State Rail Authority of New South Wales v Brown

[2006] NSWCCA 220

Reported Decision: 164 A Crim R 344

New South Wales

Court of Criminal Appeal

CITATION:	McCabe v Regina [2006] NSWCCA 220
HEARING DATE(S):	6 February 2006
JUDGMENT DATE:	24 July 2006
JUDGMENT OF:	Beazley JA at 1; Simpson J at 32; Rothman J at 33
DECISION:	1. Grant leave to appeal; 2. Appeal allowed in part; 3. Vary the non-parole period in respect of the offence of 'break, enter and steal' committed on 27 September 2004 so as to provide for a non-parole period of two years and three months commencing on 22 March 2007, with the applicant being eligible for parole on 21 June 2009.
CATCHWORDS:	CRIMINAL LAW – sentencing – appeal against severity – aggravating factors – whether multiple victims across range of offending – multiple offences but not multiple victims in relation to each offence – not an aggravating factor - SENTENCING – prior convictions – prior convictions are not an aggravating factor - SENTENCING – calculation of non-parole period – pre-sentence custody served must be taken into account in setting non-parole period – trial judge erred in deducting pre-sentence custody from the sentence imposed – trial judge ought properly to have backdated the commencement of the sentence - SENTENCING – re-sentencing – Court must be of opinion that some other sentence is warranted in law and should have been passed – no other sentence warranted in all the circumstances of the offences – interference to correct the non-parole period only
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(1), 21A(2)(d), 21A(2)(j), 21A(2)(m), 21A(4), 33 Crimes Act 1900 (NSW) s 112(1) Criminal Appeal Act 1912 (NSW) ss 5(1)(c), 5AF(3), 6(3) Drug Court Act 1988 (NSW) ss 12, 24
CASES CITED:	Bushara v The Queen [2006] NSWCCA 8 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 McCabe v Regina [2006] NSWCCA 160 Pearce v The Queen (1998) 194 CLR 610 R v Blair [2005] NSWCCA 78 R v Burke [2002] NSWCCA 353 R v McQueeney [2005] NSWCCA 168 R v Newman and Simpson (2004) 145 A Crim R 361; [2004] NSWCCA 102 R v Simpson (2001) 53 NSWLR 704 R v Tadrosse [2005] NSWCCA 145 R v Youkhana [2005] NSWCCA 231 Ryan v The Queen (2001) 206 CLR 267
PARTIES:	Shane Anthony McCabe (Appellant) Crown (Respondent)
FILE NUMBER(S):	CCA 2005/1851
COUNSEL:	Mr H Dhanji (Appellant) Mr G Rowling (Crown)
SOLICITORS:	Steve O'Connor (Appellant) S Kavanagh (Crown)
LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S):	2003/0035
LOWER COURT JUDICIAL OFFICER:	Senior Judge Dive
LOWER COURT DATE OF DECISION:	8 March 2005

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CCA 2005/1851

BEAZLEY JA
SIMPSON J
ROTHMAN J

24 July 2006

M c CABE v REGINA

Headnote

Facts

The applicant had committed a number of indictable offences of ‘break, enter and steal’ to which he pleaded guilty and for which he was sentenced on 8 March 2005. The sentences imposed in relation to those offences are the subject of this appeal. The applicant also had final sentences imposed at that time in respect of a number of earlier offences pursuant to the Drug Court Act 1988 (NSW) following the termination of the applicant’s drug court programme. The applicant appealed against those sentences also, the appeal being heard and determined by a single judge of the Criminal Court of Appeal pursuant to s 5AF of the Criminal Appeal Act 1912 (NSW): McCabe v Regina [2006] NSWCCA 160.

The applicant appeals against the severity of the sentences the subject of this appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the grounds that:

1. The trial judge erred in taking into account as an aggravating factor the fact that " there [were] multiple victims across this range of offending ".

2. The trial judge erred in taking into account the applicant’s prior convictions as an aggravating factor.

3. The trial judge erred in failing to have regard to the applicant’s pre-sentence custody in setting the non-parole period.

Held per Beazley JA (Simpson and Rothman JJ agreeing):

(i) The ‘break, enter and steal’ offences did not involve “multiple victims” within the meaning of s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as required to count as an aggravating factor. Whilst there where multiple offences there were not multiple victims in relation to each offence.

R v Tadrosse [2005] NSWCCA 145 (followed)

(ii) The list of potential aggravating factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) are subject to the rule of law: see s 21A(4). Prior convictions are not prima facie an aggravating factor unless other circumstances are satisfied. The prior convictions in this case did not heighten the significance of retribution, deterrence and the protection of society and therefore should not have been taken into account as an aggravating factor.

