Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Strickland v R O'Connor v R [2011] NSWCCA 166 Hearing dates: 20 July 2011 Decision date: 28 July 2011 Before: Allsop P at [1] Simpson J at [2] Buddin J at [3] Decision: Applicant Strickland 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences: (i) In respect of Count 2a, sentence the applicant to a term of 18 months to commence on 18 February 2010; (ii) In respect of Count 3a, sentence the applicant to a term of 18 months to commence on 18 July 2010; (iii) In respect of Count 4a, sentence the applicant to a term of 18 months to commence on 18 December 2010; (iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 18 May 2011 and to expire on 17 August 2013 with a total term of 4 years and 3 months to expire on 17 August 2015. The applicant will be eligible for parole on 17 August 2013. Applicant O'Connor 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences: (i) In respect of Count 2a, sentence the applicant to a term of 12 months to commence on 8 March 2010; (ii) In respect of Count 3a, sentence the applicant to a term of 15 months to commence on 8 June 2010; (iii) In respect of Count 4a, sentence the applicant to a term of 15 months to commence on 8 September 2010; (iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 8 December 2010 and to expire on 7 March 2013 with a total term of 4 years and 3 months to expire on 7 March 2015. The applicant will be eligible for parole on 7 March 2013. Catchwords: Criminal law - appeal against sentence - offences of aggravated break, enter and steal and break, enter and steal - whether sentences manifestly excessive - whether error in failing to take into account that various of the offences could have been dealt with in the Local Court Legislation Cited: Criminal Procedure Act 1986 Cases Cited: Bonwick v R [2010] NSWCCA 177 Pearce v The Queen (1998) 194 CLR 610 Category: Principal judgment Parties: Paul James Strickland Regina Corey Francis O'Connor Regina Representation: Counsel: H Cox (Applicant Strickland) P Winch (Applicant O'Connor) Solicitors: Aboriginal Legal Service (Applicant Strickland) Legal Aid Commission (Applicant O'Connor) S Kavanagh (Solicitor for Public Prosecutions) File Number(s): 2009/62208 2009/45738 Decision under appeal Date of Decision: 2010-08-26 00:00:00 Before: English DCJ File Number(s): 2009/62208; 2009/45738 Judgment 1ALLSOP P : I agree with Buddin J. 2SIMPSON J : I agree with Buddin J. 3BUDDIN J : These applications for leave to appeal against sentences imposed in the District Court were heard together. The applicants, who were co-offenders, each pleaded guilty to four offences, all of which were committed on 13 July 2009. The first offence to which each applicant pleaded guilty was an offence of aggravated break, enter and steal. The circumstance of aggravation was that it was committed "in company". The applicant Strickland also pleaded guilty to three counts of break, enter and steal whilst the applicant O'Connor also pleaded guilty to two of the same counts of break, enter and steal and to a related count of receiving. The sentences (a) The applicant Strickland 4In respect of the second break, enter and steal offence (Count 3a), the applicant was sentenced to a non-parole period of 2 years to commence on 18 February 2010 with the total term being 3 years 4 months and 24 days imprisonment. In respect of the first break, enter and steal offence (Count 2a), the applicant was sentenced to a non-parole period of 2 years to commence on 18 August 2010 with the total term being 3 years 4 months and 24 days imprisonment. In respect of the final break, enter and steal offence (Count 4a), the applicant was sentenced to a non-parole period of 3 years to commence on 18 February 2011 with the total term being 4 years and 3 months. Each of those offences attracted a maximum penalty of 14 years imprisonment. In respect of the aggravated break, enter and steal offence (Count 1), the applicant was sentenced to a non-parole period of 3 years to commence on 18 August 2011 with the total term being 5 years 1 month and 6 days. That offence attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. His total effective sentence thus consists of a non-parole period of 4 years and 6 months with the total term being 6 years 7 months and 6 days. The applicant O'Connor 5In respect of the count of receiving (Count 2a), the applicant was sentenced to a non-parole period of 18 months to commence on 8 March 2010 with the total term being 2 years 6 months and 18 days. That offence attracted a maximum penalty of 10 years imprisonment. In respect of the first break, enter and steal offence (Count 3a), the applicant was sentenced to a non-parole period of 2 years to commence on 8 June 2010 with the total term being 2 years 11 months and 21 days. In respect of the other break, enter and steal offence (Count 4a), the applicant was sentenced to a non-parole period of 2 years to commence on 8 September 2010 