New South Wales Court of Criminal Appeal CITATION: Hoswell v R [2006] NSWCCA 70 HEARING DATE(S): 8 March 2006 JUDGMENT DATE: 24 March 2006 JUDGMENT OF: Spigelman CJ at 1; Simpson J at 19; Barr J at 60 DECISION: (By majority) leave to appeal granted; appeal dismissed. CATCHWORDS: application for leave to appeal against sentence - plea of guilty - whether plea of guilty taken into account - discount for utilitarian value of plea of guilty - break, enter and steal - prior criminal record - subjective circumstances - whether evidence of matters in mitigation was taken into account - remorse - prospect of rehabilitation - special circumstances - protective custody - accumulation of sentences - whether sentence manifestly excessive Crimes Act 1900 s112(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s21A, s22, s44 Criminal Appeal Act 1912 s12(2) R v Daley [2003] NSWCCA 109 CASES CITED: R v Hoswell [2000] NSWCCA 250 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Regina v Heikkinen [2006] NSWCCA 50 PARTIES: Clint Clement Hoswell - Applicant Crown - Respondent FILE NUMBER(S): CCA 2005/2227 COUNSEL: R Burgess - Applicant V Lydiard - Respondent SOLICITORS: S O'Connor - Applicant S Kavanagh - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0316 LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2227 SPIGELMAN CJ SIMPSON J BARR J Friday 24 March 2006 Clint Clement HOSWELL v REGINA Judgment 1 SPIGELMAN CJ: The facts and issues appear in the judgment of Simpson J, which I have read in draft. 2 Simpson J would uphold Ground 1 of the appeal. I respectfully disagree. As her Honour notes, Shadbolt DCJ referred to the guilty plea in the first sentence of his remarks on sentence. In the context in which this sentence was uttered, it constituted an acceptance that the Applicant was entitled to a 25 percent utilitarian discount for this early plea. 3 His Honour made the remark immediately following the submissions in reply by the Crown. It was in that part of the submissions that the passage to which Simpson J referred, i.e. "The Crown concedes that the offender's entitled up to 25 percent utilitarian discount for an early plea", was made. Accordingly, this submission was made about a minute or two before his Honour commenced his remarks with the first sentence referring to the plea. In my opinion, a judge of Judge Shadbolt's experience would not overlook this consideration, to which his attention had been directed only a minute or two before. 4 As to Grounds 1(b) and 1(c) it is pertinent to note that his Honour said, during the course of the remarks on sentence, that he had read the letter from the Applicant and from Ms Palmer. Furthermore, he had heard the evidence of Mr Hoswell only a short time before his remarks on sentence. He had also just been asked whether he wished to hear from Ms Palmer and indicated that he did not believe her evidence would assist. I do not accept that his Honour failed to take these matters into account. 5 However, there is no reference to any of these matters in the remarks on sentence other than in the statement: "looking at all the material before me". This was not, in the circumstances, an adequate statement of reasons. His Honour should have given direct consideration to the Applicant's "crossroads" case. 6 With respect to Ground 1(c) I would not uphold the appeal on this ground. His Honour gave explicit attention to this matter in the course of deciding special circumstances, when he said: "I do not find any special circumstances in the fact that he is in protective custody at the moment. These things come and go. The circumstances of protective custody are by no means clear to me." 7 This made it apparent that his Honour was aware of the issue. He would have taken it into account in a relevant manner for other aspects of the sentencing exercise. 8 I would also not uphold the appeal on the basis of Ground 2. I do not agree with Simpson J that his Honour intended that the effective sentence should have the proportion identified in s44 of the Crimes (Sentencing Procedure) Act 1999. On the contrary, I think his Honour intended to vary that proportion when he said, in the context of considering special circumstances: "… It is better that this prisoner has either no parole period or a very short period because he will only breach whatever parole is given to him on his past history." 9 I agree with Simpson J that Ground 3 should be rejected. 10 In the list of previous convictions tendered before his Honour there was a reference to the judgment of this Court on a previous appeal against severity. That case was R v Hoswell [2000] NSWCCA 250 in which the Applicant appeared unrepresented. 