R v McNaughton

[2006] NSWCCA 242

Reported Decision: 163 A Crim R 381
66 NSWLR 566

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Darrell Terry McNaughton [2006] NSWCCA 242
HEARING DATE(S):	7 June 2006
JUDGMENT DATE:	11 August 2006
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJ at CL at 60; Grove J at 65; Barr J at 80; Bell J at 80
DECISION:	1 Leave to appeal granted; 2 Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – Appeal – Sentence – Aggravating factors – Prior criminal record – Whether relevant to objective circumstances of the offence – Whether sentencing judge erred by taking prior criminal record into account as aggravating factor – Crimes (Sentencing Procedure) Act 1999, s 22A(2)(d) - CRIMINAL LAW – Appeal – Sentence – Guilty Plea – Whether trial judge correctly assessed utilitarian value – Whether sentencing judge erred by considering weight of Crown case - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not taking into account fact that proceedings could have been dealt with in Local Court – Where not put to sentencing judge - CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900; s 59, 114(1)(d) Crimes (Sentencing Procedure) Act 1999; s21A
CASES CITED:	AB v The Queen (1999) 198 CLR 111 Baumer v The Queen (1988) 166 CLR 51 Bugmy v The Queen (1990) 169 CLR 525 Director of Public Prosecutions v Ottewell [1970] AC 642 Dixon v Pryce (1996) 135 FLR 27 Ellis v The Queen (2005) 154 A Crim R 450 GAS & SJK v The Queen (2004) 217 CLR 198 Hoare v The Queen (1998) 167 CLR 348 Markarian v The Queen (2005) 79 ALJR 1048 Marshall v Llewellyn (1995) 79 A Crim R 49 R v Baumer (1989) 40 A Crim R 74 R v Bellamy [2005] NSWCCA 329 R v Berg [2004] NSWCCA 300 R v Blair (2005) 152 A Crim R 462 R v Bushara [2006] NSWCCA 8 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Doolan [2006] NSWCCA 29 R v El Masri [2005] NSWCCA 167 R v Hanslow [2004] NSWCCA 163 R v Hathaway [2005] NSWCCA 368 R v Johnson [2004] NSWCCA 76 R v McQueeney [2005] NSWCCA 168 R v Palmer [2005] NSWCCA 349 R v Ponfield (1999) 48 NSWLR 327 R v Royal [2003] NSWCCA 275 R v Shankley [2003] NSWCCA 253 R v Sutton [2004] NSWCCA 225 R v Thompson (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 R v Whyte (2002) 55 NSWLR 252 R v Wickham [2004] NSWCCA 193 Sultan v Svikart (1989) 96 FLR 457 The Queen v Tyday [2006] NTSC 29 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629 Ziderman v Dental Council [1976] 1 WLR 330
PARTIES:	Darrell Terry McNaughton (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/439
COUNSEL:	C. Craigie SC (Applicant) D. Arnott SC, V. Lydiard (Respondent)
SOLICITORS:	S. O’Connor – Legal Aid Commission of NSW S. Kavanagh – Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/51/0019
LOWER COURT JUDICIAL OFFICER:	Bell DCJ
LOWER COURT DATE OF DECISION:	13 September 2005

- 16 -

CCA 2006/439

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
BARR J
BELL J

Friday 11 August 2006

REGINA v Darrell Terry McNAUGHTON

On 6 October 2004 the Applicant attempted to steal a number of coins from an amusement machine at a resort in Coffs Harbour. When the manager of the resort tried to stop him, the Applicant threw an empty coffee tin at the manager, striking him above one eye causing a deep laceration. The Applicant escaped, and was arrested about seven weeks later.

After initially denying his involvement in the crime, the Applicant ultimately pleaded guilty to the offences of entering a building with intent to commit an indictable offence contrary to s114(1)(d) of the Crimes Act 1900, and assault occasioning actual bodily harm contrary to s59 of the Crimes Act.

The Applicant was sentenced to an effective head sentence of four years with a non-parole period of two and a half years. In the course of the sentencing judge’s remarks on sentence, reference was made to the criminal history of the Applicant as an aggravating factor that was required to be taken into account pursuant to s21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

The Applicant sought leave to appeal to this Court against the severity of the sentence imposed. The Applicant advanced four grounds of appeal.

