R v Clifford

[2008] NSWCCA 190

New South Wales
Court of Criminal Appeal

CITATION:	R v Clifford [2008] NSWCCA 190
HEARING DATE(S):	2 July 2008
JUDGMENT DATE:	15 August 2008
JUDGMENT OF:	Allsop P at 1; James J at 2; Price J at 3
DECISION:	1. Crown appeal allowed. 2. Sentences imposed in the District Court on counts 2-7 inclusive are quashed. 3. In respect of count 2 sentence the respondent to imprisonment for a non-parole period of 2 years 9 months to date from 12 September 2007 and expire on 11 June 2010 and a balance of term of 2 years 6 months expiring on 11 December 2012. 4. In respect of count 3 sentence the respondent to imprisonment for a fixed term of 15 months commencing on 12 October 2007 and expiring on 11 January 2009. 5. In respect of count 4 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 December 2007 and expiring on 11 June 2009. 6. In respect of count 5 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 March 2008 and expiring on 11 September 2009. 7. In respect of count 6 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 June 2008 and expiring on 11 March 2010. 8. In respect of count 7 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 December 2008 and expiring on 11 September 2010. The overall effective sentence will be a non-parole period of 3 years 9 months commencing on 12 December 2006 and expiring on 11 September 2010 and a balance of term of 2 years 3 months expiring on 11 December 2012. The earliest date on which the respondent will be eligible for release to parole is 11 September 2010.
CATCHWORDS:	Criminal law - sentencing - Crown appeal - offences of break, enter and steal - sentence manifestly inadequate - repeat offending - small businesses - accumulative effect of aggravating factors - matters on Form 1 - consideration of discretion not to intervene - sentence manifestly inadequate
LEGISLATION CITED:	Crimes Act 1900 s 113(1), s 112(1), s 154AA(1), Crimes (Sentencing Procedure) Act 1999 s 3A, s 21A(2)
CATEGORY:	Principal judgment
CASES CITED:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Ayoubi v Regina [2006] NSWCCA 364 Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Malvaso v The Queen (1989) 168 CLR 227 Markarian v The Queen (2005) 79 ALJR 1048 Mill v R (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Allpass (1993) 72 A Crim R 561 R v Baker [2000] NSWCCA 85 R v Barton (2001) 121 A Crim R 185 R v Brown [1999] NSWCCA 323 R v Chad (Court of Criminal Appeal, 13 May 1997, unreported) R v Fernando [2002] NSWCCA 28 R v Harris (2007) 171 A Crim R 267 R v Knight (2005) 155 A Crim R 252 R v Lay [2006] NSWCCA 45 R v McNaughton [2006] NSWCCA 242 R v Papazis (1991) 51 A Crim R 242 R v Ponfield (1999) 48 NSWLR 327 R v Simpson (2001) 53 NSWLR 704 R v Tait (1979) 46 FLR 386 R v Wall [2002] NSWCCA 42 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong and Leung v The Queen (2001) 76 ALJR 79
PARTIES:	Regina Adrian Earl Albrecht Clifford
FILE NUMBER(S):	CCA 2007/9289
COUNSEL:	N Adams (Applicant) A Francis (Respondent)
SOLICITORS:	S Kavanagh Public Prosecutions (Applicant) S O'Connor Legal Aid Commission (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/1085
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	7 February 2008

2007/9289

ALLSOP P
JAMES J
PRICE J

15 August 2008

R v Clifford

Judgment

1 ALLSOP P: I have had the considerable advantage of reading in draft the reasons of Price J. I agree with the orders proposed by his Honour and the reasons therefore. As can be seen from his Honour’s reasons, this is a difficult appeal. At the sentencing, the Crown gave its imprimatur to the anticipated effective outcome of the sentencing judge’s views, though before his Honour delivered his sentencing remarks. These remarks, however, betrayed the errors identified by Price J. Also, the total effect of the sentences was a result which, in my view, should be seen as manifestly inadequate by reference to any reasonable appreciation of the seriousness of the offences, their repeated occurrence and the fact of commission while on conditional liberty. Giving the fullest weight possible to the respondent’s assertions of reform and rehabilitation and to the Crown’s approach at the sentencing hearing, it is necessary to increase the respondent’s sentences, at least, as identified by Price J.

2 JAMES J: I agree with Price J.

3 PRICE J: The Crown appeals against the sentences imposed on the respondent in the District Court at Gosford on 7 February 2008 on the ground of manifest inadequacy. The respondent had pleaded guilty in the Local Court and came before the Judge for sentence on the following counts:

Count 1: Break and enter with intent contrary to
s 113(1) of the Crimes Act 1900;
Counts 2, 4, 5, 6 and 7: Break, enter and steal contrary to
s 112(1) of the Crimes Act ;
Count 3: Steal motor vehicle contrary to
s 154AA(1) of the Crimes Act.

4 The respondent asked the Judge to take into account on sentence 14 offences which had been included on a Form 1. Twelve of these matters were offences of break, enter and steal contrary to s 112(1) of the Crimes Act. The remaining matters were an offence of break and enter with intent contrary to s 113(1) and an offence of attempt break, enter and steal contrary to s 112(1). When sentencing the respondent, the Judge said that the offences included on the Form 1 had been taken into account in the sentence imposed for count 2.

