Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McGeown v R [2014] NSWCCA 314 Hearing dates: 27 August 2014 Decision date: 17 December 2014 Before: Leeming JA at [1] Adams J at [23] Fullerton J at [54] Decision: 1.Leave to appeal granted. 2.Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - appeal against sentence - whether sentence manifestly excessive - relevance of starting point to appropriateness of sentence - objective seriousness of offence - relevance of brazen nature of offence - "ram-raids" as a class of offence - comparable cases of ram-raid Legislation Cited: Crimes Act 1900 (NSW), s 112, s 112(2), s 154G Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, 23(1), s 23(3), s 33, s 44 Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 Forbes v R [2009] NSWCCA 292 Graham v R [2009] NSWCCA 212 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Johnson v R [2009] NSWCCA 204 Kaminic v R [2014] NSWCCA 116 Leslie v R [2009] NSWCCA 203 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 McDonald v R [2011] NSWCCA 2 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 R v Adzioski [2013] NSWCCA 69 R v Lolesio [2014] NSWCCA 219 R v Reilly; R v Smith [2012] NSWCCA 166 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 TYN v R [2009] NSWCCA 146 Wong v The Queen [2001] HCA 64; 207 CLR 584 Yang v R [2012] NSWCCA 49 Category: Principal judgment Parties: Catherine McGeown (Applicant) Regina (Respondent) Representation: Counsel: B. Neild (Applicant) S. Dowling SC (Respondent) Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/377929 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-12-16 00:00:00 Before: Townsden DCJ File Number(s): 2012/377929 Judgment 1LEEMING JA: I have had the advantage of reading Adams J's judgment in draft. I respectfully disagree with the orders which his Honour proposes granting leave to appeal, allowing the appeal and imposing a lesser sentence; I would dismiss the appeal. His Honour's description of the factual background, the objective and subjective features of the matter, and of other decisions, enables me to explain my reasoning concisely. 2The applicant pleaded guilty to one count of aggravated break, enter and commit a serious indictable offence (namely, larceny), contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was that she was in company. There were three other offences taken into account on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the serious offence of assaulting a police officer in the execution of her duty. The maximum penalty is 20 years imprisonment and the standard non-parole period is 5 years. 3The sentencing judge imposed a sentence of 4 years imprisonment with a non-parole period of 20 months. The only ground for which leave is sought to appeal is that the sentence was manifestly excessive. 4Adams J's reasons reproduce the agreed facts of the "ram-raid" of a pharmacy in Sans Souci and the theft of medication and a small amount of cash in the early hours of 4 December 2012. In light of the submissions about the relevance of the "brazen" nature of the conduct, I would supplement those facts with the following, drawn from the statement of agreed facts tendered at the sentencing hearing. After being used to crash through the front glass window of the pharmacy, the stolen Nissan Navara was used to effect an escape from police. The Navara reversed at speed into a fully marked police vehicle, causing extensive front end damage to the latter. The senior constable who was the passenger in the police vehicle chased the Navara on foot, smashed the rear nearside window and held the nearside pillar. However, the driver did not stop, but accelerated. The senior constable let go for safety. The Navara was pursued by a second fully marked police vehicle. Shortly thereafter, the Navara stopped suddenly and, again, reversed at speed into the second police vehicle "in a clear attempt to immobilise the pursuing police vehicle". That attempt was unsuccessful, but when the pursuit resumed, the Navara once again stopped suddenly and reversed at speed colliding with the police vehicle, such that it could no longer continue. 5As Adams J's reasons disclose, the applicant pleaded guilty at the first opportunity, was found to show remorse and contrition, and comes from a seriously disadvantaged background, reflected in her addiction and her extensive criminal history. It may be accepted that she was affected by drugs throughout the entirety of the offending for which she was sentenced. Moreover, the applicant provided valuable assistance to police, which, together with her early plea, gave rise to an unchallenged entitlement to a 50% discount on sentence. 6On the other hand, the offences took place while the applicant was on bail, and while she was subject to six good behaviour bonds imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing judge found that there was some degree of planning, although such planning was minimal. 7The sentencing judge found that the offence was above the mid-range of seriousness for offences of this type. The applicant said it was not clear whether that was a reference to "ram-raid" offences, break enter and steal more generally, or offences under s 112(2) of the Crimes Act. On a fair reading of his reasons, I consider that his Honour was referring to break enter and steal, not to the much wider range of conduct that falls within s 112(2) once the range of serious indictable offences which constitute an element of that offence is borne in mind. That accords with the approach adopted in other offences of this type, and indeed with the approach adopted by the applicant's own submissions. 8The applicant did not steal the Navara, nor was she driving it at any time, however she was in the vehicle when it reversed into the front glass display window of the pharmacy, and left it in order to steal the prescription drugs and small amount of cash. As was said in R v Reilly; R v Smith [2012] NSWCCA 166 at [37]: "[A] 'ram-raid' is a serious instance of an offence of break, enter and steal because of the inevitable destruction that is unleashed by the use of a motor vehicle to smash into commercial premises and the difficulty that store owners have protecting their property from such an offence. Both specific and general deterrence would normally play an important part in the sentencing task for a ram-raid offence." 9As Adams J observes, objective seriousness is a matter of evaluative judgment about which reasonable minds can reasonably differ. Undoubtedly the offence was brazen, and on a fair reading of the remarks on sentence, the primary judge considered that to be relevant to his assessment of objective seriousness. I see no error in his Honour's taking of that course. Spigelman CJ said in Mulato v R [2006] NSWCCA 282 at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 10Simpson J said at [46] that: "[t]he importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." 11Those passages have been repeatedly endorsed: see for recent examples R v Lolesio [2014] NSWCCA 219 at [63]-[64] and Kaminic v R [2014] NSWCCA 116 at [46]-[47]. 