11 In the course of the judgment in this Court, Grove J said: "[3] The applicant has a record of considerable length and he has submitted to the Court that his problems have been derived from drug-taking and his inability to cope with stresses in his life. He is but twenty-four years of age. He has indicated that he has not previously had an opportunity for rehabilitation and he has produced to the Court today a certificate showing that he has attended a stress management course and also a letter from Mr Noonan, a drug and alcohol counsellor attached to the Department of Corrective Services. … "[5] The applicant has pointed out that the learned sentencing judge when dealing with him expressed some pessimism about the likely outcome of the rehabilitation of the applicant and he said this: 'The only way he can impress people is by showing them that he is making genuine efforts to do something concerning the problem that he has. When he does that people will be able to assist him. When I say 'people' I mean including the Courts but until such time as something is put before the Court that is indicative of the fact that he really is trying to help himself, there is not much the Court can do other than impose a custodial sentence on him.' [6] The applicant has apparently taken his Honour's words to heart and it is encouraging to see that he is focused upon the prospect of some rehabilitative training. He specifically made a submission to the Court that the additional term component of his sentence being but ten months, he estimates that this is rather too short a period and he asked that this Court readjust his sentence so that he could be at liberty for a further ten months." 12 The Applicant has claimed to be at the crossroads before. The time for promises has long since passed. His letter, to which Simpson J refers, is carefully crafted and shows an understanding of sentencing practice, as did his submissions on the previous occasion when appearing unrepresented in this Court. 13 Like Shadbolt DCJ I would not accept the Applicant's promises. His history is one of breaking them. I have read the transcript of his evidence. This also constitutes merely a list of promises. I have no difficulty in the fact that this Court has not seen him give his oral evidence. The benefits of being in the physical presence of a witness are much exaggerated. Ms Palmer appears well meaning and there is every reason to accept that she will give such assistance as she is permitted by the Applicant to give. 14 Nothing in his personal history suggests that the Appellant's prospects of rehabilitation are such that this Court should refuse to affirm a penalty which is appropriate or to permit the Applicant's crossroads case to be further considered by way of remittal. 15 This is a case in which the element of personal deterrence was entitled to substantial weight. That remains the case even if the Court accepts the Applicant's statement as to his current intention, reinforced as that is by the opinion and promises of Ms Palmer. 16 In my opinion this is an appropriate case in which the Court should apply s6(3) of the Criminal Appeal Act 1912. I am of the view that no other sentence was warranted in law. Indeed, in all the circumstances I regard the sentence imposed on this Applicant by his Honour as at the bottom of the permissible range. 17 I adopt the concluding words of Shadbolt DCJ in his remarks on sentence: "You have now reached the position Mr Hoswell where every time you do a break-in and steal you are going to get more than two years for it. It is a matter for you. If you continue offending like this then you will spend most of your adult life in prison." 18 In my opinion, leave to appeal should be granted but the appeal should be dismissed. 19 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 27 May 2005 following his plea of guilty to a charge of break, enter and steal. S112(1) of the Crimes Act 1900 provides a maximum penalty of imprisonment for 14 years for the offence. The applicant was sentenced to imprisonment for two years and eight months with a non-parole period of two years, to commence on 17 December 2004. facts 20 The facts of the offence are in a very narrow compass. It was committed on 19 January 2004, during daylight hours, at Forest Lodge. In the absence of the occupant, the applicant forced entry through a balcony door to a home unit, which he searched. He stole property valued at a little over $2,000, the bulk of which was a computer which was in fact the property of the occupant's employer. 21 Although (as will appear below) the applicant was well-known to police and his fingerprints were identified on a balcony window near where he had forced entry, he was not arrested or charged until 29 November 2004. In the meantime, on 17 March 2004, he was arrested and charged with a series of unrelated offences with respect to which he was sentenced, in the Local Court on 24 March 2004, to imprisonment for 12 months, commencing on 17 March 2004, with a non-parole period of nine months, expiring on 16 December 2004. Although both the non-parole period and the head sentence expired prior to sentencing in respect of the present offence, the applicant was refused bail and remained in custody until the present sentence was imposed. It was because of that sentence that the commencement date of the sentence the subject of the present application was selected. The sentence was made wholly cumulative upon the earlier imposed non-parole period. subjective circumstances 22 The case has some unusual features. The applicant was born on 23 February 1976 and was a month short of 28 years of age at the time of the offence. He has a lengthy criminal history, involving numerous (on the sentencing judge's count, 44) offences of the same or a similar kind to that the subject of the present application. 