Williams-Savage v The Queen
[2022] ACTCA 58
•26 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Williams-Savage v The Queen |
Citation: | [2022] ACTCA 58 |
Hearing Date: | 15 August 2022 |
DecisionDate: | 26 October 2022 |
Before: | Elkaim, Kennett and Collier JJ |
Decision: | (1) The sentences under appeal are confirmed. (2) The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Sentence appeal – Whether individual sentences or total sentence manifestly excessive –appeal dismissed – sentence under appeal confirmed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 35A |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Jacob Williams-Savage ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) J Hiscox ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 53 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Mossop J Date of Decision: 14 October 2021 Case Title: R v Williams-Savage Citation: [2021] ACTSC 271 |
THE COURT:
1. The appellant appeals from a sentence imposed by Mossop J (the Sentencing Judge) on 14 October 2021. There were thirty offences before the Court, arising out of a series of incidents that took place on 5, 8, 11, 12 and 13 April 2020. The aggregate sentence imposed was a sentence of imprisonment of eight years and six months, with a nonparole period of four years’ imprisonment.
2. The appellant appeals from each individual sentence and the aggregate sentence on the ground that the sentence is manifestly excessive.
The Facts
3. The facts were canvassed by the Sentencing Judge at [6]–[18] of his Honour’s sentencing remarks. There is no need to repeat the facts in detail. It is sufficient to say that, across a number of days and in the early hours of the morning, the appellant burgled a number of commercial premises. The appellant concealed his identity by wearing a face covering and gloves.
4. In entering the premises, he often caused significant damage to property. Some of the burglaries were “ram-raids”, where entry was effected by the appellant driving a vehicle through the doors of the premises. In others, he used a crowbar to break windows and gain access. On two occasions, he caused damage to the outside of the premises but did not get inside.
5. A range of businesses were targeted. This included three Domino’s pizza stores, three chemists, and three businesses in the commercial district of Fyshwick. On one occasion, the appellant attended the same premises for a second time (Domino’s Florey), bringing with him an angle grinder in order to open a safe that he was unable to open during the first burglary. He was also in company with an unidentified man on this occasion.
6. The property taken ranged in value, from $117 to $7650. Some of the property taken on 13 April 2020 was abandoned by the appellant and able to be returned to its lawful owner.
7. The appellant was disqualified from driving at the time of these events. He drove various vehicles to and from the premises. One of the vehicles he used was stolen. He also attempted to take a second vehicle unlawfully but was detected by police.
8. All of the offending occurred while the appellant was on conditional liberty, serving an Intensive Corrections Order in the community.
Sentencing Remarks
9. Commencing at [19], the Sentencing Judge considered the objective seriousness of the offending.
10. The burglaries were found to be in the mid-range of objective seriousness, they occurred on commercial premises, but with various degrees of preplanning evident through the use of tools, a lookout and items to disguise the appellant's identity. The damage property charges were found to range from the lower range to the upper end of the mid-range of objective seriousness, largely depending on the nature of the damage caused (the ram raids being more objectively serious). The thefts were found to be in the low to mid-range of objective seriousness, largely depending on the value of the property stolen. The driving and attempting to take motor vehicle charges were found to be in the mid-range of objective seriousness as they involved the use of the vehicles for criminal offending.
11. Between [22] and [36], the Sentencing Judge canvassed the appellant’s subjective circumstances. Of particular note are the following:
(a) The appellant was 29 years old at the time of the offending.
(b) Despite some challenges in his upbringing, he maintains positive relationships with his grandmother, parents, sisters and extended family.
(c) Commencing at 14 or 15, the appellant has a history of illicit substance abuse. While in custody at the Andrew Maconochie Centre (AMC), he had made various inquiries about rehabilitation programmes available both within the AMC and on release.
(d) He has four children. Before being remanded in custody, he maintained contact with two of them through a week on, week off custody arrangement. During this time he was living with his grandmother. Because of risks associated with the COVID-19 pandemic, it was decided that the children should not see him at his grandmother’s house. As a result, early in April 2020, he moved into a hotel in an attempt to continue the custody arrangement.
(e) The appellant explained that, on leaving his grandmother’s house he turned to drugs and felt that “the world was against him”. He spent the funds from the offending on drugs and hotel rooms.
