Wright v Tasmania
[2010] TASCCA 7
•19 May 2010
[2010] TASCCA 7
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Wright v Tasmania [2010] TASCCA 7
PARTIES: WRIGHT, Anthony Troy
v
STATE OF TASMANIA
FILE NO/S: CCA 994/2009
DELIVERED ON: 19 May 2010
DELIVERED AT: Hobart
HEARING DATE: 1 March 2010
JUDGMENT OF: Tennent, Porter and Wood JJ
CATCHWORDS:
Criminal Law – Sentence – Relevant factors – Other factors – Offences committed while on parole.
Wisniewskiv Tasmania [2007] TASSC 25; R v Cicekdag (2004) 150 A Crim R 299, referred to.
Aust Dig Criminal Law [3297]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders.
Aust Dig Criminal Law [3522]
Criminal Law – Appeal against sentence – Grounds for interference – Other matters – Failure to give reasons for specifying non-parole period.
Sentencing Act1997 (Tas), ss17, 93.
Wisniewskiv Tasmania [2007] TASSC 25; Shrubsole v Rodriguez (1978) 18 SASR 233; Trueman v Tasmania [2009] TASSC 29, referred to.
Aust Dig Criminal Law [3525]
REPRESENTATION:
Counsel:
Appellant: P E Barker
Respondent: J Hartnett
Solicitors:
Appellant: Beeton & Mansell
Respondent: Director of Public Prosecutions
Judgment Number: [2010] TASCCA 7
Number of paragraphs: 66
Serial No 7/2010
File No CCA 994/2009
ANTHONY TROY WRIGHT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
WOOD J
19 May 2010
Order of the Court
Appeal dismissed.
Serial No 7/2010
File No CCA 994/2009
ANTHONY TROY WRIGHT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
19 May 2010
On 9 October 2009, the appellant was convicted on his plea of guilty of two counts of unlawfully injuring property, two counts of attempting to steal, one count of burglary, one count of stealing and one count of motor vehicle stealing. A co-accused, Crosswell, was sentenced at the same time. Crosswell was however dealt with only in respect of single counts of unlawfully injuring property, attempted stealing and motor vehicle stealing.
The appellant was sentenced to serve a period of four years imprisonment to commence at the end of a sentence he was already serving. It was also ordered that he not be eligible for parole until he had served three years of that sentence. Crosswell was sentenced to serve a period of 18 months imprisonment to commence at the end of a sentence he was then serving. It was ordered he be eligible for parole when he had served 12 months of that sentence.
The appellant now appeals his sentence on the following grounds, namely that:
"1The said sentence, in all the circumstances of the case, is manifestly excessive.
2That the learned judge erred in law in that he imposed a non-parole period which was manifestly excessive in all the circumstances.
3The learned judge failed to adequately consider the question of parity in relation to the sentences imposed on the Appellant and Aaron James Crosswell.
4The learned judge erred in law in failing to give reasons for the making of an order under s17(2) as required by s17(7) of the Sentencing Act 1997."
Facts upon which sentence imposed
The charges against both the appellant and Crosswell arose out of three incidents.
On the morning of 9 April 2009, the appellant and others went to Orford for the purpose of blowing up an ANZ bank ATM. Just before 4.30am, one of the group smashed the card insertion area of the ATM, intending to insert a hose connected to a gas bottle. The hose was inserted and connected to the battery of one of the cars the group had travelled in. The car was turned on, and the ATM caught alight, as did cash in it. A neighbour heard a bang and saw a number of men near the ATM. The appellant and the others left without obtaining the cash they had sought. The cash box in the ATM was not damaged. The repairs associated with the damage which was done to the machine were estimated to cost $29,731. Counts one and two on the indictment arose out of this incident, which involved only the appellant and not Crosswell.
Ten days later, Crosswell went to the Kingston Town Shopping Centre with others to make observations about a Commonwealth bank ATM there. At about 11pm on 19 April 2009, the same night, the appellant unlawfully entered and stole a white Commodore from an inner-city suburb. In the early hours of the following morning he, Crosswell, and others used the vehicle to drive to Kingston for the purpose of blowing up the ATM. Once at Kingston, the appellant and Crosswell and the others waited for a period of time before approaching the ATM. They had with them two sticks of explosives, and just before 3.50am, one of the group jemmied open the cash dispensing slot in preparation for inserting the explosives. The explosives were placed in the slot and the appellant attempted to secure a weight to keep them there, but was unsuccessful. Prior to this occurring, one of the group had sprayed a nearby security camera with paint.
A few minutes later, a worker, arriving at a nearby bakery, saw a number of males in the vicinity of the ATM and noticed the white Commodore. He saw the males move towards the Commodore and the Commodore then being driven slowly out of the shopping centre without any lights. The group returned to Crosswell's home. The cost of repairs to the ATM machine was in the vicinity of $13,000. Later that day, the police found the stolen Commodore outside Crosswell's home.
