New South Wales Court of Criminal Appeal CITATION: Tazelaar v R [2009] NSWCCA 119 HEARING DATE(S): 27 March 2009 JUDGMENT DATE: 29 April 2009 JUDGMENT OF: McClellan CJatCL at 1; Buddin J at 35; Rothman J at 36 1. Leave to appeal granted and appeal upheld in part. DECISION: 2. Quash the sentence imposed on count 2 and taking into account the matters on the Form 1 for that count sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 January 2008 with a balance of term of 2 years expiring on 20 July 2012. The non-parole period will expire on 20 July 2010 on which day the applicant will be eligible for release on parole. 3. With respect to counts 6, 8, 10, 12 and 14 sentence the applicant to a fixed term of six months imprisonment in relation to each count to be served concurrently commencing on 21 January 2008. 4. Otherwise the appeal is dismissed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - totality principle - discretion of sentencing judge when determining whether to accumulate sentences - question of discount afforded to offender who does not plead guilty at earliest opportunity but offers plea only after negotiating with Crown to secure more favourable outcome - appeal upheld in part LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 Cahyadi v R (2007) 168 A Crim R 41 R v Dib [2003] NSWCCA 117 R v Hammoud [2000] 118 A Crim R 66 CASES CITED : R v Stambolis [2006] NSWCCA 56 R v SY [2003] NSWCCA 291 R v Thomson; R v Houlton [2000] NSWCCA 309 R v Weldon [2002] 136 A Crim R 55 Veen v R (No 2) (1988) 164 CLR 465 Wilkins (1988) 38 A Crim R 445 PARTIES: Mark Edward Tazelaar (Applicant) The Crown FILE NUMBER(S): CCA 2007/14678 COUNSEL: J Manuell (Applicant) N Noman (Crown) SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/14678 LOWER COURT JUDICIAL OFFICER: McGuire DCJ LOWER COURT DATE OF DECISION: 5 May 2008 IN THE COURT OF CRIMINAL APPEAL 2007/14678 McCLELLAN CJ at CL BUDDIN J ROTHMAN J WEDNESDAY 29 APRIL 2009 TAZELAAR, Mark Edward v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to nine counts on an indictment. The indictment had originally contained a number of other counts but the pleas were accepted in full discharge of the indictment. 2 The relevant counts were as follows: Count 1: break and enter with intent (s 113(1) Crimes Act 1900: maximum penalty 10 years imprisonment;) Counts 2, 3 and 4: break enter and steal (s 112(1) Crimes Act 1900: maximum penalty 14 years imprisonment); Counts 6, 8, 10, 12 and 14:receiving (s 188(1) Crimes Act 1900: maximum penalty 10 years imprisonment) 3 There were two Form 1 documents. The first Form 1 included 11 offences to be taken into account in sentencing on count 2 on the indictment. The 11 offences were comprised of one offence of larceny and ten offences of receiving. The second Form 1 listed five offences to be taken into account also in sentencing on count 2 of the indictment. It included three offences of possessing prohibited drugs and two offences of goods in custody. 4 The applicant was sentenced in accordance with agreed facts. The sentences imposed were: Count 1: 1 year fixed term to date from 21 January 2007. Counts 3, 4: 2 years non-parole to date from 21 January 2007 with an overall term of 4 years expiring on 20 January 2011. Counts 6, 8, 10, 12, 14: 2 years non-parole period to date from 21 January 2008 with an overall term of 4 years expiring on 20 January 2012. Count 2 (including the matters on the two Form 1's): 3 years 3 months non-parole period to date from 21 January 2008 with a total term of 5 years 3 months expiring on 20 April 2013. 5 Accordingly, the overall sentence imposed in relation to all counts was a non-parole period of 4 years 3 months with an additional term of 2 years. This provided a non-parole period which was 61% of the total term thereby giving effect to the sentencing judge's finding of special circumstances. The sentences for counts 3 and 4 subsumed the sentence for count 1. The sentence for count 2 subsumed the sentence for counts 6, 8, 10, 12 and 14. The sentence for count 2 is partially concurrent with the sentence for counts 3 and 4. 6 The agreed facts provided to his Honour indicated that between 9 pm on Saturday 11 March and 9.30 am on Sunday 12 March 2006 the applicant broke into the Kingsway Medical Centre in Dee Why. Whilst inside the building, he broke into the medical suites and offices of Dr Sena (count 1), Dr Grimson (count 2), Susan Bullock (count 3) and Summer Anderson (count 4) and stole the total sum of $378.40, a bank book, a cheque in the sum of $165.90 and a set of keys. Broken glass was found throughout the building and blood was visible on door handles. The applicant was later identified by way of DNA analysis, and he was arrested and charged on 21 November 2006. He participated in an ERISP and admitted having broken into the Medical Centre. He told police he was addicted to heroin at the time of the offences and "was looking for cash". The applicant was granted bail. 7 On 21 January 2007 the police executed a search warrant at the applicant's premises. Stolen property was found at the premises (counts 6, 8, 10, 12 and 14 on the indictment, and offences numbered 2-11 on the first Form 1). In addition, three small quantities of prohibited drugs were found in the applicant's car, together with a watch and a board game that were reasonably suspected of having been stolen (all of these offences were on the second Form 1). The facts were silent as to the circumstances of the larceny offence (first Form 1, first numbered offence). 