Newton v The Queen
[2014] NSWCCA 41
•2 April 2014
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Criminal Appeal
New South Wales
Case Title: Newton v R Medium Neutral Citation: [2014] NSWCCA 41 Hearing Date(s): 24 March 2014 Decision Date: 02 April 2014 Before: Macfarlan JA at [1]
Adamson J at [2]
Bellew J at [57]Decision: Leave to appeal granted.
Appeal dismissed.Catchwords: CRIMINAL LAW - sentences - totality principle - accumulation of sentences - whether sentence was manifestly excessive - break and enter - drive whilst disqualified - lengthy criminal record Legislation Cited: Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999, s 21A, s 44.Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Hayes [1984] 1 NSWLR 740
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159Category: Principal judgment Parties: Brett Ian Newton (Appellant)
Regina (Respondent)Representation - Counsel: Counsel:
C Smith (Applicant)
Ms H Wilson SC (Respondent)- Solicitors: Solicitors:
SE O'Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)File Number(s): 2012/336647 Decision Under Appeal - Before: Arnott DCJ - Date of Decision: 16 May 2013 - Court File Number(s): 2012/336647 Publication Restriction: Nil
Judgment
MACFARLAN JA: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence passed by Judge Arnott in the District Court on 16 May 2013 of 3 years' imprisonment with a non-parole period of 18 months following his plea of guilty to break and enter a dwelling house and commit a serious indictable offence (stealing) in contravention of s 112(1) of the Crimes Act 1900 (NSW). A 25% discount was allowed for the plea of guilty. The offence carried a maximum penalty of 14 years imprisonment.
Facts
The agreed facts were summarised on the remarks on sentence.
On 7 am on Thursday 25 October 2012, the applicant went to a home in Narellan which was occupied by an acquaintance. He opened a glass sliding door to a granny flat at the rear of the home. He stole an iPod, mobile phone and $50 cash. He also stole an unregistered trail bike which he rode from the premises. Later that morning, the victim discovered that the property was missing from the granny flat and confronted the applicant. The applicant denied stealing the property. The victim made enquiries with his mobile phone carrier and ascertained that the applicant had used the victim's phone to call his mother. When the victim phoned the applicant, the applicant told him where the stolen property was. The stolen property, apart from the mobile phone, was recovered.
Fingerprints, subsequently found to be the applicant's, were located at the victim's residence. The applicant was arrested four days later and interviewed. He denied the offence. He sought to explain the presence of his fingerprints by saying that the victim had showed him motorbikes on 24 October 2012.
Sentences passed for prior and related offending
Prior offending
On 24 October 2012, the day before the commission of the subject offence, the applicant came before the Campbelltown Local Court for nine separate offences, including:
(1)Drive whilst disqualified (2 counts);
(2)Goods in custody suspected of being stolen (2 counts);
(3)Custody of knife in a public place;
(4)Police pursuit- not stop- drive at speed;
(5)Take and drive conveyance without consent of the owner;
(6)Obtain property by deception.
The Magistrate made Intensive Correction Orders (ICOs) in respect of the applicant for a total period of 15 months commencing on 24 October 2012 and concluding on 23 January 2014 and added a further two years to the then current period of disqualification from driving.
On 5 December 2012, the ICOs were revoked and custodial sentences imposed in their place for the nine separate offences (the ICO offences). The sentences were expressed to commence on 29 October 2012.
Related offending
In addition to the subject offence, the applicant committed two other offences on 25 October 2012, for which he was sentenced on different occasions. He committed the offence of driving the trail bike while disqualified (the DWD offence) for which he was sentenced on 18 February 2013 by the Local Court to a term of imprisonment of one year, commencing on 25 October 2012, with a non-parole period of 9 months. He also committed the offence of illegal use of conveyance (bike) which was the trail bike he stole from the premises. He was sentenced in the Local Court on 21 May 2013 to a term of imprisonment of nine months that commenced on 21 May 2013 and was wholly concurrent with other custodial sentences. This offence is mentioned for completeness but need not be referred to again since the sentence was imposed five days after the sentence the subject of this application was imposed.
The sentence hearing
At the sentence hearing for the subject offence the Crown tendered, without objection, a bundle of documents that included committal documents, a statement of facts, the applicant's criminal history and reports of his time in custody.
The applicant tendered a psychological assessment report from Daniel Hopkins, a clinical psychologist.
