functions at night time and during early morning hours when many passengers are intoxicated and wish to go home.
Taxi drivers are often required to work in circumstances that make them particularly vulnerable, not just to antisocial behaviour or fare evasion, but also to criminal conduct including stealing, assault, robbery and sometimes more serious crimes. Taxi drivers are to be protected in their performance of this important public service so that people will not be discouraged from driving taxis, particularly at night time to remote locations.
Consequently, the courts have a particular responsibility to impose upon people who commit offences against taxi drivers sentences that are designed to deter passengers from engaging in criminal offending against vulnerable taxi drivers in order to protect that section of the public and to ensure that important public service can continue.
These sentiments have been expressed by the courts in all Australian states and territories.[6]
Relevant facts
The sentencing judge made the following findings in relation to count 1:
On 16 October 2015 you two were drinking together and you were both drunk. That night, the first victim was working a night shift driving a taxi.
In the early hours of the morning on the next day, 17 October 2015, the victim picked you both up from the One Mile Dam Community. You asked him to take you to an address in Driver in Palmerston. You told him that neither of you had any money but that a family member would pay for the fare when you got to the Palmerston address.
The victim agreed to take you there and you both got into the taxi. Mr Edmond, you sat in the front passenger seat, and Mr Moreen, you sat in the back seat. While the victim was driving, you both behaved badly. You harassed the driver by smoking and distracting him while he was driving.
The victim was uncomfortable with your behaviour, so he pulled into the Caltex Service Station at Berrimah knowing that there were CCTV cameras there. At this point both of you verbally abused the victim. He told both of you that he would not drive you any further because you were being aggressive towards him. He asked you to pay the fare on the meter, which was $40, and you both refused to pay.
Mr Moreen, you got out of the back seat, went up to the driver’s side window and argued with the victim. While this was going on, Mr Edmond, you were still in the front passenger seat. You continued to distract the victim by arguing with him and rummaging through the centre console.
Presumably it was at this stage that you stole a bag of coins from the centre console. Then you got out of the front passenger seat and went around to where Mr Moreen was standing.
By this stage, the driver’s side door was open. While Mr Edmond distracted the driver, Mr Moreen, you stole his wallet from the storage pocket on the driver’s side door. One of you gave the victim $20 and both of you walked away.
After you had both left, the victim realised that his wallet with his night’s takings of $400 was missing as was a bag of coins in a clipseal bag that had about $60 in it. That had been taken from the centre console. He phoned police and they arrived about 20 minutes later.
Meanwhile, the two of you walked to Knuckey’s Lagoon Camp to visit family.
Mr Edmond’s subjective circumstances
Mr Edmond was born on 12 December 1993. His parents separated when he was seven years old. His father lives in Belyuen and his mother in Palmerston. He left school during year 8 and did some stock work on properties and other work as a construction worker. When Mr Edmond was about 15 years old a number of close relatives died, including a sister, a cousin-brother and his stepfather. He started using cannabis and alcohol at or about that time, and started engaging in offending behaviours. He did volunteer work with the Riding for the Disabled Centre as part of a program offered at Don Dale, and was said to be hard-working and respectful when he was there. He has also done some training in conservation and land management.
While on remand for this offending Mr Edmond completed the Safe Sober Strong program and obtained a full-time job as groundsman. He also started studying for a certificate in visual arts. Mr Edmond said that he realises he needs to stay away from alcohol and other drugs and start contributing to the community. His dream is to start a small business in tourism and to promote his culture and country in the Litchfield area. Mr Edmond wrote a letter to the sentencing court explaining what was going through his head at the time he committed the offences, but the letter notably did not mention the victims or display any degree of empathy or sympathy for them.
The sentencing judge considered that Mr Edmond’s prospects of rehabilitation were “not particularly good”. Of particular concern was the fact that he committed the first offence shortly after being released from prison for very similar offending. Approximately four days before the offending in October 2015 Mr Edmond completed a sentence of seven months’ imprisonment for six offences committed in February and March 2015. Those offences included assaulting a shopkeeper, assaulting a minibus driver several hours later, assaulting a member of the police force, stealing, resisting police in the execution of duty, and failing to pay a taxi fare.
His criminal history also included a conviction in December 2010 for what the sentencing judge described as a particularly violent and dreadful aggravated robbery, and a conviction in 2009 for aggravated assault. Mr Edmond had previously served a sentence of four years’ imprisonment for the aggravated robbery.
Against that background, it is unsurprising that the sentencing judge did not accept that Mr Edmond was truly sorry for his actions and for the distress that he caused to the victims. The sentencing judge allowed a discount of about 20 per cent on account of his plea of guilty.
