See v The Queen

[2017] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	See v R [2017] NSWCCA 165
Hearing dates:	23 June 2017
Date of orders:	14 July 2017
Decision date:	14 July 2017
Before:	Hoeben CJ at CL [1] R A Hulme J [2] Wilson J [3]
Decision:	(1)   Leave to appeal granted (2)   Appeal dismissed
Catchwords:	CRIMINAL LAW – appeal against sentence – question of totality of sentence with interstate sentence – offender with mental illness – question of whether sentencing judge gave adequate consideration to mental illness – whether proper regard to remorse – whether prospects of rehabilitation properly assessed – no point of principal
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194 King v R [2015] NSWCCA 99 Mill v The Queen (1988) 166 CLR 59 R v Baker [2000] NSWCCA 85 R v Ponfield (1999) 48 NSWLR 327 R v Todd [1982] 2 NSWLR 517
Category:	Principal judgment
Parties:	Phillip Ryan See (Applicant) Regina (Respondent Crown)
Representation:	Counsel: G Smith SC (Applicant) S Hughes (Respondent Crown)   Solicitors: Matouk Joyner Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent Crown)
File Number(s):	2011/316447; 2012/190669; 2013/365174; 2015/60980
Publication restriction:	None
Decision under appeal	Court or tribunal: Sydney District Court Jurisdiction: Common Law Date of Decision: 3 June 2016 Before: Arnott DCJ File Number(s): 2011/316447 2012/190669 2013/365174 2015/60980

Judgment

1. HOEBEN CJ AT CL: I agree with Wilson J.

2. R A HULME J: I agree with Wilson J.

3. WILSON J: This is an application brought by Phillip See pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against sentence imposed upon him on 3 June 2016 in the District Court. The applicant was sentenced for 13 dishonesty and firearms offences, with a further 23 offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) against one of the nine counts of break, enter and steal dealt with by the court.

4. The Form 1 offences were ten counts of use false document to obtain financial advantage, five counts of publishing false and misleading material to obtain advantage, goods in custody, being a convicted offender in possession of safe breaking implements, two counts of possessing identification information to facilitate the commission of an indictable offence, knowingly dealing with property suspected of being the proceeds of crime, and three counts of possessing an unauthorised firearm.

5. After allowing a 25 per cent discount in recognition of pleas of guilty entered in the Local Court an aggregate sentence of 12 years and 6 months was imposed, which commenced on 18 January 2013, and expires on 17 July 2025. A non-parole period ("NPP") of 7 years and 6 months was fixed. The NPP expires on 17 July 2020.

6. Given the multiplicity of offences dealt with by the sentencing judge, it is easiest to set them out in a table.

Offence	Maximum Penalty	Indicative Sentence
Offences 1 – 9 Break, enter and steal s 112(2)(a) Crimes Act 1900 (NSW)	14 years imprisonment	Offence 1 – 27 months Offence 2 – 3 years, 4 months Offence 3 – 27 months Offence 4 – 5 years (Form 1 taken into account) Offence 5 – 3 years, 4 months Offence 6 – 3 years Offence 7 – 4 years, 6 months Offence 8 – 3 years, 9 months Offence 9 – 3 years
Offence 10 Possess safe breaking implements s 115 Crimes Act 1900 (NSW)	10 years imprisonment	3 years
Offence 11 Possess unauthorised firearm (shortened Uberti rifle) s 7(1) Firearms Act 1996 (NSW)	14 years imprisonment SNPP 3 years	2 years, 3 months NPP 18 months
Offence 12 Possess unauthorised pistol (ROHM Pistol) s 7(1) Firearms Act 1996 (NSW)	14 years imprisonment SNPP 3 years	2 years, 3 months NPP 18 months
Offence 13 Knowingly deal with the proceeds of crime s 193B(2) Crimes Act 1900 (NSW)	15 years imprisonment	5 years

The Crown Case on Sentence

7. In the proceedings on sentence the Crown tendered a statement of facts which set out the detail of the offences. The facts were not disputed by the applicant and the sentencing judge found the facts in accordance with the Crown’s statement of them.

8. The Crown case was that the applicant and his father, Christopher See, were involved in an organised criminal enterprise of burglary and theft. Between 27 April 2010 and 28 December 2011, the applicant broke into nine residential and commercial premises in Sydney and stole property to the value of almost $590,000. The stolen property was stored in various hired storage units. The pair also dealt with a considerable quantity of stolen goods, valued at in excess of five million dollars. The operation was professionally organised and executed, and targeted properties where valuable goods were believed to be present.

