R v Hutchinson
[2014] ACTCA 29
•13 August 2014
THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | R v Hutchinson |
Citation: | [2014] ACTCA 29 |
Hearing Date(s): | 6 May 2014 |
DecisionDate: | 13 August 2014 |
Before: | Murrell CJ, Burns and Ross JJ |
Decision: | Appeal allowed, respondent resentenced. See [78]. |
Category: | Principal Judgment |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether sentence manifestly inadequate |
Legislation Cited: | Criminal Code 2002 (ACT) ss 308, 312 |
Cases Cited: | Barbaro v The Queen (2014) 88 ALJR 372 Bugmy v The Queen (2013) 302 ALR 192 Wong v The Queen (2001) 207 CLR 584 |
Parties: | The Queen (Appellant) Andrew Lee Hutchinson (Respondent) |
Representation: | Counsel Mr J White (Appellant) Mr R Davies (Respondent) |
| Solicitors: ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number(s): | ACTCA 65 of 2013 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Penfold J Date of Decision: 24 September 2013 Case Title: R v Hutchinson Court File Number(s): SCC 74 of 2013 |
THE COURT ORDERS THAT:
The appeal is allowed.
The respondent is resentenced as follows:
a.For the offence of aggravated burglary, imprisonment for 3 years and 4 months. A nonparole period of 2 years and 3 months is fixed.
b.The sentence will commence on 1 July 2013 and will end on 31 October 2016. The nonparole period will end on 30 September 2015.
c.For the offence of theft, imprisonment for 1 year to be served wholly concurrently with the sentence above.
MURRELL CJ:
I agree with the orders proposed by Ross J, and with his reasons for proposing them.
BURNS J:
I agree with the orders proposed by Ross J, and with his reasons for proposing them.
ROSS J:
Background
On 12 July 2013 the respondent pleaded guilty to committing an aggravated burglary (by virtue of committing the offence in company), contrary to s 312 of the Criminal Code 2002 (ACT) and a charge that, on the same date, he committed an associated theft, particularised as three credit cards and $55.00 in cash, contrary to s 308 of the Criminal Code 2002 (ACT). The offences were committed on 23 February 2013.
On 24 September 2013 Penfold J sentenced the respondent as follows:
(a)in relation to the charge of aggravated burglary, imprisonment for 2 years, reduced from 2 years and 8 months on account of the plea of guilty;
(b)in relation to the charge of theft, imprisonment for 1 year, reduced from 16 months on account of the plea of guilty, to be served concurrently with the above;
The sentence imposed by her Honour was backdated to 1 July 2013 and runs entirely concurrently with an earlier Magistrates Court sentence. When taking into account the earlier Magistrates Court sentences, the effective head sentence was imprisonment for 28 months. Her Honour set a nonparole period of 20 months, backdated to 1 March 2013.
This is a Crown appeal against sentence in which the sole ground is that the sentence imposed by Penfold J was manifestly inadequate. This is particularised in two ways:
(a)the individual sentence for the offence of aggravated burglary (imprisonment for 2 years) was manifestly inadequate; and
(b)the nonparole period (20 months, taking into account pre-existing sentences) was manifestly inadequate.
The Facts
Just before 2am on 23 February 2013, the respondent and his co-offender approached the entrance of a secure apartment complex in Braddon. The respondent unsuccessfully attempted to enter the complex through a security door. A short time later, the respondent and the co-offender gained entrance to the complex's outdoor pool area on the ground floor gained access to a courtyard on the Northbourne Avenue side of the complex. The courtyard led to a ground floor apartment, occupied by the victims of the burglary and theft. The courtyard is surrounded by a 3 metre high concrete wall and separated from the neighbouring apartment by a 2 metre high wall.
The respondent and his co-offender gained entry to the victims’ apartment through a screen door that was damaged and thus able to be opened from the outside. The victims of the offence were woken, but remained in their bedroom while the respondent and co-offender rummaged through their possessions in another room and left the apartment shortly afterwards.
One of the victims noticed that his wallet had been disturbed, and that three credit cards and $55.00 in cash was missing. The victim cancelled two of those cards while waiting for police, and cancelled the remaining card shortly afterwards. In the meantime, the respondent used one of the cards at a nearby service station. The respondent was able to be identified through CCTV footage obtained from both the apartment complex and the service station. The credit card transaction at the service station gave rise to a charge of obtain property by deception, for which the respondent was sentenced in the Magistrates Court to imprisonment for 2 months on 9 July 2013.