(f) The appellant had arranged employment on release as a traffic controller.
(g) He has a criminal history that is largely driving related. This includes six convictions for driving while disqualified that culminated in a sentence of imprisonment being imposed to be served by Intensive Corrections Order.
(h) In evidence were letters of apology to various affected businesses. The Sentencing Judge considered that the letters articulated an understanding of the impact of his offending and consistent with a motivation to rehabilitate himself.
12. At [42], the Sentencing Judge turned to the objects of sentencing. Deterrence, both general and specific, were identified as prominent sentencing purposes. While his Honour accepted that rehabilitation of the appellant “must be a goal” (at [46]), his Honour concluded at [48] that:
The sheer volume of offending and the gravity of that offending must lead to significant penalties being imposed but a degree of concurrency must be introduced because of the close temporal relationship between the offending and the need to achieve an overall sentence which is not crushing and gives appropriate recognition to the offender’s potential for rehabilitation.
13. The sentences imposed by the Sentencing Judge, as well as the degree of accumulation, are set out in the table below.
Offence Maximum Penalty Starting point and discount Sentence Accumulation Count 1: Attempted burglary
(Quintessence Nail and Beauty)14 years’ imprisonment, 1400 penalty units or both 14 months
(nil)14 months - Count 2: damaging property
(Quintessence Nail and Beauty)10 years’ imprisonment, 1000 penalty units or both 2 months
(nil)2 months 1 month CC2020/8400: drive while disqualified as a repeat offender
(Quintessence Nail and Beauty)1 year’s imprisonment, 100 penalty units or both 6 months
(nil)6 months 1 month Count 3: burglary
(Domino’s Pizza Florey)14 years’ imprisonment, 1400 penalty units or both 16 months
(nil)16 months 6 months Count 4: theft (Domino’s Pizza Florey) 10 years’ imprisonment, 1000 penalty units or both 3 months
(nil)3 months 1 month Count 6: aggravated burglary
(Domino’s Pizza Florey)20 years’ imprisonment, 2000 penalty units or both 24 months
(nil)24 months 9 months Count 7: damaging property
(Domino’s Pizza Florey)10 years’ imprisonment, 1000 penalty units or both 6 months
(nil)6 months 2 months Count 8: theft
(Domino’s Pizza Florey)10 years’ imprisonment, 1000 penalty units or both 10 months
(nil)10 months 2 months Count 10: burglary
(Domino’s Pizza Fyshwick)14 years’ imprisonment, 1400 penalty units or both 16 months
(nil)16 months 7 months Count 11 Drive motor vehicle without consent
(Domino’s Pizza Fyshwick)5 years imprisonment, 500 penalty units or both 9 months
(nil)9 months 1 month CC2020/4798: drive while disqualified as a repeat offender
(gold Toyota Echo Domino’s Fyshwick)1 year’s imprisonment, 100 penalty units or both 6 months
(nil)6 months 1 month CC2020/4793: burglary (Yarralumla Pharmacy) 14 years’ imprisonment, 1400 penalty units or both 16 months
(25%)12 months 7 months CC2020/4794: damaging property
(Yarralumla Pharmacy)10 years’ imprisonment, 1000 penalty units or both 4 months
(25%)3 months 1 months CC2020/4795: theft
(Yarralumla Pharmacy)10 years’ imprisonment, 1000 penalty units or both 4 months
(25%)3 months 1 month CC2020/4471: burglary
(Capital Chemist Hughes)14 years’ imprisonment, 1400 penalty units or both 16 months
(25%)12 months 6 months CC2020/4472: damaging property
(Capital Chemist, Hughes)10 years’ imprisonment, 1000 penalty units or both 16 months
(25%)12 months 4 months CC2020/4473: theft
(Capital Chemist, Hughes)10 years’ imprisonment, 1000 penalty units or both 1 month
(25%)23 days 0 months CC2020/4476: burglary
(Capital Chemist, Garran)14 years’ imprisonment, 1400 penalty units or both 16 months
(25%)12 months 6 months CC2020/4477: damaging property
(Capital Chemist, Garran)10 years’ imprisonment, 1000 penalty units or both 16 months
(25%)12 months 4 months CC2020/4478: theft
(Capital Chemist, Garran)10 years’ imprisonment, 1000 penalty units or both 6 months
(25%)4 months 15 days 1 month CC2020/4484: burglary
(Uneke Furniture)14 years’ imprisonment, 1400 penalty units or both 16 months
