Smale v R

[2009] NSWCCA 220

New South Wales
Court of Criminal Appeal

CITATION:	Smale v R [2009] NSWCCA 220 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 August 2009
JUDGMENT DATE:	14 September 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 2; RA Hulme J at 3
DECISION:	Leave to appeal is granted. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - specially aggravated break, enter and steal - partial accumulation of sentence upon lengthy pre-existing sentence - finding of special circumstances but overall non-parole period 86% of total term - whether error in concluding grievous bodily harm inflicted intentionally as opposed to recklessly - whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Morris, Morris and Snelson v R [2008] NSWCCA 182 Nguyen v R [2007] NSWCCA 14 Pearce v The Queen (1998) 194 CLR Regina v Bloomfield (1998) 44 NSWLR 734 R v Cramp [2004] NSWCCA 264 R v Falls [2004] NSWCCA 335 R v Simpson (2001) 53 NSWLR 704 Salvaggio v R [2007] NSWCCA 136
PARTIES:	Garry Anthony SMALE (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/4627
COUNSEL:	J Gormly SC (Applicant) D Arnott SC/F Veltro (Respondent)
SOLICITORS:	North and Badgery Solicitor for Public Prosecutions
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0927
LOWER COURT JUDICIAL OFFICER:	Graham DCJ
LOWER COURT DATE OF DECISION:	9 September 2005

- 1 -

2007/4627

McCLELLAN CJ at cl
GROVE J
R A HULME J

14 September 2009

Garry Anthony SMALE v Regina

Judgment

1 McCLELLAN CJ at CL:

I agree with R A Hulme J

2 GROVE J: I agree with R A Hulme J

3 R A HULME J: Garry Anthony Smale (“the applicant’) was sentenced by his Honour Judge Graham (“the judge”) in the District Court on 9 September 2005 for four offences to a total term of 7 years with a non-parole component of 5 years.

4 For an offence of break, enter and steal (s 112(1) Crimes Act 1900 – maximum penalty imprisonment for 14 years) there was a sentence of imprisonment for a fixed term of 3 years. For an offence of specially aggravated break, enter and steal (s 112(3) – 25 years) there was a sentence of imprisonment for 7 years with a non-parole period of 5 years. For an offence of assault (s 61 – 2 years) there was a fixed term of imprisonment for 1 year and for an offence of larceny (s 117/s 154A – 5 years) there was a fixed term of imprisonment for 2 years. All of the sentences were specified to commence on 18 September 2012 which is three years before the expiration of a non-parole period specified in respect of a pre-existing sentence. Accordingly the effect of the sentencing orders made by the judge was to extend the minimum time the applicant will be in custody by two years.

5 In sentencing the applicant for the specially aggravated break and enter offence the judge also took into account the applicant’s guilt in respect of 8 further offences listed on two Form 1 documents pursuant to s 33 Crimes (Sentencing Procedure) Act 1999.

6 A notice of application for leave to appeal was filed on the applicant’s behalf on 15 April 2009, an extension of time having earlier being granted. The proposed appeal is concerned only with the sentence imposed for the offence against s 112(3) for understandable reasons.

Facts

7 The offence of break, enter and steal was committed on 12 August 2001. The applicant was seen entering a property in Lloyd Street, Sans Souci at around 4.00pm. He gained entry through a man-hole in the roof of the verandah and stole a quantity of jewellery from inside the house. A person who witnessed the entry approached the front door and knocked. The applicant decamped after breaking a window at the rear of the house. He ran towards the street and in doing so came into contact with the witness. A scuffle ensued (Form 1 – assault). Police arrived and were involved in a further scuffle with the applicant as they endeavoured to arrest him (Form 1 – resist police officer in execution of duty). The applicant had earlier been seen to be driving a motor vehicle in Lloyd Street that had been stolen from Ashfield a fortnight earlier (Form 1 – drive conveyance without consent). The vehicle had false/stolen number plates affixed to it (Form 1 – driver display unauthorised number plate).

