Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Madden v R [2011] NSWCCA 254 Hearing dates: 15 November 2011 Decision date: 29 November 2011 Before: Whealy JA at [1] Simpson J at [2] Hislop J at [39] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - aggravated break enter and commit serious indictable offence - serious indictable offence of stealing - circumstance of aggravation being in company - plea of guilty - delay of 20 months between offence and arrest - applicant sentenced during intervening period for offences subsequently committed - grounds of appeal assert failure properly to take into account delay and principle of totality - history of incarceration - extent to which sentences may have been imposed concurrently if dealt with together - no evidence before sentencing judge regarding the other offences - not the role of a sentencing judge to make independent inquiries - no error in approach demonstrated - emphasis on the standard non-parole period - no error of the kind in Muldrock v The Queen demonstrated - leave to appeal granted - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Way v The Queen [2004] NSWCCA 131; 60 NSWLR 168 Muldrock v The Queen [2011] HCA 39 Category: Principal judgment Parties: Trent Madden (Appellant) Regina (Respondent) Representation: Counsel G Corr (Applicant) T Smith (Respondent) Solicitors Aboriginal Legal Service (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 09/267599 Decision under appeal Jurisdiction: 9101 Citation: [2010] NSWDC 337 Date of Decision: 2010-11-05 00:00:00 Before: Berman DCJ File Number(s): 09/267599 Judgment 1WHEALY JA : I agree with Simpson J 2SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court on 5 November 2010 following his plea of guilty to a single count of aggravated break, enter and commit serious indictable offence. The serious indictable offence was stealing. The circumstance of aggravation was that the applicant committed the offence whilst in company. 3Pursuant to s 112(2) of the Crimes Act 1900, the offence carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act "), it carries a standard non-parole period of five years. However, as will be explained below, the standard non-parole period can be put to one side. Berman DCJ sentenced the applicant to imprisonment for 4 years and 6 months, commencing on 30 November 2009, and ending on 29 May 2014, with a non-parole period of 2 years and 6 months which will expire on 29 May 2012. In doing so, he allowed, in respect of the plea of guilty and pursuant to the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 a reduction of 25%; and, pursuant to s 44(2) of the Sentencing Procedure Act , he found special circumstances justifying variation from the statutory ratio between the head sentence and the non-parole period. The facts 4The offence was committed on 16 March 2008. During the evening of that day, the applicant, in company with a female co-offender (who has not been identified) smashed the front glass door of an Australia Post Office in Marrickville. The two offenders entered the premises and removed a large amount of property, predominantly computer related. Also included in the property stolen were a large number of tickets of various kinds for the Royal Easter Show. The value of the property stolen was about $4,250. 5During the investigation into the offence, a bloodstain was located on a piece of paper in the office. On analysis, it proved to contain DNA consistent with that of the applicant. Although the premises were covered by closed circuit television, the footage obtained was insufficiently clear to identify the applicant; the only evidence upon which the Crown relied was the DNA evidence. However, apparently due to delays in the Division of Analytical Laboratories, the results of DNA testing were not produced to investigating police until October 2009. The applicant was arrested and charged with this offence on 30 November 2009. In the meantime, he was sentenced in relation to other matters. On 19 September 2008 he was sentenced to an aggregate term of 8 months' imprisonment, with a non-parole period of 6 months, in respect of offences of larceny, goods in custody, destruction of property, and related matters; and on 11 March 2009 he was sentenced to imprisonment for 12 months with a non-parole period of 9 months in respect of two counts of stealing. The non-parole period of that sentence expired on 9 November 2009, and the applicant was released on parole. 6It was three weeks later - on 30 November 2009 - that he was arrested and charged in relation to the present office - committed 20 months earlier. That is a matter that will call for consideration in the context of the grounds of appeal sought to be raised. 7There was no information provided to the sentencing judge concerning the offences for which the applicant was sentenced in September 2008 and March 2009. That, too, will call for consideration in the context of the grounds sought to be raised on appeal. The applicant ' s personal circumstances 8Before the sentencing judge was a pre-sentence report prepared by Mr Geoffrey Silva, an officer of the Probation and Parole Service. The applicant gave oral evidence, as did his father. From this evidence, the following emerged. The applicant was born in December 1983 and was therefore 24 years of age at the time he committed the offence. He is of Aboriginal heritage, one of ten children of a close and supportive family. His father is involved in the Aboriginal community as a cultural and heritage officer. 