Parker v The Queen
[2018] ACTCA 58
•4 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Parker v The Queen |
Citation: | [2018] ACTCA 58 |
Hearing Date: | 13 November 2018 |
DecisionDate: | 4 December 2018 |
Before: | Elkaim, Loukas-Karlsson JJ and Robinson AJ |
Decision: | See [29] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifestly excessive |
Cases Cited: | CX v The Queen [2017] ACTCA 37 O’Brien v The Queen [2015] ACTCA 47 |
Parties: | Beau Parker (Appellant) The Queen (Respondent) |
Representation: | Counsel Ms E McLaughlin (Appellant) Mr S Drumgold (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 6 of 2018 |
Decision under appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 14 February 2018 Case Title: R v Parker Citation: [2018] ACTSC 55 |
THE COURT:
On 14 February 2018, the appellant was sentenced by Mossop J for 16 offences to which he had previously pleaded guilty.
The appellant received a total sentence of five years, nine months and eight days. His Honour set a non-parole period of three years, expiring on 8 March 2020.
The appellant has no complaint with the individual sentence for each offence. Rather he says that the total sentence is manifestly excessive and that his Honour failed to have regard to principles of totality. These two assertions make up the two grounds of appeal. The appellant accepts that there is a degree of overlap between the grounds although success in one might not dictate success in the other.
The parties agreed that resolution of the appeal, as dictated by the relevant authorities, required an answer to the question: was the total sentence unreasonable and plainly unjust?
The individual sentences were as follows:
(a)CC 2017/8620: joint commission burglary, the offender was sentenced to six months’ imprisonment commencing on 9 March 2017 and expiring on 8 September 2017.
(b)CC 2017/8619: joint commission theft, the offender was sentenced to six months’ imprisonment commencing on 9 March 2017 and expiring on 8 September 2017.
(c)CC 2017/6378: burglary, the offender was sentenced to 11 months and seven days’ imprisonment commencing on 9 June 2017 and expiring on 15 May 2018.
(d)CC 2017/6791: theft, the offender was sentenced to nine months’ imprisonment commencing on 9 June 2017 and expiring on 8 March 2018.
(e)CC 2017/6792: theft, the offender was sentenced to nine months’ imprisonment commencing on 24 July 2017 and expiring on 23 April 2018.
(f)CC 2017/6793: theft, the offender was sentenced to nine months’ imprisonment commencing on 9 September 2017 and expiring on 8 June 2018.
(g)CC 2017/11142: burglary, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 9 March 2018 and expiring on 23 April 2019.
(h)CC 2017/11301: theft, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 9 March 2018 and expiring on 23 April 2019.
(i)CC 2017/12129: damage to property, the offender was sentenced to three months’ imprisonment commencing from 9 March 2018 and expiring on 8 June 2018.
(j)CC 2017/4495: burglary, the offender was sentenced to one year, one month and 14 days’ imprisonment commencing on 23 January 2019 and expiring on 7 March 2020.
(k)CC 2017/5799: theft, the offender was sentenced to 11 months and seven days’ imprisonment commencing on 23 January 2019 and expiring on 29 December 2019.
(l)CC 2017/4441: burglary, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 8 December 2019 and expiring on 22 January 2021.
(m)CC 2017/4744: theft, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 8 December 2019 and expiring on 22 January 2021.
(n)XO 2017/31243: robbery, the offender was sentenced to one year, one month and 15 days’ imprisonment commencing on 23 October 2020 and expiring on 7 December 2021.
(o)CC 2017/3543: burglary, the offender was sentenced to one year, three months and nine days’ imprisonment commencing on 8 September 2021 and expiring on 16 December 2022.
(p)CC 2017/3544: theft, the offender was sentenced to one year, three months and nine days’ imprisonment commencing on 8 September 2021 and expiring on 16 December 2022.
An examination of the above sentences reveals a combination of both concurrency and accumulation of the terms of imprisonment. It should be noted immediately that when a person is being sentenced for a multitude of offences it can be very difficult for a court to arrive at a sentence structure which has any mathematical logic. The intent of the court should be to ensure that the overall sentence, no matter how arrived at technically, does not offend principles of totality, in particular to ensure that an offender does not receive an overall sentence so crushing, that it is out of proportion to the criminality involved.
