Regina v Timmis

[2003] NSWCCA 158

CITATION:	Regina v Timmis [2003] NSWCCA 158
HEARING DATE(S):	16 June 2003
JUDGMENT DATE:	20 June 2003
JUDGMENT OF:	Hodgson JA at 1; Simpson J at 2; Greg James J at 48
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s44 Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW), s447B Criminal Appeal Act 1912 (NSW), s6
CASES CITED:	Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 581, unreported, 20 December 2002
PARTIES :	Crown - Respondent Michael Anthony Timmis - Applicant
FILE NUMBER(S):	CCA 60061/03
COUNSEL:	D Howard - Crown P Hamill - Applicant
SOLICITORS:	SE O'Connor - Crown Gregory J Goold - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/3384
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

60061/03

HODGSON JA
SIMPSON J
GREG JAMES J

Friday 20 June 2003

REGINA v Michael TIMMIS

Judgment

1 HODGSON JA: I agree with Simpson J and Greg James J.

2 SIMPSON J: This is an application for leave to appeal against sentences imposed upon the applicant in the District Court on 28 June 2002.

3 On 8 March 2002 the applicant was charged in the District Court on an indictment containing four counts, of which the second and fourth were alternative to the first and third. The applicant entered pleas of not guilty to each primary charge, and guilty to each alternative charge. The Crown accepted those pleas in full satisfaction of the indictment.

4 Pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), the applicant asked that four further offences, listed on the document known as a Form 1 (“the (first) Form 1 offences”) of which he admitted his guilt, be taken into account on his sentences. Because further charges were then pending, sentencing in relation to this indictment was deferred.

5 On 26 June 2002 the applicant again appeared in the District Court, charged with a single count of larceny of a motor vehicle. He pleaded guilty to this offence. In relation to this indictment he asked that three further offences, listed on a second Form 1 (“the (second) Form 1 offences”), of which he also admitted his guilt, be taken into account.

6 A sentence hearing in relation to all matters followed and the applicant was sentenced on 28 June 2002.

7 The charges to which the applicant pleaded guilty, the Form 1 offences and the sentences imposed were as follows:

the first indictment:

(i) accessory after the fact to break, enter and steal: imprisonment for three and a half years with a non-parole period of one year and three months;
(ii) receiving (stolen motor vehicle): imprisonment for eighteen months with a non-parole period of twelve months;
Form 1: break, enter and steal;
larceny of a motor vehicle;
possession of housebreaking implements;
break and enter with intent to steal.


The Form 1 offences were, as the Form itself indicates, to be taken into account on the sentence imposed in relation to the accessory count.

the second indictment: Larceny (motor vehicle):
Imprisonment for twelve months with a non-parole period of six months;
Form 1: possession of housebreaking implements;
stealing (registration plates);
stealing (property to the value of fifteen thousand dollars).

8 The maximum sentence applicable to the accessory offence is imprisonment for 5 years; to the offence of receiving a stolen motor vehicle is 10 years; as is the maximum sentence applicable to the offence of stealing a motor vehicle.

9 The sentencing judge specified that the sentences of imprisonment for eighteen months and twelve months, imposed in respect of the two motor vehicle larceny offences, were to commence on 4 February 2002 and be served concurrently with one another; and that the sentence of three and a half years imposed in respect of the accessory count was to be served cumulatively upon the expiration of the non-parole period of twelve months imposed in respect of the motor larceny, and to commence on 4 February 2003. The total effective sentence imposed is of imprisonment for four and a half years with a non-parole period of two years and three months. It is against these sentences that the applicant seeks leave to appeal.

the facts

10 It is now convenient to set out the facts and circumstances of the offences.

11 The first in time was the theft of the motor vehicle, charged on the second indictment. This offence was committed during the early hours of Thursday, 1 March 2001, at Matraville, at the premises of an interstate removalist. Using bolt cutters, the applicant gained entry through external chained and padlocked gates, and, again using the bolt cutters, cut the padlocks on a shipping container. Inside the container was a registered Mitsubishi Pajero. Packed into the Pajero was a variety of household and personal items. The keys were in the ignition. The applicant removed the vehicle from the container. He loaded into the vehicle some tools that were on the floor of the container. He drove the vehicle to his home. Over the next ten days he used it as his own. When it was not in use, he parked it at a nearby shopping centre. From another vehicle he stole a set of registration plates which he attached to the Pajero.

