Regina v David Paul ELEMES [2000] NSWCCA 235

New South Wales Court of Criminal Appeal

CITATION : Regina v David Paul ELEMES [2000] NSWCCA 235 FILE NUMBER(S) : CCA 60343/99 HEARING DATE(S) : 2 June 2000 JUDGMENT DATE : 2 June 2000

PARTIES : Regina David Paul Elemes JUDGMENT OF : Sully J at 1; Adams J at 33

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/61/0024-5 LOWER COURT JUDICIAL Christie DCJ OFFICER :

COUNSEL : C. Maxwell QC - Crown R. Button - Appellant SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Appellant

LEGISLATION CITED : Crimes Act 1900 CASES CITED: Regina v Fernando (1992) 76 A Crim R 98 DECISION : Leave to appeal against sentence granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60343/99

SULLY J ADAMS J

Friday 2 June 2000

REGINA v David Paul ELEMES

JUDGMENT

1 SULLY J: On Thursday 3 June 1999 the present applicant, Mr David Paul Elemes stood for sentence in the District Court at Dubbo before Christie DCJ consequent upon a verdict of the jury at trial finding him guilty of one count of breaking entering and stealing, an offence contravening section 112 of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for 14 years. 2 His Honour sentenced the applicant to a term of penal servitude of five years divided equally between a minimum term of two and a half years and an additional term of two and a half years. 3 Because of the then custodial situation of the applicant, it is accepted for present purposes that the effect of the sentence in the terms in which it was passed was to impose a sentence of penal servitude for a little under four and a half years, with a minimum term a little under two years. 4 The offences in question involved what is described colloquially as a "ram raid" of a store in Dubbo. The store was a motor cycle shop, and the applicant and two other accomplices, having ram raided the premises, stole from it three motor cycles. The precise value of the motor cycles is not in evidence before us, but it seems to be common ground that their total value must have exceeded $15,000 for there to have been properly held at all a trial in the District Court rather than in the Local Court. 5 All three of the motor cycles appear to have been recovered, two of them apparently in reasonable condition. 6 The indictment originally presented against Mr Elemes contained two counts laid in the alternative. The first of the counts charged the breaking and entering and stealing to which I have earlier referred. The second and alternative count charged a simple stealing, being a contravention of the combined effect of sections 117 and 154A of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for five years. 7 Upon Mr Elemes' arraignment he pleaded not guilty to the first count and guilty to the second count. The Crown did not accept the plea, and the matter proceeded to trial on the more serious offence charged in count one in the indictment. As I have earlier noted, the jury found him guilty on the charge. It was not necessary to take a verdict from the jury on the second and alternative count. 8 The proceedings on sentence followed very shortly the return of the verdict of the jury. They were, as these things go, fairly brief proceedings on sentence; and his Honour, Christie DCJ proceeded at once and ex tempore to pass sentence. 9 His Honour exposed his relevant processes of reasoning in language which was obviously intended to be clear and simple and readily understood by, in particular, Mr Elemes himself, a matter which is of some importance, having regard to some of the grounds urged in support of the present application for leave to appeal against the sentence imposed. 10 Put very simply, there are three grounds urged in support of the present application. The first is that his Honour "acted upon a wrong principle regarding the absence of contrition". The second is that his Honour "gave excessive weight to absence of contrition". The third is that the sentence is manifestly excessive in the circumstances of the case. 11 As to the first of those grounds, it is the fact that the applicant, notwithstanding the contrary verdict of the jury, maintained at all times after the verdict, and still maintains, that he is innocent of the matter charged against him, and of which he has now been found guilty by the verdict of the jury. He is, of course, entirely entitled to take that stand. It must be recognised, however, that when a person who has been apparently regularly and lawfully found guilty by a jury continues to maintain that he is not guilty, the sentencing Judge is faced, on that account, with a real sentencing problem. For it must follow from such a stance that there is no demonstrated contrition in either of the sentences recognised by the law as appropriate to attract some discount of what would be otherwise an appropriate sentence. 12 The course of events in such a case will necessarily preclude any reliance upon the bare utilitarian principles recognised by the law, and being to the effect that a prompt plea of guilty is to be, as it were, rewarded in a way that recognises the saving to the public purse of the cost of a trial. The stance in question necessarily entails an absence of contrition in the alternative sense recognised by the law: that is to say, in the sense of the giving by the offender of genuine assent to the proposition that what he has done was wrong, and was something as to which it is proper that he recognise his wrong doing, and express in a suitable way genuine contrition for what he has done. 13 It is submitted, and in my opinion correctly, that a fair reading of the remarks on sentence shows that the learned sentencing Judge had very much present to his mind the absence of contrition in either of the senses to which I have referred. At one point in the remarks on sentence his Honour said: "... whilst one could consider some not insignificant leniency in all of the subjective circumstances that do extend to the prisoner, it is difficult to consider many of those absent any sign of contrition." 