Kelly v The Queen
[2021] ACTCA 15
•21 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: Kelly v The Queen Citation: [2021] ACTCA 15 Hearing Date: 21 May 2021 Decision Date: 11 June 2021 Before: Murrell CJ, Mossop and Abraham JJ Decision: Appeal dismissed. Catchwords:
APPEAL – CRIMINAL LAW – Sentence appeal – Whether sentence manifestly excessive – Totality – Whether sentencing judge incorrectly grouped offences – Concurrency of sentences for primary and related offences – Whether primary offences inadequately concurrent – Whether sentencing judge failed to take “last look” at total sentence to ensure appropriateness –
Burglary – Theft – Take motor vehicle without consent – Act of indecency without consent – Obtain property or financial advantage by deception – Drive unlicenced – Possess drug of dependence – Unlawfully possess stolen property
Cases Cited: Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
CX v The Queen [2017] ACTCA 37
Dalton v The Queen [2015] ACTCA 48
Dawson v The Queen [2019] ACTCA 9
Henry v The Queen [2019] ACTCA 5
House v The King (1936) 55 CLR 499
Loundes v The Queen [1999] HCA 29; 195 CLR 665
Melham v The Queen [2011] NSWCCA 121
Mill v The Queen (1988) 166 CLR 59
Nguyen v The Queen [2016] HCA 17; 256 CLR 656O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen (1998) 194 CLR 610
R v Elphick [2021] ACTSC 9
R v Kelly [2020] ACTSC 292
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v Meyboom [2012] ACTCA 48
R v Steen [2020] ACTSC 222
R v Toohey [2019] NSWCCA 182
R v TW [2011] ACTCA 25; 6 ACTLR 18
R v Wheeler [2000] NSWCCA 34
Singh v The Queen [2015] ACTCA 65
Tracey v The Queen [2020] ACTCA 51
Zdravkovic v The Queen [2016] ACTCA 53Texts Cited: D A Thomas, Principles of Sentencing (2nd ed, 1979) Parties: Paul David Kelly (Appellant)
The Queen (Respondent)Representation: Counsel J White SC (Appellant) A Williamson (Respondent) Solicitors Legal Aid ACT (Appellant)
ACT Director of Public Prosecutions (Respondent)File Number: ACTCA 44 of 2020 Decision under appeal:
Court/Tribunal: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 23 October 2020 Case Title: R v Kelly Citation: [2020] ACTSC 292 THE COURT: Introduction 1. The appellant appealed against sentence imposed by Loukas-Karlsson J (the sentencing judge) on the sole ground that it was manifestly excessive.
2. On 23 October 2020, the sentencing judge imposed a total sentence of five years and
nine months’ imprisonment (from 29 September 2019 to 28 June 2025) and set a
nonparole period of three years and five months’ imprisonment (approximately 60 per
cent of the total sentence): R v Kelly [2020] ACTSC 292.
3. The appellant challenged the way in which the sentencing judge had accumulated the individual sentences and applied the principle of totality. The appellant also complained about the length of the sentences for transfer charges 3 and 4.
4. Except in relation to transfer charges 3 and 4, there was no challenge to the individual sentences. Nor was there a challenge to the sentence discount of 20 per cent for each plea of guilty or the fact that the nonparole period was approximately 60 per cent of the total sentence.
