Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Hanania v R [2012] NSWCCA 220
• Hearing dates: 30 July 2012
• Decision date: 12 October 2012
• Before: Hoeben JA at [1]; Johnson J at [2]; Button J at [3]

Decision

(1) Leave to appeal granted.

(2) Appeal dismissed.

• Catchwords: CRIMINAL LAW - sentence appeal - aggravated break enter and steal - no error in not obtaining pre-sentence report - whether double counting by taking Form 1 offences into account - no error in taking possession of safebreaking instrument on Form 1 into account - whether full-time custody manifestly excessive - whether sentence manifestly excessive
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Mental Health (Forensic Provisions) Act 1990
• Cases Cited: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Yang v R [2012] NSWCCA 49
• Category: Principal judgment
• Parties: Anthony Hanania (applicant); Regina (respondent)
• Representation: Counsel: W Dawe QC (applicant); J Girdham (respondent); Solicitors: City Legal Solicitors (applicant); Solicitor for Public Prosecution (applicant)
• File Number(s): 2011/89403
• Publication restriction: Nil

Decision under appeal

• Date of Decision: 2012-03-01 00:00:00
• Before: Keleman DCJ
• File Number(s): 2011/89403

Judgment

1 Hoeben JA: I agree with Button J and the orders which he proposes. I particularly endorse his Honour's remarks in respect of Grounds 1 and 4. Grounds of Appeal expressed in terms of a sentencing judge "having insufficient regard to" some aspect of evidence, face a threshold difficulty in that they concede that some regard or weight was given to the evidence. This inevitably results in a direct challenge to the sentencing discretion of the judge.

2 Johnson J: I agree with Button J.

3 Button J: On 1 March 2012 in the District Court at Parramatta, his Honour Judge Keleman SC sentenced Anthony Hanania ("the applicant") for one count of aggravated break enter and steal. The circumstance of aggravation was that the offence was committed in company. The maximum penalty for the offence, pursuant to s 112(2) of the Crimes Act 1900, was imprisonment for 20 years. A standard non-parole period of imprisonment for 5 years attached to the offence.

4 At the same time, a co-offender was dealt with for an identical offence. In light of the fact that the applicant has notified no ground of appeal founded on disparity, or any other ground that relates to the co-offender, I will not discuss the sentencing of the co-offender further in this judgment.

5 In sentencing for the primary offence, his Honour took into account two offences on a Form 1. Because they found a ground of appeal, I will describe them in more detail than would usually be necessary.

6 The first offence was possession of a safebreaking implement without lawful excuse. Pursuant to s 114(1)(b) of the Crimes Act, that offence carries a maximum term of imprisonment for 7 years. According to a Court Attendance Notice, the implement that founded that offence was an angle grinder. The second offence on the Form 1 was intentionally or recklessly damaging property. Pursuant to s 195(1)(a) of the Crimes Act, the maximum penalty was imprisonment for 5 years. Again, according to a Court Attendance Notice, the property was the front glass door of a jewellery shop.

7 His Honour imposed upon the applicant a sentence comprising a non-parole period of imprisonment for 12 months with a parole period of 12 months. Accordingly, the head sentence was imprisonment for 2 years with a non-parole period of 12 months. Clearly, special circumstances were found upon which a variation of the statutory ratio was based. If that had not occurred, the non-parole period would have been 18 months.

Objective features

8 A document entitled Agreed Facts was tendered in the proceedings on sentence. There was no dispute on the part of the applicant with regard to that document.

9 Put shortly, on the evening of Saturday 19 March 2011, the applicant and the co-offender drove a van to an alleyway behind a shopping arcade. One of them jumped over a metal fence and climbed onto the roof of the arcade. He then walked a short distance along the roof and used a one metre long industrial chisel to rip up the metal roof sheets. That offender thereby obtained access to the ceiling cavity under the roof. He then called to the other offender and instructed him to bring the bags containing tools. The two offenders met in the ceiling cavity.

