Michael Thomas Hawkins v The Queen - [2006] NSWCCA 91

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Michael Thomas HAWKINS v REGINA [2006] NSWCCA 91

FILE NUMBER(S):
2005/679

HEARING DATE(S): Thursday 25 August 2005

DECISION DATE: 03/05/2006

PARTIES:
Michael Thomas HAWKINS (applicant)
REGINA (respondent)

JUDGMENT OF: Sully J Hidden J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0927, 03/11/0417

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

COUNSEL:
Mr G Smith (applicant)
Mr P Miller (respondent)

SOLICITORS:
S E O'Connor - Solicitor for Legal Aid (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)

CATCHWORDS:
CRIMINAL LAW: application for leave to appeal against sentence - charges of aggravated break, enter and steal - stealing in a dwelling - making and using false instruments - further matters on Form 1 - whether offences aggravated by involving multiple victims or a series of criminal acts - whether lesser sentence warranted

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

DECISION:
Leave granted - (by majority) appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/679
SULLY J
HIDDEN J
HALL J
Wednesday 3 May 2006

Michael Thomas HAWKINS v REGINA

Judgment

SULLY J: I have had the benefit of reading in draft the reasons of Hidden J. I regret that I am unable to join in the making of the orders proposed by his Honour. In my opinion leave to appeal against sentence should be granted; but the appeal against sentence should be dismissed.
It is convenient to begin by saying that I agree, with respect, with what is said by Hidden J in paragraphs 30, 31 and the first sentence of 32 of his Honour’s reasons. I agree also, that the learned sentencing Judge did err in his approach to section 21A(2)(m) of the Crimes (Sentencing Procedure) Act1999 (NSW). I accept that the occurrence of such error makes it necessary for this Court to consider whether, error having been shown, this Court should proceed to re-sentence the applicant, and to do so upon the footing that some other and more lenient sentence is warranted in law: see section 6(3) of the Criminal Appeal Act1912 (NSW).
The problem of how to sentence a seriously drug-addicted offender is not unfamiliar to this Court. For a helpful recent survey of relevant principle it is not necessary to travel beyond the well known guideline judgment of this Court, (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ), in R v Henry & Ors (1999) 46 NSWLR 346.
The Chief Justice, at paragraphs 197 through 208 of his Honour’s judgment, expressed the following views:
197In my opinion drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary, just as it varies for individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.
198First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.
199Secondly, the submissions in this Court were in error in identifying the relevant conduct as the craving associated with withdrawal. The material presented to the Court did not suggest that the choice faced by addicts was between this negative feeling and the need for money to allay it. Rather the choice may often be the desire for the positive feeling said to be associated with a drug induced euphoria. The desire to bring about the state of “well-being” is, relevantly, a moral choice.
200Thirdly, nothing in either the process of addiction or its neurobiological and physiological basis, leads ineluctably to the commission of crime, let alone the commission of crimes of violence against persons, such as armed robbery. Not all persons who suffer from addiction behave in this way. Those that do so, make a choice.
201Finally, individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.
202There is no warrant, in my opinion, to assess a crime induced by a need for funds to feed a drug addiction, as being lower in the scale of moral culpability than other perceived requirements for money.
203Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected.
204It was also submitted that the principle of general deterrence should be given less weight in the context of offenders who commit their crimes for the purposes of assuaging a drug addiction. In this submission, reliance was placed on the often expressed doubts about the direct effect on potential offenders of increases in penalties imposed. Particular reliance was placed on the driven nature of drug addicts, many of whom engage in high risk activity, like exchange of needles notwithstanding the risk of HIV infection. This kind of submission has been made many times before and I have quoted a few instances above. It has always been rejected. This Court should do so again.
205General deterrence always operates at the margin. Some people will continue to engage in criminal conduct notwithstanding the level of, or increases in the level of, the penalties they suffer. However, some people will be deterred. It is not to the point that some addicts engage in high risk activities. It would be necessary to establish that all addicts do so. Neither the submissions, nor the materials in support, suggest anything of this character.
206I attach particular significance to the impact that acknowledgment of drug addiction as a mitigating factor would have on drug use in the community. The sentencing practices of the courts are part of the anti-drug message, which the community as a whole has indicated that it wishes to give to actual and potential users of illegal drugs. Accepting drug addiction as a mitigating factor for the commission of crimes of violence would significantly attenuate that message. The concept that committing crimes in order to obtain moneys to buy an illegal substance is in some way less deserving of punishment than the commission of the same crime for the obtaining of moneys for some other, but legal, purpose is perverse.
