Irwin, Scott Anthony v The Queen
[2008] NSWCCA 7
•19 February 2008
Reported Decision: 181 A Crim R 123
New South Wales
Court of Criminal Appeal
CITATION: IRWIN, Scott Anthony v R [2008] NSWCCA 7 HEARING DATE(S): 31 January 2008
JUDGMENT DATE:
19 February 2008JUDGMENT OF: McClellan CJ at CL at [1]; James J at [2]; Barr J at [46] DECISION: Leave to appeal granted. Appeal allowed in part.
Sentence imposed by the sentencing judge for offence 2 quashed and in lieu thereof the applicant be sentenced to a non-parole period of one year nine months commencing on 4 March 2006 and expiring on 3 December 2007 and a parole period of seven months.
Sentence imposed by the sentencing judge for offence 7 quashed and the applicant be sentenced to a non-parole period of two years commencing on 4 June 2007 and expiring on 3 June 2009 and a parole period of eight months.
Sentence imposed by the sentencing judge for offence 1 quashed and the applicant be sentenced to a non-parole period of nine months commencing on 4 March 2010 and expiring on 3 December 2010 and a parole period of two years three months commencing on 4 December 2010 and expiring on 3 March 2013.
The applicant to be released on parole on 3 December 2010.
Otherwise, sentences imposed by the sentencing judge confirmed.CATCHWORDS: CRIMINAL LAW — Sentencing — totality where interstate offences — discount for acknowledging previously unknown guilt LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes ActCASES CITED: Mill v The Queen (1988) 166 CLR 59
R v Ellis (1986) 6 NSWLR 603
Ryan v The Queen (2001) 206 CLR 267PARTIES: IRWIN, Scott Anthony v R FILE NUMBER(S): CCA 2007/2845 COUNSEL: B J Rigg (Appellant)
J Girdham (Crown)SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0941 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 7 March 2007
2007/2845
TUESDAY, 19 FEBRUARY 2008McCLELLAN CJ at CL
JAMES J
BARR J
1 McCLELLAN CJ at CL: I agree with James J.
2 JAMES J: Scott Anthony Irwin applied for leave to appeal against sentences imposed on him in the District Court on 7 March 2007 by his Honour Judge Blackmore for a number of offences to all of which he had pleaded guilty. The offences for which his Honour sentenced the applicant comprised nine offences of breaking entering and stealing, four offences of obtaining money by a false statement and four offences of disposing of stolen property. Breaking entering and stealing is an offence under s 112 of the Crimes Act for which the maximum penalty is imprisonment for 14 years. Obtaining money by making a false statement is an offence under s 178BB of the Crimes Act for which the maximum penalty is imprisonment for five years. Disposing of property known to have been stolen is an offence under s 189 of the Crimes Act for which the maximum penalty is imprisonment for three years. In sentencing the applicant for one of the offences of breaking entering and stealing his Honour took into account, pursuant to Div 3 of Pt 3 of the Crimes (Sentencing Procedure) Act, 85 further offences of similar kinds to the offences for which the applicant was being sentenced, including 14 offences of breaking entering and stealing.
3 The sentences imposed by the sentencing judge on the applicant were as follows:-
For each of the four offences of disposing of stolen property the applicant was sentenced to a fixed term of imprisonment of six months commencing on 4 September 2005, the sentences to be served concurrently.
For each of the four offences of obtaining money by a false statement the applicant was sentenced to a fixed term of imprisonment of 12 months commencing on 4 December 2005, the sentences to be served concurrently.
For each of three offences of breaking entering and stealing in which the property stolen was of a value of $5000 or more the applicant was sentenced to a term of imprisonment of three years six months, comprising a non-parole period of two years six months and a parole period of 12 months.
For each of the five offences of breaking entering and stealing in which the property stolen was of a value of less than $5000 the applicant was sentenced to a term of imprisonment of three years, comprising a non-parole period of two years three months and a parole period of nine months.
His Honour made each of these last eight sentences commence three months after the commencement of the previous sentence, so that the sentences commenced at three monthly intervals from 4 March 2006 to 4 December 2007.
