New South Wales Court of Criminal Appeal CITATION : R v Shipley [2000] NSWCCA 411 FILE NUMBER(S) : CCA 60593/99 HEARING DATE(S) : 6 October 2000 JUDGMENT DATE : 6 October 2000 PARTIES : Crown - Respondent Anthony SHIPLEY - Applicant JUDGMENT OF : Simpson J at 1; Hidden J at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1105 LOWER COURT JUDICIAL Mahony DCJ OFFICER : COUNSEL : T L Budden - Crown J Manuell - Applicant SOLICITORS : S E O'Connor - Crown D J Humphreys - Applicant LEGISLATION CITED : Sentencing Act 1989 CASES CITED: R v Cronbie [1999] NSWCCA 297 DECISION : Leave to appeal granted, appeal upheld, sentence of imprisonment for a fixed term of twelve months commencing on 1 October 1999 and expiring on 30 September 2000 substituted. IN THE COURT OF CRIMINAL APPEAL 60593/99 SIMPSON J HIDDEN J 6 October 2000 REGINA v Anthony SHIPLEY Judgment SIMPSON J : 1 The applicant seeks leave to appeal against a sentence imposed by Judge Mahoney in the District Court on 1 October 1999, following his plea of guilty to a charge of car stealing. 2 Judge Mahoney sentenced the applicant to a total term of imprisonment for two years, made up of a minimum term of sixteen months and an additional term of eight months. It will be necessary to return to the rather curious circumstances in which this structuring was arrived at. 3 The offence was committed on 5 December 1997. The applicant, with Andrew Frost, used a screwdriver to gain access to a motor vehicle parked in a hotel car park whilst its owner was engaged in driving the hotel's courtesy vehicle. They drove it for a little while, and eventually went to a nearby caravan park. Frost was driving the vehicle and he drove it into the gutter causing some damage to it. They then abandoned the vehicle. It was discovered two days later by police. It had been stripped. 4 The applicant did not give evidence on the sentencing proceedings. Evidence was given on his behalf by Ms Jenny Barclay, with whom he was in a recently formed de facto relationship. There was also a pre-sentence report and an update of that pre-sentence report. From these sources the following subjective material emerges. 5 The applicant was born on 16 December 1956. He was about two weeks short of his forty-first birthday at the time of committing the offence. He had a lengthy criminal history, his first charge being recorded at a Children's Court in 1969 when he was twelve years of age. That was an offence of break, enter and steal. Thereafter he was regularly before the Children's Court, and subsequently the Court of Petty Sessions, as it was then called, for stealing, breaking, entering and stealing, and receiving offences. He was also before the Courts for a number of motor vehicle offences, assault and malicious injury, carnal knowledge, cruelty to an animal and, in 1990, contravention of a domestic violence order. 6 The applicant married in 1996, at the age of forty, but the marriage was very short lived. This was because the applicant has a long term entrenched alcohol abuse problem which he refused fully to acknowledge or address. His education has been extremely limited and he has significant literacy problems. He was assessed as emotionally immature with no insight into his alcohol problem. He also appears to have little if any appreciation of the impact of his criminal behaviour on its victims. 7 There was, however, some hope, in that, in the supplementary report written a few days before sentencing, the Probation and Parole officer expressed the view that the relationship with Ms Barclay had had a stabilising influence on the applicant and he had reduced his alcohol consumption. He had, apparently, resumed contact with a sister, he previously having had no association with members of his family. 8 The applicant was sentenced jointly with the co-offender, Frost, but, having regard to their very different subjective circumstances, the judge released Frost on a recognisance. No ground of the present application challenges the sentence on the ground of disparity. 9 Three grounds are advanced in support of the application. The first concerns the sentencing judge's approach to the maximum sentence against which he imposed the sentence he did. After some discussion in this Court, that submission was withdrawn and it need not here be further mentioned. 10 The next ground of the application concerns the structure of the sentence. His Honour was not asked to make a finding of special circumstances within s 5(2) of the Sentencing Act 1989, such as to justify departure from the conventional proportions provided for in that section. He clearly intended to impose a sentence in which the minimum term conformed with the proportions referred to in that section. Initially the sentence he pronounced was within those terms. 11 By s 5 (now repealed), a sentencing court was required to set a minimum term of imprisonment and an additional term during which an offender may be released on parole. By s 5(2), the additional term was not to exceed one-third of the minimum term, unless the Court decided that there were special circumstances. By s 5(3), where the Court reached that decision, it was required to state the reasons therefor. 12 His Honour said: "No submission was put to me on behalf of Shipley that it is a special circumstances case. I am unaware whether that was by way of oversight but in the light of a decision handed down by the Court of Criminal Appeal I think within the last month or so in the matter of McGuinness, ... Sully J indicated that it would have been appropriate for me to have commented on whether or not I thought special circumstances applied. Accordingly, even though nothing has been put on behalf of Shipley, I make the finding that in this case there is no call for a finding of special circumstances on the facts that have been revealed to me ... ". 