5 An offence contrary to s 154AA(1) of the Crimes Act is punishable by 10 years imprisonment. Offences contrary to s 112(1) are punishable by 14 years imprisonment whereas offences contrary to s 113(1) are punishable by imprisonment for 10 years. The standard non-parole period provisions do not apply to these offences.

6 The Judge found that all the pleas of guilty had been entered at the first reasonable opportunity and the respondent was entitled to the full utilitarian discount. Bearing in mind the utilitarian discount and the genuinely expressed remorse and contrition, a discount of 25 per cent was allowed.

7 The following sentences were imposed:

Count 1: Fixed term of 15 months imprisonment to date from 12 December 2006 and expire on 11 March 2008;
Count 2:
(including 14 Form 1 matters) Imprisonment for a non-parole period of 2 years to date from 12 June 2007 and expire on 11 June 2009 with an additional term of 2 years 6 months to date from 12 June 2009 and expire on 11 December 2011;
Count 3: Fixed term of 15 months imprisonment to date from 12 January 2007 and expire on 11 April 2008;
Count 4: Fixed term of 18 months imprisonment to date from 12 February 2007 and expire on 11 August 2008;
Count 5: Fixed term of 18 months imprisonment to date from 12 March 2007 and expire on 11 September 2008;
Count 6: Fixed term of 18 months imprisonment to date from 12 April 2007 and expire on 11 October 2008;
Count 7: Fixed term of 18 months imprisonment to date from 12 May 2007 and expire on 11 November 2008.

8 The total effective sentence imposed by the Judge was a non-parole period of 2 years 6 months commencing on 12 December 2006 and expiring on 11 June 2009 with a balance of term of 2 years 6 months expiring on 11 December 2011.

9 The principles relevant to Crown appeals against sentence are well established and were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]:

“…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 32, 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.”

The offences

10 During the sentencing proceedings, an agreed statement of facts was tendered. The facts of each offence are mainly derived from that document.

11 The circumstances of count 1 (s 113(1) offence) were that between 5pm on 3 June 2005 and 7am on the next day the respondent broke into the business premises of Action Steel at Tuggerah. He accessed the Telstra roadside phone line pit and severed the telephone lines disabling the alarm system. He cut a hole in the chain link security fence and smashed an external alarm box. He then smashed a window and entered the building where he smashed an alarm control. Offices within the building were ransacked before the respondent left by a side door.

12 The circumstances of count 2 (s 112(1) offence) were that the respondent in the early hours of the morning on 7 February 2005 went to the Home Central complex at West Gosford. Having forcibly entered the control room, he severed Telstra cables to the Timberland store thereby disabling the alarm system. He then cut a hole in the perimeter fence, smashed a window in the front door of the Timberland store, entered the store and ransacked the counter and office area. In the rear storeroom, he located a safe which was bolted to the floor inside a cupboard. The respondent forced the safe from the cupboard and exited the building through the rear fire escape. The safe contained $284.83 in cheques and $4017.70 in cash. The safe and cash have not been recovered.

13 For count 3 (s 154AA(1) offence) the facts disclose that about 3am on 9 October 2004, the respondent cut a heavy chain securing vehicles in the yard of Skyline Auto Sales at Gosford. He smashed the windows of two motor vehicles in the yard which he moved. He then stole a 1990 Ford 150 pick-up utility.

14 The circumstances of count 4 (s 112(1) offence) were that between 1pm on 3 February 2002 and 8am the next day the respondent cut a hole in a rear perimeter fence of the business premises of Coventry Auto Parts at Campbelltown. Having smashed a window, he reached through the hole in the window and stole three socket sets to the value of $525.

15 Count 5 (s 112(1) offence) involved the respondent breaking into the premises of Bayline Roofing at Tuggerah between 2pm on 7 May 2006 and 5.30am the next day and stealing $500 cash.

16 Count 6 (s 112(1) offence) concerned the respondent breaking into the premises of Northcoast Shower Screens at Tuggerah between 12pm on 16 April 2005 and 7am on 18 April 2005 from which he stole a free standing safe, a cash box and $500 in cash.

17 The circumstances of count 7 (s 112(1) offence) were that about 10pm on 13 June 2006 police responded to an alarm activation at the Anthony Automotives workshop at Erina. Police found the phone lines cut and surveillance cameras and external alarms disabled. A window of the office had been smashed and $300 cash stolen. A hole had been cut in a rear perimeter fence. Shortly afterwards, the respondent and co-accused were arrested.

18 It is necessary to detail the facts of the offences on the Form 1 to appreciate the seriousness of each of these offences.

19 The circumstances of the first offence were that between 5.30pm on 31 August 2006 and 6.50am on 1 September 2006, the respondent cut a rear chain link security fence to gain entry to the business premises of Drought King Water Tanks at Charmhaven. He accessed the Telstra phone lines in a roadside pit near the premises and severed them to disable the alarm systems. He removed an external alarm mounted on the wall of the building, smashed a window in the front door and rummaged through the office area. No property, however, was stolen.

20 The circumstances of the second offence were that between 5pm on 2 June 2006 and 6am the next day, the respondent broke into Harcorp Projects at West Gosford and stole three laptop computers and three computer monitors valued at $10,281.