On 5 May 2009 at about 10.50pm, the appellant and Crosswell went to the Chicken Barn store at Claremont to steal cash. The appellant smashed a window and the two men entered the shop. They removed the cash till and left. They took it back to Crosswell's home to find that it contained no money. Two days later, police found the cash till in a child's bedroom at Crosswell's home. Each of the appellant and Crosswell was charged with one count of burglary and one count of stealing arising out of this incident. While the appellant was indicted in respect of those counts with other matters, Crosswell was dealt with summarily in respect of them in July 2009.
Offending history of appellant
The appellant is now aged 20. He was first dealt with by the courts on 24 December 2004. He was then just 15. On that occasion he was dealt with for two counts of motor vehicle stealing, three counts of stealing and two counts of driving whilst disqualified. He was sentenced to serve a period of detention (partially suspended), ordered to perform community service on release, and placed on probation. Less than three months later, he was back before the courts. On that occasion, he was dealt with for 11 counts of motor vehicle stealing, five counts of driving whilst disqualified, an escape, five counts of stealing and a range of other miscellaneous offences. Of that offending, the escape, four counts of drive whilst disqualified, four counts of motor vehicle stealing, and the stealing, occurred after the appellant was released from custody imposed in December 2004.
The appellant was in court again on 26 July 2005. He was dealt with for a count of driving whilst disqualified and one count of negligent driving. On that occasion, and again on 23 August 2005 when he was dealt with for a number of further motor vehicle stealing matters and other miscellaneous matters, the appellant was ordered to perform community service and placed on probation. The appellant was again before the courts on 2 February 2006, 18 May 2006, 31 August 2006 and 2 March 2007. The offending on each occasion was similar. In February 2006, the appellant was ordered to serve a further period of detention.
On 22 June 2007, the appellant was ordered to serve two years and three months imprisonment, with a non-parole period of 15 months, when he appeared before this Court and was convicted on three counts of aggravated armed robbery. The first of those matters arose when the appellant, with others, held up a pizza delivery driver with a knife and robbed him. During the course of the incident the driver was struck. When interviewed about the matter, the appellant, having been identified by the victim of the crime, denied any involvement. However, in March 2007 he pleaded guilty and was to appear before the Court for sentence on April 2007. He failed to do so. The second of the matters for which the appellant was sentenced in June 2007 was an armed robbery of a service station on 18 April 2007. The appellant was in company with one other on that occasion, that other person being the one who carried the weapon, namely a gun. On the same night, the two entered a shop at Lauderdale and threatened staff with a firearm.
A further period of detention was imposed for an escape on 22 July 2007. On 15 September 2008, the appellant was released on parole, with a period of 11 months and six days still to serve. That parole was revoked on 26 June 2009 as a result of the offending, the subject of the sentence under review. All the offending, the subject of the sentence now under appeal, occurred in April/May 2009, that is a matter of only months after the appellant's release from jail on parole.
Offending history of Crosswell
Crosswell is now aged 25. He first came before the courts as a youth on 28 June 2001. He was dealt with for numerous offences which included dishonesty and driving matters. He was ordered to perform community service and placed on probation. He appeared again approximately two months later and was dealt with for a number of dishonesty matters. On that occasion, a period of suspended detention was imposed and he was ordered to perform community service. While he again appeared before the courts between then and 2004, it was primarily for driving related matters. On 18 March 2004, however, he was convicted of one count of armed robbery and sentenced to serve a period of 12 months imprisonment. Further time in prison was imposed the next day for a dishonesty matter. Over the period up to 2 July 2009, other offending was dealt with by the courts. However, it was primarily driving-related matters, with short terms of imprisonment imposed.
On 2 July 2009, Crosswell was dealt with for a large number of dishonesty and driving offences. He was sentenced globally to serve a period of nine months imprisonment. Amongst the matters for which he was sentenced were a burglary and stealing. Those matters arose out of the same incident covered by the fifth and sixth counts on the indictment to which the appellant pleaded guilty, namely the Chicken Barn break-in. No explanation was provided to this Court as to why Crosswell was dealt with summarily in respect of those matters, but the appellant came before this Court.
Circumstances of appellant as put to the sentencing judge
It was put to the Court that the appellant was 20 years old and single. However, he had a girlfriend. Prior to his incarceration, he was living with his parents. He came from a family with a number of siblings. He attended a number of schools because his parents regularly moved. He actually completed year 10 at school while in detention. He had been assessed as having a quick mind and significant intelligence. He had a particular aptitude for mathematics. During the course of his dealings with correctional authorities, he had completed a program called "U-Turn" which involved young offenders repairing cars donated to the program. He had had little employment and had been seeking assistance in gaining it when released on parole in 2008.
