Hernandez v R

[2013] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

HERNANDEZ, Marcelo v R [2013] NSWCCA 51

Hearing dates:

13 November 2012

Decision date:

01 March 2013

Before:

McClellan CJ at CL at 1
Rothman J at 2
Bellew J at 56

Decision:

(1) Leave to appeal granted;

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - break, enter and steal - multiple offences - Form 1 offences notified - gambling debt, possible physical threat to family for repayment - effect of duress - totality - aggregate sentence manifestly excessive - exercise of discretion - not outside range - appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Chow v DPP (1992) 28 NSWLR 593
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
Murray v R [2013] NSWCCA 12
R v Falls [2004] NSWCCA 335
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13; (1989) 63 ALJR 298
Sullivan v Department of Transport (1978) 20 ALR 323
Vuni v R [2006] NSWCCA 171

Category:

Principal judgment

Parties:

Marcelo Hernandez (Applicant)
Crown (Respondent)

Representation:

P Boulten SC/T Gartelmann (Applicant)
J Dwyer (Respondent)
Matouk Joyner Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2009/233954

Publication restriction:

None

 Decision under appeal 

Date of Decision:

2011-07-05 00:00:00

Before:

Sides DCJ

File Number(s):

2009/233954

Judgment

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

1. ROTHMAN J: Marcelo Hernandez seeks leave to appeal the sentence imposed upon him by the District Court of New South Wales on 5 July 2011. If leave to appeal were granted, the applicant appeals the sentence. Both leave to appeal and the appeal were dealt with at the same time.

1. The applicant was charged with a number of offences and pleaded guilty to nine offences in the Local Court when the applicant was committed for sentence. The offences and their respective maximum penalties were as follows:

No.	Offence	Section/Act	Maximum penalty
7 x	Break enter & steal	112(1) Crimes Act 1900	14 yrs imprisonment
1 x	Break & enter with intent to steal	113(1) Crimes Act 1900	10 yrs imprisonment
1 x	Impair electronic communications	308E(1) Crimes Act 1900	10 yrs imprisonment

1. Ten further offences were taken into account. Those offences were notified pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 on a Form 1 in respect of the offence of break, enter and steal, which was committed at Bonnyrigg on 14 September 2009. The offences on the Form 1 were as follows:

No.	Offence	Section/Act	Maximum penalty
5 x	Break enter with intent to steal	113(1) Crimes Act 1900	10 yrs imprisonment
3 x	Break enter & steal	112(1) Crimes Act 1900	14 yrs imprisonment
1 x	Attempt break enter & steal	112(1) Crimes Act 1900	14 yrs imprisonment
1 x	Possess safe-breaking implements	114(1) Crimes Act 1900	10 yrs imprisonment

1. Fifteen further offences were taken into account on a Form 1 in respect of the offence of impair electronic communications, committed at Bonnyrigg on 13-14 September 2009. The maximum sentence for each of those offences is as set out in the table of the offences charged.

1. The District Court imposed a term of imprisonment in respect of each offence. It is easier to follow if set out, as was done in the submissions for the applicant, in table form:

Sequence	Offence	Sentence	Dates
31	Break & enter with intent steal	Non-parole period	2 yrs 6 mths	21.10.09-20.04.12
		Additional term	1 yr 3 mths	21.04.13-20.07.13
2 (+ F1)	Impair electronic communications	Non-parole period	2 yrs 6 mths	21.10.09-20.04.12
		Additional term	1 yr 3 mths	21.04.12-20.07.13
19, 34, 36	Break enter & steal	Non-parole period	3 yrs	21.10.10-20.10.13
		Additional term	1 yr 6 mths	21.10.13-20.04.15
5	Break enter & steal	Non-parole period	3 yrs 6 mths	21.10.12-20.04.16
		Additional term	1 yr 6 mths	21.04.16-20.10.17
9	Break enter & steal	Non-parole period	3 yrs 6 mths	21.10.13-20.04.17
		Additional term	1 yr 6 mths	21.04.17-20.10.18
13	Break enter & steal	Non-parole period	3 yrs 6 mths	21.10.14-20.04.18
		Additional term	1 yr 6 mths	21.04.18-20.10.19
1 (+ F1)	Break enter & steal	Non-parole period	3 yrs	21.10.15-20.10.18
		Additional term	4 yrs 6 mths	21.10.18-20.04.23

1. The aggregate sentence imposed by the District Court was of a non-parole period of 9 years commencing 21 October 2009 and expiring on 20 October 2018 as part of a head sentence of 13 years and 6 months expiring on 20 April 2023.

