Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v CONNELL [2013] NSWCCA 155 Hearing dates: 11 June 2013 Decision date: 03 July 2013 Before: Hoeben CJ at CL at [1] Harrison J at [65] Beech-Jones J at [66] Decision: Crown appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - 13 counts of demand money with menaces with intent and 11 counts of knowingly deal with the proceeds of crime - initial demand and threat not made by offender - Crown appeal - substantial overlap in offending - money laundering counts directly related to demand counts - inappropriateness of Crown relying on parity principle - general deterrence - whether sentences aggregated was manifestly inadequate - Crown appeal dismissed. Legislation Cited: Crimes Act 1900 - s99(2), s193B(2) Crimes (Sentencing Procedure) Act 1999 - s53A Criminal Appeal Act, 1912 - s5D Cases Cited: Brent Redfern v R [2012] NSWCCA 178 Delaney v R; R v Delaney [2013] NSWCCA 150 House v R [1936] HCA 40; 55 CLR 499 Jiang v R [2010] NSWCCA 277 Lowndes v R [1999] HCA 29; 195 CLR 665 Markarian v R [2005] HCA 25; 228 CLR 357 Pearce v R [1998] HCA 57; 194 CLR 610 R v Nykolyn [2012] NSWCCA 219 Category: Principal judgment Parties: Regina - Applicant Crown Joseph Glen Connell - Respondent Representation: Counsel: Mr R Herps - Applicant/Crown Mr I McLachlan - Respondent Solicitors: S Kavanagh - Solicitor for Public Prosecutions - Applicant Crown Marsdens Law Group - Respondent File Number(s): 2010/298498 Decision under appeal Date of Decision: 2012-12-17 00:00:00 Before: Charteris DCJ File Number(s): 2010/298498 Judgment 1HOEBEN CJ at CL: Offences and sentence The respondent pleaded guilty to an indictment which contained 24 counts. There were 13 counts of demand money with menaces with intent, contrary to s99(2) of the Crimes Act 1900, which carries a maximum penalty of imprisonment for 14 years. The first of those counts occurred on 13 May 2010 and the last on 7 September 2010. There were also 11 counts of knowingly deal with the proceeds of crime contrary to s193B(2) of the Crimes Act 1900 which carries a maximum penalty of imprisonment for 15 years. The first of those offences occurred on 20 May 2010 and the last on 7 September 2010. 2The respondent was sentenced by Charteris DCJ at the Sydney District Court on 17 December 2012. His Honour imposed an aggregate sentence of imprisonment for 3 years and 3 months, with a non-parole period of 1 year and 9 months, commencing 1 February 2012 and expiring 31 August 2013. The balance of term would expire on 30 April 2015. 3These proceedings are brought by the Director of Public Prosecutions, pursuant to s5D of the Criminal Appeal Act, 1912. Notice of the Appeal was signed on 7 March and served on the respondent on 9 March 2013. Factual background 4The full factual background to this matter is set out in the matter of Delaney v R; R v Delaney [2013] NSWCCA 150. 5On 1 May 2010 the victim opened a tattoo parlour at Raymond Terrace. On 3 May 2010 three members of the Rebels Motorcycle Club entered the tattoo parlour, threatened the victim and directed that he pay $200 per week or "we can run you out of town if you don't pay". One of the persons who made this threat and demand was Darren Delaney and another was Julian Ivory. 6On 4 May 2010 the victim, as a result of various phone calls, met with Messrs Delaney and Ivory at a nearby fast food restaurant and handed over the initial amount of $200. 7The respondent's first appearance and participation in the joint criminal enterprise to extort protection money was on Thursday, 13 May 2010. He went to the victim's shop and said "I'm Joe. I'm here to pick up the protection money". The money was in fact not paid to the respondent on this occasion because it had been previously collected by another member of the Rebels Motorcycle Club, Gregory Stolzenberg. 8The respondent subsequently attended the victim's shop on twelve occasions after 13 May 2010 until 7 September 2010 and received various amounts in cash from him. As a result of complaints by the victim, the police made observations of the respondent's activities from 13 May 2010. 9When the victim complained of difficulties in maintaining payments, the amount required to be paid was slightly reduced and the payments were made monthly rather than weekly. On at least one occasion, the respondent's attendance at the tattoo shop was electronically recorded by the police. 10On 7 September 2010 police officers stopped the vehicle in which the respondent and another male were travelling as passengers. Both men were arrested and searched. The police located cash in the amount of $1,817.30 of which $750 was cash supplied by the police to the victim earlier that day and handed by him to the respondent. 