Reported Decision : 152 A Crim R 277 New South Wales Court of Criminal Appeal CITATION: R v Castles [2005] NSWCCA 79 HEARING DATE(S): 25 November 2004 JUDGMENT DATE: 14 March 2005 JUDGMENT OF: Santow JA at 1; Bell J at 40; Howie J at 41 DECISION: (1) Grant leave to appeal; ; (2) Allow the appeal and quash the sentence imposed in the District Court. In lieu thereof specify a non-parole period of one year and eight months to commence on 12 November 2003. The balance of the term of the sentence is twelve months. Direct the applicant's release on parole at the expiration of the non-parole period on 11 July 2005. CATCHWORDS: SENTENCE - leave to appeal against the severity of the sentence - whether sentence imposed was manifestly excessive - whether Court should intervene to impose a lower sentence - whether there was error in the treatment of plea of guilty - whether there was error in the dealing with the principle of general deterrence - whether there should have been a finding of special circumstances - whether this Court should itself consider special circumstances - whether relatively low intelligence of applicant taken into account. Crimes Act 1900 s112(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s21A, s33 Criminal Appeal Act 1912 s5(1)(c) R v Crombie [1999] NSWCCA 297 R v Dorsett [2002] NSWCCA 326 R v Johnstone [2004] NSWCCA 307 R v Kay [2004] NSWCCA 130 R v Matthews [2004] NSWCCA 112 R v Ponfield (1999) 48 NSWLR 327 R v Proud [2002] NSWCCA 219 CASES CITED: R v Radic (2001) 122 A Crim R 70 Scognamiglio v R (1991) 56 A Crim R 81 R v Shaw [2001] NSWCCA 44 R v Simpson (2001) 53 NSWLR 704 at [86] R v Sutton [2004] NSWCCA 225 R v Tayfun, [2001] NSWCCA 417 R v Thomson (2000) 49 NSWLR 383 R v Wahabzadah [2001] NSWCCA 253 Mark John CASTLES (applicant/ appellant) PARTIES: Regina (opponent/respondent) FILE NUMBER(S): CCA 2004/2217 C SMITH (applicant/ appellant) COUNSEL: D ARNOTT (opponent/ respondent) S E O'Connor (applicant/ appellant) SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/31/0467 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2217 CCAP SANTOW JA BELL J HOWIE J 14 MARCH 2005 REGINA v Mark John CASTLES Judgment 1 SANTOW JA: INTRODUCTION The applicant, Mark John Castles, applies pursuant to s5(1)(c) of the Criminal Appeal Act 1912 for leave to appeal against the severity of the sentence imposed upon him by Armitage DCJ on 12 February 2004. If such leave is granted, the applicant seeks the Court's intervention to impose a lower sentence. 2 The applicant entered a plea of guilty to the offence of break enter and steal occurring 4 February 2003. He was charged under s112(1) of the Crimes Act 1900, an offence carrying a maximum penalty of 14 years imprisonment. Upon sentencing, the applicant requested the Court to take into account a further offence (occurring 1 April 1998) of break enter and steal In accordance with s33 of the Crimes (Sentencing Procedure) Act 1999. The sentence imposed was a term of imprisonment of three years (12 November 2003 to 11 November 2006) with a non-parole period of two years and three months such that the applicant would be eligible for release on parole on 11 February 2006. 3 There are essentially four grounds of appeal: (1) that the sentencing judge erred in his treatment of the plea of guilty; (2) that the sentencing judge erred in dealing with the principle of general deterrence; (3) that the sentencing judge erred in not finding special circumstances; and (4) that the sentence imposed was manifestly excessive. SALIENT FACTS 4 The background facts giving rise to the charge are not substantially in dispute. Nor are the personal circumstances of the applicant. 5 Mr Castles is 28 years old, and was nearly 27 years old at the date of the offence. He is unemployed and has a history of chronic poly-substance abuse since the age of 12 or 13 years when he ceased formal education. He has a very extensive criminal record commencing in 1993 when he was dealt with by the Children's Court. It was comprehensively summarised by the sentencing judge in his remarks on sentencing and encompasses a large number of convictions for theft-type offences and driving offences. Thus there were six previous offences of break enter and steal. The offence with which he was charged was committed about seven months after having been released from gaol. 6 The principal offence charged in this case was breaking entering and stealing from a dwelling at Erina, where the applicant took a significant quantity of jewellery and some electrical equipment. While engaged in this theft, the applicant left a number of drops of blood on the bed linen which was later positively DNA-identified as being his by the Police. The Form 1 matter was a similar offence of breaking entering and stealing from a dwelling at Edensor Park, where the applicant took a large quantity of clothing and electronic equipment to the value of $10,000. 7 The applicant pleaded guilty in the Local Court, and adhered to this plea after he was committed for sentence to the District Court. 8 On sentence, the Crown tendered a bundle of documents comprising the usual Police documents, ERISP transcripts and also statements including statements and expert certificates relating to the DNA analysis performed by the Police on the drops of blood found at the Erina premises (Exhibit A). A Pre-Sentence Report written by Ms Karen Williams was also tendered (Exhibit B). It stated that he had a harsh upbringing, ceased formal education and started using drugs at age 12 or 13 years. The applicant tendered a psychological assessment written by Dr John Machlin, a clinical psychologist (Exhibit 1). 