Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dittavong v R [2017] NSWCCA 191 Hearing dates: 9 August 2017 Date of orders: 18 August 2017 Decision date: 18 August 2017 Before: Gleeson JA at [1] Harrison J at [2] Button J at [39] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed by his Honour Colefax SC DCJ on 7 February 2017 and in lieu thereof sentence John Dittavong to a term of imprisonment with a non-parole period of 3 years and 7 months commencing on 10 February 2016 expiring on 9 September 2019 with an additional term of 1 year and 3 months expiring on 9 December 2020. Catchwords: CRIMINAL LAW – appeal against sentence – offence of break enter and steal – whether sentencing judge breached the principal of totality when seeking to impose new sentence on the existing sentences – whether sentencing judge erred in declining to find special circumstances – whether the sentence imposed was manifestly excessive – where the Crown concedes error in commencement date of sentence and accepts that the Court should intervene Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Buxton v R [2017] NSWCCA 169 Dang v R [2014] NSWCCA 47 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R [2016] NSWCCA 255 MD v R [2015] NSWCCA 37 Prowse v R [2017] NSWCCA 68 Salafia v R [2015] NSWCCA 141 Wiggins v R [2010] NSWCCA 30 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: John Dittavong (Applicant) Regina (Crown) Representation: Counsel: I McLachlan (Applicant) M Cinque SC (Crown) Solicitors: Oxford Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2015/226523 Publication restriction: Nil Decision under appeal Court or tribunal: Parramatta District Court Jurisdiction: Criminal Date of Decision: 07 February 2017 Before: Judge Colefax SC File Number(s): 2015/226523 Judgment 1. GLEESON JA: I agree with Harrison J. 2. HARRISON J: John Dittavong pleaded guilty at the Campbelltown Local Court on 10 February 2016 to one count of break enter and steal contrary to s 112(1)(a) of the Crimes Act 1900. He was sentenced by Judge Colefax in the District Court at Parramatta on 7 February 2017 to a term of imprisonment of 3 years and 7 months commencing on 25 October 2016, with an additional term of 1 year and 3 months. 3. Mr Dittavong now seeks leave to appeal against his sentence upon the following three grounds: 1. His Honour breached the principle of totality when seeking to impose the new sentence on the existing sentences. 2. His Honour erred in declining to find special circumstances. 3. The sentence imposed was manifestly excessive. Background 1. Mr Dittavong was sentenced in accordance with matters summarised in a document described as Agreed Facts. His Honour described the facts as follows: "On 23 February 2015 Mr Dittavong was admitted to parole in relation to a sentence of imprisonment which had been imposed for an offence of entering a building or land with intent to commit an indictable offence on 21 October 2013. The start date of the non-parole period for that sentence was 24 February 2014. Approximately four months into the parole period Mr Dittavong committed the offence which I shall shortly describe- but he was not in fact still on parole at that time. This is because, although he attended his first appointment with his parole officer following his release, he made no further attendances. His parole was in fact revoked on 23 April 2015- close enough to two months before his offending conduct. During his evidence today, Mr Dittavong acknowledged that, although he did not formally know of the revocation of his parole he thought it was highly likely that that would have occurred. In any event, on 25 June 2015 whilst at large in the community, Mr Dittavong went to residential premises in Villawood. The owner of those premises had locked and secured his home at 3pm that day. At some point between 3pm and 8.15pm, Mr Dittavong went to those premises and forcefully opened a rear roller shutter which had been placed over one of the windows. He applied some force to the roller shutter and, having caused it to come off its tracks, he then smashed the glass sliding door and entered the premises. In this process of smashing the door, he cut himself and there was a certain amount of blood as a result. He went to the main bedroom and used a towel from a bedside table to stem the flow of the blood. He ransacked the bedroom and, in the process, took $20,000 worth of jewellery. It is conceded, on his behalf, that it is likely that at least some of that jewellery also had a sentimental value. In addition to stealing that jewellery, Mr Dittavong stole an Apple iPad. It had a commercial value of $900. But, of course, the overwhelming probability is that, quite apart from its commercial value, the iPad contained material and information of importance to the owner. Whether or not important identification information, or other sensitive details, were contained on that iPad (and which is commonly the case) is not revealed by the agreed statement of facts; nor whether or not there was an effective password. I shall therefore deal with the iPad in those circumstances by reference only to its commercial value. Mr Dittavong left the premises with those various items- none of which have ever been recovered. When the owner of the premises returned home at 8.15pm, he found that the house had been broken into and these items stolen. Although Mr Dittavong was careful to take with him the goods that he stole, he left behind the towel with his blood on it." Ground 1 1. The learned sentencing judge imposed a starting date for the sentence of 25 October 2016. That was so notwithstanding that Mr Dittavong had been in custody since 10 February 2016, which custody was solely referable to the subject offending. At the very least, the sentence imposed by his Honour should have been backdated to commence on 10 February 2016. That error is conceded by the Crown. The Crown accepts that this Court should intervene in order to correct that error. 