207It may very well be the fact that increased possibility of detection has greater effect by way of deterrence than increased punishment. There is no warrant, however, for the courts abandoning reliance on the latter. In any event the two propositions are related. It is only because detection, when it occurs, leads to a level of punishment, that increases in detection have their deterrent effect.
208It may very well be that the criminal justice system has a modest role to play in the control of drug addiction. But however modest that role may be, it must be performed in accordance with the basic structure of the criminal sentencing process. At the level of a structure deeply embedded in our society, not merely at the level of an individual’s calculus of risks and benefits for specific conduct, the criminal justice system is now, and has always been, based on the proposition that punishment deters and, within limits of tolerance, increased punishment has a corresponding effect by way of deterrence. This Court should not change such a longstanding assumption. Legislation would be required to alter the common law in this way.
Wood CJ at CL wrote separately and at length, but only upon the topic of drug addiction. After a long and careful survey of antecedent authority and of other published literature Wood CJ at CL summarised in paragraphs 264 through 276 the conclusions to which his Honour was persuaded:
264The views expressed in these studies concerning the deterrent value of imprisonment, and the possible exposure of prison inmates to influences that may increase their prospects of recidivism, are not confined to drug dependent offenders. They are of common application, particularly in the case of first offenders, for whom the slamming prison door principle remains apposite, and also in the case of those who are yet to offend, for whom the prospect of imprisonment has a particular relevance.
265I am not prepared to advocate any departure from the long accepted wisdom that imprisonment does have a personal and general deterrent effect. It is a notion deeply entrenched in the criminal law, and it has the imprimatur of the legislature which has prescribed significant maximum penalties for the offence under consideration, as well as for other offences involving serious criminality.
266Moreover, it cannot necessarily be assumed from the fact that increases in sentences have not been accompanied by any noticeable drop in crime rates, that they lack deterrent effect. In the absence of any control, it cannot be known whether crime rates would have been higher had sentences not been increased.
267The risk of exposure to undesirable influences within a corrective environment, similarly cannot be used as a justification for abandoning, or even limiting imprisonment, as a general response to criminal conduct. There remains for every offender a choice between reform and recidivism, and the problem is better addressed by the development of adequate programs and rehabilitation options within the prison environment, than it is by a significant change in sentencing policy.
268While it may be accepted that the rehabilitative aspect of sentencing is not an unimportant consideration: R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394; R v Douglas (Court of Criminal Appeal, 4 March 1977, unreported); R v Eastway (Court of Criminal Appeal, 19 May 1992, unreported); R v Fabian (1992) 64 A Crim R 365; R v Halewyn, I am not persuaded that the offender, whose criminality was directly influenced by drug addiction, should be placed into a special category for sentencing purposes.
269The objective of rehabilitation is but one aspect of sentencing. It needs to be taken into account along with the objectives of retribution and deterrence.
270It is more appropriate, in my view, to have regard to these considerations, upon an individual case basis, in which it is recognised that the offence of armed robbery remains a very serious crime, which, save in exceptional circumstances, calls for full-time imprisonment. That is not to say that, in an individual case, the fact of drug dependency of the person standing for sentence may not remain a relevant fact reflecting on the objective circumstances of the offence, and/or subjective circumstances of the offender, and particularly on the relativity of the minimum and additional terms: Bugmy v The Queen (1990) 169 CLR 525 and R v B (1993) 68 A Crim R 547.
271This approach accords with the caution offered by Gleeson CJ in R v Engert (at 68):
It is …….. erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
272It also avoids the problems associated with establishing categories according to the offender’s need for money (for example, to feed a drug addiction, to support a gambling habit, to pay off business or family debts, to establish a business, etc) which would lend themselves to abuse and to moral judgments in respect of which minds may legitimately differ.
273In my view the relevant principles are as follows:
(a)the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;
(b)however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
(i)           the impulsivity of the offence and the extent of any planning for it: cf R v Bouchard (1996) 84 A Crim R 499 at 501-502 and R v Nolan (Victorian Supreme Court, Court of Appeal, 2 December 1998, unreported);