He had no history of drug abuse and, until early in 2009, had not been a user. However, about the time of the commission of the first of the crimes for which he was sentenced, he began to use illicit substances. He claimed to be under the influence of these when he was asked to participate in, and took part in, discussions about the proposed crimes.
The appellant did not dispute the facts put by the State. He had been arrested on 19 May 2009 and had been in custody since that date. As indicated above, his parole had been revoked on 26 June. Subject to any other sentence being imposed, the appellant's earliest release date was expected to be 17 January 2010. It was put that the appellant had been positively using his time in custody. He had enrolled and was participating in a program called "Preparing for Change". It was also put to the Court that the appellant had pleaded guilty and made frank admissions to the police when arrested.
Circumstances of Crosswell as put to the sentencing judge
As to Crosswell, it was put to the Court that he was 24 years old. The Court was reminded that he was only to be sentenced in respect of two counts on the indictment before the Court, that is one count of unlawfully injuring property and one count of attempted stealing arising out of the incident with the Commonwealth Bank ATM at Kingston, and one count of motor vehicle stealing. Crosswell had been in a relationship for three years and he and his partner had one child aged two. The Court was also reminded that he had already been sentenced in relation to one count of burglary and stealing amongst other matters and was due to be released, subject to any further sentence imposed, on 2 January 2010.
It was put to the Court that these matters had had a significant effect upon his family. It appears that a listening device had been placed in his home pursuant to a warrant and, as a result, his partner had also been charged with offences arising out of the same circumstances. She was remanded in custody for a period, but subsequently released. Their child had been placed in the care of Crosswell's parents while both he and his partner were remanded in custody. This had placed a significant pressure on Crosswell's parents, particularly because of the ill-health of his mother. As a consequence of these factors, it was submitted that the seriousness of the offending had been brought home to Crosswell.
Crosswell had also completed a course while in custody and it was put that, by this, he had shown a commitment to address the difficulties he had had in the past. He had pleaded guilty to the charges on the indictment at an early opportunity. It was conceded that he had a significant amount of prior convictions. However, it was also submitted that since being dealt with for a serious matter in 2004, there had been a demonstrated decrease in the nature and extent of his offending up until 2009.
Submissions on behalf of the appellant
The thrust of the submissions from counsel for the appellant was the disparity between the sentences imposed on the appellant and Crosswell. He commenced his oral submissions by first briefly outlining the facts which gave rise to the various charges, and highlighting the different charges which were actually dealt with by this Court as between the appellant and Crosswell. He conceded that that difference accounted in part for the disparity in sentences.
He noted that the ages of the appellant and Crosswell were similar, and that, while the appellant had about 80 prior convictions, he had only been in jail once. By contrast, he submitted that Crosswell had been in jail a number of times. He conceded that not much had been said about the personal circumstances or prospects of rehabilitation in respect of either the appellant or Crosswell. However, he submitted that it could not be said that the material before the learned sentencing judge was such as to preclude rehabilitation.
Counsel conceded that his quarrel was not really with the non-parole period. He went on to concede that the appellant was on parole when he committed all of these offences, and that that was an aggravating factor. However, he submitted that factor was tempered by the fact that this was the first time the appellant had breached parole, and the consequence of it was that he had been required to serve the entirety of the balance of the sentence in respect of which parole had been granted. He did not note the fact that the appellant had previously breached other orders imposed by the courts.
Counsel accepted that the learned sentencing judge had been aware of the range of matters for which Crosswell had been sentenced in July 2009, which included the Chicken Barn burglary and stealing matters. He also accepted that his Honour was aware of the need for deterrence. However, he submitted that, accepting both the appellant and Crosswell were entitled to a discount for their pleas of guilty, there were no identifiable factors to account for the significant disparity in their sentences.
Counsel also submitted that the learned sentencing judge had not complied with the Sentencing Act 1997 ("the Act"), s17, in that he made an order for parole, but gave no reasons. This submission gave rise to an application for leave to amend the notice of appeal to include ground 4. Counsel submitted that the learned sentencing judge was required by legislation to give reasons for the fixing of a non-parole period. That reasons should be given, he said, had been recognized by Slicer J in Wisniewskiv Tasmania [2007] TASSC 25. In that case, his Honour noted that a court was required to give reasons for making such an order, that no reasons were given, and that in some cases failure to do so might not require intervention by an appellate court. In the particular matter with which he was then dealing however, he concluded that the failure to give reasons provided a basis for upholding the appeal. Counsel submitted that the appellant could nurture a legitimate sense of grievance in the absence of stated reasons for the non-parole period ordered, where the proportion of the non-parole period to which the sentence was made subject was significantly greater than that applied to Crosswell.