The total effect of the sentences imposed on the applicant was that the applicant was sentenced to head sentences totalling eight years six months and non-parole periods totalling six years.For a last offence of breaking entering and stealing, being the offence with respect to which his Honour took into account the 85 further offences, the applicant was sentenced to a term of imprisonment of four years, with a non-parole period of one year six months commencing on 4 March 2010 and a parole period of two years six months.
4 The facts of the offences were fairly typical for offences of their kind and it is unnecessary to state the facts of the offences in detail. Most of the offences were committed by the applicant breaking into home units, when the occupiers of the units were absent, and stealing goods such as television sets, laptop computers, mobile telephones, cameras, disc players and jewellery and then attending at the premises of a firm which carried on a business of purchasing second hand goods, making a statement, which was false, that he was the owner of the goods which he had stolen and selling the stolen goods to the firm.
5 The offences for which the applicant was sentenced by Judge Blackmore were committed by the applicant in various suburbs of Sydney in July and August 2004. After committing the last of these offences the applicant went to Queensland where he committed a number of similar offences. He was arrested in Queensland, released on bail and then re-arrested.
6 It would appear from documents recording the applicant’s criminal history in Queensland which were placed before this Court, that:-
1. On 23 September 2004 the applicant was convicted of breaking a condition of his bail and was sentenced to a term of imprisonment of two months, which was, however, wholly suspended.
2. On 9 October 2004 (or possibly 11 October 2004) the applicant was convicted of a separate breach of a bail undertaking and sentenced to imprisonment for four months and, in addition, the suspended sentence of two months which had been imposed on 23 September 2004 was “activated”, that is converted into a sentence of actual imprisonment.
3. On 18 February 2005 the applicant was convicted of a number of offences, including 22 offences of entering a dwelling and committing an indictable offence, four offences of attempting to enter a dwelling with intent to commit an indictable offence and nine offences of dishonestly obtaining property. For some of these offences terms of imprisonment of five years, to be suspended after 15 months had been served, were imposed; for some of the offences sentences of imprisonment of two years six months, to be suspended after 15 months had been served, were imposed; and for others of the offences sentences of imprisonment of 12 months were imposed.
7 Although the records are not entirely clear, it would appear that all of the sentences of imprisonment which were imposed on 18 February 2005 were to commence from the same date and that the date on which the sentences were to commence was, not the date on which the sentences were imposed, but 8 April 2005, so that the period of 15 months which the applicant was required to actually serve under some of the sentences expired on 7 July 2006.
8 On the hearing of this application it was common ground that the applicant had been continuously in custody in Queensland from 9 October 2004 (or possibly 11 October 2004) to 7 July 2006.
9 The offences for which the applicant was sentenced by Judge Blackmore had been committed by him while he was on parole under sentences which had been imposed on him in New South Wales in November 2002 for offences which included several offences of breaking entering and stealing. The applicant had been released on parole on 2 September 2003.
10 On 9 September 2004 the New South Wales Parole Authority revoked the applicant’s parole and ordered that the applicant serve a balance of parole of one month 29 days commencing on 7 July 2006, that is immediately after the applicant’s release from prison in Queensland. The applicant served this balance of parole. From 5 September 2006 the applicant has continued to be in custody, this custody being solely referable to the offences for which he was sentenced by Judge Blackmore.
11 On 7 March 2007 his Honour delivered careful and detailed remarks on sentence.
12 In his remarks his Honour referred to the large number of offences the applicant had committed and observed, appropriately, that the applicant had gone on “a veritable crime wave”. His Honour found that it was an important circumstance of aggravation that the offences had been committed while the applicant was on parole. His Honour referred to the applicant’s extensive criminal history, not only in New South Wales but in three other States, and found that the criminal history increased the significance of retribution, deterrence and the protection of society in the sentencing of the applicant.
13 At the time he was sentenced the applicant was 29 years old. He had become addicted to prohibited drugs at an early age and Judge Blackmore found that he had been affected by drugs at the time of committing the various offences and that his capacity to exercise proper judgment “may well have been affected”. His Honour accepted that the applicant’s early addiction to drugs could be attributed at least in part to a sexual assault perpetrated on the applicant when he was a child, so that his early addiction to drugs had not been a matter of personal choice.