The sentencing judge also concluded that it would be inappropriate to suspend any part of the total sentence of imprisonment for three years and ten months. The reasons for that conclusion are plain and indisputable. By the time Mr Edmond was convicted and sentenced for these offences, he had already been convicted and sentenced to 13 months’ imprisonment for another five offences he had committed in December 2015. That sentence was backdated to 5 January 2016 with a non-parole period of nine months. Mr Edmond was still in custody for those matters at the time he was sentenced on 23 September 2016 for the offences which are the subject of this appeal.
The sentencing judge ordered five months of the 13 month sentence under which Mr Edmond was already imprisoned to be served in concurrency with the new sentence of imprisonment of three years and ten months. That resulted in a total sentence of imprisonment for four years and six months from 5 January 2016. A new non-parole period of two years and three months was fixed.
Mr Moreen’s subjective circumstances
Mr Moreen was born on 16 January 1990. He has two younger sisters. He went to various schools in Darwin, finishing his education at Kormilda College in year 10. He has a wife and three young children who all live with his grandmother at 15 Mile Camp. He has not seen his mother, who lives in Darwin, for some years. The sentencing judge was told that he has significant cultural responsibilities within his family. He was addicted to alcohol and cannabis for many years. His abuse of those drugs increased after his father died in 2011. He has no disclosed history of employment.
He had been released from prison approximately two months before the offending in October 2015, after serving more than six months’ imprisonment for damage to property, assaults on workers and stealing. Prior to that, he had an extensive criminal record going back to 2006. His record included two convictions for assault, three convictions for being armed either in public or at night, six convictions for property damage, four convictions for stealing, two convictions for unlawful entry, two convictions for trespass and three convictions for unlawful use of a motor vehicle. He had also breached bail and other court orders, including breaching the conditions of orders suspending sentence.
The sentencing judge also did not accept that Mr Moreen was truly remorseful, and allowed a discount of approximately 20 per cent on account of his plea of guilty. The sentencing judge rejected defence counsel’s suggestion that his sentence be partially suspended, mainly because of his very poor criminal history and his multiple breaches of conditions of suspended sentences and other orders.
Objective seriousness of the offending
Counsel for Mr Edmond in this appeal sought to characterise the offending as stealing cash to the value of $460 from a person who was working as a taxi driver at the time. Counsel for Mr Moreen in this appeal sought to characterise the offending as stealing a taxi driver’s wallet with $400 in it and stealing a bag of coins.
The Director contends for the respondent that the offending was far more serious than those characterisations would admit. That submission should be accepted.
The offending was towards the higher level of seriousness for this kind of offence. The victim was a taxi driver who was particularly vulnerable at the time. He was driving away from the central business and entertainment precinct in the early hours of the morning carrying two intoxicated and abusive passengers. His predicament at the time of the stealing was sufficiently alarming to have caused him to seek the sanctuary of the service station and to ask the offenders to leave the vehicle. Both offenders had been behaving badly in the taxi and were verbally abusive towards the taxi driver. Even after he stopped at the service station they continued to be verbally abusive and aggressive. They continued to argue with and distract the driver after Mr Moreen got out of the car and while the stealing took place.
Unlike many of the stealing cases that come before the courts, such as break and enters where money or other items are stolen while the victim is asleep or otherwise unaware of the trespass to his or her property, the victim in the present case was very much aware of what was happening and would have been uncertain about what else might happen to him or his property, particularly if he resisted. He was distracted and clearly afraid for his own safety, and for that reason unable to prevent the appellants from taking his money.
There were a number of other factors that distinguish the present matter from more common stealing offences. Although he had no obligation to carry passengers who did not have sufficient money to pay the fare, he took the additional risk of trusting the offenders to honour their promise to obtain the fare money from some unknown source at the proposed destination. Further, there were two acts of stealing, each committed by one of the offenders while the other was arguing with and distracting the victim. The amounts taken comprised all of the driver’s takings for that shift.
Regrettably, offending against taxi drivers in circumstances such as these is prevalent.
Consideration
As the Court of Appeal of Western Australia said in Phan v Western Australia:[7]
Whether a sentence is manifestly excessive requires a consideration of the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[8]
Counsel for the appellants pointed out that the starting point of the sentence before the 20 per cent discount was two years and six months, almost 36 per cent of the maximum penalty of seven years’ imprisonment. They contended that sentence was manifestly excessive for stealing in an amount of less than $500.