12It was appropriate, given the wide range of offending conduct that answers the description of s 112(2), for the primary judge to focus on a class of conduct - "ram-raids" - and to identify his assessment of the relative objective seriousness within that class. When regard is had to the nature of the offence, coupled with applicant's prior record for similar offences, the fact that she was on bail and subject to bond, and that there was a large amount of damage to the structure of the premises and its stock, I conclude that no error is established in the assessment of objective seriousness. But in any event, I doubt that anything turns on the point. The only ground of appeal was that the sentence was manifestly excessive, and in order to advance that ground, the applicant, appropriately, pointed to a series of decisions of this Court in other "ram-raiding" offences. 13I respectfully disagree with the approach adopted by the applicant in focussing on the starting point of 8 years imprisonment. I agree with what this Court held in TYN v R [2009] NSWCCA 146 at [33]-[34], to the effect that where (as here) there is no dispute as to the reductions in sentence to which an offender is entitled, it is necessary to have regard to the starting point, lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence. 14However, the ultimate question must be whether the sentence passed on the applicant's conviction is manifestly excessive. The sentence actually imposed was a sentence of 4 years imprisonment with a non-parole period of 20 months. The non-parole period is short. It is less than 42% of the head sentence. 15The applicant must show that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at [25]. The fact that a sentence is markedly different from other sentences that have been imposed in other cases is not sufficient: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59]. In a case such as the present, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]. 16I do not consider that the applicant has demonstrated that the sentence is manifestly excessive, in the presently relevant sense of authorising this Court to set it aside and resentence. 17Counsel for the applicant took the Court to four other "ram-raiding" decisions, with the view of demonstrating manifest excess. Adams J has referred to those decisions, including R v Reilly, R v Smith [2012] NSWCCA 166, which was said by the applicant to be a "very comparable" case, and where the starting points were (assuming a 25% discount for a plea) 6 years and 8 months and 6 years for Smith and Reilly respectively. As it was put in oral submissions: "Starting, say, with the higher head sentence there of six years and eight months and then applying exactly the same proportions downwards one would end up with a three year four month head sentence, and then applying special circumstances to the non-parole period one would end up with a non-parole period of one year and five months, or 17 months, so that would be a three month reduction in the non-parole period." 18I cannot agree that such reasoning demonstrates manifest excess. Three months is a not inconsiderable time, but even if (as was invited by counsel's submission) attention is confined to the non-parole period of the sentences, there is self-evident difficulty in demonstrating that a 20 month non-parole period is manifestly excessive when a 17 month non-parole period in a case said to be comparable is not. 19Forbes v R [2009] NSWCCA 292 involved a "ram-raid" in an arcade in Bowral. There was more extensive planning. The property damage to the arcade was more than $16,000, which is comparable to the structural damage in this appeal (assessed at $15,358 excluding clean-up costs and temporary security). In addition, an ATM machine was taken. Some $54,500 was removed from the machine, which sum was not recovered (that is considerably more culpable than the small amount of cash and drugs stolen in the present case, even allowing for the destruction of the pharmacy's stock valued at $30,508.55). The vehicle (valued at $3,500) and the machine (valued at $10,000) were then set on fire. There were five offences on a Form 1 to three of which regard was had in imposing a sentence of imprisonment for 6 years and 8 months, with a non-parole period of 3 years and 4 months. The sentence reflected a 20% discount for the utilitarian value of his plea, so that the starting point in Forbes, as in the present case, was 8 years. This Court considered the sentence to be within the legitimate bounds of the sentencing judge's discretion. 20Aspects of Forbes may be contrasted with the present case. Forbes was not himself present when the ram-raid occurred; it was a case of joint criminal enterprise. Nor was Forbes on conditional liberty at the time the offences were committed. Moreover, Forbes was found to have good prospects of rehabilitation. Finally, the Form 1 offences taken into account in Forbes were deemed larceny of a vehicle, stealing a vehicle and malicious damage by fire to a vehicle, whereas the assault to police committed by the applicant was not only serious (it involved placing a senior constable in a headlock before assistance was received from other officers) but also severable from the ram-raid itself. Different judges would give different weights to the various similarities and differences between Forbes and the present case. To my mind, when all those matters are borne in mind, the sentence which this Court said was within the legitimate bounds of the sentencing judge's discretion in Forbes illustrates how difficult it is for the applicant to demonstrate manifest excess. 21Ultimately, the question is whether a sentence of 4 years with a non-parole period of 20 months, for the offence of break, enter and steal, executed by means of a "ram-raid" in a stolen vehicle, committed while the offender was on bail and subject to bond, involving a small measure of planning and a substantial degree of property damage, and taking into account the Form 1 matters, but bearing in mind the offender's entitlement to a 50% discount and unfortunate subjective circumstances, was manifestly excessive so as to require this Court's intervention. I am not persuaded that it is. 22I would grant leave to appeal, but dismiss the appeal. 23ADAMS J: Introduction 24On 4 December 2012 the applicant was in the company of Russell Sabelgunst and Paul Master when Sabelgunst drove a stolen Nissan Navara through the front glass display window of a pharmacy, which was then entered by the applicant who stole some boxes of Xanax, Alprax and Serapax and about $500 in cash before re-entering the vehicle and leaving the vicinity of the shop. The applicant was arrested shortly afterwards and ultimately pleaded guilty to the offence of aggravated breaking, entering and stealing under s 112 of the Crimes Act 1900 (NSW), the circumstance of aggravation being that, at the time of the offence, she was in company with another person, namely Sabelgunst. The maximum penalty prescribed for this offence is 20 years imprisonment with a standard non-parole period of 5 years. Three further offences were taken into account on a Form 1: being carried in the stolen vehicle (maximum penalty of 5 years imprisonment); possession of alprazolam (maximum penalty 6 months imprisonment and/or $2,200 fine) and assaulting an officer in the execution of his duty (maximum penalty 5 years imprisonment). 