Rumble, Matthew William v The Queen

[1996] FCA 493

CATCHWORDS

APPEAL - appeal against severity of cumulative effect of sentences imposed.

SENTENCE - guilty pleas recorded to numerous theft related offences - whether nine year six month head sentence manifestly excessive - appropriate to view 'totality of sentence', not simply individual sentence for each offence - severity of sentence for each offence - severity of sentence would operate as a bar to rehabilitation - head sentence manifestly excessive.

Crimes Act 1900 (ACT), ss429, 443

Thomas:  "Principles of Sentencing"

R v Rodgers, unreported, Supreme Court, Australian Capital Territory, Miles CJ, 11 May 1993
R v Turner, unreported, Supreme Court, Australian Capital Territory, Miles CJ, 5 February 1993
R v Gallagher, unreported, Supreme Court, Australian Capital Territory, Miles CJ, 13 December 1994
R v Williscroft & Ors [1975] VR 292
R v Smith & Anor (1983) 32 SASR 219
Murrell v R (1985) 58 ALR 203
McDonald v R (1994) 120 ALR 629
Antonovic v R, unreported, Full Federal Court, von Doussa, Higgins and Nicholson JJ, 20 June 1995

On appeal from a Judge of the Supreme Court of the Australian Capital Territory

MATTHEW WILLIAM RUMBLE v THE QUEEN

No. ACT G2 of 1996

DAVIES, HIGGINS and FINN JJ
CANBERRA
21 JUNE 1996

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )    No. ACT G2 of 1996
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:     MATTHEW WILLIAM RUMBLE

Appellant

AND:         THE QUEEN

Respondent

CORAM:       DAVIES, HIGGINS and FINN JJ
PLACE:       CANBERRA
DATE:        21 JUNE 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The head sentence imposed at first instance be reduced from nine years six months to six years six months.

3. The non-parole period of four years to remain unchanged.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA      ) 
  )  
AUSTRALIAN CAPITAL TERRITORY                )
  )
DISTRICT REGISTRY  )  No ACT G 2 of 1996
  )  
GENERAL DIVISION  )     

On appeal from a single judge of the Supreme Court
  of the Australian Capital Territory

BETWEEN:               MATTHEW WILLIAM RUMBLE

Applicant

AND:  THE QUEEN

Respondent

Coram:           Davies, Higgins and Finn JJ.
Date:              21 June 1996               
Place:              Sydney

REASONS FOR JUDGMENT

Davies J:  This is an appeal against the alleged severity of a sentence imposed upon the appellant, Matthew William Rumble, by a judge of the Supreme Court of the Australian Capital Territory

The accused is a young man born 3 May 1975 who has a history of offences including stealing, armed robbery and damage to property.  It appears that his
offences largely relate to his abuse of alcohol and drugs.

On 6 November 1995, the appellant pleaded guilty to seven charges of burglary, seven charges of theft, one charge of riding in a vehicle without authority, two charges of attempting to take a vehicle and one charge of attempted theft.

I need not detail the circumstances of each of these offences.  Many of the offences involved the breaking into and stealing from residential homes.  These are serious offences.  It is to be remembered that not only is loss of property involved, but the invasion of the home tends to destroy the inhabitant's confidence in its privacy and security.  In the burglary at the newsagent, property to the value of $24,302 was taken.  Such a loss can have a significant effect upon a small business.

The accused presented as an intractable case.  He had previously been sentenced to two months in Quamby Youth Centre.  He was later directed to proceed to the Arcadia House Detoxification Centre and to remain there until a certain appearance in court, but left there after only two hours.  He had been sentenced to imprisonment in the New South Wales prison system.  He was there given the opportunity of going to a prison farm but was out of the mainstream prison system for only two weeks, having been sent back for the use of cannabis.  A report on the appellant which was in evidence before the sentencing Judge said, inter alia:-

"Mr Rumble presented with no motivation to change his situation and presents with a total disregard for the law.  He appears to have little recognition as to the seriousness of his current predicament."