The applicant gave evidence at the sentence hearing. He verified the history he had given to Ms Hopkins in which he had sought to justify his offending by saying that the victim had propositioned a woman with whom the applicant had previously enjoyed a casual intimacy. According to the applicant, the woman asked him to steal the victim's motorbike in order to fund her supply of drugs. Ms Hopkins recorded:
"Mr Newton noted that he made an impulsive decision to comply with her request, as motivated by his anger and annoyance at this individual's behaviour towards his casual partner."
The remarks on sentence
The sentencing judge found the seriousness of the offence to be at the lower end of the spectrum of offences of this type. Few items of limited value were stolen. There was no damage to property. There was negligible planning. All the property, but for the mobile phone, was recovered, with some assistance from the applicant, who was unable to recover the mobile phone.
His Honour noted that the applicant was nearly 42 years old and had been in custody for most of the past 23 years. His criminal record dated back to the Children's Court in 1985. Most of the offences involved breaking and entering.
The sentencing judge recorded that the applicant is an only child, who has never known his biological father. His mother had a problem with alcohol which led to him being brought up by his grandmother. He truanted from school and left school altogether in Year 9. Since he was about 11, he has had longstanding difficulties with drugs.
His Honour, in his remarks on sentence, referred to Ms Hopkins' opinion in the following terms:
She also points out that it is clear that he has difficulty, not only with regulating his emotions but with chronic substance abuse and community adjustment problems. He needs intervention to assist him with these aspects. She also considers that the present offence suggests a level of impulsivity and a disregard for returning to the custodial environment. She notes, and he said in evidence quite frankly, that he finds custody provides a regulated life for him in which he is well maintained and responds to the boundaries and routine, which is not to be found in the community. Ms Hopkins expresses concern that if he is released and not adequately supported that his recidivism will increase.
The sentencing judge considered the applicant to be remorseful. His Honour considered the applicant to have poor prospects of rehabilitation.
In the remarks on sentence, his Honour referred to the sentence imposed for the ICO offences and noted the parole review date of 12 June 2013. His Honour also noted that the applicant could not be released from custody in any event until 24 July 2013, the expiry date of the non-parole period for the DWD offence. Because of its significance to the application, I propose to set out the following extract from the remarks:
Mr Townsend [counsel for the applicant at the sentence hearing] suggested that the sentence for the present offence could be commenced from that day [24 July 2013] and, if that will occur, it would incorporate a punishment period from 5 December 2012 to 24 July 2013 in respect of those nine separate offences which were the subject of the ICOs. I am attracted by that submission, having regard to a number of factors. Firstly, the period of time he has spent in custody continuously, that I have already referred to, for the past many years and recognising that the severity of the sentence increases as the sentence is lengthened at a greater rate than the overall length of the sentence (Clinch v R (1994) 72 A Crim R 301 at 306 per Malcolm CJ). Secondly, the appropriate sentence that would have been imposed had I been sentencing him for the nine separate offences and the present offences at the same time, in other words, the principle of totality.
It was submitted by Mr Townsend, referring to the well known judgment of King CJ in the Queen v Osenkowski (1982) 30 SASR 212 at 212-213, that despite the seriousness of the offence and his past record of offending, that this was an occasion for the extension of mercy. I, quite frankly, think that in view of the fact that his offence occurred the day after the imposition of the intensive correction orders means that he really had that sort of chance for mercy at that time and he has foregone that opportunity.
The application for leave to appeal
The applicant seeks leave on the following grounds:
(1)The sentencing judge erred in failing to have proper regard to the totality principle in his accumulation of sentences.
(2)The sentence is manifestly excessive.
Ground 1: accumulation of sentences
Parties' submissions
Mr Smith, on behalf of the applicant, submitted that the sentencing judge misapprehended the submission put on his behalf as to the appropriate commencement date of the sentence and that his Honour failed to appreciate that the DWD offence was part of the same overall criminality. He contended that, on those two bases, the sentencing judge erred in wholly accumulating the sentences for the two offences when some degree of concurrence was called for.
In support of his contention that the sentencing judge had, in wholly accumulating the sentence for the DWD offence with the subject offence, Mr Smith relied on the following passage which is taken from the extract from the remarks on sentence reproduced above:
Mr Townsend suggested that the sentence for the present offence could be commenced from that day [24 July 2013] and, if that will occur, it would incorporate a punishment period from 5 December 2012 to 24 July 2013 in respect of those nine separate offences which were the subject of the ICOs. I am attracted by that submission, having regard to a number of factors.