9. During the course of the police investigation into these crimes telephone intercepts were deployed, and police discovered that the applicant and his father were also committing burglary and theft offences in Ivanhoe in Victoria. That information was passed on to the Victorian Police, and a warrant for the applicant's arrest was subsequently issued in Victoria. The applicant was arrested on the Victorian warrant in New South Wales on 19 December 2011 and extradited to Victoria. During the Victorian investigation it was discovered that the applicant and his father had been responsible for breaking into a Kennards storage facility in Ivanhoe where they stole $900,000 worth of cash, gold and jewellery.

10. On the day of his arrest, a search warrant was executed on the applicant’s grandmother’s house in Bellevue Hill where police found a number of items of jewellery that the applicant had stolen from a jewellery store in Crows Nest in April 2011.

11. On the same day police found a security swipe card in the applicant’s wallet which belonged to a storage unit in Crystal Street, Waterloo. The unit was rented to the applicant on 3 October 2011, under a false name. The Waterloo storage unit was searched on 28 December 2011. Police found $2,170,400.00 in Australian currency and $212,000 in foreign currency; 145kg of silver bars; approximately 100 ounces of gold; a number of firearms; 8,500 pieces of jewellery; and other items the proceeds of crime valued at approximately $5.5 million dollars. There were also 400 items located that were stolen from the Ivanhoe storage unit in Victoria.

12. Upon his extradition to Victoria the applicant pleaded guilty to the Ivanhoe offences and was sentenced to four years imprisonment with a non-parole period of two years. On his release to parole on 18 December 2014 the applicant was extradited to New South Wales to be dealt with for the Sydney offences. He has been in custody in relation to the present offences since 19 December 2014.

13. The facts of the individual offences are as follows:

Offence 1: break, enter and steal – Gould Street, St Ives:

14. On 27 February 2010 the applicant broke into a residential home by smashing a glass panel in the front door and unlocking it. The applicant stole $9,900 worth of items including $6,500 in Australian currency, $500 in Hong Kong currency, and a number of pieces of jewellery. The applicant located and gained access to a safe by using an angle grinder and drill.

Offence 2: break, enter and steal – Braeside Road, Wahroonga

15. In July 2010 the applicant broke into a residential home by removing a fly screen and unlocking a window. He stole $56,000 worth of items including rare coins and 11 pieces of gold, diamond or sapphire jewellery. Most of the items were located in a safe which the applicant gained access to by using an angle grinder. The applicant spread bleach to destroy forensic evidence and threw pieces of the safe and less valuable items taken from the safe into a pool on the property.

Offence 3: break, enter and steal – Wirra Close, St Ives

16. In April 2011 the applicant broke into a residential home by forcing a lock on a door. He stole $3,000 worth of goods including cash, items of jewellery, and antiques. Some of these items had been stored within two safes contained within the home. The applicant was able to prise open a smaller safe and used an angle grinder to access a larger one. The applicant again sprayed bleach about the premises to contaminate forensic evidence and he threw pieces of the safe and smaller jewellery items into the pool.

Offence 4: break, enter and steal – Torokina Road, St Ives.

17. A few days later the applicant entered another residential home in St Ives by forcing open a locked window. He stole $100,000 worth of goods including a large sum of cash, a quantity of jewellery, a quantity of electrical items, and a number of paintings. The applicant gained access to a safe with an angle grinder. He sterilised the home and safe with cleaning products to destroy incriminating evidence. This is the offence against which the 23 offences on the Form 1 document were taken into account.

Offence 5: break, enter and steal – Dalton Road, St Ives

18. Later in April 2011, the applicant forced entry through a side door into a residential home, stealing $57,600 worth of goods made up mostly of jewellery and electrical items. The applicant located and gained access to a safe by cutting it open with an angle grinder. The applicant used liquid laundry detergent to contaminate the scene.

Offence 6: break, enter and steal – Kintore Road, Wahroonga

19. Also in April 2011 the applicant gained entry to a residential home by forcing a sliding door lock at the rear of the house. He stole $41,500 worth of goods, including precious jewellery and cash. The applicant was able to deactivate the alarm system at the property, and he gained access to a safe by using an angle grinder. Bleach was sprayed throughout the house and over the safe to destroy forensic evidence.

Offence 7: break, enter and steal – Christopher William Jewellery, Crows Nest

20. During the Anzac Day long weekend in April 2011 the applicant broke into a jewellery store in Crows Nest, having previously investigated the products kept by the store by internet search. He first attempted to use a concrete saw (hired by him using a false name) to cut through the rear brick wall of the premises and directly into two large safes kept there. When that failed he cut a hole through the wall wide enough to gain entry. Once inside the applicant stole almost eight hundred pieces of jewellery with a retail value of around $200,000. Damage was caused to locking mechanisms on several display cabinets in the store. The applicant poured a mixture of bleach and water around the premises in an effort to avoid detection. He concealed the hole in the wall on leaving the premises.

