Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wootton v R [2014] NSWCCA 86 Hearing dates: 13 May 2014 Decision date: 21 May 2014 Before: Gleeson JA at [1] RA Hulme J at [2] Campbell J at [3] Decision: 1. Leave to appeal granted; 2. Appeal dismissed Catchwords: CRIMINAL LAW - appeal - appeal against sentence - natural justice - procedural fairness - whether finding that gun crimes are on the rise without giving an opportunity to make submissions on the point constituted a denial of procedural fairness CRIMINAL LAW - appeal - appeal against sentence - whether no evidence to support the finding that gun crimes are becoming increasingly prevalent Legislation Cited: Crimes Act 1900 (NSW), s 112 Criminal Appeal Act 1912 (NSW), s 6 Cases Cited: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; El Masri v R [2014] NSWCCA 13; House v The King (1936) 55 CLR 499; Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32; R v H (1980) 3 A Crim R 53; R v House [2005] NSWCCA 88; R v MacNeil-Brown (2008) 20 VR 677; [2008] VSCA 190; Trajkovski v The Queen [2011] VSCA 170 WCB v The Queen (2010) 2 VR 483 Category: Principal judgment Parties: David Wootton (Applicant) Crown (Respondent) Representation: Counsel: G Brady (Applicant) T Smith (Respondent) Solicitors: Nyman Gibson Stewart (Applicant) Solicitors for Public Prosecution (Respondent) File Number(s): 2010/294414 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-01-31 00:00:00 Before: English DCJ File Number(s): 2010/294414 Judgment 1GLEESON JA: I agree with Campbell J. 2RA HULME J: I agree with Campbell J. 3CAMPBELL J: The applicant was sentenced in the District Court on 31st January 2013 to a term of imprisonment of 10 years and 9 months with a non-parole period of 7 years for the offence of specially aggravated breaking and entering a dwelling and committing a serious indictable offence, contrary to s 112(3) Crimes Act 1900 (NSW). The serious indictable offence was robbery, and the circumstance of special aggravation was being armed with a .22 pump-action long rifle. The applicant indicated he would plead guilty in the days leading up to his trial. 4The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7. Summary of the Facts 5The applicant was one of three co-offenders who committed what is commonly referred to as a "home invasion" on the evening of 22nd August 2010 at the victim's residence in Katoomba. The men were armed with firearms and concealed their identity with either masks or full-face motorcycle helmets. The applicant was wearing a motorcycle helmet and actually carrying the .22 rifle. 6The victim was home with his partner and their two-month old baby when the applicant and his accomplices knocked loudly on the front door at around 8:45 pm. One of them called out "Katoomba Police". The victim opened the door but immediately slammed it shut when he saw the armed, disguised men. He locked it before retreating into the house. One of the three then fired a shotgun through the door. A number of the pellets struck the victim on his left arm, back and neck. 7The offenders kicked in the door and entered the house demanding money and drugs. The victim denied he had any and the accomplices fired shots into the roof, wall and curtains, presumably to intimidate him. In response the victim handed over his wallet containing $1,500. 8The men then demanded to be shown the victim's safe, escorting him to the bedroom where one of them struck him on the back of the head with the butt of a gun, knocking him to the ground. 9The victim managed to escape, running to a neighbour's house. A shot was fired as the men pursued him. These events occurred in the presence of the partner and the baby, who were in the loungeroom. Before chasing the victim the applicant warned the partner to "stay there". 10The offenders then absconded in the applicant's car. In the days following the applicant fled to Victoria. 11Police investigations located the helmet worn by the applicant, the gun carried by him, and ammunition at the applicant's home. The applicant was arrested in Victoria and extradited. Whilst in custody he made a number of telephone calls which were lawfully intercepted and recorded. In them he admitted his involvement in the offence. The applicant's subjective case 12The applicant was 27 years of age when he offended and 29 years when sentenced. He had separated from his partner of 10 years and their three children. He had commenced a new relationship at the time of the offence. 13The applicant's father had an affiliation with an outlaw motorcycle gang and was a drug addict. The applicant suffered physical abuse at his hands. An uncle sexually assaulted him when he was six or seven years old. Dr Furst, a psychiatrist who examined the applicant for the purpose of the case, described him as appearing to be of below average intelligence but no psychometric testing was available. 