8 Following the execution of the search warrant, the applicant was again arrested. He participated in an ERISP and made full admissions in relation to the present offences but denied the commission of other alleged offences. The applicant has been in continuous custody since 21 January 2007. 9 While all of the matters were in the Local Court, the applicant's solicitor made representations to the Director of Public Prosecutions requesting the withdrawal of the charges for offences which the applicant denied. He also indicated the charges to which the applicant was willing to enter guilty pleas. 10 The DPP rejected the applicant's representations, and he was committed for trial to the Sydney District Court. The trial was listed to commence on 10 March 2008 but, without the trial commencing, the applicant entered his guilty pleas on 13 March 2008. In the course of the sentencing proceedings the prosecutor accepted that the applicant had been able to negotiate a position more favourable to him than this original offer. The following exchange occurred: "[Applicant's counsel]: The offer was put, the Crown rejected that. The matter then went to trial [as said], there were further discussions and the Crown ultimately made a more generous offer to the accused than the offer that was put by his solicitor at the committal. [Crown]: Your Honour it is conceded that the offer put by the defence prior to committal was in fact better than what was ultimately accepted …" 11 No explanation was provided for the Crown foregoing charges for offences to which the applicant was apparently prepared to plead guilty. The applicant's counsel submitted that the applicant was entitled to a discount of 25% of his sentence on the basis that he had told the prosecutor in the Local Court that he was prepared to plead guilty to certain offences, and it was only because his representations were rejected by the DPP that he was committed for trial. As it happened the DPP then accepted those representations when the matter came on for trial. 12 The applicant has a number of prior convictions for offences under the Crimes Act 1900 ss 112(1) and 113(1). Prior to the present offences, the most recent such offence was dealt with on 11 April 2003 in the Manly Local Court when the applicant was sentenced to the rising of the court. The rationale for that sentence is not clear but it may have been because it was an "historical offence". 13 The applicant was not on conditional liberty at the time he committed the Crimes Act 1900 ss 112(1) and 113(1) offences. 14 The pre-sentence report recorded the applicant's long-standing use of prohibited drugs, stating that he commenced using cannabis at the age of 13 years, and was using it daily by the age of 15 years. From that age he also commenced using amphetamines intravenously, as well as ecstasy. He has also used heroin. The applicant made attempts at rehabilitation but relapsed shortly before his commission of the offences on 11-12 March 2006. 15 Despite the applicant's history of drug-taking, he had maintained a reasonable employment history doing manual work. In 2006 he set up his own business. 16 The author of the pre-sentence report was of the opinion that the applicant was suitable for a moderate level of supervision, and identified "relapse prevention" as the applicant's primary need. 17 The essential matters in the sentencing judge's remarks can be summarised as follows: 1. The Crimes Act 1900 s 188 offences ("the receiving offences") were committed while the applicant was on bail; 2. The premises the subject of the Crimes Act 1900 ss 112(1) and 113(1) offences were in effect commercial premises, and none of the burglaries involved the entry into homes, the taking of domestic possessions, the theft of major items or the taking of substantial sums of money. 3. The burglaries did not reflect real planning or sophistication in their commission; 4. The stolen property received was of no substantial value except for a laptop computer and accessories (valued at $2,150); 5. General and specific deterrence were important considerations on sentence because of the community's anger and indignation at these types of offences, and because the applicant had previously had the benefit of "seemingly minimal sentences." The applicant also was on bail at the time he committed the receiving offences; 6. The matters on the Forms 1 called for a sentence longer than otherwise to be imposed; 7. It was to the credit of the applicant that he admitted the receiving offences; 8. The applicant had not entered his guilty pleas until after the first day his trial had been listed to commence in the District Court; 9. The applicant did not give evidence on sentence and accordingly the sentencing judge relied on the pre-sentence report for the applicant's subjective history. The report disclosed the applicant's early use of, and addiction to, prohibited drugs. Although the applicant's need to fund his drug addiction was identified as the "major contributing factor to his criminal conduct" it was noted that "this constitutes no excuse." 10. It appeared that the applicant had "the ability to operate in a responsible manner when not committing crimes to fund a drug habit." 