New South Wales Court of Criminal Appeal CITATION: Lewins v R [2007] NSWCCA 189 HEARING DATE(S): 06/06/2007 JUDGMENT DATE: 4 July 2007 JUDGMENT OF: Basten JA at 1; Grove J at 2; Howie J at 3 DECISION: 1. Grant leave to appeal and allow the appeal 2. Quash the sentences imposed in the District Court and in lieu impose the following sentences: (i) Count 1: Imprisonment for 18 months fixed term from 10 April 2006 to expire 9 October 2007. (ii) Count 2 (and matters on Form 1): Imprisonment for 6 years with a non-parole period of 4 years 6 months to date from 10 April 2006. The non-parole period is to expire on 9 October 2010. (iii) Count 3: Imprisonment for 3 years 6 months with a non-parole period of 12 months to date from 10 October 2010. The non-parole period is to expire on 9 October 2011, the date upon which the applicant is eligible to be released to parole. (iv) Count 4: Imprisonment for 12 months fixed term to commence on 10 October 2010 and to expire on 9 October 2011. CATCHWORDS: Criminal Law - Appeal - Disparity with sentence of co-offender that was manifestly inadequate - Ellis discount misapplied - whether disparity so gross that the Court should intervene. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A(2), 21A(3), 23(3) R v Pan [2005] NSWCCA 114 R v Ellis (1986) 6 NSWLR 603 R v Dodd (1991 57 A Crim R 349 Ryan v The Queen (2001) 206 CLR 267 CASES CITED: SZ v R [2007] NSWCCA 19 R v Todd [1982] 2 NSWLR 517 Chang v R [2006] NSWCCA 409 Postiglione v The Queen (1997) 189 CLR 295 R v Grube [2005] NSWCCA 140 Tatana v R [2006] NSWCCA 398 PARTIES: Scott Andrew Lewins v Regina FILE NUMBER(S): CCA 2007/582 COUNSEL: R. Herps - Crown D. Carroll - Applicant SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0366 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 15/06/2006 IN THE COURT OF CRIMINAL APPEAL 2007/582 BASTEN JA GROVE J HOWIE J WEDNESDAY 4 JULY 2007 Scott Andrew LEWINS v REGINA Judgment 1 BASTEN JA: I agree with the orders proposed by Howie J and with his Honour's reasons. 2 GROVE J: I agree with Howie J 3 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court. The only ground argued in support of the application is the alleged disparity between the sentences imposed upon the applicant and those imposed upon a co-offender, Woolhouse. The same Judge sentenced both the applicant and Woolhouse but on different occasions. 4 The applicant was sentenced in June 2006 and the co-offender in October of that year. They were each before the District Court for the same four offences, being the break and enter of, and stealing from, commercial premises in 2002 and 2004. The applicant received sentences totalling 10 years with a non-parole period of 7 years. Woolhouse received sentences totalling 3 years with a non-parole period of 18 months, being effectively an increase in sentences currently being served of 2 years with a non-parole period of 12 months. The lesser sentence imposed upon Woolhouse was notwithstanding that he was before the court for more offences than the applicant, had matters of significant aggravation not present in the applicant's case, and had a worse record. 5 The applicant and Woolhouse were professional thieves who had embarked on a course of stealing from commercial premises in the Hunter Region whenever the opportunity arose to do so in 2002 and 2004. They were both serving prison terms in 2003, which accounts for their being crime-free in that year. As a result of these two episodes of criminality, as well as the four offences for which he was to be sentenced, the applicant asked the sentencing judge to take into account 44 matters on a Form 1. These matters included 24 offences of break, enter and steal, 14 offences of break and enter with intent to steal and 6 offences of larceny of a motor vehicle. The monetary value of the applicant's offending was just over $300,000. 6 The applicant is aged 36 years and has a criminal record for offences of dishonesty dating from 1982 in the Children's Court. In 1996 he was sentenced for armed robbery to a minimum term of 4 years 6 months. In 2003 he was sentenced in the Local Court to 9 months imprisonment for an offence of break and enter with intent. A psychological report before the sentencing judge disclosed that the applicant left school at the age of 14 and thereafter had undertaken a number of unskilled or labouring positions. He had spent about 8 years of his life in custody. He has used drugs from an early age and was addicted to amphetamine apart from a period between 1987 and the mid 1990's when he was in a permanent and stable relationship. He also developed an addiction to gambling. The psychologist considered that he needed general counselling and perhaps medication because of his apparent attention deficit disorder. 