New South Wales Court of Criminal Appeal CITATION: MIRINGAORANGI v R [2006] NSWCCA 397 HEARING DATE(S): 20 July 2006 JUDGMENT DATE: 20 July 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hall J at 24 DECISION: Leave to appeal granted; Appeal dismissed PARTIES: Regina Thomas Miringaorangi FILE NUMBER(S): CCA 2006/792 COUNSEL: Crown: P Barrett Applicant: D Carroll SOLICITORS: Crown: S Kavanagh Applicant: S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/1118 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 15/08/05 - 7 - IN THE COURT OF CRIMINAL APPEAL 2006/792 McCLELLAN CJ at CL HULME J HALL J Thursday, 20 July 2006 Thomas MIRINGAORANGI v R Judgment 1 McCLELLAN CJ AT CL: I agree with Hulme J. 2 HULME J: On 15 August 2005 Judge English sentenced the applicant to three offences, he having pleaded guilty to each of them on 24 February 2005. 3 The charges to which the applicant pleaded guilty, the statutory provision under which they arise, and the maximum penalties prescribed are as follows: Count 1: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered a dwelling house and committed a serious indictable offence therein, namely detained Mark Whyte without his consent with the intention of obtaining an advantage to himself - Crimes Act, s112(2) - 20 years imprisonment. Count 2: On 23 July 2001, in circumstances of aggravation, viz. being in company, he broke and entered and committed a serious indictable offence therein, namely detained Amanda Whyte without her consent with the intention of obtaining an advantage to himself - Crime Act, s112(2) - 20 years imprisonment. Count 3: On 23 July 2001, while being in company he robbed Mark Whyte - Crimes Act s97(1) - 20 years imprisonment. 4 Taken into account in connection with the third of these offences were two offences on a Form 1. The first was obtaining a financial benefit by deception and the second was an attempt to obtain a financial benefit by deception. The first offence was constituted by, on 23 July 2001, withdrawing $1,000 cash from Mrs Whyte's bank account, using a keycard the offenders had stolen and PIN number they had obtained and the second by, on the following day, attempting to obtain more money in the same manner. 5 The sentences imposed by her Honour in respect of these offences were, respectively: Count 1: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005. Count 2: Imprisonment for six years including a non-parole period of four years commencing on 3 January 2005. Count 3: Imprisonment for a fixed term of three years and nine months commencing on 3 January 2005. 6 In the result the three sentences were all wholly concurrent, with the sentence on count 3, which took into account the Form 1 matters, wholly subsumed by the sentences on Counts 1 and 2. 7 The sole ground of appeal is Her Honour erred in commencing the sentences from 3 January 2005 in that she failed to accurately take into account the time spent in custody prior to sentence. The facts 8 In passing sentence her Honour referred to a set of agreed facts which had become part of Exhibit A. In summary they are as follows. At about 10.00 pm on 23 July 2001 Mr and Mrs Whyte were eating dinner and watching a video in their home when they heard a rear sliding door open. The applicant and an unidentified co-offender, both wearing balaclavas and brandishing knives told the victims to "get up but stay quiet". The intruders then grabbed the victims from behind, holding a knife close to Mrs Whyte's face. They led the victims to a computer room and there bound both victims' hands behind their backs with tape and taped over Mrs Whyte's mouth. The offenders demanded money and were told by Mrs Whyte that her purse and wedding rings were in the kitchen and that more money was in the bedroom. The co-offender disappeared briefly while the applicant bound both victims' legs together with tape. On returning the co-offender demanded, and was given, both victims' PIN numbers. He told them he was going to check the PIN numbers and that the applicant would be watching while he was gone. The light was turned off and the offenders left the room. A short time later, with his wife's assistance, Mr Whyte freed his legs and looked around the house. Finding the offenders gone he removed the remaining tape from himself and freed his wife. Police were then called. 9 Mr Whyte's vehicle, wedding rings, a digital camera and car keys had been stolen. Stolen also was $1,000 from Mrs Whyte's bank account using her keycard and PIN number via an ATM. 10 The applicant was arrested a little over two years later on 11 November 2003, on the basis of DNA material obtained from a balaclava located in Mr Whyte's car, which had been located near to where the withdrawal from Mrs Whyte's account had been made. The ground of appeal 11 It is accepted by the Crown that this ground is made out. It clearly is. It is common ground that the applicant was arrested and bail refused on 11 November 2003 and that he stayed in custody referable to these offences until he entered upon bail on 1 April 2004. He was therefore in custody for 143 days. 12 He was again arrested on 13 October 2004, having breached his bail. He remained in custody until sentenced on 15 August 2005. This period of custody the written submissions filed on the applicant's behalf calculated as 277 days where clearly it was 307 days. This was pointed out in written submissions filed for the Crown and takes the pre-sentence custody to 450 days, not 420 as submitted on behalf of the applicant. During the hearing before us the applicant's counsel agreed with this calculation. 