New South Wales Court of Criminal Appeal CITATION: Regina v George KATZ [2005] NSWCCA 128 HEARING DATE(S): 29 March 2005 JUDGMENT DATE: 29 March 2005 JUDGMENT OF: Giles JA at 1; Hoeben J at 30; Johnson J at 31 DECISION: Appeal dismissed. CATCHWORDS: Sentencing - whether inadequate reduction for pleas of guilty because mental illness impeded earlier pleas - not shown mental illness did so - whether inadequate variation in statutory ratio following finding special circumstances - no necessary extent of variation - variation open to the judge - whether error in partial accumulation of sentences - no error shown. ND R v Carter [2001] NSWCCA 245 R v Dib [2003] NSWCCA 117; CASES CITED: R v Sutton [2004] NSWCCA 225; R v Thomson and Houlton (2000) 49 NSWLR 383. PARTIES: Regina v George KATZ (aka Katsaitis) FILE NUMBER(S): CCA 2004/3318 G Rowling - Crown COUNSEL: J Manuell & E Ozen -Applicant S Kavanagh - Solicitor for Public Prosecutions SOLICITORS: S E O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 03/21/0386. DC 03/21/0387 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE COURT OF CRIMINAL APPEAL CCA 2004/3318 DC 03/21/0386 DC 03/21/0387 GILES JA HOEBEN J JOHNSON J Tuesday 29 March 2005 REGINA v George KATZ Judgment 1 GILES JA: The applicant pleaded guilty to four offences committed in August 1999, and was sentenced to an effective total term of imprisonment of five years with a non-parole period of two years nine months. He applied for leave to appeal on grounds which were refined in the submissions of his counsel to the three grounds: (1) that the discount of 15 percent allowed by the judge in relation to the pleas of guilty was inadequate; (2) that the judge erred in that, although finding special circumstances, he gave but a token variation of the statutory ratio of 75 percent down to 70 percent; and (3) that the judge erred in partially accumulating the sentences for the offences. 2 As will be seen, there was a degree of relationship between all three of these grounds. 3 The applicant's offences were described in detail in the judge's remarks on sentence, and for present purposes a summary is sufficient. 4 In June 1999 some blank cheques were stolen. Their serial numbers were known. 5 On 9 August 1999 the applicant booked into a room in some residential apartments under a false name. 6 On 12 August 1999 the applicant went to a clothing supplier and, using the false name, ordered a large quantity of clothing. He paid with one of the stolen bank cheques made out for $37,500. The applicant used his computer skills to complete the cheque in that manner. Most of the clothing was loaded and taken away. 7 The next day the applicant altered the order resulting in some more money being payable, but when the cheque was banked on 13 August 1999 it was recognised as one of the stolen cheques and was not met. Before the rest of the clothing was delivered the applicant was alerted in conversations with the clothing supplier, and he decamped. 8 On 14 August 1999 the applicant went to an electrical goods supplier and, using his own name, ordered a large quantity of electrical goods. He paid with another of the stolen bank cheques made out for $19,400. On 15 August 1999 he ordered further electrical goods from the supplier, for which he paid on 16 August 1999 with another of the bank cheques made out for $40,778. In this case, the electrical goods were loaded and taken away. The cheques were not met. 9 Returning to the residential apartments, the occupant had not been seen for some time and the rent was in arrears. On 17 August 1999 the proprietors entered the room and found that the applicant had left and that the television and video recorder were missing. 10 From these events came the offences to which the applicant pleaded guilty, being: (a) on 12 August 1999, obtaining a valuable thing by deception, by using the stolen bank cheque for $37,500 to obtain clothing; (b) between 12 and 17 August 1999, stealing the television and video recorder; (c) on 14 August 1999, using a false instrument, by using the bank cheque for $19,400 to obtain electrical goods; and (d) on 16 August 1999, using a false instrument, by using the bank cheque for $40,778 to obtain electrical goods. 11 The judge's sentencing was under the regime of first setting the term of the sentence and then setting a non-parole period. The sentences for the respective offences were: (a) two years from 19 September 2003, without a non-parole period because of the later sentences; (b) two years three months from 19 March 2004, again without a non-parole period for the same reason; (c) and (d) concurrent four years three months from 19 June 2004 with non-parole periods of two years nine months. 12 Thus in partially accumulating the sentences the judge commenced sentence (b) six months after the commencement of sentence (a), and commenced sentences (c) and (d) a further three months thereafter but made sentences (c) and (d) wholly concurrent. 13 In his remarks on sentence the judge ended up allowing a discount for the applicant's pleas of guilty "of something in the order of 15 percent". How he came to that requires reference to a number of passages in his remarks on sentence. 