21 Offence 3 involved the respondent breaking into All States Trailer Spares and Sales at Tuggerah and stealing $2,100. Offence 4 involved an attempted break in at a business premises at Erina whereas offence 5 involved the respondent breaking into Randbuild, West Gosford from which he stole two wide screen computer monitors, one computer and two sets of PGA brand golf clubs and bags valued at $2,000. In committing offence 6, the respondent broke into business premises at Warnervale at about 9.07pm on 26 March 2006 from which he stole a metal safe containing $1,000 cash. Offence 7 involved the respondent breaking into business premises at Erina between 17 June and 20 June 2005 from which he stole a cash register containing $300 and an eftpos card reader.

22 The circumstances of offence 8 were that the respondent between 11 May 2005 and 12 May 2005 broke into Planit Enterprises at Erina and stole a flat screen computer monitor, a saw and other equipment of a total value of $1,300. Offence 9 concerned a break in by the respondent into business premises at West Gosford in the early hours of 21 March 2005 where he stole a strong box containing $200 and a further $200 cash. In committing offence 10, the respondent broke into business premises at Tuggerah where he stole computer equipment valued at $2,426, whereas in committing offence 11 he stole equipment of a total value of $4,700 after breaking into business premises at West Gosford between 5.35pm on 27 January 2005 and 6.15am on the next day.

23 Offences 12, 13 and 14 involved the respondent breaking into business premises at West Gosford and Erina. The circumstances of offence 12 were that after breaking in, the respondent stole a combination lock floor safe containing $3,000. Cash and equipment of a total value of $2,340 were stolen by the respondent in committing offence 13 and $461 cash in committing offence 14.

Subjective circumstances

24 The respondent was born on 14 April 1961 and was aged 46 years at the time of sentence. Evidence of his subjective circumstances was put before the Judge by way of a report of a psychologist Anna Robilliard, a pre-sentence report dated 7 February 2008 and the oral evidence of the respondent himself. A letter from the respondent to the Judge, a Justice Health report, a reference from the chaplain to the inmates and staff of the Parramatta Correctional Centre, another reference and a certificate of completion of the drug and alcohol awareness workshop were also tendered.

25 The respondent has been married twice and is in a long-term de-facto relationship with his current partner of 10 years. There is one child of the first marriage, a son who at time of sentence was aged 24 years. Following the break down of this marriage, the respondent re-married in the later 1980s. He and his wife had three sons, the eldest of whom died when 5 years old due to cancer. It seems that the loss of their son brought about the end of the marriage in 1997. Whilst he has a good relationship with his son from the first marriage, the respondent has not had contact with his children of the second marriage. Towards the end of 1998 he commenced a new relationship which was current at the time of sentence.

26 The author of the pre-sentence report, Ms McDonald, contacted the respondent’s partner who described him as a good and loving father to his children who were keen to have him home. There are three daughters from this relationship, an 8 year old and 5 year-old twins. Ms McDonald observed that the trauma resulting from the death of his young son had greatly affected the respondent who was diagnosed with post traumatic stress disorder and was prescribed anti-depressants in 1999. He stopped taking drugs when his partner became pregnant.

27 It seems that he commenced using cannabis around 2002 as a way of coping with the stress and depression resulting from the loss of his son. Ms McDonald reported that she had been told by the respondent that since he had been in custody he had come to the realisation that cannabis use was not the answer to his problems and was adamant that he would not be using drugs anymore. He told Ms McDonald that the main motivation for his offending behaviour was to obtain money to support his cannabis use. She expressed the opinion that since he had reportedly been drug free for 14 months on remand, it was possible that his arrest and incarceration “may have severed his escalating drug use and consequent offending behaviour”.

28 In her report, Ms Robilliard observed that the motivation for the offences was primarily to find cash to replace money he used to buy cannabis and for household expenses. The psychologist noted that the applicant was well-practised in denying and avoiding the impact of his behaviour on others. She opined that when he was able to see the wider consequences of his anti-social conduct he may be able to accept responsibility for his criminal history and choose a different future direction. In the past he had used cannabis to help him avoid painful psychological and emotional issues. Ms Robilliard considered that the respondent would benefit from parallel eduction and counselling in this regard. A period of ongoing monitoring and support post release would be helpful.

29 During his evidence, the respondent assured the Judge that his criminal behaviour would not happen again because he had hurt his family and the community. He testified that he was not using cannabis and did not have any craving for the prohibited drug.

30 The respondent’s prior criminal history for offences of dishonesty, which the Judge described as “reasonably lengthy”, includes sentences of imprisonment which were imposed by the District Court on 27 August 1981 for two counts of break, enter and steal. On the first count he was sentenced to 2 years imprisonment and on the second count to a cumulative term of 18 months imprisonment. He was also sentenced on two counts of larceny of a motor vehicle to 12 months imprisonment. A non-parole period of 15 months was imposed. On 21 September 1994 he was placed on a three-year good behaviour bond for larceny of a motor vehicle. On 16 May 1984, he was sentenced in the Local Court for possession of implements to enter a conveyance to imprisonment for 3 months. On 16 February 1987, he was ordered to perform 100 hours community service for illegal use of a motor vehicle, stealing and possession of implements. Terms of imprisonment of 9 months with additional terms of 3 months were imposed in the District Court at Liverpool in April 1991 for two counts of break, enter and steal and two counts of possession of house breaking implements.

31 On 26 April 2004 on a charge of receiving he was sentenced to 18 months imprisonment in the Gosford Local Court which was suspended on his entering into an 18 month good behaviour bond which was subject to Probation and Parole supervision.

32 It is important to observe that counts 1, 2, 3 and 6 and offences 7, 8, 9, 10, 11 and 12 on the Form 1 for which the respondent was sentenced were committed whilst he was subject to this suspended sentence.

