Tweedie v R

[2015] NSWCCA 71

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tweedie v R [2015] NSWCCA 71

Hearing dates:

16 April 2015

Decision date:

16 April 2015

Before:

Basten JA at [53];
R A Hulme J at [1];
Adamson J at [59]

Decision:

1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – dishonesty offences – fraud – larceny – goods in custody – whether judge’s rejection of applicant’s evidence of remorse procedurally unfair –where evidence not challenged in cross-examination – where no indication given at hearing that evidence was to be accepted – open to the judge to reject applicant’s evidence of remorse - no denial of procedural fairness

CRIMINAL LAW – appeals – appeal against sentence - aggregate sentencing – whether principles of aggregate sentencing properly applied – criminality of individual offences appropriately assessed - judge not required to detail process of accumulation and application of principle of totality – no error established

CRIMINAL LAW – appeals – appeal against sentence – aggregate sentencing – discount for guilty plea – discount not to be applied to aggregate sentence – discount a matter to be taken into account in determining indicative sentences – no error established

Legislation Cited:

Crimes Act 1900 (NSW) ss 117, 192E, 527C
Crimes (Sentencing Procedure) Act 1999 (NSW)
ss 21A, 22, 53A
Criminal Procedure Act 1986 (NSW) s 166

Cases Cited:

Dang v R [2014] NSWCCA 47
Dinsdale v The Queen (2000) 202 CLR 321
JM v R [2014] NSWCCA 297
Liles v R (Cth) [2014] NSWCCA 289
R v Brown [2012] NSWCCA 199
R v Nykolyn [2012] NSWCCA 219
Subramaniam v R [2013] NSWCCA 159
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36

Category:

Principal judgment

Parties:

Carl Lyle Tweedie (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr J Nicholson SC (Applicant)
Mr P Ingram SC (Crown)
Solicitors:
S Alexander
Solicitor for Public Prosecutions

File Number(s):

2013/236458

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

7 March 2014

Before:

King SC DCJ

File Number(s):

2013/236458

Judgment

1. R A HULME J: Carl Lyle Tweedie ("the applicant") was sentenced by his Honour Judge King SC in the District Court at Gosford on 7 March 2014 in respect of a number of dishonesty offences detailed below. His Honour imposed an aggregate sentence of imprisonment for 4 years with a non-parole period of 3 years dating from 14 February 2014.

Offence and sentence details

2. The aggregate sentence was passed in respect of 27 offences of fraud (that is, dishonestly obtaining property by deception (s 192E(1)(a) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years); 4 offences of attempted fraud (attempting to dishonestly obtain property by deception); and 1 offence of larceny (s 117 – maximum penalty 5 years). It also encompassed 7 summary offences listed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), being offences of goods in custody (s 527C(1)(a) or (c) – maximum penalty 6 months).

3. The fraud and attempted fraud offences occurred between 13 June and 26 July 2013. They involved the applicant using stolen credit cards to obtain (or attempt to obtain) goods at various retail outlets in shopping centres on the Central Coast. The value of goods obtained was in the order of $22,000. Including the value of goods sought to be obtained, the total value was about $25,000 - $30,000.

4. The goods in custody offences concerned the applicant being in possession of stolen credit cards during the periods of the frauds and being found upon arrest on 4 August 2013 to have stolen or otherwise unlawfully obtained goods (a laptop computer and a television) at his home.

5. The larceny offence involved the applicant stealing a wallet and its contents from a bag in a doctor's consulting room at a medical centre on 26 July 2013.

6. Details of the individual offences and the sentences that the judge indicated that he would have imposed if he had not imposed an aggregate sentence are set out in a table annexed to this judgment.   Annexure A (26.9 KB, pdf)

Personal circumstances of the applicant

7. The applicant gave evidence in the sentence proceedings. Tendered on his behalf was a letter written by his domestic partner, Ms Steffani Brassington.

8. The Crown tendered printouts of the applicant's criminal and custodial histories and some documents from the Parole Authority.

