New South Wales Court of Criminal Appeal CITATION: Mapp v Regina [2010] NSWCCA 269 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11/11/10 JUDGMENT DATE: 9 December 2010 JUDGMENT OF: Simpson J at 1; Kirby J at 16; Latham J at 73 1. Leave to appeal granted. 2. Appeal allowed in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008). 3. The sentences in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008) quashed and, in lieu thereof, the applicant sentenced as follows: DECISION: In respect of Charge 1 (CAN 020), including the offences on the Form 1, to a non parole period of 4 years 3 months from 10.12.10 until 9.3.15, with an additional term of 3 years expiring on 9.3.18. In respect of Charge 2 (CAN 004): The applicant is sentenced to imprisonment with a non parole period of 3 years from 10.3.10 to 9.3.13, with an additional term of 1 year 6 months expiring on 9.9.14. In respect of Count 1: To a fixed term of imprisonment of 2 years from 10.6.09 until 9.6.11. 4. All other sentences are confirmed. CATCHWORDS: CRIMINAL LAW - aggravated break enter and steal - varous offences of theft and dishonesty - multiple Form 1 matters - appeal against sentence - whether sentence manifestly excessive - standard non parole period - whether mid range offences - accumulation - delayed commencement because parole revoked - totality - finding of special circumstances - relative youth of the offender - borderline intellectually disabled. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Georgopoulos v R [2010] NSWCCA 246 R v Pickett [2010] NSWCCA 273 Re Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Kafovalu v R [2007] NSWCCA 141 R v Van Rysewyk [2008] NSWCCA 130 R v Fernando (1992) 76 A Crim R 58 House v The King (1936) 55 CLR 499 CASES CITED : R v Mougin [2005] NSWCCA 146 R v Andrews [2005] NSWCCA 199 R v Bellamy [2005] NSWCCA 329 Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 R v MAK; R v MSK [2006] NSWCCA 381; (2007) 167 A Crim R 159 R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 R v Walker [2004] NSWCCA 230 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 271 Cicekdag v R [2007] NSWCCA 218 PARTIES: James Fredrick Mapp (App) Regina (Resp/Crown) FILE NUMBER(S): CCA 2009/8216 COUNSEL: C Loukas (App) V Lydiard (Resp/Crown) SOLICITORS: Aboriginal Legal Service (App) S Kavanagh (Resp/Crown) LOWER COURT JURISDICTION: District Court LOWER COURT JUDICIAL OFFICER: Frearson DCJ LOWER COURT DATE OF DECISION: 16/10/09 Revised IN THE COURT OF CRIMINAL APPEAL 2009/8216 SIMPSON J KIRBY J LATHAM J Thursday 9 December 2010 James Fredrick MAPP v REGINA Judgment 1 SIMPSON J: I have read in draft the judgments of both Kirby J and Latham J. It is unnecessary to restate the facts and circumstances. 2 I agree with Latham J that it was erroneous for the judge to take into account, as he did, on the evaluation of objective gravity, the applicant's personal circumstances. They were, of course, relevant in the ultimate determination of sentence, in respect of which both objective gravity and personal factors must be given appropriate weight. Accordingly, although I express my agreement with her Honour's observations, I doubt that the error had any operative effect. 3 Indeed, his Honour went on to find the Mosman offence (referred to in the judgment of Kirby J as "Charge 1 – CAN 020") to be a mid-range offence in terms of objective gravity, although he added that, were it not for the applicant's level of intellectual functioning, he would have found it in the "upper mid-range". 4 His Honour found the Vaucluse offence (referred to in the judgment of Kirby J as "Charge 2 – CAN 004") to be in the lower end of mid-range seriousness. No doubt this was because of the relatively small amount of property the subject of the charge – a glass jar containing coins and car keys. (The very valuable Porsche motor vehicle was the subject of a separate charge (Charge 3 – CAN 005).) 5 Although, for myself, I would, in assessing the objective gravity of each of these offences, have given more weight to the fact that the applicant broke into private residences during the night, while the owners were present, it is not suggested that those assessments were not open to his Honour. Thus, while I would join with Latham J in sounding a caution against incorporating personal circumstances of an offender into the assessment of objective gravity, I do not think, in this case, that error in any practical sense has resulted from his Honour's remarks. As I said, it was entirely appropriate for his Honour to attribute significant weight to the personal circumstances, when he came to determining sentence. 6 I would make this additional observation. Errors of this kind are the direct result of the increasing complexity that attends sentencing. Section 21A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") identifies "aggravating" and "mitigating" factors that a judge is obliged to take into account, where relevant. Item by item, these are the basis of repeated, and often arid argument in this Court. It can sometimes be seen that technical error, such as the present, is made, but with no perceptible impact on the outcome. 7 Moreover, the introduction of Pt 4 Div 1A into the Sentencing Procedure Act has added a new complication, in that, where a standard non-parole period is applicable, a sentencing judge is obliged to identify where on the scale of objective gravity a particular offence sits. This is not so in respect of offences to which Div 1A does not apply, in which case the judge is required to give consideration to objective gravity, but in the overall context of that and personal circumstances: Georgopoulos v R [2010] NSWCCA 246 at [30]-[32]; R v Pickett [2010] NSWCCA 273 at [47]. 8 This complexity casts an undue burden on sentencing judges, whose task, in the end, is to impose sentences appropriate in the circumstances, that properly reflect both the objective gravity of the offences under consideration, and any "ameliorating" factors, which might be factors that mitigate the objective gravity or might call for leniency by reason of circumstances personal to the offender. 