Ryan v The Queen (2001) 206 CLR 267; R v McQueeney [2005] NSWCCA 168; R v Blair [2005] NSWCCA 78 (followed)

(iii) The Court is required to sentence appropriately in respect of each offence: Pearce v The Queen (1998) 194 CLR 610 (discussed). It is not appropriate, in relation to particular sentences to adjust those sentences upwards so as to compensate for other sentences, imposed at the same time, that may be lenient.

(iv) To intervene with the sentences imposed, the Court must be of the opinion that some other sentence was warranted in law and ought to have been passed. The offences committed by the applicant were sufficiently serious and the applicant had prior criminal history such that no other sentence was warranted in law.

R v Simpson (2001) 53 NSWLR 704 (followed)

(v) The appropriate course for a sentencing judge to take, where a period has been served in custody pre-sentence, is to backdate the commencement of the sentence. The sentencing judge failed to do so and an adjustment should be made to the non-parole period to take account of this failure.

R v Youkhana [2005] NSWCCA 231; Bushara v The Queen [2006] NSWCCA 8; R v Newman and Simpson (2004) 145 A Crim R 361; [2004] NSWCCA 102 (followed)

(vi) Even though the Court was not relevantly satisfied that some other sentence was warranted in law and should have been passed, the Court should intervene and adjust for the error relating to the non-parole period as the error had “a narrow and discrete effect on the result”.

R v Burke [2002] NSWCCA 353; Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 (followed)

CCA 2005/1851

BEAZLEY JA
SIMPSON J
ROTHMAN J

24 July 2006

McCABE v REGINA

Judgment

1 BEAZLEY JA: The applicant appeals pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act) against the severity of sentences imposed on him by his Honour Senior Judge Dive in the Drug Court of New South Wales (the Drug Court) on 8 March 2005. The Drug Court was exercising the jurisdiction of the District Court: s 24 of the Drug Court Act 1988 (NSW) (the Drug Court Act). The sentences were imposed in respect of a number of 'break, enter and steal' offences charged on indictment contrary to the provisions of s 112(1) of the Crimes Act 1900 (NSW) (the Crimes Act).

Background

2 At the time that the applicant came before the Court for sentencing in respect of these charges, he was also before the Court for the purposes of being dealt with pursuant to the provisions of s 12 of the Drug Court Act. Section 12 applies where a person’s Drug Court programme has been terminated. Under the section, the Court is required to set aside initial sentences imposed in respect of offences dealt with by the Drug Court under the Drug Court Act and to impose final sentences. In the applicant’s case, initial sentences had been imposed on 2 July 2003 and 19 April 2004. His Honour Senior Judge Dive imposed final sentences in respect of the Drug Court matters.

3 The applicant appealed against the final sentences imposed by the Drug Court. That appeal was heard and determined by me as a single judge of the Court of Appeal pursuant to the provisions of s 5AF(3) of the Criminal Appeal Act (the s 5AF appeal): McCabe v Regina [2006] NSWCCA 160. The history of the matter, and the facts and circumstances relevant to the applicant being placed upon a Drug Court programme and the programme being terminated are reviewed in full in that judgment.

4 The sentences imposed for offences which are the subject of the present application for leave to appeal were as follows:

Offence	Offence date	Sentence Imposed
1	Break, enter and steal [plus Form 1 containing 7 counts of disposing of property]	30/12/03	2 yrs 6 months NPP tdf 22/3/06; 4 years total term
2	Break and enter with intent to steal	30/12/03	2 yrs 6 months NPP tdf 22/3/06; 4 years total term
3	Aggravated break, enter and steal	13/01/04	2 yrs 6 months NPP tdf 22/3/06; 4 years total term
4	Break, enter and steal	6/4/04	2 yrs 6 months NPP tdf 22/3/06; 4 years total term
5	Break, enter and steal	27/9/04	2 yrs 6 months NPP tdf 22/3/07; 4 years total term

5 His Honour Senior Judge Dive also dealt with two summary offences on that date, being an offence of 'state false name' in respect of which his Honour imposed a fine of $100 and an offence of 'resist police' in respect of which his Honour imposed a fixed term of imprisonment of two months, to date from 22 March 2006.

6 The commencement dates of 22 March 2006 (offences 1 – 4 in the table) and 22 March 2007 (offence 5 in the table) reflected the fact that these sentences were made partially concurrent and partially cumulative upon the final sentences imposed by his Honour in respect of an indictable offence of 'break, enter and steal' under s 12 of the Drug Court Act. The Drug Court offences in respect of which the applicant was dealt with under s 12 on 8 March 2005 are set out at [9], Tables 1 and 2 in [2006] NSWCCA 160.