9. The applicant was born in 1985. He was aged 27 at the time of the offences.

10. His criminal history commenced in the Children's Court in 2002. He had been dealt with by the Local and District Courts on a number of occasions at fairly regular intervals since that time. His past offences include driving matters, drug possession and matters of violence ranging from assault to robbery in company. He was imprisoned in 2005 but that was reduced to a good behaviour bond on appeal. He received imprisonment to be served by way of periodic detention later the same year. There was a suspended sentence of imprisonment imposed in 2007. In 2011 he received a full-time term of imprisonment for 3 years 6 months, with a non-parole period of 1 year 9 months, for the robbery in company offence. In 2012 he received fixed term sentences of 6 months for four offences of dishonestly obtaining property by deception and an offence of larceny.

11. The applicant was on parole after being released from prison on 14 January 2013. The offences the subject of the present application commenced 5 months later. Parole was revoked following his arrest and he was required to serve the balance of the sentence for the robbery offence from 5 August 2013 until 2 November 2014.

12. The documents from the Parole Authority indicated that parole had been revoked solely because of the further offences which constituted a breach of a condition that the applicant “be of good behaviour”. It would next consider the applicant for parole on the anniversary of his parole eligibility date, namely 6 June 2014.

13. A report to the Parole Authority by a Community Corrections Officer included that the applicant had been residing with his partner and her young son since his release to parole in an apparently stable environment. He had been reporting fortnightly which had been reduced to monthly when he commenced the “Managing Emotions Program” on 17 June 2013. He attended all sessions of that program until he failed to attend on 22 and 29 July. It also indicated that he had been generally compliant with his reporting requirements and had returned negative urine drug screening results.

14. The applicant commenced his evidence by confirming that he had written out “how [he] felt about the matter”. When it became apparent that his solicitor was proposing to tender the document the judge interrupted and suggested that it was preferable that he hear what the applicant had to say orally rather than something pre-prepared in writing. He then gave this evidence:

“Q. What is your attitude in respect to all these matters and the crimes you committed as far as victims go?

A. Basically, I’m ashamed of myself.

Q. Have you identified who you think are the victims in respect to these matters?

A. Yes, we’re all victims of the matters it is not just – like you said the companies and the banks and that. [It] is all of us, we’re all paying for it eventually.”

15. The applicant continued in his evidence to relate how he and his partner had taken up residence in Gosford with her 6-year old son after he had been released on parole. He obtained employment as a machine operator with a kitchen cabinetry manufacturer but he found working the night shift was unsuitable and he resigned. He then obtained a forklift driver’s ticket and began to look for work but without success. He said he had returned to heroin use; his partner was not employed; the bills were “piling up”; and he began to reoffend.

16. The applicant said that his partner had given birth a week before the sentence hearing. He said a number of things about his desire to rehabilitate. He said, for example, “I’m 29 years of age now. I’ve had enough like, got a new born baby. It is not about me anymore”; “my mindset is different”; and “I’ve had enough, I’m over it. It is just not the future I imagined myself growing up”. He stated a commitment to stay well away from drugs and he had been doing courses in gaol such as AA and the “Smart” program. He owed it to his partner and new child to do the right thing in the future.

17. He concluded his evidence in chief as follows:

“Q. Can’t turn the clock back but are you sorry for being involved in this behaviour?

A. More than sorry being involved in this behaviour.”

18. The applicant’s solicitor then tendered the letter from Ms Brassington. The judge responded that “the Crown should always object to letters being tendered to the Court unless they’re simply references from employers or matters of that nature”. He asked about the solicitor having earlier said that he intended to call Ms Brassington and was told that she had declined, despite his encouragement, because she was nervous. The Crown did not object to the tender.

19. The letter by Ms Brassington included that she was “upset, disappointed and angry” with the applicant for his further offending. She had endured hardship being alone whilst pregnant and when giving birth the week before. She said this had forced him to “have a good hard look at himself and his actions and how lucky he is to have a family who love and support him”. She continued:

“Carl has spoken to me of the remorse he feels and how sorry he is for letting down not only his family but all … who supported him and the opportunities that he was given.”

20. In contrast to his evidence, she then referred to him having been “retrenched from his job through no fault of his own”. She said he became disheartened; felt like a failure and “allowed old habits to reform as he struggled to find the necessary coping skills”. (If by “old habits” she was referring to drug use, the applicant said in his evidence that he returned to heroin use while he had a job, not after.) Ms Brassington also said that whilst she would support him after his release from custody she would not tolerate any further offending and would report him to “the relevant authorities” if he relapsed.

