Tracey v The Queen
[2020] ACTCA 51
•2 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Tracey v The Queen | ||||||||||
| Citation: | [2020] ACTCA 51 | ||||||||||
| Hearing Date: | 2 November 2020 | ||||||||||
| Decision Date: | 26 November 2020 | ||||||||||
| Before: | Murrell CJ, Burns and Abraham JJ | ||||||||||
| Decision: | Appeal dismissed. | ||||||||||
| Catchwords: | APPEAL – Sentence – whether the sentencing judge took into | ||||||||||
| account facts which were not properly attributable to the | |||||||||||
| offences charged – whether the sentence imposed was manifestly excessive – whether concurrency and accumulation was within range – error not established – appeal dismissed | |||||||||||
| Legislation Cited: | Criminal Code 2002 (ACT) Dictionary (definition of ‘offensive | ||||||||||
| weapon’) | |||||||||||
| Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Dawson v The Queen [2019] ACTCA 9 Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; 79 NSWLR 1 Fusimalohi v The Queen [2012] ACTCA 49 House v The King (1936) 55 CLR 499 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Millard v The Queen [2016] ACTCA 14 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 The Queen v De Simoni (1981) 147 CLR 383 R v Jones [2004] VSCA 68 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Steen [2020] ACTSC 222 R v Tracey [2020] ACTSC 28 Heard v The Queen [2015] ACTCA 6 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Weininger v The Queen [2003] HCA 14; 212 CLR 629 Wong v The Queen [2001] HCA 64; 207 CLR 584 | ||||||||||
| Parties: | Ronald Tracey (Appellant) | ||||||||||
| The Queen (Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| S McLaughlin (Appellant) K McCann (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | AC 11 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| THE COURT: |
1. On 10 February 2020, after pleading guilty to nine offences, the appellant was
sentenced to an aggregate sentence of seven years and eight months’ imprisonment, from 4 March 2019 to 3 November 2026. A nonparole period of 50 months’
imprisonment was imposed, from 4 March 2019 to 3 May 2023.
2. The sentencing judge imposed the following individual sentences:
Incident 1
(a) for burglary between 8 and 22 February 2019 (CC2019/8085) at Gungahlin, a sentence of 29 months’ imprisonment, from 4 March 2019 to 3 August 2021;
(b) for theft between 8 and 22 February 2019 (CC 2019/8135) at the same premises, a sentence of 10 months’ imprisonment, from 4 December 2020 to 3
October 2021;
Incident 2
(c) for obtaining property by deception between 22 and 23 February 2019 (CC 2019/2798), a sentence of 10 months’ imprisonment, from 4 June 2021 to 3
April 2022;
Incident 3
(d) for burglary on 2 March 2019 (CC 2019/8904) at Ainslie, a sentence of 35 months’ imprisonment, from 4 May 2021 to 3 April 2024;
(e) for theft on 2 March 2019 (CC 2019/6609) at the same premises, a sentence of 10 months’ imprisonment, from 4 August 2023 to 3 June 2024;
(f) for possessing an offensive weapon on 2 March 2019 (CC 2019/8905) at the same premises, a sentence of three months’ imprisonment, from 4 May 2024
to 3 August 2024;
Incident 4
(g) for aggravated burglary on 2 March 2019 (CC 2019/3448) at Braddon, a sentence of 38 months’ imprisonment, from 4 June 2023 to 3 August 2026;
(h) for assault on 2 March 2019 (CC 2019/3444) at Braddon, a sentence of five months’ imprisonment, from 4 May 2026 to 3 October 2026; and
Incident 5
(i) for possessing a knife without a reasonable excuse on 4 March 2019 (CC
2019/2800) in Reid, a sentence of two months’ imprisonment, from 4
September 2026 to 3 November 2026.
3. The appellant has been in custody in relation to these offences since his arrest on 4 March 2019. On 5 April 2019, he entered pleas of not guilty. Subsequently, he pleaded guilty to some offences on 27 August 2019 and to the remainder on 26 November 2019.
4. When the matter came before the sentencing judge on 10 February 2020, the sentencing judge received a Crown tender bundle that included an agreed statement of facts. Victim impact statements were read. His Honour received a letter written by the appellant. The appellant did not give evidence. After hearing submissions, the sentencing judge adjourned for approximately one and a half hours before imposing sentence.