(ii)          the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;
(iii)         the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;
(c)it may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i)           impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword: eg, R v Lewis (Court of Criminal Appeal, 1 July 1992, unreported);
(ii)          suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R v Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii)         justify special consideration in the case of offenders judged to be at the “cross roads”: R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394.
274To go further, and to accept the fact of drug addiction as a mitigating factor generally, would not be justified in principle. Moreover, it would involve an exercise in irresponsibility on the part of the Court, if it were understood as a message that committing the crime of armed robbery to feed a drug habit is less deserving of censure than would otherwise be the case.
275The legislature has, by the heavy maximum penalty prescribed for armed robbery, spoken clearly in relation to this offence. Drug dependent persons should not be encouraged, as a class, to think that they are free to engage in serious criminal conduct of whatever kind with impunity, or with any hope of favourable treatment because they are able to show that they needed money through their addiction.
276In summary, I see no reason to depart from the planks of punishment, retribution and rehabilitation that underlie the sentencing process generally, and that permit of individualised sentencing by reference to the objective and subjective circumstances of each case.
It can be accepted at once that Mr. Hawkins, when he stood for sentence, had then running in his favour a very strong subjective case. Much of that case revealed a background of familial dysfunction and of personal adversity such as to attract, naturally, a real measure of sympathy. Part of the subjective case consisted of various attempts made at various times and with, at least on some occasions, a real measure of success, to break an entrenched drug habit. That, too, was a consideration attracting a proper measure of respect and of practical recognition.
All of that said, however, it is trite that the sentencing Judge had to be careful, as this Court must now be careful, to ensure that the natural operation of those feelings of sympathy and respect are given a properly principled role in the reasoning towards an ultimate sentencing outcome. Such a principled approach must entail, as I respectfully think, the giving of proper effect to opinions such as those expressed by the Chief Justice and by Wood CJ at CL in the passages previously herein quoted.
It cannot be gainsaid, in my opinion, that each and every one of the offences for which Mr. Hawkins was sentenced was, in terms of its objective criminality, a serious offence. The fourth of the charge matters attracted, it is true, a severe sentence; but it must be kept carefully in mind that the particular offence to which that charge related attracted, without more, a statutory maximum penalty of imprisonment for 20 years. The sentence in fact passed in relation to that matter took into account no less than fourteen other charges, admittedly not charges involving physical violence towards the victims, for each of which charges the statutory maximum penalty was imprisonment for 10 years. I cannot except that, for criminal offending of that degree, a more lenient sentence is warranted in law.
Neither can I accept that the total accumulation of the sentence passed in connection with the offence against Mr. Wauchop was erroneous. The various charge matters, coupled with the additional scheduled matters which were taken into account on sentence, spanned a period from about 1 November 2002 to 6 January 2003. The offence committed against Mr. Wauchop was committed on 12 August 2003. There was, in my opinion, no properly principled way of sentencing for that matter in a way that did not entail at least a significant degree of accumulation with the other sentences. Whether a total accumulation manifests error depends, of course, upon a testing of the overall ultimate result against the principle, correctly understood and applied, of totality.
That entails in the present case a consideration of the question whether an end result of imprisonment for 9 years 6 months with a non-parole period of 7 years is manifestly excessive as punishment for a series of serious offences deliberately committed, albeit by an offender with the strong subjective case available to the present applicant.
In that connection it seems to me to be important that none of the relevant psychiatric, psychological and other professional assessments made of the applicant suggests that he committed the various offences otherwise than with a complete understanding of what he was doing and with a complete understanding that what he was doing was wrong.
In those circumstances, I am unpersuaded that the ultimate sentencing outcome achieved at first instance is such as to justify the intervention of this Court upon the footing that some other and more lenient sentence overall is warranted in law.
For the whole of the foregoing reasons, and as I indicated at the commencement of them, I believe that the appropriate orders on the present application would be to grant the application for leave to appeal against sentence; but to dismiss the substantive appeal itself.

