R v PATTEN [2003] NSWCCA 33

New South Wales Court of Criminal Appeal

CITATION : R v PATTEN [2003] NSWCCA 33 HEARING DATE(S) : 21/02/03 JUDGMENT DATE : 21 February 2003

JUDGMENT OF : James J at 1; Greg James J at 33 DECISION : Leave to appeal granted - appeal against sentence allowed

PARTIES : Regina v Wesley John PATTEN FILE NUMBER(S) : CCA 60499/02 COUNSEL : HK Dhanji - Applicant DC Frearspm - Crown SOLICITORS : DJ Humphreys - Applicant SE O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/0756 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060499/02 JAMES J GREG JAMES J

FRIDAY 21 FEBRUARY 2003 REGINA v WESLEY JOHN PATTEN

Judgment

1 JAMES J: The Court is in a position to give an immediate judgment. Although the matter probably could be resolved fairly briefly, in deference to the detailed arguments that have been put in the written submissions and particularly the argument based on parity or lack of appropriate disparity, I propose to refer to the facts in some detail. 2 Wesley John Patten has applied for leave to appeal against a sentence imposed on him in the District Court on 13 June 2002 by his Honour Judge Knight, after he had pleaded guilty to one charge of breaking, entering and stealing in circumstances of aggravation, namely that he was in company with three co-offenders Lindsay Munro, Robert Simpson and Wayne Carr. Breaking, entering and stealing in circumstances of aggravation is an offence under s 112 (2) of the Crimes Act, for which the maximum penalty is imprisonment for 20 years. The plea of guilty to the charge of breaking, entering and stealing in circumstances of aggravation was accepted by the Crown in full discharge of the indictment, which also contained another charge. 3 In sentencing the applicant Judge Knight took into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act a further offence, that on 20 December 2000 the applicant was in possession of 3.2 grams of methylamphetamine, an offence under s 10 of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for two years or a fine of 20 penalty units or both. 4 Judge Knight sentenced the applicant to a term of imprisonment for 3 years to be served by way of periodic detention, with a non-parole period of 1 year 8 months. 5 On the same day his Honour sentenced the applicant, his Honour also sentenced the co-offenders, all of whom had pleaded guilty to the same offence of breaking, entering and stealing in circumstances of aggravation. His Honour sentenced Munro for this offence to a term of imprisonment of 2 years, to be served by way of periodic detention. His Honour did not set a non-parole period for this sentence, because he was also sentencing Munro for another, unrelated, offence of receiving. For the offence of receiving his Honour sentenced Munro to imprisonment for 3 years to be served by way of periodic detention, with a non-parole period of two years. His Honour sentenced Simpson, for the offence of breaking, entering and stealing in circumstances of aggravation, to imprisonment for 2 years to be served by way of periodic detention, with a non-parole period of 12 months. For the same offence his Honour imposed the same sentence on Carr, that is imprisonment for 2 years to be served by way of periodic detention with a non-parole period of 12 months. 6 In his remarks on sentence his Honour stated the facts of the offence of aggravated breaking, entering and stealing in a way which has not been the subject of any criticism on the hearing of this application. The following statement of the facts is derived from this part of his Honour's remarks. 7 Shortly after midnight on 20 December 2000 an alarm was activated in an industrial complex at Botany. A car was observed loitering in the area and the police were notified. Police attended the scene and commenced surveillance. At about 2.55am police observed the same car and a van, which was a stolen vehicle, approaching. Both the car and the van stopped and several persons got out of the car and entered the van. The persons in the van then included the four offenders. The van stopped outside a cafe in Botany, the four offenders got out of the van, ran to the cafe, smashed open the glass doors of the cafe and entered the cafe. Inside the cafe they stole a cigarette machine. At this stage the waiting police intervened. All four offenders attempted to flee from the scene, they were pursued by the police and all of them were apprehended. When arrested Simpson was wearing latex gloves which had become shredded when he attempted to fight off a police dog during the pursuit. After the applicant was arrested he was searched and police found 3.2 grams of methylamphetamine in a resealable bag in a canister in a bum bag he was wearing. The possession of this methylamphetamine was the further offence taken into account in the sentencing of the applicant. 