First, the Applicant argued that the sentencing judge erred by taking account of his criminal history as a factor aggravating the objective seriousness of the crime, contrary to the requirement that punishment must be proportional to the offence committed.

Secondly, the Applicant argued that the sentencing judge gave insufficient weight to the utilitarian value of the guilty plea, and wrongly took into account the strength of the Crown case when determining the appropriate reduction to make.

Thirdly, the Applicant argued that the sentencing judge erred by not taking into account the fact that, although the proceedings had been commenced by indictment, the offence could have been dealt with in the Local Court.

Finally, the Applicant argued that the sentence was manifestly excessive.

Held
Per Spigelman CJ, McClellan CJ at CL, Grove, Barr and Bell JJ agreeing and each making additional oberservations

1 The principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence, which circumstances do not include prior convictions. [25], [66], [92], [96]

Veen v The Queen (No 2) (1988) 164 CLR 465; Baumer v The Queen (1988) 166 CLR 51 ; Hoare v The Queen (1989) 167 CLR 348; R v Wickham [2004] NSWCCA 193 followed.
Director of Public Prosecutions v Ottewell [1970] AC 642 considered.
R v Ponfield (1999) 48 NSWLR 327; R v Mulholland (1991) 102 FLR 465 not followed.

2 The reference to prior convictions in s21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 should be interpreted as referring to the use of that consideration in a manner consistent with the proportionality principle. The aggravating factors set out in s21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law. [30]–[32], [66], [92], [96]

R v Wickham [2004] NSWCCA 193 disapproved in part.

3 The sentencing judge did not refer to the Applicant’s prior convictions for any purpose inconsistent with the proportionality principle. [40], [66], [92], [96]

Veen v The Queen (No 2) (1988) 164 CLR 465; R v Johnson [2004] NSWCCA 76 referred to.


Utilitarian Value of the Plea

4 The Applicant’s initial denial of involvement in the crime substantially reduced the utilitarian value of the plea. An assessment of the value of the plea at 15 per cent was appropriate. The sentencing judge did not give any or, if any, only slight weight to the strength of the Crown case. [47]–[48], [66], [95], [96]

R v Thompson (2000) 49 NSWLR 383; R v Sutton [2004] NSWCCA 225 referred to.


Proceeding by Indictment

5 No submission was made to the sentencing judge that this consideration ought to be taken into account. In this case, it would have been entitled to minimal, if any, weight. The obligation to provide reasons does not involve an obligation to exhaustively list every factor capable of impinging one way or another on the final overall judgment required to be made [51], [52], [66], [95], [96]

R v Doan (2000) 50 NSWLR 115; R v Royal [2003] NSWCCA 275; R v Hanslow [2004] NSWCCA 163; R v El Masri [2005] NSWCCA 167; R v Palmer [2005] NSWCCA 349 referred to.


Manifestly Excessive

6 The sentence was not excessive, let alone manifestly so. [57], [66], [94], [96]

CCA 2006/439

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J
BARR J
BELL J

Friday 11 August 2006

REGINA v Darrell Terry McNAUGHTON

Judgment

1 SPIGELMAN CJ: The Applicant seeks leave to appeal against the alleged severity of the sentence imposed upon him by his Honour Judge Bell in the District Court on 13 September 2005.

2 The Applicant pleaded guilty to two offences:

Count 1: Enter a building with intent to commit an indictable offence contrary to s114(1)(d) of the Crimes Act 1900.

Count 2: Assault occasioning actual bodily harm contrary to s59 of the Crimes Act 1900.

3 The maximum penalty for Count 1 was imprisonment for seven years. The Applicant was sentenced to a fixed term of imprisonment of two years and two months commencing on 21 June 2005 and expiring on 20 August 2007. With respect to Count 2 the maximum penalty was five years. The Applicant was sentenced to imprisonment for two years and four months with a non-parole period of 10 months commencing on 21 February 2007 and expiring on 20 December 2007.

4 The effective head sentence was four years with a non-parole period of two and a half years.

The Offence

5 The offence was committed on Wednesday 6 October 2004. The Applicant tried to steal about $50 in coins from one of the amusement machines located in the games room of a holiday resort at Coffs Harbour. The Applicant was accompanied by a juvenile aged 14 years. The manager of the resort investigated the noise created by the attempted robbery. He saw the Applicant breaking into the machine and yelled at him to “Stop”. The Applicant threw an empty coffee tin at the manager, which struck him above one eye, causing a deep laceration which bled freely and ultimately required four stitches. The Applicant escaped. He was arrested about seven weeks later but denied having been there on that night. Ultimately he pleaded guilty.

