New South Wales Court of Criminal Appeal CITATION : R v SUTTON [2000] NSWCCA 145 FILE NUMBER(S) : CCA 60207/99 HEARING DATE(S) : 12 April 2000 JUDGMENT DATE : 12 April 2000 PARTIES : Regina William Lewis Sutton JUDGMENT OF : Hulme J at 1; Dowd J at 44 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/51/0223 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : Crown: PG Berman Appellant: PJD Hamill SOLICITORS : Crown: SE O'Connor Appellant: TA Murphy DECISION : Leave to appeal granted; Appeal dismissed - 13 - IN THE COURT OF CRIMINAL APPEAL No: 60207/99 HULME J DOWD J Wednesday, 12 April 2000 REGINA -v-William Lewis SUTTON JUDGMENT 1 HULME J: On 14 January 1998 William Lewis Sutton was arrested and charged with a number of offences of dishonesty. He pleaded at the Local Court at the earliest opportunity to three charges of breaking, entering and stealing, one of possessing housebreaking implements and one of entering land with intent to commit an offence. 2 On 2 April 1998 Karpin DCJ sentenced the applicant in respect of the above offences to imprisonment for a minimum term of one year and three months from 14 January 1998, and an additional term of two years and nine months. 3 Prior to the applicant's arrest on 14 January 1998, he had a record extending back over almost 30 years for offences of dishonesty. The record was later to be described by Ducker DCJ, an experienced sentencing judge, as one of the worst he had seen. 4 However, Karpin DCJ had been presented with what was described as an apparently genuine and concerted attempt to overcome the applicant's alcohol and drug - particularly heroin - addiction since his arrest. And in order to break the cycle her Honour imposed a much lesser minimum term, and I would infer full term, than would ordinarily have been the case. 5 On 7 July 1998 the applicant was charged in relation to a number of other offences of breaking, entering and stealing with alternative charges of receiving, all of which have been committed prior to his arrest on 14 January 1998. There was also one charge of obtaining a benefit by deception. 6 To the latter charge and to the charges of receiving the applicant pleaded guilty at committal proceedings and on 16 April 1999 was sentenced by Ducker DCJ in relation to them. 7 It is from the sentences imposed by Ducker DCJ on that occasion that the applicant has sought leave to appeal to this court. 8 Although the evidence before his Honour suggested that the applicant's possession of the property, the subject of the charges, may well have arisen from offences of breaking, entering and stealing his Honour made it clear that he approached the matter strictly in accordance with the applicant's pleas to the charges of obtaining property by deception and receiving. One reference towards the end of his Honour's remarks on sentencing to breaking and entering seems to have been accidental and insignificant. 9 These offences render the applicant liable to imprisonment for periods of five years and ten years respectively, rather than fourteen years which is the maximum prescribed for the offence of breaking, entering and stealing from a dwelling house. 10 The property the subject of the receiving charges had been found in the prisoner's home soon after his arrest on 14 January. It was worth in all some $15,000 and was part of the proceeds of some thirteen thefts from dwelling houses which had occurred between the 16 September 1997 and 12 January 1998. 11 The property the subject of the deception charge was also the proceeds of such an incident. The applicant had purported to sell it and in the course of doing so made representations to the effect that he owned it. Because it has a relevance later it should be mentioned that each of the receiving charges related to property, the subject of a different theft. 12 The only difference between the receiving charges, the subject of counts 2 to 14, lay in the value of the property the subject of those counts. The lowest value is $80 and the highest was $5,225. In the case of about half the counts the value lay between $200 and $1,000, the value of the property the subject of count 14 was $3,350. 13 The sentences imposed by Ducker DCJ in respect to the offences were as follows: 1) in respect of the charge of obtaining a benefit by deception his Honour imposed a minimum term of imprisonment of six months and an additional term of two months. 2) in respect of each of twelve counts of receiving his Honour imposed a minimum term of imprisonment of two years and an additional term of ten months, and 3) in respect of fourteenth count, also a count of receiving, his Honour imposed a minimum term of imprisonment of two years with an additional term of three years. 