New South Wales Court of Criminal Appeal CITATION: Johnson v Regina [2009] NSWCCA 204 HEARING DATE(S): 7 August 2009 JUDGMENT DATE: 25 August 2009 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Hoeben J at 3 Leave to appeal granted. Appeal allowed. DECISION: The sentence passed by his Honour in respect of offence (1) is confirmed. The sentence passed by his Honour in respect of offence (2) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years, commencing 17 January 2007 and expiring 16 January 2010 with a balance of term of 1 year expiring 16 January 2011. The sentence passed by his Honour in respect of offence (3) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing 17 July 2008 and expiring 16 January 2012 with a balance of term of 1 year and 6 months expiring 16 July 2013. His Honour's sentence in respect of offence (4) is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 17 July 2008 and expiring 16 July 2012 with a balance of term of 4 years expiring 16 July 2016. CATCHWORDS: CRIMINAL LAW - sentence - multiple offences of aggravated break enter and steal - whether sentences manifestly excessive - principle of parity - comparison between sentences passed in Children's Court - whether accumulation was appropriate. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Attorney General's Application Number 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Marshall v R [2007] NSWCCA 24 at [34] – [39] Mulato v Regina [2006] NSWCCA 282 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Colgan [1999] NSWCCA 292 R v Govinden [1999] NSWCCA 118 R v Way (2004) 60 NSWLR 168 PARTIES: Richard Johnson - Applicant Regina - Respondent Crown FILE NUMBER(S): CCA 2007/16259012 COUNSEL: Mr P Hogan - Applicant Ms M Cinque - Respondent Crown SOLICITORS: Hanby & Associates - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/11/0353 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 11 July 2008 IN THE COURT OF CRIMINAL APPEAL 2007/16259012 McCLELLAN CJ at CL HOWIE J HOEBEN J Tuesday, 25 August 2009 Richard JOHNSON v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 HOWIE J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence On 11 July 2008 the applicant was sentenced in respect of the following offences by his Honour Judge Marien SC. (1) 21 November 2005 at Abbotsford – Robbery whilst armed with an offensive weapon contrary to s 97(1) Crimes Act 1900 (maximum penalty 20 years imprisonment). (2) 22 November 2005 – Aggravated break enter and steal at the Meadowbank Convenience Store contrary to s 112(2) Crimes Act 1900 (maximum penalty 20 years imprisonment with a non-parole period of 5 years). (3) 9 October 2005 – Aggravated break enter and steal from the vehicle storage area of P & O Ports at Balmain contrary to s112(2) Crimes Act 1900 (maximum penalty 20 years imprisonment with a non-parole period of 5 years). (4) 15 October 2005 – Aggravated break enter and steal at the Meadowbank Tafe contrary to s 112(2) Crimes Act 1900 (maximum penalty 20 years imprisonment with a standard non-parole period of 5 years). 4 His Honour also had before him two Form 1 documents. The first Form 1 contained one charge of aggravated break enter and steal committed 22 September 2005; two charges of maliciously damaging property by means of fire committed 22 September 2005 and 14 October 2005; two charges of steal motor vehicle committed 14 to 15 October 2005 and one charge of possess proceeds of crime committed 2 November 2005. The second Form 1 contained one charge of armed robbery committed 21 November 2005. 5 The applicant had been in custody, bail refused, since the date of his arrest on 17 January 2006. Accordingly, his Honour used that date for the commencement of his sentences. His Honour sentenced the applicant as follows: Offence (1) – armed robbery on 21 November 2005 – a fixed term of imprisonment of 2 years and 3 months, commencing 17 January 2006 and expiring 16 April 2008. His Honour took into account the charge on the second Form 1 in passing that sentence. Offence (2) – aggravated break enter and steal on 22 November 2005 – a fixed term of imprisonment of 3 years commencing 17 January 2007 and expiring 16 January 2010. Offence (3) – aggravated break enter and steal on 9 October 2005 – a fixed term of imprisonment of 3 years and 6 months commencing 17 July 2008 and expiring 16 January 2012. Offence (4) – aggravated break enter and steal at Meadowbank on 15 October 2005 – imprisonment with a non-parole period of 4 years commencing 17 July 2009 and expiring on 16 July 2013 with a balance of term of 4 years expiring 16 July 2017. In passing that sentence, his Honour took into account the charges on the first Form 1. 6 The effect of those sentences is imprisonment for 11 ½ years with a non-parole period of 7 ½ years commencing 17 January 2006 and expiring 16 July 2013. The applicant seeks leave to appeal from those sentences. Background to offences 7 In August 2005 Strike Force Piccadilly was formed by the NSW Police to investigate ATM ram raids and the larceny of high performance vehicles. A group of males, including the applicant, and the persons Mark Leslie, Zachary Obierzinksi, Corey Alford, Mark Surplice, Guy Proietti and Jason McGaughey were suspected of being involved in a series of offences committed between September and November 2005. During the investigation, police obtained warrants to intercept mobile telephones used by the suspects. 