5. The following individual sentences were imposed.
Charge Maximum penalty Sentence
Offences on 26 September 2019
Count 1: Burglary 14 years’ imprisonment, 1 year and 24 days’
a fine, or both imprisonment, from 29
September 2019 to 22 October
2020
Count 2: Theft 10 years’ imprisonment, 4 months and 24 days’
a fine, or both imprisonment, from 29
September 2019 to 21 February
Count 4: Burglary 14 years’ imprisonment, 1 year, 2 months and 12 days’ a fine, or both imprisonment, from 22 November
2020 to 2 February 2022Count 5: Theft 10 years’ imprisonment,
2 months and 12 days’ a fine, or both imprisonment, from 22 November
2020 to 2 February 2021Counts 6–9: Theft 10 years’ imprisonment, 4 months’ imprisonment (in each a fine, or both case), from 2 December 2021 to
1 April 2022Count 10: Burglary 14 years’ imprisonment,
1 year and 4 months’ a fine, or both imprisonment, from 2 January
2022 to 1 May 2023
Count 11: Act of 7 years’ imprisonment 2 years’ imprisonment, from 2
indecency without April 2023 to 1 April 2025 consent
Count 12: Theft 10 years’ imprisonment, 4 months and 24 days’
a fine, or both imprisonment, from 8 January
2025 to 31 May 2025
Counts 13–15: Obtain 10 years’ imprisonment, 4 months’ imprisonment (in each property or financial a fine, or both case), from 2 February 2025 to 1 advantage by June 2025 deception
Offences on 29 September 2019
Count 16: Obtain 10 years’ imprisonment, 4 months’ imprisonment, from 2
property or financial a fine, or both February 2025 to 1 June 2025
advantage by deception
Count 17: Theft 10 years’ imprisonment, 4 months’ imprisonment, from 2 a fine, or both February 2025 to 1 June 2025
Transfer charge 1: A fine of 20 penalty units A fine of $640 Drive unlicenced
Transfer charge 2: 2 years’ imprisonment, a 28 days’ imprisonment, from 23 Possess drug of fine, or both March 2025 to 19 April 2025 dependence
Transfer charges 3–4: 6 months’ imprisonment, 3 months and 6 days’
Unlawfully possess a fine, or both imprisonment, from 23 March stolen property 2025 to 28 June 2025
Transfer charge 5: 6 months’ imprisonment, 1 month and 18 days’
Unlawfully possess a fine, or both imprisonment, from 23 March stolen property 2025 to 10 May 2025 6. A table illustrating the length of individual sentences and showing the degree of concurrency and accumulation was included in the appeal material and is annexed to these reasons.
Facts
Offences on 26 September 2019
7. Counts 1 and 2 (burglary and theft). At about 2:40 pm on 26 September 2019, the appellant entered John XXIII College, a residential college at the Australian National
University (ANU). He proceeded to the third floor of the College, entered a resident’s
unlocked room, and removed Kia car keys from the top of the refrigerator within the
room.8. Count 3 (take motor vehicle without consent). About 30 minutes later, using a stick, the appellant attempted to gain entry to the secure car park at the rear of the College, where the Kia vehicle was located. He was unsuccessful. However, he gained access by following a vehicle that entered the car park. He drove the Kia vehicle from
the car park by “tailgating” another vehicle. He kept the vehicle until he was arrested
on 29 September 2019. The vehicle was returned to the owner, but the vehicle’s roof
racks had been removed.
9. On 27 September 2019, the owner of the Kia vehicle reported to police that the vehicle and its contents were missing.
Offences on 28 September 2019
10. Count 4 (burglary). At about 4:55 am on 28 September 2019, the appellant attempted unsuccessfully to gain entry to the John XXIII College dining room by swiping an object over the security card reader. Thereafter, by unknown means, he gained access. At about 5 am, he went to the unlocked music room. He removed a trumpet and trumpet case from the room. Later, the trumpet was recovered on ANU campus grounds, where it had been abandoned.
11. Count 5 (theft). The appellant entered a study room within the College, rifled through cupboards, and removed a rugby jersey. He walked through the College wearing the rugby jersey and carrying a trumpet case and a Kathmandu brand jacket.
12. Counts 6–9 (theft). The appellant went to Burgmann College (another ANU
residential college) and proceeded to the dining room, where he stole four laptop computers belonging to four different students. After the appellant was arrested, two of the four laptop computers were returned to their owners.
13. Count 10 (burglary). At about 6 am, the appellant entered the room of a Burgmann College student resident.
14. Count 11 (act of indecency without consent). The victim awoke to find the appellant standing over her. She was wearing the underwear in which she had been sleeping. The appellant was wearing a dark ski mask, a rugby jumper, long pants, a large, full
backpack, and gloves. The victim’s sheets were pulled back and the appellant was rubbing her breasts with his hand. While doing so, the appellant said, “you don’t know me”. When the victim became fully conscious, the appellant ceased rubbing
her, and grabbed her laptop. She jumped out of bed and began to scream. She struggled to wrest her laptop from the appellant. He stumbled backwards, attempting
to leave the room, and stated, “I will rape you”. She screamed for him to leave. As
he left, he said, “I’m going to come back and I’m going to get you”.15. The victim awakened her neighbours, and they rang for assistance.
