Reported Decision : 162 A Crim R 166 New South Wales Court of Criminal Appeal CITATION: McCabe v Regina [2006] NSWCCA 160 HEARING DATE(S): 6 February 2006 JUDGMENT DATE: 22 May 2006 JUDGMENT OF: Beazley JA at 1 DECISION: 1. The appeal is allowed; 2. The sentences imposed on the appellant on 8 March 2005 are confirmed. CATCHWORDS: CRIMINAL LAW – sentencing – sentences imposed by Drug Court following termination of Drug Court programme – appeal against severity – sentencing – aggravating factors – whether multiple offences of break, enter and steal in one block of units constituted a series of criminal acts with multiple victims – single criminal act and single victim for each offence – not an aggravating factor - SENTENCING – prior like offences – no error - SENTENCING – prior convictions – prior convictions are not an aggravating factor - SENTENCING – re-sentencing – Court may confirm sentence imposed by the trial judge notwithstanding a finding that the trial judge erred – lenient sentences imposed by trial judge – sentences confirmed Crimes (Sentencing Procedure) Act 1999 (NSW), ss.3A, 4, 8A, 21A, 33 LEGISLATION CITED: Crimes Act 1900 (NSW), s.112(1) Criminal Appeal Act 1912 (NSW), ss.5AA, 5AF Drug Court Act 1988 (NSW), ss.5, 6, 7, 12, 24 Pearce v The Queen (1998) 194 CLR 610 R v Astill (1992) 64 A Crim R 148 R v Blair [2005] NSWCCA 78 R v Cocking [1999] NSWCCA 311 CASES CITED: R v Crombie [1999] NSWCA 297 R v McQueeney [2005] NSWCCA 168 R v Ponfield (1999) 48 NSWLR 327 R v Rice (2004) 150 A Crim R 37 R v Tadrosse [2005] NSWCCA 145 Ryan v The Queen (2001) 206 CLR 267 PARTIES: Shane Anthony McCabe (Appellant) Crown (Respondent) FILE NUMBER(S): CCA 2005/1851 COUNSEL: Mr H Dhanji (Appellant) Mr G Rowling (Crown) SOLICITORS: Steve O'Connor (Appellant) S Kavanagh (Crown) LOWER COURT JURISDICTION: Drug Court LOWER COURT FILE NUMBER(S): 2003/0035 LOWER COURT JUDICIAL OFFICER: Senior Judge Dive LOWER COURT DATE OF DECISION: 08/03/2005 - 2 - IN THE COURT OF CRIMINAL APPEAL 2005/1851 CCAP Beazley JA 22 May 2006 McCabe v R Headnote FACTS The appellant had committed a number of indictable and summary offences to which he pleaded guilty and was determined to be eligible to participate in a Drug Court programme. " Initial sentences " for the offences were imposed by the Drug Court but were suspended so that the appellant could participate in the programme pursuant to the Drug Court Act 1988 (NSW) (the Drug Court Act ). The programme was terminated on 31 August 2004 due to the appellant's non-compliance with its conditions. The appellant came before the Drug Court again for reconsideration of the " initial sentences " and the imposition of " final sentences ": s.12 Drug Court Act . The appellant also came before the Drug Court for sentencing in respect of further offences that he had committed both during the programme and following its termination. The appellant appealed against the severity of the final sentences pursuant to s.5AF of the Criminal Appeal Act 1912 (NSW). He has separately appealed against the sentences imposed in respect of the further offences. The s.5AF appeal is on the grounds that: 1. The trial judge erred in taking into account as an aggravating factor that certain of the 'break, enter and steal' offences committed in a particular block of units involved a series of criminal acts and that "there [were] multiple victims across this range of offending" . 2. The trial judge erred in his treatment of the appellant's record in that he: (a) had regard to the appellant's record of " prior like offences " when the appellant's prior offences were of a dissimilar and less serious nature; and (b) took into account the appellant's prior convictions as an aggravating factor. HELD per Beazley JA: (i) The 'break, enter and steal' offences committed at a block of units did not involve " multiple victims " within the meaning of s.21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as required to count as an aggravating factor. The multiplicity of victims and criminal acts was a feature of the multiplicity of offences, which is not an aggravating factor: R v Tadrosse [2005] NSWCCA 145 (followed) (ii) The trial judge was entitled to take account of the appellant's prior criminal record, particularly prior like offences, as a factor enhancing the seriousness of the offending. The appellant had no convictions for 'break, enter and steal' offences prior to the offences dealt with in accordance with the Drug Court Act . However the trial judge's reference to " prior like offences " as a factor increasing the seriousness of the offending was an accurate description if it was used in reference to those offences not subject to sentencing under the Drug Court Act . From the context that appears to have been the intended reference: R v Ponfield (1999) 48 NSWLR 327 (followed) (iii) The