The sentencing Judge noted that, notwithstanding that the appellant had committed many of the offences in company with others, he was not prepared to implicate them.  His Honour found that the appellant was a hardened member of the drug scene.  His Honour said that about the only factors which should be taken into account in mitigation were his relative years and his pleas of guilty at an early stage.  His Honour noted that the appellant had not, in the past, been deterred from criminal activity, notwithstanding leniency extended to him by the courts, and his Honour concluded that there were poor prospects of rehabilitation.

The sentencing Judge imposed sentences in which the cumulative period amounted to 9 years and 6 months.  His Honour fixed a non-parole period of 4 years. 
           In Antonovic v R (unreported, von Doussa, Higgins & Nicholson JJ, 20 June 1995), in which the accused's history and the nature of the crimes was similar to the present, the Court considered that a head sentence of six years and a non-parole period of three years was appropriate.  I take this sentence as a guide to an appropriate sentence in the present case.

I am persuaded that the total of the head sentence, 9 years and 6 months, was manifestly excessive and out of proportion to the non-parole period.  The appellant's crimes were not so serious as to justify his imprisonment for that time, as may very well occur having regard to the appellant's intransigence.  The period of the head sentence imposed in Antonovic more closely reflects the severity of the crimes.  Being of the view that the head sentence was excessive, I would reduce it to a total of 6
years and 6 months by varying his Honour's sentence so that the sentences for the offences which occurred at 28 Scattergood Place, Spence, 10 Champion Place, Fraser, 14 Champion Place, Fraser, and 166 Dryandra Street, O'Connor, be served concurrently with each other.

The 4 year non-parole period fixed by the sentencing Judge was a period which it was within the discretion of the trial Judge to fix.  Having regard to the seriousness of the crimes and to the factors which the sentencing Judge took into account, a 4 year non-parole period was not excessive.

A head sentence of 6 years and 6 months with a non-parole period of 4 years is, in my opinion, an appropriate sentence in the circumstances of the case.

I would allow the appeal accordingly.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  21 June 1996

IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY     )
DISTRICT REGISTRY                )    No. ACT G2 of 1996
GENERAL DIVISION                 )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:     MATTHEW WILLIAM RUMBLE

Appellant

AND:         THE QUEEN

Respondent

CORAM:       DAVIES, HIGGINS and FINN JJ
PLACE:       CANBERRA
DATE:        21 JUNE 1996

REASONS FOR JUDGMENT

HIGGINS J:

The appellant, on 7 December 1995, adhered to pleas of guilty in respect of seven charges of burglary and one of theft, one of taking and using a motor vehicle without authority, two of attempting to take and use a motor vehicle without authority and one of attempted theft.

He was apprehended by police on 26 November 1994 following the attempts to take the two motor vehicles referred to above and to steal from the second of them.

Charges were laid on 12 December 1994 but no bail was required.

On 23 December 1995, he committed, in company, a burglary and theft.   

Charges were laid in respect of those matters on 31 March 1995.  The appellant was not then present.  He was arrested on warrant on 2 August 1995 and released on bail.

He had also, between 29 December 1994 and 28 July 1995, committed the remainder of the offences in question.  He was charged with them on 29 August 1995 and was thereafter remanded in custody.

Gallop J rightly regarded the offences as being of considerable gravity.  The last burglary and theft had involved the removal from a newsagency of a safe and other property to the total value of approximately $24,000.00.  The offences in toto had involved the theft of approximately $45,000.00.

The subjective features of the prisoner as found by his Honour were expressed as follows,

He is 20 years of age;  having been born on 3 May 1975.  He has a number of prior convictions for burglary, theft, and other property offences which are set out in his record of convictions ... He first got into trouble in 1989 when he was only 14 years of age.  He is well-known to ACT corrective services because he has been under supervision and in institutions since he was 14 years of age.  He has also served one gaol sentence in New South Wales.  For these offences he is resigned to go back to gaol.

