Porter v R
[2008] NSWCCA 145
•26 June 2008
New South Wales
Court of Criminal Appeal
CITATION: Porter v R [2008] NSWCCA 145 HEARING DATE(S): 7 May 2008
JUDGMENT DATE:
26 June 2008JUDGMENT OF: Bell JA at 1; Johnson J at 2; McCallum J at 98 DECISION: 1. Leave granted to appeal against sentences imposed on 26 April 2007 in the Orange District Court.
2. Appeal allowed and sentences imposed on 26 April 2007 quashed. In lieu thereof, the Applicant is sentenced:
(a) for the offence of break, enter and steal on Bradley’s Florist shop - imprisonment for a fixed term of 12 months to date from 1 March 2007 and to expire on 29 February 2008;
(b) with respect to each of the five offences under s.195(b) Crimes Act 1900 - imprisonment by way of a non-parole period of two years and six months commencing on 1 September 2007 and expiring on 28 February 2010 with a balance of term of two years and three months commencing on 1 March 2010 and expiring on 31 May 2012;
(c) for the offence of break, enter and steal on Swish Homes and Living - imprisonment for a fixed term of 18 months to date from 1 December 2007 and to expire on 31 May 2009.
3. The earliest date upon which the Applicant will be eligible for release on parole is 28 February 2010. Confirm recommendation that Applicant be placed in a young offenders programme and be provided with psychological counselling whilst in custody.CATCHWORDS: CRIMINAL LAW - sentencing - break enter and steal - maliciously damage property by fire - burglary offences on small business premises in commercial building in regional centre - setting fire to curtain in shop during burglary - resulting fire causes substantial damage to small business premises in building - principles applicable in sentencing arson offender - relevance on sentence of harm and loss to small business persons resulting from arson offences - meaning of "conditional liberty" in s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 - error in approach to accumulation, concurrency and totality - head sentence excessive - non-parole period not excessive LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912CATEGORY: Principal judgment CASES CITED: R v Wickham [2004] NSWCCA 193
R v Lilley (2004) 150 A Crim R 591
R v Elyard [2006] NSWCCA 43
R v FD [2006] NSWCCA 31
R v JCW (2000) 112 A Crim R 466
Siganto v The Queen (1998) 194 CLR 656
R v Webb [1971] VR 147 at 150-151
R v P (1992) 64 A Crim R 381
Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538
R v Davies (2006) 164 A Crim R 353
R v Baker [2000] NSWCCA 85
R v Pitt [2001] NSWCCA 156
R v Glover [2002] NSWCCA 376
R v Elzakhem [2008] NSWCCA 31
R v Bloomfield (1998) 44 NSWLR 734
Wong v The Queen [2001] 207 CLR 584
R v AEM and Others [2002] NSWCCA 58
R v Morgan (1993) 70 A Crim R 368 at 371
R v George (2004) 149 A Crim R 38
R v Knight (2005) 155 A Crim R 252
R v Merrin (2007) 174 A Crim R 100
Pearce v The Queen (1998) 194 CLR 610
AJO v R [2008] NSWCCA 28
Kerr v R [2008] NSWCCA 133
R v James (1981) 27 SASR 348
Newton v State of Western Australia [2006] WASCA 247
R v Catts (1996) 85 A Crim R 171
Frigiani v R [2007] NSWCCA 81
R v Mauri [2005] NSWCCA 272
R v Porteous [2005] NSWCCA 115
Power v The Queen (1974) 131 CLR 623
R v MA (2004) 145 A Crim R 434PARTIES: Phillip John Porter (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2007/2960 COUNSEL: Mr R Wilson (Applicant)
Ms LK Wells (Respondent)SOLICITORS: Legal Aid Commission of New South Wales (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/61/0171 LOWER COURT JUDICIAL OFFICER: His Honour Judge Finnane QC LOWER COURT DATE OF DECISION: 26 April 2007
2007/2960
26 June 2008BELL JA
JOHNSON J
McCALLUM J
1 BELL JA: I agree with Johnson J.
2 JOHNSON J: This is an application by Phillip John Porter for leave to appeal against sentences imposed by his Honour Judge Finnane QC at the Orange District Court on 26 April 2007. The Applicant pleaded guilty to two counts of break, enter and steal under s.112(1) Crimes Act 1900 (maximum penalty - 14 years’ imprisonment) and five counts of maliciously damaging property by fire under s.195(b) Crimes Act 1900 (maximum penalty - 10 years’ imprisonment).
3 On each of the seven counts, his Honour imposed identical and wholly concurrent sentences of imprisonment for seven years with a non-parole period of three years to commence on 1 March 2007.
The Offences
4 What follows is drawn essentially from an Agreed Statement of Facts tendered at the sentencing hearing in the District Court together with statements and reports tendered by the Crown and uncontested evidence given by the Applicant.
5 Soon after 12.30 am on Friday, 7 July 2006, the Applicant (then aged 19 years) left the Royal Hotel, Orange where he had been drinking alcohol for some time. According to the Applicant, he “wasn’t legless” but “was affected by alcohol” (T3.46, 1 March 2007). He rode his skateboard down Summer Street in the direction of the Realty Building.