with the total term being 3 years 4 months and 24 days. In respect of the aggravated break, enter and steal offence (Count 1), the applicant was sentenced to a non-parole period of 3 years to commence on 8 December 2010 with the total term being 5 years 1 month and 6 days. His total effective sentence thus consists of a non-parole period of 3 years and 9 months with the total term being 5 years 10 months and 6 days. 6The sentences in respect of each applicant were structured in such a fashion as to give effect to a finding of "special circumstances". The proceedings on sentence 7The facts which give rise to the various offences are not in dispute and can be briefly stated. The two applicants, and an unidentified male, were seen getting out of a motor vehicle and then observed to enter the premises in which the offence giving rise to count 1 was committed. The witness noted the vehicle's registration number and contacted the police. As police were driving to the scene they passed the vehicle in which the applicants were travelling. A short time later, police located the vehicle at a railway station. The applicants were seen nearby and police recognised them as having been in the vehicle which they had seen earlier. The applicant Strickland admitted that the vehicle was owned by his girlfriend. The applicants were arrested but declined an opportunity to be interviewed. Police located a large amount of stolen property in the vehicle. It included several items of jewellery and a money box containing $25 in coins which had been stolen during the offence which gave rise to count 1. Enquiries revealed, in respect of Count 2a, that property to the value of $9290 had been stolen. It consisted of computer and other items of electrical equipment. Most of the property, other than two laptop computers and two portable hard drives, was recovered. In respect of the offence giving rise to Count 3a, the property stolen consisted mainly of electrical equipment and jewellery, much of which was not recovered. In respect of the offence giving rise to Count 4a, once again jewellery as well as computer and other items of electrical equipment were stolen. The computer and electrical equipment were recovered, but none of the victim's jewellery, estimated to be worth $2680, was recovered. 8In relation to the three offences of break, enter and steal committed by the applicant Strickland, the Crown case was that he was the one who actually broke into the premises in question. In relation to two of those offences (Counts 3a and 4a), the Crown case was that the applicant O'Connor was a principal in the second degree in that he remained outside the premises aiding and abetting the applicant Strickland by acting as a "lookout". In relation to the receiving offence, the Crown case was that the applicant O'Connor received the property which the applicant Strickland had stolen from the premises into which he had broken. The applicant Strickland 9The applicant was 24 at the time of committing these offences. He is an Aboriginal man who was raised, in the main, by his mother in the Mount Druitt area. He suffered abuse at the hands of his father and no longer has any contact with him. He developed a drug habit at the age of 11 or 12 and commenced to abuse alcohol when he was 14. His past endeavours to overcome his dependency upon alcohol and illicit drugs had met with mixed success. The applicant has two children with a former partner who remains supportive of him. The evidence revealed that the applicant had been spending time in custody productively. He had completed a Getting Smart program which was designed to overcome his drug and alcohol problems. He was also studying Aboriginal art and culture through TAFE and was a delegate for Aboriginal inmates. Also before the sentencing judge was a report from the Education Manager which indicated that the applicant was working in an industrious fashion in the gaol laundry. There was evidence that the applicant had prospects of obtaining employment upon his release from custody. 10The applicant has a criminal record which commenced when he was 15. Although he was dealt with as a juvenile for a variety of offences including break, enter and steal and other matters of dishonesty, driving matters, escaping from police custody and possession of drugs, he had not received a custodial sentence. In May 2005 (following an appeal to the District Court) he received an effective sentence of 12 months with a non-parole period of 4 months and 8 days in respect of 3 offences of break, enter and steal and related matters. Apart from some relatively minor matters in 2008, the applicant did not come under notice again until 2009. He then received a series of suspended sentences for a variety of offences, the most significant of which were offences of break, enter and steal and driving whilst disqualified. Those sentences were designed to enable him to continue his participation in the Drug Court program. The present offences were committed whilst the applicant was the subject of those suspended sentences. 