8 Having summarised the facts of the offences his Honour made some general comments. His Honour described the offence of aggravated breaking, entering and stealing as one of "considerable criminality". He found that the offence was not simply a chance offence committed when an opportunity presented itself but was an offence which had been the subject of some degree of premeditation and planning. In support of this finding, his Honour referred to the circumstance that Simpson was wearing the latex gloves and to a passage in a pre-sentence report relating to the applicant, where the author of the report recorded that he had been told by the applicant that on the night of the offence he had received a telephone call from a co-offender and had agreed in the telephone conversation to participate in the commission of the offence. 9 The facts of the separate offence of receiving for which Munro was to be sentenced were as follows. On 7 February 2001 unknown persons had entered the premises of a major retailer of mobile telecommunications equipment and had stolen a large number of mobile telephones and three laptop computers. On 9 February 2001 police executed a search warrant at the premises shared by Munro and his female partner and found the three laptop computers which had been stolen and some mobile telephones, five of which could definitely be identified as having been among those stolen on 7 February. Lawfully intercepted telephone calls to which Munro was a party revealed that Munro knew there would be a breaking, entering and stealing on 7 February 2001, before it happened, and that he had received some of the goods which had been stolen, knowing that they had been stolen. The offence of receiving committed by Munro was committed when he was on bail for the offence of aggravated breaking, entering and stealing. 10 Having summarised the objective facts of the offences, his Honour turned in his remarks on sentence to the subjective circumstances of each of the offenders. 11 As regards the applicant, his Honour noted that the applicant was born on 17 February 1974, he was accordingly 26 years old at the time of committing the offences and 28 years old at the time of sentencing. He had a criminal record but this criminal record did not include any offence of dishonesty or any previous sentence of imprisonment or any drug offence. At the time of committing the offences he was subject to a good behaviour bond for 18 months from 12 May 2000, which he had entered into pursuant to s 9 of the Crimes (Sentencing Procedure) Act in respect of an offence of driving while disqualified. 12 The applicant is of Aboriginal extraction. He had been very devoted to his father, who had been prominent in the Aboriginal Legal Service but who had lapsed into taking illicit drugs after the Aboriginal Legal Service in its then form had ceased to exist and his employment with the Aboriginal Legal Service had ended. His Honour accepted that the applicant was adversely affected by the absence of a role model during his father's decline. The applicant has two children, who at the time of sentencing were aged 7 and 6 and he had the primary custody of the 7 year old child. 13 The applicant had played and was playing rugby league at a high level and had worked as an actor in television series. At the time of sentencing he was doing a TAFE course in Aboriginal studies. His Honour referred to references which spoke glowingly of the applicant's assistance to children in the Aboriginal community and his general character. 14 His Honour found that the applicant had pleaded guilty at the earliest reasonable opportunity and his Honour said that he would allow a total discount for the plea of guilty of about one third, for both the utilitarian value of the plea and as evidencing contrition. His Honour found that there were special circumstances by reason of the effect on the applicant of his father's decline and the applicant's above average prospects of successful rehabilitation. 15 His Honour observed that, despite some favourable subjective circumstances of the applicant, his Honour had to take into account the seriousness of the offence of aggravated breaking, entering and stealing, that the applicant was on a bond at the time he committed the offence and the further offence of being in possession of a prohibited drug. His Honour decided that the sentence of imprisonment he would be imposing should be served by way of periodic detention rather than full time custody and, to suit the applicant, ordered that the periodic detention be served mid-week rather than at weekends. 16 His Honour then turned to Munro's subjective circumstances. Munro had a criminal record which included convictions for receiving, larceny and taking and driving conveyances but which did not include any previous sentence of imprisonment. At the time of committing the offence of breaking, entering and stealing, Munro was not subject to any bond and was not on any form of conditional liberty. Munro also is of Aboriginal extraction. He was born in Moree but his parents moved to Sydney when he was very young. His parents separated when he was young and he was brought up by his mother as a single parent. Munro has two children from a former relationship and was the primary care giver for one of the children. As in the case of the applicant, his Honour allowed a total discount of about one third for the early plea of guilty, for the utilitarian value of the plea and as evidencing contrition. His Honour noted that Munro had spent 5 days in custody after he was arrested for the receiving offence. His Honour decided, "not without some misgiving," that the sentence for the receiving offence should be served by way of periodic detention, rather than by way of full time custody. His Honour found that there were special circumstances in Munro's above average prospects of rehabilitation. 