Nicholls v R [2020] NSWCCA 66

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nicholls v R [2020] NSWCCA 66 Hearing dates: 28 February 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Before: Simpson AJA at [1] Johnson J at [2] Hamill J at [3] Decision: (1) Application for leave to appeal granted. (2) Appeal upheld. (3) The aggregate sentence imposed in the District Court is quashed and in lieu thereof: (a) For the offence of stealing a motor vehicle, the applicant is sentenced to a fixed term of 12 months imprisonment commencing on 23 May 2018 and expiring on 22 May 2019. (b) For the offence of aggravated break, enter and steal, the applicant is sentenced to a non-parole period of 2 years and 3 months commencing on 23 November 2018 and expiring on 22 February 2021 with a balance of term of 1 year and 1 month commencing 23 February 2021 and expiring 22 March 2022. (4) The applicant will be eligible for release to parole at the expiration of the non-parole period for the aggravated break enter and steal offence. Catchwords: CRIMINAL LAW – sentencing – aggravated break enter and steal – stealing a motor vehicle – aggregate sentence – error asserted in assessment of objective gravity of stealing of motor vehicle – whether sentence manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 154F Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2), 44, 53A(2), 54A Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: Abbas & Others v R [2013] NSWCCA [2013] NSWCCA 115; 231 A Crim R 413 Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Beale v R [2015] NSWCCA 120 Burnett v R [2011] NSWCCA 276 Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Carroll v The Queen [2009] HCA 13; 254 ALR 379 Davison v R [2019] NSWCCA 179 JM v R [2014] NSWCCA 297 Mulato v R [2006] NSWCCA 282 Regina v Scott [2005] NSWCCA 51 Category: Principal judgment Parties: Jarred Nicholls (Applicant) Regina (Respondent) Representation: Counsel: J Brock (Applicant) M Kumar (Respondent)

Solicitors: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2018/16770 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 April 2019 Before: Acting Judge Delaney File Number(s): 2018/16770

Judgment 1. SIMPSON AJA: I agree with Hamill J. 2. JOHNSON J: I agree with Hamill J. 3. HAMILL J: Jarred Nicholls seeks leave to appeal against an aggregate sentence imposed on 23 April 2019 by Acting Judge Delaney in the District Court sitting at Parramatta. Mr Nicholls pleaded guilty in the Local Court to one count of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW) and one count of stealing a motor vehicle under s 154F of the Crimes Act. The circumstance of aggravation was that he knew there was a person present inside the premises when he broke in. The aggravated break and enter offence carried a maximum penalty of 20 years imprisonment with a standard non-parole period of five years. The stealing of the car carried a maximum penalty of 10 years imprisonment. 4. In addition to those offences, the applicant asked the sentencing Judge to take into account four matters on a Form 1 of dishonestly obtaining property by deception. Those offences, if charged separately and dealt with on indictment, would each carry a maximum penalty of 10 years imprisonment. They were taken into account in sentencing for the more serious offence. 5. The applicant was also sentenced for an offence of driving whilst disqualified which was dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The sentencing Judge recorded a conviction with no further penalty: s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). This offence can be ignored for the purpose of this appeal. 6. Acting Judge Delaney imposed an aggregate sentence of 4 years and 9 months with a non-parole period of 3 years and 4 months. For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act his Honour indicated that he would have imposed the following sentences if he had not imposed an aggregate sentence: 1. For the aggravated break, enter and steal – a sentence of 3 years and 3 months with a non-parole period of 2 years. 2. For the steal motor vehicle offence - a sentence of 3 years. 1. The applicant raised the following grounds of appeal: 1. His Honour's remarks on sentence do not disclose the basis on which he assessed the steal motor vehicle offence as being "just below the mid-range of objective criminality". 2. His Honour erred in concluding that the steal motor vehicle offence was just below the mid-range of objective criminality. 3. His Honour's remarks relating to the Form 1 offences were inadequate and give rise to the real possibility that his Honour failed to apply correct legal principle. 4. The overall term is manifestly excessive. 1. The facts of the offences were set out in an agreed facts sheet. The victim was a 62 year old man living in a two-storey residential home in the western suburbs of Sydney. He went to bed at about 11:30pm on 19 August 2017 having taken steps to secure the building. His Toyota Camry was parked in the driveway. There were spare keys to both the car and the house kept in the rafters of a detached garage. The victim woke up at about 5:00am to find his car missing and his front door open with a house-key left in the door. 2. During the night, the applicant had gained access to the premises via a gate leading to the backyard. He entered the garage through an open side door. He found the spare keys and used them to gain entry to the house by the front door. While inside the premises he found the victim's shorts which had a wallet in the pocket. He stole the victim's wallet which contained various "bank cards, reward cards, $15 cash, and a NSW driver's license". He also took the shorts. The applicant left the house and used the spare car key to gain entry to the Toyota Camry and drive away from the scene. CCTV footage captured the applicant in the yard of premises a few doors down from the victim's home at 1:24am on 20 August 2017. He was seen again at 2:29am on the CCTV footage taken at a petrol station in a nearby suburb. On 27 August 2017, the victim's car was located opposite an address in Doonside. Those were the facts of the principal offences. 