R v Lenthall
[2004] NSWCCA 248
•5 August 2004
CITATION: R v Lenthall [2004] NSWCCA 248 HEARING DATE(S): 20/7/04 JUDGMENT DATE:
5 August 2004JUDGMENT OF: Wood CJ at CL at 1; Hidden J at 57; Smart AJ at 58 DECISION: 1.Leave to appeal against sentence granted; 2.Sentence below quashed, and in lieu thereof sentence the applicant to imprisonment for 3 years and 9 months, commencing on 18 February 2003, and expiring on 17 November 2006; 3.Non-parole period of 1 year and 10 months fixed, to commence on 18 February 2003 and to expire on 17 December 2004; 4. Vary the commencement date of the sentences imposed in the Blacktown Local Court on 16 December 2003, each being sentences for fixed terms of 4 months, in so far as they are now to commence on 18 December 2004 and to expire on 17 April 2005. CATCHWORDS: CRIMINAL LAW - aggravated break and enter with intent to steal - lack of parity of sentence with co-accused -sentence manifestly excessive - "at the crossroads." LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 98 A Crim R 134
R v Govinder (1999) 106 A Crim R 314
R v Hallocoglu (1992) 29 NSWLR 67
R v Henry (1999) 46 NSWLR 346
R v Hunt [2002] NSWCCA 482
R v Lovelock (1988) 19 ALR 327
R v Osenkowski (1982) 5 A Crim R 394
R v Ponfield [1999] NSWCCA 135
R v Wegner [1999] NSWCCA 405
The Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518PARTIES :
Regina
Trent John Lenthall (aka Michael York)FILE NUMBER(S): CCA 60171/04 COUNSEL: D Frearson (Crown)
M Johnston (App)SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Legal Aid)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0563 LOWER COURT
JUDICIAL OFFICER :Dodd DCJ
60171/04
Thursday 5 August 2004WOOD CJ at CL
HIDDEN J
SMART AJ
On 31 October 2003 the applicant was sentenced to imprisonment for five years and three months for aggravated break and enter with intent to steal arising from driving a vehicle ram raid style into a service station. The non-parole period was set at two years and six months. The applicant seeks to appeal against this sentence as lacking parity with the sentence received by his co-accused who was given three years periodic detention with a non-parole period of two years and three months. Additionally or alternatively he claims his sentence was manifestly excessive.
Ground 1 – The difference in the penalty imposed on the co-offender gives rise to a justifiable sense of grievance in the applicant.
The relevant principle is stated in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134. The Court must be satisfied that a justifiable sense of grievance has resulted from the sentencing of co-accused, after sufficient allowance has been made for any differences in their subjective and objective circumstances.
Held: His Honour fell into error in his assessment of the culpability of the two offenders through categorising the subject offence at different levels of seriousness in the separate reasons for sentence. The differences in the head sentences and in the manner in which they were to be served was disproportionate to the differences in their objective and subjective circumstances. Leave to appeal is granted.
Ground 2 – The sentence imposed was manifestly excessive
Held: The applicant’s genuine attempts to rehabilitate were not sufficiently addressed by his Honour. It was a significant factor; it could be accepted that he had reached the “crossroads,” a principle allowing for leniency for offenders to whom leniency would not normally attach, for the purposes of encouraging reform: R v Osenkowski (1982) 5 A Crim R 394 and R v Henry (1999) 46 NSWLR 346. This principle is always to be subject to careful consideration by the Court to disallow for wishful thinking: R v Govinder (1999) 106 A Crim R 314. In conjunction with the matter of parity in sentencing, the head sentence and non-parole period will be reduced.
Orders:
1. Leave to appeal against the sentence granted;
2. Sentence below quashed, and in lieu thereof sentence the applicant to imprisonment for 3 years and 9 months, commencing on 18 February 2003, and expiring on 17 November 2006.