7 The applicant's counsel accepted before this Court that the sentence imposed upon his client was within range and that there was no error apparent in the sentencing remarks. A complaint of disparity accepts that the sentence imposed on the applicant cannot be challenged. It is the sentence imposed upon a co-offender that gives rise to a sense of injustice, not the sentence imposed upon the applicant. The applicant also accepts that the Court's power to intervene to redress disparity is discretionary and that it will not necessarily act where the co-offender's sentence is so inadequate that this Court should not take it into account. The latest statement of this principle is to be found in the judgment of Johnson J in R v Pan [2005] NSWCCA 114 in which his Honour stated: "Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at [15]. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at [16]." 8 In order to explain, but without seeking to justify, the extraordinary difference between the overall sentence imposed upon the applicant and that imposed upon Woolhouse it is necessary to refer to the history leading up to the charging of the applicant with these offences in June 2005. Police became aware that Woolhouse's DNA was found at some of the sites of the break and enters. Police spoke to him in December 2004 and he denied the offences. However, in January 2005 he informed police that he was prepared to assist them and as a result informed them of offences he had committed in 2002 and 2004. He also nominated the applicant as his co-offender. When police spoke to the applicant he denied the offences. Woolhouse agreed to have his conversations with the applicant recorded by the police whereby it was hoped that the applicant would make admissions to the offences. This eventuated and, when police confronted the applicant with the recordings, he admitted his offending including some of which the police were unaware. 9 Woolhouse was before the District Court for the same four offences as the applicant but in addition asked the court to take into account 68 matters on a Form 1 including 33 offences of break, enter and steal, 17 offences of break and enter with intent and 11 offences of stealing or attempting to steal motor vehicles. Woolhouse was 43 years of age and had a lengthy criminal record dating from 1982. He was first sentenced to imprisonment in 1991 for offences of dishonesty and thereafter was repeatedly before the courts for matters of dishonesty and sentenced to terms of imprisonment. Eventually he was released to parole in February 2004 and recommenced offending until he was returned to custody in June 2004. He has since that time remained in prison serving various sentences. Woolhouse's criminality resulted in a monetary loss in excess of $400,000. 10 With respect, the overall sentence imposed upon Mr Woolhouse is so manifestly inadequate as to amount to an affront to those persons who were his victims, some of whom suffered very substantial monetary loss either through unrecovered property or in damage caused during the course of the offences. The sentence imposed was a result of discounts granted to the applicant for assistance to police notwithstanding that on its face there has been clear breach of the injunction against excessive discounting contained in s 23(3) of the Crimes (Sentencing Procedure) Act 1999 as the sentence imposed is "disproportionate to the nature and circumstances of the offence". There is no reference to the existence of this restriction on a court's discretion to grant discounts in the sentencing remarks. 11 Not only in my view is the sentence unreasonable, the sentencing remarks reveal a number of errors of principle leading to that result. Yet remarkably there has been no Crown appeal. I accept that the Director of Public Prosecutions has a wide discretion in respect of lodging appeals, but it is difficult to imagine what might have stayed the Director's hand if this matter had come to his attention. 12 The manner in which the Judge appears to have derived the sentences he imposed upon Woolhouse was as follows. He commenced with an undisclosed notional starting sentence for each offence from which he deducted 25 per cent for the plea. In relation to counts 1, 2 and 4 he then deducted a further 50 per cent for what he described as "an Ellis type discount" and from the resulting figure a further 50 per cent was deducted for other assistance to police. As I understand it, although the remarks do not make it clear, in relation to Count 3, from the notional starting sentence the Judge deducted 25 per cent for the plea and then a further 50 per cent for assistance. 13 For example, for count 1 a fixed term of 6 months was imposed for an offence involving the theft of over $25,000 worth of property where Woolhouse was clearly the principal offender. Trying to understand what notional starting point resulting ultimately in a fixed term sentence is difficult, but working back according to the methodology used by his Honour it appears to be a fixed term of 5 years and 4 months. 