Hughes v Regina

[2007] NSWCCA 256

Reported Decision: 181 A Crim R 344

New South Wales

Court of Criminal Appeal

CITATION:	Hughes v Regina [2007] NSWCCA 256
HEARING DATE(S):	8 August 2007
JUDGMENT DATE:	30 August 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Howie J at 2; Harrison J at 3
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – leave to appeal against sentence – accessory after the fact to offence of aggravated break, enter and steal – submission that applicant sentenced for offence for which he had not been convicted – whether features of aggravation in principal offence relevant to applicant's crime
LEGISLATION CITED:	Crimes Act 1900 - ss 112(2), 347, 350
CASES CITED:	R v Olbrich (1999) 199 CLR 270 R v Palu (2002) 134 A Crim R 174 R v White (1977) 16 SASR 571
PARTIES:	Craig Andrew Hughes (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/3315 (formerly 2007/995)
COUNSEL:	A P Cook (Applicant) N Adams (Respondent)
SOLICITORS:	S O'Connor, Legal Aid Commission of New South Wales (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/31/094
LOWER COURT JUDICIAL OFFICER:	Taylor DCJ
LOWER COURT DATE OF DECISION:	26 October 2006 (date of sentence)

2007/3315 (formerly 2007/995)

McCLELLAN CJ at CL
HOWIE J
HARRISON J

30 August 2007

Craig Andrew Hughes v Regina

Judgment

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

2 HOWIE J: I agree with Harrison J.

3 HARRISON J: The applicant was arraigned at the District Court of New South Wales at Newcastle on a single count of being an accessory after the fact to an aggravated break, enter and steal offence committed on 15 January 2006. The applicant pleaded guilty on 24 October 2006. He came before his Honour Taylor DCJ on 26 October 2006 and was sentenced to a non-parole period of imprisonment of 18 months to date from 26 August 2006 and to expire on 25 February 2008 with a balance of term of 6 months to commence at the expiration of the non-parole period and to expire on 25 August 2008.

4 The principal offence was an offence against s 112 (2) of the Crimes Act 1900 ("the Act") and carried a maximum penalty of 20 years imprisonment. The offence to which the applicant pleaded guilty was a combination of the contravention of ss 347, 350 and 112(2) of the Act.

Background

5 The brief facts before his Honour were agreed as follows.

6 The principal offence was committed at premises located in Teralba. The premises are a single storey brick dwelling house. The property has a large garage at the rear that houses the workroom. The workroom is separated from the main garage by a roller door. Two digital security video surveillance cameras monitor the property. Both the house and rear garage are also protected by a security alarm system. The garage has a sensor light that operates by a beam running along its front entrance.

7 A father and son occupied the property. Neither was home on the date the offence was committed. Prior to leaving home the alarm system had been activated. The sliding door at the rear of the house was closed but not locked.

8 At about 9.50am on Sunday 15 January 2006 Paul Tegelaar and Mitchell Coggan drove a motor vehicle to the premises and removed property from inside the house and loaded it onto the vehicle. About 10.45am on the same day the vehicle returned to the premises. Mr Tegelaar entered the garage whilst the vehicle was being repositioned. He came back from the garage pulling a trolley.

9 Three young boys from the next-door property arrived at the premises on their bikes to go for a swim in the pool. They witnessed the return of the vehicle. The applicant approached the boys and had a brief conversation with them. Video images captured by the security camera depict the applicant sitting in the passenger seat of the vehicle. Mr Coggan was driving. Mr Coggan and Mr Tegelaar then entered the house and came back shortly afterwards with a large safe loaded onto the trolley. The applicant assisted Mr Coggan and Mr Tegelaar to load the safe and the trolley into the back of the vehicle. All three men then got into the vehicle and drove away. The applicant was in the back of the vehicle holding the safe in place.

10 On 17 March 2006 the applicant was arrested by police in relation to this matter. He was taken to the Waratah Police Station and given the opportunity to participate in an interview. He declined to do so.

Grounds of appeal

11 The applicant sought leave to appeal to this Court on two grounds. They are as follows: -

11.1 The learned sentencing judge erred in sentencing the applicant on the basis that he was guilty of an offence for which he was not standing for sentence.

11.2 The learned sentencing judge erred in taking into account as a feature of aggravation that the crime was a planned and organised criminal activity.

12 The issues raised by these separate grounds of appeal are related and it is convenient to deal with them together.

13 Additionally, to a large extent, each of these grounds of appeal relies significantly upon various portions of his Honour's remarks on sentence. These should be examined first.