14The applicant's own drug addiction began at the age of 12 when his father permitted him to smoke cannabis. His daily habit continued until he was in his twenties. He started using heroin at the age of 16 and ceased using it in 2002. He had used amphetamines between 2000 and 2002 to overcome his opiate withdrawal, and occasionally ever since. 15The applicant worked as a tree-lopper and tattoo-ist until 2008 when he suffered injuries in a high-speed motorcycle accident. He used cannabis and heroin as a form of pain relief and was unable to regain employment. 16At the time of sentence, according to the evidence of Dr Furst, the applicant had been in protective custody since his arrest due to his association with outlaw motorcycle gangs. 17Also according to Dr Furst, there was no indication that the applicant was unaware of his actions or their wrongfulness. Whilst in the opinion of Dr Furst the applicant had no signs of paranoia or hallucinations and was not depressed or suicidal, his chronic pain disorder, ongoing substance abuse, limited intellect and the influence of fellow bikie club members may have contributed to his actions at the time of the offence. 18The applicant's criminal antecedents include convictions for driving offences, drug related offences, common assault, contravening an apprehended domestic violence order, using a carriage service to threaten serious harm and an assault occasioning actual bodily harm. 19At the time of committing the offence the applicant was subject to section 9 bonds of 10 months duration imposed by Penrith Local Court for offences of using a carriage service to threaten serious harm and common assault. These crimes were committed in a domestic context. 20There is a suggestion in the report of Dr Furst that the subject offence was committed in retaliation for crimes committed against the applicant. Reasons of the primary judge 21The primary judge allowed a 10 per cent discount for the applicant's late plea. She did not regard his criminal record as one "which aggravates the current offence" nor as one "which disentitles him to leniency". Her Honour also observed that the s 112(3) offence was one of the most serious in the criminal calendar "as can be seen from the maximum penalty and standard non-parole period". 22In assessing the objective seriousness of the offender's offending as one "above the midrange of subjective seriousness", her Honour referred to the maximum penalty and standard non-parole period; the element of the offence of being armed with dangerous weapons; the fact that the weapons were discharged and the victim suffered gun shot wounds and other violence; and the consideration that the victim's partner and child were present. 23As aggravating factors, her Honour also referred to the applicant being on conditional liberty; the significant elements of premeditation and planning; and the aspect of retaliation. 24Her Honour did not accept that the applicant was either contrite or remorseful, rather she formed the view that he regretted the personal consequences of his offending. She found his prospects of rehabilitation, and of avoiding similar offending upon release, were reasonable provided he undertook rehabilitative courses, was abstemious of drugs and alcohol and avoided bad company. 25No parity issue was raised and her Honour had no information about whether the co-offenders had been "charged, convicted or sentenced". 26The primary judge then made the following remarks about general deterrence, which are central to the applicant's grounds of appeal: General deterrence of course looms large. Gun crimes are on the increase and the police and community have a level of expectation that when those who commit crimes involving the use of firearms are sentenced then a message will be sent to the community that these types of offences will not be tolerated. Lives are put at risk when guns are discharged randomly in the commission of the crime, often innocent victims are injured and properties damaged by the indiscriminate discharging of firearms by criminals. The lives of police are put at significant risk in these sorts of circumstances. Grounds 27Four grounds of appeal are advanced as follows: 1.That there was no evidence to support her finding that "Gun crimes are on the increase"; 2.In finding that gun crimes are on the increase the applicant was denied procedural fairness; 3.As a result of her findings she erred by giving more weight to general deterrence as a result of her finding that there was an increased prevalence of gun crimes; 4.In stating "The lives of police are put at significant risk in these sorts of circumstances" being gun crime, there was no evidence to support that finding. Grounds 1 to 3 28The substance of the applicant's written argument in relation to these grounds was that her Honour's observations about an increase in the prevalence of gun crime in this State should be understood as the adoption of an approach by the primary judge that "the increasing prevalence of a particular crime calls for an increase in the preceding pattern of sentencing" as discussed by Wood CJ at CL in R v House [2005] NSWCCA 88 at [23]. The applicant argued that in such circumstances natural justice in sentencing requires both that counsel be warned so he or she may address the issue, and the admission of "proper and sufficient evidence" of increased prevalence justifying an increase in sentence. 