O'NEILL v R [2012] NSWCCA 22

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'NEILL v R [2012] NSWCCA 22 Hearing dates: 1 February 2012 Decision date: 29 February 2012 Jurisdiction: Common Law - Criminal Before: Whealy JA at [1] RS Hulme J at [2] Hidden J at [3] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal - sentence accumulated upon sentences for other offences - effective non-parole period more than 75% of aggregate sentence - not an oversight by sentencing judge - no error Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Kalache v R [2011] NSWCCA 210 Mill v The Queen [1998] HCA 70; 166 CLR 59 Stevens v R [2008] NSWCCA 294 France v R [2010] NSWCCA 24 Texts Cited: Thomas, Principles of Sentencing, 2nd ed Category: Principal judgment Parties: Leslie William O'Neill (applicant) Regina (respondent) Representation: Counsel P Townsend (Senior Solicitor Advocate - Legal Aid NSW) (applicant) N Gouda (respondent) Solicitors B Sandland (Legal Aid NSW) (applicant) S Kavanagh (Solicitor for Public Prosecutions) (respondent) File Number(s): 2009/260509 Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-18 00:00:00 Before: English DCJ File Number(s): 2009/260509

Judgment 1WHEALY JA: I agree with Hidden J and the orders he proposes. 2RS HULME J: I agree with Hidden J. 3HIDDEN J: The applicant, Leslie William O'Neill, pleaded guilty in the District Court to a charge of break, enter and steal, an offence under s 112(1)(a) of the Crimes Act 1900 which carries a maximum sentence of 14 years imprisonment. He was also dealt with on a s 166 certificate for a related offence of destroying or damaging property, an offence under s 195(1)(a) of the Crimes Act which carries a maximum sentence of 5 years imprisonment. 4For the offence of break, enter and steal he was sentenced to imprisonment for 3 years and 9 months, comprising a non-parole period of 2 years and 9 months and a balance of term of 1 year. The sentence was directed to commence on 6 June 2011, upon the expiry of a series of other sentences imposed by the sentencing judge on appeal from the Local Court. For the offence on the s 166 certificate he was sentenced to a short fixed term of imprisonment, to be served concurrently with the sentence on the break, enter and steal. He seeks leave to appeal against the sentence for the break, enter and steal. 5Given the limited scope of the application, it is unnecessary to examine in any detail the facts of the offences or the applicant's subjective circumstances. In the early hours of 6 November 2009 the applicant broke into the Griffith North Public School and stole property of significant value from classrooms there. He did not get very far with it, because police had been alerted to the offence. They arrived at the school, chased the applicant and apprehended him. Nevertheless, items taken from the classrooms, including a flat screen television, a video conferencing kit and a smart board, were found to have been destroyed. The cost of replacing those items was roughly $20,000. In addition, a screen door had been damaged and two windows were smashed. At the time of sentence the cost of repairs for those items had not been assessed. 6The applicant was 43 years old at the time of the offences, and is now 45. He has an extensive criminal history for a variety of offences, including break, enter and steal, commencing in the Children's Court in 1979 and persisting thereafter. On a number of occasions he had been sentenced to terms of imprisonment. At the time of the offences at the school he was on bail for other offences, some of them of a similar nature. 7His background was disturbed, his education and employment were limited, and he had a history of alcohol and drug abuse. The sentencing judge allowed him an appropriate discount for his plea of guilty, but did not find him to be remorseful. Her Honour was pessimistic about his prospects of rehabilitation, describing those prosects and the likelihood of his re-offending as "cause for concern." 8The applicant gave evidence to the effect that he had had enough of gaol and wished to turn his life around. A psychological report noted his extensive criminal history, together with an entrenched resistance to authority, and concluded that any treatment to be undertaken would be protracted. A long term program of residential rehabilitation was recommended. 9On the basis of that material his representative in the District Court, who did not appear in this court, asked her Honour to find special circumstances. She declined, observing that he would have "ample opportunity both in custody and upon his release to parole to address those aspects of his life", and noting that drug and alcohol counselling and psychotherapy were available in prison, albeit not to the degree that they might be in the community.