HIDDEN J: The applicant, Michael Thomas Hawkins, seeks leave to appeal against sentences imposed upon him in the District Court. He had been committed to that Court for sentence in respect of five offences, and asked that a further fourteen offences be taken into account on a Form 1. All these offences had been committed between November 2002 and January 2003. In addition, he pleaded guilty on indictment to a further offence, committed in August 2003. It is convenient to set out the facts of the various offences before recording the sentences imposed in respect of them.
Facts and sentences
Committal/Form 1 offences

The applicant had been committed for sentence on the following charges:
Two charges of stealing property in a dwelling house (charges 1 and 5): s148 of the Crimes Act, maximum sentence seven years imprisonment;
Charges of making and using a false instrument (charges 2 and 3): s300 of the Crimes Act, maximum sentence ten years imprisonment;
Aggravated break, enter and steal, knowing that there was a person in the place where the offence was committed (charge 4): s112(2) of the Crimes Act, maximum sentence twenty years imprisonment.
The fourteen charges on the Form 1 comprised seven charges each of making and using a false instrument.
A helpful summary of the facts of these offences is to be found in the Crown prosecutor’s written submissions, as follows:
The applicant was employed as a cleaner and part-time caretaker at the Peninsula Gardens Retirement Village at Bayview from 20 June 2002 to 4 December 2002, on which date his services were terminated. He had a master key for all units in the village and had gained the trust of many of the elderly residents. He retained the key after he was dismissed.
Some time between 1 November 2002 and 4 December 2002, the applicant stole four cheques belonging to Ms Harvey, an 87-year old resident at the retirement village (charge 1, steal property from dwelling house). He stole the cheques from her cheque book, which was lying on a side table, when he was cleaning the unit. She did not know that the cheques had been stolen until he presented them later for payment at her bank. He made the first cheque out for $1000 and successfully cashed it on 16 December 2002 at the St George Bank (charges 2-3, make and use false instrument).
Between 20 December 2002 and 6 January 2003, the applicant made out and used seven false cheques in the sums of $1000, $750, $750, $800, $770, $870 and $770 (the fourteen matters on the Form 1). The total sum cashed was $5710. [Not all of these cheques could have been Ms Harvey’s, but where the others came from is not clear.]
On 23 December 2002, more than two weeks after the applicant’s services at the retirement village had been terminated, he entered Ms Miller’s unit and stole $500 in cash (charge 5, steal property from dwelling house). He had cleaned her unit during the course of his employment.
At about 4am on 6 January 2003, Ms Harvey, the victim of charges 1-3, awoke to find someone in her unit. She yelled out and the intruder ran away. The applicant admitted later when questioned by the police that he had broken into her unit. He entered her room, opened the table drawer and removed a cheque from her cheque book before she woke up (charge 4, aggravated break, enter and steal knowing someone was inside the premises). Ms Harvey said in her police statement that she was “very scared” during he incident.
On 6 January 2003, the applicant was arrested whilst attempting to cash a cheque at the St George Bank. He took part in a ERISP interview and made unqualified admissions. The facts tendered stated that the applicant was “an ex-heroin addict who had given up the habit for some 9 years but a few months prior to these offences commences using heroin again.”
The applicant was given bail by the police on 7 January 2003, on condition that he report once a week and not attend the Peninsula Gardens retirement village.
On the charge of aggravated break, enter and steal (charge 4), taking into account the matters on the Form 1, the applicant was sentenced to imprisonment for eight years with a non-parole period of four years and six months. On the charges of stealing property in a dwelling (charges 1 and 5), he was sentenced to fixed terms of imprisonment for three years and two years respectively. On each of the charges of making and using a false instrument (charges 2 and 3), he was sentenced to a fixed term of imprisonment for two years. All sentences were to date from 20 August 2003. It was on that day that he was arrested for the remaining offence, to which he pleaded guilty on indictment.
Indictment offence
This was another offence of aggravated break, enter and steal, on this occasion accompanied by the malicious infliction of actual bodily harm. This offence, also carrying a maximum sentence of twenty years imprisonment, was committed while the applicant was on bail in respect of the other offences. Again, I draw on the Crown prosecutor’s written submissions for a summary of the facts:
On 12 August 2003, whilst subject to his bail agreement, the applicant broke into the home of the late Mr Wauchop, 90, who lived in his own house and not in the retirement village, and stole $540 from him. The victim lived alone in a house at Manly Vale. The applicant knocked on the front door then pushed his way in, telling Mr Wauchop, “There’s a bad man in the street”. The applicant moved behind the victim and grabbed him by the back of the arms. He mumbled, “Come with me,” and pushed him upstairs to the bedroom, telling him several times that he wanted money. The victim told him he didn’t have money and tried to break free.
The applicant pushed him onto the bed, kneeled over the top of him and put his hands over the victim’s face. The applicant again demanded money and the victim, who was afraid he was going to suffocate, indicated that his wallet was on the desk. While the applicant took $40 from the wallet, the victim tried to reach the telephone. The applicant again pushed him on the bed and stifled his call for help. The victim said, “You’re suffocating me, you’ll murder me.” The applicant pushed harder and demanded more money. The victim indicated towards his drawer and the applicant took an envelope containing $500.
Again the applicant stopped the victim from reaching the telephone and pushed him down the hall to the study, when he tied the telephone cord around the door handle to keep the victim in the room. The victim eventually got out and raised the alarm. He recalled the applicant’s name, “Michael” from when he had met him earlier. The applicant cleaned the victim’s house on a number of occasions during 2003 while employed by an aged care services company.