12 The theft of the Pajero was charged in the second indictment. The theft of the items in the Pajero, and the tools from the container, constituted the first offence of larceny on the Form 1; the applicant’s possession of the bolt cutters constituted the first offence (possession of housebreaking implements) on the Form 1; and the theft of the registration plates some time later constitutes the second offence of larceny on the Form 1.

13 Early in the morning of 10 March 2001 the applicant was driving the Pajero in Liverpool when he was directed by police to stop for a random breath test. Instead of stopping, he sped off. Patrolling police pursued him. Eventually he crashed the vehicle into a tree and was arrested. It appears to have been as a result of this arrest that he was charged with the second indictment offence of larceny of a motor vehicle. He was granted conditional bail.

14 The next offences in time were the offences charged in the first indictment (accessory after the fact of break, enter and steal, and receiving a stolen motor vehicle). These took place on 16 April 2001. Three men broke into and entered the business premises of a manufacturer of game fishing accessories. They stole property valued at $76,000. They were observed by a security guard and pursued, but made their escape. Police who patrolled the area observed a deserted Holden Rodeo utility, bearing number plates registered in the applicant’s name. They discovered that the registration details for those registration plates were inconsistent with the appearance of the Rodeo. Because they had observed, in the vehicle, items which potentially linked it with the break and enter, they returned to the vehicle. When they located it, it was being driven by the applicant. It had previously been stolen. The applicant claimed that it had been given to him by somebody he declined to name. He was arrested and questioned. He told police that his own vehicle had been confiscated by Victorian police, and that he had in NSW reported that his number plates had been stolen, as a result of which he was issued with replacement plates. He had attached these to the stolen Rodeo. He said that he had been in the vicinity of the game fishing business, waiting for the perpetrators of the break and enter, because they had provided him with the Rodeo, and told him how to obtain registration plates, and he considered himself indebted to them. He was aware “that they were up to no good”. He claimed that the only reward he was to receive was the use of the Rodeo for a month.

15 As the sentencing judge observed, merely waiting for men known to be “up to no good” does not constitute the offence of accessory. However, as the judge also observed, by his plea of guilty the applicant acknowledged guilt of the essential elements of the offence. There was evidence that the applicant’s clothing was dishevelled and dirty, and, from this, the sentencing judge drew the inference that the applicant had assisted the men in moving some of the stolen property and that he was driving the vehicle for the purpose of collecting stolen goods and/or the principal offenders. No challenge has been made to this factual finding.

16 The applicant was charged and again granted conditional bail.

17 His involvement in driving the vehicle, and providing assistance to the principal offenders, constitutes the offence of accessory after the fact of break, enter and steal, the first offence to which he pleaded guilty. His receipt of the stolen Rodeo constitutes the offence of receiving on that indictment.

18 The next offences were committed between 8 and 10 May 2001. During the evening of 8 May and the morning of 9 May the applicant stole a Toyota Hilux utility from a service station at Sylvania. The following day, 10 May, he broke into an Ampol service station at Narellan and stole motor vehicle accessories, other items, $5,387.90 in cash, and a cheque book. These activities give rise to the first two counts on the first Form 1. Later in the afternoon of 10 May, because of the manner of his driving, the applicant was stopped by police and questioned. He denied involvement in the break, enter and steal from the Ampol service station and provided a false alibi. He was charged and yet again released on bail.

19 The final pair of offences were committed on 4 February 2002. At 3.15 a.m. the applicant broke into a beauty salon in Penshurst. He was observed, police were called, and he was located nearby, in possession of a towbar, pinchbar, balaclava, torch and gloves. The break and enter of the beauty salon constitutes the fourth offence on the first Form 1 and the applicant’s possession of the various housebreaking implements gives rise to the third count on the first Form 1.

20 When arrested on this occasion the applicant admitted that he had broken into the premises with the intention of stealing and said that he was broke and really desperate.

subjective circumstances

21 There was before the sentencing judge a pre-sentence report. This disclosed that the applicant was born on 16 January 1960. He was forty-one years of age at the time of commission of most of the offences. He is the youngest of three sons and was raised in a loving and supporting environment. He has been married for sixteen years and has four children, aged (at sentencing) eleven to sixteen. Since his arrest he has separated from his wife and his marriage has been under great strain. The applicant is reported to be an excellent father and (subject to what later appears) to have provided well for the family. He has always been involved with the children and coached and managed their soccer team and held executive positions in their soccer club.