list of potential aggravating factors in the Crimes (Sentencing Procedure) Act 1999 (NSW) are subject to the rule of law: see s.21A(4). Prior convictions are not prima facie an aggravating factor unless other circumstances are satisfied. The prior convictions in this case did not heighten the significance of retribution, deterrence and the protection of society and therefore should not have been taken into account as an aggravating factor: Ryan v The Queen (2001) 206 CLR 267; R v McQueeney [2005] NSWCCA 168; R v Blair [2005] NSWCCA 78 (followed) (iv) It is open to the Court to confirm the sentence imposed notwithstanding that it has been established that the trial judge erred if the Court considers that the sentence imposed was not, in any event, excessive: R v Astill (1992) 64 A Crim R 148; R v Cocking [1999] NSWCCA 311 (applied); Pearce v The Queen ( 1998) 194 CLR 610 (discussed) ********** IN THE COURT OF CRIMINAL APPEAL 2005/1851 CCAP BEAZLEY JA 22 May 2006 McCABE v R Judgment 1 BEAZLEY JA: The appellant appeals against the severity of sentences imposed on him by the Drug Court of New South Wales (the Drug Court) on 8 March 2005 pursuant to s.12 of the Drug Court Act 1988 (NSW) (the Drug Court Act). The appeal is brought pursuant to s.5AF of the Criminal Appeal Act 1912 (NSW). The power of the Criminal Court of Appeal to hear and determine an appeal under that section is exercised by a single judge of the Court: s.5AF(3). Background 2 On 2 July 2003 the appellant was sentenced by Judge Milson in the Drug Court, exercising the jurisdiction of a District Court, for the indictable offence of 'break, enter and steal' contrary to the provisions of s.112(1) of the Crimes Act 1900 (NSW). The offence of 'break, enter and steal' carries a maximum penalty of 14 years imprisonment. At the same time, the appellant was sentenced by Judge Milson, exercising the jurisdiction of a Local Court, in relation to the following summary offences: 'resist police'; 'escape police'; 'drive whilst disqualified'; 'break, enter and steal' and 'malicious damage'. 3 The appellant had satisfied the requirements of s.5 of the Drug Court Act, including pleading guilty to the offences and was thus an 'eligible person' for the purposes of the Act. He had been referred to the Drug Court under s.6 of the Act and, pursuant to s.7, had been accepted into participation in a rehabilitation programme under the Act. When an eligible person is accepted into a programme, the person is then sentenced in accordance with the provisions of s.7. That section provides that the Drug Court deals with a person in relation to an offence by convicting the person and sentencing the person in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes (Sentencing Procedure) Act): see s.7(2A). A sentence imposed under sub-s.2A is referred to as the "initial sentence": see definition provision in s.4. Section 7(3) then provides that the Drug Court must make an order suspending the execution of the sentence for the duration of the person's programme. An order made under this provision is called the person's "suspension order". 4 Judge Milson sentenced the appellant, by way of initial sentence, to a term of imprisonment of one year three weeks in respect of the indictable offence of 'break, enter and steal'. His Honour took into account a period of pre-sentence custody of five months one week. His Honour sentenced the appellant to the same or shorter concurrent terms of imprisonment in respect of the remaining summary sentences. Those sentences were respectively: 'resist police' - seven days; 'escape police' - two months; 'drive whilst disqualified' - two months; 'break, enter and steal' - one year three weeks; 'malicious damage' - six months. 5 While the appellant was undertaking the programme, a number of further offences that he had committed prior to entering into the programme came to light. These offences were committed over a four-day period between 21 January and 24 January 2003 and comprised a series of seven 'break, enter and steal' offences committed in separate units in an uncompleted residential unit development. Each of the seven offences were charged on indictment and a further seven offences were listed on a Form 1 pursuant to s.33 of the Crimes (Sentencing Procedure) Act. 6 The appellant was sentenced in respect of these offences in the Drug Court by Judge Orchiston on 19 April 2004. Judge Orchiston imposed a sentence of four years imprisonment in respect of the break, enter and steal charge in respect of which the Form 1 offences were considered (the principal offence). The sentence was reduced to take account of the period of pre-sentence custody that the appellant had served. A term of imprisonment of 30 months was imposed in respect of each of the other six offences, to be served concurrently with the principal