17 As regards Simpson, his Honour noted that Simpson was born on 21 March 1975. Simpson had a criminal record consisting solely of offences against the person, with no previous conviction for dishonesty, and he had not previously been sentenced to imprisonment. At the time of committing the offence Simpson was subject to a good behaviour bond for 12 months, which he had entered into pursuant to s 10 of the Crimes (Sentencing Procedure) Act. Extensive references favourable to Simpson had been placed before his Honour. Simpson also is of Aboriginal extraction. Unlike the applicant and Munro, he had had a normal upbringing and had completed high school. His Honour did not accept a claim by Simpson that he had committed the offence to get money so that he could visit his children in the country. For this offender also, his Honour allowed a total discount of about one third for the early plea of guilty. His Honour found that there were special circumstances in Simpson's above average prospects of rehabilitation. 18 As regards Carr, his Honour noted that Carr was born on 22 August 1976. Carr had a criminal record including some previous offences of dishonesty, such as taking and driving conveyances and larceny. At the time of committing the offence Carr was subject to a good behaviour bond, which he had entered into pursuant to s 9 of the Crimes (Sentencing Procedure) Act in respect of an offence of assault occasioning actual bodily harm. Carr also is of Aboriginal extraction. He had had a normal upbringing and had completed his Higher School certificate. His Honour allowed a total discount of about a third for Carr's early plea of guilty. 19 Near the end of his remarks on sentence his Honour made some observations about the sentencing principles of parity or appropriate disparity in the sentencing of co-offenders. His Honour said that in the sentencing of the four offenders he had been very conscious of these principles. His Honour said that he regarded the objective criminality of all four offenders in the commission of the offence of aggravated breaking, entering and stealing, as being the same. His Honour said that he had decided prima facie that the appropriate sentence for each of the offenders would be a sentence of imprisonment for 2 years to be served by way of periodic detention and this was the sentence his Honour proceeded to impose on Simpson and Carr. His Honour explained that the sentence he would impose on the applicant would be more severe, because of the need to take into account the further offence of possession of a prohibited drug. The sentence to be imposed on Munro would be affected by the consideration that he was also being sentenced for the receiving offence. 20 On the hearing of this application it was not submitted by counsel for the applicant that a sentence of imprisonment for a period of 3 years to be served by way of periodic detention for the offence of aggravated breaking, entering and stealing, considered by itself, would be manifestly excessive. The submission which was made by counsel for the applicant was that there was not an appropriate parity or proportionality between the sentence imposed on the applicant and the sentences imposed on the co-offenders. Counsel referred to the leading decisions in the High Court of Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295. 21 It was submitted that, apart from the offence to be taken into account, the applicant should not, and was not regarded by the sentencing judge, as being in any worse position than the co-offenders Simpson and Carr. All of the applicant, Simpson and Carr had been on a good behaviour bond at the time of committing the offence. The offence to be taken into account in the sentencing of the applicant was the possession of a small quantity of a prohibited drug. This was an offence which could have been dealt with summarily in a local court. It was an offence for which the maximum term of imprisonment is only 2 years. It was an offence for which, according to statistics kept by the Judicial Commission of sentences in a very large total number of cases, a sentence of imprisonment, whether of full time custody or periodic detention, is rarely imposed. It was submitted that the disparity between the sentence imposed on the applicant and the sentences imposed on Simpson and Carr could not be justified on the only ground on which his Honour sought to justify it, namely the need to take into account the further offence in the sentencing of the applicant. It was also submitted that there was a lack of an appropriate degree of disparity between the sentence imposed on the applicant and the sentences imposed on Munro. 