He committed the offences in company with others but was not prepared to implicate them - either when interrogated by the police or in his evidence to this court.  He said, in his evidence, that he has been on drugs since he was 16 years of age and that all these offences were drug-related.  I accept that.  The accused is obviously a hardened member of the drug scene;  he obviously knew how to exchange the stolen property for drugs;  and it was his addiction which motivated him to commit burglaries and thefts over and over again.  About the only factors which should be taken into account in mitigation are his relative youth and his pleas of guilty at an early stage.

It may be added that, his Honour did give consideration to the appellant's prospects for rehabilitation.  He concluded, however, that they were "very poor".
That was an assessment of the situation as it then was.  It is clear from the non-parole period that his Honour set, that he did not assume that the appellant would never be prepared to cooperate with attempts to assist him to be rehabilitated.

For the offences committed before 12 December 1994, including theft, his Honour imposed a sentence of imprisonment for 12 months.

For the first burglary, a further 12 months was imposed, cumulative on the first group of three offences.  The theft charge was subsumed within the burglary.

For the second burglary and theft, a further 12 months, cumulative was imposed.

For the third burglary and theft, a further 12 months, cumulative.

For the fourth burglary and theft, a further 12 months cumulative.

For the fifth burglary and theft, a further 12 months imprisonment, cumulative.

For the sixth burglary and theft, a further 12 months imprisonment, cumulative.

On the charge of taking and using a motor vehicle, being the vehicle used in connection with the burglary and theft of the safe, his Honour sentenced the appellant to a further six months in respect of the illegal use of the vehicle, cumulative and a further two years for the burglary and theft.

The total head sentence so accumulated was nine years six months.  His Honour set a non-parole period of four years.

On this appeal, it was conceded that none of the individual sentences could have been regarded as excessive.

So far as the first three matters were concerned, that concession would, I think, be warranted by the consideration that they were concurrent.  The first of them, by itself, would, in my view, not have warranted as much as 12 months imprisonment.

The severity of an aggregate head sentence cannot be viewed in isolation from the length of the non-parole period. 

There is power to accumulate sentences in whole or in part, see s443 Crimes Act 1900 (ACT) (Crimes Act).

The appellant complains of the severity of the cumulative effect of these sentences.

Mr O'Donnell, for the appellant, sought to point to some demonstrable error, asserting that the 1993 amendments to s429
of the Crimes Act 1900 (ACT) were intended to effect a shift in sentencing objectives.

In my view, that contention is incorrect. The objectives of sentencing set out in s429, in my view, do no more than reflect previous sentencing principles as they had by then developed.

Some minor changes have been made in s429B in respect of matters not to be taken into account. Whether those matters effect any substantive change is a matter of some controversy, particularly in relation to (e), that is, "the prevalence of the offence". However, the matters to be regarded as relevant pursuant to s429A, in my view, do no more than reflect previous sentencing practices.

His Honour did not, I think, fail to have regard to any relevant matter nor did he consider matters deemed irrelevant by virtue of s429B.

The conclusion as to the appellant's prospects for rehabilitation was not only indicative of compliance with s429(2)(a), it was a conclusion rendered almost inevitable by the evidence before his Honour. In any event, such a conclusion must have been based, to some extent, on his Honour's impression of the appellant as a witness.

No specific error can, therefore, be found.

However, the contention remains that by virtue of the accumulation of eight offences or groups of offences, the result is unusually severe and so far above usual sentencing patterns as to be appealable.

It may be noted that whilst the appellant caused serious social harm by his criminal conduct, no personal injury or threat of injury was inflicted on any person.

There is no recent sentence for similar offences in the Australian Capital Territory which has attracted a head sentence of 9.5 years for similar offences, even for a recidivist offender.  Although the multiplicity of offences was less in the matters of R v Rodgers, unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 11 May 1993, which involved armed robbery and R v Turner, unreported, Supreme Court of the Australian Capital Territory, Miles CJ, 5 February 1993, which also involved armed robbery, the head sentence in each case was only six years.  The non-parole periods were four years six months and three years six months respectively.