1. The applicant raises two grounds of appeal:

(i)   Ground 1: The judge erred in failing properly to take into account evidence that the offences were committed in circumstances of duress and/or to determine whether mitigation of the sentences was warranted accordingly;

(ii)   Ground 2: The aggregate sentence is unreasonable or plainly unjust.

Facts

1. The sentence proceedings were conducted on the basis of agreed statement of facts. Further the applicant gave evidence in the sentence proceedings regarding the circumstances in which the offences were committed. The facts were summarised by the sentencing judge and are further summarised in the following manner.

1. The applicant arrived in Australia from South America in early September 2009 with a return ticket for departure on 4 November 2009. The applicant rented a motel room and hired a car. There were a series of offences committed between 13 September and 21 October 2009 at fast-food restaurants.

1. The method of committing the offences was similar for each offence; namely, the applicant would cut cables and disarm alarms and CCTV cameras before entering the remainder of the premises. Significant damage was caused to the premises through, for example, the use of spray paint. Once entry was gained to the premises, the applicant would drill or cut into the safe and steal, or attempt to steal, cash from the safe. In total, $136,351 in cash was stolen. The money was deposited into several bank accounts in Panama and Australia. Only $35,200 of that amount has been recovered.

1. The applicant gave evidence at the sentence proceedings to the effect that he had become heavily indebted through gambling. The applicant's creditor, who was associated with drug trafficking, had asked the applicant to act as a courier for drugs. The applicant was afraid and attempted to "buy time" before fleeing to Australia, with the intention that his wife would follow.

1. After leaving the country the applicant was informed that the creditor had threatened his wife. He could not think of any other way to ensure his wife's safety and so conceived the idea of committing the offences with which he was charged. The money was transferred to the bank accounts in Panama so that his wife would be able to access the money and pay the creditor.

Other Subjective Circumstances

1. The applicant was 37 years of age at the time that he committed the offences and 39 years of age at the time that the sentence was imposed. He had a record of prior convictions in the United States of America. The record disclosed at least three offences of break, enter and steal and an offence of possessing burglary tools.

1. The applicant was born in Uruguay, but was raised in Cuba. Apparently, the family moved there at some stage, because his father was politically active and went into exile. He has one half-brother and two half-sisters. His parents separated when he was seven years of age. His mother now lives in Argentina and his father died about 11 or 12 years ago.

1. The applicant is married. Before coming to this country, as described above, the applicant and his wife lived in Panama. They have no children.

1. There was some disruption to his early life as a result of moving countries and the separation of his parents. There is also a suggestion of domestic violence in his youth.

1. There is no evidence of any drug or alcohol abuse problems from which the applicant suffers. According to the applicant's account, he started gambling at the age of 13, at a time when he would have been too young to appreciate the long-term consequences of that abuse.

1. He claims an Associate Degree in Business Management and that he worked in various industries, including construction, hospitality and sales. He was working as an international executive salesperson at the time he left Panama.

1. In his account of his history to his psychologist, Mr Tim Watson-Munro, Consultant Forensic Psychologist, he recounted that for a significant period of time he hid his long-standing addiction to gambling from his family and his wife. In his early years he was addicted to gambling and, as part of that addiction, gambled on horses, roulette, sports matches and poker machines.

1. After a stint in the United States, the applicant returned to South America and his mother provided him with $380,000 to re-establish himself. Most, if not all, of this money was gambled and was lost in a very brief period of time and, his ability to cover such bets enabled him to gamble on credit to the point where he owed his creditors approximately $250,000.

1. According to Mr Watson-Munro the applicant's problems with gambling were great and were reflected in substantial psychological symptoms, which were severely aggravated when his creditors started to put pressure on him to repay the debt. Mr Watson-Munro diagnosed the applicant as suffering from a Gambling Addiction and an Anxiety Disorder according to the criteria in DSM-IV.

1. The applicant's symptomatology, according to Mr Watson-Munro, has been significantly aggravated by the dislocation and distance from his family in South America and his placement in a maximum security prison. Mr Watson-Munro also noted the applicant's expression of remorse. The Gambling Addiction was described as chronic.

1. The sentencing judge was also satisfied that the applicant was remorseful (ROS 2) and noted that the applicant's mother was in poor health, which would, or might, affect her capacity to visit the applicant in custody in Australia. The sentencing judge concluded that the applicant's prospects of rehabilitation were reasonable and that he was unlikely to re-offend (ROS 9).

1. Lastly, the judge found that special circumstances existed, having regard to the applicant's separation from his family while in custody and the need to accumulate the sentences (ROS 10).

