Elphick v The Queen
[2021] ACTCA 35
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Elphick v The Queen |
Citation: | [2021] ACTCA 35 |
Hearing Date: | 9 November 2021 |
DecisionDate: | 12 November 2021 |
Before: | Elkaim ACJ, Loukas-Karlsson and Banks-Smith JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Time spent in custody before sentence – manifest excess – self-represented appellant |
Legislation Cited | Crimes (Sentencing) Act 2005 (ACT) s 63 |
Cases Cited: | CX v The Queen [2017] ACTCA 37 |
Parties: | Kieran William Elphick ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) K McCann ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 15 of 2021 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 4 February 2021 Case Title: R v Elphick Citation: [2021] ACTSC 9 |
THE COURT:
On 4 February 2021 Murrell CJ sentenced the appellant to a total of seven years and seven months’ imprisonment. A non-parole period of four years was set. The appellant was also disqualified from driving for 24 years.
The period of imprisonment commenced on 17 December 2019 and will run until 16 July 2027. The non-parole period expires on 16 December 2023.
The appellant was sentenced for 100 offences which had been grouped into 20 series of offending. The final series also had three additional offences taken into account.
As stated by her Honour, at [2]:
The offences occurred in a three-week period in December 2018/January 2019 and a two-week period in December 2019/January 2020.
At [3] her Honour listed the offences and their maximum penalties:
The offences are:
(a)11 counts of aggravated burglary with intent to steal or attempted aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code).
Each offence carries a maximum penalty of a fine of $320,000, 20 years’ imprisonment or both.
(b)One count of burglary with intent to steal, contrary to s 311 of the Criminal Code.
The maximum penalty is a fine of $224,000, 14 years’ imprisonment or both.
(c)17 counts of taking (one by joint commission), driving, or riding in a motor vehicle without consent, contrary to s 318(1) or (2) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $80,000, five years’ imprisonment or both.
(d)Eight counts of dishonestly obtaining property by deception (one by joint commission), contrary to s 326 (and s 45A) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’ imprisonment or both.
(e)Two counts of theft, contrary to s 308 of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’ imprisonment or both.
(f)Three counts of damaging property by joint commission, contrary to s 403 (and s 45A) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $160,000, 10 years’ imprisonment or both.
(g)12 counts of driving while disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
For a repeat offender, each offence carries a maximum penalty of a fine of $16,000, 12 months’ imprisonment or both. There is also an automatic period of driver disqualification of 24 months.
(h)16 counts of causing minor property damage (not exceeding $5,000), some by joint commission, contrary to s 116(3) of the Crimes Act 1900 (ACT) (and s 45A of the Criminal Code).
Each offence carries a maximum penalty of a fine of $8,000, two years’ imprisonment, or both.
(i)23 counts of minor theft (property valued at less than $5000), including by joint commission, contrary to s 321 (and s 45A) of the Criminal Code.
Each offence carries a maximum penalty of a fine of $8,000, six months’ imprisonment, or both.
(j)One count of negligent driving not occasioning death or grievous bodily harm, contrary to s 6(1)(c) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT).
This offence carries a maximum penalty of a fine of $3,200.
(k)Five counts of possessing a device, plate or document calculated to deceive, contrary to s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT).
Each offence carries a maximum penalty of a fine of $8,000, 6 months’ imprisonment, or both.
(l)One count of trespass, contrary to s 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth). This offence carries a maximum penalty of a fine of $2,100.
Starting at [6] her Honour set out a history of the charges and guilty pleas. Her Honour ultimately discounted each sentence by “approximately 25 per cent” (at [11]). There is no complaint about this discount.
Her Honour set out the facts of the offending, commencing at [14]. There is no need to repeat the facts. Suffice to say that the appellant, either alone or in company, broke into vehicles and premises, stole vehicles and drove them and stole from vehicles. He used credit cards he found in the vehicles to unlawfully purchase assorted items.
The offender or his colleagues also broke into residential premises both at private houses and apartment blocks. They stole number-plates and switched tyres on vehicles. On one occasion a stolen vehicle was involved in an accident. They smashed the windows of many vehicles in order to steal items that had been left in those vehicles. Every time they did so they caused a good deal of damage, sometimes requiring repairs in the thousands of dollars. They even stole vehicles that were secured on a motor-car hauler.
All of the offences occurred while the appellant was on conditional liberty. He clearly had little regard for conditions of bail or of an Intensive Corrections Order to which he was subject at various relevant times.
