New South Wales Court of Criminal Appeal CITATION : R v Kay [2004] NSWCCA 130 HEARING DATE(S) : 4 May 2004 JUDGMENT DATE : 5 May 2004 JUDGMENT OF : McColl JA at 1; Levine J at 38; Hidden J at 39 DECISION : Application for leave to appeal granted but appeal dismissed. CATCHWORDS : CRIMINAL LAW - SENTENCING - application for leave to appeal against severity of sentence - whether sentencing judge failed to allow a discount in sentence having regard to alleged delay in prosecution and steps towards rehabilitation in the interim - where delay attributable to applicant's failure to volunteer his guilt - whether such circumstances attract the principle in R v Todd [1982] 2 NSWLR 517 and Mill v R (1988) 166 CLR 59. Crimes Act 1900 (NSW), s 112(1) LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j), s 44(2) Criminal Appeal Act 1912 (NSW), s 6(3) Mill v R (1988) 166 CLR 59 CASES CITED : R v Abookahled (NSW Court of Criminal Appeal, 9 May 1991, unreported) R v Todd [1982] 2 NSWLR 517 PARTIES : Regina Bradley Tristran Kay FILE NUMBER(S) : CCA 60062/04 COUNSEL : B J Knox SC (Crown) P Hamill/S Flood (Applicant) SOLICITORS : S Kavanagh (Crown) Steve O'Connor, Legal Aid Commission of NSW (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0470 FILE NUMBER(S) : LOWER COURT Solomon DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60062/04 McCOLL JA LEVINE J HIDDEN J Wednesday, 5 May 2004 Regina v Bradley Tristran KAY Judgment 1 McCOLL JA: This is an application for leave to appeal against the severity of a sentence imposed by Solomon DCJ on 30 July 2003 at the Sydney District Court. The applicant pleaded guilty to one charge of break, enter and steal ("the October 2001 offence"): s 112(1) Crimes Act 1900 (NSW). He was sentenced to imprisonment for two years and nine months to commence on 6 April 2003 and expire on 5 January 2006 with a non-parole period of one year and six months to commence on 6 April 2003 and expire on 5 October 2004. 2 The application for leave to appeal relies essentially upon one ground: that the sentencing judge failed adequately to take into account the discount the applicant ought to have been afforded having regard to the "significant delay" in his prosecution and the steps he had taken in the interim to rehabilitate himself. The Facts 3 On 25 October 2001 the applicant broke into the Marrickville Metro Shopping Centre and forced his way into the City International Duty Free Store. Once inside he smashed a number of glass cabinets and stole ten digital cameras with a total value of $19,300. None of this property has been recovered. When police attended the scene they found drops of blood on one of the glass cabinets. Swabs were taken and sent for DNA testing. On 1 March 2002 while the applicant was in custody on another matter a DNA sample was obtained from him. It was matched to the original crime scene in January 2003. The applicant asserts (and the Crown does not dispute) that the period which elapsed between March 2002 and January 2003 was as a result of a large backlog at the Department of Analytical Laboratories. The applicant was arrested and charged on 3 April 2003. He entered a plea of guilty at Central Local Court on 27 May 2003 and was committed to the District Court for sentence. 4 On 31 January 2002 the applicant had appeared before Newtown Local Court for sentence in respect of five offences committed between April and November 2001. Those charges were three counts of break, enter and steal, one charge of being carried in a conveyance without the consent of an owner and one of possessing implements for the purpose of driving or entering a conveyance. He pleaded guilty to those charges and was sentenced to concurrent terms of twelve months imprisonment with a non-parole period of nine months. By the time the applicant appeared before Solomon DCJ he had served that sentence. The Sentence 5 Solomon DCJ's remarks on sentence were brief. 6 He noted that the offence was a serious one with a maximum penalty of fourteen years: s 112(1) Crimes Act 1900 (NSW). 7 He was satisfied, after reading the pre-sentence report and after hearing evidence from the applicant, that at the time of the commission of the offence, the applicant was under the influence of drugs including cocaine. His Honour referred to that factor as a matter of explanation, not excuse. 8 He referred to the proceedings at Newtown Local Court and concluded that the offences dealt with on 31 January 2002 formed part of a continuous course of conduct which included the October 2001 offence. In the light of this conclusion he took the totality principle into account. 9 His Honour noted that Newtown Local Court did not have jurisdiction to deal with the October 2001 offence. He inferred that had that offence been known to the Crown when the applicant was before Newtown Local Court, all the matters before that Court would have been transferred to the District Court to be dealt with as one. 10 Solomon DCJ took into account the fact that the applicant had served the nine months non-parole period in respect of the January 2002 offences and had been in custody since 6 April 2003 after his arrest in relation to the October 2001 offence. 11 His Honour also took into account the applicant's plea of guilty as indicating contrition and the utilitarian benefit of the plea. 12 He referred to the fact that the applicant had taken steps both within and outside the gaol system to rehabilitate himself since October 2001 as well as the applicant's positive attitude to the future. 