R v Stambolis

[2006] NSWCCA 56

Reported Decision: 160 A Crim R 510

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Stambolis [2006] NSWCCA 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	01/02/2006
JUDGMENT DATE:	10 March 2006
JUDGMENT OF:	Giles JA at 1; Howie J at 2; Hoeben J at 19
DECISION:	Leave to appeal granted. Crown appeal allowed. Respondent resentenced.
CATCHWORDS:	Crown appeal on sentence - offence of break enter and steal in circumstances of aggravation - inappropriateness of suspended sentences - pleas of guilty not "early" and limited utilitarian value - incorrect use of prior offences - relevance of standard non-parole period - sentences manifestly inadequate - proper sequence of reasoning when formulating a sentence - principles applicable on resentencing.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Cameron v The Queen (2002) 209 CLR 339 Dinsdale v The Queen (2000) 202 CLR 321 JCE (2000) 120 A Crim R 18 Pearce v The Queen (1998) 194 CLR 610 R v Blackman and Walters [2001] NSWCCA 121 R v Cardoso [2003] NSWCCA 15 R v Cartwright (1989) 17 NSWLR 243 R v Dib [2003] NSWCCA 117 R v Dodd (1991) 57 A Crim R 349 R v Eastway (NSWCCA, unreported, 19.5.1992) R v Foster [2001] NSWCCA 215 R v Geddes (1936) 36 SR(NSW) 554 R v Harmouche [2005] NSWCCA 398 R v Jurisic (1998) 45 NSWLR 209 R v Oinonen [1999] NSWCCA 310 R v Percy [1975] Tas SR 62 R v Rushby (1977) 1 NSWLR 594 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tolley [2004] NSWCCA 165 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17 Stevens v Giersh (1976) 14 SASR 81 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Crown - Applicant Anthony Michael Stambolis - Respondent
FILE NUMBER(S):	CCA 2005/1550
COUNSEL:	W Dawe QC - Applicant Crown G Bashir - Respondent
SOLICITORS:	S Kavanagh, Solicitor for Public Prosecutions - Applicant Crown S O'Connor, Legal Aid Commission - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1512; 04/11/1544
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ

2005/1550

GILES JA
HOWIE J
HOEBEN J

Friday, 10 March, 2006

REGINA v Anthony Michael STAMBOLIS

JUDGMENT

1 GILES JA: I agree with Hoeben J.

2 HOWIE J: I have read the judgment of Hoeben J in draft. I agree with his Honour’s reasons for allowing the Crown appeal and the orders he proposes. I simply wish to comment on four other matters arising from the sentencing remarks of Judge Geraghty (the Judge) that were not the subject of grounds of appeal by the Crown and, therefore, were not considered in determining the Crown appeal. They do, however, reveal significant errors in the exercise of discretion otherwise than were relied upon by the Crown and upon which the appeal was determined. The comments may provide guidance for other judges.

3 As will have been noted from Hoeben J’s judgment, the Judge imposed fixed term sentences for each of the offences. He gave no reasons for doing so. As was made clear in R v Tolley [2004] NSWCCA 165 a judge, who is suspending a sentence of imprisonment, should impose a non-parole period or give reasons for not doing so. That requirement should be more apparent under the sentencing regime applicable in the case of the respondent than it might have been in the past because s 44 of the Crimes (Sentencing Procedure) Act (the Act) requires that a court is first to set a non-parole period and then to specify the balance of the term.

4 I initially doubted that the Judge could have intended that the respondent should not be given the benefit of a non-parole period as this seems to me to be completely inconsistent with the approach his Honour was taking based upon the possibility of reform. However, at one stage in his remarks and just before imposing sentence, the Judge said (my underlining):

I do not consider that there are “special circumstances” , but it does seem to me that the offender is at the crossroads and that he should be given an opportunity to demonstrate his commitment to change.

5 I can only understand that the reference to “special circumstances” was a reference to s 44(2) of the Act. But of course a finding that there are no special circumstances under that provision does not mean that the court does not fix a non-parole period, but rather that the non-parole period will bear the statutory relationship to the balance of the term.

6 An inspection of the transcript in fact reveals that the Judge was concerned that he was prohibited from suspending a sentence of more than two years and yet wanted to impose a non-parole period of two years. He was persuaded that he could achieve the same result by imposing a fixed term. This is further proof of the error that has been identified by Hoeben J: the Judge was trying to achieve a result of suspending the sentence before he had determined what the sentence should be.