Counsel for the appellants also pointed out that most sentences imposed in the Local Court and in the Supreme Court for stealing relatively small amounts of money are significantly lower than the sentence imposed in the present case. However, those sentences to which reference was made during the conduct of the appeal were indicative sentences in relation to the stealing component of multiple counts involving stealing, break and enter with intent to steal, and unlawful damage to property. In cases such as that, the particular circumstances concerning the stealing count are largely subsumed by the circumstances involved in the more serious counts of break and enter and unlawful damage to property. Moreover, for the reasons already detailed, the stealing offences in that type of matter do not involve the aggravating features that exist in the present matter.
The respondent’s submission that the amount stolen was not the gravamen of this offending should be accepted. Although that amount was no doubt significant relative to the victim’s income that night, the gravamen of the offending was that the property was stolen during a confrontation with a vulnerable person working alone at night providing a necessary service to the public.
Counsel for Mr Moreen, whose submissions in this respect were adopted by counsel for Mr Edmond, contended that the sentencing judge’s starting point of almost 36 per cent of the maximum penalty implies that inappropriate weight was given to Mr Moreen’s criminal history. In other words, that criminal history was erroneously used as an aggravating factor over and above the sentence appropriate for this particular offending.
That submission stressed the overriding requirement for proportionality; namely that the sentence not exceed what is commensurate with the gravity of the crime being punished. The operation of that principle is not in question. Absent contrary statutory direction, it is not permissible to punish offenders more severely than the offence itself warrants on account of criminal history. Although an offender’s criminal history and propensity to commit similar crimes may tend against mitigation, and may elevate the weight attributed to personal deterrence and community protection in the sentencing calculus, it cannot increase the sentence beyond what is appropriate for the instant offence.[9]
Protection of the community is always a legitimate objective in sentencing. Indeed, it is one of the five purposes for which a sentence may be imposed expressly identified in s 5 of the Sentencing Act. However, the pursuit of this objective cannot prevail over the overarching requirement for proportionality. So much is apparent from what was said by the High Court in Veen v The Queen (No 1),[10] and reiterated in Veen v The Queen (No 2)[11].
In their joint reasons in Veen v The Queen (No 2) Mason CJ, Brennan, Dawson and Toohey JJ said at 473:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
Their Honours said further at 476:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case.
The same may be said in respect of the operation of the guidelines set out in s 5(1) of the Sentencing Act.
In Veen v The Queen (No 2), their Honours went on to note that the trial judge in that matter took into account the relevant purposes of criminal punishment in determining the sentence to be imposed, and said that he “was entitled to attach great weight to the protection of society as a factor in that determination.”[12]
Their Honours went on to refer to two subsidiary principles at 477-8:
The first is that 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 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.
It was and is appropriate to take into account relevant parts of the appellants’ criminal histories in determining the appropriate sentences. In particular, they had each previously committed offences against vulnerable people such as minibus drivers, and on one previous occasion in company with each other. This, coupled with the fact that each had only recently been released from prison after serving sentences for that and other offending, illuminates their moral culpability and demonstrates a need to impose condign punishment to deter each of them and others from similar offending.
Counsel for Mr Moreen also submitted that there were a number of other factors that lead to the conclusion that the objective seriousness of the offending was not sufficiently high as to justify the sentence imposed. Those factors were that:
(a)the appellants were very intoxicated;
(b)there was no planning and the offending was opportunistic;
(c)the amount stolen was a relatively small amount;
(d)the offending did not involve a breach of trust;
(e)there were no verbal or physical threats of violence; and
(f)the appellant pleaded guilty at an early opportunity.
By way of response, the Director pointed out that in Emitja v The Queen this Court said: “The absence of a factor which would elevate the seriousness of the offending is not a matter of mitigation.”[13] Therefore, the objective seriousness of the offence is not lower because there was no breach of trust, violence or threats of violence. In response, counsel for Mr Moreen submitted that those factors were not relied upon for the purpose of mitigation, but rather for the purpose of assessing the objective seriousness of the offending in order to demonstrate that the sentence imposed was disproportionately severe. By way of illustration, counsel for Mr Moreen conceded that if factors such as breach of trust, violence or threats of violence had been present, the sentence imposed could be understood and would not be occasioned by error. It is asserted that in their absence, however, the sentence was not proportionate to the crime.
So far as the question of intoxication is concerned, in Hasan v The Queen[14] the Victorian Court of Appeal observed:[15]
It is notorious that intoxication of the offender is a common feature of violent offending in general, and of sexual violence in particular. Not infrequently, sentencing judges are faced with a submission that the offender’s intoxication made him/her behave in a manner that was ‘out of character’ and that his/her moral culpability for the offending should be seen as lessened accordingly. As already indicated, that is the submission which was advanced on this appeal.