(25%)12 months 6 months CC2020/4485: damaging property
(Uneke Furniture)10 years’ imprisonment, 1000 penalty units or both 16 months
(25%)12 months 4 months CC2020/4796: theft
(Uneke Furnture)10 years’ imprisonment, 1000 penalty units or both 1 months
(25%)23 days 0 months CC2020/4479: Attempted burglary
(Quizzic Alley)14 years’ imprisonment, 1400 penalty units or both 14 months
(25%)10 months 15 days 4 months CC2020/4480: damaging property
(Quizzic Alley)10 years’ imprisonment, 1000 penalty units or both 16 months
(25%)12 months 4 months CC2020/4481: burglary
(Howard Revell)14 years’ imprisonment, 1400 penalty units or both 14 months
(25%)10 months 15 days 4 months CC2020/4482: theft
(Howard Revell)10 years’ imprisonment, 1000 penalty units or both 8 months
(25%)6 months 2 months CC2020/4483: attempted take motor vehicle without consent (Howard Revell) 5 years’ imprisonment, 500 penalty units or both 8 months
(25%)6 months 1 month Count 14: drive motor vehicle without consent
(gold Toyota Echo ram raids)5 years’ imprisonment, 500 penalty units or both 9 months
(25%)6 months 22 days 1 month CC2020/8394: drive while disqualified as a repeat offender
(gold Toyota Echo ram raids)1 year’s imprisonment, 100 penalty units or both 6 months
(25%)4 months 15 days 1 month
14. The total sentence was eight years and six months’ imprisonment, from 1 May 2020 to 31 October 2028, with a nonparole period of four years’ imprisonment.
Relevant Principles
15. The principles regarding whether a sentence is manifestly excessive are well established and are summarised in Zdravkovic v The Queen [2016] ACTCA 53 (Zdravkovic), at [51]–[52]:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
16. The threshold for intervention on this ground by an appellate court is not easily met. In R v Pham [2015] HCA 39; 256 CLR 550, [28(7)] (French CJ, Keane and Nettle JJ) it was described as follows:
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
17. Also relevant on this appeal are sentencing principles concerning concurrency, accumulation and totality. These are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26]:
The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:
(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623-624.
(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.
(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].
(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].
Appeal against the individual sentences
18. The appellant submits that there are three matters to which the Sentencing Judge failed to give adequate weight:
(a) First, the absence of like offending in the appellant’s criminal history;
(b) Secondly, the appellant’s personal circumstances and prospects for rehabilitation; and
(c) Thirdly, the effect of the COVID-19 pandemic, which he asserts contributed to the offending because it limited his ability to attain gainful employment and attend drug counselling.
19. As the appellant correctly conceded, each of the matters he raises were canvassed in the sentencing remarks.
(a) At [37], the Sentencing Judge observed that the appellant’s criminal history is largely driving related. His Honour considered that, notwithstanding the lack of like offending, the appellant’s history significantly reduced the potential for leniency. Similarly, at [43], the Sentencing Judge observed that, “while the offender does have a significant criminal history, it is not a history of this kind of serious property offending.”
(b) At [46], the Sentencing Judge assessed the appellant’s prospects for rehabilitation as “reasonable” and at [48] his Honour noted that the sentence needed to give appropriate recognition to the appellant’s potential for rehabilitation.
(c) At [27], the Sentencing Judge accepted that, because of COVID-19, the appellant had removed himself from his elderly grandmother’s home to a hotel room in order to continue his custody arrangement with his children. The Sentencing Judge also accepted at [33] that the money obtained from the offending was used in part to fund hotel rooms. In relation to the availability of counselling, the Sentencing Judge noted at [31] that the offender had not been able to complete drug and alcohol counselling within the AMC.
