R v Ceissman - [2004] NSWCCA 466

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Ceissman [2004] NSWCCA 466

FILE NUMBER(S):
2004/2124

HEARING DATE(S): 14/12/04

JUDGMENT DATE: 20/12/2004

PARTIES:
Regina
Adam Stephen CEISSMAN

JUDGMENT OF: Wood CJ at CL Simpson J Barr J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0223

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

COUNSEL:
Dr P Power SC (Crown)
H Dhanji

SOLICITORS:
S Kavanagh (Crown)
S E O'Connor

CATCHWORDS:
Criminal law - aggravated break enter and steal in company - bank robbery - Crown appeal against sentence as manifestly inadequate - objective seriousness of offence - determination of appropriate starting point for sentence - patent or latent error - Respondent on parole - significant criminal history - similar past offence - s 112(2) Crimes Act (NSW) 1900 - s 21A(2), s 21A(3), s 44(2), s 54A(2), s 54B Crimes (Sentencing Procedure) Act 1999.

LEGISLATION CITED:
Crimes Act (NSW) 1900 s 112(2)
Crimes (Sentencing Procedure) Act s 21A(2), s 21A(3), s 44(2), s 54A(2), s 54B

DECISION:
1.Appeal allowed
2.Sentence below quashed and in lieu thereof sentence the Respondent to a non-parole period of 4 years and 6 months to date from 8 May 2003 and to expire on 7 November 2007, and to a balance of term of 2 years. The earliest date on which he would be eligible for release on parole would accordingly be 7 November 2007.

JUDGMENT:

