Sampson v The Queen
[2010] NSWCCA 119
•4 June 2010
New South Wales
Court of Criminal Appeal
CITATION: Sampson v R [2010] NSWCCA 119 HEARING DATE(S): 21 May 2010
JUDGMENT DATE:
4 June 2010JUDGMENT OF: James J at 1; Simpson J at 2; Barr AJ at 60 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW – particular offences – property offences – break, enter and steal in company – knowingly deal in the proceeds of crime – other offences - CRIMINAL LAW – appeal against severity of sentence – parity with sentence imposed on co-offender – extent of accumulation of sentences – totality – leave to appeal granted, appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986CATEGORY: Principal judgment CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168PARTIES: Shane Sampson (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2008/10982 COUNSEL: P Johnson (Applicant)
F Veltro (Respondent)SOLICITORS: O'Brien Solicitors (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/10982 LOWER COURT JUDICIAL OFFICER: Sides DCJ LOWER COURT DATE OF DECISION: 9 March 2009
2008/10982
4 June 2010JAMES J
SIMPSON J
BARR AJ
1 JAMES J: I agree with Simpson J.
2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Sides in the District Court on 9 March 2009, following his pleas of guilty to five counts of aggravated break, enter and commit a serious indictable offence, and one count of knowingly dealing in the proceeds of crime. In each of the break and enter offences the serious indictable offence was stealing. In four of those offences, the circumstance of aggravation was that it was committed in company; in the fifth, the circumstance of aggravation was that it was committed in premises in which he knew people were present. Pursuant to s 112(2) of the Crimes Act 1900, each of those offences carried a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 5 years is prescribed.
3 The sixth offence, commonly known as money laundering, carries a maximum penalty of imprisonment for 20 years. No standard non-parole period is prescribed.
4 In addition, the applicant asked, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, that four further offences of dealing with property suspected of being the proceeds of crime, one offence of knowingly dealing in the proceeds of crime with intent to conceal, and three further offences of aggravated break, enter and steal, all listed on a Form 1, be taken into account.
5 Also before the Court was a certificate issued pursuant to s 166(1)(b) of the Criminal Procedure Act 1986, identifying five further offences, all of dealing with property suspected of being proceeds of crime. It will be necessary to return to this certificate. Sides DCJ sentenced the applicant individually in respect of each of the six substantive offences. He took the Form 1 offences into account in the sentences he imposed in respect of count 2.
6 On counts 1 and 6 respectively, he imposed sentences of 4½ years and 2½ years, with non-parole periods of 2 years and 1 year and 3 months, each to commence on 22 August 2007.
7 On counts 3, 4 and 5, he imposed sentences of 4½ years with non-parole periods of 2 years; he staggered the commencement dates by accumulating each by 1 year on the sentence previously imposed – that is, the sentence imposed in respect of count 3 commenced on 22 August 2008, one year after those imposed in respect of counts 1 and 6; the sentences in respect of counts 4 and 5 commenced, respectively, on 22 August 2009 and 22 August 2010. On count 2 (bearing in mind that he took into account the eight offences on the Form 1) he imposed a sentence of 7 years with a non-parole period of 3½ years, which, again, he accumulated by one year, specifying a commencement date of 22 August 2011.
8 The total effective sentence was, therefore, of a non-parole period of 7½ years commencing on 22 August 2007 and a balance of term of 3½ years, expiring on 21 August 2018.
9 Thus, the latest of the sentences will expire on 21 August 2018. The earliest date on which the applicant will be eligible for a release on parole is 21 February 2015.
10 His Honour also imposed a wholly subsumed sentence of imprisonment of 12 months, commencing on 22 August 2007 and expiring on 21 August 2008, in respect of one of the offences referred to in the s 166 certificate. He did this after the applicant had admitted his guilt of that offence. The remaining offences listed on that certificate were identical with some of those listed on the Form 1.
11 No complaint is made of the manner in which his Honour dealt with the s 166 certificate.
12 Since it was expressly not contended that any individual sentence was excessive and the grounds of the application are limited to;
- an issue of parity with sentences imposed upon a co-offender; and
- the extent of the accumulation of sentences, and thus totality,
The facts
it is possible to be brief in outlining both the facts of the offences and the applicant’s personal circumstances.