2. However, Mr Dittavong appears to contend that his Honour erred in an additional respect. In his remarks on sentence, his Honour indicated that "the substantive part of the balance of parole should be served before this present sentence is to commence". That remark was made in the following context. 3. Mr Dittavong had previously been sentenced for another matter, the non-parole period of which sentence expired on 23 February 2015. Mr Dittavong served that non-parole period and was released to parole on that date. However, his parole was revoked after two months on 23 April 2015. Mr Dittavong committed the present break and enter offence on 25 June 2015. He was arrested on 8 October 2015 and served the balance of his parole from 9 October 2015 until 9 February 2016. 4. Mr Dittavong submitted that if his Honour's intention had been to commence the subject sentence at a time when Mr Dittavong had served "the substantive part of the balance of parole", then the subject sentence should have commenced at some time between 9 October 2015 and 9 February 2016. In that respect Mr Dittavong in effect contends that there should have been some concurrence between the parole period being served for the prior offence and the subject sentence. It should be noted that the Crown's concession of error does not extend to an acceptance of that contention. 5. Mr Dittavong had therefore been in custody since 9 October 2015. During that time he served the balance of his parole between 9 October 2015 and 9 February 2016. He thereafter remained in custody bail refused for the present offence as well as for other offences committed at the time of his arrest. In that last respect, a period of 3 months between 25 October 2016 and 24 January 2017 was referable to the fixed term sentence imposed by the Local Court for those offences. 6. His Honour was obviously aware of these custodial and sentence periods as he expressly referred to them in his remarks on sentence. His Honour then said this: "I have had to give some consideration as to when the start date of this present sentence should commence. By having regard to notions of totality, and being of the view that the substantive part of the balance of parole should be served before the present sentence is to commence, the sentence I shall shortly impose will be fixed to commence as and from 25 October 2016, to be therefore totally concurrent with the sentences only imposed by the Local Court on that day." 1. His Honour thus backdated the sentence for the present offence by 106 days to 25 October 2016 to commence on a date corresponding to the commencement of the sentences imposed in the Local Court. 2. Mr Dittavong contends that if his Honour's intention had been to commence the sentence at a time when he had already served the substantive part of the balance of parole, then the sentence ought to have commenced between 9 October 2015 and 9 February 2016, rather than on 25 October 2016. The actual commencement date is said to be inconsistent with his Honour's stated approach. 3. My difficulty with Mr Dittavong's submission is that I do not clearly understand, and Mr Dittavong has not explained, what his Honour intended to covey by his reference to the "substantive part of the balance of parole". I suspect that his Honour's remarks have been incorrectly transcribed and that what his Honour probably referred to was the substantial part of the balance of parole. However, even allowing for that difference, I remain in doubt as to precisely what his Honour intended, or what is said to be the significance of it in any event. To the extent that Mr Dittavong seeks to rely, therefore, upon some indication of an intention with which his Honour failed to comply, I am unable to accept the contention. The sentence imposed by his Honour was ultimately not concurrent with any part, let alone a substantial part, of Mr Dittavong's custody serving out the balance of his parole. 4. Section 24(a) of the Crimes (Sentencing Procedure) Act 1999 requires a court to take into account "any time for which the offender has been held in custody in relation to the offence". Section 47(2) (a) provides that the court may direct that a sentence commence "on a day occurring before the day on which the sentence is imposed", and s 47(3) requires the court to take into account the time that an offender is held in custody when deciding the date upon which the sentence is to commence. 5. Whilst there is no absolute rule as to how pre-sentence custody is to be taken into account by a sentencing court, backdating the commencement of a sentence directly to reflect the relevant period of that custody is the usual course that is adopted. That course is preferable as it readily and precisely demonstrates that credit has been given for pre-sentence custody: Salafia v R [2015] NSWCCA 141; Wiggins v R [2010] NSWCCA 30. 