Ground 1 – The sentencing judge erred in denying the Applicant procedural fairness by rejecting after the sentencing hearing the unchallenged evidence of the Applicant’s remorse

21. To persuade the judge to take remorse into account as a mitigating factor it was the applicant who bore the onus of persuasion that the two matters set out in s 21A(3)(i) were established:

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)

22. In the course of his remarks on sentence the learned judge said:

“I am unable to find acceptable evidence of any genuine contrition or remorse rather than the glib use of phrases such as “I am ashamed of myself”.

While there is reference in Ms Brassington’s letter to him having expressed remorse and regret to her, in the absence of that evidence being given on oath and subject to cross-examination, I am not prepared to accept that the letter provides any acceptable evidence of contrition or remorse.”

23. The judge then referred to some matters that raised a doubt in his mind about Ms Brassington not being aware that the applicant was using drugs and was committing criminal offences in order to fund that habit and to support the family when he was not working. He continued:

“As I have already stated, I do not in the circumstances of this matter accept the evidence of the offender or of Ms Brassington as to the offender being remorseful or contrite.”

24. The contention in this ground that there was procedural unfairness in the judge not accepting the proffered evidence of remorse is misconceived. Adamson J (with the concurrence of Simpson and Davies JJ) said in Dang v R [2014] NSWCCA 47:

“[45] The question whether a party has been denied an opportunity to be heard, being a matter of substance, must be determined by reference to the circumstances during the proceedings. The real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam) at [34] per Gleeson CJ. Commonly, unfairness will arise where someone has been deprived of the opportunity to make submissions or has failed to make submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker.”

25. The sentencing judge in the present case gave no indication that he was prepared to accept that the applicant was remorseful. The solicitor for the applicant was certainly not dissuaded by anything that had occurred during the presentation of the evidence from later making a submission seeking to persuade the judge to make a finding that his client had “exhibited … relevant contrition in respect of the offences”. And he also expressed an appreciation of the judge’s scepticism about accepting Ms Brassington’s letter because of doubt about whether she could have been completely oblivious to what the applicant had been up to.

26. There is an air of unreality about this ground. It presupposes that during the course of a sentence hearing a judge is required to consider and reflect upon all that is placed before the court and indicate to the parties before delivering or reserving judgment any potential disagreement or non-acceptance in relation to individual matters despite the fact that the opposing party might not have contested them. Judicial proceedings, including sentence proceedings, cannot be conducted in that fashion. A similar observation was made by R S Hulme AJ in Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 at [44].

27. There is no merit in this ground.

Ground 2 – The sentencing judge erred in failing to apply the principles of totality

Ground 3 – The sentencing judge erred in failing to specify the basis upon which the aggregate sentence was structured and how the overall sentence was reached

28. Ground 2 may be immediately rejected. The judge specifically said: "I have also taken into account that it would be necessary for me to take into account the principle of totality. I have done so." And Ground 3 implicitly accepts that the principle of totality was applied; it complains about the manner of its application.

29. In support of Ground 3, the applicant submits that error is apparent in two respects. First, there were a number of offences where the criminality differed but for which the same sentence was indicated. Secondly, there was an absence of reasons explaining the structure of the aggregate sentence and the extent of accumulation of indicative sentences, or between groups of indicative sentences.

30. In support of the first asserted basis of error, it was pointed out in the applicant's submissions by way of example that the value of the goods in one offence (H … 725 Seq 8) was $34.99 and in another offence (H … 725 Seq 26) the value was $670; yet the indicative sentence for each was the same (1 year 6 months). Accordingly, it was argued that the judge had not complied with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in that he had not determined an appropriate sentence for the individual offences but had merely made a blanket assessment of the kind criticised in R v Brown [2012] NSWCCA 199, R v Nykolyn [2012] NSWCCA 219 and Subramaniam v R [2013] NSWCCA 159.

31. The first argument is based on a fallacy – that the criminality of each offence was measured only by the value of the goods obtained (which ranged from $34.99 to $3683.90 and averaged about $800). But the criminality did not involve isolated acts of offending; it included the fact that the applicant was engaged in systematic, frequent and fraudulent use of stolen credit cards. If there had been two, or a few, offences, it may be that the value of goods obtained in each transaction would be a significant indicator of the seriousness of the individual offences. But the value of the individual transactions is of lesser importance as the pattern of offending is more blatant, frequent and entrenched.

