Skocic v R

[2014] NSWCCA 225

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Skocic v R [2014] NSWCCA 225
Hearing dates:	15 October 2014
Decision date:	23 October 2014
Before:	Macfarlan JA at [1] Fullerton J at [2] Bellew J at [3]
Decision:	Leave to appeal is refused
Catchwords:	APPEAL - sentence - applicant convicted of break and enter in company and recklessly damage property - application for leave to appeal - assertion of manifest excess based solely upon sentencing statistics - application for leave refused APPEAL - sentence - use of sentencing statistics - where primary submission of manifest excess relied solely upon sentencing statistics - necessity to determine sentence according to principle and not numerical equivalence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 MLP v R [2014] NSWCCA 183 R v Nikolovska [2010] NSWCCA 153 RLS v R [2012] NSWCCA 236
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Dennis Skocic - Applicant Crown - Respondent
Representation:	Counsel: B Glennon - Applicant J Pickering SC - Respondent Solicitors: David H Cohen and Co - Applicant J Pheils, Solicitor for Public Prosecutions - Respondent
File Number(s):	2012/105691008
Publication restriction:	Nil
Decision under appeal	Date of Decision: 2013-10-11 00:00:00 Before: Frearson SC DCJ

Judgment

1. MACFARLAN JA: I agree with Bellew J.

1. FULLERTON J: I agree with Bellew J.

1. BELLEW J: Following a joint trial with a co-accused, Dennis Skocic ("the applicant") was found guilty by a jury of the following offences:

(i)   that he did, on 3 April 2012, at Narrabeen in the State of NSW, break and enter the dwelling house at 1/151 Ocean Street, and commit a serious indictable offence therein, namely steal a white cabinet the property of William John Boyce, in circumstances of aggravation, namely, whilst in company (count 1);

(ii)   that he did, on 3 April 2012, at Narrabeen in the State of NSW, whilst in company, recklessly damage property, namely various walls, various furniture fixtures, and two doors at 1/151 Ocean Street, the property of William John Boyce (count 2).

1. The offending in count 1 was contrary to s. 112(2) of the Crimes Act 1900 and carried a maximum penalty of 20 years imprisonment. A standard non-parole period of 5 years was prescribed. The offending in count 2 was contrary to s. 195(1A)(a) of the Crimes Act 1900 and carried a maximum penalty of 6 years imprisonment.

1. On 11 October 2013, his Honour Judge Frearson SC imposed the following sentences:

(i)   in respect of count 1, a non-parole period of 2 years and 3 months imprisonment commencing on 13 July 2013 and expiring on 12 October 2015, with a balance of term of 18 months imprisonment expiring on 12 April 2017;

(ii)   in respect of count 2, a fixed term of 10 months imprisonment to commence on 13 June 2013.

1. The total term of imprisonment was one of 3 years and 10 months, with a total non-parole period of 2 years and 4 months.

1. The applicant seeks leave to appeal on the ground that the overall sentence imposed was manifestly excessive.

THE FACTS

1. His Honour found the facts of the offending to be as follows (commencing at ROS 2):

"151 Ocean Street at Narrabeen was an unoccupied building, intended as three dwellings. Unit 1 had been completed but for the installation of appliances. On the Friday before the relevant occasion the building was inspected by the owner and it presented as well secured. At about 5.30pm on 3 April 2012 a neighbour observed two men to attend the vicinity of the units and they emerged from a single cab ute. Notwithstanding the submissions to the contrary, I am satisfied beyond reasonable doubt it was the two offenders. The driver was wearing camouflage pants, and Mr Larkin said in evidence that he was there with the co-offender, who at the time was there to get some tools. I at least accept that he was there with the co-offender. Mr Larkin did deny that he entered the premises at that point.

It was about 9.30pm that the two men were observed loading a kitchen cabinet on to Mr Larkin's work ute. I am satisfied beyond reasonable doubt it was the two offenders, notwithstanding the evidence that Mr Larkin in fact stayed inside the vehicle. The number plate was noted by a witness, Mr Ryan.

Mr Skocic's account was that both he and Mr Larkin had entered the building and removed property. I do accept that they both entered the building, I am satisfied of that beyond reasonable doubt. Indeed they stole the property from inside the building and I am satisfied that they jointly broke into the building; the internal door of the garage had been jemmied.

