Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Boyd v R [2012] NSWCCA 279 Hearing dates: 30 October 2012 Decision date: 14 December 2012 Before: Basten JA at [1] Adams J at [2] R A Hulme J at [3] Decision: Leave to appeal granted. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - past criminal history not in itself relevant to finding of remorse or contrition - sentencing judge entitled to reject evidence of remorse CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in not finding special circumstances - discretionary decision - judge adverted to the issue but declined to make the finding - no error Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33 Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Caristo v R [2011] NSWCCA 7 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 Rees v R [2012] NSWCCA 47 R v Wickham [2004] NSWCCA 193 Category: Principal judgment Parties: Darren John Boyd (Applicant) Regina (Respondent) Representation: Counsel: Ms N Mikhaiel (Applicant) Ms H Wilson (Respondent) Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions File Number(s): 2010/8469 Decision under appeal Jurisdiction: 9101 Date of Decision: 2011-03-18 00:00:00 Before: King DCJ File Number(s): 2010/245927 Judgment 1BASTEN JA: On 30 October 2012 the Court granted the applicant leave to appeal, but dismissed the appeal. I join in the reasons of R A Hulme J for making those orders. 2ADAMS J: I agree with the reasons of R A Hulme J. 3R A HULME J: At the conclusion of the hearing of the application for leave to appeal against the severity of sentence, the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in the making of those orders. 4Darren John Boyd (the applicant) sought leave to appeal against the severity of sentences imposed upon him in the District Court by his Honour Judge King SC on 18 March 2011 in respect of offences committed on 7 November 2009. 5The most serious offence was one of aggravated break, enter and commit serious indictable offence. The circumstance of aggravation was that he was armed with a weapon and the serious indictable offence was intimidation. Section 112(2) of the Crimes Act 1900 prescribes a maximum penalty for this offence of imprisonment for 20 years. A standard non-parole period of 5 years also applies. 6The sentence imposed was one of 4 years 8 months with a non-parole period of 3 years 6 months. 7Mr Boyd was also sentenced for an offence of destroying or damaging property whilst in company. Section 195(1A)(a) of the Crimes Act prescribes for this offence a maximum penalty of imprisonment for 6 years. 8He was sentenced to imprisonment for a fixed term of 14 months to be served concurrently with the sentence for the other offence. 9Both sentences were specified to commence on 18 March 2011 (the date of imposition) and so the applicant will become eligible for release on parole on 17 September 2014. 10I shall refer to these sentences as being for the "nightclub offences" as it is necessary to differentiate them from sentences imposed for subsequent offences to which I refer below. 11Mr Boyd seeks to rely upon the following grounds of appeal. In written submissions it was indicated that his complaint is confined to the sentence for the s 112(2) offence: Ground 1: The learned sentencing judge erred in finding that the applicant's past criminal history impacted on the applicant's remorse or contrition. Ground 2: The learned sentencing judge erred in refusing to find special circumstances. Facts 12The following is derived from a statement of agreed facts that was before the sentencing judge. 13The offences occurred at a nightclub named Club M at The Entrance, on the New South Wales Central Coast. Sometime on the night of 6-7 November 2009, whilst the club was still trading, there was an incident between security staff and Mr Boyd's two co-offenders, Jayden Rees and Leslie Reilly. The pair argued with the security staff and another person; they each in turn wielded a pole that resembled a pool cue at them and Rees punched one of them. In the end they all shook hands and Rees and Reilly left. The applicant was not present. 14Rees and Reilly returned to the nightclub at about 4.00am after it had finished trading but this time they were accompanied by the applicant. He explained in his evidence before the sentencing judge that Rees and Reilly were his friends. He had been "passed out on the lounge" from having consumed a "large amount of alcohol" when they came to his home and he accompanied them to the nightclub. He was at a loss to remember why. 15When club staff saw the three men arrive they sought to lock up the premises. The applicant and his co-offenders vigorously attempted to breach the steel framed and panelled front door and when they were unsuccessful they went around the back to try the fire exit. They then returned to the front door and managed to force entry by pulling up the lower section until its padlocks and lugs broke. 16Rees was armed with a hammer and the applicant was armed with a long pole resembling a pool cue as they entered the main bar area. Rees swung the hammer in the direction of a security guard and also used it to damage the granite bar top. He then threatened the manager with the hammer. The applicant passed him the pole and Rees used it to strike the manager. A short time later the applicant held a bottle at shoulder height in the manager's direction. 17By the time police arrived the incident was all but over. The nightclub staff gave very little assistance to the police and did not complain of any injury. The incident involved limited planning and there was evidence that the applicant and his co-offenders had been substantially affected by alcohol at the time. 18Police originally charged the applicant with affray, but upgraded the charges after viewing CCTV footage from the club. He was charged with the offences for which he was ultimately sentenced by way of future court attendance notice. 