6. It is apparent that by commencing Mr Dittavong's sentence on 25 October 2016 his Honour did not give him credit for the period of time served between 10 February 2016 when his parole period expired and 24 October 2016 when the present sentence commenced. That period in custody was solely referrable to the present offence and Mr Dittavong should have received credit for that period. 7. With the exception of that arithmetical error, however, I am unable to detect any other error in his Honour's approach that would sustain this ground of appeal. Ground 2 1. Mr Dittavong submitted that his Honour erred in declining to find special circumstances in view of his clear need for drug addiction treatment. His Honour notably inquired during the course of the sentencing proceedings whether there was "some way we can get him to the compulsory drug treatment program" as "on his own he's just going to continue reoffending". 2. Mr Dittavong also contended that the sentence in fact imposed resulted in a total effective sentence in which the ratio of the non-parole period to the total sentence approached 80 percent. That was calculated by reference to an effective total non-parole period from 8 October 2015 to 24 May 2020 (4 years and 7.5 months) compared to a total effective head sentence from 8 October 2015 to 24 August 2021 (5 years and 10.5 months). 3. Apart from the obvious basis to dispute those calculations, the Crown contended that his Honour did not fall into error in declining to find special circumstances. First, it is itself erroneous to seek to elevate what falls from a sentencing judge during argument to the status of a statement forming part of the remarks on sentence. The articulation of a judge's preliminary views is, or can, play an important role in affording an accused person procedural fairness in the sentencing process. However, it does no more and no less than that: Dang v R [2014] NSWCCA 47 at [32]. 4. Secondly, simply because there are, or may be, "circumstances which are capable of constituting special circumstances, does not compel the Court to make such a finding and reduce the non-parole period…The decision to find special circumstances is first, one of fact, to identify the circumstances and secondly, one of judgment, to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio": see MD v R [2015] NSWCCA 37 at [40]. 5. In the present case it is clear that his Honour was aware of Mr Dittavong's long history of illicit drug use. His Honour referred to it in terms. However, despite that, his Honour found that Mr Dittavong had never attended any intensive drug treatment or rehabilitation program. There was no evidence that he had sought out such programs, and on his most recent return to the community Mr Dittavong made no attempt to address his long-term habits. On the contrary, Mr Dittavong had been content to report once to parole before absconding and returning to drug use. 6. His Honour declined to make a finding of special circumstances as he was not persuaded that Mr Dittavong's "prospects of rehabilitation would be enhanced by a longer period of parole" or that a longer sentence would be more onerous by reason of his mental health status. 7. These conclusions were clearly open to his Honour. 8. The sentence imposed, properly calculated, was for a non-parole period of 3 years and 7 months out of a total effective head sentence of 4 years and 10 months. The ratio of those periods (74.1 percent) corresponds almost exactly to the statutory ratio. 9. No error has been established. Ground 3 1. His Honour found that the offence was "slightly below" a mid-range offence. Clearly that finding was open to his Honour and Mr Dittavong does not appear to take issue with his Honour's conclusion. 2. Mr Dittavong was given a discount of 25 percent for his early plea. No issue can be taken with that decision. The maximum penalty for a s 112(1)(a) offence is 14 years imprisonment. Having regard to his Honour's assessment of the level of objective seriousness, the starting point for the sentence, before the discount, was clearly within the range of appropriate sentences. 3. His Honour accepted that Mr Dittavong had an anxiety and depressive condition to which the psychologist referred. His Honour also accepted that the condition was "in some sense, causally connected to his continuing addictive behaviour". However, his Honour did not accept that Mr Dittavong was any more likely to address his illicit drug habit, with the consequence that his prospects of rehabilitation were not good. That was said to be so even if Mr Dittavong were to engage in the psychological programs recommended by the psychologist. 4. His Honour also accepted that Mr Dittavong was remorseful. 5. Mr Dittavong referred to the JIRS statistics in support of this ground of appeal. He contended, while acknowledging their limited use, that the statistics for this offence suggest that the sentence imposed upon him was above that which is ordinarily imposed for the aggravated offence under s 112(2) of the Act and, if anything, more in line with the specially aggravated offence under s 112(3) of the Act. 6. As has been consistently observed by this Court and in the High Court, care must be taken when utilising sentencing statistics for appeal purposes: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45. Such statistics are useful for the purpose of demonstrating trends in sentencing. However, each sentence must be imposed on the basis of proper sentencing principles and not upon the basis of an adherence to statistical averages. 