5. The appellant appealed the sentences imposed, raising four grounds:
(a) Ground 1: In relation to the charge of obtaining property by deception (CC 2019/2798), the sentencing judge took into account facts that were not properly attributable to that offence; (b) Ground 2: In relation to the charge of burglary (CC 2019/8904), the sentencing judge took into account facts that were not properly attributable to that offence; (c) Ground 3: In relation to the charge of aggravated burglary (CC 2019/3448), the sentencing judge took into account facts that were not properly attributable to that offence; and (d) Ground 4: The total sentence imposed is manifestly excessive. 6. For the reasons below, we find that the appellant has not established any ground of appeal and the appeal must be dismissed.
Consideration
Grounds 1, 2 and 3: taking into accounts facts not attributable to the offence
7. The sentencing judge was faced with the task of sentencing the appellant for multiple offences, some of which were committed on different occasions.
8. Each of the first three grounds of appeal allege that, in considering some offences, the sentencing judge took into account facts that were not attributable to those offences.
9. These grounds allege a breach of the principle in R v De Simoni (1981) 147 CLR 383 at 389 (De Simoni), which requires that an offender be sentenced only for the offence(s) charged, and not for conduct that could have been separately charged: see also Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [31] (Pearce); Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [32]. Although there has been some suggestion that the principle only applies to more serious crimes, the principle is not so confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [18].
10. Properly read, the sentencing remarks reflect that the sentencing judge did not breach
the principle in De Simoni. Moreover, contrary to the appellant’s contention, the lengths
of the sentences imposed do not reflect that De Simoni has been breached. The issue of the length of sentences will be addressed in more detail when we consider the argument that the sentences are manifestly excessive.
11. Care should be taken when considering sentencing remarks that, although strictly not ex tempore remarks, were delivered orally very shortly after the conclusion of the sentencing hearing. Further, consideration must also be given to the structure of the sentencing remarks and the reasons must be read as a whole.
12. At the outset of his Honour’s remarks, the sentencing judge set out clearly and
accurately each of the offences for which the appellant was to be sentenced, together with the maximum penalty for each offence. Thereafter, his Honour recited the facts of the offences, which were the subject of agreement.
13. At least some of the criticisms associated with these grounds of appeal were such that, if they were of concern, they could and should have been raised at the conclusion of the oral imposition of the sentences. Moreover, some of the submissions that were advanced on the appeal appeared to be inconsistent with the approach that had been taken below.
Obtaining property by deception
14. As to Incident 2, the offence of obtaining property by deception (the subject of the first
ground of appeal), the appellant’s submission was based primarily on a statement
made by the sentencing judge when his Honour began to state the facts of the offences; his Honour said the appellant was to be sentenced for offences which
“involve the offender entering four different homes without permission of the residents”:
at [3]. However, the offender was only charged with three burglaries, although the
credit card used in the offence of obtaining property had been stolen in a burglary.15. Apart from this matter, the recitation of the facts accorded with the agreed statement of facts, and no issue was taken with the accuracy thereof.
16. Relevantly, the sentencing judge described the offending in relation to the obtaining property offence at [5] as follows:
Between 22 and 23 February 2019, a burglary occurred at an address in Reid. A handbag containing a Visa Card and a Mastercard belonging to TD was stolen, along with other items. A series of transactions totalling $617.76 were subsequently made using the two cards. The transactions included purchases at Liquorland in the Canberra Centre, Coles Supermarket,
L’Occitane Canberra Centre and purchases of Calvin Klein underwear. Police later viewed
the CCTV footage from Liquorland Canberra Centre which captured a person identified as the offender making a transaction on 23 February 2019. At no time did TD give the offender permission to use her cards to make any purchases. This gives rise to charge CC2019/2798 (obtaining property by deception).
17. That recitation was correct and accorded with the agreed statement of facts.
18. There is no reason to infer that the sentencing judge sentenced for anything other than the offence to which the appellant pleaded guilty and in accordance with the agreed facts in relation to that offence, as set out in the reasons. There is no proper basis to infer that the appellant was sentenced for the offence of obtaining property by deception on the basis that he had committed the associated burglary. The offence of obtaining property by deception has a lower maximum penalty than burglary. The offence was a rolled-up count, which rendered the offending objectively more serious, but the offender was only exposed to the maximum penalty for a single offence: R v
Jones [2004] VSCA 68 at [13]. The penalty that was imposed was only 10 months’
imprisonment, substantially less than that imposed for the counts of burglary. In contrast to the burglary sentences, it was made wholly concurrent with sentences for other offences.