9 At the proceedings on sentence, the applicant gave evidence under oath and was cross-examined. A fair summation of his circumstances and of the offence is contained in the Crown's written submissions: "8. He [the applicant] told Mr Machlin that he had had a number of relationships in the past. The first serious relationship lasted 8 years; another spanned 3 years and at the time of speaking to Mr Machlin was in a current relationship, which commenced in July 2003. Other than as an unpaid assistant to his father for eight months after leaving school he has never had a job. 9. He told Ms Karen Williams he did not remember the offence because he had consumed 'heaps of pills'. He gave Mr Machlin a similar account of having binged on 'tablets' at the time of his offence in February 2003 due to breaking up with his girlfriend. 10. The applicant gave evidence. He said he had read both the pre-sentence and psychological reports and agreed 'with the factual and the personal matters set out in those reports' (T 4). The applicant did not state in evidence, nor did either of the reports identify, the tablets he had taken when he committed the offence. He had told the police that he 'might have been under the effect of' Serapax prescribed by a doctor to be taken 'only when I needed 'em' (Q.24). 11. He gave evidence that he had stopped taking pills in May 2003 and stopped using cannabis two or three months prior to being sent to prison (T 5). He had been in prison since 12 November 2003. 12. He told Mr Machlin he was in strict protection due to having been branded 'a dog' for reporting have been sexually molested by other residents at boys' home when he was thirteen (bottom p. 3). In evidence he was not asked about the circumstances in which he came to be in strict protection. His evidence was confined to the conditions that then existed (T 9-10). During the course of addresses, his Honour was informed from the bar table that 'he was placed there for his own safety. There was an incident where he was threatened with a knife' (T 17-18)." REMARKS ON SENTENCING 10 After setting out the background and facts, the judge first considered the subjective features of the case. He noted the extensive criminal record referred to previously and set out the contents of the Pre-Sentence Report, noting that: (a) The applicant is the youngest of 4 children, whose parents separated when he was 7 due to verbal and physical abuse perpetrated on him by his biological father. (b) The applicant left school at 13 years of age due to his unsatisfactory behaviour; (c) The applicant had an extensive drug habit commencing at the age of 12 including cannabis, alcohol, heroin, but maintains he ceased heroin use at age 23. (d) The applicant is currently housed in strict protection at the Long Bay Correctional Centre. As such, he does not have access to inmate employment and professional services and remaining in his cell 23 hours per day. He has incurred no internal charges since the time he was received into custody. 11 The judge then noted the contents of the psychological report. He noted his history of chronic poly-substance abuse. He also noted the applicant's claim that his usage had declined substantially in the two years prior to the offence, although he had binged on tablets at the time of the offence after breaking up with his girlfriend. 12 In relation to the applicant's intelligence, the sentencing judge said: "At page 5 of his report under the heading "Psychometric Testing" Mr Machlin sets out at some length the results of intelligence tests that he conducted with the offender. I note what he says there and I give full weight to it ." [emphasis added] (That report showed his overall performance yielded a composite IQ of 71, which falls within the "Well Below Average" or "Borderline" range in the lowest 3% of the population. He also suffered from anxiety and depression.) 13 The Judge then referred to the applicant's evidence, accepting that he had ceased cannabis use 3 months before being taken into custody in November 2003, and noting that at the time of sentence he was in a stable relationship and had the support of his family. 14 The judge then turned to consider the objective features of the case, referring to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327 (particularly as to what it says about history of previous offences of a like nature) and the aggravating and mitigating factors referred to in s21A Crimes (Sentencing Procedure) Act 1999. The judge considered that both the principal offence and the Form 1 offence were of a serious nature involving breaking and entering a private home and taking property of considerable value in monetary and sentimental terms. 15 The sentencing judge found that there was only one aggravating factor present, namely that the applicant has a record of having committed similar offences s21A(2)(d). There were however two mitigating factors present: that there is nothing to suggest the offence was planned and that the applicant pleaded guilty at the first opportunity s21A(3)(b) and (k). 