Commencing at [113] her Honour examined the objective seriousness of the offending. She set out the factors that should be taken into account in assessing the various types of offending.
Her Honour described the subjective features of the appellant. He is of Indigenous heritage. He was 23 or 24 years of age when he carried out the crimes. Notwithstanding his relative youth he had already amassed a “lengthy criminal history of committing similar offences in NSW and the ACT”.
The Pre-Sentence Report referred to a motor vehicle accident in which the appellant suffered a head injury. This resulted in headaches, fatigue and memory loss. The appellant apparently had no memory of his offending.
Her Honour was provided with a report from a psychologist, Dr Clout. Her Honour quoted from the report in relation to the appellant’s mental health problems and drug use. These passages were set out at [140]:
At [45]–[46], Dr Clout reported:
Mr Elphick’s description of his mental health at the time of the offending in December 2018 and January 2019 suggests a complex clinical picture, associated with severe impairments in functioning. His description of symptoms consistent with ADHD and Stimulant Use Disorder are indicative of disorders in the severe range, and he reported significant psychotic symptoms as a result of heavy drug use. The symptoms Mr Elphick is experiencing are associated with significant impairments in in cognitive processes, with ADHD causing deficits in executive functioning skills such as judgement, decision making, rationality, and intention. His ability to control his behaviour and impulses is also likely to be significantly impaired by his ADHD symptomatology. In addition, Mr Elphick presents with low cognitive ability and impaired reasoning skills, which will exacerbate the impact of ADHD symptomatology on his executive functioning and mental capacity.
Adults with untreated and unmedicated ADHD are also at a significant risk of substance use disorders, and reckless and destructive behaviours. It’s likely his ADHD has contributed to the severity of his substance use disorder, which subsequently worsens the impairments experienced by Mr Elphick. He expresses some insight into the role of drug use in exacerbating his impulsivity and behavioural dysregulation. Overall, the impairments experienced by Mr Elphick are likely to have significantly contributed to his offended [sic] behaviour.
Her Honour referred to evidence from the appellant’s partner and mother:
141.The offender’s partner stated that, prior to the offences, she had seen a negative change. She described the offender as “caring, generous, and kind-hearted”. However, she considered that the offender’s sympathetic nature caused him to be easily misled by anti-social peers. He lacked a support network.
142.She stated that there had been a recent positive change in the offender’s attitude. He had acknowledged that he had an addiction, for which he needed help. She said that, if he resided with her in NSW, he could achieve “a fresh start and stability in his life”.
143.The offender’s mother agreed that the offender had a chronic addiction to “ice” and was easily misled. She said that, with proper support, counselling, and rehabilitation, he would appreciate that “there is so much more to life.”
Her Honour accepted that the appellant’s drug use, in his circumstances, could be regarded as a mitigating factor. She took into account that he had “experienced a deprived background and profound childhood disadvantage, which remains relevant when sentencing him as an adult”. Her Honour continued, at [145]:
I accept that the offender’s complex mental health and cognitive problems (which are interlinked with his drug addiction) significantly lessen his moral culpability for the offences, as they mean that he has great difficulty in resisting impulsivity and exercising judgment and reason.
Her Honour then looked at other sentencing considerations, including the purposes of sentencing. She referred to the Pre-Sentence Report and said, at [152]:
The author of the pre-sentence report assessed the offender as at high risk of general re-offending. There is limited cause for optimism about his prospects of rehabilitation. However, he is gaining maturity, he is in a supportive relationship, and he has some insight into the causes of his criminality. His sentence will be significant, and it is not possible to predict whether and when he may be sufficiently rehabilitated that he should be released into the community. That decision is best left to the parole authority. Consequently, I will set a relatively short nonparole period.
After acknowledging that sentencing statistics had limitations Her Honour, at [154], referred “for what they are worth” to the following statistics:
(a)the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
(b)the offence of burglary usually results in a sentence of between 12 months’ and three years and six months’ imprisonment;
(c)the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months’ imprisonment;
(d)the offence of obtaining property by deception usually results in a sentence of six to 12 months’ imprisonment;
(e)the offence of theft usually results in a sentence of six to 18 months’ imprisonment;
(f)the offence of minor property damage is usually punished by sentence of six months’ imprisonment;
(g)the offence of minor theft usually results in a sentence of six months’ imprisonment; and
(h)the offence of drive while disqualified usually results in a sentence of six months’ imprisonment.