8 There was a dispute as to certain facts relating to the offence of specially aggravated break, enter and steal which was committed on 17 September 2001. As it is an issue on this application it is best to quote from the judge’s sentencing remarks.

“The episode on 17 September also involved violence. That involved a break-in at a community centre in Marrickville. There was a confrontation between the offender and the sixty-three year old maintenance man at the community centre. At about 8.30am, he found the offender standing at a desk holding a pinch bar in his left hand and a plastic bag in his right hand. There is a dispute in the evidence, and having regard to the absence of any cross-examination specifically directed to the offender’s version of events, with some reluctance, the court must proceed to sentence on the basis that the offender’s version ought to be accepted for the purpose of sentencing. According to the offender, both men left the office and, in the course of it, the offender tripped on a tree root and was then confronted by his victim. In the course of fending him off, he struck out with the pinch bar, which happened to be in his hand. As I have said, that version is accepted with some reluctance, having regard to the statement of the complainant, which gives a significantly different version of the events, and, indeed, having regard to the significant corroboration available in the statement of the victim of the assault which took place shortly afterwards, that victim herself having seen an incident described in very similar terms to those described by the male victim of the specially aggravated breaking and entering. That offence alleges that the special aggravation was the malicious infliction of grievous bodily harm. The version given by the offender is, at least, consistent with a reckless act on his part, and indeed is sufficient, in my view, to treat it as an intentional form of malice. In any event, the victim sustained two broken bones in his left wrist. His wound required stitching and the fractures required plastering.

The next phase of that episode involved a confrontation with a woman who was working at the centre and a demand for the car keys. This demand was accompanied by the swinging of the crowbar towards her head. She held out the keys. The offender ran to her vehicle and drove it out of the car park and to a position outside the main office, where he opened the doors, went into the office and wheeled out a chair with a safe on it and put that safe into the vehicle. A witness then ran towards the vehicle, at which time the offender accelerated away. The safe contained about $530 in Australian currency and cheque books and various cheques. That episode concludes, in terms of the principal offences before the court, with an offence of larceny of a motor vehicle, that being the vehicle of the assault victim.”

9 Apart from the offences committed in conjunction with the break, enter and steal offence of 12 August 2001 there were four further offences listed on the Form 1 documents. There was an offence of break, enter and steal committed on 16 August 2001 at Arncliffe when the applicant broke into the home of an eighty year old woman and stole a quantity of jewellery including a wedding ring. When the owner returned home she saw him leave through a rear window and enter a stolen car and drive off, the latter being an offence of driving a conveyance taken without the owner’s consent. There was a further offence of break, enter and steal committed on 17 September 2001 at St Peters when property to the value of about $2,500 was taken. When the applicant was arrested the following day he was found to be in possession of housebreaking implements.

10 The offences committed by the applicant in August 2001 were at a time when he was the subject of a suspended sentence bond. In addition to that bond, the offences in September 2001 where also committed whilst he was on bail for the August matters.

Related events

11 It is necessary to set out the detail of some other events in order to understand some aspects of the sentences imposed by the judge, including the dates of commencement, and also to set the background for two of the proposed grounds of appeal.

12 On the 16 March 2001 the applicant received a two year sentence of imprisonment which was suspended upon him entering into a bond pursuant to s12 Crimes (Sentencing Procedure) Act for an offence of supplying a prohibited drug for financial reward. He was found to be in breach of that bond and was dealt with in the District Court in respect of that on 11 October 2001. The order suspending execution of the sentence was revoked and the sentence was activated. The sentence was specified to commence on 18 September 2001 with the non-parole period of 18 months expiring on 17 March 2003.

13 At some stage following his arrest on 18 September 2001 the applicant was charged with offences of murder and robbery in company whilst armed with a dangerous weapon. Those offences occurred on 19 July 2001. He pleaded guilty to the robbery but went to trial in respect of the murder. A jury returned a verdict of guilty. On 26 August 2005, Patten AJ sentenced the applicant to imprisonment for 18 years with a non-parole period of 13 years and 6 months. He specified that the sentence was to commence on 18 March 2002, that is six months after the sentence for the drug supply offence had commenced.

