Abreu v The Queen - [2007] NSWCCA 267

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: ABREU v R [2007] NSWCCA 267

FILE NUMBER(S):
2007/3254

HEARING DATE(S): 8 August 2007

JUDGMENT DATE: 4 September 2007

PARTIES:
Nelio Abreu (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Howie J Harrison J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0572

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 25 November 2005

COUNSEL:
T Game SC (Appl)
G Rowling (Crown)

SOLICITORS:
Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – Appeal against sentence – multiple offences – break and enter and larceny – significant history of offending – whether Pearce incorrectly applied – totality

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v McNaughton (2006) 66 NSWLR 566
Pearce v R (1998) 194 CLR 610
Thomson v R (2000) 49 NSWLR 383
Veen v The Queen (No 2) (1988) 164 CLR 465

DECISION:
Leave to appeal refused

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3254
McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY, 4 SEPTEMBER 2007

ABREU, Nelio v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to a number of offences of varying degrees of gravity. He was sentenced on 25 November 2006. His application for leave to appeal his sentences was not filed until 30 May 2007 and is accordingly out of time. If the court is not persuaded that the overall sentence was excessive, the applicant accepts that the application should be disposed of by this Court refusing leave to appeal.
The offences for which the applicant was sentenced were as follows:
1.Break and enter and commit a serious indictable offence on 20 August 2004 at Blacktown contrary to s 112(1) of the Crimes Act. This offence carries a maximum penalty of 14 years imprisonment.
2.The use of an offensive weapon to prevent lawful apprehension of himself contrary to s 33B(1) of the Crimes Act. This offence carries a maximum prison term of 12 years.
3.The offence of larceny on 22 November 2003 at Hurstville contrary to s 117(1) of the Crimes Act. This offence carries a maximum penalty of five years imprisonment.
4.The offence of larceny committed on 20 February 2004 at Auburn contrary to s 117(1) of the Crimes Act. This offence carries a maximum penalty of five years imprisonment.
5.The offence of larceny committed on 7 March 2004 at Auburn contrary to s 117(1) of the Crimes Act. This offence carries a maximum penalty of five years imprisonment.
6.The offence of larceny committed between 17 September 2004 and 18 September 2004 at Beverley Hills contrary to s 117(1) of the Crimes Act. This offence carries a maximum penalty of five years imprisonment.
7.A further offence of larceny between 17 September 2004 and 18 September 2004 at Beverley Hills contrary to s 117(1) of the Crimes Act. This offence carries a maximum penalty of five years imprisonment.
The sentencing judge was also required to sentence the applicant for a breach of a bond imposed by Kinchington DCJ pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. His Honour was also asked to take into account a number of matters on two Forms 1 that included further offences of larceny. The sentencing judge made findings in relation to the relevant facts which were as follows:
“The facts relating to each offence as taken from the Crown brief tendered without objection are as follows; the first offence on 20 August 2004, at around 8pm on Friday 20 August 2004, the prisoner was at Bunnings Hardware Store in Blacktown. While he was in the store he left the customer’s area and went to the employees only area. He then went up a flight of stairs to an office. He tried to get into the office but found it was locked. He tried to force the door open but was not able to open it. He then returned to the customer’s area of the store and got a tool. He then returned to the office and used a tool to remove a large vent panel in the door. The prisoner then crawled through the hole in the door and located a number of pass load nail guns in the office. He then took two of the nail guns and went back to the customer’s area. He then returned to the office, for a further two occasions, on each occasion he removed two more nail guns. He made his way to the store’s exit where he was challenged by one of the store employees. He was asked if he had anything under his top, and he was asked to return to the store. The employee tried to take hold of him but he was pushed away and the prisoner ran from the store.
The next offence, use an offensive weapon, the facts are as follows: at around 4.40 pm on 26 September 2004, the prisoner was at the Megamart Electrical Furniture Store at Alexandria. While he was in the home office section of the store, he was seen to break into a glass cabinet that contained a laptop computer. He then took the computer out of the cabinet, tried to conceal it under a framed print he was carrying. He then began to walk away from the cabinet. When the cabinet was broken into an alarm had sounded, before the prisoner broke into the cabinet the staff members had noticed he was acting suspiciously, and they were watching him. After he took the computer the staff responded to the alarm and tried to organise themselves so they could approach him about taking the computer. As he walked through the store he was followed by staff members. He was then challenged by two staff members about taking the computer. He was asked what he had done with the computer, he said he dumped it out the back of the store. He was then challenged to show where the computer was. The prisoner then pulled a Swiss army knife from one of his pockets. He opened the knife to expose an 8 centimetre long blade, he said ‘if you come near me I’m going to stab you’. One of the store managers who had also followed the prisoner, told the other employee to back off. The prisoner then left the store and went into the car park. He was then seen to drive a white Toyota from the car park. The stolen laptop was valued at $2,800 and has not been recovered.