23 He has a son from a former de facto relationship, who would now be aged about 10 years. He is the youngest of five siblings, and had a dysfunctional childhood as a result of his father's alcoholism. His parents separated. At some stage he experienced the death of a younger sibling. He has had periods of homelessness from the age of 12. He has a history of alcohol abuse that commenced at about 15 years of age, occasional cannabis use from 16 years, heroin use from 19 years, which became "an intensive habit" by the age of 21, and cocaine use from the age of 23. the proceedings on sentence 24 A pre-sentence report provided for the sentencing judge was very brief, since the officer had been unable to make contact with the applicant because of his movements within the prison system. The officer noted that an earlier parole order, made on 11 February 2003, in respect of earlier offences, had been revoked on an unspecified date, and that the applicant had served the balance of the term to which that order related. 25 The officer reporting wrote: "Mr Hoswell has never responded to the supervision of this Service and from all accounts has an entrenched drug dependency, which underpins his offending behaviour." The officer provided an earlier pre-sentence report, prepared for the benefit of the Local Court which sentenced the applicant on 24 March 2004. That report contained more information, some of which has been recounted above. 26 The applicant's history, thus far, presents a bleak picture offering little prospect of rehabilitation. 27 However, there was more material before the sentencing judge. The applicant himself wrote a three-page letter, which he opened by saying: "I am a changed man." 28 He said that he recognised that it was time "to grow up" and supported this by saying that he had completed many courses whilst in custody and had learned a lot from his time in custody, with the assistance of the education staff in the prison system. He said that he had available to him on his release an apprenticeship as a painter, and had been allocated priority housing which would make accommodation available to him three weeks after his release. 29 He said that he had been in protective custody since mid-September because he had been assaulted by four people as a result of "a family problem". He said that as a result of his protective custody status, he is deprived of access to education and confined to his cell for all except two hours, and most days less, per day. He said that he had remained drug free whilst in prison and had not had any disciplinary charges. He also expressed the wish to be a good father to his son. 30 The sentencing judge was also provided with a lengthy handwritten letter by a Ms Bridget Palmer, who is a nurse, and who came to know the applicant because her sister was in a relationship with the applicant's step-father. Ms Palmer expressed considerable concern about the way the step-father treated the applicant and said that she believed the applicant was fearful of his step-father. 31 Ms Palmer also expressed great confidence in the applicant and in his future and offered him a home on his release. She promised to continue to support him and "help him stay on track". 32 The applicant gave evidence in the sentencing proceedings. This evidence essentially confirmed what he had said in his letter. He reiterated that he had learned from his past mistakes and his intention to take advantage of the supervision of the Probation and Parole Service. It is of some interest that no cross-examination was directed to the applicant. 33 Counsel who appeared for the applicant told the sentencing judge that Ms Palmer was present to give evidence if his Honour wished to hear from her. His Honour replied that he did not, and that he did not think that it would assist. 