Buadromo v The Queen
[2007] NSWCCA 43
•27 February 2007
New South Wales
Court of Criminal Appeal
CITATION: Buadromo v R [2007] NSWCCA 43
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 5 February 2007
JUDGMENT DATE:
27 February 2007JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Buddin J at 40 DECISION: (i) leave to appeal granted, appeal allowed; (ii) sentence imposed in respect of Count 5 quashed; (iii) in respect of Count 5, the applicant re-sentenced to imprisonment with a non-parole period of one year and six months, commencing on 17 December 2009 and expiring on 16 June 2011, with a balance of term of three years and nine months, expiring on 16 March 2015. CATCHWORDS: CRIMINAL LAW - sentencing - application for leave to appeal severity of sentences - two offences aggravated break, enter and steal - two offences aggravated steal and break out - one offence attempted robbery in company - one offence aggravated attempted carjacking - five Form 1 offences - pleas of guilty - prior criminal record - finding of special circumstances - accumulation of sentences - statutory proportions of sentences - purpose of finding of special circumstances - whether overall sentence manifestly excessive - moral culpability - structure of sentences LEGISLATION CITED: Crimes Act 1900, s97(1), s154C(2), s344A
Crimes (Sentencing Procedure) Act 1999, Part 3, Division 3, Part 4, Division 1A, S44(2)CASES CITED: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Champion (1992) 64 A Crim R 244
R v Engert (1995) 84 A Crim R 67
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Wright (1997) 93 A Crim R 48PARTIES: Baba Buadromo - Applicant
Crown - RespondentFILE NUMBER(S): CCA 2006/2156 COUNSEL: P Johnson - Applicant
N Noman - RespondentSOLICITORS: SE O'Connor - Applicant
S Kavanagh - CrownLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1422 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ LOWER COURT DATE OF DECISION: 24 January 2006
2006/2156
Tuesday 27 February 2007McCLELLAN CJ at CL
SIMPSON J
BUDDIN J
1 McCLELLAN CJ at CL: I agree with Simpson J.
2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 24 January 2006 following his pleas of guilty to a series of six charges on an indictment. In addition, he asked that a further five offences listed on a Form 1 be taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).
3 The offences the subject of the indictment were committed between 16 March 2002 and 12 June 2003. The offences were:
· two offences of aggravated break, enter and steal;
· two offences of aggravated steal and break out;
· one offence of attempted robbery in company;
· one offence of attempted carjacking.
4 Pursuant to s97(1) and s344A of the Crimes Act 1900, each of the offences of aggravated break, enter and steal and aggravated steal and break out carries a maximum penalty of imprisonment for 20 years; the offence of attempted robbery in company similarly carries a maximum penalty of imprisonment for 20 years; pursuant to s154C(2) of the Crimes Act, the offence of aggravated attempted carjacking carries a maximum penalty of imprisonment for 14 years. Pursuant to Part 4, Division 1A of the Sentencing Procedure Act each of the second of the offences of aggravated steal and break out, and the offence of aggravated attempted carjacking is subject to a standard non-parole period of imprisonment for five years. (The reason the earlier offence of aggravated steal and break out is not similarly so subject is that it was committed prior to the introduction of the legislation imposing that sentencing regime.)
5 The Form 1 offences were:
· two offences of take and drive a conveyance without the consent of the owner;
· one offence of being carried in a conveyance without the consent of the owner;
· one offence of break and enter with intent to steal;
· one offence of goods in custody.
6 Blackmore DCJ sentenced the applicant as follows:
· Count 1 (aggravated break, enter and steal, and taking into account the Form 1 offences): a non-parole period of imprisonment for four years to date from 17 December 2003, with a balance of term of two years;
· Count 2 (aggravated break, enter and steal): imprisonment with a non-parole period of three years, to date from 17 December 2005, with a balance of term of one year and three months;
· Count 3 (aggravated steal and break out): imprisonment with a non-parole period of three years to date from 17 December 2006, with a balance of term of one year and three months;
· Count 4 (aggravated steal and break out): imprisonment with a non-parole period of three years to date from 17 December 2007, with a balance of term of one year and three months;
· Count 5 (attempted robbery in company): imprisonment with a non-parole period of two years and three months to date from 17 December 2009, with a balance of term of three years;
· Count 6 (aggravated attempted carjacking): imprisonment with a non-parole period of three years to date from 17 December 2008, with a balance of term of one year and three months.