8 As to offence (1), at about 9.15pm on 21 November 2005 the applicant entered the Mini-market at Abbotsford with Mr Leslie while the proprietors were watching television in the shop. The applicant held a knife while Mr Leslie demanded money from them. Approximately $200 was taken. 9 As to offence (2), at about 12.20am on 22 November 2005 the applicant, together with Messrs Alford, Leslie and McGaughey used bolt cutters to gain entrance to the front of a convenience store at Meadowbank. A sledgehammer was used to hit the ATM machine which caused the cashbox to fall out. The applicant and the other three offenders left in a vehicle and split the contents of the ATM between them. 10 As to offence (3), at about 8.30pm on 9 October 2005 Obierzinksi, Alford, the applicant and Leslie travelled in Johnson's Mitsubishi Galant to the P & O Wharves in Robert Street, Balmain. At about 9.15pm Obierzinski and another offender cut through a chain-wire fence. All four offenders entered the storage yards. Two offenders got into a Nissan Murano and another got into a Misubishi Pajero. The Pajero was rammed into the fence to create an opening for the Murano to drive through. All offenders then got into the Murano and it was driven to Hamilton Street, North Strathfield. The vehicle stolen was valued at $47,536 and although it was recovered, it required repairs to the value of $15,898. Damage to the value of $4,500 was occasioned to the other vehicle. 11 In respect of offence (4), at about 9.09pm on 14 October 2005 a telephone call was intercepted between Mr Leslie and Mr Obierzinski in which they discussed stealing a van for an "ATM job" they were planning at the Meadowbank Tafe. Motor vehicles were stolen in order to implement the theft. At about 5.30am on 15 October 2005 the applicant, Messrs Obierzinski and Leslie travelled to the Meadowbank Tafe in two stolen vehicles. One of the stolen vehicles was driven through the doors of the cafeteria and rammed the ATM. The ATM was lifted into the rear of the van and driven from the scene. When the ATM was cut open, an amount of $78,000 was obtained. In the commission of this offence more than $75,000 in damage was caused. Subjective matters 12 The applicant was born on 13 June 1986. He was 19 at the time of these offences and was 22 at the time of sentence. He gave evidence in the sentencing proceedings. His Honour also had before him a presentence report, dated 11 December 2007, and a report of a psychologist, Mr Taylor, dated 12 January 2008. 13 The applicant's parents separated when he was about 12 years of age. The applicant went to live with his father because his mother was using drugs. The applicant became very close to his grandmother who died about 6 months before the commission of the offences. The applicant told Mr Taylor that he had resorted to drugs to mask his grief and pain and that he started to mix with drug people. 14 The applicant left school in Year 9 when he was 15 years of age. He was able to complete the higher school certificate at Tafe and described himself as an above average student. While in custody he completed a personal training course and completed certificates 1 and 2 at Tafe. Before being taken into custody, the applicant had worked as a labourer from the age of 16 and had performed that work usually on a casual basis. 15 In relation to drug and alcohol issues, the applicant told Mr Taylor that he commenced to consume alcohol and cannabis with friends at the age of 12. At age 15 he used cannabis on a daily basis for about a year. About 6 months before his arrest, the applicant began to drink frequently and often became intoxicated. The applicant occasionally used ecstasy, cocaine and amphetamines. The applicant told Mr Taylor that in the six months before his arrest he began to use the drug "ice" several times per day. The applicant told the probation officer that at the time of his arrest he was using about $380 of "ice" per day. 16 In relation to the offences the applicant told Mr Taylor that he received $8000 from the first offence and that this fed his drug habit for a while. Mr Taylor stated that the applicant expressed remorse for his offending behaviour. In relation to recidivism the applicant told Mr Taylor that if he gave up drugs he would not re-offend. He said that he would like to participate in the Ex-Inmate Program when he was released as he would like to seek drug and alcohol relapse prevention counselling, as well as ongoing support. The applicant said that he had the support of his father and was hopeful of developing a career in the personal fitness industry in the future. 17 Mr Taylor concluded that the applicant had been raised in a dysfunctional early family environment. His parents frequently argued and his mother was a drug addict and had been in gaol. Mr Taylor said that the applicant's early family environment was as a result, rather antisocial and this would have influenced his emotional and psychological development. Mr Taylor said that consistent with the applicant's early history of substance abuse and rebelliousness he began to commit criminal offences while intoxicated and under the influence of friends. 18 Mr Taylor assessed the applicant's expressions of remorse as genuine and thought that the applicant appeared to accept responsibility for his actions. Mr Taylor assessed the applicant as having a low to moderate risk of recidivism, although he believed his potential to re-offend would be within the moderate to high range if he did not resolve his substance abuse and did not remove himself from the drug culture. 