New South Wales Court of Criminal Appeal CITATION: KUTCHERA v REGINA [2007] NSWCCA 121 HEARING DATE(S): 24/04/07 JUDGMENT DATE: 4 May 2007 JUDGMENT OF: James J at 1; Rothman J at 2; Harrison J at 50 DECISION: (i) leave to appeal be granted; (ii) appeal be granted in part; (iii) the sentence imposed by his Honour Marien DCJ be confirmed save and except that the execution of the whole of the sentence be suspended until 5 June 2008 and that the applicant be released from custody on condition that he enter into a good behaviour bond for a term expiring on 5 June 2008. CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL – error of law to preclude capacity to suspend sentence – aberrant behaviour – absence of damage to any person or property – significant subjective factors – appeal granted – imprisonment suspended. Crimes Act 1900 (NSW) LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) De Simoni (1981) 147 CLR 383 Dinsdale v The Queen (2000) 202 CLR 321 GAS v The Queen (2004) 217 CLR 198 House v The King (1936) 55 CLR 499 Johnson v The Queen (2004) 78 ALJR 616 CASES CITED: Markarian v The Queen (2005) 79 ALJR 1048 R v Boulghourgian (2001) 125 A Crim R 540 R v Mill (1988) 166 CLR 59 R v Simpson (2001) 53 NSWLR 704 R v Todd [1982] 2 NSWLR 517 R v Zamagias [2002] NSWCCA 17 PARTIES: Samuel KUTCHERA (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/845 COUNSEL: Self (Applicant) V. Lydiard (Respondent) SOLICITORS: Self (Applicant) S. Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0719 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 06/12/06 IN THE COURT OF CRIMINAL APPEAL 2007/845 JAMES J ROTHMAN J HARRISON J 4 May 2007 Samuel KUTCHERA v REGINA Judgment 1 JAMES J: I agree with Rothman J. 2 ROTHMAN J: The applicant, Samuel Kutchera, appeals against the sentence imposed upon him by his Honour Judge Marien SC on 6 December 2006. 3 The applicant was sentenced to a term of imprisonment being a non-parole period of nine months to commence on 6 December 2006 and to expire on 5 September 2007 and a balance of term of nine months to commence on 6 September 2007 and expire on 5 June 2008. 4 That sentence was imposed on the applicant after a plea of guilty to an offence under section 178BA(1) of the Crimes Act 1900 (NSW) namely obtain valuable thing by deception the date of offence being 27 October 2004. The applicant had been on bail between 14 April 2005, the date he was charged, and the date of his sentence. The applicant, who was represented before Marien DCJ but was unrepresented before this Court seeks to appeal on two grounds. They are: "(i) no pre-sentence report ordered to consider other sentencing alternatives; (ii) failing to give sufficient weight to significant delay between the applicants charge and sentence with having regard to his rehabilitation during the period of 22 months on bail." In submissions to this Court the applicant requests that this Court order a pre-sentence report "to assist in reviewing the appeal against the severity of sentence imposed." It is conceded that the period on bail was 20 months. 5 I will deal with the matters in order but before doing so, I need to briefly state the facts giving rise to the offence and make some comments on the remarks of Marien DCJ. 6 The essential facts were that the applicant together with others presented a stolen Commonwealth Bank cheque, which cheque was known to be stolen by the applicant, in order to obtain a motor vehicle being a $415,000 Lamborghini Gallardo. 7 There are a number of other aspects to the factual circumstance including unrelated issues associated with defrauding the revenue but it is not alleged that the applicant had any connection with that scheme. 8 One of the applicant's co-conspirators was granted immunity in relation to this particular offence for the giving of evidence against the applicant and in the prosecution of other persons in the wider scheme to defraud the Office of State Revenue. 9 The intention of the applicant was to obtain the motor vehicle and sell it for an amount, presumably significantly discounted, and the money would then be shared between him and his co-offender. 10 To say that the plan was flawed is probably an understatement given that the registration of the car which they had purchased was not in the name of either the applicant or his co-offender and it would have been difficult if not impossible to transfer registration. Given that the car continued to be registered (which was part of the conspiracy to defraud the Office of State Revenue) in the name of the motor dealer, even an attempt to impersonate and/or forge the identity and signature of the owner would have been extremely difficult. But the impossibility of realising the profit is not an answer to the charge under section 178BA. Nor did the applicant attempt to defend the charge. As already stated, the applicant pleaded guilty and was given a significant discount for the utilitarian value of that plea of guilty. That discount was at the lower end of the range (ROS 17) because of the timing at which the guilty plea was made. 11 The sentencing judge took account of his plea of guilty and what his Honour described as genuine expressions of remorse and contrition. 12 His Honour came to the view, with some hesitation, that the applicant was unlikely to re-offend but, the hesitation was caused by the lack of rationality of a first time offender at the age of the applicant committing an offence of this kind. It was described by his Honour as "an ill conceived and naïve criminal enterprise" which was an expression (ROS 16) taken from the submissions of counsel representing the applicant except that counsel utilised the term "escapade" rather than "enterprise" (ROS 13). 