32. King DCJ did not simply adopt a “blanket approach”; he discriminated between the various offences based upon the value of the goods obtained, but not to the degree to which the applicant now contends he should have. Each of the fraud offences attracted an indicative sentence of either 1 year 6 months or 2 years. The higher sentence was indicated in respect of those offences where the amount involved was "approximately $1,500 or more". There are various ways in which his Honour could have approached this exercise but I cannot see anything wrong with the method he chose to adopt in the circumstances of this case.

33. The second argument also proceeds upon a mistaken premise – that it is incumbent upon a judge imposing an aggregate sentence to spell out in detail how the process of accumulation and the application of the principle of totality has been carried out. Reliance was placed upon something said by Emmett JA in Subramaniam v R [2013] NSWCCA 159 at [9] to that effect but the other two members of the Court (Simpson and Latham JJ) did not express agreement with it. True it is that Latham J engaged in a fairly detailed exposition of how the exercise was carried out in the context of resentencing in that case, but that does not mean that it is a mandatory requirement. The legislation does not require it and nor does the caselaw.

34. In JM v R [2014] NSWCCA 297 at [39]-[40] I set out a number of propositions in relation to aggregate sentencing that were derived from either the legislative provisions or cases that have considered the subject. One of them (proposition #11 at [40]) was that the indicative sentences recorded in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act are not themselves amenable to appeal but may be a guide to whether error is established in relation to the aggregate sentence.

35. Another proposition (#13 at [40]) was that a principal focus of determining a ground of appeal alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. When an aggregate sentence is imposed this Court is usually not, and need not be, in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures. That is because "the whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures": Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231] (Button J).

36. I am unable to discern any error in the approach of the sentencing judge. In any event, what appears to me to be the real issue in this matter is whether, having regard to all of the objective and subjective facts and circumstances, the aggregate sentence is excessive. That is a question that arises for consideration under the final ground. Once that is determined, there is no practical utility in engaging in an analysis of the manner in which the aggregate sentence was arrived at.

37. I would reject this ground.

Ground 4 – The sentencing judge erred in failing to give the Applicant the benefit of a discount for his plea of guilty

38. Two submissions were made in support of this ground. The first was that, having regard to the discount for the utilitarian value of the applicant’s pleas of guilty, the judge must have adopted a starting point in respect of the sentences for the goods in custody offences of six months imprisonment. Senior counsel for the applicant pointed out that that is the maximum penalty that can be imposed pursuant to s 527C(1) of the Crimes Act. There was no indication of the judge having found any of those offences to fall into the worst case category such as to justify imposition of the maximum penalty. It therefore followed from the latter that the judge had not given the applicant the benefit of the discount of 25 per cent.

38. The second submission was that with an aggregate sentence of 4 years it could be inferred that without the applicant’s plea of guilty the total sentence that would have been imposed would have been 5 years and 4 months. The argument was that a starting point of 5 years and 4 months would have been excessive and unlikely to have in fact been the starting point. This was said to be another basis for which it was contended that the applicant did not receive the benefit of the discount for his pleas.

39. The argument about the goods in custody sentences being excessive must be seen in context. There were six indicative sentences for goods in custody offences each of 4 months 2 weeks. This was in the context of an aggregate sentence of 4 years being imposed for a total of 38 offences. If the sentences indicated for the goods in custody offences had have been somewhat lesser duration, say 3 months each rather than 4 months 2 weeks, it could hardly be thought that that would have any impact upon the aggregate at all.

40. The second point proceeds upon an erroneous assumption that the discount for a plea of guilty is applied to the aggregate sentence. That is not the case having regard to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act which requires various matters to be taken into account in arriving at indicative sentences, including the mitigating value of any plea of guilty pursuant to s 22 of the same Act. Of course, in arriving at an aggregate sentence through a notional process of accumulation of indicative sentences it is important to ensure that an offender is not deprived of mitigation for the utilitarian value of pleas of guilty. See Liles v R (Cth) [2014] NSWCCA 289 at [45] (Hoeben CJ at CL); JM v R, supra, at [92].