3. Non-parole period of 1 year and 10 months fixed, to commence on 18 February 2003 and to expire on 17 December 2004.
4. Vary the commencement date of the sentences imposed in the Blacktown Local Court on 16 December 2003, each being sentences for fixed terms of 4 months, in so far as they are now to commence on 18 December 2004 and to expire on 17 April 2005.
60171/04
Thursday 5 August 2004WOOD CJ at CL
HIDDEN J
SMART AJ
1 WOOD CJ at CL: The applicant pleaded guilty at the Hornsby Local Court, on 13 June 2003, to a charge of aggravated break and enter with intent to steal (s 113(2) Crimes Act 1900), and was committed for sentence in the District Court. On 31 October 2003, his Honour Judge Dodd sentenced him to imprisonment for five years and three months to commence on 18 February 2003 and to expire on 17 May 2008, with a non-parole period of two years and six months, also to commence from 18 February 2003 and to expire on 17 August 2005. Offences of possessing house breaking implements, take and drive conveyance, and larceny of license plates were taken into account on a Form 1. Additionally, the applicant was ordered to pay compensation to the owner of the motor vehicle that was damaged in the course of the break and enter.
2 A co-accused Michael Mancic was subsequently sentenced by his Honour for the offence of aggravated break and enter with intent, taking into account an offence of knowingly being conveyed, to three years imprisonment with a non-parole period of two years and three months, to be served by way of periodic detention.
3 The plea of guilty was held to have been offered at the earliest opportunity, and as such the applicant was given a discount of 25%. Special circumstances were found, referable to the applicant’s age, to his personal history and deprived background, and to the fact that he was serving the sentence on protection. A need for a longer period than usual for post release supervision was also found.
4 In sentencing the applicant his Honour expressly took into account a substantial body of evidence, involving testimony from the applicant himself, as to his background and to the rehabilitation efforts, which he appeared to have made, since going back into custody, and which were found to give some hope for the future. To those aspects of the case I will return, but they were obviously taken carefully into account by his Honour when fixing a non-parole period that equated to approximately 48% of the head sentence.
5 The applicant now seeks leave to appeal against the sentence, which, it is asserted, lacks parity with that imposed on Mancic, and which additionally, or alternatively, is said to have been manifestly excessive.
Facts
6 On 18 February 2003 the applicant and two other offenders, one of whom was Mancic, drove to the Shell service station on Eastern Valley Way, in a stolen Subaru. The applicant was the driver.
7 When they arrived the applicant drove the vehicle, in ram-raid style, into the doorframe to the shop, shattering the glass. Once access was obtained, Mancic and the other man used a crow bar to strike a roller shutter covering a cigarette display.
8 Police arrived on the scene promptly, at which point the applicant accelerated the Subaru, stopping metres short of the police vehicle. He accelerated in reverse, striking and dislodging a petrol bowser from its foundations. He next selected a forward gear and accelerated at a sufficiently rapid rate to cause the vehicle’s tyres to smoke. A police officer deployed OC Capsicum spray disabling the applicant and Mancic. The remaining offender made an escape and has not been identified.
9 The Subaru was found to have registration plates affixed that had been stolen from another vehicle. Its ignition barrel and stereo unit had been removed. It was damaged in the course of the incident and it was this damage which led to the compensation order. The proprietor of the service station did not seek compensation for the damage occasioned to it, which was estimated to have been in the order of $10,000.
10 The circumstances of aggravation in relation to the s 113(2) offence, which carries a maximum period of imprisonment for 14 years, was that it occurred in company.
11 On 25 November 2003, the applicant was sentenced in the Hornsby Local Court for offences of driving while disqualified and reckless driving, which resulted in fixed terms of nine months, which were directed to be served concurrently with the sentence under appeal. These offences related to the manner in which, and circumstances in which the applicant drove the Subaru on the occasion which brought him before his Honour. The Form 1 offences were similarly related to this occasion.
