Bernes, Dwayne Andrew v The Queen

[1998] TASSC 27

27/1998

PARTIES:  BERNES, Dwayne Andrew
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 124/1997
DELIVERED:  2 April 1998
HEARING DATE/S:  5 March 1998
JUDGMENT OF:  Cox CJ, Crawford and Slicer JJ

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Parity - Generally - Sentence manifestly excessive in all the circumstances.      

Midson v R 26/1998, applied.
Aust Dig Criminal Law [835]

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Appeal by convicted persons - Application to reduce sentence - When granted - Particular offences - Property offences - Burglary and stealing - Substantial antecedents - Whether two years nine months' imprisonment is manifestly excessive.

Aust Dig Criminal Law [1012]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D J Bugg QC, R Mainwaring
Solicitors:
             Appellant:  In person
             Respondent:  Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  27/1998
Number of pages:  8

Serial No 27/1998
File No CCA 124/1997

DWAYNE ANDREW BERNES v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
CRAWFORD J
SLICER J
2 April 1998

Orders of the Court

1. Appeal allowed.

1. Sentence quashed.

1. Substitute a sentence of imprisonment for two years three months from 9 December 1997.

COX CJ

The appellant pleaded guilty to one count of burgling a newsagency and one count of stealing therefrom cash and goods to an approximate value of $20,000.  He was sentenced to imprisonment for two years nine months.

The appellant was one of three persons involved in the crimes and admitted to having played the part of driver to transport offenders and the stolen property consisting of (inter alia) large quantities of cigarettes and magazines.  Apart from the value of the property stolen, it appears to have been a fairly typical burglary of commercial premises.  It was not aggravated by the use of explosives or safe-breaking equipment.  What makes it a clear case for condign punishment is the previous criminal record of the offender.  I repeat what I said in the case of Midson v R 26/1998 which is published contemporaneously herewith in respect of the approach of the courts to persistent offenders.  In fact, the learned sentencing judge dealt with both matters on the same day and prefaced his comments on passing sentence in respect of this appellant by saying, "You are the second habitual offender to appear in my court for sentence today".

The appellant was 22 years of age and numerous offences of dishonesty were proved against him in the Children's Court resulting in supervision orders and, eventually, sentences of imprisonment, some actual, some suspended and some of the latter activated because of failure to be of good behaviour.  In the Supreme Court in 1992 just before his 17th birthday, he was convicted of aggravated burglary and sentenced to eighteen months' imprisonment, the execution of one half of which was suspended.  This, too, was activated for breach.  In 1994 he was convicted of false pretences, uttering and possessing stolen property and a string of burglaries and thefts for which he received several short sentences.  In March 1995 he was released on parole for seven months, but six weeks later was imprisoned for a further twelve months for burglary, stealing, forgery and uttering.  Yet again released on parole for six months one year later, he stayed out of trouble until December 1996 when he committed further burglaries and thefts and was again imprisoned for twelve months in March 1997.  The present offence occurred a few weeks before the imposition of that sentence and when he was sentenced to the tenn he now appeals from, he had been out of prison only a few weeks.  None of the time he has been in prison until then was in respect of the present matter.

Although for the reasons I have given in Midson (supra) I do not regard a sentence of imprisonment in excess of two years for a single instance of a criminal incident of this nature excessive merely because it falls outside a so-called range of sentences for like crimes, I am of the view that a sentence of two years nine months is manifestly excessive in all the circumstances of this case.  The appellant's plea of guilty would seem likely to have derived from feelings of resignation rather than of any genuine remorse, as he was found shortly after the burglary with a large quantity of magazines and cigarettes in his premises; but even so it deserves some recognition by way of discount (R v Radloff (1996) 6 Tas R 99 at I 10). Burglaries, whether of residences or of commercial premises, are prevalent and where large sums of money or goods of considerable value are taken by professional predators, sentences at the top of or even above the apparent range hitherto demonstrated by the records are fully justified in order to deter the offenders and protect the community, but with respect I think this particular sentence was manifestly too high in the circumstances.

I would allow the appeal and substitute a sentence of two years three months' imprisonment.

CRAWFORD J

I respectfully agree with the reasons given by the Chief Justice and with his conclusion that the appeal should be upheld upon the ground of manifest excessiveness in the sentence.  However I would substitute a sentence of two years' imprisonment for the one imposed.