Ground 1: Absence of regard for duress and consequent mitigation of sentences

1. The applicant submits that the effect of his evidence was that the offences were committed in circumstances involving an element of duress. The applicant submits that the sentencing judge did not make a clear finding as to whether the applicant's evidence was accepted and, if so, whether and to what extent it warranted mitigation on sentence.

1. The applicant submits that the circumstances outlined as to the gambling debt and threats to his family are relevant to the sentencing of the applicant and, if the sentencing judge were to have considered that the evidence should not have been accepted, then, in the interests of procedural fairness, notice should have been given to allow the opportunity to address further on the issue.

1. As is conceded, the onus of proving duress (as so described by the applicant) rests upon the applicant: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; Chow v DPP (1992) 28 NSWLR 593 at [606]; R v Falls [2004] NSWCCA 335 at [35]. It is unclear what fact the applicant claims amounts to duress.

1. If the "duress" were the addiction to gambling and the sizeable debt that was owed, then his Honour, the sentencing judge, plainly took account of that factor. If, on the other hand, the claimed duress were the threats to the life of his wife, then his Honour also dealt with that issue. His Honour took the view that the applicant bore the onus of proof, had not satisfied that burden, but that his Honour would take it into account in dealing with the matter.

1. The sentencing judge, in his Remarks on Sentence, said:

"The explanation for not bringing his wife to this country does not ring true to the Court when the Court considers all the circumstances, including the size of the debt and his knowledge by that time that his creditor was involved in the illicit international drug trade. There is a compelling case in the Court's view, particularly when the Court considers how soon after he came to this country he started obtaining the equipment to commit these offences, that he came here for the purpose of committing these crimes. Whether that be the case or whether he decided upon that course shortly after arriving here does not make a great deal of difference to the Court's view in terms of his criminality.

...

The [applicant] claims that he committed the offences because his wife's life was in jeopardy because his creditor had located her and approached her on a number of occasions. It seems to the Court that he had two choices if one accepts his account: one was to go home where he appreciated that there was a risk that his creditor would embroil him in illicit activity on a long-term basis. He chose the lesser of two evils and committed his crimes in this country and did so appreciating there was a reasonable chance that he would be arrested and incarcerated here a long way away from his loved ones." (ROS, page 7, 8-9.)

1. His Honour was expressing the view that he accepted the fear and/or anxiety expressed by the applicant as to the threats to his wife. His Honour did not accept that there were no choices apart from the criminal activity in which the applicant engaged.

1. In my view, the applicant had a number of choices. It is true he owed significant debt to persons who had no compunction in engaging in illegal activities. It is also true, on the evidence before the sentencing judge, that he considered his wife's life at risk.

1. Nevertheless, the "duress", on which the applicant seeks to rely, is not duress causing him to behave in the way in which he has behaved. The applicant's choice to engage in the criminal activity was one of a number of choices available to him.

1. The first, and most obvious, choice was to tell his family and friends of the debt and his gambling addiction. The Court is unaware of whether his family would have been able to meet the debt, either directly or by obtaining a loan. Given that his mother had provided $380,000 on an earlier occasion for him to be re-established in South America, it is not an unreasonable expectation that a further amount of money could have been forthcoming.

1. On that basis, the requirement to undertake the criminal activity is caused more by the applicant's reluctance to disclose his gambling addiction, than by the threats by the persons to whom he owed money. I agree with the sentencing judge's assessment that choices, other than engaging in the criminal activity with which the applicant was charged, were available to the applicant and the "duress" claimed is of little consequence in assessing the sentence to be imposed.

1. I also accept the reasonableness of the cynicism with which the sentencing judge approached the applicant's explanation for not bringing his wife to Australia. It seems, given the illegal activities of the persons to whom he owed a debt, the most obvious course was to bring his wife to Australia immediately and not engage in any criminal activity.

1. As to the suggestion that the failure to find in favour of the applicant in relation to the question of duress required the sentencing judge to give the applicant a further opportunity to adduce evidence, that suggestion should be rejected. The facts were accepted by the court below and the court acted upon them. It is the significance of those facts which is truly in issue.

1. It is the function of a court, or tribunal that is required to act judicially, to give each party before it an opportunity to prepare and to present the party's case adequately. It is not, and never has been, a requirement to give any party more than one such opportunity, when adequate opportunity has been given and not been utilised.

1. Moreover, there is no duty imposed on a court or tribunal to ensure that a party uses the opportunity given to its best advantage: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (per Deane J); Re Association of Architects of Australia; ex parte Municipal Officers' Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 at 305 (per Gaudron J, with whom Dawson J agreed).