22 The applicant trained as a plant mechanic and is said to be highly qualified and respected in his industry. However, in 1995, he was dismissed from his employment and commenced his own business. The business failed and the applicant was declared bankrupt.

23 Both the applicant and his father gave evidence on the sentencing proceedings. His father held the definite opinion that it was the financial difficulties that caused him to embark upon his criminal enterprise. Those difficulties were, in turn, according to the applicant’s father, brought about by the poor workmanship of one of the applicant’s employees as a result of which the applicant was forced to pay out about forty thousand dollars.

24 His father also gave evidence that he and his wife were prepared to provide a home for the applicant on his release from prison, and that the applicant intended to obtain employment.

25 The applicant expressed regret for his criminal activity and the sentencing judge accepted this as genuine.

26 His Honour took a relatively sympathetic approach to the circumstances of the commission of the first offence, noting that it was committed at a time when the applicant’s financial problems meant that their family home was threatened (it was, indeed, subsequently sold). However, his Honour was realistic about the subsequent offences. He considered, in effect, that after his first arrest in March 2001, the applicant should have realised the stupidity of his decision to use crime to solve those financial problems. His Honour said:

“In my view after his arrest in March 200l, the Offender made a choice, uninhibited by emotion, to turn to a life of crime, in effect to become a professional thief, for at least as long as was required to get himself re-established in a financial sense. The repetitive nature of subsequent crimes and his return to crime so soon after his arrest in March confirms this view and confirms that it is appropriate to be satisfied of that matter beyond a reasonable doubt.”

27 The chronology which I have recounted amply supports the conclusion to which his Honour came.

28 However, the sentencing judge also took the view that the applicant had, finally, accepted that crime would not solve his problems and that he had, by the time he was sentenced, rejected any notion of being a professional thief.

29 The applicant was by no means a newcomer to the criminal justice system. He had appeared as a juvenile, in the Children’s Court, in relation to offences of dishonesty, but these occurred in 1974 (when he was fourteen years old) and should, in my opinion, be (and were by the sentencing judge) disregarded. In 1982 and 1995 he was again charged with break, enter and steal, but, again, these offences must be seen from the perspective of the penalties imposed. On the first occasion he was fined twenty-five dollars, and on the second sentence was deferred conditional upon the applicant’s entering a recognisance to be of good behaviour for two years. Other matters on his record concern his use of motor vehicles. They include unlicensed driving in 1981, and driving with the prescribed concentration of alcohol in his blood on no less than three occasions, in 1983, 1984 and 1997. In 1984 he was also dealt with in relation to an offence of using registration plates calculated to deceive.

30 The sentencing judge was conscious that, after his arrest on 10 March 2001, each offence committed by the applicant was committed whilst he was at conditional liberty, subject to conditions imposed on a grant of bail. By the time of the February 2002 offences, the applicant was subject to no less than three grants of bail. Plainly, this was a seriously aggravating circumstance, and, bearing in mind his succeeding arrests, becoming more serious.

31 The sentencing judge determined that special circumstances existed justifying departure from the statutory ratio between the head sentence and the non-parole period referred to in s44 of the Sentencing Procedure Act. The reasons for this he cited as the applicant’s age and the fact that these terms of imprisonment will represent the first period of imprisonment he has served.

* * *

32 The task of the sentencing judge was to impose a sentence upon the applicant in respect of each of the three offences on the indictments to which he pleaded guilty, and in doing so, to take into account the seven offences with which the applicant was not charged, but of which he admitted his guilt, contained on the two Forms 1. The approach the judge took to that task was to determine the appropriate sentence for each of the offences of which the applicant was convicted, to nominate a sentence he considered appropriate in relation to each Form 1 offence, and to discount the aggregate of those notional sentences in order to take account of the principle of totality. Thus, in relation to the charge of the theft of the Pajero (the offence charged in the second indictment) he determined that the appropriate sentence was one of full time custody for twelve months; but, taking into account the Form 1 offences, he concluded that that sentence should be extended by a period of three months.

