Balthazaar v The Queen
[2012] ACTCA 26
•31 May 2012
MYLES EDWARD BALTHAZAAR v THE QUEEN
[2012] ACTCA 26 (31 May 2012)
APPEAL AND NEW TRIAL – in general and right of appeal – appeal from single Judge of the Supreme Court of the ACT – sentence appeal – appeal dismissed.
APPEAL AND NEW TRIAL – sentence appeal – aggravated burglary and theft – sentence within range – no question of manifest excess.
APPEAL AND NEW TRIAL – sentence appeal – specific error – House v The King – insufficient weight given to a factor or circumstance not a specific error of the kind requiring appellate intervention.
APPEAL AND NEW TRIAL – sentence appeal – specific error – R v Hayes – common experience of burglary victims not an irrelevant consideration.
APPEAL AND NEW TRIAL – sentence appeal – specific error – concession made by Crown prosecutor – sentencing Judge’s discretion not circumscribed by Crown submissions.
CRIMINAL LAW – jurisdiction, practice and procedure – sentencing and punishment – non-conviction order – Crimes (Sentencing) Act 2005 (ACT) s 17(3) – conviction ordinarily follows finding of guilt – no requirement to expressly address factors where non-conviction order not appropriate.
Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 36
Criminal Code 2002 (ACT), ss 308, 312
Markarian v The Queen (2005) 228 CLR 357
R v Smith [1964] A Crim LR 70
R v Osenkowski (1982) 30 SASR 212
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Popovski [2009] ACTSC 131
R v Lock (Unreported, Supreme Court of the ACT, Higgins CJ, 15 July 2008)
House v The King (1936) 55 CLR 499
Higgs v The Queen [1999] FCA 1562
Lukatela v Apostoloff [2010] ACTSC 74
Oliver (1982) 7 A Crim R 174
Lawrence v The Queen (2007) 1 ACTLR 158
Cajina v The Queen (2009) 3 ACTLR 79
R v Abbott (2007) 170 A Crim R 306
The Queen v Eisenach [2011] ACTCA 2
Goundar v Goddard (2010) 240 FLR 176
R v Hayes [1984] 1 NSWLR 740
R v Tait (1979) 24 ALR 473
R v McCormack [2004] NSWCCA 367
GAS v The Queen (2004) 217 CLR 198
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1 of 2011
No. SCC 243 of 2010
Judges: Refshauge, Burns and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 31 May 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 1 of 2011
) No. SCC 243 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MYLES EDWARD BALTHAZAAR
Appellant
v
THE QUEEN
Respondent
Judges: Refshauge, Burns and Lander JJ
Date: 3 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed
IN THE SUPREME COURT OF THE ) No. ACTCA 1 of 2011
) No. SCC 243 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MYLES EDWARD BALTHAZAAR
Appellant
v
THE QUEEN
Respondent
Judges: Refshauge, Burns and Lander JJ
Date: 31 May 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
On 11 March 2010, Myles Edward Balthazaar committed two offences of aggravated burglary on residences in Canberra, he then being in the company of two others, and thefts of goods from those properties.
He pleaded guilty to all charges and, on 15 December 2010, was convicted and sentenced for them by Teague AJ, who made a Good Behaviour Order for six months in respect of each of the aggravated burglaries and a Good Behaviour Order for one month in respect of each of the thefts, with each order to run concurrently.
On 4 January 2011, Mr Balthazaar appealed against the sentences imposed, seeking, instead, a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
On 3 November 2011, the Court dismissed the appeal and indicated that it would deliver its reasons in due course. These are those reasons.
The facts
Mr Balthazaar presented himself to police on 22 March 2010 and participated in a recorded interview. He stated that on 11 March 2010 at Woden, he had met a friend, whom he declined to name, and the two picked up another friend, whom he also declined to name, also at Woden in a green Honda sedan. He did, however, give police a description of these two friends, from which police were able to identify them.
Mr Balthazaar said that the three drove around looking at houses. They found a house in Curtin and parked the car. They walked to the house and knocked on the doors and windows to see if anyone was at home. Mr Balthazaar then kicked in the back door and went inside. He stole a bottle of wine, an old mobile phone and a digital camera from the house. He said he later threw the mobile phone away.