offence. All sentences were to be served concurrently with the initial sentences imposed by Judge Milson. The sentences, which were also initial sentences pursuant to s.7(2A) were then suspended pursuant to s.7(3) of the Drug Court Act. 7 On 31 August 2004, the appellant's Drug Court programme was terminated due to his non-compliance with its conditions. The appellant was arrested on 6 November 2003 and remained in custody until he came before the Drug Court again on 8 March 2005 for sentencing pursuant to the provisions of s.12 of the Drug Court Act. 8 Section 12 provides, relevantly: "Imposition of final sentence (1) On terminating a drug offender's program, the Drug Court must reconsider the drug offenders initial sentence. (2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration: (a) … (b) … (c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment: (i) under the sentence, … (3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence: (a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or (b) by making an order confirming the initial sentence (4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence." 9 On 8 March 2005 the appellant came before Senior Judge Dive in the Drug Court. Pursuant to the provisions of s.12(3)(a), the Court was required to set aside the initial sentences imposed on 2 July 2003 and 19 April 2004 and to determine the appellant's final sentences in respect of those offences. For the purpose of understanding the sentences which were imposed and their relativity with the initial sentences, it is convenient to reproduce a table helpfully provided by counsel for the appellant setting out the offences, the initial sentence and final sentence (Tables 1 and 2). The column headed "S/I" indicates whether the offences were dealt with on indictment or summarily. Table 1 Offences first dealt with on 2 July 2003 Offence Offence date S/I Initial (s7) Final (s12/s24) 2/7/03 8/3/05 1 Break, enter and steal 25/1/03 I 1 yr 3 weeks 9 months tdf 22/9/04 2 Resist police 6/10/02 S 7 days Rising of the Court 3 Escape police 2/2/00 S 2 months 1 month tdf 22/9/04 4 Drive whilst cancelled 2/2/00 S 2 months 1 month tdf 22/9/04 5 Break, enter and steal 21/1/03 S 1 yr 3 weeks 9 months tdf 22/9/04 6 Malicious damage 17/1/03 S 6 months 9 months tdf 22/9/04 Table 2 Offences first dealt with on 19 April 2004 Offence Offence date S/I Initial (s7) Final (s12/s24) 2/7/03 8/3/05 7 Break, enter and steal 21/1/03 I 30 months 15 months tdf 22/9/04 8 Break, enter and steal [plus 7 offences on Form 1] 21/1/03 I 4 years 2 yrs 6 months NPP tdf 22/9/04; 3 yrs 4 months total term 9 Break, enter and steal 21/1/03 I 30 months 15 months tdf 22/9/04 10 Break, enter and steal 21/1/03 I 30 months 15 months tdf 22/9/04 11 Break, enter and steal 21/1/03 I 30 months 15 months tdf 22/9/04 12 Break, enter and steal 21/1/03 I 30 months 15 months tdf 22/9/04 13 Break, enter and steal (Newtown) 24/1/03 I 30 months 15 months tdf 22/9/04 10 In addition, the appellant was before the Court in respect of a further five indictable offences of 'break, enter and steal', four of which had been committed whilst he was on the programme and one which had been committed after its termination, together with two summary offences of 'state false name' and 'resist police'. The appellant also requested the Court to take into account seven further offences by way of a Form 1, when sentencing in respect of the first of the individual 'break, enter and steal' offences. The sentences imposed in respect of these offences are set out below in Table 3. Table 3 Offences first dealt with on 8 March 2005 Offence Offence date S/I Initial (s7) Final (s12/s24) 2/7/03 8/3/05 14 Break, enter and steal [plus Form 1 containing 7 counts of disposing of property] 30/12/03 I - 2 yrs 6 months NPP tdf 22/3/06; 4 years total term 15 Break and enter with intent to steal 30/12/03 I - 2 yrs 6 months NPP tdf 22/3/06; 4 years total term 16 Aggravated break, enter and steal 13/01/03 I - 2 yrs 6 months NPP tdf 22/3/06; 4 years total term 17 Break, enter and steal 6/4/04 I - 2 yrs 6 months NPP tdf 22/3/06; 4 years total term 18 Break, enter and steal 27/9/04 I - 2 yrs 6 months NPP tdf 22/3/07; 4 years total term 19 State false name 5/11/04 S - Fine $100 20 Resist police 5/11/04 S - 2 months fixed tdf 22/3/06 11 The combined effect of the sentences imposed by Senior Judge Dive by way of final sentence together with the further sentences referred to in Table 3 was that a total effective sentence of six and a half years with a non-parole period of five years from 22 September 2004 was imposed. Having regard to the fact that a period of pre-sentence custody of five months one week was taken into account, the real sentence imposed upon the appellant was three weeks short of seven years with a non-parole period of five and a half years. 