19It would appear that retribution for the earlier incident was the likely explanation for Rees and Reilly returning to the nightclub. Mr Reilly told the author of a psychological report that was before his Honour, "We were pissed as farts, got thrown out and returned". He was unable to recall why they returned. Rees said in his evidence that he had no recollection of what happened after the first incident. In those circumstances they were unable to explain how it was that the applicant came to accompany them, and neither was he. 20The sentencing judge took a rather dim view of the applicant's offences: The offending behaviour was outrageous, and evidences a significant degree of violent criminality against property and citizens entitled to go about their lives and business free of such conduct. Offending conduct such as this significantly undermines the confidence and security of the public, whether it be in the street or in private premises, albeit a commercial operation. Subjective features 21The applicant was aged 36 at the time of the offences and is now 39. 22He has a substantial criminal history which commenced in the Children's Court in 1987 when he was 15. Crimes of violence include assault occasioning actual bodily harm; robbery; using an offensive weapon to prevent lawful apprehension; furious driving causing bodily harm; assault; wilfully obstructing an officer; assaulting, resisting and intimidating police officers; and affray. There are multiple entries for some of those offences. There are numerous convictions for other offences as well, many of an alcohol or drug related nature. There are also entries relating to the breaches of periodic detention orders, home detention, a bond, and, on three occasions, parole (in 2002, 2003 and 2005). 23A Pre-Sentence Report recorded that the applicant was single and resided alone in rental accommodation on the Central Coast. He derived from a dysfunctional familial environment with his father being alcohol dependent and his parents separating when he was aged 10. His father committed suicide when he was aged 20 and the author of the report noted that this appeared to have had a profound and continuing emotional impact on the applicant. Alcohol abuse in a binge drinking fashion had been a longstanding issue for him and seems to have been the antecedent cause of the unfortunate catalogue of offences in his criminal history. 24An eight month period of parole in respect of offences of driving whilst disqualified and driving with the high range prescribed concentration of alcohol was completed without incident on 5 November 2009, two days before the nightclub offences were committed. The applicant's parole officer recorded that he had "matured significantly and has received much gratification from his resolve to abstain from illicit drugs, reduce his alcohol use and the ability to finish his qualifications and obtain full-time skilled work". However the applicant told the author of the Pre-Sentence Report that he had resumed drinking in about August 2009 and his consumption had soon returned to harmful levels. 25The applicant completed an electrical fitter/mechanic trade certificate at TAFE in 2009 and had been employed in that capacity for several years. His employer spoke highly of his abilities and was prepared to support him. 26He had engaged in psychological counselling and had attended two sessions by the time the Pre-Sentence Report was prepared (September 2010). The psychologist was reported to have intimated that the applicant had been forthright in discussing his issues with alcohol and resulting behaviour. 27Letters written by the applicant's mother and sister indicated their support for him, particularly in his desire to enter a residential rehabilitation program at The Glen Centre at Chittaway Point. A letter from the intake officer at that centre confirmed that a place was available for him. 28The applicant gave evidence at the sentence hearing that although he no longer used drugs he acknowledged having "a serious problem with alcohol". He had been seeing a psychologist, a drug and alcohol counsellor and had attended AA meetings. He had never undertaken any residential rehabilitation program. He was willing to pay for the damage caused at the nightclub. Proceedings in the District Court 29The proceedings in relation to the co-offenders were heard together with those concerning the applicant. The co-offenders were sentenced by his Honour on 17 December 2010 but the sentencing of the applicant was deferred because he had a pending appeal from the Local Court against the severity of sentences imposed for offences he committed subsequent to the nightclub offences ("the subsequent offences"). Ultimately the appeal was listed before his Honour for determination on 18 March 2011, and the judge imposed sentence for the nightclub offences on the same occasion. 30The offences the subject of the appeal were affray and intimidation of a police officer, both committed on 24 July 2010. The offender spent three days in custody before being released on bail but returned to custody because of a breach of bail on 22 October 2010. When sentencing the applicant, the magistrate failed to make any allowance for the initial three days he had spent in custody but that was rectified by Judge King at the appeal. Otherwise, his Honour maintained the terms of the original sentences. They were a fixed term of 3 months imprisonment for the intimidation offence commencing 19 October 2010 and a cumulative 2 years, with a non-parole period of 12 months, for the affray commencing 19 January 2011. 31His Honour described the affray as "a significant and serious offence" and said that there was "no justification in the circumstances, particularly of his past criminal offending, to find that the sentences imposed by the learned Magistrate were inappropriate". Rather, he considered that they were "entirely appropriate". 32His Honour then imposed sentence in respect of the nightclub offences. Despite what he had said about the seriousness of the affray, he ordered that there be substantial concurrency of the sentences for the two groups of offences such that the applicant would serve only 5 months in custody solely referrable to the subsequent offences. 