25The applicant was sentenced to a term of 4 years imprisonment with a non-parole period of 1 year 8 months, commencing on 13 March 2013, when a sentence which she was serving at the time for other offences expired. The applicant seeks leave to appeal from this sentence on the ground that it is manifestly excessive. Facts 26These were not in dispute and were summarised in the learned sentencing judge's remarks on sentence, from which the following is taken. The motor vehicle used in the ram-raid was stolen by unknown persons and driven to the applicant's residence where she was waiting with Sabelgunst. He drove the vehicle with Master sitting in the backseat and the applicant in the passenger seat to the pharmacy where, at about 3.20 am, it was reversed into the front window, causing extensive structural and internal damage. Whilst the co-offenders remained in the vehicle, the applicant entered the pharmacy and stole 15 boxes of benzodiazepine medication containing variously 25 and 50 tablets each, together with the cash register tray which contained about $500 in cash. As a result of information received, police attended the applicant's residence and saw the Nissan which had been used in the offence coming out of a block of units. The police vehicle stopped behind the Nissan which then suddenly reversed at speed into the front of the police car causing extensive front-end damage. Police chased the vehicle on foot and a constable managed to smash the rear inside window and take hold of a pillar, but the Nissan accelerated and the officer let go. The police car followed the Nissan which again reversed back into it and proceeded forward once more. It then collided with a second police car, with a further collision disabling the first police car. The offenders managed to escape and parked the vehicle ultimately in premises at Hurstville where the cash register was opened and all but about $60 of the money removed. The applicant and Sabelgunst commenced to take some of the drugs which had been stolen. They then made their way back to the applicant's premises. At about 8.40 am she answered the door to police, informing them that Sabelgunst was not there but he was found hiding in the main bedroom when police entered with her consent and both were arrested. 27Following her arrest the applicant informed police that she wished to fully cooperate and assisted by retracing her movements and retrieving various relevant items. She participated in a recorded interview where she gave additional information and made full admissions. However, when she admitted to having taken half a Xanax tablet whilst in custody before being interviewed, she was subjected to a full strip search and became aggressive, during the struggle with police placing an officer in a headlock until further police arrived. A bottle of Xanax fell from her purse at this stage. She was subsequently charged with assault police and possessing a prescribed restricted drug, these offences being those on the Form 1 to which I have referred. The other offence on the Form 1 was allowing herself to be carried in the Nissan knowing that it was stolen. 28The applicant has been in custody since her arrest on 4 December 2012, and entered a plea of guilty at the earliest opportunity. She signed an undertaking to give evidence against Sabelgunst whose trial was listed to commence on 28 January 2014. Her overall sentence, taking into account her early plea of guilty and a further discount for her assistance, was reduced by 50%. 29The damage to the pharmacy amounted to almost $49,000 of which something over $30,000 was attributed to "damaged stock". 30The sentencing judge accepted that, although there was some degree of planning involved in the offence, it was minimal. He considered the offence was serious and concluded - "It is above the midrange of seriousness for offences of this type and significant weight should be given to the elements of punishment and retribution together with both specific and general deterrence ... [The] offence was brazen, causing extensive damage to property and is an offence, becoming unfortunately all too commonplace within the community." Criminal record 31The applicant, who was 36 years of age at the time of the offence, has a long criminal record commencing with the illegal use of conveyance in August 1993 when she was 16 years of age. Since then she has committed multiple offences, including those involving theft, in 1994, 1996, 1997 and 1998. There was then a gap of almost seven years but she was then convicted in December 2005 of doing an act with intent to influence a witness and was given a suspended sentence of 9 months and placed on a bond for 2 years for contravening an apprehended violence order. Further offences involving resisting or hindering police followed in 2007, and receiving in 2009 when she was also convicted again of resisting or hindering a police officer in the execution of duty, possession of a prohibited drug and possession of a prohibited weapon and affray, all of which were dealt with by non-custodial outcomes. In 2012 she was convicted of breaking, entering and stealing for which she was sentenced to 9 months imprisonment commencing on 27 October 2011 with a non-parole period of 4 months concluding on 26 February 2012, and placed on a s 9 bond for 6 months following her conviction on 29 March 2012 in respect of forged prescriptions and goods in custody. On 20 July 2012 her parole order was revoked, leaving her with a balance of parole of about 5 weeks to serve, expiring on 29 August 2012. Further offences relating to forged prescriptions resulted in a sentence of 2 months commencing 16 November 2012 and concluding on 15 January 2013. On 15 March 2013 the applicant was convicted of two charges of receiving for which she was sentenced, overall to a fixed term of 6 months imprisonment commencing on 16 January 2013 and ending on 14 July 2013. The sentencing judge, noting this lengthy criminal history, described it (with respect rightly) as consistent with a history of ongoing drug use. His Honour noted that, at the time of committing the offences for which she was to be sentenced, the applicant was subject to six good behaviour bonds imposed on 16 February 2012 and also subject to bail for a number of offences, not, of course, as serious as the current offences but nevertheless involving drug related dishonesty. Subjective features 32The applicant gave evidence in which she described herself as having been addicted to drugs more than half her life. The applicant's drug use commenced at the age of 12 and by the age of 18 she was regularly injecting heroin. She had attempted suicide on five occasions by overdosing and has had numerous accidental overdoses. She said being in a residential drug rehabilitation program in 2010/2011 was one of the happiest times of her life. However she relapsed when her mother died at this time. The applicant was at the time of sentencing on the methadone program and had managed to reduce her dose from 8 to 1.5 ml which is certainly a marked improvement. She has two daughters who reside with their paternal grandparents and visit her. A psychological report prepared by Mr John Tzanis noted that the applicant described an unstable upbringing with both parents being alcoholics who later separated. Her mother entered into another relationship in which she was the victim of domestic violence and she saw her mother stab her partner in self-defence. The applicant's two children, aged 10 and 15 years, were removed from her care because of the insufficient level of care she provided and, later, her alcohol and drug abuse. At the time of sentence she was prescribed Avanza for depression and Epilim to stabilise mood swings. The applicant said (and it may be readily accepted) she committed the current offences under the influence of drugs. Mr Tzanis concluded that the applicant had a history of mental health issues consequential upon the trauma and domestic violence she has experienced, with poorly developed distress tolerance and emotional regulation skills together with a long term history of polydrug abuse and a lack of prosocial supports. 