Dr Armstrong stated that Mr Wauchop suffered abrasions to his right shin and left wrist and extensive bruising to both arms. The victim was treated with dressings, analgesics and tranquilisers to ease his anxiety. Mr Wauchop said in his police statement that the applicant was wearing “a beanie on his head which was pulled down to just above his eyes”.
Eight days later, the applicant was arrested at Manly Hospital. He took part in an electronic interview and admitted this offence, but minimised his role by denying that he had pushed the victim onto the bed or that he had put his hands over the victim’s mouth. The applicant was refused bail and has remained in custody since 20 August 2003.
For this offence the applicant was sentenced to imprisonment for five years with a non-parole period of two years and six months. That sentence was directed to commence on 20 February 2008, upon the expiration of the non-parole period fixed in respect of the first offence of aggravated break, enter and steal. Overall, the effective sentence was imprisonment for nine years and six months, with a non-parole period of seven years, commencing on 20 August 2003.
Subjective case
This is an unusual case, in which the learned sentencing judge described the subjective matters as “indeed powerful.” The applicant was forty-five at the time of the offences, and is now forty-eight. He has a minor criminal record, which his Honour treated as insignificant. He is the youngest in a family of three children. He had a difficult childhood because his father, who had a drinking problem, was violent and abusive. Nevertheless, the family stayed together, and in later years his father overcame his drinking problem and their relationship improved.
He commenced to abuse a variety of drugs in his teens, and throughout his twenties he used heroin heavily. During this period he attempted to deal with his drug problem on more than one occasion, detoxifying and remaining abstinent for relatively short periods. However, from the age of twenty-eight he remained drug free for ten years, during which time he regularly attended Narcotics Anonymous meetings.
He was educated to School Certificate standard and, despite his pattern of drug abuse, appears to have had a stable employment history. Unfortunately, after his long period of abstinence, the breakdown of two intimate relationships led to his relapse into drug use. The first occasion was in his late thirties, following the breakdown of his marriage. That marriage had produced a son, with whom he maintained contact. He relapsed for six months, underwent detoxification and a rehabilitation program, remained drug free for a year, but then relapsed for another six- month period. He then remained abstinent until the time of the offences the subject of this application. In the meantime he had formed another relationship with a woman, and this last relapse followed the breakdown of that relationship.
In a report provided at the sentence proceedings, Dr Bruce Westmore, psychiatrist, arrived at a provisional diagnosis of a major depressive illness at the time of the offences. Apart from the breakdown of his second relationship, this appears to have resulted from the fact that his former wife had travelled to the United Kingdom with their son to see her family. He was distressed that the child would be away for the Christmas period and feared that his ex-wife might keep their son overseas.
He committed the offences to fund the purchase of heroin. In February 2003, whilst on bail for the first set of offences, he commenced a methadone program. However, his depression endured and his motive for the offence of August 2003 was to obtain heroin so that he could commit suicide by an overdose. Apparently, an attempt to do so was not successful, and two days later he tried to hang himself in a park. He was rescued by police and admitted to a hospital. It was at that hospital that he was re-arrested about a week later.
Since being in custody, he had undergone counselling and attended Alcohol and Other Drug courses. Indeed, he was instrumental in setting up Narcotics Anonymous programs in the prison, and assisted in conducting them. A testimonial by his sister asserted that his period in custody has been a turning point in his life. The author of a pre-sentence report had this to say about him:
Mr Hawkins presented as a depressed, fragile, sensitive and caring man who is experiencing difficulty dealing with his present legal position. While he has battled a heroin addiction for over 22 years he presents a marked contrast to many men whose heroin addiction has resulted in their incarceration. He has genuinely worked hard at his recovery, used support groups well and achieved significant periods of abstinence. He also expressed deep regret and self-hatred for exploiting vulnerable elderly people in his offending.
The breakdown of his marriage and a subsequent de-facto relationship appear to have devastated him emotionally and he would benefit from psychological counselling to address relationship issues and the clinical depression from which he appears to be suffering.
His Honour acknowledged the steps which the applicant had taken to rehabilitate himself while in custody and noted that he had the support of his family. He found him to be contrite. He referred to the utilitarian value of the pleas of guilty, although without specifying a discount for them. He also noted that police would not have known of the offence at Ms Miller’s unit (the fifth committal charge) but for the applicant’s having volunteered his commission of it. He found special circumstances.
The application
Counsel for the applicant, Mr Smith, argued the application on three grounds:
(1) His Honour erred in treating the earlier offences (the committal offences) as aggravated by their having involved multiple victims or a series of criminal acts: s21A(2)(m) of the Crimes (Sentencing Procedure) Act.
(2) The overall sentence did not give effect to his Honour’s determination that there were special circumstances, the effective non-parole period of seven years being almost seventy-four percent of the total sentence of nine and a half years.
(3) The total sentence is manifestly excessive. Submissions on this ground were directed primarily to the sentence of eight years in respect of the fourth committal charge, the aggravated break, enter and steal offence at Ms Harvey’s unit.