The next offence is the one of larceny on 22 November 2003. The facts for this offence are that at about 7.20pm on Saturday 22 November 2003, the prisoner and a co offender had entered the Dan Murphy Liquor outlet store at Hurstville. They proceeded to the rare wine section of the store, which the prisoner had opened a locked glass door using keys. He took three bottles from the cabinet and concealed them down the front of his pants and under his shirt. He reached into the cabinet again and took a further five bottles and placed them on the floor next to him. He then moved to the end of the aisle with his co offender taking the five bottles. They concealed the five bottles down their pants and under their jackets. They exited the store through the cash registers without making any attempt to pay for the property. As they went past the registers a female check out operator spoke to them, but they both continued to walk through the exit. The entire offence was captured on the store’s CCTV and the prisoner was easily identified as committing the offence. The total property taken was eight bottles of rare wine, Penfolds Grange, the total value being $4,368 and no property was recovered.
The next offence, on 20 February 2004, at Auburn is at about 5.55 pm on 20 February 2004, the prisoner and another unknown male co offender had entered the Mega Mart Store at Auburn. They approached the computer section of the store. They got to the display where a number of white laptop computers were on show, with security cables attached to the back of them. The prisoners removed the security devices which secured the laptops to the display. He had taken one of the laptops from the display, knelt down and concealed the laptop down the front of his pants under his shirt. The co offender stood next to the prisoner keeping watch. The prisoner has left the store, passing the cash register without making attempt to pay for the property. The entire incident was captured on the store’s CCTV. The total value of the property stolen was $9,997.
The next offence of larceny, on 7 March 2004, occurred at the Harvey Norman Store at Auburn. On this occasion the prisoner and a co offender had proceeded into the store to the electrical entertainment section. They entered a display room for entertainment equipment including speakers and projector televisions. The room was situated with one entry and exit point doorway that leads to the main electrical department of the store. The co offender stood at the doorway keeping watch. The prisoner had climbed onto the lounge chair of the room, attempted to tamper with the LCD projector on display. He was then alerted by the co offender that people were coming into the room, they waited there while the customers came and entered it and they browsed for a short while. When the customers left the prisoner has gone to the locked glass cabinet that contained several LCD projectors. The prisoner has opened the glass cabinet with keys and took out a LCD projector, he concealed the projector under his shirt and left the room with the co offender. About 15 minutes later the prisoner and his co offender re enter the display room and spoke with a staff member. They waited till he had left and then the prisoner then again opened the locked glass cabinet with his keys and took another LCD projector, which he concealed under his shirt and left the room. They left the store passing several cash registers, making no attempt to pay. The property recovered in this case totalled $5,498.
The sixth offence of larceny between 17 September 2004 and 18 September 2004, also seventh offence on the same dates. At about 7 pm on Friday 17 September 2004 and 5.20 am on Saturday 18 September, the prisoner gained entry to a car park underneath a block of units in Beverley Hills. While he was in the car park he broke into five vehicles. He broke into a green Toyota Rav4 car and stole a mobile phone and a pair of sunglasses from the car. He also broke into a red Holden Rodeo car and he stole about $70 in currency and coins from the console.
I am also asked to deal with a call up as a result of the prisoner breaking a s 9 bond which I have referred to earlier, that Judge Kinchington imposed on 16 April 2002 and expired on 15 April 2004. That bond was breached when the prisoner failed to attend within 72 hours, or at all, after his release.
When sentencing his Honour said:
“Mr Abreu please stand, you are convicted of all offences. In relation to the breach of s 9 bond I sentence you to the fixed term of imprisonment of six months to commence on 10 October 2004 and conclude on 31 March 2005. For the two offences of larceny committed between 19 September 2004 and 18 September 2004 at Beverley Hills I sentence you to two concurrent sentences of 12 months to date from 1 April 2005 and conclude on 31 March 2006. For the three offences of larceny committed on 22 November 2003, 20 December 2003 and 7 March 2004, I sentence you to three separate but concurrent terms of imprisonment of two years to date from 1 April 2005 and conclude on 31 March 2007. For the offence of use an offensive weapon to avoid apprehension, I sentence you to a fixed term of three years to date from 1 October 2006 and conclude on 30 September 2009. For the offence of break enter and steal to commit a serious indictable offence I sentence you to a period of non parole of three years to date from 1 October 2006 and conclude on 30 September 2009. I set a further period of parole of two and a half years to date from 1 October 2009 and conclude on 31 March 2012.”
The applicant gave evidence before the sentencing judge. He was born on 11 March 1972 of Portuguese parents. He is an only child and was raised by his mother. He has a partner and two sons one aged 2 and the other 9 months. He is a carpenter by trade.
When the applicant gave evidence he accepted that he had committed a substantial number of offences and breached his s 9 bond. He said that he wanted to have all the matters dealt with together so that he could return to a normal life. He agreed that he had been given the opportunity to reform in the past by being placed on good behaviour bonds but had failed to honour the obligations imposed on him. He said, and the sentencing judge accepted, that his motive for committing the offences was to feed his heroin and cocaine addiction. He had been spending up to $700 a day to feed his habit.
During the 13 months in prison the applicant has reduced his methadone intake to nil. He has voluntarily attended drug and alcohol rehabilitation courses. At the time of sentencing the applicant had committed himself to stay off drugs in the future and live a normal life.
His Honour was satisfied that the applicant’s efforts at rehabilitation were creditable and justified a finding of special circumstances. The applicant pleaded guilty at the first opportunity and his Honour gave him the benefit of a full discount pursuant to Thomson v R (2000) 49 NSWLR 383.