The three then left the house and drove away in the green sedan. Mr Balthazaar was asked to drive the car at some stage and the three went to a house in Hughes. They left the car and went round the back of the house where they found a room separate from the main house. Mr Balthazaar went into the room from where a Sanyo projector was taken by one of the others, but which he carried back to the car. He did not go into the main house.
The three went to the Mawson shops where they tried to find someone to buy the property; they then went to Duffy where they sold some of the stolen items.
When the three were attempting to sell the goods at Duffy, they were intercepted by police and the car was searched. Police took possession of the bottle of wine, the projector, the two cameras and some cash found on one of the co-offenders. They later seized the property sold to other persons at Duffy.
Mr Balthazaar was co-operative with police who described him as frank and honest in owning up to having committed the offences.
The agreed Statement of Facts, tendered by consent at the sentencing hearing, showed that no consent had been given to any of the three to enter either of the houses or to remove any of the property.
The items stolen in the first aggravated burglary consisted of the digital camera, mobile phone and bottle of wine as well as another camera, an iPod docking station and an iPod in a case. The items stolen in the second aggravated burglary consisted of the projector as well as a laptop computer.
The proceedings
Mr Balthazaar was charged with two counts of aggravated burglary and two counts of theft. Aggravated burglary is an offence under s 312 of the Criminal Code 2002 (ACT), attracting a maximum penalty of 2 000 penalty units (that is, a fine of
$220 000) or 20 years imprisonment or both. Theft is an offence under s 308 of the Criminal Code, attracting a maximum penalty of 1 000 penalty units (a fine of
$110 000) or imprisonment for 10 years or both.
The High Court has noted, in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]–[31], the importance of the maximum penalties set by the legislature as indicating the seriousness of the offences. By the penalties, these offences are serious offences; the offence of aggravated burglary is a particularly serious offence.
Mr Balthazaar appeared in the Magistrates Court on 25 May 2010 and, after two adjournments, entered pleas of guilty to all charges and he was committed for sentence to the Supreme Court on 29 June 2010.
The sentencing proceedings were heard on 4 November 2010 before the learned sentencing Judge. An agreed Statement of Facts was tendered by consent as was a Pre-Sentence Report. A number of documents were tendered by Mr Balthazaar’s counsel. These included four character references, documents relating to Mr Balthazaar’s tertiary education, a “Road Ready Plus” certificate, and three Statements of Attainment relating to his achievements in courses about work safety in the construction industry, work in the liquor industry and first aid. A psychological report was also tendered by his counsel.
Mr Balthazaar then gave evidence and was briefly cross-examined.
After hearing submissions from counsel, the learned sentencing Judge adjourned the proceedings to consider the sentence. It was agreed at the hearing, however, that his Honour should be supplied with further material relating to how the assistance Mr Balthazaar provided to police had resulted in the apprehension of the two co-accused. It was also suggested that his Honour should be provided with some material relating to the antecedents of the co-offenders, one of whom was a minor. They were younger than Mr Balthazaar, but only by some months. His Honour then adjourned the proceedings pending receipt of the additional material.
In the meantime, his Honour heard an appeal by one of the co-offenders from the sentence imposed on him in the Magistrates Court. This led his Honour to request further material to be put before him.
Ultimately, his Honour received additional submissions from the Crown together with the Statement of Facts and each criminal history used in the prosecution of the co-offenders. The submission stated that neither co-offender had provided assistance to the police. The submission further added that Mr Balthazaar had provided “significant assistance to police.” Initially police had considered that they only had sufficient evidence to charge the accused with receiving offences, but the interview with police provided them with sufficient evidence to charge Mr Balthazaar with the offences with which he was charged and the other two co-offenders with the same charges.
His Honour then proceeded to sentence Mr Balthazaar as indicated above
(at [2]) on 15 December 2010.
Subjective features
The evidence from the Pre-Sentence Report, the oral testimony of Mr Balthazaar and the exhibits enabled the learned Sentencing Judge to make the following findings about Mr Balthazaar. None of these findings were challenged on the appeal.
His Honour said:
You are now 19 years of age having been born in July 1991. You were raised in an exceptionally supportive family. Your upbringing was unexceptional. You have had little trouble gaining and keeping a job. There was occasion for some instability arising from your mother developing a major health problem last year. That was a stressful time for the whole family. More detail on the impact of [sic] you of that problem is contained in the report of Mr Barry and in some of the other letters tendered before me. Your study path has been good with some hiccups linked to a period of uncertainty as the career path you should choose. You have been accepted for a course in a Queensland university to start in 2011.