6 Shortly prior to 1.00 am, the Applicant broke into shop premises of Bradley’s Florist in the Realty Building at 36 Sale Street, Orange by smashing a window with his skateboard and entering the premises. The Applicant said in evidence “I just … had a heap of anger and I smashed the window” (T10.51, 1 March 2007). In later evidence, he said “I’m not real sure why I was angry, I was in a pretty confused state I think” (T4.32, 26 April 2007). Once inside, the Applicant stole about $50.00 in coins. Before leaving the shop, the Applicant used his cigarette lighter to set fire to a curtain which separated the office from the retail part of the premises. In later interviews with a probation and parole officer and a psychiatrist, the Applicant could provide no explanation for starting the fire. He could provide no explanation for this act in his evidence before the District Court (T10.20, 1 March 2007). The Applicant said he thought the curtain would “fall off onto the ground” but he “didn’t think it would burn the whole shop down” (T11, 1 March 2007).
7 Bradley’s Florist shop was one of a number of business premises located in the Realty Building in Sale Street, Orange. Also located in the building were Swish Home and Living, Mosaic Boutique Ladies Wear, Robert Bruce Photography (above Bradley’s Florist), Radio Rentals, the Wing Wah Chinese Restaurant and J&J Bridal and Formal Wear.
8 Shortly after 1.00 am, the Applicant entered a service station opposite the Realty Building where he exchanged a large amount of stolen coins for paper currency. The Applicant then rode his skateboard away from the service station.
9 Soon after, the Applicant returned to the Realty Building and broke into the premises of Swish Home and Living, again using his skateboard to smash glass on the door. He entered the shop and stole about $20.00 in coins. He told the District Court that he “just decided to break into it as well. … I think I had a bit of adrenalin” (T14, 1 March 2007). He said that at this time “there wasn’t such a fire that [he] could see” (T14, 1 March 2007). He saw some flames in Bradley’s Florist shop but proceeded to break into Swish Home and Living and steal money from there (T16, 18-19, 1 March 2007). He didn’t report the fire as he “just wanted to get out of there” (T16.44, 1 March 2007).
10 At about 1.10 am, a security patrol man responded to a motion alarm activated at Swish Home and Living and, upon arrival, saw smoke and flames coming from Bradley’s Florist shop. The security patrolman contacted emergency personnel. The Fire Brigade arrived soon after and found both Bradley’s Florist and the Mosaic Boutique Ladies Wear shops on fire. The fire then spread along a space between the ceiling and the first floor affecting both Robert Bruce Photography and Radio Rentals. As a result, the Fire Brigade personnel evacuated two residents who were sleeping in separate first-floor units.
11 In due course, the fire was extinguished and a crime scene was declared. The Bradley’s Florist shop and the Mosaic Boutique Ladies Wear premises were totally destroyed by fire. The remaining business premises mentioned in the preceding paragraph were all severely damaged by the effects of smoke and/or water and the building structure itself was severely damaged.
12 Police investigations revealed closed-circuit television footage from the service station depicting the Applicant entering the service station after the burglary on Bradley’s Florist shop and exchanging coins for cash. Further closed-circuit television footage depicted the Applicant speaking to the security guard outside the Royal Hotel, Orange at 12.37 am and thereafter, riding his skateboard along Summer Street in the direction of the Realty Building.
13 On 14 July 2006, police executed a search warrant at the Applicant’s home and located clothing depicted in the closed-circuit television footage, together with a skateboard containing glass fragments in the wheels and damage at one end of the board. Soon after, on 14 July 2006, the Applicant was arrested and interviewed. He denied any knowledge of the break, enter and steal and arson offences committed on 7 July 2006. He denied going anywhere near the subject premises on the night in question.
14 In due course, the Applicant pleaded guilty in the Orange Local Court on 5 December 2006 and was committed for sentence in the District Court.
15 Following his arrest on 14 July 2006, the Applicant was released on bail the next day and remained on bail until remanded in custody by his Honour Judge Finnane QC on 1 March 2007.
Evidence from the Victims
16 At the sentencing hearing, a number of victim impact statements were tendered by the Crown, without objection. As will be seen, a ground of appeal relates to the admission and use of this evidence from the victims.
17 The statements were made by the proprietors of Bradley’s Florist shop (Ms Sally Louise Wright), Robert Bruce Photography (Mr Robert Ian Bruce), Mosaic Boutique Ladies Wear (Ms Merrilyn Joy Adams) and Swish Home and Living (Ms Marissa Strom-Bennie).
18 Ms Wright read her statement in the District Court, without objection. Ms Wright stated that she purchased Bradley’s Florist in July 2001 and had built the business up from then. She recounted the emotional effect upon her flowing from the destruction of the business including accusations by others that she, herself, had started the fire. Her business relocated to other premises with detrimental consequences, including unrecoverable monetary loss of some $40,000.00. She spoke of the psychological suffering and distress, as well as financial loss, affecting her family and herself resulting from the Applicant’s acts.