34 Counsel for the applicant addressed his Honour. Given the grounds on which the application has been argued, to which I will shortly come, it is convenient to record some of which he said in the course of that address: "Your Honour Mr Hoswell has pleaded guilty at the very earliest opportunity. He has used his most recent period of time in custody in a very productive manner. He has shown the capacity to work within the gaol system and it is only as a result of a change in his position in custody that he must be in protection that has prevented him from making further use of the educational and work opportunities in the custodial system. He has expressed, I would submit, genuine remorse in relation to his behaviour in that he can, as he noted in his last comments, how he has the capacity to feel for the victims of his offences. I would submit your Honour that a change in his attitude can be detected in what he said in his letter, in that he is able to express his thanks to the education staff which does seem to be a significant factor that he is wanting to do that. It seems to be a considerable development in his capacity to relate well to other humans. He has a solid programme in which to engage in upon his release and that should also give the court some great confidence that he may be able to turn his life around at his age. He is at an age where he has given consideration to how much time he has spent in custody in the past and that he hasn't done anything positive with his life and he is now wanting to take that course, and he has that additional incentive in his expression of wishing to be there for his son." 35 He made reference to the fact that the applicant was serving his time in protection, and the greater hardship thereby caused; that he was incarcerated in a relatively remote location which limited his opportunity to receive visitors. He expressly submitted that, pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Procedure Act"), special circumstances existed justifying departure from the ratio between the head sentence and the non-parole period otherwise there specified. the remarks on sentence 36 In conventional fashion the sentencing judge recounted the objective circumstances of the offence. He particularly noted the applicant's criminal history and observed that: "It is a record which would not allow any leniency whatsoever to be extended to the prisoner. He appears to be a professional thief and he steals for the purpose of satisfying his drug habit." 37 He observed that the record showed that the applicant had breached parole on four occasions and had breached a periodic detention order resulting in his serving that sentence by way of full-time imprisonment. He then said: "It does not appear to me, looking at all the material before me, that supervision of any nature is of any real assistance to this prisoner who returns it would appear, to drugs, immediately upon his release." 38 His Honour then said: "He has been in custody on the matter which was referred to by the parole officer until 16/12/04. This will be the starting date for the present sentence. I have taken all matters into consideration under 21A which are relevant, 21A(2) and (3). No mitigating circumstances are advanced by Mr Betts solicitor on behalf of the prisoner." The reference to "21A" and "21A(2) and (3)" were, of course, references to s21A of the Sentencing Procedure Act. 39 His Honour quoted from both pre-sentence reports with which he had been provided. He made no reference to the applicant's letter, Ms Palmer's letter or to the applicant's oral evidence. 40 He declined to find special circumstances under s44 of that Act by reference to the applicant's protective custody status. He said: "These things come and go. The circumstances of protective custody are by no means clear to me. Secondly it is better that this prisoner has either no parole period or a very short period because he will only breach whatever parole is given to him on his past history." the application for leave to appeal 41 Three grounds of appeal were pleaded, and should be set out in full. They are: "Ground 1 – His Honour erred by failing to refer to, and take into account, matters in mitigation including: (a) the applicant's plea of guilty at the earliest opportunity, (b) the unchallenged evidence of the applicant in relation to his remorse, his change in attitude to offending and resolve not to re-offend, (c) the unchallenged evidence of Bridget Palmer in relation to the applicant's remorse, his change in attitude and also the support she was prepared to give him, (d) the unchallenged evidence that the applicant had already spent 6 months on protection and that had resulted in hardship. Ground 2 – His Honour erred by failing to find special circumstances because of the accumulation of sentences. Ground 3 – The effective sentence and non-parole period are manifestly excessive." Ground 1(a) – the plea of guilty 42 S21A(3) of the Sentencing Procedure Act contains a catalogue of mitigating factors that the court is (by subs(1)) obliged to take into account in determining the appropriate sentence for an offence. Relevantly for present purposes, the subsection includes: "(k) a plea of guilty by the offender (as provided by s22)" (Subs(5) provides that the existence of any mitigating factor does not require the court to reduce the sentence for the offence.) 43 S22 is in the following terms: "22 Guilty plea to be taken into account (1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court." 