He submitted that this part of the remarks revealed the following three errors:
(1)The period of punishment for the sentence imposed for the ICO offences commenced on 29 October 2012, and not 5 December 2012, which was the date on which sentence was passed.
(2)The failure to mention that the vehicle on which the applicant drove while disqualified was in fact the vehicle he had stolen as part of the present offences showed that his Honour did not appreciate the connection between the offences.
(3)The applicant did not in fact submit that the sentence for the present offences should commence on 24 July 2013.
The applicant submitted, in respect of (3), that his Honour intended to accept the applicant's counsel's submission, but in fact accepted a submission which the applicant's counsel had not actually made and was therefore in error. Mr Smith emphasised the following sentence from the remarks, which immediately followed the one extracted above:
I am attracted by that submission, having regard to a number of factors.
The Crown submitted that the sentencing judge was aware of the connection between the DWD and the subject offence, as shown by his Honour's narrative of facts. The Crown contended that it was an appropriate exercise of the sentencing discretion for the sentence for the subject offence to begin following the expiry of the non-parole period for the DWD offence. The Crown submitted that the criminality of each was distinct, separate punishment was warranted and that it was open to the sentencing judge to accumulate the respective sentences.
The Crown submitted that the reasons of the sentencing judge which were delivered orally on the same day as the hearing, ought not be parsed and analysed as if the judgment had been reserved.
(1)
Reasons
The relevant principles are well established. There is no general rule that determines whether sentences ought be dealt with concurrently or consecutively. The principle of totality is an overriding principle by reference to which sentences are to be measured. It requires the sentencing judge to consider the total criminality involved not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308 (McHugh J).
Where a sentencing judge imposes a sentence on an offender who has already been sentenced by another judge, the second judge must regard the first sentence as an appropriate exercise of the first judge's discretion and not seek to reduce or increase it by the sentences the second judge imposes: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [99] (Spigelman CJ, Whealy and Howie JJ).
The effect of these principles is that the substantial question for this Court is whether the sentence imposed is manifestly excessive to reflect the respondent's criminal conduct, in light of the other offences for which he was sentenced by the Local Court and the sentences imposed for that offending.
However, because the applicant has sought leave to appeal on two grounds, the first of which raises additional issues, the question whether the sentence imposed is manifestly excessive will be dealt with separately when the second ground is addressed.
In order to assess the first ground it is important to have regard to the totality of sentences imposed and the totality of offending. These are set out in the following table:
[1]
The documents tendered by the Crown at the sentence hearing showed that the applicant was released from Parklea prison on 24 October 2012. On 29 October 2012 he was arrested for the subject offence, the DWD offence and an additional offence of take and use conveyance, all of which were committed on 25 October 2012. He was admitted to Metropolitan Remand A on 1 November 2012. On 5 December 2012 the sentence imposed by the Local Court for the ICO offences was expressed to commence on 29 October 2012.
If, as contended by the applicant in (1) above, his Honour made an error in the passage set out above as to the commencement date of the ICO sentence, it amounted to a period in the order of six weeks. However, as the table set out above shows, the applicant would have been in custody anyway for that period of the sentence passed for the DWD offence, since the sentences for the ICO and DWD offences were, except for four days, wholly concurrent. Therefore any error does not appear to have had any material effect on the length of the applicant's custody.
As to the error contended for in (2) above, I am not persuaded that his Honour failed to appreciate that the bike the subject of the DWD offence was one of the items stolen from the premises that were broken into. Although when referring to the sentence imposed for the DWD offence, his Honour did not specifically mention that this had occurred with the trail bike that had just been stolen, his Honour had already noted, in the summary of facts narrated at the commencement of the remarks on sentence:
"He also stole an unregistered trail bike which he rode from the premises."
There was no particular reason for his Honour to repeat that observation when considering whether there ought be any accumulation between the DWD offence and the subject offence and, if so, whether it ought be partial or total.
I accept the Crown's submission that the criminality is separate. Had the applicant been licensed to ride the trail bike, then, whether it was stolen or not, he would not have committed the DWD offence. If he had not stolen the trail bike, but driven it while unlicensed, he would have committed the DWD but not the subject offence in respect of it. In these circumstance it cannot be inferred from the accumulation of the two offences that there was any misapprehension by the sentencing judge as to the connection between them.