19 Mr Bruce was 67 years old and had been a professional photographer for 22 years, working for about 11 years from the subject premises. The fire seriously affected his business and caused him great personal stress. His darkroom was above the seat of the fire and was totally destroyed, along with all of its equipment, with severe smoke and fire damage resulting to the rest of his studio. His business was shut down for several months. The loss incurred as a direct result of the fire, the removal of his records and equipment, the finding and re-equipping of a new studio after some months together with loss of income, exceeded $40,000.00. He stated that stress and hardship had resulted from the fire.
20 Ms Adams and her sister, who were both widows, had opened the Mosaic Boutique Ladies Wear in 2000. They placed all their monies into the business which, by the time of the fire, had become successful. Ms Adams stated that the fire had completely devastated her. After receiving an insurance payment and paying out all operating accounts, tax and final accounts, there was no money left to refit a new shop and purchase all the stock required. The only way that she could reopen the business was to mortgage her home. As her home was her only asset and as she was almost 60 years of age, this placed her under a great deal of stress. Ms Adams’ intention had been to defer the aged pension and continue working in her own business with her sister (who was 10 years younger) for as long as possible. However, her only income now is a carer’s pension.
21 Ms Strom-Bennie opened her gift and home ware business in February 2003. Initially, the idea behind opening the store was to help provide her children with better opportunities. In November 2005, the store relocated to the Sale Street premises. She and her husband (a self-employed truck driver) spent a great deal of time preparing the Sale Street premises. The business opened its doors on 25 November 2005 with a very promising Christmas period pointing to a positive future. After the fire, it was necessary to meet with the insurance company loss adjuster. After cleaners had attempted to clean the premises, Ms Strom-Bennie and her husband had to physically itemise every item in the store for the insurance claim. Her husband had to take a week off work for this purpose. A great deal of stock was not salvageable. Many weekends were spent clearing everything out and sorting through paperwork. Ms Strom-Bennie’s insurance covered only stock and contents, with no insurance cover for loss of income or business interruption. Ms Strom-Bennie recounted the personal, financial and emotional suffering of her family as a result of the Applicant’s acts. She could not afford to re-establish the business and financial difficulties had placed emotional strain on the family. She concluded “I cannot convey enough in words how this selfish act of stupidity has impacted on our lives”.
The Applicant’s Subjective Circumstances
22 The Applicant was 19 years of age at the time of the offences and 20 years at the time of sentence.
23 The Applicant was born in Bathurst and has lived in different towns in the central west of New South Wales. His parents separated when he was nine years of age. He has a younger brother.
24 After leaving school at the age of 16 years, the Applicant completed a traineeship in hospitality and worked thereafter as a roof plumber and then at a fast-food outlet in Orange. He was unemployed before going into custody on 1 March 2007.
25 The Applicant’s criminal history includes appearances on 14 February 2005 at Bathurst Children’s Court, where a 12-month good behaviour bond was granted for offences of assault police, resist arrest, intimidate police and consuming liquor in a public place. On 10 August 2005, the Applicant was placed on a 12-month good behaviour bond under s.10 Crimes (Sentencing Procedure) Act 1999 for an offence of entering prescribed premises without lawful excuse. On 16 January 2006, he was fined $100.00 in the Bathurst Local Court for shoplifting.
26 After sentence was imposed in the present matters on 26 April 2007, the Applicant appeared in the Orange Local Court on 1 May 2007 where he was sentenced to three months’ imprisonment for break and enter with intent to steal and imprisonment for one month for shoplifting, with both sentences to date from 1 May 2007. Although the material before this Court does not make it clear, it seems likely that these offences were committed after the offences which are the subject of the present appeal.
27 According to a presentence report before the District Court, the Applicant reported episodes of alcohol abuse and a serious gambling problem involving use of poker machines.
28 Doctor David Greenberg, a psychiatrist with Justice Health, provided a report dated 17 April 2007 to the District Court, at the request of the learned sentencing judge. Dr Greenberg described the Applicant as an alert 20-year old man who was coherent in his speech. The Applicant was initially irritable and reluctant to engage in a psychiatric interview. However, after a period of time, he settled down and was co-operative in the psychiatric assessment. There was no disorder of flow or form of thought, nor any evidence of delusion.
29 Dr Greenberg concluded that there were no reasonable grounds to believe that the Applicant suffered from a mental illness nor a mental disorder nor from a developmental disability. Diagnostically, the Applicant appeared to have personality problems associated with use of alcohol and cannabis with no evidence of any major psychiatric illness. It seems that a psychiatrist who examined the Applicant in early 2007 diagnosed mild attention deficit disorder and prescribed medication. Dr Greenberg observed that it is extremely difficult to make a diagnosis of attention deficit hyperactive disorder in an adult. Dr Greenberg observed that, at the time of his assessment, the Applicant displayed no evidence of any attention deficit difficulties nor any other active behaviour. The Applicant was coherent and able to give a coherent account of himself during the time period surrounding the alleged offences.
Some Findings by the Sentencing Judge
30 His Honour Judge Finnane QC adverted to the evidence of loss and damage suffered by the small business persons as a result of the fire initiated by the Applicant. His Honour observed that the arson offences were “directed against a series of people who were conducting shops in Orange for the benefit of the community and of course in the hope that they might make an income” (ROS1). The fire had caused “enormous damage” and driven “each of the shopkeepers away from their businesses” (ROS2). Each of the shopkeepers had “suffered very grievously” (ROS2-3).
