R v Elemes - [2000] NSWCCA 235

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v David Paul ELEMES [2000] NSWCCA 235

FILE NUMBER(S):
60343/99

HEARING DATE(S): 2 June 2000

JUDGMENT DATE: 02/06/2000

PARTIES:
Regina
David Paul Elemes

JUDGMENT OF: Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0024-5

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
C. Maxwell QC - Crown
R. Button - Appellant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal against sentence granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60343/99

SULLY J
ADAMS J

Friday 2 June 2000

REGINA v David Paul ELEMES

JUDGMENT

SULLY J: On Thursday 3 June 1999 the present applicant, Mr David Paul Elemes stood for sentence in the District Court at Dubbo before Christie DCJ consequent upon a verdict of the jury at trial finding him guilty of one count of breaking entering and stealing, an offence contravening section 112 of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for 14 years.
His Honour sentenced the applicant to a term of penal servitude of five years divided equally between a minimum term of two and a half years and an additional term of two and a half years.
Because of the then custodial situation of the applicant, it is accepted for present purposes that the effect of the sentence in the terms in which it was passed was to impose a sentence of penal servitude for a little under four and a half years, with a minimum term a little under two years.
The offences in question involved what is described colloquially as a "ram raid" of a store in Dubbo. The store was a motor cycle shop, and the applicant and two other accomplices, having ram raided the premises, stole from it three motor cycles. The precise value of the motor cycles is not in evidence before us, but it seems to be common ground that their total value must have exceeded $15,000 for there to have been properly held at all a trial in the District Court rather than in the Local Court.
All three of the motor cycles appear to have been recovered, two of them apparently in reasonable condition.
The indictment originally presented against Mr Elemes contained two counts laid in the alternative. The first of the counts charged the breaking and entering and stealing to which I have earlier referred. The second and alternative count charged a simple stealing, being a contravention of the combined effect of sections 117 and 154A of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for five years.
Upon Mr Elemes' arraignment he pleaded not guilty to the first count and guilty to the second count. The Crown did not accept the plea, and the matter proceeded to trial on the more serious offence charged in count one in the indictment. As I have earlier noted, the jury found him guilty on the charge. It was not necessary to take a verdict from the jury on the second and alternative count.
The proceedings on sentence followed very shortly the return of the verdict of the jury. They were, as these things go, fairly brief proceedings on sentence; and his Honour, Christie DCJ proceeded at once and ex tempore to pass sentence.

