Christopher John Coggan v The Queen [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Murrell CJ,Refshauge,Penfold JJ
• Judgment Date: 30 October 2013
• Docket Number: No. ACTCA 5 – 2013
• Date: 30 October 2013

Between:

Christopher John Coggan

Appellant

and

The Queen

Respondent

[2013] ACTCA 49

Judge:

Murrell CJ, Refshauge and Penfold JJ

No. ACTCA 5 – 2013

No. SCC 76 of 2012

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL — Appeal against sentence — whether non-parole period too long having regard to appellant's responsibility for children — consideration of appellant's criminal record — significance of sentences in other jurisdictions — significance of burning down of appellant's house while appellant in custody — whether sufficient discount was given for early pleas of guilty — utilitarian value of early plea of guilty — acknowledgment of benefits of early plea of guilty on criminal justice system — excessively rigorous approach may increase defended trials if no perceived benefit to offender in late plea of guilty — higher discount should have been provided — appeal upheld — appellant re-sentenced.

Holliday v The Queen [2013] ACTCA 31

R v Howard (sentencing remarks, SCC 267 of 2010, 22 November 2012)

Taylor v Bowden [2009] ACTSC 13

Crimes (Sentencing) Act 2005 (Act) ss 33(1)(o), 35(4)

For the Appellant: In person

Counsel for the Respondent: Mr J White

EX TEMPORE JUDGMENT

REASONS FOR JUDGMENT

THE COURT:

The appeal

1 Christopher John Coggan appealed against the sentence imposed on him on 21 December 2012, specifically against the non-parole period on the ground that it was too long.

2 The appellant was sentenced for seven offences, being three burglaries and three associated thefts or attempted thefts, and one offence of going equipped for theft. The burglaries were committed respectively in September 2010, July 2011 and March 2013. The appellant was linked to the first two burglaries by DNA evidence, and was caught in the act in relation to the third burglary. The going equipped offence was committed in conjunction with the last burglary. The first and second thefts involved property valued at $3,800 and $6,800 respectively. All the items sought to be taken in the third burglary were recovered.

The sentences

3 In sentencing the appellant, Burns J noted the following as factors aggravating the objective seriousness of the offences, although these were not statutory aggravating factors:

• (a) that the appellant was on conditional liberty (that is, he was subject to a suspended sentence) at the time of the first burglary;

• (b) that the items stolen in the second burglary included five firearms and ammunition, which were given to an unknown male and had not been recovered; and

• (c) that the third burglary was committed at 1.45 am on a weekday, a time at which the premises burgled were likely to be, and in fact were, occupied.

4 Burns J also noted that the appellant:

• (a) at age 41, had a lengthy and significant criminal history, including convictions for 15 other burglaries as well as numerous other offences;

• (b) entered early pleas of guilty, but in each case in the face of an overwhelming Crown case;

• (c) had a significant history of illicit drug use since early adolescence; and

• (d) had made some preliminary steps towards relevant rehabilitation, but had failed to take advantage of earlier opportunities to change his life and gave little cause for confidence in his ability to achieve rehabilitation this time.

5 The sentence imposed by Burns J was structured as follows:

• (a) a good behaviour order associated with the previously suspended three-month sentence was cancelled and the three-month sentence was imposed;

• (b) concurrent sentences of 21 months and eight months imprisonment (after plea of guilty reductions) were imposed for the first burglary and theft, fully accumulated on the three-month sentence imposed after the good behaviour order cancellation;

• (c) concurrent sentences of 27 months and 16 months were imposed for the second burglary and theft, with the burglary sentence to be accumulated so as to add 12 months onto the first burglary sentence;

• (d) concurrent sentences of 3 years, 10 months and 6 months were imposed for the last burglary, the attempted theft and the going equipped offence respectively, with the burglary sentence accumulated so as to add two years onto the sentence for the second burglary.

6 Guilty plea discounts of at least 10% were specified for each offence.

7 This gave a total sentence of five years imprisonment, which was backdated to 12 March 2012 to reflect time in presentence custody. Burns J set a non-parole period of three years starting on 12 March 2012 and therefore expiring on 11 March 2015.

Original appeal ground — responsibility for children

8 The appellant's original ground of appeal was that he was the sole parent of his two children, aged 10 and 12, and that the length of his sentence was having a detrimental effect on his son. The basic material about the appellant's children, although presumably not the claim about the effect of the sentence on the appellant's son, was in evidence before Burns J and was presumably considered in accordance with s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT), which refers to ‘the probable effect that any sentence or order under consideration would have on any of the offender's family or dependents’, although it was not mentioned explicitly in his Honour's sentencing remarks.

9 However, it seems that the information was in any case of relatively little significance, given that an addendum to the Pre-Sentence Report indicated that the appellant had been an unsatisfactory carer in various respects, that his children were the subject of Care and Protection orders for the next two years, and that they were, at the time of the appellant's sentencing, safe and happy living with their grandparents. We can find no error in his Honour's approach to this matter.

Other errors claimed by appellant

10 Invited to identify other errors in his Honour's sentencing approach, the appellant pointed to the following matters:

• (a) His Honour had failed to take account of the fact that although the appellant's criminal record until the end of the 1990s was very poor, after that he had cleaned up his act and there had been relatively little offending, and no burglaries or thefts, in the following 10 years or so. In particular, the appellant noted that during that period, he had formed a relationship, fathered two children, and in 2004 had been given custody of his children.

• (b) He had remained abstinent from heroin for the early part of the period, and apparently resumed significant illicit drug use only after being badly injured in a car accident in 2004.

• (c) The appellant mentioned other sentences that he was aware of for burglaries committed by offenders with similar backgrounds to his own, which seemed to have been lighter.

• (d) The appellant mentioned his Honour's failure to take account of the burning down of his house while he was in custody before his sentencing.

• (e) The appellant mentioned the fact that he had been given only a 10% discount for his pleas of guilty, despite them being recognised as very early (having come, in relation to the most recent burglary, in the Magistrates Court and, in the case of the earlier burglaries, as soon as proceedings were instituted in the Supreme Court by indictment).

Criminal record

11 His Honour's approach to the appellant's criminal record, and to the appellant's relatively crime-free period...