29To make good this contention, the applicant relied, not only upon the decision of this Court in R v House, but also on two subsequent decisions of the Supreme Court of Victoria, Court of Appeal. In Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32 Maxwell P said (at [82]): Axiomatically, before prevalence can be taken into account for the purposes of sentencing, a judge must have "some reliable foundation" for the conclusion that the offence is in fact (more) prevalent. And if the judge is minded to impose a more severe sentence on account of (increased) prevalence, then on ordinary natural justice principles the matter must be raised with counsel and an opportunity afforded for submissions to be made. 30In Trajkovski v R (2011) 32 VR 587; [2011] VSCA 170 Weinberg JA, with the agreement of the other members of the Court said at ([103] - [104]): Counsel submitted that it is one thing to say that a particular type of offence is prevalent within the community. The incidence of drug trafficking is a matter of such notoriety that it is hardly necessary, when sentencing, to make reference to that fact. He submitted, however, that it is another thing altogether for a judge, when sentencing an offender, to find that a particular offence is becoming more prevalent and therefore, at least implicitly, warrants more severe punishment. In such circumstances, it was submitted, the requirements of procedural fairness may dictate that the judge should flag his or her intention to approach the matter in that way so that counsel may be heard in relation to it. In my opinion, the applicant is entitled to complain of his Honour's having arrived at that conclusion without the applicant having had the opportunity to address the judge on that point. It follows that I would accept the applicant's submission that his Honour proceeded in error. 31In oral argument, the applicant argued that notwithstanding the formulation of Wood CJ at CL in House at [23], to make good these grounds, it was not necessary for him to demonstrate the sentence imposed represented "an increase in the preceding pattern of sentencing". It was enough if the sentence imposed was heavier than that which would have been imposed absent the perception of an increase in the prevalence of gun crime. With respect, how this comparison was to be made without reference to an established pattern or range (assuming this is permissible) so that a sentencing judge would know a warning was required was never made clear. 32The Crown submitted that her Honour's remarks should not be understood in context as a finding of an increasing prevalence of gun crime calling for an increase in the pattern of sentences. Rather, it was argued that her Honour's remarks represented no more than the discharge of the primary Judge's duty to draw upon her own experience and knowledge of human affairs to reflect on community attitudes to offending of this type: House at [17]; R v H (1980) 3 A Crim R 53 at [75] per Begg J. The Crown also relied upon WCB v R (2010) 29 VR 483, a joint decision of Warren CJ and Redlich JA, constituting the Court, (at 493 [33]) to argue that the sentencing judge is entitled to "take account of public attitudes to the type of crime in question and public concern about the prevalence of a type of crime or about its effects, and have regard in a general way to a public expectation that serious crime will attract severe punishment.". 33It is worthy of interpolation that their Honours emphasised that the permissible reference to the community carries an "underlying assumption of an objective, fully informed community that [understands] the range of sentencing that would be appropriate in the circumstances" (WCB at 497 [44]). 34The Crown relied upon the recent case of El Masri v R [2014] NSWCCA 13 where a sentencing Judge's reference to "the apparent increasing prevalence of illegal firearms in the community" passed without negative comment. Indeed, in disposing of that matter Hulme AJ, with whom Basten JA and Hidden J agreed, referred to "the prevalence of drive-by shootings". However, this may not be the same thing as an "increasing prevalence". 35Notwithstanding the changed emphasis in oral argument, in my judgment the cases relied upon by the applicant establish that to make good his ground, he must demonstrate that: (a) without proper basis in the material before her Honour: and (b) without notice to the applicant, the sentencing Judge decided to impose a heavier sentence than that justified by a prevailing pattern, to take account of an increasing prevalence of the offence in question, whether for the purpose of general deterrence, or denunciation. 