6 The Applicant was 34 years old at the time of the offences. He had a criminal record extending back over 19 years. He had nine convictions for stealing/larceny/shoplifting; three convictions for break enter and steal; and one conviction for robbery with an offensive weapon. There were also convictions for receiving and one for entering enclosed land without proper excuse. He had been imprisoned on four occasions: in 1996 for receiving; in 1998 for stealing; in 2001 for larceny, goods in custody and armed robbery; and in 2002 for shoplifting.

7 His Honour noted in his remarks on sentence that the injury to the manager could not be classified as a substantial or major injury. There was no evidence to suggest that it involved any kind of permanent disability. Nevertheless, his Honour noted that an object was used that made a cut which bled profusely.

8 His Honour noted the Applicant’s failure to take advantage of previous possibilities for rehabilitation and that he was still committing offences whilst taking drugs. He concluded that a term of imprisonment was required to reflect the objective seriousness of the Applicant’s conduct.

Prior Criminality

9 The first ground of appeal is:

“His Honour erred in treating the Applicant’s criminal history as an aggravating factor.”

10 This ground is based on the following passage in his Honour’s reasons:

“I have outlined the objective seriousness of the matter and I now turn to the matters contained in s 21A of the Crimes Sentencing (Procedure) Act 1999. I will note where I have already taken into account those matters, so that there cannot be said that there is any double counting, a matter of concern in recent judgments in the Court of Criminal Appeal.
In terms of the aggravating factors. In the Crown’s written submissions, subsection (2)(c) was involving the use of a weapon. That has already been referred to. Subsection (2)(d) is a record of previous convictions - Most substantially and most seriously, in June 2001, in the Sydney District Court, Mr McNaughton was sentenced to a term of imprisonment of three years with a non parole period of 18 months, in respect of robbery, armed with an offensive weapon. At the conclusion of the non parole period he was directed to undertake intensive drug and alcohol rehabilitation, including a residential programme and in his evidence before me Mr McNaughton said he did not really understand that that was what he had to do. I have real difficulty accepting that that was the situation. He had been in gaol for some 18 months and to say he did not know what was going to happen to him when he came out on parole, seems an unlikely proposition. Nevertheless, the man clearly is in need of drug and alcohol rehabilitation and at a very intensive level. That I do accept.
Going back to the aggravating factors. Before I leave that, there are other items of imprisonment, but not as substantial in Mr McNaughton’s record.”

11 The Applicant contends that this reasoning, which was based on the Crown’s submissions to his Honour, is contrary to a line of authority in this Court, particularly the judgment of Howie J in R v Wickham [2004] NSWCCA 193 where his Honour said:

“[23] The second limitation is that found in the s 21A(4), which provides:
The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law.
[24] This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that the offender has a record of previous convictions. On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76.”

12 The approach in Wickham is reflected in a number of other cases. (See R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v Blair (2005) 152 A Crim R 462; R v McQueeney [2005] NSWCCA 168; R v Bellamy [2005] NSWCCA 329; R v Bushara [2006] NSWCCA 8; R v Doolan [2006] NSWCCA 29.)

13 The critical issue in this appeal, and the reason why this Court has sat a bench of five, is the contention on the part of the Crown that this reasoning, and some other judgments in this Court, involve a misunderstanding of the High Court’s judgment in Veen v The Queen (No 2) (1988) 164 CLR 465.

14 The relevant statutory provision is s21A of the Crimes (Sentencing Procedure) Act 1999:

“21A (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim’s occupation or voluntary work,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”

15 It is authoritatively established that the common law principle of proportionality, propounded in Veen No 2, requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances. (Hoare v The Queen (1989) 167 CLR 348 at 354.) In a line of cases, commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte (2002) 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than the objective gravity of the offence requires.