21. On 2 May 2011 the applicant attended a precious metals refiner in Chippendale, and produced 4.16 kilograms of assorted silver jewellery. He asked that the items be melted down and returned to him in 1kg pure silver bars. On 4 May 2011 the applicant produced a further 10.5 kilograms of assorted silverware and jewellery with the same request. On 12 May 2011 the applicant produced 5.2 kilograms of assorted silverware and cutlery to be melted down, and on 31 May 2011, a further 9.7 kilograms of items was left for smelting. Many of the items the applicant delivered for smelting came from the jewellery store.

Offence 8: break, enter and steal – Five Ways Cellars, Paddington

22. This offence occurred in June 2011, at a time when the store was closed. Having conducted a number of internet searches of the Cellars' products in preparation for the crime, the applicant forced open a locked window and a rear door to gain entry to the premises. Once the applicant was inside the premises, he cut the alarm wires and ripped the alarm from the wall. The applicant stole 425 bottles of expensive wine, such as Penfolds Grange, with a retail value of more than $150,000. Considerable damage was caused to a rear door. The applicant later denied involvement in this offence, claiming that the wine belonged to his father.

Offence 9: break, enter and steal – Barrie Street, Killara

23. In August 2011 the applicant broke into residential premises in Killara by forcing a lock on a ground floor bedroom window. He stole jewellery valued at almost $30,000 by using an angle grinder to access the contents of a safe. Bleach was used to contaminate the crime scene.

Offence 10: possess safe breaking implements

24. On executing a search warrant at the home of the applicant's grandmother at Bellevue Hill on 29 September 2011 police found a number of specialised pieces of equipment connected with safe and house breaking, and theft. They included two angle grinders and grinding blades and discs, a Petrogen portable cutting system with manual and brochures, a drill and drill bits, a metal detector, a stethoscope, two head lamps, two Peterson Lock pick pro box sets, cutters, screwdrivers, a Thermic lance (used to cut into safes), an electromagnetic pulse gun (an instrument which may be used to interfere with or damage the operation of electrical devices), equipment to test diamonds, and a kit to test for precious metals. The applicant was also in possession of a number of "how to" books for thieves, including books respectively entitled “How to crack safes,” “Locks, Safes and Security” and “Understanding and Servicing Alarm Systems.” He similarly had a quantity of articles including articles entitled "Low Voltage Wiring" (about security/fire alarm systems), "Easy Pickings" (an article concerning lock picking techniques), and "Safe Cracking for the Computer Scientist", together with articles and a DVD concerning locks including tubular pin tumbler locks, lock picking, and safe cracking. The applicant’s fingerprints were recovered on a number of these items.

Offences 11 and 12: possess prohibited firearm (shortened Uberti rifle) and possess prohibited pistol (ROHM Pistol)

25. These firearms were found in the Waterloo storage unit, a security pass for which had been found in the applicant's possession on his arrest on 19 December 2011. In a bag in the unit was a .22 calibre Winchester Magnum Rimfire Calibre Uberti manufactured rifle with a cylinder and six rounds of ammunition. A portion of the barrel had been removed and the butt stock had been replaced with a pistol grip, making it a shortened firearm as defined by the Firearms Act 1996 (NSW). The applicant’s fingerprints were recovered from the bag containing the gun. Also found was a black ROHM .22 long calibre RG6 chamber and a black leather pouch. Within the pouch was a box of 50 Civic Long Rifle brand .22 rimfire cartridges, a ‘Ferro Grandumet’ brand tablet bottle which contained 32 cartridges, a cylinder from the revolver and 6 loose cartridges. The firearm was a prohibited pistol under s 4C of the Firearms Act. No owner was found for either firearm.

Offence 13: Deal with proceeds of crime s 193B(2)

26. Also found during the search of the Waterloo storage unit, which had been rented by the applicant under a false name, was about $5.5 million worth of items including: $2,170,400.00 in Australian currency, more than $200,000.00 in foreign currency, 145kg of silver bars, 15kg of silver coins, 100oz of gold bars/nuggets, 150oz in gold coins, 51 x 1970-2000 gold Australian $200 coins, 35 x 1970-2000 gold Hong Kong $1000 coins, a large number of watches, 8,500 items of jewellery, silverware or precious stones, a false drivers licence, and Medicare and other false identification documents.

