New South Wales Court of Criminal Appeal CITATION : R v MJM [2004] NSWCCA 66 HEARING DATE(S) : 12 March 2004 JUDGMENT DATE : 12 March 2004 JUDGMENT OF : Grove J at 1, 58; Simpson J at 2; Sperling J at 52 DECISION : Leave to appeal against sentence granted, appeal dismissed CATCHWORDS : appeal against severity of sentences - pleas of guilty - Form 1 offences - nine counts of break, enter and steal - enter land with intent to steal - using a weapon to resist arrest - subjective circumstances - remarks on sentence - fresh evidence - no error in sentencing process - administrative remedy Crimes Act 1900 Division 2 Part 13A LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Division 3 Part 3, s44 Criminal Appeal Act 1912 s6 subs3 House v The King (1936) 55 CLR 499 R v Cartwright (1989) 17 NSWLR 243 R v Fernando (1992) 76 A Crim R 58 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 CASES CITED : R v Willard [2001] NSWCCA 6 The Queen v Many (1990) 51 A Crim R 54 The Queen v P [2003] NSWCCA 298 The Queen v Pearce (1998) 194 CLR 610 The Queen v W [2001] NSWCCA 172 PARTIES : Crown - Respondent MJM - Applicant FILE NUMBER(S) : CCA 60361/03 COUNSEL : Crown - G Rowling Applicant - S Kluss SOLICITORS : Crown - S Kavanagh Applicant B Sandland LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0260; 01/31/0261 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60361/03 GROVE J SIMPSON J SPERLING J Friday 12 March 2004 REGINA v MJM Judgment 1 GROVE J: The Court is in a position to give judgment. I ask Simpson J to give the judgment. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Gosford on 4 April 2002 by English DCJ following his pleas of guilty to a series of charges on an indictment. 3 In all, the applicant pleaded guilty to no less than nine counts of break enter and steal, one of entering land with intent to steal, and one of using a weapon to resist arrest. In addition, he asked that one count of driving in a manner dangerous and one of possession of a prohibited drug listed on a Form 1 be taken into account pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999. Her Honour sentenced the applicant as follows: Count 1: (taking into account the Form 1 offences) imprisonment for five years with a non-parole period of three years; Counts 2 (enter land with intent), 5 and 8: imprisonment for a fixed term of nine months; Counts 3 and 10: imprisonment for a fixed term of eighteen months; Count 4: imprisonment for a fixed term of six months; Counts 6 and 9: imprisonment for a fixed term of three years; Count 7: imprisonment for a fixed term of two years; Count 11 (use weapon to resist arrest): imprisonment for a fixed term of three years. 4 The sentence in respect of count 11 was fixed to commence on 9 June 2001; all other sentences were made partially cumulative upon that sentence and fixed to commence on 9 June 2002. 5 In total her Honour sentenced the applicant to a head sentence of six years with a non-parole period of four years. It is implicit in the structure of the sentences that her Honour found special circumstances within the meaning of s44 of the Crimes (Sentencing Procedure) Act justifying a non-parole period less than three quarters of the overall sentence. She gave no reason for so doing, but having regard to the material that was before her Honour, it is not difficult to discern why she took that course. facts 6 All offences on the indictment were committed on the same day, 17 October 1995. All break, enter and steal offences were similar in nature. They consisted of the applicant's entering the grounds of residential premises, gaining access to the interior, generally by breaking or forcing a window, and (to use the words in the statement of facts put before her Honour) ransacking the premises. The applicant stole money, jewellery and other personal items. He was driving a van, into which he placed the property. The offence of entering land with intent to steal was commenced when the applicant entered yet another property, plainly with intent to commit an offence of the same kind, but was thwarted by the intervention of a neighbour, as a result of which the applicant fled to his van and drove off. 7 Before he did so, the neighbour was able to observe that the applicant was in possession of a pair of surgical type gloves. The neighbour also noted the registration number of the applicant's van. The neighbour reported the incident to police, and the registration number of the vehicle, and this was circulated over police radio. Police driving a "police dog vehicle" came across the van. 8 Upon seeing the police vehicle the applicant turned into a street and drove through the side fence of a residence. The van collided with a tree and the applicant ran off through bushland. Police gave chase, with the assistance of two police dogs. 9 The applicant ran into a property where he was pursued by police who attempted to arrest him. The