14 His Honour allowed a discount of 25 per cent for the applicant’s plea of guilty and found that the applicant had evinced genuine contrition. His Honour was, however, doubtful about the applicant’s prospects of rehabilitation.
15 Other matters canvassed in the remarks on sentence, to which it will be necessary to return in dealing with the grounds of appeal against sentence, were the sentencing principle of totality and the sentencing principle enunciated in R v Ellis (1986) 6 NSWLR 603.
16 His Honour said that ordinarily he would have ordered that the sentences commence on 5 September 2006, the date from which the applicant’s custody had been solely referable to the offences for which he was being sentenced, but, as the applicant had been in full time custody for an “extended” period of “more than two years”, the commencement of the sentences should be back-dated by one year, to 5 September 2005.
17 The applicant relied on two grounds of appeal against sentence.
1. The sentencing judge misapplied the totality principle
18 As I indicated earlier in this judgment, the applicant committed a number of offences in Queensland shortly after committing the offences in New South Wales for which he was to be sentenced by Judge Blackmore. In the proceedings on sentence Judge Blackmore was referred to the decision of the High Court in Mill v The Queen (1988) 166 CLR 59.
19 In Mill the offender had committed two armed robberies in Victoria and one armed robbery in Queensland within a period of six weeks. He was convicted by a Victorian Court of the Victorian offences and sentenced to terms of imprisonment. On being released on parole in Victoria the offender was arrested and taken to Queensland, where he was sentenced for the Queensland offence. In these circumstances the High Court said at p 66:-
- ““In our opinion, the proper approach which his Honour (that is the Queensland judge sentencing for the Queensland offence) should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.””
20 It is clear that Judge Blackmore accepted that in sentencing the applicant he should have regard to what the High Court had said in Mill.
21 At p 16 of his remarks on sentence his Honour noted that “totality is particularly significant here”. At pp 16-17 of his remarks his Honour referred to the offences the applicant had committed in Queensland for which he had been sentenced in Queensland on 18 February 2005. His Honour did not, however, refer to the sentences which had been imposed in Queensland on 23 September 2004 and 9 October 2004 and it would appear that his Honour was not informed about those sentences.
22 At pp 17-18 of his remarks on sentence his Honour said:-
- ““In a case such as this, it is no easy sentencing exercise. However, the starting point is to attempt to assess the total criminality involved. Had this case gone to trial and the offender been convicted, and given the criminality involved in the offences and taking into account the offences committed in Queensland, a total sentence of some twelve years imprisonment would have been warranted.””
23 On this application it was submitted by counsel for the applicant that in this passage in his remarks on sentence the sentencing judge, in conformity with what the High Court in Mill had said would be the proper approach, had expressed the opinion that, if the applicant had stood trial, a total head sentence of 12 years would have been appropriate for the applicant’s total criminality, that is the criminality in the New South Wales offences and the criminality in the Queensland offences. It was then submitted by counsel for the applicant that the sentences totalling 8 ½ years which Judge Blackmore had imposed for the New South Wales offences (after allowing a discount of 25 per cent for the pleas of guilty and a further discount for the Ellis factor) could be seen to be manifestly excessive, because those sentences plus the sentences which had been imposed in Queensland exceeded his Honour’s assessment that sentences totalling 12 years would have been appropriate for the applicant’s total criminality in both States, without the applicant receiving any discount for pleas of guilty to the New South Wales offences.
24 I do not accept that the interpretation urged by counsel for the applicant is the proper interpretation of what his Honour said at pp 17-18 of his remarks. In my opinion, the proper interpretation of what his Honour said is that, after taking into account (in accordance with Mill), the Queensland offences committed by the applicant, a total head sentence of 12 years would have been appropriate for the total criminality involved in just the New South Wales offences, had there been no pleas of guilty to those offences.
25 I consider this interpretation is supported by the actual language used by his Honour. His Honour said “had this case gone to trial”, that is, had the New South Wales offences gone to trial, a total sentence of 12 years imprisonment would have been warranted. Obviously, if the case had gone to trial, the applicant could have been sentenced only for the New South Wales offences.
