Kuehne v R [2014] NSWCCA 22

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kuehne v R [2014] NSWCCA 22 Hearing dates: 26 February 2014 Decision date: 28 February 2014 Before: Hoeben CJ at CL at [1] Adams J at [2] R A Hulme J at [3] Decision: 1. Appeal against sentence allowed. 2. Quash the sentence imposed by English DCJ on 27 November 2009. 3. In lieu thereof, sentence the appellant to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence is to date from 3 December 2008. The non-parole period expired on 2 June 2013 and the total term will expire on 2 December 2014. Catchwords: CRIMINAL LAW - appeal against sentence - referral to the Court under Part 7 of the Crimes (Appeal and Review) Act 2001 - Muldrock error conceded - progress towards rehabilitation contrasted to negative assessment at time of sentence - lesser sentence warranted - appeal allowed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537 Carlton v R [2014] NSWCCA 14 Kuehne v R [2011] NSWCCA 101 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Category: Principal judgment Parties: Walter James Kuehne (Appellant) Regina (Respondent) Representation: Counsel: Mr C Smith (Appellant) Ms S Dowling SC (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2008/10708 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-11-27 00:00:00 Before: English DCJ File Number(s): 2008/10708

Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2ADAMS J: I agree with R A Hulme J. 3R A HULME J: On 7 August 2009, after a three day trial before her Honour Judge English and a jury in the District Court at Penrith, the appellant was convicted of one count of break, enter and commit serious indictable offence in circumstances of aggravation (being in company) contrary to s 112(2) of the Crimes Act 1900 (NSW). Such an offence has a prescribed maximum penalty of 20 years imprisonment and a standard non-parole period of 5 years. 4On 27 November 2009 the appellant was sentenced to 6 years 8 months imprisonment with a non-parole period of 5 years to date from 3 December 2008. 5The applicant appealed against his conviction and sentence. On 4 May 2011, this Court dismissed both appeals: Kuehne v R [2011] NSWCCA 101. The sentence appeal did not raise a ground, as is now sought to be raised, concerning the misapplication of the standard non-parole period legislation. That was because the appeal predated the clarification of the correct approach to that legislation set out in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 6The applicant then sought a review of his sentence pursuant to s 78 Crimes (Appeal and Review) Act 2001 (NSW). On 19 November 2013 Latham J referred that sentence to this Court to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): Application by Walter James Kuehne pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1537. It has been recently clarified that in such a case there is no requirement for leave to appeal, or for an extension of time, at least in respect of grounds the subject of the referral: Carlton v R [2014] NSWCCA 14 at [38]-[39]. 7The applicant was released to parole on 13 December 2013. His parole period will expire on 2 August 2015.

Facts 8A summary of the facts of the appellant's offence was provided in the sentencing judgment of English DCJ: "In the early hours of the morning of 17 November 2007 Mr Chay went to work at the bakery in Bolderwood Road Blackett. He drove into the backyard, parked his vehicle and unlocked the back door. It was a security steel door made of bars and then a flyscreen door; there was then another door to enter, a wooden door. He entered the bakery and commenced mixing flour to make the dough. He heard a noise as though someone was trying to shake the back gate. He went out to investigate and saw three men standing near the back gate on the outside of his yard. He saw them run to the gate at the butcher shop next door and go in through that gate. They picked up a chair and kicked the fence between the two yards. They threw a long steel pole at [him]. He saw one of the men, a tall man, had a knife in his hand. He ran back inside the shop and tried to lock the steel door, one of the men tried to push the pole through the door at him. He pulled the flyscreen door shut and put a piece of wood across the door to hold it shut. One of the men kicked the bottom of the flyscreen door. He ran inside and closed the wooden door. It was kicked in. He ran into the storeroom, closed the door and dialled triple-0. He heard the storeroom door being kicked in but it did not break. Things then went quiet. He looked out and he saw one man pulling the cash register from the wall [and] the other two standing near the refrigerators in the shop. They ran past him with the cash register and left the shop via the back door. He grabbed a broom and chased them. He saw the fence between the two yards had been broken and the gate to the butcher shop was open. He ran through the break in the fence and saw the three men leaving the scene in a small silver hatchback motor vehicle. He could not identify any of the three men. Police attended and located fingerprints on the top of the fence between the two yards. They were identified as the fingerprints of this offender."