19 In his evidence before his Honour, the applicant said that during the 2 months of his offending his addiction was out of control. He said that his drug use had escalated after the death of his grandmother. He said that at the time that he committed the offences, he did not know how serious the crimes were and that he did not know how the legal system worked. In relation to those matters, his Honour did not accept that the applicant did not understand the seriousness of the offences, particularly those involving ram raids such as that at the Meadowbank Tafe. 20 The applicant said that upon his release he would fully co-operate with the Probation and Parole Service and participate in any drug and alcohol program that he was required to attend. He said that he would live with his father upon his release. Remarks on sentence 21 His Honour expressed some sympathy for the applicant because of his dysfunctional upbringing and because of the grief he experienced upon the death of his grandmother. Nevertheless, his Honour was not prepared to conclude that those matters and his associated illicit drug use called for any significant mitigation of sentence. He did, however, conclude that the subjective case of the applicant by way of background was somewhat more compelling than that of Mr Leslie. In that regard his Honour took into account the applicant's age, the time of the offending and that the applicant did not have a significant criminal record. His Honour noted that the applicant did not have the advantage of a fully supportive upbringing by his parents. In those circumstances, his Honour indicated his intention to sentence the applicant on the basis that he had no significant record of previous convictions. 22 His Honour found that the applicant had not pleaded guilty to the offences at the first reasonable opportunity, but on the day fixed for the hearing of the matters. Nevertheless, his Honour accepted that the pleas had considerable utilitarian value and applied a discount of 15 percent. 23 His Honour referred to the principles associated with taking into account matters on the Forms 1, as set out in Attorney General's Application Number 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. His Honour appreciated that the principal focus throughout must remain on sentencing for the primary offence. His Honour also took into account that he had to award an appropriate sentence in respect of each offence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610. 24 In relation to totality, his Honour noted that a number of very serious offences had been committed over a 2 month period. He noted that the applicant was to be sentenced for three aggravated break enter and steal offences contrary to s 112(2) of the Crimes Act 1900 which had been committed during that period. Each of those offences attracted a standard non-parole period of 5 years imprisonment. 25 His Honour noted that although pleas of guilty had been entered in respect of those three offences, R v Way (2004) 60 NSWLR 168 required that the standard non-parole period still had to be considered as a reference point benchmark or guidepost when sentencing for those offences. 26 His Honour assessed the s 112(2) offence at the Meadowbank Tafe on 15 October 2005 (offence (4)) at a midpoint between the midrange and the high range of objective seriousness for such an offence. He reached that conclusion because of the substantial sum of money stolen and the high degree of planning involved in the commission of the offence. His Honour also had regard to the substantial amount of property damage which was caused in the commission of the offence, i.e. $75,000. 27 In relation to the s 112(2) offence at the Meadowbank Convenience Store on 22 November 2005 (offence (2)), his Honour assessed that at just below the midrange of objective seriousness for such an offence. In reaching that conclusion his Honour took into account that $3,000 was stolen and relatively little property damage was caused. 28 His Honour assessed the seriousness of the offence of 9 October 2005 at the P & O Wharf at Balmain (offence (3)) at the midrange of objective seriousness. His Honour reached that conclusion because of the value of the vehicle stolen ($47,536), the extent of the damage to it ($15,898) and also the damage to the other vehicle of $4,500. 29 His Honour took into account that the applicant's co-offenders (except for Mr Leslie) had been sentenced by another judge of the Court on a previous occasion. His Honour gave careful attention to the principle of parity and in particular the different subjective cases of all of the offenders and the objective seriousness of each of the offences. His Honour noted that some of the co-offenders had been dealt with in the Children's Court. Despite that fact his Honour understood that he should still have some regard to their sentences. 30 Counsel for the applicant stressed that he was a young man 19 years of age at the time of the offences. Counsel submitted that the applicant's age and lack of any significant matters on his record indicated that he had favourable prospects of rehabilitation. Counsel referred to the applicant's very favourable progress while in custody. Counsel submitted that the principle of totality must play an important part in his Honour's sentencing exercise. 31 His Honour accepted that the applicant had committed himself to every opportunity for rehabilitation with respect of his drug and alcohol problems. His Honour said that he was optimistic with respect to the applicant's future prospects of rehabilitation. 