13 The applicant is a US citizen having been born in New York and arrived in Australia in 1999. He was married to an Australian and divorced in 2004. There was, at the time of sentencing before his Honour a hope for reconciliation. The most likely explanation for an offence of this kind by a person who has no prior criminal record in New South Wales and, it seems, nowhere else, and is otherwise a man of good character, seems to have been the applicant's view that his life had "fallen apart". 14 Because the applicant is unrepresented on appeal I have examined more carefully than might otherwise be the case the proceedings below and the remarks on sentence to ascertain whether there is in any way a suggestion of error. 15 Judge Marien SC, who is an extremely experienced sentencing judge, has, on the face of his remarks, committed no error of principle in the sentencing process and, with one possible exception to which I will return, has given the applicant the benefit of all of the criteria he could in exercising his discretion. 16 Sentencing is an exercise of discretion. The normal restrictions on an appellate court to ground a review of the exercise of the discretion apply and the text book example is one relating to sentencing: House v The King (1936) 55 CLR 499. Those restrictions require that an appellate court cannot merely substitute its opinion as to the appropriate sentence for that of the sentencing judge. There must be an error disclosed, whether identifiable or manifest. The error to be identifiable requires the application of a wrong principle or the misapplication of principle, an error of law or fact, the consideration of an irrelevant criterion, or the failure to consider a relevant one. None of those errors are disclosed in the sentence imposed on the applicant. Nor is the sentence imposed outside of the range available to his Honour and it does not disclose manifest error. 17 The sentencing judge correctly refused to take into account the use of a false instrument: De Simoni (1981) 147 CLR 383 at 389. 18 However, his Honour did take into account the lack of planning or sophistication in the offence, the fact that there was, ultimately, no damage suffered and the vehicle was recovered. 19 The sentence is at the very low end of the range of sentences of imprisonment that could have been imposed. 20 The applicant essentially relies upon the failure by the sentencing judge to obtain a pre-sentence report. Pre-sentence reports are an important tool in the process of sentencing. In the present proceedings his Honour (transcript 6 December 2006, page 2) discussed with counsel for the applicant the need for a pre-sentence report and in the process of that discussion the following exchange occurred (transcript 6 December 2006, page 2-3): "His Honour: You're requesting a presentence report? [Counsel for the applicant]: I'm not requesting one but it's a matter, as I said, for the court whether the court wants one as well but we'll – their own report I should say but we'll be I should say obtaining a background report. His Honour: Are you able to say what your ultimate submission is going to be as to what the penalty should be? [Counsel for the applicant]: I will be submitting that a full time custody would be appropriate but that it be suspended. Alternatively, perhaps your Honour might hear me on community service but given the amount of money involved. His Honour: Then I would need a presentence report wouldn't I? [Counsel for the applicant]: I think that's right your Honour even for a suspended sentence. His Honour: I don't know if it's outside the realms of possibility but -- [Counsel for the applicant]: I think it's -- [Crown]: Such a penalty as one my friend has intimated he would seek is within your Honour's range and if that's a matter which -- His Honour: What a community service order or suspended sentence? [Crown]: No, suspended sentence. His Honour: Yes. I obviously don't need a presentence report for a suspended sentence but there was an indication of possibility of a submission for community service. [Crown]: Your Honour would need a report for that. [Counsel for the applicant]: I think that would be – I'd have to concede your Honour that would be fairly optimistic from the defence point of view but I think suspended sentence is certainly where we're aiming at. His Honour: It's a matter for you. Are you asking for a pre-sentence report or not? [Counsel for the applicant]: No, I'm not. His Honour: You're not, all right. I will obviously not be part heard in the matter, I've just taken the plea. So when do you want to go over to? … [Counsel for the applicant]: I just spoke to my client and on the basis that I won't be directing my submissions towards a community service order, we could proceed to sentence now. I can get the evidence that I would be going to get from a background report, I can get that from him in the witness box. It's a matter for your Honour but I'd probably prefer an adjournment before I do that even if it just for half an hour but we can proceed to sentence – on that basis we can proceed to sentence today and the only reason I say that your Honour is because I haven't taken any proof of evidence from him but I can – I mean it's quite simple. I just wanted to give your Honour a bit of his background and that will only take ten or 15 minutes." 21 It is obvious from the above exchange that his Honour was prepared to order a pre-sentence report (and grant an adjournment for that and other purposes) but that report was waived and the right to the adjournment waived by counsel on behalf of the applicant. In those circumstances it is inappropriate for the applicant to complain about the failure of his Honour to obtain a pre-sentence report. 