7 By reason of the manner in which his Honour accumulated the sentences, the overall sentence was one of imprisonment with a non-parole period of eight years and three months, with a balance of term of three years (a total term of eleven years and three months).
8 The applicant makes no complaint about any of the individual sentences. Two issues arise in the application. They concern the length of the total sentence, resulting from the accumulation; and the structure of the sentence, in the proportions between the non-parole period and the total sentence.
The facts
9 The first offence on the indictment (aggravated break, enter and steal) was committed during the evening of 16 March 2002 or the early hours of the following morning. The applicant broke and entered a private residence in Mosman, in which the occupants were sleeping. He searched through three rooms and stole a sum of $2,000 in cash from a wallet. He also stole a set of keys to a Mercedes Benz car, which he then proceeded to steal from the garage.
10 The second offence on the indictment (also aggravated break, enter and steal) was committed during the early hours of 6 May 2002, in Vaucluse. The applicant climbed onto the balcony of a residential apartment, to which he gained access by opening an unlocked window. The owners were asleep inside. The applicant stole $270 in cash and a computer. He left through the front door.
11 The third offence on the indictment was committed during the same night, also in Vaucluse. The applicant entered an apartment via an open balcony door. The owners were present and asleep. He stole a computer and left the apartment by unlocking and opening the front door. (This was the offence of aggravated stealing and breaking out of premises.)
12 The fourth offence (aggravated steal and break out) was committed on 12 March 2003, at a little after 11.00 pm. The applicant entered a residence at Mosman, through an open rear door. The occupant was present, asleep. The applicant searched the residence and stole $1,000, a camera and camera equipment valued at $10,000, and a set of keys, which he used to steal another Mercedes Benz vehicle, valued at $400,000.
13 He drove off but crashed the vehicle into a kerb, damaging the vehicle.
14 The fifth offence was committed during the afternoon of 12 June 2003. In company with three other males, the applicant attended a Commonwealth Bank in Leichhardt. The men were in possession of a stolen BMW vehicle. One of the men (not the applicant) was armed with a sledgehammer. All were disguised. The applicant was wearing a baseball cap, a bandana, and a latex glove. The other men were wearing balaclavas.
15 One or more of the men demanded that staff and customers lie on the floor. Using the sledgehammer, they began to smash their way into the tellers’ area. They were unable to gain entry. Bank staff called police. One of the men was in possession of a police scanner. Presumably because he became aware that police were in the vicinity, he told the others that it was necessary to leave. All men ran off, and drove away in the stolen BMW. (This was the offence of attempted robbery in company.)
16 The final offence on the indictment (aggravated attempted carjacking) was committed on the same day, in the course of the men making their escape. The BMW was driven the wrong way into a one-way street in Glebe. The men blocked the passage of another vehicle in the street, then being driven by a woman. One of the offenders alighted from the BMW, approached the other vehicle, produced a knife, and ordered the driver to open the door. Using his elbow, he smashed the passenger-side window. Police drove into the street with lights and sirens activated. One of the offenders drove the BMW into the other vehicle, narrowly missing the driver. The BMW was damaged and undrivable. The offenders ran off, in different directions. The applicant ran into a construction site. There he discarded the latex glove, the baseball cap and the bandana. He ran off.
17 By reason of DNA evidence located on the contents of the stolen, damaged and abandoned BMW, and on the latex glove, and of video footage of the robbery in the Leichhardt Bank, the applicant was identified as a suspect. He was arrested following a police pursuit on 17 December 2003. When interviewed, the applicant denied having been present at the bank robbery. He refused to state where he had obtained money (a sum of $258.25) that was in his possession on arrest. He was also in possession of a Commodore car key. He claimed to have found it in a street that morning.
18 Four of the offences listed on the Form 1 were committed in association with offences on the indictment. Two were of taking and driving conveyances without consent; these related to the two Mercedes Benz vehicles taken by the applicant in the process of the Mosman offences. The offence of allowing himself to be carried in a conveyance knowing it to have been stolen was constituted by his being present in the stolen BMW, used in the attempted bank robbery; the goods in custody was constituted by his possession of the Holden Commodore car key and cash, on the occasion of his arrest. The remaining Form 1 offence, of break and enter with intent to steal, was committed during the evening of 17 August 2003 or the early morning of the following day. The applicant broke and entered a retail shopping complex with intent to steal.
