New South Wales Court of Criminal Appeal CITATION : REGINA v Craig Phillip DELUCA [2002] NSWCCA 446 FILE NUMBER(S) : CCA 60521/01 HEARING DATE(S) : 11/11/02 JUDGMENT DATE : 11 November 2002 PARTIES : Regina Craig Phillip DELUCA (Applicant) JUDGMENT OF : Wood CJ at CL at 31; Dowd J at 32; Bell J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0477 LOWER COURT JUDICIAL Freeman DCJ OFFICER : COUNSEL : W.G. Dawe QC (Crown) T.S. Corish (Applicant) SOLICITORS : SE O'Connor DJ Humphries (Applicant) Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Summary Offences Act 1998 Cameron v The Queen [2002] HCA 6; ALJR 382 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 DECISION : Leave to appeal against the severity of the sentences granted; Appeal allowed in each case; Quash the sentences imposed in the District Court, and in lieu thereof the applicant sentenced in respect of Count 1 to a sentence of three years and three months imprisonment to date from 6 March 2001; Non-parole period of two years and four months to expire on 5 July 2003; In respect of Count 2 the applicant sentenced to a term of three years and nine months imprisonment to date from 6 July 2003. That sentence will expire on 5 April 2007; Non-parole period of two years and two months to date from 6 July 2003; The first date upon which the applicant will be eligible for consideration for release on parole is 5 September 2005 IN THE COURT OF CRIMINAL APPEAL 60521/01 WOOD CJ at CL DOWD J BELL J 11 November 2002 REGINA v Craig Phillip DELUCA Judgment 1 BELL J: The applicant seeks leave to appeal against the severity of sentences imposed on him in the District Court on 3 August 2001. He entered pleas of guilty before the Local Court at Hornsby on 22 May 2001 to two charges. The first was an offence of aggravated break and enter with intent to commit an indictable offence (larceny) contrary to s 113(2) of the Crimes Act 1900 ("the Act"). The circumstance of aggravation alleged was that immediately after the breaking and entering the applicant used corporal violence upon Eric Connors. The second offence was one of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Act. The offence of aggravated breaking and entering with intent carries a maximum penalty of fourteen years imprisonment. The armed robbery offence carries a maximum penalty of twenty years imprisonment. 2 It appears that there was some technical deficiency in the committal for sentence document. On 3 August 2001 the applicant was arraigned upon indictment charging him with the two offences. He entered pleas of guilty to each count. The sentencing judge approached the matter upon the basis that the applicant had in each case entered an early plea of guilty. The applicant asked the sentencing judge to take into account one further matter in accordance with the provisions of s 33 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). The offence was described on the Form 1 document as being "enter vehicle without consent of owner". This is a reference to an offence provided by s 6A of the Summary Offences Act 1988. That provision makes it an offence for a person without reasonable excuse to enter any vehicle or boat in a public place without the consent of the owner or lawful occupier of the same. It carries a maximum penalty of four penalty units. 3 Each of the offences was committed on 6 March 2001 within a relatively short period of time. 4 The applicant was sentenced to a four year term of imprisonment for the aggravated breaking and entering offence to commence on 6 March 2001. A non-parole period of three years was specified to expire on 5 March 2004. A sentence of four and a half years imprisonment to commence on 6 March 2004 and to expire on 5 September 2008 was imposed with respect to the armed robbery charge. The Form 1 offence was taken into account in the sentence imposed for this latter offence. A non-parole period of two years and six months, commencing on 6 March 2004 and expiring on 5 September 2006, was specified. The overall sentence was thus one of seven and a half years imprisonment with an effective non-parole period of five and a half years. 5 The sentencing judge sentenced the applicant upon the following facts. On the day of the offences the applicant, together with his partner Gabriel Williams and two female friends, set out with the intention of obtaining drugs. The applicant was armed with a knife. As the group was walking towards the Asquith railway station Gabriel Williams suggested that they break into and enter residential premises at 9 Amor Street, Asquith. These premises were owned by Mr and Mrs Connors. Two of the women went to the rear of the premises where they smashed a window and obtained entry. The applicant remained outside, acting as a lookout. 