The appellant was aged 21 years when he committed six burglaries and six thefts, which included the burglary and theft which now concerns this Court, in the space of about two months.  He committed two burglaries and two thefts on 24 December 1996, the burglary and theft which concerns this Court on or about 12 February 1997, two burglaries and two thefts on 17 February 1997 and a burglary and theft on 18 February 1997.  That run of crime was apparently ended with his arrest on 18 February 1997 and on 25 March 1997 he was dealt with in a court of petty sessions for all of those crimes, apart from the burglary and theft which now concerns this Court, and was sentenced to twelve months' imprisonment backdated to commence on 18 February 1997.  He served that sentence and was released from prison about three weeks before he appeared before Wright J for the remaining burglary and theft and was sentenced to further imprisonment for two years nine months.  It can be seen therefore that the appellant was sentenced to a total of three years nine months' imprisonment, none of it to be served concurrently, for the six burglaries and six thefts committed by him in the space of about two months.

Having regard to the circumstances of the appellant's crimes, his age and principles of totality, a sentence of two years' imprisonment would be adequate and appropriate for the burglary and stealing which are the subject of this appeal, the sentence to commence on 9 December 1997, being the date upon which his present custody commenced.

SLICER J

The appellant was sentenced to a term of imprisonment for a period of two years and nine months following conviction of the crimes of burglary and stealing.  The grounds of appeal claim error in that:

"1The sentence of two years and nine months imprisonment imposed by the learned Mr Justice Wright was manifestly excessive.

2The said sentence failed to provide any adequate discount for the plea of guilty entered by the applicant.

3The sentence failed to take account or take account adequately of the youth of the applicant."

The crimes, committed in company, involved the entry into a newsagency and the theft of property valued at over $20,000, of which some $1,500 in value was recovered from the home of the appellant.  The appellant, when interviewed, after initial denial, admitted responsibility for the crimes.  He told police that the property had been divided between himself and his unnamed accomplices.  When charged, he initially entered a plea of not guilty, but subsequently changed that to one of guilty.  Given that some of the stolen property had been recovered from his premises, and his confession, minimal regard was required to be had to his plea.  He was not entitled to any additional benefit by reason of co-operation.  There is no basis warranting the upholding of the second ground of the application for leave to appeal.  The appellant was aged 21 at the time of the commission of the crimes.  Whilst young, he ought not be regarded as a youthful offender.  His history shows that he was first detected for antisocial behaviour in 1984 at the age of 9.  Since then, he has proceeded on an inexorable course of criminal behaviour and amassing the following unenviable record:

burglary, 36;
stealing, 50;
forgery and uttering, etc, 26;
trespass, 4;
damage to property, 6;
receiving, 2.

In addition, he possesses many other convictions for antisocial conduct.  All forms of measures have been adopted by the courts, without avail.  He has been convicted of failing to carry out work orders, breaches of suspended sentences and driving whilst disqualified.  Whatever the original causes and the factors which influenced a continuation of criminal conduct, it is obvious that by the age of 20, there is little, if any, hope that the offender is able to make good past defects.  Those principles commonly applicable to youthful offenders have no relevance to this appellant.  Ground 3 is rejected.

There remains the question of whether the sentence is manifestly excessive.  Taken in isolation, it does not appear to be unwarranted.  In the text, Sentencing - State and Federal Law in Victoria 1st ed, the learned authors Fox and Freiberg state at 11.403:

"In the absence of statutory directions to the contrary, there is no principle of sentencing that demands that increasingly more severe sanctions be administered to persons who persist in their criminality.  A person who serves a sentence for a crime is regarded as having paid the penalty in full and as one who ought not suffer again for the offence by having a sentence for a later crime increased for the earlier offending"

and provide as authority O'Donnell v Perkins [1908] VLR 537. The proposition, as stated, might be unexceptional but its implications should not be simplistically extended. The character, response to previous sanction and general attitude towards compliance with the law of a recidivist preclude lenient sentences, since those factors act as predicators of future conduct and reaction. When an offender obtains the reputation of a "professional criminal":

"... a court can do little more than treat a person of this nature as a public nuisance and remove him from circulation so that he ceases to prey upon his fellow citizens as long as is reasonably possible." Hindle (Victorian Supreme Court, unreported, 3/4/81), referred to by Fox and Freiberg (supra) 11.403 note 159.

The proposition must also be considered in the context of the approach required by the High Court in Veen v R [No 2] (1987 - 1988) 164 CLR 465. In their joint judgment, Mason CJ, Brennan, Dawson and Toohey JJ stated at 473:

"It is one thing to say that the principle of proportionality precludes the
imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence.  The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

although they counselled at 474:

"It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society's protection in determining the sentence calls for a judgment of experience and discernment."

The New South Wales Law Reform Commission in its report on sentencing (Report 79 December 1996) regarded at 332:

"Incapacitation - which involves preventing a person from committing further offences during the period of incarceration, with community protection as the justification"

as a rationale of sentencing.

