New South Wales Court of Criminal Appeal CITATION: R v Van Rysewyk [2008] NSWCCA 130 HEARING DATE(S): 29 February 2008 JUDGMENT DATE: 16 June 2008 JUDGMENT OF: Bell JA at 1; Hulme J at 2; Latham J at 7 1. Appeal allowed DECISION: 2. The sentence imposed by Payne DCJ on 14 September 2007 is quashed 3. In lieu, the respondent is sentenced to a non parole period of five years, to date from 11 October 2007, expiring 10 October 2012, with a balance of term of three years and seven months, expiring 10 May 2016. The respondent is eligible for release on 11 October 2012 CATCHWORDS: SENTENCE - Crown appeal - specially aggravated break enter and steal - erroneous inclusion of breach of conditional liberty as factor in assessment of objective gravity - standard non parole period - indeterminate assessment of objective gravity - manifest inadequacy. LEGISLATION CITED: Crimes Act 1900 Drug Court Act 1998 CATEGORY: Principal judgment R v Derbas [2003] NSWCCA 44 Holloway v McFeeters (1956) 94 CLR 470 CASES CITED : R v Kafovalu [2007] NSWCCA 141 R v McNaughton (2006) 66 NSWLR 566 R v Mitchell, R v Gallagher [2007] NSWCCA 296 PARTIES: Regina - Crown Respondent - Anthony Van Rysewyk FILE NUMBER(S): CCA 2007/00003015 COUNSEL: Crown - P Ingram Respondent - M Dennis SOLICITORS: Crown - S Kavanagh - Solicitor of Public Prosecutions Respondent - S O'Connor - Legal Aid Commission LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 17/11/0287 LOWER COURT JUDICIAL OFFICER: Payne DCJ LOWER COURT DATE OF DECISION: 14 September 2007 IN THE COURT OF CRIMINAL APPEAL 2007/00003015 BELL JA HULME J LATHAM J 16 JUNE 2008 REGINA v ANTHONY VAN RYSEWYK Judgment 1 BELL JA : I agree with Latham J. 2 HULME J: In this matter I agree with the orders proposed by Latham J and, subject to one matter, with her Honour's reasons. 3 The one matter concerns the topic of remorse. All Payne DCJ said on that topic was, after observing that the Respondent's plea of guilty merited a reduction of 10% for its utilitarian value:- "The plea of guilty is also some indication of contrition and remorse". 4 As I have pointed out, with the concurrence of Bell and Shaw JJ in R v Derbas [2003] NSWCCA 44, while a plea of guilty is consistent with contrition and may be inspired by it, a plea may also be only the result of a desire to obtain the benefit of the discount in sentence normally given for such a plea. When a plea of guilty is entered only when, or shortly before, a trial is due to commence, it seems to me impossible in the absence of other evidence pointing towards contrition, to infer, as more probable than not, that contrition is one of the factors that has inspired the plea. As Dixon CJ said in Holloway v McFeeters (1956) 94 CLR 470 at 477, "an inference may be made only as the most probable deduction from the established facts, (and) it must at least be a deduction which may reasonably be drawn from them." Elementary rules of logic and legal reasoning do not disappear just because the particular proceedings require judges to impose sentences. 5 Furthermore, if Payne DCJ was to make any finding on the topic of remorse she also had to take into account, and in this regard did not, the fact of the Respondent's claim and evidence to the effect that he was but a look-out for the offenders who broke and entered the subject premises and that he had no knowledge of the use of any knives, her rejection of "everything (the Respondent) said" and conclusion that the only things he was prepared to admit were those that he had to admit because his fingerprint was found at the premises. 6 However, as this Court is quashing the sentence imposed by Payne DCJ, and there is no doubt that the Respondent has taken substantial steps in the direction of his own rehabilitation, I need not take this topic further. 7 LATHAM J : The Crown appeals against the sentence imposed upon the respondent by Payne DCJ (the Judge) on 14 September 2007, following a plea of guilty to a charge of Break and Enter and Commit a Serious Indictable Offence, namely Larceny, in Circumstances of Special Aggravation, namely Wounding. This offence under s 112(3) of the Crimes Act 1900 carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment. 8 The respondent's plea of guilty was followed by a hearing in order to determine a factual dispute as to the respondent's role in the commission of the offence. The respondent's contention was that his role was limited to acting as a lookout for two other offenders who entered a residence in Bellevue Hill, the subject of the offence. On the third day of that hearing, the Judge determined the dispute adversely to the respondent and accepted the Crown submission that the respondent was one of two offenders, each armed with a knife, who entered the home shortly before midnight on 4 October 2005. 9 The respondent was sentenced to a non-parole period of 3 years and 6 months, commencing 11 October 2007, expiring 10 April 2011, with a balance of term of 3 years expiring 10 April 2014. The sentence was expressed to commence 15 months into another sentence which the respondent was serving for an offence of robbery in company, committed on 7 July 2006. For that offence, the respondent received a non-parole period of 2 years, to date from 11 July 2006, expiring 10 July 2008, with a balance of term of 2 years, expiring on 10 July 2010. 