I have studied the contents of the pre-sentence report placed before me. I have had regard to the contents of the many letters and reports placed before me on your sentence hearing. Authors included your parents, some close family friends and two former teachers. In your own oral testimony you spoke of several matters of relevance. One was as how you came to join in the burglaries and you had spoken on that subject to the author of the pre-sentence report.
What you said to me in short was that you had spent time with [your co-offenders] ... and that they had spoken of the ease and benefits of day time burglaries and you told them that you wanted to take part next time. The second was as to how you went with your mother to visit the home of one of your victims to apologise. The making of such a visit was, not unexpectedly, initially viewed with some scepticism by the victim. I found the making of that visit highly commendable. The third was as to the support of your parents and as to your plans for the future. Again I found what you said in that regard highly commendable.
I accept in your favour that you are remorseful to a substantial degree given the impressive evidence of that effect from a number of sources. You have many mitigating factors operating in your favour. You are young, you have a supportive family and you are remorseful. I am satisfied that specific deterrence is almost not a factor in your sentencing. I must and do allow in your favour for your plea of guilty. As I routinely say but do mean it has saved your victims the ordeal of giving evidence and has other benefits.
In the appeal, however, Mr J Pappas, who appeared for Mr Balthazaar at sentence and on the appeal, identified the following additional matters that were proved by the evidence:
a. Mr Balthazaar had completed Year 12 of his secondary education;
b. He had been accepted to study for a Sports and Exercise Science degree at Southern Cross University, Lismore, New South Wales;
c. He was in employment;
d. He had a very supportive family;
e. He pleaded guilty at the earliest opportunity and, in addition, displayed what the learned sentencing Judge referred to as a substantial degree of remorse;
f. He was distinguishable to a material degree from his co-accused, both of whom failed to cooperate with police and both of whom had extensive criminal records;
g. He had attempted to some extent to withdraw from the criminal enterprise on the day of offending; and
h. The pre-sentence report before the sentencing Judge was uniformly positive.
The submissions on sentencing
Mr Pappas submitted that a conviction should not be recorded and that a non-conviction order should be imposed instead.
His submission was that, at the end of secondary school, Mr Balthazaar was described by his school principal as “an honest, composed and sensible young man” who, three months later was involved in what Mr Pappas called “a day of madness”. After the first aggravated burglary, he sought to withdraw from the criminal behaviour and at the end of the enterprise he went home, “appearing white and unwell”. After discussion with his step-brother, a police officer, he went to police with the confession referred to above (at [5]–[9]). He then went to apologise to the victim of one of the burglaries when, unsurprisingly, the door was shut in his face, but he persisted and spent fifteen minutes expressing his regret to the occupant of the house.
Mr Pappas referred to the psychological report which concluded that the co-offenders, each of whom had a significant criminal history, “had a significant influence on ... [Mr Balthazaar’s criminal] behaviour.” Thus, he was, Mr Pappas submitted, rather naive or immature. The behaviour was aberrant and resiled from quickly. He showed extraordinary remorse and insight in his confession and in his apology to one of the victims.
Mr Pappas submitted that, as he was only just 18 at the time of the offences, he could be subject to the principles applying to young offenders, relying on a case that is often cited with approval, namely, R v Smith [1964] Crim LR 70, where it was said that “[i]n the case of a young offender, there can rarely be any conflict between his interests and the public’s.”
He also referred to what King CJ said in R v Osenkowski (1982) 30 SASR
212 at 212–13:
There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
Ms S McMurray, who appeared for the prosecution, submitted that the offences were very serious, though “at the lower range in that they are not the most serious of aggravated burglaries”. She submitted that the second was not necessarily aggravated by the commission of the first because of the evidence that Mr Balthazaar had “backed off from the second offence”.
She submitted that he was entitled to the benefit of the early plea and the assistance to the police, describing the entitlement as “a maximum benefit for that early plea of guilty.”
She further acknowledged the subjective features of Mr Balthazaar; that he was only just an adult and that he was taking responsibility for his own actions.
Nevertheless, she pointed to the need for general deterrence in the case of such serious offences, though there was not a strong case for needing specific deterrence.
In the additional submissions, Ms McMurray drew the Court’s attention to s 36 of the Crimes (Sentencing) Act, which permits a court to impose a lesser sentence for assistance to the authorities. She also made submissions on parity, referring to cases such as Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295.