What happened in unit 1 was that walls were damaged. A kitchen in unit 1 had been wrecked in the dismantling. Tops had been unscrewed. There was damage to cupboards. The downstairs bathroom had a hole in the ceiling. The spa bath had been removed from the unsuited. Kitchen cabinets had been removed. The front door of unit 3 had been jemmied and in all there was about $30,000 worth of damage.

When the vehicle was pulled over by police shortly after it left the scene, about 750 metres away, there was the stolen cabinet on the back. Another cabinet and bathroom tub had been moved, clearly in preparation for being removed from the site, and I am satisfied that clearly the two offenders were jointly involved in the commission of the offences and both physically participated, notwithstanding the fact that Mr Larkin had quite severe rheumatoid arthritis. Indeed both were observed carrying one of the cabinets on to the ute.

In relation to the reckless damage matter, the reckless damage in company, I appreciate that what is charged is reckless rather than intentional damage, but nevertheless having regard to what was damaged, this is a serious example of this type of offence, and I am careful not to double count because some of the damage is referable to the break, enter in company offence."

1. His Honour found that the offending was planned (at ROS 4):

"The break, enter in company offence was obviously a planned venture. I do not suggest it was substantially pre-planned, but certainly on the day in question there was obviously considerable organisation and planning. One cabinet was taken, but another, plus the bathtub, was removed from the premises in preparation of being taken. Clearly the venture was interrupted.

On any view this was a calculated and brazen crime and both offenders physically participated, though they had slightly different roles. There is no reason, however, to distinguish culpability in terms of what they actually did."

THE APPLICANT'S CASE ON SENTENCE

1. His Honour noted (at ROS 5) that the applicant had prior convictions for larceny, possession of prohibited drugs, contravention of an apprehended violence order, goods in custody, entering enclosed lands, destroying or damaging property, handling explosive precursors, possessing house breaking implements and possessing equipment to administer a prohibited drug. He also noted (at ROS 5) that at the time of the offending the applicant was subject to a bond imposed pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999, as well as subject to conditions of bail. Whilst his Honour concluded (at ROS 5) that the breaches of conditional liberty were aggravating factors, he made it clear that he did not treat the balance of the applicant's criminal history in that way, but treated it as a factor which denied the applicant leniency.

1. Commencing at ROS 6, his Honour summarised, at some length, the contents of a report of Danielle Hopkins, Clinical Psychologist. Paragraph 33 of that report asserted the following:

"The current offences occurred during a period of discord with Mr Skocic's wife, when he was spending time with drug using peers."

1. His Honour rejected that assertion. Further, he did not regard the report as providing a basis on which to ameliorate the sentence, nor did he regard it as a basis on which to afford less weight to factors such as deterrence and denunciation. However, his Honour did accept (at ROS 8) that the applicant would find a custodial sentence more onerous as a consequence of an arthritic condition as well as a depressive state diagnosed by Ms Hopkins.

1. His Honour concluded (at ROS 8) that there was no evidence of any remorse on the part of the applicant, nor was there any evidence of an acceptance by the applicant of responsibility for the offending. His Honour also rejected the proposition (at ROS 8) that the applicant had good prospects of rehabilitation, concluding that such prospects were "guarded". His Honour was also unable to conclude that it was unlikely that the applicant would reoffend, although he expressed hope that the applicant had reached an age where he would not do so.

SUBMISSIONS OF THE PARTIES

Submissions of the applicant

1. It should be emphasised at the outset that counsel for the applicant did not challenge any of the findings made by the sentencing judge, be they as to the offending or the applicant's case. In short, counsel submitted that the manifest excess of the sentence was evident from an examination of the relevant sentencing statistics. He submitted that such statistics demonstrated that 75 per cent of persons charged with an offence contrary to s. 112(2) of the Crimes Act 1900 received a lesser sentence than the applicant. The effect of counsel's submission was that this, without more, led to the conclusion that overall sentence imposed were manifestly excessive.

1. Beyond relying upon sentencing statistics, counsel for the applicant made reference to two further matters. Firstly, he submitted that "the applicant's prior offending did not justify such a harsh sentence". Secondly, he submitted that the offending should be categorised as being in the "lower range", because of the fact that the value of the goods was low and that, in any event, they had been recovered.