18 The applicant seeks leave to advance three grounds of appeal. Ground 1: His Honour erred in his application of the totality principle 19 The fundamental complaint under this ground was that because the offences in counts 1, 2, 3 and 4 were all committed at the same premises and within a short time frame the sentences should have been made concurrent. As it happened his Honour imposed a discrete sentence of 12 months fixed term in relation to count 1 and a fully cumulative sentence of 5 years 3 months with a non-parole period of 3 years 3 months in relation to count 2. The sentences for counts 3 and 4 were entirely subsumed in the sentences imposed on counts 1 and 2. The applicant emphasised that by fully accumulating the sentences imposed in relation to counts 1 and 2 his Honour had imposed a total sentence of 6 years 3 months with a non-parole period of 4 years 3 months for the various offences committed at the medical centre on 11-12 March 2006. 20 The applicant's submission has a superficial attraction. However, when the entire circumstances which faced the sentencing judge are appreciated I am not persuaded that apart from the length of the sentence imposed for count 2, which I discuss below in relation to ground 3, error has occurred. The sentencing judge has a wide discretion when determining whether to accumulate sentences R v Hammoud [2000] 118 A Crim R 66 at [23]. The principles to be applied when sentencing for multiple offences were discussed by Ipp JA in R v Weldon [2002] 136 A Crim R 55 at [46]-[48]. The aggregate sentence is to fairly and justly reflect the total criminality of the offender's conduct. Although where the offences charged arise out of one criminal enterprise concurrent sentences may be imposed this is not an inflexible rule see Wilkins (1988) 38 A Crim R 445 see also Cahyadi v R (2007) 168 A Crim R 41. 21 There are often difficulties when a judge is required to sentence for multiple offences. Having determined the appropriate sentence for individual offences the judge is required to consider the extent to which concurrency and cumulation should be provided to ensure that the total sentence is appropriate. Of particular significance in the present case was the need for his Honour to ensure that an appropriate sentence was imposed in respect of count 2 where the multiple matters on the Form 1 had to be considered. Those matters did not share any common elements with the offence on count 2. Being a significant number of offences his Honour was required to impose a heavier sentence for that count and recognise a discrete element of punishment for those offences. The relevant principles when sentencing where matters are incorporated on a Form 1 are discussed in the Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. 22 Although the first four counts related to offences committed in the one building and at about the same time they were separate crimes committed in separate medical suites. Because they were grouped in the one building the repetition of offences was made easier but they were nevertheless separate offences.. By making the penalty for counts 3 and 4 concurrent with the penalty for counts 1 and 2 his Honour appropriately recognised the extent which the total offending on that occasion required separate sentences for each offence. Ground 2: His Honour erred in his application of Crimes (Sentencing Procedure) Act 1999 s 22 23 The applicant entered his plea after extensive negotiations in relation to the many offences with which he had been charged. A plea was previously offered to a number of counts upon the condition that the other counts were not proceeded with. Although the applicant could have entered a plea in the Local Court this did not occur. This was because the applicant chose to pursue negotiations with the prosecution designed to reduce the charges from the total of the charges which the Crown originally proposed to pursue. As it happens the applicant achieved a favourable outcome and pleaded guilty to less counts that he was prepared to admit. 24 This Court has had occasion in recent years to comment upon the provision of a discount to an offender who does not plead guilty at the first available opportunity but enters upon negotiations designed to secure a more favourable position after which a plea is entered. In R v Stambolis [2006] NSWCCA 56 Howie J commented at [11]: "Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity." See also R v SY [2003] NSWCCA 291 at [85-86]. 25 In R v Dib [2003] NSWCCA 117 Hodgson JA at [5] said: "If a plea is entered a long time after a person is first charged, but at a time when a lesser charge is substituted for a greater charge, the advantages to the administration of justice are less, even though the plea may have been made at the earliest opportunity. There is in any event no entitlement to a 25% discount; and the fact that in this situation there are less advantages to the administration of justice can justify a smaller discount." 