27. The items found at the storage unit have been linked by police to 137 residential break, enter and steal offences across Sydney’s North Shore between 2004 and 2011 (including seven of the charged offences); six commercial break, enter and steal offence in the Sydney area in 2011 (including two of the charged offences); 12 residential break, enter and steal offences in Melbourne in 2010, and the Kennards Self Storage break, enter and steal offence of 3 December 2011 in Ivanhoe Victoria.

The Form 1 matters

28. Although the facts of the 23 offences taken into account on a Form 1 document were set out in full before the sentencing judge, the following brief summary of the facts will suffice for present purposes. The ten offences of using a false document to obtain financial advantage occurred in Sydney over a three week period in 2010 when the applicant sold a number of stolen items to pawn shops for a profit of $22,000. The five offences of making or publishing false statements to obtain financial advantage occurred in May to July 2011 and related to the five occasions on which the applicant sold stolen wine through an auction house by using a false name. He received approximately $18,000 from the sale of the wine. An offence of goods in custody (being a stolen Visa card) and an offence of possessing house breaking implements both arose from a search of the applicant's car conducted in September 2011. Two offences of possessing identification information to commit an indictable offence and an offence of deal with the proceeds of crime were uncovered on 19 December 2011 during the search of the applicant’s accommodation in Randwick, when police found a St George Freedom bank card in the name of Michael Luciano, a driver’s licence under the false name of Willy Razzak, and $3,660 in cash.

29. A further three offences, of possessing an unauthorised firearm, related to three firearms located in the Waterloo storage facility when it was searched. The firearms, a 9mm self-loading pistol, a .357 Smith & Wesson revolver, and a Walther brand self-loading pistol with ammunition, had all been stolen from a house in 2009.

Other Evidence before the Sentencing Judge

30. Also before the sentencing judge was the applicant’s criminal history from both New South Wales and Victoria, with entries beginning in 1995 when he was still a child. The applicant was first charged and convicted in the Children’s Court for an attempted break, enter and steal offence, being again before that court a few months later for break, enter and steal, possessing a prohibited drug, goods in custody and larceny. In 1996 the applicant was before the Children's Court for drug offences (including supplying a prohibited drug), and for dishonesty offences. He was dealt with by probation and community service orders.

31. In 2003, and by then an adult, the applicant came before the criminal courts a number of times for stolen property offences, and entering enclosed lands. The following year he was sentenced to terms of imprisonment for multiple counts of break enter steal and stealing from a dwelling house.

32. In Victoria, the applicant's criminal history was the record of his conviction for the Ivanhoe offences, being offences of obtain property by deception, burglary, and theft. The applicant received a total effective sentence of 4 years imprisonment with a non-parole period of 2 years. The applicant was eligible for parole on 17 December 2013 but was not in fact released to parole until 18 December 2014, when he was immediately extradited to New South Wales to face the present offences.

The Applicant’s Case on Sentence

33. The applicant gave evidence before the sentencing judge. He said that he had completed high school, and subsequently obtained degrees in Economics and Law. Whilst completing his practical legal training he had worked with the Crown Solicitor’s Office as a paralegal, but was obliged to leave that employment after being charged with a goods in custody offence.

34. He told the sentencing judge that he had been referred to a psychiatrist after leaving school because of pains in his head. He was diagnosed with a schizoid condition in 2003. At some stage the applicant was prescribed antipsychotic medication but had stopped taking it in 2009. The applicant deposed that, after ceasing the medication, his thinking became disorganised, and he began to believe that he had permission from God to commit his various crimes, as recompense for injustices he had suffered in the past. He commenced taking Risperidone in 2012 when in custody, and used that drug regularly. The applicant was asked about the various doctors he had seen for the purposes of the preparation of reports to courts, and said that he had told them, and a psychologist he saw, the truth.

33. Of his crimes the applicant said that he felt “morally repugnant” for what he had done, and found it hard to believe that he had committed the offences. He asserted that he would never again offend if taking his medication.

34. For the future the applicant said that he wanted “a normal life” and wished to use his education to work. He wanted to have a family. He said that he intended to continue to take prescribed medication, and refrain from using illicit drugs. He said he would “feel crushed” if given a lengthy term of imprisonment.

35. The applicant’s paternal uncle, a psychologist, provided a letter to the court in which he indicated that he and his wife were willing to support the applicant upon his release from custody, and provide a home for him. The applicant’s aunt also provided a testimonial letter to the court, in which she echoed her husband’s willingness to support the applicant. The applicant’s sister similarly provided a letter to the court, in which she spoke of the applicant’s difficult mental health issues, and his regret that he had “allowed himself to be controlled by his mental illness”.