33The partial accumulation and partial concurrence of the two groups of sentences was considered by this Court in the appeal of one of the co-offenders: Rees v R [2012] NSWCCA 47. Mr Rees contended that he had a justifiable sense of grievance in that although the sentence imposed upon him for the nightclub incident was identical to that imposed upon Mr Boyd, the practical effect was that the latter would serve a non-parole period of only 2 years 8 months solely referrable to it, whereas he would serve a period of 3 years 6 months. It was held (at [61] - [66] per Garling J) that the need for the sentencing judge to consider and give effect to the principle of totality in sentencing Boyd was a perfectly acceptable explanation for the difference in the two sentences. 34It is also worth observing that in Rees v R, Garling J, with the concurrence of Macfarlan JA and R S Hulme J, regarded the identical sentence which had been imposed upon Rees as "at the low end of the appropriate sentencing range" (at [67]). Chronology 35A chronology may assist to understand the sequence of the events I have set out above. 6.3.09 Applicant released on parole. 5.11.09 Parole expired without breach. 7.11.09 Nightclub offences committed (subsequently charged by way of future court attendance notices). 24.7.10 Affray and intimidation offences committed (arrested; remained in custody for 3 days prior to release on bail). 22.10.10 Entered custody for breach of bail for affray and intimidation offences. 9.12.10 Sentence hearing for nightclub offences commenced. Adjourned to 17.12.10. 15.12.10 Sentenced in Local Court for affray and intimidation (total of 2 years 3 months with non-parole period 1 year 3 months to date from 22.10.10 - severity appeal to District Court filed). 17.12.10 Sentence hearing for nightclub offences concluded - co-offenders sentenced - applicant's sentencing deferred pending resolution of severity appeal. 18.3.11 Severity appeal determined (sentences confirmed but to date from 19.10.10). Sentenced for nightclub offences (total 4 years 8 months with non-parole period 3 years 6 months commencing 18.3.11). Ground 1 (error in taking into account criminal history on the question of remorse) 36The submissions for the applicant focussed upon the following passage of the remarks on sentence: While the Court accepts that the offender regrets his current situation, his past history does not allow the Court to accept that he is generally [sic - genuinely?] remorseful or contrite, nor can it be accepted that there is a good prospect of rehabilitation, or that he is unlikely to re-offend. 37It was submitted that it was erroneous for his Honour to have found that the applicant's past history impacted on the issue of remorse or contrition. This was said to be "especially so when there had been clear expressions of remorse such as those made by the applicant in his evidence and to the writer of the pre sentence report". The history was only relevant to the applicant's rehabilitation prospects and risk of re-offending. 38An offender's criminal history might be relevant in various ways. It may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Wickham [2004] NSWCCA 193 at [24] per Howie J. But on its own it could not conceivably have a bearing upon an offender's claim of remorse, and if the criminal history was used in that way in this case I would be prepared to find that such use was erroneous. 39The submission for the Crown was to the effect that this single passage in his Honour's sentencing remarks was being taken out of context. It appears in the course of a discussion of the applicant's history generally. Consideration of his "past history" was not confined to the criminal history. 40Evidence upon which a finding of remorse might have been based comprised the following from the applicant: Q. Are you able to recall or are you able to tell us today why you went along with them [the co-offenders]? A. No, not really but I do feel deep remorse and regret for what we done. Q. Remorse and regret for who? A. For the people at the Club M and being a waste of time with everyone. Q. I'm sorry? A. Because of the incident at Club M and that and the patrons and the staff there. (AB 286) 41He also gave evidence to the effect that he accepted responsibility for the choices that he made and that it was "a foolish mistake". He was not cross-examined and it was not submitted for the Crown that the evidence should not be accepted. 42The Pre-Sentence Report included that the applicant appeared to accept responsibility and acknowledged "the serious nature of his offending and the impact his behaviour had on the victims". 43The solicitor appearing for the applicant submitted to his Honour that the pleas of guilty that were entered in the Local Court added credibility to the evidence he gave "that he is sorry for his actions". He acknowledged, however, that the applicant's credibility might be adversely affected by the fact that he told the author of the Pre-Sentence Report that "he felt somewhat threatened and intimidated by the co-accused to participate in the subject offences". As I have noted earlier, the applicant said in his evidence that he had no recollection at all as to how or why he became involved. 