- 11 -

IN THE COURT OF
CRIMINAL APPEAL

2004/2124
WOOD CJ at CL
SIMPSON J
BARR J
Monday 20 December 2004

Regina v Adam Stephen CEISSMAN

Judgment

WOOD CJ at CL: This is a Crown appeal against the sentence imposed upon the Respondent by Judge Dodd in the Sydney District Court on 1 July 2004, following his plea of guilty to one count of aggravated break enter and steal in company contrary to s 112(2) of the Crimes Act (NSW) 1900. The sentence imposed, taking into account two offences on a Form 1 of being disguised with intent to commit an indictable offence and of being carried in a conveyance taken without the consent of its owner, was one of imprisonment for 6 years with a non-parole period of 3 years, to take effect from the date of arrest, namely 13 May 2003. Although the sentence was not structured in accordance with s 44 of the Crimes (Sentencing Procedure) Act, for all practical purposes it may be assumed that what his Honour set was a non-parole period of 3 years and a balance of term of 3 years.
FACTS
Warren Cornett and another unidentified male approached the Respondent, in about mid April 2003 in relation to a plan, which they had formulated, to carry out a bank robbery in Narrabeen. The Respondent had only recently been released from prison. He agreed to participate. The plan was put into effect on the morning of 8 May 2003, when an unidentified male drove the Respondent and Cornett to the vicinity of the bank in a stolen BMW. Cornett gave the Respondent a sledgehammer, gloves and a balaclava en route.
After conducting surveillance for about 15 minutes, between 8:30 and 8:45 AM, the Respondent and Cornett pulled balaclavas over their faces and ran to the front of the bank. The Respondent used the sledgehammer, and Cornett used a crowbar to smash and pull out the window next to the ATM, and by that means they gained access to the Bank.
The four staff on the premises, who had been replenishing the ATM, retreated to the rear of the bank, activated the security screens and raised the alarm. Cornett directed the Respondent to the vaults where he attempted, unsuccessfully, to smash open a safe using the sledgehammer. He joined Cornett in a search of the premises looking for money. They located some stacks of $50 and $20 notes in a room behind the vaults, which they stole before decamping in the stolen get away car. The total cash stolen was $171,980. Little of this was recovered.
His Honour held that the offence was towards the upper end of the scale for such offences and hence fell above the mid range of objective seriousness utilising the language of s 54A(2) of the Crimes (Sentencing Procedure) Act, particularly having regard to the use of the sledgehammer and the amount taken. He found that the Respondent had played no part in the planning of the offence, and that Cornett had directed him during its commission. Nevertheless his Honour found that the Respondent had clearly known what was involved prior to the day that the plan was carried into effect. He also found that he had been pressured into committing the offence because of the obligation which he had to repay a debt which he had incurred while in prison for the purchase of heroin for his own use.
The Crown submits that the sentence was manifestly inadequate and suggests that error occurred in three respects:
(a) In the assessment of the objective seriousness of the offence;
(b) In the determination of an appropriate starting point;
(c)In a failure to adequately reflect the serious aggravating factors that the offence was committed while the Respondent was on Parole, that he had a significant criminal history, and that he had committed a similar offence in the past.
There is an obvious overlap in these contentions, and, as this is a Crown appeal, it is one to which the principles summarised by me in R v Wall [2002] NSWCCA 42 apply, as follows:
“…it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:
(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at paras 61 and 62, and Wong & Leung v The Queen at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.”
It may also be noted that a further restraint on interference arises from the strong resistance that exists against appellate tinkering with sentences: see Dinsdale v The Queen (2000) 202 CLR 321 also at para 62, an admonition that has not always been heeded in both Crown appeals and in appeals against sentence.
In order for the Crown to make its appeal good it must first establish either patent or latent error, sufficient to justify an exercise of the discretion referred to in the extract from the decision in Wall; and see also R v Bezan [2004] NSWCCA 342 at paras 26 to 28 where I drew attention to the circumstance that it is only where the sentence is clearly outside the appropriate range that latent error is to be found.
This appeal is to be considered in a context where the maximum available penalty for the offence charged is one of imprisonment for 20 years, and the offence is one for which a standard non-parole period of 5 years has been fixed. While it was held in R v Way [2004] NSWCCA 131 that this period was intended to apply to an offence which is in the middle range of objective seriousness where there has been a plea of not guilty, it nevertheless has an important role as a reference point for sentences after a plea: see R v Davies [2004] NSWCCA 319.
In sentencing the Respondent his Honour expressly took into account the circumstances that:
(a)when interviewed, after his arrest, he made full admissions and nominated his two co-offenders, although the police did not accept that he had correctly named the driver;
(b)he had provided some information in relation to a gaol murder, the correctness of which police also did not accept, but which had led to the need for him to serve the sentence on protection;
(c)he was 31 years of age and had a criminal history dating back to 1985, including “convictions for like offences”, with the result that, in the last 9 years, he had only spent two months not in custody, a record which his Honour found did not entitle him to any leniency;
(d) he had re-offended while on parole;
(e)he had been raised in the Redfern area, and had continually gravitated back to the Redfern community where he tended to revert to drug use;
(f)he had addressed his drug and alcohol history only sporadically and had said that it was his inability to handle emotions that triggered his drug use;
(g)he claimed to have been using $100 worth of heroin at the time of the offence and to have been drinking alcohol every second day;
(h)he was in a de facto relationship and had three children, and was described by his partner as an excellent father;
(i)he had limited education but had been undertaking some trade courses, had been studying while in prison, and had received good reports from his supervisors, as to his behaviour particularly over the last 3 years;
(j)He had agreed to forfeit the motor vehicle which he had purchased from his share of the proceeds of the offence, by way of reparation, a matter indicative of remorse;
(k)he had given evidence of a preference for leading a law abiding life out of prison rather than continually returning to prison; and that
(l)although speculative, he had some prospects of rehabilitation, bearing in mind the attitude of his partner and father each of whom was supportive of him.
His Honour accepted that the Respondent was entitled to have taken into account, in his favour, his preparedness to supply information to the police about Cornett and to give evidence in any prosecution of him. He also found that he was entitled to a discount of 25%, for his plea which was to be regarded as having been made at the earliest available opportunity.