16. Count 12 (theft). On returning to her room, the victim discovered that the appellant had taken her mobile telephone, car keys, and wallet. Within her wallet and phone
case were driver’s licences, a student identification card, credit cards, a gift card, and
other items. After the appellant was arrested, these items were returned to the victim.
17. The appellant had left behind a Kathmandu jacket (which was later linked to him by DNA evidence) and two black spray can bottles. He had consumed a bottle of water
from the victim’s refrigerator.
18. The appellant left Burgmann College carrying the trumpet case, entered the Kia vehicle, and drove away.
19. Counts 13 (obtain property by deception). At about 7 am on 28 September 2019, the
appellant attempted to use the victim’s credit card at the Coles Supermarket in Curtin
to purchase coffee and confectionery valued at a total of $12.60, but the transaction
was declined. Subsequently, he used the stolen gift card to make the purchase.20. Count 14 (obtain financial advantage by deception). At about 4 pm, at a CEX store, the appellant exchanged two stolen laptops for two receipts and left the store. At about 5 pm, he returned to the store and signed a receipt, trading one laptop for a smart phone and $101 of store credit.
21. Count 15 (obtain property by deception). That evening, the appellant returned to the Coles Supermarket in Curtin and used the stolen gift card to purchase grocery items to a total value of $76.17.
Offences on 29 September 2019
22. Count 16 (obtain property by deception). The appellant drove the Kia vehicle to the
Westfield Woden Shopping Centre. While there, he used the victim’s credit card to
pay a two-dollar parking fee and to purchase food and drink to the value of $7.20.
23. Count 17 (obtain property by deception). At about 2:20 pm, the appellant drove the Kia vehicle to the Caltex Woolworths Service Station in Calwell. He filled the vehicle with petrol valued at $77 and left without attempting to pay.
Transfer charges
24. Transfer charge 1 (unlicensed driver). The appellant was unlicensed. On 26 and 29 September 2019, he drove the Kia vehicle on several occasions.
25. At 4:45 pm on 29 September, the appellant drove the Kia vehicle from his driveway in Curtin. At about 5:15 pm, he was located standing next to the passenger side of the vehicle in the suburb of Deakin.
26. Transfer charge 2 (possess drug of dependence). When arrested on 29 September, the appellant was in possession of 0.008 grams of methylamphetamine.
27. Transfer charges 3 and 4 (unlawfully possess stolen property). When police searched the Kia vehicle, they found items (including passports, credit cards, and boarding passes) belonging to two people, principally a person whose Curtin residence had been burgled on the morning of 25 September 2019.
28. Transfer charge 5 (unlawfully possess stolen property). In the Kia vehicle, police located a marquee that was used by current students of the ANU. The appellant was not a current student of the ANU and was not authorised to be in possession of the marquee.
Victim impact
29. The victim of the act of indecency read a victim impact statement to the Court. She described how the offence had made her feel profoundly violated. The offence shattered her sense of safety and security, severely impacted on her ability to sleep soundly, and caused flashbacks. After the offence, she felt overwhelmed by depression and anxiety. She deferred her studies and left her job. Neighbouring residents also experienced a loss of their sense of safety and security.
Subjective circumstances
30. The sentencing judge noted the following subjective circumstances.
(a) The appellant was 38 years old when the offences were committed and 39 years old when sentenced. (b) His criminal history included two offences of aggravated burglary and a prior offence of act of indecency without consent. In 2013, Penfold J sentenced him to two years and three months’ imprisonment for an offence of aggravated
burglary committed in 2010. For an offence of aggravated burglary committed
in 2014, in 2015, Burns J sentenced him to 20 months’ imprisonment (reduced from two years’ imprisonment for the plea of guilty), the first nine months to be
served by periodic detention, and the sentence to be suspended thereafter on
a good behaviour order. The appellant’s performance on the good behaviour
order was less than satisfactory. In 2016, for a significant offence of act of indecency without consent, the Magistrates Court sentenced the appellant to
two years’ imprisonment with a nonparole period of 12 months’ imprisonment.