Submissions on behalf of the State
Counsel for the State highlighted the serious nature of the crimes for which the appellant was sentenced. She referred to the level of premeditation and planning, and the professional nature of the attacks on the ATMs. She also referred to the significant damage done in both of those attacks. In relation to the Kingston matter, it was also pointed out that, while Crosswell had looked at the site prior to the incident, the appellant had handled the explosives. The potential for damage was enormous, given that the bank was within a large shopping complex. Further, the explosives had been dumped in bushes before the group left the scene, allowing for further potential to harm passers-by.
As to any discount for pleas of guilty, it was conceded that these could be given some weight. However, it was submitted that that weight should not be significant, given the finding of a stolen car and a cash till at Crosswell's home, and the other information which police had from a listening device. It was also relevant that the appellant, while making admissions when interviewed, had declined to name any co-offender.
It was also submitted that the appellant had had the benefit of a number of previous sanctions for offences of dishonesty which fell short of custodial sentences, but these appeared to have had little or no deterrent effect. A deterrent sentence in the circumstances was clearly required. Counsel for the State referred to offending while on parole and a history of persistent criminal conduct. She provided to the Court a document entitled "Comparison of Prior Convictions". In that, she had set out, just by reference to the number of counts dealt with, the respective records of the appellant and Crosswell. It is apparent from that, supported by an independent study of the full respective records of prior convictions of the two men, that the appellant had a far worse record of the two.
As to the matter of the asserted failure to give reasons in relation to parole, counsel submitted that the sentencing remarks in this matter were adequate for the purpose of the section and in particular, comments on passing sentence should not be treated as if they were reasons for judgment and minutely examined: see Shrubsole v Rodriguez(1978) 18 SASR 233 at 235. Counsel went on to refer to some remarks of the learned sentencing judge in a matter of Trueman v Tasmania [2009] TASSC 29 at par[33]. His Honour there noted that the determination of an appropriate sentence was made by way of instinctive or intuitive assessment after a consideration of the relevant facts and factors. Counsel submitted those comments were relevant to the issue under consideration here and that the sentencing remarks indicated that the learned sentencing judge had regard to the matters to which he was required to have regard under the Act, s17(4). It was conceded that his Honour did not state specifically that for particular reasons he was ordering the non-parole period that he did. Counsel also made reference to the Act, s93[1], submitting that, even if this Court were to be minded to accept that the learned sentencing judge failed to give reasons, that did not invalidate the sentence, which of course included the non-parole period.
Discussion
[1] Sentencing Act 1997, s93:
(1)The failure of a court to give reasons or to comply with any other procedural requirement of this Act in sentencing an offender does not invalidate a sentence imposed by it.
(2)Nothing in subsection (1) prevents a court on an appeal against sentence from reviewing a sentence imposed by a court in circumstances where there has been a failure that is referred to in that subsection.
The appellant was sentenced by this Court in respect of three incidents. Those incidents gave rise to two counts of unlawfully injuring property, two counts of attempting to steal, single counts of burglary and stealing and one count of motor vehicle stealing. Crosswell, on the other hand, was dealt with by this Court in respect of only one of the three incidents, namely the Commonwealth Bank ATM matter. That gave rise only to one count of unlawfully injuring property, one count of attempting to steal and one count of motor vehicle stealing.
The difference between the head sentences imposed upon the appellant and Crosswell was, it is accepted, significant. The appellant was ordered to serve a period of four years imprisonment, while Crosswell was ordered to serve a period of 18 months. The appellant was ordered to serve three quarters of his sentence before being eligible for parole, while Crosswell was ordered to serve two thirds of his. Had the learned sentencing judge applied the same proportion non-parole period to the appellant's sentence as he applied to that of Crosswell, the appellant would only have been required to serve two years and eight months of his sentence before being eligible to apply for parole, a period of some four months less than presently applies.
In Braslin and Cowen v Tasmania [2010] TASCCA 1 at par[36], Porter J dealt with what I might describe as the "disparity argument" which arose in that sentencing appeal. He said:
"36 That leaves the disparity argument put on Mr Cowen's behalf. The extent of the operation of the parity principle was illustrated by Mason J in Lowe v R (1984) 154 CLR 606 at 613 – 614. His Honour said that the correct principle to be applied in cases of discrepancy, was that a court of appeal was 'entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate' - [my emphasis]. In this case, Mr Cowen received a term of imprisonment of 17 months longer than his co-accused, and a higher proportion for the minimum term, in that he is to serve two thirds of his total sentence of 5½ years before becoming eligible for parole, as against Mr Braslin's non-parole period of one half.
37 In the context of the present argument, there needs to be something which justifies that disparity. On its face it is quite marked."