12 The appellant appeals against the final sentences imposed in respect of the Drug Court matters (offences 1-13 in Tables 1 and 2 respectively). The appellant has separately appealed against the sentences imposed in respect of the further offences set out in Table 3. It was acknowledged by both the Crown and counsel for the appellant that that appeal must be determined subsequent to the determination of this appeal. 13 The final sentences imposed in respect of offences 1-13 in Tables 1 and 2 total three years four months with a non-parole period of two and a half years. In imposing the sentences, Senior Judge Dive allowed for a 25 per cent discount for the appellant's pleas of guilty. Accordingly, his Honour commenced with a starting point of four years five months with a non-parole period of three years four months. 14 In determining the sentences that ought to be imposed, Senior Judge Dive had regard to the purposes of sentencing: see s.3A of the Crimes (Sentencing Procedure) Act; the aggravating and mitigating circumstances specified in s.21A of that Act; and the objective and subjective factors that affected the relative seriousness of the offences. His Honour found the following were aggravating factors: the offender's record of previous convictions; the damage done, especially to the block of home units; the fact that those offences were committed when the defendant was on conditional liberty on the Drug Court programme; that in relation to the block of units, a series of criminal acts were committed; and that there were multiple victims across this range of offences. His Honour referred to the matters that had been taken into account by the sentencing judge when imposing the initial sentences. In relation to the first set of offences (see Table 1), he noted the pleas of guilty, the appellant's criminal record (which revealed few offences of a like nature) and the aggravating circumstance in relation to offence number 1, namely, that it was committed only days after offence number 5 - another 'break, enter and steal' offence that was dealt with summarily. His Honour noted that Judge Milson, when sentencing in respect of the first group of offences (offences 1-6 in Table 1), had not taken into account any mitigating circumstances, leaving those for consideration at final sentence, should that come about. His Honour observed that Judge Milson had taken his approach prior to the decision of this Court in R v Rice (2004) 150 A Crim R 37; [2004] NSWCCA 384, where Smart AJ, at [103], stated that the subjective features of the offender were required to be taken into account at the stage of initial sentence. 15 His Honour then referred to the second group of offences (offences 7-13 in Table 2) in respect of which the appellant was sentenced by Judge Orchiston on 19 April 2004. His Honour recorded that most of those offences had involved breaking into a block of home units that were under construction and close to completion and that the appellant had stolen a large number of white goods from 12 different units in the complex. His Honour noted that a wedding ring had also been stolen and that had been treated by Judge Orchiston as an aggravating circumstance. He noted the further aggravating circumstances that had been taken into account by Judge Orchiston, namely the fact that these were multiple offences of 'break, enter and steal' committed at the same time, the appellant's record for dishonesty, the high degree of planning involved in relation to these offences, together with the significant amount of damage done to the units. His Honour further observed that Judge Orchiston had correctly taken into account, in the appellant's favour, the fact that the offences could have been dealt with summarily: see R v Crombie [1999] NSWCA 297. 16 Senior Judge Dive also took into account the appellant's participation in the programme, the 31 days he had served on the programme and the 13 days he had been in custody under s.8A of the Drug Court Act. His Honour had regard to the time the appellant was on the programme (a period of 14 months), although he noted that he had not progressed beyond Phase 1. His Honour also noted that the appellant apparently had little time during that period when he was free of drug use. 17 His Honour then turned to the additional offences that were before the Court (offences numbered 14-20 in Table 3). As has already been indicated, this appeal is not concerned with those matters. Accordingly, his Honour's consideration of those offences needs to be put to one side for the purposes of this appeal. 