Pettersen v The Queen

[2013] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Pettersen v R [2013] NSWCCA 20
Hearing dates:	5/02/2013
Decision date:	13 February 2013
Before:	Beazley JA at [1] Fullerton J at [2] Beech-Jones at [52]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent to steal - conspiracy - attempt - whether misdescription of offence and applicable penalty infected sentence - Muldrock principles
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Bell v R: Jelisavac v R [2009] NSWCCA 206 Butler v R [2012] NSWCCA 23 Diesing v R [2007] NSWCCA 326 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v R [2011] HCA 39; 244 CLR 120 R v Ehrlich [2012] NSWCCA 38 Savvas (No 2) v R (1991) 58 A Crim R 174 Stewart v R [2012] NSWCCA 183 Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
Category:	Principal judgment
Parties:	Neil Andrew Pettersen (Applicant) The Crown (Respondent)
Representation:	Counsel: K Averre (Applicant) H Wilson/J Michie (Crown) Solicitors: B Duchen (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/287342
Decision under appeal	Date of Decision: 2012-04-19 00:00:00 Before: Norrish QC DCJ

Judgment

1. BEAZLEY JA: I agree with the reasons of Fullerton J and her Honour's proposed orders. I also agree with the additional remarks of Beech-Jones J.

1. FULLERTON J: This is an application for leave to appeal against a sentence imposed in the District Court on 19 April 2012 in respect of an offence with which the applicant was charged in September 2011 and to which he had entered a plea of guilty in the Local Court on 28 February 2012. That offence will be referred to as "the conspiracy charge".

1. The sentence imposed on a second offence, also the subject of charge in September 2011 and a plea of guilty, was not challenged on the application. That offence will be referred to as "the attempt charge".

1. The conspiracy charge attracted a sentence of imprisonment of 6 years, which, after a finding of special circumstances, comprised a non-parole period of 3 years and a balance of term of 3 years. It was laid in the following terms:

On 20 March 2011 at Rosehill in the State of New South Wales, [the applicant] did conspire to break and enter the warehouse of The Perfume Network situated at 2/142 James Ruse Drive Rosehill, and then in the said The Perfume Network warehouse did conspire to commit a serious indictable offence, to wit, steal in circumstances of aggravation, to wit, he was in company with other persons, namely Yashar Gogani and other unknown persons.

1. The attempt charge, committed two months after the conspiracy, related to an attempt to commit an aggravated break and enter with intent to steal from different commercial premises. That offence was laid contrary to s 113(2) and s 344A of the Crimes Act 1900 and carried a maximum period of imprisonment of 14 years.

1. That offence was laid in the following terms:

On the 14th day of May 2011 at Belrose, in the State of New South Wales, [the applicant] did attempt to break a certain building, to wit, the warehouse of Bright Point within the curtilage of the dwelling warehouse belonging to Bright Point situated at 2 Minna Close Belrose, with intent to commit a serious indictable offence therein, to wit, steal in circumstances of aggravation, to wit, he was in the company of Shawn O'Mealey, Jack Dunn and other unknown persons.

1. The attempt charge was treated by the sentencing judge as the principal offence. After taking into account on a Form 1 three offences of take and drive a conveyance contrary to s 154A(1)(a) of the Crimes Act a fixed term of imprisonment of 3 years and 9 months was imposed. The sentence on the conspiracy charge was partially accumulated on that sentence and an effective sentence of 7 years and 3 months imposed with a non-parole period of 4 years and 3 months.

1. On the appeal the Crown conceded that the conspiracy charge was erroneously treated by the sentencing judge as if it were a breach of s 112(2) of the Crimes Act, carrying a statutory maximum of 20 years imprisonment and attracting a standard non-parole period of 5 years, when a conspiracy to commit the indictable offence of an aggravated break, enter and steal (as with a conspiracy to commit any indictable offence) is a common law misdemeanour to which no statutory maximum penalty or standard non-parole period applies. Properly understood, the penalty for the conspiracy charge was at large subject only to a requirement that the sentence imposed not be excessive (see Savvas (No 2) v R (1991) 58 A Crim R 174).