14 Quite frankly I fail to understand how the revelation of more criminality can result in a marked reduction in the sentences for offences for which there was evidence against the offender. The police had evidence of 17 matters against Woolhouse. Yet by revealing a further 61 matters Mr Woolhouse's overall sentence for those 17 matters was reduced to a minor fraction of what the sentence should have been. That is not how I understand that the principle deduced from the decision in Ellis applies. True it is that some leniency was to be given to Woolhouse for his voluntary confession of unknown criminality to police in circumstances where they had evidence of his involvement in similar offences. But, with respect, to describe, as the Judge did, that conduct warranting an "Ellis type discount" and one "close to the maximum" is to overemphasise the nature of Woolhouse's assistance and to misconceive the effect of the decision in Ellis. 15 R v Ellis (1986) 6 NSWLR 603 was a quite exceptional case where a person who had committed seven armed robberies confessed his involvement in those offences to a minister of religion and then to police in circumstances where the police had not the slightest suspicion of his involvement in any of them. Street CJ, after referring to the effects of a plea of guilty, stated at 604: "When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned." 16 Another case where such leniency has been given very significant weight was R v Dodd (1991) 57 A Crim R 349. There the offender voluntarily walked into a police station and confessed to the manslaughter of a woman some ten years after the event and at a time when there was no chance of his guilt being discovered. Yet this Court held, allowing a Crown appeal, that a sentence commensurate with the objective seriousness of the offence had to be imposed notwithstanding the leniency to which the offender was entitled. 17 There is no decision of this Court that I have been able to discover where a separate quantified discount has been applied under the Ellis principle even where quantified discounts were allowed for the plea and other assistance. In Ryan v The Queen (2001) 206 CLR 267 McHugh J stated (footnotes omitted): [15] ………………..The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case." 18 Although the leniency referred to in these decisions extends to those cases where the offender volunteers additional criminality otherwise unknown to the police, the extent of the leniency will obviously not be of the same significance as in those cases where the police are unaware of any criminal offences committed by the offender. It is a matter of degree. In some cases the known criminality might be so great that little leniency can be shown for the further offences revealed by the offender. That was so in the case of the present applicant. There was in my opinion no warrant to apply any mathematic reduction to Woolhouse's sentences by reason of his disclosure of unknown criminality, let alone a discount of the proportion that was allowed. 19 It has been stated that too mathematical an approach to sentencing by using discrete discounts for various factors is likely to result in error. One of the reasons is because of the considerable overlap that occurs between various factors. This is particularly so with the Ellis principle because the voluntary confession of criminality will be relevant to other, more general considerations such as the prospects of rehabilitation and the likelihood of further offending which themselves are mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act. In any event it has been made clear that there is a limit to the extent to which a sentence can be discounted for whatever reason in order to avoid a sentence that is manifestly inadequate: see SZ v R [2007] NSWCCA 19. In that case it was held that a discount of more than 50 percent for both plea and assistance should be reserved for an exceptional case. 20 In SZ, with the concurrence of Simpson J, and in reference to separate discounts for the plea and assistance, I stated: "[11] In my opinion the application of two discrete discounts, as was done in the present case, is liable to lead to error unless the court is conscious of the overall discount being given and considers whether a discount of that degree can result in a sentence that does not infringe s 23(3). An overall discount of more than 60%, however derived, will rarely, if ever, result in a sentence that is not manifestly inadequate. If then special circumstances are found and the non-parole period is reduced to say 50% of the overall sentence, the unreasonableness of the sentence is magnified. It should be borne in mind that a discount in the overall sentence will inevitably result in a discount of the non-parole period. This is why it is important to avoid doubt counting in cases of assistance by finding special circumstances for the very same reasons that the sentence was reduced: R v S (2000) 111 A Crim R 225; R v PG (2001) 122 A Crim R 529." 21 The total discounts that were applied in the present case, at least for counts 1, 2 and 4, totalled 82 per cent based upon the method described by his Honour. The Judge then found special circumstances so that the non-parole period was less than 75 per cent of the head sentence. In the case of the longest sentence it was 50 per cent. In respect of count 4 the non-parole period was 6 months. This was about 6 per cent of the assumed notional starting sentence of 8 years. 