14 Although the applicant had pleaded guilty to the offences with which this application is concerned in July and September 2002, the matter did not proceed to sentence until September 2005, that is after the matters of murder and robbery whilst armed with a dangerous weapon had been finalised in the Supreme Court.

Subjective features

15 The applicant was born in 1958 and so he was aged 44 at the time of the offences and 47 at the time he stood for sentence.

16 The judge noted that he has a “very substantial criminal history” which started in the Children’s Court when he was aged 13. The judge noted, however, that apart from the period of offending in July to September 2001, the previous history of criminality was notably free of any significant offences of violence. He noted that the majority of the history related to property crime. The applicant has a history of drug use and many of his previous offences were related to his long standing and very serious drug habit. The applicant told the judge in his evidence that in 2001 he was using heroin and cocaine on a daily basis. He claimed that since going into custody he had undertaken counselling as well as drug and alcohol courses.

17 The applicant also expressed regret and remorse for his actions during the course of his evidence. He was cross-examined by the representative of the Crown on this subject and specifically as to how he felt at the time of committing the offences. His explanation, in effect, was that when he was withdrawing from drugs he would think of little else other than obtaining the wherewithal to procure more drugs, but afterwards he would reflect on his actions and feel regret.

18 It is obvious from the remarks on sentence that the judge paid close attention to the applicant’s prospects of rehabilitation. That was a difficult issue given that the applicant was not due for release until a little over ten years hence. The judge referred to the applicant’s evidence that despite a lifetime of criminality he had changed his outlook, particularly as a result of his involvement in the Supreme Court matters. The judge noted that the applicant’s culpability for the murder was on an extended joint criminal enterprise basis. However, he then went on to remark:

“His conduct in July, August and September of 2001 revealed a significant escalation in the nature of his criminality, more particularly in relation to the intrusion into it of a significant element of violence. That was apparent in the offences committed on 12 August, when he assaulted the neighbour who came to investigate, and the offences of 17 September 2001, where there was a serious assault on the maintenance man and the offence of common assault on the female owner of the vehicle which he used as a getaway vehicle. Obviously, the violence for which he became legally responsible in the course of the armed robbery and the armed robbery itself indicate an escalation of his criminality.”

19 The judge then proceeded to note that the applicant had sought to take steps while in custody to do what could be done by way of courses and becoming involved in a more structured program. Noting that the offences in 2001 had the common theme of being related to the need to fund his drug addiction and also perhaps by the common theme of having a state of mind affected by the urgent desire to get the wherewithal to buy or obtain further drugs the judge went on to say:

“Clearly if he is able to maintain his present attitude of overcoming that addiction, then, whilst his prospects of rehabilitation would not be regarded as exceptionally good, having regard to the entrenched history of criminality, nonetheless, given the age at which he would be released from custody and given that resolve, then the prospects of rehabilitation would be markedly better than might have been the case at the time of the commission of the offences four years ago.”

Proposed grounds of appeal

20 Four grounds of appeal were notified:

1. The sentencing judge failed to properly take into account the fact that the effective period on parole resulting from the sentences was only 2 years 6 months, in a total effective sentence of 18 years and 6 months.

2. In all the circumstances the fact that the effective period on parole resulting from the sentences was only 2 years and 6 months, in a total effective sentence of 18 years and 6 months, amounted to an error of law.

3. The sentence was manifestly excessive.

4. The applicant was sentenced on the basis that the grievous bodily harm in the offence of specially aggravated breaking and entering had been intentionally inflicted, rather than recklessly. Having accepted the applicant’s evidence on this aspect of the matter, and not having rejected it beyond a reasonable doubt, this finding of fact was not open to his Honour.