In the circumstances, it is timely to review the state of the law regarding intoxication as a sentencing consideration. As will appear, courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce the offender’s culpability. An ‘out of character’ exception is acknowledged to exist, but it has almost never been applied. On the other hand, it is recognised that intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol. [See, for example, R v Hay [2007] VSCA 147, [18] (Buchanan JA), [33] (Maxwell P); R v Martin [2007] VSCA 291; (2007) 20 VR 14, 20 and the cases there cited.] No issue of that kind arises here.
That the offenders were intoxicated does not reduce the seriousness of the offending. This is particularly so in relation to these offenders, both of whom have longstanding problems with alcohol and have previously committed offences when under the influence of alcohol.[16]
For the reasons already described, the fact that the amount stolen was relatively small is not the gravamen of the offending in this case. The circumstances leading up to and during the two acts of stealing were of greater significance than the loss of the money, even allowing for the fact that the victim would no doubt have considered the pecuniary loss to be significant. To say that each particular act of stealing was of short duration, and did not involve a breach of trust in the legal sense, underplays the seriousness of the victim’s predicament at the time when those acts took place.
Nor does the absence of verbal or physical threats of violence reduce the seriousness of the offending. Rather, the presence of violence or the threat of violence would have been an aggravating factor.[17] Moreover, had there been such threats it is likely that the offence charged would have been robbery rather than stealing, with a substantially greater maximum penalty. In any event, even in the absence of threats of violence, the abusive and aggressive conduct of the appellants was sufficiently concerning to the victim to cause him to stop at the service station.
Even if this particular offending was not planned as such, it cannot be said to have been opportunistic, as would be the case where, for example, a thief sees a wallet sitting on a bench and simply seizes the opportunity of stealing it. The bag of coins was stolen from the centre console after Mr Edmond rummaged through it, and the wallet was stolen from the storage pocket on the door. Both those acts occurred during the course of argument and distraction initiated by the offenders.
The fact that the appellants pleaded guilty at an early opportunity has nothing to do with the objective seriousness of the offending. In any event, that fact was reflected in the 20 per cent discount which neither appellant suggested was inadequate.
Counsel for Mr Moreen then referred to a number of decisions from other jurisdictions which had been cited by the respondent in its written submissions, and drew attention to the sentences that had been imposed in some of those cases. The respondent had cited those authorities to illustrate what other courts have said about the seriousness of offending against vulnerable persons including taxi drivers, not as sentencing comparators. Even if there was thought to be any utility in considering the sentences imposed for stealing from taxi drivers in other jurisdictions, the sentences to which counsel for Mr Moreen drew attention were too few in number and too disparate in circumstance to constitute a sentencing pattern for the purposes of the particular offence under consideration.[18]
Counsel for Mr Edmond contended that the sentencing judge mischaracterised or wrongly assessed the true nature and circumstances of the offence in count 1 because the words “attack” and “attacked” were used when describing the nature of the appellants’ offending on both counts.
The relevant passage is extracted below. After addressing each offender separately in relation to his particular background and relevant circumstances, the sentencing judge said:
I am talking to both of you now. I have got to think about a number of things. Robbery is a very serious offence. It is made worse by the fact that the two of you were together when you did it and that the victim suffered harm.
I have to pass a sentence that sends a message of just how much the Court and the community disapproves of these serious offences, a sentence that will discourage you and others from doing something like this again. I also have to think about protection of the community.
Serviced station operators and taxi drivers and other people who work alone at night provide a necessary service to the public and they are vulnerable to attack. The Courts need to give them special protection and I need to pass a sentence that will discourage people from attacking such vulnerable people at night.
Now, I do take into account that your original intention was simply to steal food. At the start, you did not intend to use violence to get what you wanted. However, you were certainly prepared to use violence when the service station attendant tried to stop you taking the things that did not belong to you. I also take into account that you stole items of little value – food – and you did it because you are hungry.
The sentencing judge then stated that she would be reducing the sentences by approximately 20 per cent on account of the pleas of guilty, and proceeded to sentence each offender separately. In relation to Mr Moreen, the sentencing judge indicated that she would have sentenced him to imprisonment for two and a half years on count 1 and four years for “the more serious charge of robbery from the service station causing harm to the operator”. In relation to Mr Edmond, after imposing the same sentence on count 1, the sentencing judge indicated a lower starting point of three and a half years for count 2 because he was slightly less culpable than his co-offender.