10 The Crown relies upon both patent and latent error in the sentencing exercise. The patent error is that the Judge erroneously took into account the fact that the respondent was on bail at the time of the offence when determining the objective gravity of the offence. At first blush, this error (which is conceded by the respondent) might seem to undercut the Crown appeal, but the Crown contends that it exposes an underestimation of the objective gravity of the offence, properly confined to relevant factors, and it deflected the Judge from taking account of a significant aggravating factor, after a proper assessment of the objective gravity of the offence had been made. 11 It is further submitted that latent error, namely, the manifest inadequacy of the sentence, emerges from the length of the non parole period and the additional term imposed by the Judge, and from the aggregate non parole period (4 years and 9 months) and aggregate sentence (7 years and 9 months) that resulted from the partial concurrency with the sentence imposed in respect of the robbery offence. The Circumstances of the Break and Enter Offence. 12 At approximately 10:30 p.m. on 4 October 2005, the victims, a husband and wife aged 81 and 72 years respectively, retired to bed at their home in Bellevue Hill. About half an hour later, the husband heard a loud noise. He got up and looked into the rear yard, where he noticed that the door to the pool filter room was open. He could hear his dog barking. He assumed that something had fallen against the door, so he returned to bed and fell asleep. 13 About half an hour after returning to bed, the husband was woken by a loud noise in the room. He sat up and saw two men, both of whom were armed with large knives, described as "hunting style knives". One man stood at the side of the bed occupied by the husband, raised the knife above his head and, despite attempts by the husband to ward off the blow, stabbed the husband in the left thigh, causing a deep wound which extended through muscle and fascia down to the bone. This assailant demanded money, volunteering that they were on drugs and would "die if we don't get our drugs". (The respondent was on bail for an offence of Possess Prohibited Drug, with which he was charged on 23 September 2005.) 14 The second man stood at the other side of the bed next to the wife, brandishing a knife. The first man walked into the dressing room, found the husband's wallet and his credit cards and demanded the PIN number. On noticing a safe in the dressing room, he walked towards the husband demanding the combination. When the husband indicated that he did not have the number committed to memory, he was further threatened with the knife. The wife volunteered to open the safe. She got out of bed and walk into the dressing room. Whilst opening the safe, the assailant who had stabbed her husband stood behind her brandishing the knife. 15 Having obtained the wallet, a quantity of valuable jewellery, a quantity of foreign currency and various credit cards, the two men retrieved a length of rope from a bag that they had brought into the premises. They threatened to tie up the victims and only desisted after the wife had pleaded with one of them not to do so. Before leaving, the assailant said "we need 10 minutes, we have to jump the back fence. If I look back and see the light come on, I'll come back and kill you." This man then severed the telephone cord with his knife and both men left by the balcony. Both men were disguised, one by a balaclava and one by a dark hooded jacket and a scarf wrapped around his face. The Circumstances of the Robbery Offence 16 Nine months later on 7 July 2006, the respondent was in the company of two co-offenders when they jointly confronted an employee of a local McDonald's outlet in Penrith at 2:30 p.m., whilst the employee was returning from the Westpac bank with two bags of change in coins. Both bags were taken from the victim, although not by the respondent, who merely stood in close proximity to his co-offenders and provided an intimidating presence. 17 All three offenders fled the scene in a taxi. The taxi was tracked to its destination where all three were arrested. The respondent was taken to Penrith police station and interviewed. He denied any knowledge of or involvement in the robbery. He was released without charge. However subsequent enquiries showed the respondent in CCTV footage taken from the taxi, clearly aware of the two bags containing the proceeds of the robbery. He was rearrested on 11 July and interviewed a second time, in the course of which he made admissions to being involved in the offence. The respondent was refused bail and remained in custody from that date. 18 It is noteworthy that the respondent was on a bond at the time of this offence. That bond was imposed in March 2006 for motor vehicle offences. The respondent was also on bail for an offence of Being Carried in a Conveyance Knowing it to have been Stolen, committed on 14 June 2006. This latter offence was taken into account on a Form One when the respondent was sentenced on 21 March 2007 for the robbery offence. History of the Sentencing Proceedings 19 Two months after the respondent's entry to custody, he was interviewed about the Belleview Hill offence, in light of the fact that an impression of his left thumb was found on the edge of the door to the pool filter room. He denied any knowledge of the offence and of the subject premises. When police executed a search warrant at the respondent's home, they found two knives consistent with the appearance of those seen by the victims, a quantity of dark clothing, and a length of rope of the same type and construction as a rope found at the crime scene. 