FEDERAL COURT OF AUSTRALIA Khouzame v The Queen [2001] FCA 354 SENTENCING – general principles of sentencing – matters to which a Court shall have regard – whether sentence was manifestly excessive – whether due weight given to age, prior convictions and plea – whether due regard paid to the availability of a periodic detention order – whether too much weight given to general deterrence – whether too little weight given to need for rehabilitation – where appellant did not give evidence - consideration of cumulative sentences. Crimes Act 1900 (ACT) Firearms Act 1996 (ACT) Periodic Detention Act 1995 (ACT) Queen v Hayes [1984] 1 NSWLR 740 cited House v The King (1936) 55 CLR 499 followed The Queen v Tait and Bartley (1979) 46 FLR 386 followed Lowndes v The Queen (1999) 195 CLR 665 followed Dinsdale v The Queen (2000) 175 ALR 315 (HCA) followed R v Dodd (1991) 57 A Crim R 349 followed The Queen v Griggs (1999) 167 ALR 673 followed The Attorney-General (SA) v Tichy (1982) 30 SASR 84 followed Thomas' Principles of Sentencing, 2nd ed ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY NICHOLAS KHOUZAME V THE QUEEN NO. A 61 OF 2000 BEAUMONT ACJ, MILES and GYLES JJ 3 MAY 2001 CANBERRA IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 61 OF 2000 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: NICHOLAS KHOUZAME APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BEAUMONT ACJ, MILES and GYLES JJ DATE OF ORDER: 3 MAY 2001 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed in part. 2. So much of the sentence that fixed a non-parole period of three years be set aside, and in lieu thereof a non-parole period of two years be fixed. 3. The appeal otherwise be dismissed. 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 A 61 OF 2000 BETWEEN: NICHOLAS KHOUZAME APPELLANT AND: THE QUEEN RESPONDENT JUDGES: BEAUMONT ACJ, MILES and GYLES JJ DATE: 3 MAY 2001 PLACE: CANBERRA REASONS FOR JUDGMENT THE COURT: INTRODUCTION 1 The appellant pleaded guilty to, and was convicted on, the counts on an indictment containing six counts of burglary on residential properties in Canberra, six counts of larceny of goods from those properties, and one count of being in possession of stolen property, namely goods stolen from 14 residential properties in Canberra. 2 The offence of burglary is punishable by imprisonment for 14 years (s 102(1) Crimes Act 1900 (ACT) ("the Act")). The offence of theft is punishable by imprisonment for 10 years (s 99 of the Act); and the offence of handling stolen property is punishable by imprisonment for 14 years (s 113(1) of the Act). 3 The first burglary took place on 12 February 1999, and the remaining five burglaries were committed over three consecutive days, commencing on 16 February. The burglaries, in which the property in the appellant's possession had been stolen, occurred between 7 January 1999 and 17 February 1999. An unlicensed air rifle was also found at the appellant's premises and, at the appellant's request, this offence was taken into account, under s 448 of the Act. 4 On 27 August 1999, the appellant was sentenced to a total term of six years imprisonment. A non-parole period of three years was fixed. 5 The structure of the sentence was as follows: · One years imprisonment for each of the six burglaries, to be served cumulatively. · One years imprisonment on each of the six larcenies, to be served concurrently with the relevant burglary; and · One years imprisonment on the possession of stolen property, to be served concurrently with the other sentence. 6 In summary, the facts were that on 18 February 1999, the police responded to a report of a suspicious vehicle with stolen number plates at an address in Lyons. The police spoke to two men, one of whom was the appellant. The police established that both men lived at the Lyons address, and that the vehicle belonged to the appellant. A search warrant was obtained. The search revealed property taken in a number of burglaries. House-breaking instruments were discovered in a search of the vehicle. Both men were arrested and charged. The appellant admitted to the police his involvement in a number of burglaries. The property discovered on the appellant's premises was part of property of a total value of $31,760, which had been stolen in the burglaries. The other part had been stolen in other burglaries, in which property of a total value of $159,348 had been stolen. 