22 In my opinion, counsel for the applicant's challenge to the sentence imposed by his Honour on the applicant has been made good. The only ground on which the applicant's case could be distinguished, to the detriment of the applicant, from the cases of the co-offenders Simpson and Carr, and the only ground on which his Honour said in his remarks on sentence that he was distinguishing the applicant's case, was the applicant's possession of a small quantity of a prohibited drug. In my opinion, for reasons including the reasons advanced by counsel for the applicant, that was an insufficient ground for imposing a head sentence so much higher than the sentences imposed on Simpson and Carr. Furthermore, as stated in the judgment of the Chief Justice on behalf of the Court in The Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) NSWCCA 518, the use of the procedure of taking an offence into account will generally result in a lower effective penalty for the offence taken into account than would have happened, if the prisoner had been separately convicted of that offence and had then been sentenced for that offence. See in particular the judgment of the Chief Justice at par 34. 23 There are difficulties in attempting any valid comparison between the sentence imposed on the applicant and the sentences imposed on the co-offender Munro, who was also being sentenced for another, quite unrelated, offence. However, even allowing for the fact that Munro was not on any form of conditional liberty at the time of committing the offence of aggravated breaking, entering and stealing, it is at least somewhat surprising that the head sentence imposed on the applicant for the offence of breaking, entering and stealing, with the offence of possession of a small quantity of a prohibited drug being taken into account, was the same as the total head sentences imposed on Munro for the offence of breaking, entering and stealing and the offence of receiving, which is an offence of a kind which the law has traditionally regarded as a serious kind of offence and which was committed by Munro while he was on bail for the offence of breaking, entering and stealing. 24 The conclusion that the sentence imposed on the applicant should not be allowed to stand can be arrived at, without having to resort to principles of parity or appropriate disparity in the sentencing of co-offenders. His Honour said in his remarks on sentence that an appropriate sentence to impose on the applicant, apart from the offence to be taken into account, would be a sentence of 2 years imprisonment to be served by way of periodic detention. To add 12 months to that sentence to take account of the further offence was, in my opinion, a manifestly excessive allowance for that further offence. 25 I would propose that leave to appeal be granted, that the appeal against sentence be allowed and that the sentence imposed on the applicant by Judge Knight in the District Court on 13 June 2002 be quashed. It is accordingly necessary for this Court to re-sentence the applicant. In re-sentencing the applicant we can take into account an affidavit by the applicant sworn 3 February 2003. In that affidavit the applicant says inter alia that he has in fact been serving his periodic detention and has not been absent without leave on any occasion. In re-sentencing the applicant I take into account the objective facts of the offence and the subjective circumstances of the applicant which I have already referred to. I take into account the matters the Court is required to take into account pursuant to the Crimes (Sentencing Procedure) Act. 26 Although I consider that the amount of 12 months was an excessive allowance for the offence to be taken into account, I consider that there must be some allowance for that offence and I would propose that a total sentence of 2 years 3 months be imposed on the applicant. Like the sentencing judge, I would be prepared to find special circumstances. I would propose that, in lieu of the sentence imposed on the applicant by his Honour Judge Knight, the applicant be sentenced to a term of imprisonment of 2 years 3 months commencing on 27 June 2002, the sentence to be served by way of periodic detention. And I would set a non-parole period of 14 months, commencing on 27 June 2002. I would propose that a parole order be made that the applicant be released on parole on 26 August 2003. 27 GREG JAMES J: Mr Crown do we have to make any formal order concerning the commencement of the periodic detention? 28 JAMES J: I've made it commence from the same date as his Honour did. 29 FREARSON: That's so, but he's in fact already serving it so it's just a continuation. 30 GREG JAMES J: We'd simply note that the first date is to be the date on which he actually commenced to serve it. 31 FREARSON: That's so your Honour. 32 JAMES J: Is there anything further? 33 GREG JAMES J: I agree with the reasons his Honour has given for upholding the appeal against sentence. I also agree for the reasons his Honour has given that the sentences imposed by the learned trial judge should be quashed and the sentence his Honour has proposed passed. 34 JAMES J: The orders of the Court will be as proposed by me with the addendum by Greg James J. Those will be the orders of the Court. **********