32 His Honour found special circumstances warranting a variation in the statutory ratio between the total sentence and non-parole period on the basis that this was the applicant's first custodial sentence. His Honour took into account that some of the sentences would be partially accumulated, which also warranted a variation in the statutory ratio. Finally, his Honour found that the applicant would require an extended period of intense supervision by the Probation and Parole Service when he returned to the community after serving his sentence. 33 His Honour then reviewed the serious nature of the offences and the various purposes of punishment. His Honour had regard to the necessity for general deterrence and for specific deterrence. His Honour took into account the need for the community to be protected from such conduct. Finally, his Honour took into account the need for the sentences to reflect appropriate retribution and punishment for the seriousness of the offences. 34 Keeping in mind the complexity of the sentencing exercise his Honour concluded: "I must consider what is an appropriate sentence for each discrete matter but then stand back and determine what is the totality of the criminality over the period of the offending …" Appeal Ground 1 – The sentences are manifestly excessive 35 The applicant submitted that his Honour had erred in law in the way he had assessed the objective seriousness of the three s 112(2) offences. The applicant submitted that the circumstance of aggravation in each offence was the fact that the offences had been committed in company. The "serious indictable offence" in each case was larceny. The applicant submitted that when one looked at the other circumstances of aggravation provided for by s 105A, the circumstances of aggravation in these offences should be correctly characterised as the least serious of all of the defined circumstances. 36 The applicant relied on R v Way (2004) 60 NSWLR 168 at [48] where the Court agreed that "stealing is one of the lesser indictable offences encompassed by s 112; that the aggravating feature of being in company is one of the least aggravating of the features encompassed by the definition "circumstances of aggravation" in s 105 of the Crimes Act." The applicant also relied upon the observations of Howie J in Marshall v R [2007] NSWCCA 24 at [34] – [39]. 37 The difficulty with this submission is that it challenges an exercise of discretion by the trial judge on an issue where minds may properly differ. In reaching his conclusion as to the objective seriousness of the three offences, his Honour referred to the relevant principles and correctly applied them. His finding on this issue was well open to him and error has not been demonstrated. 38 This Court will not normally interfere with a sentencing judge's findings in respect of the objective seriousness of an offence: Mulato v Regina [2006] NSWCCA 282. In that case Spigelman CJ said: "[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open …" 39 This ground of appeal has not been made out. Ground 2 – The extent to which the sentences were accumulated was excessive. 40 The applicant submitted that while some accumulation was required, consistent with Pearce v The Queen, the extent of the accumulation was inappropriate in the light of the findings made by his Honour as to the applicant's age, previous good record, the very short period during which the offences were committed and the applicant's prospects of rehabilitation. 41 The question of the extent to which sentences should be accumulated and made concurrent is always a difficult one. The nature of the difficulty was set out by Howie J in Marshall v R at [27] as follows: "I accept that the decision whether to make sentences concurrent or cumulative, and to what degree, is discretionary: R v Hammoud (2000) 118 A Crim R 66. But generally speaking that discretion is informed by the principle of totality: R v MMK [2006] NSWCCA 272. The fact that the offences have common factors or may be seen as part of the one course of criminal conduct is not decisive. In Cahyadi v R [2007] NSWCCA 1 the exercise of the discretion was explained as follows: "27 ….. there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both…"" 42 It seems to me that there is some force in the applicant's submission. His age is an important consideration and separates him from Leslie, as does the absence of any serious prior offending. At 19 the applicant is a young man at the threshold of his life, who as a result of two months of criminality, has received a sentence of 11 ½ years of imprisonment. Despite the undoubted seriousness of the offences, I am persuaded that in accordance with what Howie J said in R v Marshall sufficient allowance has not been made for the overlapping features of these offences and that the principle of totality has not been properly followed. This is particularly so when one takes into account the applicant's age and the absence of serious prior offending. 43 In order to have proper regard to these matters, some greater concurrency should be built into the sentences passed by his Honour. I propose to do this by adjusting the start and finishing dates for the sentence passed in respect of offence (4). Accordingly, this ground of appeal has been made out. Ground 3 – The disparity between the sentences imposed on the applicant and the sentences imposed on the co-offenders is such as to result in a justifiable sense of grievance on the part of the applicant. 