14 His Honour ordered that each minimum term should commence on 13 April 1999, that is at the end of the minimum term to which the applicant had been sentenced by Karpin DCJ. 15 In imposing the sentences which he did, Ducker DCJ said that he had endeavoured to arrive at sentences which would have been appropriate had all of the matters, that is those dealt with by Karpin DCJ and those dealt with by himself, been considered together and to apply the principle of totality in respect of all offences. His Honour said also that he had endeavoured, insofar as he felt able to do so, to give effect to Karpin DCJ's wish that the applicant be given an opportunity on parole at the earliest possible date, but that the matters before him could not be regarded as a mere trivial addition to the criminality revealed in the offences heard by Karpin DCJ. His Honour did say that he was prepared to accept that at the time of sentencing before Karpin DCJ the applicant believed that he had in effect wiped the slate clean with his pleas of guilty in respect of the matters before Karpin DCJ. 16 The effect of the orders made by Ducker DCJ was to increase the applicant's overall sentence from four years to six years and three months, but to increase the minimum term from 15 months to three years and three months. 17 It was submitted on behalf of the applicant that, in the circumstances, the sentences imposed by Ducker DCJ were manifestly excessive. In support of this conclusion it was submitted inter alia: 1) that the delay in prosecuting the applicant in respect to the offences dealt with Ducker DCJ was not taken into account; 2) that the sentence imposed failed to reflect Ducker DCJ's intention to "give effect to Judge Karpin's wish that the prisoner be given an opinion on parole at the earliest possible date"; 3) that the increase in the minimum term was disproportionate to the overall increase in the sentence; 4) that his Honour erred in accumulating the sentences imposed by Karpin DCJ and those he imposed, or alternatively in not giving reasons for that course; 5) that the sentence failed to reflect the principle of totality adequately; 6) that there was no basis for imposing the lengthier term of five years in respect of count 14 than the two years and ten months in respect of counts 2 to 13; 7) that there is displayed in what his Honour did a breach of the principles laid down by the High Court in Pearce v R (1998) 72 ALJR 1416. 18 While clearly the two stage sentencing process represented by proceedings before Karpin DCJ and the subsequent charging and sentencing of the applicant and the delay incidental thereto should not have been allowed to operate to the detriment of the applicant, it must be recognised that the delay in him being charged with the second group of offences was only something in the order of six months. Furthermore, it appears that the police investigating the second group of matters had endeavoured to speak to the applicant on 17 March 1998 while he was in prison but he had refused to speak to them. 19 The applicant's house had been the subject of a search under a search warrant on 14 January 1998 at a time when his mother was present. It is impossible to believe that the applicant was not aware of that search and the fact that property, the subject of the other charges, was or was likely to have been found in the course of that search. 20 Clearly the obtaining of satisfactory evidence that such items were stolen could be expected to have taken some little time, and if the applicant had really been concerned to wipe the slate clean at the time he was sentenced by Karpin DCJ, he could have informed the police of his involvement in other offences. It may well be that had he not refused to speak to police officers on 17 March, the matters would have then been more quickly dealt with. 21 In these circumstances it does not seem to me that the six months or so delay between January and July 1998 should be regarded as of significance. With the applicant's record it is impossible to believe he was not aware of the practice of having additional offences taken into account during the course of sentencing, and I would regard it as much his responsibility as that of the authorities that these additional matters were not dealt with at the same time as those which were dealt with by Karpin DCJ. 22 There was also the time between July 1998 when the applicant was charged and April 1999 when he was dealt with by Ducker DCJ. He was committed for sentence on 7 December 1998. There is no explanation of these five or so month periods between charging and committal and committal and sentence, but although proceedings before Ducker DCJ came on within three days of the expiration of the minimum term fixed by Karpin DCJ, I do not see in that nine or ten month period the reasons for any significant reduction in the punishment otherwise appropriate, particularly is this so when the applicant was in any event receiving significant discounts for his prospects of rehabilitation. 23 The circumstances are radically different from those which were the subject of consideration by the High Court in Mill v Queen 1988 166 CLR 59 or in Todd v Queen (1982) 2 NSWLR 517. Furthermore, it is clear in any event that Ducker DCJ had regard to the principle of totality insofar as it applied to the sentences for the two groups of offences and to the extent to which he felt able to, to the issue of the applicant's rehabilitation. 