In CX v The Queen [2017] ACTCA 37 at [27] and [28], this Court said:
27. The primary judge was aware that he was required to impose individual sentences and then structure them “to achieve a just totality of all the sentences that need to be imposed.”
28. Having imposed sentences that were appropriate for the individual offences, the primary judge had to accumulate the sentences to achieve a total sentence that appropriately reflected the total criminality. 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: JT v R [2012] NSWCCA 133 at [73]; ZA v The Queen [2017] NSWCCA 132 at [88]; Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [42]. In O’Brien v The Queen [2015] ACTCA 47 at [26], this Court set out the principles in relation to sentencing for multiple offences to achieve an appropriate overall sentence.
In O’Brien v The Queen [2015] ACTCA 47 at [26] the Court stated:
26. 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 R (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 R (2007) 169 A Crim R 41 at [27].
The next step is to look at the criminality involved in this case. The appellant submitted that the combination of subjective and objective factors within the facts of this matter led to an inescapable conclusion that the overall sentence was simply too long. In other words, it was unreasonable and plainly unjust.
10. The factors highlighted by the appellant included the following:
(a)The offences occurred in a short period of time, namely between 9 February 2017 and 6 March 2017.
(b)The theft charges were aligned with the burglary charges so that if viewed as separate incidents, there were effectively six burglary/theft incidents and one robbery. There are actually two more thefts than there were burglaries but that was because three theft charges arose out of one burglary (CC 2017/6738).
(c)The offences all took place within a limited geographical zone.
(d)Although all of the burglaries were of residential premises, they took place during daylight hours when the residents were absent.
(e)On the one occasion that a resident returned during the burglary, the appellant fled without confronting the resident.
(f)The motivation for all of the offences was to obtain money to purchase illicit drugs.
(g)The need for drug money followed shortly after the appellant relapsed into use of drugs.
(h)The trigger sparking the relapse was the appellant’s loss of his mother shortly after the loss of his grandparents.
(i)The appellant had endured a very difficult childhood. He had witnessed his mother being abused by his stepfather.
(j)The appellant had himself been abused over a four-year period by a family member.
(k)He first became involved with drugs and alcohol at the tender age of 11.
(l)Although he had a criminal record it was ‘old’ and he had led a crime free existence for many years.
(m)He had never previously been in prison.
(n)He had abstained from drug use for 13 years.
11. The Crown responded by highlighting the sentencing judge’s findings on the objective severity of the offences. His Honour had found that the burglaries and thefts fell in the mid-range of objective seriousness with the exception of one burglary which was in the low to mid-range. The robbery was also found to be in the low to mid-range.
12. The burglaries were committed on separate dates and there needed to be a degree of accumulation in order to ensure that the appellant was punished for the separate offences. The fact that the offences occurred close to each other in time did not necessarily dictate any degree of concurrency.
13. In addition, the Crown pointed out the significant penalties for the various offences and that, although perhaps somewhat amateur in execution, the offences did involve a degree of planning. Further, the value of the goods taken in the burglaries was in excess of $67,000, noting that the value of a certain amount of the goods had never been assessed. Some of these goods, as noted by the sentencing judge, had a significant sentimental value.
14. The respondent submitted that there was “nothing particularly compelling in the appellant’s subjective circumstances that justified the imposition of a significantly reduced penalty” ([52] of the written submissions).
15. After referring to a number of authorities the respondent submitted, at [68]:
The authorities make clear that rather than comparing sentence structures for different matters the proper approach is to look at the head sentence and see whether it reflects the totality of criminal behaviour.
16. The Court agrees with the respondent’s summary but disagrees that the head sentence has reflected the totality of the criminal behaviour.
Consideration
17. The sentencing structure imposed by Mossop J was discretionary and the Court will not lightly intervene. However, in this case we have come to the conclusion that, looking at all of the factors, both objective and subjective, and including the assessments of objective seriousness, that the sentence is unreasonable and plainly unjust.