16 It is by no means clear that the separate consideration of “objective circumstances” is consistent with the instinctive synthesis approach to sentence. (See Bugmy v The Queen (1990) 169 CLR 525 at 535-536; AB v The Queen (1999) 198 CLR 111 at [13]-[18]; Markarian v The Queen (2005) 79 ALJR 1048 esp at [39], [54], [69], [136]-[137].) However, until the High Court qualifies it in some way, this Court should continue to apply the joint judgment in Hoare.

17 Accordingly, the first issue in the present appeal is whether or not prior offending is an objective circumstance for purposes of the application of the proportionality principle. The same characterisation would appear to me to be appropriate to the obverse proposition, namely, prior good character. If the former is not an “objective circumstance” for purposes of determining the upper limits of a proportionate sentence, then the latter should not be so regarded for purposes of determining the lower limits of a proportionate sentence. However, that does not need to be decided.

18 The relevant passage from the joint judgment in Veen No 2 is at 477-478:

“[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”

19 Subsequently, the High Court restated the principle in a joint judgment in Baumer v The Queen (1988) 166 CLR 51 at 57-58:

“We have already referred to his Honour's observation that "the literally appalling record" of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence.”

20 Nothing in this passage suggests that the Court was intending to qualify the joint judgment in Veen No 2. The reference to leniency in Baumer, in the second sentence quoted above, should be understood as a reference to only one of the ways in which prior offending may be relevant to the exercise of the sentencing discretion. (Compare the emphatic last sentence of the extract from Veen No 2 quoted above.)

21 It is also pertinent to note the passage from Director of Public Prosecutions v Ottewell [1970] AC 642 at 650, referred to with approval in Veen No 2:

“[J]udges have always (and I think rightly) felt themselves entitled to deal with a persistent offender by increasing the sentence they would have passed if he were not. This is not to punish the offender again for his past crimes. Nor is it always primarily for the protection of the public. It may simply be because in the judge’s view the sentences passed for previous offences have proved to be an insufficient deterrent and that the effect of a longer sentence must be tried, perhaps in the offender’s own interests. Or, it may be that repetition has itself increased the gravity of the offence. Eventually, in some cases, a stage is reached where it becomes clear that progressively increasing sentences are not a deterrent; and the protection of the public against a persistent offender then comes to the forefront of the considerations which the judge must take into account.”

(See also Ziderman v Dental Council [1976] 1 WLR 330 at 333-334.)

22 The reference in Ottewell to “repetition” increasing “the gravity of the offence” suggests that prior convictions may be classified as part of the objective circumstances. The same suggestion could be understood to arise from the reference in the passage in Veen No 2 to prior convictions ‘illuminating’ “the moral culpability of the offender in the instance case”. If so, there is a tension with the first sentence of the passage which limits the weight to be given to this consideration, so that the sentence does not exceed what is proportionate to “the gravity of the offence”. That sentence must mean that prior convictions do not themselves play a role in determining the “gravity of the offence” which, as Hoare confirms, turns on the “objective circumstances” of the offence. This understanding is confirmed in Baumer.

23 There is a division apparent in the Northern Territory Supreme Court about whether prior record is an objective circumstance pertinent to the gravity of the offence. This began with the resentencing of Baumer himself in R v Baumer (1989) 40 A Crim R 74 at 79 and c/f 84-85; and see Sultan v Svikart (1989) 96 FLR 457 at 461-462; R v Mulholland (1991) 102 FLR 465 at 478-479; Marshall v Llewellyn (1995) 79 A Crim R 49 at 53-54; Dixon v Pryce (1996) 135 FLR 27 at 30-31; Ellis v The Queen [2005] NTCCA 1 at [62]; 154 A Crim R 450 at 455; The Queen v Tyday [2006] NTSC 29 at [11]-[12]. There is also authority in this Court which suggests that prior convictions affect the seriousness of the offence. (See R v Ponfield (1999) 48 NSWLR 327 at [48]; and see Justice David Hunt and Hugh Donnelly “The Objective Circumstances of the Case and Prior Record” (1995) Judicial Officers Bulletin 57.)

24 Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen No 2 and in Baumer as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. In this respect I agree with the reasoning of Howie J in Wickham, which I had left open in R v Berg [2004] NSWCCA 300 at [40].