7. A review of the most recent statistics for sentences imposed for the offence of break, enter and steal contrary to s 112(1) reveals that of 289 offenders who pleaded guilty to the principal offence, terms of imprisonment ranging from 6 months to 8 years were imposed. His Honour's sentence falls within that range. Mr Dittavong has a lengthy criminal record including like offending. 8. The principles relevant to the assessment of a ground of appeal asserting manifest excess are well established and well known. They were recently summarised in Buxton v R [2017] NSWCCA 169 at [79] – [81]: "[79] As has been pointed out on many occasions, a sentence which is manifestly excessive is one that is unreasonable or plainly unjust such that it is to be inferred from the result that there was a failure to properly exercise the discretion the law reposes in the court of first instance: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [26]-[27]. [80] In this context two matters must be remembered. First, it is not the function of an appellate court to substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. [81] Second, intervention on the ground of manifest excess is not justified simply because the result arrived at is manifestly different from the result in other cases, but only where the difference is such that in all the circumstances the appellate court considers there must have been an error, even though when and how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen supra at [59]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]. In this context, as was pointed out in Barbaro supra at [28], the conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should have fallen." 1. In my opinion, the sentence imposed by his Honour was entirely open to him. No error has been identified. The sentence is not erroneously excessive. This ground of appeal should be dismissed. Kentwell v The Queen 1. The lone error in his Honour's sentencing exercise was his failure to give Mr Dittavong credit for the time served since his previous parole period expired. Accordingly, backdating the sentence so as to take account of that omission is the only adjustment required to correct that error. It follows that it is unnecessary to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. This is made clear in Lehn v R [2016] NSWCCA 255 per Bathurst CJ at [72] and [80] as follows: "[72] That is not to say that there will not be occasions when, notwithstanding error, it is not necessary to re-exercise the sentencing discretion. It will not be necessary where, for example, an arithmetical error occurred in the calculation of the commencement and end date of the sentence or the date of the expiration of a non-parole period arrived at in the proper exercise of discretion or, for example, an error in the calculation of the effect of a discount for a plea or assistance to the authorities, where the extent of the discount to be allowed was reached in accordance with proper principles. … [80] The authorities since Kentwell and O'Grady, with perhaps two exceptions, are not inconsistent with this approach. They have been helpfully reviewed by R A Hulme J in Martin. A number of these have adopted the approach which I suggest is appropriate without considering the alternative: MD v R [2015] NSWCCA 37; Hutchen v R [2015] NSWCCA 101; Arsiotis v R [2015] NSWCCA 275; Marrow; Alpha v R [2015] NSWCCA 225. In the latter case, R A Hulme J expressed doubts that complete resentencing was required where an arithmetical error is the sole basis for the Court's intervention in a sentencing appeal: at [53]. To the extent his Honour was referring to a mere error of calculation, this is not inconsistent with what I believe to be the correct approach." 1. The issue has also been considered in Prowse v R [2017] NSWCCA 68 to the same effect. Conclusion and orders 1. I consider that the following orders should be made: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by his Honour Colefax SC DCJ on 7 February 2017 and in lieu thereof sentence John Dittavong to a term of imprisonment with a non-parole period of 3 years and 7 months commencing on 10 February 2016 expiring on 9 September 2019 with an additional term of 1 year and 3 months expiring on 9 December 2020. 1. BUTTON J: I agree with the judgment of Harrison J with respect to grounds 1 and 2, and have nothing to add. 2. With regard to ground 3, I respectfully consider that the sentence imposed was a stern one. I also consider that the starting point of the head sentence of almost 6 years 6 months was approaching the top of the range available to the discretion of the learned sentencing judge for a single break, enter and steal, simplistically performed by a chronic drug addict, and readily detected scientifically. 3. Having regard, however, to the criminal history of Mr Dittavong – which extended over many years; which featured a number of entries for offences of violence; which shows that the parole of Mr Dittavong had been revoked at the time of this offence; and which featured a head sentence of 6 years with a non-parole period of 4 years imposed in 2008 for an offence of specially aggravated breaking, entering and committing a serious indictable offence whilst armed with a weapon – I do not consider that it has been affirmatively established that the sentence is manifestly excessive. 4. I agree with the orders proposed by Harrison J. ********** Amendments 31 August 2017 - corrected representation in the coversheet 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: 31 August 2017