Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Johan v R [2019] NSWCCA 126 Hearing dates: 12 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Before: Payne JA at [1], Davies J at [28], Button J at [29] Decision: (1) Leave granted to appeal out of time. (2) Leave to appeal granted. (3) Appeal allowed. (4) Sentence imposed by Blackmore SC DCJ on 23 June 2017 upon Mr Johan set aside. (5) Mr Johan is resentenced to an aggregate period of imprisonment of 5 years and 8 months commencing on 17 September 2015 and expiring on 16 May 2021. He is sentenced to an aggregate non-parole period of 4 years, 3 months' imprisonment commencing on 17 September 2015 and ending on 17 December 2019. His release to parole on 17 December 2019 is recommended. Catchwords: CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 113(2) Criminal Appeal Act 1912 (NSW), s 6(3) Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(4) Cases Cited: DL v The Queen [2018] HCA 32; 92 ALJR 764 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Category: Principal judgment Parties: Franco Johan (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant) K Ratcliffe (Respondent) Solicitors: Younes + Espiner Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00273442 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 23 June 2017 Before: Blackmore SC DCJ File Number(s): 2015/273442 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was sentenced together with a Ms Quintero, a Ms Carvajal and a Ms Salazar in respect of four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW). Three further such charges and a charge of aggravated break and enter with intent under s 113(2), were taken into account on a Form 1. The applicant was sentenced to an aggregate sentence of 6 years and 9 months' imprisonment with a non-parole period of 5 years. On 31 August 2018, this Court upheld the appeal against the sentences imposed upon the applicant's co-offenders: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190. The applicant took no part in that appeal. The applicant appealed here against his sentence based on two grounds. The Crown conceded the first ground that the sentencing judge erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period. The applicant abandoned the second ground. Given that error was acknowledged by the Crown, the Court proceeded to resentence. The Court (Payne JA, Davies and Button JJ agreeing) held: In the absence of challenge by either party to findings of the sentencing judge, it is appropriate to adopt those findings of fact for the purposes of resentencing: [10]. DL v The Queen [2018] HCA 32; 92 ALJR 764 applied. Parity requires that like cases are treated alike and different cases are treated differently. On the face of it, parity considerations militate strongly in favour of a sentence being imposed on the applicant which is very similar to that imposed upon his co-offenders. Whilst it is true that the applicant's subjective circumstances differed from those of his co-offenders, the disparity is not such to warrant a significantly greater sentence: [20]-[23]. Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] applied. The applicant is resentenced to an aggregate non-parole period of 4 years, 3 months' imprisonment commencing on 17 September 2015 and ending on 17 December 2019, with an aggregate balance of term of 1 year, 5 months expiring on 16 February 2021. His release to parole on 17 December 2019 is recommended: [27]. Judgment 1. PAYNE JA: On 23 June 2017, Blackmore SC DCJ sentenced the applicant together with a Ms Quintero, a Ms Carvajal and a Ms Salazar in respect of four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW). Three further such charges and a charge of aggravated break and enter with intent under s 113(2), were taken into account on a Form 1. [1] 2. The applicant was sentenced to an aggregate sentence of 6 years and 9 months' imprisonment, with a non-parole period of 5 years commencing 17 September 2015 and ending on 16 September 2020. His Honour recommended that the applicant be released on parole without supervision at the end of the non-parole period. 3. On 31 August 2018, this Court (Simpson AJA, Schmidt and Button JJ) upheld the appeal against the sentences of the applicant's three co-offenders: Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190. This applicant had filed a notice of intention to appeal but for reasons not presently relevant he took no part in that appeal. The orders made by the Court were: "(1) Leave to appeal granted to the applicants; (2) Appeals upheld; (3) Sentences imposed by Blackmore DCJ upon Ms Quintero, Ms Carvajal and Ms Salazar set aside; (4) The applicants are resentenced as follows: (a) Ms Quintero – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended. (b) Ms Carvajal – sentenced to a non-parole period of 4 years imprisonment commencing on 17 September 2015, ending on 16 September 2019, with a balance of term of 1 year, 3 months expiring on 16 December 2020. Her release to parole on 16 September 2019 is recommended. (c) Ms Salazar – sentenced to a non-parole period of 4 years, 1 month imprisonment commencing on 17 September 2015, ending on 16 October 2019, with a balance of term of 1 year, 4 months expiring on 16 February 2021. Her release to parole on 16 October 2019 is recommended." 1. The indicative sentences imposed were: "(1) The first aggravated break enter and steal offence – taking into account the Form 1 offences – 2 years, 6 months' imprisonment, with a non-parole period of 1 year, 11 months – all applicants; (2) The three other aggravated break enter and steal offences – for each offence – 2 years, 2 months' imprisonment, with a non-parole period 1 year, 8 months – all applicants; (3) Driving recklessly – Ms Salazar – 4 months." 1. The applicant now seeks leave to appeal against his sentence out of time. The Crown does not oppose leave to appeal out of time being granted. Leave should be granted. 