7 I accept that the error in failing to give reasons for imposing fixed terms did not invalidate the sentences: see s 44(4) of the Act. However, if the Judge had attempted to give reasons for imposing a fixed term, it might have brought home to him the erroneous approach he was taking.

8 The Judge imposed the sentences on the basis that the plea of guilty was made at the first reasonable opportunity and gave the applicant the benefit of a discount of 25 per cent although his Honour found that they were “a little late (understandably)”. The Crown did not oppose this finding and on the hearing of the appeal the Crown conceded that it could not assert otherwise in this Court. However, on the available material it appears that the finding by the Judge was erroneous as a matter of principle. I should point out that full argument was not heard on this issue because the Crown did not rely upon this matter as a ground of appeal and counsel for the respondent was obviously not given the opportunity to argue it. However, it is a good example of a common misconception about the discount for a plea of guilty. Although the principles are well established, they are often overlooked.

9 The applicant was arrested shortly after he committed each of the two sets of offences for which he was to be sentenced. In both cases he made full admissions to the police. Yet the applicant did not plead guilty in the Local Court but was committed for trial. He did not plead guilty until 24 May 2005, almost eight months after his arrest for the second offence.

10 Apparently the explanation for this delay was that the Crown was considering its attitude to the offence of escape. The Crown had originally found a bill for that offence and the indictment presented against the applicant contained a count for an offence of escape lawful custody. It seems that the applicant was not prepared to plead guilty to any offence charged against him until the Crown determined that the escape could be dealt with on a Form 1. There was a letter from a Crown Prosecutor placed in evidence before the Judge indicating what facts would be alleged to support the charge and that the count of escape would be removed from the indictment and placed on a Form 1. This letter was dated 20 May 2005. The respondent pleaded guilty to the remaining offences on the indictment four days later.

11 Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.

12 I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused’s plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15. But in R v Harmouche [2005] NSWCCA 398 Hulme J, with whom Sully J and Latham J agreed, wrote:

[38] Undoubtedly, the Respondent on the evidence before, and findings of, Judge Delaney made out an impressive subjective case. He had the factors of a plea, delay and youth arguing for a lesser penalty than would have been appropriate in their absence and was also entitled to have taken into account 134 days, i.e. something over 4 months, pre-sentence custody.

[39] That said, the 25% discount for the Respondent’s plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5], that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.

40 That what I have said correctly reflects what the Chief Justice said derives support from observations of Hodgson JA, with whose remarks Barr J agreed, in R v Dib [2003] NSWCCA 117 where, dealing with a complaint that only 16.7% had been allowed in the case of a plea entered in response to a lesser charge than originally preferred, his Honour said, at [5 - 6]:
-
“If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount.

This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender’s fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability.”

[41] I myself would go further. Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review – where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.

13 In the present case there was no attention paid by the Judge to the real utilitarian value of the pleas of guilty or to the established authority of R v Dib [2003] NSWCCA 117 and numerous other cases holding that there is no entitlement to any particular discount even if the plea of guilty is at the first reasonable opportunity. I cannot understand why the Crown’s representative would concede that which was not true, a concession that is often made apparently as part of an agreement with the defence. Even approaching the matter on the rationale preferred by the majority in Cameron v The Queen (2002) 209 CLR 339, by treating the discount as reflecting a willingness to assist the administration of justice, there was no such willingness evident in this case until May 2005.

14 The discount should have been no more than 15 per cent but the applicant has had the benefit of an inappropriate concession by the Crown before the Judge and a failure by the Judge to apply the appropriate principles in determining the discount.

15 The third matter is the way the Judge treated the applicant’s prior offending. On two occasions the Judge described the applicant as a “petty thief”. With respect that is a description that completely underestimates the seriousness of offences that the applicant had committed in the past and for which he was before the Judge. There is nothing “petty” about offences of break, enter and steal.

16 Further, the judge in taking into account the applicant’s record of previous convictions held that, “[t]hese prior convictions do not increase the severity of the present offences, but may be considered as militating against a plea for leniency”. That was, with respect, an incorrect approach to take to the applicant’s history of offending in light of the offences for which he was to be sentenced. This was a clear case in which the applicant’s record showed that these offences were “a manifestation of continuing disobedience of the law” and that “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”: Veen v The Queen (No 2) (1988) 164 CLR 465. The simple fact that the aggravated offence was committed while the applicant was subject to a suspended sentence and on bail for the same type of offences would have warranted such approach even had the applicant not had the history of committing such offences as he had. To take such an approach is not to increase the seriousness of the offences but it places the applicant’s offending into a realistic context and emphasises the importance of punishment over rehabilitation.