26 In his remarks on sentence the sentencing judge correctly identified that the plea in the present case was delayed and only entered after the date listed for the hearing of the applicant's trial. His Honour acknowledged that there were negotiations taking place and said that it was "to the credit of the offender that he made admissions with regard to the receiving offences." Beyond these observations his Honour made no reference to whether or not any discount should be extended to the applicant for the utilitarian benefit of his plea. 27 Although this Court has encouraged sentencing judges to identify the discount which has been determined there is no error if this practice is not followed: R v Thomson; R v Houlton [2000] NSWCCA 309 [71]-[72]. However, where the issue is identified but the remarks give no indication that the ultimate sentence reflects the plea the sentences imposed may require careful scrutiny to ensure that the matter has not been overlooked. 28 In the circumstances of the present case any discount for the plea of guilty should have been toward the lower end of the available range. However, his Honour did not identify whether he had provided for a discount and if so, the extent of any reduction. I will again consider this issue under ground 3. Ground 3: The sentence is manifestly excessive. 29 The applicant had a record for similar offences to those for which he was being sentenced. In 2001 he was dealt with for multiple break enter and steal offences. When arrested on the break and enter offences for which he was sentenced in the present case he was granted bail and accordingly the receiving offences were committed while he was on conditional liberty. Although the applicant has a drug habit, which explains his offending his Honour was nevertheless required to give careful consideration to the issues of both specific and general deterrence. 30 Most of the items stolen or received in the various offences were of modest value. However, there were many offences and, having regard to the applicant's previous offending, his Honour was required to impose a sentence which recognised that the applicant had shown a preparedness to repeatedly commit these offences Veen v R (No 2) (1988) 164 CLR 465. 31 The applicant emphasised that the statistics maintained by the Judicial Commission indicate that the sentences imposed on the applicant were at the highest end of the recorded range. However, the statistics to which reference was made related to single offences and did not reflect a sentencing pattern for an offence where multiple other matters were included on a Form 1. The applicant further complained that the total sentence of 6 years 3 months was higher than 99% of all sentences imposed for a single offence. This is not surprising and again there is little relevance in comparing a sentence for a single offence with a total sentence for multiple offences one of which includes offences on a Form 1. 32 With respect to counts 6, 8, 10, 12 and 14 complaint was made that the total sentence for each offence was excessive. Each of those sentences was for a total term of 4 years. They were made concurrent with each other and also entirely concurrent with the combination of sentences imposed in relation to counts 1 and 2. The same sentence, although with a different starting date was provided in relation to counts 3 and 4. However, by reason of the accumulation of the sentences for counts 1 and 2 the sentences for counts 3 and 4 were wholly subsumed. 33 I appreciate that the sentencing judge had a complex task. However, although of no practical consequence, the sentences in respect of counts 6, 8, 10, 12 and 14, which were each offences of receiving involved very modest items and the individual sentences were in my opinion undoubtedly excessive. Although a repetition of offending, each offence was minor and none of them could justify a total sentence of four years. In my opinion a fixed term of six months for each offence to be served concurrently is appropriate. 34 With respect to the sentences for counts 1 and 2 I am satisfied that the sentence imposed for count 1 was appropriate. However, the sentence for count 2 was excessive. Although this is not apparent from his Honour's remarks the explanation for the excess is likely to be that the judge has overlooked the necessity to provide an effective discount for the plea of guilty. Having regard to the applicant's offer to plead at an early date, but recognising that because of the negotiations those pleas were not entered until the date fixed for trial, that discount should be in the order of 15% Giving appropriate recognition to the plea and otherwise giving appropriate consideration to matters of totality the applicant should be resentenced for count 2 to a non-parole period of two years and six months with a total term of four years and six months. The finding of special circumstances by the sentencing judge was appropriate. Orders 1. Leave to appeal granted and appeal upheld in part. 2. Quash the sentence imposed on count 2 and taking into account the matters on the Form 1 for that count sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 January 2008 with a balance of term of 2 years expiring on 20 July 2012. The non-parole period will expire on 20 July 2010 on which day the applicant will be eligible for release on parole. 3 With respect to counts 6, 8, 10, 12 and 14 sentence the applicant to a fixed term of six months imprisonment in relation to each count to be served concurrently commencing on 21 January 2008. 4. Otherwise the appeal is dismissed. 35 BUDDIN J: I agree with McClellan CJ at CL. 36 ROTHMAN J: I agree with McClellan CJ at CL. ********** 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.