Attention was given to the provisions of s 21A of the Crimes (Sentencing Procedure) Act, in so far as his Honour identified, as aggravating factors, the matters referred to in s 21A(2)(d), (j) and (n) and correctly excluded those factors that were elements of the offence. The mitigating factors which his Honour found to be present were those mentioned in s 21A(3)(d), (i), (k), and (m). So far as I can see no relevant mitigating factor was overlooked.
The Form 1 matters were held by his Honour to have been so highly connected with the commission of the offence that they should not result in any lengthening of the overall sentence either as to the non-parole period or the balance of parole. No error exists in that respect.
Special circumstances were found relating to the Respondent's age and the need for an extended period of supervision by reason of the length of the time that he has spent in prison, almost continually, since the age of 22, and his tendency to revert to drug addition. As a result the balance of the term of the sentence was well in excess of that specified in s 44(2) of the Crimes (Sentencing Procedure) Act.
It is not evident, on the face of his Honour’s comprehensive reasons for sentence that, save for one matter, any relevant sentencing principle was overlooked or incorrectly stated. The only exception was the assumption that the case fell directly within the net of s 54B of the Crimes (Sentencing Procedure) Act. More correctly, since it was a matter dealt with on a plea, the standard non-parole period referred to in the Table provides a reference point: see R v Davies (Supra).
In these circumstances the Crown needs to show that the sentence was so obviously outside the legitimate sentencing range as to demonstrate latent error.
In my opinion it has satisfied that test for two reasons.
The first reason is that the imposition of a sentence involving a non-parole period of 3 years, and a balance of term of 3 years, appears quite disproportionate for an offence which his Honour described as falling towards the “upper end of the scale” for an offence of its kind, even after making full allowance for the subjective circumstances as they were presented to his Honour. In that regard, I would accept the Respondent's contention that his Honour needed to take into account the fact of protection upon the basis of the evidence that was led, being confined to that which came from the Respondent, to the effect that, at the Parklea Correctional Centre, he was only allowed one hour out of the cells each day.
I do not, however, consider it necessary to decide the issue which arose, as to whether, in the absence of the Prosecution having placed before the sentencing judge the full factual details of the Respondent's prior conviction for armed robbery, which had been the subject of the decision of this Court in R v Ceissman [2000] NSWCCA 274, it is permissible for us now to have regard to the contents of that judgment, as a curial document on the public record, in determining the adequacy of the sentence. That it was permissible for us to do so, and as a consequence, to be aware of the fact that the Respondent had previously been convicted of an almost identical offence, and then to take that into account when considering whether there was latent error, was the contention of the Crown. Reliance was placed upon R v Snider [2004] NSWCCA 134 per Kirby J at paras 47 to 49, where his Honour, while offering some support for such proposition, considered it unnecessary for decision upon the facts of that case.
I similarly consider, in the present case, that there was sufficient on the face of the record, including the finding that the Respondent had “convictions for like offences”, and his criminal history, to show that the sentence was disproportionate to the criminality involved, without resort to the earlier judgment of this Court, bearing in mind that the maximum sentence available for the offence was one of imprisonment for 20 years, and that it was one which had been selected by the legislature as appropriate for the specification of a standard non-parole period.
In this regard, the statement of principle by Howie J in R v Moon (2000) 117 A Crim R 497 is apposite:
“67    Firstly, the court must have regard to the maximum penalty for the offence at the time when the crime was committed. This will indicate the policy of the legislature at the time the offence was committed: Oliver (1980) 7 A Crim R 174. It will prescribe the limit of the court’s discretion, as the maximum penalty is intended for cases falling within the worst category of cases for which the penalty is prescribed: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; Ibbs v The Queen (1987) 163 CLR 447 at 451. Prima facie the maximum penalty indicates the seriousness of the offence: Gilson v The Queen (1991) 172 CLR 353 at 364.
68    Secondly, the court must consider where in the range of the conduct covered by the statutory offence, the particular criminal conduct committed by the offender falls: Baumer v The Queen (1988) 166 CLR 51 at 57; Ibbs, above, at 452. This will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of the offence committed and set the limits within which a sentence proportional to the criminality of the offender will lie.
…
70    The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: Dodd (1991) 57 A Crim R 549, and be proportional to the criminality involved in the offence committed: Veen v The Queen (1979) 143 CLR 458. Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.”
As has been noted apart from the fact that the present case was a well planned professional bank robbery, in which force was used and a considerable sum of money was stolen, the Respondent came before his Honour with a bad prior record, which had resulted in a lengthy period of almost continuous custody, and which had seen him reoffend while on parole on four occasions. He had reoffended again during the first two months of his most recent release on parole, and that was an aggravating circumstance of some significance: R v Fernando [2002] NSWCCA 28 and R v Tran [1999] NSWCCA 109.
The “economic duress” which the Respondent suggested had led him to join in the venture may have provided the motive, but it did not, in my view, mitigate the objective criminality of the Respondent, since it stemmed from independent criminal conduct on his part and arose from his continued association with career criminals.
The second reason why error has been shown relates to the extent to which there was a variation in the statutory ratio between the balance of the term and the non-parole period, which suggests that disproportionate weight was given to the subjective circumstances of the Respondent.
The evidence led from the Respondent, to the effect that he had never previously given assistance to the authorities, and had done so, on this occasion, because he wanted to change his values and principles “from a pro[fessional] criminal”, so that he could be “a good role model for his newborn son and daughter” while commendable, hardly placed him in the category of an offender at the cross roads within the well known meaning of that expression as used in R v Osenkowski (1982) 5 A Crim R 394.
The caution which this Court has expressed in relation to the need to subject evidence of this kind to careful analysis and not to resort to “wishful thinking” (per Dunford J in R v Govinden (1999) 106 A Crim R 314; or to a “triumph of hope over experience” per Spigelman CJ in R v Hunt [2002] NSWCCA 482, is apposite.
The Respondent’s record and his ready return to drugs tend to belie any suggestion that, on this occasion, he should be given any substantial consideration in relation to the proportion between the non-parole period and the balance of term. His was a record which suggested an undue readiness to resort to drug use, and to criminal offending when personal problems emerged, and his Honour’s finding that his prospects of rehabilitation were “speculative” could not be said to have been other than realistic.