25 The Crown submissions to this Court put forward a cogent case for accepting that prior convictions are relevant to the mens rea element of an offence and are particularly significant in the assessment of the moral culpability of the offender in the commission of the offence for which s/he stands to be sentenced. Nevertheless, such considerations can be taken into account in determining the appropriate level of punishment for the particular offence and for determining where in the spectrum of seriousness of offences of this character, the facts of the case lie. (See R v Way (2004) 60 NSWLR 168 at [85]-[99] and especially at [90]-[93].) However, on the authority of Veen No 2 and Baumer, it is not open to this Court to adopt the approach submitted by the Crown so as to use prior convictions to determine the upper boundary of a proportionate sentence.

26 There is a difficulty with the reference in Veen No 2 to prior convictions ‘illuminating’ the offender’s “moral culpability”. Nevertheless, as Howie J stated in Wickham, the majority judgment in Veen No 2 recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie. I refer specifically to the reference to an “attitude of disobedience of the law” and to the increased weight to be given to “retribution”, “deterrence” (relevantly personal deterrence) and “the protection of society”.

27 As the joint judgment in Veen No 2, after noting at 472 that “The principle of proportionality is now firmly established in this country”, said at 473:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

28 Furthermore, as the joint judgment put it in Weininger v The Queen (2003) 212 CLR 629 at [32]:

“A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.”

29 I agree with McClellan CJ at CL in R v Hathaway [2005] NSWCCA 368 at [34], that the different approaches are unlikely to be of practical significance when determining an actual sentence. However, there is an unfortunate effect when principles are treated as if they are rules: minor variations of expression may be found to reveal error, when the practical significance of the difference was nil.

30 Although I agree with Howie J’s identification in Wickham of the relevant sentencing principle, I do not agree with his characterisation of s21A(2)(d). (See Berg supra at [40].) His Honour said that the section appears “on its face” to “indicate that a prior criminal record is a matter of aggravation by making the offence more serious”. With respect, I do not agree that the section should be interpreted in that way. There is a distinction at common law between what Callinan J has called “a circumstance of aggravation” and a “matter adverse to an offender”. (Weininger supra at [116].) However, Parliament has not used the word “aggravation” in its common law sense.

31 There is a reference to “relative seriousness of the offence” in s21A(1)(c), but it should not be assumed that the word “seriousness” there appearing is a reference to the objective gravity of the offence in the sense that the word has been used in the authorities. Nor, in my opinion, should it be assumed that the words “aggravating factors” in the section should be interpreted as if they were a reference to “objective considerations” only, as those words have been used.

32 Section 21A(1)(c) refers expressly to “any other objective or subjective factor”, clearly indicating that the lists of aggravating and mitigating factors in s21A(2) and (3) encompass both kinds of considerations. Some of the matters listed in s21A(2) appear to me to encompass matters which, in the terminology that has come to be adopted in the case law are, at least in part, “subjective” rather than “objective”, e.g. motive in (h) and offending whilst on conditional liberty in (j). I can see no reason why the reference to prior convictions should not be interpreted as referring to the use of that consideration in the ways authorised expressly in Veen No 2.

33 If Veen No 2 is understood to establish a principle to the effect that prior convictions can never be classified as an “aggravating factor” then, because the principle of proportionality applies to all sentences, s21A(4) would have the effect of depriving s21A(2)(d) of any effect. Section 21A(4) should not be interpreted in that way.

34 This consideration reinforces my conclusion that the aggravating factors set out in s21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law.

The Sentencing Judge’s Comments

35 I have set out above the observations upon which this ground of appeal is based. There is nothing in those observations which indicates that his Honour made use of the prior convictions for any purpose inconsistent with Veen No 2. Specifically, there is nothing to suggest that his Honour applied this factor as an “objective” circumstance of the offence. Nor is there anything to suggest that he applied this factor to expand the bounds of the sentence beyond that proportionate to those circumstances.

36 His Honour took the prior convictions into account, as s21A(1)(d) envisaged he should. His Honour’s observations about the Applicant’s failure to take up the opportunity of drug and alcohol rehabilitation is consistent with the factor of the prior convictions justifying greater weight to be given to personal deterrence and less weight to rehabilitation.

37 The passage set out in par [10] above commences with a reference to “the objective seriousness of the matter” and indicates that his Honour then turned to the s21A considerations. This reflects the Crown submissions which had a distinct subheading “Objective seriousness of the offence”, before the subheading “Aggravating features pursuant to Section 21A(2) …”.