Submissions in relation to grounds 1 and 2

21 In written submissions counsel for the applicant, who was not counsel who appeared at the hearing of the application, made the point that by the combination of the revoked suspended sentence, the murder and associated armed robbery sentence, and the sentences imposed in these proceedings, the applicant was serving a total effective sentence of 18 years 6 months commencing on 18 September 2001 and concluding on 17 March 2020. There was an effective non-parole period of 16 years concluding on 17 September 2017. Thus, the non-parole period amounted to 86.49% of the total effective sentence. Reference was made to a portion of the judge’s remarks on the subject of special circumstances:

“There are some special circumstances; the extent to which this sentence is accumulated will be one of them, and the extent of the accumulation will affect the weight of that special circumstance. The other is clearly that there will be a significant period of time required for the supervision of this offender. The way in which the sentence will be structured will, however, appropriately provide a sufficient period for that purpose. In fixing a non-parole period, I am conscious of the special circumstances but their weight, it seems to me, would not need to be as great as would be the case should the ultimate decision be to fully accumulate that sentence on the expiration of the non-parole period on the murder charge.”

22 It was submitted that the judge did not achieve his stated purpose of properly taking into account “the extent to which this sentence will be accumulated” by virtue of the fact that the parole period was only 2 years and 6 months in a total sentence of 18 years 6 months. Such a parole period, it was submitted, was relatively short and inadequate for supervision on parole and assistance with reintegration into the community, particularly where the judge was of the opinion that “a significant period of time (would be) required for the supervision of this offender.”

23 Reference was made to a number of cases in which a parole period was held to be inadequate in the context of the overall sentence imposed. In Salvaggio v Regina [2007] NSWCCA 136 the total effective sentence was one of 4 years with the non-parole component being 3 years 6 months. The sentencing judge provided no explanation as to why the parole period was so relatively short. Smart AJ remarked that a period of supervision longer than 6 months would have been beneficial in assisting the applicant to re-establish himself in the community. The appeal, however, was dismissed.

24 In Morris, Morris and Snelson v R [2008] NSWCCA 182 the total effective sentence for one of the applicants was also one of 4 years with a non-parole component of 3 years 6 months. The sentencing judge had stated an intention to find special circumstances. Hidden J remarked that the fact of accumulation of sentences was itself a special circumstance. The Crown conceded the point and the applicant was re-sentenced.

25 In Nguyen v R [2007] NSWCCA 14 a judge accumulated a sentence upon a pre-existing sentence so that the overall result was a total term of 12 years with a non-parole component of 10 years. Howie J said that the parole period was out of proportion to the non-parole period and that it was erroneous for the sentencing judge to have failed to consider whether the accumulation amounted to special circumstances. Nevertheless, I note, the court intervened only to the extent necessary to correct a technical error and not to change the structure of the sentence, Howie J remarking that the seriousness of the offences warranted a non-parole period of at least 10 years.

26 The Crown submitted that the judge was careful to consider the question of whether there were special circumstances, the principle of totality and the impact of the decision he was making to partially accumulate the sentence he was imposing upon the pre-existing sentence. Reference was made to other cases involving sentencing for multiple offences where the proportion of the overall sentence represented by the non-parole component exceeded seventy-five percent and in which this Court declined to intervene. Reliance was placed on authorities relating to the fixing of non-parole periods such as R v Cramp [2004] NSWCCA 264 in which Spigelman CJ stated:

[34] … Perhaps more significantly, it must also always be taken into account that the non-parole period is a minimum period which the convicted person must, in fact, serve. In formulating the non-parole period questions of general deterrence and similar considerations arising from the gravity of the offence may determine that the minimum period should not fall below a stipulated amount, even despite the need for extended supervision on parole.

Consideration of grounds 1 and 2

27 The judge was faced with something of a dilemma in formulating the appropriate sentence to impose upon the applicant and determining how it should be moulded, to use his expression, into the existing sentence. The combination of the two pre-existing sentences involved a total term of 18 years 6 months with a non-parole component of 14 years. Having first identified a sentence of imprisonment for 7 years as appropriate (as required by Pearce v The Queen (1998) 194 CLR 610), his Honour was then faced with the discretionary decision as to whether to order that it be served entirely concurrently, entirely consecutively, or partially concurrent and partially consecutive with the pre-existing non-parole period: s 55 Crimes (Sentencing Procedure) Act. Complete concurrence would have failed to impose any effective punishment upon the applicant for a discrete and most serious offence (together with the offences taken into account) and, having regard to the totality principle, the judge was clearly of the view that complete accumulation was not warranted.

