Hall v Regina - [2007] NSWCCA 301

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Hall v Regina [2007] NSWCCA 301

FILE NUMBER(S):
2006/4750 (formerly 2006/2749)

HEARING DATE(S): 16 May 2007

JUDGMENT DATE: 13 November 2007

PARTIES:
Jason Daniel Hall (appellant)
Regina (respondent)

JUDGMENT OF: McClellan CJ at CL Hidden J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1007

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

COUNSEL:
Appellant in Person
P Barrett (Crown)

SOLICITORS:
Appellant unrepresented
Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW:
application for leave to appeal against sentence
charges of robbery, steal from the person and other related charges
pleas of guilty
challenge to competence of representation in sentence proceedings
whether sentence is manifestly excessive
no question of principle

LEGISLATION CITED:
Crimes Act 1900 s94, s154A, s178BA, s112, s117, s188
Pawnbrokers and Second Hand Dealers Act 1996 s24
Crimes (Sentencing Procedure) Act 1999 s44(1)

CASES CITED:
R v Munro [2006] NSWCCA 350
Nudd v The Queen (2006) 80 ALJR 614
R v Cramp [2004] NSWCCA 264
Itaoui v R (2005) 158 A Crim R 233
R v Close (1993) 65 A Crim R 55

DECISION:
Leave to appeal granted, appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/4570 (formerly 2006/2749)
McCLELLAN CJ at CL
HIDDEN J
PRICE J
Tuesday, 13 November 2007

Jason Daniel HALL v REGINA

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.
HIDDEN J: The applicant, Jason Daniel Hall, pleaded guilty in the Local Court to the following twenty-seven charges:

twelve charges of stealing from the person, an offence under s94 of the Crimes Act which carries a maximum sentence of fourteen years imprisonment;
six charges of robbery, an offence under the same section and carrying the same maximum sentence;
four charges of taking and driving a conveyance (deemed larceny), an offence under s154A of the Act which carries a maximum sentence of five years imprisonment;
four charges of obtaining a benefit by deception, an offence under s178BA of the Act which also carries a maximum sentence of five years imprisonment;
one charge of break, enter and steal, an offence under s112 of the Act which carries a maximum sentence of fourteen years imprisonment.

He was committed for sentence in the District Court. There he adhered to his pleas of guilty, and asked the sentencing judge to take into account a further sixty-five offences on a Form 1. These were:

five further offences of stealing from the person;
a further offence of taking and driving a conveyance;
five offences of larceny (s117 of the Crimes Act, maximum sentence five years imprisonment);
three offences of receiving or disposing of stolen property (s188 of the Crimes Act, maximum sentence ten years imprisonment);
two offences of making or furnishing a false statement (s24 of the Pawnbrokers and Second Hand Dealers Act 1996, carrying only a fine);
forty-nine further offences of obtaining or attempting to obtain a benefit by deception.