Proceedings on sentence
19 The applicant entered a plea of guilty to all charges on 27 August 2004 in the Central Local Court. He was re-indicted, with minor amendments, more than a year later, on 9 December 2005. The reason for the long delay is not apparent. Sentence proceedings took place on that date. The applicant gave evidence. Also before the court was a pre-sentence report and a clinical psychological assessment, prepared by Dr Susan Hayes. The applicant expressed regret for his criminal behaviour.
Subjective circumstances
20 From the material put before the sentencing judge the following emerges. The applicant was born on 1 January 1980, in Fiji, one of six (or seven) children. He was 22 and 23 at the time of these offences. His mother was a school teacher, his father a forestry worker. His father was an alcoholic who violently physically assaulted the applicant’s mother. She eventually left him and moved to Sydney. The applicant remained in Fiji for a time, but eventually joined his mother in Sydney at about the age of eight. Other children were at boarding school, and one was adopted.
21 The applicant took up residence in Sydney with his mother, her de facto, one brother and one sister. He was still living with his mother at the time of his arrest. He found schooling in Sydney difficult, because, on his arrival, he spoke little English. He was teased, bullied and beaten. He dropped out of school at the age of 14.
22 He had a number of unskilled jobs. His criminal record shows that his first criminal conviction was in July 1997 (when he was aged 17) and involved unauthorised use of motor vehicles and driving whilst unlicensed. However, the pre-sentence report records that his criminal behaviour began earlier than that, in 1993, at the age of 13, when he was fined for offences of malicious damage and possessing an offensive implement. There were, according to the report, other appearances in the Children’s Court, for offences as serious as drugs, robbery and motor vehicle offences. A number of other convictions appear on his criminal history, for offences including drive in a manner dangerous, another of unlicensed driving, goods in custody, receiving, break, enter and steal, and malicious damage to property. The applicant began using cannabis at the age of 15, and alcohol at 16. He fell into bad company and this was what led to his criminal behaviour.
23 In early 2003, a cousin to whom he was very close died in a car accident, and was, on autopsy, found to have a large brain tumour. This death triggered heavy drug and alcohol use in the applicant. He had also taken up heroin use. His health was poor.
24 After administering tests, Dr Hayes concluded that the applicant suffered from a mild intellectual disability. She agreed with his own self assessment, that he was easily led and wanted very much to belong to a peer group, but the peer group would accept him only if he joined in its criminal activities. His intellectual disability meant that he was more easily led than would otherwise be the case. He had low self-esteem, as a result of his intellectual disability, and also, possibly, of his family circumstances, and the impact of having been teased and bullied at school.
25 Dr Hayes considered his prospects for rehabilitation to be good, provided that he abstained from drugs and alcohol; and that, on release, he would need support and supervision.
The remarks on sentence
26 The sentencing judge recounted the facts of the offences. In respect of the offences numbered 4 and 6, as to which the provisions of Part 4, Division 1A of the Sentencing Procedure Act apply, he noted that the pleas of guilty rendered the standard non-parole period strictly inapplicable, but, correctly, recognised that it remained as an indicator of the intention of the legislature in relation to sentencing for such offences.
27 He noted that the offences numbered 1, 2 and 3 were committed whilst the applicant was on bail in respect of other offences and recognised this, again correctly, to be a serious aggravating feature. He noted the applicant’s criminal record, including the multiple offences of break, enter and steal and of dishonesty.
28 He expressly accepted the applicant’s expressions of remorse as genuine. He noted the pleas of guilty, and that they were entered at the earliest reasonable opportunity, and stated his intention of applying the “maximum discount”. This may be taken to be a reference to the 25% at the top of the range promulgated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. His Honour referred to totality and stated that the need to accommodate the totality of the offending in appropriate overall sentences required some degree of accumulation of the sentences to be imposed. He stated that, absent the pleas of guilty, he considered that a full term of imprisonment for 15 years to be appropriate to the level of criminality involved. Thus (after deducting 25% in recognition of the guilty pleas) he arrived at a total head sentence of 11 years and three months. He noted the applicant’s relative youth, and his efforts to reform and his claim to have ceased taking drugs. He then said:
- “In my view there are good reasons in this case to find special circumstances and I will make such a finding.”
29 This was a reference to s44(2) of the Sentencing Procedure Act which provides as follows:
- ““44(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).”
30 In my opinion, this remark plainly indicated an intention to vary the statutory proportion stated in s44(2) by reducing the non-parole period and extending the balance of term. It is his implementation (or otherwise) of this intention that gives rise to one of the grounds of appeal. His Honour then imposed the sentences I have set out above.