44The submissions for the applicant seem to assume that if the judge had not taken into account "the applicant's past criminal history" he would necessarily have found that he was genuinely remorseful. It seems clear to me that the judge did not accept the applicant's evidence. Finding that an offender is genuinely remorseful is a matter for a sentencing judge's discretion. His Honour had the advantage of seeing and hearing the applicant give evidence. Whilst it was open to him to accept the applicant's evidence, he was not obliged to accept it notwithstanding that it was not challenged by the Crown. As Buddin J observed in Alvares v R; Farache v R [2011] NSWCCA 33 (with the concurrence of McClellan CJ at CL and Schmidt J): [65] As I have said the determination of questions of fact, such as the extent to which remorse has been shown, is quintessentially a task that falls to the sentencing judge. Indeed, a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge. 45The "past history" that I believe the judge was referring to was the conjunction of the applicant's alcohol dependence, his continual transgressions of the criminal law (both before and after the nightclub offences), and his often unsatisfactory responses to supervision. Such a history entitled his Honour to be sceptical about a claim of "deep regret and remorse". He did accept that the applicant was regretful of his current situation but rejected his claim of remorse. If there was error, I believe that at most it was one of infelicity of expression and could not warrant the intervention of this Court. Ground 2 (refusal to find special circumstances) 46It was submitted that the following matters pointed to a finding of special circumstances and that such a finding "ought to have been made": The fully accumulated terms of imprisonment imposed in respect of the Wyong offences [the subsequent offences of 24 July 2010]. The applicant's long standing problem with alcohol and, formerly, drugs. The applicant's recent positive performance on parole. The efforts that the applicant had made to obtain his trade qualifications and to obtain and keep paid employment. The efforts that the applicant had made to obtain counselling for both his alcohol and emotional issues. 47The short answer to this submission is that a finding of special circumstances is a discretionary matter. His Honour turned his mind to the question of making such a finding and declined to do so. He said: The Court has considered but not found special circumstances. 48After announcing the sentences he added: I have taken into account, considering the term confirmed in respect of the severity appeal this morning in respect of the affray and intimidation charges, that the total sentence by way of accumulation of the non-parole period in relation to the severity appeal, together with the partially concurrent non-parole period in respect of the present matters, will mean that in terms of the overall relationship of the accumulated non-parole period to the balance of term is not in accord with the usual relationship provided pursuant to s 44 of the Crimes (Sentencing Procedure) Act. As previously indicated, the Court has not found special circumstances: that includes taking into account that the Court could find special circumstances on the basis of the accumulation of the non-parole periods as referred to in Wakefield [2010] NSWCCA 12 at para 26. In the Court's view, the overall period of accumulated non-parole periods is the minimum time that the offender should spend in custody in relation to the matters concerned in the severity appeals, and the matters before the Court for sentence, and that the balance of term provided in respect of the sentence matters provides for an appropriate length of liberty on parole. (ROS 13-14) 49The partial accumulation of the sentences for the nightclub offences upon the sentences for the subsequent offences meant that the applicant was subject to an overall term of imprisonment of 5 years 1 month with a non-parole component of 3 years 11 months. The latter is 77 per cent of the total. 50It would have been open to the judge to slightly reduce the non-parole period so that the period of mandatory custody and the total effective sentence was in the same proportions as that indicated in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. His Honour was aware of this and made the deliberate choice not to make that adjustment. There was no statutory or other requirement for him to do so. 51It was not suggested that his Honour overlooked any of the other matters relied upon by the applicant. I do not accept the submission for the applicant at the hearing in this Court that too much emphasis was placed upon the criminal history. This is simply a case in which there were factors that could have supported a finding of special circumstances but the sentencing judge declined to make the finding. 52In Caristo v R [2011] NSWCCA 7, with the concurrence of Giles JA and Adams J, I set out the following non-exhaustive summary of principles applicable to appellate review of the discretionary exercise of setting the non-parole period of a sentence under s 44 of the Crimes (Sentencing Procedure) Act: [27] The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34]. [28] A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. [29] "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36]. [30] Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22]. [31] The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp, above, at [31]; Trad v R [2009] NSWCCA 56 at [33]. 53The judge in the present case gave attention to the question of whether any adjustment of the non-parole period was required and concluded in the negative. That was a conclusion that was open to him in the exercise of his discretion; accordingly, intervention by this Court is not justified. 54It was also contended in relation to this ground that there was error in a failure to give reasons for declining to find special circumstances. That contention is untenable in light of the extract from the sentencing remarks I have set out earlier. The final paragraph of that extract indicates that his Honour was mindful of the principle that a non-parole period should reflect the minimum period of time which justice requires an offender to serve in order to reflect all of the circumstances of the offence: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 at 367; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 531; and Hili v The Queen; Jones v The Queen [2010] HCA 45, (2010) 242 CLR 520 at 533 [40]. Reference to that principle alone was sufficient to explain why no finding of special circumstances was made. Orders 55It was for these reasons that I joined in the making of the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** 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: 14 December 2012