There are, in my view, a number of factors which indeed did justify the disparity in the head sentences imposed upon the appellant and Crosswell. While the appellant was some four years younger than Crosswell, the appellant's record of prior offending was far more significant. It is not a fair characterisation of the appellant's record, in contrast to that of Crosswell, to say that the appellant had only been sentenced on one occasion to a term of imprisonment, while Crosswell had been sentenced to more than one. The appellant had been required to serve terms in custody, albeit as detention as a youth, on more than one occasion prior to the imposition of the term of imprisonment for aggravated armed robbery in 2007. Further, Crosswell's record was to a large degree dealing with driving-related matters rather than offences of dishonesty which characterised that of the appellant. It is also of note that, throughout the appellant's record of prior matters, there is a pattern of his being dealt with and then re-offending shortly thereafter, irrespective of the penalty imposed.
A further factor is obviously that the appellant was on parole at the time he committed the offending for which he was sentenced. It has been recognised that offending while on bail or probation is an aggravating factor because it demonstrates a contempt for the law (see Wisniewski v Tasmania (supra)). Counsel for the appellant suggested that the weight to be given to this factor should have been ameliorated by the fact that this was the first time the appellant had breached parole, and he had been required to serve the entirety of the balance of the sentence in respect of which he had been given parole. Those facts, while not disputed, do not in my view detract from the weight to be given to the substantive factor. The appellant was given the benefit of parole to demonstrate that he was a person who could be returned to the community on the basis the community would have a reasonable expectation that he would not re-offend. He clearly did not demonstrate that, and indeed breached the faith placed in him within a very short space of time after his release. It remained therefore a significant factor for the learned sentencing judge to consider.
Another factor justifying disparity was the difference in the roles of the appellant and Crosswell in the Kingston ATM matter. Crosswell went to the area earlier in the day to check the area out. However, it was the appellant who handled the explosives on the night and, after they were inserted in the ATM, took steps to secure them for the purpose of blowing up the ATM. It was also the appellant who subsequently dumped the explosives nearby. It was the appellant who also actually entered and stole the motor vehicle to be used in the enterprise. The level of culpability of the appellant was in my view significantly greater than that of Crosswell, as far as that particular enterprise was concerned.
The further obvious factor is the different offences for which the two men were sentenced. The appellant was involved in the second ATM matter at Orford which did not involve Crosswell. That matter also involved the use of an explosive device, although it does not appear to be suggested that the appellant was the offender who placed the means for that intended explosion in the machine. He was however clearly a party to the pre-planning and implementation of a professional enterprise.
At the time of sentencing, there was also the very obvious need for a significant level of personal deterrence for the appellant, given the persistence of his prior offending and the relatively recent nature of significant and similar offending. While considerations of personal deterrence applied to Crosswell, they did not in my view apply to the same degree.
All of these factors justified the disparity in the head sentences imposed upon the appellant and Crosswell.
As to the differences in the non-parole periods ordered, the practical effect of the argument is whether it could be said that the appellant has a justifiable sense of grievance arising from the fact that he is being required to serve three years before being eligible for parole, rather than two years and eight months (had the learned sentencing judge applied the same proportions). I am not persuaded that that difference could provide the appellant with any justifiable sense of grievance.
Other grounds of appeal, not significantly pressed by counsel for the appellant, were the assertions that the sentence overall was manifestly excessive, as was the non-parole period. Given the nature of the offending, the aggravating circumstances surrounding the offending, and the need for a sentence of personal deterrence in the case of the appellant, I am not persuaded that there could be any finding that the sentence was manifestly excessive. As to the non-parole period imposed, it was conceded little was put to the learned sentencing judge about prospects of rehabilitation. Notwithstanding that, his Honour allowed for it by making the parole order. The effect of it is to require the appellant to serve a sentence of three years before being eligible. Having regard to the same factors already considered in respect of the issue of disparity, I am not persuaded it has been demonstrated that the non-parole period imposed was excessive.
The last matter to be dealt with is the argument relating to the asserted failure of the learned sentencing judge to give reasons for the order relating to parole. The Act, s17, deals with the power of a sentencing judge to make an order for parole. The Act, s17(4) and (7), relevantly provides as follows:
"17 — Court may bar or limit eligibility for parole
…
(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a)the nature and circumstances of the offence;
(b)the offender's antecedents or character;
(c)any other sentence to which the offender is subject.
…
(7) A court must give reasons for making an order under subsection (2)."
Section 17(7) is clearly mandatory. However there is nothing in the Act which requires a judge to uses any particular form of words. Subsection (4) sets out the matters to which a court may have regard when considering parole, but clearly does not limit the matters to those identified. The over-arching requirement is that the court is to have regard to such matters as it considers necessary or appropriate. In this case, the learned sentencing judge had regard to the nature and circumstances of the offences with which he was dealing, the appellant's appalling record of prior convictions, and the question of any other sentences to which he was then subject. His Honour considered the appellant's age and the clearly relevant recent prior conviction. His Honour did not specifically refer to the limited matters about the appellant's personal circumstances which were supplied to him by the appellant's counsel. Since these factors were perhaps the only ones that might have, apart from the appellant's relatively young age, suggested a consideration of issues of rehabilitation and parole, perhaps his Honour should have referred to them.