1. The Crown also conceded that the Crown's submissions on sentence were the source of his Honour's sentencing error. The Crown's misdescription of the offence and the applicable penalty apparently originated in the fact that the conspiracy charge, laid by the issue of a Court Attendance Notice, wrongly cited s 112(2) of the Crimes Act as the section under which the offence was brought. This error was not corrected when the applicant entered his plea of guilty in the Local Court and not detected or corrected by the Crown when the applicant adhered to his plea in the District Court, or during the course of submissions on sentence.

1. The Crown conceded that treating the conspiracy charge on the basis that it in fact attracted a maximum penalty of 20 years imprisonment, as distinct from the statutory maximum for the substantive offence being a reference point or "yardstick" to be utilised by the sentencing judge as an upper limit beyond which the sentence for a conspiracy to commit the offence would not ordinarily extend (Bell v R: Jelisavac v R [2009] NSWCCA 206 at [3] per Price J, with whom Allsop P and Harrison J agreed), was analogous to where a sentencing judge has misstated the maximum penalty for an offence under a criminal statute. It was also accepted that his Honour wrongly referred to a standard non-parole period of 5 years as applying to the conspiracy charge and that this constituted a sentencing error.

1. The Crown accepted that where an error of either kind has been identified, but, importantly, where the error is demonstrated to have had a material impact upon the sentence imposed, the intervention of this Court will be justified, subject only to the operation of s 6(3) of the Criminal Appeal Act 1912.

1. Although the Crown conceded that the applicant should be granted leave to appeal, it was submitted that the application of established sentencing principles, in particular an assessment of the objective seriousness of the conspiracy charge having regard to its duration and the degree of planning and organisation involved, coupled with the fact that the applicant was unable to rely upon any features in mitigation of sentence, necessitated a finding that the sentence was otherwise within an available discretionary range, and that the Court would decline to intervene. In the event the error was shown to have infected the sentence, thereby triggering the operation of s 6(3) of the Criminal Appeal Act, the Crown submitted that no other sentence was warranted in law.

1. The applicant submitted that a different sentence was warranted in law.

The evidence on sentence

1. An agreed statement of facts was tendered upon which the facts were found proved for sentencing purposes.

1. The Crown also tendered the applicant's criminal antecedents and his custodial history which revealed, relevantly for sentencing purposes, that he had been released to parole on 21 July 2010 (eight months before joining the conspiracy) having served the 2 year non-parole period of a sentence of 3 years and 9 months for an offence of aggravated break and enter with intent. A pre-sentence report dated 17 April 2012 was also tendered.

1. The applicant gave evidence on sentence and called evidence from his mother, supported by a letter from the father of his partner. A report from a forensic psychologist was also tendered.

The facts relating to the conspiracy charge

1. Towards the end of 2010 and the beginning of 2011 police suspected that the applicant, together with other persons, was planning to commit unspecified property offences. From January 2011 the applicant's telephone was the subject of lawful interception from which police concluded that the applicant and others were planning to break into commercial premises located in the Rosehill Business Park at Rosehill.

1. On 2 February 2011 police surveillance officers observed the applicant as he and a co-conspirator, Yashar Gogani, drove to a McDonalds restaurant at North Parramatta where they met with another man. The three men then drove to the Rosehill Business Park where The Perfume Network was located. They remained in the area for about 30 minutes undertaking reconnaissance.

1. On 8 March 2011 the applicant and Gogani went to a hardware store at Artarmon where the applicant purchased a large set of bolt cutters, an axe and a pair of gardening gloves, intended for use during the planned break and enter of The Perfume Network. This was confirmed in a number of intercepted telephone conversations.

1. On the late evening of 20 March 2011, Gogani was observed by police to drive to Cammeray, where he met the applicant. Both men then travelled in Gogani's vehicle to North Parramatta. They stopped at a location close to an Isuzu Pantec truck. Shortly after, police saw the applicant driving the Pantec truck in the general direction of Parramatta. Gogani followed in his car.

1. The owner of the Pantec did not know the applicant and had not given permission to him or Gogani to take and use his truck. (This offence was taken into account on sentence in relation to the attempt charge.)

1. The applicant drove the Pantec to Parramatta, arriving shortly before midnight, parking the truck about 150 metres away from The Perfume Network. The applicant left the truck and got into the vehicle driven by Gogani. The men drove away from the scene.