33 He does not, in fact, appear to have done this. Notwithstanding his expressed intent, when he came to sentence on that indictment, he imposed a sentence of twelve months with a non-parole period of six months.

34 He then moved to the offences on the first indictment. On the charge of receiving a stolen motor vehicle (the Rodeo, the second offence to which the applicant pleaded guilty) he concluded that a sentence of eighteen months with a non-parole period of twelve months was appropriate; on the accessory offence he considered an appropriate sentence to be imprisonment for two years. He then turned to consider the Form 1 offences and stated that the offence of break, enter and steal in May 2001 called for an extension of the sentence by fifteen months; the larceny of the motor vehicle called for an extension of the sentence by nine months; the possession of the housebreaking implements required an extension of three months; and the break and enter with intent to steal required an extension of fifteen months. This gave a total of forty-two months attributable to the Form 1 offences. His Honour then applied the principle of totality and, instead of sentencing the applicant on the accessory charge to a term of imprisonment for two years, he sentenced him to a term of imprisonment for three years and six months, thus extending the sentence he initially considered appropriate by eighteen months (but reducing the length of the “extensions” he had indicated earlier).

the application for leave to appeal

35 Two grounds of appeal were advanced on behalf of the applicant. The first concerned the manner in which the sentencing judge approached the task of sentencing, taking into account the Form 1 offences. By the second the applicant asserts that the sentence was manifestly excessive and failed properly to reflect a subjective case presented on behalf of the applicant.

Crimes (Sentencing Procedure) Act 1999 , Part 3 Division 3

36 The procedure by which a sentencing judge may take into account offences admitted by an offender, but not specifically charged (and of which the offender is therefore not convicted) appears now in Part 3, Division 3 of the Sentencing Procedure Act. That division replaces earlier statutory provisions to similar effect (see Criminal Procedure Act 1986 and Crimes Act 1900, s447B). It is unnecessary to have further regard to the predecessors of the Sentencing Procedure Act.

37 The relevant provisions of Part 3 Division 3 are as follows:

“s32(1) In any proceedings for an offence (the "principal offence" ), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. …
S33(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) if the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.”

38 The proper approach to sentencing where additional offences are to be taken into account has been comprehensively stated by this court in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 581, unreported, 20 December 2002 (“the guideline judgment”). Unfortunately, this decision was not available to the sentencing judge, it having been delivered six months after he imposed sentence. That judgment resolved a difference of opinion that had emerged among some judges of this court concerning the proper application of the Part 3 Division 3 procedure. The Chief Justice, with whom Wood CJ at CL, Grove, Sully and James JJ agreed, described the competing approaches to this issue of sentencing practice as a “bottom up” approach, and “a top down” approach, and held that the former rather than the latter is the correct sentencing methodology. His Honour identified the “top down” approach as one which identifies an appropriate penalty for the full gamut of offences and is then discounted by reason of the use of the Part 3 Division 3 procedure.

39 At [39] his Honour wrote:

“The sentencing court is sentencing only for the ‘principal offence’. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a ‘discount’ for the use of the procedure . This is not sentencing for the principal offence.” (emphasis added)

40 It is of significance that the “discount” to which the Chief Justice there referred was a discount for the use of the Part 3 Division 3 procedure. His Honour was not referring to the application of a discount for any other purpose.

41 By the “bottom up” approach, the Chief Justice was referring to a sentencing approach involving the fixing of the term of the sentence for the principal offences, with an increase to accommodate the matters on the Form 1. His Honour also considered (para [44]) that it would rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences.

42 Counsel for the applicant has argued that the sentencing judge applied the “top down” approach. The principal basis of this contention appears to lie in that part of the remarks on sentence in which his Honour, having quantified the extensions of the sentence to be imposed in relation to the accessory charge by reason of the Form 1 offences, then reduced that additional term to a very significant extent – from forty-two months to eighteen months – to comply with totality principles. (The maximum sentence applicable to the accessory charge being imprisonment for five years, had his Honour extended his original sentence by that length he would have been in contravention of s33(3) of the Sentencing Procedure Act.) Apart from that exercise, the exercise undertaken by the sentencing judge was, in my opinion, a classic “bottom up” approach. His Honour identified the appropriate sentence for the principal offence, and then identified the appropriate increment to that sentence by reason of each of the Form 1 offences. He did this in relation to each charge on the indictment, and in relation to each Form 1 offence.