16 The judge then relevantly stated: "In spite of the offender's evidence today I am not satisfied that he is genuinely remorseful in any meaningful sense. In imposing sentence I take into account, as an important matter, the fact that the offender is in strict protection, and in my view, it is very likely that he will remain there. I also take into account the utilitarian value of the plea of guilty. Clearly the Crown case, based on DNA evidence, was very strong." The judge later stated that were it not for the plea of guilty, he would have imposed a sentence of 3½ years with a non-parole period of 2 years and 7 months. The percentage discount therefore applied by the judge was approximately 14%, a figure which the applicant places some store by in submissions relating to Ground 1 of this appeal. 17 After dealing with the plea of guilty, the judge turned to consider the purposes of sentencing laid down by s3A of the Crimes (Sentencing Procedure) Act 1999 and said: "I have regard in particular to the requirement the offender be adequately punished for the offence and the requirement that crime be prevented by deterring this offender and other persons from committing similar offences." The sentencing judge's comments on general deterrence are criticised in Ground 2 of this appeal. 18 The sentencing judge declined to find special circumstances, although he did explicitly refer to Mr Machlin's assessment of the applicant's mental state. The judge stated that "[t]he fact that the offender clearly would benefit from a period of supervision does not of itself amount to special circumstances." This finding is challenged by Ground 3 of this appeal. THE APPEAL Ground 1 – guilty plea 19 The applicant submits that it is clear from R v Thomson (2000) 49 NSWLR 383 that the appropriate range for a discount for utilitarian benefit is 10-25% with the top range applicable only where there is a plea at the earliest possible opportunity. Given this, it is said that the discount of 14% applied by the sentencing judge was stingy given that the applicant's plea was given at the earliest possible opportunity (in the Local Court and adhered to after being committed). Instead the discount should have been at the upper end of the 10-25% scale. Moreover, the applicant submits that the judge erred in referring to the strength of the Crown case in the context of the utilitarian value of the plea, and relies on the litany of cases instanced recently by the Court of Criminal Appeal in R v Sutton [2004] NSWCCA 225 at [12]. 20 The Crown submits that there was no error in adopting a low to middle range discount because although the plea was early, extensive preparation had been undertaken by the Crown and there was little complexity involved. In addition the judge was not satisfied of contrition. The Crown submits that it is well established that the 10% to 25% range indicated in Thomson do not constitute bright lines. The test for error, according to the Crown, is not whether the judge "could have" allowed for a larger discount, but whether the discount alone or in conjunction with other factors led to a manifestly excessive sentence: R v Dorsett [2002] NSWCCA 326. 21 The Crown concedes that the strength of the Crown case is not relevant to the utilitarian value of the plea, but submits that the mere fact of the judge's sentence structure does not mean he considered one as relevant to the other. The Crown presses for an interpretation of the passage (excerpted at [16] above) as indicating merely that the judge properly considered both relevant factors, since he had already indicated that the strength of the Crown case was significant to his view that there was no genuine remorse. In particular, the Crown points out that the judge did not use words criticised by the Court of Criminal Appeal in this regard such as "however" or "although" to link the two relevant factors of the strength of the Crown case and the utilitarian value of the guilty plea. Finally, the Crown urges that the discount itself was appropriate, given the limited utility of the plea and the applicant's failure to satisfy the judge that he was genuinely remorseful. Conclusion 22 I agree with the applicant's submissions. The plea was early. It is not relevant that extensive preparation had been undertaken beforehand by the Crown. Moreover the juxtaposition of the last two sentences of the excerpted passage at [16] points strongly to the factor of the strength of the Crown case (based on DNA evidence) as having been, wrongly, taken into account as justifying a lower discount than the usual 25%. Indeed the 14% allowed is difficult to understand otherwise. 23 What was said in R v Johnstone [2004] NSWCCA 307 by Sully J at [28] applies to what the trial judge did here: "In my opinion, her Honour's approach to the quantification of the particular discount to be allowed in recognition of the applicant's pleas of guilty is attended by error; but for my own part I would not find the error, either explicitly or implicitly, in the bare figure of 15% upon which her Honour settled. It seems to me, rather, that the error lies in the total absence of any explanation of the decision to set the figure at 15% rather than at a figure of or approaching 25% . That is not to say that there was, in my view, any need for a page or two of discursive argument and analysis. I do think, however, that the thrust of the guideline judgment in Thomson and Houlton does entail that in a case of the present kind a sentencing Judge might well come to the conclusion that there were factors, whether individual factors or a number of factors taken in combination, justifying a discount of less, and even significantly less, than the guideline maximum of 25%; but it seems to me to be in accord with relevant principle that a sentencing Judge who has concluded that a just discount is at the lower rather than at the higher end of the guideline range, ought to give at least a brief, clear and simple explanation of the process of reasoning that has led the Judge to that conclusion ." [emphasis added] 24 With respect, and more especially given what is implied by way of possible explanation by the juxtaposition of the last two sentences quoted at [16] above, that criticism applies here, so that error has been shown. 