1. Through intercepted telephone communications, police were able to determine that the applicant had been alerted to their presence and the conspiracy was terminated. It was clear from the same telephone calls that the Pantec truck had been stolen in anticipation of the break-in at The Perfume Network.

The facts relating to the attempt charge

1. In the early morning of 1 April 2011 a Mercedes station wagon was stolen from a garage in Cammeray. The car was a high performance vehicle. (This offence was taken into account on sentence in relation to the attempt charge.)

1. Late on the night of 5 May 2011, or in the early hours of the following morning, the rear registration plate was stolen from a Mercedes sedan which was parked in Neutral Bay.

1. On 6 May 2011 investigating police located the stolen Mercedes station wagon on 1 April parked in a private residential garage in Bondi that had been leased by the applicant. The Mercedes had been fitted with the stolen registration plate. Under the authority of a warrant, police covertly installed a listening device and a tracking device in the car. The car was left in the garage.

1. At about 3.30am on 14 May 2011 the applicant was observed by police driving the stolen Mercedes out of the Bondi garage with Shawn O'Mealey as his passenger. The car was tracked travelling to various locations in Sydney. It was apparent from the information received from the listening and tracking devices that the car stopped from time to time, allowing O'Mealey to leave the vehicle and return a short time later. One of the stops was to allow O'Mealey to collect a portable police radio capable of monitoring police radio channels.

1. Eventually the men travelled to Lilyfield where the applicant and O'Mealey met with another person who was driving a stolen Audi RS4 with two male passengers. The two cars then travelled together to a petrol station in Chatswood, where the occupants were filmed by security cameras as they spoke together.

1. Having obtained fuel, the cars proceeded to Belrose. There, the occupants assisted each other to steal a Toyota Hilux utility. (The offence was also taken into account on sentence in relation to the attempt charge.)

1. The three stolen vehicles then travelled in convoy to the site of a commercial warehouse occupied by Brightpoint Australia P/L in Belrose. En route, the applicant was recorded talking about the value of iPhones, and discussing the number of phones in each box.

1. Brightpoint is a telecommunications distributor which stored large quantities of mobile telephones for various telecommunications companies at its warehouse. The warehouse was well secured with 24-hour onsite security, closed circuit camera surveillance, and a perimeter steel fence of some six feet in height.

1. At 4.06am security cameras on the site recorded the Toyota Hilux as it drove at the locked gates to the site, ramming them open. It then drove onto the warehouse site, followed by the Mercedes and the Audi. Once on the premises three of the men used a crowbar to attempt to force entry to the warehouse via a fire door. They were unsuccessful, with the door remaining securely closed.

1. After some minutes spent unsuccessfully attempting to gain access to the building, they rejoined the applicant and left in the Mercedes and the Audi. The Hilux was abandoned at the warehouse.

1. The applicant drove the Mercedes to the residential garage of a unit complex in Cammeray leaving it parked and unattended. The Audi was driven to another location.

1. On 14 May 2011 the surveillance devices that had been installed in the Mercedes were retrieved by police.

1. The applicant was arrested by police on 6 September 2011 and subsequently charged with the attempt and conspiracy charges.

The applicant's criminal antecedents

1. The applicant, who was aged 30 at the time of sentence, had served various custodial sentences for dishonesty offences. In June 2002 he was convicted of a number of break and enter offences, each attracting full-time custody. In February 2003 he was convicted of two offences of robbery whilst armed, and other offences including an aggravated break and enter offence. Whilst on parole for those offences he committed an aggravated break and enter, for which he received a prison sentence of 3 years and 9 months, commencing on 22 July 2007. He was on parole for that offence at the time of the commission of the conspiracy charge (and the attempt charge). His parole was revoked following his arrest. The applicant's balance of parole expired on 21 April 2012. The pre-sentence report also confirmed that the applicant had been supervised by the Probation and Parole Service since 2002, and was subject to supervision at the time of committing both offences.

The applicant's subjective circumstances

1. The applicant's personal and family history was detailed in the pre-sentence report and the report of the psychologist. Although the applicant received relatively high scores on Depression and Anxiety Scales, this was regarded as likely to have been inspired by the uncertainty attending the outcome of the sentencing proceedings. His childhood was described as fragmented as a consequence of the breakdown of his parents' marriage, however his family life was otherwise the source of loving support. On completing Year 10, he left school to find employment. He completed two years of a four-year apprenticeship as a spray painter and, at the time of his arrest, was working with a local council and attending a TAFE welding course part-time. The applicant's family were supportive of him, as was his partner of some years. He had the offer of work upon his release.