11The applicant has remained in continuous custody since his arrest for these offences on 13 July 2009. On 18 September 2009 he was sentenced at Parramatta Drug Court to a non-parole period of 12 months to commence on 19 February 2009 with the total term being 1 year and 11 months in respect of the matters for which he had previously received suspended sentences. He was also sentenced on 21 June 2010 to an effective fixed term of 9 months to commence on 19 February 2010 in respect of two offences of driving whilst disqualified. His earliest release date is 17 August 2014 by which time he will have been in custody for a period of 5 years 1 month and 4 days. The total effective term of the sentence expires on 23 September 2016, a period of 7 years 2 months and 10 days. The applicant O'Connor 12Although there was material available which suggested that this applicant had just turned 22 at the time of committing the offences, the sentencing judge accepted that he was in fact only 20. He was initially raised in Grafton and Lismore before moving to Sydney following his parents' divorce. He apparently had learning difficulties and was diagnosed with ADHD. He was expelled from a number of schools, including from a special behavioural school. As a result of his learning difficulties and other challenges, he has acquired few educational skills and has had very limited work experience. He has a significant history of dependence upon illicit drugs having first used drugs at the age of 14. For a number of years the applicant had a troubled relationship with his mother. Indeed, at one stage he left the family home at her request and went to live in a youth refuge. For some time thereafter he maintained an itinerant lifestyle. On a positive note, he now enjoys the support of his mother. He also has a son who was born in 2005 with whom he has remained in regular contact. 13This applicant also has a not insignificant criminal record. He appeared both in the Children's Court and in the Local Court on several occasions between 2003 and 2007 in respect of driving offences, contravening apprehended domestic violence orders and common assault. He was either fined or placed upon a bond in relation to those matters. In December 2007 he was given suspended sentences in respect of two offences of aggravated break, enter and steal and for breaching earlier bonds. In 2008 he received two further suspended sentences for offences of wilful damage and larceny respectively. Each of the suspended sentences was designed to enable him to continue on the Drug Court program. The present offences were committed whilst the applicant was the subject of those suspended sentences. 14This applicant has also been in continuous custody since his arrest on 13 July 2009. On 16 October 2009 he was sentenced at the Parramatta Drug Court to a non-parole period of 18 months to commence on 9 September 2008 with a total term of 3 years 6 months imprisonment in respect of the matters for which he had previously received suspended sentences. His earliest release date is 7 December 2013 by which time he will have been in custody for just under 4 years. The total effective term of the sentence expires on 13 January 2016, a period of exactly 6 years. 15The sentencing judge determined that count 1 fell "below the mid-range of objective seriousness". Her Honour found that although it involved a degree of planning, it could not be characterised as a sophisticated offence. In relation to each of the other offences, her Honour concluded that they "also [fell] below the mid-range constructed for like offences". Her Honour noted that significant quantities of property had been taken, not all of which had been recovered. Some of the items taken clearly had sentimental value. As is apparent, the applicants received identical sentences in relation to Count 1. In respect of the other three counts, her Honour imposed sentences which reflected the different criminality which the applicants had displayed. No complaint is made on behalf of the applicant Strickland about the fact that a different sentencing outcome was arrived at in respect of the applicant O'Connor. Her Honour observed that each applicant was on conditional liberty at the time of the offences and that each had criminal records which contained entries for offences of the same kind. Her Honour allowed each applicant a 15% discount on account of their pleas of guilty. Her Honour also found, having heard each of them give sworn evidence, that they were genuinely remorseful for their actions. Her Honour nonetheless concluded that there was a high likelihood that each of them would reoffend because "their records disclose entrenched antisocial and criminal behaviour". The grounds of appeal 16The applicant Strickland relied upon the following grounds: Ground 1: Her Honour failed to take into account that three of the four charges could have been dealt with in the Local Court and failed to have regard to the maximum penalty with respect to those counts. Ground 2: The sentencing judge erred in failing to properly apply the principle of totality in respect of the matters for which the applicant came for sentence before her Honour and the matters for which the applicant was already serving a sentence. Ground 3: The sentences imposed are manifestly excessive. 