7 The appellant was aged 18 years at the time of the offence and is now aged 20 years. He had not previously appeared before a court. THE CHARGES · Count one charged the appellant with entry into a house in Fergusson Crescent, Deakin on 12 February 1999 as a trespasser with intent to steal. · The second count charged the appellant with stealing property worth $10,080 including a computer, a printer, a Villeroy and Bosch knife set, a television, video apparatus, a phone/fax, a sound system with CDs, cameras, passport, visa card, jewellery, perfume and cash. Entry to the house in Deakin was gained by breaking a window. Every room in the house had been disturbed. The Villeroy and Bosch knife set was found in the appellant's kitchen. The whipper snipper was found in his shed. · Count three charged the appellant with entry into a house in Kenyon Circuit, Monash on 16 February 1999 as a trespasser with intent to steal. · The fourth count charged the appellant with stealing property worth $3,120, including a number of electric drills and other power tool equipment, tools, several remote control cars and a quantity of alcoholic and non-alcoholic beverages. A number of windows of the house in Monash had been tampered with. An entire window in the laundry – pane and frame – had been removed. The stolen power tools were found at the appellant's premises. · Count five charged the appellant with entry into a house in Fremantle Drive, Stirling on 16 February 1999 as a trespasser with intent to steal. · The sixth count charged the appellant with stealing property worth $7,825, including a television, furniture and fittings and other items, a computer and telephone equipment. A bedroom window in the house in Stirling had been forced open. Some of the stolen items were located at the appellant's address. · By count seven, the appellant was charged with entry into a house in Quiros Street, Red Hill on 17 February 1999 as a trespasser with intent to steal. · The eighth count charged the appellant with stealing property, namely a computer tower and a computer game, which were later found at the appellant's address. Entry was gained to the Red Hill house by forcing open a window in the family room. · In count nine, the charge was entry into a house in Mackie Street, Stirling on 17 February 1999 as a trespasser with intent to steal. · Count ten charged the appellant with stealing property worth $8,652, including furniture, a television, computer equipment, telephone equipment, a camera, jewellery, perfumes and cash. Entry into the house in Stirling was achieved by cutting a hole (two metres by one metre) into a shade cloth wall. The stolen property was located at the appellant's address. · Count eleven charged the appellant with entry into a house in Kallara Close, Duffy on 18 February 1999 as a trespasser with intent to steal. · By count twelve the appellant was charged with stealing property worth $2,084, including computer games, jewellery, a mobile phone, a camera, a torch and a wallet. The back door of the Duffy premises had been forced with a crowbar. The stolen property was located at the appellant's home. · The thirteenth count charged the appellant with dishonestly having stolen property in his possession, knowing it to be stolen, including (in addition to the foregoing) CDs, camera equipment, videos, a telephone, expensive wine, a washing machine, a stove, a computer system, a coin collection, a range of jewellery and a personal computer. The property, stolen from a series of burglaries (fourteen in all) in Canberra suburbs in January and February 1999, was found by the police at the appellant's address. The items of property stolen were worth $15,300, $30,000, $19,000, $6,600, $19,000, $6,000, $8,200, $19,572, $650, $10,751, $7,100, $14,575, $1,150 and $1,450 respectively. THE EVIDENCE BEFORE THE SENTENCING JUDGE (a) The prosecution's statement of facts 8 The prosecution's statement of facts, which was not disputed, was as follows: q On 18 February 1999, the police were informed of a suspicious vehicle at 4 Derwent Street, Lyons; a commercial van with ACT registration. The registration plates had been stolen from a sedan vehicle on 2 February 1999. q The police spoke to the appellant and another man. They stated that they lived at the address. The appellant admitted that he owned the van. q A search of the premises pursuant to a warrant revealed a large amount of property that had been taken in recent burglaries. Some of the stolen property, including couches, a stove and a washing machine, was being used by the occupants of the premises. Other items had been stored. A search of the van revealed gloves, carry bags, a crowbar and a baseball bat. q The appellant participated in a taped record of interview, admitting to a burglary at a house in Kallara Close, Duffy, and a "few" other burglaries. (b) The pre-sentence report 9 The Territory's Department of Justice and Community Safety produced a report, dated 23 August 1999, pursuant to Div 2 of Part 12 of the Act, to the following effect: · The appellant was born on 21 November 1980. His parents had emigrated from Lebanon. He left his family's home in Sydney at 16 years of age because of family problems. He moved to