3. The four offences on the Form 1 involved using the victim's credit card(s) on four occasions to make purchases in amounts of approximately $140, $190, $136 and $24. 4. The applicant was a 26 year old Aboriginal man at the time of the offences. He had turned 28 by the time he was sentenced. He had a fairly bad criminal record going back to 2007 when he was dealt with in the Children's Court. Of particular relevance were a number of offences for which he had received gaol terms, including offences of dishonesty. In particular: * In 2013, Mr Nicholls was sentenced to a 9 month suspended sentence in the Drug Court for an offence of "break and enter house". * In February 2014, the Drug Court dealt with a further offence of "break and enter house". The applicant was sentenced to 10 months imprisonment with a non-parole period of 5 months but released subject to drug and alcohol supervision. * Later in 2014, the Local Court sentenced the applicant for offences of common assault and being armed with intent to commit an indictable offence. A sentence of 15 months with a non-parole period of 9 months was imposed for the latter offence. * On 29 September 2016, he was sentenced by the Local Court to 3 months imprisonment for possession of housebreaking implements, stalking and 1 month for damaging property. These concurrent sentences were confirmed on appeal to the District Court. * In 2017 he was sentenced for a series of offences including taking and driving a conveyance and dangerous driving during a police pursuit. For those matters he was sentenced to imprisonment for 8 months with a non-parole period of 4 months (and a 4 month concurrent fixed term). * In September 2018, he was sentenced to 4 months imprisonment for two offences of dishonestly obtaining a financial advantage by deception. 1. As the sentencing Judge found, Mr Nicholls' criminal history, including the fact that it contained a number of offences of a similar character to those subject of the present application, disentitled him to leniency. It was not suggested that it was an aggravating circumstance pursuant to s 21A(2)(d). 2. However, at the time of the current offences, the applicant was on parole in relation to the matters involving the police pursuit in 2017. He was released on 27 July 2017 and was to be on parole until 25 November 2017. The present offences occurred in the early hours of 20 August 2017, less than a month after he was admitted to parole. The sentencing Judge correctly identified this as an aggravating feature of the case: Crimes (Sentencing Procedure) Act, s 21A(2)(j). 3. The sentencing Judge indicated that he would reduce the sentence by 25% for the utilitarian value of the applicant's early plea of guilty. 4. A psychiatrist's report prepared by a Dr Chew was tendered on sentence. The applicant is an Aboriginal man who has a history of mental health issues. He told Dr Chew that he had previously been diagnosed with schizophrenia or schizoaffective disorder but "I'm right now". He had been off his medication for some time and didn't think he needed it. Dr Chew thought "the most likely diagnosis is Schizoaffective Disorder" and that the applicant also had "a significant substance use disorder". An alternative primary diagnosis was drug induced psychosis. The psychiatrist also noted the possibility that Mr Nicholls had long-standing learning difficulties or a developmental delay. Dr Chew was of the view that his psychiatric conditions would "almost certainly have been present and be materially significant in contributing to the offending behaviour." 5. The sentencing Judge accepted Dr Chew's opinion and said correctly that "general deterrence will not be as important a matter in the sentencing process here as it would be in many other cases." However, his Honour said that "questions of specific deterrence remain relevant." His Honour also took the mental health issues into account in structuring the sentence and in finding special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. No complaint was made about Acting Judge Delaney's approach to the evidence of the applicant's mental illness. However, it is an important factor when considering the ground asserting that the aggregate sentence was manifestly excessive. 6. There was a brief report from the Young Adult Satellite Program (YASP) prepared during May 2018. The details of the report support Dr Chew's suspicion that Mr Nicholls had learning disabilities. His responses as recorded in that report are quite childlike. He was asked "what changes do you need in yourself?" to which he replied "stay off drugs, new friends." When asked how he could guarantee not returning to gaol he said "have work." He said his ambition was "to own a farm with cattle and pigs." YASP staff said Mr Nicholls demonstrated "a positive attitude, good participation with a committed, interested, focussed performance in a mature manner throughout the program". The staff believed that Mr Nicholls "is prepared to change and undergo programs on a regular basis" and that he had plans for his future. 7. The applicant also wrote a letter to the Court in which he expressed his remorse and told the Judge about the programs he had completed while on remand. There was also a Sentencing Assessment Report in which Mr Nicholls explained that he committed the offence because he was bored and getting high with his friends. As the sentencing Judge noted there were some "strange" aspects to the subjective material. For example, Mr Nicholls "talked about collusion between authorities and pro-criminal associates" and that it was "he and his family who were the true victims." Even so, Acting Judge Delaney believed that the applicant was remorseful.