The respondent appeared before Penfold J for sentence on 6 September 2013. The following evidence was tendered by the Crown at sentence:
(a)statement of facts dated 7 August 2013 (AB 44-46). This was accompanied by the following annexures:
·Statement of facts for charges CC2013/2023-5 (AB 47-52);
·Transcript of the sentencing proceedings for the Magistrates Court matters (AB 53-73);
(b)criminal history dated 23 August 2013 (AB 74-107);
(c)pre-sentence report dated 4 July 2013 (AB 108-114);
(d)updated pre-sentence report dated 30 August 2013 (AB 115-118).
No evidence was tendered on behalf of the respondent.
No oral evidence was called by either the Crown or the respondent. However, the respondent addressed the Court personally. The statements made by the respondent were not on oath and he was not subjected to cross-examination.
The matter was adjourned until 24 September 2013, when her Honour pronounced the respondent's sentence.
To put her Honour’s sentence in context it is necessary to refer to some other matters that were dealt with in the Magistrates Court.
The respondent was arrested on 1 March 2013 for the present matters, in addition to other matters which were finalised in the Magistrates Court (referred to below).
The respondent was charged in the Magistrates Court with the offences of burglary and theft on 2 March 2013 and remanded in custody. The respondent entered pleas of not guilty to the burglary and theft charges on 22 March 2013. On 9 May 2013, the charge of burglary was replaced with one of aggravated burglary, to which the respondent entered a plea of not guilty on 30 May 2013. The matters were committed for trial in the Supreme Court on 6 June 2013.
An indictment for the aggravated burglary and theft charges was filed on 15 July 2013 and on 18 July 2013, the respondent indicated that he would plead guilty to both counts on the indictment and the matter was listed for sentence.
On 9 July 2013, the respondent was sentenced in the Magistrates Court for the following matters (the Magistrates Court matters).
(a)CC2013/2025: obtain property by deception, referring to the transaction performed with the burglary victim's credit card at the service station - sentenced to 2 months’ imprisonment;
(b)CC2013/2024: obtain property by deception, referring to goods valued at $329.94, bought by the respondent at a Rebel Sport store using a misappropriated credit card which was unrelated to the Supreme Court matters - 3 months imprisonment;
(c)CC2013/3023: obtain property by deception, referring to goods valued at $690.00, bought by the respondent at McGlades Jewellery story, using the same credit card as was used to commit CC2013/2024 - 3 months imprisonment;
(d)CC2013/2569: unlawful possession of stolen property, referring to a Commonwealth Bank card that the respondent possessed on 8 February 2013. This was also unrelated to the Supreme Court matters - 1 month imprisonment;
(e)CC2013/2568: obtain property by deception, referring to goods valued at $435.70, bought by the respondent at a Target store using the card referred to in CC2013/2569 - 3 months imprisonment.
The sentencing Magistrate structured those sentences so that they commenced on 1 March 2013 and concluded on 30 November 2013, resulting in a head sentence of 9 months.
Her Honour also took into account the Magistrates’ Court sentences, concluding that it was not appropriate to backdate the sentences for aggravated burglary and theft to 1 March 2013 because of those sentences. This approach was based on Her Honour's decision in Wronski v Raue [2012] ACTSC 87. Her Honour’s sentence was backdated to 1 July 2013 and runs concurrently with the Magistrates Court sentence.
The Appeal
The sole ground of appeal is that the sentence imposed was manifestly inadequate. The principles governing such appeals are well established and were conveniently summarised by Refshauge J in R v TW,[1] drawing on the analysis by Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke.[2]It is unnecessary to repeat everything his Honour said in that case, but three points are apposite.[3]
First, Crown appeals are considered anomalous in the criminal justice system and should only be brought in rare and exceptional cases to establish some point of principle.
Second, the appeal is not a new hearing. The Court is not entitled to substitute its own opinion for that of the sentencing judge merely because it disagrees with the sentence. It may only interfere with the sentence if there is error of the kind referred to in House v The King.[4]
Thirdly, appellate courts have an overriding discretion which entitles them to decline to intervene despite error.[5]
I also note that in R v Chatfield[6] this Court held that the approach adopted by the High Court in Bui v DPP,[7] should be adopted in the Australian Capital Territory and as a consequence double jeopardy was abolished as a consideration in resentencing.