1. I do not consider that the applicant was denied procedural fairness. The applicant had an adequate opportunity to prepare and to present that which the applicant sought to present in relation to the circumstances of his offending.

1. These offences were committed because of the debt that was owed. They were committed because the applicant had a need for money to pay that debt, non-payment of which would endanger, or might endanger, his family. The sentencing judge took that into account in an appropriate manner. Further, as it will be discussed later, even if the sentencing judge's treatment of the circumstances were inappropriate, I do not consider that a lesser sentence is warranted.

Ground 2: The aggregate sentence is unreasonable or plainly unjust

1. This ground does not suggest, and it is not submitted on behalf of the applicant, that each individual sentence was unreasonable, plainly unjust or manifestly excessive. Rather, the ground of appeal challenges the level of accumulation of the sentences and the totality of the sentence imposed.

1. This Court has observed on a number of occasions (R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at 486; Murray v R [2013] NSWCCA 12) that questions of accumulation and totality are matters primarily within the discretion of the sentencing judge and this Court will be reluctant to intervene. Intervention can occur only on one of the well known bases for interference with a discretionary exercise: House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.

1. None of the offences for which the applicant was sentenced contain overlapping factual elements. That comment does not refer to the theoretical elements but to the factual circumstances of the commission of each offence.

1. In other words, each offence was separate and no part of one offence overlapped with the other, except in relation to the offence of impairing electronic communications, which is ordinarily an aspect of the commission of certain types of break, enter and steal. All of the offences of break and enter (either with intent to steal or to steal) were committed on separate occasions and involved separate victims.

1. In any event, the sentence for the offence of impairing electronic communications was imposed in a way which rendered it served wholly concurrently with the sentence for break and enter with intent to commit an indictable offence.

1. Further to the foregoing, the level of accumulation varied as between the offences. As set out earlier three of the offences (sequences 19, 34 and 36) were wholly concurrent and accumulated by 12 months on the sentence for sequence 31 (break and enter with intent to commit serious indictable offence) and the sentence for interference with electronic communications.

1. Sequence 5 accumulated by a period of 2 years on to sequences 19, 34 and 36 and sequences 9, 13 and 1 accumulated for a period of one year each on to the earlier sentences. Generally, with the exception of sequence 1, which took account of the offences for break and enter on the Form 1, only one to two years of any one sentence would be served additionally.

1. Moreover, for a total of seven sentences of break, enter and steal, one sentence of break, enter with intent to steal and one sentence for impair electronic communications, which have maximum sentences of 14 years, 10 years and 10 years respectively, a total sentence in aggregate of 13 years and 6 months with a non-parole period of 9 years has been imposed. I reiterate that there were 10 further offences taken into account on a Form 1, which, in the sentences to which they were relevant, emphasise the need for deterrence.

1. I accept that none of the offences are in the worst category. The applicant is not a person who has no criminal history and, as a consequence of that, he is not entitled to the leniency afforded a first offender. Nor is the applicant a person who has not before spent time in a penal institution.

1. Notwithstanding the finding by the sentencing judge, with which I do not cavil, that the applicant has reasonable prospects of rehabilitation, the history of the applicant and the circumstances of the offending show that specific and general deterrence are significant factors. Yet, the sentencing judge imposed a sentence on the applicant for nine offences, taking account of a further 10 on a Form 1, which is less than the maximum sentence for one break, enter and steal.

1. In terms of totality of the sentence imposed, the extent of the accumulation and concurrency were not outside of the range available to his Honour in the exercise of the sentencing judge's discretion. For this reason this ground of appeal also fails.

Conclusion

1. Lastly, I refer to the function of this Court in dealing with a sentence on appeal. It should be stressed that the determination of a sentence to be imposed on an offender is a process of intuitive synthesis. The exercise of discretion reposed in sentencing judges must be considered in that context. There is no single correct sentence applicable as a matter of mathematical precision.

1. Further, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle (Johnson v R [2004] HCA 15; (2004) 78 ALJR 616 at [26]; Vuni v R [2006] NSWCCA 171 at [33]). It is not for this Court to substitute its own opinion for that of a sentencing judge, merely because it may have exercised its discretion in a manner different from that of the sentencing judge. Ultimately, the Court, in order to intervene, must find error, either identifiable or manifest, and come to the view that a lesser sentence is warranted.

1. I am not of the view that there has been error of the kind for which it would be appropriate to intervene and I am not of the view that a lesser sentence is warranted. For those reasons, I propose that the Court should issue the following orders:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

1. BELLEW J: I agree with Rothman J.

**********

Decision last updated: 04 March 2013