Whether the error contended for in (3) above amounts to an error is to be determined by reference to his Honour's reasons in light of the transcript of the sentence hearing. I do not accept the applicant's submission that his Honour mistakenly attributed the substance of the whole of this sentence to Mr Townsend:
Mr Townsend suggested that the sentence for the present offence could be commenced from that day [24 July 2013] and, if that will occur, it would incorporate a punishment period from 5 December 2012 to 24 July 2013 in respect of those nine separate offences which were the subject of the ICOs.
Mr Townsend's primary submission, as the remarks on sentence show, was that there should be a, to use his words in oral submission, "generous backdate" on the basis that the applicant was "at the crossroads". His Honour rejected the submission and found that the applicant had, by committing the subject offence the date after the imposition of the ICOs, foregone any opportunity for mercy.
The submission to which his Honour was attracted was made in the course of an exchange between bench and bar about the effect of the parole review date of 12 June 2013 on the sentences for the ICO offences, which expired on 23 January 2014. This exchange occurred in the Crown's submissions after Mr Townsend had concluded his submissions. Mr Townsend's submission at that point was:
TOWNSEND: I'm not suggesting that's what your Honour would [do] not but I'm just saying that would be an effect of it and one of the things I could invite your Honour to consider is that the - the sentence imposed by the Local Court on 18 February 2013 for the driving whilst disqualified of the motorbike that was stolen in these matters, that sentence expires or the non parole period expires on 24 July 2013. Your Honour could consider - could consider that as a date upon which your Honour could commence these sentences or a date before then, I would respectfully submit. But that could be a key date and not really worry too much about 23 January 2014 because ultimately whatever your Honour does, the parole authority could release him on that date or before depending on what happens at their parole review on 12 June and no doubt if they refuse to, they might set a non parole period then or they might not, they might put another review date in you know, in another three months or something, I don't know.
In my view, a fair, and correct, reading of the passage from the remarks on sentence in light of what occurred at the hearing is that Mr Townsend submitted that a starting point for the commencement of the sentence for the subject offence could (but not that it should) be 24 July 2013. Only the first part of the sentence that precedes the word "and" relates to Mr Townsend's submission. The second part of the sentence records the sentencing judge's calculation of the effect of commencing the sentence on that date. This date, 24 July 2013, was the latest date on which the sentence for the subject offence could have been commenced so as to avoid a potential gap in incarceration in the event that the applicant were released to parole either for the ICO offences or the DWD offence. A commencement date of 24 July 2013 effectively shortened the sentences for the ICO and DWD offences because of the concurrence after that date. A commencement date of 24 July 2013 was more advantageous for the offender than 24 January 2014, which was the date on which the sentences for the ICO offences expired.
In my view, his Honour meant, by the use of the word "attracted", that he considered it to be appropriate to commence the sentence for the subject offence before the expiry of the ICO and DWD offences, although not before the expiry of the non-parole period for the DWD offence or the parole review date for the ICO offences. In other words, his Honour was persuaded by Mr Townsend that the commencement date ought be 24 July 2013 and not 24 January 2014. His Honour did not, in my view, mean that he accepted Mr Townsend's primary submission, or that he understood it to be such, rather than an acceptance by Mr Townsend of what was open in terms of sentencing options as the passage from the transcript set out above shows.
As any judge who is required to give oral judgments immediately, or shortly, after a substantive hearing knows, it is not easy when delivering reasons orally to select the most apposite words or to construct sentences which not only reveal one's reasoning in a lucid way but which also withstand rigorous syntactic analysis. In such circumstances, one has neither the luxury of time for contemplation nor the chance to improve a draft by changing a word, revising the structure of a sentence or re-ordering sentences or paragraphs. Yet the timely administration of justice in New South Wales depends on judges delivering oral judgments on the same day as hearing evidence and submissions, as the sentencing judge did here. Although the parties are entitled to reasons for decision, they are not entitled to have those reasons judged by standards of expression that could not reasonably be attained by any but the exceptionally eloquent. The principle of interpretation that applies to legislation, contracts, wills and other documents, that they should be read as a whole, also applies to judgments, including remarks on sentence.
In my view, the remarks of the sentencing judge, fairly read as a whole, were sufficient to demonstrate that the criticisms made of them were, with the exception of the 6-week period ((1) above), not soundly based.