The appellant does not allege that her Honour made any specific error, such as acting upon the wrong principle; allowing extraneous or irrelevant matters to guide or affect him; mistaking the facts or not taking into account some material consideration. Rather the appellant submitted that her Honour made an error of the last kind mentioned in House v The King,[8] in that it was to be inferred from the result that there was a ‘failure properly to exercise the discretion which the law reposes in the court of first instance’. As the plurality observed in Barbaro,[9] in the field of sentencing this kind of error is often described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. In this context it is common to speak of a sentence as falling outside the available range of sentences.
As was stated in Dinsdale v The Queen;[10] ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’ and, as the plurality pointed out in Wong v R, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is materially different from other sentences that have been imposed in other cases’.[11] Rather, as the plurality in Wong went on to say:
[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[12]
The Court’s power to substitute a sentence for that imposed at first instance can only be enlivened if it is satisfied that her Honour’s discretion miscarried in the result, that is that her Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offences consistently with sentencing standards.[13]
The essential complaint is that the head sentence imposed for aggravated burglary is too low. As a result, although no complaint is made as to the nonparole period’s relationship to the head sentence, the nonparole period is said to be inadequate as to its length and should be extended in proportion with an increased head sentence. The appellant does not specifically address the nonparole period in its submissions, except to submit that should the Court resentence the respondent, the nonparole period will also need to be adjusted.
The head sentence is submitted to be unreasonable or plainly unjust in the circumstances for the following reasons:
(i)it was inconsistent with principle, when considered against the yardstick of comparable cases;
(ii)it failed adequately to reflect the objective seriousness of the offending;
(iii)it failed adequately to reflect the need for specific deterrence;
(iv)it failed adequately to deal with rehabilitation of the offender; and
(v)it gave too much weight to the guilty plea.
Assessing whether the sentence imposed was manifestly inadequate necessitates an examination of all the relevant circumstances. It is convenient to begin with the objective seriousness of the offending.
At the time of offending the maximum penalties for the offence of aggravated burglary was 20 years imprisonment, a fine of 2000 penalty units, or both. As the plurality stated in Markarian v The Queen:
...careful attention to maximum penalties will almost always be required, first because the Legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[14]
Of course Markarian does not dictate an arithmetical approach that requires each aggravated burglary to automatically call for a significantly more severe penalty than an otherwise similar offence of burglary simpliciter. For example, the statutory circumstances of aggravation may carry less weight if the premises were unoccupied at the time of the offence because the likely trauma suffered by a victim may not be significantly altered or the danger of violent confrontation between victims and offenders does not exist.
The type of conduct that constitutes such offending varies from what might be regarded as low range to high range offending. This characterisation is not to diminish the seriousness of the offence; nor does it diminish the impact on the victims but rather recognises the reality that the type of conduct constituting such offences varies significantly.
The statutory aggravating feature in this instance was that the burglary was committed in company. Two other matters are relevant to the objective seriousness of the offending. The first is that the occupants were at home at the time of the burglary. Indeed, given the time when the offending occurred and that the premises were residential (as opposed to commercial) it would have been reasonable to assume that the occupants would be present. The agreed statement of facts records the relevant events:
Around 2.15am on 23 February 2013, [the occupants] were woken by a ‘rummaging’ noise coming from the inside of their apartment. All of the lights were turned off in the apartment, but light was shining in from the internal corridor, directly outside the apartments front door, which was open. [The occupants] saw a shadow walk past their bedroom door and they heard the front door close.[15]
The fact that the burglary was of a residential premises is of some significance. As this Court observed in Simonds:
Burglaries at residential premises are frequently treated as being more serious than burglaries at commercial premises. In part, such treatment reflects the chance that intrusion into a residence may end in violence, and a deeply held belief that a person’s home should be safe.[16]
The second matter to note is that the offending was pre-mediated. As her Honour observed in her sentencing remarks:
The offence was clearly planned rather than being an opportunistic crime given the indication from CCTV footage that Mr Hutchinson and his co-offender spent some time working out how to get into the apartment complex.[17]
While the offending had a degree of planning, I accept the respondent’s submission that the extent of the planning was limited and unsophisticated. The premises were chosen at random and the offenders were not equipped with housebreaking implements or gloves. The enterprise could not be said to be ‘the result of professional planning, organisation and execution’.[18]
In assessing the objective seriousness of the offending it is relevant to observe that there was no confrontation between the offenders and the occupants of the premises.