7 The applicant seeks leave to appeal on three grounds:

Ground 1: that his Honour Senior Judge Dive erred in taking into account as an aggravating factor pursuant to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes (Sentencing Procedure) Act ), the fact that there were " multiple victims across this range of offending ";

Ground 2: that his Honour Senior Judge Dive erred in taking into account the applicant's prior convictions as an aggravating factor; and

Ground 3: that his Honour Senior Judge Dive erred in failing to have regard to the applicant's pre-sentence custody in setting the non-parole period.

Ground 1

8 The applicant, in his s 5AF appeal, raised this same ground. In my judgment on that appeal I found that this ground had been made out and that the trial judge had erred in his application of s 21A(2)(m): [2006] NSWCCA 160.

9 His Honour's comment, which it is alleged is wrong in law, was contained in the following passage:

"The aggravating factors are the offender's record of previous convictions, the damage that was done especially to the block of home units, that the latter offences were committed when the defendant was on conditional liberty of a Drug Court programme, that in relation to the block of units, there was certainly a series of criminal acts involving the same block of units, and there are certainly multiple victims across this range of offending ." (Emphasis added)

10 In finding that his Honour erred in the application of s 21A(2)(m), I construed the reference to "multiple victims across this range of offending" as relating to the "series of criminal acts involving the same block of units". I observed that the applicant had been charged separately with the offences that related to the block of units, so that whilst there were multiple offences, there were not, in relation to each offence, multiple victims. Accordingly, in accordance with this Court's decision in R v Tadrosse [2005] NSWCCA 145, I held that his Honour had erred in his application of s 21A(2)(m): see [2006] NSWCCA 160 at [23] – [26].

11 In his supplementary submissions in this matter, the applicant submitted that the reference in his Honour's Remarks on Sentence to "this range of offending" was a reference to the entirety of the offences with which his Honour was dealing and was not restricted to the block of units. It was submitted that this was the natural meaning of the words and, further, that his Honour had been careful to exclude the block of units from the reference to multiple victims because, in relation to the unit block, the offences were all committed against a single victim, namely, the owner of the block, Dancorell Constructions Pty Limited. The applicant submitted, therefore, that the reference to "multiple victims" must have been a reference to all the offences subject of both the s 5AF appeal and this matter.

12 On reflection, this appears to be a correct construction of his Honour's remarks. Approaching the matter on that basis, the same principle of law applies with the same result; namely, that his Honour erred in the application of s 21A(2)(m). It follows that Ground 1 has been made out.

Ground 2

13 The applicant contends that the trial judge erred in taking into account his prior convictions as an aggravating factor. This ground was also raised in the s 5AF appeal: Ground 2(b). I held that that ground of appeal had also been made out: see [2006] NSWCCA 160 at [37] – [42], where I said:

"37 In his Remarks on Sentence the trial judge included as an aggravating factor the appellant's record of previous convictions. His Honour's finding was intended to reflect the specification in s.21A(2)(d) that the Court is to take into account as an aggravating factor the fact that 'the offender has a record of previous convictions '.
38 It was submitted on behalf of the appellant that his Honour erred in doing so because s.21A(4) specifically provides that the list of aggravating factors is subject to ' the rule of law '. In R v Blair [2005] NSWCCA 78 Grove J (James and Barr JJ agreeing) at [53] said in relation to s.21A(4):
'.. it is unfortunate that the legislature has included ‘a record of previous convictions’ in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to ‘rule of law’ to do so. ‘Rule of law’ is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that [a] prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection: Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193.'
39 Counsel for the appellant also referred to R v McQueeney [2005] NSWCCA 168 where Latham J (Grove and Howie JJ agreeing) said at [18]:
'It is therefore strictly incorrect for a sentencing Judge to refer to an offender's criminal history as an aggravating feature of the offence for the purposes of s.21A of the Crimes (Sentencing Procedure) Act .'
40 In Ryan v The Queen (2001) 206 CLR 267 Gummow J said at [67] that whilst good character might operate in mitigation, the bad character of an offender did not aggravate the offence 'because a person is not to be punished or punished again for crimes other than that for which sentencing is passed'.
41 The Crown submitted that the appellant's criminal record was such that he had manifested ' a continuing attitude of disobedience of the law so that retribution, deterrence and the protection of society indicated that a more severe penalty was warranted '. It followed, on the Crown's submission, that the Court was entitled to take the appellant’s criminal record into account when imposing sentences for the offences for which he was then before the Court. It was submitted that the appellant's reliance upon the statement by Latham J in R v McQueeney was misguided in the sense that it failed to have regard to her Honour's further comments that the offender’s antecedent criminal history in that case ' considerably heightened the significance of retribution, deterrence and the protection of society in the formulation of an appropriate penalty ' (at [18]).
42 In my opinion, the sentencing judge failed to understand the manner in which an offender’s previous criminal history is relevant to the sentencing process. When dealing with this matter his Honour referred first to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act and then to the 'aggravating and mitigating circumstances set out in s.21A' . His Honour then listed the aggravating factors relating to the offender, including his record of previous convictions. His Honour did not at any stage refer to the provisions of sub-s.4 nor did he have regard to the statements of principle relating to the use to which prior criminal history may be put. It follows, in my opinion, that this ground of appeal has also been made out."

