R v Tetley - [2006] NSWCCA 22

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v TETLEY [2006] NSWCCA 22

FILE NUMBER(S):
2005/2428

HEARING DATE(S): 10 February 2006

DECISION DATE: 10/02/2006
EX TEMPORE DATE: 10/02/2006

PARTIES:
Regina

Jason Phillip TETLEY

JUDGMENT OF: Handley JA Adams J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0102

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
W Dawe QC - Crown
P Strickland SC - Applicant

SOLICITORS:
S O'Connor - Crown
S Kavanagh - Applicant

CATCHWORDS:
Sentence appeal
no question of principle

LEGISLATION CITED:
Crimes Act 1900 s 188
Crimes (Sentencing Procedure) Act 1999 s 21A

DECISION:
Leave to appeal granted
appeal refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2428
HANDLEY JA
ADAMS J
LATHAM J

FRIDAY 10 FEBRUARY 2006

REGINA v JASON PHILLIP TETLEY

JUDGMENT

ADAMS J: The applicant was convicted on 9 July 2004 following his pleas on six counts of receiving and disposing of 195 head of cattle valued at about $55,350. The offences occurred between 7 May and 7 December 2000. The applicant also asked the Court to take into account on the Form 1 six counts of obtaining a benefit by falsely representing to various buyers that he was the owner of the cattle. It should be noted that these offences, therefore, involve not only additional criminal conduct but also further victims of his dishonesty.
The maximum penalty for receiving under s 188 of the Crimes Act 1900 is ten years’ imprisonment and obtaining a benefit by deception is five years’ imprisonment.
Count three in the indictment referred to the largest number of cattle stolen, (90). The applicant was sentenced on this count, taking into account the matters on the Form 1, to imprisonment for two years six months to commence on 10 June 2005 and to expire on 9 December 2007 with a non-parole period to expire on 9 June 2006.
In respect of the other counts, fully concurrent fixed terms were imposed as follows:
Count 1 (8 head) six months; count 2 (20 head) nine months; count 4 (21 head) nine months; count 5 (50 head) 12 months; count 6 (6 head) six months. Compensation orders totalling $55,351 were made although it was accepted that the applicant was not in a position to comply.
The applicant seeks leave to appeal from these sentences. Having regard to the grounds of appeal, the facts of the various offences are not significant in the determination of the application and it is unnecessary to refer to them further.
Ground one. His Honour erred in failing to find as mitigating factors (a) that the applicant was unlikely to reoffend; and (b) that the applicant had good prospects of rehabilitation.
These factors are referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999, although they are separately mentioned. It is clear that they are but different ways of stating the same notion.
The written submissions made by the Crown at the sentencing hearing contended that "there was no evidence currently available to the Crown to indicate that the offender has good prospects of rehabilitation or that he is an unlikely to reoffend." Counsel for the applicant submitted to the contrary, referring in particular to the testimonials and the presentence report. The learned sentencing judge did not in his Honour's reasons for sentence advert specifically to these submissions or, indeed, to the subject matter as specific considerations enumerated by s 21A.
The testimonials tendered by the applicant implied that he would be unlikely to re-offend and the presentence report stated, in respect of the issue of supervision, that he was "unsuitable for supervision with this service as there do not appeared to be any underlying issues which can be addressed by this service".
Taking this material together, I consider that a finding that the applicant's prospects of rehabilitation were good was inevitable. His Honour referred both to the testimonials and to the conclusion of the presentence report noting in particular the report’s statement, that the applicant accepted both responsibility for the offences and sympathised with the victims.
In dealing with special circumstances the learned sentencing judge said:
“Although the usual reason for finding special circumstances being the need for supervision and rehabilitation on release may not particularly relate, I am prepared to find special circumstances for a number of reasons.”
In my view, a fair reading of the learned sentencing judge’s reasons showed that he did accept that the applicant had good prospects of rehabilitation and was unlikely to re-offend. Furthermore, his Honour took this into account not only in relation to special circumstances but also in relation to the appropriate sentence and non parole period.
This ground of appeal fails.
Ground two. His Honour erred in that he failed to take into account adequately or at all the delay between the commission of the offences and the date of the sentence in determining (a) whether to impose a sentence of full-time imprisonment; and (b) the length of the total sentence.
The learned sentencing judge specifically mentioned the delay in the proceedings and described the offences as "quite old". His Honour noted that the applicant was arrested in November 2000 and the brief was not prepared until 2003. The further delay being occasioned by what his Honour described as "issues in regard to DNA testing". His Honour also noted in this respect that “a plea of guilty had been entered when various other matters had been reconciled.” I think that this was general language which attempted to indicate that his Honour had considered the nature of delay and, to the extent that it was known to his Honour, the reasons for it. It follows, I think, that the learned sentencing judge had in mind both the fact and the significance of the delay as it affected the setting of the sentence. Indeed, the Crown submission specifically invited him to do so.