2. The applicant seeks leave to appeal against his sentence on the following grounds: 1. "His Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period. 2. His Honour erred in failing to nominate non-parole periods for each offence as required by s.54B(4) of the Crimes (Sentencing Procedure) Act 1999." 1. On this appeal, the Crown conceded that his Honour erred in failing to give effect to his finding that he would take into account the effect of delay when fixing the non-parole period. Ground 1 must be allowed. Ground 2 was abandoned by Mr McLachlan, counsel for the applicant, at the commencement of his submissions. 2. Given that error has been acknowledged by the Crown in relation to ground 1 this Court must proceed to resentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 3. In conducting that resentence, the Crown accepted that lesser indicative sentences and a lesser aggregate sentence were warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). Resentence 1. For the purposes of resentencing, it is appropriate, in the absence of challenge by either party to findings of the sentencing judge, to adopt those findings of fact for the purposes of resentencing: DL v The Queen [2018] HCA 32; 92 ALJR 764. I take into account the legislative guideposts of the maximum penalty of 20 years and the standard non-parole period of 5 years. Relevant facts 1. Between 10 and 17 September 2015, the applicant was part of a joint criminal enterprise that broke into eight homes. The applicant and three co-offenders pleaded guilty at the first available opportunity to four charges of aggravated break, enter and commit serious indictable offence (larceny) under s 112(2) of the Crimes Act, and requested that a further three such charges, and an aggravated break and enter with intent under s 113(2), be taken into account on a Form 1. A statement of agreed facts was tendered before the sentencing judge. His Honour summarised those facts as providing: "In short, the offenders worked as a team breaking into premises. On some occasions one or more of the team would enter the premises whilst the others would surround the premises as lookouts. The offenders were in communication with each other using mobile phones to allow for a more coordinated execution of the offence." 1. The agreed facts also established that: 1. during the commission of each offence, Mr Johan was one of those who entered the premises, with an unknown male. In some cases they forced open locks, windows or doors. In another they removed a flyscreen from a window which had been left open. In some cases, a security alarm panel was taken off a wall, in one case causing $7,000 damage; 2. on 9 September and during the third offence committed on 14 September, Ms Carvajal also entered the premises, while Ms Salazar and Ms Quintero remained outside as lookouts; 3. on 10 and 16 September, it was Ms Salazar who entered the premises and Ms Carvajal and Ms Quintero who remained outside as lookouts; 4. on 11 September and twice on 14 September, Ms Carvajal, Ms Salazar and Ms Quintero all remained outside as lookouts; and 5. during the final offence on 17 September, Ms Salazar and Ms Quintero remained outside as lookouts, while Ms Carvajal waited in one of the vehicles, which she eventually drove off, with Ms Salazar then driving the second vehicle. Objective seriousness of offending 1. The sentencing judge found: "Acknowledging that an aggravating factor involved in each of the offences was being in company, in my view the coordinated actions of the offenders increased the seriousness of the offending over and above the mere fact that they were in company. The offences demonstrated a degree of professional planning, organisation, and execution over and above the usual case. The offenders pleaded guilty each to four charges of aggravated break, enter, and steal; each of the offences involved stealing substantial amounts of property of some considerable value. The offenders acknowledged in evidence that they received an equal divide of the property, or the proceeds of the sale of the property. The total amount lost by the victims as a result of the four offences was more than $50,000. Due to the nature of the offending a police strike force was formed to counter the operation of the offenders. In my view these offences were of considerable seriousness and warrant sentences that recognise that fact. The Crown submitted that the objective seriousness of each of the offences was just below the middle of the range of seriousness. I agree with that submission. I note that each of the offenders were from South or Central America. It might be thought that they were targeting Sydney for their activities, however the offenders do not agree that they arrived in Australia intending to carry out criminal activity. The offenders indicated that they had met whilst they were in Sydney. There is no evidence that they arrived in Australia intending at that time to involve themselves in these offences. Despite that, these sentences must reflect the principle of general deterrence. I note that a submission made by some of the offenders was that they played a lesser role in the offences due to the fact that they were only lookouts. I disagree with that characterisation. The offences were clearly joint criminal enterprises; each of the offenders appears to have received equal rewards from the enterprise. In my view each of the offenders should receive equal sentences. The only distinction that should be made is in the case of Ms Salazar; she is also charged with an offence of driving recklessly. She will receive a sentence in respect to that offence, and this will inevitably involve her serving a longer sentence than the other offenders. I note that the offenders all have no Australian criminal records. In some circumstances that might result in some additional leniency being applied to their cases, but given the offences committed and their repetitive nature I am not of the view that such leniency should be applied in their cases." 