22 A pre-sentence report must (see section 86 and section 80 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) be obtained before a sentence of community service or home detention is imposed but otherwise it is a matter of discretion and practice bearing in mind the attitude of the parties. 23 It is usual for an adjournment to be made and an order issued for the preparation of a pre-sentence report because it is, as previously stated, a useful tool in the sentencing process, but it is always a discretion to be exercised judicially by the sentencing judge. In circumstances, such as here, where the applicant has, through his counsel, specifically requested that a pre-sentence report not be obtained because they oppose an adjournment, it was not an error for the sentencing judge to proceed. There was no possibility, given the nature of the offence in question, that the applicant would be ordered to serve his sentence by way of home detention. 24 The other grounds raised in the notice of appeal are wholly without merit. 25 The difficulty involved in sentencing has been the subject of much comment and the result of the exercise of a sentencing discretion will differ, within an applicable range, and still be correct. It is, as earlier stated, an exercise of discretion and while ever it is consonant with consistency of approach and accords with the statutory regime, as much flexibility as possible must be allowed: Johnson v The Queen (2004) 78 ALJR 616 at 618[5]; Markarian v The Queen (2005) 79 ALJR 1048 at [27]. 26 It is this exercise of discretion which allows for the capacity of the court to tailor a sentence to the individual that is before it and the offence that has been committed. An experienced sentencing judge, such as Marien DCJ, balances overlapping and sometimes contradictory goals including deterrence, retribution and rehabilitation. 27 In the current proceedings the applicant relied upon the alleged "significant delay" between the charge and sentence. While there was initially some contest concerning the level of delay, it is accepted that there was a delay of 20 months between the date of the arrest and charging and the sentence before Marien DCJ. Such a delay is not, of itself, so extraordinary as to warrant appellate intervention. While any delay is regrettable, in this case the delay worked to the advantage of the applicant because he was able to show a return to what was his otherwise good behaviour. This Court commented on the question of delay and its effect in R v Todd [1982] 2 NSWLR 517. At 519, Street CJ said: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 28 The above comments and approach have been endorsed by the High Court of Australia in R v Mill (1988) 166 CLR 59. 29 Nevertheless, as earlier stated, the amount of delay (20 months) is not such that it would ordinarily warrant consideration beyond that which Marien DCJ has given it. The sentencing judge took into account his good behaviour and the fact that the behaviour was out of character. The sentence was a less severe sentence than may have otherwise been imposed. The earlier remarks relating to sentencing being a balancing exercise must be reiterated. When dealing with deterrence, one must remember that it is not only aimed at the individual (specific deterrence) but general deterrence for the community at large. 30 During the course of the remarks on sentence Marien DCJ did not specifically mention the period between charge and sentence. During that period, the applicant was subject to conditional liberty. The conditions of reporting, when they existed, were not particularly onerous. 31 The applicant was admitted to bail by the Police when arrested on 14 April 2005. The conditions of that bail required daily reporting between 8am and 8pm, the surrender of his passport and therefore a restriction on his return home. On 13 May 2005 the reporting conditions were reduced to twice weekly and on 20 October 2005, the reporting condition was reduced further to a requirement to report only once per week (each Tuesday). While there may have been one technical breach of the bail condition which warranted no further action, those conditions remained in force until 29 March 2006. On that date, reporting conditions were deleted. He then remained on conditional liberty, without the need to report, until the date of his sentence, 6 December 2006. 32 During the course of the oral argument before the Court the applicant relied upon an alleged agreement with the Crown as to the severity of the sentence to be imposed. That agreement has not been properly proven, or proven at all. It cannot be taken into account in these proceedings and could not have been taken into account by the sentencing judge. 33 Assuming, without deciding, that the belief in such an agreement infected the plea, it is a matter that can affect only the plea and that is not an issue in these proceedings. While sentencing after a plea of guilty may sometimes involve a degree of informality, the system of justice operating in this State requires that it is the prosecutor, and the prosecutor alone, who decides the charge to be preferred against any accused. Further, it is the accused, only, who decides whether to plead to any charge. Further, it is the sentencing judge, and only the sentencing judge, that decides the sentence to be imposed: GAS v The Queen (2004) 217 CLR 198. It is both inappropriate and improper for the Crown and the accused to purport to reach agreement as to the appropriate sentence to be imposed. I am not suggesting that such an agreement was reached in this case. Further, I do not suggest that the Crown were even aware of such a suggestion until this appeal. Further still, there is no suggestion that the sentencing judge was aware of any such agreement or any understanding as to the nature of the sentence to be imposed. 