25 I would therefore infer that the discount was, wrongly, affected by the perceived strength of the Crown case, with that inference strengthened by the absence of any other stated reason than "extensive Crown preparation" before the plea. 26 Once error is established, this Court must exercise its discretion afresh and substitute the appropriate sentence, unless satisfied that no lesser sentence is warranted. I do consider that a lesser sentence is warranted, and will return to that in dealing with the grounds below. Ground 2 – general deterrence 27 The applicant submits that where an offender is suffering from a mental disability (or very low intelligence), it is established that less weight should be given on sentence to general deterrence: Scognamiglio v R (1991) 56 A Crim R 81. In reliance on this principle and the psychological assessment performed by Dr Machlin, it is submitted that little weight if any should be placed on general deterrence as the applicant was not an appropriate vehicle for general deterrence. 28 The Crown says primarily that the sentencing judge did not give undue weight to the principle of general deterrence, and was alive to the significance of the applicant's low intelligence in relation to imposing a deterrent sentence. Secondarily, the Crown submits it is unclear whether the threshold question of whether less weight should be given in the case of an offender suffering a "mental disorder or abnormality"", as referred to in Scognamiglio (supra) at 85-6, applies at all in this case. According to the Crown, general deterrence is only given less weight in the case of mentally disordered persons because in that circumstance, the community readily will understand that such a person is less in control of his cognitive facilities and may lack the ability to make reasoned judgments: R v Matthews [2004] NSWCCA 112 at [22]. (I interpolate that Matthews appears to assume that a "significant defect in intellectual functioning" is included as a "mental disorder or abnormality": at [20]). According to the Crown in this case, even if the judge had overlooked the low intelligence or emotional disorders of the applicant (and the material before him and the remarks on sentencing indicate otherwise), there was no evidence that he was mentally retarded, developmentally delayed or suffered from a diagnosed psychiatric illness, such that the circumstance in Matthews applies. Conclusion 29 I do not consider that the sentencing judge failed to take into account the relatively low intelligence of the applicant, to the extent it needed to be taken into account, as the quoted part of the remarks on sentencing made clear; see [10] above. Nor indeed is it clear that the relatively low intelligence score necessarily pointed to a "significant" defect in intellectual functioning. I would consider that there was still room for general deterrence to be taken into account, albeit with some allowance, and it appears that was what the sentencing judge correctly did do. Ground 3 – special circumstances 30 The applicant submits that, although a sentencing judge does not have to give reasons for declining to find special circumstances (R v Simpson (2001) 53 NSWLR 704 at [86]), where there do exist matters which might amount to special circumstances it behoves a judge to say something as to why those matters do not justify a departure from the statutory ratio. In this case, the applicant points to evidence before the judge of the strict protection to which he was subject; a fact which it has been held can constitute special circumstances: R v Wahabzadah [2001] NSWCCA 253. The applicant's complaint is that does not appear from the reasons given whether the sentencing judge actually turned his mind to whether the harsher custodial conditions faced by the applicant were special circumstances. 31 The Crown relies upon the paramount discretion a sentencing judge has in determining whether a particular circumstance capable of constituting "special circumstances" should be found to do so in each particular case. It submits that a judge is not obliged to find that serving a sentence in protective custody amounts to special circumstances because, for example, time in protection does not necessarily result in prison life being more difficult or prevent programs being undertaken while in gaol. In any event, according to the Crown, despite the sentencing judge's speculation there was no evidence as to whether Mr Castles would in fact remain in protective custody as the evidence was only directed to current status. The Crown argues that here the judge clearly did not consider that an extended period of supervision justified varying the ratio between the non-parole and parole periods in this case. The Crown says there are good reasons for affirming the trial judge's exercise of his discretion, since the applicant had made no commitment to undertake intensive rehabilitation from drugs on his release and as a repeat offender it could not be predicted with any confidence that he would be less likely to re-offend if given a longer parole period. Conclusion 32 Error having been shown in ground 1, this Court, in exercising the sentencing discretion afresh, necessarily should consider special circumstances for itself. 