9 The next matter on which I wish to comment neatly illustrates the point just made. Both the sentencing judge and Latham J refer to the decision of this Court reported as Re Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act. R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 ("Ponfield") 10 Ponfield is, in my respectful opinion, of limited utility. Although that matter came before the Court by way of an application by the Attorney General for sentencing guidelines in respect of offences against s 112(1) of the Crimes Act 1900, the Court declined to specify a numerical guideline, instead listing factors that "enhanced" ("aggravated") the seriousness of an offence against s 112(1). This was, in my view, little (if anything) more than a statement of the general sentencing principles that applied at the time. Ponfield was decided before the insertion into the Sentencing Procedure Act of s 21A, which, in statutory form, and somewhat more comprehensively, does the same thing (with general application to all offences, not only offences against s 112(1)). In my opinion, therefore, Ponfield has been largely overtaken by statute. 11 The reason I say that this illustrates the point made earlier concerning the difficulties confronting sentencing judges is the inclusion in the Ponfield list of the first of the "enhancing" ("aggravating") factors – that the offence was committed while the offender was on conditional liberty. It is now recognised (since the advent of Pt 4 Div 1A) that that circumstance is not relevant to the assessment of objective gravity: R v Way [2004] NSWCCA 131; 60 NSWLR 168; Kafovalu v R [2007] NSWCCA 141 at [23]-[27]; R v Van Rysewyk [2008] NSWCCA 130 at [25]. 12 I return to the present exercise. It was necessary for the sentencing judge to consider, in respect of charges 1 and 2, the standard non-parole period (5 years). In each case, because the applicant pleaded guilty, the standard non-parole period did not strictly apply: Way at [68]. In combination with the fact that each offence was found to be at or at the lower end of the mid-range of objective gravity, it would be expected that departure from the standard non-parole period would be downwards. But, in respect of charge 1, such departure as would otherwise have been warranted had to be measured against the offences taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act. The applicant admitted to no less than 29 such offences. In those circumstances, the sentence of 7 years and 4 months with a non-parole period of 4 years and 10 months, in my view, could hardly be said to be manifestly excessive. 13 In respect of charge 2, the approach I take is this. The standard non-parole period is 5 years. Given the plea of guilty, and that, in respect of that offence, the sentencing judge allowed a reduction for the utilitarian value of the plea of 25 per cent, a sentence with a non-parole period of 3 years and 9 months would have been appropriate; however, because that offence was held to be at the lower end of mid-range gravity, a (slight) further reduction was appropriate. 14 For my part, I would have considered that a further 4 months reduction would be adequate (resulting in a non-parole period of 3 years and 5 months), even generous, but having regard to the competing views of Kirby J and Latham J (Kirby J would impose a non-parole period of 3 years, Latham J would retain the sentencing judge's non-parole period of 4 years), I am prepared to agree with the sentence proposed by Kirby J, of a non-parole period of 3 years, with an additional term of 1 year and 6 months. I add that I do not agree with Latham J that this was a case where the sentence ought not to be ameliorated to any significant extent by the applicant's personal circumstances. The evidence showed that the applicant's circumstances, history and background came classically within the pattern identified by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58. This, in my view, did entitle the applicant to a significant measure of leniency. That leniency, however, had to be weighed against the applicant's considerable criminal history. 15 It follows from what I have said that I would come to a conclusion slightly different from that of either Kirby J or Latham J. Since I perceive no utility in taking that course, and this matter must be resolved, with some misgivings, I agree with the orders proposed by Kirby J. 16 KIRBY J: James Fredrick Mapp (the applicant) seeks leave to appeal against sentences imposed on 16 October 2009 by Frearson DCJ. The applicant pleaded guilty to nine offences identified on Court Attendance Notices ("CAN") and one count on an Indictment. He also asked the sentencing Judge, when sentencing on the first charge, to take account of 29 offences on a form 1. 17 The charges faced by the applicant may be summarised as follows, abbreviating the CAN reference number and, for ease of reference, providing a charge number in respect of each charge: Charge 1: (CAN 020) That on 1 August 2008 he broke entered and stole from premises, in circumstances of aggravation, namely knowing there was a person or persons inside, contrary to s 112(2) Crimes Act 1900 ("the Act") (Maximum penalty: 20 years imprisonment: standard non parole period: 5 years). (Form 1): 29 offences, namely: Take and drive conveyance x 3 Larceny x 6 Malicious damage x 3 Goods in custody x 5 Break, enter and steal x 1 Unauthorised entry of a motor vehicle x 3 Dishonestly obtain property by deception x 6 Possess ammunition x 2. Charge 2: (CAN 004) That between 10 and 11 August 2008, he broke entered and stole from premises in circumstances of aggravation, namely knowing there is a person or persons inside, contrary to s112(2) of the Act. Charge 3: (CAN 005) That between 10 and 11 August 2008, he was guilty of taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) of the Act. (Maximum penalty: 5 years imprisonment.) Charge 4: (CAN 006) That on 11 August 2008, he attempted dishonestly to obtain a valuable thing by deception, contrary to s 178BA(1) and s 344A(1) of the Act. (Maximum penalty: 5 years imprisonment). Charge 5: (CAN 007) That on 11 August 2008, he attempted dishonestly to obtain a valuable thing by deception, contrary to s 178BA(1) and s 344A(1) of the Act. Charge 6: (CAN 033) That between 11 and 12 August 2008, he was carried in a conveyance taken without the consent of the owner, contrary to s 154A(1)(a) of the Act. Charge 7: (CAN 009) That on 16 August 2008, he resisted a police officer in the execution of his duty, contrary to s 58 of the Act. (Maximum penalty: 5 years imprisonment). Charge 8: (CAN 010) That on 16 August 2008, he resisted a police officer in the execution of his duty, contrary to s 58 of the Act. Charge 9: (CAN 032) That on 16 August 2008, he received stolen property, contrary to s 189 of the Act. (Maximum penalty: 3 years imprisonment). Count 1 : (CAN 008) That on 16 August 2008, he broke, entered and stole from premises, contrary to s 112(1) of the Act. (Maximum penalty: 14 years imprisonment). 