20. The appellant also conceded that the individual sentences were within the “legal guidelines of sentencing” but considered that more lenient sentences could have been imposed. Ordinarily, because manifest excess is not established merely because an appeal court would have imposed a more lenient sentence, a concession such as this would be sufficient to dispose of this ground of appeal. However noting that the appellant is self-represented it is appropriate to go on to consider whether, in light of the matters raised by the appellant as well as the other relevant considerations set out in Zdravkovic above, the individual sentences are unreasonable or plainly unjust.
21. In undertaking this analysis it is important to keep in mind, as this Court noted in R v UG[2020] ACTCA 8; 281 A Crim R 273 at [43], that criticism of specific aspects of a Sentencing Judge’s remarks is apt to distract from the task of the Court in dealing with a contention that the sentence is manifestly excessive. That is because, as noted above, the contention necessarily proceeds by inference from the final result rather than by identifying specific legal error. However, consideration of particular sentencing principles and how they apply to the facts of a particular case may assist in indicating what was an appropriate sentence for the offending, and thus point to a divergence of the kind that justifies application of the label “manifestly excessive”.
Sentencing patterns
22. As was observed by this Court in Tracey v Queen [2020] ACTCA 51 at [38], when considering whether a sentence is manifestly excessive, the sentence imposed should be considered in the context of (among other things) the standards of sentencing customarily observed with respect to the offence. Of course, while bare sentencing statistics may establish the range of sentences that have been imposed in the past for a particular offence, the statistics do not fix the permissible bounds of the sentencing discretion in a particular case. See, eg, Barbaro v The Queen [2014] HCA 2; 253 CLR 58, [41], Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, [51]–[52]. For dishonesty offences such as burglary and theft, culpability varies significantly between cases: see, eg R v Bessant [2020] ACTSC 365. Accordingly statistics, which say nothing about the circumstances of individual offences or offenders, are a blunt instrument and should not be afforded undue weight.
23. Noting these limitations, in R v Elphick [2021] ACTSC 9 at [154], Murrell CJ referred to the following sentencing statistics:
(a)the offence of aggravated burglary usually results in a sentence of between 18 months’ and three years and six months’ imprisonment;
(b)the offence of burglary usually results in a sentence of between 12 months’ and three years and six months’ imprisonment;
(c)the offence of taking a motor vehicle without consent usually results in a sentence of six to 12 months’ imprisonment;
…
(e) the offence of theft usually results in a sentence of six to 18 months’ imprisonment;
(f)the offence of minor property damage is usually punished by sentence of six months’ imprisonment;
(g)the offence of minor theft usually results in a sentence of six months’ imprisonment; and
(h)the offence of drive while disqualified usually results in a sentence of six months’ imprisonment.
Subjective features
24. The appellant’s subjective circumstances are significant in two ways.
25. First, the Sentencing Judge assessed his prospects for rehabilitation as reasonable. We agree with this assessment. His relative youth, pro-social family support, and employment prospects mean that, notwithstanding a history of illicit substance use and non-compliance with community-based orders, rehabilitation remains possible and should feature as a sentencing purpose.
26. Secondly, the appellant’s criminal antecedents show an increased need for specific deterrence and limit the degree of leniency that can be afforded to him. Although the offending is, for the most part, different to the type of offending for which the appellant was sentenced, it forms a patten of a continuing attitude of disobedience of the law to which the Court must have regard when fixing sentence.
Aggravated Burglary
27. The maximum penalty for aggravated burglary is 20 years’ imprisonment. The Sentencing Judge imposed a sentence of two years’ imprisonment. The Sentencing Judge, correctly in our view, assessed the objective seriousness as being “mid-range”. Although the offence was committed in commercial premises at a time when those premises were unlikely to be occupied, which lessened the objective seriousness of the offending, there were other features that made the aggravated burglary (Count 6) offence a serious one of its type. It was a pre-meditated repeat incursion into Domino’s Florey. The appellant disguised his identity and came equipped with an angle grinder intended to be used to open the safe inside. His unidentified associate acted as a “look out”. Given these aggravating features the sentence imposed is not excessive, let alone manifestly so.
