Marshall v R [2013] NSWCCA 16

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Marshall v R [2013] NSWCCA 16 Hearing dates: 4 February 2013 Decision date: 13 February 2013 Before: Latham J at [1] Button J at [2] Grove AJ at [3] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: APPEAL - appeal against sentence - pleas of guilty - break and enter - commit serious indictable offence - error in placing greater weight on Form 1 matter - offence punishable by fine. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Summary Offences Act 1988 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Category: Principal judgment Parties: Matthew Marshall (Applicant) Regina (Crown) Representation: Counsel: D. Carroll (Applicant) R. Herps (Crown) Solicitors: B. Sandland Legal Aid NSW (Applicant) S. Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2011/124665 Decision under appeal Date of Decision: 2012-05-03 00:00:00 Before: Sides DCJ File Number(s): 2011/124665

Judgment 1LATHAM J: I agree with Grove AJ. 2BUTTON J: I agree with Grove AJ. 3GROVE AJ: On 3 May 2012, the applicant appeared before Sides DCJ at Parramatta District Court where he pleaded guilty to breaking and entering a dwelling house and committing a serious indictable offence namely intimidation (count 1) and assault occasioning actual bodily harm (count 2). Both offences occurred on 15 April 2011. His Honour was asked to take into account pursuant to the Form 1 procedure an offence of entering a vehicle without consent contrary to s 6A of the Summary Offences Act 1988 (NSW). This offence occurred on 8 April 2011 and carried a maximum penalty of 4 penalty units, that is a fine of up to $440. It was not an offence for which imprisonment could be imposed. 4Giving ex tempore reasons, his Honour sentenced the applicant on count 1 to a non-parole period of 18 months with a total term of 3 years commencing on 15 April 2012 and on count 2 to a non-parole period of 6 months and a total term of 8 months commencing on 15 December 2011. 5Immediately prior to formal imposition of those sentences, his Honour said: "The Court, I think, omitted to say that when considering deterrence and retribution in connection with count 1 it took into account the matter on the Form 1 schedule relating to the motor vehicle." 6The single ground of appeal is: "His Honour erred in placing greater weight on personal deterrence and retribution in connection with Count 1 by virtue of an offence on a Form 1 (enter vehicle without consent of owner) which had as a maximum penalty a fine". 7A lengthy statement of agreed facts was put before the Court. For present purposes, it will suffice to extract there from a short sketch of some of them. Near to 4:00am on 15 April 2011, residents, Mr and Mrs Esprisito, were disturbed by external noise and saw a Honda Jazz motor vehicle in their driveway and a hooded man (the applicant) nearby. Police were called. On arrival they identified the Honda as having been reported stolen on 8 April 2011 (the date on the Form 1 offence). They saw the applicant nearby and called on him to stop. He ran away. A perimeter was established with additional police and a search was commenced. At about this time, residents of another dwelling, Mr Wakim and Ms Trifigoli, heard their dog barking at their laundry door. On investigation, Mr Wakim found that the applicant was inside and opening the door was resisted. Once it was forced open, the applicant punched Mr Wakim on the face (count 2) and commenced to fight. In the course of this altercation, the applicant said he would give Mr Wakim $4000 if he let him go. Receiving no reply, he then said "I've got a needle full of AIDS". Finally, the applicant grasped a spray can and attempted to hit Mr Wakim on the head, after which he fled. However, a neighbour, Mr Reyna, hearing the commotion, which included Ms Trifigoli screaming, intercepted the applicant who, upon being detained by Mr Reyna, repeatedly said that he had a syringe. Mr Wakim arrived to assist as did police who arrested the applicant and handcuffed him. No syringe was located but a syringe cap was found inside a hose at the Wakim residence. 8The applicant had a considerable prior record which I do not need to detail. He was on parole at the time of these offences. The Crown Prosecutor noted that he had been in custody for about nine of the previous 10 years, a circumstance which persuaded the sentencing judge to find special circumstances because of the risk of the applicant becoming institutionalised. 9The applicant's parole was revoked on account of these offences and other breaches. The submission in support of the ground was, in summary, that it was impermissible for his Honour to take into account the guilt of the offence on the Form 1 which was punishable only by fine in assessing the custodial sentence for count 1. It follows, it was submitted, that his Honour was limited to two options, either to ignore the Form 1 offence or decline to take it into account as requested. 10The procedure for taking further offences into account is provided by Division 3 Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Act"). It is clear that a judge may decline the request, the operative provision specifying that a court "may" take the further offences into account (s 33(2)). The procedure is not limited to offences carrying custodial sentences, a definition of imposing a penalty includes imposing a sentence of imprisonment or fine (s 31). 11There is no statutory inhibition upon taking into account an offence punishable only by fine when imposing a custodial sentence. The applicant's argument is that his Honour's remarks show that he must have extended the assessed custodial term on count 1 by reason of taking into account the offence to which the minor penalty was attached. The argument should be rejected. 12An examination of Division 3 Part 3 of the Act was undertaken in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. Spigelman CJ (with the concurrence of four other judges) after analysis summarised the situation: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence. The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay [2002] NSWCCA 286 at [69])" 13It is plain that the sentencing judge's ex tempore reference to deterrence and retribution showed his consciousness of what had been said in this authority. His statement that he took the Form 1 offence into account does not imply that he extended the assessment of the custodial sentence on count 1 and it is not shown that he was other than appropriately focused throughout on sentencing for the primary offence. The ground has not been made out. I would grant leave to appeal but dismiss the appeal.