Canberra where he has remained, apart from a five month "working holiday" in New Zealand. · The appellant left school during Year 9. He started an apprenticeship as a tiler, but left this after a year, moving then to Canberra. He had enrolled in a five month English course at the Canberra Institute of Technology, and was planning to study towards a Year 10 Certificate the following year. · The appellant had had about five different jobs as a tiler. In recent times he had only worked two days a week. He had received an offer of a job in New Zealand. · The appellant's only assets of value were his van and his tools of trade. He owed $8,000 as compensation for a motor vehicle accident. · The appellant met his co-offenders at the local shopping centre during a period of unemployment. They discussed committing burglaries. Their plan was that the co-offenders would telephone the appellant when they had broken into a house and the appellant would drive to the location where the stolen property would be loaded into his van. The appellant would then sell the goods and he and his co-offenders would share the proceeds. · The appellant said that his co-offenders had "threatened him to ensure his silence". · The appellant said that he regretted having been involved in the offences. 10 The report offered the following assessment: "ASSESSMENT Mr Khouzame is a 19 year old man who was raised in a family characterised by violence. As a consequence, he left home at an early age and has lived independently since. His binge drinking, while not directly linked to his offending, could be of concern if it was not replaced by more moderate patterns of drinking within the next few years. Mr Khouzame seems to have some awareness that his drinking patterns are potentially harmful to himself and others. It is of concern that Mr Khouzame was, by his account, so easily convinced to join in a criminal activity. This suggests that he has not yet developed a strong internal code of ethics which would inhibit most people his age from engaging in such activity. He does appear to display a degree of remorse for his actions, but this has not been sufficient to overpower his loyalty to, or fears of, his co-offenders. To avoid further offending of this nature, Mr Khouzame needs to develop and strengthen his personal code of ethics and consequential thinking skills. ACT Corrective Services is currently trialing cognitive behavioural programs which aim to tap into these deficits and Mr Khouzame would be considered a suitable candidate for such programs should he receive a community based order." 11 The following comments were made on sentencing options: "COMMENTS ON SENTENCING OPTIONS … Fine Mr Khouzame has little capacity to pay a fine, especially if compensation is sought. Recognizance Should Mr Khouzame receive a recognizance, conditions to submit to probationary supervision with conditions to attend a cognitive behavioural program could assist in reducing the likelihood of reoffending. Community Service Order Mr Khouzame has consented and is assessed as suitable for Community Service work. Periodic Detention Order Mr Khouzame has consented to a Periodic Detention Order being imposed. A bed is available at the centre. Imprisonment Mr Khouzame is aware a custodial sentence is possible." (c) Burglary statistics 12 The Crown tendered statistics, prepared by the Australian Bureau of Statistics, indicating that burglary was one of the most common crimes recorded, and that the Australian Capital Territory had a burglary rate which, when compared with other parts of the country, was high. (d) Appellant's employment documents 13 Documents were tendered on behalf of the appellant showing that he had done some form of tiling study, and that he had a prospect of employment in New Zealand. STATUTORY SENTENCING PRINCIPLES 14 Division 1 of Part 12 of the Act deals with the general principles of sentencing. 15 Section 429 provides that the only purposes for which a sentence may be imposed are (a) to punish the offender to an extent and in a way that is just and appropriate in all the circumstances; or (b) to deter the offender or other persons from committing the same or a similar offence; or (c) to rehabilitate the offender; or (d) to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged; or (e) to protect the community from the offender; or (f) a combination of 2 or more of the purposes referred to in paragraphs (a) to (e) inclusive. 