33The sentencing judge concluded that there was little doubt the applicant had suffered significant social deprivation which had not dissipated over time and should be taken into account when considering the overall sentence and non-parole period. His Honour accepted, in light of her evidence in the proceedings and, given her record of entering an early plea of guilty (and assistance to the authorities), the applicant was remorseful and contrite. As I read his remarks, he accepted that she found herself in a different position than previously and, given further support, she would be better able to remain drug free when released. 34It is evident that the sentencing judge found special circumstances justifying a variation in the ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It is not disputed that his Honour's allowance in this regard was appropriate. Discussion 35Mr Neild for the applicant submitted at the outset that the sentencing judge's characterisation of the offence as "above the midrange of seriousness for offences of this type" was mistaken but that, at all events, the starting point of 8 years was significantly out of kilter with other sentences in ram-raid cases. The first of these cases to which he referred the Court is Leslie v R [2009] NSWCCA 203. The offender had been charged with a series of 10 very serious offences with various co-offenders, several involving the use of weapons. One of the offences involved the offender and another man stealing two motor vehicles, one of which was driven through the doors of a cafeteria, ramming the ATM, which was lifted into the rear of the other vehicle and driven from the scene. The ATM was cut open and $78,000 was obtained. Over $75,000 in damage had been caused. The offender was 24 years of age at the time of the offences and 27 when he was sentenced. He had been using cannabis since his early teens and, at the time of his arrest, he was also using ecstasy and ice. He claimed to be in an affected state when he committed the offence. He had come from a supportive family. There was no apparent remorse for the offence although the probation report said that it appeared the applicant had considerable insight into the seriousness of his addictions and their consequences and appeared motivated towards his rehabilitation whilst in prison. He required intensive long term drug and alcohol rehabilitation while he was serving his sentence and when he re-entered the community. The sentencing judge assessed the offence midway between the midrange and the high-range of objective seriousness, given the substantial sum stolen, the high degree of planning, including the stealing of the two motor vehicles used in the offence and the substantial amount of property damaged. The offender appealed against his sentence of 10 years with a non-parole period of 5 years as manifestly excessive, in particular submitting that his Honour erred in his assessment of the objective seriousness of the offence. His appeal was dismissed, though it is relevant to note that this case was decided before Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and, on one reading, with respect, the Court of Criminal Appeal may have given inappropriate emphasis to the standard non-parole period. 36Johnson v R [2009] NSWCCA 204 involved an appeal by a co-offender of Leslie in respect of his sentence for the same ram-raid at which the ATM was stolen. Johnson was sentenced at the same time for armed robbery and two other aggravated breaking, entering and stealing offences. In respect of the ram-raid offence, he was sentenced to a term of 8 years with a non-parole period of 4 years, taking into account one charge of aggravated break, enter and steal, two charges of maliciously damaging property by means of fire, two charges of stealing motor vehicles and one charge of possessing the proceeds of crime. Johnson was 19 years of age at the time of the offences and 22 years of age at the time of sentence. He had a troubled upbringing, commencing to consume alcohol and use cannabis from the age of 12, occasionally also using other drugs, including ice, at the time of the offences. The sentencing judge accepted he was genuinely remorseful with a low to moderate risk of recidivism if he resolved his substance abuse problem. Essentially, Johnson appealed on the same grounds as Leslie. Again, this appeal was dismissed. Neither of the judgments reveal that either offender had prior criminal convictions. 37The next judgment pointed to by Mr Neild is McDonald v R [2011] NSWCCA 2. The offender had pleaded guilty to committing a ram-raid on an ATM, in respect of which a 25% deduction for his early plea was allowed and an effective sentence was imposed of 6 years imprisonment with a non-parole period of 4 years and 4 months. It appears that the offence had involved a degree of planning, three vehicles were stolen, it was a joint criminal enterprise involving two other persons and extensive damage resulted. The offences were connected and concurrent terms imposed for the four offences involved. The judgment does not indicate the sentences passed in respect of each of the offences, perhaps because his essential complaint was that the sentencing judge failed to give any weight to evidence, he said, establishing that his prospects of rehabilitation were good, a complaint which was rejected. Hulme J pointed out that the learned sentencing judge seemed not to have taken into account the loss suffered by the owner of the vehicle used as a ram. 38Mr Neild points by way of comparison to the circumstances here, in which there is no evidence that the applicant was involved in any planning or theft of vehicles and the damage involved was not, in his submission, so substantial as to justify the sentencing judge's characterisation of the seriousness of the offence. 39In Forbes v R [2009] NSWCCA 292, an ATM machine containing about $54,500 was stolen and more than $16,000 damage caused to the arcade where it had occurred. Forbes was charged with five offences comprising an aggravated break and enter, with the larceny and stealing of motor vehicles that had been involved in the commission of the crime being included on a Form 1. Forbes was also charged with one count of facilitating boat re-birthing contrary to s 154G Crimes Act. He was given a discount of 20 per cent for the utilitarian value of his plea of guilty. He was sentenced on the breaking and entering offence to imprisonment for 6 years 8 months, comprising a non-parole period of 3 years 4 months and a balance of term of the same length. Hidden J (with whom McClellan CJ at CL and McCallum JJ agreed) considered at [61] that this was a "serious offence of its kind." Forbes's appeal against sentence was dismissed. 