22 There are further errors of principle in the sentencing of Woolhouse that need not be considered in such detail. For example, notwithstanding that counts 3 and 4 were committed while Woolhouse was on parole after his release from prison in 2004, the sentences were made concurrent with those on the first two counts which were committed in 2002. The Judge also took into account, apparently as a matter of mitigation, that many of the offences could have been dealt with on earlier occasions that Woolhouse was before the District Court notwithstanding that the applicant's guilt had not been revealed at the time of those hearings. If this was thought to be the application of the principle referred to in cases such as R v Todd [1982] 2 NSWLR 517, then, with respect, the Judge was mistaken. That case was not dealing with delay caused by the fact that the applicant had chosen not to reveal his criminality for other offences: Chang v R [2006] NSWCCA 409. The only significance of the fact that offences could have been dealt with on some prior occasion had they been known was to ensure that the offender did not incur a heavier sentence than appropriate by separate sentencing proceedings for related offences. 23 Further, in applying the principle of totality, the Judge thought that it was appropriate to reflect the additional criminality before him by an extension of the sentence then being served by Woolhouse by an increase in the head sentence of 2 years and an increase in the non-parole period of 12 months. Yet this increase reflected what were in effect 54 additional break and enter offences, a number of which were committed while Woolhouse was on parole. In my respectful opinion that result is an affront to the community and tends to bring the criminal justice system into disrespect. 24 I have taken some time to consider, critically, the sentences imposed upon Woolhouse to show that the disparity between the sentences to be served by the applicant and those imposed upon Woolhouse cannot be justified as a result of the proper application of sentencing principles. But there is a further significant error in the Judge's approach to sentencing Woolhouse that has direct application to the present complaint. 25 In sentencing Woolhouse the Judge referred to the sentence imposed upon the applicant and then stated "no question of parity arises" as between the applicant and Woolhouse. This was because of the discounts that were to be applied in Woolhouse's case. With respect that statement was erroneous. A question of parity will always arise where two offenders are before the court for the same offence. It may be that in applying proper sentencing principles or because of differences in their criminality or subjective factors different sentences are justified. But a court cannot completely disregard the sentences imposed upon a co-offender, as his Honour appears to have done. This is made perfectly clear by the majority of the High Court in Postiglione v The Queen (1997) 189 CLR 295. There Dawson and Gaudron JJ stated (at 302-301) "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality……….." 26 For example, it would be expected that the notional starting sentence before the application of discounts for any of the offences should bear "due proportion" between the two offenders. In the present case, to take count 1 for example, both Woolhouse and the applicant were to be sentenced for the same offence. The Judge found that Woolhouse's record was more serious than that of the applicant and was an aggravating factor under s 21A(2). Further Woolhouse was on conditional liberty at the time of offending. It would reasonably be expected that the notional starting sentence for that offence would be greater in the case of Woolhouse than for the applicant. 27 But that does not appear to be so. In the applicant's case the notional starting sentence was the equivalent of a non-parole period of 4 years. But in the case of Woolhouse it was the equivalent of a non-parole period of 2 years and 8 months. There was no basis for such a discrepancy or that it should be in favour of Woolhouse. Similarly on the fourth count the notional starting sentence for the applicant was apparently an equivalent of a non-parole period of 4 years 8 months but in the case of Woolhouse, who was on parole at the time of the offending, the notional starting sentence was one of 8 years with a non-parole period of 2 years 8 months. Had the Judge maintained regard for parity when sentencing Woolhouse, as he should have done, he could not have started from such disparate notional sentences. 