Although the sentencing judge did refer to both counts when making the comments extracted above, it is clear that the primary focus of her comments was count 2; namely, the more serious offence of robbery causing harm. Moreover, the sentencing judge plainly used the words “attack” and “attacking” for the purpose of making the obvious and appropriate point that service station operators and taxi drivers working in these kinds of circumstances are vulnerable to attack, and that courts need to impose sentences that will deter others from engaging in that kind of conduct. Those comments do not disclose any error of fact or principle. Further, there was nothing in the use of those words that suggests that the sentencing judge was assuming that any “attack” against the taxi driver was physical as distinct from verbal.
Counsel for Mr Edmond also referred to “the sentences imposed for like and similar offending in the appellant’s criminal history”, and contended that the sentence of two years was manifestly excessive because it was considerably greater than the sentences previously imposed for that like offending.
Mr Edmond’s criminal history shows that he had one prior conviction for stealing in February 2015, for which he was sentenced to two months’ imprisonment by the Court of Summary Jurisdiction. That was one of the six offences committed in February and March 2015 for which Mr Edmond served a sentence of seven months’ imprisonment. Those offences have been described above, and included more serious offences of assaulting workers.
Mr Edmond’s criminal history also reveals a sentence of two months’ imprisonment for stealing imposed by the Court of Summary Jurisdiction. That sentence also was part of a total sentence of more than 14 months imposed in June 2016 for five offences committed in December 2015, which included an aggravated assault causing harm and two other assaults.
There is nothing to suggest that those stealing offences had the particular characteristics of the current offending, and no basis on which to consider those sentences have any relevance for present purposes. To say that the appellant has previously received lesser penalties for the offence of stealing in no way illuminates the issues to be determined in this appeal.
Disposition
The objective seriousness of the offending was high. This kind of offending is prevalent and requires strong sentences designed to deter others from engaging in similar conduct. It was also a necessary and proper part of these sentencing exercises for the court below to denounce this form of conduct. Each of the appellants presently has poor prospects of rehabilitation. Specific deterrence is important to encourage them to realise that they must change their ways.
We do not consider that the sentence imposed on count 1 was manifestly excessive. Ground 1 is not made out. It follows that ground 2 must also fail. The appeals are dismissed.
BLOKLAND J:
Introduction
Both appellants were granted leave to appeal against a sentence imposed on each of them by the Supreme Court on 23 September 2016. Both were also granted an extension of time.[19] The first ground raised by both appellants is that the sentence of two years imprisonment for the single count of stealing is manifestly excessive. The second ground argued by the appellant Moreen is that the total effective sentence imposed on him of four years and six months with a non-parole period of two years and three months was, in all of the circumstances, manifestly excessive, as a consequence of the sentence imposed for the stealing count. The appellant Edmond also argued the total term of three years and 10 months, to be served cumulatively on eight months of a sentence he was already serving, bringing the total term to four years and six months, was excessive for the same reason. In his case, a non-parole period of two years and three months was fixed. At the hearing of the appeal, permission was granted to the appellant Edmond to additionally argue specific error said to arise from the learned sentencing judge’s remarks.
Their Honours Grant CJ and Hiley J have set out the sentencing materials that were before the Supreme Court, the reasoning of the learned sentencing judge and the contentions of the parties on appeal.
I am indebted to their Honours for circulating an earlier draft of their judgment and respectfully adopt their Honours’ summary of the relevant sentencing materials and contentions.
Ground one: manifestly excessive sentence for stealing
With respect, I agree wholeheartedly with the respondent’s submissions on the need for the courts to recognise serious offending against taxi drivers. I would adopt their Honours’ comprehensive discussion about the need for sentencing courts to protect vulnerable persons, in this instance taxi drivers who are regrettably subject to crimes of this kind and worse on an all too frequent basis. The learned Director has provided a comprehensive selection of cases from all Australian jurisdictions that recognise the vulnerability of taxi drivers and the importance of the service they provide.[20] Those principles are relevant to this matter; however, it may also be noted, as pointed out by senior counsel for the appellant Moreen, that all of the authorities referred to this Court on that point involve offences of actual violence, generally associated with robberies.[21]
The vulnerability of the victim as a taxi driver and the trickery and abusive behaviour of the appellants leading up to the theft, justifies a sentence beyond what might ordinarily be imposed for the theft of $460 without those features. The history of previous offending by both appellants left little room for mitigation or confidence in their prospects for rehabilitation, save for their pleas of guilty which were taken into account by the learned sentencing judge. Both appellants received a sentencing discount for their pleas, from a starting point of two years and six months, resulting in the sentence for the stealing count of two years imprisonment.
Both appellants were also dealt with in the same proceedings for one count of robbery committed approximately two months after the stealing offence.