The application for leave to appeal
31 Two grounds were pleaded and argued in support of the application. They were:
- “Ground 1. His Honour in making a finding of special circumstances failed to properly reflect that finding in the non-parole period imposed.
- Ground 2. The overall sentence and effective non-parole period is manifestly excessive.”
Ground 1: special circumstances
32 In respect of the individual sentences, his Honour, in varying degrees, put into effect his expressed intention of varying the statutory ratio in favour of the applicant. However, when he accumulated the sentences, this was all but undone. In the overall sentence as imposed, the non-parole period is 73% of the total sentence – just 2% less than the statutory formulation. Unless (as is sometimes the case in sentencing an offender in respect of multiple offences to cumulative or partially cumulative terms) the purpose of a finding of special circumstances is to restore, to the total term of the combined sentences, the statutory proportions, a finding of special circumstances is of no benefit to the offender, unless it is applied not only to individual sentences, but, much more importantly, to the total, or overall, term. In my opinion it is clear that here the accumulation process distorted the result that his Honour intended to achieve. This should be corrected.
Ground 2: manifestly excessive
33 A number of matters were advanced in support of the argument that the overall sentence was manifestly excessive. It was explicitly conceded that no individual sentence was manifestly excessive.
34 Reliance was placed upon the similarity of the offences that involved dwelling houses and stealing therein – four of the six offences on the indictment. Two of them, it was observed, were committed on the same night. In all cases, the occupants of the homes were asleep. In reliance upon my own decision in R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, it was argued that these similar features should have pointed towards concurrency rather than accumulation.
35 This represents a misunderstanding (though, perhaps, an understandable one) of what was said in Hammoud. Each of these six offences was quite discrete. They were not committed as part of a single criminal enterprise, which is what I had in mind when I made the remarks in Hammoud. Nothing that was said in Hammoud requires or justifies a finding in this case that accumulation rather then concurrency was erroneous.
36 It was also pointed out that, while the applicant was party to a joint criminal enterprise in respect of the fifth and sixth offences, he was not the offender who wielded the sledgehammer, and was not the offender who went to the victim’s car. This may be so, but, again, in my opinion, it would not justify a finding that the judge was in error in his approach to the facts of the offences.
37 A further argument concerned the evidence of intellectual disability. It was pointed out that, during the proceedings on sentence, the sentencing judge expressed some surprise at this conclusion of Dr Hayes, in such a way as to suggest disagreement. However, his Honour nowhere rejected the conclusion. Indeed, he made no reference to the conclusion in his remarks on sentence. But, in any event, it was accepted that his intellectual functioning did not reduce his moral culpability; it was, rather, submitted that, in such circumstances, general deterrence is of less relevance. This is a well-known principle: see R v Champion (1992) 64 A Crim R 244; R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48. But I find nothing in the remarks on sentence nor the approach of his Honour to indicate that the evidence of the applicant’s intellectual disability was not given due weight in the circumstances. I am not persuaded that the sentences, in total, were manifestly excessive.
38 However, for the reasons I have already given, I am satisfied that there was error in the structure of the sentences following the finding of s44 special circumstances. Accordingly, in my opinion, the appeal should be allowed to that extent, and one sentence varied to yield an overall non-parole period of seven and a half years, which would mean a balance of term of three years and nine months, the total term remaining at eleven years and three months. Regrettably, the only way that I can see to achieve this is to reduce the non-parole period imposed in respect of the most serious of the offences (the attempted armed robbery in company) that resulted in the longest sentence. I say this is regrettable because it will give the impression of a non-parole period imposed in respect of a serious offence that is quite disproportionate to the gravity of the offence, and will not, on its face, comply with the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the context of all offences and sentences, however, what I propose will yield a just result, and give effect to the finding of special circumstances.
39 Accordingly, I propose the following orders:
(i) leave to appeal be granted; the appeal allowed;
(iii) in respect of Count 5, the applicant be re-sentenced to imprisonment with a non-parole period of one year and six months, commencing on 17 December 2009 and expiring on 16 June 2011, with a balance of term of three years and nine months, expiring on 16 March 2015.(ii) the sentence imposed in respect of Count 5 be quashed;
40 BUDDIN J: I agree with Simpson J.
04/02/2008 - Typographical error corrected in Count 6 - Paragraph(s) 6
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