28 There is abundant authority in this Court as to how a sentencing judge should approach the making of this discretionary judgement. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J summarised the relevant principles thus:

[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

29 In setting the non-parole period for the sentence the judge clearly had in mind the need for parole supervision of the applicant upon release and the effect that the partial accumulation of the sentence would have upon the potential parole period. The circumstances were such that there was limited scope to provide for what would ordinarily be desirable in this respect. It must be borne in mind as well that 2 years 6 months is not an insignificant period of time. Senior counsel for the applicant was at a loss to suggest some alternative course that could have been taken by the judge. In my view, giving greater effect to a finding of special circumstances would have resulted in setting a non-parole period that failed adequately to reflect the criminality involved in the offence. This has been described as the “ultimate constraint” in setting the length of a non-parole period: per Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at [63].

30 I would reject grounds 1 and 2.

31 There is an important observation to make before departing these grounds. There was no explanation provided for why the sentencing of the applicant was delayed for as long as it was. The pleas of guilty were entered, as I have said, in July and September 2002 but finalisation of the sentence proceedings was deferred until September 2005. I can only assume that it was thought necessary or appropriate to await the outcome of the proceedings on the murder and armed robbery charges in the Supreme Court. This is something that I have encountered in the past when an offender has proceedings in two different jurisdictions and it has been sought to defer finalisation of the less serious charge(s) until he or she is sentenced for the more serious charge(s). The present case demonstrates that this can serve to constrain the court dealing with what are usually less serious charges from imposing an appropriate sentence, or, as in this case, providing for a desirable period of parole. If the court sentencing second is the Local Court, there are statutory constraints upon the scope to accumulate sentences (s 58 Crimes (Sentencing Procedure) Act).

Submissions in relation to ground 4

32 It is convenient next to deal with ground 4 which asserts that the judge erred by sentencing the applicant upon the basis that he intentionally, rather than recklessly, inflicted grievous bodily harm during the course of his confrontation with the maintenance man at the community centre. This contention centres upon the passage of the judge’s remarks in which he indicated that, albeit with his stated reluctance, he would assess the sentence upon the basis of the applicant’s version of events. In that context he said:

The version given by the offender is, at least, consistent with a reckless act on his part, and indeed is sufficient, in my view, to treat it as an intentional form of malice.

33 Senior counsel for the applicant drew attention to the distinction between the version of the victim, which he submitted described an “aggressive attack”, and the version of the applicant, which he submitted described a “fending off” without an intention to inflict harm. It was contended that by sentencing upon the basis that the harm was inflicted intentionally the judge must have regarded the offence as more serious than if he had regarded the harm as having been inflicted recklessly and that this was not something that was open to the judge to do because of his acceptance of the version of the applicant.

34 The Crown submitted that it was not incumbent upon the judge to accept the applicant’s version given in his evidence which was markedly different to the version set out in the statement of facts and the statements of the victim and the eye-witness which were each tendered without objection. The Crown contended this was so notwithstanding the absence of cross-examination on the topic by the representative of the Crown. Reliance was placed upon the following in the judgment of Howie J said in R v Falls [2004] NSWCCA 335:

[34] In my opinion, the failure of the Crown to cross-examine the offender on a particular aspect of his or her evidence or to make submissions to the sentencing judge about that evidence does not mean that the sentencer is bound to accept the evidence. I do not believe that the tribunal of fact can be restricted by the conduct of the parties in that way: certainly not in sentencing proceedings which do not have the same formality or rigidity in procedure as, say, a criminal trial. It is for the tribunal of fact to weigh the evidence of the offender and determine whether to accept it to the required standard: R v O’Neill (1979) 2 NSWLR 582 at 597. That is so even where the Crown does not call witnesses but relies upon depositions or formal statements: R v Blanchard (NSWCCA, 10 September 1991, unreported). It seems to me that it must be so where there is tendered what purports to be an agreed statement of facts.