18 Having heard submissions, his Honour imposed the following sentences in respect of each charge: Charge 1: Taking account of the matters on the Form 1, a non parole period of 4 years 10 months (10.12.12 to 9.10.17), with an additional term of 2 years 6 months to expire on 9.4.20. Charge 2: A non parole period of 4 years to commence on 10.6.10 until 9.6.14, with an additional term of 16 months to expire on 9.10.15. Charge 3: A fixed term of 12 months imprisonment to commence on 10.12.13 and expire on 9.12.14. Charges 4 & 5: On both charges, a fixed term of 12 months imprisonment to commence on 10.12.13 and expire on 9.12.14. Charge 6: A fixed term of 10 months imprisonment to commence on 10.12.13 and expire on 9.10.14. Charges 7 & 8: On both charges, a fixed term of 12 months imprisonment to commence on 10.3.09 and expire on 9.3.10. Charge 9: A fixed term of 8 months imprisonment to commence on 10.3.09 and expire on 9.11.09. Count 1: A fixed term of 3 years imprisonment to commence on 10.6.09 and expire on 9.6.12. 19 The aggregate sentence was imprisonment for 11 years 1 month, with a non parole period of 8 years 7 months. 20 The notice seeking leave to appeal identified one ground, namely, that the sentences imposed were manifestly excessive. 21 Let me first describe the circumstances in which the offences were committed and the subjective case presented on behalf of the applicant. The offences. 22 The offence in Charge 1 (CAN 020) was that of aggravated break enter and steal. Shortly after midnight on 1 August 2008, the applicant gained access to a Mosman home through an open garage. The door to the home was closed, but unlocked. Once in the home, he entered the occupant's bedroom and stole a handbag. Within the handbag was a small amount of cash ($25), a mobile phone, a number of credit cards and other personal items. The occupants became aware of his presence and he was chased from the house. 23 Ultimately, on 20 August 2008, the police acting on information, searched the hotel room occupied by the applicant and his girlfriend. They found a backpack. Inside the backpack were various personal items from the handbag stolen at the Mosman home. In September 2008, the police identified the right thumbprint of the applicant on a timber box within the garage of the Mosman home. Mr Mapp was ultimately arrested on 25 August 2008. 24 The offences on the Form 1 were, as his Honour remarked, serious. In his remarks on sentence, his Honour said this: (ROS p 2) "The Form 1 matters in their own right are serious matters and one can see that when looking at the collective penalties that they involve a great deal of criminality and indeed if dealt with otherwise they would attract maximum sentences totalling over a hundred years and they are all committed in breach of parole. The combination of the deterrence and retribution aspects would result in necessarily a significant increase in the sentence for the principal offence." 25 The offences on the Form 1 revealed significant criminality. On the one day (3 to 8), the applicant broke into three vehicles (the offences of malicious damage) by smashing the window of each vehicle and stealing from one car a GPS system and camera valued at $1,000, from another an I-Pod and two bottles of men's fragrance and from another, a laptop computer. Numbers 22 to 28 on the Form 1 involved additional offences committed within the same span of time (1.8.08 to 16.8.08) covered by the charges upon which he was sentenced. 26 Charge 2 (CAN 004) was a further offence of aggravated break enter and steal. On 10 August 2008, the owners of a house in Vaucluse went to bed at about 11.30 pm, having locked the house. During the night, one of the occupants was woken up by a noise. She went from the bedroom to the kitchen to investigate. She found the back door was unlocked. She relocked the door and went back to bed. The following morning she discovered that the power had been switched off. Three of her husband's credit cards were missing, as well as his car, a Porsche 911 (Charge 3: CAN 005) which had been purchased three months earlier for $220,000. The applicant's fingerprints were found on the rear glass door. 27 Charges 4 (CAN 006) and 5 (CAN 007) concerned attempts by the applicant to use the stolen credit cards, without success. On 11 August 2008, at 11.26 am (Charge 4) the applicant entered a cut price tobacco shop in Marrickville and attempted to purchase cigarettes. Approximately ten minutes later (11.41 am) (Charge 5) he entered a 711 store in Marrickville, again to purchase a packet of cigarettes. On each occasion he was filmed on CCTV, wearing distinctive clothing. When later interviewed by the police, he acknowledged that he was the male depicted in each case in the CCTV footage. 28 Charge 6 (CAN 033) concerned the taking of a Mazda motor vehicle from Rose Bay some time after 10.30 pm on 11 August 2008. The owner discovered the vehicle was missing at 6.15 the following morning. The keys to the car were also missing. The vehicle was recovered three days later outside the house of the applicant's sister in Bondi. 29 Charges 7 (CAN 009) and 8 (CAN 010) were both charges of resisting an officer in the execution of his duty. On 16 August 2008, uniformed police went to Moore Park Road, where the applicant was living in a hotel, with a view to arresting him. They in fact saw him in Moore Park Road. He was informed that he was under arrest. He then said: "I'm out of here" and ran towards Oxford Street, Paddington. 30 The uniformed police made their way to the Paddington Markets. They saw an off-duty superintendent and told him what had happened. A short time later the applicant appeared in the markets. The superintendent approached him and told him he was under arrest. He broke free and ran away. 31 Charge 9 (CAN 032) was a charge of receiving stolen property. The property included two passports, driving licences, credit cards and other items. It was found by police on 16 August 2008 during a search of the applicant's hotel room. The stolen items were owned by a family who lived in Paddington. Having gone to bed on Friday 15 August 2008, they later found the back door wide open at 4.20 am and property missing. 