36. Tendered to the sentencing judge were some six consultant psychiatrist’s reports, being reports of Dr Michael O’Shea (30 September 2003), Dr Stephen Allnutt (3 April 2006, 30 August 2006), Dr Lester Watson (22 April 2013; 10 May 2016) and an extract of Dr Jonathan Carne (21 September 2006). Also tendered was a report from forensic psychologist Kathryn Wakely (3 May 2016). As can be seen from the dates of the reports, most were of some age. They had been prepared for earlier occasions on which the applicant had been before a court for sentence.

37. Dr O’Shea opined in his report of 30 September 2003 that “there is antisocial behaviour which includes criminal activity in the form of stealing as well as not integrating into society.” Dr O’Shea was of the opinion that the applicant had psychological problems in the “context of a very abusive background with his parents.”

38. In his April 2006 report Dr Allnutt was of the opinion that the applicant manifested symptoms consistent with a chronic psychotic disorder, noting a background of family mental illness. The doctor also noted a “relatively long history of stimulant abuse in the form of amphetamines, cannabis and ecstasy, which would have further contributed to the risk of development of chronic psychotic disorder.” Although Dr Allnutt was unable to give a definitive diagnosis, he concluded that a differential diagnosis should include Schizoaffective Disorder, Schizophrenia or a Schizotypal or Schizoid Personality Disorder with exacerbations of unusual and eccentric thinking, becoming delusional, and aggravated by drug abuse.

39. In his second report of 30 August 2006 Dr Allnutt focused on the applicant’s likely mental state at the time of offences committed by him in 2004. Referring to disturbances in the applicant's thinking and to his use of methylamphetamines in the period leading up to the commission of the 2004 offences, Dr Allnutt observed that,

“it would be reasonable to conclude that at the material time of the alleged offending [the applicant] was experiencing ongoing, active symptoms of psychosis [which] probably made a significant contribution to his offending behaviour.”

42. Dr Carne in an extract from a September 2006 report was also concerned with the applicant's mental state relevant to his 2004 offences. He stated that the applicant had been suffering from symptoms of paranoid schizophrenia at the time. His use of marijuana and amphetamines exacerbated his condition.

43. In 2013 and 2016, the applicant was seen by Dr Walton. In his 2013 report, Dr Walton opined that it would be “hazardous to automatically conclude” that the applicant’s offending was entirely self-serving. He stated that schizophrenia could erode an individual’s capacity for sound judgement, whilst potentially leaving ability to plan intact. He referred to the need for the applicant to continue prescribed medication and refrain from further substance abuse. He concluded, “[b]y any sensible standard, Mr See is now a recidivist criminal. Proper attention to psychiatric issues will not carry the promise of eliminating the risk of reoffending but it should assist.”

44. In his 2016 report – that being the only psychiatric report prepared for the present offences – Dr Walton gave a background that the applicant had not been taking his prescribed antipsychotic medication since 2009 and as such, he had a recurrence of his disorganised thinking. The applicant had at the time of the offending what Dr Walton referred to as "a change in the belief patterns". He opined that,

“despite the fact that the [the applicant] seems to have been afflicted by distorted thinking processes in parallel with the extended period of offending, and that he has not been taking his necessary antipsychotic medication, the situation falls short of a formal mental state defence. That said, [the applicant’s] difficulties with sustaining clear thinking likely seriously compromised his ability to exercise proper consistent social judgement. With his seeming grandiose and religiose attitude it is highly likely that he would not have given proper consideration to the consequences of his actions and it is well recognised that persons suffering from schizophrenia, even when not in the grips of florid hallucinosis or deluded thinking, may exhibit socially inappropriate or even bizarre behaviour. Typically there is a preservation of intellectual functioning with schizophrenia and thus persons, even when relatively unwell, do remain capable of planning and executing tasks, which might include criminal behaviour. Thus I would see this man’s chronic mental illness as having at least some indirect relevance to the offending.”

45. In her 2016 report psychologist Ms Wakely referred to the applicant as an “intelligent and very troubled man”. She gave the history she had obtained from him, including that of a childhood in a home environment which was violent and unpredictable, with considerable disharmony between his parents. Ms Wakely recorded the applicant’s first attendance on a psychiatrist as having occurred when he was aged 6 years, and suffering suicidal thoughts. He had intermittent contact with psychiatrists thereafter, being diagnosed with schizophrenia in 2005. The applicant began using illicit drugs in his mid-teens, and had used cannabis and methylamphetamine subsequently. The applicant expressed a wish to Ms Wakely to “do [his] time and have it over with”.

46. Ms Wakely noted that the applicant’s personality profile was consistent with his diagnoses of depression and schizophrenia.