19. The appellant has not established that the misstatement by the sentencing judge resulted in his Honour taking an irrelevant matter into account.
Burglary
20. As to Incident 3, the subject of the second ground of appeal, the appellant’s argument
was primarily based on a reference in the sentencing remarks to the burglary offence as an offence of aggravated burglary. On that basis, the appellant contended that he was sentenced for the burglary on the basis that the possession of the box cutter, which was a separate offence, was a circumstance of aggravation for the burglary offence.
21. As noted above, the sentencing judge identified the offence correctly at the outset of the judgment. The offence is also correctly identified at the conclusion of the reasons, which lists the sentences imposed for each offence. There is no basis to conclude that the reference to aggravated burglary on one occasion in the remarks was anything other than a slip.
There is also no proper basis to the appellant’s submission that, in sentencing for this
burglary offence, the sentencing judge erroneously took the appellant’s confrontation
with the occupant of the premises into account. A proper reading of the sentencing
remarks does not bear that out.23. In relation to this burglary, the sentencing judge described the facts as follows (at [6]):
At approximately 4:45pm on 2 March 2019, LT, DL and EL returned to their residence in Foveaux Street, Ainslie. The property had been secured prior to leaving at around 3:00pm to go shopping. At the front door of the residence EL observed a person in the house through a window. He alerted the others to this. They were unloading the shopping. EL attempted to unlock the front door while LT went around the back of the house. As he got to the back of the house, he was met by the offender who was wearing a bright blue windbreaker and had three backpacks, including a grey mountain design backpack. He was on a blue bike. This is the offence of burglary (CC2019/8904).
24. The sentencing judge’s remarks at [6] accurately recited the agreed statement of facts.
25. When considering the objective seriousness of the offence, the sentencing judge found that (at [22]):
The aggravated burglary on the premises in Foveaux Street, Ainslie (residence three) involved a residential as opposed to commercial or public building. It involved a burglary at a time when people were likely to be home, that is an afternoon on a weekend. It did in fact lead to an interaction with the residents. It is in the mid-range of objective seriousness.
26. Those observations were entirely consistent with the agreed facts. The appellant now contends that the confrontation is not relevant because the burglary had ended, but during the sentencing hearing, no objection was taken to the relevance of that fact. The offence was committed at a time when the residents were likely to be at home and there was the risk of an interaction between with them, and that risk materialised. It was relevant to take the interaction into account.
27. Immediately after that finding concerning the objective seriousness of the burglary, but quite separately, in relation to the offensive weapon the sentencing judge found (at
[23] ): The possession of the box-cutter with an intent to use it in an offence involving actual or threatened violence is in the mid-range of objective seriousness. Although the weapon is not the most serious, the intent was very clearly expressed.
28. Plainly, the sentencing judge was careful to distinguish between the two offences.
29. It follows that there was no breach of the principle in De Simoni.
Aggravated burglary
30. As to Incident 4, the subject of the third ground of appeal, the complaint was that the sentencing judge erroneously took into account a confrontation with the residents when sentencing the appellant for the offence of aggravated burglary.
31. Again, the recitation of the facts in relation to this offence accords entirely with the
agreed statement of facts. At [10]–[13], the sentencing judge stated:
Later that day (2 March 2019) at approximately 6:30pm, LI, DI and their six-year-old son returned to their residence in Braddon. The house had been secured prior to them leaving. DI noticed that his bike was in the front yard of the residence. LI noticed that her bike was in the yard. LI noticed that the front bedroom window as [sic] open. When LI, with her son, was directly in front of the screen door, she saw a male inside that appeared to be crouching over in the front hallway. She noticed that her sewing cabinet was askew, and the male appeared to be accessing it. That male was later identified to be the offender.
LI yelled out to DI words to the effect of "we're being robbed". This caused the offender to run towards the back of the house. DI moved towards the rear of the property via the rear gate. LI called the police. DI reached the rear of the yard as the offender was leaving the residence through the backdoor. DI confronted the offender in the yard and said words to the
effect of "what are you fucking doing in my house?" The offender replied, “fuck you, you
dog."