Both appellants had been released from prison shortly before the offending. The appellant Moreen was 26 years old at the time of the offending. He was born in Darwin and is an Aboriginal man from the Litchfield area. He had significant cultural responsibilities within his family. His father passed away in 2011 and the Supreme Court was told his substance abuse problems escalated from that time. He attended different schools in the Darwin area to Year 10.[22] The appellant Moreen had been living at 15 Mile Camp with his family. He and his wife and three children lived with his wife’s grandmother at the Camp.
The appellant Edmond had a number of difficult background life events. He was 22 years old at the time of the offending and is a single Aboriginal male. He was affected by his parents’ break up when he was young. At age 15, both his siblings died in a car accident. His father resided at Belyuen, his mother at Palmerston. He attended school until Year 8 at Palmerston High School. He has previously worked in stock work, construction and had trained in conservation and land management. He had volunteered with the organisation riding for the disabled.[23] He had made attempts to rehabilitate while in prison including the completion of the Safe Sober Strong program and commenced a Certificate 1 in visual arts.
Both appellants may be regarded as coming from, or living in, poor social circumstances. However, the learned sentencing judge’s characterisation of their poor prospects of rehabilitation cannot be disputed. Both have a history of alcohol abuse and of committing offences when intoxicated.
As already indicated, the circumstances of the offending possessed sufficient aggravating features to justify a sentence beyond what may be regarded as a simple offence of stealing, without the same confronting features. However in my respectful view, notwithstanding those features, for the reasons that follow, the conclusion reached here is that the sentence of imprisonment for two years was manifestly excessive.
The conclusion manifestly excessive does not depend upon attribution of specific error in the reasoning of the sentencing judge.[24] To reach such a conclusion it must be shown that the sentence was clearly and not just arguably excessive.[25] In approaching the task of determining whether a sentence is manifestly excessive or inadequate, the appeal court does so within a context that there is no one single correct sentence. The fact that certain other serious features of particular offending are not present is not in itself mitigating,[26] but may be relevant to the assessment of where on the scale of offences of this kind the offending lies. If the offending is not so grave as to warrant the imposition of the maximum penalty, “a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called”.[27]
It is impossible to point to a sentencing range or standard with respect to the offence of stealing. There is wide variation between the circumstances of offending and of offenders, however save for thefts involving very large amounts of money or valuable goods it would appear there are very few examples of sentences at or around two years imprisonment. Theft of the kind in question would ordinarily be dealt with in the Local Court and sentencing remarks are not readily available.
The respondent submitted the value of the money stolen did not represent the gravamen of the offending. In my view, the value of the money stolen, while certainly not the only factor relevant to the assessment of the gravity of the offending, remains a significant consideration in stealing cases.
The Criminal Code provides that if the item stolen has a value of less than $100,000, and provided the item stolen is not a testamentary instrument, the maximum penalty is imprisonment for seven years.[28] If the value of the item stolen is $100,000 or more, the maximum penalty is 14 years imprisonment.[29] The significance of the value of the property is built into the structure of s 210 (1) and (2) of the Criminal Code.
Four hundred and fifty dollars is not a trivial amount, but in terms of assessing proportionality needs to be seen within a spectrum of cases where the value of the thing stolen is up to $100,000, within the context of a maximum penalty of seven years imprisonment. Part VII of the Criminal Code deals with property offences. Very few property offences are defined, or their penalties aggravated with reference to the value of the property.[30] In stealing cases, the value of the property has a significant bearing on the assessment of the gravity of the offending, although it is accepted, not to the exclusion of other factors.
Another aspect of the significance of the value of the property that contributes to the assessment of the gravity is the value of the property from the perspective of the victim. This was a reasonably significant feature of the offending, as the amount stolen was all of the money earnt by the victim on that shift. Section 5(2)(d) of the Sentencing Act (NT) provides the Court must have regard to the “loss” caused by the offender. The “loss” incorporates both the value of the property itself and the loss to the victim. That the offence was committed in company is a further aggravating factor specifically provided for by s 6A(a) of the Sentencing Act (NT).
The circumstances leading up to the theft were abusive and unpleasant, causing to the driver stop the car and requiring the appellants to leave it. Although this abusive behaviour was a nasty feature of the offending and elevated the seriousness of the offending, it was not in the nature of a breach of trust, at least in the way a breach of trust is conventionally understood as a circumstance of aggravation in theft cases. The Crown facts state:[31]
The offenders requested the complainant take them to Lorna Lim Terrace in Driver. They advised the complainant that they did not have any money, but a family member would pay for the fare when they arrived at the Palmerston address.