40Hidden J reviewed a number of cases involving ram-raids at commercial premises - [54] ... [The] ram-raid was an offence committed at commercial premises after hours, rather than a home invasion. ... [Counsel] referred us to five decisions of this Court in sentence appeals involving ram-raid offences, all of them committed at commercial premises: R v DBN [2005] NSWCCA 435, Douglas v R [2006] NSWCCA 94, R v Lenthall [2004] NSWCCA 248, R v Guthrie [2002] NSWCCA 77 and R v Ceissman [2004] NSWCCA 466. [55] With the exception of DBN, all those cases involved pleas of guilty. DBN was similar to the present case, in that a stolen vehicle was used and significant damage was caused to the premises and an ATM machine. However, the principal offence charged was aggravated break and enter with intent to steal under s 113(2) of the Crimes Act, carrying the lesser maximum sentence of 14 years imprisonment. Also charged on the indictment were two counts of malicious damage and deemed larceny of a motor vehicle. On the major charge the sentence was imprisonment for 5 years with a non-parole period of 3 years, and for the other charges shorter concurrent terms were imposed. [56] However, the offender was also charged with unrelated serious offences on a separate indictment, to which he pleaded guilty. Terms of imprisonment imposed for those offences were partly accumulated upon the sentence for the ram-raid, so as to produce an aggregate term of 8 years with a non-parole period of 6 years. An appeal against all these sentences was dismissed. [57] In Douglas, the charge was under s 112(2), with the deemed larceny of a motor vehicle taken into account on a Form 1. That applicant was a 20 year old offender who, although he had a criminal history and was on a bond at the time, impressed the sentencing judge as being genuinely remorseful and showed reasonable prospects of rehabilitation. His appeal against a sentence of 3 years and 4 months with a non-parole period of 1 year and 8 months was dismissed. In Lenthall the applicant was charged under s 113(2), with some relatively minor offences of dishonesty taken into account on a Form 1. His appeal was allowed, and his sentence was reduced to 3 years and 9 months with a non-parole period of 2 ½ years. He was seen as an offender genuinely "at the cross-roads", and there was an issue of the relativity of his sentence to a much more lenient sentence passed upon a co-offender. [58] Guthrie and Ceissman were both Crown appeals. In each case this Court allowed the appeal and substituted a sentence of imprisonment for 6 ½ years with a non-parole period of 4 ½ years. In both cases offences were taken into account on a Form 1: in Guthrie's case, two offences of possessing a firearm without authorisation and in Ceissman's case, two minor offences of dishonesty. Both offenders had unfavourable criminal history, and Ceissman had been on parole at the time of the offence. [59] It will be noted that in three of the cases, DBN, Lenthall and Guthrie the ram-raid was charged under s 113(2). Moreover, in DBN the sentence passed for that offence was part of a complex of sentences for a series of offences, some of them wholly unrelated, and considerations of totality must have arisen. The most lenient sentences were those in Douglas and Lenthall, in which subjective considerations appear to have loomed large. No doubt, in passing sentence in Guthrie and Ceissman, the Court exercised the restraint appropriate when re-sentencing after a successful Crown appeal. [60] Importantly, in none of those cases were there the number and gravity of the Form 1 matters which had to be taken into account in the present case. In the context of emphasising the care with which sentencing statistics should be approached, Wood CJ at CL said in Lenthall at [47]: "Additionally it is not to be overlooked that the comparison with the statistics is complicated where Form 1 offences have been taken into account, since that will require some increase in the sentence, for the reasons discussed in The Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. The extent of the increase will vary according to the number and nature of the offences included in the Form 1." [61] It does not appear to me that these cases disclose a pattern of sentence such as might found a submission that the sentence for the applicant's ram-raid offence is manifestly excessive. Given the care with which the enterprise was planned and executed, the substantial sum of money stolen and the damage to the arcade, this was a serious offence of its kind. Having regard to the Form 1 offences, it appears to me that the sentence which his Honour passed was within the legitimate bounds of his sentencing discretion. 41In R v Reilly; R v Smith [2012] NSWCCA 166, the offenders appealed against sentences imposed when, having stolen a motor vehicle, they and a female co-offender reversed it through the front glass doors of a large store, smashing a display counter at the front of the store and stealing a substantial quantity of electronic equipment and a further two television screens from the back of the store, which were loaded into the sedan and driven away. The sedan was set on fire and the stolen property divided amongst the three offenders. The value of the property stolen amounted to slightly over $4000 and the damage occasioned to the store was almost $5600. The vehicle, which was totally destroyed, was worth $1000. Smith was sentenced to imprisonment for 5 years with a non-parole period of 3 years and 9 months, and Reilly was sentenced for 5 years with a non-parole period of 3 years. Smith was 22 years old at the time of offending, coming from an Aboriginal family where the eldest males, including his father, condoned criminal behaviour and associated substance abuse. He was one of 14 children who, since his teenage years, had a long-term pattern of polysubstance and alcohol abuse. Despite this "negative background" and long criminal history, it was accepted he had continued to make positive attempts to address his offending behaviour. There were some grounds for optimism in respect of rehabilitation. At the time of the offences he was subject to suspended sentences and a bond. Reilly was 24 years old at the time of the commission of the offence and of South Sea Islander origin. At the time of his arrest he was abusing alcohol and drugs. He had significant substance issues since the age of 13 and his neonatal abstinence syndrome and traumatic birth resulted in developmental delays with an undeveloped capacity for consequential thinking. His prior criminal history included convictions for larceny for which he had been fined. The sentencing judge considered that there were no significant aggravating features and the seriousness of the offence did not reach midrange, though the two matters on the Form 1 elevated the appropriate sentence. The pleas of guilty were "early and valuable" but no discount was quantified. Special circumstances were found. This Court concluded, so far as Smith was concerned, that he had not received credit for prior custody attributable to the offence and the commencement date of the sentence was backdated but not otherwise varied. Amongst Reilly's grounds of appeal was that he was sentenced to the same head sentence as Smith although his criminal history was very much less than Reilly