38 As quoted in par [10] above, his Honour expressly referred to the Crown’s written submissions when he commenced to discuss the s21A(2) aggravating factors. Under the “Aggravating Features” heading, the submissions stated:

“The Offender has a lengthy record for various types of matters, including several break, enter and steal offences and a conviction for armed robbery in 2001. His record shows in some respects a continuing attitude of disobedience of the law. It is submitted that in this respect, it is appropriate for the court to give more weight to factors such as deterrence and the protection of the community.”

39 This is a paraphrase of Veen No 2.

40 His Honour’s express separate treatment of “objective seriousness” and his reference to the submissions, clearly indicate that he did not refer to the Applicant’s prior convictions for any purpose inconsistent with Veen No 2.

41 This is a case, like Johnson supra at [37], where his Honour’s remarks, properly understood, do not suggest any infringement of the principle of proportionality established in Veen No 2.

42 This ground of appeal should be dismissed.

Utilitarian Value of the Plea

43 The second ground of appeal is:

“His Honour erred in considering the matters that included the strength of the Crown case when calculating the reduction otherwise due as recognition of utility in the plea.”

44 This ground of appeal is based on the following passage in his Honour’s remarks on sentence:

“I note that in reaching these assessments I have accorded Mr McNaughton a 15 percent discount for his pleas. The 15 percent is based upon matters such as the fact that he did not even - a month and a half after the event, acknowledge to the police his role in the matter. Although, when he had the opportunity to enter the pleas, to these offences he has done so and there was of course, the presence of the DNA and the inculpating evidence of his co-accused in terms of making a strong Crown case, nevertheless the plea of guilty does reflect a desire to facilitate the course of justice and accordingly is fixed at 15 percent.”

45 The reference to the DNA sample was a reference to the evidence that linked the Applicant to the scene of the crime, in circumstances where the offender’s blood had been picked up at the scene and the Applicant had subsequently, voluntarily, given a DNA sample which matched.

46 This Court has on a number of occasions indicated that the issue of strength of the Crown case is not pertinent to the utilitarian value of the plea although it is pertinent to the use of a plea in an assessment of the element of remorse. (See R v Thompson (2000) 49 NSWLR 383; R v Sutton [2004] NSWCCA 225 at [12].)

47 The Applicant’s initial denial of any involvement substantially reduced the utilitarian value of the plea. A determination that that value should be assessed at 15 per cent was entirely appropriate. The Crown, in my view erroneously, accepted that the plea was made at the earliest opportunity. However, the trial judge was not obliged to accept that submission (see GAS & SJK v The Queen (2004) 217 CLR 198).

48 I am not satisfied that his Honour gave any, or at least any significant, weight to the strength of the Crown case in making his assessment of a 15 percent discount. The passage relied upon by the Applicant commenced with the words “and of course”. This was, in my opinion, an aside in the course of ex tempore remarks on sentence. The conditions under which District Court judges give such reasons are not such as to permit their remarks to be parsed and analysed. The combined effect of the nature of the remarks and the reasonable, in all the circumstances, reduction from the maximum discount is such as to satisfy me that, if his Honour gave the strength of the Crown case any weight at all, which I doubt, it was slight.

49 This ground of appeal should be dismissed.

Proceeding by Indictment

50 The third ground of appeal is:

“His Honour erred in not taking into consideration the fact that the offences were of a kind that could have been dealt with in the Local Court.”

51 This Court is a court of error. No submission of this kind was made to the sentencing judge. If this consideration was entitled to any weight at all, which I do not accept, it would be so small as to have little effect on the outcome. This Court should not allow such a point to be taken for the first time on appeal so as to manufacture an entirely technical error which may allow the Court to re-exercise the sentencing discretion.

52 In any event, it is not appropriate to act on the basis that a failure to expressly refer to this factor in remarks on sentence reveals error. The obligation to provide reasons does not involve an obligation to exhaustively list every factor capable of impinging one way or another on the final overall judgment required to be made.

53 There are circumstances in which this consideration is entitled to some weight. That is not, however, the case whenever a proceeding in the Local Court is theoretically available. (See R v Doan (2000) 50 NSWLR 115 at [39]-[42]; R v Royal [2003] NSWCCA 275 at [38]; R v Hanslow [2004] NSWCCA 163 at [21]; R v El Masri [2005] NSWCCA 167 at [29]-[30], [45]; R v Palmer [2005] NSWCCA 349 at [15].)