12 On 16 December 2003 the applicant was sentenced in the Blacktown Local Court to concurrent sentences, each of four months, for quite separate offences of maliciously destroying property, assault, and assault occasioning actual bodily harm, which were directed to commence upon the expiry of the non-parole period for the present offence, effectively extending it by four months. The result is that he now faces a head sentence of five years and three months, with a minimum period in custody of two years and 10 months, that is, a period equivalent to 54% of the head sentence.
13 It is accepted that in the event of this Court intervening and resentencing the applicant, it will be necessary for the commencement dates for the last mentioned sentences to be varied, in accordance with the power reserved to it under s 59(1) Crimes (Sentencing Procedure) Act 1999.
Subjective Circumstances
14 The applicant was born, on his account, on 4 January 1977 (although the records state that his birth date was 4 February 1976). Assuming the correctness of his evidence he was aged 26 years at the time of the offence. He had accumulated an appalling prior record over the past 10 years, commencing with drug offences in 1994, and followed by four offences of break enter and steal and multiple other offences of larceny, stealing motor vehicles, goods in custody, malicious damage, take and drive conveyance, assault and firearm offences. Additionally he has had many convictions for serious motoring offences including driving at a speed and in a manner dangerous, drive while disqualified, and drive while under the influence of alcohol and drugs. He has had his parole revoked more than once as a result of reoffending while on parole, and he has been sentenced, once, for escaping from lawful custody. This record has resulted in him spending seven of the last ten years in gaol, and the present offence was committed within three months of his last release from custody on 21 November 2002.
15 The pre-sentence report and a report from a psychologist, Suzanne Freeman, indicated that the applicant had been the only child of his mother’s first marriage, which had ended when he was aged about two years, and that he had thereafter suffered violence from his step father. In 1987, he was declared uncontrollable, and made a State ward. From that time he spent various periods living with house parents, or in care or juvenile detention institutions, where his behavioural problems escalated. He claimed to have been sexually assaulted by a youth worker at one such institution.
16 His education in the mainstream system ceased at the age of 12 years, and his literacy and employment prospects were impaired by that circumstance. His employment has apparently been confined to a short period during 2002 when he worked in a tattooing parlour, using his artistic talents.
17 He had a long history of multi drug abuse, including heroin, benzodiazepines, amphetamines and cocaine, and also alcohol, commencing at the age of 14 years, although he claimed not to have used while in custody. He had been introduced to drugs by a prostitute, and had worked in that capacity himself, at the Wall, for about 2 years.
18 The records show that he had been prone to depression, and to feelings of paranoia, and had lost contact with his family for an extended period prior to his most recent arrest. There was a history of non-compliance with parole conditions and of an absence of co-operation with the Parole Service.
19 His intelligence was assessed as falling within the average range. There was no suggestion of him suffering from any form of ongoing psychiatric disorder which might have adversely affected his prospects of rehabilitation, although clearly his psychological development had been adversely affected by his very disturbed childhood and adolescent experiences, and by the deep emotional problems associated therewith, the existence of which he frankly acknowledged in a letter which he had prepared for the sentencing proceedings.
20 The evidence revealed that, in more recent times, he had re-established a relationship with his mother, an aunt and his grandmother, that he had resumed attempts at gaining an education, and had taken a particular interest in reading and painting. He had proved to be a promising artist, who had won a NSW Prison Fellowship art prize, and whose work had been exhibited in Canada.
21 There was evidence from the applicant, as well as from a Prison Chaplain, and the psychologist, to show that he had decided to change his prior pattern of serious offending. In this regard, he disclosed a realisation that unless he changed his ways, he faced the possibility of spending the remainder of his life in prison. The discovery of his artistic talents had encouraged him to consider a future as a graphic designer.
22 Additionally there was material to suggest that he had come to realise the futility of drug abuse, and to appreciate that he needed assistance to break his former cycle of drug addiction. To that end, arrangements had been put in train for his future admission to the Odyssey House Programme. While in custody he had been in contact with a drug and alcohol counsellor.