9The applicant has a criminal record that dates back to 2001, when he was about 18 years of age. At that time two concurrent control orders, each of seven months' duration, with an overall non-parole period of three months, were imposed in the Children's Court. When released on parole his response was "less than satisfactory". He again appeared in the Children's Court the following year, in respect of offences committed while on parole. On this occasion he was sentenced to a custodial term of 12 months, with a non-parole period of 9 months. Again, his compliance with parole conditions was less than satisfactory. Since then, the applicant has repeatedly been before the courts, for a variety of offences, although, in the sentencing judge's view, of less seriousness than the offence the subject of the present application. 10The applicant showed promise as a sportsman, particularly in Rugby League, and was given the opportunity to attend selective sports schools. He has worked at times with his father, in Aboriginal Land Council and Aboriginal museums. At about 16 years of age he began using illicit drugs, smoking heroin, which he began injecting at 20. This effectively brought to an end any hope he had of a career as a sportsman. 11His family remains supportive. His father's evidence was that the family had experienced such concern with the applicant's conduct that they considered themselves involving the police. 12The applicant gave evidence that in 2004 he had attended a rehabilitation facility, but that, even though he completed the programme, on his discharge he again succumbed to drug use. As at the date of giving evidence (5 November 2010) he was on a methadone programme, and had been so for 18 months. He said that he was attempting to reduce the methadone dose, and substitute another, alternative, drug that he considered would be more beneficial to him. He expressed his intention of achieving rehabilitation, resuming TAFE studies and becoming independent. He has been in a relationship with a young woman for 18 months, which he hopes will continue, and he hopes to have a family in due course. 13Also in evidence was a letter written by the applicant, addressed to "Dear Sir/Madam", which is undated. In this letter the applicant expressed his remorse and regret for his involvement in the offence, and said that he was under the influence of drugs at the time and "wasn't thinking straight". He acknowledged that that was no excuse. The remarks on sentence 14Berman DCJ opened his remarks on sentence by commenting on the delay in the provision of the DNA testing. He noted that, in the meantime, the applicant had served a sentence for an unrelated matter and had been released only shortly before being arrested in respect of the present offence. He said: "I have begun these remarks by referring to his circumstances because of the injustice that can caused to an offender when inadequate resources are provided to the Division of Analytical Laboratories, such that offenders stand to be sentenced for offences they have committed some considerable time before. In some cases, although this is not one of them, offenders are completely different people, having rehabilitated themselves by the time they stand for sentence on an old offence. I have borne in mind to a significant extent that [the applicant] stands for sentence today for an offence committed a fair while ago." He then recounted the facts of the offence and evidence concerning the applicant's personal circumstances in a manner that has not been challenged. 15While expressly accepting that the applicant was remorseful, and that he had committed the offence under the influence of drugs, and that he wished "to put his life of crime behind him" and rehabilitate himself, his Honour also appears to have harboured some doubt about the prospect of that being achieved. In any event, he held that those circumstances could not override the need to punish the applicant for the offence, nor the need for both personal and general deterrence to be reflected in the sentence. 16His Honour made, on a number of occasions, specific reference to the standard non-parole period. It is best to quote verbatim what he said, in various parts of his Remarks. His Honour said: "It is to be noted that this offence carries with it a standard non-parole period of 5 years, nor is it to be overlooked that the maximum penalty for this offence is 20 years imprisonment. This is, as both of those figures indicate, a serious offence. [The solicitor for the applicant] handed to me Judicial Commission statistics regarding the sentences that have been imposed in the District Court for offences of this kind. They revealed some remarkable circumstances. Of 449 people sentenced to imprisonment since the imposition of the standard non-parole period for offences of this kind, not a single person has received a non-parole period longer than the standard non-parole period and only 1%, five people out of 449, have received the standard non-parole period. In part, that may well be due to the circumstance that most of the people dealt with for that offence have been dealt with for aggravated break, enter and steal. The standard non-parole period, which is of course appropriate to an offence in the middle of the range of objective seriousness, would thus be more likely to be imposed for an offence where the indictable offence committed after breaking and entering is a more serious one. Even with that qualification it is remarkable that the intention of the legislature does not appear to have been met. That said, I must regard the Judicial Commission's statistics as providing guidance to me as to the sentence I should impose upon the [offender]. ... I will be guided by the Judicial Commission's statistics