His Honour exposed his relevant processes of reasoning in language which was obviously intended to be clear and simple and readily understood by, in particular, Mr Elemes himself, a matter which is of some importance, having regard to some of the grounds urged in support of the present application for leave to appeal against the sentence imposed.
Put very simply, there are three grounds urged in support of the present application. The first is that his Honour "acted upon a wrong principle regarding the absence of contrition". The second is that his Honour "gave excessive weight to absence of contrition". The third is that the sentence is manifestly excessive in the circumstances of the case.
As to the first of those grounds, it is the fact that the applicant, notwithstanding the contrary verdict of the jury, maintained at all times after the verdict, and still maintains, that he is innocent of the matter charged against him, and of which he has now been found guilty by the verdict of the jury. He is, of course, entirely entitled to take that stand. It must be recognised, however, that when a person who has been apparently regularly and lawfully found guilty by a jury continues to maintain that he is not guilty, the sentencing Judge is faced, on that account, with a real sentencing problem. For it must follow from such a stance that there is no demonstrated contrition in either of the sentences recognised by the law as appropriate to attract some discount of what would be otherwise an appropriate sentence.
The course of events in such a case will necessarily preclude any reliance upon the bare utilitarian principles recognised by the law, and being to the effect that a prompt plea of guilty is to be, as it were, rewarded in a way that recognises the saving to the public purse of the cost of a trial. The stance in question necessarily entails an absence of contrition in the alternative sense recognised by the law: that is to say, in the sense of the giving by the offender of genuine assent to the proposition that what he has done was wrong, and was something as to which it is proper that he recognise his wrong doing, and express in a suitable way genuine contrition for what he has done.
It is submitted, and in my opinion correctly, that a fair reading of the remarks on sentence shows that the learned sentencing Judge had very much present to his mind the absence of contrition in either of the senses to which I have referred. At one point in the remarks on sentence his Honour said:
"... whilst one could consider some not insignificant leniency in all of the subjective circumstances that do extend to the prisoner, it is difficult to consider many of those absent any sign of contrition."
This statement is really at the heart of the first of the three submissions put in support of the present application; for it is contended that the statement, set fairly in context, shows that his Honour erroneously regarded the absence of contrition as positively cancelling out, as it were, other subjective considerations that would have been available otherwise, and which would have been brought to account in the applicant's favour.
I do not accept that submission. I do not accept it, essentially, because it seems to me that at a point shortly thereafter in the remarks on sentence his Honour dealt with the point in question in a way which suggests the very contrary of what is now submitted. His Honour, having looked at other subjective matters said:
"He is sorry for the situation he is in. But I don't think he has any contrition in relation to the crime at all, none whatsoever. That does not make me particularly confident about his rehabilitation prospects. But I propose to take them into account because he is only a young man, it is his first time in gaol, he has been in custody since 22 October 1998, and whatever happens here he will be in custody on various other terms until 21 January 2000."
It seems to me that when one sets fairly into the context of the remarks on sentence the whole of those two particular passages that have been quoted from those remarks, it is not a fair reading of what results to draw the inference that the learned sentencing Judge "acted upon a wrong principle regarding the absence of contrition." I would myself reject the first of the three grounds supporting the present application.
The second and third grounds can, from some points of view, be dealt with conveniently together, but in deference to the way in which the applicant's case was argued, it is I think fair to make some observations about each in particular.
As to the second of the three grounds now argued, it may be allowed at once that the learned sentencing Judge did give obvious weight throughout the entire course of his Honour's reasoning to the absence of contrition. It can be allowed as readily that his Honour repeated at several discrete points in the remarks on sentence observations different in terms but all of a piece in substance with the observations first quoted herein from the remarks on sentence.
It goes without saying that error is not demonstrated merely by a multiplicity of references of that kind. What has to be shown is that the multiplicity of references itself is a mark of disproportion in the learned sentencing Judge's use of the undoubted absence of contrition. There is no way one can come to that question in a mathematical kind of way. All that this Court can do is to read with care the remarks on sentence as a whole, and act upon its best impression of what they convey.
For myself, I am not satisfied that, read sensibly in that way, the remarks on sentence manifest the kind of disproportion the asserted existence of which is the nub upon which the second ground of appeal in fact turns. For myself I would reject the second ground.
The remaining ground supporting the present application takes a different conceptual approach. It does not posit some particular patent error. It posits, rather, latent error in the sense that a dispassionate review of the entirety of the material before the sentencing Judge, when set alongside the sentence actually imposed, produces a situation which shows on its face so manifest a disproportion in the sentence imposed as cannot be really explained otherwise than upon the footing that there must have been somewhere in the relevant process of reasoning an error of law.
It is trite, but it is perhaps useful in a case such as the present to make the point in terms, that for such a ground to succeed the applicant relying upon this ground undertakes a very heavy practical burden. It is not sufficient to convince the Judges of the appellate Court that they, had they been sitting at first instance, would have imposed a sentence less severe than the sentence imposed in fact by the sentencing Judge.
The kind of disproportion which has to be shown is, once again, not something that can be reduced to an arid exercise of mathematics. The matter to be considered is not whether there might be a quibble here, or a nuance there, about which reasonable minds might differ. The question to be considered is whether the disproportion relied upon is so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law.
In that connection it is, in my opinion, necessary to say at once and forthrightly that the present offence in terms of its objective gravity cannot simply be shrugged off as an offence of comparatively minor significance. It is not necessary to address that proposition in terms of discursive philosophical exegesis. It is a simple proposition of common sense, as I think, that the ram raiding of somebody else's shop, and the looting from it of somebody else's property, is in objective terms a serious offence. It is a serious offence not only against private property. It is a serious offence, also and very importantly as I see it, against public order. That the legislature so regards such offences is, I would have thought, a view amply warranted by the prescribed statutory sentence.
When one turns to the subjective matters proffered in the applicant's case, it should be, I think, acknowledged that there were plenty of matters properly available to be advanced on his behalf. The sentencing Judge was himself aware of that state of affairs. His Honour was plainly aware of the applicant's age, with all that implies as to a need to be careful that a sentence is not imposed in a way that destroys the possibility of a good and useful future life in the community.
The prisoner had antecedents of which it is appropriate to say for present purposes that the learned Judge was seized of, and seems to have taken overall and in practical terms a view about, them which was, if anything, somewhat more favourable to the applicant than otherwise might have been thought appropriate.
The applicant's personal history otherwise was undoubtedly in many ways a sad and difficult one. It is not, I think, necessary to go in fine detail through all the aspects of it; for all of them, I think, were sufficiently taken into account by the sentencing Judge.