32 Count 1 on the indictment also concerned an offence committed on 16 August 2008. As mentioned, the applicant and his girlfriend were staying in a hotel in Moore Park Road, Paddington. The agreed statement of facts described the offence in these words: "On 16 August 2008 the offender and his girlfriend Layne Brown were staying in Room 23, Olympic Hotel, 308 Moore Park Road, Paddington, NSW. At about 2.30 am the offender entered the ground floor foyer area of the hotel and approached a set of bi-fold doors leading to the bistro area, which he forced open. He then approached the bar area and removed two bottles of French champagne, a bottle of Hennessey brandy, and a bottle of Galliano Black liqueur. He left the area the same way he entered. The licensee of the Hotel, Troy Barnett, began his shift a few hours later and noticed that the alcohol taken by the offender was missing from the shelves. He reviewed the Hotel's CCTV footage. At about 11.00 am that day, he knocked on the door of room 23 and spoke to Layne Brown. He saw two bottles of identical French champagne to that taken by the offender sitting on a table in the room. At that point the offender approached the room. Mr Barnett accused the offender of earlier stealing the alcohol from the bar. The offender became aggressive and consequently Mr Barnett called the 000 number. The accused fled from the hotel. Ms Brown consented to Police entering room 23 where they located a bottle of Hennessy brandy and a bottle of Galliano Black liqueur, along with other property." The subjective case. 33 The applicant was born in late October 1986. At the time of these offences he was 21 years old. He did not give evidence. His sister, who was some years older, did provide a brief description of their difficult early life. A report from a psychologist, Mr Peter Champion, was also tendered. It was dated 19 August 2005 and had been prepared in the context of a charge of "aggravated break-out of a dwelling house after committing a serious indictable offence", which was dealt with by the District Court on 29 November 2005, a few months after the applicant had turned 18 years. I will later refer to that offence. 34 The applicant's early life was chaotic and violent. His mother was described as being of Aboriginal descent. She was said to be an alcoholic, a drug addict and abusive. At one point she set fire to their house. The father was described as also violent. Whilst they were children he was in gaol for unspecified offences. DOCS intervened when the applicant was very young. He and his sister were made wards of the State. They were then looked after by a foster mother. 35 From an early age, the applicant abused drugs. He gave the following account to Mr Peter Champion: (report p 4) "18. Mr Mapp reported that he had first used cannabis at about age 8, and when reaching teenage was using this substance on a daily basis, usage reported to be in the vicinity of 50 cones (or even more) a day, that level of abuse reportedly being current at the time of his arrest. He spoke of regular amphetamine use from age 13, also abusing Ecstasy and "Ice" from that time; he adding cocaine in 2004 or thereabouts. He acknowledged periodic benzodiazepine abuse, and occasional heroin use. He spoke of alcohol use from primary school age, with a pattern of abuse developing, which was daily (to the point of intoxication) in the period prior to his arrest. He denied any history of using hallucinogens, and denied any history of inhaling volatile toxins (petrol, glue etc)." 36 The applicant has never undergone rehabilitation in respect of his drug taking. He reported psychotic symptoms to the psychologist, who thought they were probably related to the drugs he was then taking. He did not, in 2005, present as suffering from a psychotic condition (report p 3). Mr Champion administered a number of tests. His conclusion was in these terms: (report p 2) "9. In sum, Mr Mapp demonstrates a significant level of intellectual limitation, his score notionally placing him in the lowest 10% or so; though on the present testing his results were just above the level where a formal diagnosis of mild developmental disability could be made. ..." 37 The psychologist reported a history of childhood/adolescent conduct disorder. In respect of that disorder, Mr Champion said this: (report p 4) "16. ... This conduct disorder is probably secondary to intellectual limitation, ADD, familial dysfunction, the experience of physical and emotional abuse, and then increasing polysubstance abuse with dependency. ..." 38 As a child, the applicant required special education. He emerged with "survival literacy". When he attempted work as an apprentice spray painter and panel beater, he found the TAFE component difficult. He expressed the hope that at some point he would return to the motor trade. 39 It is unsurprising with this background that the applicant began offending at an early age. He was repeatedly brought before the Children's Court between the age of 15 and 18 years for many offences, some serious. At the age of 15, he faced charges of robbery when armed with an offensive weapon and aggravated break enter and steal. An order for probation was made. In the following year (2003), the applicant was dealt with for aggravated robbery and robbery in company. A control order was made requiring supervision by the Department of Juvenile Justice. In the same year, he was admitted to a psychiatric unit after a failed suicide attempt. He had doused himself with kerosene. 40 On 4 February 2005, the applicant committed the offence to which reference has been made, aggravated break-out of a dwelling after committing a serious indictable offence. He was ultimately sentenced in the District Court on 29 November 2005 to 4 years imprisonment (4.2.05 to 3.2.09), with a non parole period of 1 year. The sentence was the first the applicant had served in an adult gaol. Having been released, he committed further offences and was sentenced on 8 December 2005 for larceny and affray to fixed terms of 6 months, concurrent. 