24 The submissions matters I have numbered 2, 3 and 4 can be dealt with together. Firstly his Honour's expressed intention to give effect to Karpin DCJ's wish that the prisoner be given an opportunity on parole at the earliest possible date was qualified by his statement that he would do this "insofar as he felt able to do so". It may be inferred that that is exactly what his Honour did. The unusual proportion between the minimum and additional terms his Honour imposed, even if the minimum term imposed by Karpin DCJ is also taken into account, presumably reflects both his Honour's intention and this qualification. 25 I do not see in the relativity between the minimum and additional terms, any disproportion of which the applicant is entitled to complain. Similarly his Honour's decision to accumulate the sentences imposed by Karpin DCJ and those he himself imposed, may be taken as a reflection both of his intention to give the prisoner an opportunity on parole at the earliest possible date, and of the qualification which he made in that regard. 26 I turn then to the ground I have numbered 6. There is, in my view, force in the submission that there was nothing in the difference between the offences the subject of counts 2 to 13 and that the subject of counts 14 to justify the difference in sentences for the first group of offences and that the subject of count 14. It may also be said that the differences between some of the offences in counts 2 to 13 were also not reflected in the sentences imposed on those counts. 27 It was in support of this ground that reliance was placed on the decision of the High Court in Pearce (supra) where at [45] the majority of the court said:- "To an offender, the only relevant questions may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 28 Ducker DCJ, a very experienced sentencing judge acknowledged he was bound by that approach while contrasting it with what he described as "a sensible, appropriate, convenient and simple process" which had hitherto been generally practiced. 29 In the circumstances of this case the effect of adopting the approach laid down by the majority of the High Court was likely to be influenced by the relativity between on the one hand the value of the property the subject of an individual charge, and on the other the fact that the offence was one of a series of offences. Thus while, if emphasis were to be placed on the value of the property the subject of the charge, prima face that involving $80 should attract a significantly lower penalty than the charge involving property worth $5,225 if each offence was but regarded as an illustration of dishonesty in receiving, and the value of the property just a happenstance of what was on offer from the thief or thieves, then little or no ground would exist for distinguishing between those charges. There is not such a radical difference between $80 and $5,225 that a difference in penalty is required if each offence was but an instance of an ongoing course of conduct. 30 There is no reason why, by parity of reasoning with the way in which the High Court in Veen v R (No 2) (1987 88) 164 CLR 465 treated an offender's antecedent criminal history, a court should not take account of other offences charges in judging whether an offence, the subject of particular attention, was a manifestation of a continuing attitude rather than an uncharacteristic event. 31 Given the number and similarity of offences the subject of counts 2 to 13, his Honour was entitled to regard each as meriting equal punishment and the difference in value of the property, the subject of those charges, as insignificant. That approach leads me to the view that if the sentence imposed on those twelve charges was correct, that imposed on count 14 was not. However, it does not necessarily follow that just because there was a difference the penalty imposed in respect of count 14 was wrong. 32 As I read the decision of the High Court in Pearce, his Honour was required to consider each offence separately and to at least indicate the sentence which he thought appropriate to each offence separately. The use by the High Court of the word fix must I think indicate at least that much. However, on the view I take of paragraph 45 quoted above, I think he was also required to go further and to actually impose a sentence which he thought was appropriate. 33 I also read Pearce as indicating that his Honour was not entitled in the sentence he determined for any one offence to take into account the criminality involved in the others. Thus the sentence imposed on count 14 should not have reflected the criminality involved in the other offences. 34 However, in determining the appropriate sentence for any one offence, his Honour was, as I have indicated above, entitled to take into account that each offence was just but an instance of a continuing course of conduct and not an isolated instance. 35 The disparity between the sentences imposed on counts 2 to 13 on the one hand and count 14 on the other indicates, it seems to me, that his Honour while acknowledging the authority of Pearce, did not adhere to both of the aspects of that decision to which I have referred. It seems to me that his Honour should, in the case of each of counts 2 to 14, (with the possible exception of the first and second of those offences) have imposed an identical sentence. 