CATCHWORDS Criminal Law - appeal against sentence - numerous offences - four cumulative sentences imposed - 21 year old offender with a drug addiction - whether sentences manifestly excessive - totality principle - desirability of structuring sentence to facilitate rehabilitation from drug addition. Crimes Act 1914 (Cth), ss16A(2), 19(3), 71(1) Crimes Act 1900 (NSW), ss429A, 448, 451 Mill v The Queen (1988) 166 CLR 59 McDonald (1994) 71 A Crim R 370 The Queen v Shannon (1979) 21 SASR 442 The Queen v Hudson (1985) 8 FCR 228 The Queen v Smith and Smith (1988) 39 A Crim R 48 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY ZDRAVKO AKO ANTONOVIC v THE QUEEN No. ACT G83 of 1994 Coram: VON DOUSSA, HIGGINS and NICHOLSON JJ Place: CANBERRA Date: 20 June 1995 IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G83 of 1994 GENERAL DIVISION ) ON APPEAL FROM THE THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ZDRAVKO AKO ANTONOVIC Appellant AND: THE QUEEN Respondent MINUTES OF ORDER JUDGES MAKING ORDER : VON DOUSSA, HIGGINS and NICHOLSON JJ WHERE MADE : CANBERRA DATE OF ORDER : 20 June 1995 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The sentences and orders in relation thereto in the Court below be varied to provide as follows: (a) That on the following offences more particularly described in the reasons for judgment delivered this day the following sentences be imposed: (i) on the first offence (burglary) - 2 years imprisonment (ii) on the third offence (burglary) - 2 years imprisonment (iii) on the fifth offence (possess cannabis) - 6 months imprisonment (iv) on the sixth offence (stealing) - 3 years imprisonment (v) on the seventh offence (stealing - 2 years imprisonment. (b) That the sentences imposed for the third and the fifth offences be served concurrently, but cumulatively upon the sentence for the first offence; that the sentence for the first offence take effect from 27 October 1994; and that there be fixed a non-parole period of 2 years in relation to the aggregate sentences imposed on the first, third and fifth offences. (c) That the sentence for the seventh offence be served cumulatively upon the sentence for the sixth offence; that the sentence for the sixth offence commence on 27 October 1995; and that there be fixed a non-parole period of 2 years in relation to the aggregate sentences imposed on the sixth and seventh offences. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) No. ACT G83 of 1994 GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: ZDRAVKO AKO ANTONOVIC Appellant AND: THE QUEEN Respondent Coram: von Doussa, Higgins and Nicholson JJ Place: Canberra Date : 20 June 1995 REASONS FOR JUDGMENT THE COURT: This is an appeal against sentence. On 4 August 1994 the appellant pleaded guilty in the Magistrates Court, Canberra, to seven offences, and upon these pleas was committed for sentence in the Supreme Court. The offences charged, in the chronological sequence in which they occurred, were: (1) one offence on 23 March 1994 of entering a building, namely the premises of a firm of chartered accountants in Canberra, with intent to steal; (2) one offence on the same day of stealing a set of keys, two laptop computers and $180 in cash to the total value of $8,180 belonging to the firm of chartered accountants; (3) one offence on 7 April 1994 of entering a building, namely the offices of the Australian Capital Territory ("the ACT") Department of Environment, Culture and Sport, with intent to steal; (4) one offence on the same day of stealing a laptop computer, $270 in cash and one numeric pager to the total value of $5,765 belonging to the ACT from the premises of that Department; (5) one offence on 13 May 1994 of possessing cannabis; (6) one offence on 6 May 1994 of stealing five computers belonging to the Commonwealth to the total value of $29,814 from the premises of the Aboriginal and Torres Strait Islander Commission; (7) one offence on 9 June 1994 of stealing another two laptop computers and three computer printers belonging to the Commonwealth to the total value of $2,700 from the premises of the Australian Surveying and Land Information Group. The first five offences charged were contraventions of the laws of the ACT. The sixth and seventh offences alleged were contraventions of s.71(1) of the Crimes Act 1914 being a law of the Commonwealth. The appellant was first apprehended by the police on 7 May 1994. He came before the Court on 16 May 1994 when he was bailed until 27 June 1994. Whilst on bail the seventh offence was committed. He was apprehended whilst committing that offence and he was remanded in custody until his appearance in the Magistrates Court on 4 August 1994. Following his pleas of guilty in the Magistrates Court he applied to the Supreme Court for bail, which was granted, to permit him to undertake residential rehabilitation at a drug rehabilitation centre. However he did not so attend, and between 8 August 1994 when he entered into bail and 27 September 1994 when he was again apprehended he had committed a further 36 offences against the laws of the ACT, namely 13 burglaries, 12 consequential thefts and 11 attempted burglaries. In each instance the premises concerned were business premises in Canberra. The only stolen property recovered was that stolen when the seventh offence charged was committed. The total value of other property and money taken but not recovered exceeds $47,000, and as well, damage was caused to property and premises during the commission of the additional 36 offences. When the appellant came before the Supreme Court on 27 October 1994 for sentence he confirmed his pleas of guilty on the seven offences upon which he had been committed from the Magistrates Court, and asked the Supreme Court to take into account the further 36 offences which were set out in the schedule pursuant to s.448 of the Crimes Act 1900 (NSW) in its application to the ACT. The schedule requested that the offences be taken into account by the presiding judge in passing sentence upon "the charge of burglary". The schedule did not indicate upon which of the two burglary charges these offences were to be taken into account. By the time of the appellant's appearance in the Supreme Court on 27 October 1994 he had been in custody for a total of 89 days. The learned sentencing judge recorded convictions upon the pleas of guilty for the seven offences charged, and in passing sentence said that he took into account the 36 additional matters and the fact that the appellant had been in custody for 89 days prior to his appearance for sentence in the Supreme Court. The sentences imposed were as follows: · in relation to the first and second offences, a sentence of two years imprisonment for entering with intent, and it was deemed inexpedient to impose any further penalty in relation to the stealing from those premises the subject of the second offence, as that was taken into account in the sentence for the first offence. · in relation to the third and fourth offences, a sentence of two years imprisonment on the offence of entering with intent, and it was deemed inappropriate to impose any further penalty in relation to the stealing the subject of the fourth offence, as that was taken into account in fixing the sentence for the third offence. The sentence imposed on the third offence was cumulative upon the sentence for the first offence. · on the fifth offence relating to possession of cannabis the appellant was sentenced to six months imprisonment to be served concurrently with the sentence for the first offence. These sentences gave an aggregate head sentence of four years imprisonment for the ACT offences in respect of which a non-parole period of three years was fixed, the sentences and the non-parole period to take effect from 27 October 1994. · on the sixth offence, the first of the offences against the Commonwealth law, the appellant was sentenced to three years imprisonment cumulative on the sentence imposed for the third offence. · on the seventh offence the appellant was sentenced to two years imprisonment cumulative upon the sentence imposed for the sixth offence. In relation to the Commonwealth offences the two sentences aggregated five years in respect of which a further non-parole period of three years was fixed. The learned sentencing judge summarised the intended effect of the sentences which had been imposed for the Commonwealth offences; his Honour said: "So that is five years in addition to the four years in respect of the Territory offences. I direct that the Commonwealth offences commence after the end of the three year non-parole period fixed in respect of the ACT offences. In respect of the Commonwealth offences, I fix a further non-parole period of three years. The effect of those sentences in all is that in the aggregate they total nine years imprisonment and the accused will serve six years before becoming eligible for parole". The sole ground upon which the appellant seeks to appeal is that the sentences imposed were manifestly excessive. However counsel for the respondent who appears in relation both to the Commonwealth and the ACT offences has drawn to the Court's attention that the apparent intent of the sentencing judge as pronounced by him does not comply with the provisions of s.19(3) of the Crimes Act 1914 (Cth) which relevantly reads: "(3)Where: (a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each federal sentence commences but so that: (c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and (d) if a non-parole period applies in respect of any State or Territory sentences - the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period." The pronouncement that the sentence of three years imprisonment for the sixth offence was to be cumulative upon the sentence imposed for the third offence provided, in substance, that the term of three years imprisonment would commence from the expiration of the aggregate of the head sentences imposed on the ACT offences, namely at the expiration of four years from 27 October 1994, i.e. on 26 October 1998. The non-parole period in respect of the sentences on the Commonwealth offences cannot commence to run from a date earlier than the commencement of the head sentences to which that non-parole period relates. However s.19(3)(d) of the Crimes Act 1914 (Cth) requires that the first federal sentence to commence after the end of the non-parole period fixed in relation to the ACT offences commence immediately after the end of the period. That period ends on 26 October 1997. If the appellant fails to make good his contention that head sentences aggregating nine years imprisonment with non-parole periods aggregating six years is manifestly excessive, it will be necessary to amend the pronounced sentencing package so as to comply with s.19(3)(d). When sentenced, the accused was 21 years of age. He has a long history of involvement with the welfare and corrections system of the ACT. He was born in Melbourne in 1973. His parents had migrated to Australia from the former Yugoslavia in 1971. Shortly after his birth the family relocated in the ACT and has remained there. The appellant grew up in a turbulent household. His father, a compulsive gambler, was described as a passive man who left his wife the onerous responsibility for the emotional, financial and physical aspects of the family. The appellant and his elder brother acted out a pattern of attention seeking offending behaviour during their teenage years. He left school at the age of 12. The appellant was committed to an institution as a juvenile on several occasions and was subject to intensive rehabilitation input by welfare and justice systems. He resided at the Quamby Youth Training Centre, youth refuges and with foster parents. From the age of 11 until the time of his appearance in the Supreme Court he had numerous appearances first before the Childrens Court, and then before Magistrates Courts in New South Wales and the ACT. Many of these appearances were in relation to charges for multiple offences, which