Obviously, sentencing was a complex exercise but it is not necessary to set out the sentencing order made in the District Court in detail. It is sufficient to say that the heaviest sentence was imprisonment for four years and nine months, with a non-parole period of two years, passed on one of the robbery charges while taking into account the matters on the Form 1. The other sentences ranged from a fixed term of eighteen months to terms of imprisonment for three years with a non-parole period of two years. Some sentences were concurrent and others were cumulative. The aggregate sentence was imprisonment for ten years and nine months with a non-parole period of eight years, dating from the day of the applicant’s arrest, 22 February 2005.
He seeks leave to appeal against those sentences. He was unrepresented and provided written submissions, which he developed orally.
Facts
Given the issues raised by the application, a bare outline of the facts of the offences will suffice. One of the charges of taking and driving a conveyance the subject of a committal charge was committed in August 2004. One of the offences of receiving on the Form 1 was committed in March 2005. All of the other offences, whether the subject of committal charges or on the Form 1, represent a sustained episode of criminality between 7 November and 4 December 2004.
The charges of robbery and stealing from the person arose from a series of offences committed against middle-aged to elderly women in and around shopping centre car parks in the areas of Rose Bay, Double Bay and the lower North Shore. For these offences the applicant used a number of stolen cars, giving rise to the charges of taking and using a conveyance. He would drive past the victims while they were walking back to their cars with their purchases, sometimes in shopping trolleys. He would seize the victim’s handbag, either from her person or from the trolley, and drive off.
Of these offences the learned sentencing judge observed in her remarks:
…They were clearly well planned. The victims were apparently chosen because they were women, middle aged to elderly who would have handbags in plain view when attending to their shopping and when they were loading groceries or otherwise distracted. Those which were committed when the offender drove past, grabbed the bag, and sped off were attended with an element of danger both to the victim and the public.
The agreed facts speak of the offender waiting in his car and watching for the appropriate time to drive past to steal the handbags. Some of these offences were committed on the same day when the offender returned to the same shopping centre to steal another bag. Some of the victims were elderly….Of course, regardless of the age of the victims, to have one’s bag stolen in the circumstances of these offences would be a most frightening and distressing experience.
The victim of the offence of break, enter and steal was a woman whose handbag he had stolen. Her keys were in that bag, and he later used them to gain access to the car park of the units where she lived and steal her car. The numerous charges of obtaining or attempting to obtain a benefit by deception arose from his use of ATM cards in the handbags which he had stolen to withdraw money from the victims’ accounts, or to attempt to do so. There is no need to refer to the other offences on the Form 1. They were generally related to this pattern of criminality, and embraced conduct such as pawning items of jewellery stolen from the victims, representing them to be his own, or stealing petrol from a service station by filling a stolen car and leaving without paying for it.
Subjective case
The applicant was thirty-six years old at the time of the offences, and is now thirty-nine. He has a record of prior convictions between 1987 and 2003, comprising mainly offences of dishonesty, drug offences and driving offences. Most of his convictions were recorded between 1987 and 1995, but they include an entry in Queensland for armed robbery for which he was sentenced to a substantial term of imprisonment. In 2002 he was dealt with at Fairfield Local Court for offences of assaulting and resisting police and a variety of offences of dishonesty and driving offences, for which he was sentenced to short terms of imprisonment. In the following year, he was sentenced at Muswellbrook Local Court to another short term of imprisonment for taking and driving a conveyance.
The applicant did not give evidence at the sentence proceedings, but her Honour had the benefit of a pre-sentence report and a psychological report. From that material it emerges that he was a member of a large family. His parents separated when he was six and his father died when he was nine. His mother remarried but he disliked his stepfather. He told the psychologist that that man was violent towards his mother and sent him to boarding school.
He left school in year 9 at the age of 15. Thereafter, he completed an apprenticeship as a bricklayer and worked for himself in the building trade. While serving earlier prison sentences, he had furthered his general education and undertaken a number of TAFE courses. I should say that his written submissions in this Court were well expressed, and in oral argument he presented as intelligent and articulate.
In 1999 he was involved in what appears to have been a serious car accident. He was trapped in a car for two hours, and suffered injuries to his legs and his back. Drug abuse has been a longstanding problem for him. He started using cannabis and amphetamines in his teenage years, and was using heroin since his mid-twenties. There were periods of abstinence, and he had participated in several detoxification programs.