36Absent a legitimate expectation that the sentence will fall within some established range, no practical injustice can flow for the reasons discussed by four justices of the High Court of Australia in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 at [44]-[49]. Absent permissible reliance on an established range this Court cannot assess whether, and how, the failure of the primary judge to warn counsel to invite further argument might have deprived the applicant of the opportunity, even as a possibility, of a more favourable outcome. It is not said the sentence is manifestly excessive. 37Leaving aside the Victorian practice established in R v MacNeil-Brown (2008) 20 VR 677; [2008] VSCA 190, disapproved of by the High Court in Barbaro, for the reasons discussed in Barbaro at [24] - [28] there are difficulties with a sentencing court permissibly identifying a preceding pattern or "setting the bounds of the range of sentences within which the sentence should (or could) have fallen" (Barbaro at [28]). "Setting bounds" is not a requirement of the sentencing task. It is worth setting out in full the following passage from Barbaro: Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, "[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform" (original emphasis). No less importantly, any determination of the bounds of an available range of sentences would have to depend upon first, what considerations are judged to bear upon the fixing of sentence and second, what effect is given to those considerations. Hence, if a party to sentencing proceedings proffers a range of sentences as the range within which a particular sentence should be imposed upon an offender, the range will necessarily reflect conclusions or assumptions (stated or unstated) which have been made about what considerations bear upon sentence and what weight is given to each. As Buchanan JA rightly said in MacNeil-Brown, even if those conclusions and assumptions were all to be exposed, "it is not possible to explain the part played by those facts and factors in arriving at the figures advanced by counsel without resorting to the mathematical approach" to sentencing which this Court has rejected. ....... The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel. (My emphasis) 38The applicant's case at one level of abstraction is that he was not given a fair hearing because the Judge took into account factual material not in evidence without notice to the parties, namely "[g]un crimes are on the increase". Expressed this way an infringement of the "hearing rule" aspect of natural justice may have occurred. However, the argument advances only the conclusion for which it contends. Expressed this way, the error is asserted, not demonstrated. 39In my judgment, the correctness of the argument has not been demonstrated. As the cases of House, Phormmalysak and Trajkovski relied upon by the applicant establish, demonstration of error in the present context depend upon showing that the sentence represents "an increase in the preceding pattern of sentencing" or previously accepted available range. Given what the High Court has recently said in Barbaro about the availability of "ranges" and emphasising that fixing of the appropriate sentence for the offence and the offender is the sole responsibility of the sentencing Judge, it is difficult to see how natural justice could impose a duty on the Judge to warn counsel, or provide advance notice of, the result he or she has in mind. Naturally, if a Judge chooses to give an indication that foreshortens legitimate persuasion by counsel he or she may not depart from it without allowing the opportunity for further argument. No such thing occurred here. 40Moreover, with great respect to learned counsel, there is a certain air of artificiality about the argument in the present case. It is said to be impermissible for a sentencing Judge to rely upon an increasing prevalence of the offence in question as a fact, matter or circumstance relevant to the fixing of a sentence without notice, but permissible to rely upon a perceived prevalence per se. The error in the present case is said to be that the Judge said, "[g]un crimes are on the increase"; but her Honour might have said "gun crimes are too common" without error. I confess that this is too nice a point for me. 41This is not to say that reliance upon an unsubstantiated rising prevalence of an offence can never found a right of appeal in accordance with the principles discussed in House v The King (1936) 55 CLR 499. It may be possible to demonstrate that by relying on such a consideration, the sentencing Judge has misapprehended the facts, or taken into account an irrelevant consideration, i.e. an unsubstantiated belief about an increasing prevalence of the subject crime, in a material way. That, however, is not the argument advanced here. 42I appreciate that the primary Judge took time to consider the appropriate sentence in this matter. Even so, her Honour's judgment must be read fairly, as a whole, and without an eye too finely attuned to the detection of error. Reading the impugned paragraph in the context of the whole judgment, I am of the view that when discussing the relevant consideration of general deterrence, as one only of all of the circumstances of the offence and the offender relevant to the sentence, which her Honour referred in the course of her reasons, her Honour was not singling out a perceived rising prevalence of gun crime as a determinative factor in fixing the sentence. 