A similar offender, Gallagher, unreported, Supreme Court, Australian Capital Territory, 13 December 1994, was sentenced to six years with a non-parole period of three years by his Honour, the sentencing judge.  Although only one burglary was involved in that case, there had been an assault occasioning actual bodily harm associated with the offence.

In R v Williscroft & Ors [1975] VR 292, the Full Court of the Supreme Court of Victoria imposed, on appeal, a total of eight years imprisonment for multiple offences including an armed robbery and attempted armed robbery. The first offence referred to attracted seven years. The remainder were partially accumulated to achieve the aggregate result.

Adam and Crockett JJ, referring to the three separate groups of offences, stated at 303,

We consider that the three different invasions of property should be regarded as separate crimes notwithstanding the closeness in time of their perpetration and the common or near-common membership of the team involved in each of such crimes and the similarity in each case of their modi operandi.

It may be noted that there was no attempt in that case to fully accumulate the sentences or to impose sentences which were artificially low so as to arrive at a proper overall sentence by fully accumulating them.  Remissions were, of course, then available so as to mitigate the apparent severity of the sentence.

The Full Supreme Court of South Australia considered the accumulation of sentences in R v Smith & Anor (1983) 32 SASR 219. The offenders had committed two armed robberies. The sentences imposed by the sentencing judge were six years for each offender on the first, and eight and nine years respectively for the second offence. The sentences were, however, fully accumulated.

The sentences individually were considered appropriate.  However, Mitchell J noted, at 220, that where multiple sentences are imposed,

... it is necessary to have regard not only to the appropriateness of each sentence to the crime in respect of which it is imposed but to the totality of the sentences.

In her Honour's opinion, the total was "too much".

Jacobs J agreed pointing out, at 221,

This principle of sentencing, sometimes referred to as "the totality principle", has perhaps assumed greater importance since the courts have been empowered to impose more than one cumulative sentence.

His Honour cited Thomas:  "Principles of Sentencing" with approval when the author said,

Where the totality of the sentences does appear to be excessive and some adjustment is necessary, it is usually preferable to make the adjustment by ordering sentences to run concurrently rather than by reducing the length of individual sentences and allowing them to remain consecutive.

Where it is desired to recognise a further offence in a short series of offences, a partially concurrent sentence would give effect to that objective as well as to recognise overall criminality.

It is apparent that whilst the power to accumulate several sentences is not to be artificially limited, it is an extraordinary power and should be used sparingly.

In Murrell v R (1985) 58 ALR 203, Fox J, referring to sentences imposed on three counts of sacrilege, with eight other matters taken into account, noted that it was open to make all three sentences cumulative. However, his Honour held that the total so arrived at resulted in a total sentence that was excessive. His Honour thus reduced the head sentence by accumulating only two of them. Bowen CJ concurred, although Blackburn J dissented.

McDonald v R (1994) 120 ALR 629 is a recent example. The appellant had stolen money from clients of his accountancy practice over a number of years. There were eight counts presented and two scheduled. A total of $0.951m had been stolen. The appellant was otherwise of previous good character.

The learned sentencing judge had imposed a sentence of 12 months imprisonment for each offence, each cumulative on the preceding sentence.

On appeal, Spender J, while acknowledging the matters represented by the ten matters were each separate crimes, commented, at 630, on this sentencing pattern as follows,

... the sentencing judge, in imposing concurrent sentences of 12 months in respect of each of the eight counts, sought by that method to arrive at a bottom line figure which represented a proper period of incarceration for the criminality revealed by the offences.  However, in my respectful opinion, it was wrong to impose equal terms of imprisonment, having regard to the disparate circumstances and seriousness of the individual offences.

In substitution, sentences considered commensurate with the crimes individually were imposed, with partial accumulation of some to take account of the total criminality.

In the present case, it is apparent that the variation in the length of individual sentences between six months and two years, was intended to reflect the relative seriousness of the
individual offences.  It is not clear whether they were intended to be an appropriate sentence for each offence or group of offences if it or they had stood alone.  However, it is more likely, in my view, that his Honour intended to follow the approach supported by Spender J in McDonald (supra).