31 His Honour observed that to “deliberately set fire to a place is to do something which is extremely dangerous and a threat to human life and safety” (ROS3).
32 His Honour said (ROS3):
- “The offender in this case, from my hearing him give evidence on two occasions [is] a quite intelligent young man who appears to have little if any appreciation of the seriousness of what he has done.”
33 His Honour accepted that the Applicant pleaded guilty at the first opportunity and allowed a discount of 25% in this respect (ROS4-5).
34 His Honour observed (ROS4):
- “… it seems to me that all these events are linked in a way that makes it impossible to disentangle them and the principles of sentencing require in my opinion, that although I must impose sentences for each matter, I have to regard them all as part of one large event.”
35 His Honour referred to the Applicant’s criminal history and the fact that the present offences were committed whilst he was subject to a s.10 good behaviour bond for trespass. His Honour concluded that the Applicant was “a person of no significant previous criminality” and stated that he did “not propose to treat him as someone who was on conditional liberty” (ROS5).
36 His Honour said that the Applicant was to be treated as someone who “coldly and callously broke into a shop and deliberately set fire to curtains in it and then left” and then made “a deliberate decision” to go back and smash into another shop for the purpose of getting money. His Honour continued (ROS5):
- “He could see after the second occasion a fire was spreading. He did nothing about it. He has acted coldly and callously and I think that although he is only 20 years old, he has to be sentenced on that basis.”
37 His Honour observed that the fire was “deliberately set”, was “not accidental” and “did not happen as a result of a prank gone wrong” (ROS5).
38 After reciting the maximum penalties for the offences, his Honour concluded that a sentence of seven years’ imprisonment should be imposed in relation to each matter after taking into account a 25% discount (ROS5). His Honour continued (ROS5):
“However because he is young, it is necessary, in my opinion, that I should find special circumstances and much reduce the sentence which I would otherwise give.”
39 A non-parole period of three years was fixed for each offence. His Honour recommended that the Applicant be placed in a young offenders programme and that “he be given assistance to overcome what appears to me to be deep seated though completely non-admitted psychological problems” (ROS6).
The Grounds of Appeal
40 The Applicant relies upon the following grounds of appeal:
(1) The sentences imposed were manifestly excessive.
(2) The sentencing judge failed properly to consider the maximum penalties applicable to the offences.
(3) The sentencing judge failed to consider the appropriate sentence in relation to each individual offence.
(4) The sentencing judge failed to take into account that the offences were not part of a planned or organised criminal activity (pursuant to s.21A(3)(b) Crimes (Sentencing Procedure) Act 1999 ).
(6) The sentencing judge wrongly admitted into evidence, and took into account, victim impact statements.(5) The sentencing judge failed properly to consider the quantum of damage to property.
41 As there is some overlap between the grounds of appeal, it is appropriate to consider the grounds under grouped headings.
42 It is appropriate to consider first Grounds 4, 5 and 6, which raise discrete issues, before returning to Grounds 1, 2 and 3 which, in different ways, contend that the sentences were manifestly excessive.
Submissions
Ground (4) - Offences Not Part of Planned or Organised Criminal Activity
43 Mr Wilson, counsel for the Applicant, submitted that the learned sentencing judge erred in failing to treat as a mitigating factor the fact that the Applicant’s offences were not part of a planned or organised criminal activity: s.21A(3)(b) Crimes (Sentencing Procedure) Act 1999. He acknowledged that no submission was advanced in the District Court on the Applicant’s behalf that this mitigating factor ought be found in this case.
44 The Crown submitted that no error has been demonstrated in this respect. It is not necessary for a sentencing judge to refer to each of the s.21A factors. Rather, it is necessary to take them into account only to the extent that they are relevant to the case before the Court: R v Wickham [2004] NSWCCA 193; R v Lilley (2004) 150 A Crim R 591 at [41], [53]; R v Elyard [2006] NSWCCA 43 at [5]. Further, the Crown submits that the fact that any aggravating or mitigating factor is relevant and known to the Court does not require the Court to increase or reduce the sentence for an offence: s.21A(5); R v FD [2006] NSWCCA 31 at [94].
Determination
45 Counsel for the Applicant in the District Court did not ask the sentencing judge to find that a s.21A(3)(b) mitigating factor existed in this case. In these circumstances, it is difficult for the Applicant to make good the submission that error has been demonstrated in his Honour not making a finding to that effect.
46 In any event, it could not be said that all of the offences were spontaneous. The Applicant broke into the first premises, stole money and started the fire. He then returned a short time later and broke into the second premises from which money was stolen.
47 This ground of appeal should be rejected.
Submissions
Grounds (5) and (6) - Damage to Property and Evidence from Victims Concerning Loss and Damage
48 In support of Ground (5), Mr Wilson submitted that the learned sentencing judge did not appear to have calculated exactly how much damage was occasioned by the offences either individually or globally. He acknowledged that the agreed facts sheet stated that the total cost of the damage to the building, and its contents, had been estimated at between $1.2 and $1.5 million. Mr Wilson pointed to the fact that the particular arson charges for which the Applicant was to be sentenced concerned five discrete retail premises and not the building as a whole. He submitted that it was not open to a sentencing court to have regard to damage to property extending beyond the specific property charged, relying by analogy upon sentencing principles concerning representative counts in sexual offences: R v JCW (2000) 112 A Crim R 466. Mr Wilson acknowledged that the material before the District Court demonstrated that the value of property damage to the five business premises (excluding economic loss) was in a total sum of $177,748.66.