43 The only occasion on which he discounted the sentences was when he reduced the increment – not because the exercise was one pursuant to Part 3, Division 3, but for a completely independent reason, the application of totality principles. In my opinion, it is quite wrong to characterise what his Honour did as applying the “top down” approach. Anticipating the guideline judgment, his Honour applied a classic “bottom up” approach. The error asserted has not been established. Counsel for the applicant argued that the fact that, before the discount attributed to the totality principle, the aggregate of the sentences prescribed would have exceeded the maximum sentence applicable to the accessory charge; and that supports the contention that error infected the process.

44 Although it may be thought that the sentencing judge transgressed in relation to that aspect of the guideline judgment which counsels against the quantification of the increment to the sentence, no point on the application in this respect was taken. In any event (and recognising that this court has not heard argument on this question) this does not appear to me to constitute an error in the sentencing process, at least so long as the sentencing judge keeps steadily in mind that the end result of the process is appropriate sentence for the principal offence, albeit one augmented by reason of the matters in Form 1. There is no suggestion that the sentencing judge did otherwise in this case.

45 I would reject the first ground of the application.

46 By the second ground it was argued on behalf of the applicant that the sentencing judge gave inadequate weight to the applicant’s financial and personal circumstances in respect of the first offence and that he took an unduly harsh approach in that the whole course of conduct and the totality of the criminality ought to have been assessed by reference to, or in the context of, a financial crisis that precipitated the offending. A less severe sentence is therefore, on the applicant’s argument, warranted and ought to have been imposed (see Criminal Appeal Act 1912 s6).

47 The outline of the applicant’s repeated offending above demonstrates that this argument cannot succeed. True it is that the applicant had, for some years, remained free of criminality, and that it was an unusually unfortunate set of personal circumstances that preceded his embarking on his criminal spree. But he committed a number of serious criminal offences, in succession; he was on three occasions granted the privilege of remaining at liberty notwithstanding the charges against him, and he repeatedly breached the conditions on which bail was granted. Counsel argued that the evidence establishes that the applicant has finally been brought to his senses by his final arrest and incarceration, and that his Honour’s assessment of the criminality overlooked the evidence of financial difficulties, and the other favourable subjective features. I do not agree. True it is that the applicant’s criminal conduct ceased after his fourth arrest. He was then refused bail. The relatively short non-parole period is an additional factor to be taken into account on this issue. The applicant has, in my opinion, failed to demonstrate that the sentences, either individually or in total, were manifestly excessive. I would grant leave to appeal but dismiss the appeal.

48 GREG JAMES, J: I agree with the orders proposed by Simpson, J. and with her reasons.

49 I would add to what her Honour said on ground one that I was originally concerned about certain remarks of the sentencing judge concerning how he proposed to take into account the Form 1 offences. At p.16 of his remarks, his Honour said:-

“I must assess the criminality of each matter and determine the appropriate sentence for it. The offences on the Form 1 schedule must be reflected in the sentence imposed. It is not enough to merely pay lip service to those offences. Nonetheless, because of the circumstances of them being taken into account on a schedule an offender is entitled to have an expectation that the extent to which a sentence is extended would be significantly less than had the matter stood alone on indictment.”

50 There is a deal of ambiguity in the use of the expression “matter” in this passage. However, whatever the passage may mean, I accept that what his Honour did was to take the Form 1 offences into account in the way that Simpson, J. has set out, so that the sentencing judge’s approach accorded with the views expressed in Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

51 I note that the appropriateness of applying the totality principle in such an exercise is expressly recognised in the judgment of the Chief Justice, in which the other judges concurred, at paragraph 42.

52 On the second ground of appeal, I would add that the findings of fact and the weight to be accorded to those findings is a matter for the sentencing judge. The court is not empowered under the provisions of the Criminal Appeal Act 1912 and the principles for appellate review to interfere with the primary judge’s determination of these matters unless the well-known grounds for setting aside the exercise of the sentencing discretion are made out.

53 For the reasons her Honour gives, no such grounds are here made out.

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Last Modified: 07/10/2003