Burglaries
28. The maximum penalty for burglary is 14 years’ imprisonment.
29. There were seven counts of burglary. For six of those counts (Count 3, Count 10, CC2020/4793, CC2020/4471, CC2020/4476, CC2020/4484) the Sentencing Judge’s starting point was 16 months’ imprisonment. On four of these counts, the sentence was discounted to 12 months’ imprisonment as a result of a guilty plea. For the remaining count (CC2020/4481), the starting point was 14 months’ imprisonment. This was discounted to 10 months and 15 days’ imprisonment on plea.
30. The common salient features for assessing objective seriousness of burglary were usefully summarised by Refshauge AJ in R v Hancock [2021] ACTSC 52 at [33]. Central to objective seriousness are the nature of the property on which the offender trespassed (with intrusion into a residence being generally more serious than burglary of commercial premises), whether damage was caused, the motivation for the burglary, and the degree of premeditation, planning or organisation.
31. Having regard to these factors, the sentences passed are not manifestly excessive. Each falls towards the lower end of the standard sentencing range. Each adequately reflects that the commercial (as distinct from residential) nature of the premises reduced the objective seriousness of the offending, but that because of their pre-meditated nature the offences still remained objectively serious.
32. There were also two counts of attempted burglary. The conventional position in respect of an attempt is that it will attract a lesser sentence than if the offence were completed. However, this conventional position does not apply invariably, and consideration should be given to the circumstances surrounding the attempt, with particular focus on the seriousness of what was attempted and the level of determination and sophistication involved in the attempt: see Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79, [29]; R v BI (No 4) [2017] ACTSC 71, [40].
33. On each count of attempted burglary, the Sentencing Judge’s starting point was 14 months’ imprisonment. This starting point is not manifestly excessive. In each case, the attempt was relatively advanced, in that it failed only at the point of actual entry onto the premises: in respect of Count 1 the appellant used a crowbar in an unsuccessful attempt to pry open the front doors; and in respect of CC2020/4479 he reversed a car into the front door but did not enter. Although these attempts appear largely unplanned, they cannot be properly described as inept or doomed to fail. The offences were perpetrated in the early hours of the morning, which decreased the possibility of detection, and the appellant had a means by which entry could reasonably be effected.
Theft
34. The maximum penalty for theft is 10 years’ imprisonment. As the Sentencing Judge correctly observed, the most important consideration when assessing objective seriousness is the value (including sentimental value) of the property stolen: see, eg, R v Massey (No 3) [2021] ACTSC 156, [25]. Counts where the property taken was of little value (CC2020/4473 – $154.44 and CC2020/4796 – $117) received a starting point of one month’s imprisonment. The starting points then increased along with the value of the property, being three months (Count 4 – $60 and the keys to a vehicle later seen on the return to Dominos Florey), four months (CC2020/4473 – $1468.47), six months (CC2020/4478 – $2802.75), eight months (CC2020/4482 – $3700) and ten months (Count 8 – $7560 and keys to vehicle used in the ram-raids).
35. Other factors which inform objective seriousness are motive and level of inconvenience caused. As the Sentencing Judge correctly observed, mitigating objective seriousness slightly was a finding that some of the property taken from the chemists (CC2020/4473, CC2020/4478) was likely to have been returned, reducing the level of inconvenience occasioned. The appellant’s motivation, which was associated with his return to illicit drug use, did not mitigate the seriousness of the offending.
36. The sentences imposed adequately reflect these factors.
Damage property
37. The maximum penalty for damaging property is 10 years’ imprisonment. In each case where the damage was caused during a ram-raid, the Sentencing Judge imposed a sentence of 12 months’ imprisonment (reduced from 16 months). Such sentences are not manifestly excessive; the damage occasioned to each shopfront was substantial and, in addition to the costs of repair imposed on the owner or their insurer, would have involved significant disruption to the business operating at each premises and thus significant inconvenience: see R v Dawson [2022] ACTSC 64, [43]. The other damage property offences involved the use of a crowbar to shatter a front glass door (Count 2) and the use of an angle grinder to open a safe (Count 7). The sentences imposed, being two months’ imprisonment and six months’ imprisonment respectively, are not manifestly excessive. They reflect appropriately the amount of damage caused and the inconvenience to the associated businesses.