The Crown prosecutor in this Court accepted that the first ground is made out. His Honour referred to s21A(2)(m), noting that the offences involved two victims. At the time of sentence his Honour did not have the benefit of this Court’s decision in R v Tadrosse [2005] NSWCCA 145, in which Howie J said:
[28] His Honour was also in error in taking into account as an aggravating feature s21A(2)(m) “the offence involved multiple victims or a series of criminal acts”. Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court.
[29] Clearly the aggravating factor in s21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct…
Those observations are applicable to the present case. The other two grounds were addressed by Mr Smith and the Crown prosecutor in helpful written submissions and, to a certain extent, orally at the hearing. However, error having been shown in his Honour’s approach to sentence for the committal offences, argument centred upon whether any lesser effective sentence than that which his Honour passed was warranted: s6(3) of the Criminal Appeal Act.
No complaint was made about the sentence for the indictment offence, the aggravated break, enter and steal committed at the home of Mr Wauchop, viewed in isolation. Nor could any have been made. A sentence of imprisonment for five years with a non-parole period of two and a half years is by no means excessive, given the objective gravity of the offence and the fact that it was committed while the applicant was on bail for the earlier offences. Mr Smith’s only challenge was to the fact that that sentence was wholly accumulated upon the non-parole period set in respect of the fourth committal charge.
The Crown prosecutor raised a number of matters in opposition to this Court’s intervention, all of them of substance. While the sentence of eight years with a non-parole period of four and a half years on the fourth committal charge is heavy, it was on that charge that the offences on the Form 1 were taken into account. In addition, the sentences on the other committal charges were wholly concurrent with the non-parole period in respect of that offence and some measure of accumulation, at least partial, would not have been inappropriate. The two victims of those offences were elderly and vulnerable, the applicant occupied a position of trust in relation to them, and the offences involved the invasion of their homes. The criminality disclosed by all the offences called for a substantial non-parole period and, while the effective non-parole period is close to seventy-five percent of the total sentence, it still leaves a period of parole eligibility for two and a half years.
On the other hand, the applicant is entitled to rely upon his exceptional subjective case, his favourable prospects of rehabilitation, the fact that in his maturity he is experiencing prison custody for the first time, his pleas of guilty and his co-operation with investigating police. After anxious consideration, I am persuaded that the Court should intervene, albeit to a modest extent. Recognition of those favourable features of the case, in my view, requires a reduction of the total sentence and the effective non-parole period by one year. I would achieve this by an adjustment of the sentence on the fourth committal charge. I consider that the sentence I propose remains adequate to reflect the criminality of that offence. This would require a corresponding adjustment of the commencement date of the sentence on the indictment offence, which would remain wholly cumulative upon the non-parole period in respect of the fourth committal charge.
On the question of re-sentence we received additional material on affidavit, from which it appears that the applicant has continued to pursue his rehabilitation while in custody. It seems that his fear of his son’s indefinite exile was not realised, and he looks forward to re-establishing his relationship with that boy upon his release. He continues to enjoy the support of his family.
I would grant leave to appeal and allow the appeal. I would quash the sentence on the fourth committal charge. On that charge, taking into account the matters on the Form 1, I would impose a sentence of imprisonment for seven years, with a non-parole period of three and a half years, to date from 20 August 2003. I would confirm the sentence for the offence on the indictment, but would direct that it commence on 20 February 2007. I would confirm the sentences on the other committal charges. He would be eligible for release on parole on 19 August 2009.
HALL J: I have had the benefit of reading in draft the judgments of Sully and Hidden JJ. By reason of the fact that their Honours are divided on the outcome of the appeal, I have carefully examined the relevant matters arising for consideration.
I would, at the outset, wish to acknowledge the considerable assistance the Court received in this matter from both the Crown in its written and oral submissions and by counsel for the applicant, Mr C Smith.
Relevant background matters
The judgment of Hidden J conveniently refers to the material facts and, accordingly, I will seek in this judgment to confine my reference to particular matters which are to be read in conjunction with those referred to by Hidden J.
The applicant was born on 27 February 1958 and was accordingly aged between 44 and 45 years at the time of the commission of the relevant offences. He was 46 years of age at the date of sentence on 3 June 2004.
He has a minor criminal record and at the age of 46 was sentenced by the District Court in relation to the charges referred to in the tables below to a term of imprisonment in custody for the first time. His early history and background is conveniently summarised in the judgment of Hidden J. The sentencing judge characterised his subjective case as “indeed powerful”.
The subjective considerations have been set out in paragraphs [17] to [23] in the written submissions of Mr Smith, of counsel.
The offences
The applicant pleaded guilty in all to six offences and 14 offences were taken into account on a Form 1. The Form 1 matters were taken into account on the fourth committal charge (aggravated break, enter and steal). The 14 matters in that respect related to the use of false instruments. They were committed between 20 December 2002 and 6 January 2003.
In relation to the abovementioned charge of aggravated break, enter and steal, taking into account the Form 1 matters, the applicant was sentenced to imprisonment for eight years with a non-parole period of four years and six months. As Hidden J has observed, the submissions on behalf of the applicant were primarily directed to the sentence in relation to the fourth committal charge, aggravated break, enter and steal offence committed at Ms. Harvey’s unit.