41. This ground should be rejected.

Ground 5 – In the alternative, if the sentencing judge did allow the discount for the plea of guilty then the sentence is manifestly excessive

43. The question for the Court is whether the aggregate sentence is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325.

44. The first submission in support of this ground repeated the claim of excess in relation to the indicative sentences for the goods in custody offences. Nothing more needs to be said about that.

45. The second submission involved reference to Judicial Commission sentencing statistics. However the database relied upon in relation to the fraud offences contained only five cases of sentencing in the District Court or resentencing in this Court which makes the statistics of no use at all.

46. Reference was also made to statistics concerning sentencing in the Local Court where a much larger database was involved. There is no utility in comparing sentences imposed in the District Court for such a large number of offences committed in the period and style of the applicant’s offences with sentences imposed in the Local Court where the jurisdictional limit is 20 per cent of the maximum penalty available in the District Court.

47. A more fundamental problem with the applicant’s recourse to statistics is a failure to recognise that the Judicial Commission only records the sentence imposed for one offence in a multi-offence sentencing exercise; what it terms the “principal offence” (the offence that attracted the highest of the various sentences imposed or, where there is more than one offence that attracted the highest sentence, the offence which had the highest maximum penalty or had offences listed on a Form 1 taken into account). No statistics are maintained of the overall or aggregate sentence imposed in such cases. In short, the applicant was seeking to compare sentences imposed for a single offence with his aggregate sentence imposed for 38 offences.

48. A more substantive submission was that the sentence imposed was excessive having regard to the comparatively short course of conduct for offences of this type, a period of approximately six weeks; the total value of property taken (in the vicinity of $22,000) being comparatively less than in other cases dealt with in the District Court (although only two cases were referred to); and the subjective features of the applicant, including his relatively young age, drug addiction and change in family circumstances.

49. The Crown, on the other hand, submitted that the sentences could not be characterised as unreasonable or plainly unjust. The Crown submissions pointed to a number of relevant circumstances including the maximum penalties, the objective seriousness of the offences, the commission of the offences whilst on parole, the applicant’s criminal history, his assessed poor prospects of rehabilitation (which was not challenged), and the necessity to apply the principle of totality.

50. The applicant’s offending, whilst on parole, was brazen and persistent. There was no challenge to the sentencing judge’s description of it being “a serious and continuing course of criminal conduct which must be of serious concern to the community and the victims, whether those victims be the card holders, the retail stores or the credit providers”. His Honour’s emphasis on general deterrence was appropriate given his finding that “these offences are … easy to commit and, in the absence of CCTV coverage, generally difficult to identify the offender”. He was also correct (with respect) to find that personal deterrence was important in this case as well.

51. I am not satisfied that there is anything unreasonable or unjust about the sentence imposed.

Orders

52. I propose the following orders:

1.   Leave to appeal against sentence granted.

2.   Appeal dismissed.

53. BASTEN JA: I agree with the orders proposed by R A Hulme J and the reasons he has articulated.

54. I would add the following observations as to the complaint that the applicant was denied procedural fairness because the trial judge did not accept his, the applicant's, own assertions in the witness box of remorse. Procedural unfairness only arises where an offender has been denied an opportunity to pursue a particular submission or to call relevant evidence or in circumstances where some representation has been made to him that would dissuade him from taking a course which had been intended.

55. Where an offender seeks to persuade a sentencing Court of a matter in litigation, he or she cannot assume that the court will accept that evidence. No indication was given by the prosecutor or the court that his evidence should or would be accepted.

56. It was further said that his evidence was not challenged in cross-examination, but he was cross-examined as to his record, including with respect to matters involving drug use and the fact that he had not taken the benefit of opportunities for counselling and assistance in the past. An available implication was that his assertion of remorse should be given little or no weight.

57. As R A Hulme J has noted, the applicant's solicitor made submissions favouring acceptance of the evidence. There was no suggestion that he or his client had proposed to call further evidence, if not dissuaded by an indication that the Court did not require such material. Nor was it suggested that any further submissions would have been made had the solicitor not been of the view that the evidence would be accepted.

58. In these circumstances, and for the reasons given by R A Hulme J, this ground must be rejected.

59. ADAMSON J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons. I also agree with the additional reasons of Basten JA.

**********

Decision last updated: 22 April 2015