For completeness I add that, had it not been for the sentence imposed for the ICO offences, it may be that the sentencing judge would not have accumulated the DWD and the subject offence, in the way that his Honour did or that Mr Townsend would not have referred to 24 July 2013 as a possible commencement date. However, in my view, the remarks on sentence show that his Honour appreciated the importance of not derogating from the sentences that had already been imposed for the ICO offences and, to a lesser extent, the DWD offence (since it was at least related to the subject offence).
In my view, the first ground has not been made out.
Ground 2: manifest excess
Parties' submissions
Mr Smith submitted that the subject offence was relatively minor and did not, on any proper view, warrant a sentence of four years, which was the notional sentence before the discount of 25% for the plea of guilty was applied. He referred to the lack of damage to property, the relatively inconsequential value of the items taken and the circumstance that all but the mobile phone had been restored to the victim. He also relied on the assistance given by the applicant in the recovery of the items.
The Crown submitted that the seriousness of the offence of break enter and steal was to be adjudged by reference to the maximum penalty of 14 years. The sentencing judge's assessment that the subject offence was at the lower end of the range was consistent with the starting point of four years. The Crown also contended that the finding of special circumstances and the concomitant adjustment of the ratio of the non-parole period to the total sentence were beneficial for the applicant since his custodial term was accordingly reduced.
Reasons
Questions of accumulation, concurrence and totality have been considered above. They are also relevant, and ought be read as applicable, to the second ground.
No challenge was made to the sentencing judge's assessment that the subject offence fell within the lower end of the range. However, that finding does not mean that the subject offence was itself trivial or undeserving of the sentence imposed. The maximum penalty is a relevant consideration and indicates the seriousness with which Parliament views such offences: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
The seriousness of the offence of break enter and steal was explained by this Court in R v Hayes [1984] 1 NSWLR 740 at 742 per Street CJ (Lee and Hunt JJ agreeing) in the following terms:
Householders cannot leave their homes in confidence that the contents will be safe. The trauma of re-entering a home that has been ransacked is in itself no light matter. This can cause a continuing uneasiness and disquiet at the knowledge that an
unknown person has invaded the sanctity of the home. Added to this is the emotional distress at the loss of property, including treasured items that frequently have a sentimental value far in excess of their intrinsic worth. Even those who are not immediate victims of burglary nevertheless feel its effect in the escalating premiums charged by the insurance industry for insuring against the risk of its occurrence.
The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts.In the present case, a mobile phone was also taken from the granny flat and not recovered. Such devices commonly contain personal information and contact details of family, friends and associates. Their theft involves an invasion of privacy. The personal value and importance of such items to their owners is almost invariably substantially greater than their resale value.
The subject offence was committed when the applicant was on conditional liberty. His almost instantaneous recidivism, following the grant of the ICOs less than 24 hours before the commission of the subject offence, disclosed a disregard for the law which might be explained, but not excused, by his difficulties with drugs. He had a very lengthy criminal record of similar offences. These matters, as the Crimes (Sentencing Procedure) Act 1999 provides, are aggravating factors: s 21A(2) (d) (record of convictions for similar offences); and s 21A(2)(j) (subject offence committed while applicant was on conditional liberty).
Furthermore, the sentencing judge adjusted the ratio of the non-parole period to the total sentence from the statutory ratio of 75% (s 44(2) of the Crimes (Sentencing Procedure) Act) to 50%, thereby reducing the time in custody and increasing the time subject to supervision in the community on parole.
The starting point for the sentence, four years, might be regarded as at the higher end of the range appropriate for an offence such as the subject one. However, in the circumstances, the sentence was not excessive.
The length of the sentence passed for the subject offence and the way in which it was structured does not, in my view, reveal any error in the exercise of the sentencing discretion, either in the process or in the result. Rather, it shows, in my view, that the sentencing judge was appropriately concerned to make provision for a relatively lengthy period of post-release supervision on parole to give the applicant some, and perhaps the best, prospect of overcoming the problems with drug addiction that have, throughout his adult life, given rise to his apparently intractable recidivism.
Accordingly, in my view, ground two has not been made out.
Proposed orders
I propose the following orders:
(1)Leave to appeal granted.
(2)Appeal dismissed.
BELLEW J: I agree with the orders proposed by Adamson J, for the reasons which her Honour has given.
**********
Amendments
03 Apr 2014 inserted table Paragraphs: 30
[1][2014] NSWCCA 41 - table
5
0