10 Meanwhile, a nearby citizen had heard the sounds generated by the activities described above and called the police.

11 The offender and co-offender broke through the ceiling and into the body of the jewellery shop. Indeed, it seems the co-offender may have fallen through the ceiling. There they took possession of a small bag of gems valued at about $200 or $300.

12 Police arrived and saw the offenders attempting to flee from the shop. They did so by smashing a glass panel at the front door. That activity forms the basis of the offence of malicious damage on the Form 1.

13 Both offenders were arrested.

14 In the roof cavity, police discovered two bags. The first contained an angle grinder with saw discs, a hammer, and a bottle of water. The other bag contained three screwdrivers, wire cutters, a mobile telephone, keys to the van, and a head torch. Possession of the angle grinder constituted the offence of possessing a safebreaking implement that appeared on the Form 1.

Subjective features

15 These were established by a psychological report, oral evidence from the applicant, and a criminal record that was not disputed by the applicant.

16 In an interview with police conducted shortly after his arrest, the applicant made full admissions and described the motivation for the offence as a need to repay a debt of about $20,000.

17 The applicant pleaded guilty at the first opportunity in the Local Court. He received a discount for the utilitarian benefit of that plea of 25 per cent.

18 The applicant gave evidence on oath in the proceedings on sentence. He is recorded as having described himself as "resourceful", but he surely meant to say he was remorseful. At the same time he offered to pay for the damage done.

19 The applicant was born on 8 January 1991. Accordingly he was 20 years of age as at the date of the offence, and 21 years as at the date of sentence.

20 There was no evidence that the upbringing of the applicant had been attended by deprivation, violence, or drug or alcohol abuse by those close to him. Nevertheless, it had been very disrupted. At school he could not settle or concentrate. He was violent towards other students and his conduct was often otherwise inappropriate. He was in the lowest academic classes.

21 On the first day of Year 7 he was suspended. In High School he was diagnosed with Attention Deficit Hyperactivity Disorder. In Years 8 and 9 he attended a "behavioural school for students with a conduct disorder and emotional disturbance". He was expelled from that school and, at the beginning of Year 10, expelled from the whole public school system.

22 Subsequent enrolment at TAFE was a failure as well, due to the applicant assaulting an employee, and he was expelled from that institution. Thereafter, he left the family home, moved in with a friend, and developed a drug habit. He suffered a number of overdoses and, according to the psychological report, ended up being incarcerated for 8 months.

23 At the age of 18 years, he overcame his drug problem as a result of being in a serious relationship and expecting a child. Around that time, in May 2010, the applicant sought professional help with regard to his anger and violence, and saw a psychologist once.

24 As noted above, the offence under consideration was committed in March 2011. The applicant was granted bail. The following month, he commenced treatment with the psychologist who was the author of the report tendered in the proceedings on sentence. From that time on, he consistently maintained the program founded on therapy and medication. The psychologist expressed the opinion in the report that, at the time of the offence, the applicant was suffering from a conduct disorder, anxiety, and depression.

25 By the date of sentence, the applicant was still on bail. He was working in his father's car yard. He and his partner had a one year old baby, and the birth of a second child was imminent. The applicant spoke positively in the witness box of the psychological treatment he was receiving, referring specifically to being able to control his temper better, getting on well with his family, and planning for the future as a responsible parent.

26 The criminal record of the applicant was not unblemished. In the Children's Court he had been dealt with for a number of property offences. Of particular note was an offence of aggravated break enter and commit serious indictable offence. The applicant received probation for a period of 12 months as a result of the commission of that offence, imposed on 22 May 2008. On 12 January 2009, that probation was called up, and the applicant received a suspended sentence comprised of a control order for 7 months. As an adult he had been convicted of three driving offences. The applicant was not on any form of conditional liberty as at the date of the offence.

Grounds of appeal

27 Five grounds have been notified. I shall deal with each of them in turn.

Ground One

"His Honour the learned sentencing judge erred in that he did not have sufficient regard to the psychologist's report particularly regarding the apparent benefit the Applicant was gaining from his treatment regime, the improvement documented regarding his attitude to authority and his criminal behaviour."