6 Mr and Mrs Connors and their son returned home while the two women were still inside the premises. As they entered the home they saw the women and attempted to detain them. A short struggle ensued. The applicant went to the assistance of his co-offenders, taking a length of broomstick with which he beat Mr Connors senior about the head and shoulders. Mr Connors was aged seventy-one years. He suffered injuries to his head and back. 7 As the result of the applicant's intervention all four offenders succeeded in leaving the scene. They walked off in the direction of the Coles supermarket complex at Asquith. They were observed by the victim of the armed robbery offence, Margaret Decranian. Ms Decranian had been informed by her son of the earlier assault upon the Connors family and she was endeavouring to keep the four under observation. His Honour noted that the applicant approached Ms Decranian and threatened her with the knife despite the circumstance that she was in the car park of a large and busy shopping centre in the middle of the day, accompanied by her six year-old daughter. His Honour found that Ms Decranian had been subjected to extreme terror as the result of this threat. The applicant and one of his co-offenders stole money and a mobile telephone from her. 8 Thereafter the applicant and his three co-offenders approached a young woman who was sitting in her car at a red traffic light. They attracted her attention by a subterfuge and one of the women unlocked the car door and all four got into it. This is the incident the subject of the offence that was included on the Form 1. The police attended the scene promptly and all four offenders were removed from the vehicle and arrested. 9 The applicant thereafter participated in an electronically recorded interview. During the course of that interview he made certain admissions concerning each of the offences. However the sentencing judge did not consider that he had been fully co-operative with the investigating police. 10 The sentencing judge noted a number of favourable subjective considerations. In this respect he made reference to the contents of a pre-sentence report prepared by Ms Hammond of the Silverwater Parole Unit dated 23 July 2001 and to the applicant's evidence. At the time of the sentence hearing the applicant was just short of his twenty-sixth birthday. His criminal history was slight, comprising a single conviction before the Local Court in 1999 on a charge of malicious damage, for which he had been fined. 11 The sentencing judge found that the applicant had been raised in a supportive family, albeit that he had suffered some disruption at around the age of fourteen years when his parents separated. The applicant had qualified as a greenkeeper after completing a four-year apprenticeship. Thereafter he had been generally in employment. He had become addicted to drugs at a relatively late stage, following the break-up of a longstanding relationship. His Honour accepted that the break-up had been a traumatic and potentially destabilising experience for the applicant. By August 2000 the applicant had lost his employment and his life was out of control as a result of his heroin addiction. 12 Mr Corish, who appears on the applicant's behalf, identifies four grounds of challenge to the sentences that: 1. The sentencing judge erred in failing to give adequate weight to, and allow a sufficient discount for, the applicant's pleas of guilty. 2. The sentencing judge erred in failing to give adequate weight to the significant subjective circumstances of the applicant. 3. Both the head sentence and the non-parole period were said to be manifestly excessive. 4. The sentencing judge erred in the exercise of his discretion by accumulating the two sentences. 13 Grounds 2 - 4 raise in substance the same complaint, namely that in the light of the applicant's subjective circumstances, the sentences overall are excessive. In the light of the objective seriousness of each offence I am not persuaded that such a challenge has merit. 14 The principal ground upon which Mr Corish relies concerns the approach taken by the sentencing judge to the applicant's early pleas of guilty. In his remarks on sentence his Honour observed: "I have been troubled by the need to identify in a transparent fashion a discount given for the entry of a plea at an early stage by the prisoner. There must be – there is some utilitarian value that the state does not have to run the trial, although the outcome of the trial would, it seems to me, have been absolutely inevitable. When arrested, the prisoner had the knife, the phone and so on in his possession. Whilst he did make certain admissions to the investigating officer, his conduct falls well short of being appropriately described, as the probation parole officer seems to do, as 'co-operating with the authorities' because there are a number of misstatements and downright lies in that record of interview. I would regard the Crown case as irrefragable. So what is the appropriate discount for accepting the inevitable? It seems to me that any discount given in that respect is minimal and it pales into insignificance alongside the discount which I am required, as a matter of principle to administer in deference to the principle of totality. These crimes are quite separate events, quite separate in type, related fairly closely in time but they do not fall, in my view, to be dealt with by way of concurrent sentences. Cumulative sentencing is the way, it seems to me, to address both of these very serious actions. That necessarily dictates that the sentence imposed in respect of each of the individual crimes is less than I would have deemed appropriate had I been dealing with the crimes separately as individual activities. As well, perhaps balancing any discount which might have been given for utilitarian purposes, is the fact that in sentencing on the second count, the robbery whilst armed, I am taking into consideration the item on the Form 1, the entry into the vehicle." 