Her Honour then went on to impose the total sentence of seven years and seven months, made up of the individual sentences set out in the annexure to the judgment. The non-parole period of four years is 53% of the total sentence. This is very close to the lower end of the usual range of 50% to 70%.
Before this Court the appellant appeared for himself. He did not provide any written submissions. When asked what he wished to say in support of his appeal, he complained that certain periods of time that he had spent in custody before being sentenced, had not been taken into account. He said that his lawyers had told him that this would be done but it had not occurred. He referred to the sentencing orders made both by Murrell CJ and by Magistrate Taylor.
Magistrate Taylor’s sentencing remarks commence at page 592 of the Appeal Book. The sentencing occurred on 16 October 2019 when the learned Magistrate dealt with the appellant for “a significant number of offences” that had been committed on 24 December 2018 and 16 January 2019.
By the time he was sentenced by Magistrate Taylor, the appellant had spent nine months in custody. The Magistrate thought that this amounted to “sufficient time to reflect the seriousness and the number of offences that are before me” (Appeal Book, 603). The Magistrate then went on to impose a Good Behaviour Order of 12 months. She specifically made it a condition of the bail that she granted that the offender attend a rehabilitation program from the following day. This program (Wayback) was referred to by the appellant in his submissions.
The appellant did attend the program and apparently stayed there for about five weeks. Unfortunately he prematurely left the program generating a warrant for his arrest. The timeline including the appearance in the Magistrates Court and the attendance at the rehabilitation program were set out by the Chief Justice, from [4]:
History of charges and pleas
4.On 14 November 2018, Magistrate Boss sentenced the offender for a raft of dishonesty and driving offences committed in January 2017 and March/April 2018. He was sentenced to full-time imprisonment from October 2017 and concurrent intensive correction orders of up to six months’ duration from 14 November 2018 (for offences of taking a motor vehicle without consent). The offender was disqualified from driving for two years (to November 2020).
5.On 17 January 2019, the offender was arrested and charged with driving and dishonesty offences that had occurred on 24 December 2018 and 16 January 2019 (in the same period as the offences in Series 1–9). Bail was refused until 16 October 2019, when the offender was sentenced by Magistrate Taylor to sentences of full-time imprisonment from 17 January 2019 to 16 October 2019, with a good behaviour order to commence at the expiry of the periods of full-time imprisonment.
6.Meanwhile, on 15 July 2019, the offender was charged for the offending in Series 1–9. A brief of evidence was prepared and served. On 16 October 2019, the offender was bailed to attend the Wayback rehabilitation program.
7.While the offender was at Wayback, he indicated a willingness to plead guilty to the offences in Series 1–9.
8.On 25 November 2019 (i.e. after six weeks), the offender left the Wayback program and a warrant was issued for his arrest. He had participated successfully in the program for five weeks.
9.On 3 January 2020, the offender was arrested and charged with some of the charges the subject of Series 10–20. Between 31 January 2020 and 13 July 2020, he was charged with further charges in those series.
10.On 26 August 2020, the offender pleaded guilty to all charges. In relation to Series 10–20, the pleas were entered before the brief of evidence had been served.
11.Having regard to the timing and utilitarian value of the pleas, although there was strong evidence in relation to most of the charges, I will allow a discount of approximately 25 per cent on the sentences that would otherwise have been imposed.
12.The offender has been in custody since 3 January 2020. Allowing some credit for the period spent at Wayback, the sentences will commence on 17 December 2019.
13.All offences were committed while the offender was on conditional liberty. The offences comprising Series 1–9 put the offender in breach of an intensive correction order that was imposed by Magistrate Boss on 14 November 2018 in relation to offences of taking a motor vehicle without consent. The offences comprising Series 10–20 put him in breach of bail in relation to the offences the subject of Series 1–9 and in breach of the good behaviour order imposed by Magistrate Taylor.
Her Honour, at [12] noted that the appellant had been in custody since 3 January 2020. She then backdated the commencement of her sentences to 17 December 2019, to allow for some of the period spent in rehabilitation.
The appellant’s complaint seems to be that he should have also been given credit for the nine months that he spent in custody before being sentenced by Magistrate Taylor. The difficulty with this submission is that those months are referable to the offences that were before the Magistrate.