47. At the sentence hearing, the applicant made submissions regarding his mental condition, arguing for a more lenient sentence. Senior counsel for the applicant submitted that the expert evidence before the sentencing judge established a link between the applicant’s mental illness and the commission of the offences. Citing the principles set out in DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1; (2010) 79 NSWLR 1, at [177]; the applicant submitted that the first four points applied to him:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing. They can be summarised in the following manner:

●   Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.

●   It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

●   It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

●   It may reduce or eliminate the significance of specific deterrence.

●   Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence [references and citations omitted].”

48. Referring to the authorities of R v Todd [1982] 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59, the applicant reminded the sentencing judge of the need for totality taking into account the sentence imposed in Victoria, as well as pointing to considerations of leniency arising from the delay due to his imprisonment in another state.

The Conclusions of the Sentencing Judge

49. In evaluating the circumstances of each break, enter and steal offence the sentencing judge considered both those matters referred to in s 21A of the Crimes (Sentencing Procedure) Act and the guideline judgment of R v Ponfield (1999) 48 NSWLR 327. Regard was had to the level of planning; the fact that most of the offences were committed in residential rather than business premises; that damage was caused to the premises broken in to, including by the deposition of bleach to contaminate the crime scene; that some items stolen were of sentimental as well as material value; and that some of the stolen property was recovered from the Waterloo storage facility. Overall, his Honour concluded that the s 112(1) offences fell at a mid-point between the lower end of the range of seriousness and the middle of the range of seriousness.

50. Referring to the sophistication of many of the plethora of safe breaking implements the applicant had had in his possession, the sentencing judge concluded that the offence of possess safe breaking implements fell well into the middle of the range for such offences.

51. His Honour concluded that the possess firearms charges fell towards the lower end of the range of objective seriousness for such crimes, whilst the offence of dealing with the proceeds of crime was regarded by him as well within the middle of the range of seriousness for offences of its type.

52. Turning to the applicant’s subjective case the sentencing judge noted his age at the time of the commission of the offences, being 31 to 32 years of age, and his age at the time of sentencing, being 37 years of age. He referred to the description of the applicant as “an intelligent and very troubled man”, and noted his childhood history of instability leading to mental illness. The sentencing judge set out at length the applicant’s history of illness, taken from the many reports tendered before him, and noted that, at the time of the commission of the offences, the applicant had ceased to take prescribed medication, because of adverse side effects. His Honour noted that the applicant was now appropriately medicated with both an anti-psychotic and an anti-depressant, medications which had no unwelcome side-effects.

53. The sentencing judge accepted that the applicant’s mental illness had had some role to play in the commission of the offences, with other motivating factors being a desire for greater closeness with his father (and co-offender), and greed for money to pay for regular visits to sex-workers. Referring to Director of Public Prosecutions (Commonwealth) v De La Rosa his Honour concluded that the existence of a mental disorder reduced the applicant’s moral culpability for his crimes, and meant that the full measure of general deterrence should not be visited upon him. However, the judge also found that there was a greater need for the sentence imposed to ensure the protection of the community, that being the final feature referred to at [177] of De La Rosa.

54. The sentencing judge was guarded as to the applicant’s prospects of rehabilitation. A finding of special circumstances was made in the applicant’s favour.

55. His Honour referred to the principle of totality, and the particular relevance of the Victorian sentence, both insofar as totality was concerned, but also because of the delay that the interstate sentence had caused in the finalisation of the New South Wales proceedings.

The Application for Leave to Appeal Against Sentence

56. The applicant seeks leave to rely on four grounds of appeal:

1. “The sentencing judge erred in having insufficient regard to the Victorian offences and delay in the light of principles established in R v Todd and Mill v R;

2. The sentencing judge erred in failing to adequately take into account the applicant’s mental abnormality;

3. The sentencing judge erred in failing to adequately take into account Mr See’s remorse and prospects of rehabilitation; and

4. The sentence is manifestly excessive.”

Ground 1: The sentencing judge erred in having insufficient regard to the Victorian offences and delay in the light of principles established in R v Todd and Mill v R

57. In advancing this ground, the applicant acknowledges that the sentencing judge was cognisant of the principles set out in Todd and Mills, but contends that he gave them insufficient weight. The applicant argues that the only proper reflection of the principle was to commence the New South Wales sentences on the same date as the applicant’s Victorian sentence commenced, that being 19 December 2011.

58. A ground of appeal framed in terms such as the present suffers from a significant difficulty, as was noted by Hoeben CJ at CL in King v R [2015] NSWCCA 99, at [56]:

“A ground of appeal framed in terms of “insufficient weight” being given to a particular factor suffers a very significant preliminary difficulty. It accepts that consideration was given to the factor by the sentencing judge but then has to persuade a Court of Criminal Appeal that the sentencing discretion miscarried. Such a challenge can only be successfully mounted if error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 is identified.”