17 Fourthly the Judge made no mention of the standard non-parole period that applied. In this regard it should be said that the Judge received no assistance from the parties and was probably misled by the representative for the respondent. When the Judge asked what the maximum penalty was for the aggravated offence, he was told that it was imprisonment for 20 years and that the standard non-parole period was 5 years. The Judge asked whether the standard non-period applied and was told by the respondent’s representative (according to the transcript), “No it doesn’t your Honour. Weiss (?) case makes it very clear that the standard doesn’t apply in a situation where a person has pleaded guilty”. The reference to “Weiss” is obviously a transcription error for “Way”. Unfortunately that statement was not an accurate reflection of what this Court said in R v Way (2004) 60 NSWLR 168 or what the law was because it did not inform the Judge that he was required to give reasons for departing from the standard non-parole period or that, even in a case where the offender pleaded guilty, the standard non-parole period remained relevant as a guidepost to the appropriate sentence so that the Judge was required to give consideration to where the particular offence stood in relation to the mid-range of seriousness for an offence of its class.

18 It should be noted that in this case the legal representative for the respondent did not initially submit that a suspended sentence was appropriate. Rather she submitted that the Judge should adjourn the matter under s 11 of the Act to allow the respondent to prove his potential for rehabilitation. It was the Judge who suggested a suspended sentence under s 12. The Crown submitted that such an order would be manifestly inadequate because the sentence had to be more than two years. However, the respondent’s solicitor was strident in promoting the Judge’s proposal whereas, if she had any experience at all in sentencing, she should have known that such a sentence was manifestly inadequate. She would have better assisted her client and the court by pointing that fact out to the Judge at the time he proposed it.

19 HOEBEN J:

Offences and sentence
On 5 August 2005 the respondent was sentenced by Geraghty DCJ in respect of the following offences:
Indictment 1
Count 1: Break enter and steal on 25 August 2004 contrary to s112(1) of the Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 2: Possess housebreaking implements on 25 August 2004 contrary to s114(1)(b) of the Crimes Act 1900 (maximum penalty imprisonment for 7 years).

Indictment 2
Count 1: Aggravated break enter and steal on 5 September 2004 contrary to s112(2) of the Crimes Act 1900 (maximum penalty imprisonment for 20 years).

Count 2: Possess housebreaking implements on 5 September 2004 contrary to s114(1)(b) of the Crimes Act 1900 (maximum penalty imprisonment for 7 years).

An offence of escape from lawful custody on 7 September 2004 was dealt with by way of a Form 1.

20 His Honour imposed the following sentences:

Indictment 1:
On Count 1, the offence of break enter and steal on 25 August 2004, the respondent was sentenced to imprisonment for a fixed term of 18 months to commence on 5 August 2005 and to expire on 4 February 2007. This sentence was suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 upon the respondent entering into a good behaviour bond for the whole term of the sentence upon the following conditions:
- Appear before the Court if called upon to do so at any time.
- Be of good behaviour.
- Reside at specified address except when in rehabilitation.
- Submit to “Bridge” program at Redfern for 10 months and submit to directions of that program.
- Advise the Clerk of the Court of any change of address; and
- Submit to the supervision of the NSW Probation and Parole Service during the term of the bond.

On Count 2, possessing housebreaking implements on 25 August 2004, the respondent was sentenced to a fixed term of imprisonment of 9 months to commence on 5 September 2004 and expire on 4 June 2005.

Indictment 2
On Count 1, the offence of break enter and steal in circumstances of aggravation on 5 September 2004, the respondent was sentenced to imprisonment for 2 years to commence on 5 August 2005 and to expire on 4 August 2007. This sentence was suspended pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 upon the respondent entering into a good behaviour bond for the whole term of the sentence upon the same conditions set out above.

On Count 2, possessing implements on 5 September 2004, the respondent was sentenced to a fixed term of imprisonment for 9 months to commence on 5 November 2004 and expire on 4 August 2005 with the additional offence of escape lawful custody on the Form 1 taken into account in sentencing for this offence.