15 In written submissions Mr Corish contended that the applicant was entitled to "the full measure of the discount for his pleas of guilty". It was contended that the apparent strength of the Crown case is not a matter that should have been taken into account in assessing the discount for the utilitarian value of the plea of guilty as explained in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383. In R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 Spigelman CJ (in a judgment with which the other members of the Court agreed) concluded that the decision of the High Court in Cameron v The Queen [2002] HCA 6; 76 ALJR 382 does not apply in this State and that Thomson v Houlton should still be followed. A sentencing judge does not fall into error by failing to quantify the discount allowed in respect of a plea of guilty although generally it is desirable to do so, Thomson & Houlton at [113] & [160]. 16 The apparent strength of the Crown case and the associated "recognition of the inevitable" accompanying the plea of guilty does not qualify the utilitarian value of the plea, Thomson & Houlton [135] – [137]. The appropriate range for a discount for the utilitarian value for a plea of guilty is from ten to twenty-five per cent. There were two circumstances identified by the Court in Thomson & Houlton as generally affecting the appropriate level of the discount, the time at which the plea is entered and the complexity of the issues about which evidence would have had to have been gathered and adduced at trial: [154]. 17 Section 22 of the Sentencing Procedure Act requires a Court to take into account the fact that the offender has pleaded guilty, and when the offender pleaded guilty or indicated an intention to plead guilty. The Court may in the light of these considerations impose a lesser penalty than it would otherwise have imposed. When passing sentence upon an offender a Court that does not impose a lesser penalty in accordance with the provisions of s 22 must indicate to the offender, and make a record of its reasons for not doing so, s 22(2). 18 As I read his Honour's remarks it appears that he did not allow a discount to reflect the applicant's early pleas of guilty. To the extent that he gave reasons for not imposing a lesser sentence in each case to reflect the plea of guilty in conformity with the requirements of s 22(2) of the Sentencing Procedure Act, it would appear that his Honour took into account the following considerations: 1. The utilitarian value of the plea was in each case reduced by the fact that the applicant faced a strong Crown case; 2. The principle of totality in sentencing required that each of the sentences be less than that which would otherwise have been appropriate; 3. Any discount needed to be balanced against the circumstance that the Form 1 offence was to be taken into account in sentencing the applicant for the armed robbery offence. 19 I am persuaded that in approaching the matter in this way his Honour has been shown to have erred. The errors being (i) to have taken into account the strength of the Crown case and times to have concluded that any discount for the pleas of guilty upon utilitarian grounds should be "minimal", and (ii) to have balanced the discount against considerations of totality in sentencing. 20 The approach to sentencing an offender in respect of more than one offence is as enunciated in the joint judgment in Pearce v The Queen (1998) 194 CLR 610 at 624 [45]. "The judge is to fix the appropriate sentence for each offence and then to consider questions of cumulation or concurrence as well as questions of totality." 21 In this case the sentencing judge stated that he proposed imposing consecutive sentences and, by reason of that decision, and in order to accommodate the principle of totality, each of the sentences would necessarily be less than the appropriate sentence for the offence. It is apparent that his Honour considered that to allow a discount for the pleas of guilty in these circumstances would produce an overall sentence that was excessively lenient. Generally, where an offender has pleaded guilty to two or more offences at an early stage, it will be appropriate to discount each of the sentences on account of the utilitarian value of the plea. After that exercise is undertaken and an appropriate sentence determined in each case, the judge is to consider questions of cumulation or concurrence and totality. The difficulty in the approach taken in this case is that the goal of transparency in sentencing (and of according explicit recognition to the plea of guilty for the reasons explained in Thomson v Houlton) is lost. 22 I consider a further error in this case was the circumstance that the sentencing judge purported to balance the discount for the pleas of guilty against the fact that the applicant sought to have one matter taken into account pursuant to s 33 of the Sentencing Procedure Act. It will usually be appropriate to impose a higher sentence than otherwise might have been imposed, to reflect that an offence has been taken into account pursuant to that mechanism. However this is not a reason for declining to allow a discount in accordance with the principles set out in Thomson & Houlton in order to reflect the utilitarian value of the plea of guilty. In this case it is to be observed that the offence set out in the Form 1 was a summary one, punishable only by way of a fine. In an appropriate case the