59. Here, the sentencing judge was well aware of the relevant principles, and of the relevant facts, citing them in his sentencing judgment. He said,

“Where an offender is serving an existing sentence, the proper approach is to ask what would be likely to have been the effective head sentence and non-parole period if the offender had been sentenced at the one time: Mill v R (1988) 166 CLR 59 at 66 to 67. A Court must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences. In other words, I need to ask myself what would likely be the effective head sentence imposed if I was sentencing him for the present offences and those for which Judge Douglas sentenced him. In accordance with the principle of totality I will then review the aggregate to see whether it is just and appropriate.

Allied to this is the delay in the proceedings brought to finality which is, of itself, a significant factor. Mr Smith appropriately brought to my attention what the Court said in R v Blanco (1999) 106 A Crim R 303, which referred to R v Todd (1982) 2 NSWLR 517 as well as the High Court case of Mill. The Court said:

‘The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and, thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach.’

Having taken into account all of these matters, as I say I have decided to impose an aggregate sentence of imprisonment.”

60. Having correctly stated the applicable principles, the sentencing judge determined that it was appropriate to commence the New South Wales sentences on 18 January 2013, thus accumulating the sentence by some 13 months on the Victorian sentence, with the balance of that sentence subsumed by the New South Wales imprisonment.

61. Taking into account the Victorian sentence, the effective total sentence of imprisonment was one of 13 years and 7 months, with an effective NPP of 8 years and 7 months. Had the sentence been commenced on the same day as the Victorian custody, as the applicant argues that it should, there would have been no discrete punishment imposed for the three serious interstate offences.

62. Questions of concurrence and accumulation are discretionary matters for the sentencing judge and there is no correct formula that is to be applied. His Honour was aware of the principles; he had regard to considerations of delay and of totality, and concluded that there should be 13 months of accumulation on the Victorian sentence in fixing the commencement date of the sentences he imposed. That conclusion was open to him in the proper exercise of his discretion.

63. This ground is without merit.

Ground 2: The sentencing judge erred in failing to adequately take into account the applicant’s mental abnormality

64. As with ground 1, in advancing this ground the applicant faces the considerable hurdle of persuading this Court that the sentencing discretion miscarried in circumstances where it is acknowledged that the sentencing judge was aware of the relevant principles and gave consideration to the issue of the applicant’s mental illness.

65. The applicant contends that the consideration given to the evidence of mental illness was inadequate, citing the sentencing judge’s purported failure to refer to a particular passage in one of the seven reports in evidence as indicative of that inadequacy.

66. The evidence before the sentencing judge relevant to the applicant’s illness was voluminous, if in large part somewhat dated. Particularly in such circumstances there could be no obligation on a sentencing judge to refer specifically to each report. His Honour referred to and quoted from the two reports of most relevance, those written in 2016. His remarks more generally, and particularly his account of the applicant’s history of illness, demonstrated his familiarity with the other, earlier, reports. Contrary to the applicant’s assertion, his Honour understood the applicant’s medication history, and was well aware that the applicant was currently medicated with both an anti-psychotic and an anti-depressant.

67. It is clear from the sentencing judgment that his Honour well understood the principles applicable to sentencing an offender with a mental illness, and applied those principles having regard to the evidence before him.

68. The sentencing judge set out the evidence relevant to the applicant’s illness at length, ultimately concluding that, whilst the applicant’s moral culpability for his offending conduct was lessened, as was the need for general deterrence, the requirement for the sentence imposed to adequately protect the community was heightened.

69. After referring to the principles set out at [177] of De La Rosa, his Honour concluded,

“I consider the existence of the offender’s mental disorder means that his culpability for the offences is reduced, and that the full measure of general deterrence is not appropriate and that imprisonment has been and will be harsher. However, I also consider there is a countervailing consideration being the level of danger which the offender presents to the community which sounds in special deterrence.”

70. In concluding that the applicant presented a greater danger to the community because of his mental illness, his Honour had had regard to the applicant’s history of ceasing to take prescribed medication, and the apparent correlation between failure to take medication and criminal conduct. In so doing, the sentencing judge was not punishing the applicant for failing to take medication with unpleasant side-effects, or failing to recognise that the applicant was properly medicated at the time of sentence, he was taking into account evidence of relevance to the question of future dangerousness. There was no error in that approach.