36 The question then arises whether the sentence which his Honour imposed in respect of count 14 was in itself excessive or was intended to reflect criminality inherent in the other charges. 37 There is nothing which persuades me of the latter proposition. Indeed it seems to me that the identity in the minimum term, which there is between the sentences imposed on counts 2 to 13 and 14, indicates that his Honour did not intend to or in fact, reflect the criminality in the earlier counts in the sentence he imposed on count 14. Rather, does it seem to me, that what his Honour did was to regard the sentences he imposed on the earlier counts as almost irrelevant and sentences which would be entirely subsumed in what in the sentence he intended to impose on count 14. 38 There remains the question whether the sentence was excessive. When one has regard to the applicant's antecedents, I would have thought that were it not for the prospects of rehabilitation and the applicant's attitude to that topic which found reflection originally in the judgment of Karpin DCJ, the sentence or sentences imposed by Ducker DCJ, should have substantially exceeded the five year sentence which His Honour ordered. 39 With one exception, all of his offences carried a maximum penalty of 10 years imprisonment and although the amounts of money involved clearly did not place these offences at the top end of the scale, when regard was had to all of them and to the applicant's demonstrated attitude of continuing disobedience to the laws and morals of society, a penalty substantially in excess of ten years would have been called for. 40 The penalty imposed by Ducker DCJ was five years. In sofar as only two years of this was by way of minimum term, even though additional to that which the applicant had just completed under the sentence imposed by Karpin DCJ, I think it impossible to say that even for one offence involving only $3,000 or so, such a sentence was excessive. Thus I see nothing in any of the sentences imposed by Ducker DCJ or in his Honour's process of reasoning or in the result which would lead me to conclude that the appeal should succeed. Such error as I think existed in his Honour's reasoning for sentences, lay in sentences which were low for the applicant's criminality but error which was inconsequential. 41 Even had I taken the view that the sentence imposed on the fourteenth count did reflect the criminality inherent in the other offences, and thought that sentence should be set aside, the question would still arise whether in resentencing the applicant in respect of count 14, any new sentence should be simply made concurrent with the others or accumulated. 42 While it is strictly unnecessary for me to form a concluded view on this, I am of the opinion that to merely make that sentence concurrent, particularly if it but equalled those imposed on counts 2 to 13, would be inadequate by reference to the applicant's criminality and a clear contradiction of his Honour's expressed desire that the applicant have a lengthy period by way of additional term with a view to his rehabilitation. That process of reasoning would lead me to conclude that, even if I substituted a total term of two years and ten months for that imposed on the fourteenth count, I would have made that sentence cumulative, at least to a very substantial degree, on the other sentences. 43 Because of the length of the sentence which is imposed, the applicant should have leave to appeal but his appeal should be dismissed. 44 DOWD J: Although I take a different view of the application of Pearce in terms of question of totality which I need not here expound except to sympathise with Ducker DCJ in his expression of frustration at the consequences of the task which Pearce obliges courts to carry out in cases such as this, I do not consider that Pearce obliges the imposition of separate penalties. I consider it obliges the fixing of penalties in respect of each offence, but that the imposition of a sentence does not abrogate that Pearce, in obliging the imposition of sentence reflecting totality, does not abrogate the previous practice of the court of, in some cases, imposing a heavier than normal sentence on one to reflect the criminality on other offences. 45 Paragraph 45 of R v Pearce 72 ALJR 1416 at 1423 and 1424, proposes a two stage approach and not a single approach. The decision of Mill v R 1988 166 CLR at 59 and the cases referred to in that decision are not, in my view, disturbed. 46 However, the function of this court is to apply sections 5 and 6, particularly 6.3 of the Criminal Appeal Act 1912 and I do not consider that error has been shown in the sentence that has been imposed and I therefore concur with his Honour that leave should be granted but that the appeal should be dismissed. 47 HULME J: The order of the court is that leave to appeal is granted but the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.