33 That the applicant will likely remain in protective custody is a matter which is relevant to special circumstances, though primarily to be recognised in the head sentence. Moreover, although the undisputed evidence before the sentencing judge was that by reason of his custodial circumstances he had had no access to counselling or courses, before this Court are two affidavits bringing a more up-to-date picture than before the sentencing judge. The applicant first describes the difficulties of strict protection. At para 5 he says: "5. Also it's harder to get education here. We struggle to get it once a week. Mostly I have to do it in my cell." 34 Then at paras 8 and following he indicates the courses he has nonetheless been able to achieve, the family support he receives, and his plans for the future. That evidence is confirmed by his Legal Aid solicitor Mr Healy, insofar as it attaches various certificates from attending courses such as drug and alcohol counselling, numeracy, painting and religious instruction, 23 in all. He attests to being sorry and to planning "to get a job as a mechanic or to do a TAFE course and go back and finish my Year 10 certificate" and "to be there for my girlfriend and daughter". 35 I consider that special circumstances have been made out, by reason of the protective custody to which he has been subject as well as the rehabilitation he has so far achieved under those difficult conditions. Ground 4 – manifestly excessive sentence 36 Finally, the applicant submits that the sentence is manifestly excessive and a lesser sentence is warranted in law because of the errors alleged in Grounds 1 to 3, and because insufficient weight was given to the subjective circumstances of the applicant, in particular: (1) his background of domestic violence and child abuse, (2) the fact that he had suffered at least two sexual assaults (and because of reporting one of these when he was in protective custody), (3) the fact that he had entered a loving supportive relationship and (4) his motivation to clean himself up from drugs (and the limited but nonetheless significant headway he had made in this regard prior to his arrest). Additionally, the applicant notes that both the principal offence and the Form 1 offences could have been dealt with at a Local Court summarily had the Crown not elected to deal with them on indictment, a fact which the Court has repeatedly held to be relevant to the exercise of discretion by the sentencing judge: see R v Crombie [1999] NSWCCA 297 at [15]. 37 The Crown argues that no lesser sentence is warranted in law as the sentence imposed is in conformity with the guideline judgment in Ponfield, in line with statistics kept by the Judicial Commission and in line with comparable decided cases for other equally serious offences of break enter and steal (R v Shaw [2001] NSWCCA 44; R v Radic (2001) 122 A Crim R 70; R v Tayfun, [2001] NSWCCA 417; R v Proud [2002] NSWCCA 219 and R v Kay [2004] NSWCCA 130. So far as Ponfield was concerned, the sentencing judge found (ROS 6) that two (of the eleven) factors applied to the applicant, namely (iii) prior record, particularly for like offences, and (viii) the value of the stolen property to the victim, whether that value is measured in terms of money or, as here, sentimental value. Arguably (iv) also applied, in that it was the home of a 66 year old woman whose house was broken into. The Crown submits that the supposedly strong subjective case claimed above should be qualified because the motivation to stop using drugs should be viewed with circumspection and the judge made no error in finding no genuine contrition. Additionally, the Crown stated its view that the fact the offence may have been committed while taking large quantities of Serapax as a result of breaking up with a girlfriend cannot be regarded a mitigating factor but was indeed arguably a matter or aggravation. In response to the applicant's reliance upon Crombie, the Crown submits that this matter was properly dealt with by the District Court given the applicant's criminal history of like offences; indeed the applicant's legal representatives never suggested otherwise. OVERALL CONCLUSION 38 I consider that the sentence of 3 years 6 months chosen by the sentencing judge as a starting point was appropriate. However, it should have been reduced not by 14% but by the usual 25% for the early plea. That produces a head sentence of 2 years 8 months rather than 3 years. I would, having found special circumstances, still impose a substantial non-parole period of 1 year 8 months, given the objective seriousness of the offence and the need for both specific and general deterrence. ORDERS 39 I propose orders as follows: (1) Grant leave to appeal; (2) Allow the appeal and quash the sentence imposed in the District Court. In lieu thereof specify a non-parole period of one year and eight months to commence on 12 November 2003. The balance of the term of the sentence is twelve months. Direct the applicant's release on parole at the expiration of the non-parole period on 11 July 2005. 40 BELL JA: I agree with Santow JA. 41 HOWIE JA: I agree with Santow JA. ********** 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.