26 It was accepted by counsel for the applicant that, if the interpretation of his Honour’s remarks which I have advanced was adopted, there would be no inconsistency between his Honour’s remarks and the sentences ultimately passed by his Honour. His Honour expressed the opinion that a total head sentence of about 12 years would have been appropriate for the New South Wales offences, if there had been no plea of guilty. His Honour allowed a discount of 25 per cent for the pleas of guilty reducing the total head sentence to about 9 years. His Honour then allowed a further discount of 5 per cent for the Ellis factor, reducing the total head sentence to below 9 years. The head sentences in fact imposed by his Honour totalled 8 ½ years.
27 I have already noted that in the proceedings on sentence the sentencing judge was not informed of the full extent of the applicant’s criminal history in Queensland. His Honour was not informed about the offences the applicant had committed for which he was sentenced on 23 September 2004 and 9 October 2004 or about the sentences passed on those dates. Consequently, his Honour was under the misapprehension that the period the applicant had spent in custody in Queensland was a period of approximately 16 ½ months from 18 February 2005 to 7 July 2006, whereas the period was actually approximately 21 months from 9 October 2004 or 11 October 2004 to 7 July 2006. However, the offences for which the applicant was sentenced on 23 September 2004 and 9 October 2004 were comparatively minor and his Honour sentenced the applicant on the basis that at the time of the sentencing the applicant had been in custody for an “extended” period of “more than two years” and I do not consider that the deficiencies in the information supplied to his Honour about the applicant’s criminal history in Queensland had any material effect on the sentences he imposed or the dates of commencement of those sentences.
28 I would reject the first ground of appeal against sentence.
2. A miscarriage of justice has occurred by virtue of the provision of incorrect information as to the applicant’s disclosure of otherwise unknown offending
29 The applicant gave evidence in the proceedings on sentence, including evidence about his journey in July 2005 to New South Wales in the company of New South Wales police from the correctional centre in Queensland where he had been serving his Queensland sentences. The applicant said in evidence:-
- ““I got picked up from Barellan Correctional Centre in Queensland and I had quite a bit of time with them in transit. So I got to talk to them about everything I’ve done plus I informed them about some other things that they didn’t know about to clear up my record so when I do finally get out I won’t have anything come back and bite me. And then after that we done a record of interview.””
30 The question of whether the applicant should receive a discount in sentencing under the principles in Ellis and the amount of any such discount was raised during submissions in the proceedings on sentence.
31 In Ellis Street CJ, with the concurrence of the other members of the Court, said at p 604 C-E, after referring to the significance for sentencing of a plea of guilty by the offender:-
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.””““When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
32 In Ryan v The Queen (2001) 206 CLR 267 Kirby J, particularly at 297-298 (95-98) held that the appellant in that case was “entitled to a ‘considerable’ or ‘significant’ deduction in the sentence applicable by reason of his bringing to the notice of the authorities offences which were not previously known and which, but for his confession, would probably have remained unknown”.
33 However, in Ryan Kirby J was the only member of the High Court who would have allowed the appeal against sentence on the ground that the appellant had not received an Ellis discount to which he was entitled. The remarks made by McHugh J at 272-273 (15) were more guarded. McHugh J said in part:-
- ““The statement in Ellis that “the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency” is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case.””
34 In the case of many of the offences for which the present applicant was sentenced and many of the further offences which were taken into account the guilt of the applicant was not unknown to the authorities. For example, in many of the offences of breaking entering and stealing the applicant in the course of committing the offence had left at the premises a fingerprint or a palm print or DNA matter which matched the applicant’s DNA profile or there were records of the applicant disposing of the stolen goods in which the applicant was identified.
35 In the proceedings on sentence the representative of the Crown informed the sentencing judge that the only offences with respect to which the applicant had acknowledged guilt which was otherwise unknown to the authorities were three offences in the schedule of further offences.
36 In his remarks on sentence his Honour said at p 15:-
- ““In addition, the offender says that he has provided information to police with respect to offences the police had no specific information about. That raises the issue discussed by Street CJ in Ellis . It can lead to specific additional leniency on sentence. The Crown indicated without demur that it only applied to two offences on the schedule of charges to which he pleaded guilty, and is therefore of limited value. That might be so, but it is still a factor that I will recognise in sentencing the offender.””
37 At p 18 of his remarks on sentence the sentencing judge said that he would allow a discount in sentencing of 5 per cent for the Ellis factor.