applicant removed a tomahawk from a utility nearby. According to the police statement of facts, he threatened police with the weapon. (In oral evidence, the applicant disputed this.) The applicant ran down a driveway and one of the police dogs ran after him, and took hold of him. Again according to the police facts, the applicant struck the dog several times with the blunt side of the blade of the tomahawk. (This, too, was disputed by the applicant.) Also according to the police facts (and also in dispute) the applicant swung the tomahawk at one of the police officers, narrowly missing striking him in the face. 10 The applicant's action with the tomahawk caused the police dog to release its grip on him, and he ran off again, and began to climb a fence. He (according to police facts, and disputed) again struck the police dog. A scuffle ensued and the applicant dropped the bag he was carrying. He ran off yet again, but was arrested shortly after. He was found to have a screwdriver in his right sock. 11 Inside the van and in the applicant's dropped bag police located the majority of the stolen property. Only relatively small amounts of jewellery and money were not recovered. 12 Police contacted lawyers at the Aboriginal Legal Service, who advised the applicant not to participate in any interview or answer any questions. 13 On 20 November 1995 in the Wyong Local Court the applicant was committed for trial. He was at some stage granted conditional bail, including that he stay at specific residences, although these seem to have changed from time to time. At some stage, according to the applicant's evidence before English DCJ, he was required to reside at Bennelong Haven (near Kempsey) to undergo drug and alcohol rehabilitation. He did not go there, he said because no transport arrangements were made for him, and he had no money to pay for transport, and he did not know where Bennelong Haven was. 14 The applicant attended court on 6 December 1995, when a trial was fixed to commence on 1 February 1996. He failed to attend and a Bench Warrant was issued. In fact the applicant travelled with his wife and two children to Queensland and then Victoria. He remained in Queensland for some time before returning to NSW, where he lived in Sydney and various country towns, and then in Victoria. He separated from his wife and for a time he had custody of one of his sons. 15 On 9 June 2001, while in NSW, he came to the attention of police in relation to the two offences on the Form 1 and was arrested. The Bench Warrant came to light. The applicant was arrested and remained in custody until the date of sentencing. subjective circumstances 16 The applicant has used different names and given different birth dates. As MJM his date of birth is given as 5 December 1970. He was therefore a few weeks short of twenty-five years of age at the time of the commission of the offences on the indictment. He is of Aboriginal descent and his history exhibits the familiar pattern of deprivation and family dysfunction recognised by Wood J (as the Chief Judge then was) in R v Fernando (1992) 76 A Crim R 58. He was exposed to domestic violence at an early age and at thirteen was placed in a hostel for Aboriginal children, not as a result of wrongdoing on his part, but because he was in need of care. 17 The applicant has a lengthy criminal history, including numerous break enter and steal offences. 18 The sentencing judge did not have the benefit of a pre-sentence report, although she had, on 27 September 2001, requested both a full pre-sentence report and a psychiatric report. For some unexplained reason neither was forthcoming and the applicant's legal representative did not seek adjournment to pursue either. He did this, he said, because he recognised the inevitability of a prison term and because he considered the relevant evidence could be elicited from the applicant himself. 19 It may also be observed that these matters had been before the District Court on at least two previous occasions, including 9 November 2001, when the applicant himself was pressing for finalisation. 20 The applicant said that at the time of the commission of the 1995 offences he had been consuming both alcohol and cannabis. He said that he was en route to the ACT where he was involved in a political protest concerning indigenous issues, but the journey was temporarily interrupted on the Central Coast where he committed the offences. 21 He said that following the deaths of his father and an aunt to whom he had been close, in mid 2001, he had again relapsed into abuse of these drugs. 22 He gave some evidence of rehabilitation, saying that he had discovered a talent for art and had become involved in teaching Aboriginal studies, and had written an "instructional book" on Aboriginal art for inclusion in the Aboriginal studies curriculum. Whilst in custody he had completed about 60 paintings and had made arrangements with the Powerhouse Museum for an exhibition of his work on his release. 