Driving Offences
38. The maximum penalty for both driving a motor vehicle without consent and attempting to take a motor vehicle without consent is five years’ imprisonment. Informing the objective seriousness of the offences in this case was that the appellant was driving rather than riding in the vehicles, and that both vehicles were used in the commission of further offences: see R v Dawson [2022] ACTSC 64, [45]; R v Rosewarne [2021] ACTSC 217, [123]. In light of the purpose for which the vehicles were used or attempted to be used, the starting points of nine months’ imprisonment (Counts 11 and 14) and eight months’ imprisonment (CC2020/4483) are not manifestly excessive.
39. The maximum penalty for driving while disqualified as a repeat offender is one year’s imprisonment. As with the other driving offences, the driving was associated with the commission of further offences, which is an aggravating feature: see R v Tonna [2020] ACTSC 360, [30]. Given this aggravating feature, the appellant’s extensive history of driving while disqualified and the important role that deterrence has in sentencing for this type of offence, the sentences of six months’ imprisonment for each count are not manifestly excessive.
Totality, accumulation and concurrency
Failure to make theft change entirely concurrent with associated burglary
40. In Dawson v The Queen [2019] ACTCA 9 at [35], this Court observed that:
The common but not invariable practice of this court is that the sentence for an offence of theft that was committed in the course of a burglary is made concurrent with the sentence for the related burglary.
41. The appellant relied on R v McMahon [2014] ACTSC 94 and Love v The Queen [2012] ACTCA 8 as examples of cases where this has occurred.
42. However, the existence of a “general practice” to this effect was subsequently doubted by the Court in Tracey v The Queen [2020] ACTCA 51 at [55].
43. The Court went on to observe that, even if a general practice exits, it should not dictate the exercise of the discretion as to concurrency and accumulation in a particular case. This observation is consistent with previous authority of the Court to the effect that application of the principles is necessarily fact specific (Kelly v the Queen [2021] ACTCA 15, [56]–[58]) and that there is no single correct approach to the structuring of multiple sentences, with the totality principle able to be implemented in a variety of acceptable ways (Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, [56]).
44. Bearing in mind that the appellant’s ultimate contention is that the overall sentence was manifestly excessive, the question must be whether, having regard to the facts of the case and relevant sentencing principles, the combined sentence exceeds that which is warranted to reflect the total criminality in a way that makes it unreasonable or plainly unjust.
45. In this case, the Sentencing Judge imposed varying degrees of accumulation between the sentences for theft and the associated sentences for burglary and damage to property. In some cases, the sentence was entirely concurrent with the associated burglary (CC2020/4796, CC2020/4473). In others, the sentence was cumulative by either one month (Count 4, CC2020/4795, CC2020/4478) or two (Count 8, CC2020/4482).
46. At [22], the Sentencing Judge observed that the offending concerning theft was from the low to mid-range of objective seriousness, with the seriousness being largely determined by reference to the value of that property stolen. Although the objective seriousness of each offence was not spelled out on an individual basis, consistently with the observation above, the length of the sentence and degree of accumulation increased as the value of the property increased. The short periods of accumulation are appropriately reflective of the additional criminality associated with actually stealing the property in each case and well within his Honour’s sentencing discretion.
Consideration of comparative cases
47. The appellant relied on R v Steen [2020] ACTSC 222 (Steen) as a comparative case where a greater degree of concurrency between sentences was imposed.
48. Because every case is different, care must be taken when using a single case as a comparative yardstick. That point applies with particular force when the comparison concerns the structuring of multiple sentences. As this Court observed in Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 at [56], “[t]here is no single correct approach to the structing of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise (citations omitted)”. See also Nguyen v The Queen [2016] HCA 17; 256 CLR 656, [64]; Kelly v The Queen [2021] ACTCA 15, [50]. It is therefore difficult to imagine circumstances in which comparison with one other case could be capable of establishing manifest excess in sentences imposed for multiple offences.
49. Steen was a sentence imposed by Burns J for 21 offences of burglary, 19 offences of theft, one offence of going equipped for burglary, two offences of stolen property and one offence of damaging property. There were 22 occasions of offending, occurring between September 2017 and April 2019. The burglaries and thefts were committed in residential premises, with the objective seriousness of the offending assessed as being between the bottom and mid-range. Burns J assessed the offender’s prospects of rehabilitation as “bleak” and noted that he had a long criminal history that included like offending, disentitling him to leniency. His Honour also considered that a history of childhood trauma and post-traumatic stress disorder (PTSD) mitigated the offender’s moral culpability for the offending somewhat.