As to a non-conviction order, she referred to the above passage from R v Osenkowski and also his Honour’s further comment (at 213) that the role of Crown appeals against sentence is “to occasionally correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”
She then referred to a sentence by Rares J in R v Popovski [2009] ACTSC 131, where his Honour imposed a non-conviction order for an offence involving possession of 6.010 grams of cocaine. She further noted that in R v Lock (Unreported, Supreme Court of the ACT, Higgins CJ, 15 July 2008), Higgins CJ made a non-conviction order in respect of an offence of aggravated burglary and theft.
Ms McMurray did not submit that a non-conviction order should be made but did submit that, should such an order be made, it would not result in the public conscience being shocked as referred to by King CJ.
The co-offenders
The material submitted in respect of the two co-offenders was as follows:
Sulaiman Rustam
Apart from the instant offences, Mr Rustam’s record showed five offences in four court appearances and a breach of a Good Behaviour Order on which no action was taken. The record showed a conviction for an act of indecency in company and, otherwise, minor matters.On each of the aggravated burglaries he committed with Mr Balthazaar, Mr Rustam was convicted and sentenced to 12 months imprisonment to be served by six months of periodic detention and the balance suspended upon him undertaking to comply with a Good Behaviour Order including a probation condition for two years. As to the thefts, he was convicted and a Good Behaviour Order made for two years.
JE
Apart from the instant offences, JE’s record showed 14 offences in five court appearances, including convictions for three other aggravated burglaries, some traffic offences and some dishonesty offences.On each of the presently relevant aggravated burglaries, JE was sentenced to 12 months imprisonment, three months of the second being cumulative on the first and on each of the thefts, four months imprisonment wholly concurrent with the other sentences.
The sentencing remarks
The learned sentencing Judge set out in his sentencing remarks a summary of the facts and then the antecedents of Mr Balthazaar as extracted above (at [23]). His Honour then adverted to the submission that he should make a non-conviction order, holding:
Mr Pappas, on your behalf, urged me not to record convictions. I am not prepared to take that course. I accept, as I have said, that you have many mitigating factors operating in your favour. On the other hand your offending behaviour was very serious. That is not only because the offences carry substantial maximum terms the fact is that you chose to invade two homes with two companions. You took the lead in kicking in a door to the first home. You took from one of the homes items likely to have been [of] considerable emotional value but only likely to yield a little money for you to spend. And while you cooperated with the police you set limits upon that cooperation.
His Honour then proceeded to enter convictions and to impose the sentences referred to above (at [2]).
The appeal
The notice of appeal sought to have the convictions set aside, but only so as to have them replaced with findings of guilt and non-conviction orders under s 17 of the Crimes (Sentencing) Act.
The grounds of the appeal were:
i. His Honour erred in convicting the appellant in each instance in that he either failed to take into account adequately or at all:
a. The appellant’s young age
b. The appellant’s lack of antecedents
c. The appellant’s early pleas of guilty
d. The appellant’s significant contrition and remorse
e. The appellant’s prospects for reform and rehabilitation
f. The significant disparity between the appellant and his co-accused
g. The appellant’s otherwise good character
h. The likely future effect upon the appellant of convictions for dishonesty
i. The expert psychological opinion evidence concerning the appellant
j. The relevantly unchallenged evidence that the appellant was a low risk of re-offending
k. The Crown’s concessions in relation to the appellant
ii. His Honour erred in convicting the appellant in each instance in that he failed to take into account the matters mandated by s 17(3) of the Crimes (Sentencing) Act 2005.
iii. His Honour erred in convicting the appellant in each instance in that he either:
a. Concluded that one, some or all of the offences was or were too serious to allow the entry of a non-conviction order; or
b. Failed to appreciate he had the power in each instance to impose a good behaviour order upon the appellant without first convicting him.
iv. His Honour erred in convicting the appellant in each instance in that he gave too much weight to the need for general deterrence.
The contentions on appeal
Mr Pappas noted that Mr Balthazaar had complied with the Good Behaviour Orders which had now expired. The only issue was that the convictions remained on his record. He submitted that the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act would be adequately met by the Good Behaviour Orders made without proceeding with the convictions.