Although by their behaviour the appellants brought about the cessation of the journey, the arrangement was they would not pay until a family member met them at the Palmerston destination. That is not to suggest, however, that it was not serious for the reasons already mentioned.
The Crown facts described the appellants harassing the driver by smoking in the taxi and distracting him. When the victim was in an area he knew had CCTV operating, he took the opportunity to discontinue the journey. Thereafter the appellants became verbally abusive, aggressive and argumentative and, while distracting the driver, stole his wallet and his coins.
Although the appellants’ unacceptable and confronting behaviour was part of the circumstances surrounding the offending and elevated the objective seriousness of the offending to a higher level when compared with a theft involving no confrontation with the victim, the surrounding circumstances, respectfully, ought not engulf the assessment of the gravity of the offending for which the appellants were actually being sentenced. Although their unacceptable conduct is part of the circumstances of the offending, it is the theft of $460 from a person in the vulnerable position of a taxi driver working at night, for whom $460 was of particular value, that primarily informs the gravity of the offending. Those are the factors highlighted on behalf of the respondent.[32] The confrontational behaviour was part of the circumstances of the offending and it is expected would elevate the sentence, however those features should not, in my respectful view, have resulted in a sentence of two years imprisonment.
Although the behaviour surrounding the theft must have been of concern, it was not suggested there were threats or other actions that may have amounted to other offences forming part of the course of conduct that were required to be taken into account.[33] That is not to say the driver did not feel “uncomfortable”, as the Crown facts described him at the time. He was clearly in a difficult situation. It was not, however, suggested that he felt threatened by the appellants, which is a factor that would have taken the matter into a higher level of gravity, or to a more serious charge such as robbery in company, an offence that requires proof of the threatened use of violence.
The Crown were unable to provide a victim impact statement to the sentencing judge, despite attempts being made.[34] Although the non-provision of a victim impact statement does not permit a court to draw an inference in favour of an offender[35] nor lessen the gravity of the offending, the impact on the victim cannot be assumed to be more significant beyond what was revealed by the Crown facts. He felt uncomfortable with the appellants’ behaviour and took steps to provide for his safety while ending the journey.[36] No doubt it can be inferred it was a difficult and unpleasant circumstance, but nothing in the nature of threatening behaviour or the victim feeling threatened.
Because of the previous offending by both appellants, they did not have a claim to good character and indeed it would be expected that by virtue of the history of their particular offending, their sentences would be elevated, within the bounds of a proportionate sentence consistent with the approach taken in Baumer v The Queen[37] and Veen v The Queen (No 2).[38] General deterrence, given the fact that the victim was working as a taxi driver, and in the case of the appellants, specific deterrence, were pertinent sentencing considerations, the latter worthy of strong emphasis given their previous offending.
Nevertheless, given all of those factors, I have come to the conclusion that although it was significant offending, it was not at a level to attract a term of two years imprisonment. As acknowledged, the offending would attract a more significant penalty than a stealing case without the aggravating features, however I would have allowed the appeal on ground one and would sentence the appellants to imprisonment for one year, taking into account a similar discount as applied by the sentencing judge for the timely pleas of guilty.
Specific Error
On behalf of the appellant Edmond specific error is alleged because of the sentencing judge’s use of the word “attack” and “attacking” in reference to taxi drivers and others who work alone at night and are vulnerable. It was submitted the effect of that was to impose a sentence that was more severe than warranted on count one. I would not uphold this ground. The sentencing judge was not referring necessarily to a physical attack. The context of those remarks referred to all types of offending against persons in vulnerable situations. Generically, offences in that context can readily be understood to be “attacks” without meaning a physical attack. In any event, it is clear from the balance of the remarks that robbery and theft were distinguished.
Ground two: manifestly excessive sentence for the total term
The learned sentencing judge made generous orders with respect to partial concurrency, notwithstanding the separate offences were committed almost two months apart. This recognised the application of the totality principle.
The specific details of the sentences are set out above. I would uphold this ground on the basis of the impact of the sentence for count one on the total term, but that would be the sole basis of the conclusion that this ground is made out. The conclusion reached on this basis does not warrant examination of the sentence for robbery, including the decision of the sentencing judge to set a non-parole period. I would not entertain further re-sentencing as submitted on behalf of the appellant Edmond, beyond imposing a less severe sentence in the terms required by s 411(4)(a)(i) of the Criminal Code. Success on ground one of the appeal in this instance should not invite an indirect re-sentencing on all matters when those matters have not been properly agitated on appeal.