Although her Honour may have had a discretion to have commenced the sentences prior to 17 December 2019, that would not have been appropriate in light of the time specifically allocated to the offences before the Magistrate.
Section 63, as relevant, of the Crimes (Sentencing) Act 2005 (ACT) states:
(1)The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
(2)For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
There is at least one authority stating that the pre-sentence custody “does not have to be referable only or even primarily to the offence for which the sentence is imposed” (Hawkins v Hawkins [2009] ACTSC 148 at [82]). Nevertheless the nine months custody does not bespeak error on the part of the Chief Justice.
Magistrate Taylor appropriately applied s 63(2) and factored in the nine months’ custody in respect of the offending she was dealing with, being offending unrelated to the matters with which this appeal is concerned.
In the current case, not only was her Honour not required to take the nine months into account, it was open to her to simply treat it as part of the criminal record of the appellant.
The appellant said that his lawyers had told him that the nine months would be taken into account in the Supreme Court. There is no evidence about what he was told by his lawyers but, in any event, their observations to him in discussion would have no binding effect in this appeal.
The appellant’s oral submissions concerning error as to time spent in custody therefore fails. No error has been demonstrated.
The Notice of Appeal does not mention the above argument. The ground is that:
The appellant is appealing against the severity of this sentence and is seeking to have the sentence reduced.
This ground is a statement that seven years and seven months is simply too much, or, in usual terms, the sentence is manifestly excessive. Although the appellant did not address the court on this ground, its inclusion in the Notice of Appeal requires that it be dealt with by this Court.
This is important because the appellant was self-represented and may not have thought it necessary to verbally express what is contained in the notice. It is also evident from his subjective features that he may have had difficulty anticipating and formulating an appropriate argument.
Whether or not a sentence is manifestly excessive is based on the following principles, as quoted by this Court in Zdrakovic v The Queen [2016] ACTCA 53, from [51]:
51.A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
52.When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
In order to achieve the correct balance Her Honour had to apply a regime of concurrency and accumulation which did not offend principles of totality. The approach to be taken was summarised by this Court in O’Brien v The Queen [2015] ACTCA 47, at [26]:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
Further, the degrees of concurrency and accumulation could not be satisfied by any mathematical calculation. As stated in CX v The Queen [2017] ACTCA 37, at [28}:
Questions of concurrency and accumulation are discretionary matters for a sentencing judge and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour. As questions of accumulation are intuitive, the level of transparency that can be provided by the sentencing judge is limited: JT v R [2012] NSWCCA 133 at [73]; ZA v The Queen [2017] NSWCCA 132 at [88]; Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42]. In O’Brien v The Queen [2015] ACTCA 47 at [26], this Court set out the principles in relation to sentencing for multiple offences to achieve an appropriate overall sentence.
The overall sentence is indeed a very long time. But is it “plainly unjust”?
Her Honour’s task was not straightforward. There had to be a balance between sentencing for the individual offences and avoiding an overly long and crushing sentence. The sheer number of offences made the attainment of this balance difficult.
The sentence could have been shortened by a greater degree of concurrency. But to have done so would have been to ignore a pattern of persistent offending by an established criminal affecting the lives of many people and in continuing disregard of established norms of behaviour in society.
In addition, her Honour had to factor in the appellant’s subjective features, his already lengthy criminal history, and his disregard for previous conditions which had permitted him a degree of liberty.
There are also the demands of public deterrence, bearing in mind that each of the offences was an attack on the ordinary rights of ordinary citizens.
The various victim impact statements demonstrated that even a ‘simple’ breaking in, or theft, of a motorcar can have long-term effects. For example, Her Honour referred to one of the statements, at [37]:
A victim impact statement states that the complainant was an elderly man who lived independently. He was psychologically vulnerable because he had recently suffered a theft from his home. The offence made him feel very vulnerable, anxious, and unsafe in his home. After the incident, he installed an alarm system and upgraded the locks on his house. Some of the stolen items had belonged to his late wife and were of sentimental value.
Ultimately her Honour appears to have done her best to achieve the necessary balance between subjective factors suggesting mitigation and objective reasons calling for very substantial sentences. It is to be recalled that each of the 11 counts of aggravated, or attempted aggravated, burglary carried a potential term of imprisonment of 20 years.
The result must be that the aggregate sentence of seven years and seven months is not plainly unjust.
Orders
The appeal is dismissed.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for judgment of the Court. Associate: Date: 12 November 2021 |
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