In these circumstances, I am persuaded that the appeal properly falls within the category of cases where legal error is to be inferred from the inadequacy of the sentence, notwithstanding the cautious approach which the Court has favoured, for example in R v Baker [2000] NSWCCA 85 at paras 11 to 12 and at para 19 and in R v Bezan (Supra).
The question of discretion arises for consideration. It was submitted by the Respondent that there were two reasons for exercising that discretion in his favour. First, it was submitted that the delay between sentence being pronounced on 1 July 2004 and the appeal being signed on 11 August 2004 and served on the following day, but not filed until 19 August 2004, was excessive and constituted hardship. I am not persuaded that in this case a delay of 6 weeks between sentence and notification is of sufficient significance, to warrant dismissal of the appeal.
Secondly, reference was made to the fact that the sentence which the co offender Cornett received for this offence was one involving a fixed term of 4 years, which was totally subsumed within the sentences imposed for the remaining offences for which he was sentenced. Judge Williams had indicated, in that case, that he would have imposed a total head sentence of 19 years with a non-parole period of 14 years for all of the offences, in respect of which a number of other offences were also taken into account on a Form 1. It was reduced to one which resulted in an effective non-parole period of 6 years and a balance of term of 2 ½ years.
I accept that it would be inappropriate for this Court to substitute a sentence which would result in the Respondent having a legitimate sense of grievance when comparing his sentence with that of his co offender, for the reasons outlined in Lowe v The Queen (1984) 154 CLR 606, Postiglione v The Queen (1997) 189 CLR 295, and Siganto v The Queen (1998) 194 CLR 656.
There were in this instance, significant differences between Cornett and the Respondent in that Cornett:
(i)had provided assistance that was assessed as “substantial”, including an undertaking to give evidence and the provision of information which was unknown to police, which left him and his family in a serious degree of personal danger and which, in combination with his pleas, attracted a discount of 55%;
(ii)was held in the Special Witness Unit with the consequent hardship attaching to that fact and will need relocation and special protection following his release;
(iii)         had a lesser record than the Respondent;
(iv)         was younger than the Respondent;
(v)          had not been on conditional liberty when he had offended;
(vi)had a severely abusive and dysfunctional past and was found to be genuinely remorseful.
By contrast, while the Respondent was entitled to a discount for his plea and assistance in nominating Cornett (who had been arrested on the occasion of his last offence) as his co offender, his “assistance” otherwise was judged to be neutral in so far as the police did not believe the information which he had supplied.
The fact that Cornett had pleaded to a large number of unrelated offences and had acknowledged his guilt in relation to the Form 1 offences, constituted a very significant utilitarian benefit to the criminal justice system.
It is also not to be overlooked that Cornett received after discount, a fixed term of imprisonment for the present offence which exceeded the non-parole component of the Respondent's sentence by one year. Admittedly the Respondent's release at the end of that period would not be automatic, and he faces a possible revocation of parole if he reoffends. Nevertheless, there are significant differences between the two offenders and an increase in the Respondent's sentence to the least that could properly have been imposed, would not result in a sentence that would offend the parity rule.
I am therefore of the opinion that notwithstanding the discretion, the case is one where the Court should intervene. In determining an appropriate sentence I consider, as did Kirby J in Snider that it is appropriate for us to refer to the earlier judgment of this Court, concerning the offences that were there under consideration, and which show that they were not only similar to the matter which is now before us, but were particularly serious.
I am also satisfied that it is proper for us to refer to the affidavit which has been tendered to show that the Respondent's conditions of detention as Special Management Area Placement Prisoner at Junee Correctional Centre are very much less arduous than those which he apparently experienced at Parklea.
He is eligible for all programmes, he will not be prejudiced in the classification system, and he has the opportunity of extended periods outside his cell. This evidence demonstrates the point which this Court made in R v Totten [2003] NSWCCA 207, and in several subsequent cases, that it is inappropriate to make a general assumption that a Prisoner on protection will suffer some special hardship.
I would propose the following orders:
1. Appeal allowed;
2.Sentence below quashed and in lieu thereof sentence the Respondent to a non-parole period of 4 years and 6 months to date from 8 May 2003 and to expire on 7 November 2007, and to a balance of term of 2 years. The earliest date on which he would be eligible for release on parole would accordingly be 7 November 2007.
I would find special circumstances in relation to the balance of term in the desirability of the Respondent receiving a somewhat longer period of supervision post release, to address his drug addiction and to encourage his rehabilitation.
SIMPSON J: I agree with Wood CJ at CL.
BARR J: I agree with Wood CJ at CL.

**********

LAST UPDATED: 20/12/2004