In April 2019, the appellant received a short sentence of imprisonment for offences of property damage and possession of methylamphetamine.
(c) The appellant had a stable upbringing, but for two matters. First, his family moved frequently due to his father’s employment. Second, while a primary
school student, the appellant was abused by a teacher.
(d)
The appellant had the support of his family. He had been in a de facto relationship for about eight years and remained on reasonably friendly terms with his ex-partner.
(e)
The appellant left school in Year 10 and had a good employment history, most recently as an assistant stonemason. However, in early 2019, he was dismissed from employment because of his criminal record. Loss of employment was a blow to the appellant and was a cause of his 2019 relapse into drug abuse.
(f)
For many years, the appellant used methylamphetamines. There was a significant period of abstinence from 2015, but the appellant relapsed in early 2019. The appellant said that he did not recall most of the offending because
he was affected by drugs. The sentencing judge was “guarded” about the appellant’s prospects of rehabilitation but acknowledged that there was some
potential for rehabilitation: at [53].
(g)
In custody, the appellant displayed a good work ethic and had completed several courses, including courses in anger management and substance abuse.
(h)
The appellant had expressed victim empathy and the sentencing judge accepted that he was remorseful: at [53].
The sentencing judge’s assessment of the objective seriousness of the offences
31. As to the act of indecency, the sentencing judge recorded the defence submission that the offence was opportunistic rather than premeditated. Her Honour noted the
prosecution submissions that the act had been “skin on skin” contact, which was not
of a momentary nature; while no weapon or violence had been used, there had been contemporaneous threats to return and carry out a more serious sexual offence; and
the act of indecency was of “mid-range” objective seriousness: at [36].
32. The sentencing judge observed that the act of indecency was clearly the most serious of the offences. At [39], her Honour stated:
This was a very serious example of an act of indecency. The victim was asleep in her bed. The offender was a stranger in her bedroom where she was entitled to feel safe. There was a level of premeditation conceded by defence in light of the wearing of the ski mask.
33. In relation to the other offences, the sentencing judge stated that she agreed with the submissions of the parties: at [39].
34. The defence had submitted that there was nothing about the burglaries or thefts that was out of the ordinary; most items (other than the keys and items taken from the principal victim) had been removed from common areas, the monetary value of most items had been small, and the more expensive items (the laptops) had been
recovered: at [33]–[34].
35. The prosecution had submitted that the property offences, while unsophisticated,
were “premeditated and brazen”. However, they were appropriately characterised as
below mid-range: at [37].
The appellant’s submissions
36. The appellant submitted that, in reaching a total sentence that was manifestly excessive, the sentencing judge had made four errors.
37. The appellant identified the “first error” as the failure to properly group the offences by
reference to their subject matter and temporal association. The appellant submitted
that her Honour should have grouped the offences as follows.
(a)
Series 1: the burglary at John XXIII College on 26 September 2019 (Count 1), the theft of the car key (Count 2), the driving of the car (Count 3), and the theft of petrol on 29 September 2019 (Count 17).
(b)
Series 2: the burglary at John XXIII College and Burgmann College on 28 September 2019 (Count 4), the thefts of a rugby jersey from John XXIII College (Count 5) and laptops from Burgmann College (Counts 6, 7, 8 and 9), and the obtaining of a financial advantage by deception using a stolen laptop (Count 14).
(c) Series 3: the burglary of the victim’s room at Burgmann College (Count 10), the theft of her property (Count 12), and the associated obtaining of property
by deception using her stolen cards (Counts 13, 15 and 16).(d) Series 4: act of indecency (Count 11). (e) Series 5: unlawful possession of stolen property and possession of drugs (transfer charges 2–5) (Transfer charge 1 was an offence for which the only
penalty was a fine).