41 In addition , he was sentenced to serious driving offences on 19 December 2006 and one count of break enter and steal on 26 March 2007, each attracting prison terms. The sentencing remarks. 42 His Honour, in his remarks, recognised the tragedy of the applicant's early life. He said this: (ROS 10/11) "... Looking at the objective gravity, I do find that the offender's background goes further than being merely explanatory of his behaviour. I do find that in the particular circumstances of this case, I find the background in fact somewhat diminishes the objective gravity. He has had a terrible background, he came from an abusive home, a home where there was much violence and he became a State ward and the fact is he did not have much going for him in terms of background. He was quite disadvantaged by his upbringing through no fault of his own. So I do find that that background in the circumstances of this case, does diminish to some extent the objective gravity of these very serious offences." (emphasis added) 43 His Honour noted there was no evidence of remorse (ROS 10). On the current evidence, he thought it highly likely that he would reoffend (ROS 10). He was entitled to a 25% discount by reason of his plea of guilty (ROS 2). 44 So far as his criminal record was concerned, his Honour said this: (ROS 7) "Turning to the offender's antecedents. There was a large number of matters in the Children's Court and I do not consider this to be a Veen No 2 situation. I propose to treat the antecedents as denying leniency, except in one respect, that respect obviously is the breach of parole, which is of itself ... significantly aggravating in terms of the sentence. ..." 45 Charges 1 and 2 (break enter and steal in circumstances of aggravation) (s 112(2) of the Crimes Act 1900) carried a standard non parole period. In respect of Charge 1, his Honour said this: (ROS 11) "... I do find that that offence is a mid range offence in terms of objective gravity. I would find this upper mid range but for the level of functioning of the offender, the level of intellectual functioning." 46 His Honour characterised Charge 2 in the following words: (ROS 11) "... I find it is of the lower end of mid range of objective seriousness. ..." 47 His Honour made a finding of special circumstances in the following terms: (ROS 11) "...I do propose to find special circumstances and particularly in relation to the finding that I will sentence upon and the reason for that is principally accumulation but the other reason is to foster rehabilitation." Submissions by the parties. 48 Counsel for the applicant submitted that the sentence was unreasonable, such that the Court would infer that in some way there had been a failure by his Honour to exercise properly his discretion (House v The King (1936) 55 CLR 499 at 505). A table of sentences, that were said to be comparable, was provided. Each case concerned a sentence passed in the context of multiple charges of aggravated break enter and steal, some (as here) in circumstances of a breach of parole. All cases on the table related to the period after the standard non parole period was introduced on 1 February 2003 and each involved a plea of guilty. The cases, excluding those which furnish no useful comparison, were as follows: R v Mougin [2005] NSWCCA 146 5 s112(2) charges and 7 related offences on a Form 1. 27 year old offender. Broke into office buildings and stole $87,580 of property. Substantial record and breached parole. Sentenced to 6½ years with non parole period of 4½ years. R v Andrews [2005] NSWCCA 199 6 s112(2) offences. 40 year old offender. Broke into sporting clubs at night with co-offender. Discount for voluntary confession and poor health. Sentence reduced from 5 1/3 years with 4 year non parole to 4 2/3 years with 3 ½ years non parole. R v Bellamy [2005] NSWCCA 329 2 s112(2) offences and 7 offences on a Form 1. 18 and 22 year old offenders. Stole $42,500 worth of computer equipment and clothing. Remorse and prospects of rehabilitation. Lengthy record of similar offences and breached parole. Sentenced to 3 years 11 months with a non parole period of 3 years. Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 5 s112(2) offences Broke into sports club with co-offender, stole money from poker machines. Serious interstate record, breached conditional liberty. Sentenced to 4 years 8 months with non parole period 3 years 6 months. Reduced on appeal to 4 years with non parole period of 3 years. There had been a failure to consider personal history. 49 Attention was also drawn to the following passage in R v MAK; R v MSK [2006] NSWCCA 381; (2007) 167 A Crim R 159, where Spigelman CJ (Whealy and Howie JJ agreeing) said this: (at [16]-[18]) "16 The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306: … the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years my be appropriate for another set of offences, each looked at in isolation. Where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences. 17 The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint. 18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences. " 50 An aggregate sentence of 11 years 1 month and a non parole period of 8 years 7 months was, according to counsel for the applicant, well beyond the range. In answer to a question whether there was also an attack upon the individual sentences, counsel stated that all were high, and some well beyond the range. 51 The Crown, in response, referred to the comments of R S Hulme J (Ipp JA and Bell J agreeing) in R v Nai Poon [2003] NSWCCA 42; (2003) 56 NSWLR 284, where the following was said: (at 296) "...[I]t is worth repeating that the infinite variation of fact and degree which fall for consideration in sentencing and the exercise of the discretionary judgment which is involved make comparison with anything but a large number of cases, and commonly even then, generally unprofitable." 52 Here, the gravity of the offences, including the Form 1 matters and the fact that the offender was on parole, meant that the sentence was, according to the Crown, within the range. Was there error? 