23 The Chaplain was sufficiently impressed by his apparent change in attitude, to provide a positive reference for him and to indicate that he would remain in contact after his release to assist with his rehabilitation.
24 In his evidence and letter to the court, the applicant expressed feelings of remorse, as he had in his consultation with Miss Freeman. He disclosed that he had chosen to remain on protection, even though that involved him being locked in his cell for all but one hour per day, in order to avoid contact with other inmates who “only want to talk jail talk”, and because of the fears which he held for his own safety. In that regard it is the case that he had initially been placed on protection after a fight during an earlier period of imprisonment, with a number of other inmates, over some drug issues.
25 The fact that the applicant had taken steps himself to trace his family through the Salvation Army Family Tracing Service, was itself a positive indication that he was seriously contemplating a change in his ways, and it also provided him with the possibility of a future support network on the outside.
26 His Honour accepted that the applicant had expressed a determination to reform and to rehabilitate himself and that his expression of remorse was genuine. He found that there were “reasons to believe in [his] case that [he] had good prospects of rehabilitation”.
Ground 1 – The difference in the penalty imposed on the co-offender gives rise to a justifiable sense of grievance in the applicant
27 The relevant principle is that set forth in the well known decisions of Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 98 A Crim R 134 at 301 and it does not require repetition, for the purpose of determining this application, other than to note that, for the Court to intervene, it must be satisfied that the difference in sentences between co-offenders, after making sufficient allowance for any differences in their objective and subjective circumstances, would leave the applicant with a justifiable sense of grievance.
28 It is to be noted that, when sentencing the applicant, his Honour found that the s 113(2) offence fell “towards the upper end of [the] scale of seriousness”. When sentencing Mancic, his Honour described the offence as falling “towards the upper end of the mid-range for such offences”. While the difference in categorisation was not explained, it may be that his Honour took into account the dangerous conduct of the applicant as the driver, both while ramming the Subaru into the service station door, and while endeavouring to ensure the escape of Mancic and himself.
29 It was a serious offence of its kind that called for significant weight to be given to the elements of punishment, retribution and deterrence, both specific and general, in the case of each offender. However, in the case of the joint enterprise that was here involved, it is difficult to see why their complicity or objective criminality should not have been regarded as equivalent, particularly as it was Mancic who damaged the protective barrier to the cigarette display, and whose role it clearly had been to steal the property contained therein, which had been the purpose of the ram-raid.
30 There were differences of significance between the two offenders. In favour of the applicant, he was held to have been entitled to a 5% greater discount for the plea, which in his case had been offered earlier. Additionally there was a finding of special circumstances in his case, but not in the case of Mancic. That circumstance explained the numerical similarity in their non-parole periods, but it did not explain the apparent difference in starting points which in the case of the applicant was 7 years, and in the case of Mancic 3 years and 9 months.
31 The remaining circumstances certainly did operate against the applicant, in so far as he had a much worse criminal history than Mancic, who had not previously served any custodial sentence. That offender was aged 25 years at the time of the offence, and had a record that was confined to two offences of break enter and steal, as well as offences of larceny, possess housebreaking implements and assault, each of which had been dealt with by way of a bond.
32 It is well established that the difference between the criminal histories of offenders, and their prior custodial experiences, is a circumstance that may properly justify a difference in sentencing outcomes. As was said in Postiglione at p 303:
- “as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.”
33 It is the case that while periodic detention is not an entirely soft option, it is nevertheless considerably less arduous than full time custody, since it only requires detention for part of the week and converts to community service before its completion: see R v Hallocoglu (1992) 29 NSWLR 67 and R v Wegener [1999] NSWCCA 405 at para 32. In the instant case, Mancic was eligible for periodic detention, but the applicant was barred from eligibility because of his prior record (s 65A Crimes (Sentencing Procedure) Act). Mancic received the maximum total sentence available for that form of detention, and as I have observed, his non-parole period was maintained at the statutory proportion.