33 There are offences of stealing, entering inclosed land and cultivation of Indian hemp upon the respondent’s record for which he has been convicted and fined.

Submissions

34 There is one ground of appeal which is that the sentence is manifestly inadequate. The Crown also submits that there are four discrete errors by the Judge which are said to be that his Honour:

(1) erred in failing to adequately reflect the aggravating features of this case in the sentence imposed;
(2) erred in the manner in which he applied the principles in Pearce v The Queen (1994) 194 CLR 610;
(3) failed to properly reflect the Form 1 matters when sentencing for count 2;
(4) erred in the excessive adjustment to the statutory ratio following a finding of special circumstances.

35 The Crown, as an alternative submission, argues that this Court would otherwise be satisfied that, by reason of some latent error, the sentence is manifestly inadequate.

36 The Crown complains that the Judge erred in failing to adequately reflect the aggravating features of this case in the sentence imposed. The Crown refers to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 and points to a number of factors being present which enhance the objective seriousness of the offences. Whilst acknowledging that the Judge stated in his sentencing remarks that he had regard to the principles set out in Ponfield, the sentence imposed failed to reflect the fact that the presence of the aggravating factors had a cumulative effect upon the seriousness of the offences. Counsel for the respondent, on the other hand, submits that the Crown’s complaint is in truth a complaint of manifest inadequacy. The Judge, it is argued, had regard to Ponfield and this is not a case where there was a failure by the Judge to have regard to that guideline judgment. There was no patent error by the Judge.

37 The second complaint by the Crown is that the Judge erred in the manner in which he applied the principles in Pearce. Not only were the individual sentences imposed inadequate, his Honour erred in his consideration of the second limb in Pearce, that is, the imposition of inadequate sentences combined with their almost total concurrency resulted in the aggregate sentence being manifestly inadequate. The Crown argues that the extent of the accumulation was nominal and insufficient to properly reflect the criminality involved.

38 In response to this complaint, counsel for the respondent submits that his Honour made no express error of principle in exercising his discretion concerning fixing the commencement date of the sentences. Questions of accumulation or concurrence are discretionary and involve evaluations on which judicial minds may differ. There was no express error in the approach taken by the Judge and it is submitted that this complaint is really one of manifest inadequacy.

39 The Crown’s third complaint is that the sentence on count 2 failed to properly reflect the 14 matters of a similar nature on the Form 1. Although the sentence on count 2 was more than the other sentences imposed, the Crown says that the effective non-parole period for this count was 7 months which does not properly reflect the degree of criminality. As to this complaint, counsel for the respondent contends that his Honour expressly had regard to the matters on the Form 1 when he sentenced the respondent on count 2. There was no express error in the approach taken by the Judge and the complaint is really one of manifest inadequacy.

40 The fourth complaint raised by the Crown is that the Judge erred in the excessive adjustment to the statutory ratio following a finding of special circumstances. The Judge allowed an effective ratio of 50 per cent between the overall non-parole period and balance of term (and a ratio of only 44 per cent on the sentence for count 2). The Crown contends that the exercise of the Judge’s discretion miscarried as he failed to have regard to the fact that the non-parole period must adequately reflect the objective gravity of the offences. A non-parole period of only 2 ½ years failed to reflect the multiplicity of offending on conditional liberty. It is so short, the Crown contends, that it implies error.

41 Counsel for the respondent submits in answer to this complaint that special circumstances were clearly open in this case on account of, inter alia, the respondent’s age, the accumulation of sentences, the need for supervision upon release and the responsibilities he had to his three daughters. A considerable variation to the ratio was open to the Judge in light of his factual findings in respect of which the Crown does not complain. During the proceedings on sentence, the legal representative for the respondent submitted that special circumstances were open and this submission was not the subject of any dispute by the Crown appearing at first instance. Counsel for the respondent points out that the Judge before proceeding to sentence raised with both counsel the sentences he intended to impose and the Crown did not wish to be heard.

42 The final contention for the Crown is that the effective sentence imposed was so manifestly disproportionate to the facts and circumstances of the case that it can be said that a substantial wrong has occurred. The Crown asks this Court to intervene to re-sentence the respondent notwithstanding the principle of double jeopardy and the residual discretion of the Court in Crown appeals.

43 Although conceding that the offences committed by the respondent were clearly serious, counsel for the respondent submits that the undiscounted starting point of the sentences was well within an appropriate range. Reference is made to Ayoubi v Regina [2006] NSWCCA 364 which is said to demonstrate that the sentence imposed upon the respondent was not manifestly unjust.

Decision

44 At the conclusion of the submissions on sentence, the Judge proceeded to sentence the respondent. His Honour was faced with a difficult sentencing task which he dealt with by delivering ex tempore reasons.

45 The first discrete error is said by the Crown to be that the sentence imposed failed to adequately reflect the aggravating features of the case.

46 Whilst declining to specify a sentencing range, this Court in Ponfield considered that the seriousness of a s 112(1) offence was enhanced by the presence of any of 11 factors identified by Grove J (Spigelman CJ and Sully agreeing) (at [48]). The following factors identified in Ponfield are relevant to the present case:

“(i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.
(ii) The offence is the result of professional planning, organisation and execution.

(iii) The offender has a prior record particularly for like offences.

…

(v) The offence is accompanied by vandalism and by any other significant damage to property.
(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the CriminalProcedure Act ). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416.