Court may have to consider whether summary offences, not punishable by imprisonment, are suitable to be dealt with by way of the mechanism provided by s 33 of the Sentencing Procedure Act. 23 It does not flow from a finding of error that this Court will necessarily quash the sentence imposed and pass another in substitution therefor. Pursuant to s 6(3) of the Criminal Appeal Act 1912 the Court must consider whether another sentence is warranted in law. 24 The two offences to which the applicant pleaded guilty are in each case objectively serious instances of offences of their type. The aggravated breaking and entering offence involved the infliction of corporal violence on an elderly man in the security of his own home. The armed robbery offence was committed against a young mother who had the care of her six year-old child with her at the time. Nonetheless, I consider that it is appropriate to re-sentence the applicant in order to give him the benefit of a discount for his early pleas of guilty. In coming to this view I take into account that the applicant has not previously served a sentence of imprisonment and that he committed these offences in the context of his drug addiction, having not been previously a person given to criminal offending. The circumstance that the applicant completed his apprenticeship and had a reasonably steady record of employment prior to the onset of his addiction to heroin seems to me to point to him having reasonable prospects of rehabilitation in the event that he comes to terms with his drug addiction. 25 The Court received the affidavit of Madeleine Schneider affirmed on 7 November 2002, to which were attached a number of certificates concerning the applicant's progress while in custody. He has received certificates of competency in a course offered by the Gippsland TAFE in Process Manufacturing. He has been employed in the Tyco section of industries at the Junee Correctional Centre since January 2002. His supervisor/overseer certifies that he has displayed good initiative and a good work ethic. He is assessed as being a reliable team member who requires very little supervision and is self-directed in the conduct of work tasks. It is noted that he is a quiet person who concentrates on the work in hand rather than on what is described as "workplace politics", and that he often exceeds the production outputs required for his position. The latter assertion is amply demonstrated by a copy of his Inmate Work Performance Record. This material tends to confirm the view that the applicant's prospects of rehabilitation are reasonable. 26 Mr Corish submitted that it was appropriate to allow a discount in each case of twenty-five per cent to reflect the utilitarian value of the applicant's early pleas of guilty. I am not persuaded that a discount at the top of the range is appropriate in the circumstances of this case. I would allow the applicant a discount of twenty per cent in respect of each of the sentences. I take into account that the pleas in each case were entered at an early stage together with my view that any trial would not have been one of particular complexity. 27 I would propose that the starting point for each sentence be that fixed by the sentencing judge, subject to the discount which I have indicated. Although the offences were committed very closely in point of time, I am not persuaded that it is appropriate to direct that they be served concurrently. Each was a discrete and serious offence. I do not consider that the principles of totality in sentencing dictate a different result. 28 In Mr Corish's submission, having regard to the applicant's subjective circumstances, and in particular the circumstance that this is the first occasion on which he is to serve a sentence of imprisonment, the Court should find special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act and depart from the statutory proportion as between the sentence and the non-parole period. 29 I consider that special circumstances are made out to the extent that it is necessary to adjust the non-parole period to be imposed with respect to the armed robbery offence, it being cumulated on the earlier sentence. I am not otherwise persuaded that special circumstances exist such as to make it appropriate to depart to any greater extent from the proportion fixed by the Act. To do so, in my view, would produce an effective non-parole period that failed to reflect the objective seriousness of these offences. 30 For these reasons, the orders that I propose are as follows: (i) grant leave to appeal against the severity of the sentences. (ii) allow the appeal in each case. (iii) quash the sentences imposed in the District Court, and in lieu thereof sentence the applicant in respect of Count 1 to a sentence of three years and three months imprisonment to date from 6 March 2001. Specify a non-parole period of two years and four months to expire on 5 July 2003. In respect of Count 2, sentence the applicant to a term of three years and nine months imprisonment to date from 6 July 2003. That sentence will expire on 5 April 2007. Specify a non-parole period of two years and two months to date from 6 July 2003. The first date upon which the applicant will be eligible for consideration for release on parole is 5 September 2005. 31 WOOD CJ AT CL: I agree. 32 DOWD J: I also agree. ********** 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.