38. The appellant said that the “second error” was the failure to make the sentences for
the transfer charges and the lesser offences associated with the burglaries completely concurrent with the sentences for the principal offences. According to the appellant, the sentencing judge should have made:
(a) the sentences for Counts 3 and 17 concurrent with the sentence for Count 2; (b) the sentences for Counts 6–9 and 14 concurrent with the sentence for Count 5;
(c) the sentences for Counts 12–16 concurrent with the sentence for Count 10; (d) the sentences for the transfer charges entirely concurrent with other sentences (because the offences were relatively trivial). 39. The appellant submitted that the sentencing judge’s “third error” was the failure to
allow a reasonable degree of concurrency between the sentences imposed for the four major counts: the three burglary counts and the count of act of indecency (Counts 1, 4, 10 and 11). Although the offences were temporally related and the burglary matters were similar in nature, her Honour had almost completely accumulated the sentences for the four major matters.
40. The appellant said that the sentencing judge’s “fourth error” was that her Honour had
failed to take a “last look” at the total sentence to ensure that it was appropriate; her
Honour had not “[stepped] back and [considered] the collective effect of the
sentences”, leading to an overall sentence that was “manifestly too long to reflect the
total criminality”: referring to Dawson v The Queen [2019] ACTCA 9 (Dawson) at
[42]–[43].
41. Finally, the appellant submitted that the sentences imposed on transfer charges 3 and 4 were manifestly excessive having regard to the maximum penalty.
Appeal principles
42. An appeal claiming that a sentence is manifestly excessive calls into question what is a quintessentially discretionary decision: Henry v The Queen [2019] ACTCA 5 at [30], referring to Loundes v The Queen [1999] HCA 29; 195 CLR 665. In considering whether a sentence is unreasonable or plainly unjust, the Court proceeds within the context that there is no one single correct sentence and due allowance must be given to differences of judicial opinion: Dalton v The Queen [2015] ACTCA 48 at [18], referring to Melham v The Queen [2011] NSWCCA 121 at [85].
43. Recently, in Tracey v The Queen [2020] ACTCA 51 (Tracey) at [38], the Court stated the correct approach to the assessment of whether a sentence is manifestly excessive:
To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
Totality, accumulation and concurrence
44. In response to the submission that the prosecutor made at the sentencing hearing about concurrency and accumulation, the sentencing judge said:
in relation to the burglary and theft offences there will have to be a level of concurrency in light of the related nature of the offences but, of course, there will have to be a significant level of cumulation in relation to the offence concerning [the victim].
45. At [88]–[89] of the sentencing judge’s reasons for decision, her Honour correctly
stated:
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988)
166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
As stated above, the Court must take into account the principle of totality. That is particularly so where there are several counts representing different episodes. However, it must not be applied so as to suggest the offender is receiving a discount for multiple offending: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [18].
46. At [91], the sentencing judge referred to O’Brien v The Queen [2015] ACTCA 47 (O’Brien) at [26].
47. The principles to which her Honour referred have been affirmed by the High Court in many cases, including Nguyen v The Queen [2016] HCA 17; 256 CLR 656 (Nguyen)
(Bell and Keane JJ at [37]–[38] and Gageler, Nettle and Gordon JJ at [64]). Restating
the principles, in O’Brien at [26], this Court said:
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].
48. Like the present case, in O’Brien, in support of his claim of manifest excess, the
appellant asserted that sentences imposed for “Incident 2” (violence) offences should not have been wholly accumulated on sentences imposed for “Incident 1” (drug
dealing) offences. In rejecting that proposition, at [28]–[29] the Court said:
In all the circumstances of this case, the total or aggregate sentence may be considered by
some to be somewhat harsh. …
Each of the three incidents for which the appellant was sentenced involved serious criminality that was separate and distinct. There is no overlap or commonality of factors or elements. Nor could it be said that the three incidents arose from a single episode or course of conduct such that the criminality involved in one of the incidents was subsumed
or comprehended in the others. …
49. Temporal proximity and similarity of offence type or subject matter may be important considerations when a sentencing judge is determining issues of accumulation and concurrence. Recently, in R v Toohey [2019] NSWCCA 182 at [56], Gleeson JA (with whom Button and Lonergan JJ agreed) said:
As to totality, it is well established that questions of accumulation and concurrence are, generally speaking, matters for determination by a sentencing judge in the exercise of his or her discretion. The focus is on a consideration of the similarity, differences and the degree of connection between the offences both in time and type to ascertain the extent to which the sentence for one offence can comprehend and reflect the criminality of the other. That calls for the identification and an evaluation of the relevant factors pertaining to the offences and will include the nature and seriousness of each offence.