Mr Pappas submitted that the learned Sentencing Judge had fallen into error of the kind referred to in House v The King (1936) 54 CLR 499, by giving undue weight to the seriousness of the offences without taking into account adequately or at all that the two burglaries occurred within a small compass of time on the one day and that Mr Balthazaar had resiled to some degree from the second burglary.
He further submitted that his Honour took into account as an irrelevant consideration the feature his Honour regarded as aggravating, namely that the pink cameras and the pink iPod were “likely to have been [of] considerable emotional value but only likely to yield a little money for you to spend.”
He submitted also that his Honour erred in discounting the assistance Mr Balthazaar provided to the authorities because he would not name his accomplices. He submitted that his Honour, while acknowledging the “unique” action of Mr Balthazaar in going to one of the victim’s houses to apologise, failed properly to balance that with the “limits upon [his] co-operation” with police.
He submitted that it was significant that the prosecution did not oppose the imposition of a non-conviction order, acknowledged that Mr Balthazaar should be dealt with differently from the co-offenders and conceded that the imposition of such an order would not shock the public’s confidence.
These matters, if not errors in themselves, were, he submitted, such as to render the convictions unreasonable or plainly unjust in the sense discussed in House v The King.
Mr Pappas accepted, however, that the sentence imposed by his Honour was within a proper sentencing range. That is to say, it was not manifestly excessive or too severe.
He further submitted, however, that there was a need to recognise and encourage behaviour such as confessions and that the recording of a conviction would not achieve that.
In his submissions, Mr A Doig, who appeared for the Respondent, analysed the matters in ground (i) in the Notice of Appeal (above at [42]), identifying where in the evidence these matters were before his Honour. He also identified passages in the sentencing remarks where his Honour referred to the matters as set out in the tendered reports and other exhibits. It was clear that his Honour was aware of each of these matters.
Mr Doig also pointed out in his submissions, quite correctly, that, contrary to ground (ii) in the Notice of Appeal (above at [42]), it was not an error for his Honour not to have expressly addressed the matters set out in s 17(3) of the Crimes (Sentencing) Act, where his Honour considered that a non-conviction order was not appropriate.
Mr Doig further pointed out, also correctly, that the ordinary consequence of a finding of guilt is the recording of a conviction. This was expressly noted in Higgs v The Queen [1999] FCA 1562 per Wilcox, Einfeld and Kenny JJ at [3] and Lukatela v Apostoloff [2010] ACTSC 74 per Mansfield J at [29].
In his submissions, Mr Doig traced the history of s 17 of the Crimes (Sentencing) Act and its predecessors. It is not necessary to consider these submissions.
Consideration
As the High Court has required in Markarian v The Queen, a sentencing court must start with the legislated maximum penalties which determine the seriousness of the offence. See also Oliver (1982) 7 A Crim R 174 at 177 and Lawrence v The Queen (2007) 1 ACTLR 158 at 161; [9]–[10].
The legislature, by setting a very large fine and twenty years imprisonment as the maximum penalty for aggravated burglary, has signalled that it is regarded as a very serious offence. Ordinarily, offenders who commit an aggravated burglary will be sentenced to imprisonment, whether served as full-time custody or by periodic detention, or suspended with a Good Behaviour Order.
Mr Pappas, an experienced counsel in criminal matters, acknowledged this when he described as “brave” his submission to the learned sentencing Judge that a non-conviction order should be made.
It is of course necessary, as this Court pointed out in Cajina v The Queen (2009) 3 ACTLR 79 at 85; [25], to ensure that the actual sentence imposed is nevertheless proportionate to the criminality involved in the actual offences. See also Markarian v The Queen at 389–90; [83].
This case did have particular circumstances pointing to leniency, in the volunteered confession by Mr Balthazaar, his active efforts to show remorse and apologise to one of the victims, his age and his positive good character. The learned sentencing Judge reflected this in a lenient sentence which did not impose a term of imprisonment but only very short Good Behaviour Orders, all of which were to be served concurrently.
To challenge such a sentence, it is necessary for the appellant to identify error in the sentence actually imposed. That error may be specific error such as by the learned sentencing Judge acting on a wrong principle or other specific error of the kind identified in House v The King. Alternatively, without specific error, it may be that the sentence is manifestly excessive.
It is not enough on appeal that the members of the appeal court would have imposed a different sentence. As Maxwell P, with whom Eames JA and Habersberger AJA agreed, pointed out in R v Abbott (2007) 170 A Crim R 306 at 309; [14]:
[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.