in all totalled at least 160, including 87 burglaries and 57 thefts. In 1991 he was sentenced to two years imprisonment for a number of offences including burglary, attempted burglary and theft. On 10 December 1993 he was sentenced to 104 hours of community service for unlawful possession of which he had completed only 14 hours at the time of his apprehension for the present offences. As the result of the appellant's many attendances before the courts, virtually every sentencing option had been applied. He had persistently failed to respond to leniency extended in the form of suspended sentences and recognizances. He offended again upon his release from the 1991 sentence of imprisonment. The present offences were committed whilst a community service order remained to be completed. The seventh of the offences occurred whilst the appellant was on bail awaiting the hearing in the Magistrates Court, and the 36 further offences occurred after bail had been granted by the Supreme Court. The pre-sentence report, and other evidence before the Supreme Court, established that the appellant had addictions to heroin and other drugs. He had attended the ACT Alcohol and Drug Service for assistance with his heroin dependency in November 1993. At that time he expressed a willingness to attend for counselling in relation to alcohol and drug usage but that intention had not been translated into action. Reference has already been made to his failure to attend the drug rehabilitation centre upon his release on bail for that purpose in August 1994. At the sentencing hearing the appellant expressed a desire to throw his habit, but doubted whether he could achieve that without the supervision and assistance of a drug rehabilitation service. Against this background, when the appellant appeared before the Supreme Court for sentence, the prospects for successful rehabilitation appeared poor. In his evidence before the sentencing judge the appellant said that all his offences were targeted at commercial premises, and he asked that that be taken into account. He claimed to have some conscience about breaking into private homes, although he conceded in cross-examination that stealing from commercial premises was likely to be more profitable than stealing from private homes. The appellant expressed a feeling of "guilt" in respect of his offending but the sentencing judge considered that in his evidence he expressed no real remorse and displayed no contrition at all. That was a finding plainly open on the evidence. His Honour said: "About the only factor that he has going for him is that he is a relatively young man. In the past 10 years and particularly in relation to these offences he has demonstrated himself to be a menace to the community. The totality of the sentence must be such as to protect the community from him for a long time." Although his Honour noted the age of the appellant it is contended that it is not appropriately reflected in the overall sentencing package. This Court was directed to the psychological assessment of the appellant by Dr Richard Schlesinger which was tendered as part of the appellant's case on sentence. His Honour made no express references to this report. Dr Schlesinger observed: "Mr Antonowic [sic] is now 21 years of age and realises that he is standing at the point of a fulcrum which may become his future. His latest offences result from his unsolved drug dependency. He impresses of being genuinely willing to change his lifestyle and learn a trade such as tiling, in order to become integrated in the community at large and gain confidence through achievement and responsibility. However, he cannot do it without the support and supervision of the Alcohol and Drug Authority." It is contended that the sentence imposed was a crushing one for a 21 year old who was expressing a desire to be cured of his drug dependency, and that the structure of the sentence allowed inadequate scope and opportunity for drug rehabilitation during the parole period. Counsel for the appellant made certain criticisms of the individual sentences imposed, but his main submission was that even if the individual sentences were appropriate to the offences for which they were imposed, when four sentences were accumulated, they became in their totality manifestly excessive, and were disproportionate to the seriousness of the overall course of conduct for which the appellant was to be sentenced. Further whilst his Honour said that he took into account all the matters to which the court is directed to have regard by s.16A(2) of the Crimes Act 1914 (Cth) and s.429A of the Crimes Act 1900 (NSW), no express reference was made to the fact that the appellant had pleaded guilty to the offence, and cooperated with the authorities by readily confessing to the 36 additional matters. It is contended that the overall sentencing package does not reflect any or sufficient credit for these matters. In Mill v The Queen (1988) 166 CLR 59 at 62-63 the High Court approved the following description of the totality principle on which the appellant now relies from Thomas, Principles of Sentencing, 2nd ed. (1979) p.56-57: "The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." This statement of the principle was also applied in this Court in McDonald (1994) 71 A Crim R 370. It cannot be denied that the appellant's history of offending was appalling, and that the many offences either charged or to be taken into account required a lengthy custodial sentence. Moreover the history of offending was a matter to be taken into account when considering the sentences to be imposed on the individual offences. Taken individually, we do not think any criticism can be made of the sentences imposed for the different offences, notwithstanding a number of submissions made to the contrary on the appellant's behalf. We deal with those submissions before considering the application of the totality principle. It was suggested that it was not apparent from the global periods awarded in each sentence