1. He told the author of the report that he had committed the offences as a means of "wiping" a $5000 debt plus interest, after he was threatened with consequences for non-payment.

The significance of the misstatement of the maximum penalty and the standard non-parole period

1. The sentencing judge first referred to the maximum penalty of 20 years and the standard non-parole period of 5 years at the commencement of his sentencing remarks when reciting the particulars of the conspiracy charge. He did not refer to the maximum penalty again other than noting, later in his sentencing remarks, that both the maximum penalty, together with the standard non-parole period, operated as a legislative guidepost, as mandated by the High Court's decision in Muldrock v R [2011] HCA 39; 244 CLR 120 at [27]. Treatment of the maximum penalty as a factor which, when taken and balanced with all other relevant factors, operates as a yardstick against which an appropriate sentence might be measured, is consistent with what the High Court in Markarian v R [2005] HCA 25; 228 CLR 357 identified as an uncontroversial statement of primary sentencing principle.

1. As noted above at [10] it is similarly well recognised that the maximum penalty for a substantive offence can function as a useful guide (or yardstick) when sentencing for a conspiracy to commit that offence. Approached in this way, I am not persuaded his Honour's treatment of the maximum penalty on the conspiracy charge as statutorily fixed at 20 years could be said to be productive of error in the imposition of sentence. Although the applicant did not seek the intervention of this Court on this basis, I am confidently of the view that after applying the discount for the plea of guilty a sentence of imprisonment for 6 years for the conspiracy was within his Honour's sentencing discretion, having regard to the scope and object of the conspiracy, the length of time over which it operated and the degree of planning involved in breaking into commercial premises with the objective of stealing a considerable quantity of valuable property. As Simpson J observed in Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [83] it is the organisational nature of a conspiracy and the interrelationship between the various participants, rather than an identification of the role of a particular conspirator by reference solely to the physical acts performed by that person, that is of primary importance when sentencing for a conspiracy.

1. In considering the impact on sentence of what his Honour erroneously believed to be a standard non-parole period of 5 years on the conspiracy charge, it is instructive to set out in full the way his Honour approached the issue:

Of course I am sentencing the offender after a plea of guilty and I am sentencing the offender of course in the context of the decision of the High Court in Muldrock v R which reflected upon the judgment of the Court of Criminal Appeal in R v Way (2004). It noted, amongst other things (between [16] and [29]) the fact that the fixing of a non-parole period is but one part of the larger task in passing appropriate sentence upon the particular offender, fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end point in framing a sentence to which Div 1A applies. I note of course amongst many other matters raised in Muldrock, and discussed in subsequent cases to which I will refer in a moment, that the High Court held that a consideration of s 21A in the context of Pt 4 Div 1A requires an approach that is consistent with the approach to sentencing described by McHugh J in Markarian v R. The judge is required to identify all the factors that are relevant to the sentence, discuss their significance and then make a valued judgment as to what is the appropriate sentence given all the factors of the case...

1. His Honour then proceeded to position the conspiracy within the mid range of objective seriousness referable to the features to which I have already referred. His Honour also took into account the applicant's recruitment of others into the conspiracy and that special equipment had been purchased to achieve the objective of forcing entry to the premises and, as aggravating factors under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999, that the conspiracy was committed whilst the applicant was subject to conditional liberty and that he was motivated by the prospect of considerable financial gain.

1. There being no standard non-parole period applicable to the conspiracy charge, his Honour was not obliged to make an assessment of where within a range of objective gravity or seriousness the offence was located and, in that sense, he has taken into account an irrelevant consideration in his reasoning process. The question remains, however, whether that triggered the operation of s 6(3) of the Criminal Appeal Act. In my view it did not.

1. Although, as Davies J recognised in Butler v R [2012] NSWCCA 23 at [23], there remains a doubt as to whether, after Muldrock, a court is required or permitted to classify, or is prohibited from classifying an offence to which a standard non-parole period applies by reference to low, middle or high range objective seriousness, there was nothing in Muldrock to suggest that a conventional assessment of the extent or degree of objective offending for sentencing purposes should be avoided or, as I see it, whether it can be avoided.