43I would reject Grounds 1, 2 and 3. Ground 4. 44Ground 4 focuses upon the last sentence of the impugned paragraph. Her Honour is recorded as having said: The lives of police are put at significant risk in these sorts of circumstances. Of course, the lives of police were not put at risk in the circumstances of the applicant's offence. The applicant and his co-offenders had absconded before the police had the chance to respond to the emergency call. The applicant points out that there was no risk to any police officer in the present case, and argues that her Honour used this irrelevant consideration as an aggravating factor. 45The Crown suggests that the word "police" may be a slip of her Honour's tongue, or perhaps, a mistranscription. On this argument, the word "police" should be read as "people". There is some contextual support for this argument. In the preceding sentence her Honour spoke of "lives ... at risk" as a general incident of gun crime. 46As the reasons were delivered after time for consideration, I am not persuaded that "police" in the final sentence is a mistake. Rather, as the context was general deterrence, I consider that her Honour was speaking generally of the possible consequences of gun crime, rather than referring specifically to the facts of the present case. There can be no doubt that when criminals arm themselves, police officers called on to arrest them may be "put at significant risk". I am not persuaded that her Honour used this consideration as an aggravating feature of the present offending. She was merely making an observation about the evils of gun crime generally, as she was entitled to do. 47I would reject ground 4. Police Expectation 48In the impugned paragraph, the learned primary Judge said, "the police and the community have a level of expectation ... that these type of offences will not be tolerated" (my emphasis). No complaint is made about the reference to "police expectation". 49Police perform vital, indeed crucial, work in the administration of criminal justice. They detect and solve crimes; arrest and bring offenders before the court; they investigate and gather the evidence by which the prosecution will establish guilt beyond reasonable doubt. The importance of this work should not be underestimated in any way. 50However, just as prosecutorial opinion as to the "available range" of sentences is irrelevant for the reasons explained in Barbaro at [42] - [43], so too is the expectation of the police service about the appropriate sentence. Like the opinion of the prosecutor (or defence counsel for that matter), the view of the police about the appropriate range "will necessarily reflect conclusions or assumptions (stated or unstated) which have been made about what considerations bear upon sentence and what weight is given to each". (Barbaro at [35]). With respect, the reference to police, as opposed to community, expectation should not have been made. Section 6(3) of Criminal Appeal Act 1912 51If I were wrong in my conclusions, I would, nonetheless, conclude that no lesser sentence is warranted at law. The offending conduct in this case involved a very serious degree of criminality. It was a premeditated offence involving the actual use of multiple dangerous weapons which were discharged in the course of the offence. The victim suffered gunshot wounds. And the guns were fired when the three offenders were unlawfully in the victim's home whilst the victim's partner and young baby were present. The victim was also struck on his head by one of the co-offenders during the offence. 52As to planning, the offenders armed themselves with loaded firearms and deliberately attempted to conceal their identities using masks or helmets. They forced their way into the victim's home after shooting through the front door. They discharged further shots, even firing at the victim whilst he fled to a neighbouring house. Her Honour correctly, and unsurprisingly, assessed the objective seriousness as above the mid-range. 53Moreover, the offence was committed whilst the applicant was on conditional liberty. 54When proper regard is had to the degree of objective seriousness of the offence, taking into account the applicant's, on the whole less than compelling, subjective case and paying proper regard to the legislative guidance offered by the standard non-parole period of 7 years and the maximum penalty of 25 years, no other and lesser sentence is warranted in law. 55I propose the applicant be granted leave to appeal, but the appeal be 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: 21 May 2014