13 His Honour found special circumstances (s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW)) on the basis that the applicant required ongoing rehabilitation in the community. He took into account the period the applicant had spent in custody arising out of all the offences which occurred in the months of September, October and November 2001, being the period the applicant had spent in custody in relation to the matters for which he was sentenced by Newtown Local Court as well as the three months he had spent in custody from April 2003 – July 2003. Submissions 14 Mr Hamill who appeared with Mr Flood for the applicant contended that Solomon DCJ failed adequately to take into account the effect of what he argued was "significant delay" in prosecuting the applicant in respect of the October 2001 offence and his rehabilitation. He relied upon R v Todd [1982] 2 NSWLR 517 at 519 – 520 to which I will refer in more detail below. 15 Mr Hamill submitted that the eighteen month delay between the October 2001 offence and the date the applicant was sentenced was of "real significance". During that period the applicant had served a prison term for similar offences and had rehabilitated himself: he had gotten himself off drugs which had been the cause of his criminal activities and secured employment. 16 Mr Hamill argued that having regard to these matters, the sentencing judge ought to have considered a deferred sentence ie. a bond, or a sentence of no more than 2 years in which case it would have been appropriate that the sentence be suspended. 17 The Crown submitted that R v Todd was inapplicable. It argued that the applicant had suffered no relevant prejudice in the Todd sense. It contended that during the period which elapsed prior to his arrest, he was not waiting to be sentenced. Rather, the Crown submitted the delay was attributable to the fact that the applicant had not volunteered his guilt or co-operated with the police. The Crown submitted that the October 2001 offence was not "stale" at the time the applicant was sentenced and that he had not had "uncertainty" in the Todd sense hanging over his head. 18 The Crown submitted that, contrary to the applicant's submissions, Solomon DCJ took into account the delay between the commission of the offence and the date of sentence. The Crown referred to his Honour's reference, in his remarks on sentence, to the fact that the October 2001 offence formed part of a continuous course of conduct, the fact that the applicant had already served a sentence in relation to some of the offences committed during that period thus leading, according to Solomon DCJ, to the applicant facing "double jeopardy", as well as his Honour's reference to the totality principle. The Crown noted that after Solomon DCJ indicated the subjective matters to which he would have regard, the applicant did not complain that his Honour had not taken into account delay. 19 The Crown submitted that the fact that his Honour took the matter of delay into consideration was reflected in the "lenient sentence which was imposed upon the applicant for this very serious offence". 20 The Crown also submitted that the applicant's sentence was well within the proper exercise of his sentencing discretion after taking into account all subjective and objective serious matters. It drew attention to the fact that at the time of committing the offence the applicant was in the community on conditional liberty being on bail for a prior break, enter and steal offence with which he had been charged on 23 September 2001. The Crown referred to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets out the aggravating factors the Court is to take into account in sentencing including the fact that the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence. The Crown also referred to many authorities in this Court which reflect the principle set out in s 21A(2)(j). 21 The Crown also argued that Solomon DCJ had been generous in finding that the October 2001 offence was part of a "continuing course of criminal conduct" and that this was a mitigating circumstance. The Crown submitted that the October 2001 offence was discrete to any other offence to which the applicant had been sentenced. The Crown drew attention to the fact that the October 2001 offence involved commercial premises, whereas the other offences had involved domestic premises. 22 Finally, the Crown submitted that if the Court found that Solomon DCJ had erred, nevertheless, the Court would find that no lesser sentence than that which was imposed would be warranted: s 6(3) Criminal Appeal Act 1912 (NSW). Consideration 23 In R v Todd [1982] 2 NSWLR 517 at 519 – 520 Street CJ (with whose reasons the other members of the Court agreed) said: "It would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences … Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion, and to the fact that the sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between the offence and sentence, when lengthy, will often lead to consideration of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might be otherwise be a quite undue degree of leniency being extended to the prisoner." 24 Todd was referred to in Mill v R (1988) 166 CLR 59 at 66 where the High Court stated that the principle in Todd applies not only to the fixing of the non-parole period but also to the fixing of the head sentence. 25 Todd and Mill were both cases where the offender came to be sentenced in one State some years after the commission of an offence because during the intervening period he had been serving a sentence imposed in another State in respect of an offence of the same nature committed at about the same time. In Mill, the High Court referred (at 66) to Chief Justice Street's reasoning in Todd as reflecting a "just and principled approach to the problem of sentencing" in such circumstances. The Court added: "The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raises considerations of fairness to an offender which must be taken into consideration when the second Court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences." 