Personal circumstances of the appellant 9A summary of certain aspects of the appellant's subjective circumstances was provided in the judgment of Hislop J at [31]-[32]: "The appellant was born in 1981. He had a difficult early life. He completed year 12 at high school. He has drug and alcohol problems. His criminal record comprises convictions for goods in custody, driving offences, custody of an offensive implement in a public place, possessing housebreaking implements, assault occasioning actual bodily harm in company as well as nine convictions for break enter and steal and a conviction for aggravated break and enter. He has incurred institutional misconduct charges. The subject offence occurred whilst he was on parole. Her Honour stated in her remarks on sentence: 'He has of course been afforded considerable opportunity and support in the past. Any leniency extended to him in the past has been ignored and he has breached orders of the court put in place to assist him. In August 2000 he was ordered to perform 300 hours of community service work and was placed on a two year good behaviour bond. His responses were poor, he failed to complete the community service order and was sentenced to periodic detention. He failed to respond and attend alcohol and other drug programmes in accordance with the conditions of his good behaviour bond. He continued to re-offend. He failed to comply with an order for periodic detention and that was revoked and he was sentenced to full time custody. He re-offended whilst on that parole. He was again incarcerated and on the next occasion released to unsupervised parole and he reoffended. In June 2004 he was referred to the Parramatta Drug Court program. By his own admission, he had no intention of complying with the requirements of the program and he left the residential rehabilitation facility on the first night. Upon his release in August 2007 [he], by his own admission, was abusing alcohol and heavily to prevent from relapsing into drug use. He was also using crystal methamphetamine.'" 10Hislop J later (at [44]) referred to some further matters: "Her Honour described the appellant as 'the most unimpressive witness and his version of events could best be said to be imaginative to the point of being beyond belief.' She said he 'has no doubt told courts on many prior occasions of his intentions in that regard [as to rehabilitation] and he has breached the trust imposed in him by those courts and he has not complied with the orders or the assistance offered to him.' The appellant was neither remorseful nor contrite. Her Honour considered his prospects of rehabilitation as quite poor given his past failed attempts and despite what he might now say about his intentions for the future." 11The sentencing judge accepted the opinion of a psychologist that the appellant was of "low cognitive functioning and socially unsophisticated, someone lacking in reflective capacity". His verbal and non-verbal intelligence were assessed as falling into the borderline and average ranges respectively. 12The "difficult early life" referred to by Hislop J was a reference to the applicant being one of six siblings and being brought up in an environment marred by domestic violence and his parents' abuse of alcohol and drugs. His parents separated when he was aged about seven and he remained in the care of his father. He commenced using alcohol and cannabis at age 12 and amphetamines at about age 17; his mother injecting this drug for him the first time. His father has remained supportive of him, although he would not visit him in gaol. He had little or no contact with his mother. 13Despite his lengthy history of substance abuse, the appellant gave evidence before the sentencing judge professing a motivation to finally make a genuine attempt at rehabilitation. Her Honour, with justification given the history, was unimpressed.

The previous appeal 14Three issues were raised in the appeal against sentence in the original appeal. The first matter concerned an issue of totality given that the sentence imposed by English DCJ was entirely accumulated upon sentences for unrelated offences the appellant had served in the year or so following his arrest for the present matter. It was contended that the appellant had become institutionalised given that he had spent a considerable proportion of the time since November 2001 in custody. Finally it was contended that the applicant had been held in protective custody, albeit at his own request in relation to unrelated matters, whilst on remand. It was anticipated that he would continue to be on protection after sentencing. It was submitted before the sentencing judge that by reason of these three factors there should also be a finding of special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole period. 15Hislop J dealt with each of these contentions (at [33]-[52]) and found no error in the approach taken by the sentencing judge. He also concluded that no lesser sentence was warranted and should have been passed: s 6(3) of the Criminal Appeal Act 1912 (NSW). McColl JA and R S Hulme J agreed.