Remarks on sentence

14 His Honour relevantly commenced his remarks as follows: -

"The accessorial offence is a combination of the contravention of sections 347, 350, section 112, subsection (2) of the Crimes Act. It carries a maximum penalty of five years imprisonment. The principal offence carries a maximum penalty of twenty years imprisonment, being an accessory itself does not necessarily involve association with a principal offence that it was itself committed in company. Of course, committing an offence in company is an aggravating circumstance, but it is impermissible to have regard to such a circumstance where the offence, being in company, is an integral part of the particular charge in accordance with the De Simoni principle." (emphasis added)

15 A little later in his remarks his Honour said this: -

" The circumstance that [the applicant] was an accessory to a principal offence that was committed in company in my view, in this case does not sound in a longer or shorter sentence . It is arguable that it contravenes the De Simoni principle that the Court of Criminal Appeal’s given consideration to that issue recently and cautioned the sentencing judges about taking into account a circumstance that is an integral part of an offence. I say those matters by way of an introductory remark." (emphasis added)

16 His Honour then proceeded to recite the short facts. No complaint is made about the way in which his Honour did so. However, the applicant does rely upon some portions of the following passages taken from his Honour's remarks on sentence in support of the present appeal:

"The safe that was stolen from the house with the [applicant’s] assistance was subsequently located by police in bushland at West Wallsend the following morning, with some items removed by the co-offenders on the first occasion . . .

The offence is a serious one. The CCTV footage has been recorded on CD Rom which was played on a laptop in court and what is obvious from the movements of the individuals and what one might describe as the teamwork as this was the work of professional thieves. I have read the [applicant's] letter as to his involvement in the offence and I take it into account but I am satisfied beyond reasonable doubt that this was a planned and organised criminal activity in accordance with section 21A(2) in I would imagine quite carefully planned and quickly executed with those involved having a clear notion of their role. Nevertheless I bear in mind that the nature of the charge against the offender being an accessory and it was his activity over a relative short period of time that is the basis of objective circumstances for which he is to be sentenced. " (emphasis added)

17 Finally, the following passage should be noted: -

"This is not a case involving violence or threaten with use of weapons or any other matters that section 20A is concerned with, with aggravating offences and I have made a comment about the offence being conducted in company. I do not think it is appropriate to have regard to that as an aggravating circumstance. The criminal history of the offender is such that he really has lost the leniency that he otherwise might have. He is entitled to a discount on sentence that discount on the utilitarian approach of twenty-five per cent. (emphasis added)

The applicant’s submissions

18 The applicant relied upon the following well-known remarks of Kirby J in R v Olbrich (1999) 199 CLR 270 at par [53]:

It is fundamental that the respondent only be sentenced in respect of the particular offence to which he had pleaded guilty and of which he had been convicted. Where there are multiple offences of possible relevance to the facts but the accused has been charged and convicted of one or some only, it is a fundamental error to punish the accused on a basis dependent upon particular circumstances of aggravation which would constitute a different offence of which the accused has not been charged or convicted.

19 The applicant emphasised that an accessory after the fact is one who "receives, comforts, maintains or assists the principal who has committed a felony": R v White (1977) 16 SASR 571. The crime of the principal must be complete when the accessory after the fact carries out his relevant act or acts. The applicant submitted that in the present case it was axiomatic that helping the principal offenders to steal the safe could not properly form part of the crime for which the applicant stood for sentence, as it was a constituent of the offence committed by the principals.

20 The applicant submitted with particular emphasis upon the second ground of appeal that his Honour failed to differentiate between the offence for which the applicant was to be sentenced and that committed by the principals. It was submitted that it was wholly beside the point that the breaking, entering and stealing offence committed by the principals was planned and organised.

21 In the applicant's submission, the only conduct of the applicant, which could have made him an accessory after the fact, was his act of holding the safe after the vehicle drove away from the scene. This activity, so it was argued, had the tendency to make it less likely that the principal offenders would come to the notice of the authorities. That feature is a necessary constituent of the crime for which the applicant was sentenced.

22 According to this submission, that particular conduct could not properly be described as being part of a plan or an organised criminal activity. The applicant submitted that his Honour conflated the two different offences, a fact that is evident from his Honour's description of the applicant's crime as one involving "teamwork".

23 The applicant submitted that, viewed properly, the applicant's crime warranted a lesser penalty than that imposed by the sentencing judge. It was submitted that it was only during the second visit by the principals to the premises that the applicant was present. By inference, according to this submission, the applicant was only recruited when the principal offenders were part way through their crime and required assistance to conceal the safe in the motor vehicle so as to render it less likely that their crime would be detected.