49 With respect to Ground (6), Mr Wilson submitted that the learned sentencing judge wrongly admitted into evidence, and took into account, the victim impact statements from the five business persons. He submitted that the nature of the offences for which the Applicant stood to be sentenced lay outside the victim impact statement provisions in Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. Mr Wilson acknowledged that the statements had been tendered without objection in the sentencing proceedings. Nevertheless, he submitted that they were not admissible and ought not to have been relied upon by the sentencing judge. He submitted that an examination of his Honour’s remarks on sentence revealed that significant weight had been given to the contents of the statements, which disclosed substantial harm and loss experienced by the victims.
50 The Crown submitted that there was no objection to the tender of all material concerning quantum of loss in the District Court proceedings, including the victim impact statements, and that this material was available to be utilised on sentence.
51 With respect to the victim impact statements, the Crown did not contend that the statements were admissible pursuant to Division 2 of Part 3 Crimes (Sentencing Procedure) Act 1999. Rather, the Crown submitted that the material was admitted without objection, and was relevant to demonstrate the harm done to the victims which was relevant, at common law, on sentence: Siganto v The Queen (1998) 194 CLR 656 at 666 [29]. Further, the Crown submitted that his Honour was entitled to take into account that the injury, emotional harm, loss or damage caused by the offences was substantial: s.21A(2)(g) Crimes (Sentencing Procedure) Act 1999.
Determination
52 The evidence concerning loss and harm to the five business persons was admitted without objection in the District Court sentencing proceedings. It is clear that the present offences were not offences to which the victim impact statement provisions in Division 2 of Part 3 Crimes (Sentencing Procedure) Act 1999 had application. However, to succeed on the present grounds, the Applicant needs to demonstrate that the evidence concerning loss and harm to the victims ought not to have been taken into account on sentence.
53 The fact that the statements were entitled ‘victim impact statements’, and were prepared on forms which were not appropriate technically to the offences, does not mean that the content of the statements was inadmissible. This is especially so as no objection was taken to the material tendered. It is not uncommon for material concerning loss and harm to victims of burglary and arson offences to be included in statements taken by police from victims, or in statements of facts used on sentence.
54 It is well established at common law that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process: R v Webb [1971] VR 147 at 150-151; R v P (1992) 64 A Crim R 381 at 384-385; Siganto v The Queen at 664-666. Further, the evidence in this case was admissible with respect to the aggravating factor in s.21A(2)(g) that the injury, emotional harm, loss and damage caused by the offences to the five business persons was substantial. In the District Court, the Crown submitted that the evidence of the victims supported a finding that the aggravating factor in s.21A(2)(g) was demonstrated in this case (T9, 26 April 2007).
55 The purposes of sentencing include recognition of the harm done to the victim of crime and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999. It has been said that the crime of arson may have profound consequences for innocent victims: Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538 at 540 [2]; 545 [22]. The monetary value of damage, and the loss of personal records, bear upon the objective seriousness of the crime: R v Davies (2006) 164 A Crim R 353 at 370 [97].
56 I am satisfied that the evidence of the victims concerning harm and loss was both relevant and admissible in the sentencing proceedings. It bore upon the objective seriousness of the Applicant’s crimes and was properly taken into account on sentence.
57 No error has been demonstrated in his Honour’s approach to evidence of loss and harm admitted, by consent, in the sentencing proceedings. These grounds of appeal ought be rejected.
Submissions
Grounds (1), (2) and (3) - The Sentences Were Manifestly Excessive
58 Mr Wilson submitted that the sentence for each offence was manifestly excessive having regard to the available maximum penalty, and by reference to sentencing statistics, in particular with respect to the arson offences under s.195(b) Crimes Act 1900. On each of the five s.195(b) counts, his Honour had imposed a head sentence of seven years after applying a 25% discount, meaning that the undiscounted head sentence in each case was nine years and four months as against a maximum penalty of 10 years’ imprisonment.
59 Likewise, he submitted that a head sentence of seven years for each of the break, enter and steal offences indicated an undiscounted starting point of 67% of the maximum penalty of 14 years.
60 A comparison of sentencing outcomes in other s.195(b) cases, it was submitted, reinforced the excessive sentence imposed on each of the five s.195(b) offences for which the Applicant stood to be sentenced. In this regard, counsel for the Applicant referred to cases including R v Baker [2000] NSWCCA 85, R v Pitt [2001] NSWCCA 156, R v Glover [2002] NSWCCA 376 and R v Elzakhem [2008] NSWCCA 31.
61 Given that the five arson offences stemmed from a single act of setting fire to a curtain in one set of premises, Mr Wilson submitted that concurrent sentences were appropriate on those counts, but not concurrent sentences of the order imposed at first instance.