…

(viii) The value of the stolen property to the victim, whether that
value is measured in terms of money or in terms of sentimental value.”

47 Factor (iii) must be considered in light of R v McNaughton [2006] NSWCCA 242. Prior criminal offending is not an objective circumstance for the purpose of the application of the proportionality principle and does not determine the upper boundary of a proportionate sentence: Veen v The Queen (No 2) (1988) 164 CLR 465.

48 It is clear that his Honour was mindful of the guideline judgment as he expressly referred to Ponfield on four occasions during his ex tempore sentencing remarks. He considered the aggravating factors contained in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. There is some overlap between the aggravating factors in s 21A(2) and those identified in Ponfield.

49 In his consideration of aggravating factors, the Judge had regard to the respondent’s previous convictions as being relevant in “a Veen sense” to the question of punishment, personal deterrence and the prospects of rehabilitation. He noted that the respondent was on conditional liberty “in relation to a substantial number of these offences”. His Honour then said: (ROS at 5)

“It is clear that the activity was planned but the planning seems to be no more or less than that required to commit the offences, and in that sense the Court will take it into account without regarding it as an aggravating factor under s 21A.”

50 With respect, at the very least, the agreed facts of counts 1, 2 and 7 and offence 1 on the Form 1 disclose a significant degree of professional planning and execution by the respondent. In committing the offence constituting count 1, the respondent accessed the Telstra roadside phone line pit and severed the telephone lines disabling the alarm system before cutting a hole in the chain link security fence and smashing an external alarm box. The circumstances of count 2 include the respondent entering the control room of the Home Central complex where he severed the Telstra cables to the Timberland store, which he intended to break into, thereby disabling the alarm system. Having cut a hole in the perimeter fence and having smashed a store window, he removed a safe which had been bolted to the floor inside a cupboard. The steps that were taken to commit the offence which constitutes count 7 include the cutting of phone lines and the disabling of surveillance cameras and external alarms. The circumstances of the first offence on the Form 1 include the respondent accessing the Telstra phone lines in a road side pit near the premises he intended to break into and severing them to disable the alarm systems. The external alarm mounted on the wall was removed.

51 These offences were plainly the result of professional planning and execution by the respondent, which was an aggravating factor identified in Ponfield. The Judge, with respect, erred in failing to take into account the respondent’s professional planning and execution as a factor of aggravation.

52 Although his Honour in shortly stating the facts made mention that on most occasions [the offences] involved the disabling of alarm systems and the physical smashing of either windows, doors or fencing, there was no mention by the Judge in his consideration of aggravating factors that any of the offences had been accompanied by significant damage to property. As I have indicated, significant damage to property is a factor identified in Ponfield as enhancing the seriousness of a s 112(1) offence. I am conscious that his Honour’s remarks were delivered ex tempore and the omission of a reference to such damage as an aggravating factor does not necessarily mean that it was overlooked. His Honour’s consideration of the amounts of money which were stolen, however, suggests that the significant damage to property was not regarded as a factor of aggravation.

53 The facts disclose in counts 1, 2, 7 and offence 1 on the Form 1 the severing of telephone lines, the cutting of a security or perimeter fence, the smashing or disabling of an external alarm or surveillance camera and in counts 1 and 2 the ransacking of office areas. In my view, there was significant damage to property which was a factor of aggravation. With respect, the Judge erred in failing to take into account the significant damage to property as a factor of aggravation.

54 When referring to the amounts of money which had been stolen, the Judge said: (ROS at 5)

“It is fair to say that at times, reasonably large amounts of money, upwards of $4,000 were taken. In the Court’s view while the Court takes into account those amounts, it exercises its discretion under s 21A(5) not to aggravate the penalty any further by reason of the s 21A provision that deals with substantial loss.”

55 His Honour was referring to s 21A(2)(g) of the Crimes (Sentencing Procedure) Act which provides:

“the injury, emotional harm, loss or damage caused by the offence was substantial.”

And to s 21A(5) which is as follows:

“The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”

56 It seems from the passage that I have quoted at paragraph 54 that the Judge found that the stealing of amounts of money in excess of $4,000 was a substantial loss and a factor of aggravation. Count 2 was the only offence where money exceeding that amount was stolen. Computer equipment, however, valued at $10,218 (Form 1 offence 2) power drills and other equipment valued at $4,700 (Form 1 offence 11) were stolen. His Honour was not required to increase the sentence by reason of the aggravating factor which he found. His Honour was, nevertheless, obliged to consider this factor in conjunction with other aggravating factors which were present in assessing the seriousness of the respondent’s offending. As was said by Grove J in Ponfield at [48]:

“Necessarily, if more than one such factor is present there is an accumulative effect upon seriousness and the need for appropriate reflection.”

57 The first offence in time for which the respondent was to be sentenced was committed between 3 February 2002 and 4 February 2002 when he broke into the business of an auto parts dealer and stole three socket sets to the value of $525 (count 4). At the time of the commission of this offence, the respondent was not subject to conditional liberty. The suspended sentence of imprisonment was imposed on 26 April 2004. On this count the respondent was sentenced to a fixed term of imprisonment of 18 months.