16 Section 429A specifies a number of matters to which a Court shall have regard, subject to two qualifications: (1) the list is not intended to be exhaustive; and (2) the matters specified are only to be taken into account if relevant and known to the Court. The list includes the following: · the nature and circumstances of the offence; · any other offences permitted (as here) to be taken into account; · if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct; · where the personal circumstances of any victim of the offence were known to the offender at the time of committing the offence – those circumstances; · any injury, loss or damage resulting from the offence; · any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence; · the degree of responsibility of the person for the commission of the offence; · the degree to which the person has co-operated, or undertaken to co-operate, with law enforcement agencies in the investigation of the offence or other offences; · the cultural background, character, antecedents, age, means and physical or mental condition of the person; · the probable effect that any sentence or order under consideration would have on any of the person's family or dependants; · whether the recording of a conviction or the imposition of a particular sanction would be likely to cause particular hardship to the person; · current sentencing practice; · whether the person has pleaded guilty and, if so, the stage of the proceedings at which the person did so or indicated an intention to do so; · whether the person has demonstrated remorse. 17 Section 429B provides that the Court shall not increase the severity of the sentence that would otherwise be imposed due to, inter alia, the fact that the person to be sentenced chose not to give evidence on oath. 18 Section 429C(1) provides that a court shall not pass a sentence of imprisonment unless (after having considered all other available penalties) it is satisfied that no other penalty is appropriate in all the circumstances. However where a court passes a sentence of imprisonment, it shall state the reasons that no other sentence is appropriate (s 429C(2)). THE PRIMARY JUDGE'S REMARKS ON SENTENCE 19 The substance of the remarks made on sentence were as follows: ¨ The alleged offence of possession of a firearm without a licence, contrary to the Firearms Act 1996 (ACT), was taken into account. ¨ The information contained in the Crown's statement of facts was not disputed by the appellant, who did not give evidence, except that documents were tendered on his behalf showing that he had done some form of tiling study, and indicating that he had a prospect of employment in New Zealand. ¨ The offences were all committed upon residential premises and in daylight hours "all over" Canberra. ¨ This was an "outrageous assault" upon the community and must attract a gaol sentence because firstly, the appellant had to be punished; and secondly, people like him in the community "must get the clear message" that offences of this nature, when detected, will result in "substantial" custodial sentences. ¨ The statistics produced by the Australian Bureau of Statistics, indicating that burglaries are a very prevalent offence in the ACT, should be accepted. ¨ The following observations of Street CJ in Queen v Hayes [1984] 1 NSWLR 740 at 742 should be borne in mind: "The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the Criminal Courts." ¨ It is not merely the loss of valuable property, which causes distress. ¨ Organised and premeditated crime, committed purely for financial gain, and not, for instance, to sustain a drug habit, must be severely punished. ¨ The appellant was only18 years old. He had spent virtually no time in custody. He had never been in the courts before, "which in itself is very surprising". ¨ The appellant's counsel informed the Court that, although the appellant had refused to identify his co-offenders (except the man he lived with), this was because "he is in fear of doing so". This is understandable. ¨ Through his counsel the appellant said that he was sorry that he became involved, and that he did so because he was unemployed at the time. This should however, be given little weight, since the appellant has not given evidence on this matter. Accordingly, counsel's statement was taken "with a grain of salt". ¨ A sentence has to be structured in a fashion which follows the various factors identified in the Act, and which will not only punish but will be conducive to rehabilitation. ¨ The punishment will, in taking into account the various matters specified in s 429A, seek an outcome which is just and appropriate in all the circumstances. It will also aim to deter the appellant and others from committing the same or similar offences, to rehabilitate, to denounce this type of conduct, and to protect the community from him. THE GROUNDS OF APPEAL 20 The appeal is brought upon the following grounds: · The sentence was manifestly excessive. · Due weight was not given to (a) the appellant's age (18 years); (b) the absence of prior convictions; and (c) his plea. · Due regard was not paid to the availability of a periodic detention order under the