The respondent also submitted that the fact that the victims were given no indication that there was more than one person in their premises (having only seen one shadow) and the absence of any confrontation puts the aggravating circumstance of being in company at the lower end of objective seriousness. To put the point in a slightly different way, I accept that had there been a confrontation or if the presence of more than one offender had been used to intimidate the victims, then that would have increased the objective seriousness of the offending.
At first instance the Crown submitted that the offending represented ‘a serious circumstance’, having regard to the factors mentioned. This submission was maintained on appeal.
Her Honour assessed the offending as ‘a relatively low level example of the offence’. I am, with respect, unable to agree with her Honour’s characterisation of the offending. The offence was committed in circumstances where it was reasonable to assume that the occupants of the premises would be present and it was clearly planned, as opposed to opportunistic. These elements elevate the offending beyond ‘relatively low level’, though I would reject the appellant’s characterisation of the offending as being ‘serious’. I would characterise the offending as being in the low to mid range of such offences. I now turn to the subjective circumstances.
The respondent had a deprived childhood. His background and personal circumstances are set out in her Honour’s sentencing remarks:
Mr Hutchinson is almost 30. He grew up in Queensland in a family affected by his mother’s health difficulties, possibly involving both mental and physical problems, his father’s alcoholism and violence and the death of his older sister. He left home at 12 and lived rough which involved, in his words, hustling to get by ... Mr Hutchinson’s education came to an end about the time he left home, although it seems to have been unproductive even before that with Mr Hutchinson engaging in disruptive behaviour to distract attention from his struggles with school work. He has had several short term jobs since then but mainly relies on Centrelink benefits. Mr Hutchinson began using cannabis at an early age and first used methamphetamine at age 13. He says he has used this by injecting daily ever since, including, apparently, in custody. While agreeing that this ongoing use creates problems for him, he also said that it brings him happiness and ‘relieves the pain inside’. He has not had any form of counselling and is apparently not interested in rehabilitation at this stage, saying that he will continue to use drugs ‘until the time comes to retire from this life’. Mr Hutchinson was using amphetamines at the time of the current offences.
Mr Hutchinson has undertaken several courses and programs while in custody from time to time, including alcohol and drug programs but says, perhaps correctly, that they are a waste of time until he decides to make changes to his life.[19]
The respondent has an extensive criminal history, particularly for offences of dishonesty. Briefly stated, since November 1999 the respondent has been sentenced for 54 offences involving dishonesty, comprising 23 offences which would have been charged as either burglary or aggravated burglary in this jurisdiction; 16 offences involving theft; 6 offences involving fraud or obtaining property by deception; 4 offences relating to possession of unlawfully obtained property; 4 offences of entering a vehicle to commit an indictable offence and an offence of robbery with violence, committed in company.
The extent of the respondent’s criminal history may not have been apparent to her Honour as the relevant material was not provided in a form that was readily accessible. As her Honour observed in her sentencing remarks:
Mr Hutchinson appears to have a lengthy criminal history although as a result of what I understand to be a recent decision by the AFP, possibly relating to budget cuts of some sort, most of the records tendered by the DPP are fairly incomprehensible. As well as recent offending in the ACT, Mr Hutchinson appears to have offended in South Australia between 2010 and 2013, in Queensland between 1998 and 2009 and in New South Wales in 2003. I have been given documents from those three jurisdictions. However, I have been given no guide to interpreting those records nor do I consider it an appropriate use of the ACT’s already stretched judicial resources to spend my time deducing how to read interstate criminal records for myself.[20]
The respondent’s antecedents should have been provided to her Honour in an appropriate form. It is the role and duty of the prosecution to ensure that a sentencing judge has all the information necessary to determine what sentence should be imposed. As the plurality observed in Barbaro:
... the role and duty of the prosecution remains the duty ... : to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases.[21]
The respondent expressed scant remorse or insight into his offending. As her Honour observed in her sentencing remarks:
Mr Hutchinson expressed no remorse as such to the pre-sentence author or in sworn evidence, although he did acknowledge that there were victims of his offending who would be shattered and afraid as a result and noted that he had limited his activity in the burgled apartment to one room and had got out quickly. Mr Hutchinson’s basic attitude, however, seems to be that this is simply how he has to live. In unsworn remarks made at the end of the sentence hearing, Mr Hutchinson said that he was sorry for the offences, that he abused drugs because of his very unfortunate background, that because of his mother’s disability she was unable to bring him up in the way he needed and that he did not know any way to live outside apart from relying on drugs.[22]