Prior to committing the offences for which he was sentenced the applicant had a long history of offending going back to 1992. Many of these offences are similar to the offences for which he was being sentenced. He also has convictions for various driving offences of varying degrees of seriousness, common assault, intimidation of a police officer in the execution of his duty and various offences involving the possession of prohibited drugs.
The sentencing judge concluded that the applicant had good prospects of rehabilitation and had shown some remorse, but concluded that the offences were objectively serious and that general deterrence was important in these matters. His Honour found that generally only high value goods were stolen and that this indicated a degree of planning on the applicant’s behalf. Before imposing the sentences his Honour explained the decision which he had reached. He said:
“Applying Pearce I consider the appropriate sentence for each of the offences as follows, for the breach of the s 9 bond six months, for the offence of break and enter and commit a serious indictable offence three years, the offence of using an offensive weapon to avoid lawful apprehension three years, the offence of larceny on 20 November 2003 two years, the offence of larceny on 20 February 2004 two years, the offence of larceny on 7 March at Auburn two years. For the two offences of larceny between 17 September 2004 and 18 September 2004 Beverley Hills twelve months each.
Taking all matters into account and all the evidence before me whether I have specifically referred to it or not, together with a considerable number of similar offences on the relevant Form 1 and the objective seriousness of the offences, and the amount of criminality involved and balancing this with the significant subjective factors in the prisoner’s favour, particularly his rehabilitation prospects, I consider that the overall non-parole period should be five years with a further period of parole of two and a half years. The sentences will be concurrent and partly cumulative. They will be backdated to 1 October 2004, the date the prisoner first went into custody.”
The applicant submitted that his Honour’s approach to the sentence miscarried and that his Honour failed to correctly apply Pearce v R (1998) 194 CLR 610. It is acknowledged that the sentencing exercise upon which his Honour was engaged was difficult by reason of the multiplicity of serious offences for which the applicant was required to be sentenced.
I have recorded in para [4] the sentences which his Honour imposed. By sentencing in this manner his Honour provided a complete term of five years and six months for the offence of break and enter and commit a serious indictable offence. The sentence for that offence was comprised of a non-parole period of three years with a balance of term of two and a half years. Viewed in isolation that sentence would be excessive. I accept the submission that his Honour sentenced in this way in order to achieve an overall sentence which he believed to be appropriate.
Notwithstanding the complexity of the sentencing task required of his Honour Pearce required him to give consideration to the sentence which was appropriate for each offence. Only when the sentences had been identified was it appropriate for his Honour to address questions of totality. The applicant is correct in submitting that because of the approach which his Honour took the sentence for the offence of break and enter and commit a serious indictable offence was excessive.
Notwithstanding the error I am not persuaded that this Court should grant leave to appeal. The applicant had a significant history of offences before being sentenced for the various offences on this occasion. The sentencing judge was required to sentence the applicant for the breach of the bond which related to offences of possessing a prohibited drug, cannabis leaf and heroin. In committing the offence of break enter and steal the applicant stole hardware of considerable value from a hardware store. In the offence of using an offensive weapon to prevent his lawful apprehension the applicant used a Swiss army knife in order to escape apprehension while stealing a valuable laptop computer. In the commission of the three offences of larceny the applicant, in company with another man, stole electronic equipment and valuable vintage wine. In the commission of the remaining offences of larceny the applicant stole from cars into which he had previously forced entry.
His Honour, in my opinion correctly, described the offending as “a litany of criminal behaviour of the same type” and described the criminality of the offences as “objectively serious.”
The applicant has an extensive record of previous convictions requiring that his sentence reflect the fact that he has shown a continuing attitude of disobedience to the law. “Retribution, personal deterrence and the protection of society require that a more severe penalty than might otherwise be appropriate should be imposed: see Veen v The Queen No 2 (1988) 164 CLR 465 at 477 considered by this Court in R v McNaughton (2006) 66 NSWLR 566.
In addition his Honour was required to sentence having regard to the matters on the Form 1.
Having regard to all of these matters I am satisfied that if this Court was to intervene and resentence the ultimate result could not be less than imposed by his Honour. It seems to me arguable that by directing that the sentences he imposed for the offences of breaking, entering and stealing and of using an offensive weapon with intent to avoid lawful apprehension be served wholly concurrently, and by directing that the sentences he imposed for the offences of larceny be also served wholly concurrently, his Honour may have failed to provide appropriate punishment for each of the offences for which the applicant fell to be sentenced. When consideration is given to questions of cumulation, concurrence and totality as required by Pearce the applicant probably received a lenient sentence (see McHugh, Hayne and Callinan JJ [45]).
In my opinion leave to appeal should be refused.
HOWIE J: I agree with McClellan CJ at CL.
HARRISON J: I agree with McClellan CJ at CL.

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LAST UPDATED: 20 September 2007