53 A number of issues arise in determining whether the sentences were manifestly excessive. They are: First, was the starting point selected (10.3.09) appropriate, having regard to the arrest of the applicant on 25 August 2008 on the present charges and the expiry of his parole (10.9.08)? Secondly, were the individual sentences, and in particular the three significant sentences, Charge 1 (including the Form 1), Charge 2 and Count 1 (on the indictment), excessive? Thirdly, was the aggregate sentence (11 years 1 month) excessive, having regard to the concept of totality and the offender's youth? Fourthly, did the sentencing Judge appropriately give expression to his finding of special circumstances? 54 Dealing with the first issue, the commencement date, the applicant as mentioned was arrested on 25 August 2008. It appears that his parole was revoked before his arrest, because he had been charged with affray. He was required to appear at the Downing Centre on 26 June 2008 and failed to do so. A warrant was then issued for his arrest. His Honour, in these circumstances, said this: (ROS 12) "... It is suggested I should backdate the sentences to the date of arrest but the breach of parole was not referable to these matters at all, but nevertheless I do have a discretion to backdate and I have decided to exercise my discretion by partially backdating to 10 March, 2009." 55 In Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145, Simpson J (James and Hall JJ agreeing) reviewed the authorities in respect of the commencement date in circumstances of a revocation of parole. Whatever the basis for the revocation, the parole status of the offender may be affected by the commission of further offences. The inference may be available that the continuation of the revocation of parole is partly due to the additional charges, such that presentence custody may be taken into account (cf R v Walker [2004] NSWCCA 230). Here, his Honour made a discretionary determination. In my view it was open to him to select 10 March 2009 as the date from which the sentence should begin. Nonetheless, the fact that the applicant was in custody, parole refused, from 25 August 2008 was relevant in the context of totality. I will deal with that issue below. 56 Turning to the second matter (the individual sentences), three sentences significantly contributed to the aggregate, namely: Charge 1 (CAN 020), including the Form 1, where the overall term was 7 years 4 months, with a non parole period of 4 years 10 months. Charge 2 (CAN 004) where the overall term was 5 years 4 months, with a non parole period of 4 years. Count 1 (CAN 008) (on the indictment) where there was a fixed term of 3 years imprisonment. 57 Each term was imposed after allowing a 25% discount for the plea of guilty, so that the adjusted starting point in each case was as follows: Charge 1 : a total term of 9.77 years (9 years 9 months), with a non parole period of 6 years 5 months. Charge 2 : imprisonment for 7.2 years (7 years 1½ months), with a non parole period of 5 years 4 months. Count 1 (on the indictment): imprisonment for 4 years. 58 Charges 1 and 2 involved a standard non parole period of 5 years. His Honour found Charge 1 to be a mid range offence. In relative terms, not a great deal was stolen ($25, a mobile phone and credit cards). However, the offender was chased from the house by the owner. His Honour characterised the offences as being "in the upper mid range", but for the intellectual disability of the offender which reduced it to mid range. Whilst I would hesitate to characterise the offence as "upper mid range", I am prepared to accept that a finding of mid range was open. His Honour was also obliged to take account of the Form 1 and the considerable criminality involved in the series of offences in that list. He found that the applicant's tragic personal circumstances "somewhat diminishes the objective gravity" (ROS 11). 59 Let me pass from Charge 1 to Charge 2 which is pehaps more revealing, because it does not involve the complication introduced by the Form 1. The applicant broke and entered a Vaucluse house, stole a jar of coins and car keys to a Porsche. He also stole the Porsche (which was separately charged) (Charge 3). His Honour found the offence at the "lower end of the mid range", again a finding open to him. The subjective case must again be taken to have, in his Honour's mind, "diminished the objective gravity" of the offence. All that rather suggests a non parole period below five years, rather than a starting point of 5 years 4 months. 60 The third significant offence, Count 1, involved stealing two bottles of French champagne and two bottles of spirits from a hotel where the applicant was staying after it had closed for business (although its CCTV was still in operation). The two bottles of spirits were recovered when the applicant's hotel room was searched. The value of the goods stolen would have been no more than several hundred dollars. In that context, the starting point of four years (before the plea) seems rather high. I will return to these issues. 61 The third issue concerned the structure of the sentence, in the light of the concept of totality and the youth of the offender. The structure may be summarised as follows: First, his Honour selected 10.3.09 as the commencement date, the applicant having been arrested on 25.8.08 when he entered custody. A number of sentences (Charges 7, 8 and 9) commenced on 10.3.09 and were concurrent. Secondly, the commencement of the sentence on Count 1, the stealing of the liquor from the hotel (3 years imprisonment) was delayed three months (to commence 10.6.09). Thirdly, the sentence on Charge 2 (the aggravated break enter and steal at Vaucluse) was then delayed one year, to commence on 10.6.10. Fourthly, there was then a further delay (and partial accumulation) of two and a half years before the commencement of the sentence on Charge 1 (which included the Form 1), namely 7 years 4 months with a non parole period of 4 years 10 months. The sentence on Charge 1 was concurrent with four other offences, namely: Charge 3: take conveyance (the Porsche) (12 months). Charges 4 & 5: attempting to obtain money by deception (12 months). Charge 6: take conveyance (the Mazda from Rose Bay to Bondi) (10 months). 