34 It is evident from the reasons for sentence in Mancic’s case, that his prior offences, and breach of a bond, were not entirely minimised, in so far as his Honour observed that the prior break enter and steal matters, in particular, did not give him any assistance, and resulted in the court not being able to extend to him any particular leniency.
35 What was persuasive in not imposing a sentence of full time custody, it seems, was the positive evidence that was available which led his Honour to conclude that, in his case, there was “some hope of genuine rehabilitation” and that he had not become “totally inured to a life of crime.”
36 In that regard, there was an expert opinion before the court from Dr Roberts, which contained some analysis of the offender’s background. He had been born in Australia and came from a family with a Serbian background. His mother had left the family when he was aged seven years and his father had died when he was about 12 years old. He had then remained in the care of his grandparents, who had been unable to adjust to their son’s death, and this led to difficulties in the co-offender’s relationship with them.
37 Dr Roberts expressed the view that he had developed unresolved psychological issues in relation to grief, the rejection of his mother, and the suicide of a long term friend, which had led to depression, and a slide into substance abuse and criminal activity. The pre-sentence report was noted as “positive”, in so far as it suggested that the co-offender had come to understand the need for him to seek ongoing counselling, and had expressed a willingness to address the matters which had led to his drift into offending behaviour.
38 The difference in sentences was explained by his Honour as referable to the present applicant’s criminal history which was described as “much worse” than that of the co-offender. His Honour said, when sentencing Mancic:
- “I have come to the conclusion that bearing in mind your relatively short criminal history and the genuine prospects of rehabilitation, the appropriate penalty in this case, particularly as it will be your first custodial sentence, is a sentence of imprisonment to be served by way of periodic detention.”
39 In circumstances where there were such marked differences in the criminal histories of the two offenders, and where one offender, the applicant, had in the past displayed a defiance of the criminal law, and an unpreparedness to respect the constraints of parole, and where the other offender was facing a first time of imprisonment, there clearly was a proper basis for the imposition of a heavier sentence upon the applicant. As this Court made clear in R v Lovelock (1988) 19 ALR 327, differences in sentences are justified by differences in antecedents alone.
40 The fact that the applicant had two offences taken into account on a Form 1 that had not been taken into account in relation to the co-offender, was a further ground for differentiation.
41 The question which arises however, is whether the extent of differentiation was so significant as to leave the applicant with a justifiable sense of grievance.
42 In my view this question should be answered in the affirmative. It would appear that his Honour fell into error in his assessment of the culpability of the two offenders, in so far as he categorised the subject offence at a different level of seriousness in the separate reasons for sentence. Additionally the difference between the head sentences and the circumstances in which they were to be served seems to me to have been disproportionate to the differences in their objective and subjective circumstances.
43 I would accordingly grant leave to appeal
- Ground 2 – The sentence imposed was manifestly excessive
44 It was also submitted that the sentence was manifestly excessive, being within the top 13% of the statistical population comprised by all offenders sentenced for that particular offence and that it was towards the top of the range for a s 113(2) offence that was dealt with by way of a plea. Error was additionally asserted in his Honour’s failure to specifically refer to s 21A of the Crimes (Sentencing Procedure) Act, or to the factors discussed in the guideline judgment in R v Ponfield [1999] NSWCCA 435.
45 It is true that his Honour did not make express reference to the provisions of s 21A. However, so far as I can see, there were no aggravating or mitigating circumstances, mentioned in the Section, which were not dealt with in the reasons for sentence. Moreover it is the case that, in the course of the submissions, there was express reference to the provision, and it is therefore evident that it was not overlooked.
46 It is important that Judges do not merely pay lip service to s 21A. It is an essential part of the fact finding exercise for sentencing purposes, and a failure to deal with it will generally provide reasons for the Court, at least, to grant leave to appeal, that is, unless it otherwise appears that each of the relevant aggravating and mitigating factors has been otherwise addressed.