The learned sentencing Judge, in the course of his remarks on sentence, adverted to the decision of Wood J as he then was, (now Chief Judge at Common Law), in Regina v Fernando (1992) 76 ACrimR 98. It has become a matter of course for Courts to be referred to that decision in connection with any sentencing exercise involving an offender whose background is Aboriginal. It has become a matter of course to refer in such cases, at least to some, and more often than not to all, of the principles which are set out at pages 62 to 63 of the report in paragraphs numbered successively (A) up to and including (H).
The temper of the times is such that there is a natural temptation for any Judge who is confronted with a sentencing problem involving an offender, especially a young offender, of Aboriginal descent, to plunge enthusiastically into a philosophical discussion of the principles established in R v Fernando. I do not myself see it necessary to do that in this particular case, because I think the available evidence, such as it was, although it established a background of deprivation in a number of very special ways, did not in these respects derive in any particular fashion that the evidence established from the Aboriginality of Mr Elemes; but indicated that he was in most respects in exactly the same situation of disadvantage, and of very discouraging disadvantage it might in all fairness be observed, as not a few of his non-Aboriginal fellow citizens in country areas of the kind in which he has himself lived to date.
Anybody with any social conscience at all can acknowledge readily enough the problems which beset young people in country centres. The lack of any kind of decent employment seems to be not the least of them. Although it is proper to take note of these things in the hope that, having been noted, somebody in proper authority will do something constructive about them, it seems to me to be a very different, and wholly unacceptable, thing to say that these considerations, taken in some kind of conceptual vacuum, are to be regarded as ameliorating in some extravagant way the culpability of a crime such as the one in question.
We were provided with an affidavit from Mr Elemes as a document intended to put before us the things that he has done, or attempted to do, since his current imprisonment in order to rehabilitate himself. Although on a strict view we have not reached the point of considering that material, it would be naive to suggest that we have not received and read it. There should be a proper acknowledgment that it does give some considerable support to the assessment of the sentencing Judge that the applicant's prospects for eventual rehabilitation are good. I, at least, would not wish it to be thought that the solution which I think to be the correct one in law to the present application in any way disparages or deprecates what Mr Elemes has been trying to do in order to rehabilitate himself. It is to be hoped that he will understand the point, and will not be discouraged from continuing the efforts that he has thus far made.
It is necessary, however, that the application be disposed of, not according to sympathy, but according to law. That entails, first, that the application cannot succeed unless error of law has been demonstrated. I am of the opinion, for the reasons I have indicated, that an error has not been demonstrated in any or all of the particular respects on which the particular application relies. I would grant leave to appeal but I would dismiss the appeal.
ADAMS J: I agree with the orders proposed by the learned presiding judge but I desire to make some observations myself.
The principles set out in R v Fernando (1992) 65 A Crim R 98 are to my mind extremely important. In dealing with them a Court must anxiously consider whether the aboriginality of the offender calls for any adjustment to be made having regard to the matters set out to my mind comprehensively and appropriately by Wood CJ at CL, as he is now. Repeating that Fernando principles have been taken into account as though it was some kind of mantra is not an appropriate way of dealing with the fundamental issues to which that case draws the attention of sentencing courts and the law.
In the circumstances of this case I consider that more was required by his Honour than a mere reference to Fernando. It is important that the principles it states become a clearly understood part of the way in which sentencing courts deal with aboriginal people. Attempts should be made to explain why results follow and why a particular analysis leads to particular conclusions having regard to those matters.
This offender was entitled to know, as was his community and his friends, as well as the wider Australian community, why it was that what had been said in Fernando relating to his aboriginality applied, only slightly applied, or did not apply at all. Looking at the exiguous evidence of aboriginality in this case I find it difficult to understand what his Honour had in mind in making the reference that he did to the Fernando principles and with which his Honour expressed his personal agreement.
One of the material factors - although I use my own language and not that of Wood CJ at CL - is that in the gaol environment especially, aboriginal people find themselves quite often in the position of being foreigners in their own country. This is not mere sentimental consideration. It is an important part of the process of considering the impact of punishment by way of imprisonment on persons from a particular background, and the proper function of the criminal law in that respect.
However, it must be borne in mind that his Honour was seeking to sentence the appellant in this case at the end of the trial without further delay. In some respects, his Honour used "shortcut" language which those who were aware of the arcane principles of sentencing law would have understood, but which the offender himself, his community and people of Dubbo, would most likely not be expected to understand. The remarks on sentence, I say with respect to the learned sentencing judge, were inadequate (especially at the present time), whilst recognising the situation which he was attempting to deal with on the occasion that he made them.
I was troubled by the evidence, which I accept, that the sentencing statistics show that the sentence passed in this matter fell into the upper range of sentences usually passed for a crime of this kind. I entirely accept, if I may say so with respect, the correctness of what has fallen from the learned presiding judge concerning the seriousness of this offence. I would point out that, especially in regional Australia, where economic conditions are unfavourable, it is even more difficult for businesses to maintain their viability if this kind of crime is prevalent, and social conditions make it all the more important to ensure that an unmistakable message goes out that these crimes will be dealt with severely.
At the same time, it is important to note that there is an important difference between breaking into persons' homes, especially when they may be present, and invading the integrity of their private space in a way that often leaves them fearful and on the other hand, crimes of this kind which are a crude interference with the right to carry on business without interference. Other kinds of crime are committed by persons who don't take drugs, who wear suits and ties, and who cost other persons hundreds of thousands and perhaps millions of dollars. This offence must be seen in the wider context. Having said this, although this sentence, to my mind, fell well into what I would call the upper range of penalty, I do not consider that it is so severe as to manifest an error of law.

As his Honour, the learned presiding judge has said, it is an important principle intimately connected to my mind with the independence of the judiciary that full allowance is made for the exercise of individual judicial discretion by judges charged with the difficult task of dealing with and sentencing criminals at first instance.
SULLY J: The orders of the Court will be that leave to appeal against sentence be granted but the appeal against sentence be dismissed.

**********

LAST UPDATED: 22/06/2000