As indicated, under s 411(4)(a)(i) of the Criminal Code I would have imposed 12 months imprisonment for count one on both appellants. For the appellant Moreen, I would allow a similar proportional adjustment for totality as the sentencing judge, bringing the total sentence to three years and nine months, with a non-parole period of 23 months. Similarly, for the appellant Edmond, the total sentence would be three years and four months; accumulated on the existing sentence it would be four years with a new non-parole period of two years. I have also set a similar percentage for the non-parole period as the sentencing judge. I have considered the proviso, however in the context of count one, the penalty would be halved, albeit that it amounted to a difference of 12 months then to six months of the total effective term. Proportionate to the total sentence it possesses some significant bearing.
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[1]See for example Barav The Queen [2016] NTCCA 5 at [75] – [76]; Emitja v The Queen [2016] NTCCA 4 at [39] – [40]; and Morrow v The Queen [2013] NTCCA 7 at [36].
[2] Emitja v The Queen [2016] NTCCA 4 at [40].
[3]Hoare v The Queen (1989) 167 CLR 348 at 354. See too Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (Thompson Reuters, 3rd ed, 2014) at 239 [3.55] (Fox and Freiberg’s Sentencing) [3.55] citing Muldrock v The Queen [2011] HCA 39; 244 CLR 120; R v Rushby [1977] 1 NSWLR 594; R v Dodd (1991) 57 A Crim R 349, 354; R v Ellis (1993) 68 A Crim R 449.
[4]Fox and Freiberg’s Sentencing at 240 [3.55] citing Australian Law Reform Commission, Same Crime Same Time: Sentencing of Federal Offenders, Report No 103 (ALRC, 2006).
[5] Fox and Freiberg’s Sentencing, at 240 [3.55].
[6]R v Devine (unreported, Tasmanian Court of Criminal Appeal, Cox, Crawford, Zeeman JJ, 22 December 1992); R v Anthony [2013] QCA 95; R v Hamilton [2009] QCA 391; R v Yousef [2005] SASC 203; 155 A Crim R 134 at [50]; R v Gannon [2009] SASC 73; 103 SASR 398; Woods v The Queen [1999] WASCA 299; R v Jones (unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Lee CJ at CL and Smart J, 2 March 1991); R v Lee [2006] VSCA 80 at [24]; Kuvanci v Scott [2004] ACTSC 16 at [41].
[7] [2014] WASCA 144 at [19].
[8] Citing Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
[9]Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57. See, too, Fox and Freiberg’s Sentencing at 236 [3.45].
[10] (1979) 143 CLR 458 at 467, 468, 482-3 and 495.
[11] [1988] HCA 14; 164 CLR 465.
[12] Ibid at 477.
[13] [2016] NTCCA 4 at [52].
[14] (2010) 31 VR 28.
[15] Hasan v The Queen (2010) 31 VR 28 at [20]-[21].
[16]See R v Mark James Moreen (SCC 21345200, Sentencing Remarks, 18 December 2014); R v ME (SCC 21006652, Sentencing Remarks, 21 December 2010).
[17] Sentencing Act, s 6A(f).
[18] The Queen v Kilic [2016] HCA 48; 339 ALR 229 at [25].
[19] AB 89–90; 112–113.
[20] Respondent’s summary of submissions at [12]-[21].
[21] Moreen further submissions in response to respondent’s submissions at [10]-[11].
[22] AB 24.
[23] AB 29-30
[24] Dinsdale v The Queen [2000] HCA 54; 202 CLR 321.
[25] Whitehurst v The Queen [2011] NTCCA 11 at [12]; Noakes v The Queen [2015] NTCCA 7 at [23]; Emitja v The Queen [2016] NTCCA 4 at [39].
[26] Emitja v The Queen [2016] NTCCA 4 at [52].
[27] The Queen v Kilic [2016] HCA 48; 339 ALR 229 at [19].
[28] s 210 (1) and (2).
[29] s 210 (2).
[30] Receiving in s 229 of the Criminal Code has the same penalty structure as stealing; receiving is an alternative verdict to stealing under s 385. Section 218, unlawful use of a vehicle, provides a circumstance of aggravation if the property unlawfully used is of the value of $20,000 or more, or if any damage is valued at $1000 or over.
[31] AB 32.
[32] Respondent’s summary of submissions at [9].
[33] Cf R v Syrch and Burns [2006] NTCCA 29; 18 NTLR 160.
[34] AB 21.
[35] Sentencing Act (NT) s 106B(6).
[36] AB 32–33.
[37] [1988] HCA 67; 166 CLR 51.
[38] [1988] HCA 14; 164 CLR 465.
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