Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Darren James Sotheren [2011] NSWCCA 68 Hearing dates: 7 December 2010 Decision date: 11 April 2011 Before: McClellan CJ at CL [1] McCallum J [2] R A Hulme J [45] Decision: Appeal allowed; sentence quashed; in lieu thereof, applicant sentenced to a term of imprisonment with a non-parole period of two years commencing on 1 January 2010 and expiring on 31 December 2011 and a balance of term of one year and nine months expiring on 30 September 2013. Catchwords: CRIMINAL LAW - sentence - whether sentencing judge wrongly took into account factors irrelevant to assessment of objective seriousness of offence - whether judge failed to take into account the fact that the applicant could have been sentenced in the Local Court - whether sentence manifestly excessive - appeal allowed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Criminal Case Conferencing Trial Act 2008 Cases Cited: Re Attorney General's Application No. 1 (Ponfield) (1999) 48 NSWLR 327 R v Dodd [1991] 57 A Crim R 349 at 354 Morrison v R [2009] NSW CCA 211 R v Palmer [2005] NSWCCA 349 at [14] - [15]. R v Sotheren [2001] NSWCCA 425 at [57] Category: Principal judgment Parties: Darren James SOTHEREN v REGINA Representation: Counsel: R Burgess for the Applicant J Pickering for the Crown Solicitors: S O'Connor (Legal Aid Commission) for the Applicant S Kavanagh - Solicitor for Public Prosecutions File Number(s): 2009/8167 Decision under appeal Date of Decision: 2009-09-09 00:00:00 Before: Bennett DCJ File Number(s): CCA 2009/8167 Judgment 1McClellan CJ at CL: I agree with McCallum J. 2McCallum J: Darren Sotheren seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of being in a dwelling, stealing and breaking out contrary to section 112(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. No standard non-parole period is prescribed for the offence. 3On 9 September 2009, Mr Sotheren was sentenced to a term of imprisonment with a non-parole period of two and a half years commencing on 1 January 2010 and expiring on 30 June 2012 and a balance of term of two years expiring on 30 June 2014. 4In order to understand the effect of the sentence imposed, it is necessary to explain something of Mr Sotheren's criminal history. On 15 June 2001, Mr Sotheren was sentenced by Dowd J after pleading guilty to six offences including an offence of manslaughter, two offences of aggravated robbery inflicting grievous bodily harm and three offences of aggravated robbery inflicting actual bodily harm. The offences were all committed within a 24-hour period. Mr Sotheren was sentenced to a total term of imprisonment with a non-parole period of 4 years and 6 months and a total term of 7 years imprisonment. 5On 21 October 2001 this Court allowed a Crown appeal against that sentence and re-sentenced Mr Sotheren to a term of imprisonment with a non-parole period of six years and a balance of term of four years concluding on 6 September 2012: R v Sotheren [2001] NSWCCA 425 at [57]. 6Mr Sotheren was released to parole on the earliest date upon which he was eligible for parole, 6 September 2008. On 27 November 2008, he committed the present offence. On 11 December 2008, his parole was revoked but he remained at large until 16 January 2009. He committed a further offence of breaking and entering with intent to steal in the meantime. 7Mr Sotheren commenced serving the balance of his term for the manslaughter and robbery offences from 16 January 2009. Those sentences now expire on 26 October 2012. 8An offender who is returned to custody following revocation of parole is not eligible for release to parole again until 12 months after the date on which he or she was returned to custody: see section 137A of the Crimes (Administration of Sentences) Act 1999 and the definition of "eligible parole date" in section 3 of the Act. But for the sentence under appeal, Mr Sotheren would have been eligible for an annual review of his parole on each of the anniversaries of the day he went back into custody, being 16 January 2011 and 16 January 2012. 9The effect of the sentence under appeal is that Mr Sotheren is not eligible for release on parole on either of those dates because he must serve the non-parole period imposed in the present matter until 30 June 2012. 