13 In her remarks on sentence Judge English said that "The sentences have been backdated to take account the time spent in custody". However, it is clear that, sentencing the applicant on 15 August 2005 and only backdating the commencing date of the sentences to 3 January 2005, her Honour failed in significant degree to give effect to what she intended and what s47 of the Crimes (Sentencing Procedure) Act contemplates. It was submitted on behalf of the applicant that the commencement should have been 22 June 2004, although given the miscalculation to which the Crown adverted, 23 May 2004 is the correctly calculated date. 14 However, the Crown seeks to rely on the proviso to s6 of the Criminal Appeal Act, submitting that no lesser sentence than that imposed was warranted. It drew attention to the well-known remarks of the Chief Justice in R v Simpson (2001) 53 NSWLR 704 at paragraph 79 that: "(s)entencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By section 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed'. Unless such an opinion is formed, the essential precondition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied." 15 In this connection the Crown drew attention to a number of matters. One was that the offences were or occurred during a "home invasion" The Crown reminded the Court of a number of decision where this Court has made clear the seriousness of such offences and that sentences for them must convey strong messages of general and personal deterrence. See R v Knight (2002) NSWCCA 12; R v Kollas and Mitchell (2002) NSWCCA 491; R v Hoang (2003) NSWCCA 380; R v Dunn (2004) NSWCCA 41; R v Vincent (2005) NSWCCA 135. 16 Secondly, the Crown pointed out that there was a degree of planning, the offenders were armed and used actual violence and, as commonly occurs in this type of offence, some of the items stolen, in this case wedding rings, were of a sentimental nature. 17 Thirdly, the Applicant was on conditional liberty at the time. He had been granted bail some time before 26 June 2001 when he was dealt with for another offence, a warrant then being issued for his arrest. It is clearly to be inferred from the references to the 26 June 2001 in his antecedent report that he must have been granted bail and thus still enjoying it at the time of these offences. This Court has indicated on innumerable occasions that that offending whilst on conditional liberty is a seriously aggravating factor - see for example R v Richards (1981) 2 NSWLR 464 AT 465, R v Moffitt (1990) 20 NSWLR 114 at 128. 18 It should be said that her Honour adverted to all of these three factors but whether she gave them sufficient weight is another question. However, the Crown also relied on additional matters. 19 Fourthly, the Crown submitted that her Honour erred in making all of the sentences concurrent because, in her words, "they arose out of the one course of criminal conduct". The Crown drew to the Court's attention remarks in R v KM and Ors (2004) NSWCCA 65, some of my own in R v Cotter and Ors (2003) NSWCCA 273 at paragraph 69 and those in R v Dunn (2004) NSWCCA 41 where Adams J had pithily, and correctly observed, "There is a distinct difference between assaulting one victim and assaulting two". Attention was also directed to the fact that this Court has held that in dangerous driving cases, even though there may be only one offending act, sentences should to some extent be accumulated when there is more than one victim - see R v Skrill (2002) NSWCCA 484, R v Price (2004) NSWCCA 186 at paragraph 46 et seq, and R v Janceski (2005) NSWCCA 288 at paragraph 21 et seq. 20 Fifthly, the Crown submitted that the Form 1 matters needed to be taken into account with a view to increasing the sentence and the way her Honour dealt with them, this did not occur. In this connection the Crown relied on Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146 at paragraph 42. 21 Sixthly, the Crown pointed out that her Honour had not referred to the Applicant's criminal record, submitting that she thus appears to have treated it, wrongly, as neutral. Many of the offences on that record are of little present significance but the Crown drew attention to the fact that the record included an offence of unlawfully taking a motor vehicle in 1980, larceny in 2000, break and enter with intent to steal in 2001 for which the warrant to which I have referred issued on 26 April and a number of offences of assault occasioning actual bodily harm. The Crown submitted that when regard is had to all of these matters, whilst the sentences imposed could not be characterised as manifestly inadequate, some accumulation of sentences should have been imposed so that even had her Honour correctly backdated the sentences no lesser sentence should have been imposed. 22 It is unnecessary that I comment on the first part of this proposition so I shall not do so. However, I completely agree with the second. Particularly in making all of the sentences concurrent her Honour treated the Applicant very leniently. Indeed, she erred. She also erred, in my view, in the way she treated the Form 1 matters and also in not paying more regard to the Applicant's criminal record. While he is not to be again punished for past offending, that record and the commission of the offences with which her Honour was concerned clearly indicates that the Applicant is a recidivist - See The Queen v Veen 164 CLR 465. 23 In the result, while I would grant leave to appeal, the appeal should be dismissed. 24 HALL J: I agree. ********** 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.