DI noticed that the offender was carrying a number of bags and backpacks belonging to himself and LI. DI told the offender to give his possessions back. The offender responded
with words to the effect of "I'll stab you dog" and “I will do you, ya dog." DI saw that the
offender was holding a large yellow handled flat head screwdriver. While making the threats, he was making a stabbing gesture with the screwdriver. DI yelled out that the offender had a screwdriver. The offender continued to move from the rear yard to the front yard while carrying the bags. He walked backwards while being followed by DI who remained at a safe distance, however every time he attempted to get closer the offender made a stabbing motion with the screwdriver. The offender had difficulty getting through the gate due to the number of bags that he was carrying.
As DI made a further demand to drop the bags, the offender dropped one of the bags he was carrying, followed by another shortly after. The offender continued moving backwards and facing DI, before pushing over LI's bike which was leaning against the side gate. While trying to get through the side gate, the offender attempted to stab DI with the screwdriver. DI observed the screwdriver to be above the offender's head at that time. These facts gave rise to the aggravated burglary (CC2019/3448).
32. There was no suggestion before the sentencing judge that the material was irrelevant.
33. In assessing the objective seriousness of the aggravated burglary, at [25], the sentencing judge concluded that:
The aggravated burglary committed at Ijong Street in Braddon (residence four) is in the mid- range of objective seriousness and more serious than that of residence three. Not only did it involve a burglary of residential premises on the evening of a Saturday at which time persons may well be at home, it involved a methodical ransacking of the contents of the house and collection of the items intended to be stolen. It involved a direct confrontation with the occupants as the offender attempted to escape.
34. The offensive weapon that was relied upon as evidencing a circumstance of aggravation was a screwdriver.
35. The appellant accepted that, per se, a screwdriver is not an offensive weapon. Rather,
the Crown must establish that the particular screwdriver was either “adapted for use for causing injury to or incapacitating a person”, or possessed “with the intention of using, or threatening to use [it], to cause injury to or incapacitate someone else”: see the
definition of “offensive weapon” in the Dictionary of the Criminal Code 2002 (ACT).
What the appellant did with the screwdriver was relevant to establishing those matters. At least, what occurred in the backyard was relevant to establishing that the screwdriver was an offensive weapon and therefore that an aggravated burglary had been committed.
36. The appellant has not established that the sentencing judge took any erroneous factor into account when sentencing for the offence of aggravated burglary.
Ground 4: manifest excess
37. The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge,
although when and how the error occurred is not apparent from the judge’s reasons:
Wong at [58]; Hili at [58]–[59], [75]–[76].38. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
39. The appellant submitted that the individual sentences were manifestly excessive, as was the total sentence. He also made submissions addressing the degree of concurrency and accumulation that had been ordered.
40. Two submissions were prominent, the first of which underpinned the appellant’s
argument.
41. First, it was submitted that the burglary sentences were excessive based on the observation by Refshauge J in Fusimalohi v The Queen [2012] ACTCA 49 at [51]
(Fusimalohi), that “sentences for burglary of residential premises in this jurisdiction are
generally within the range of imprisonment for from one year to two years and six
months”. It was submitted that the starting point for the appellant’s offences, which
were characterised by the appellant as “typical” burglaries, were outside that range.
42. Second (and of less prominence) was the submission that the general practice is that sentences for theft offences in relation to property taken during a burglary are made completely concurrently with the sentence for the burglary.
43. The appellant’s reliance on each of those propositions, in the manner in which the
argument was advanced, was misplaced.
The appellant’s first submission
The appellant elevated the significance of Refshauge J’s observation in Fusimalohi to a
position that it does not have. The observation must be considered in the context in
which it was made. At [48]–[53] in Fusimalohi, Refshauge J stated:
Mr M Hassall, who appeared for Mr Fusimalohi, provided the Court with a table of decisions of both this Court and the Supreme Court in matters of burglary. It had limited value for in many cases it was not clear from the table what sentence had been imposed for burglary where there were multiple offences dealt with at the same time.
To determine what “the collective wisdom of judges” actually is can be difficult in the case of
a single offence, but where there are multiple offences, different almost always in nature and
circumstances, it becomes almost impossible to find useful comparisons.Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were
present in the premises and the offender’s antecedents may all require a more severe
sentence. There will be also other aggravating factors.
For each sentence for burglary, Mr Fusimalohi was sentenced to a term of imprisonment that was within this range; indeed it was below the upper level of it. Clearly, too, a more severe sentence for the much more serious offence of aggravated burglary was warranted.