However, it could be said that the factors his Honour did identify might have suggested a more significant non-parole period than that which was actually ordered, and that his Honour allowed for the un-stated factors and the prospects of rehabilitation by imposing the non-parole period that he did. I am not persuaded, in the circumstances, that his Honour's failure to specifically refer to the material relating to personal circumstances of the appellant which was put to him, and the fact that his Honour did not specifically identify factors considered relative to parole, represents a failure to comply with the Act, s17(7). This is particularly so given the role that comments on passing sentence do not perform, that is to operate as detailed reasons for judgment.
If I am wrong as to that, and the absence of further material in his Honour's comments represents a breach of the Act, s17(7), I am not persuaded that the breach is such as to result in this Court interfering with the orders made by the learned sentencing judge.
I would dismiss the appeal.
File No CCA 994/2009
ANTHONY TROY WRIGHT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
19 May 2010
I have read the reasons for judgment of Tennent J. I agree with those reasons and would also dismiss the appeal. I wish only to add some comments about the alleged failure of the sentencing judge to give reasons for ordering that the appellant not be eligible for parole until he had served three years' imprisonment.
It is true that the Sentencing Act 1997 ("the Act"), s17(7) is mandatory in its terms and requires reasons for such an order to be given, and that in certain circumstances failure to do so might justify appellate intervention: Wisniewskiv Tasmania [2007] TASSC 25 per Slicer J at [38]. (The formal validity of a sentence where reasons are not given is preserved by virtue of the Act, s93.) At the same time, it must be recognised that an order under the Act, s17(2) is, of course, made in the context of orders made under the Act generally, and that comments on passing sentence are generally not to operate as detailed reasons for judgment.
Moreover, in many cases the reasons for actual imprisonment and the length of the sentence will be based on the same facts and circumstances as the decision to order that the offender not be eligible for parole, or not be eligible before the expiration of a specified period. The Act, s17(2) and (3) provide that a court that imposes a sentence of imprisonment may order that the offender is not eligible for parole, or that the offender is not eligible for parole before the expiration of a specified period not less than one-half of the period of the sentence. Section 17(3A) provides that where a court does not make such an order, the offender is not eligible for parole. There is no thus legislative expectation that a court will set a non-parole period, and accordingly no invariable requirement for any further articulation of the reasons an offender is to serve the whole, or a part not less than one-half, of the specified period of imprisonment: compare Okwechime v Sindel (2009) 171 ACTR 1 at [36].
In any event, the requirements of s17(7) would be satisfied where the reasons for the order are shortly stated without any detailed elaboration: Nevermann (1989) 43 A Crim R 347 per Malcolm CJ at 350. Further, the reasons need not be explicitly articulated; it is sufficient if they are appropriately clear from the comments taken as a whole: Beale v GIO of New South Wales (1997) 48 NSWLR 430 per Meagher JA at 443.
In this case, the sentencing judge referred to the facts of the crimes, and said:
"In June 2007, [the appellant] was sentenced to two years three months' imprisonment for aggravated armed robbery. He was released on parole on 15 September last year [2008] and committed these crimes while on that parole, which was revoked on 26 June [2009]. His earliest release date is 17 January next, if he earns remission. When interviewed he admitted what he had done and of course, pleaded guilty.
…
Attacks on ATMs must be punished with a relatively severe sentence of imprisonment.
Anthony Troy Wright, convictions are recorded and you are sentenced to imprisonment for four years to commence at the expiration of any sentence of imprisonment to which you are currently subject and it is ordered that you are not to be eligible for parole until you have served three years of the imprisonment."
Whilst it is correct that the sentencing judge did not specifically refer to material relating to the appellant's personal circumstances as was put to him, I do not think that fact means that there has been a failure to comply with the Sentencing Act, s17(7). I would have thought that from the description of the appellant's crimes, and from the passages which I have set out, it was appropriately clear why it was that a significant non-parole period was being fixed.
I agree with Tennent J that if there has been a failure in strict terms to comply with the provision, it is not of such a nature that would justify intervention by this Court.
File No CCA 994/2009
ANTHONY TROY WRIGHT v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
19 May 2010
I agree with the reasons for judgment of Tennent J and I would also dismiss the appeal. I wish to make some additional remarks about parity and breach of parole as an aggravating factor.