20 The respondent was accordingly charged with the offence the subject of this appeal on 21 September 2006. He was refused bail. He was committed for trial on 30 March 2007 and entered his plea of guilty on the date fixed for trial, namely, 16 July 2007. The hearing on the disputed facts began on that day and continued until 18 July. 21 This chronology largely deprived the respondent's plea of any utilitarian value. It is in that context that the appellant submits that a discount of 10% for utilitarian value and a finding that the plea was "some indication of contrition and remorse" were generous allowances by the Judge. I return to this submission below when discussing the appellant's contention that the sentence was manifestly inadequate. The Objective Gravity of the Offence. 22 The Judge undertook the exercise of assessing the objective gravity of the offence for the purposes of determining where it fell within the range of offences of a like kind, so that the standard non-parole period might remain as a guidepost or reference point to the penalty ultimately imposed. 23 A number of features of the offence were the subject of comment by the Judge in determining that the offence fell "at the middle range of seriousness and probably somewhat above the middle range of seriousness." Those features included that the offence demonstrated a significant degree of planning, bearing in mind that the respondent was residing at the time in South Penrith and had targeted, in company with his co-offender, a substantial property in a wealthy suburb of Sydney, armed with knives and in possession of a balaclava, scarf, gloves and a rope. The nature of the property and the fact that the respondent and his co-offender entered it from a rear yard, climbing onto the balcony which gave access to the bedroom by means of a ladder, at a time when both offenders well knew that the occupants had retired to bed, demonstrated premeditation of a high order. 24 The Judge also adverted to the advanced age of both victims, the fact that they were subjected to a terrifying ordeal "in their own bed, in their own bedroom, in their own house", the fact that property of very substantial value was taken and not recovered, and the fact that each offender was armed with a knife, one of which caused a significant stab wound, albeit no permanent damage was occasioned to the male victim. (The Judge sentenced the respondent on the basis that he was one of the two offenders who entered the premises, but was unable to determine to the requisite standard that it was the respondent who had inflicted the stab wound to the victim's thigh.) 25 All of these features were appropriately considered in reaching the assessment that her Honour did. However, one feature, namely, that the respondent was on conditional liberty at the time of the offence, was also taken into account for that purpose. That this aspect of the sentencing exercise constitutes patent error is acknowledged by the respondent : see R v Kafovalu [2007] NSWCCA 141 ; R v McNaughton (2006) 66 NSWLR 566. 26 The consequences of this error are difficult to evaluate. In placing the offence "certainly at …. and probably somewhat above the middle range of seriousness", the Judge drew back from making a definite finding. It is not possible to determine whether, absent the factor erroneously taken into account, the Judge's assessment would have fallen from above the midrange to one definitely at the midrange, or below the midrange altogether. This Court has previously remarked on the obligation on sentencing judges to make specific findings in this regard. It is not sufficient to determine that the offence reaches the threshold, whilst at the same time indicating that the offence could fall above it, without determining whether it did and to what extent : R v Mitchell, R v Gallagher [2007] NSWCCA 296. 27 Limiting the assessment of the objective gravity of the offence to those features properly taken into account by the Judge, it fell above the mid range to a substantial degree. A clear submission to that effect ("well above the middle of the range") was made by the appellant's representative on the sentencing proceedings. The combination of factors to which reference has been made display very serious criminality. In my view, it is simply not possible to reconcile that very serious criminality with a qualified finding to the effect that the offence was probably above the mid range. 28 The significance of the assessment of objective gravity resides in the continued relevance of the standard non-parole period to the sentencing exercise. It is appropriate at this point to turn to the respondent's subjective circumstances, before returning to a consideration of the appellant's argument that the sentence is manifestly inadequate. The Respondent's Subjective Case 29 The respondent was 22 years of age at the time of the commission of the offence. The respondent is the only child of his natural parents, whose relationship terminated before he was born. He has never known his biological father. His mother developed a relationship with his stepfather when the respondent was an infant. Three children were born to this relationship. 