Ground of appeal - The sentencing judge erred in the application of the standard non-parole period legislation in light of the principle identified in Muldrock v The Queen (2011) 244 CLR 120 16It was common ground that this ground should be upheld. The reasoning of the primary judge that is relevant in this respect was summarised by Latham J in the course of her referral reasons (at [8]): "The sentencing judge found the offence to be 'at the mid range of objective seriousness' and that there was 'no good reason to depart from that guideline, benchmark or guidepost.' It is clear that the judge therefore engaged in a two-stage sentencing process." 17There is no doubt that such an approach to sentencing was subsequently held by the High Court to be erroneous: Muldrock at [28]. The Crown, however, contended that no lesser sentence was warranted.

Is a lesser sentence warranted? 18Matters relevant to the assessment of the s 6(3) issue include the following matters that represented the state of affairs as they existed at the time of sentencing: · The unchallenged finding by the sentencing judge that the offence was "at the mid range of objective seriousness". Part of this assessment was influenced by the presence of objective aggravating factors: the use of a weapon (a long steel pole which was thrown at the victim and one offender held a knife); the vulnerability of the victim (who was forced to flee and lock himself in the storeroom); and the damage occasioned to the premises. On the other hand, the judge took into account that the victim did not appear to have suffered substantial ongoing harm and that the proceeds of the offence were not significant. · The appellant was in the community under conditional liberty (parole) at the time of the offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW). · The appellant was aged 26 at the time of the offence and 27 at the time of sentence. · The acceptance by the sentencing judge of evidence of the appellant's background referred to above, particularly as to his exposure to violence, alcohol and drugs at a young age. · The absence of reasons to extend leniency, there being no plea of guilty, remorse, or good prospects of rehabilitation. The appellant's significant criminal history also denied to him the extension of leniency. 19In addition, it is necessary for this Court to have regard to further material that was received by way of affidavits sworn by the appellant and his solicitor. The appellant was released on parole on 13 December 2013. He has involved himself with his family. After initially living in a "therapeutic drug rehabilitation residence", he is now living with his sister and keeps busy by helping her with the care of her three children. His brother is attempting to assist him in obtaining employment. He claims to now be free of alcohol and illegal drugs. He was on a methadone program when he went into custody in December 2007 but reduced the dosage to the point of ceasing that program in January 2012. 20Prior to his release from custody he undertook a variety of drug rehabilitation programs and he attended Narcotics Anonymous meetings (and he has continued doing so in the community). He also completed a variety of vocational courses, including acquiring a forklift driver's licence. He engaged in a work release program for a considerable period and was commended for his work ethic.

Conclusion 21The applicant's progress towards rehabilitation appears to be encouraging. The evidence indicates a far greater level of maturity and insight into the causes of his offending behaviour that bodes well for his future. As the appellant's counsel, Mr Smith, put it in his customary direct and concise way, "this is someone who has had a real decent go" and "it is a significant distinguishing feature between him now and him as at the time of sentence". 22That said, however, sight must not be lost of the fact that the applicant committed an offence of significant seriousness with the additional aggravating factor that he was on parole at the time. 23While neither the maximum penalty of imprisonment for 20 years nor the standard non-parole period of 5 years can have determinative significance, they remain relevant as the High Court observed in Muldrock (at [27]) as two "legislative guideposts". 24Taking into account all of the facts concerning the offending with the various personal circumstances of the appellant, but particularly having regard to the positive evidence that is now available as to his progress towards rehabilitation, I am of the view that a lesser sentence is appropriate. 25The question as to whether there are special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would ordinarily be engaged but with the appellant already being on parole there is no utility in dwelling upon it.

Order 26I propose the following orders: 1. Appeal against sentence allowed. 2. Quash the sentence imposed by English DCJ on 27 November 2009. 3. In lieu thereof, sentence the appellant to imprisonment comprising a non-parole period of 4 years 6 months and a balance of the term of the sentence of 1 year 6 months. The sentence is to date from 3 December 2008. The non-parole period expired on 2 June 2013 and the total term will expire on 2 December 2014.

********** 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: 28 February 2014