23 He expressly denied using the tomahawk to hit the dog or threaten a police officer, and said that he had himself been threatened by police with being shot, that he was attacked, that he was in fear and panic, and that, as a result of his being held by the dog, he had permanent scarring. the remarks on sentence 24 The sentencing judge recounted the circumstances of the offences, and the subjective matters of which the applicant gave evidence. She noted the gravity of the offences of break, enter and steal, attracting, as they do, a maximum penalty of imprisonment for fourteen years. The offence of using a weapon to avoid lawful apprehension, as her Honour noted, attracts a maximum penalty of imprisonment for twelve years, and the offence of entering enclosed lands with the intent to steal, a maximum penalty of imprisonment for seven years. 25 She noted that the applicant accepted full responsibility for the delay in sentencing. She described the applicant as "an habitual offender". No criticism is made of this characterisation, and, having regard to the applicant's record, and bearing in mind that the expression was not used in any technical sense, no challenge could be made to the finding. In the only passage in the remarks that could be said to explain the structure of the sentences with reference to s44 of the Sentencing Procedure Act, her Honour said: "It is appropriate that he has a lengthy and supervised period of rehabilitation to minimise his risk of re-offending." 26 She allowed a discount on the sentences of 15% referable to his pleas of guilty: see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. 27 Having regard to The Queen v Pearce (1998) 194 CLR 610, and to the principle of totality, she imposed the individual sentences, partially accumulated, that she did and that have been set out above. application for leave to appeal 28 Initially, two matters were raised in written submissions filed on behalf of the applicant. These were that, in all the circumstances, the sentences were manifestly excessive. By way of particularisation of this, it was submitted that ten matters which, it was said, her Honour had failed adequately to take into account, could be identified. These were: (i) the unremarkable nature of the individual offences of break enter and steal and the value of the property stolen; (ii) the recovery of almost all of the stolen property; (iii) the significant utilitarian benefit in the plea of guilty; (iv) contrition manifested by the plea of guilty and the applicant's progress towards rehabilitation; (v) the absence of any injury, either to the police officer or to the police dog; (vi) the Fernando circumstances; (vii) the applicant's alcoholism and drug use and itinerant lifestyle at the time of the offences; (viii) the development of the applicant's family ties and more stable lifestyle during the period between the offences and sentencing; (ix) the applicant's development of skills (his artwork) providing him with potential employment, significant social recognition and thus progress towards rehabilitation; (x) the length of the sentences, being in excess of any sentence previously served by him. 29 I do not think that "unremarkable" is an apposite term to describe the invasion of the homes of individuals and the theft of personal property. Moreover, I do not think it is appropriate merely to look at each offence of break, enter and steal individually without having regard to the fact that nine such offences were committed in a single day, and a tenth was in progress and, no doubt, would have proceeded but for the intervention of the neighbour. The objective circumstances of the offences were, as her Honour treated them, serious. 30 Her Honour was aware of the fact, and recognised, that almost all of the property was recovered. As to the pleas of guilty, in considering the utilitarian benefit of a plea of guilty, one significant factor is the timing. Here, the applicant was arrested and charged on the day of the offences, October 1995; even after his arrest in 2001, he maintained pleas of not guilty until the day fixed for trial. In my opinion the allowance of 15% was a generous one. Moreover, while the number of charges would have had a bearing on the length of a trial, the issues were not complex. The utilitarian value of the pleas of guilty was thus limited. 31 I do not accept that the plea of guilty afforded any evidence of contrition, although there was the applicant's own evidence to that effect. But this was before her Honour and it has not been shown that it was not given adequate weight. 