30 The respondent described his stepfather as a difficult man, who was dependent upon heroin and periodically engaged in criminal activity. The respondent's stepfather was often absent from the home whilst serving sentences for various offences. When the respondent was 15 years of age, his mother separated from his stepfather, who then took his own life, with the inevitable negative consequences for the respondent and other members of his family. It was at this point that the respondent became isolated from his family and commenced substance abuse. 31 The respondent's mother supported the family through unskilled manual labouring positions, but was regarded as an emotionally distant and harsh disciplinarian by the respondent. During his secondary school years, he engaged in truanting, disrespectful behaviour towards teachers and a tendency towards violence with other students. He completed his Year 10 studies, obtained his School Certificate, but was expelled in Year 11. The respondent left the family home for the first time at about age 16 or 17 and stayed with a friend for approximately 9 months. 32 Somewhat surprisingly, given this history, he has maintained stable employment since leaving school. He worked for a period of two and a half years in Western Australia, returning to Sydney where he secured employment in a timber yard. In 2004, whilst working at a timber yard, he sustained serious lacerations to his neck following a work accident with a chainsaw. He was awarded compensation and took four months off work to recuperate. He then secured employment with a corporate removalist company, where he continued to work up until his arrest and incarceration on the robbery charge. 33 The respondent's substance abuse includes alcohol, cannabis, amphetamines, ecstasy and heroin. Upon entering custody, he commenced on methadone but is now completely drug-free. Before his arrest on the robbery charge, the respondent had never participated in any rehabilitation program, but has undertaken weekly drug and alcohol counselling in gaol. According to the report of a psychologist, admitted as Exhibit 1 before the Judge, the respondent appears to be of average intelligence, although his "higher order or executive functioning skills appear to be in the average to above average range, despite his poor school achievement and history of substance abuse." 34 It is clear that the respondent's childhood was less than ideal and that the family suffered significant social disadvantage. No doubt, the suicide of the respondent's stepfather, the only father figure in his life, had a significant impact upon him. However, the Judge's finding that this constituted "a tragic history" arguably overshadowed the fact that the respondent has largely supported himself since the age of 17 and has, to his credit, capitalised upon his innate talents, in spite of these early setbacks. 35 The Judge also noted that, prior to the robbery offence, the respondent's criminal history consisted primarily of relatively minor motor vehicle offences, and that the sentence the respondent received for that offence was his first time in custody. The Judge further noted the commission of the offence whilst on bail, but there is nothing in the remarks which support the submission advanced by the respondent that the Judge treated this as a relevant aggravating factor. To the contrary, the Judge was aware that she had relied upon that factor in her assessment of objective gravity and was careful not to re-introduce it into the sentencing synthesis adversely to the respondent. 36 The evidence of the respondent's progress in prison supported the Judge's finding to the effect that there were reasons for optimism and that the respondent's prospects of rehabilitation were promising. Since coming into custody, the respondent had reconnected with his mother and step-siblings and had the support of his family. Manifest Inadequacy 37 The Judge ultimately determined that the respondent's subjective features and the plea of guilty gave "real scope in this case for a moderation of the standard non-parole period". It is not submitted that such a finding was not available to the Judge. However, the extent of that moderation could not be so great as to deprive the objective gravity of the offence of any meaningful expression. Put another way, even accepting for present purposes that the objective gravity of the offence was in the mid range, the imposition of a non parole period of 3 years and 6 months, that is, half the standard non parole period, strongly indicates that, after account was taken of the respondent's subjective case, the standard non parole period disappeared from the sentencing exercise altogether. 38 The Judge was required to re-consider the standard non parole period at the end of the sentencing exercise, in order to ensure that the proposed sentence, and in particular the non parole period, bore some relationship to the non parole period prescribed by the legislature as the appropriate term for an offence falling within the mid range of objective gravity. Notwithstanding the Judge's references to the importance of general deterrence and to "the need always for the subjective matters not to outweigh the objective seriousness of an offence", the sentence imposed upon the respondent reflects a transgression of that very principle. 