14 This same reasoning applies to the present matter and it follows that this ground is also made out on this appeal.

15 I should add, in respect of Grounds 1 and 2, the Crown also filed supplementary submissions. In doing so, the Crown relied upon its submissions previously filed on 2 February 2006. The thrust of the Crown's supplementary submissions is directed to the proposition that it has not been shown that the sentences imposed by his Honour are excessive. That leads me to Ground 3.

Ground 3

16 The applicant contends that his Honour Senior Judge Dive erred in failing to have regard to the applicant's pre-sentence custody in setting the non-parole period. This issue requires some explanation, most of which is covered in [2006] NSWCCA 160, although it is helpful to summarise it briefly again at this point. The applicant was first sentenced, relevantly, on 2 July 2003 by Judge Milson in the Drug Court in relation to the matters which are contained in Table 1 in my judgment [2006] NSWCCA 160 at [9]. On that occasion, his Honour was dealing with a single offence of 'break, enter and steal' on indictment and a further offence of 'break, enter and steal' which was dealt with summarily. There were four other summary offences dealt with on that occasion. At the time of sentence on 2 July 2003, the applicant had been in custody for five months and one week. In sentencing the applicant in respect of each of the offences of 'break, enter and steal', his Honour indicated that he would impose a sentence of 18 months, but reduced it by the period of five months and one week, being the period that the applicant had been in custody, resulting in the imposition of a total sentence of one year and three weeks. That sentence was immediately suspended pursuant to s 7(3) of the Drug Court Act.

17 The applicant next came before the Drug Court on 19 April 2004, in respect of seven indictable 'break, enter and steal' offences, which are set out in Table 2 in [2006] NSWCCA 160 at [9]. The applicant was dealt with by Judge Orchiston on that day. Her Honour imposed an effective sentence of four years by way of initial sentence, to be served concurrently with the sentences imposed by Judge Milson on 2 July 2003. The applicant contends, however, and correctly, that there was in fact an accumulation of a period of five months and one week on the Table 1 offences, because of the manner in which Judge Milson had imposed the sentence by reducing the total period of sentence, rather than backdating the sentence, to take account of the period served in custody pre-sentence.

18 The applicant contends that his Honour Senior Judge Dive erred in failing to have regard to the applicant's pre-sentence custody in setting the non-parole period in respect of the offences subject of this matter. The relevant remarks of his Honour on this issue were as follows:

"There will be some accumulation of sentences imposed, and sentences will be partially concurrent. There are also special circumstances which principally relate to there being a need to restore a balance between the total non-parole periods and the total term imposed, so as to allow for an appropriate period of release on parole".

19 The applicant submitted that the total effective sentence was six and a half years with a non-parole period of five years. However, as the sentence was not backdated to take into account the pre-sentence custody served prior to commencing the Drug Court programme, that period, of five months and one week, needed to be taken into account so as to properly reflect the 'real' sentence which had been imposed, namely, a period just short of seven years, with a non-parole period of five and a half years.

20 It was submitted that when account was taken of the pre-sentence custody period, the effect was that the ratio between the real sentence and the non-parole sentence of five and a half years was over 78 per cent. It was submitted that this was unusually punitive and resulted from the historical accident of the pre-sentence custody having been taken off the sentence.

21 The applicant submitted that, when regard was had to the 25 per cent discount that was allowed for the plea of guilty, his Honour commenced with a starting point for the offences subject of this application for leave to appeal of six years eight months and a non-parole period of four years eight months. It was submitted that that, when regard is had to the sentences as a whole, the real period is just short of seven years with a non-parole period of five and a half years. Assuming a discount of 25 per cent, given the pleas of guilty for all offences, the starting point in relation to the total sentence imposed was nine years four months, with a non-parole period of seven years four months. It was submitted that the total sentence was excessive and that some other sentence was warranted: see s 6(3) of the Criminal Appeal Act.