The Notice of Appeal did not assert that the sentence was manifestly excessive. It was not a ground of appeal.
Mr Pappas, in his oral submissions to this Court, acknowledged that this was not such a ground of the appeal by conceding that the sentence imposed was “within range”; that is, that it was not manifestly excessive.
As to the specific errors Mr Pappas identified, they were, in reality, particulars addressed to the question (were it to be maintained) of whether the sentence was manifestly excessive: see The Queen v Eisenach [2011] ACTCA 2 at [43]. To say that insufficient weight has been given to a factor or circumstance is not to say that a specific error of the kind required by the principles for appellate intervention established in House v The King has been committed.
The learned sentencing Judge identified, or clearly had taken into account, all the factors referred to by Mr Pappas and clearly considered, carefully and thoughtfully, the sentence to be imposed. In the absence of a challenge on the basis of manifest excess (which we consider, and Mr Pappas acknowledged, could not be justified), none of the grounds disclose error.
Mr Balthazaar did come before the Court as a young man of not merely unblemished character but, in the sense described in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]–[47], of positive good character. He had, of his own volition, attended at the police station and admitted to the offences. He had apologised to one of the victims and had shown that he was unlikely to re-offend.
Nevertheless, the crimes were serious. Mr Balthazaar was the leader in the first aggravated burglary, kicking in the door. He took goods from the premises. He said that he told his friends he did not want “to do the second – I didn’t want to go inside to Hughes”. Nevertheless, he did enter the separate room at the back and he did carry the projector to the car, though he then just waited in the car. He then drove the car and, in his own words, thereafter “was with [the co-offenders] ... and I stayed with them.” This included the period when they sought a buyer for the stolen goods and, in fact, they sold them, including the contact with police at this time, when he took no opportunity to admit what had happened.
While Mr Balthazaar’s confession was very commendable and clearly motivated the learned sentencing Judge to impose the lenient sentence he did, it was somewhat constrained as he neither named his co-offenders nor offered to give evidence against them. Understandable as this may be, it was accurately so described by his Honour and proper to be taken into account in the sentence.
Mr Pappas did submit that his Honour erred in finding that the stolen items, such as the cameras, laptop and iPod, were “likely to have been [of] considerable emotional value.” He submitted there was no evidence that they had such value. His Honour, however, was simply expressing the reality that these items are used for storage of electronic material often of a personal nature and the loss of such material can cause distress. In R v Hayes [1984] 1 NSWLR 740, Street CJ, with whom Lee and Hunt JJ agreed, reflected on the common experience of the victims of burglaries which is the reason it is regarded as such a serious offence in itself. His Honour said (at 742):
The trauma of re-entering a home that has been ransacked is in itself no light matter. This can cause a continuing uneasiness and disquiet at the knowledge that an unknown person has invaded the sanctity of the home. Added to this is the emotional distress at the loss of property, including treasured items that frequently have a sentimental value far in excess of their intrinsic worth.
There is nothing in what the learned sentencing Judge said which suggests that he was identifying a particular factor of aggravation to this offence beyond the seriousness with which such offences are required to be regarded by the courts. His Honour was merely stating the facts in terms which the courts have long used to describe items stolen in burglaries.
Finally, Mr Pappas relied on the concession made by the Crown prosecutor that the imposition of a non-conviction order would not be manifestly inadequate. This was, of course, a perfectly proper discharge of the prosecutor’s duty to the Court as identified in R v Tait (1979) 24 ALR 473 at 477. It is, however, not the role of a prosecutor to indicate a particular sentence.
It is the court’s responsibility to find and apply the law and to determine the sentence. The court is not bound to impose a sentence no more severe than that for which a prosecutor contends. The sentence to be imposed is not to be circumscribed by the conduct of counsel, including any views of the prosecutor: R v McCormack [2004] NSWCCA 367 at [16]; GAS v The Queen (2004) 217 CLR 198 at 211; [30]–[31]. Of course, as his Honour said, reasons for the sentence must be given.
No error has been shown in the sentence imposed and, accordingly, the court dismissed the appeal.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 31 May 2012
Counsel for the Appellant: Mr J Pappas
Solicitor for the Appellant: Ben Aulich & Associates
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 3 November 2011
Date of judgment: 31 May 2012
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