Background and Submissions

28 The background to this ground is as follows. The applicant was represented before his Honour in the proceedings on sentence. An application for the matter to be dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 was rejected, on the simple basis that such applications must be made in the Local Court with regard to matters that are being dealt with summarily.

29 In a short judgment to that effect, his Honour remarked that, even if the section applied, and even if the preconditions in that section were met, the objective seriousness of the offence meant that it would have been inappropriate to exercise the discretion enlivened by the section in any event.

30 Thereafter, in the remarks on sentence, his Honour dealt with the psychological report at length. Three and a half pages of the remarks on sentence were devoted to discussing it and summarising it. At the end of that portion of the remarks on sentence, his Honour said:

"If the offender Hanania maintains his present motivation and continues to receive both psychological and psychiatric assistance, I am satisfied his prospects of rehabilitation are good and he is unlikely to re-offend in the future."

31 Senior counsel for the applicant submitted that the remark his Honour made in dealing with the application pursuant to s 32 was made "without sufficient regard to that which is set out in the comprehensive psychological report which was in evidence before him." Furthermore, he submitted that the contents of the psychological report were not given sufficient weight, and that the community would be better served by rehabilitation, as opposed to the incarceration of the applicant.

32 Counsel for the respondent submitted that it could not be said that it had been established that the psychological report had been accorded insufficient regard by his Honour.

Decision

33 It seems to me that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive. That is because the ground accepts that some regard or weight was given to the factor, but asserts that it was insufficient. It seems to me that the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed. Such an approach leads to considerations of outcomes, not process.

34 However, for abundant caution, I will consider this ground separately.

35 Considering first what was said by his Honour with regard to the misconceived application, the rejection of that application was undoubtedly correct. The characterisation of the objective seriousness of the offence in that context was reasonably open to his Honour. In any event, it is the sentence imposed, and the remarks on sentence that accompany it, that form the basis of an application for leave to appeal against sentence in this Court, not an obiter comment made in rejecting a misconceived preliminary application.

36 Turning to a consideration of the remarks on sentence, this Court has, for over a decade, cautioned that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined": see the cases referred to in Yang v R [2012] NSWCCA 49 at [25].

37 Here, his Honour summarised the psychological report at length. No aspect of the contents of the psychological report was rejected, or even called into question. His Honour concluded the discussion of that document in the remarks on sentence by making a positive finding as to the prospects of rehabilitation that was very much founded on the evidence about the successful treatment of the applicant.

38 Senior counsel for the applicant has not pointed to any salient feature of the report to which explicit reference was not made in the remarks on sentence.

39 In those circumstances, I do not consider that Ground One has been established.

Ground Two

"His Honour the learned sentencing judge did not have the benefit of a pre-sentence report. The absence of such a report, which was not attributable to the Applicant, left his Honour without any assistance in considering a selection of non-custodial sentencing options including a deferral of sentence as provided for in section 11 of the Crimes (Sentencing Procedure) Act 1999."

Background and Submissions

40 The background of this ground is as follows. No pre-sentence report was prepared or tendered in the proceedings on sentence. As I have noted, the applicant was represented before his Honour. No application for an adjournment was sought in order to permit the preparation of a pre-sentence report. Nor was the absence of such a report referred to at all by the representative of the applicant. He did not make the mistake of seeking a sentencing disposition of which the consideration of a report was a necessary precondition. Instead, his submissions focussed on seeking a suspended sentence. In discussions during the proceedings on sentence, his Honour expressed difficulty in accepting that such a disposition could appropriately reflect the objective seriousness of the offence.

41 In his submissions in this Court, senior counsel for the applicant explained that, at an earlier callover of the matter before a different judge, the applicant appeared unrepresented because his then solicitor did not appear. After discussions, a pre-sentence report was not ordered and the matter was listed for sentence. This history was given from the Bar table, but counsel for the respondent did not dispute it.