58 When he broke into the business of Northcoast Shower Screens in April 2005 and stole $500 cash (count 6), the respondent was subject to the suspended sentence. Although, as I have recounted, his Honour noted that the respondent was on conditional liberty at the time he committed a number of offences, the length of the sentence imposed on count 6 does not appear to reflect the presence of that factor of aggravation. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation: see, for example, R v Fernando [2002] NSWCCA 28. The same length of sentence for counts 4 and 6 cannot be explained by different conduct nor by the principle in Pearce which obliged the Judge to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality. I am satisfied that his Honour overlooked the presence of this factor of aggravation when he sentenced for count 6.

59 The respondent was also subject to conditional liberty when he committed the offences constituting count 1 (s 113(1) offence), count 2 (s 112(1) offence) and count 3 (s 154AA(1) offence). The shorter sentences for counts 1 and 3, perhaps, might be explained by the available maximum sentences.

60 A fixed term of 18 months imprisonment was also imposed for count 7. Factors of aggravation which were there present included professional planning and execution and significant damage to property. The same length of sentence as count 4 indicates, in my view, that the Judge did not consider the accumulative effect of these factors of aggravation upon the seriousness of this offence.

61 On count 2 the respondent was sentenced to a non-parole period of 2 years with an additional term of 2 ½ years. His Honour took into account when imposing this sentence the 14 matters on the Form 1. The length of the sentence was significantly more than the other sentences. The Crown complains that the sentence on count 2 failed to properly reflect the fact that there were 14 matters of a similar nature on the Form 1.

62 The notional starting point for this sentence making allowance for a 25 per cent reduction for the plea of guilty was 6 years. Before embarking upon a consideration of the Form 1 offences, it is necessary to observe that the following factors of aggravation were present in the commission of the principal offence:

(1) The respondent was on conditional liberty;
(2) The offence was the result of professional planning and execution;

(3) The respondent had a prior record of like offences;

(4) The offence was accompanied by vandalism and significant damage to property;
(5) The value of the property stolen was substantial, namely, $284.83 in cheques and $4,017.70 in cash.

63 The offence was committed on the 7 October 2005. It was the fourth offence in time of break, enter and steal for which he was to be sentenced.

64 Whilst his Honour rightly remarked that “in relation to R v Ponfield that all of the offences relate to business premises, all of which were vacant and the break and enters occurred at such time of day as made it exceedingly unlikely anyone would be present”, the victims of the respondent’s offending were small business proprietors, mainly on the Central Coast, many of whom had gone to considerable expense in an endeavour to make their properties secure against burglary. The proprietors of small businesses may be particularly vulnerable to the adverse impact of a break and enter. It is well known that such crimes may result, inter alia, in the loss of no-claim bonuses and substantial increases in insurance premiums that are to be paid. The ransacking of offices, the loss of cheques and cash can cause particular difficulty for small businesses. As Johnson J (with whom Mason P and Barr J agreed) in R v Knight (2005) 155 A Crim R 252 observed at [93] “the owners of small businesses are likewise entitled to the protection of the law” and a significant element of general deterrence should apply.

65 This Court in R v Harris (2007) 171 A Crim R 267 emphasised that heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence. To my mind, there is no good reason why what was said in Harris should not apply to repeat offenders who break into business premises.

66 Although the Judge announced when sentencing the respondent that the “Court has had regard to s 3A of the Crimes (Sentencing Procedure) Act which sets out the purposes of sentence” it is evident, with respect, that little regard was given to the need for general deterrence. General deterrence was a factor to be taken into account on count 2 as it was with all of the other sentences to be imposed.

67 The maximum sentence for a s 112(1) offence of 14 years imprisonment was not irrelevant to the sentencing task. It is the maximum penalty which has been legislated by Parliament. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 1048 at [31].

68 The objective seriousness of the primary offence called for, in my opinion, a substantial sentence before the offences on the Form 1 were taken into account.

69 There are 12 offences of break, enter and steal contrary to s 112(1), one offence of attempt break, enter and steal contrary to s 112(1) and one offence of break, enter and steal with intent contrary to s 113(1) on the Form 1. All of the offences are serious. A number of them are more serious than some of the individual offences for which the respondent was charged. Offences 7 – 12 inclusive were committed whilst the respondent was subject to conditional liberty.

70 It is settled principle that the sentence for the primary offence should not be only slightly increased if the offences to be taken into account on the Form 1 are serious in their own right: R v Barton (2001) 121 A Crim R 185; R v Pearce (2001) 126 A Crim R 508; Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

71 Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, the guideline for Form 1 sentencing, explained at [42]:

“The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by
reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given
when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.”

72 It is important to bear in mind the significant advantages that the Form 1 procedure provides to the administration of justice and the sentence must reflect that fact. It promotes the objective of rehabilitation by providing an opportunity “to clear the offender’s slate” and there is the utilitarian value in the admission of guilt which saves resources in further investigation by law enforcement agencies: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) 1999 No 1 of 2002 per Spigelman CJ at [62] – [65].

73 These considerations notwithstanding, the sentence imposed by the Judge on count 2 did not reflect the need for personal deterrence and the community’s entitlement to extract retribution from a serious offender.

74 One of the reasons, in my view, that this difficulty has arisen is because the Judge, with respect, did not have regard to all of the factors of aggravation that were present and to their accumulative effect upon the seriousness of the primary offence.