While her Honour made no express finding as to the respondent’s rehabilitation prospects, the evidence supports a finding that he has poor prospects of rehabilitation. In custody Mr Hutchinson has engaged in some disruptive behaviour and disciplinary action has been taken against him. He has previously engaged in programs and courses in custody but regards them as ‘a waste of time’. The updated pre-sentence report notes that he displays no desire to address an underlying cause of his offending, his drug addiction:
By the progress in custody and his account of his offences, Mr Hutchinson has confirmed the previous view there is little prospect of change in the immediate future. His reluctance to participate in planning for a stable future, in which he is at least contemplating a life without hazardous substance use, undermines the prospect of assessing the programs and resources he would require to address the disadvantage that has resulted from life to date. This absence of motivation and lack of agency is also predictive of continuing substance use which will likely require similar offending behaviour.[23]
The respondent pleaded guilty to the offences for which he was sentenced. It is common ground that the plea was entered at an early stage.[24] Her Honour remarked that the early plea entitled the respondent to a ‘sentencing discount’ for the utilitarian value of the plea, noting that the plea ‘indicated little in the way of genuine remorse’.[25] In the result her Honour applied a 25 per cent discount for the plea.
The appellant submitted that, save for a discount to reflect the utilitarian value of the plea, there was nothing in the respondent’s subjective features called for a reduction in sentence. If the appellant was contending that the respondent’s deprived background and drug addiction were not matters which could be properly taken into account in mitigation, then that submission should be rejected.
As the plurality observed in Bugmy, the experience of growing up in a deprived background may leave its mark on a person throughout life:
Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.[26]
Of course an offender’s deprived background may give rise to considerations which enliven a number of sentencing purposes, as the plurality in Bugmy observed:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment is what makes the exercise of discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[27] (citations omitted)
So it is in the present case. Mr Hutchinson’s deprived background is a factor which may be said to reduce his moral culpability for these offences, but his extensive criminal history, lack of remorse and insight into his offending and poor prospects of rehabilitation all suggest that personal deterrence and the need to protect the community loom large in the synthesis of sentencing considerations.
I now turn to consider current sentencing practice in relation to the offence of aggravated burglary.
The appellant referred to three judgments said to be relevant to the consideration of current sentencing practice in respect of the offence of aggravated burglary: Simonds;[28] Fusimalohi;[29] and Tate.[30] The appellant submitted that Simonds and Fusimalohi are of particular assistance despite the fact that both cases concerned offenders who had committed a series of offences.
In Simonds the offender was convicted, after a jury trial, of aggravated burglary and theft. The burglary took place in commercial premises and the aggravating feature was that it was committed ‘in company’, with four other persons. It is convenient to refer to these offences as the September offences. He was sentenced to 4 years and 6 months on the aggravated burglary count and 18 months on the theft count. The sentences were to be served concurrently. The offender also pleaded guilty to three counts arising out of events on 19 November 2010 (the November offences), namely aggravated burglary; assault occasioning actual bodily harm and intentional damage to property. The aggravating feature of the burglary was that the offender had an offensive weapon. The offender was sentenced on the basis that he had lawfully entered the premises and that the offence was committed by him remaining in the house after being asked to leave and by him taking a crow bar from the householder after the householder had attacked him with it. He was sentenced to 3 years and 4 months for the aggravated burglary; one year and 8 months for the assault and 6 months for the property offence. The sentences were to be served concurrently and were partly cumulated on the sentences for the September offences. The total time to be served for the September and November offences was 5 years and 6 months with a non parole period of 3 years and 9 months. The offender appealed against the sentences imposed, contending that they were manifestly excessive.
The court considered tables of comparable sentences for single counts of aggravated burglary, provided by counsel for the appellant and respondent. As to the tables provided the court said:
The comparable sentences relied upon by the appellant might suggest that a sentence of two years is at the higher end of any appropriate range. However, an examination of the notes provided by the appellant concerning those cases suggests that many of them have features which make them of little assistance for present purposes. Many of the offenders were young people, aged about 20 years or less. Others involved suspended sentences or other, effectively non-custodial orders, suggesting special circumstances. Some of the cases involved persons serving other sentences, so that the new sentences merely extended the time to be served. Many were said to involve strong subjective cases for leniency, whatever that may mean.