13 He then proceeded to announce a sentence of imprisonment for two years, to be served by way of a minimum term of eighteen months and an additional term of six months. This sentence, and its division, accurately reflected his conclusion that special circumstances did not exist, and complied with the requirements of s 5(2). However, the Crown Prosecutor (mistakenly) told his Honour that this was not the correct way to give effect to his intention, and told his Honour that, in order to give effect to that intention, it was necessary to impose a sixteen month minimum term and an eight month additional term. This, in fact, is what his Honour did. The applicant, therefore, received the benefit of an extended additional term at the expense of the minimum term, through the well meaning but erroneous intervention of the Crown Prosecutor. 14 That is merely a preliminary to the issue that is now raised. Counsel for the applicant has referred to the pre-sentence report, and the evidence concerning the applicant's alcoholism, and has urged that the circumstances "should have been sufficient for his Honour to make a finding of special circumstances". 15 I am of the view that, on the basis of this evidence, it would have been open to his Honour to make a finding of special circumstances had that matter been argued before him. But, as he noted, and as the transcript discloses, it was not suggested to him that such circumstances existed. This was not a case in which a finding of special circumstances was inevitable; it was open, but not necessary, for his Honour to make a finding. 16 In the absence of any suggestion by the applicant's counsel that special circumstances existed, and particularly having regard to the benefit, short though it may be, that the applicant received by way of reduction of the minimum term, I would reject this ground of the application. 17 The third ground is that the sentence was manifestly excessive, and this ground is subdivided into two. 18 Firstly, it was pointed out that the charge is a charge which would, in the ordinary course, be dealt with summarily, in which case the maximum sentence available would be imprisonment for two years. It was said, and without dissent by the prosecution, that the reason it was treated as an indictable offence was that it was charged in conjunction with other indictable offences which were not proceeded with. Had those other offences not been at that time before the Court, the overwhelming probability is that the applicant would have been dealt with a Local Court for this offence. It is very unlikely that he would have been subjected to the maximum penalty which the Local Court has power to impose. 19 That an offender is sentenced on indictment in relation to an offence that could be dealt with summarily is a relevant factor in the determination of sentence is clear: R v Crombie [1999] NSWCCA 297. 20 The second part of the argument that the sentence was manifestly excessive concerns the judge's appreciation of certain factual matters. In essence, it is submitted that his Honour's finding of fact cannot be sustained. These are findings of fact which do not appear in remarks on sentence, but do appear in the transcript of the sentencing proceedings. The transcript records his Honour saying to the applicant's legal representative: "You see the problem is this, Mr Gasic. For Mr Shipley you're putting these matters forward, your client from the age of 13 appears just on a very quick flick through his record, which runs on to the fifth page, has been flat out busy stealing everything that wasn't nailed down. Dishonesty is the name of the game for him. He's no stranger to the court system, how do I know he's not pulling the wool over your eyes when he tells you these things on which you base your submission?" 21 It must be said that the applicant's legal representative did not disabuse his Honour of the impression he had about the applicant's record. And it may be further observed that the applicant's early record justified a view that he was an inveterate thief. I have referred to a number of offences of dishonesty which are contained in his record. However, the last of these was before the Court on 7 November 1979. It was very nearly 20 years before the applicant was again before the Court in relation to a stealing charge, or, indeed, any charge involving dishonesty. 22 In my opinion, the argument that his Honour misunderstood the extent of the applicant's criminal history in relation to stealing is well founded. It is a pity that, when it was put squarely to the applicant's legal representative, it was not pointed out that what appeared from a glance at the record did not convey an accurate recent picture. 23 The Crown has conceded that it is appropriate to take into account the availability of sentencing in the Local Court in contra distinction to the District Court on this charge. 24 Having regard to the erroneous impression as to the applicant's criminal history, and the circumstances in which he was dealt with in the District Court, I am persuaded that there was error in the sentencing process. I would grant leave to appeal, uphold the appeal, and substitute a sentence of imprisonment for a fixed term of twelve months commencing on 1 October 1999 and expiring on 30 September 2000. 25 HIDDEN J: I agree. 26 SIMPSON J: The orders of the Court will be as I have proposed. 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.