despite the remarkable features of them that I have mentioned. ... It was [the applicant's solicitor's] primary submission that having been in custody for just short of one year I should impose a sentence on the [offender] which sees him being released today so that further rehabilitation can take place in the community. I have given anxious consideration to whether I should do what [the solicitor] asks. The primary reasons I will not do what [the solicitor] submitted that I should relate to the length of the standard non-parole period and the length of the maximum penalty which the legislature has provided. In view of the [offender's] continuing attitude of disobedience to the law, in view of the absence of demonstrated rehabilitation, in view of the objective gravity of what he did on this occasion, and in view of, as I have just mentioned, the standard non-parole period and the maximum penalty of 20 years, a non-parole period of less than one year would be significantly and manifestly inadequate. ..." 17In the course of his Remarks on Sentence his Honour made an express finding that the applicant's offence was "slightly below" the middle of the range of objective seriousness of offences of its type. That was a reference to s 54A(2) of the Sentencing Procedure Act , the opening section of Pt 4 Div 1A, which specifies that the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences of the type under consideration. 18Returning to the question of delay, his Honour said: "I have borne in mind also that had he been arrested for this offence soon after it was committed he might have served the sentence for this offence concurrently with others he has served in the meantime. One difficulty however with accepting what [the solicitor] said about that issue is that I do not know anything about those other offences and so when applying the principle of totality as I must I am hampered by the fact that I know nothing about the other offences for which he was sent to gaol." 19His Honour proceeded to make the finding of special circumstances referred to above, giving as one of the reasons for that that the applicant would be serving sentences cumulatively (when, as he had earlier observed, there may have been some concurrency had the circumstances been otherwise). He referred the applicant to the Drug Court for determination as to his suitability for a compulsory drug treatment order. The grounds of the application 20The grounds of the application are pleaded as follows: "Ground 1: His Honour failed to properly take into account the principle of totality Ground 2: His Honour failed to properly take into account the delay in sentencing Ground 3: His Honour failed to inquire further into the nature of the previous offending." 1 & 2. Totality/Delay 21These two grounds are interconnected and can be dealt with together. 22It is necessary to be clear about the nature of the complaint made. No ground of appeal contends that the sentence, of 4 years and 6 months, with a non-parole period of 2 years and 6 months, was not appropriate to the circumstances of the offence. When his oral argument appeared to approach such a submission, counsel disclaimed any such intent, but argued that the sentence was, at least, "getting towards" being manifestly excessive. That argument was put in the context of the accumulation of the sentence on the previously-imposed 9 months. 23The real argument, paraphrased, was that consideration of the sentence the subject of this application could not be made in isolation from the applicant's recent history of incarceration. During the course of the sentencing proceedings, the solicitor who then appeared for the applicant put before the sentencing judge what he called a "time line". The chronology is as follows: 16 March 2008: subject offence committed 9 April 2008: bloodstained paper "taken" 1 May 2008: Reference DNA sample from applicant 19 September 2008 Applicant sentenced to imprisonment for 8 months, commencing on 29 May 2008, non-parole period 6 months, expiring 28 November 2008 28 November 2008 Applicant released 11 March 2009 Applicant sentenced to imprisonment for 12 months, commencing 10 February 2009, non-parole period 9 months, expiring 9 November 2009 October 2009: DNA results provided to investigating police 9 November 2009 Applicant released on parole 30 November 2009 Applicant arrested in respect of present charge. (Not all items on the list can be located in the evidence before this Court, but there appears to be no dispute about the accuracy of the chronology.) 24The point sought to be made by counsel on this application was that, as a result of the delay in DNA testing, the applicant was not, as he otherwise might have been, sentenced at one time for all offences committed after 16 March 2008 (assuming those offences were committed after that date, something which is likely although not confirmed by the evidence). The hypothesis was that, had the applicant been sentenced for all offences at the one time, or for the present offence and one or other of the subsequent offences, the principle of totality would have operated, with the likelihood that the sentences imposed would have had some degree of concurrency, resulting in a reduced total term of imprisonment. As it happens, the applicant has been in custody for 6 months from 29 May 2008 to 28 November 2008, 9 months from 10 February 2009 to 9 November 2009, and from 30 November 2009 to the present, and will, on the orders made by Berman DCJ, remain in custody until at least 29 May 2012. 