Background to offences

21 In respect of the offences of 25 August 2004, some council workers advised police officers that a male had been seen running along the Cooks River Walkway from Tennant Parade, after having broken into a house in Starkey Street. It was a private dwelling. The respondent in evidence said that it was a house he knew. He knew the house was unoccupied at the time because he had spent some time knocking on the door and the car belonging to the occupants of the house was not present.

22 When the police conducted a search of the area, the respondent was located underneath a house. He was arrested, cautioned, charged and released on bail. The respondent admitted to stealing the following items:

One laptop computer in a carrying case; one Billabong wallet containing personal documents and $101.25; three gold rings; one gold necklace; one watch; some earrings; two gold pendants and one gold watch.

23 The respondent made admissions at that time that he was breaking entering and stealing. He was found to have in his possession some tools and a pair of gloves. He also made admissions about possessing those implements. He did not plead guilty to those offences.

24 The offences of 5 September 2004 were committed in company when the respondent broke into a pawnbroking shop in Dulwich Hill. A large amount of jewellery and a safe were stolen from the premises. The total amount of the jewellery stolen was in excess of $40,000.

25 In order to effect the break enter and steal the respondent had smashed the front window of the shop, removed the glass panes and removed the security grill using a cordless drill which he took with him. While this was happening a second male kept watch for him and both kept in contact using walkie-talkies. In due course the respondent communicated with the second male and arranged for him to come into the shop and assist in removing the freestanding steel safe. The safe was opened using an angle grinder and subsequently dumped in the Cooks River.

26 The respondent was arrested on 7 September 2004 after some of the stolen goods had been found in a cavity behind a gyprock wall in the main room of the flat where the respondent resided. On being arrested the respondent made admissions in relation to the break enter and steal offence and in relation to possessing housebreaking implements. Most of the stolen goods were recovered. He did not plead guilty to those offences. In due course bail was refused and subject to the following matter he remained in custody.

27 After the respondent was placed under arrest, he asked before leaving the premises to secure his pet dogs in a rear yard. He used that opportunity to escape by jumping the rear fence. The police gave chase and he was arrested in the near vicinity. In relation to this matter the following was stated by the Crown prosecutor in a letter to the respondent’s legal advisers:

“I am of the view that this is a relatively minor matter and capable of being dealt with on a Form 1. The facts will briefly state that the accused ran from the police for a short distance and stopped and waited for the police after which he was placed under arrest.”

28 On 22 April 2004, some five months before these offences, the respondent had been convicted in the Sydney District Court of break and enter with intent to steal and of possessing housebreaking implements and on each charge had been sentenced to imprisonment for 18 months suspended upon entering a bond for a term of 18 months. Accordingly at the time of the August 2004 offences the respondent was subject to a good behaviour bond and at the time of the September 2004 offences, he was on bail and still subject to the good behaviour bond.

29 On 17 February 2006 the respondent was called up for breach of his bond before Shadbolt DCJ. His Honour determined under s98(3) of the Crimes (Sentencing Procedure) Act 1999 that the breach was not trivial and that there were no good reasons for excusing the failure to comply with the bond. His Honour revoked the bond and sentenced the respondent to imprisonment with a non-parole period of 13 ½ months with a balance of term of 4 ½ months. The sentence was to commence on 17 February 2006. His Honour did not find special circumstances. The non-parole period will expire on 30 March 2007. Accordingly the respondent is currently in custody.

30 This application was argued before the Court on 1 February 2006. For reasons which will become apparent, the Court at that time advised the parties that the Crown appeal would be upheld. The parties were, however, granted an adjournment to await the result of the call-up of the respondent before Shadbolt DCJ for breach of his bond and to allow further submissions to be made as to re-sentencing.

Subjective matters

31 The respondent was born on 5 June 1970 and was aged 34 at the time of these offences.

32 The applicant had an extensive criminal record. His first stealing offence occurred on 22 August 1989. This was followed by a further fifteen counts of break enter and steal or break and enter with intent to steal, one count of receiving stolen property and four counts of possess housebreaking implements. Over the years the respondent has been subject to periods of fulltime imprisonment, the longest being a sentence of 3 years with a non-parole period of 12 months.

33 The motivation for these offences has been the respondent’s drug addiction. He began smoking cannabis when he was 17 and progressed to heroin and cocaine by the age of 25. Attempts to rehabilitate himself in the past have proved unsuccessful.