The respondent’s comparable sentences were generally for longer periods than those cited on behalf of the appellant. However they also reflected many of the complicating features to which we have referred. Most involved offenders who had significant criminal records, unfortunate personal circumstances and histories of substance abuse. In those respects they were comparable with the appellant. The longer sentences were imprisonment for five years for four counts of burglary, seven years and four months for six counts of burglary (with two years and nine months for one count of aggravated burglary), six years for four counts of burglary and five years for four counts of burglary. Some sentences suggested a discounting factor of 20 percent or 25 percent for early ‘guilty’ please.[31]
The court considered that two of the cases referred to by the respondent - Fusimalohi and Tate - were of particular importance. These cases are dealt with later in this judgment at [62] to [68]. Their Honours then dealt with three other cases relied on by counsel. In Hawkins[32] the offender was sentenced on 5 counts of burglary, one of which was committed in company. One offence involved the taking of property and cash totalling more than $8000 in value. He was aged 26 years at the time of sentence (in 2009) and the offences occurred in 2000 and 2001 (when he was 18 or 19 years). At the time of the arrest he was serving periodic detention. He was drug dependent but there was some hope of rehabilitation. The court made the following observation about Hawkins and its relevance to the matter before them:
In Hawkins, the sentencing Judge ordered that a series of relatively short periods of imprisonment (six months to two years) be served, in large part cumulatively, in order to produce an overall effect. In the present case, the sentencing Judge took a slightly different approach. He fixed sentences which reflected the individual seriousness of each offences and sought to determine the overall outcome by ordering that large parts of the sentences for the November offences be served cumulatively with the sentences for the September offences. The former approach may have led to lower individual sentences than did the latter approach, but the overall results were reasonably consistent.[33]
The second case referred to in Simonds was Goward.[34] Goward was sentenced to imprisonment for two years and six months for one count of aggravated burglary. He was aged 25 at the time of sentence (October 2011). The offence was committed in August 2008 when he was aged about 22. He was also dealt with for a separate offence of riding dishonestly in a vehicle. He pleaded “guilty”, but not at an early stage. However it seems to have been accepted that there may have been an earlier plea but for the fact that the offender’s memory of events was adversely affected by drug use. The offence was treated as being “at the lower range of seriousness”. The sentence was also reduced to reflect a delay in bringing the matter to finality, which delay was not substantially caused by the offender.
The court made the following observation about Goward:
The offender’s age, his early plea of “guilt” (as opposed to the present appellant’s late plea) and the delay, together with Goward’s reasonable prospects of rehabilitation and the sentencing Judge’s assessment of the seriousness of the offence explain any discrepancy between Goward’s sentence and the appellant’s sentences.[35]
The third and final case commented on in Simonds was Valetich:[36]
The offender was charged with two burglaries and associated offences which occurred in Jul- August 2010. His Honour had dealt with the offender in earlier proceedings. The offences were committed shortly after release on parole. It is sufficient to say that the sentences appear to have been tailored so as to supplement a sentence of three years and six months which the offender was, in effect, already serving. The case gives no guidance for present purposes.[37]
After considering the circumstances of the particular case and sentences determined in a range of other matters, the court dismissed the appeal:
We do not consider that the period of five years and six months imprisonment was manifestly excessive, having regard to the overall criminality of the appellant’s conduct, and taking into account his record. We see no basis for concluding that the non parole period of three years and nine months was manifestly excessive.
In these circumstances the appeal must be dismissed.[38]
In Fusimalohi the appellant had been sentenced to an aggregate term of imprisonment of seven years and four months for a series of offences of dishonesty, primarily burglary and theft, which had occurred between April 2007 and February 2008. The schedule to the reasons showed one count of aggravated burglary, six counts of burglary, eight counts of theft and one count of possessing house-breaking articles. After disposing of one ground of appeal which involved an alleged error of fact, the majority Burns and Lander JJ considered the submission that the sentences were manifestly excessive. In so doing their Honours referred to some of the comparable sentences to which the respondent has referred in the present case. Their Honours explained the factors which detracted from the comparability of those cases. In Thorn[39] the offender had ‘significant’ mental health issues; in Love[40] the offender’s judgment was impaired by serious physical injury; and in EG[41] the offender was younger than Fusimalohi, had no relevant prior criminal history as an adult and had good prospects of rehabilitation
The majority concluded that the relevant sentences were not, either individually or in aggregate, manifestly excessive:
None of these cases suggest that the sentences imposed upon the appellant, either individually or in aggregate, are manifestly excessive. These cases simply underline the proposition that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender. The fact that other offenders have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive.[42]
In a separate judgment Refshauge J agreed that the sentences were not manifestly excessive. His Honour also made the following observation about current sentencing practice in relation to the offence of burglary:
To determine what “the collective wisdom of judges” actually is can be difficult in the case of a single offence, but where there are multiple offences, different almost always in nature and circumstances, it becomes almost impossible to find useful comparisons.
Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were present in the premises and the offender’s antecedents may all require a more severe sentence. There will be also other aggravating factors.[43]
His Honour’s findings with respect to the range of previous sentences for burglary were not subject to comment by the majority. However, it should be noted that his Honour’s observation relates to the offence of burglary, which attracts a maximum of 1400 penalty units or imprisonment for 14 years or both. As mentioned previously, the penalties for aggravated burglary are significantly higher.
In Tate the appellant had been sentenced to imprisonment for a total period of six years for four offences of burglary and four associated thefts, with a nonparole period of four years. The grounds of appeal included an alleged error of fact and the assertion that the sentences were manifestly excessive ‘and/or inconsistent with ACT sentencing standards for like offences’.
After dealing with the alleged error of fact their Honours turned to the question of whether the sentences were manifestly excessive, considering a number of cases to which have also been referred. Their Honours referred to Thorn, Love and Richards, indicating that they were to be distinguished from the case under consideration, for reasons similar to those which distinguished them for the purposes of the decision in Fusimalohi. Their Honours also referred to Aldridge v R.[44] In that case, the offender was again very young, with no relevant prior adult criminal history and good prospects of rehabilitation. Their Honours then observed:
75 These cases do not suggest that the sentences imposed on the appellant, either individually or in the aggregate, are manifestly excessive.
76 We do not consider the table of sentencing decisions prepared by the appellant’s counsel establishes that the sentences imposed on the appellant are manifestly excessive. What the table does establish, as with the decisions referred to above, is that there is no single, correct sentence for offences of burglary. Sentencing is not a simple arithmetical process, but instead requires the sentencer to determine a sentence based upon ‘instinctive synthesis’ of the facts and circumstances relevant to the offences and offender: Markarian v The Queen (2006) 228 CLR 357. As such, there will always be a range of sentences that may legitimately be imposed for an offence of this type.
Their Honours then referred to the decision in Fusimalohi concluding that Tate's sentences had not been shown to be manifestly excessive, either individually or in the aggregate.
The appellant submitted that the respondent’s offending was more serious than either Simonds or Fusimalohi due to the presence of the victims in the present matter.
The appellant also submitted that, although Fusimalohi received an ostensibly comparable sentence to the respondent (2 years and 9 months, following a guilty plea), his subjective features were more compelling in that Fusimalohi had taken active steps to address his substance abuse issues whereas it is submitted that the respondent is uninterested in confronting the causal influences of some of his offending and indicated that he would rather complete a custodial sentence than undergo a long-term rehabilitation program.
I am not persuaded that the offending in the present matter is properly characterised as more serious than either Simonds or Fusimalohi. In both those cases a greater degree of planning was evident than in the present matter and in Simonds the offender committed the offences while on parole.
As the plurality cautioned in Hili,[45] care must be taken in using what has been done in other cases. Manifest inadequacy is not demonstrated by reference to the sentence imposed in another case. A history of sentencing can establish a range of sentences that have in fact been imposed but that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper or lower limits. The plurality also endorsed the following observation of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa:[46]
Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that ‘unifying principles’ may be discerned’.[47]
As to the articulation of unifying principles, the plurality in Wong said:
[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is also told why those sentences were fixed as they were.[48]
The appellant made no attempt to articulate any unifying principles from the sentences imposed in other cases. For my part, the other sentences reveal a significant range of available sentences for this particular offence, depending on the objective seriousness of the offending and the subjective circumstances of the offender.
In the present matter, while the respondent’s deprived background reduced his moral culpability, the objective seriousness of the offending; the respondent’s extensive criminal history; his limited remorse and insight into his offending; and poor prospects of rehabilitation lead me to conclude that personal deterrence and the need to protect the community must be given significant weight in the synthesis of sentencing considerations.