Grounds 1, 2 and 4 1. His Honour's remarks on sentence do not disclose the basis on which he assessed the steal motor vehicle offence as being "just below the mid-range of objective criminality". 2. His Honour erred in concluding the steal motor vehicle offence was just below the mid-range of objective gravity [criminality]. 4. The overall term is manifestly excessive. 1. It is appropriate to consider and deal with these three grounds together. To a substantial degree the applicant's contention is that the sentencing Judge imposed a manifestly excessive aggregate sentence because of errors made in assessing the objective criminality and the appropriate indicative sentence for the offence of stealing the motor vehicle. Part of this submission is that the degree of accumulation implicit in the aggregate sentence was too great. 2. The learned sentencing Judge essentially reproduced the agreed facts in his judgment. Having done that, his Honour said that he had taken into account the submissions of the parties as to the objective seriousness of the offences (which only related to the aggravated break and enter offence) and concluded: "The serious indictable offence was obviously stealing. The stealing was more serious than some because he used what he stole to obtain further advantage. But his breaking and entering was certainly at the lower end of the forms of break and enter that are able to be gleaned from the statistics and previous decisions of the higher courts. The stealing of the motor vehicle was, in my opinion, just below midrange of objective criminality and the aggravated break and enter was [between the] midrange and low range, somewhere between those two levels." 1. The applicant submitted that it was not sufficient for his Honour merely to state his opinion that the offence was "just below the midrange of objective seriousness". Rather, it was necessary for the sentencing Judge to provide some explanation, by reference to the particular objective features of the offence, that led him to that opinion. The applicant submitted that a proper analysis of the facts suggested the steal motor vehicle offence was well below the mid-range of objective seriousness. 2. The sentencing Judge drew a generalised comparison between the aggravated break and enter offence and other offences of its kind. Whilst that part of the judgment was very brief it at least allowed the reader (and the applicant) to understand the basis upon which his Honour came to the conclusion that the offence was somewhere between the mid-range and low range of objective seriousness for offences of its kind. His Honour had earlier referred to some of the features of the aggravated break, enter and steal upon which the Prosecutor had made submissions. However, as the applicant submits, there was nothing in the remarks to elucidate the reasons for his Honour forming the opinion that the stealing of the car was an offence "just below midrange". 3. The offence was part of the same criminal enterprise as the aggravated burglary. The key was obtained in the course of break and enter. The car was simply driven out of the driveway using that key. While the break and enter offence involved some small degree of planning, the stealing of the car may have been little more than an afterthought when the applicant located the key fortuitously in the course of the burglary. There was evidence that the applicant drove the car for a little distance but the car was recovered around a week later. The evidence did not disclose the value of the car and nothing in the facts suggested the car was damaged or that any long term loss was occasioned by the victim. There was no evidence that the car was driven recklessly or that it was vandalised. This can be contrasted with many cases of stealing a motor vehicle when the car is never recovered or is damaged or destroyed to help the offender evade detection. The applicant referred to cases such as Burnett v R [2011] NSWCCA 276 at [15] (where the vehicle was not recovered) and Beale v R [2015] NSWCCA 120 at [26] and [38] (where the car was destroyed to escape detection). The offence could also be contrasted with cases involving the theft of high performance vehicles with the intention of using the car in the commission of other criminal offences (see, for example, Davison v R [2019] NSWCCA 179 at [11]-[14]) or the systematic theft of such vehicles (see Regina v Scott [2005] NSWCCA 51). 4. The indicative sentence involved a starting point of 4 years, before the 25% discount for the early guilty plea. That is, at least, an extremely high sentence by comparison to other cases under s 154F dealt with on indictment, and noting that most offences of this kind are dealt with summarily. [1] 5. The only aggravating circumstance relating to the offence was the fact that it was committed while the applicant was on parole. This was a matter relevant to both offences, and was no doubt given significant weight in his Honour's determination of the appropriate indicative sentence for the aggravated break, enter and steal offence. 