32 Her Honour recognised the matters identified as (v), (vi) and (vii), that is, the absence of injuries, the applicant's deprived background and his use of alcohol and cannabis at the time of the offences. I am satisfied that there was no error in the approach taken by the sentencing judge. Nor do I see that the length of the sentences compared with those previously served by the applicant should have affected the assessment of the criminality involved in the applicant's conduct. Her Honour was required to sentence appropriately in relation to each offence committed and then consider questions of concurrence and accumulation. This she did. 33 The second matter raised on behalf of the applicant concerned the treatment of the implicit finding of special circumstances. 34 Her Honour plainly did find special circumstances and gave effect to that finding by reducing what would otherwise be a non-parole period of four and a half years to one of four years. Once a finding of special circumstances is made, the manner in which a sentence is to be divided is essentially a discretionary one for the sentencing judge, to be interfered with in this Court only on the principles which govern interference with a discretionary judgment: House v The King (1936) 55 CLR 499. 35 I see no error of principle in the division of the non-parole and parole periods selected by her Honour. 36 I am satisfied that there was no error in the approach taken by Judge English. fresh evidence 37 At the commencement of this application, that is the application for leave to appeal against sentence, an application was made for leave to adduce fresh evidence in these proceedings. In support of that application and admitted on that application only, the Court read an affidavit by the applicant and also the contents of a sealed envelope produced to the Court by the Crown, and returned to the custody of the Crown. 38 I note that the application for leave to appeal against sentence was initially listed before this Court on 17 December 2003. At that time the applicant sought an adjournment in order to explore and produce fresh evidence. That resulted in the applicant's affidavit and the sealed envelope. The content of the affidavit may be encapsulated briefly. It was that on 2 January 2002, before the date of his sentence, he had witnessed a murder in the prison in which he was being held. Although he was spoken to by investigating police on that day, he provided no information. Subsequently, after sentencing, he took a different course and did cooperate with and assist police in their investigations. 39 He was told that his life was in danger. Subsequently he was assaulted whilst in gaol. The applicant attributed the assault to the refusal of himself and his girlfriend to have his girlfriend bring drugs to the gaol; but he also deposed that the assailants knew that he was a Crown witness. 40 The applicant put some medical evidence before the Court which supported his account of assault and injury. As a result, he also spent two or three weeks in segregation. He had given evidence for the Crown in the Local Court of committal proceedings against five people charged with the murder. As a further result of his cooperation, the applicant has been held at the special purposes centre since 19 July 2003. 41 The applicant expects to serve the remainder of his sentence at the Special Purpose Centre. In that facility he has no access to any of the privileges ordinarily accorded to inmates towards the end of their sentences. He is not able to have day release or work release. He is isolated and held, effectively, in a maximum-security gaol. He has little contact with his family because they live in Queensland. 42 The applicant has provided further assistance which it is undesirable to detail. He further feels that, on his release, he may have to enter a witness protection program or receive a new identity. If he has to take the latter course, he is concerned that he will lose the reputation as an artist that he has developed to date. 43 In my opinion, had these matters been before the sentencing judge, they would properly have been of considerable moment. I have no doubt that the applicant would have been entitled to a significant reduction in his sentence in recognition of the principles stated in R v Cartwright (1989) 17 NSWLR 243. The difficulty for the applicant is that all of the matters which would have warranted that course post-date sentencing. 