22 In the decision on the s 5AF appeal, I declined to re-sentence the applicant, notwithstanding having found error by the trial judge in the sentencing process. This was because I considered that the sentences were, in any event, "extremely lenient": see [2006] NSWCCA at [49].

23 The applicant submitted that, accepting that the sentences imposed in respect of the Drug Court matters were lenient, it was not permissible to ‘compensate’ for this by adjusting the present sentences upwards. As I understand the submission, it was that the present sentences were excessive and that the Court should not decline to interfere simply because the total sentence imposed (that is the combination of the lenient sentences in the Drug Court matters and the present sentences) may not have been excessive. In other words, the Court was required to sentence appropriately in respect of these offences: see Pearce v The Queen (1998) 194 CLR 610.

24 I do not cavil with that submission. However, that does not answer the question whether this Court ought to intervene. Section 6(3) of the Criminal Appeal Act provides that before this Court will intervene, it must be of the opinion that "some other sentence … is warranted in law and should have been passed". As Spigelman CJ pointed out in R v Simpson (2001) 53 NSWLR 704 at [79], unless the Court, having identified error in the requisite sense, forms such positive opinion, "the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied": see also Sully J at [100].

25 The offences subject of this application for leave to appeal were serious offences. Each was charged on indictment and carried a maximum penalty of 14 years' imprisonment. The Court, in respect of one offence, dealt with additional matters contained on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act. One offence was committed in the serious circumstance where the victim was on the premises and had to confront the applicant: s 21A(1). All offences were committed whilst the applicant was on conditional liberty: s 21A(2)(j).

26 Further, as I observed in my judgment in the s 5AF appeal at [45], due to the applicant's prior criminal history, consideration must be given to personal deterrence and the protection of society. The applicant was engaged in continuing criminal activity that was at times intensely concentrated; these offences are discussed in the s 5AF appeal.

27 In my opinion, when regard is had to the total sentences imposed for the five offences, I am not satisfied that some other sentence is warranted in law and should have been passed.

28 The applicant further contends that, even if the Court reaches that conclusion, an adjustment should still be made to the non-parole period to take account of the failure of the trial judge to backdate the sentence to take into account the time that the applicant was in custody prior to first appearing before the Drug Court for initial sentence. In my opinion, his Honour's approach in deducting that period from the sentence rather than backdating the sentence was erroneous: see R v Youkhana [2005] NSWCCA 231; Bushara v The Queen [2006] NSWCCA 8.

29 In Youkhana, Howie J, with whom Spigelman CJ and Hunt AJA agreed, pointed out at [10] that this Court has consistently indicated that the appropriate course for a sentencing judge to take where a period has been served in custody pre-sentence, is to backdate the commencement of the sentence: see also R v Newman and Simpson (2004) 145 A Crim R 361; [2004] NSWCCA 102. In Youkhana, the Court also pointed out that it was an error for the sentencing judge to deduct from the appropriate sentence the period already served in custody and then to apply the statutory ratio of 75 per cent.

30 The applicant submits that this particular error is one that had "a narrow and discrete effect on the result": see R v Burke [2002] NSWCCA 353 per Sperling J at [88]; Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [123]. Accordingly, even if the Court was not relevantly satisfied that some other sentence was warranted in law and should have been passed, the Court should intervene and correct this discrete error.

31 I agree with the applicant's submission. There is no reason in law not to make the adjustment required and every reason to do so. There is nothing in the trial judge's Remarks on Sentence to indicate that the relationship between the non-parole periods and the total sentences imposed was other than as he intended or were outside his sentencing discretion as submitted by the Crown. In my opinion, the Court should take account of the total effective sentence, including the five months and one week spent in custody prior to the imposition of the initial sentences. For the purposes of mathematical ease, it is appropriate to treat that as a period of seven years: see [19] above. Taking a non-parole period of 75 per cent would result in a non-parole period of five years and three months. Accordingly, I propose the following Orders:

1. Grant leave to appeal;

2. Appeal allowed in part;

3. Vary the non-parole period in respect of the offence of 'break, enter and steal' committed on 27 September 2004 so as to provide for a non-parole period of two years and three months commencing on 22 March 2007, with the applicant being eligible for parole on 21 June 2009.

32 SIMPSON J: I agree with Beazley JA.

33 ROTHMAN J: I agree with Beazley JA.

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