10If Mr Sotheren is found to be ineligible for release on parole in January 2012 in relation to the balance of parole for the manslaughter offence, there is no provision in the Crimes (Administration of Sentences) Act for a further review before the expiration of his sentence on 26 October 2012. Circumstances of the present offence 11The Crown acknowledged that the offence for which Mr Sotheren was sentenced was a "generic break and enter/breakout steal type offence". Mr Sotheren broke into a house in Glebe during the day whilst the owner was out. She returned at around 3.00 pm and found that some furniture had been moved. She heard a noise and ran from the house through the back door. She saw Mr Sotheren jump out of a bedroom window and run away. Police found a screwdriver and a wallet with Mr Sotheren's identification at the house. A fingerprint taken by crime scene officers matched Mr Sotheren. The property stolen was a charm bracelet valued at $2,000, costume jewellery valued at $500 and $300 in cash. Subjective Circumstances 12The Crown accepted that the summary of Mr Sotheren's subjective circumstances set out in his written submissions was accurate. The following summary is drawn from that material. The evidence before the sentencing judge included a report from a psychologist and evidence from Mr Sotheren himself. That material established a strong subjective case. From the age of seven, Mr Sotheren was raised at a State ward home where he was the victim of physical and sexual abuse. He developed an addiction to speed and has an extremely lengthy record of prior criminal convictions. He is now aged 39 years. 13Mr Sotheren does not know who his father is. In recent times, he has resumed a good relationship with his mother and his stepfather. They live in Townsville and Mr Sotheren had hoped that upon his release to parole for the manslaughter and robbery offences, he would be granted permission to be supervised in that jurisdiction. However, that was not considered appropriate by the Probation & Parole Service. It was arranged for Mr Sotheren to go to a half-way house in Sydney known as Rainbow House. Mr Sotheren said that people at that lodge used drugs and that he was exposed to temptation, which he found very difficult because of his previous problem with drug abuse. That evidence was not contested at the sentence proceedings and it accords with common experience. It seems very unfortunate that the circumstances of Mr Sotheren's release to parole did not permit him to enjoy the support of family rather than landing him back in the company of drug users. 14The breach of parole report prepared in respect of Mr Sotheren reveals that his initial response to supervision was good. He was attending counselling and appointments regularly as requested and had clear drug screening test results. 15The psychologist, Mr Taylor, concluded that Mr Sotheren has a personality disorder with antisocial and avoidant characteristics. He had previously been diagnosed as suffering from a major depressive disorder and gave evidence that, about a month before committing the present offence, he had stopped taking his medication and felt very depressed. 16On the day of the offence, Mr Sotheren had felt very down and used a gram of speed. His motive for the present offence was to obtain money to buy more of that drug. Grounds of appeal 17The first ground of appeal is: When assessing the objective seriousness of the offence his Honour erred in taking into account the fact that the offence was committed whilst Mr Sotheren was on parole and that it was the first of a series of offences. 18The sentencing judge said: When assessing the objective gravity of the offence I have taken into account that it was committed whilst the offender was on parole and that it was the first in a series of offences. He has an appalling record that denies him leniency. Whilst that record cannot be taken into account when assessing objective seriousness of an offence it is an important consideration when fashioning the sentence finally passed. The statement of principle in Veen v R (No 2)(1987-1988) makes this clear. (ROS22). 19Mr Sotheren submitted that the sentencing judge's remarks reveal error in that the matters referred to by his Honour may not permissibly be taken into account when assessing the objective seriousness of an offence. 20The Crown submitted that his Honour's remarks should not be read in that way. It was submitted that his Honour's use of the term "objective gravity" in juxtaposition to the term "objective seriousness" reveals that his Honour took the matters referred to into account only as relevant aggravating factors in accordance with section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 and not as factors relevant to the assessment of the objective seriousness of the offence. 21It is difficult to resolve those contentions with any great confidence. On the one hand, it seems doubtful that his Honour intended to draw a distinction between "objective gravity" and "objective seriousness". They are expressions which would ordinarily be understood in the same sense. I do not think there is any relevant principle of sentencing, or indeed anything in the language of the statute, that lends support to a different contextual interpretation of either expression. 