13 Count 1: between 10.30pm on 31 May 2007 and 4.15am the following morning an unstated number of offenders forced open a garage roller door at domestic premises in Prestons, entered the house via an internal connecting door and took possession of keys to a motor vehicle that was parked in the driveway. The owners of the property were asleep inside the house. The offenders drove the utility away. The applicant was one of the offenders.
14 Count 2: at 4.31am on 2 July 2007 the applicant and two others, one of whom was Bobby Delaney, drove to a Domayne store at Campbelltown. The applicant used a wrecking bar to force open the rear access door. All three offenders entered the store and stole cameras, electronic equipment and mobile telephones to the value of $108,000.
15 Count 3: at 3.36am on 7 July 2007 the applicant and two others, one of whom was Bobby Delaney, broke into the business premises of Harvey Norman, Moss Vale, by jemmying open the front glass doors. Inside the store, they jemmied opened a security door leading to a storage section of the warehouse, and used a crowbar to break open a metal cage. From that they took a number of video cameras. They jemmied open another security door leading to the warehouse and used bolt cutters to cut padlocks attached to a steel mesh door. They took electronic equipment to the value of $45,000. They left by the front door.
16 Count 4: at about 7.00am on 30 July 2007 the applicant and one other male returned, in a stolen motor vehicle driven by the applicant, to the Domayne store at Campbelltown (see count 2). The applicant used bolt cutters to gain access to the store. The two men entered the store, gained access to a secure room, and stole cameras to the value of $74,000.
17 Count 5: at about 5.00am on 8 August 2007 the applicant and two others broke into the Domayne store at Auburn through a rear door, and stole cameras, electronic equipment and mobile phones to the value of $59,000.
18 Count 6 (dealing in proceeds of crime intending to conceal): the applicant used part of the proceeds of the theft to purchase a Holden Commodore, which he sought to have registered in his mother’s name.
(Using the numbering from the Form 1)
The Form 1 offences
19 Offence 7: just before midnight on 1 May 2007, the applicant and another male used a crow bar to force open the door of the Domayne store at West Gosford. They stole electronic equipment to an unstated value.
20 Offence 5: at 9.52pm on 19 June 2007, the applicant, in company with two others, returned to the same store. They used a wrecking bar to jemmy open the doors. They attempted to steal cameras and camera equipment, but were unable to take it through their access point.
21 Offence 6: at 7.30am on 1 August 2007 the applicant and one other broke into a Bing Lee store at Blacktown. They stole computer equipment to the value of $5000,
22 Offence 8: on 4 June 2007 the applicant purchased expensive car audio equipment to the value of $2900, using cash the proceeds of the break and enter offences.
23 Offence 3: on 2 July 2007 the applicant was present in a stolen Subaru Hatchback vehicle.
24 Offence 2: on 30 July 2007 the applicant drove a stolen Mitsubishi Pajero to the Domayne store at Campbelltown in order to commit the offence the subject of count 4.
25 No facts were given in relation to the offences numbered 1 and 4.
26 It can be seen that all offences were committed over an intensive period of crime of three months.
The applicant’s personal circumstances
27 Sides DCJ had available to him a Pre-Sentence Report. The applicant gave evidence.
28 The applicant was born in January 1987 and was 20 years of age at the time of the offending. His criminal record (though not inconsequential) was, with two exceptions, confined to motor vehicle and driving offences. (It included offences as serious as driving whilst disqualified, and “drive recklessly/furiously or in a manner dangerous”.) This last was sufficiently serious to result (after appeal) in imprisonment for 3 months. The exceptions mentioned are an offence of larceny, for which the applicant was sentenced to imprisonment for 1 month, and an offence of break, enter and steal, for which he was sentenced to imprisonment for 12 months with a non-parole period of 9 months.
29 The applicant is one of five children of a blended family. As a child he was exposed to domestic violence as a result of his stepfather’s abuse of alcohol and cannabis. That has ceased, and the applicant now has a close relationship with both his stepfather and his mother. He has minimal contact with his biological father, who has himself been incarcerated.
30 He has two children, who, it may be calculated, were born when the applicant was 19 and 20 years of age. The relationship to which they were born has ceased, but the applicant maintains contact with his children.