He had been in a long-term de-facto relationship, which produced a son. That relationship broke down early in 2004, they separated and the son remained with his partner. He was denied access to his son at this time. This he found most distressing. In addition, he terminated drug counselling which he had been undergoing because he could not afford it. He was also assaulted, as the psychological report records it, by his former partner’s brother.
A few months before the offences he started to use cocaine, and quickly became addicted. His habit was expensive, and it appears that it was in this context that the offences were committed. It seems that his family has remained supportive of him, and after the separation he had been living with one of his sisters and her family.
The author of the pre-sentence report felt that he was suitable for “a medium level intervention” by the Probation and Parole Service, and had this to say about him:
Mr Hall impressed as a person who appears to be trying to cope with the demise of his long-term relationship and access to his son. The offender has a significant history of substance abuse, which has contributed, in part, to his offending behaviour. He has maintained the support of his family throughout this matter and they are willing to provide him with accommodation upon his release from custody.
The psychologist expressed the view that his resort to cocaine was the result of “a great deal of mental anguish”. He noted that cocaine is a drug upon which a person can develop a dependence over a short period of time, “suggesting that by the time Mr Hall started stealing to feed his drug habit he would have developed a strong reliance on the drug”. He noted that the applicant had shown “a strong commitment to therapy” in the past. He concluded:
My judgment as to his likely success in rehabilitation in the short-term is guarded. However, it is highly recommended that he is referred to intensive long-term psychotherapy to ensure he does not return to drug use, to help him deal with very significant trauma at a vulnerable age and to facilitate long-term recovery.
The psychologist was of the view that he was “very remorseful” and had developed “a clear insight into how his behaviour may have harmed other people”. The author of the pre-sentence report noted that he had “expressed regret for his actions”, but considered that he “tended to minimise his involvement in the offences”. Her Honour noted that the applicant had not given evidence. She took those passages from the reports into account “as reflecting a degree of contrition”, but considered that they did not carry “a great deal of weight”.
However, her Honour discounted sentence by twenty-five percent in recognition of the utilitarian value of his early pleas of guilty. Given his drug use, and his history of attempts to deal with it in the past, she saw his prospects of rehabilitation as “guarded”.
The application
The applicant’s primary complaint was that he had been incompetently represented by the solicitor who appeared for him in the sentence proceedings. He referred to her Honour’s observation that he had not given evidence to express his remorse, to which she added that he “nowhere expressed any indication or understanding of how his offences may have affected the many people, predominantly women, who were the victims of his crimes”. He said that he had wanted to give evidence but that his solicitor did not call him, saying that his evidence “would not make any difference”. He complained that her Honour was left with no more than hearsay evidence of his expressions of remorse recorded in the reports. He referred to R v Munro [2006] NSWCCA 350, per Beazley JA at [17] ff.
Generally, he asserted that his case had not been properly prepared and that there had been a lack of negotiation about the charges to which he pleaded guilty. He accepted that he bore the burden of establishing that his representation had given rise to a miscarriage of justice, referring to the review of the relevant principles in the judgment of Gleeson CJ in Nudd v The Queen (2006) 80 ALJR 614 at [9].
A ground of appeal such as this cannot be pursued in the absence of evidence. In so saying, I am mindful of the applicant’s disadvantage being unrepresented. Nevertheless, we are without evidence from him or from his solicitor. We do not know how the case was prepared. We do not know what negotiation, if any, took place before the proceedings. That, in any event, is not a matter about which we would have received evidence. Nor do we know why the applicant was not called. That may have been a decision by the solicitor for sound tactical reasons. Certainly, it was a matter residing within the “wide discretion” of an advocate to which Gleeson CJ referred in Nudd.
What we do have is the transcript of the sentence proceedings, together with written submissions provided to her Honour by the applicant’s solicitor and by the Crown’s representative. From that material it appears that the solicitor addressed relevant matters, displaying a sound grasp of sentencing principle. Nothing in the material before us conveys that the applicant’s representation gave rise to a miscarriage of justice.
He also complained that his solicitor had failed to emphasise that the overwhelming majority of the offences were committed within a relatively short period of time, and were attributable to his addiction to cocaine. However, that was clearly the effect of the material before her Honour. Moreover, the transcript of the sentence proceedings records observations by the solicitor that the offences were “a flurry of criminal activity committed by a man heavily motivated by drugs”, and that they took place “over quite a short compass…”.
Otherwise, the applicant asserts that there are a number of factual errors in the psychological report and in her Honour’s remarks. He said that he would have corrected these if he had given evidence.
Dealing first with the remarks, he made the following points:

As to his background, her Honour said that he had nine step-siblings from his mother’s second marriage. In fact, he said, he had four step-siblings from his mother’s first marriage and four from his father’s first marriage.
Her Honour recorded that he had worked from time to time in the building industry as a labourer, but was receiving benefits before being in prison for these offences. As to that, he said that he was a qualified bricklayer and had worked in a variety of skilled positions, and had applied for benefits only in late December 2004.
Her Honour said that his former partner had an apprehended violence order out against him and that he had not seen his son since being imprisoned. In truth, he said, he had earlier consented to an apprehended violence order, without admissions, but that it was not current at the time he was sentenced. Moreover, in the period before his arrest he had restored an amicable relationship with his partner and had had access to the child. He agreed that he had not seen his son since being in prison, but said that he would have dearly loved to have seen the boy but accepted that his partner did wish to expose him to a prison environment.

The first of those matters is clearly of no significance at all. The second and third of them are of more importance as aspects of his background but, in all the circumstances, it is not apparent that they would have had any significant bearing upon her Honour’s assessment of the appropriate sentences.
As to the psychological report, the applicant identified the following errors in the history contained in it:

The report recorded that his father’s style of parenting had been “rather permissive and laid back”. In fact, he said, his father had been a strict disciplinarian and that had been a matter dealt with in many of his counselling sessions.
The report recorded that he had been assaulted by his former partner’s brother, and that this related to his having allegedly stolen money from his partner. He pointed out that it was his partner’s son from a previous relationship who had assaulted him, and he denied having stolen money from her.

Again, it is difficult to see how these errors, accepting that they were such, could have had any significant bearing upon sentence. It is true that his being assaulted by a person associated with his partner was part of the circumstances leading to his abuse of cocaine in 2004. However, it was of no moment who that person was or why the assault occurred. I should record that he raised two other matters in the report concerning his employment and his relationship history which he said were erroneous, but it is not necessary to refer to them because they are clearly minor and of no significance.
The applicant faces a lengthy prison term. One can understand that he might examine the record of the proceedings to identify any imperfections he might perceive in the evidence or the presentation of his case. However, the matters he has raised, individually or in their combination, do not persuade me that her Honour’s sentencing exercise is flawed and that this Court should intervene.
The applicant took a point concerning the form of her Honour’s sentencing order. When passing sentences other than fixed terms, she announced the head sentence before specifying the non-parole period. As he rightly observed, this was not in accordance with the procedure required by s44(1) of the Crimes (Sentencing Procedure) Act. However, the effect of her Honour’s sentences is not in doubt and it could not be said that the sentencing process miscarried. The error is no more than a technical one and it also would not warrant this Court’s intervention: cf R v Cramp [2004] NSWCCA 264, per Spigelman CJ at [38] – [44]; Itaoui v R (2005) 158 A Crim R 233, per Howie J at [17] – [18].
Finally, the applicant submitted that the aggregate sentence is manifestly excessive. He relied upon the background of his cocaine addiction and the circumstances giving rise to it, and he expressed before us his remorse and his insight into the effect upon the victims of his crimes. He also argued that the aggregate term was the product of an accumulation of sentences which failed to exercise the restraint dictated by the principle of totality, referring to the judgment of Hunt CJ at CL in R v Close (1993) 65 A Crim R 55 at 59.
The aggregate sentence is undoubtedly severe but, in my view, appropriately so. The applicant stood for sentence for twenty-seven offences the subject of committal charges, with a much larger number of offences required to be taken into account on a Form 1. Together, they represented a sustained and serious episode of criminality. The total sentence of imprisonment for ten years and nine months was clearly within the bounds of the proper exercise of her Honour’s discretion. The effective non-parole period of eight years was appropriate to reflect considerations of retribution and deterrence, and it leaves the applicant with a substantial period of parole eligibility during which his rehabilitation might be fostered.
I would grant leave to appeal but dismiss the appeal.

PRICE J: I agree with Hidden J.

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LAST UPDATED: 13 November 2007