(Citation omitted)
50. However, there is no single correct approach to the structuring of multiple sentences, and in any case there may be a variety of acceptable ways in which to implement the totality principle: Singh v The Queen [2015] ACTCA 65 at [147], citing with approval the comments of Penfold J in R v TW [2011] ACTCA 25; 6 ACTLR 18. In CX v The Queen [2017] ACTCA 37 at [28], this Court observed:
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.
(Citations omitted)
51. In Nguyen at [64], Gageler, Nettle and Gordon JJ stated:
That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong.
(Footnotes omitted)
Consideration
52. Given the nature of “errors” identified by the appellant in his submission, it is
appropriate to observe at the outset that the appellant does not allege as a ground of
appeal that her Honour’s decisions concerning concurrency and accumulation were
infected by an error in the exercise of discretion. As the decision about concurrency and accumulation involves the exercise of discretion, if a ground is alleged, to succeed an appellant must establish a House v The King (1936) 55 CLR 499 error in
the exercise of that discretion: see Tracey at [58]–[59]. Rather, as noted above, the
sole ground of appeal is that the sentence imposed is manifestly excessive.
“First error” and “second error”: appropriate “grouping” of offences and
concurrency of sentences for primary and related offences
53. As noted above, when considering questions of accumulation and concurrence, the focus is usually on the similarity, differences, and degree of temporal and substantive connection between offences, as well as the relative seriousness of each. Consequently, appropriate concurrence and accumulation may be achieved by grouping of offences that are connected temporally and/or by subject matter. However, there are no fixed rules about grouping.
54. Nor does practice or principle dictate that a sentence for a less serious, related offence should be made concurrent, let alone wholly concurrent, with the sentence for the primary offence. In Pearce v The Queen (1998) 194 CLR 610 at [49], McHugh, Hayne and Callinan JJ said:
to make the sentences imposed on [counts of maliciously inflict grievous bodily harm and break, enter and inflict grievous bodily harm] wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.
55. There is no principle or practice requiring that the sentence for theft related to a burglary be made wholly concurrent with the sentence for the burglary. Indeed, as a matter of principle, in general, some added penalty should apply to an offence flowing from a burglary, as it involves different and additional criminality.
56. In this jurisdiction, sentences for burglary and related theft have often—but not always—attracted fully concurrent sentences: Dawson at [35]–[41]. Examples of this
approach are R v Steen [2020] ACTSC 222 and R v Elphick [2021] ACTSC 9. However, in Tracey, this Court considered whether burglary and the resulting theft should attract completely concurrent sentences and concluded that there was no general practice to that effect: at [55]. At [54], the Court observed that:
The offence of burglary is not necessarily associated with actual theft. It is committed if an offender, inter alia, has an intention to commit theft. If the offender steals property, bringing the intention to fruition, the separate offence of theft may be charged as a separate offence.
57. On the other hand, there may be a risk that, if sentences are accumulated, the combined sentence will exceed that which is warranted to reflect the total criminality: Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27].
58. The degree of accumulation and concurrency between offences is necessarily a matter which is fact specific, having regard to the relevant sentencing principles, including the principle of totality.
59. As the facts of Counts 14 to 17 illustrate, both temporally and substantively, the connection between a burglary and a somewhat associated offence of obtaining property by deception (but which involves different elements and a different victim) may be more remote than the connection between a burglary (with intent to steal) and a theft by which the burglar brings their intent to fruition.
60. The sentencing judge “grouped” Counts 1, 2 and 3, so that the sentence for theft of
the car key was subsumed within the sentence for burglary and the sentence for driving the motor vehicle taken without consent (using the key) was substantially concurrent. As the offence of driving a motor vehicle taken without consent was distinct from the offence of burglary and the impact of the offending on the victim was also distinct, it is understandable that the sentencing judge partially accumulated the sentences for those offences.