44 This Court will resentence only when error in the sentencing process is established. Axiomatically, error cannot be established by post-sentencing events. I discussed this matter at length in R v Willard [2001] NSWCCA 6, and do not propose to repeat what I there said. 45 I am satisfied that the material now proffered to this Court is not material that can be taken into account on the application for leave to appeal against sentence. Accordingly, the application for leave to adduce fresh evidence should be rejected. I would note that counsel for the applicant pressed for the admission of the evidence on the application for leave to appeal on the basis that the precipitating event, that is, the murder that the applicant witnessed, occurred before the date of his sentence, but that he did not appreciate the significance of the assistance that he had not then given, but subsequently did give. 46 Counsel relied on what she called an overriding principle that the admission of the evidence would be in the interests of justice. In support of that proposition, she relied upon the decision of this Court in The Queen v Many (1990) 51 A Crim R 54. She also referred the Court to the earlier decisions of this Court in The Queen v P [2003] NSWCCA 298 and The Queen v W [2001] NSWCCA 172. In each of these cases the events the subject of the fresh evidence occurred prior to sentencing, and for one reason or another, were not put before the sentencing judge. 47 I would add that s6(3) of the Criminal Appeal Act 1912 provides for the circumstances in which this Court might allow an appeal against sentence. Those circumstances are where the Court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed. It is quite clear that events that post date sentencing cannot establish that some other sentence should have been passed by the sentencing judge. 48 It would be different if the applicant had established error in the sentencing process; in that case it would be appropriate for the Court to take the material into account on re-sentencing. I have already expressed the view that such error has not been shown. 49 It is, of course, open to the applicant to seek administrative remedy. As I have earlier indicated, in my opinion the applicant's claim (as distinct from his application for leave to appeal) has considerable merit. His legal advisors should take the matter up with the appropriate authorities. I would refer particularly to Division 2, Part 13A of the Crimes Act 1900. There is also the possibility of executive intervention. 50 Since no error in the sentencing process has been shown, the applicant should be given leave to appeal against the sentences, but the appeal should be dismissed. 51 GROVE J: I agree. 52 SPERLING J: I also agree, but I would like to add an observation concerning the decision of this Court in Many (1990) 51 A Crim R 54. Counsel for the applicant relied on a statement appearing in the judgment of the court in that decision at page 65, where, in relation to the application for leave to appeal against sentence, the court said: The overriding duty of this Court is to avoid a miscarriage of justice: Criminal Appeal Act 1912 (NSW) s6. 53 Unlike s6(1), which relates to appeals against conviction, s6(3), which relates to appeals against sentence, is not predicated upon a miscarriage of justice. 54 Reading the judgment in Many as a whole, I am of the opinion that the passage quoted above should be read as intended to be confined to facts of the kind under consideration in that decision. 55 This is apparent particularly from what was said by the court at pages 61 and 62 where the facts of the case are stated. In substance, the applicant had rendered assistance to the authorities prior to sentence, but this had not been brought to the attention of the sentencing judge because the applicant was ignorant of his entitlement to make use of that assistance for the purpose of the sentencing process. The court observed that the evidence of what had occurred was not strictly "fresh evidence". That was plainly so because the matter in question was known to the applicant at the time of sentencing. The court, though, went on to say, at page 62: We are of the view that in the unusual and somewhat complex circumstances of this matter it is appropriate to admit this material in the interests of justice. In doing so the Court disregards entirely those facts occurring subsequently to the time of sentencing. They should not be taken into account by this Court on an appeal against sentence. As noted by Street CJ in Munday (1981) 2 NSWLR 177 at 178: "The review of the sentence in the light of subsequent events is the proper province of the Executive Government and not of an Appeal Court." 56 That passage illuminates what was meant by the phrase "miscarriage of justice" at page 65 of the judgment in Many. 57 The passage which I have quoted from page 62 of the judgment in Many is fatal to the application to adduce fresh evidence in the present case. 58 GROVE J: The orders of the Court will be as proposed by Simpson J. In addition, it is ordered that the content of the sealed envelope described as an affidavit of comfort be returned to the applicant. 59 Following an application by Ms Kluss that the affidavit of the applicant also be sealed, we bear in mind that the Court file is not like a property register, in that not anybody can search the files in this Court. Given the nature of the material to which Ms Kluss has referred, we are of the view that we should not make any special order. ********** Last Modified: 04/14/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.