34 Lastly, the request for this Court to order a pre-sentence report is misconceived. The use of such a report would arise only if and when the Court would otherwise move to re-sentence. Since, I am not persuaded that intervention is appropriate, a pre-sentence report is not now useful. 35 The terms of the document sought to be relied upon recite that "the Crown will not be asking for a penalty of more severity than an 11 month suspended gaol term" on the plea. In fact, the Crown did not submit to the contrary to his Honour. 36 As earlier expressed, the subjective circumstances of this applicant are to his credit. He spent 20 months under conditional liberty and, but for this offence, the whole of his life without ever being involved in criminal activity or otherwise coming to the attention of the police. While the offence was serious, and the value of the motor vehicle significant, it was, ultimately, the non-violent stealing of a motor vehicle in circumstances where the motor vehicle was returned to its owners in the same condition. He has the support of family, employment and an otherwise exemplary life. His Honour described him as having "an exemplary character in the past". 37 The seriousness of the offence required a custodial sentence. But a custodial sentence does not necessarily mean a full-time custodial sentence and does not eliminate the possibility of a suspended sentence. A suspended sentence is not an alternative to the imposition of a custodial sentence: R v Zamagias [2002] NSWCCA 17 (per Howie J, with whom Hodgson JA and Levine J agreed). A sentence cannot be suspended until it has been imposed. A suspended sentence is the suspension of the execution of the sentence and is not, therefore, classified as a non-custodial term. The suspension of the sentence also means that the offender continues on conditional liberty and any breach of the law will result in the imposition of the sentence originally imposed and the suspension ceasing. 38 The sentencing judge considered these aspects. As one would expect, his Honour referred to the judgment of Kirby J in Dinsdale v The Queen (2000) 202 CLR 321. In dealing with the matters to be taken into account in determining whether a sentence should be suspended, Kirby J said: "The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'." ( Dinsdale , per Kirby J at [79]) 39 In Dinsdale¸ Kirby J classified the approach of the Western Australian Court of Criminal Appeal as too narrow in the reasons for suspending a sentence for imprisonment. His Honour referred to the fact that the Court of Criminal Appeal had addressed their attention, mainly and specially, to the question of the appellant's rehabilitation. His Honour said: "In this, with respect, the focus which he adopted was too narrow. The primary judge, on the other hand, had looked at the matter more broadly. He was obviously influenced in his decision about suspension by the prospects of rehabilitation on the part of the appellant, which he regarded as promising. But he also appears to have been influenced by all the circumstances and information available, including the nature of the particular offence, the low likelihood of the appellant's re-offending, and the impact which a prison sentence, immediately served, would have on the appellant and his family. The primary judge also mentioned the 'social stigma' which necessarily followed the conviction, quite apart from a prison term. In my view, all of these were considerations available and proper to the decision of whether or not to suspend the term of imprisonment." ( Dinsdale , per Kirby J at [88]) 40 The sentence imposed by his Honour was within range. Indeed, but for the unique subjective factors that tell against condign punishment and specific deterrence, the sentence would be light. However, in these peculiar circumstances, as the Crown's submissions below makes clear, a suspended sentence was also within range. Below, the following exchange occurred: "His Honour: Yes, Mr Crown. It's been conceded that a custodial sentence is appropriate but [counsel for the applicant] submits that it could be suspended. [Crown]: My submission would be that that is not outside the range although the range is something very difficult to ascertain with these types of offences …" [The Crown continued with an analysis of the subjective and objective elements for and against the applicant and had previously referred to the suspended sentence being within range (Transcript p. 2).] 41 In dealing with the capacity of the Court to suspend the sentence, his Honour said: "I have carefully considered the submissions of Mr Trevallion and whilst I accept that there is a low likelihood of the appellant re-offending, in my view the nature of the particular offence and the circumstances in which it was committed effectively in my view take the offence outside a proper exercise of sentencing discretion by suspension, if I have not made that clear which I suspect I have not. In my view, to suspend this sentence would be an erroneous exercise of my sentencing discretion and that is principally because of the nature of the particular offence here before me and the circumstances in which it was committed. The nature of the offence I have described I have taken into account all the objective factors relevant to its assessment which Mr Trevallion has referred to. But as I say at the end of the day the case relates to a very valuable item. In my view, the community would be affronted if in relation to an offence relating to an item so valuable that the matter was to be or the sentence was to be a suspended sentence only." (Remarks on Sentence p. 20) 42 To describe, as did his Honour, the suspension of the custodial sentence imposed as being "an erroneous exercise of my sentencing discretion" and as "outside a proper exercise of sentencing discretion" is to treat a suspended sentence in his case as outside the range available. As I have made clear, it was not outside the range, as the Crown conceded. 