11The offences of knowingly deal with the proceeds of crime related to the receipt of monies by the respondent as a result of the demands with menaces on 11 occasions. Grounds of Appeal 12The Crown relied upon the following grounds of appeal. Ground 1: In imposing an aggregate sentence under s53A of the Crimes (Sentencing Procedure) Act, 1999, his Honour failed to assess the criminality of each individual offence or the way he came to the view as to the overall length of the sentence. Ground 2: His Honour erred in imposing identical penalties for the money-laundering offences and the offences of demand property with menaces in company. Ground 3: His Honour failed to have regard to the aggravating feature. Ground 4: His Honour did not have regard to "matters of parity". Ground 5: The failure to have regard to the respondent's role. Ground 6: His Honour erred in treating the respondent's bail conditions as a form of quasi-custody. Ground 7: His Honour erred in the extent to which a finding of special circumstances has altered the non-parole period. Ground 8: The failure to acknowledge the significance of general deterrence. Ground 9: The sentences are individually and as aggregated manifestly inadequate. THE SENTENCE PROCEEDINGS 13His Honour noted that the respondent's pleas of guilty had not been entered at the earliest stage, but on the day the matters had been listed for trial. Accordingly, his Honour allowed a discount of 10 percent to reflect the utilitarian value of those pleas of guilty. 14His Honour noted that it was an agreed fact that the respondent had joined in the criminal enterprise to extort monies on an ongoing basis from the victim after the initial threats had been made. By doing so, he had adopted the threats made on 3 and/or 4 May 2010 by others. It was common ground that the respondent did not personally utter threats or menaces to the victim. 15In relation to the objective seriousness of the offending, the primary judge referred to the surveillance footage and noted that the victim on occasions was very distressed, but that this did not prevent the respondent from taking money from him. This was despite the fact that on one occasion, the victim advised the respondent that just days previously, the victim's son had hanged himself. His Honour characterised the behaviour of the respondent generally as "callous in the extreme". 16The primary judge reviewed the respondent's subjective case. At the time of sentence he was aged 50, having been born in 1962. He had first come to the notice of the courts when aged 16, and thereafter had a long history of offences of dishonesty. In 1982 he was fined for stealing and in 1989 he was convicted of goods in custody. He had a number of convictions for drug offences. In 1990 he was fined for assault and the following year was sentenced to community service for assault occasioning actual bodily harm. On two occasions in 2003 he was convicted of being in possession of a prohibited weapon. Between 2008 and 2009 he had been convicted of common assault and various breaches of a domestic violence order. Eventually he was sentenced to 9 months imprisonment in respect of one of those matters, which was suspended. The suspended sentence was imposed on 7 September 2009 which meant that the respondent was subject to that suspended sentence when the first six counts on the indictment occurred. 17The primary judge had before him a psychological report. The respondent was the youngest of four boys and there was a large age difference between his older brothers and himself. His father abused alcohol and was violent towards his mother. The respondent had run away from home when he was 13 as a result of the conduct of his father. At the age of 14 the respondent went to live with one of his older brothers. When he turned 21, the relationship with his father improved because he could "fully hit back". When the respondent was able to defend himself, his father ceased directing physical violence towards him. 18The respondent was not a good student. He repeated years at school and truanted on a number of occasions. He left school effectively in year 7. The respondent is unable to read or write. 19The respondent worked as a labourer in Stockton near Newcastle until he was 21. Thereafter his employment was intermittent at best and he spent many years in receipt of unemployment benefits. When he was 38 he worked for 5 years in a screen-printing and graphic design business with a friend, but the business was never really successful and it failed in 2004. Apart from some gardening and lawn mowing, the respondent has done little work since then. 20The respondent has had a number of relationships. He has a son aged 29 of one relationship. The respondent acknowledged to the psychologist that he had been violent towards his girlfriend in that relationship when he was drug affected. At age 29 he entered another relationship which lasted 15 years. There were three children of that relationship; a daughter 19 and two sons aged 18 and 6. The respondent used cannabis throughout that relationship, but did not engage in domestic violence against that partner. He did assault his partner's brother which resulted in the AVO to which reference has already been made. That relationship finally ceased approximately 6 years before the respondent came to be sentenced. 21The respondent has been in his present relationship for about 4 years. His partner is only 24 years of age, has a daughter from a prior relationship and a son and daughter to the respondent aged respectively 2 years and 13 months. All of those children, including the step-daughter were in foster care at the time of sentence. 