Breach of parole as an aggravating factor
I agree with the view expressed by Tennent J that the fact that the appellant was on parole at the time he committed the crimes the subject of this appeal, was a significant aggravating factor. The appeal relates to a sentence imposed for serious crimes of dishonesty and damage to property arising from three separate incidents committed while the applicant was on parole for three counts of aggravated armed robbery. Such conduct reveals contempt for the law and may also be seen as a telling factor in relation to an offender's prospects of reform:
"The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation ie parole has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances."
per Hoeben J in R v Cicekdag (2004) 150 A Crim R 299 at par[52] (see also Spigelman CJ in R v Fernando [2002] NSWCCA 28 at par[42]). The commission of offences on parole is described by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at par[15] as "the betrayal of the opportunity for rehabilitation".
The fact that serious offences are committed while on a lenient parole period designed to promote an offender's prospects of rehabilitation, is clearly relevant to the sentence to be imposed for such offending. The offender's conduct provides an indication to the court that such leniency has not been effective, and that an offender is not prepared to take advantage of opportunities for rehabilitation. For this reason, such conduct is also relevant to consideration of the parole period to be imposed.
Counsel for the appellant submitted that the weight to be given to this aggravating factor should be reduced in the circumstances of this case, noting that this was the first time the appellant had been on parole, and that as a consequence of his criminal conduct, his parole had been revoked and he was required to serve the balance of his sentence. I accept that a relevant consideration in assessing breach of parole as an aggravating factor is whether an offender has had parole revoked on previous occasions. The conduct may be seen as more contemptuous in the case of an offender who has previously breached parole by offending. Also, the court may be prepared to accept that in the case of a first time parolee there is at least the prospect that the new experience of an abrupt return to prison as a consequence of breaching parole may prove to be an effective deterrent.
Whether it seems plausible that revocation of parole may be an effective deterrent will depend on the circumstances of the individual case. For example, in the case of a first time parolee who has prior convictions, the Court may have regard to whether previous sentences involved conditional liberty with an obligation to be of good behaviour, such as probation orders, community service and suspended detention or suspended imprisonment imposed on the offender, and whether that obligation has been flouted by re-offending. Regard may also be had to whether such re-offending has resulted in breach proceedings for failure to abide by the obligation to be of good behaviour. If breach proceedings have not been brought for non-compliance so that revocation of parole is a novel consequence for an offender, then that fact may be relevant. These various matters are examples of considerations that may shed light on the prospect of revocation of parole operating as an effective deterrent. Such matters may distinguish an offender from other offenders who commit more blatant breaches. In short, they may affect the weight to be given to breach of parole as an aggravating factor.
In this case, there are various matters concerning the appellant's breach of parole relevant to sentence. It is acknowledged that the appellant had not been released on parole before. His prior record shows that in the past he has re-offended while subject to an obligation to be of good behaviour attaching to probation orders and suspended detention orders. His record of convictions reveals that he was dealt with by the court for contravention of a community service order or orders in 2006 (which might have involved proceedings for non-attendance rather than re-offending), but probation orders and suspended detention orders have not been the subject of breach proceedings.
In all the circumstances it was open for the sentencing judge to treat the breach of parole by the appellant as a significant aggravating factor. The appellant had been given the opportunity of a non-parole period that was close to the minimum. His release on parole occurred after he had served approximately 15 months in prison for crimes of aggravated armed robbery, and when the gravity of his situation must have been apparent to him. The conditional nature of his release would also have been obvious at the time of his release and while on parole. After approximately six months, he re-offended on three separate occasions. Noting these considerations, it does not appear from the sentence imposed on the accused, that undue weight was given to breach of parole as an aggravating factor.
Counsel for the appellant relied on the fact that as a consequence of breaching parole, the appellant was required to serve the balance of the sentence in respect of which parole had been granted. It is noted that the sentence of four years imposed by the sentencing judge was to commence at the expiration of the sentence he was then serving, which was the sentence of imprisonment he had breached. Counsel for the appellant made the point that the accused was not getting away with his breach of parole "scot-free", and was already receiving punishment for his offences committed while on parole. Having regard to the reasons of Tennent J, and the factors considered in respect of the issue of disparity, it does not appear from the sentence imposed on the appellant that there was a failure to pay proper regard to this consideration. For the sake of completeness, I note that this submission adverts to a matter of sound principle regarding totality and proportionality of sentences. The cumulative operation of a sentence, and that an offender is serving part of a previous sentence having breached his parole, is to be taken into account in assessing whether the aggregate of sentences imposed is a just and appropriate measure of the total criminality involved: Postiglione v R (1997) 189 CLR 295 per McHugh J at 307 – 308; Mill v R (1988) 166 CLR 59; R v Piacentino (2007) 169 A Crim R 348 at 356 - 357. I mention this principle so that the potential relevance of revocation of parole is not thought to be limited to the way in which it has been considered in this appeal.