18 Although his Honour had made reference to imposing "final sentences", which would seem to be a reference to re-sentencing under s.12 of the Drug Court Act, it is arguable that his Honour was referring to the non-Drug Court matters as well as the Drug Court matters. It will be important in due course to determine precisely what his Honour was doing at this point in his sentencing remarks because the appellant claims that his Honour erred in taking into account matters relating to the non-Drug Court offences as aggravating features. I will deal with this in considering each of the grounds of appeal. 19 His Honour then had regard to the objective and subjective considerations, including the appellant's long history of drug and alcohol abuse and a diagnosis of major depression. His Honour made reference to further personal circumstances and to the decision of the Court in R v Crombie to which I have already referred. He noted however, that the Crown had undoubtedly elected to proceed by way of indictment because of both the nature and repetition of the offences. His Honour then imposed the sentences that are set out in the Tables. The appeal 20 The appellant appeals against the final sentences imposed by Senior Judge Dive in respect of the offences referred to in Tables 1 and 2 on two essential bases: the first relates to the manner in which his Honour had regard to certain aggravating circumstances; the second relates to the manner in which his Honour dealt with the prior record of offences. Ground 1: whether the trial judge correctly had regard to the aggravating factors referred to in s.2A(2)(m) 21 The appellant contends that his Honour erred in taking into account as an aggravating factor pursuant to s.21A(2)(m) of the Crimes (Sentencing Procedure) Act, that the offences of 21 January 2003 (offences 7-12 in Table 2) involved a series of criminal acts and that "there [were] multiple victims across this range of offending". 22 Section 21A(2)(m) provides: "The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ... (m) the offence involved multiple victims or a series of criminal acts" 23 Section 21A(2)(m) was considered by this Court in R v Tadrosse [2005] NSWCCA 145 where Howie J (Grove and Hall JJ agreeing) said at [29]: "...the aggravating factor in s.21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s.25 of the Drug Misuse and Trafficking Act ." 24 In his Remarks on Sentence, Senior Judge Dive referred to the provisions of s.21A of the Crimes (Sentencing Procedure) Act which specify the aggravating and mitigating factors that the Court is to take into account in determining the appropriate sentence for an offence. His Honour then listed the aggravating factors that he found to be relevant in this case. Included in those factors was a finding by his Honour that "… there was certainly a series of criminal acts involving the same block of units, and there are certainly multiple victims across this range of offending". This finding echoes the words of s.21A(2)(m). 25 It was submitted on behalf of the applicant that the sentencing judge appears to have taken para (m) into account as an aggravating factor in his assessment of the penalties to be imposed with respect to the individual offences. This submission has to be understood in the context of the charges laid in this case. His Honour stated that he had to have regard to para (m) in relation to the offences committed at "the block of units". However, the appellant was charged separately with the offence that related to the block of units. These were multiple offences, but there was not, in relation to each offence, multiple victims. Rather, there was an individual victim in relation to each specific offence. Likewise, each offence involved a 'break, enter and steal' from a particular property. There was a single criminal act in relation to each offence, and a single victim. The multiplicity of victims and criminal acts were a feature of the multiplicity of offences. 26 It follows that the trial judge erred in his application of s.21A(2)(m). Before determining whether this error will result in this Court re-sentencing the appellant it is appropriate to consider the second ground of appeal. Ground 2: treatment of the appellant's prior criminal record 27 The appellant contended that the sentencing judge erred in his treatment of the appellant's record in that he: (a) had regard to the appellant's record of prior like offences; and (b) took into account the appellant's prior convictions as an aggravating factor. Ground 2(a): the sentencing judge erred in having regard to the appellant's record of prior like offences 28 The appellant contends that his Honour's finding that he had a record of "prior like offences" was simply wrong. It was submitted that although he had an offence for 'larceny' in 1993 (a Children's Court matter) and a further offence of 'larceny and receiving or disposing' dealt with by the Local Court in 2002, these were not "like offences" to the 'break, enter and steal' offences with which he was charged on this occasion. 