22A critical aspect of the determination of an appropriate punishment is the judge's assessment of the seriousness, or gravity, of the objective circumstances of the offence. Whether the offender was on parole when he committed it or whether he later committed other offences of which the offence under consideration was the first are not relevant to that assessment. 23The importance of that assessment was explained in R v Dodd [1991] 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J: "As Jordan CJ pointed out in R v Geddes (36 SR at 556), making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place." 24The language adopted in the remarks on sentence in the present case is apt to suggest that it was in the context of that assessment that his Honour took into account the fact that the applicant was on parole and the fact that the offence was the first in a series. As already noted, if that was the approach, it entailed error. 25Conversely, the balance of the passage from the remarks on sentence extracted above suggests that his Honour was alert to the distinction between the objective seriousness of the offence and the other factors required to be taken into account in determining the appropriate sentence to be imposed, including any of the factors listed in section 21A of the Act known to the Court that are relevant. As noted by the Crown, within a few further words of the impugned remarks, the judge expressly noted that Mr Sotheren's record could not be taken into account when assessing the "objective seriousness" of the offence. The Crown relied upon that statement as evidence of the fact that the judge plainly did not take other offences (including the other offences in the "series of offences") into account in his assessment of the objective seriousness of the offence. 26Although I accept that there was perhaps some infelicity of expression in the remarks on sentence, I have ultimately not been persuaded that his Honour misapprehended the proper relevance of the fact that the offence was committed whilst Mr Sotheren was on parole or the fact that the offence was the first in a series of offences committed by Mr Sotheren before he was taken back into custody. 27It is convenient next to consider the third ground of appeal: His Honour erred in failing to take into account that the matter could have been dealt with in the Local Court and having regard to the maximum penalty in such case. 28Principles relevant to a ground such as this were helpfully summarised in the judgment of Hall J in R v Palmer [2005] NSWCCA 349 at [14] to [15]. In the present case there was no question that, at least theoretically, the matter could have been determined in the Local Court where the jurisdictional limit on the sentence that could have been imposed was 2 years. Mr Sotheren's representative in the District Court referred to the prosecutor's election to seek committal to that Court. Her submission was concerned with the question as to whether the Criminal Case Conferencing Trial Act 2008 applied, s 17 of which mandated a reduction of sentence of 25 per cent in circumstances where an offender had entered a plea of guilty in the Local Court. 29The sentencing judge was not asked to take into account the availability of summary disposal and he made no reference to it in his sentencing remarks. A possible explanation for this is that there was a concession made on Mr Sotheren's behalf that the prosecutor's election to seek committal was a correct one. That concession was understandable having regard to Mr Sotheren's record and the fact that the offence was committed whilst he was on parole,. 30The final principle referred to by Hall J in R v Palmer at [15](f) is that where a sentencing judge has made no reference to the possibility of summary disposal, a method of testing whether that is indicative of error is to consider whether the sentence itself appears manifestly excessive in all the circumstances of the case. This remains for consideration in relation to ground two. 31The second ground of appeal is: The sentence and the effective total sentence are manifestly excessive. 32The reference in this ground to the effective total sentence is a reference to the sentences imposed upon Mr Sotheren in the Local Court for the offences committed after the present offence. Mr Sotheren was sentenced for those offences before he was sentenced for the present offence. On 3 June 2009, he was sentenced to six months imprisonment for escaping lawful custody and resisting arrest, such sentence to date from the date of his arrest on 16 January 2009. Separately, he was sentenced to a fixed term of 12 months for an offence of breaking and entering with intent, such sentence to date from 3 June 2009. 