75 It is necessary to give consideration to the mitigating factors that were present in the respondent’s case. The Judge found that he had shown remorse and had pleaded guilty. Although not making a final determination, it appeared to the Judge that there was some basis for confidence that upon release the respondent would attempt to lead a law abiding life style. His Honour referred to the respondent’s age, above average intelligence, his insight into his present predicament, the impact that had upon his partner and children and the respondent’s appreciation that if called up for breach he would be required to serve the balance of parole in custody. Regard was had by his Honour to the efforts made by the respondent since his incarceration and the Judge made particular reference to the letter from Justice Health which indicated that the respondent had no significant issue with drugs. The Judge took into account all of the subjective material before him and remarked that the pre-sentence report and the report from Ms Robilliard were “generally speaking” favourable.

76 The respondent’s record, however, indicated that he had learnt little from the sentences imposed by courts in the past. Leniency had been extended to him on 26 April 2004 when the 18 month term of imprisonment was suspended. Within a few weeks of receiving this indulgence, he broke into the premises of Bayline Roofing and stole $500. As previously stated, a number of the offences were committed whilst he was on the good behaviour bond of the suspended sentence a condition of which was Probation and Parole supervision. The supervision condition appears to have been of little assistance to him. The fact that his repeat offending was motivated to finance his use of drugs was not a mitigating factor. It was an aggravating factor for those offences which were committed after he had entered into the bond as the use of illegal drugs was itself a breach of that bond.

77 The respondent’s evidence that he appreciated the harm caused by his criminal behaviour and assurances that he would not re-offend had to be assessed against the fact that he had re-offended shortly after the suspension of his sentence and continued to do so. The suspended 18 month term of imprisonment which was hanging over his head ought to have ensured that he did not continue to offend. He had previously served terms of imprisonment for similar offences.

78 His Honour in determining the length of the individual sentences and the non-parole period (a topic which will be considered separately) gave disproportionate weight, in my opinion, to the subjective material and failed to have sufficient regard to the objective gravity of the offending and to specific and general deterrence.

79 The Crown complains about the manner in which the Judge applied the principles in Pearce. In applying the principles established in Pearce the Judge said that he would impose discrete sentences on each offence and the principle of totality would be applied by only partly cumulating the sentences. Fixed terms were imposed in relation to counts 1, 3, 4, 5, 6 and 7 and the commencement dates of each sentence were staggered by one month. The non-parole period of 2 years for count 2 was set to commence one month after the commencement of the sentence for count 7. As a result of partial accumulation and concurrency, the effective additional sentence for each of the offences other than count 2 was one month. The effective additional non-parole period for count 2 was 7 months.

80 In Harris this Court considered the appropriateness of concurrent sentences in relation to multiple offences of break, enter and steal. Although in the present case wholly concurrent sentences were not imposed what was said by the Court in Harris remains of relevance. The Court stated at [40] – [42]:

“An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer that (sic) if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur – see R v Brown [1999] NSWCCA 323 at [24]; Mungomery (2004) 151 A Crim R 376 at 381.
Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.
Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.”

And at [44]-[45]:

“Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, “Principles of Sentencing” endorsed in Mill v R (1988) 166 CLR 59 at 63:-
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”
Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples ” (Italics added).

81 Each of the counts involved its own serious individual criminality. An effective additional sentence of one month for each of six of the offences (counts 1, 3-7) may not be considered to send a clear signal to serial offenders that they can expect punishment for each of their offences.

82 Although this was a complex sentencing exercise and his Honour was constrained by the principle of totality, greater accumulation was required on at least one of these counts. I am not persuaded, however, that his Honour erred in the manner in which he applied the principles in Pearce to count 2.

83 The next matter about which the Crown complains is the adjustment to the statutory ratio following a finding of special circumstances. The Crown points out that the Judge allowed an effective ratio of 50 per cent between the overall non-parole period and balance of term (and a ratio of only 44 per cent on the sentence for count 2). The Crown contends that the ratio was excessive.

84 The Crown referred the Court to the examination in Harris at [64-68] of the JIRS statistics relating to s 112(1) and s 112(2) offences. In Harris the Court noted at [67] that a comparison of the full terms and non-parole periods in 5 of the 7 groups there set out reveal that the median non-parole period was 50 per cent of the median full sentence. The Court said:

“When regard is had to the terms of s 44(2) of the Crimes (Sentencing Procedure) Act , the effect of which is to require a non-parole period to amount to three-quarters of the total sentence unless the court decides that there are “special circumstances”, it is apparent “special” is being given an operation that bears no relationship to its meaning.”

85 His Honour found special circumstances by reason of the respondent’s age of 46 years, his need for some ongoing treatment and counselling and the fact that a number of the sentences would be cumulative. There is no challenge by the Crown to his Honour’s finding of special circumstances.

86 The degree of adjustment of the statutory ratio, special circumstances having been found, will not usually be interfered with by this Court unless the non-parole period is found to be manifestly inadequate or manifestly excessive: R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [13].

87 The ultimate constraint, as was explained by Spigelman CJ in Simpson at [63], upon the sentencing Judge’s discretion following a finding of special circumstances, is that:

“…the non-parole period must itself appropriately reflect the criminality involved in the offence.”

88 In my view, the non-parole period of 2 years 6 months does not appropriately reflect the criminality involved in the respondent’s repeat offending much of which occurred when he was subject to conditional liberty.