44 The applicant submitted that he had a justifiable sense of grievance when the sentences passed on him are compared with those passed by Judge Norrish in respect of the offender Corey Alford. Alford was 18 at the time of the offences, he was part of the same group that was subject to the Strike Force Piccadilly investigation and participated in a similar number of armed robberies and aggravated break enter and steals as the applicant. Although sentenced as an adult, the level of accumulation of his sentences was much less than that of the applicant so that he became eligible for parole after serving only 2 years and 6 months of imprisonment. 45 The comparison with Alford is not appropriate. He received a total discount for an early plea of guilty and assistance of 65 percent. Moreover, when a comparison is made between the offences for which the applicant was sentenced and those for which Alford was sentenced, the only offence which they had in common was offence (2), i.e. the aggravated break enter and steal at the Meadowbank Convenience Store on 22 November 2005. 46 While I readily agree that there are considerable problems with the sentence passed on Alford, with particular reference to its adequacy and the extent of the discount given to him, those matters do not assist the applicant. A comparison of the offences for which Alford was sentenced with those for which the applicant was sentenced, is not a comparison of like with like. Accordingly, the parity principle does not apply. 47 The applicant submitted that he had a justifiable sense of grievance when the sentence which he received is compared with that passed on Zachary Obierzinski. While conceding that Obierzinski was sentenced in the Children's Court and that he suffered from some mental impairment, the applicant submitted that the discrepancy between the sentences was so great as to activate the parity principle in his favour. 48 The applicant submitted that at the time of his offending Obierzinski was 17 so that their age difference was only 2 years. Obierzinski had been involved in offences (3) and (4) with the applicant. In respect of those offences Obierzinski had been sentenced to a 2 year control order with a non-parole period of 6 months, both sentences to be served concurrently. 49 While the age difference between Obierzinski and the applicant is not great, it is important. As a matter of law the applicant was sentenced as an adult and Obierzinski as a child. The Children's Court has different sentencing objectives and takes into account different considerations when passing sentence. This very significant difference cannot be ignored when making comparisons between sentences. It limits the value of any comparison with a sentence passed by the Children's Court. In most cases it is not a comparison of like with like. 50 Cases such as R v Govinden [1999] NSWCCA 118 and R v Colgan [1999] NSWCCA 292 state that parity principles are not normally relevant to offenders who are dealt with under different regimes, but that sentences imposed on those dealt with in the Children's Court are not for that reason entirely irrelevant. Nevertheless, those decisions make it clear that considerable care has to be exercised when comparing sentences passed under different regimes. 51 Leaving aside that consideration, there remain significant differences between the situation of the applicant and that of Obierzinski. Obierzinski did not have serious matters included on Forms 1 to be taken into account. His subjective case was also different in that he had suffered brain injury as a result of a motor vehicle accident, leaving him with an ongoing mental impairment. This was an important consideration in mitigation of his offending when he came to be sentenced in the Children's Court. 52 I am not satisfied that the applicant has a justifiable sense of grievance when comparing his sentence with that passed in respect of Obierzinski. Accordingly this ground of appeal is not made out. Conclusion 53 As indicated, I propose to make an adjustment to the accumulation of the applicant's sentences as a result of being satisfied that Ground of Appeal 2 has been made out. This will result in the applicant receiving a total sentence of imprisonment of 10 ½ years with a non-parole period of 6 ½ years. 54 It is also necessary to re-sentence the applicant in respect of offences (2) and (3), because his Honour failed to comply with s 45 of the Crimes (Sentencing Procedure) Act 1999 in that his Honour imposed fixed terms of imprisonment and did not set a non-parole period. 55 The orders which I propose are as follows: (1) Leave to appeal granted. (2) Appeal allowed. (3) The sentence passed by his Honour in respect of offence (1) is confirmed. (4) The sentence passed by his Honour in respect of offence (2) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years, commencing 17 January 2007 and expiring 16 January 2010 with a balance of term of 1 year expiring 16 January 2011. (5) The sentence passed by his Honour in respect of offence (3) is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing 17 July 2008 and expiring 16 January 2012 with a balance of term of 1 year and 6 months expiring 16 July 2013. (6) His Honour's sentence in respect of offence (4) is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 4 years commencing 17 July 2008 and expiring 16 July 2012 with a balance of term of 4 years expiring 16 July 2016. ********** 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. 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