that the sentences reflected the 89 days spent in custody before the commencement date of the sentences. The sentences for the ACT offences were also criticised because his Honour had not said on which of the burglary sentences the 36 additional matters had been taken into account. We do not accept those submissions. By s.451 of the Crimes Act 1900 (NSW), time spent in custody in relation to the proceedings for an offence "shall be reckoned as a period of imprisonment already served". The 89 day period would constitute service under the sentence which operated first in time, namely the sentence for the first offence, being one for burglary. His Honour said that he took both the 36 extra offences and the 89 day period into account. We think the sentencing package is readily explicable on the footing that this was done by taking both matters into account on the sentence for the first burglary offence. Criticism was also made about the length of the individual head sentences for the Commonwealth offences, but the submissions in this regard must be rejected. The sixth offence involved property to the value of $29,814, and the seventh offence occurred whilst the appellant was on bail. The individual sentences were not heavy ones having regard to the antecedents of the appellant. Indeed, in relation to the first offence, assuming as we do that the 36 additional matters were then taken into account, and in relation to the seventh offence committed whilst on bail, it may be thought that the sentences are merciful. Looked at individually we do not think that the submission that no allowance was made for the pleas of guilty and cooperation with the authorities can be supported. That some allowance has been made is quite consistent with the sentences that were awarded. In the present case, the pleas of guilty and the admissions in respect of the 36 matters were not born out of a sense of contrition. Allowance was appropriate only for the administrative costs and expenses saved by the avoidance of further investigation and trials: see The Queen v Shannon (1979) 21 SASR 442 at 452-453, The Queen v Hudson (1985) 8 FCR 228 and The Queen v Smith and Smith (1988) 39 A Crim R 48. Although the individual sentences are not disproportional to the separate crimes for which they were imposed, the accumulation of four sentences in our opinion has produced an aggregate head sentence that is manifestly excessive. In our opinion an aggregate head sentence of six years imprisonment would be appropriate to reflect on the one hand the gravity of the appellant's course of criminal behaviour and on the other hand the fact that he is 21 years of age, is still expressing a wish to pursue rehabilitation, and has pleaded guilty. The reduction of the head sentence requires that the aggregate non-parole period also be reduced. Even though the appellant's attempts at rehabilitation have failed so far, with further maturity and the encouragement and supervision that can be applied through the parole system by conditions on parole requiring lengthy attendance at a residential drug rehabilitation centre, rehabilitation might yet be successful. The non-parole period fixed for a man of the appellant's age sentenced to his first long period of imprisonment should be framed to encourage that possibility. To provide for an adequate period of residential rehabilitation and supervision thereafter under parole conditions, we consider the sentence should permit a period of up to three years on parole, if that is considered appropriate at the time by the parole authorities, i.e. there should be a non-parole period of three years under an aggregate head sentence of six years. In our opinion the appeal should be allowed and the sentences varied to reflect these conclusions. The sentences as varied must comply with the direction in s.19(3)(d) of the Crimes Act 1914 (Cth). Where the accumulation of a number of individual sentences, each itself appropriate to the offence for which it is imposed, produces a disproportionate aggregate result, the High Court in Mill (at 63) recommended making sentences concurrent rather than passing a series of short consecutive sentences. The desired result can be achieved in the following way: · the individual sentences imposed by the sentencing judge will remain, i.e. two years imprisonment for the first offence; two years imprisonment for the third offence; six months imprisonment for the fifth offence; three years imprisonment for the sixth offence; and two years imprisonment for the seventh offence. · on the sentences for the ACT offences, the sentence for the third and fifth offences will be served concurrently but cumulatively on the sentence for the first offence, giving an aggregate sentence of four years. The sentence for the first offence will take effect from 27 October 1994. There will be a non-parole period of two years fixed in relation to these three sentences. · on the sentences for the Commonwealth offences the sentence for the seventh offence will be cumulative on the sentence for the sixth offence, giving an aggregate sentence of five years. The sentence for the sixth offence will commence on 27 October 1995. There will be a non-parole period of two years fixed in relation to the two sentences for the Commonwealth offences. The effect of orders in these terms will be that the sentences for the Commonwealth offences will be served in part concurrently with the sentences for the ACT offences. The appeal will be allowed and orders in these terms substituted in lieu of the sentences imposed in the Court below. I certify that this and the 15 preceding pages is a true copy of the reasons for judgment of the Court. Associate: Date: 20 June 1995 Counsel for the appellant : Mr R Livingston Solicitor for the appellant : Lander & Co. Counsel for the respondent : Mr G C Lalor Solicitor for the respondent: Commonwealth Director of Public Prosecutions and Director of Public Prosecutions (ACT) Date of hearing : 3 April 1995 Date of judgment : 20 June 1995