62 In essence, therefore, there were significant accumulations of one year between the sentences on Count 1 and Charge 2 (10.6.09 to 10.6.10) and 2 years 6 months (10.6.10 to 10.12.12) between Charge 2 and the commencement of Charge 1. As stated, the overall sentence was 11 years 1 month with a non parole period of 8 years 7 months. The non parole period was additional to the period in custody (7 months) after parole had been revoked. The sentence therefore contemplated a continuous period in custody of 9 years 1.5 months (25.8.08 to 9.10.17). 63 The starting point for the total sentence (before discount for the plea of guilty) was 14.77 years (14 years 9 months), in a context which included the presentence custody of seven months for breach of parole. That starting point was used, notwithstanding the youth of the offender. The principles relating to the sentencing of youthful offenders were recently restated by McClellan CJ at CL in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 271: (at [22], [23] and[25]) "22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. 23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). ... 25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity ( R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" ( Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence ( Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society." 64 I believe there was error. The individual sentences on Charges 2 and Count 1 were too long. The total sentence, by reason of accumulation and taking account of presentence custody, was too great. Further, in my view, insufficient weight was given to the youth of the applicant, emphasising rehabilitation rather than general deterrence. 65 It must be acknowledged that the prospects of rehabilitation of the applicant at this point, are bleak, as his Honour recognised. However, he is a young man. He can be expected to mature. He did express a desire to return to the motor trade once he completed his sentence. It is heartening that he can at least envisage a life apart from crime. But, whatever the prospects, a sentence of the length imposed was likely to be crushing on someone so young. 66 Let me deal finally with the issue of special circumstances. His Honour made a finding of special circumstances upon the basis of both accumulation and his rehabilitation. However, the reduction flowing from that finding (where the ratio of the non parole period to the head sentence is 66%) was applied only to the last sentence, rather than the aggregate term. The parole period, when compared to the aggregate term, was less than the statutory standard in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (77.44% cf 75%). In these circumstances, and in the context of a matter which was not dissimilar (an offender who had a drug problem and who committed multiple offences) James J (Giles JA and Hislop J agreeing) said this, in Cicekdag v R [2007] NSWCCA 218: (at [47]-[49]) "47. It was submitted by counsel for the applicant that, when all the sentences were taken into account, the sentencing judge had failed to carry into effect an intention to vary the usual ratio between non-parole periods and balances of terms, so as to take into account both of the two factors the sentencing judge had identified as requiring such a variation, namely the applicant's mental condition and the consequent need for rehabilitation and supervision, and the accumulation of sentences. 48. In my opinion, this submission by counsel for the applicant should be upheld. 49. If the only factor identified by the sentencing judge as requiring a variation of the usual ratio had been the accumulation of sentences, then the imposition of a collection of sentences in which the total parole period was only slightly less than one-third of the total of the non-parole periods might well have been regarded as a sufficient implementation of his Honour's sentencing intention. However, his Honour also identified as a factor requiring a variation of the usual ratio the applicant's mental condition and his consequent need for rehabilitation and supervision and the sentences imposed by his Honour, when considered in their totality, did not make any allowance for this factor." 67 The finding of special circumstances, I believe, should have been reflected in the aggregate sentence. Again I would find error on this aspect. 68 There is a need to resentence. Resentence. 69 The applicant sought to rely upon two affidavits on resentence, one from his solicitor which attached certificates in respect of courses he had completed and one by himself. The applicant, in his affidavit, described his difficulties in gaol. He has a partner and a young son. He has suffered bouts of depression. Medication has been prescribed, which is helping him. He also added the following: (affidavit 3.11.10) "6. When I came into custody I worked as a walkway sweeper for about a year. Then I got my OTTS Certificate, my white and green card and my scaffolding certificate. I now work in construction. I have helped put up frameworks and attached rooves. I lay pipes and do concrete work. I enjoy it and I hope to get work on building sites when I am released. I also hope to work on building sites when I get to a 'C' classification that will allow me to do work release. I am not eligible for that until my non-parole period is five years or less. 7. I have had no dirty urines during my sentence and only one assault matter or gaol charge this year." 70 There is reason to hope that he may yet be rehabilitated. 71 The structure of the sentence I am about to propose involves the following: Retaining the commencement date of 10.3.09; Not disturbing the following sentences imposed by his Honour: Charge 3 (CAN 005) – fixed term 12 months 10.12.13 to 9.12.14. Charges 4 and 5 (CAN 006 and CAN 007) – concurrent fixed terms 12 months 10.12.13 to 9.12.14. Charge 6 (CAN 033) – fixed term 10 months 10.12.13 to 9.10.14. Charges 7 and 8 (CAN 009 and CAN 010) – concurrent fixed terms 12 months 10.3.09 to 9.3.10. Charge 9 (CAN 032) – fixed term 8 months 10.3.09 to 9.11.10. Quashing the remaining sentences (Charge 1 (CAN 020) (including the Form 1), Charge 2 (CAN 004) and Count 1 on the indictment (CAN 008), and varying the accumulation as set out in the proposed orders. Charge 1 is altered so as to reflect the finding of special circumstances, resulting in a reduction of the non parole period. The end result is an aggregate total sentence of 9 years between 10.3.09 and 9.3.18, with a non parole period of 6 years (10.3.09 and 9.3.15). Orders. 