28 Quite sensibly counsel for the applicant appreciated that the sentencing exercise in respect of Woolhouse had so miscarried that this Court could not in conscience reduce the applicant's sentence to anything approaching the sentence imposed upon his co-offender. Initially he submitted that it would be appropriate to adjust the applicant's sentences by using the notional starting sentences in the case of Woolhouse. But as should be apparent from what I have already written, even if they can be ascertained, the notional starting sentences in the present case are unreliable guides for achieving a proper proportion between the sentences imposed upon these two co-offenders. 29 As an alternative, the applicant's counsel submitted that the Court should adjust the sentences to the lowest point within the available range. He submitted that, using the decision of this Court in R v Grube [2005] NSWCCA 140 as a guide, the Court might reduce the applicant's overall sentences to one of 6 years with a non-parole period of 4 years and 6 months. In Grube the applicant received an overall sentence of 12 years with a non-parole period of 8 years for 57 offences of break, enter and steal, 35 of those being on a Form 1. 30 Notwithstanding an acknowledgment by the Crown that the sentence suggested by the applicant's counsel might be at the bottom of the range, I am not satisfied that such a sentence is appropriate in this case in light of all the material relevant to the objective seriousness of the applicant's offending and having regard to his relatively poor subjective circumstances. There was little in his favour apart from the pleas of guilty. However, some adjustment should be made to the sentences imposed upon the applicant although otherwise unwarranted. 31 This is a very exceptional case and the result of this appeal should not be taken in any way to alter the principles that have generally been applied by this Court when dealing with a question of disparity arising from a manifestly inadequate sentence imposed upon a co-offender. But the disparity here is so gross and so unreasonable that it seems to me that this Court must intervene to ameliorate the sentence imposed upon the applicant to some degree otherwise there would be a strong sense that justice has not ultimately been achieved. The result is an unfortunate one that will not result in full justice to the victims of the applicant's and his co-offender's crimes or to the community generally. 32 In considering what sentence ought now to be imposed upon the applicant I have taken into account material placed before this Court for the purpose of re-sentencing him. There was an affidavit of the applicant indicating his classification in the prison system and his prospects of improving his classification if the sentence were reduced. It also refers to courses and work being undertaken by the applicant in custody and other matters relating to his personal situation. There is also an affidavit annexing various documents obtained on the applicant's behalf from his prison file indicating his commitment to work in the gaol and his generally good behaviour. 33 The overall sentence I propose is not one derived by the application of any mathematical approach to the sentences imposed upon the co-offender. Nor is the sentence I propose based upon some notional starting point from which a discount of 25 per cent has been deducted. It should provide no guide to what would be an appropriate sentence for a similar offender with such a multitude of serious offences. It is a sentence that seeks to relieve to a small, but significant, degree the justifiable grievance occasioned to the applicant who has to serve a sentence six and half years longer than the period to be served by the co-offender before being eligible for release notwithstanding that he was before the court for less criminality. Had the Judge approached the sentencing of the two offenders in a principled way, and with due regard to the question of parity, he could not have permitted such a result to occur. 34 The overall sentence I propose is one of 8 years with a non-parole period of 5 years 6 months. I have found special circumstances only to achieve parity by reducing the non-parole period below that which would otherwise be appropriate and because the sentence for Count 3 is cumulative on counts 1 and 2: see Tatana v R [2006] NSWCCA 398. There are fixed terms for Counts 1 and 4 because of the other sentences being imposed. 35 I propose the following orders: 1. Grant leave to appeal and allow the appeal. 2. Quash the sentences imposed in the District Court and in lieu impose the following sentences: (i) Count 1: Imprisonment for 18 months fixed term from 10 April 2006 to expire 9 October 2007. (ii) Count 2 (and matters on Form 1): Imprisonment for 6 years with a non-parole period of 4 years 6 months to date from 10 April 2006. The non-parole period is to expire on 9 October 2010. (iii) Count 3: Imprisonment for 3 years 6 months with a non-parole period of 12 months to date from 10 October 2010. The non-parole period is to expire on 9 October 2011, the date upon which the applicant is eligible to be released to parole. (iv) Count 4: Imprisonment for 12 months fixed term to commence on 10 October 2010 and to expire on 9 October 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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