45. It is plain from that passage that the Court was not being asked, nor was it provided with sufficient relevant material, to determine the appropriate range of sentences for burglary offences generally. The reasons were no more than a view expressed having considered specific cases, in the absence of a discussion of the factual bases of the sentences in those cases. Refshauge J addressed neither what amounted to a
“typical” case nor whether the range that his Honour mentioned related to matters
involving a guilty plea; considerations that necessarily would have been addressed if
pursuing the task of determining a generally appropriate range of sentences.
Importantly, the plurality in that case did not adopt Refshauge J’s comment. To the
contrary, having considered the detail of the cases relied upon by the appellant at [11]–
[14] , Burns and Lander JJ concluded at [15] that: These cases simply underline the proposition that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender. The fact that other offenders have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive.
47. That said, Refshauge J’s comments were cited in Dawson v The Queen [2019] ACTCA
9 at [5], although it appears that it was not necessary to consider the circumstances of the comments. The comments have been referred to in other cases, for example Heard
v The Queen [2015] ACTCA 6 at [27]–[32] and Millard v The Queen [2016] ACTCA 14 at [44]–[45] (Millard), although in both cases the judgment of the plurality was also
referred to. In Millard, referring to the plurality in Fusimalohi, the Court recognised at
[44] that there was no “tariff” for burglary offences.
48. Comparable cases play a limited role in sentencing. In Hili, at [54], the High Court discussed the relevance of past sentences, referring to the comments of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 as accurately reflecting the position, and stated:
That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise
to the sentence that 'unifying principles' may be discerned”.
[citations omitted]
49. As the High Court emphasised, the consistency that is sought in sentencing is consistency in the application of the relevant legal principles: Hili at [49]. Consistency is not demonstrated by, and does not require, numerical equivalence: Hili at [48].
50. Refshauge J’s comment as to range must be considered in their context. That a
sentence falls outside the range mentioned by his Honour does not, in isolation, establish that the sentence is manifestly excessive. Such a submission is of little assistance. Rather, each case must be considered on its own facts, and comparable cases must be considered in the manner explained in Hili. As was made clear by the plurality in Fusimalohi, the facts of the cases relied on by the offender in that case were distinguishable. The plurality judgment highlighted the need to consider each case individually.
The appellant’s second submission
51. We now turn to the proposition that there is a general practice that a sentence for theft associated with a burglary is made wholly concurrent with the sentence imposed for the burglary.
52. The appellant contended that, as there was some accumulation between the sentences in this case, the total sentence was manifestly excessive.
53. The principles in relation to concurrency and accumulation were conveniently summarised in Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [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.
54. The offence of burglary is not necessarily associated with actual theft. It is committed if an offender, inter alia, has an intention to commit a theft. If the offender steals property, bringing the intention to fruition, the separate offence of theft may be charged as a separate offence.
55. The authorities upon which the appellant relied, R v Steen [2020] ACTSC 222 and Blundell v The Queen [2019] ACTCA 34, do not establish the asserted general practice.
56. In any event, a general practice should not dictate a decision as to concurrency and accumulation in a particular matter. Nor can a general practice of concurrency alone render a sentence manifestly excessive because there was a degree of accumulation.
57. A sentencing judge must apply the relevant principles to the facts of the case to determine what, if any, degree of concurrency or accumulation should be ordered.
58. Further, as a decision about concurrency and accumulation involves the exercise of a discretion, to succeed an appellant must establish a House v The King (1936) 55 CLR 499 error in the exercise of the discretion.
59. In this case, the appellant did not allege that the decision concerning concurrency and accumulation was infected by an error in the exercise of discretion. Rather, the submission was a general one alleging manifest excess.
60. The appellant has established neither that the sentences for the individual offences are manifestly excessive nor that the total sentence is manifestly excessive.
61. The sentencing judge made findings as to the objective seriousness of the offences at
[20]–[27] and the appellant’s subjective circumstances at [28]–[39]. The appellant’s criminal history was addressed at [40], the plea of guilty at [41]–[42], and the time spent
in custody at [43]. There was no challenge to any of those findings. The sentencing
judge considered the relevant factors. As the sentencing judge concluded at [44]–[48]:
The offending involves serious property offences involving the threat of violence committed in relation to ordinary residences in the Territory. Two of the burglaries involved confrontation with the residents of the premises. The series of offences demonstrate that the offender is a serial, methodical burglar. He searches thoroughly and intrusively for items to steal. He is prepared to threaten serious violence upon the residents who confront him. His conduct is consistent with the use of proceeds of his crime to support his methamphetamine use.