62 Counsel submitted that the act of arson was not premeditated and was spontaneous in nature. Although no explanation had been advanced by the Applicant for setting the fire beyond a type of anger, Mr Wilson emphasised that this was not a case involving financial gain or revenge on the part of the Applicant. He submitted that, although the Applicant intended to set fire to the curtain, it was his evidence that he did not intend to cause wider destruction. As a result, although the Applicant was guilty of maliciously destroying property, his conduct ought be characterised as reckless and not intentional with respect to the wider damage caused. Accordingly, Mr Wilson submitted that the arson offences, although serious, could not be characterised as being at a level of objective seriousness as to attract the sentences imposed in the District Court.
63 Mr Wilson submitted that the break, enter and steal offences were otherwise unremarkable (leaving aside the arson offences) so that sentences of the order imposed in the District Court were manifestly excessive. As the arson offences were committed in the course of one of the break, enter and steal offences, he submitted that concurrency was appropriate with that offence. He acknowledged that the second break, enter and steal offence was a separate incident, but emphasised that it occurred soon after the first break, enter and steal offence and in nearby premises.
64 With respect to the Applicant’s submissions based upon statistical material for s.195(b) sentences, the Crown submitted that such material was of limited utility: R v Bloomfield (1998) 44 NSWLR 734 at 739; Wong v The Queen [2001] 207 CLR 584 at 605 [58]; R v AEM and Others [2002] NSWCCA 58 at [116].
65 The Crown emphasised that the Applicant was being sentenced in relation to multiple offences and not one offence.
66 The Crown submitted that his Honour had correctly taken into account, adversely to the Applicant, the serious harm and loss suffered by the small business persons affected by the fire. The Crown submitted that the arson offences were aggravated by the fact that they were committed without regard for public safety (s.21A(2)(i) Crimes (Sentencing Procedure) Act 1999) and that the emotional harm, loss and damage caused to the victims by the offence was substantial (s.21A(2)(g)). Further, the Crown submitted that substantial sentences were appropriate to recognise the harm done to the victims of the crime and the community: s.3A(g).
67 The Crown submitted that his Honour was clearly aware of the maximum penalties in relation to the offences, and that it was necessary to keep in mind that sentences were being imposed for multiple offences which otherwise would have required a measure of accumulation.
68 The Crown submitted that these offences were objectively serious and led to the destruction of valuable property, and that a considerable element of personal and general deterrence was warranted. The Crown submitted that the sentences imposed were not manifestly excessive.
Determination
69 I do not consider that the Applicant’s reliance upon other sentencing decisions establishes a range of sentences which assists an argument that the present sentences are manifestly excessive. The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49].
70 Nor do sentencing statistics advance the Applicant’s case. The function of the courts is to sentence an offender by the application of correct sentencing principles, commencing with the gravity of the offence, and not by reference to the statistical median range of sentences handed down over a period of time: R v AEM and Others at [116].
71 Nevertheless, I am satisfied that the Applicant has demonstrated error with respect to the sentences passed in the District Court.
72 The approach adopted by his Honour is similar to that which has been criticised by this Court in a number of cases including R v Knight (2005) 155 A Crim R 252 at 265-267 and R v Merrin (2007) 174 A Crim R 100 at 107-108. In R v Knight, I observed at 266-267 [78]-[79] (with the concurrence of Mason P and Barr J):
Indeed, a submission advanced by Counsel for the present Applicant illustrates this very difficulty. Having regard to the aggregate 50% discount allowed by the learned sentencing judge for the pleas of guilty, remorse and assistance to the authorities, Counsel contended that sentences of nine years imprisonment with a non-parole period of six years would clearly be an excessive starting point for each of the s.112(1) offences. The fact that such an argument is available to be advanced points to the difficulty which has arisen from his Honour’s failure to approach the imposition of sentence in accordance with Pearce and Hammoud .”“To select a sentence appropriate to the overall criminality and impose that sentence, in particular, in respect of all of the s.112(1) charges is an approach which cannot survive the application of the principles in Pearce . An examination of the facts of the 27 offences under s.112(1) reveals that the offences varied in significant respects in their objective seriousness. An identical sentence for each of the 27 offences cannot be supported in principle. On this approach, as Simpson J observed in Hammoud at paragraph 10, all sentences would appear excessive for the specific charges to which they related even when the ultimate term to be served was unimpeachable.
73 In R v Merrin, Howie J (Giles JA and Fullerton J agreeing) said at 107 [37]:
- “There is no justification for imposing a sentence for one offence that is increased to encompass the criminality of all offending. Such an approach, apparently adopted by the Judge, runs contrary to sentencing practice that has been followed since Pearce and for nearly a decade. As counsel for the respondent pointed out, a single offence of break enter and steal committed by an 18 years old youth with limited record would not ordinarily warrant a sentence of imprisonment for four years. Yet that is the sentence that the Judge imposed for each of the offences of non-aggravated break, enter and steal. Although it has been recognized by the High Court that the principle in Pearce is not the only method of achieving totality when sentencing from multiple offences; see Johnson v The Queen (2004) 78 ALJR 616, no appellate court has authorised the manner in which the sentencing judge approached the task before him since Pearce was decided.”