25The principal difficulty with the submission, as is evident from those passages of the Remarks on Sentence which I have quoted, and which is seized upon in the formulation of the third ground of appeal, is that Berman DCJ was provided with no information about the subsequent (September 2008 and March 2009) offences, and was in no position to evaluate the extent to which, had they been dealt with together, some concurrency in the sentences imposed would or might have eventuated. 26It cannot reasonably be said, in the light of passages of the Remarks on Sentence which I have extracted, that his Honour did not take into account either the delay in sentencing, or the principle of totality. His Honour commenced his Remarks by mentioning the delay, and made specific reference to being "hampered" in the application of the principle of totality by the lack of information about the subsequent offences. 27I have concluded that neither of these grounds of the application can succeed. In the circumstances, no error in this regard has been shown in the approach taken by the sentencing judge. 3. Failure to make inquiries about the subsequent offences 28This is, in my opinion, a ground of application that can only be characterised as "bold". The applicant was, at sentencing, represented by a solicitor who, from the transcript, appears to have been experienced. Either he, or the Crown, could have made available to the sentencing judge the relevant material concerning the subsequent offences. 29The nature of the ground ignores the fact that, even in sentencing proceedings, the courts of NSW operate on an adversarial system. The roles of counsel and the judge are clearly defined and trespassing by one upon the role of the other is not to be encouraged, certainly not by this Court. It is not the role of a judge to seek out evidentiary material, nor to determine the scope of the evidence put before him or her. Although, when this was raised with counsel on the application, it was said (I have no doubt correctly) that it does happen, in sentencing, that judges sometimes identify additional material that would assist them in the sentencing process, a judge must be very circumspect in intruding into the role of counsel. 30It is quite unfair to make this criticism of the sentencing judge. 31I would reject this ground of the application. 32In the ordinary course, that would result in dismissal of the appeal, assuming leave were granted. However, there is another matter that has arisen since the grounds of this application were formulated. That concerns his Honour's approach to the standard non-parole period. That approach was entirely in conformity with the law as it was then understood, as stated in Way v The Queen [2004] NSWCCA 131; 60 NSWLR 168. In Muldrock v The Queen [2011] HCA 39 the High Court declared that Way was wrongly decided. Nevertheless, together with the prescribed statutory maximum sentence, the standard non-parole period stands as a "legislative guidepost" ( Muldrock , [27]). 33It will be apparent from the passages of the Remarks which I have quoted above, that his Honour gave considerable emphasis to the standard non-parole period of 5 years. On the other hand, however, he also declared his intention to be guided by the statistics provided to him, which, he said, indicated that the standard non-parole period was not being applied and, by inference, that the decision in Way was not being strictly followed. 34In my opinion, however, the preponderance of the Remarks indicate that he gave considerable emphasis to the standard non-parole period, particularly in rejecting the submission of the applicant's solicitor that a period of imprisonment of about one year would sufficiently acknowledge the applicant's criminality. (With or without the foundation of the standard non-parole period, that finding was perfectly correct.) 35It remains the case, even post- Muldrock , that a sentencing judge is to be "mindful" of both the maximum sentence for which provision is made, and the standard non-parole period as "legislative guideposts": ( Muldrock , at [27]). However, the standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction (at [56]); even less is the standard non-parole period the starting point for sentence after a plea of guilty. 36Although I have considered it necessary, in fairness to the applicant, to raise the Muldrock issue, I have concluded that no error of the kind exposed in that judgment has been disclosed. While it was not necessary ( Muldrock , [25]) to fix the offence on a scale of objective seriousness that his Honour did so (in accordance with the law as it was understood at the time of sentencing) did not deflect the judge onto an erroneous course. 37In relation to the pleaded grounds of appeal, I add this. In response to the third ground in particular, the Crown provided the Court with material concerning the offences for which the applicant was sentenced subsequent to the commission of this offence. No objection was taken to our reception of that material, which I have read. It does not persuade me that there was any real likelihood that had it been available to Berman DCJ, he would have reduced the sentence imposed in order to accommodate some notional concurrency, or totality. The offences were of stealing from the person (3 counts), stealing from a retail store, stealing from a motor vehicle, common assault and damage to property, committed over a period from 18 March 2008 to 9 February 2009. They bore no connection to the present offence, and, in my view, did not call for concurrency with the present offence. 38Accordingly, I would grant leave to appeal, but dismiss the appeal. 39HISLOP J : I agree with Simpson 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: 29 November 2011