71. This ground has not been made out.

Ground 3: The sentencing judge erred in failing to adequately take into account Mr See’s remorse and prospects of rehabilitation

72. As with grounds 1 and 2, this ground advances a failure to adequately consider a particular feature of the sentencing exercise, in circumstances where the weight to be given to evidence of remorse and the applicant’s prospects of rehabilitation were very much matters within the discretion of the sentencing judge.

73. As was observed by Spigelman CJ in in R v Baker [2000] NSWCCA 85, at [11],

“Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of ‘weight’ will justify intervention by an appellate court are narrowly confined.”

74. There was evidence before the sentencing judge from the applicant as to his feelings of remorse for having committed his crimes. In answer to a question from his counsel during his evidence on sentence as to how he felt about the rightness or wrongness of his actions, the applicant said,

“I feel morally repugnant for what I have done in the past. I feel very bad but when I look back at what I’ve done I can’t believe that I’ve actually done that and to do it again - I would never do it again if I stay on the medication.”

75. Of that evidence the sentencing judge concluded,

“As far as remorse is concerned the offender states now that he is properly medicated, that he feels morally reprehensible. I do not consider his remorse or contrition has reached the level of deep regret for his wrongdoing but I make allowance for the fact that his mental issues distort his emotional ability to engage in proper victim empathy.”

76. Unlike this Court, the sentencing judge had the benefit of having seen and heard the applicant give evidence; he was in the best possible position to assess the question of remorse. Favourably to the applicant he conducted that assessment by accepting that the applicant’s mental illness would have had the affect of blunting his capacity for empathy with the victims of his crimes. Even against that background, his Honour did not conclude that the applicant felt “deep regret for his wrongdoing”.

77. As the ground of appeal recognises, his Honour did not fail to take the evidence of remorse into account, he declined to accord it full weight. That was a conclusion which was open to his Honour to reach.

78. As to the applicant’s prospects of rehabilitation, the sentencing judge took a guarded view which the applicant complains was an error. Of rehabilitation, the sentencing judge said,

“I find his prospects of rehabilitation and the unlikelihood of his reoffending to be both guarded. The support of his uncle and aunt, the fact that appropriate medication has been introduced and the rehabilitative steps he has made in the delay of the present matters being finalised promote these prospects. However, his extensive criminal history and the acknowledgment by the experts of the real risk of recidivism, to which I have just referred, cause me to make this finding.”

79. It is clear that his Honour was well aware of the positive features that promoted the prospects of the applicant’s rehabilitation. He had earlier referred to the applicant’s hopes and plans for his future, and he noted the family and medical support available to the applicant. However, he was not obliged to accept that evidence in isolation, without considering other contrary aspects of the evidence. The other evidence - much of it tendered by the applicant - pointed to very clear risks for recidivism in the future. That evidence, coupled with the evidence of the applicant’s offending past over an extended period, well supported the sentencing judge's cautious assessment.

80. In both of the 2016 reports in evidence the relevant author referred to the risk that the applicant would return to criminality. Dr Walton opined that,

“While it is correct to state that proper attention to psychiatric treatment and rehabilitative issues will not eliminate the risk of reoffending, neither is it the situation one where entrenched recidivism is inevitable, although I would be surprised if there were not at least a few further hiccups if [the applicant] progresses towards a more conventional lifestyle.”

81. Ms Wakely, in similar vein, said,

“When medicated [the applicant] is able to attain some general stability over symptoms, however he will remain vulnerable to instability, particularly while he readjusts to community life post release.”

82. After referring to the need for ongoing treatment and supervision, Ms Wakely continued,

“Without access to such treatments and consistent monitoring, [the applicant] will be at risk of ongoing instability, relapse and recidivism.”

83. Those comments fell to be assessed in the light of the applicant’s apparently entrenched history of recidivism and, particularly, his history of the regular commission of break, enter and steal offences.

84. On the evidence before the sentencing judge there was no basis for unalloyed optimism as to the applicant’s future prospects; the guarded conclusions of the sentencing judge were well open to him.

85. This ground has not been made out.

Ground 4: The sentence is manifestly excessive

86. The applicant relies upon the errors asserted in grounds 1, 2, and 3 to argue that the aggregate sentence imposed upon him is manifestly excessive.

87. I have already concluded that the sentencing judge was not in error in his approach to questions of totality and delay, mental illness, remorse and rehabilitation. Accordingly, this ground cannot be made out.

88. The applicant was an intelligent and dedicated thief who committed crimes of considerable sophistication, motivated at least in part by greed. There was a strong need for a stern sentence to be imposed upon him. The sentence handed down by his Honour was within the proper exercise of the sentencing discretion and no error has been demonstrated.

89. The orders I propose are:

1. Leave to appeal granted;

2. Appeal dismissed.

Decision last updated: 14 July 2017