74 The approach to sentence adopted in this case does not comply with the principles in Pearce v The Queen (1998) 194 CLR 610. Further, the imposition of a type of “one size fits all” set of sentences will serve to distort sentencing statistics which are retained by the Judicial Commission of New South Wales and made available to assist sentencing courts.
75 It does not always follow that this Court will intervene and resentence when an error such as this occurs: AJO v R [2008] NSWCCA 28 at [33]; Kerr v R [2008] NSWCCA 133 at [34]-[36]. It is necessary for the Court to consider whether some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.
76 I am satisfied that the individual sentences imposed for each offence in this case are manifestly excessive. With respect to the arson offences, the head sentence imposed for each offence is close to the maximum penalty for the offence.
77 Making all due allowance for the principle of totality, in my view, the head sentences are manifestly excessive having regard to the objective circumstances of the offences and the subjective circumstances of the offender.
78 Accordingly, with respect to head sentence, I am satisfied that some other sentence is warranted in law and should have been imposed: s.6(3). I will return to the issue of the non-parole period later in this judgment.
Resentencing the Applicant
79 As it is necessary to resentence the Applicant, I have regard to the affidavit of the Applicant affirmed 22 April 2008 together with the affidavits of the Applicant’s solicitor, John Pearson, affirmed 2 May 2008 and 6 May 2008. This evidence relates to courses and employment undertaken by the Applicant whilst in custody together with psychiatric assistance being provided to him in the prison setting. I have regard to that evidence in determining appropriate sentences to be passed upon the Applicant in this Court.
80 The gravity of a s.195(b) offence is recognised by the maximum penalty of 10 years’ imprisonment, twice that available for a s.195(a) offence where property is damaged or destroyed other than by fire or explosion: R v Baker at [13]. The circumstance of the possible spread of fire may be taken into account in determining an appropriate sentence: R v Baker at [16]. It is appropriate to take into account the potential risk of physical injury to other persons in determining sentence for a s.195(b) offence: R v Glover at [53]-[57].
81 The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases.
82 In this case, the Applicant was affected by alcohol to some extent, but not to an extent that affects his culpability in any significant way. Having broken into the first premises and stolen $50.00 in coins, the Applicant set fire to a curtain in circumstances where the spreading of fire was almost inevitable. The Applicant was aware that the first shop formed part of commercial premises with other businesses in the building. No explanation for setting the fire has been proffered beyond a state of anger. The Applicant was thinking coolly enough to cross the road to the service station to change the stolen coins for paper currency. Although he could see that the fire was burning in the first shop, he then decided to break into a second shop to steal more money. He then departed the scene with a fire developing in the first shop. It is clear that the fire spread quickly. The Fire Brigade was sufficiently concerned about the fire to evacuate persons living in adjacent residential premises. Not only was very substantial property damage caused, but persons were placed at risk by the Applicant’s conduct in setting the fire.
83 The very substantial loss and personal stress experienced by each of the five business persons may be taken into account in assessing the objective seriousness of the Applicant’s crimes. In R v Knight at 269 [93], it was observed that owners of small business premises in rural areas may be hit especially hard by burglary offences and are entitled to the protection of the law. This statement has application to the present case with respect to both the break, enter and steal offences and the arson offences. In my view, the substantial detrimental effect of the Applicant’s crimes on these victims constituted an aggravating factor with respect to the arson offences: s.21A(2)(g).
84 The lack of motive for the arson offences beyond an arbitrary act of destruction is both puzzling and concerning. The fact that the Applicant lit a fire, with most serious consequences, without any reason being proffered for his conduct, does not mitigate the seriousness of the crime. The Applicant’s present inability to explain why he engaged in such dangerous and destructive criminal conduct does not assist him when issues of personal deterrence and his prospects of rehabilitation come to be considered.
85 At the hearing of the appeal, Mr Wilson submitted that the learned sentencing judge was correct in concluding that the present offences were not committed whilst the Applicant was subject to conditional liberty for the purpose of s.21A(2)(j). He contended that the Applicant was subject to a s.10 good behaviour bond for an offence of trespass for which the maximum available penalty was a fine, and not imprisonment. In this way, Mr Wilson submitted that the Applicant was not subjected to “conditional liberty” for the purpose of this provision.
86 In Frigiani v R [2007] NSWCCA 81 at [24], it was held that the commission of an offence, whilst the offender was subject to a s.10 good behaviour bond, constituted the aggravating factor listed in s.21A(2)(j) of the Act regardless of the conduct in respect of which the bond was imposed. However, it was not the case in Frigiani v R that the offence for which the s.10 good behaviour bond had been granted was one for which imprisonment was not an available sentence. Nevertheless, it seems to me that the purpose of s.21A(2)(j) is to capture the common law principle that an offence committed whilst a person is subject to conditional liberty, whether on bail or whilst subject to a good behaviour bond or a community service order or periodic detention or parole, constitutes an aggravating factor for the purpose of sentence. The essence of the provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour. I do not consider that the term “conditional liberty” in the section is confined to circumstances where the foundational offence giving rise to the conditional liberty is one which itself must be punishable by imprisonment.