29 The context in which his Honour made the reference to the "prior like offences" appears from the following passages in the Remarks on Sentence: "When imposing these final sentences today, this Court has regard to the very purposes of sentencing as set out in s3A of the Crimes (Sentencing Procedure) Act 1999, the aggravating and mitigating circumstances set out in s21A of the Crimes (Sentencing Procedure) Act and the objective and subjective factors which affect the relative seriousness of the offences. The aggravating factors are the offender's record of previous convictions, the damage that was done especially to the block of home units, that the latter offences were committed when the defendant was on conditional liberty of a Drug Court programme, that in relation to the block of units, there was certainly a series of criminal acts involving the same block of units, and there are certainly multiple victims across this range of offending. In mitigation, I note that there has been a plea of guilty and Mr McCabe is entitled to the full utilitarian value of that plea which I assess as being twenty five percent. Indeed, for the latter matters, there was no committal, the matters coming straight to the Drug Court and the plea being entered on the indictment being presented. There are factors enhancing seriousness in accordance with R v Ponfield & Ors [1999] NSWCCA 435. Those are the conditional liberty aspect of being on a Drug Court programme, his record of prior like offences, the multiple counts and the matters taken into account on form 1, and the series of repeated entries into the block of units. In relation to the matters dealt with previously by way of initial sentences, I have already noted the summations made by Senior Judge Milson and Judge Orchiston. I note that Judge Milson took into account the time served prior to the first sentence." 30 In this passage, his Honour was dealing at different times with either the Table 1 and 2 offences, or the Table 3 offences, or sometimes with both. The reference to "final sentences" and "initial sentences" is clearly a reference to the Table 1 and 2 offences. The reference to the "latter offences" must be a reference to the Table 3 offences. When dealing with the aggravating and mitigating factors, it is apparent that his Honour was dealing with the entirety of the offences. 31 Likewise, it appears that when dealing with "factors enhancing seriousness" his Honour was again dealing with the entirety of the offences. Thus, the reference to being on conditional liberty whilst on the Drug Court Program can only be a reference to offences 14-18 in Table 3. That is also apparent from a like, but even more specific reference to this matter in the passage relating to "aggravating factors". However, the reference to the "repeated entries into the block of units" appears to be a reference to offences 7 to 12 in Table 2. Although it is possible that his Honour could have been referring to offences 14 and 15, that is not probable. A reference to "repeated entries" does not easily relate to entries into two units, particularly when there was a series of offending that did involve "repeated entries". The reference to "multiple counts and the matters taken into account on form 1" would appear to relate to all of the offences. 32 That leaves the reference to "prior like offences". This reference accurately describes the appellant's offending if it relates to the earlier 'break, enter and steal' offences for which the appellant had been sentenced under the provisions of the Drug Court Act – that is, the Table 1 and 2 offences. Not only is the language accurate when used in that context, his Honour had previously used different language when dealing with the appellant's criminal record. In that regard, when dealing with "aggravating factors" his Honour referred to the appellant's "record of previous convictions". It ought be accepted, therefore, that when his Honour used different language in referring to "prior like offences" he meant precisely what he said. In doing so, he must therefore have been referring to those factors that increased the seriousness of the later offending, that is the Table 3 offences. For that reason, I do not think that the appellant has established that his Honour erred in his reference to "prior like offences". 33 There is, of course, another possibility and that is that by failing to keep distinct those factors that were relevant to the re-sentencing for the purposes of imposing final sentences and those that were relevant to the latter offences, his Honour applied all the factors that he took into account to all of the offences. If he did so, then he would have erred. However, that point was not argued and for the reasons otherwise given in relation to error and my opinion in relation to re-sentencing, such an argument would have no effect on the outcome of the appeal. 