17The applicant O'Connor relied upon the following grounds: Ground 1 The sentencing judge failed to consider and apply the doctrine of totality when (a) accumulating the sentences, (b) ordering the sentences to commence on 8 March 2010, the date of the expiration of the non-parole period of an unrelated sentence. Ground 2 The total sentence is manifestly excessive. 18At the hearing this applicant was granted leave to add a ground which was in the same terms as the first ground relied upon by the applicant Strickland. 19As can be observed the grounds of appeal are, for all practical purposes, identical. Manifest excess 20It is convenient to deal first with the ground relied upon by each applicant that the sentences are manifestly excessive. 21In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ in a joint judgment, said: A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. (at para 45) 22Each applicant placed particular emphasis upon the sentence which was imposed in respect of Count 4a. In respect of the applicant Strickland that sentence, it is to be recalled, consisted of a non-parole period of 3 years with the total term being 4 years and 3 months imprisonment. It was submitted that that sentence may be contrasted with those imposed in respect of each of counts 2a and 3a which consisted of a non-parole period of 2 years with the total term being 3 years 4 months and 24 days imprisonment. In essence, it was submitted that the sentence in respect of Count 4a was significantly longer than those imposed in respect of Counts 2a and 3a notwithstanding the fact that no basis existed upon which that offence could properly be differentiated from the other two. Moreover, it may be observed that the non-parole period selected for Count 4a was precisely the same as that selected in respect of Count 1, which was not only a more serious offence but one in respect of which a standard non-parole period applied. 23A similar submission was made on behalf of the applicant O'Connor. In respect of Count 4a, this applicant received a non-parole period of 2 years with a total term of 3 years 4 months and 24 days imprisonment whilst in relation to Count 3a he received a non-parole period of 2 years but with a total term of 2 years 11 months 21 days imprisonment for an offence which was relevantly indistinguishable from it. 24It is common ground that the sentencing judge made no endeavour to explain what, on its face, appears to have been an anomalous sentencing outcome. In the circumstances I accept that her Honour fell into error in failing to comply with the principles enunciated in Pearce (supra) in that her Honour did not "fix an appropriate sentence" for the offence which, in respect of each applicant, gave rise to Count 4a. The failure to take into account the fact that three of the offences could have been dealt with in the Local Court 25It is common ground that the offences which gave rise to counts 2a, 3a and 4a in respect of each applicant were all Table 1 matters, within the meaning of the Criminal Procedure Act 1986 , and as such were capable of being dealt with in the Local Court. The maximum penalty which the Local Court can impose for such an offence is 2 years imprisonment. It was in that context that counsel for each of the applicants relied upon this Court's decision in Bonwick v R [2010] NSWCCA 177. After reviewing the relevant authorities, Davies J with whom the other members of the Court agreed, said: Whilst it is clear that there is no obligation on the sentencing Judge to regard himself or herself limited by the maximum penalty available in the Local Court, two relevantly important principles emerge from the cases. The first is that the extent of the criminality is an important consideration in having regard to the Local Court penalty: R v Hanslow [2004] NSWCCA 163 at [21]; Regina v Said El Masri [2005] NSWCCA 167 at [29] and McCullough at [26]. Secondly, where it appears that the matter of the Local Court penalty has been entirely overlooked by the sentencing Judge that may properly justify the grant of leave to appeal: R v Crombie [1999] NSWCCA 297 at [16]. In the present case, it is likely that the matter was entirely overlooked by the sentencing Judge because it is accepted that neither counsel drew it to the Judge's attention. Further support for that inference derives from the omission of the sentencing Judge to make any reference to the fact that the offences could have been dealt with by the Local Court and from the length of the sentence imposed for