and, furthermore, Smith was subject to conditional liberty when he offended. This ground of appeal was upheld and the Court therefore did not need to consider whether the sentence was manifestly excessive. The Court accordingly allowed Reilly's appeal and resentenced him to a head sentence of 4 years and 6 months with a non-parole period of 2 years and 9 months. It appears it was assumed the sentencing judge had allowed a discount in the range of 20-25% so that the starting points, assuming a 25% discount, were 6 years and 8 months for Smith and 6 years for Reilly. Basten JA, with whom Price and Campbell JJ agreed, said - [37] In my opinion, a 'ram-raid' is a serious instance of an offence of break, enter and steal because of the inevitable destruction that is unleashed by the use of a motor vehicle to smash into commercial premises and the difficulty that store owners have protecting their property from such an offence. Both specific and general deterrence would normally play an important part in the sentencing task for a ram-raid offence. [38] Although the offence was not professionally planned, it was planned and well executed. A significant amount of property was stolen and the damage to the Target store was not inconsiderable. When the judge said there were no "significant aggravating features", his Honour overlooked Smith's conditional liberty, being the two suspended sentences of imprisonment for 18 months and the s 9 good behaviour bond to which he was subject at the time of the offending. His Honour's oversight was to Smith's advantage. Furthermore, there were the offences on the Form 1 that involved the theft and destruction by fire of the Commodore. Smith's previous record included two offences of aggravated break, enter and steal. Whilst these offences were not ram-raids, Smith's continuing disregard of the law called for added weight to be given to deterrence and protection of society, but his Honour confined Smith's record to the question of leniency. This also was to Smith's advantage. ... [40] Although the offence in Forbes was well planned and the money stolen and property damage were greater than in the present appeal, Forbes subjective case was more favourable than that of Smith. Forbes was not on conditional liberty at the time of the offence and the sentencing judge considered that Forbes had good prospects of rehabilitation. Special circumstances were found justifying the substantial reduction in the length of the non-parole period. In any event, the undiscounted starting point of the sentence in Forbes was 8 years which is significantly more than the starting point of the present sentence. 42His Honour described the review by Hidden J in Forbes as helpful: ibid at [41]. 43Leaving aside the ram-raid nature of the offence, Mr Neild submitted that there is little else which would justify the sentencing judge's assessment of its objective seriousness. He submitted that the offence is otherwise a very commonplace kind of break, enter and steal offence with minimal planning resulting in a modest gain committed by drug addicts in order to feed their addiction. As commercial premises, the feelings of invasion suffered by occupants whose home has been entered did not occur. He argued that the manner of the break and the associated damage it occasioned were insufficient to move its seriousness out of the category in which it would otherwise fall and above the midrange of seriousness for a s 112(2) offence which, he (rightly) pointed out, must involve very much more serious circumstances such as breaking into a private home where residents might be expected to be present, stealing property of considerable sentimental or commercial value, involving a high degree of planning and, of considerable significance, very much more serious offences than property theft. I agree that the significance of the standard non-parole period as a signpost or yardstick must be assessed in light of these considerations. 44Aside from submitting that this Court would not accept that the applicant had shown the sentence was unreasonable or plainly unjust, bearing in mind the wide discretion reposed in sentencing judges, the Crown in this Court submitted that the applicant's focus on the starting point of the sentence before discounts was misconceived and cites R v Adzioski [2013] NSWCCA 69 per Hoeben CJ at CL (with whom Slattery and Bellew JJ agreed) at [72] as authority for the contention, as I understand it, that the starting point is immaterial. This is far from the case. The relevant cases are as follows - 45In Adzioski, Hoeben CJ at CL at [72] said - "It follows that to make out this ground, the applicant must satisfy the Court that the sentence imposed was unreasonable or plainly unjust (Markarian v R [2005] HCA 25; 228 CLR 357 at 370 - 371, Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8] - [9].) The focus of the applicant's submission is the starting point of the sentence before the 25 percent discount. Such an approach deflects attention from the proper question (Graham v R [2009] NSWCCA 212 at [4], Yang v R [2012] NSWCCA 49). The question for this Court is whether the sentence actually imposed was unreasonable." 46In Graham v R [2009] NSWCCA 212, Hoeben J (as his Honour then was) said at [40], [44] and [45] - "[40] In any event for this ground of appeal to succeed, the focus needs to be on the sentence actually passed, rather than upon the starting point or notional sentence (SZ v R [2007] NSWCCA 19 at [40]; MacDonald v Regina [2007] NSWCCA 105 at [46] and Charlesworth v Regina [2009] NSWCCA 27 at [78]). I do not read the judgment of Simpson J in TYN v R [2009] NSWCCA 146 at [33] - [34] as saying anything to the contrary. In those paragraphs her Honour was saying no more than that it was legitimate when considering whether a sentence was manifestly excessive to have regard to the reasoning process which led up to it. ... [44] In my opinion, the sentence imposed by his Honour of 4 years with a non-parole period of 2 years represents the bottom of the range of sentences which would adequately reflect the objective seriousness of this offence. To impose a lower sentence would be to go below that "irreducible minimum sentence" appropriate to this offence and would involve error as being manifestly inadequate. [45] Even if I had concluded that the notional starting point for the head sentence was too high, it is clear that the sentence ultimately imposed not only fell within the permissible range of sentences for offences of this kind but was very much at the bottom of that range once the 50 percent discount was applied. Accordingly, I am not satisfied that the sentence which his Honour imposed on the applicant was manifestly excessive." 47In Yang v R [2012] NSWCCA 49, R A Hulme J at [63] said - "References to a "notional starting point" tend to deflect consideration from relevant matters and they have done so in this case. Hoeben J observed in Graham v R [2009] NSWCCA 212 at [40] that the focus should be on the sentence actually passed rather than on the starting point or notional sentence. An invitation to compare the "notional starting point" in this case with sentences actually passed in other cases by way of the statistics is to compare apples with oranges. Each of the 67 cases comprising the selection from the statistical database that was before the sentencing judge involved a plea of guilty. As a consequence, it could be expected that most, if not all, of those sentences were the result of a reduction of between 10 and 25 per cent. Counsel for the applicant acknowledged this in oral submissions, but maintained that the sentence actually passed was shown to be in "the top 7% of cases" (23.2.12 at T4.22)." 