54 In any event, in view of the Applicant’s prior criminality, this was a case in which personal deterrence and protection of the community were entitled to considerable weight. A sentence in excess of the jurisdictional limit of the Local Court was clearly open. This was a case in which it was appropriate for the Crown to proceed by indictment.

55 This ground of appeal should be dismissed.

Manifestly Excessive

56 The final ground of appeal is that the sentences are manifestly excessive.

57 This ground was only faintly pressed. His Honour’s sentences are not, in all the circumstances, excessive, let alone manifestly so. The entry with intent offence was an offence that involved a degree of planning. The offender was prepared to, and did, resort to violence to commit the offence. The assault caused injury, albeit not permanent. Considerations of personal deterrence and protection of the public were entitled to considerable weight.

58 Each of the sentences imposed was within the range of the permissible exercise of discretion. The entry with intent sentence was, in my opinion, low in that range.

Orders

59 Leave to appeal should be granted and the appeal dismissed.

60 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of Spigelman CJ in draft form. I agree with his Honour and add only the following remarks.

61 The Chief Justice acknowledges the difficulty created by the reference in the majority judgment in Veen [No 2] to prior convictions “illuminating the offender’s moral culpability.” That difficulty is emphasised when it is understood that the majority referred with apparent approval to the passage in the speech of Lord Donovan in Director of Public Prosecutions v Ottewell (1970) AC 642 at 650 where reference is made to the possibility that “repetition has itself increased the gravity of the offence.” This formulation of Lord Donovan is relevantly wider than the formulation of Lord Reid with whom Lord Hodson, Lord Guest and Lord Upjohn concurred who said (at 648):

It was regarded as improper to extend a sentence of imprisonment beyond a term which bore some relation to the gravity of the last offence: anything beyond that was regarded as additional punishment for previous offences and that of course would be improper.”

62 The Chief Justice has also referred to the discussion by Lord Diplock in Peter Ziderman v General Dental Council (1976) 1 WLR 330 at 334 where his Lordship said that “an offence which is committed by a person who has offended before is graver than a similar offence committed by a person who offends for the first time.”

63 If the question is asked “is it a worse crime to commit an offence having been previously convicted for the same or similar offence” the general community would probably answer “yes.” Although the Crown argued that this was because prior offending informs the mens rea of the instant offence there are difficulties with this argument, including matters of proof. There is force in the argument that it may inform the moral culpability of the offender for the instant offence. However, as Howie J indicated in R v Wickham [2004] NSWCCA 193 and the Chief Justice confirms, that argument was rejected by the High Court in Veen [No 2].

64 I agree with the orders proposed by the Chief Justice.

65 GROVE J: I have the advantage of reading the judgment of Spigelman CJ in draft form. The facts of the offences and the issues which have been advanced for determination are set out therein and it is unnecessary to repeat or paraphrase them.

66 As observed, there is some extant authority which suggests that prior convictions affect the seriousness of the offence. In R v Ponfield 1999 48 NSWLR 327 I said (Spigelman CJ and Sully J agreeing):

“A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present….
(iii) the offender has a prior record particularly for like offences”.

67 I note that Ponfield was decided prior to the insertion of s 21A into the Crimes (Sentencing Procedure) Act 1999, a provision which came into effect on 1 February 2003. After that insertion, the language of “aggravating factors,” specifically including that which posited “the offender has a record of previous convictions” (s 21A(2)(d)), became introduced.

68 Later in R v Blair (2005) 152 A Crim R 462 I said (James and Barr JJ agreeing):

“I would suggest that it is unfortunate that the legislature has included ‘a record of previous convictions’ in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to ‘rule of law’ to do so. ‘Rule of law’ is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193”.

69 Although the language is different, it is perceptible that there is inconsistency between saying that previous record be given regard in assessing the seriousness of an offence (Ponfield) and saying prior conviction does not operate to aggravate an offence (Blair).