34 I should add that there is another response to the appellant's contention on this issue. If Senior Judge Dive, in using the expression "prior like offences" did intend to refer to the appellant's record prior to the matters for which he was before the court, then the appellant's submission is correct in the sense that he had no prior convictions for 'break, enter and steal' offences contrary to the provisions of s.112(1) of the Crimes Act 1900 (NSW). The earlier larceny and receiving offences were property offences involving dishonesty as were the 'break, enter and steal' offences but they were not of the same seriousness as those offences. 35 However, the relevant principle to be applied when considering whether there are factors that enhance the seriousness of an offence was stated in R v Ponfield (1999) 48 NSWLR 327, to which Senior Judge Dive referred on this issue. In that case, Grove J stated at [48]: "A court should regard the seriousness of an offence contrary to s.112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. ... (iii) the offender has a prior record particularly for like offences." (emphasis added) 36 The appellant in fact had a prior criminal history extending over a period of approximately ten years prior to the commission of the 'break, enter and steal' offences which first brought him to be dealt with under the Drug Court Act. However there were only two offences involving dishonesty. Otherwise, there were a series of driving offences, a 'malicious damage' offence, a number of 'resist arrest' and 'resist officer in the execution of duty' offences and an offence of 'sexual intercourse without consent' for which the appellant was sentenced to a period of imprisonment. These are not "prior like offences". However, his Honour was entitled to take his prior criminal record into account in relation to the Table 1 and 2 offences, although given its nature, it ought not to have been treated as significantly enhancing the seriousness of the offending for which he was being sentenced by way of final sentence. Ground 2(b): the sentencing judge erred in taking into account the appellant's prior convictions as an aggravating factor 37 In his Remarks on Sentence the trial judge included as an aggravating factor the appellant's record of previous convictions. His Honour's finding was intended to reflect the specification in s.21A(2)(d) that the Court is to take into account as an aggravating factor the fact that "the offender has a record of previous convictions". 38 It was submitted on behalf of the appellant that his Honour erred in doing so because s.21A(4) specifically provides that the list of aggravating factors is subject to "the rule of law". In R v Blair [2005] NSWCCA 78 Grove J (James and Barr JJ agreeing) at [53] said in relation to s.21A(4): "... it is unfortunate that the legislature has included 'a record of previous convictions' in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to 'rule of law' to do so. 'Rule of law' is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that [a] prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection: Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193." 39 Counsel for the appellant also referred to R v McQueeney [2005] NSWCCA 168 where Latham J (Grove and Howie JJ agreeing) said at [18]: "It is therefore strictly incorrect for a sentencing Judge to refer to an offender's criminal history as an aggravating feature of the offence for the purposes of s.21A of the Crimes (Sentencing Procedure) Act ." 40 In Ryan v The Queen (2001) 206 CLR 267 Gummow J said at [67] that whilst good character might operate in mitigation, the bad character of an offender did not aggravate the offence "because a person is not to be punished or punished again for crimes other than that for which sentencing is passed". 41 The Crown submitted that the appellant's criminal record was such that he had manifested "a continuing attitude of disobedience of the law so that retribution, deterrence and the protection of society indicated that a more severe penalty was warranted". It followed, on the Crown's submission, that the Court was entitled to take the appellant's criminal record into account when imposing sentences for the offences for which he was then before the Court. It was submitted that the appellant's reliance upon the statement by Latham J in R v McQueeney was misguided in the sense that it failed to have regard to her Honour's further comments that the offender's antecedent criminal history in that case "considerably heightened the significance of retribution, deterrence and the protection of society in the formulation of an appropriate penalty" (at [18]). 