42 Senior counsel for the applicant submitted that the absence of such a report meant that there was no corroboration of the positive steps taken by the applicant. Furthermore, his Honour was precluded from considering a number of alternatives to full-time imprisonment, including, it was said, deferral of the sentence pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999.

43 Counsel for the respondent submitted that the rejection of the submission about a suspended sentence and the ultimate disposition of the matter demonstrated that his Honour regarded any sentence other than full-time imprisonment as inappropriate. Indeed, his Honour said precisely that towards the end of the remarks on sentence. Therefore a description of options available in a pre-sentence report would have been otiose. Furthermore, far from requiring corroboration, the contents of the psychological report were accepted without demurrer, and incorporated in the remarks on sentence.

Decision

44 It would have been open to the representative of the applicant to seek to adjourn the matter, whether part-heard or not, in order to obtain a pre-sentence report, if he thought that such a course was in the interests of the applicant. No such application was made.

45 The representative for the applicant did not proceed on a misunderstanding to the effect that a pre-sentence report would not be required for some sentencing outcome that he was seeking.

46 The ground does not allege incompetence on the part of the representative of the applicant at first instance, and there were no submissions to that effect.

47 In any event, his Honour made it clear in the remarks on sentence that his Honour was of the opinion that alternatives to full-time custody were incapable of reflecting appropriately the objective seriousness of the offence.

48 In all of the circumstances, I would not uphold Ground Two.

Ground Three

"His Honour should not have acceded to the request to have the matters on a Form 1 taken into account. The charge of having safe breaking instruments in possession and the count regarding damaging property were really part of the break enter and steal offence and to have regard to them was in reality double dipping and improperly increasing the criminality of the substantive offence."

Background and Submissions

49 The background is as follows. In accordance with usual procedure, his Honour enquired of the representative of the applicant whether the applicant admitted his guilt with regard to the two matters on the Form 1, and wished to have them taken into account in sentencing for the primary offence. The representative of the applicant replied in the affirmative. As it happened, the document that had been handed up had not been signed by the applicant, and that was done in court.

50 Senior counsel for the applicant submitted in this Court that the two Form 1 offences should have been rejected by his Honour. It was submitted that "to have regard to the offences on the Form 1 unfairly inflated the criminality of the offence for which the Applicant was being sentenced."

51 Senior counsel submitted that the result in this case was analogous to dealing with an offender for an offence of supplying a prohibited drug founded on deemed supply, and also for an offence of possessing the very same drug.

52 Counsel for the respondent submitted that, quite apart from the fact that the applicant, whilst represented, had requested his Honour to take the offences on the Form 1 into account, there was nothing erroneous or duplicitous in doing so.

Decision

53 I consider that this ground can be dealt with without a detailed consideration of the law of double jeopardy, pleas in bar, and abuse of process, although it should be said that, as long ago as in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, the High Court made it clear that one criminal act can give rise to more than one offence.

54 I do not think it appropriate for me peremptorily to refuse to consider the ground, on the basis of the willing adoption of the Form 1 procedure by the applicant whilst represented. Having said that, I would have thought that that constitutes a serious impediment to success with regard to this ground. Apart from anything else, the appearance of an offence on a Form 1 is founded on an admission of guilt of that offence by an offender. No evidence was sought to be placed before this Court in support of the proposition that the applicant should be permitted to withdraw those implicit pleas of guilty.

55 Here, the breaking and entering was effected by ripping up the roof with an industrial chisel. The offence of aggravated break enter and steal was complete once there was asportation of the bag of gems. The angle grinder was not used to achieve entry. It was possessed with the intention of gaining entry into any safe that may have been contained in the jewellery shop. The break enter and steal was complete without the possession of the angle grinder. The possession of that item encompassed extra criminality.

56 Similarly, the offenders could have attempted to escape by some means other than smashing the glass panel. For example, they could have hidden within the shop, or tried to climb back up into the ceiling cavity. Again, the act of malicious damage was above and beyond the break enter and steal.