87 Even if this view was wrong, however, the common law principle remains applicable given that s.21A does not purport to codify the law in this area: s.21A(1). Even if the commission of the offences whilst the Applicant was subject to a s.10 good behaviour bond for trespass did not constitute the statutory aggravating factor, it would constitute an available aggravating factor at common law. I approach the sentencing of the Applicant upon the basis that his commission of these offences, whilst being subject to a good behaviour bond, was an aggravating factor on sentence.
88 I have regard to the Applicant’s youth and limited criminal history and the fact that this constitutes his first term of imprisonment. Any assessment concerning the Applicant’s prospects of rehabilitation must be guarded having regard to the absence of explanation for his serious criminal conduct reflected in the arson offences. The first burglary offence and the arson offences appear to have been unplanned. However, the characterisation of these offences as a random burglary, accompanied by a wanton act of arson, does not assist the Applicant on sentence. The second burglary offence was a considered act undertaken by the Applicant for personal financial gain. His departure from the premises knowing that a fire had been started, without any concern on his part as to the quelling of the fire, does not assist him on sentence.
89 No challenge was made by the Crown to the 25% discount referable to the Applicant’s pleas of guilty, and I will apply a similar discount on resentencing the Applicant. I am satisfied that special circumstances exist having regard to the youth of the Applicant, the fact that this is his first sentence of imprisonment and the appropriateness of supervision in the community for an extended period upon his release.
90 In my view, the relevant principles with respect to accumulation, concurrency and totality will be satisfied by the imposition of concurrent sentences for the arson offences. It was the single act of setting the fire which caused these offences, although several offences resulted with substantial harm and loss resulting to multiple victims. I consider that the first break, enter and steal offence ought be partially accumulated upon the sentences for the arson offences. The second break, enter and steal offence ought also be partially accumulated given that it was a second and separate burglary offence, although one committed soon after the first offence.
91 Although the head sentences ought be reduced, I am satisfied that an effective minimum term of imprisonment for three years is appropriate and a non-parole period of that duration ought remain.
92 Where a finding is made that a head sentence is manifestly excessive, it is necessary to consider whether the non-parole period is, in turn, manifestly excessive. In many cases, this may follow almost as a matter of course. If the sentencing judge has retained the statutory ratio under s.44(2) Crimes (Sentencing Procedure) Act 1999, then a finding of manifest excess in the non-parole period may be clear. In this case, his Honour applied a very substantial s.44 variation with a head sentence of seven years and a non-parole period of three years. The non-parole period comprised about 43% of the head sentence. Of course, the balance of the term must not exceed 33⅓% of the non-parole period unless the court decides that there are special circumstances: s.44(2). As I have said, the balance of the term here constituted a very substantial variation of the statutory ratio.
93 The sentencing judge gave brief reasons (set out at [38] above) for varying the statutory ratio. In my view, those reasons are not persuasive so as to explain a non-parole period which is 43% of the head sentence. A finding of special circumstances authorises a reduction in the otherwise appropriate non-parole period. It does not authorise an increase in the term of the sentence. It would be erroneous to extend the length of the head sentence beyond that which would otherwise be called for to allow for a protracted period of supervised liberty to the offender: R v Mauri [2005] NSWCCA 272 at [37].
94 In my view, there is something of a disconnect between the head sentence and the non-parole period in this case. Although error has been demonstrated with respect to the head sentence, no error has been demonstrated concerning the non-parole period. It would be wrong to reduce the non-parole period, in an automatic way, because error had been demonstrated in the head sentence: R v Porteous [2005] NSWCCA 115 at [44]. A non-parole period of three years represents the minimum term of imprisonment which ought be served by the Applicant: Power v The Queen (1974) 131 CLR 623 at 628; R v Porteous at [53].
95 A total head sentence of five years and three months will be imposed. The result will see an effective non-parole period of three years remaining as part of the sentence. In my view, this is the minimum period that the Applicant should spend in prison having regard to all the elements of punishment, including the objective seriousness of his crimes, deterrence, denunciation, protection of the community and the Applicant’s subjective circumstances: R v MA (2004) 145 A Crim R 434 at 440-441 [33]-[34].
96 I propose the following orders:
(a) leave is granted to appeal against sentences imposed on 26 April 2007 in the Orange District Court;
(c) in lieu thereof, the Applicant is sentenced:(b) appeal allowed and sentences imposed on 26 April 2007 are quashed;
(1) for the offence of break, enter and steal on Bradley’s Florist shop - imprisonment for a fixed term of 12 months to date from 1 March 2007 and to expire on 29 February 2008;
(3) for the offence of break, enter and steal on Swish Homes and Living - imprisonment for a fixed term of 18 months to date from 1 December 2007 and to expire on 31 May 2009.(2) with respect to each of the five offences under s.195(b) Crimes Act 1900 - imprisonment by way of a non-parole period of two years and six months commencing on 1 September 2007 and expiring on 28 February 2010 with a balance of term of two years and three months commencing on 1 March 2010 and expiring on 31 May 2012;
97 The earliest date upon which the Applicant will be eligible for release on parole is 28 February 2010. I confirm the recommendation made in the District Court that the Applicant be placed in a young offenders programme and that he be provided with psychological counselling whilst in custody.
98 McCALLUM J: I agree with Johnson J.
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