44 The sentencing judge opened his remarks on sentence by noting that the applicant had pleaded guilty before a magistrate and had maintained that plea. Thereafter he made no reference to the plea of guilty or to its timing. In R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Spigelman CJ, with whom all other members of the Court agreed, promulgated a guideline with respect to the manner in which a plea of guilty should be treated. That guideline included the following: "[160] ... (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence in so far as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. ... (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. ..." 45 During the course of the sentencing proceedings the Crown Prosecutor conceded that the applicant was entitled to "up to 25% utilitarian discount for early plea". The judge made no other reference to the plea of guilty. He made no finding about the utilitarian value as evidenced by the time at which it was entered, or any other relevant consideration. He did not indicate that he had, as required by s22(1), taken the plea into account and did not indicate either that he had or had not imposed a lesser penalty than he otherwise would have by reason thereof. If he did not, he did not give reasons, as required by s22(2), for declining to do so. 46 In my opinion this ground of appeal has been made good. The Crown sought to take comfort from the opening words of the remarks on sentence, when his Honour noted that the applicant had pleaded guilty before a Magistrate and had maintained the plea in the District Court, and submitted that the judge was "plainly conscious" both of the timing of the plea and its importance in sentencing. I cannot accept this. That sentence was merely introductory. There is nothing in the remarks on sentence to indicate that, in accordance with s21A(3)(k) and s22 of the Sentencing Procedure Act, the timing of the plea was considered, or that the sentence was in any way reduced by reference thereto. It is true that it is not always necessary or appropriate that a sentence be reduced by any specific amount (whether quantified or not) (Regina v Heikkinen [2006] NSWCCA 50; R v Daley [2003] NSWCCA 109). But it is conventional to do so, and s22 contains a clear indication that an offender who pleads guilty may ordinarily expect a reduction in sentence. I can see no reason in the present case not to allow the applicant some discount in respect of the plea and the Crown expressly conceded as much at the sentencing proceedings. If it is the case, as I think it is, that the judge did not reduce the sentence by reason of the plea, he failed to comply with the obligation imposed by s22(2), to explain to the applicant, and record the reasons for, that decision. 47 I am satisfied that error in this respect has been demonstrated. Ground 1(b) – remorse and rehabilitation 48 S21A also requires a sentencing court to take into account whether: "(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise" "(i) ... the offender has shown remorse for the offence, by making reparation for any injury, loss or damage or in any other manner" 49 The applicant presented a serious case on rehabilitation, of the kind that has come to be known, somewhat colloquially as a "cross-roads" case. He gave oral evidence and provided documentary material that raised a significant factual basis that, if accepted, could have warranted a positive finding that he had, in reality, turned the corner. It may immediately be observed that that case was belied by past history, and may have been very hard indeed to sustain. But it was presented for determination and called for an assessment of its veracity. The applicant was entitled to, and was denied, adjudication on that case. 50 I accept that error has also been demonstrated in the treatment of the applicant's subjective case, particularly in respect of his evidence, and that of Ms Palmer, concerning his asserted rehabilitation. The difficulty in respect of this evidence is that his Honour made no findings of fact at all, and this Court does not have the benefit of observing the applicant as he gave evidence. All I can say is that the applicant's letter is a compelling document, as is that of Ms Palmer. It is a pity that counsel merely offered to call Ms Palmer, allowed himself to be discouraged by his Honour, and failed to take the responsibility of deciding whether to call her or not. Nevertheless, significant evidence was put before the sentencing judge that would, if accepted, have permitted a finding of positive prospects of rehabilitation. It is, of course, the case that his Honour might, after consideration of the evidence, have rejected it, and, indeed, it may be inferred that this is what happened. The applicant's history was a persuasive, and objective, indicator against a positive finding that his rehabilitation prospects were good. But the statement that the applicant's solicitor had not