26 In R v Abookahled (NSW Court of Criminal Appeal, 9 May 1991, unreported) Wood J (with whose judgment Priestley JA and Finlay J agreed) applied the principle in Todd in circumstances where the applicant's sentence in the District Court for seven offences involving break, enter and steal, larceny as a servant and forging and uttering in respect of cheque blanks was delayed pending the disposition of more serious charges of kidnapping and associated offences in the Supreme Court. Wood J said: "Where offences are stale, and where there is reason to suppose that they should have been dealt with earlier, particularly following a prompt indication by the accused of an intention to plead guilty, it is necessary for the Court to bring to the proceedings a measure of understanding and flexibility." 27 After referring to Todd, his Honour continued: "As that case points out it is very important that the Court have regard to the effects of delay, and also to any progress towards rehabilitation which the particular offender has demonstrated, during the period while he is awaiting sentence." 28 In my view, Todd, Mill and Abookahled are distinguishable. In each of those cases the delay in sentencing the offender on the second occasion was due to the operation of the criminal justice system. In Todd and Mill the delay was due to State boundaries which prevented offences committed in one State being the subject of a sentencing procedure at the same time as the offences committed in the other. In Abookahled, the delay was due to the intervening disposition of the kidnapping charge and other charges pending in the Supreme Court. In the latter case the appellant had admitted his guilt at an early stage and been committed for sentence. 29 In the present case the applicant's guilt was only determined when the DNA samples taken at the scene of the October 2001 offence were connected to DNA samples given by the applicant in March 2002. There was then a period of some nine months or so in the analysis of the March 2002 samples. 30 During this period, the applicant was not suffering any uncertainty as to what might happen to him – other than, it might be surmised, uncertainty as to whether he would be caught and charged in relation to the October 2001 offence. 31 After his arrest on 6 April 2003 he declined to answer any questions in relation to the allegations. He did not enter a plea of guilty until the third occasion on which he came before the Local Court. 32 This is not, therefore, a case where, to paraphrase Wood J in Abookahled, there is reason to suppose that the October 2001 offence should have been dealt with earlier and that during the period of delay the applicant suffered a period of uncertainty as to his fate. It is not a case where the operation of the criminal justice system prevented the October 2001 offence from being dealt with in connection with the January 2002 proceedings. At that stage the applicant's DNA sample had not been obtained. It is true that there was a delay in analysing that sample, but there was no evidence that the applicant was in a state of suspense pending the analysis. 33 Rather, the applicant was content to remain silent, hoping, presumably, that his association with the October 2001 offence would not be detected. Having remained silent, he now argues that he ought, in effect, be rewarded for his successful concealment of his commission of the offence by a substantially reduced or even deferred sentence. The authorities make plain that the significance of the delay will turn on the circumstances of each case. In my view the circumstances of this case do not attract the Todd principle. 34 These remarks are sufficient to dispose of the matter. I would, however, add the following matters. In my view it is plain that Solomon DCJ did in fact take into account the period of delay and the matters of rehabilitation. His Honour referred to and appears to have accepted the evidence that the applicant had substantially rehabilitated himself during his sentence and since his release from custody. His Honour also referred (at T 4) to the fact that "the investigative process was not completed earlier" so that the applicant could have been dealt with in relation to all of the matters at once. Counsel for the applicant also referred (at T 6) to the delay in the matters coming before the Court to which his Honour remarked "it is not his fault". 35 While it will be apparent that I do not agree with the latter remark, it is clear, in my view, that his Honour took both the questions of delay and rehabilitation into consideration in considering the application of the totality principle. 36 Finally, I would note that even if the applicant's submission that Solomon DCJ did not take the delay into consideration is correct, I would also accept the Crown's submission that having regard to the serious nature of the offence and the aggravating factors referred to, no lesser sentence than that to which the applicant was sentenced would be warranted. 37 I would grant leave to appeal but dismiss the appeal. 38 LEVINE J: I agree. 39 HIDDEN J: I also agree. 40 McCOLL JA: The order of the Court will be: Leave to appeal granted, appeal dismissed. ********** Last Modified: 05/13/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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