The application 10There are two grounds of the application, directed to the fact that her Honour did not find special circumstances even though the sentence imposed was accumulated upon the sentences for the Local Court matters to which I earlier referred. The effect of the grounds is that her Honour failed to have regard to that accumulation and that it should have led to a finding of special circumstances. 11It is necessary to examine briefly the offences dealt with in the Local Court and the sentences her Honour imposed in respect of them. At Griffith Local Court the applicant had been dealt with for a series of offences committed at Balranald in early December 2008. There were two charges of break, enter and steal, three charges of malicious damage, two charges of unlawfully obtaining goods, two charges of intimidating police, and charges of being armed with intent and larceny. He broke into the premises of the Balranald Shire Council and removed a plasma TV screen and a DVD recorder. He also broke into locked premises of the SES and stole a computer. He damaged a wall and a door at these premises, as well as the windows of some vehicles parked in a yard. 12When he was arrested, he was found to be in possession of several keys from the council's premises, together with remote controls for the television and DVD recorder. In the dock at the police station he became aggressive. He threatened to blow up a petrol bowser at the council depot. More importantly, he threatened to kill one of the police officers, saying that he knew where he lived. He damaged the dock by smashing a plastic item against it, and threatened to kill another police officer with a piece of the broken plastic, which he brandished like a knife. 13He was also dealt with in the Local Court for a further offence of intimidating police, committed on 3 February 2010 while he was in custody. Whilst being transported to court from Junee Correctional Centre he behaved in an aggressive way, and threatened to hunt down the police and kill them. 14On appeal, her Honour set aside the sentences passed by the magistrate and imposed a series of fixed terms of imprisonment. For the offence of intimidating police committed on 3 February 2010, the applicant was sentenced to imprisonment for 6 months, dating from 6 November 2009. For each of the offences committed in December 2008, he was sentenced to concurrent fixed terms of imprisonment of varying lengths, all dating from 6 December 2009. The longest of those sentences were terms of imprisonment for 18 months. In the event, for all the offences dealt with on appeal he was sentenced to an aggregate fixed term of 1 year and 7 months, dating from 6 November 2009 and expiring on 5 June 2011. 15As I have said, the sentence the subject of this application was directed to commence on 6 June 2011, so as to be wholly cumulative upon those sentences. The effect of all the sentences her Honour passed was an aggregate term of 5 years and 4 months, dating from 6 November 2009, with an effective non-parole period of 4 years and 4 months. 16The solicitor for the applicant in this court, Mr Townsend, noted that the ratio between that effective non-parole period and the aggregate sentence is about 81%. When her Honour declined to find special circumstances in passing sentence for the subject break, enter and steal, she referred to the applicant's subjective case but said nothing about the practical effect of the accumulation of that sentence upon the sentences passed for the Local Court matters. In so doing, Mr Townsend submitted, her Honour fell into error. (In fact, in the sentence for the subject break, enter and steal, 3 years and 9 months with a non-parole period of 2 years and 9 months, the ratio of the non-parole period to the total sentence is a little under the statutory norm, roughly 73%. Nothing, however, turns on this.) Mr Townsend asked this court to reduce the non-parole period so as to achieve a ratio between effective non-parole period and aggregate sentence of 75%. This would require a reduction of the non-parole period by 4 months. 17There is no need to refer to the numerous decisions of this court which have dealt with this issue. They were helpfully reviewed in the judgment of Buddin J in Kalache v R [2011] NSWCCA 210, at [31] - [42]. It is well settled that accumulation of sentence may itself amount to a special circumstance warranting an adjustment of the ratio between non-parole period and sentence, if only to maintain the 75% proportion between effective non-parole period and aggregate sentence. However, whether that course is adopted depends on the circumstances of the case at hand. If it is not, so that the effective non-parole period bears a higher proportion to the aggregate sentence, a sentencing judge should normally give reasons for that approach. In the absence of reasons, it might be inferred that the issue was overlooked. 18In the present case, accumulation as a basis for finding special circumstances was not raised in addresses to her Honour, even though the Crown's representative (who also did not appear in this court) submitted that there should be a measure of accumulation in the sentences she was to pass. Nevertheless, it is unlikely that her Honour was unmindful of the issue. It arose in the sentences passed in the Local Court which were before her on appeal. They comprised partly cumulative sentences leading to an aggregate term and an effective non-parole period which exceeded 75% of that term. In setting those sentences aside, her Honour noted that the aggregate sentence "exceeds the prima facie ratio between the total term and the non-parole period." 19It appears to me that her Honour gave careful thought to the structure of the sentences she passed for all the offences with which she was dealing. No doubt, she passed fixed terms of imprisonment for the Local Court matters because of the sentence she had determined for the subject break, enter and steal, having regard to totality. It was necessary for her Honour to arrive at a minimum custodial component of the sentence adequate to reflect the applicant's criminality. At the same time, her remarks convey a conclusion that such prospects of rehabilitation as the applicant had would be appropriately fostered by the counselling and treatment available to him in prison, supplemented by 1 year of parole eligibility. 20Accordingly, I am persuaded by the submission of the solicitor for the Crown in this court, Ms Gouda, that the non-parole period her Honour set was not the result of inadvertence or miscalculation but, rather, reflected her intention. In Kalache at [31], Buddin J referred to the well known decision of the High Court concerning the principle of totality in Mill v The Queen [1998] HCA 70; 166 CLR 59. In that case, at 62 - 3, the court referred with approval to a passage in Thomas, Principles of Sentencing , 2 nd ed, which included the following: "The principle has been stated many times in various forms: ' when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'." 21This appears to me to be the approach which her Honour took, both as to the aggregate sentence and the effective non-parole period. Other judges might have reduced the non-parole period so as to preserve the overall proportion of 75%, but I am not persuaded that her Honour fell into error in declining to do so. In any event, I am also persuaded by Ms Gouda's submission that, having regard to all of the offences, a lesser aggregate non-parole period was not warranted in law: s 6(3) of the Criminal Appeal Act 1912. Frankly, the applicant was fortunate to have had the benefit of wholly concurrent sentences for the offences committed at Balranald. It would have been well open to her Honour to have accumulated the sentences for the offences committed in the police station upon those for the offences at the Shire Council premises. 22On occasions this court has dismissed appeals in cases where an effective non-parole period has exceeded 75% of the aggregate sentence on the basis that no lesser sentence was warranted, even though it appeared that the sentencing judge had overlooked the effect of accumulation: see, for example, Stevens v R [2008] NSWCCA 294, France v R [2010] NSWCCA 24. That said, it should be noted that in those cases the proportion was not markedly greater than 75%. 23I would grant leave to appeal but dismiss the appeal.

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