advanced any "mitigating circumstances" does not promote confidence that the case was considered and rejected. Rather, it suggests that the applicant's case was overlooked. In my opinion, the applicant was entitled to an express finding in relation to this evidence. The evidence was more than mere assertions of contrition, remorse, and regret; there was some concrete evidence advanced by the applicant, of having undertaken educational courses, and of having remained drug free. Ground 1(c) - protective custody 51 That an offender spends time in protective custody can be relevant to two aspects of sentencing; where there is evidence that the protective custody makes the conditions of custody more onerous, that is a circumstance which may be taken into account in the selection of the sentence, including the non-parole period; it may also be relevant to the determination of whether special circumstances under s44 exist. Here, there was express evidence, unchallenged, given by the applicant that, as a consequence of his protective custody status, he was deprived of the opportunity to participate in the educational courses in which he had previously engaged. This was not taken into account in the selection of the sentence, and was rejected as a basis for a finding of special circumstances. 52 Again, it would have been open to the sentencing judge to reject the evidence given – although, in the absence of any cross-examination or challenge by the Crown, it is difficult to see how that could have been properly done – but the fact is that no consideration was given to it. In my opinion, the applicant was entitled, at least, to a finding on this issue. Ground 2 - special circumstances 53 The judge expressly declined to find special circumstances under s44. In doing so he referred only to the applicant's information and evidence that he was serving his sentence in protective custody. But there was another aspect of the sentence relevant to the s44 determination. The sentencing judge specified that the sentence was to commence on 17 December 2004. This date was selected because the previous day was the expiration of the non-parole period in relation to the previous offences. He thus accumulated the sentence upon the earlier sentence. It was open to his Honour to take this course and no complaint is made that he did so. 54 However, taking into account the accumulation of sentences, the total effective sentence lost the s44 proportion which his Honour intended, expressly, to maintain. In my opinion this was an error and ought to be adjusted. Ground 3 - manifestly excessive 55 The submission was made that, given that the offence was not aggravated by accompanying vandalism or other significant damage to property, and given the relatively low monetary value of the property stolen, and the absence of any sentimental value attaching to the property stolen, the sentence imposed was manifestly excessive. 56 Having regard especially to the applicant's record, I do not think this submission ought to be accepted. The sentence was well within the available range. I would reject this ground of appeal. * * * 57 In the light of the accumulation of the errors which I consider affected the sentence, it is necessary that the applicant be re-sentenced. As against that possibility, this Court received affidavit evidence affirmed by the applicant. This evidence merely updated what had been before the sentencing judge and confirmed the applicant's continuing efforts at rehabilitation. 58 While it is readily open to this Court to correct the error concerning the treatment of the plea of guilty, and the error concerning special circumstances, it is not so easy for this Court to deal with the errors concerning the evidence of rehabilitation. In my opinion this evidence was potentially of very considerable significance. It was, indeed, critical to the sentencing process. In the absence of any findings of fact about the credibility of the applicant and, to a lesser extent, Ms Palmer, it is difficult for this Court to substitute its own view for that of the sentencing judge. This Court is not in any position to make any assessment of the genuineness of the applicant's claims. 59 S12(2) of the Criminal Appeal Act 1912 permits this Court to remit a matter or issue to a court of trial for determination. In my opinion that is the appropriate course to take in this case. That is the order I propose. 60 BARR J: I agree with the Chief Justice. The applicant came before the sentencing court as a mature man who since 1993 had been dedicated to the commission of theft and kindred offences. Whatever the strength of his claim once more to be at the "crossroads", the objective seriousness of his latest offence was bound to attract a non-parole period of the order of that set by the sentencing judge. In my opinion the appeal should be dismissed because no lesser sentence was warranted in law. ********** 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.