89 Counsel for the respondent referred to Ayoubi where the offender had pleaded guilty to 12 counts of break, enter and steal, one count of break and enter with intent to steal and one count of stealing and attempting to break out. A further 14 offences were taken into account on a Form 1. The offences were committed in breach of conditional liberty. The offender was sentenced to an effective head sentence of 5 years imprisonment with a non-parole period of 3 years. The offender had broken into commercial premises and stolen in excess of $88,000 over six weeks. It was said that the sentence considered in Ayoubi demonstrates that the sentence imposed upon the respondent was not manifestly unjust.

90 The principal complaint in Ayoubi was that the offender’s mental illness had not been properly taken into account by the sentencing Judge. The question was not one of manifest inadequacy but manifest excess. Latham J (with whom Giles JA and Sully J agreed) in dismissing the appeal considered that the sentences were wholly with the sentencing Judge’s discretion and were not manifestly excessive. Her Honour observed at [33] that the aggregate sentence imposed might be seen as lenient. This case provides, in my view, little support for the argument advanced on behalf of the respondent.

91 In the present case, a number of errors of principle have been identified which have resulted in a total effective sentence which falls, in my opinion, outside an appropriate range and is manifestly inadequate. When this Court is re-sentencing after error has been demonstrated by the Crown, the sentence imposed will generally be towards the bottom of the available range. A total effective sentence of 6 years with a non-parole period of 3 years 9 months is such a sentence. The notional starting point of the sentence for count 2 should not have been less than 7 years. The sentences for counts 6 and 7 should not have been less than 21 months.

92 Although the Crown has been successful in demonstrating error, the Court has a “lively discretion” to refuse to intervene. In deciding whether to exercise that discretion, the Court has regard to double jeopardy and to the approach taken by the Crown’s legal representative before the Judge.

93 It is well established that the Crown’s concurrence with, or failure to object to, a proposed course of action by the sentencing Judge must be weighed in the exercise of the Court’s discretion to interfere on a Crown appeal or to interfere to a lesser degree than otherwise would have been appropriate. This Court (Gleeson CJ, Hunt CJ at CL and McInerney J) in Allpass at 565 said:

“The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error.”

94 In the proceedings on sentence, the Judge after hearing submissions from counsel for the respondent and the legal representative of the Crown stood the matter down. After a short adjournment, the following appears in the transcript:

“HIS HONOUR: Mr Brown, I have in mind a combination of sentences, most of which are fixed with the main one with the Form 1 being a non parole and additional term, and they’re all slightly cumulative one on the other, but the effective total sentence that I have in mind would be a non parole period of two and a half years and an additional term of two and a half years. Is there anything that either of you wanted to say about that?
BROWN (for the offender): No, I don’t want to be heard on that.

WHITAKER (for the Crown): No, your Honour.

HIS HONOUR: Right.”

95 Whilst it is plain that the Crown was made aware of the sentence that was contemplated and submissions were invited, the errors of principle which have lead to the manifest inadequacy of the sentence were not exposed until his Honour delivered his sentencing remarks. I am also mindful of Guideline 28 of the Prosecution Guidelines of the NSW Director of Public Prosecutions concerning the role of the prosecutor on sentence which obliges a prosecutor not to seek to persuade a court to impose a sentence of a particular magnitude. As was explained by Buddin J (with whom James and Hall JJ agreed) in R v Lay [2006] NSWCCA 45 at [35]:

“It is readily apparent that the task of a prosecutor on sentence is a very important one. It can also be a very challenging one. There is a delicate balance to be struck between assisting a court to avoid appealable error and ‘forensic urging’ which is properly discouraged.”

96 Prior to the adjournment, the Crown’s representative had made appropriate submissions which included offering to his Honour some authorities on the principle of totality.

97 This was not a case where the Crown remained silent when a submission had been made that a non-custodial sentence should be imposed: see for example R v Chad (Court of Criminal Appeal, 13 May 1997, unreported), Everett v The Queen. Furthermore, the degree to which his Honour fell into error was significant. This is not a case, in my opinion, in which the Court ought to exercise its discretion not to intervene.

98 In identifying at paragraph 91, a total effective sentence of 6 years with a non-parole period of 3 years 9 months, I have taken into consideration the respondent’s affidavit affirmed 25 June 2008 which indicates that he has continued to remain drug free and has not committed any offences against gaol discipline. I find special circumstances for the reasons expressed by his Honour.

99 I propose the following orders:

1. Crown appeal allowed.

2. Sentences imposed in the District Court on counts 2-7 inclusive are
quashed.

3. In respect of count 2 sentence the respondent to imprisonment for a
non-parole period of 2 years 9 months to date from 12 September 2007 and expire on 11 June 2010 and a balance of term of 2 years 6 months expiring on 11 December 2012.


4. In respect of count 3 sentence the respondent to imprisonment for a fixed term of 15 months commencing on 12 October 2007 and expiring on 11 January 2009.

5. In respect of count 4 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 December 2007 and expiring on 11 June 2009.

6. In respect of count 5 sentence the respondent to imprisonment for a fixed term of 18 months commencing on 12 March 2008 and expiring on 11 September 2009.

7. In respect of count 6 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 June 2008 and expiring on 11 March 2010.

8. In respect of count 7 sentence the respondent to imprisonment for a fixed term of 21 months commencing on 12 December 2008 and expiring on 11 September 2010.

The overall effective sentence will be a non-parole period of 3 years 9 months commencing on 12 December 2006 and expiring on 11 September 2010 and a balance of term of 2 years 3 months expiring on 11 December 2012.
The earliest date on which the respondent will be eligible for release to parole is 11 September 2010.
**********