22The respondent acknowledged to the psychologist that he had formed negative peer associations from an early age and was introduced to drug abuse and crime by older persons. He became a member of the Rebels Motorcycle Club approximately 5 years before because he experienced a "sense of belonging" to that Club. Since his arrest, he had severed all ties with the club. 23The respondent acknowledged that he had substantially abused alcohol during the first relationship, but had been substantially abstinent during the second, although he had used cannabis more heavily. He had been using cannabis since he was a teenager. He said that he used cannabis to "relax". 24The psychologist concluded that violence was normal in the respondent's family in his early years and that as a result, he had begun exhibiting problems with anger and impulse control from a young age. She concluded that he had limited life management skills and an unsophisticated psychological insight, together with low self esteem, anger management and impulsivity problems. She recommended counselling, directed to his abuse of cannabis and his tendency to associate with peers who led him into trouble. She recommended drug and alcohol counselling and anger management counselling. 25His Honour had before him a victim impact statement in which the victim described how his business had been "wrecked" by the conduct of the respondent and other Rebels Motorcycle Club members. The victim had become emotionally and mentally unstable, making it difficult for him to obtain employment. While his Honour took into account the undoubted adverse effect of the respondent's conduct on the victim, he also noted that there were a number of other factors which had led to disruption of the victim's life, in particular the suicide of his son. 26The primary judge characterised the respondent's behaviour as serious and said that it was made worse because the criminal activity occurred over 4 months and involved 13 visits to the tattoo shop to extort money. Although the amount involved was less than $3000, his Honour accepted that the sentence to be imposed must reflect the community's abhorrence of such behaviour. Even though he didn't make the initial threats, the applicant had taken advantage of them. 27The respondent did not give evidence in the sentence proceedings. His Honour was not prepared to accept that he was merely a "foot soldier" in the activities of the Rebels Motorcycle Club, but did accept that he was in a lesser position to Mr Ivory, who seemed to be in charge of the payment procedure. 28The primary judge took into account that the money taken from the victim was not only for the respondent's benefit, but was to be shared amongst other members of the Rebels Motorcycle Club. His Honour noted that the respondent had spent approximately 9 months and 17 days in custody and had been subject to rigorous bail conditions for 18 months while he was out of custody. Because of his bail conditions, and the fact that he had been required to report to police in excess of 500 occasions, his Honour backdated the commencement date for his sentence by one month. 29In relation to aggravating factors, his Honour accepted that the offences were part of an organised criminal activity. He was not prepared to take into account the element of financial gain, since this formed part of the offences. His Honour said that while he took into account the injury and harm to the victim, he did not regard it by itself as an aggravating matter. His Honour also had regard to the maximum penalties prescribed for these offences. 30His Honour thought that other than the plea of guilty there were no mitigating factors. His Honour accepted that he should make a finding of special circumstances because of the need for the respondent to have a longer period of supervision to try to achieve rehabilitation. 31Rather than impose 24 separate sentences, his Honour sought to utilise s53A of the Crimes (Sentencing Procedure) Act 1999 and to impose an aggregate sentence. Had he not utilised that provision, his Honour indicated that he would have imposed sentences of 1 year and 9 months for each offence, with a non-parole period of 12 months. 32Although the Crown has relied upon 9 separate grounds of appeal, they all relate to the question of manifest inadequacy and are said cumulatively to establish that result. Accordingly, each ground of appeal can be briefly dealt with. Ground 1: In imposing an aggregate sentence under s53A of the Crimes (Sentencing Procedure) Act, 1999, his Honour failed to assess the criminality of each individual offence or the way he came to the view as to the overall length of the sentence. 33The Crown submitted that the indicative sentences identified by his Honour for each offence did not adequately take into account that the respondent was serving a suspended sentence when the first six offences occurred and made no distinction between the two different types of charges. In that regard, the Crown relied upon the observations of RA Hulme J in R v Nykolyn [2012] NSWCCA 219 where his Honour said: "56 McClellan CJ at CL has referred (at [31] - [32]) to the provisions of s 53A, including the requirement in s 53A(2)(b) that a court must indicate to the offender, and make a record of, the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. In an apparent attempt to give effect to this requirement, the sentencing judge in this case said: "I am imposing an aggregate sentence. In my opinion each of these four offences is of similar seriousness and each would warrant, taking into account the discount for early plea, a sentence of four years imprisonment. There would have to be a degree of accumulation." 