Periodic Detention Act 1995 (ACT). · The fact that the appellant did not give evidence should not have been taken into account. · Too much weight was given to the factor of general deterrence, and too little to the need for rehabilitation of a young offender. THE ARGUMENTS IN SUPPORT OF THE APPEAL 21 The following submissions are advanced in support of the appeal: q Notwithstanding the large number of burglaries, the high monetary value of the stolen goods and the degree of planning and forethought, the appellant was a young man now aged 20 (18 at the time of the offences) and had no previous appearances before any court. His youth, his lack of prior convictions, his remorse evidenced by his early pleas of guilty, and the apparent prospective benefit to him of future education and rehabilitation, are compelling mitigating factors. q The legislature contemplates (in s 429C) that a court shall impose a term of imprisonment only as a last resort. Parliament has also indicated (in s 429A) the factors to be taken into account on sentence. His Honour referred adversely to the appellant's failure to give evidence concerning his remorse and questions about unemployment. But, whilst s 429A contemplated that the Court take into account the degree of co-operation with law enforcement agencies, and the extent to which remorse has been demonstrated, his Honour did accept that the reason why the appellant would not give evidence identifying his other co-offenders was because of his fear of the consequences. In these circumstances, there was an erroneous application of the sentencing principles enacted in s 429A. q Having regard to the short period over which all the offences occurred (six days), his Honour erred in fixing cumulative sentences in respect of each of counts 3, 5, 7, 9 and 11. q Section 4 of the Periodic Detention Act empowers Territory courts to impose weekend detention to a maximum of 104 weekly periods, each of two days. Section 6 prescribes conditions precedent to the making of such an order, including the need for the Court to be satisfied that it is appropriate for an offender to undertake such an order, and that appropriate facilities are available. The pre-sentence report stated that the appellant consented to such an order, and that facilities were available. Having regard to the circumstances of the offence and the appellant's age, antecedents and remorse, the Judge failed to give due regard to the prospect of the appellant's serving a term of imprisonment in the form of periodic detention. conclusions on the appeal 22 The limits on the scope of appellate intervention in this area are settled. An appellate court cannot interfere with sentence merely because, in its view, the sentence is excessive. Interference can occur only if there is shown to be an error, for instance, in acting on a wrong principle, or in misunderstanding or wrongly assessing a salient feature of the evidence. Indication of error may be found in the judge's remarks, or the sentence may be so excessive as to manifest such error (House v The King (1936) 55 CLR 499 at 504 – 505; The Queen v Tait and Bartley (1979) 46 FLR 386 at 388; Lowndes v The Queen (1999) 195 CLR 665 at 671 – 672; Dinsdale v The Queen (2000) 175 ALR 315 (HCA) at 329). 23 The general principles to be applied by a sentencing judge are equally well settled. They include, in addition to the provisions of s 429 and s 429C and the non-exhaustive list in s 429A, such basic sentencing principles as proportionality, so that, making due allowance for all relevant considerations, and viewing the offence objectively, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime. Without that objective assessment, there must be a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances (R v Dodd (1991) 57 A Crim R 349 at 354). 24 The starting point for consideration of the objective seriousness of an offence is the maximum statutory penalty, to be considered in the light of the actual circumstances of the offence (The Queen v Griggs (1999) 167 ALR 673 at 678). 25 In R v Hayes, above (which was cited by the primary Judge) it was held by the New South Wales Court of Criminal Appeal that the policy of the criminal courts in sentencing for offences of break, enter and steal should reflect more appropriately the seriousness of the offence in the light of the statutory maximum of 14 years and the increasing frequency of the offence. Street CJ prefaced the observations cited by the primary Judge by saying (at 742): "Householders cannot leave their homes in confidence that the contents will be safe. The trauma of re-entering a home that has been ransacked is in itself no light matter. This can cause a continuing uneasiness and disquiet at the knowledge that an unknown person has invaded the sanctity of the home. Added to this is the emotional distress at the loss of property, including treasured items that frequently have a sentimental value far in excess of their intrinsic worth. Even those who are not immediate victims of burglary nevertheless feel its effect in the escalating premiums charged by the insurance industry for insuring against the risk of its occurrence." 