If I may foreshadow a discussion below about the adequacy of the sentences, it seems to me that this factor was the only factor which could have justified the significant leniency extended, to the applicant, in ordering that all the sentences were to be served concurrently.
The learned sentencing judge mentioned the factor of delay as one of the specific reasons justifying reducing the non-parole period to less than the statutory ratio with the balance of the term, that is to say, for finding special circumstances justifying that variation. The fact that his Honour specifically mentioned it in this context does not mean, in my view, that he did not consider its relevance in relation to the sentence as a whole.
There is no need to deal with each element in the congeries of relevant sentencing facts to show how it contributes to the outcome. Indeed, to do so is to make a fundamental error. Occasionally, a specific fact, or specific facts, will be decisive as to a particular sentencing disposition but this is rare. Precise analysis in the sense of attributing a preciselydefined significance or weight to each important fact is not only wrong in principle but necessarily fictional or, at least arbitrary. Instinctive or intuitive synthesis is not only required, it is inherent in the very process of achieving a just sentence that fairly reflects the whole of the relevant circumstances.
Accordingly, it was not only unnecessary but, in my view, would have been an error for his Honour (once he had noted the nature and the extent of the delay and accepted its relevance) to isolate it as a particular matter determinative of the issue whether a sentence of full-time custody was warranted and its length. This factor was but one of all the relevant considerations his Honour needed to weigh up and he did not err in my view by not attributing to it any specified relevance.
In my opinion, this ground of appeal must also fail.
Ground three. His Honour erred in ordering the sentence of imprisonment be served by way of full-time custody rather than by way of periodic detention order.
Ground four. The sentence imposed was manifestly excessive.
It is convenient to deal with these grounds together. I have already mentioned the objective circumstances of the offences. They entail criminal conduct over a six-month period. That conduct involved receiving valuable cattle known to be stolen and on selling them to further victims.
Cattle theft is a very serious matter in country areas where, for obvious reasons, cattle cannot be continuously supervised. The only reason open on the evidence for the applicant's offences is that he committed them for financial reasons. He did not give evidence and none of the material tendered on his behalf suggests any particular hardship or financial difficulty that impelled him to commit these crimes. Furthermore, they were not isolated but a repeated pattern of dishonest conduct. The learned and sentencing judge correctly characterised them as planned criminal activity.
The applicant was twenty-eight years of age when he committed the offences. At the time of sentencing he had been in a partnership for six years and had four-year-old child. He completed a degree in Agriculture and had worked as a cattle breeder and a cattle work manager.
Counsel for the applicant points to a number of mitigating features. The first of these is the fact that he had no prior convictions and was, otherwise, a man of good character. Testimonials were tendered from persons who had been involved in various ways in the cattle industry over many years. They said the applicant was highly competent in his professional activities. He provided advice and assistance in cattle breeding programs. He was, in respect of these activities, not only competent but honest and trustworthy. He was hard-working. He plainly impressed many people with whom he worked.
As I have already mentioned, the applicant has good prospects of rehabilitation. He has suffered substantial hardship as a result of the public disclosure of his offences, losing employment and finding it hard to obtain regular work. He had been working for one day a week doing farm maintenance and fencing as at the date of his sentence.
The learned sentencing judge accepted that the applicant’s reputation in the industry had "become black", although the testimonials to which I have referred held out some prospect of hope for him in this regard. It seems to me, also, that the learned sentencing judge accepted that the applicant was genuinely remorseful. Another significant mitigating factor is the delay in sentencing the applicant. I have already referred to this matter.
I do not doubt that the learned sentencing judge regarded all these factors as significant. As I have mentioned, the fact that his Honour made all the sentences completely concurrent demonstrates that a high degree of leniency was extended to the applicant. I do not see how it would have been an appropriate exercise of the learned sentencing judge's discretion to pass any lesser sentence on the applicant. Nor do I consider that the sentence of less than full-time custody could have properly been imposed.
To be precise, I am not persuaded that the learned sentencing judge erred in the sentences that his Honour imposed, or in the reasons that His Honour gave for imposing them.
Accordingly, I would grant leave to appeal but dismiss the appeal.

HANDLEY JA: I agree.
LATHAM J: I also agree.
HANDLEY JA: The order of the Court then is leave to appeal granted. Appeal refused.

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LAST UPDATED: 15/02/2006