14 This statement is really at the heart of the first of the three submissions put in support of the present application; for it is contended that the statement, set fairly in context, shows that his Honour erroneously regarded the absence of contrition as positively cancelling out, as it were, other subjective considerations that would have been available otherwise, and which would have been brought to account in the applicant's favour. 15 I do not accept that submission. I do not accept it, essentially, because it seems to me that at a point shortly thereafter in the remarks on sentence his Honour dealt with the point in question in a way which suggests the very contrary of what is now submitted. His Honour, having looked at other subjective matters said: "He is sorry for the situation he is in. But I don't think he has any contrition in relation to the crime at all, none whatsoever. That does not make me particularly confident about his rehabilitation prospects. But I propose to take them into account because he is only a young man, it is his first time in gaol, he has been in custody since 22 October 1998, and whatever happens here he will be in custody on various other terms until 21 January 2000." 16 It seems to me that when one sets fairly into the context of the remarks on sentence the whole of those two particular passages that have been quoted from those remarks, it is not a fair reading of what results to draw the inference that the learned sentencing Judge "acted upon a wrong principle regarding the absence of contrition." I would myself reject the first of the three grounds supporting the present application. 17 The second and third grounds can, from some points of view, be dealt with conveniently together, but in deference to the way in which the applicant's case was argued, it is I think fair to make some observations about each in particular. 18 As to the second of the three grounds now argued, it may be allowed at once that the learned sentencing Judge did give obvious weight throughout the entire course of his Honour's reasoning to the absence of contrition. It can be allowed as readily that his Honour repeated at several discrete points in the remarks on sentence observations different in terms but all of a piece in substance with the observations first quoted herein from the remarks on sentence. 19 It goes without saying that error is not demonstrated merely by a multiplicity of references of that kind. What has to be shown is that the multiplicity of references itself is a mark of disproportion in the learned sentencing Judge's use of the undoubted absence of contrition. There is no way one can come to that question in a mathematical kind of way. All that this Court can do is to read with care the remarks on sentence as a whole, and act upon its best impression of what they convey. 20 For myself, I am not satisfied that, read sensibly in that way, the remarks on sentence manifest the kind of disproportion the asserted existence of which is the nub upon which the second ground of appeal in fact turns. For myself I would reject the second ground. 21 The remaining ground supporting the present application takes a different conceptual approach. It does not posit some particular patent error. It posits, rather, latent error in the sense that a dispassionate review of the entirety of the material before the sentencing Judge, when set alongside the sentence actually imposed, produces a situation which shows on its face so manifest a disproportion in the sentence imposed as cannot be really explained otherwise than upon the footing that there must have been somewhere in the relevant process of reasoning an error of law. 22 It is trite, but it is perhaps useful in a case such as the present to make the point in terms, that for such a ground to succeed the applicant relying upon this ground undertakes a very heavy practical burden. It is not sufficient to convince the Judges of the appellate Court that they, had they been sitting at first instance, would have imposed a sentence less severe than the sentence imposed in fact by the sentencing Judge. 23 The kind of disproportion which has to be shown is, once again, not something that can be reduced to an arid exercise of mathematics. The matter to be considered is not whether there might be a quibble here, or a nuance there, about which reasonable minds might differ. The question to be considered is whether the disproportion relied upon is so manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law. 24 In that connection it is, in my opinion, necessary to say at once and forthrightly that the present offence in terms of its objective gravity cannot simply be shrugged off as an offence of comparatively minor significance. It is not necessary to address that proposition in terms of discursive philosophical exegesis. It is a simple proposition of common sense, as I think, that the ram raiding of somebody else's shop, and the looting from it of somebody else's property, is in objective terms a serious offence. It is a serious offence not only against private property. It is a serious offence, also and very importantly as I see it, against public order. That the legislature so regards such offences is, I would have thought, a view amply warranted by the prescribed statutory sentence. 25 When one turns to the subjective matters proffered in the applicant's case, it should be, I think, acknowledged that there were plenty of matters properly available to be advanced on his behalf. The sentencing Judge was himself aware of that state of affairs. His Honour was plainly aware of the applicant's age, with all that implies as to a need to be careful that a sentence is not imposed in a way that destroys the possibility of a good and useful future life in the community. 26 The prisoner had antecedents of which it is appropriate to say for present purposes that the learned Judge was seized of, and seems to have taken overall and in practical terms a view about, them which was, if anything, somewhat more favourable to the applicant than otherwise might have been thought appropriate. 27 The applicant's personal history otherwise was undoubtedly in many ways a sad and difficult one. It is not, I think, necessary to go in fine detail through all the aspects of it; for all of them, I think, were sufficiently taken into account by the sentencing Judge.