43 To preclude consideration of an available outcome is an error of law. To treat a suspended sentence as an unavailable result, when it is within range, is an error capable of being remedied on appeal. His Honour has erred in treating the suspension of the sentence as out of range. 44 The above should not be taken as a counsel of perfection. This Court is not unmindful of the pressures on District Court judges and it is not appropriate to comb through remarks on sentence or judgments, especially those delivered ex tempore, looking for infelicitous expressions. However, there is a fundamental difference of approach between a determination, in the circumstances of a particular case, not to suspend even though it is within range and the determination of a sentence on the basis that, after "carefully considering" submissions, a suspended sentence would be "outside a proper exercise" or an "erroneous exercise" of the discretion available. I find error and I am required to deal with the provisions of section 6(3) of the Criminal Appeal Act 1912 (NSW). 45 It is insufficient, of itself, to show an error in sentencing. The Court must form the opinion that "some other sentence; whether more or less severe, is warranted." 46 Once there is error (either manifest or identifiable) such as to enliven the jurisdiction of the Court to overturn an exercise of discretion, the statutory requirement imposed by section 6(3) must be satisfied: R v Simpson (2001) 53 NSWLR 704 at [79]; R v Boulghourgian (2001) 125 A Crim R 540 at [34]. 47 As is clear from that which follows I am of the view that a lesser sentence is and was warranted, being a sentence his Honour precluded himself from imposing. 48 This is a most unusual, if not peculiar, situation. Were I sentencing afresh, I may have imposed a longer sentence than that which was imposed by his Honour but subjected it, on the information we now have available, to an alternative other than full-time custody. Because I am sitting on appeal, I do not intervene in the length of the sentence. I bear in mind that the applicant has in fact served most of the sentence imposed. In all of the circumstances of this particular and peculiar appeal, I propose the following orders: (i) leave to appeal be granted; (ii) appeal be granted in part; (iii) the sentence imposed by his Honour Marien DCJ be confirmed save and except that the execution of the whole of the sentence be suspended until 5 June 2008 and that the applicant be released from custody on condition that he enter into a good behaviour bond for a term expiring on 5 June 2008. 49 The effect of the above order is that the applicant is entitled to immediate release upon entering into a good behaviour bond. However, if, prior to 5 June 2008, he breaches that good behaviour bond, he will be required to serve the remainder of his sentence. 50 HARRISON J: I have read the judgment of Rothman J in draft. I agree with both his Honour's reasoning and conclusions. I only wish to add a few brief remarks of my own. 51 At page 20 of his Remarks on Sentence (quoted in full by Rothman J at [40] above), his Honour Judge Marien SC said that "the nature of the particular offence and the circumstances in which it was committed effectively take the offence outside a proper exercise of sentencing discretion by suspension". He went on to say "to suspend the sentence would be an erroneous exercise of my sentencing discretion". As Rothman J has observed at [41], his Honour appears, by the use of those words, to have treated a suspended sentence in this case as outside the available range of sentencing options. 52 In my opinion, the words used by his Honour strongly indicate that he actually foreclosed on the possibility that a suspended sentence was within the range of permissible options. It seems to me that this follows from his Honour's emphasis upon a suspended sentence being outside a proper exercise of the discretion that he had, and upon the fact that it would have been an erroneous exercise of his sentencing discretion, rather than upon the fact that it was a sentencing option available to him, but one which, in the proper exercise of his discretion, he determined not to impose. 53 There can be no doubt that it was open to his Honour to impose a suspended sentence upon the applicant if he had thought, in the circumstances of the case, that it was appropriate to do so. Correspondingly, there can be no doubt that it was equally open to his Honour to impose a sentence of which no part was to be suspended. However, if in the course of imposing a sentence, a judge exposes, in his Remarks on Sentence or otherwise, a process of reasoning which arguably has had the effect of erroneously excluding from his available choices a particular outcome that he should not have excluded, this will amount to an error of law that is amenable to correction by appeal to this Court. In my opinion, this has occurred in the present case. 54 I have had regard to the provisions of s 6(3) of the Criminal Appeal Act 1912. I agree that some other, less severe, sentence is warranted. ********** 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.