31 He attended school to the age of 12, leaving prior to the completion of Year 8. He has had minimal employment.
32 He began using illicit drugs as a young teenager, and the use escalated. At one point, on his evidence, his drug use was costing $2000 per week. He claimed, to the author of the Pre-Sentence Report, and in his evidence, that he is motivated to give up drug use, and has, in fact, detoxified (without assistance) whilst in custody.
33 He receives continued support from his family, many of whom were in court for the sentencing proceedings.
The remarks on sentence
34 Sides DCJ recounted the facts of each offence, and the applicant’s personal circumstances.
35 For the purposes of Pt 3 Div 1A of the Sentencing Procedure Act, he assessed each of the s 112(2) (break and enter) offences as being in the mid-range of objective gravity, but recognised, the applicant having pleaded guilty to each, that the standard non-parole period fixed by s 54B, and the Table to the Division, did not, strictly, apply. He also recognised, in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168, that the standard non-parole period remained relevant as a “benchmark” or guidepost.
36 His Honour assessed count 6, the money laundering charge, as below mid-range in objective gravity. Since no standard non-parole period applies to such an offence, the finding was not strictly necessary; but such an approach is, nevertheless, a useful check on the sentencing process.
37 Having regard to his “past performance and drug addiction”, his Honour expressed doubts about the applicant’s prospects of rehabilitation. He followed this, however, by noting that, in his present incarceration, unlike the past, the applicant had remained drug free and that he had been motivated by a number of tragedies in his life “to turn his life around”. (This appears to be a reference to the death of the applicant’s “pop”, presumably his grandfather, while the applicant was in custody. He was not able to attend the funeral.)
38 In accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, his Honour allowed a reduction in each sentence of 25 percent.
The grounds of appeal
39 Three grounds of appeal were pleaded, as follows:
“(1) The disparity in sentences imposed on a co-offender, Bobby Delaney, and upon the applicant for the same offence of Aggravated break, enter and steal on 2 July 2007, and the way in which the sentence judge structured the sentence he imposed on Delaney, gives rise to a justifiable sense of grievance on the part of the applicant.
(3) A lesser sentence is warranted in law.”(2) The extent to which the sentences were accumulated was excessive, so that the overall sentence imposed was manifestly excessive.
Ground 1: parity
40 On 19 December 2008, prior to sentencing the applicant, Sides DCJ sentenced Delaney with respect to the two offences in which he was involved. These were counts 2 and 3. On the first of those (aggravated break, enter and steal, at Harvey Norman, Moss Vale, on 7 July 2007), he imposed a sentence of imprisonment for 4 years and 6 months made up of a non-parole period of 2 years with a balance of term of 2 years and 6 months, to commence on 8 January 2008. For the second, aggravated break, enter and steal (Domayne store, Campbelltown, on 2 July 2007), and taking into account the Form 1 offence, he imposed a term of imprisonment of 5 years made up of a non-parole period of 1 year and balance of term of 4 years, commencing on 8 January 2009, and therefore accumulated by one year. It is this sentence which is the subject of the parity argument advanced on behalf of the applicant.
41 The total term of imprisonment for Delaney was imprisonment for 6 years with a non-parole period of 2 years. Thus, the sentences imposed upon the offenders with respect of the Moss Vale offence were identical – 4½ years with a non-parole period of 2 years. The disparity arises when consideration is given to the sentence imposed in respect of the Campbelltown offence: the sentence imposed upon the applicant was of 7 years with a non-parole period of 3½ years; that imposed upon Delaney was of 5 years with a non-parole period of 1 year.