According to a publication of the Australian Institute of Criminology (Trends and Issues No 20 Prison Sentences in Australia September 1989) approximately two-thirds of sentenced offenders received into prison have already served a sentence in prison.  The author of the report states:

"It appears that roughly two thirds of sentenced offenders received into prison have already served a sentence in prison.  The estimates presented in Table 5 show that, on average, offenders who have previously served a term in prison under sentence will serve only two weeks longer than those who have not previously served a sentence in prison.

This average obscures some differences between offenders, based on their most serious offence.  Around half of those given sentences for homicide or for drug possession offences are first-termers.  Ninety per cent of those sent to prison for 'other good order' offences and almost eighty per cent of those sent to prison for 'justice/security offences' (mainly breaches of court orders), on the other hand, are serving a repeat term.

In most categories of offending, those serving a repeat prison term will serve more than first-termers.

...

Table 5 Sentenced prisoners received during 1987-88, by whether previously imprisoned under sentence; estimated percentages and average time served, by most serious offence - Australia

Percentages                Average Time Served (Months)

_____________           _________________________

Prior Imprisonment?     Prior Imprisonment?

_____________           _________________________

Offence	Yes	No	Yes	No
Murder	.2	.2	133.6	145.6
Other Homicide	.5	1.6	24.3	14.1
Other Violence	10.8	13.1	7.5	9.4
Robbery/Extortion	2.5	2.7	27.2	17.2
Property Offences	31.7	31.0	6.3	5.3
Justice/Security	12.3	5.7	4.2	2.5
Other Good Order	8.5	2.3	.9	2.5
Possession Drugs	1.9	3.6	3.4	4.0
Trafficking Drugs	3.4	7.7	9.2	7.2
Motoring Offences	27.2	29.9	1.8	1.3
All offences	100.0	100.0	5.3	5.1"

There does seem to be in Australia a tendency to increase the sentences of recidivists and major offenders accompanied by less frequent use of short sentences.  That tendency is reflected in the requirement of the Criminal Code 1913 (WA), s19A (introduced in 1992) that in the case of sentences of imprisonment of less than six months, the court must give reasons why no other form of punishment or disposition is appropriate. In conclusions based on their study of the effects of legislative change in Victoria, Freiberg and Ross in Sentencing 1st ed (1995) stated as a belief at 135 that:

"The prison is no longer conceived of as being remotely rehabilitative, but does what many other sanctions cannot do:  control, contain and incapacitate (Zimring and Hawkins, 1991: 88).  As society turns from rehabilitative and deterrent notions to punitive and preventive ones, prison sentences may become fewer, but considerably longer.  Notions of selective and collective incapacitation replace the moral and ethical grounds for punishment.  'This strategy aims to increase prison sentences with the object of maximising the amount of crime prevented in the community by removing offenders from society' (Zimring and Hawkins, 1991: 88)."

The crimes for which the appellant was convicted must be seen in the light of a prolonged course of criminal conduct.  Reference to a range of penalties can only be made provided that the additional element of "incapacitation" is also taken into consideration.

Absent one matter, it could not be said that the sentence of two years and nine months' imprisonment is manifestly excessive.  Nevertheless, the sentence is outside the range as discussed by this Court in Harland-White v R 1/1998.  Whilst there is a need for the court to indicate that repeat offenders should expect substantially longer terms of imprisonment for the continued protection of society (Veen [No 2]), it should conduct any review of existing penalties in a manner designed to avoid the engendering of grievance and to maintain consistency.  It is appropriate for this Court to review current levels of sentences in accordance with prevailing social circumstances (Bauer v R A65/1987).  An examination of penalties referable to some forms of drug abuse illustrates how review can result in amelioration of penalty.  But the process of increase requires warning and incremental change (R v Barber (1976) 14 SASR 388, Breed v Pryce (1985) 36 NTR 23 and Poyner v R (1986) 66 ALR 264).

The sentence imposed by the learned sentencing judge, whilst justifiable by reference to the relevant sentencing factors, had the effect of markedly increasing the range of appropriate penalties.  By reference to those parameters, it became manifestly excessive.  But the observations expressed in this judgment should be taken as a warning that recidivists, at least, ought not expect to be regarded in the same light as more ordinary offenders.

During the course of the hearing of this appeal, the learned Director of Public Prosecutions was asked whether or not review should be made only on a Crown appeal which followed a particular sentencing hearing at which these matters were raised.  His reply to the effect that the Crown was entitled to defend a sentence imposed on the grounds already discussed, since it then became the responsibility of the Court itself to consider any review, was an appropriate response.

Conclusion

I would allow the appeal and substitute a sentence of imprisonment of two years and three months.  In doing so, I am conscious of the contradiction of holding the original sentence to be justifiable, whilst upholding a process of incrementation.  The altered sentence should not be seen either as "tinkering" with one already imposed, or as establishing a benchmark for future cases.  Instead it attempts resolution of competing principles, whilst giving effect to the import of "warning" and change.