47 The sentencing statistics are of limited assistance in this case given the small population, and the fact that the offence includes a variety of cases, and is not confined to ram-raid offences of the kind involved in this case, which must be regarded as a particularly serious form of offending within the reach of the section. Additionally it is not to be overlooked that the comparison with the statistics is complicated where Form 1 offences have been taken into account, since that will require some increase in the sentence, for the reasons discussed in The Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The extent of the increase will vary according to the number and nature of the offences included in the Form 1.
48 I am not persuaded, subject to one consideration, that much assistance was to be gained by the reference which it was suggested should have been made to the guideline judgment in R v Ponfield (1999) 48 NSWLR 327. That decision was confined to the identification of the relevant sentencing considerations for s 112 and related offences, and it did not establish a starting point or develop a range of appropriate sentences. It was a case that identified eleven factors which are to be taken as reflecting the seriousness of the offence, and as justifying an increase in the quantum of sentence, if present, particularly if more than one is present.
49 In the present case, there were four relevant factors present, namely that the offence was the result of planning and organisation, the applicant had a prior history for like offences, the offence was accompanied by significant damage to property, and force was used.
50 More relevantly however, as Grove J said in Ponfield, with the concurrence of Spigelman CJ and Sully J:
- “49. It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider it is not of itself a mitigating factor. (See R v Henry supra at pars [193] - [203] and [217] to [259]).”
51 The matter which seems not to have been sufficiently addressed by his Honour, which may also have led to the disparity is that insufficient regard was given to the principles which relate to offenders who are seen to be “at the crossroads”, and for whom a leniency to which they would not otherwise be entitled, should be extended so as to encourage their reform: see R v Osenkowski (1982) 5 A Crim R 394 and R v Henry (1999) 46 NSWLR 346 at para 293; that is subject always to the court subjecting cases of this kind to careful analysis, and not resorting to wishful thinking (per Dunford J in R v Govinder (1999) 106 A Crim R 314), or to “triumph of hope over experience” (per Spigelman CJ in R v Hunt [2002] NSWCCA 482 at para 30).
52 I have given very careful consideration to this aspect of the case, as there was room for optimism that the applicant had truly reached the crossroads, and an acceptable basis for recognising that his attempts at rehabilitation were genuine and considerable.
53 As a consequence, I am of the view that there should be some reduction in the head sentence, and also in the non-parole period. As presently framed the sentence provides for a significant gap between these two aspects of the sentencing order, which does not necessarily enure to the benefit of the applicant, since there is no guarantee of his release upon expiry of the non-parole period.
54 Since the cross roads factor has weighed significantly in my assessment of an appropriate head sentence, in addition to the parity factor, I do consider it appropriate to maintain approximately the same proportion between it and the non-parole period, which was reflected in the original sentencing order. A slight increase in the overall proportion is however necessary to allow for the accumulation for the offences dealt with in the Blacktown Local Court.
55 The finding of special circumstances should be maintained to allow for a sufficient period of supervised release, in order to foster the rehabilitation prospects which have been demonstrated.
56 I would propose the following orders:
1. Leave to appeal against sentence granted;
2. Sentence below quashed, and in lieu thereof sentence the applicant to imprisonment for 3 years and 9 months, commencing on 18 February 2003, and expiring on 17 November 2006.
4. Vary the commencement date of the sentences imposed in the Blacktown Local Court on 16 December 2003, each being sentences for fixed terms of 4 months, in so far as they are now to commence on 18 December 2004 and to expire on 17 April 2005.3. Non-parole period of 1 year and 10 months fixed, to commence on 18 February 2003 and to expire on 17 December 2004.
57 HIDDEN J: I agree with Wood CJ at CL.
58 SMART AJ: I agree with Wood CJ at CL.
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