34 A pre-sentence report of 5 August 2005 indicated periods of stability on the part of the respondent while under supervision of the Probation and Parole Service followed by lapses into drug use and further offences. The longest period of stability appears to have been 18 months. The respondent was reported as using illicit drugs as a coping mechanism when faced with difficult situations. The respondent had previously been on the methadone program while on parole, but his attendance was erratic.

35 The respondent apparently experienced a dysfunctional upbringing, as a result of his father’s alcohol abuse and violence towards the family. His parents separated in 2000. The respondent’s relationship with his mother was good but was strained insofar as his father was concerned. The respondent’s mother remained supportive of him and believed that he was emotionally vulnerable and had a tendency to place others’ needs above his own.

36 The respondent left school at the age of 15 without having obtained his school certificate. He undertook a commercial cookery course from 1987 to 1991 and has been employed in the hospitality industry since 1996. His drug addiction has impacted on his ability to retain permanent employment in this industry. The respondent has worked in some well-known restaurants.

Remarks on sentence

37 His Honour noted that the respondent pleaded guilty to the four charges on 25 May 2005. The delay in entering a guilty plea was explained to his Honour by the fact that the prosecutor was asked for an assessment of the offence of escaping lawful custody. On 20 May 2005 the respondent was advised that this offence could be dealt with by way of a Form 1. It was after receiving this information that the respondent entered his pleas of guilty. It was against that background (ROS 12.8) that his Honour concluded that the guilty pleas had been entered at the earliest opportunity, and that in the circumstances a deduction of 25% was appropriate.

38 The respondent gave evidence in the sentence proceedings. The effect of that evidence and a letter placed before the Court was that the respondent was now seriously and absolutely committed to rehabilitation. There was evidence before the Court that the respondent had been assessed as suitable for admission to the Bridge Rehabilitation Program, a fulltime residential course conducted by the Salvation Army. His Honour had regard to those matters but remarked:

“It is so easy for offenders to come to court and proclaim their serious resolve to do something about their addiction.”

39 His Honour referred to a report of Dr Lennings, psychiatrist, of 28 July 2005. This report recorded a previous occasion when the respondent had attended the Bridge Program. On that occasion he had completed 9 months of the 10 month program, but had left to resume a relationship. Dr Lennings thought that the respondent had a relatively good insight into the triggers of his drug use, but what was lacking was an ability to abstain from drug use behaviour at times when he was feeling particularly low. Dr Lennings thought the respondent would be helped by a return to the Bridge Rehabilitation Program.

40 His Honour had regard to remorse expressed by the respondent for the effects of his offences. His Honour also noted that the respondent appeared to be thriving in gaol and that he was working as a site foreman in various commercial activities which were being conducted by Corrective Services.

41 His Honour concluded:

“There is no doubt that he is an educated and poised young man who should not be offending in the way he is; but he is a drug addict and petty criminal who is able to present himself as he did in court, in a very persuasive manner. He has at least that ability. But whether he can be trusted, is a matter he needs to prove to the community.”

42 At the conclusion of his review of the above matters, his Honour said (ROS 10.9):

“I propose to provide him first of all with an indication of the seriousness of the offences he has committed, but also with an opportunity of proving that he can rehabilitate himself.”

43 His Honour took into account some matters of aggravation under s21A in relation to the respondent’s offences. These were the fact that the offences were committed whilst he was at conditional liberty and that to a limited extent there was some element of planning in the offences. His Honour also took into account his previous criminal record which in his Honour’s opinion disentitled him to any leniency. That is a matter referred to in the judgment of Howie J.

44 In relation to mitigating factors, his Honour said:

“As to the mitigating factors, I do not take into account the fact that I consider Stambolis is unlikely to re-offend since I do not know one way or the other at this stage whether he is likely to re-offend. Nor do I take into account either that he has “good prospects” of rehabilitation. That is a matter for him to prove, though he has taken some steps since October last year to participate in rehabilitation programs.”

His Honour had regard to the respondent’s expressions of remorse.

45 It was as a result of the above process of reasoning that his Honour awarded the sentences previously referred to and suspended those sentences in accordance with s12 of the Crimes (Sentencing Procedure) Act. His Honour’s concluding remarks were:

“I do not think that there are “special circumstances” but it does seem to me that the offender is at the cross-roads and that he should be given an opportunity to demonstrate his commitment to change.”

Crown Appeal

46 The Crown has appealed against the sentences on the basis that they are manifestly inadequate.

47 There were as Howie J has indicated a number of errors in his Honour’s remarks on sentence. These were not relied upon by the Crown in its appeal. Accordingly, in arriving at its decision the Court did not take those matters into account but restricted its consideration to the matters specifically raised in the appeal.