1. I adopt his Honour's characterisation of the objective seriousness of each of the offences as just below the middle of the range. Subjective features of the offender 1. Adapting the findings of the sentencing judge on this topic, I find that the applicant came to Australia from Mexico apparently intending to learn English. He was married at one stage and has two children from that former relationship. He also has two other children. When the applicant came to Australia he decided to work to increase his income. He worked in Melbourne doing some painting. During the course of that work he fell from a ladder and exacerbated a previous injury he had acquired from a motor vehicle accident. He has been left with a painful leg injury which has not been treated in custody except with analgesia. 2. The applicant has the injury, which he acquired before these offences. There was no evidence at the original sentencing hearing or on this appeal that his present medical treatment in custody is not appropriate. Since being in custody the applicant has been employed as a sweeper, which indicates that he is a trusted inmate. 3. The applicant is a native Spanish speaker and, whilst he now has some English language skills, those language skills are minimal and that fact limits his interactions in custody. The prison documents that were tendered in the proceedings indicate that the offender had no contact phone numbers for family in Mexico; it may be that has been corrected now. In any case the applicant has been isolated in custody and I accept this is a more difficult situation for this offender than for other offenders. 4. The applicant expressed contrition in his evidence to the sentencing judge and in the affidavit tendered without objection in this Court. I accept that expression of contrition is genuine. The applicant has potential to be employed upon his release. He was working as a painter in Australia. In Mexico he had entered university to study engineering but did not complete that degree. The applicant's prospects of rehabilitation are reasonable. The applicant was not addicted to drugs at the time of the offending. He was motivated by a desire for personal profit to support himself in this country. I do not find there are any special circumstances in this case. 5. I take into account the delay. In Quintero, Simpson AJA, explained in a way relevant to this appeal that: "[3] It was not in issue that the proceedings had been delayed for reasons beyond the control of the applicants. The sentencing judge addressed this as a discrete relevant issue, saying: "…The effect of the delay is that each of the offenders has remained on remand rather than being housed as sentenced prisoners. It is uncontroversial that prisoners who have been sentenced have access to greater services in custody than those on remand. All of the offenders have been disadvantaged by the delay in the proceedings; it is a factor that I will take into account on sentence by reducing their non-parole periods." (Emphasis added.) 1. Parity requires that like cases are treated alike and different cases are treated differently: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]. On the face of it, parity considerations militate strongly in favour of a sentence being imposed on the applicant which is very similar to that imposed upon his co-offenders. 2. In expressing that view I am conscious that in Quintero Schmidt J concluded that the sentencing judge erred in finding that the same sentences should have been imposed on all of the offenders, given relevant differences in their subjective circumstances. Her Honour stated: "[144] All of the matters I have discussed had to be taken into account, as did the principle of parity, in arriving at the appropriate sentence in the case of each offender. On the evidence I have discussed, I am satisfied that the sentences imposed on each of the applicants should have been lower than that imposed on Mr Johan." (Emphasis added.) 1. Her Honour's view was based on the absence of evidence in relation to the applicant of hardship, a deprived background, drug abuse or mental health problems. I do not understand Simpson AJA and Button J to have joined in that observation, at least explicitly. 2. Whilst it is true that the applicant's subjective circumstances differed from those of his co-offenders, the disparity is not such to warrant a significantly greater sentence. The applicant is entitled to a discount of 25% for the early guilty plea. 3. I propose that the applicant be re-sentenced to an aggregate sentence of 5 years, 8 months and a non-parole period of 4 years, 3 months. 4. The indicative sentences are as follows: 1. The first aggravated break enter and steal offence – taking into account the Form 1 offences – 2 years, 6 months' imprisonment, with a non-parole period of 1 year, 11 months; 2. The three other aggravated break enter and steal offences – for each offence – 2 years, 2 months' imprisonment, with a non-parole period 1 year, 8 months. 1. A degree of accumulation of those indicative sentences is obviously appropriate and is reflected in the aggregate sentence. Orders 1. For the foregoing reasons, I propose the following orders: 1. Leave granted to appeal out of time. 2. Leave to appeal granted. 3. Appeal allowed. 4. Sentence imposed by Blackmore SC DCJ on 23 June 2017 upon Mr Johan set aside. 5. Mr Johan is resentenced to an aggregate period of imprisonment of 5 years and 8 months commencing on 17 September 2015 and expiring on 16 May 2021. He is sentenced to an aggregate non-parole period of 4 years, 3 months' imprisonment commencing on 17 September 2015 and ending on 17 December 2019. His release to parole on 17 December 2019 is recommended. 1. DAVIES J: I agree with Payne JA. 2. BUTTON J: I agree with Payne JA. Endnote 1. Ms Salazar also had a reckless driving charge. 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 June 2019