The applicant, on 20 April 2005, filed grounds of appeal dated 19 April 2005 in respect of the sentence imposed upon him in the District Court of New South Wales (His Honour Judge Solomon) on 3 June 2004.
A total of six sentences were imposed and the abovementioned 14 offences were taken into account on the Form 1. All offences, but one, were committed in the period 1 November 2002 to 6 January 2003. The offence committed on 12 August 2003 was in breach of bail for the earlier offences.
On 23 May 2003, the applicant pleaded guilty before a magistrate at the Downing Centre Local Court to two offences of stealing property in a dwelling house, one offence of aggravated break, enter and steal, one offence of make false instrument and one offence of use a false instrument.
It is convenient to set out relevant particulars concerning the six offences referred to above.
Five offences committed in the period 1 November 2002 to 6 January 2003

Offence	Offence date	Maximum penalty	Sentence Imposed	Commencement of sentence
1. Steal dwelling house	1 November 2002 to 4 December 2002	Seven years Crimes Act 1900 (NSW) – s.148	Three years	20 August 2003
2. Make false instrument	16 December 2002	10 years Crimes Act 1900 (NSW) – s.300	Two years	20 August 2003
3. Use false instrument	16 December 2002	10 years Crimes Act 1900 (NSW) – s.300	Two years	20 August 2003
4. Aggravated break, enter and steal	6 January 2003	20 years Crimes Act 1900 (NSW) – s.112(2), s.105A(1)(f)	Non-parole period of four years and six months. Parole period of three years and six months	20 August 2003
5. Steal dwelling house	23 December 2002	Seven years Crimes Act 1900 (NSW) – s.148	Two years	20 August 2003