48In SZ v R [2007] NSWCCA 19; 168 A Crim R 249, Buddin J (Simpson and Howie JJ agreeing) said - "[40] Notwithstanding these features of the case, I accept the submission that the starting point or notional sentence for the first two offences, and particularly the first offence, was too high. Although as the authorities make plain, the quantity of drugs involved in any particular matter does not of itself determine the objective gravity of the offence, it is pertinent to deserve that the total quantity of drugs supplied as a result of the two offences was 4.5 grams, which is not in the scheme of things, a particularly large quantity. However, in assessing the contention that the sentences imposed were manifestly excessive, it is important to focus upon the sentences actually imposed rather than upon the starting point or notional sentence. As I have already remarked, the sentences were reduced by a combined discount of 62.5%. Not only did counsel for the applicant make no complaint about the extent of the discount but during the course of oral argument sought to justify it as being an appropriate exercise of the sentencing discretion. ... [47] Howie J [in R v Sukkar [2006] NSWCCA 92] made the following additional observations: "As Latham J points out, the discount for assistance reflects a number of considerations that impact upon the sentence to be imposed upon the offender. One factor has traditionally been that a person giving assistance will normally be at risk within the gaol environment and, therefore, may need protection for a substantial part, if not all, of the term of the sentence. When this Court has expressed the view that the appropriate range for the plea of guilty and assistance is between 20 and 50 per cent, that range has been formulated on the basis that some reduction was due, not only to encourage others to give information to the authorities but also "to compensate them for the more difficult conditions under which they will inevitably have to serve their sentences as a result of having given that information", see R v Cartwright (1989) 17 NSWLR 243 at 250. ... It seems to me that the courts should now acknowledge the reality of the situation and reduce the range of discount to reflect the fact that one of the bases of the discount is no longer generally applicable. In my opinion discounts for a plea and assistance of more than 40 per cent should be very exceptionally, if at all, granted in a case where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system and, if the offender wishes to assert otherwise, he or she should lead evidence of that fact. (pars 3,5)" ... [54] The applicant was clearly entitled, in the circumstances of the present case, to a substantial discount to reflect both the utilitarian value of the pleas of guilty and for his assistance to the authorities. I would not however characterise his as being an exceptional case. It was certainly not one in which in my opinion a combined discount exceeding 50% was called for. Accordingly, I have concluded that the discount which the sentencing judge allowed was unduly favourable to the applicant. [55] Although I have concluded that the starting point for the sentences imposed in respect of the first two offences was too high, it is my view that the sentences ultimately imposed fell within the permissible range of penalty for offences of this kind once an appropriate combined discount (ie that is one not exceeding 50%) is allowed. Putting the matter another way, I have concluded that despite the fact that the sentencing exercise miscarried, no lesser sentences were warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW)." This is not to suggest that the starting point is immaterial but, rather, when it is too high, that will not dispose of the appeal where the discount is too great. This is the point made by Simpson J (Spigelman CJ and James J agreeing) in TYN v R [2009] NSWCCA 146, at [33]-[34] - "[33] On behalf of the Crown it was argued that the sentence imposed was not manifestly excessive. Indeed it was not. But so to frame the question masks the proper approach to the inquiry. If (as is not challenged) the applicant was entitled to reductions of 25% and 33% attributable to her plea of guilty and her (considerable) assistance, then it may well be that a sentence which at first sight and unexplained by those considerations, appears to be within range and even lenient, is, in fact, not within range. The approach taken on behalf of the Crown risks undermining the function of sentence reductions in respect of those two important components. What it does is risk depriving an offender of the full benefit of reductions to which he or she is entitled. Here, the proper question is whether the starting point of 12 years would have been within or outside the appropriate range for this offender and this offence, absent the reduction for the plea of guilty and the assistance. [34] I am aware that in R v SZ [2007] NSWCCA 19, and in Rutkowskyj v R [2008] NSWCCA 10, this Court has held that the focus in a sentence appeal must be the sentence actually imposed, rather than the notional starting point. But in each of these cases, it was held that the reduction allowed was excessive. Here, where it was not contended that the reduction was excessive, justice demands that the focus be on the starting point." 49There can be no doubt, of course, that where a discount pursuant to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 has been applied, it is of crucial importance to consider whether the starting point sentence was manifestly excessive. This necessarily follows from the terms of s 23(1) - A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. The penalty the court would "otherwise impose" is the starting point which may then be reduced in accordance with the section. It must follow, as it seems to me, in a case of the present kind, where there is no dispute that the discount for assistance, including that applicable for the early plea, was correctly calculated by the sentencing judge that, if his Honour's starting point was manifestly excessive, the sentence must necessarily also be manifestly excessive. Although, therefore, in a sense, it is correct that the fundamental question is whether the sentence imposed was manifestly excessive in all the circumstances, the process of reasoning necessarily undertaken for that question to be answered must involve an assessment of whether the starting point was manifestly excessive. Obversely, if the starting point was within the discretionary range, it must follow that, the discount being appropriate, the ultimate sentence cannot be manifestly excessive. At the same time, it will, in some cases, be necessary to deal with the issue to which s 23(3) is directed, namely, the lesser penalty (necessarily less than that which would otherwise have been appropriate) is nevertheless, unreasonably disproportionate to the nature and circumstances of the offence. Conclusion 50In my view, with respect, the sentencing