[35] The touchstone in the finding of facts by a sentencer is, of course, fairness to both parties. I see nothing unfair to an offender in the refusal of a sentencer to act upon his or her evidence, even if the evidence is undisputed by the Crown, at least where the offender has the onus of proof because it is a matter of extenuation or mitigation. Fairness may require that the sentencer indicate that he or she is not prepared to act upon the evidence in order to permit counsel to address on it or to lead further evidence to support it. Fairness may also mean that the Crown cannot seek to challenge the finding of the sentencer, for example on a Crown appeal, where that finding was not disputed at the hearing.

35 The Crown submitted that the judge, in accepting the version of the applicant, proceeded in a manner that was “unduly favourable” to him.

Consideration of ground 4

36 Whilst it may have been open to the judge to reject the version of the applicant, the fact of the matter is that, rightly or wrongly, he decided to assess the appropriate sentence based upon that version. The question appears to me to be whether he was correct in regarding that version as a basis to conclude that the applicant acted intentionally, as opposed to recklessly, in the infliction of harm upon the victim. I would answer that question in the affirmative. Acting upon the applicant’s version of the incident the judge said:

“In the course of fending him off, he struck out with the pinch bar, which happened to be in his hand”. (Emphasis added).

37 The judge expressed the view that this was “at least” consistent with a reckless act but immediately proceeded to state that it was sufficient, in his view, to “treat it as an intentional form of malice”. That was a finding that was open to him on the evidence. I would reject ground 4.

Submissions in relation to ground 3

38 Rejection of ground 4 takes away part of the principal argument advanced on the applicant’s behalf on this ground alleging manifest excess. The Court was, however, also taken to sentencing statistics maintained by the Judicial Commission, both those that were provided to the judge and more recent statistics filed with the written submissions. It was submitted that the latter statistics demonstrated that the sentence imposed upon the applicant, “although not at the top of the range, was quite severe”.

39 Counsel conceded that the severity of the sentence could be partly explained by the fact that the offence was committed whilst the applicant was in the community under two forms of conditional liberty, bail and a suspended sentence bond, and also by the fact that further offences on the Form 1 documents were taken into account.

40 The Crown submitted that far from being manifestly excessive, the sentence imposed for the specially aggravated break and enter offence was “somewhat lenient”. Reference was made to a mistake made by the judge as to the maximum penalty, he having said that it was imprisonment for 20 years rather than 25 years. I note, however that this was a result of being misinformed by the representative of the Crown. It was also submitted that the decision to order that all of the sentences have the one commencement date was “a particularly lenient approach” having regard to the fact that they were each for separate and serious offences. Then there was the need to impose a longer sentence because the judge was required to take into account eight further offences on the Form 1 documents involving different episodes of criminality, including two unrelated offences of break, enter and steal. Finally, reference was made to the conditional liberty status of the applicant when the offences were committed.

Consideration of ground 3

41 The statistics that were before the judge were based upon 36 cases in which 31% involved a longer sentence and 58% a shorter sentence. The statistics filed with the written submissions were based upon 21 cases in which there had been a plea of guilty finalised in the period January 2001 to December 2007. In 24% of those cases there was a longer sentence and 58% a shorter sentence. The use of statistics in this context is something that must be approached with caution: Regina v Bloomfield (1998) 44 NSWLR 734. Those upon which the applicant relies do not take account of the features of the present case that militated in favour of a more severe sentence – the Form 1 offences and the applicant’s conditional liberty status. I do not regard the statistical material relied upon by the applicant as providing any support for the proposition that the sentence is manifestly excessive.

42 In my view, the sentence imposed by the judge was well within the range of the sound sentencing discretion. I would reject ground 3.

Orders

43 The orders I propose are:

1 Leave to appeal is granted

2 The appeal is dismissed.

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