57 With respect to the judge, this would appear to be doing little more than paying lip service to the requirement in s 53A(2)(b). I do not understand how the same sentence for each offence can be justified. True it is that they were offences of a similar (but not identical) nature and that the maximum penalty for each was the same. However, the judge was asked to take into account further offences when he sentenced for two of the offences; a reason in itself for the individual sentences to vary. The judge appears to have taken a similar approach to that taken by the sentencing judge in R v Brown [2012] NSWCCA 199, described there (at [26]) as applying a "blanket assessment". 58 The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal." 34The facts in this case and those in Nykolyn are quite different. In this case the offences contrary to s99(2) Crimes Act 1900 were identical and there was no logical basis to differentiate one from the other. Because the offences were part of a continuing course of conduct, there was a need for accumulation which did occur as the aggregate sentence makes clear. 35As more fully discussed in Delaney at [37] and [66] it would have been wrong for the primary judge to have increased the aggregate sentence by having regard to the 11 "deal with the proceeds of crime" charges. This was because of the significant overlap between the s99(2) and s193B(2) offences. 36As was said in Pearce v R [1998] HCA 57; 194 CLR 610 by the plurality (McHugh, Hayne and Callinan JJ): "40 To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 37The relationship and overlap between the two sets of offences in this matter was such that there was no error on the part of his Honour in imposing the same sentence for each of the s193(2) offences as for the s99(2) offences and making them wholly concurrent. If anything, the fact that the sentences for the offences contrary to s193B(2) were wholly concurrent with those for the s99(2) offences was adverse to the respondent in that Pearce made it clear that in such cases where there was a significant overlap, the sentences imposed for related matters should be less rather than the same. 38This ground of appeal has not been made out. Ground 2: His Honour erred in imposing identical penalties for the money-laundering offences and the offences of demand property with menaces in company. 39This ground has already been dealt with in the discussion in relation to ground 1. To the extent that there was an error, it favoured the Crown and was adverse to the respondent. This the Crown fairly conceded. 40As the Crown appreciated, not only was this issue analysed in Pearce but more recently in analogous circumstances, the situation was discussed by Adams J in Brent Redfern v R [2012] NSWCCA 178 where his Honour said: "17 It is self evident, as it seems to me, that the totality of the applicant's criminality in the charged offences is not increased by the fact that he had in his possession the money paid to him for the supply of the drugs. It would be as sensible to have charged and punished him additionally with possession of the drugs for the purpose of supplying the undercover police officer because he had the drugs in his possession. Both the possession of the drug itself and the proceeds of sale are part and parcel of the primary offence. It needs hardly to be said that it is immaterial that he had the cash in his possession at the point of sale as distinct from in the safe in his home. To punish him additionally for either one of those aspects of his conduct is to double count ..." 41To the extent that any error occurred it favoured the Crown. Ground 3: His Honour failed to have regard to the aggravating feature. 42The Crown submitted that although his Honour had correctly found that the fact that the offences were part of an organised criminal activity was a matter of aggravation, he did not reflect that finding in the sentence which was imposed. 43His Honour referred to this aggravating feature. There is nothing in his Honour's analysis of the various competing considerations in this matter to indicate that his Honour did not take that factor into account as part of the process of intuitive synthesis which resulted in the sentence. 44This ground of appeal has not been made out. Ground 4: His Honour did not have regard to "matters of parity". 45This matter was also dealt with in Delaney at [68] - [70]. 46As there stated, the parity principle is one of amelioration designed to benefit offenders. It was not developed as a means by which the Crown could have sentences increased. 47This ground has not been made out. Ground 5: The failure to have regard to the respondent's role. 48The Crown submitted that his Honour's assessment of the objective seriousness of the offending and the part played by the respondent in it was not reflected in the aggregate sentence imposed. The Crown emphasised the primary judge's observation that not only was each offence serious, but when viewed as a continuing course of conduct, the severity of the criminal behaviour was increased. The Crown submitted that this finding was not reflected by the aggregate sentence. 