48 The thrust of the Crown’s complaint is that his Honour failed to properly consider the totality of the criminality involved in the offences. As an indication of this the Crown specifically referred to the concurrency of the sentences, the particular circumstances of each offence including a significant element of planning and the serious aggravating factor that the offences were committed whilst the respondent was subject to a good behaviour bond and in the case of the second offence, also on bail.

49 I am of the opinion that the challenge by the Crown has been made out. The sentences imposed by his Honour were manifestly inadequate.

50 This Court in R v Zamagias [2002] NSWCCA 17 provided guidance as to the reasoning process which ought be followed by sentencing judges. The start point in that process is the consideration identified in R v Dodd (1991) 57 A Crim R 349 at 354:

“As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum penalty fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of the case will vary: See for example the passage from the judgment of Street CJ in Dodd (1982) 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby (1977) 1 NSWLR 594.”

51 As Zamagias made clear, before referring to the subjective circumstances of an offender, it is important in the light of the passage quoted for a sentencing judge to have due regard to the seriousness of the offence or offences before the court. This, in my opinion, his Honour failed to do.

52 What seems to have been the start point for his Honour’s reasoning process in relation to formulating the sentences are the passages at [41] and [42]. One is inevitably left with the impression that his Honour commenced his process of reasoning from the start point that the sentences imposed on the respondent were to be suspended.

53 A proper analysis of the objective criminality of the offences would have revealed that in the case of the aggravated break enter and steal, it carried a high maximum penalty indicative of the seriousness with which the legislature regards that type of offence. It was associated with a significant level of preparation and planning in that walkie-talkies were used, the respondent was equipped with a cordless drill and was clearly familiar with the layout of the premises and the fact and location of the safe. Finally, the commission of both offences whilst on a bond and the September offence whilst on bail, were seriously aggravating factors which demonstrated a level of contempt by the respondent for the criminal justice system.

54 The appropriate reasoning process was set out in Zamagias as follows:

“(22) Taking the last matter first, it seems beneficial to set out my understanding of how a court should approach the imposition of a sentence of imprisonment under the provisions of the Crimes (Sentencing Procedure) Act.

23) It is clear that, when sentencing an offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594.

(24) There is a preliminary question to be addressed and, depending upon the answer to that question, two further steps may have to be undertaken before the ultimate sentence is imposed.

(25) The preliminary question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended. Notwithstanding that s12, which provides the power to suspend a sentence, is contained in Division 3 of Part 2 of the Act under the general heading “Non-custodial Alternatives”, a suspended sentence is not an alternative to which s5 relates: That is because a sentence cannot be suspended until it has been imposed: (JCE (2000) 120 A Crim R 18 at [15]). It is the execution of the sentence that is suspended not its imposition.

(26) Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be; R v Foster [2001] NSWCCA 215 at [30]. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; JCE at [17]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed, see s6 (periodic detention order), s7 (home detention order) and s12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example it cannot be increased because it is to be served by way of periodic detention: R v Wegener [1999] NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T (NSWCCA, 19 June 1995).

(27) The fact that a term of a sentence is to be determined without regard to the fact that it is to be suspended is consistent with the approach adopted in other jurisdictions where that sentencing alternative has been available for many years, see R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J.
(28) Once the term of the sentence has been determined the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s77 of the Act with respect to home detention. But the appropriateness of an alternative to full time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic at 250B.”

55 Regrettably that simple and logical process was not followed by his Honour. Not only was there a failure to adequately assess the objective seriousness of the offences but the subjective matters to which his Honour had regard were not of a kind as would significantly impact on that consideration. Apart from the respondent’s protestations that he was now ready to change his way of life, there was no material upon which his Honour could be confident that such rehabilitation hopes were likely to be realised. His Honour said as much (see [44]). Had his Honour taken into account the appropriate sentence to be awarded in respect of each offence before considering questions of how the sentences might be served, it would have become clear to him that each of the sentences would need to be significant (Pearce v The Queen (1998) 194 CLR 610) and that there was no basis for concurrency at least as between the offences of break enter and steal. They were quite discrete offences with the second offence in point of time involving a significant escalation in criminality.