61. The sentencing judge “grouped” Counts 4 to 9, such that the sentence for Counts 5
(theft of a rugby jersey) was subsumed within the sentence for burglary. The sentences for theft of the laptops were made almost wholly concurrent with each other and partly concurrent with the sentence for the associated burglary. This
“grouping” was appropriate.
62. The sentencing judge “grouped” 10 miscellaneous short sentences (ranging from 28
days to four months and 24 days), including the sentences for offences of obtaining financial advantage or property by deception and the sentences for the transfer offences. Most of the sentences were for matters of relatively minor dishonesty committed at about the same time. Overall, the miscellaneous group of offences extended the length of the overall sentence by only three months (from 1 April 2025
to 28 June 2025). It was appropriate to “group” the miscellaneous sentences together
and to accumulate the sentences so that, as a whole, the sentences for the less
serious offences extended the total sentence by a short period.63. It was well within her Honour’s sentencing discretion to group the offences as she did
for the purpose of sentencing.
“Third error”: inadequate concurrency between the sentences for the major
offences
64. The appellant submitted that there should have been some degree of concurrence between the sentences imposed for the three burglaries as they were part of one
burglary “spree” committed over three days (26, 28 and 29 September 2019) and
Counts 1 and 4 concerned the same premises. Further, although Count 11 concerned an offence of a different nature, because it was part of the same series of offences and was opportunistic in nature, there should have been more than one
month’s concurrency between the sentences imposed on Counts 10 and 11. The
appellant said that the problem was exacerbated because the sentence imposed on
Count 11 was “particularly severe”, albeit not manifestly excessive, of itself.
65. We do not accept these submissions.
66. First, the sentence on Count 11 was not “particularly severe”. The offence was a
serious offence of its type. It was committed in a residential college, on a victim who was asleep in her own bed in the middle of the night. The victim was traumatised.
The appellant’s criminal record meant that he was disentitled to leniency, particularly
as in 2016, he had committed a very similar offence, for which he had been
sentenced to two years’ imprisonment. The sentencing consideration of personal
deterrence suggested that the starting point for the sentence should be higher than
two years’ imprisonment, and it was higher; the starting point was two years and six months’ imprisonment. That starting point must be viewed against the maximum
penalty of seven years’ imprisonment. In fixing the sentence, the sentencing judge
had regard to comparative sentences.
67. Second, in determining how to accumulate sentences, a sentencing judge has a wide discretion. There is nothing inherently wrong with almost completely accumulating the sentences imposed for the most serious matters while making the sentences imposed for minor matters largely concurrent with the sentences for the most serious matters. Without a discount for pleas of guilty, the total sentence (the accumulated sentences) for the three offences of burglary would have been about four years and
six months’ imprisonment; with the discount, the total sentence for those matters was
about three years and seven months’ imprisonment. Having regard to the
relationship between the burglary offences, the total sentence was quite high but not manifestly excessive, in the context that the maximum penalty for each individual
offence was 14 years’ imprisonment and the appellant’s criminal history disentitled
him to leniency.
68. The starting points for the sentences for Counts 1, 4 and 10 were 16 months’
imprisonment, 18 months’ imprisonment, and 20 months’ imprisonment respectively.
The respondent submitted that these sentences were low, reflecting that the
sentencing judge had approached the question of totality by imposing “shorter”
individual sentences with limited or no concurrency.
69. Had her Honour taken the suggested approach, then that would have been contrary
to principle. However, the respondent’s suggestion is mere speculation, and it is not
the approach that the sentencing judge expressly stated that she would take: at [88].
70. Similarly, it was within the scope of the sentencing judge’s discretion to almost
completely accumulate the sentence imposed on Count 11 on that imposed on Count 10. While the offences were part of the same incident, they were fundamentally different in nature.
“Fourth error”: failure to take a “last look” to ensure appropriate totality
71. As with the preceding alleged “errors”, the appellant does not contend as a ground of
appeal that her Honour erred in failing to apply the correct legal principles with
respect to the principle of totality.72. In Mill v The Queen (1988) 166 CLR 59 at 63, the Court cited with approval a
passage from DA Thomas, Principles of Sentencing (2nd ed, 1979) at 56–57 concerning the totality principle. In the text, the author stated, “it is always necessary for the court to take a last look at the total just to see whether it looks wrong”.