18. This is a conclusion that is based not on any one or more of the factors that have been emphasised by the respective parties but rather on this Court’s impression of the whole of the evidence that was before the sentencing judge and the criminality involved.
19. It is perhaps important to note that an issue, which arose during the hearing of the appeal, was whether or not the sentencing judge had made a finding that the appellant’s relapse into drug taking was caused by the death of his mother. There is no doubt that his Honour had material before him which suggested that was the case and his Honour refers to the appellant’s family at [30], [37] and [42]. In addition, his Honour had before him the letter written by the appellant in which he states:
I just want you to know after losing my nan and then my pa and then nursing my mother to death from cancer in a 3 year period and then loosing (sic) my accommodation I went off the rails and made some really bad life choices.
20. The sentencing judge made no specific finding as to the factors causing the commission of the offences other than the appellant’s direct “need to finance his methamphetamine habit”. There was no ground of appeal arguing that the failure to make additional findings on this issue was an error.
21. The absence of a specific finding, as to the triggering mechanism or indirect cause for the appellant’s consumption of methamphetamine, does not affect the outcome of this appeal.
22. The sentencing judge at [41] makes a finding which is favourable to the appellant on this issue. His Honour said:
The current offences occurred over a relatively confined period and appear to have been associated with a need to finance a methamphetamine habit. They therefore do not represent an ongoing pattern of behaviour on the part of the offender, but rather a temporary departure from a life that was led in a reasonably law-abiding manner. (Emphasis added)
23. On a resentence, the Court will act on this finding that the criminality occurring in the period 9 February 2017 to 6 March 2017 involved a degree of departure from a life that was previously led in a reasonably law-abiding manner.
24. The Court has had access to an affidavit affirmed by the appellant on 13 November 2018 (Exhibit A). In this affidavit the appellant states that he has been prescribed methadone which he is taking at consecutively reduced doses. He has also completed the ADAPT Program to help combat his drug and alcohol addictions. He refers to being under “strict protection” because of his homosexuality.
25. The respondent did not apply to rely on any further evidence in case the Court resentenced the appellant.
26. As noted above, the appellant did not complain about the length of any of the individual sentences. There is no reason to adjust any of these sentences. The Court’s view, as expressed above, is essentially that the overall sentence was too long. The Court is of the view that an appropriate total sentence should be four years and six months, with a non-parole period of two years and four months. This applies approximately the same percentage as that adopted by the sentencing judge (52%).
27. In order to achieve the above intended result, but remain consistent with the principles expressed above, the most convenient method will be to allow the appeal in respect of Charges 2017/31243, 2017/3543 and 2017/3544 and adjust their commencement dates.
28. Instead of the period of imprisonment for Charge 2017/31243 commencing on 23 October 2020, it will commence on 26 February 2020 and end on 9 April 2021. Imprisonment for Charges 2017/3543 and 2017/3544 will commence on 31 May 2020 (instead of 8 September 2021) and end on 8 September 2021.
29. The Court makes the following orders:
(i)The appeal is allowed.
(ii)The sentences, including their commencement and end dates, in respect of Charges 8620, 8619, 6378, 6791, 6792, 6793, 11142, 11301, 12129, 4495, 5799, 4441 and 4744 (all of 2017) are confirmed.
(iii)The length of the sentences in respect of Charges 31243, 3543 and 3544 (all of 2017) are confirmed.
(iv)The sentence of imprisonment for Charge 31243 of 2017 is to commence on 26 February 2020 and end on 9 April 2021.
(v)The sentences of imprisonment for Charges 3543 and 3544 of 2017 are to commence 31 May 2020 and end on 8 September 2021.
(vi)The overall sentence is 4 years and 6 months, commencing on 9 March 2017 and ending on 8 September 2021.
(vii)A non-parole period of 2 years and 4 months is set, commencing on 9 March 2017 and expiring on 9 July 2019.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Acting Justice Robinson. Associate: Date: 4 December 2018 |
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