I am satisfied that the sentence imposed in this matter was below the range of sentences that could be justly imposed for the offence and her Honour’s discretion miscarried in the result. In reaching that conclusion I have had regard to the objective seriousness of the offence and the various subjective considerations to which I have referred, as well as to current sentencing practice, making due allowance for the distinguishing features of this case. I am not persuaded that this is an appropriate case for the exercise of the residual discretion to which I have referred to earlier (at [23]. Accordingly, I am satisfied that the sentence imposed was manifestly inadequate and I would uphold the appeal, quash her Honour’s sentence and resentence the respondent.
On the basis of the objective and subjective circumstances to which I have referred, I would resentence the respondent to a period of imprisonment of 3 years and 4 months with a non parole period of 2 years and 3 months. But for the plea of guilty I would have sentenced the respondent to a period of imprisonment of 4 years with a non parole period of 2 years and 8 months. This amounts to a 15 percent reduction on account of the guilty plea. The plea was made at an early stage but I agree with the sentencing judge that it ‘indicated little in the way of genuine remorse’. The discount appropriately reflects the utilitarian value of the plea. The sentence will commence on 1 July 2013 to take account of time in custody and will be served wholly concurrently with the sentence of imprisonment of 1 year for the charge of theft.
| I certify that the preceding seventy-eight [78] paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: 13 August 2014 |
[1] (2011) 6 ACTLR 18 at [4]-[6]
[2] [1996] 2 VR 501 at 522
[3] See The Queen v CV [2013] ACTCA 22 at [9]-[12]
[4] (1936) 55 CLR 499
[5] R v JW [2010] NSWCCA 49 at [95], [205] and [209]; DPP v Karazisis [2010] VSCA 350 and Munda v Western Australia [2013] HCA 38 at [64]-[78] and [88]-[90]
[6] [2012] ACTCA 32
[7] (2012) 284 ALR 445
[8] (1936) 55 CLR 499 at 505
[9] (2014) 88 ALJR 372 at [26]
[10] (2000) 202 CLR 321 at 325; see applied in Hili v The Queen (2010) 242 CLR 520
[11] (2001) 207 CLR 584 at 605 [58]
[12] Ibid
[13] Everett v The Queen (1994) 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; 306 per McHugh J; Lacey v Attorney General (Qld) (2011) 242 CLR 573 at 581 [15] - [16] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Bugmy v The Queen (2013) 302 ALR 192 at 198 [24] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ
[14] (2005) 228 CLR 357 at 372
[15] Appeal Book at p65
[16] [2013] ACTCA 13 at [54]
[17] Appeal Book at p7 lines 36-39
[18] See Ponfield (1999) 48 NSWLR 327 at 337.48
[19] Appeal Book at p8 lines 29-45 and p9 at lines 1-13
[20] Appeal Book at p7 lines 39-45 and at p8 lines 1-4
[21] (2014) 88 ALJR 372 at 379, [39]
[22] Appeal Book at p8 lines 17-28
[23] Appeal Book at p117
[24] Appeal Book at p19 lines 24-33 and at p35 lines 30-45
[25] Appeal Book at p9 lines 30-32
[26] (2013) 87 ALJR 1022 at 1032 [43]
[27] (2013) 87 ALJR 1022 at 1032 [44]
[28] [2013] ACTCA 13
[29] [2012] ACTCA 49
[30] [2012] ACTCA 50
[31] Ibid at [17]-[18]
[32] Unreported ACTSC, 5 October 2009 SCC 110 and 114 of 2001
[33] [2013] ACTCA 13 (15 March 2013) at [27]
[34] Unreported ACTSC 24 October 2011, SCC 380 of 2009
[35] Simonds v The Queen [2013] ACTCA 13 at [29]
[36] Unreported ACTSC 20 December 2011, SCC No 220 of 2011
[37] Ibid at [30]
[38] Ibid at [56]-[57]
[39] [2010] ACTCA 10
[40] [2012] ACTCA 8
[41] [2012] ACTCA 17
[42] [2012] ACTCA 49 (12 December 2012) at [15] per Burns and Lander JJ
[43] Ibid at [49]-[52]
[44] [2012] ACTCA 17
[45] (2010) 242 CLR 520 at [54]
[46] [2010] NSWCCA 194 at [304], citing Wong v The Queen (2001) 207 CLR 584 at 606 [59]
[47] (2010) 242 CLR 520 at [54]
[48] (2001) 207 CLR 584 at 606 [59]
16