1. In Stewart v R [2012] NSWCCA 183, the degree of specificity with which a sentencing court should determine the degree of objective seriousness in order to permit the appropriate treatment of the standard non-parole period remained unresolved, McClellan CJ at CL at [40] concluding that in order to resolve the issues on that appeal it was not necessary to reach any settled view. His Honour did however expressly agree at [41] with the observations of Johnson J (in dissent) in R v Ehrlich [2012] NSWCCA 38 at [86] where his Honour observed that an assessment of objective gravity was an important element of the process of the instinctive synthesis of the relevant factors in the exercise of a sentencing discretion in the process of imposing a proportionate sentence.

1. In this case, I have no doubt that the sentencing judge's reference to the degree or extent of objective seriousness referable to "a range" was directed to that legitimate sentencing objective (albeit framed in the context of a standard non-parole period).

1. After rejecting the applicant's explanation for his involvement in the conspiracy as untrue, and concluding that little could be said in his favour in mitigation, in particular that he was unable to conclude that the applicant had good prospects of rehabilitation or that he was unlikely to reoffend given his criminal history, his Honour went on to say:

...I approach the matter as the High Court has decreed in Muldrock. The standard non-parole period is a guidepost but not the definitive determinate of what the appropriate non-parole period should be or what the total sentence should be but provides some assistance or guidance. In any event, I have concluded in relation to that offence, bearing in mind I am required, as the authorities make clear, to fix a non-parole period in relation to it, that there are special circumstances which require an adjustment of the relationship of the non-parole period to the balance of the sentence.

1. The applicant cited Diesing v R [2007] NSWCCA 326 as authority for the proposition that where a sentencing judge has imposed sentence referable to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act, in circumstances where no standard non-parole period applied, the sentence will invariably be infected by error necessitating resentence. In support of that submission he placed particular reliance upon Latham J's observation at [59] that this Court had, by that time, recognised an upward trend in sentences imposed for offences carrying a standard non-parole period, even where there were factors justifying a departure from it. Her Honour also observed that the notional range of sentences for a mid range offence where a standard non-parole period applies will generally be higher than those where there is no standard non-parole period, in each case (as the law applied at that time) because the sentencing judge was obliged to have regard to the standard non-parole period when fixing an appropriate sentence.

1. While her Honour's analysis of sentencing trends pre-Muldrock was well supported by the experience of this Court and sentencing statistics, it does not, in my view, necessarily lead, in this case, to the conclusion that his Honour's reference to a standard non-parole period of 5 years post Muldrock was productive of a sentence outside a discretionary range. To the contrary. Because of the way his Honour approached sentence, which was an exemplar of the approach mandated by Muldrock, his Honour did no more than take the standard non-parole period into account as providing some assistance or guidance as to what a non-parole period should be in the context of the total sentence. It cannot be gainsaid that he gave it preponderant weight. In my view, after a finding of special circumstances, a non-parole period of 3 years for the conspiracy charge was not only an available sentencing outcome but one that is reflective of a generous measure of leniency.

1. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

1. BEECH-JONES J: I have had the benefit of reading the draft judgment of Fullerton J. Ordinarily a reference by a sentencing judge to a standard non-parole period where none is prescribed would represent a strong start for an applicant for leave to appeal in seeking to establish error. This is still the case post the decision in Muldrock v R [2011] HCA 39; 244 CLR 120, especially as the High Court noted that it may be that for some offences the effect of the introduction of standard non-parole periods will be a "move upwards in the length of non-parole period[s]" (at [31]). However in this case the matters pointed to by Fullerton J have persuaded me that the references by the sentencing judge to the existence of a standard non-parole period of five years where there was none had no material impact on the sentence his Honour determined, namely a non-parole period of three years with an additional term of three years. In any event the matters canvassed by Fullerton J concerning the circumstances of the offence, the subjective case of the applicant and the findings of the sentencing judge lead me to conclude that no lesser sentence was warranted even if error had been established (cf s 6(3) of the Criminal Appeal Act 1912).

1. I agree with the orders proposed by Fullerton J.

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Decision last updated: 14 February 2013