Submissions of the Crown

1. The Crown highlighted the findings made by the sentencing judge and emphasised that those findings were not challenged. It was pointed out that there was little, if anything, by way of mitigation in the applicant's case. It was also pointed out that the offending was committed when the applicant was on conditional liberty, and that this was a significant aggravating factor.

1. The Crown further submitted that the applicant's reliance upon statistics reflected the adoption of an incorrect approach. The Crown emphasised that sentences were imposed according to principle, not numerical equivalence and that when all relevant factors were taken into account, and the relevant principles were applied, it was evident that the sentence imposed was well within the permissible range.

CONSIDERATION

1. In order to make good the ground relied upon, the applicant must satisfy the Court that the sentence imposed is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. In my view the applicant has failed to do so.

1. The principal submission made on behalf of the applicant was that a conclusion of manifest excess should be reached solely by reference to sentencing statistics. That submission misunderstands, and overstates, the use to which statistical material can be put on sentence. In MLP v R [2014] NSWCCA 183, with the concurrence of Macfarlan JA and Adamson J, I had occasion to make a number of observations (commencing at [41]) regarding this issue. Those observations included the following:

(i)   consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. What is sought is consistency in the application of the relevant legal principles: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [48]-[49].

(ii)   sentences imposed in other cases do not mark the outer bounds of the permissible sentencing discretion but stand as a yardstick against which to examine a proposed sentence. What is important are the unifying principles which such sentences reveal and reflect: Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323 at [41];

(iii)   the presentation of sentences passed in the form of numerical tables and graphs is of limited use: Hili (supra) at [48]. This is because reference to the lengths of sentences passed says nothing about why the sentences were fixed as they were;

(iv)   this Court has emphasised the need to adopt a careful approach when asked to have regard to statistics: R v Nikolovska [2010] NSWCCA 153 at [117] per Kirby J, Beazley JA (as her Honour then was) and Johnson J agreeing. A similarly careful approach is required when the Court is asked to compare a sentence imposed in one case with a sentence imposed in another: RLS v R [2012] NSWCCA 236 at [132] per Bellew J, McClellan CJ at CL and Johnson J agreeing. The need to take care in each instance arises, in part, from the fundamental fact that there will inevitably be differences, both in terms of the objective circumstances of offending and the subjective circumstances of the offender, between one case and another;

(v)   the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not demonstrate that the sentence is unduly harsh. As a matter of common sense, there will always be one sentence which constitutes the longest sentence imposed for particular offending: Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75].

1. It was submitted in the present case that the relevant statistics demonstrated that 75 per cent of persons charged with an offence contrary to s. 112(2) of the Crimes Act 1900 received a sentence which was less than that imposed on the applicant. Even accepting that to be so, the suggestion that such a fact, without more, leads to the conclusion that the sentence imposed on the applicant is manifestly excessive reflects the adoption of an approach which is contrary to principle. As noted in [19](i) above, consistency is not demonstrated by, and does not require, numerical equivalence. Bare statistics say nothing about the circumstances of the offending, or the circumstances of the offender.

1. Further, the submission that the applicant's prior offending "did not justify such a harsh sentence", and the further submission that the value and subsequent recovery of the goods supported a finding of manifest excess, both ignore the obvious, namely that these were only two of a number of factors which were relevant on sentence. Those factors were required to be balanced against his Honour's (unchallenged) findings that the offending was planned, calculated and brazen, that it was aggravated by the applicant being on conditional liberty at the time, that the applicant had demonstrated no remorse and that his prospects of rehabilitation were guarded. Further, it is relevant to bear in mind that his Honour essentially rejected the entirety of Ms Hopkins's report, about which there is no challenge in this application. Moreover, the applicant was convicted following a trial. Whilst he was obviously not to be penalised for the fact that he chose to stand trial, that necessarily meant that he was not entitled to any discount to reflect the utilitarian value of a plea of guilty.

1. In my view, the submissions advanced on behalf of the applicant are completely without merit. This was a case of serious and planned offending. There was little upon which the applicant could rely in mitigation. In all of the circumstances the sentence imposed by his Honour was well within the appropriate discretionary range, particularly bearing in mind (in respect of count 1) the statutory guideposts of the maximum penalty and standard non-parole period.

ORDERS

1. I propose the following order:

(1)   Leave to appeal is refused.

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