Conclusion

56 What then should be the result of the appeal? This is a case where double jeopardy is a significant consideration. The fact that the offences in respect of which the Crown has appealed, were committed whilst the respondent was subject to a bond, is a significant aggravating feature and cannot be ignored. The respondent has, however, already been sentenced by Shadbolt DCJ for that breach of trust. This Court has to be careful to avoid double punishment of the respondent.

57 As a result of the suspension of his sentences, the respondent was at liberty between 5 August 2005 and 17 February 2006. Since the beginning of September 2005 he has been successfully participating in the Bridge Rehabilitation Program. The reports from that program before the Court speak glowingly of the respondent’s progress. Accordingly if re-sentencing the respondent, this Court needs to take into account the time spent by him in that residential rehabilitation program. (R v Cartwright (1989) 17 NSWLR 243 at 258-9, R v Eastway (NSWCCA, unreported, 19 May 1992)).

58 I am also mindful of the judicial restraint which must be exercised when considering a Crown appeal, such as was outlined by Wood CJ at CL in R v Wall [2002] NSWCCA 42. In particular I am mindful that a sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court. In that regard I should observe that had the respondent been properly sentenced in the first place, a substantial non-parole period should have been imposed in respect of each offence without any concurrency. That non-parole period ought to have been significantly longer than the sentences awarded by his Honour and then suspended.

59 In my view sentences of imprisonment must now be passed upon the respondent albeit of a lesser duration than those which should have been imposed by the sentencing judge. Although his Honour erroneously failed to take this into account when re-sentencing, I have to have regard to the standard non-parole period in respect of the aggravated break enter and steal offence of 5 September 2004. That standard non-parole period is 5 years. For the reasons set out in [53] hereof, I am of the opinion that this offence was in the mid-range of seriousness for such offences. Although there was a plea of guilty to that offence, the standard non-parole period remains relevant as an important guidepost for sentencing purposes (R v Way [2004] 60 NSWLR at [53], [122].)

60 Apart from the fact that this is a Crown appeal there are, in my opinion, special circumstances which make the imposition of the standard non-parole period inappropriate. I have already referred to the issues of double jeopardy, the respondent’s participation in the Bridge Rehabilitation Program and the fact that he was at liberty between 5 August 2005 and 17 February 2006. It should also be noted that when Shadbolt DCJ sentenced the respondent he did not take into account the respondent’s period in custody between 7 September 2004 and 5 August 2005, nor did he take account of the residential component of the Bridge Rehabilitation Program. Accordingly, regard needs to be had to the principle of totality when formulating the sentences now to be served by the respondent.

61 I propose to reconcile those considerations with the need to pass sentences of imprisonment by making the sentences totally concurrent with that passed by Shadbolt DCJ and by fixing as the start point for the sentences 7 September 2004 when the respondent first went into custody. The sentences which I propose are imprisonment with a non-parole period of 1 year and a balance of term of 1 year in respect of the first break enter and steal offence and imprisonment with a non-parole period of 2 years with a balance of term of 2 ½ years in respect of the aggravated break enter and steal offence.

62 The orders which I propose are:

(1) Leave to appeal is granted.

(2) The appeal is allowed.

(3) The sentences imposed in respect of counts 1 and 2 of indictment 1 are quashed.

(4) In lieu thereof on count 1, the offence of break enter and steal on 25 August 2004, the respondent is sentenced to a term of imprisonment with a non-parole period of 12 months and a balance of term of 12 months. The non-parole period is to commence on 7 September 2004 and is to expire on 6 September 2005. The balance of term is to expire on 6 September 2006.

(5) On count 2, possessing housebreaking implements on 25 August 2004, the respondent is sentenced to a fixed term of imprisonment for 9 months to commence on 7 September 2004 and to expire on 6 June 2005.

(6) The sentences imposed in respect of counts 1 and 2 of indictment 2 are quashed.

(7) In lieu thereof, on count 1, the offence of break enter and steal in circumstances of aggravation on 5 September 2004, the respondent is sentenced to a term of imprisonment with a non-parole period of 2 years and a balance of term of 2 years and 6 months. The non-parole period is to commence on 7 September 2005 and is to expire on 6 September 2007. The balance of term is to expire on 6 March 2010.

(8) On count 2, possessing housebreaking implements on 5 September 2004, the respondent is sentenced to a fixed term of imprisonment of 9 months to commence on 7 September 2005 and to expire on 6 June 2006.

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16/03/2006 - Typographical error - word "not" omitted in last sentence. - Paragraph(s) [11]