The Crown’s submissions

24 These submissions drew attention to the following matters: -

24.1 His Honour correctly stated that the maximum penalty was 5 years imprisonment.

24.2 His Honour made the distinction between the respective maximum penalties for the principal offence and the accessorial offence at the outset.

24.3 The facts found by his Honour on sentence were consistent with the facts agreed to by the applicant.

24.4 His Honour acknowledged that he should bear in mind that the charge against the applicant was one of accessory.

24.5 The sentence imposed by his Honour upon the applicant was consistent with his Honour having had regard to the maximum penalty of 5 years imprisonment to which he referred.

25 The Crown submitted that his Honour ultimately imposed a sentence that was well within the permissible sentencing range for the offence with which he was charged and to which he pleaded guilty.

26 Finally, the Crown submitted that, with respect to the second ground of appeal, his Honour's remarks on the issue of planning had to be read in context. If they are read in this way, so it is submitted, the applicant has no basis for complaint.

Consideration

27 In my opinion, there is no basis for this Court to intervene or to impose a lesser sentence. It is apparent from his Honour's remarks on sentence when read as a whole, particularly having regard to the emphasised portions appearing in the passages quoted earlier, that he was under no misapprehension in any discernible or relevant respect about the task upon which he was engaged.

28 The burden of the applicant's submissions is that it is patent from the terms of his Honour’s remarks on sentence that he fell into error by sentencing the applicant as if he were a principal or by having regard to features of aggravation relevant to the principal offence but which were wholly irrelevant to the applicant's crime. In my opinion his Honour did no such thing. It is not without significance that his Honour’s remarks on sentence contain the emphasised portions referred to earlier and that they appear effectively at the start, the middle, and at the end of those remarks. That reiteration of the correct principles underscores and bespeaks his Honour's understanding and appreciation of their importance. It also serves to put in context the references that his Honour made to the circumstances of the principal offence.

29 In fairness to his Honour it would have to be said that his task was not made any easier by the material provided to him at the sentencing hearing. In this regard it is perhaps timely to recall a comments of Howie J in R v Palu (2002) 134 A Crim R 174 at pars [20] and [21] as follows:

"[20] A particular defect in the proceedings, which is now of significance, is that it was never made clear by the parties with any particularity at all the extent of the factual disputes that had to be resolved by his Honour. This was largely because there was a degree of procedural informality that was inappropriate once it was clear that the parties were not ad idem as to the factual basis upon which the respondent was to be sentenced or the appropriate sentencing disposition. Disputes and issues that arose were determined in an ad hoc fashion, if at all. The prosecutor, who finally had carriage of the matter, complained at one stage that she had not had access to the presentence report and was not aware of what had been said earlier in the proceedings when she was not present. Ultimately the order under s 11 was made without his Honour ever ascertaining the extent of the factual matters in dispute between the parties or attempting to resolve them.

[21] It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-608; 63 A Crim R 316 at 325-328. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in R v De Simoni (1981) 147 CLR 383; 5 A Crim R 329. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: R v Altham (1992) 62 A Crim R 126; Chow v Director of Public Prosecutions (NSW) (at 606; 327). All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case."

30 In the present case, by strict adherence to, and proper application of, correct principle, and despite possibly some uncertainty and confusion on the part of those appearing before him, his Honour has avoided falling into error of any kind. His Honour's remarks indicate that he well knew and understood that the applicant was being sentenced as an accessory after the fact of a serious principal offence. Nothing in his Honour's remarks on sentence lead me to conclude that his Honour somehow erroneously conflated the serious – or indeed any - elements of that principal offence with elements of the offence for which the applicant was being sentenced.

31 Moreover, it was on any view open to his Honour to find that the offence for which the applicant was being sentenced was part of a planned and organised criminal activity. It is difficult to accept that the applicant found himself in the motor vehicle in the circumstances described by his Honour without some degree of planning of one sort or another. This is not the same as saying that the applicant’s criminal acts were part of the principal offence or that his Honour sentenced the applicant as if he were a participant in the principal crime and somehow liable to be dealt with accordingly.

32 The applicant makes no other complaint of error by his Honour in the exercise of his sentencing discretion. The applicant was born on 11 September 1970. He had a long criminal history and had served several sentences of imprisonment. He was given a 25 per cent discount for his early plea. There were no submissions made in relation to special circumstances. No sentencing option other than full time custody was advanced or available. Even accepting the applicant's submissions at their highest, no other sentence in my opinion was warranted in law or should have been passed.

Conclusion

33 In my opinion the following orders should be made: -

1. Leave to appeal granted.
2. Appeal dismissed.

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