73. That statement is a recognition that the process of achieving appropriate concurrence and accumulation is part of the instinctive synthesis of sentencing, which involves the dynamic review of the effect of a proposed sentence structure for the purpose of deciding whether a total sentence that is under consideration would appropriately reflect the total criminality.
74. The way in which the sentencing judge constructed the overall sentence shows that her Honour did seek to arrive at an overall sentence that reflected the overall criminality. There is no basis to suggest that her Honour did not have regard to the principle of totality. Although the total sentence that her Honour reached may be
described as moderately severe, it was within the proper range of her Honour’s
discretion.
Transfer charges 3 and 4
75. The maximum penalty for the offences the subject of transfer charges 3 and 4 was six
months’ imprisonment. The starting point for each sentence was four months’
imprisonment.
76. The appellant argued that, as the offending was not particularly serious, this starting point was too high.
77. The items the subject of transfer charges 3 and 4 would have been of significance to their owners, although replaced relatively easily and of no sentimental significance.
The appellant’s criminal history disentitled him to leniency for such offences.
78. While the sentences were heavy, we consider that they were within the range of the
sentencing judge’s discretion.
Conclusion
79. Returning to the ground of appeal, in our view having regard to the facts of this case in light of the relevant sentencing principles, the appellant has failed to establish the sentence imposed is manifestly excessive.
Order
80. The appeal should be dismissed.
I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for their Honours Chief Justice Murrell, Justice Mossop and Justice Abraham.
Associate:
Date: 11 June 2021
Sentence Details
Eligible for Parole 1/3/2023
25% 50% 75% 100%
29/9/2019
28/6/2025
Overall Sentence 59.4% 40.6% (NPP: 3Y 5M, PP: 2Y 4M)
29/9/2019 5 years 9 months
Count 1: Burglary 22/10/2020
29/9/2019 (FT: 1Y 24D) 21/2/2020
Count 2: Theft (FT: 4M 24D)
22/5/2020 21/1/2021
| Count 3: Take Motor Vehicle | (FT: 8M) |
22/11/2020 2/2/2022
Count 4: Burglary (FT: 1Y 2M 12D)
22/11/2020 2/2/2021
Count 5: Theft (FT: 2M 12D)
2/12/2021 1/4/2022
Count 6: Theft (FT: 4M)
2/12/2021 1/4/2022
Count 7: Theft (FT: 4M)
2/12/2021 1/4/2022
Count 8: Theft (FT: 4M)
2/12/2021 1/4/2022
Count 9: Theft (FT: 4M)
2/1/2022 1/5/2023
Count 10: Burglary (FT: 1Y 4M)
2/4/2023 1/4/2025
| Count 11: Act of Indecency | (FT: 2Y) |
8/1/2025 31/5/2025
Count 12: Theft (FT: 4M 24D)
2/2/2025 1/6/2025
Count 13: Obtain Property by
Deception (FT: 4M)
2/2/2025 1/6/2025
Count 14: Obtain Financial
| Advantage by Deception | (FT: 4M) |
2/2/2025 1/6/2025
Count 15: Obtain Property by
Deception (FT: 4M)
2/2/2025 1/6/2025
Count 16: Obtain Property by
Deception (FT: 4M)
2/2/2025 1/6/2025
Count 17: Theft (FT: 4M)
23/3/2025 19/4/2025
| T Charge 2: Possess Drug | (FT: 28D) |
23/3/2025 28/6/2025
T Charge 3: Possess Stolen
Property (FT: 3M 6D)
23/3/2025 28/6/2025
T Charge 4: Possess Stolen
Property (FT: 3M 6D)
23/3/2025 10/5/2025
T Charge 5: Possess Stolen
Property (FT: 1M 18D)
29/9/2019 7/3/2021 12/8/2022 20/1/2024 28/6/2025
Parole period (PP) Non-parole period (NPP) Fixed term (FT)
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