26 The objective features of these offences were (a) the significant planning and premeditation involved; (b) a motivation of greed; (c) the not insignificant value of the burgled property ($31,760); and (d) the connection between the appellant and the systemic occurrence of a spate of prior burglaries over the previous six weeks in which property of substantial value ($159,348) had been stolen. In our view, these objective features called for a significant custodial sentence. 27 Turning to the relevant subjective features, the following were plainly relevant and ought, in our view, to have been specifically taken into account particularly as to the non-parole period: (a) the plea of guilty; (b) the appellant's age; and (c) his lack of antecedents. 28 Whilst these factors were noted by his Honour in narrative form in his judgment on sentence, there was nothing said to indicate that he gave particular consideration or weight to any of them, either generally or, in particular, in relation to the non-parole period. Instead, his Honour said that he took into account the various matters set out in s 429A without identifying any particular matter or matters. Reasons for sentencing delivered ex tempore should not be scrutinised zealously for error or found wanting in expression. However, the use of this verbal formula leads to difficulty in understanding what was actually taken into account, and does not enable any assumptions to be made as to that. We are therefore able, and, indeed, bound, to consider the sentences themselves to endeavour to determine whether the relevant factors were taken into account. 29 The head sentence is severe, but we do not think that if the subjective factors were considered the sentence would necessarily have been less. It is not appropriate to interfere with that sentence. The fixing of a non-parole period is different. It is very much involved with the object of rehabilitation where the subjective features to which we have referred have particular relevance. In our opinion, if his Honour had properly taken into account the subjective factors, he would not have fixed a non-parole period as lengthy as three years for a young offender with no antecedents, who had pleaded guilty and had, to some limited degree at least, co-operated with the authorities. 30 In our view, to that extent, the substantive discretion miscarried, and the appeal should accordingly be allowed, to that extent, by reducing the non-parole period. This should be done by setting aside that part of the sentence, and substituting a non-parole period of two years for the three year period fixed. 31 Turning next to procedural aspects of the sentence, as has been noted, it is argued for the appellant that his Honour erred in making some of the sentences cumulative. 32 We cannot accept the argument. 33 In The Attorney-General (SA) v Tichy (1982) 30 SASR 84, King CJ said (at 85): "The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence." 34 The "single transaction" concept may be held to cover a sequence of offences involving a repetition of the same behaviour towards the same victim (Thomas' Principles of Sentencing, 2nd ed at 53–55). But, in our opinion, his Honour correctly applied this principle by providing that offences against the same victim be treated as concurrent, whereas the distinct offences against other victims be accumulated. No error in this appropriate concurrent/cumulative treatment is revealed. 35 With respect to the possibility of periodic detention mentioned in argument on behalf of the appellant, the term of imprisonment here exceeded the statutory limit (s 9(20)) of 24 months. In any event, there was little evidence adduced on behalf of the appellant to make a case for periodic detention a realistic option. Given the objective features which require a significant custodial sentence, no error in this aspect of his Honour's discretion has been demonstrated. ORDERS 36 We propose the following orders: 1. The appeal be allowed in part. 2. So much of the sentence that fixed a non-parole period of three years be set aside, and in lieu thereof a non-parole period of two years be fixed. 3. The appeal otherwise be dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 3 May 2001 Counsel for the Applicant: Mr J Pappas Solicitor for the Applicant: Baxter & O'Keefe Counsel for the Respondent: Mr R Refshauge SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 16 February 2001 Date of Judgment: 3 May 2001