Sixth offence committed on 12 August 2003

Offence	Offence date	Maximum penalty	Sentence imposed	Commencement of sentence
Break, enter and steal and commit actual bodily harm	12 August 2003	20 years Crimes Act 1900 (NSW) – ss.112(2), 105A(1)(d)	Non-parole period of two years and six months. Parole period of two years and six months	20 February 2008

The effective sentence imposed upon the applicant was, accordingly, a non-parole period of seven years to date from 20 August 2003 with a parole period of two and a half years to expire on 19 December 2013.
It can be seen that all the sentences for the charge sheet matters (1 to 3) were concurrent and the sentence for charge 4 wholly subsumed the other offences for those charge sheet matters.
The sentence for the offence on the indictment was made wholly cumulative on the non-parole period for the fourth offence (aggravated break, enter and steal).
Factual matters
The applicant worked as an aged carer at the Peninsula Gardens Retirement Village in 2002. He had, in the past, had difficulties with heroin addiction and it is said that during the period he worked at the retirement village he relapsed into heroin use.
The applicant stole money and cheques from elderly residents at the retirement village and broke into two victims’ homes.
On the second occasion, he was on bail for an earlier offence and on that occasion he maliciously inflicted actual bodily harm on a 90 year old man (the offence on indictment).
On 15 May 2003, the applicant pleaded guilty in the Local Court to one count of aggravated break, enter and steal, knowing that a person was in the premises being broken into, two counts of steal property in dwelling house involving two victims on separate dates, and one count each of making and using a false instrument involving the presentation of a cheque stolen from one of the victims. He requested that seven counts, each of making and using false instruments (being cheques stolen from victims) be taken into account.
On 23 January 2004, the applicant pleaded guilty to an offence of aggravated break, enter and steal in respect of the offence committed on 12 August 2003 whilst he was on bail, the aggravating feature in relation to that offence being the malicious infliction of actual bodily harm on the 90 year old male person already referred to.
Consideration
Counsel for the applicant accepted that the offences both alone and in combination were most serious. Each of the offences, it was also acknowledged, were committed in breach of trust and upon elderly victims and that those two factors constituted significant aggravating circumstances.
The first ground to the application was accepted by the Crown as valid. That ground identifies error in treating the earlier offences (the committal offences) as aggravated by their having involved multiple victims: see s21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge in that respect noted that the offences involved two victims. In relation to the first ground, see Regina v Tadrosse [2005] NSWCCA 145 at [28] and [29].
Whilst error in this respect has been identified, the central question is its effect having regard, in particular, to the structure of the sentences imposed including the matter of accumulation. This includes, as the Crown submissions observe, the fact that the sentences for all the charge sheet matters were to run concurrently.
The sentence for Count 4, as earlier noted, wholly subsumes the sentences for the other charge sheet matters, a matter of some significance. Recognition also must be given to the fact that there were two victims in respect of the charge sheet matters (Ms Harvey and Ms Miller) and, as the Crown has pointed out, Ms Harvey was a victim at different points in time: the initial theft of her cheques (charge 1), the making and using of a false instrument (charges 2 and 3) and the later aggravated break, enter and steal at night in her unit (charge 4).
The Crown also correctly observed that the matters on the Form 1, taken into account in relation to count 4, involved an amount over $5,000 in cashed cheques and the sentencing judge was required to bring those matters into account with a view to increasing the sentence on that charge: Attorney-General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 137 A Crim R 180 at [42] per Spigelman CJ. These matters, as the Crown also correctly observed, involved very significant breaches of trust and enrichment by the applicant.
On any view of the facts, some degree of accumulation was required for charge 4 on the sentences for charges 1, 2 and 3.
Taking into account all of these circumstances, the question becomes, whether notwithstanding the identified error in terms of s21A of the Crimes (Sentencing Procedure) Act 1999, a lesser sentence than that imposed is warranted in law.
As Hidden J has observed, the sentence imposed in respect of the indictment offence, the aggravated break, enter and steal offence committed at the home of Mr. Wauchope (five years with a non-parole period of two years and six months) is by no means excessive, having regard to the gravity of that offence including that it was committed whilst the applicant was on bail in respect of the earlier offences. The only challenge made by the applicant in this respect was the fact that it was wholly accumulated upon the non-parole period set in respect of the fourth committal charge.
Whilst giving full weight to the subjective circumstances and the favourable prospects of rehabilitation, I am unable to accept that the sentence is manifestly excessive. The criminality involved in the offences, including, in particular, the fourth offence and the sixth offence, involved multiple and grave breaches of trust involving very elderly and therefore very vulnerable persons who are entitled to the security and the protection which the law intends should be afforded to them. In addition, the offences may be regarded as having been planned offences and, in this respect, with respect, I adopt the observation made by Sully J in his judgment at [11], that the particular assessments made and therein referred to suggest that the applicant undertook the offences in appreciation of what he was doing and that what he was doing was wrong.
In relation to the question of accumulation, I, with respect, also concur with the observations made by Sully J in his judgment at [9].
I have accordingly concluded that no lesser sentence was warranted in law: s6(3) of the Criminal Appeal Act 1912.
Finally, in relation to the second ground which contends that the sentencing judge failed to give sufficient effect to the finding of special circumstances in the overall sentence, I accept the submission made by the Crown in its written submissions at [34] that the mere fact that a non-parole period is close to 75% of the head sentence does not necessarily result in appealable error. It remains, on a case by case basis, a question of considering whether the structure of the sentences where there are multiple offences involved fails to carry out the intention of the sentencing judge and whether the non-parole period or effective non-parole period is sufficient to reflect the objective gravity of the offending. Furthermore I accept the submission that it is an important factor in this respect to consider the length of the parole period or effective parole period in each case and whether that is sufficient to give effect to the applicant’s rehabilitation. I consider that it does.
Whilst the applicant has submitted that the effective non-parole period is 73.63% of the overall sentence, I do not consider what is described as the “minimal variation of the statutory ratio” is inconsistent with the sentencing judge’s reference to the applicant requiring ongoing rehabilitation into the community upon his release against the background of the overall structure and effect of the sentences imposed. I, accordingly, would dismiss this ground of appeal.
I accordingly agree, as proposed by Sully J, that the appropriate orders on this application are to grant leave to the applicant to appeal against sentence but to dismiss the appeal.

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LAST UPDATED: 03/05/2006