14 First, at an early point in the reasons the judge noted that the applicant pleaded guilty in respect of the charges on 4 December 2003 after he had been arraigned for trial, and said: "He had indicated certain matters in relation to this on 22 October 2003 and the pleas, apparently, have come about after a discussion on the question with the Crown. Although I have taken into account these pleas for their utilitarian value, the pleas were not early pleas and, therefore, the discount available for those pleas to the offender taking into account the timing of the plea, the utilitarian value and the extent of any remorse and contrition evidenced by them, is somewhat less than might otherwise be the position". 15 Secondly, and it is material because of the submissions put to us, the judge recounted at some length the course of the matter after the applicant was committed for trial. The date on which he was committed for trial is not known, but must have been prior to October 2001. There were thereafter a number of appearances and what might be referred to as false starts, including that the applicant did not appear to answer his bail in April 2002 but attended a police station in September 2003 to, effectively, give himself up. In his appearance before Tupman DCJ shortly after he did so her Honour commented that he presented as obviously mentally unwell, and said that he had been detained at Westmead Hospital and recommended that he be given appropriate psychiatric treatment. After a number of further mentions, there came the pleas on 4 December 2003. 16 Thirdly, the judge said that he accepted that the applicant had shown remorse by the pleas of guilty, and he said also that the fact that the applicant went to the police station, in context, meaning in September 2003, was also a matter to be taken into account "on the question of mitigation". 17 Finally, His Honour directed himself correctly in accordance with R v Thomson and Houlton (2000) 49 NSWLR 383 and said: "Having regard to the history of the events which I have outlined ... I consider it is reasonable to approach the sentence in this matter by giving a discount for the plea of something in the order of 15 percent". 18 The submission put to us was that the applicant's history of mental illness provided an explanation for the lateness of the pleas, and accordingly, that something more than the 15 percent should have been allowed. 19 There are, it seems to me, two particular difficulties with that submission. 20 The first problem is that it was for the applicant to provide to the judge a proper basis for concluding that his mental illness impeded the entering of pleas of guilty to the charges at a time earlier than 4 December 2003. It was frankly and correctly acknowledged that the matter had not been presented to the judge in that manner. Although the submission was put to us, I do not think that an appropriate basis was provided. 21 Undoubtedly there were grounds for concluding that the applicant was mentally unwell for a period in September 2003. The psychiatric report of Prof David Greenberg, which was before the judge, referred to a number of psychiatric admissions to Cumberland Hospital dating from 1986, and I accept the applicant's submission that it appears that most of them were after 1999 or 2000. The report also refers to an admission in April 2003 and a further admission in June 2003. But what this does not disclose is any impediment to pleas of guilty at the much earlier time of committal or the period immediately thereafter, and the difficulty is not removed by failure to equip the judge to appreciate any changes which might have occurred in the charges brought against the applicant over this period. In short, I do not think that there was before the judge material on which it could properly have been concluded, if his Honour had been asked to do so, that the late pleas were delayed by the applicant's psychiatric difficulties. 22 The second problem is that, at least so far as the pleas of guilty had effect for their utilitarian value, the utilitarian value came from the occasion when the pleas were entered, whatever the preceding history and the reason for the lateness. This was referred to by Hodgson JA in R v Dib [2003] NSWCCA 117 at [4] to [6] - "4 However, the utilitarian discount is a recognition of advantages to the administration of justice that actually flow from a plea of guilty. By reason of statutory provisions applying in New South Wales, in this State it is not given merely on the basis that the offender's culpability is mitigated by demonstration of willingness to facilitate the course of justice: R v. Sharma (2002) 54 NSWLR 300, distinguishing Cameron v. The Queen (2002) 76 ALJR 382. 5 If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount. 6 This approach may mean that in some cases an offender may obtain a lower discount just because the prosecuting authorities initially brought a greater charge than that ultimately pursued, so that the delay in the plea of guilty was not the offender's fault. But this is consistent with the nature of the discount as being at least in part a recognition of practical advantages, and not merely a recognition of mitigation of culpability." 23 In the present case, the judge did consider that there was an element of remorse discernible from the pleas and from the earlier attendance at the police station. He took into account that there was utilitarian value in the pleas, although as he said, because of their lateness, "somewhat less than might otherwise be the position". He did not fail to take into account the applicant's mental illness, and indeed spent some time in his remarks on sentence in reference to it. It must be asked whether, having regard to all these matters, the discount of 15 percent was not open to his Honour. In my opinion, it has not been shown that he erred in coming to that percentage. 