6. One matter suggesting error in the assessment of an appropriate (indicative) sentence for this offence lies in a comparison with the indicative sentence for the aggravated break and enter offence. The indicative sentence for the break and enter was 3 years and 3 months (with a starting point of 4 years and 4 months). The indicative sentence for the stealing of the car was 3 years (with a starting point of 4 years). The aggravated break and enter offence was a far more serious crime. It carried a maximum penalty (20 years) twice that pertaining to the stealing of the vehicle (10 years). It also attracted a 5 year standard non-parole period whereas the stealing of the vehicle did not have an associated standard non-parole period. 7. The appeal is against the aggregate sentence. No appeal lies against the individual indicative sentences. Even so, errors relating to the indicative sentences may inform the question of whether error is established in the aggregate sentence: see, for example, JM v R [2014] NSWCCA 297 at [40]. 8. In impugning the aggregate sentence, the applicant also relies on the extent of accumulation implicit in that sentence. An analysis of the aggregate sentence and the indicative sentences shows that there was a putative accumulation of 18 months on the total sentence and 1 year and 4 months on the non-parole period. While questions of accumulation are discretionary matters, this is a very substantial degree of accumulation in view of the close connection between the two offences. 9. I am satisfied that ground 1 is established because the Judge did not identify the features of the offence that led him to make the assessment of the objective criminality involved in the offence of stealing the motor vehicle. Ground 2 is established because the offence could not properly be categorised as falling "just below the mid-range" of objective seriousness. In reaching that conclusion, I am conscious of the fact that this Court is generally reluctant to interfere with a sentencing Judge's assessment of the objective criminality of the offence: see, for example, Mulato v R [2006] NSWCCA 282 at [46] (Simpson J, as her Honour then was). However, such assessments are generally accompanied by reasons, however brief. As the High Court said in Carroll v The Queen [2009] HCA 13; 254 ALR 379: "24. In deciding whether the sentence passed by the primary judge was manifestly inadequate it was open to the Court of Criminal Appeal to consider how the appellant's offending was properly to be characterised. In particular, it was open to the Court of Criminal Appeal to form a view different from the primary judge about where, on an objective scale of offending, the appellant's conduct stood." 1. I am driven to the conclusion that the sentencing Judge did fall into error in his approach to the stealing of the motor vehicle and the degree of accumulation implicit in the sentencing process. I am satisfied that these errors led his Honour to impose an aggregate sentence that was manifestly excessive. In reaching that conclusion I have not lost sight of the fact that there is no single correct sentence and that sentencing courts are allowed a significant and wide discretion. Even allowing for those matters, and considering all of the matters relevant to the sentencing discretion including the plea and mental health issues, I have concluded that the sentence was plainly wrong and unjust. 2. I have been cautious in comparing the present case to other cases and statistics. Nevertheless counsel for the applicant helpfully provided a number of comparable cases and made reference to the relevant statistics. These confirmed my instinctive evaluation that the indicative sentence for the stealing of the motor car was manifestly too high and that the degree of implicit accumulation resulted in a manifestly excessive aggregate sentence. 3. For those reasons, I would uphold grounds 1, 2 and 4.

Ground 3: His Honour's remarks relating to the Form 1 offences were inadequate and give rise to the real possibility that his Honour failed to apply correct legal principle. 1. While I accept the applicant's contention that the remarks made by the sentencing Judge concerning the approach he took to the Form 1 matters were scanty and somewhat opaque, I am not satisfied that his Honour fell into error in this regard. 2. It is true that his Honour did not indicate that he was giving additional weight to principles of specific deterrence and retribution in accordance with well-established authority: Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 and Abbas & Others v R [2013] NSWCCA 115; 231 A Crim R 413. It is also true that his Honour's judgment is open to an interpretation that he may have taken the Form 1 offences into account in assessing the objective gravity of the principal offence. This arises from the observation that "the stealing was more serious than some because he used what he stole to obtain further advantage." This may suggest what is sometime called "double counting" of the matter. 3. However, the sentencing Judge specifically said that "the matters on the form 1 will not be used to significantly alter the [sentence for the] principal offence". The sentence indicated for the aggravated break and enter suggests that his Honour adopted that approach, which was appropriate in the circumstances of the case. 4. I would not uphold ground 3.