72 The orders I propose are as follows: 1. Leave to appeal granted. 2. Appeal allowed in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008). 3. The sentences in respect of Charge 1 (CAN 020), Charge 2 (CAN 004) and Count 1 (CAN 008) quashed and, in lieu thereof, the applicant sentenced as follows: In respect of Charge 1 (CAN 020), including the offences on the Form 1, to a non parole period of 4 years 3 months from 10.12.10 until 9.3.15, with an additional term of 3 years expiring on 9.3.18. In respect of Charge 2 (CAN 004): The applicant is sentenced to imprisonment with a non parole period of 3 years from 10.3.10 to 9.3.13, with an additional term of 1 year 6 months expiring on 9.9.14. In respect of Count 1: To a fixed term of imprisonment of 2 years from 10.6.09 until 9.6.11. 4. All other sentences are confirmed. 73 LATHAM J : I have read Kirby J's judgment in draft and I gratefully adopt his Honour's account of the facts and of the applicant's subjective circumstances. I agree that the Judge fell into error in the extent of the accumulation of the sentences, such that the aggregate non parole period and aggregate sentence was manifestly excessive. I also agree that the sentence imposed for Count 1 (relating to the theft of the champagne) is manifestly excessive. However, I do not agree that there was error in respect of the sentence imposed on Charge 2, and I differ from his Honour with respect to the aggregate sentence that I consider is necessary to adequately reflect the totality of the applicant's criminality. 74 The Judge's finding that the offence charged as Charge 2 was at the lower end of the mid range was entirely open to him, as Kirby J has noted. The Judge made a passing reference to In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield [1999] NSWCCA 435 in the context of the requirement for general deterrence, and went on to say :- Looking at the objective gravity, I do find that the offender's background goes further than being merely explanatory of his behaviour. I do find that in the particular circumstances of this case, I find the background in fact somewhat diminishes the objective gravity. 75 With respect to the Judge, this is an erroneous approach. A subjective case cannot diminish the objective gravity of an offence. Having determined what the objective gravity of an offence is, a sentencing judge should factor the offender's subjective circumstances into the sentencing exercise, and in that way, arrive at a sentence appropriate to both the objective and subjective circumstances. It may have been no more than an infelicitous expression on the part of the Judge, but I have drawn attention to it for another reason. 76 In my opinion, the sentence appropriate to the objective gravity of these offences ought not be ameliorated to any significant extent by the applicant's subjective case. The applicant's level of intellectual functioning was properly factored by the Judge into his Honour's assessment of the objective gravity of the offences (see R v Way (2004) 60 NSWLR 168), but there was little or no scope to "double count" that factor elsewhere in the sentencing exercise. 77 The offence demonstrated a considerable degree of discrimination by the applicant, consistent with the method adopted for the commission of the offence being Charge 1, namely, targeting specific homes and gaining access late at night while the occupants slept. In Marshall v R [2007] NSWCCA 24, Howie J said (McClellan CJ at CL and Simpson J agreeing) 39 As to the aggravating feature of knowing that a person or person is present in the premises, matters of relevance will be the type of person present in the premises, for example whether there was a child or some other vulnerable person present, and whether the offender knew that the person or persons in the premises were particularly vulnerable. The time of day will be relevant so that if it is late at night, when the persons in the premises are likely to be asleep, this might indicate that the offence is more serious because the persons are for that reason more vulnerable. 78 The existence of the standard non parole period of 5 years for this offence is a relevant factor in determining whether an argument alleging manifest excess can be made out. 79 In these circumstances, and for the reasons I have set out above, I am not prepared to find that a non parole period of 4 years, with a balance of term of 16 months, is manifestly excessive. It is arguable that it is a stern sentence, but that is not the test. 80 For substantially the same reasons, and taking into account the fact that the applicant committed two offences each carrying a standard non parole period of 5 years, over the course of a spate of offending commencing in June 2008 and concluding in September 2009 (taking into account the offences on the Form 1), an aggregate non parole period of 6 years, with an aggregate balance of term of 3 years in my view fails to adequately reflect the totality of the applicant's criminality. 81 I regard an aggregate non parole period of 7 years as the least custodial term that could be imposed to meet the objective and subjective circumstances. I would quash the sentence on Charge 1, so that the commencement date of the sentence might be adjusted to reduce the degree of accumulation. This results in an aggregate non parole period of 7 years, with an aggregate balance of term of 2 years and 6 months. Notwithstanding that this results in a minor variation of the statutory proportion to reflect the finding of special circumstances, I am of the view that the aggregate parole period is sufficient to allow for the supervision and rehabilitation of the applicant. 82 I propose the following orders :- 1. Leave to appeal granted. 2. Appeal allowed in part. 3. Quash the sentences imposed with respect to Count 1 (CAN 008) and Charge 1 (CAN 020). 4. In lieu, on Count 1, a fixed term of 2 years imprisonment is imposed to date from 10 June 2009, expiring 9 June 2011. 5. In lieu on Charge 1, the applicant is sentenced to a non parole period of 4 years and 10 months, to date from 10 May 2011, expiring 9 March 2016, with a balance of term expiring 9 September 2018. The applicant is eligible for release on 10 March 2016. ********** 09/12/2010 - Error in draft - Paragraph(s) Whole judgment replaced 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.