33In respect of the present matter, the sentencing judge gave careful consideration to the appropriate commencement date for the sentence imposed. The Crown had submitted that the sentence should commence at the expiration of those other sentences. His Honour rejected that submission and concluded that it was appropriate partly to accumulate the sentence to be imposed. His Honour fixed the sentence to commence on 1 January 2010. 34The effective total sentence for the offences dealt with in the Local Court and the present offence was accordingly five and a half years imprisonment with a non-parole period of three and a half years. 35As observed on behalf of the Crown, the sentencing judge played no role in the sentences imposed for the matters dealt within the Local Court. A question as to when the sentence for the present offence should commence was a matter entirely within his discretion. 36It was submitted on behalf of the applicant that the exercise of that discretion on the part of the sentencing judge miscarried for two reasons: first, that the sentence was accumulated on the sentences imposed for subsequent offences and secondly because the judge did not have regard to the fact that, in the circumstances outlined above, the practical effect of the sentence imposed was that the applicant would not be eligible for release to parole upon the expiration of his non-parole period. 37The judge was plainly aware of the practical effect of the sentence imposed. Although the matters referred to might have been taken into account differently, I am not persuaded that it was not open to the judge to fix the sentence to commence on 1 January 2010. 38It remains to consider whether the sentence was manifestly excessive. Mr Sotheren pleaded guilty at an early opportunity and the Crown acknowledged that the sentencing judge appropriately allowed a discount of 25% to reflect the utilitarian value of the plea. It follows that the starting point for the sentence imposed was one of six years. 39I accept, for the reasons stated on behalf of Mr Sotheren, that the objective seriousness of the present offence was low. In particular, as noted in the written submissions, his motive for the offence was to obtain money for drugs; the offence was impulsive; it was committed in daylight; there was no one inside when he entered the premises; when the victim returned home Mr Sotheren simply fled; there was no gratuitous vandalism and the value of the property was not significant: see Re Attorney General's Application No. 1 (Ponfield) (1999) 48 NSWLR 327. 40The applicant drew the Court's attention to the pattern of sentences revealed in the Judicial Commission statistics. I acknowledge the well-known limitations upon the use of such material. Nonetheless, they are of some utility. 41Mr Sotheren also relied upon the series of cases discussed in the decision of R A Hulme J in Morrison v R [2009] NSWCCA 211. Acknowledging that the proper approach to sentence appeals requires more than a bare comparison with the sentences imposed in other cases, I have found his Honour's comprehensive review of other decisions that bear some similarities to the present case helpful in my consideration of the sentence imposed in the present case. The sentence imposed in the present case was more severe than the range of sentences revealed in the decisions reviewed at [53] to [62] of that judgment. 42Having regard to my assessment of the objective seriousness of the present offence as being low and Mr Sotheren's strong subjective case, I am of the view that the starting point of six years for the present offence was too high. In coming to that view, I have not overlooked the aggravating features of the offence referred to by the Crown. Separately, I have given some weight to the cogent evidence that, in difficult circumstances, Mr Sotheren initially made good progress towards rehabilitation, before succumbing to a temptation to which he was exposed in the community in which he found himself after release to parole. 43In my view, the appropriate sentence after allowing for a reduction of 25% to reflect the utilitarian value of Mr Sotheren's plea of guilty is a term of imprisonment of three years and nine months with a non-parole period of two years. 44The orders I propose are: 1. That leave to appeal be granted. 2. That the appeal be allowed. 3. That the sentence imposed by the District Court on 9 September 2009 be quashed and, in lieu thereof, that the applicant be sentenced to a term of imprisonment with a non-parole period of two years commencing on 1 January 2010 and expiring on 31 December 2011 and a balance of term of one year and nine months expiring on 30 September 2013. 45R A Hulme J: I agree with McCallum J. ********** 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. Decision last updated: 18 April 2011