Resentencing 1. Because I would uphold grounds 1 and 2, it is necessary to exercise the sentencing discretion afresh. In conformity with my conclusion in relation to ground 4, I am satisfied that a different, less severe, sentence is warranted and ought to have been imposed. 2. The aggravated break and enter offence was not a particularly sophisticated example of an offence of its kind. The circumstance of aggravation was the fact that the victim was present within the premises. However, the victim was not disturbed and was unaware of the intrusion until he woke up the following morning. The amount of property stolen was not substantial. There must have been some planning involved but it was relatively minor. On the other hand, the offence is a prevalent one and the applicant came before the Court with a number of offences of dishonesty on his record. Further, Mr Nicholls was on parole when he committed this offence. 3. The applicant remains a young, Aboriginal man with mental health issues. He has shown some signs that he may have reached a point where he is motivated to reform but it is difficult to come to a particularly sanguine opinion as to his prospects of rehabilitation. Because of his mental health issues, general deterrence is less significant than is often the case for offences of this kind. The matters on the Form 1 means that there will be somewhat more emphasis on specific deterrence and retribution in determining an appropriate sentence for the more serious offence. 4. As the sentencing Judge found, the aggravated break, enter and steal offence fell found somewhere between the low and middle range for offences of its kind. The stealing of the motor car fell toward the bottom of the range of offences of its kind that are dealt with on indictment. In adopting this terminology, I am conscious of the observations of Basten JA that the use of such a scale is sometimes unhelpful and that "a range is not a point on a scale": Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]. However, in view of the arguments made in this case and the provisions in s 54A of the Crimes (Sentencing Procedure) Act 1999, these assessments should assist the reader in understanding the basis upon which I have determined the appropriate sentences to impose on re-sentencing. 5. In view of the fact that there are only two offences, and for the sake of transparency, I would not impose an aggregate sentence. Rather, I would impose individual sentences for each offence. Because the offences were closely connected, but to reflect the additional and separate criminality, the sentences I would impose would be partially concurrent and partially cumulative. I would find special circumstances in the partial accumulation of the sentences and in the desirability of extending the period on parole to foster the rehabilitation of a young man with mental health issues and a drug problem. The adjustment to the non-parole period will not be substantial. Like the sentencing Judge I would provide a 25% discount to reflect the utilitarian value of the early plea of guilty. 6. For stealing the motor car, I would commence with a starting point of 16 months imprisonment. With a 25% discount the sentence will be 12 months. I would impose a fixed term noting there is no utility in setting a non-parole period because the sentence for the other offence will commence six months after the commencement date of this sentence. 7. For the aggravated break enter and steal offence, I would commence with a starting point of 4 years and 6 months. With a discount of around 25%, the sentence would be 3 years and 4 months. I would set a non-parole period of 2 years and 3 months. The sentence would commence six months after the fixed term sentence for the stealing of the motor vehicle. 8. Therefore, the total effective sentence would be 3 years and 10 months with a non-parole period of 2 years and 9 months. 9. I propose the following orders: 1. Application for leave to appeal granted. 2. Appeal upheld. 3. The aggregate sentence imposed in the District Court is quashed and in lieu thereof: 1. For the offence of stealing a motor vehicle, the applicant is sentenced to a fixed term of 12 months imprisonment commencing on 23 May 2018 and expiring on 22 May 2019. 2. For the offence of aggravated break, enter and steal, the applicant is sentenced to a non-parole period of 2 years and 3 months commencing on 23 November 2018 and expiring on 22 February 2021 with a balance of term of 1 year and 1 month commencing 23 February 2021 and expiring 22 March 2022. 1. The applicant will be eligible for release to parole at the expiration of the non-parole period for the aggravated break enter and steal offence.

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Endnote 1. At the time of writing this draft, the Judicial Commission's statistical database discloses 245 cases dealt with summarily and 15 dealt with on indictment. 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: 09 April 2020