Parity
The appellant and Mr Crosswell were co-offenders with respect to the crimes involving the Commonwealth Bank ATM at Kingston and the burglary of and stealing from the Chicken Barn store. The sentence of four years' imprisonment under appeal encompassed other crimes that Mr Crosswell did not commit. The additional crimes faced by the appellant account largely, if not entirely, for the longer sentence received by him. The additional crimes involving the Orford ATM are particularly serious, and given the nature of those crimes, the appellant's antecedents and circumstances, would warrant a lengthy term of imprisonment. Allowing for the need that the sentence be proportionate to the totality of his criminal offending, a sentence of two years for the Orford crimes would not be an excessive sentence for this offender, and a longer sentence could well be justified.
If two years is notionally attributed to the Orford ATM crimes and deducted from the global sentence of four years imposed on the appellant, then he received two years' imprisonment for the crimes he committed with Mr Crosswell, while Mr Crosswell received 18 months' imprisonment (imposed for the crimes involving the Commonwealth Bank ATM in Kingston) plus a portion of a nine month global sentence of imprisonment imposed in the Magistrates Court (imposed for various crimes including the burglary of and stealing from the Chicken Barn store). Without having regard to differences between the offenders which weigh in favour of a heavier sentence for the appellant, the appellant and Mr Crosswell may be regarded as receiving comparable sentences for the crimes they committed as co-offenders.
A marked difference in the sentences imposed on the appellant and Mr Crosswell was required to adequately reflect the additional crimes the appellant committed. Bearing this in mind, the question may be asked whether a comparison of the sentences imposed on the appellant and Mr Crosswell, indicate that for the crimes they committed as co-offenders the appellant received a heavier sentence. If they have not been dealt with equally in relation to the crimes they committed as co-offenders, then consideration is given to whether there has been due allowance for the relevant differences between them. The parity principle would not be breached if different sentences reflect the different circumstances of the co-offenders and their different degrees of criminality: Postiglione (above) per Dawson and Gaudron JJ at 301 - 302. As noted above, I cannot discern from the head sentences imposed upon the appellant and Mr Crosswell that they received sentences that were significantly different in relation to the crimes they committed as co-offenders. A comparison of the sentences also requires consideration of all the components of the sentences, including the non-parole periods and the cumulative or immediate effect of the sentences: Postiglione (above) at 301 - 302. In these respects, the appellant received a heavier sentence than his co-offender. However, the appellant's circumstances (including his antecedents and conduct breaching parole) and degree of criminality in relation to the crimes he committed with his co-offender, justified the imposition a heavier sentence.
Tennent J in her reasons refers to a number of distinguishing aspects of the appellant's antecedents and his criminality. I make an observation about one aspect of the Kingston ATM crimes. One of the offences that the appellant and Mr Crosswell were sentenced for in connection with these crimes was a summary offence of motor vehicle stealing. The learned sentencing judge was told that the appellant had stolen the motor vehicle the day before committing the Kingston crimes. Both co-offenders and others then used the motor vehicle to drive to Kingston for the purpose of blowing up the Commonwealth Bank ATM. The appellant has 54 prior offences for motor vehicle stealing. By comparison, Mr Crosswell was not involved in the initial taking of the motor vehicle and he had no prior convictions for motor vehicle stealing. This fact alone would have justified a heavier sentence being imposed on the appellant than Mr Crosswell.
In considering the crimes of burglary and stealing involving the Chicken Barn store, regard is to be had to the sentence imposed on Mr Crosswell by the Magistrates Court for those crimes. To make the comparison of sentencing outcomes difficult, Mr Crosswell was sentenced by the Magistrates Court for this and many other offences and received a global sentence of nine months' imprisonment. The sentence of 18 months imposed by the learned sentencing judge for the Kingston ATM crimes was cumulative to that sentence of nine months' imprisonment imposed by the magistrate. All that can be done is assess the sentence imposed on the appellant and the sentences imposed on Mr Crosswell, and determine whether the difference in the length of the sentences, the commencement date and non-parole period are accounted for, and whether there is due proportion between those sentences. In considering the difference in the parole periods imposed on the offenders by the learned sentencing judge, it is worth bearing in mind that Mr Crosswell was not eligible for parole in relation to the nine month sentence imposed by the Magistrates Court. In my view, the global sentence of imprisonment imposed on the appellant, encompassing the Chicken Barn store crimes is not so heavy that it suggests a lack of proportion with the sentence imposed on Mr Crosswell by the magistrate for these crimes.
The sentence of four years' imprisonment imposed on the appellant and the sentences imposed on Mr Crosswell, and the components of those sentences such as the non parole periods, reflect substantial differences between the offenders as identified in the reasons of Tennent J. The sentences do not suggest that for the crimes that are common to both the appellant and Mr Crosswell, the appellant received a sentence disproportionate to Mr Crosswell's sentence taking into account their respective circumstances and criminality.
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