Antonovic v R, unreported, Full Federal Court, von Doussa, Higgins and Nicholson JJ, 20 June 1995, has some relevance to the present case.  Antonovic had pleaded guilty to seven offences including burglaries and theft.  Thirty-six other offences were taken into account.  The aggregate term imposed was nine years with a six year non-parole period being set.  The appellant's record and rehabilitative prospects were assessed to be as dismal as those of the present appellant.

On appeal, this Court found, at 13, that,

Although the individual sentences are not disproportional to the separate crimes for which they were imposed the accumulation of four sentences ... has produced an aggregate head sentence that is manifestly excessive.

Accordingly, the appeal was upheld and the aggregate sentence reduced by either fully or partially making some of the sentences concurrent with others.  In the result, the head sentence was reduced to six years.  A non-parole period of three years was set.

In fixing the total non-parole period, the court took account, at 14, as the sentencing judge had done, that,

The non-parole period fixed for a man of the appellant's age sentenced to his first long period of imprisonment should be framed to encourage that possibility [that is, of rehabilitation].  To
provide for an adequate period of residential rehabilitation and supervision thereafter under parole conditions, we consider the sentence should permit a period of up to three years on parole ...

The grant of a parole order is, of course, a matter for the Parole Board, not the sentencing court.

Applying those considerations to the present case, I consider that the accumulation of eight sentences has resulted in an aggregate head sentence that is manifestly excessive.

I would set aside the present sentences with a view to setting an aggregate head sentence, as from 29 August 1995, of six years.  I would then fix a non-parole period of three years.  That non-parole period allows for parole, if the appellant qualifies for it, so as to provide the opportunity for a similar rehabilitative regime as was envisaged in Antonovic.

I would confirm the individual sentences.  The first two were ordered to be concurrent and I would confirm that.

It was appropriate for his Honour to take account of the thefts associated with burglaries by recording convictions but imposing no additional penalty and I would confirm that approach to the sentences imposed.

I would order that the sentence for the burglary of 23 December 1994 be cumulative upon the first sentences.

I would order that the sentences for the burglaries committed on 29 December 1994 be concurrent with each other but cumulative upon the previous sentences.

The sentences for the three burglaries committed between 2 January 1995 and 3 February 1995 should be concurrent with each other but cumulative on the previous sentences.

The sentences for riding in a stolen motor vehicle and the burglary on 28 July 1995 at Evatt Newsagency should be concurrent with each other but cumulative on the previous sentences.

A period of three years from 29 August 1995 should be fixed as the non-parole period.

I certify that this and the eleven (11) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Justice Higgins.

Associate:

Date:     21 June 1996

On appeal from a Judge of the Supreme Court of the Australian Capital Territory

MATTHEW WILLIAM RUMBLE v THE QUEEN

No. ACT G2 of 1996

Counsel for Appellant:      Mr T O'Donnell

Instructing solicitors:     Legal Aid Office (ACT)

Counsel for the Respondent:  Mr T Buddin

Instructing solicitors:     ACT Director of Public Prosecutions

Date of hearing:            11 April 1996

Date of judgment:           21 June 1996

IN THE FEDERAL COURT OF AUSTRALIA      )
  )
AUSTRALIAN CAPITAL TERRITORY                )
  )          No. ACT G2 of 1996   DISTRICT REGISTRY  )
  )
GENERAL DIVISION  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT
  OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:    MATTHEW WILLIAM RUMBLE
  Appellant

AND:         THE QUEEN
   Respondent

CORAM:  DAVIES, HIGGINS and FINN JJ

PLACE:CANBERRA

DATE:   21 JUNE 1996

REASONS FOR JUDGMENT

FINN J:
           I agree with the reasons of Davies J and with the sentence and non-parole period proposed.

I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Finn.

Associate

Dated:  21 JUNE 1996