42 Sides DCJ was conscious of the issue of parity. He recorded the sentences imposed upon Delaney with respect to the common offences, and noted “relevant similarities” between the two offenders. These were:
“● their criminal histories;
● their dysfunctional early life;
● they both left high school early, around Year 8
● they both had a drug addiction problem;
● their prospects of rehabilitation are about the same;
● in relation to the offence that is the subject of count 3 for [the applicant] the co-offender Delaney received a discount of twenty-five percent for the utility of this guilty plea.”● the criminality in relation to the two offences they have in common is about the same;
43 The relevant differences between them are:
“● the co-offender Delaney is about eighteen months younger than [the applicant];
● Delaney had breached conditional liberty in committing these offences;
● the co-offender Delaney only had one matter on a Form 1 schedule involving the car used to drive to … Domayne shop in Campbelltown. [The applicant] has a total of seven other matters not related to that car and three of those involve offences contrary to sub-s 112(2).”● in relation to the offence that is the same as count two for [the applicant], the co-offender Delaney received a discount of twenty percent for the utility of his plea of guilty [as against the 25 percent the applicant was allowed]; and
44 It was not strictly correct to say that the age difference between the two was of 18 months. Although, in accordance with current practice designed to inhibit identity fraud, the sentencing judge did not specify the date of birth of either offender, he did note that Delaney was 19 years of age at the time of the offences and that the applicant was 20. This Court was told, in written submissions, (and not contested by the Crown) that the age difference is in fact 12 months. This is borne out by the date of birth given on Delaney’s criminal record.
45 That does have some significance in the question of parity.
46 In sentencing Delaney, Sides DCJ said;
- “The Offender was relatively young when he committed these offences. Hence, consistent with authority, the court gave greater weight to rehabilitation and less weight to deterrence. That does not mean that it gave no weight to either personal or general deterrence.”
47 In sentencing the applicant, his Honour said:
- “The Court took into account his age and accordingly gave lesser weight to rehabilitation than to deterrence.”
48 This gave rise to a submission that, although the age difference between the two is slight, the applicant was treated unfairly in this respect.
49 However, I am satisfied that what is recorded is either a typographical error, or, more likely, a slip of the tongue on the part of a judge giving reasons orally. What follows persuades me that his Honour intended, in sentencing the applicant, as he did in sentencing Delaney, to give less weight to deterrence than to rehabilitation. This follows from the reference to his age, and to the following sentence, which is:
- “That does not mean that no weight was given to deterrence, it simply means that less weight was given than might have been the case had he been an older individual.”
I am satisfied that this point should not be accepted.
50 There are other issues concerning parity. Delaney’s offences were committed whilst he was on conditional liberty. He pleaded guilty to the second count at a later stage, and accordingly was given a reduction of 20 percent (as contrasted with 25 percent for the applicant).
51 Against that, it was this offence in relation to which the Form 1 offences were taken account, and, where Delaney had only one such offence, the applicant had eight.
52 I have given careful thought to the arguments advanced on behalf of the applicant. There is, indeed, a significant discrepancy between the two sentences imposed in respect of this offence – imprisonment for 7 years with a non-parole period of 3½ years in the case of the applicant, and imprisonment for 5 years with a non-parole period of 1 year, in the case of Delaney.
53 Of some significance, to my mind, is the circumstance that, in respect of the other offence common to the two (count 3, in the applicant’s case), the two offenders were sentenced identically. That establishes to my satisfaction that, in selecting the sentence he did for count 2, Sides DCJ had very much in mind the nature and severity of the Form 1 offences. In Delaney’s case this was a single offence of larceny of a motor vehicle, committed on the same day as the substantive offence; in the applicant’s case, it involved no less than eight other offences, three of which were serious offences of aggravated break, enter and steal. It is true that Delaney’s offence was committed whilst he was on conditional liberty, and that provides some balance against the severity of the total number of offences for which the applicant was to be sentenced in respect of this count, but it is far from a complete counter weight.
54 I have concluded that the sentence selected by Sides DCJ was appropriate and, having regard to all of the relevant circumstances, well within the range available.
Grounds 2 and 3: totality
55 Complaint is not made that sentences were accumulated; the complaint is that the accumulation was excessive, giving rise to an excessive total sentence.
56 I accept that, for a 20 year old offender (22 at sentencing), a sentence of 11 years with a non-parole period of 7½ years is lengthy. I bear in mind what I have said earlier about the nature of the applicant’s prior record.
57 But it is necessary also to bear in mind the nature and extent of his period of criminality. These were very significant break and enters, some of them yielding property to very significant value.
58 While it may have been open to the sentencing judge to have accumulated to a lesser extent than he did, it is not possible to say that the course he took was not one within his sentencing discretion.
59 Accordingly, I would grant leave to appeal but dismiss the appeal.
: I agree with Simpson J.
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