judge's starting point was, indeed, manifestly excessive in all the circumstances. Accepting that other examples are not to be regarded as in any sense prescriptive, it seems to me that the instances cited above strongly support this conclusion. In particular, with respect, the applicant's criminal culpability was not above midrange of objective seriousness for offences covered by s 112(2), allowing that this is a term which is impossible to precisely define and that, at all events, assessment of seriousness of an offence is very much a matter of evaluative judgment in respect of which reasonable minds can reasonably differ. The evidence shows no more than minimal planning by the applicant, rather suggesting it was impulsive and opportunistic. The premises were commercial rather than residential and the crime was committed at a time when it was, as Mr Neild submitted, highly unlikely that any person would be present at the pharmacy. Although, in a sense, the offence was brazen, I cannot see how this renders it more serious than if the shop had been entered secretly; that damage of just under $50,000 was caused is, on the other hand, undoubtedly significant. This is not so serious an offence, to my mind, as those which involve the theft of ATMs, which are the mark of professional criminals. This crime was committed to obtain drugs - not for profit. 51Furthermore, the applicant's subjective case was a significant one: she suffered from a very problematic upbringing, one of the incidents of which was that she started to abuse drugs at the very early age of 12, with few personal resources enabling her to deal with her ensuing addiction and the other serious problems from which she suffered. This is, of course, not to suggest that her crimes, let alone the present offence, were not fully intentional, but ordinary humanity (quite apart from authority: see Bugmy v The Queen [2013] HCA 37 (2 October 2013) requires these factors to be given substantial weight in the sentencing assessment. For perhaps the first time in her life, she has shown real and substantial moves towards change in the approach she took to the offence, particularly by agreeing to give assistance to the authorities. This signifies more than merely the utilitarian advantages to the public. 52It seems to me, therefore, with respect, that the starting point of 8 years imprisonment, taking into account the offences in the Form 1, was manifestly excessive and, consequently, even though when reduced by 50% a term of 4 years imprisonment resulted, that sentence is manifestly excessive also. I would substitute a sentence of 5 years imprisonment which, when reduced by 50% would yield a term of 2 years and 6 months imprisonment. In my opinion, although markedly less (ex hypothesi by 50%) than the sentence which would otherwise be appropriate, this penalty is not unreasonably disproportionate to the nature and circumstances of the offence. Applying the ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 yields a non-parole period of something less than 1 year and 11 months. However, it is necessary to take into account that the appellant, as the sentencing judge noted, was in custody for just over 8 (mistakenly stated as 9) months in relation to the other offences (the sentences for which totalled 8 months) upon which the present offence is to be accumulated. Applying the statutory ratio to the total sentence of 3 years 2 months would yield a non-parole period of about 2 years 4 months (rounded down). Giving credit by way of special circumstances for the 8 months served to 13 July 2013 yields a non-parole period from that date of 1 year 8 months. To my mind, this would result in an inadequate period on parole of only 10 months necessary to support the appellant's rehabilitation which is plainly in the public interest. Accordingly, I would impose a non-parole period of 12 months commencing on 14 July 2013. Again, it seems to me that the overall sentence does not contravene s 23(3) of the Act. Orders 53I propose the following orders - (i) leave to appeal is granted; (ii) appeal upheld; (iii) sentence quashed and, in lieu thereof, a sentence of 2 years and 6 months be substituted, commencing on 14 July 2013, with a non-parole period of 1 year; (iv) the appellant is to be immediately released on parole subject to the supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 (NSW) for the period on parole. 54FULLERTON J: I have had the advantage of reading the judgments of Adams J and Leeming JA. Having given consideration to the various matters to which their Honours referred in resolving to different views as to the ultimate disposition of the application for leave to appeal against the sentence, I agree with Leeming JA that leave to appeal should be granted but the appeal dismissed. 55For my part, I can see no error in the sentencing judge's characterisation of the degree of objective seriousness of the applicant's offending as above the mid range for offences committed in breach of s 112(2) of the Crimes Act, or for the sentencing judge to focus upon "ram raids" as a species of offending against that section. Using a vehicle as a ram to force entry to commercial premises with the intention of stealing from them has been recognised as a particular type of offending in breach of s 112(2) largely because of certain common features which, when they are present, serve as an indicator of objective seriousness: invariably a stolen vehicle is used and the offence committed in company; considerable property damage is frequently occasioned and property of not inconsiderable value taken. In addition, while insurance is some measure a proprietor can take against loss, little can be done to protect against the risk of particular commercial premises being targeted. In this case the pharmacy was targeted because of the expectation that there would be quantities of prescription drugs and cash available to be stolen quickly before an escape was effected in the vehicle used as the ram. 56I am unable to assess with any confidence the degree of planning in which this applicant participated with her co-offender in the "ram raid", save as to note that she was in the front passenger seat and the only offender to enter the premises. A co-offender remained in the back seat. I respectfully disagree with Adams J at [28] that the evidence is suggestive of her involvement being impulsive or opportunistic although I accept that there is a demonstrated link to her chronic drug use. 57As was pointed out in Forbes v R [2009] NSWCCA 292 at [61], there was no pattern of sentences as at the date of that judgment to found a submission of manifest excess (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] and Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323 at [28] and [41]). The applicant did not take the Court to any cases since then that have suggested otherwise. In my view, given the seriousness of the offending and the fact that the offence was committed when the applicant was on conditional liberty, I am not persuaded that the sentence imposed by the sentencing judge, after it was discounted by the combined discount of 50 per cent, has been shown to be manifestly excessive in the sense that it has been shown to be unreasonable or plainly unjust. ********** 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: 17 December 2014