42 In my opinion, the sentencing judge failed to understand the manner in which an offender's previous criminal history is relevant to the sentencing process. When dealing with this matter his Honour referred first to the purposes of sentencing set out in s.3A of the Crimes (Sentencing Procedure) Act and then to the "aggravating and mitigating circumstances set out in s.21A". His Honour then listed the aggravating factors relating to the offender, including his record of previous convictions. His Honour did not at any stage refer to the provisions of sub-s.4 nor did he have regard to the statements of principle relating to the use to which prior criminal history may be put. It follows, in my opinion, that this ground of appeal has also been made out. Re-sentence 43 As the appellant has established error, it is open to this Court to re-sentence the appellant. The Court will only do so if it considers that the sentence or sentences imposed were excessive. It remains open to the Court to confirm the sentence or sentences imposed notwithstanding that it has been established that the trial judge erred if the Court considers that the sentence imposed was not, in any event, excessive: Criminal Appeal Act 1912 ss.5AA(4), 5AF; see R v Astill (1992) 64 A Crim R 148 at 303-4; R v Cocking [1999] NSWCCA 311 at [22]. 44 There are before the Court 13 offences for which the appellant has been sentenced to a total term of imprisonment of three years four months with a non-parole period of two and a half years. The 13 offences with which this appeal is concerned were serious offences and involved a number of aggravating features to which the Court is required to have regard: see s.24 of the Drug Court Act; s.21A of the Crimes (Sentencing Procedure) Act. Those aggravating features include: one offence of 'break, enter and steal' occurring while the occupant of the premises was asleep in bed; there was a considerable loss of property involved in each offence; each offence was accompanied by damage to the property; each offence was planned. 45 The appellant's prior criminal history does indicate that personal deterrence and the protection of society is a relevant consideration in the sentences that ought to have been imposed. Although the offences with which the Court is concerned occurred over a relatively short period of time (except for offences 3 and 4 in the Tables above) it demonstrates a period of what can only be called intense criminal activity. Further, the appellant's criminal activity was not isolated to a particular area or a particular physical location. There was a considerable degree of planning involved at least in relation to the offences that were committed at the home unit block at Caringbah. In that case, the appellant had transported the goods in a large truck which was parked in an underground carpark. 46 The sentencing judge imposed concurrent sentences in respect of the 13 offences. In doing so, he did not give any express consideration to the question whether the sentences imposed ought to be served concurrently or whether there should be some accumulation of the sentences in part or in whole. In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ said at 624: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality." 47 Their Honours further pointed out in Pearce that error might also be revealed in making sentences concurrent "… in that to do so [there may be a failure] to take account of the differences in the conduct which were the subject of punishment on each count". 48 The Crown submits, correctly in my opinion, that Senior Judge Dive failed to apply the principles in Pearce and in this sense fell into error. The point of the submission, however, there being no Crown appeal, was that the sentences imposed overall, even having regard to the principle totality, indicated that, if anything, the sentences imposed were inadequate. 49 In my opinion, the sentences imposed by his Honour were, at least, extremely lenient. They may well have been inadequate. This is so, even though it was relevant, as his Honour correctly acknowledged, to have regard to the fact that the charges could have been dealt with summarily, so as to attract a maximum sentence for each offence of 'break, enter and steal' of two years: see R v Crombie. No objection has been taken to the objective and subjective considerations to which his Honour had regard and to which this Court also must give due weight. 50 In all of the circumstances, I am of the opinion that although his Honour's Remarks on Sentence reveal error in sentencing principle in the respects I have found, I am of the opinion that this Court should not re-sentence the appellant and his Honour's sentence should be confirmed. I propose that the following orders be made: 1. Appeal allowed. 2. Confirm the sentences imposed on the appellant on 8 March 2005. ********** 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. 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