70 I interpolate an observation that, despite the cogency of the reasons given for rejection, the submission by counsel for the applicant in Veen v The Queen (No 2) 1998 164 CL 465 seeking to confine antecedent criminal history as relevant only to a claim for lenience, had to commend it that it offered a clearly defined potential use for sentencing judges, as well as a transparency that would negative any impression to an offender that, in some subtle or some undisclosed way, he or she may have been punished more than once for the same offence. What was stated in Veen (No 2) must be accepted as binding.

71 However, I adhere to my comment concerning the misfortune arising from the inclusion of the issue of previous conviction in the list of aggravating factors in s 21A (2). The existence of any controversy for which resolution is sought in this appeal is essentially a consequence of that inclusion.

72 Although, as Spigelman CJ has noted, it is by no means clear that separate consideration of “objective circumstances” is consistent with the intuitive synthesis approach to sentence, he set about determination of whether a record of prior offending is an objective circumstance for the purpose of application of the principle that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: Hoare v The Queen 1989 167 CLR 348.

73 His conclusion was that, in the light of Veen (No 2) and Baumer v The Queen 1988 166 CLR 51, objective circumstances did not encompass prior convictions. As s 21A (2)(d) should not be construed to have been deprived of any potential effect by s 21 (4), he concluded that the list of aggravating factors, including therefore s 21A (2)(d), should be construed to encompass both subjective and objective considerations.

74 Classifying various factors taken into account by a sentencing judge is an exercise which may not have practical significance: cf R v Hathaway [2005] NSWCCA 368, but it is desirable that, as far as possible, sentencing judges have guidance from this Court which is uncomplicated by multiple or possibly conflicting expressions.

75 As was stated in the joint judgment in Veen (No 2) (@ p 476) sentencing is not a purely logical exercise and it would surely reflect the community’s understanding of the assessment of criminal penalties that, whatever philosophical or semantic path is travelled, if all other things are equal the repeat offender will receive severer punishment than an offender without prior criminal history.

76 To the extent that anything I have previously said might be considered inconsistent with the conclusions now expressed by Spigelman CJ, I therefore record an agreement with the latter.

77 It remains to be seen whether the outcome of this appeal has any effect upon the frequency with which complaint is made to this Court concerning the variety of expression with which sentencing judges seek to classify factors when they expose their reasons. I take the opportunity to reiterate the view that the primary focus of remarks on sentence should be upon the offender, who is entitled to a plain statement of the reasons why sentence is being imposed upon him or her. I would suggest that this is unlikely to be achieved by proffering analytical legal discussion or recitations from statute or from judicial authorities. Adherence to the fundamental purpose of remarks on sentence should act as an inhibitor against contrivance of allegations of detected error in profferings of those natures.

78 On the issue of asserted excessiveness of sentence in the present case, it suffices to observe that, on the facts and in the circumstances, the condition precedent to the exercise of the power of this Court to intervene, that some lesser sentence is warranted, has not been fulfilled.

79 I agree that leave to appeal against sentence should be granted but the appeal dismissed.

80 BARR and BELL JJ: We have had the advantage of reading the judgment of the Chief Justice in draft form and agree that the appeal should be dismissed for the reasons that his Honour gives.

81 We agree with the Chief Justice’s reasons for rejecting the Crown’s contention that an offender’s record of previous convictions may be taken into account as part of the objective circumstances of the offence for the purposes of determining the upper boundary of a proportionate sentence.

82 We also agree with McClellan CJ at CL that there are difficulties with the Crown’s allied contention, that an offender’s previous record of convictions may “impinge on the mens rea” for his or her offence. Proof of mens rea was an element of each of the offences for which the applicant was sentenced. It was established by proof of the applicant’s knowledge that he had entered the premises and of his intention to steal therein (count one) and of his intention to assault the complainant at the time he threw the coffee tin (count two).

83 The Crown acknowledged that the applicant is not to be punished twice for past offences. In written submissions the Crown contended that “in certain circumstances previous convictions are capable of revealing how calculated the mind of the offender had been and how aware he or she was of the consequence of the crime” (WS [14]). While we consider that it was open to the sentencing judge to impose a deterrent sentence taking into account the applicant’s previous convictions which evidenced his continuing attitude of disobedience to the law, we have difficulty identifying what it was about his record that could be said to have impinged on his state of mind at the time of the commission of these offences such as to justify the imposition of a heavier sentence than that which was appropriate for what it was that he did while possessed of the state of mind that made his acts criminal.

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