57 It follows that I consider that the argument by analogy founded on the example of being convicted of both supply founded on deemed supply and possession of a prohibited drug is inapt. A better analogue would be a person who commits an armed robbery with a knife whilst possessing a handgun in his pocket that is not used in the armed robbery and who then escapes by driving dangerously. I see no impediment to that offender being dealt with for armed robbery, possessing a prohibited weapon, and driving in a manner dangerous.

58 I would not uphold Ground Three.

Ground Four

"His Honour erred in that insufficient regard was had to the Applicant's remorse and contrition notwithstanding that his Honour referred to these matters in his remarks on sentence."

Background and Submissions

59 Senior counsel for the applicant submitted that, when one considers the immediate confession, the early plea of guilty, and the successful commitment of the applicant to changing his life, it can be seen that his Honour gave insufficient regard to remorse and contrition, as demonstrated by the imposition of a sentence "which was going to interrupt the program he had been undertaking in an endeavour to overcome the personality disorders he had."

60 Counsel for the respondent submitted that no error had been demonstrated in this regard.

Decision

61 I repeat the comments I made with regard to Ground One with regard to its formulation, and adopt the same approach. In particular, to the extent that this ground points to the ultimate result, I will defer consideration of that aspect until I discuss Ground Five.

62 In the remarks on sentence, his Honour referred to the following aspects of the matter: the applicant adhered to a plea of guilty entered in the Local Court; the applicant made full admissions in an ERISP; the applicant sought ongoing psychological help in the month following the commission of this offence; the applicant continued to be motivated to undertake therapy as at the date of the report; the applicant had good prospects of rehabilitation founded on his motivation to receive psychological and psychiatric therapy; the plea of guilty was entered at the earliest opportunity; and, finally, the expressions of remorse of the applicant were genuine.

63 In short, it can be seen that, in the remarks on sentence, his Honour comprehensively dealt with the question of contrition and remorse. As I have said, whether the sentence ultimately imposed reflects those factors appropriately is an issue with which I shall deal shortly.

64 I would not uphold Ground Four.

Ground Five

"The sentence imposed was manifestly excessive."

Background and Submissions

65 Senior counsel for the applicant emphasised the age of the applicant, the early plea of guilty and remorse, the very significant steps taken towards rehabilitation, and the family situation of the applicant. He submitted that various alternatives to full-time custody would have been appropriate, and should be adopted by this Court.

66 Counsel for the respondent did not seek to deny the powerful aspects of the subjective case. But she noted the offender was not a young man who came before the Court with an unblemished record. Nor was the offence lacking in seriousness, featuring as it did a degree of planning and teamwork. Finally, she emphasised very well-established principles with regard to limitations on review of sentencing discretion in this Court.

Decision

67 The subjective matters relied upon by senior counsel have force. The commitment to treatment shown by the applicant over many months after the commission of the offence is especially impressive. It may be that a non-custodial disposition would have been open, and not the subject of a successful Crown appeal.

68 However, it is another thing entirely to say that the sentence actually imposed is inherently erroneous and bespeaks latent error. The well-known principles attaching to such a ground do not require repetition by me. The offence, although ineptly executed, was not lacking in seriousness. It was committed by a team working together. Clearly enough, a jewellery shop was specifically targeted. A number of tools and other pieces of equipment were obtained for the criminal enterprise.

69 Finally, the applicant had been dealt with for a number of property offences in the Children's Court, the most important of which was a very similar, if not identical, offence.

70 I do not consider that the decision to impose a full-time custodial sentence can be impugned as an inherent error. In particular, I consider that the finding of his Honour that any lesser sentence would not reflect the objective seriousness of the offence was reasonably open.

71 As for the length of the sentence itself, the head sentence is short when one has regard to the maximum penalty, and the non-parole period was reduced by one-third as a result of the finding of special circumstances.

72 In short, I am not persuaded that Ground Five has been made out.

Orders

73 I propose the following orders:

(1) Leave to appeal granted.

(2) Appeal dismissed.

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Decision last updated: 12 October 2012