The offender has a dreadful criminal history. It must be recognised that the consequences of his deprived upbringing and early involvement with the criminal justice system have ongoing consequences. Having said that, it is apparent that notwithstanding extensive periods in custody for a variety of serious offending he remains a recalcitrant recidivist. It is notable that the pre-sentence report identified methamphetamine use since the age of 28. It does not provide an explanation for his extensive criminal history prior to that age.
Very clearly, specific deterrence must remain an important sentencing consideration. However, community protection, denunciation and recognition of the harm to the victims must also be very prominent sentencing considerations. So too must general deterrence. There can be no doubt that crime caused by methamphetamine use is an extremely serious problem. There remains some prospect of rehabilitation which must be considered having
regard to the offender’s stated willingness to engage in a rehabilitation program targeted at
his methamphetamine use and his age. The updated pre-sentence report contains some positive signs of engagement with programs likely to assist with his rehabilitation. It must be recognised however that his prospects of rehabilitation can, having regard to his criminal history, only be described as guarded. Having said that, because of his age and the possibility that he will demonstrate by his conduct in prison that he remains, over the long- term, motivated to rehabilitate himself, I will set a non-parole period which might be shorter than otherwise appropriate having regard to his criminal history. That will give him the potential for release on probation if over the years of his sentence his conduct warrants it.
Having regard to the seriousness of the offending and the offender’s poor criminal history, in
my view the only appropriate sentences are ones of imprisonment. Each of the sentences I impose incorporate a discount of approximately 20%, although the shorter sentences may involve somewhat greater reduction because of the rounding to the nearest month.
I have provided a degree of concurrency between the sentences where the offending is related. Where the offending is separate, I have nevertheless allowed a degree of concurrency having regard to issues of totality.
62. The findings in that conclusion were not challenged. They were plainly open to the sentencing judge.
63. The sentencing remarks reflect that the sentencing judge considered the appropriate sentence for each offence and then turned to questions of concurrency, accumulation, and totality: Pearce at [47].
64. Given the nature of the offences and relevant sentencing principles, it has not been demonstrated that the individual sentences are outside the range of sentences properly available. It was open to the sentencing judge to order some degree of accumulation in relation to the offences the subject of each incident. The appellant has not demonstrated that the total sentence is manifestly excessive.
65. Apart from the references to Fusimalohi and the general practice in relation to sentences for burglary and theft, the appellant did not really argue any basis on which the sentences were manifestly excessive, or explain why the degree of accumulation or
concurrency was not within the sentencing judge’s discretion.
66. In so far as it was suggested that the sentences were excessive because the sentencing judge erroneously took irrelevant matters into account, for the reasons
explained in relation to Grounds 1–3, that underlying proposition has not been
established.
67. We do not accept the appellant’s contention that the longer sentence imposed for the
burglary offence in Incident 3 must reflect that the sentencing judge took an irrelevant matter into account. The circumstances of the two offences were different. The burglary offence in Incident 3 was committed two weeks after Incident 1, on a Saturday afternoon when it was likely that the residents would be at home; the residents were in fact at home and there was interaction between the residents and the appellant. These different facts explain the differences in the sentences.
68. Although the incidents were separate, the sentencing judge allowed some concurrency in relation to the sentences for the three burglaries. The appellant committed the aggravated burglary offence (Incident 4) after being confronted by a resident during the previous burglary. He was not deterred by that encounter and chose to commit another burglary at a time when it was likely a resident would be home, despite knowing of the risk of confrontation.
69. The sentences were structured so that the sentences for the two thefts, obtaining property by deception, and possession of an offensive weapon were wholly subsumed in the burglary sentences. The nonparole period was only approximately 50 percent of the head sentence; in all the circumstances, it was generous.
70. The degree of concurrency and accumulation was well within the sentencing judge’s
discretion.
Conclusion
71. As the appellant has not established any ground of appeal, the appeal is dismissed.
I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of Chief Justice Murrell, Justice Burns and Justice Abraham.
Associate:
Date:
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