39 I agree with the appellant's submission that the 10% discount afforded to the respondent for the utilitarian value of his plea, and the finding that he was remorseful to some extent, might appear generous in the circumstances. Nevertheless, these findings were open to the Judge and ought not be disturbed. Similarly, I would not disturb the Judge's finding that special circumstances existed by reason of a degree of accumulation upon the sentence being served. 40 That said, the notional starting point for the sentence ultimately imposed was one of 7 years and 3 months, significantly below a sentence appropriate to such an offence in the mid range of objective gravity, aggravated by its commission whilst on conditional liberty, and paying due regard to the respondent's subjective circumstances. That undiscounted sentence, in my view, was in the order of 10 years. Had the objective gravity of the offence been properly assessed as substantially above the mid range, the undiscounted sentence would have been correspondingly greater. 41 The appellant's further complaint invites attention to the aggregate non parole period and the aggregate sentence as an indicia of manifest inadequacy. The Judge acknowledged that the sentence to be imposed must take account of the totality of the respondent's criminality for the robbery offence and the specially aggravated break enter and steal offence. At the same time, the Judge considered that it was "most important, given the effort he is making in custody, that a crushing sentence is not imposed upon this relatively young man." 42 To the extent that the appellant's submissions take issue with the extent of the accumulation (15 months), that is a matter of discretion which, in my view, cannot be said to have miscarried. It is however apparent that an aggregate sentence of 7 years and 9 months, with an aggregate non parole period of 4 years and 9 months, is wholly inadequate to reflect these two offences committed 9 months apart, each of them aggravated by the respondent's failure to abide by the conditions of his liberty. The aggregate sentence is only 6 months more than the Judge's undiscounted sentence for the break, enter and steal offence. That feature of the sentence alone should have alerted the Judge to its inadequacy. 43 Accordingly, the appellant has made good its grounds of appeal. The sentence, including the non parole period, is manifestly inadequate. It should be apparent from the foregoing analysis that I regard the departure from the appropriate sentence to be so great, that the discretion to refrain from intervening ought not be exercised in this case. 44 The respondent made extensive submissions on, and after, the hearing of the appeal, seeking the referral of the respondent by this Court to the Drug Court under s 18B(2)(b) and s 18B(2B) of the Drug Court Act 1998, in the event that the appeal was dismissed. The gateway to referral is the qualification of the respondent as an "eligible convicted offender", which among other things requires that the unexpired portion of the non parole period be no more than 3 years at the time the offender is being considered by the Drug Court for a compulsory treatment order. Given the outcome of the appeal, it is not necessary to canvass this legislation in further detail. I would merely observe that, notwithstanding the respondent's genuine desire to rehabilitate himself, the structure of the legislation suggests that it is designed to capture non-violent offenders at a lower level of criminality than the respondent. Re-Sentence 45 The Court received affidavit material attesting to the respondent's continued progress in custody. There are grounds for believing that the respondent is indeed committed to remaining abstinent from drugs and to re-building his life with the help of his family. The respondent will require an extended period of supervision in the community in order to ensure that his resolve does not waver, once he no longer has the discipline of the prison environment. 46 The sentence I propose is necessarily constrained by the principles applicable to Crown appeals. As I have attempted to make clear, the sentence at first instance should have been passed on the basis that the offence was substantially above the mid range of objective gravity. However, a sentence significantly below a nominal starting point appropriate to that objective gravity and the respondent's subjective case (in the order of 13 years) takes into account considerations of double jeopardy. I would apply a 10% discount to a sentence of 9 and a half years, producing a sentence of 8 years and 7 months. The imposition of a non parole period of 5 years produces an aggregate non parole period of 6 years and 3 months, with an aggregate sentence of 9 years and 10 months. It should be noted again that the aggregate non parole period is considerably less than ought to have resulted from an appropriate sentence at first instance. 47 The orders I propose are :- 1. Appeal allowed 2. The sentence imposed by Payne DCJ on 14 September 2007 is quashed. 3. In lieu, the respondent is sentenced to a non parole period of five years, to date from 11 October 2007, expiring 10 October 2012, with a balance of term of three years and seven months, expiring 10 May 2016. The respondent is eligible for release on 11 October 2012. ********** 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.