24 Going to the second ground of appeal, the judge found that there were special circumstances in that: (a) the applicant's previous custodial history meant that when he was released from custody on this occasion he would require "significant assistance to be rehabilitated back into the community"; (b) given the applicant's history of drug addiction he would require assistance to overcome the desire to go back onto drugs if appropriate stressors in his life were to arise; (c) accumulation of sentences could be a special circumstance; and (d) the applicant's "medical profile" required that he have access to medical treatment which would be better given under supervision after the applicant left the prison system. 25 The applicant submitted that, having found the special circumstances, the judge should have done more than he did by sentences which effectively resulted in a ratio of 70 percent in place of the statutory 75 percent. There was urged upon us the observations of Howie J in R v Sutton [2004] NSWCCA 225 at [30]. In that case the offender pleaded guilty to a charge of aggravated dangerous driving occasioning death. Special circumstances were found. Although the Court considered that there had been sentencing error it declined to intervene in the sentence, but when it came to the ratio between head sentence and non-parole period Howie J, with whom Studdert J and Dunford J agreed, said: "30 His Honour found special circumstances and reduced the ratio between head sentence and non-parole period from the statutory ratio of 75 per cent to about 70 per cent. This meant a reduction in the non-parole period by about three months after the applicant had served four years six months in gaol. With respect, this rather makes a mockery of a finding of special circumstances in response to the need his Honour found for "extended supervision and counselling". I believe that the non-parole period should be four years." 26 I do not think that these observations should be taken to mean that there cannot be a reduction from 75 percent to 70 percent. Finding special circumstances opens the door to a reduction. It says nothing about the extent of the reduction. The real question is the time for extended supervision and counselling and the other matters underlying the special circumstances considered appropriate by the sentencing judge. In the present case, the difference in the varied ratio was something like three months. It was necessary for the applicant to demonstrate that the time thought appropriate by the judge was outside that which was open to him, and I do not think that is done by pointing to what was said by Howie J. In my opinion, the ratio at which the judge arrived was open to him. 27 The third ground of appeal, then, was the question of accumulation. The applicant submitted that the offences were committed over a short period, that they were impelled by the same motivation ascribed to them by the applicant, and that the applicant followed the same modus operandi. In those circumstances, it was submitted, the offences should have been regarded as part of the same course of conduct, and reliance was placed on the observation of Howie J in R v Carter [2001] NSWCCA 245 at [21] - "21 Further, the two offences, although different acts of criminality, were part of the same course of conduct in that they were similar offences, occurred within a period of about two weeks and were a result of the same set of circumstances, being the applicant's drug addiction. It was not as if the applicant had been arrested for one offence and then committed the other while on bail. There was, in my view, nothing to warrant the accumulation of the punishment for each offence. This was a simple case in which the overall criminality could easily be accommodated in the penalty appropriate for the second offence, taking into account that it was committed while on parole, it had other aggravating features and was not an isolated act of criminality." 28 Plainly enough stealing the television and video recorder was somewhat different from the other offences, although it was committed within the same time frame. However, in any event I do not think it right to regard the offences as all on a par so that accumulation was barred. Apart from the difference between the stealing offence and the other offences involving stolen bank cheques, the applicant's first venture in using a stolen bank cheque had come awry, he had the opportunity to think twice, he did not but went ahead. 29 Whether or not this be right, the ultimate question is that of totality, striking an overall sentence by a process of accumulation, if thought fit, appropriate to the overall criminality. In this case, the judge regarded the overall criminality as high, and correctly so. He considered that the circumstances warranted the fairly slight degree of accumulation earlier described. In my opinion, again, this was entirely open to His Honour. 30 In my opinion, none of the errors urged upon us has been made out. Although I would grant leave to appeal, I propose that the appeal be dismissed. 31 HOEBEN J: I agree with Justice Giles. 32 JOHNSON J: And I also agree. 33 GILES JA: Those will be the orders of the Court. ********** 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.