38 It is unclear why, given what the prosecutor had said in the proceedings on sentence, his Honour said in his remarks that there were only two offences which were relevant. Furthermore, the language used by his Honour in this part of his remarks leaves unclear whether his Honour was referring to two of the offences for which the applicant was to be sentenced or two of the further offences in the schedule of further offences. However, on the hearing of this application it was common ground that the two offences referred to by his Honour were offences in the schedule of further offences to be taken into account and not two of the offences for which the applicant was actually to be sentenced.
39 On the hearing of this application it was common ground that the information which had been given to his Honour in the proceedings on sentence, about the offences with respect to which the applicant had acknowledged otherwise unknown guilt, was inaccurate. It was accepted by both counsel that the applicant had disclosed to police his otherwise unknown guilt of two of the offences of breaking entering and stealing for which he was being sentenced (the offences identified as offences 2 and 7 in the proceedings on sentence) and no fewer than 10 of the 14 offences of breaking entering and stealing in the schedule of further offences.
40 In my opinion, some further allowance, beyond that made by the sentencing judge on the basis of the incorrect information supplied to him, should be made for the disclosure by the applicant of otherwise unknown guilt.
41 This further allowance should not be large. The applicant’s objective criminality was considerable and some allowance was made by the sentencing judge for the Ellis factor.
42 This further allowance should be made by making some reduction in the sentences imposed for offences 2 and 7 and some reduction in the sentence for the final offence of breaking entering and stealing in respect of which the further offences in the schedule were taken into account.
43 In my opinion, the sentence for offence 2, which was an offence of breaking entering and stealing, where the value of the property stolen was less than $5000, should be reduced from a sentence of a non-parole period of two years three months and a parole period of nine months to a sentence of a non-parole period of one year nine months and a parole period of seven months and the sentence for offence 7, which was a offence of breaking entering and stealing, where the value of the property stolen was more than $5000, should be reduced from a sentence of a non-parole period of two years six months and a parole period of twelve months to a sentence of a non-parole period of two years and a parole period of eight months.
44 However, unless the elaborate structure of the sentences imposed by his Honour, in which sentences were made successively cumulative to the extent of three months, is disturbed, such alterations in the sentences imposed for offences 2 and 7 would not result in any reduction in either the total length of the head sentences or the total length of the non-parole periods. There would be difficulties in attempting radically to disturb the complicated structure of the sentences imposed by his Honour and I consider that the sentencing principle of totality can be satisfied and justice can be done by varying the final sentence for breaking entering and stealing (offence 1), being the offence in respect of which 10 otherwise unknown offences of breaking entering and stealing were taken into account. In lieu of the sentence imposed by the sentencing judge of a non-parole period of one year six months commencing on 4 March 2010 and expiring on 3 September 2011 and a parole period of two years six months commencing on 4 September 2011 and expiring on 4 March 2014, I would impose a sentence of a non-parole period of nine months commencing on 4 March 2010 and expiring on 3 December 2010 and a parole period of two years three months commencing on 4 December 2010 and expiring on 3 March 2013. If such a sentence as I propose was imposed, the total head sentences would be reduced from 8 ½ years to 7 ½ years and the total non-parole periods would be reduced from six years to five years three months.
45 I consider that the following orders should be made:-
Leave to appeal granted.
- Appeal allowed in part.
- Sentence imposed by the sentencing judge for offence 2 quashed and in lieu thereof the applicant be sentenced to a non-parole period of one year nine months commencing on 4 March 2006 and expiring on 3 December 2007 and a parole period of seven months.
Sentence imposed by the sentencing judge for offence 7 quashed and the applicant be sentenced to a non-parole period of two years commencing on 4 June 2007 and expiring on 3 June 2009 and a parole period of eight months.
Sentence imposed by the sentencing judge for offence 1 quashed and the applicant be sentenced to a non-parole period of nine months commencing on 4 March 2010 and expiring on 3 December 2010 and a parole period of two years three months commencing on 4 December 2010 and expiring on 3 March 2013.
Otherwise, sentences imposed by the sentencing judge confirmed.The applicant to be released on parole on 3 December 2010.
46 BARR J: I agree with James J.
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