each of the offences . This failure to refer to the Local Court limitation on sentence amounts to an error justifying the intervention of this Court. This is because, as the highlighted passages in Palmer make clear, the fact that the Local Court could have dealt with the matter is a relevant consideration to be taken into account. (at paras 43-45) (emphasis added) 26It is also common ground that, as in Bonwick , the sentencing judge in the present case made no reference to the fact that the offences in question could have been dealt with in the Local Court. It is equally clear that neither party drew the matter to her Honour's attention. It was urged on behalf of the applicants that her Honour's conclusion that each of the offences in question were "below mid-range" was of particular significance in an assessment of this ground. It was submitted that the total sentence of 4 years and 3 months imprisonment imposed upon the applicant Strickland in relation to Court 4a was impossible to reconcile with her Honour's finding, particularly as he had pleaded guilty and was remorseful. Moreover, it further demonstrated, so it was submitted, that her Honour had simply overlooked the fact that that matter, as well as the other two offences, could have been dealt with in the Local Court. It was submitted on behalf of the applicant O'Connor that there was even greater warrant for consideration to have been given to this issue in his case, since his role was limited to that of a principal in the second degree in respect of the two break, enter and steal offences, whilst in respect of the remaining matter he was to be sentenced in relation to the less serious offence of receiving. 27In those circumstances I accept that this ground has also been established. In my view the combination of errors which I have identified caused the sentencing process to miscarry with the consequence that the Court should intervene and proceed to re-sentence each of the applicants. 28In re-sentencing the applicants I would adopt the sentencing judge's findings, to which there was no challenge, both concerning the relative objective seriousness of the various offences and the matters that served to mitigate the otherwise appropriate penalties. I have also had regard to the two affidavits which were filed on behalf of the applicant Strickland. They reveal that he has continued to pursue such educational opportunities as are available to him and that he has experienced various challenges to his overall health. I would pay appropriate regard to the fact that the offences which gave rise to Counts 2a, 3a and 4a in respect of each applicant could have been dealt with in the Local Court. I recognise that it is then necessary to consider the manner in which the individual sentences are structured so as to give effect to the principles established in Pearce (supra). That will require consideration to be given to the principle of totality. In that respect, I have proceeded upon the basis that it is necessary to have regard to the total period which the applicants must spend in custody, which includes the sentences which were imposed by the Drug Court. I would confirm the finding of "special circumstances". In my view it is appropriate to impose fixed terms in respect of Counts 2a, 3a and 4a given the manner in which the sentence in respect of Count 1 will be structured. For that reason I would decline to fix non-parole periods in respect of those counts. 29I propose the following orders. Applicant Strickland 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences: (i) In respect of Count 2a, sentence the applicant to a term of 18 months to commence on 18 February 2010; (ii) In respect of Count 3a, sentence the applicant to a term of 18 months to commence on 18 July 2010; (iii) In respect of Count 4a, sentence the applicant to a term of 18 months to commence on 18 December 2010; (iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 18 May 2011 and to expire on 17 August 2013 with a total term of 4 years and 3 months to expire on 17 August 2015. The applicant will be eligible for parole on 17 August 2013. Applicant O'Connor 1 Grant leave to appeal. 2 Allow the appeal. 3 Quash the sentences imposed in the District Court and in substitution therefore impose the following sentences: (i) In respect of Count 2a, sentence the applicant to a term of 12 months to commence on 8 March 2010; (ii) In respect of Count 3a, sentence the applicant to a term of 15 months to commence on 8 June 2010; (iii) In respect of Count 4a, sentence the applicant to a term of 15 months to commence on 8 September 2010; (iv) In respect of Count 1, sentence the applicant to a non-parole period of 2 years and 3 months to commence on 8 December 2010 and to expire on 7 March 2013 with a total term of 4 years and 3 months to expire on 7 March 2015. The applicant will be eligible for parole on 7 March 2013. ********** 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: 29 July 2011