49As with ground 3, his Honour took this matter into account and discussed it in some detail in his sentence judgment. There is nothing to suggest that he did not have it in mind when imposing the aggregate sentence. 50This ground of appeal has not been made out. Ground 6: His Honour erred in treating the respondent's bail conditions as a form of quasi-custody. 51The Crown submitted that it was not open to his Honour to backdate the commencement of the aggregate sentence by one month because of the bail conditions fulfilled by the respondent over 18 months. This was because the respondent had not been in a residential facility and because his Honour did not find that the bail conditions were onerous. 52The choice of a commencement date for a sentence is a discretionary matter. In this case, his Honour indicated the basis for his exercise of discretion. He referred to the restriction on the respondent's liberty over the 18 months that he was on bail and to the fact that he was required to report to police "in excess of five hundred occasions". His Honour adjusted the commencement date for the sentence by one month to take these matters into account. I am not persuaded that his Honour's discretion miscarried by doing so. 53This ground of appeal has not been made out. Ground 7: His Honour erred in the extent to which a finding of special circumstances has altered the non-parole period. 54The Crown submitted that the ratio between the non-parole period and the head sentence was 60 percent, which in the circumstances of this offending was manifestly inadequate. 55The Crown accepted in the sentencing proceedings that a finding of special circumstances was open to his Honour. Accordingly, the only issue which appears to be raised by this ground is the extent of the adjustment made by the primary judge. This has always been a matter of discretion in respect of which this Court has been slow to intervene (Jiang v R [2010] NSWCCA 277). Given the nature of the rehabilitation identified by the psychologist, I am not persuaded that his Honour's exercise of discretion on this issue miscarried. 56This ground of appeal has not been made out. Ground 8: The failure to acknowledge the significance of general deterrence. 57The Crown submitted that although his Honour referred to the seriousness of the offending, he did not in terms acknowledge the significance of general deterrence. The Crown submitted that in offences of this kind, general deterrence is an important principle because of the need: To protect certain members of the community. To discourage this kind of offending. 58It is true that the primary judge did not use the words "general deterrence". What his Honour did say (ROS 14.1) was: "The sentence I impose must reflect the community's abhorrence of behaviour such as this." This, it seems to me, is an acknowledgement of the importance of general deterrence, particularly having regard to the context in which the observation was made. The focus of his Honour's remarks in this part of the sentence judgment was on the protection of persons conducting a business and the deterring of offending conduct of this kind. 59This ground of appeal has not been made out. Ground 9: The sentences are individually and as aggregated manifestly inadequate. 60The appellant submitted that for the reasons set out in the other grounds of appeal and because the s99(2) offences were serious examples of this type of offence, were part of an organised criminal activity and would have continued indefinitely if it had not been for police intervention, the aggregate sentence imposed was manifestly inadequate. 61As the Crown acknowledged, in order to make good this ground, it was necessary to establish that the aggregate sentence was inadequate in the well recognised sense that it was unreasonable or plainly unjust: (Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371). It is also the case that absent error, this Court may not substitute its own opinion for that of the sentencing judge merely because (if it be the case) the Court would have exercised its discretion differently (Lowndes v R [1999] HCA 29; 195 CLR 665 at 671 - 72). Intervention is warranted only where error is established in accordance with the principles in House v R [1936] HCA 40; 55 CLR 499 at 505. 62I am not persuaded that the obligation undertaken by the Crown in making out this ground of appeal has been discharged. While the aggregate sentence may be regarded by some as somewhat lenient, it is certainly within the appropriate range for offences of this kind. The respondent did not initiate the extortion but only "later became a party". While each attendance involved a separate act of criminality, the overlap between all of the offences was considerable. At no stage did the respondent utter threats or menaces. Those matters together with the respondent's unfortunate upbringing confirm my conclusion that the sentence imposed by the primary judge is not manifestly inadequate. 63This ground of appeal has not been made out. 64The orders which I propose are as follows: (1) The Crown appeal is dismissed. 65HARRISON J: I agree with Hoeben CJ at CL. 66BEECH-JONES J: I agree with Hoeben CJ at CL and the orders his Honour proposes. ********** 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: 03 July 2013