50. His Honour imposed an aggregate sentence of six years and seven months’ imprisonment, with a nonparole period of four years imprisonment. In all but two instances, his Honour’s starting point for each offence of burglary was three years’ imprisonment. The starting point for the theft offences ranged between 16 months and three years, increasing with his Honour’s assessment of objective seriousness. In respect of each occasion of offending, the sentence for the theft was made entirely concurrent with the sentence for each burglary. The degree of accumulation between the sentences for each occasion ranged from being entirely concurrent to five months’ imprisonment, with the majority resulting in an additional three months’ imprisonment.
51. For several reasons, the circumstances in Steen are not truly comparable to the present case. First, in Steen there was only one instance of an offence of damage property. The present case involved several instances where there was significant damage to property occasioned by a ram-raid used to gain access to the premises. The additional accumulation imposed, reflecting the additional criminality of this offending not captured by the elements of the burglary offence, was within the discretion of the Sentencing Judge. Secondly, although the offender in Steen had criminal antecedents that disentitled him to leniency, the offender’s subjective features, particularly the diagnosis of PTSD, moderated the importance of both personal and general deterrence as sentencing considerations. The high degree of accumulation imposed by Burns J across each series reflects the offender’s reduced moral culpability. In the present case, both general and specific deterrence were significant sentencing considerations: see [44]–[45].
52. Taking into account the differences between the cases noted above, the distinction in outcome between this case and Steen is not such that it must be inferred that there was some misapplication of principle by the Sentencing Judge.
Totality generally
53. The Sentencing Judge was faced with a difficult task. The appellant’s offending displayed a high degree of criminality. Spread across 10 separate incidents, the Appellant committed 30 offences on four separate dates over a nine-day period. Far from being opportunistic, the offending was deliberate, involved some planning and was committed for financial gain. The offending targeted commercial premises that, because they are often unoccupied overnight, are vulnerable to this type of offending. General deterrence was accordingly a significant sentencing purpose.
54. So too was specific deterrence. Although the appellant did not have similar offending in his criminal history, he had a substantial history of driving offences that had ultimately led to a sentence of imprisonment being imposed and served by way of intensive corrections order. He also had a history of non-compliance with community-based sentences. The offending occurred while the appellant was on conditional liberty, which aggravated the seriousness of the offending. The appellant has manifested an ongoing attitude of disobedience with respect to the law and the leniency that can be afforded to him is minimal.
55. Notwithstanding these criminal antecedents, rehabilitation remained a relevant sentencing purpose. The appellant is a relatively young man. Various pro-social factors, including family support and good employment prospects, mean that rehabilitation is a reasonable prospect.
56. In balancing these purposes, the Sentencing Judge did not impose a total sentence that was plainly unjust. The seriousness of the offending called for a significant term of imprisonment, and to refrain from imposing a significant penalty would have been to allow rehabilitation to overwhelm the other sentencing purposes. Without falling into that error, the Sentencing Judge gave the appellant’s prospects of rehabilitation significant prominence by fixing a nonparole period that sits at the bottom end of the usual range, being four years. (The starting point for the nonparole period was 50 per cent of the head sentence and his Honour applied a discount pursuant to s 35A of the Crimes (Sentencing) Act 2005 (ACT) related to the manner in which the trial had been conducted. The nonparole period thereby arrived at reflected 47 per cent of the head sentence).
57. Care was also taken to promote rehabilitation when considering licence disqualification. The Sentencing Judge did not impose the automatic licence disqualification period and instead ordered that the disqualifications run concurrently. The result was that the period of licence disqualification will expire before the appellant’s release.
58. Having regard to the nature and circumstances of the offending, the appellant’s subjective circumstance and the purposes of sentencing, the aggregate sentence imposed is not plainly unjust.
Order
59. The orders of the Court are:
(1) The sentences under appeal are confirmed.
(2) The appeal is dismissed.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: |
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