Dominey v Regina
[2007] NSWCCA 182
•21 June 2007
New South Wales
Court of Criminal Appeal
CITATION: Dominey v Regina [2007] NSWCCA 182 HEARING DATE(S): 21 June 2007 JUDGMENT OF: Beazley JA at 1,25; Grove J at 2; Simpson J at 26 EX TEMPORE JUDGMENT DATE: 21 June 2007 DECISION: Appeal against sentence allowed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENDER PUNISHED FOR STEALING - LATER PUNISHED FOR BREAK ENTER AND STEAL - NO DUPLICATION OF PARTICULARS OF LOOT - ASSERTION OF APPEARANCE OF DOUBLE PUNISHMENT - DISCOUNTS FOR PLEAS OF GUILTY AGAINST UNSTATED ASSESSMENTS OF TERMS OF IMPRISONMENT - CASE MADE FOR INTERVENTION LEGISLATION CITED: Crimes Act 1900 CASES CITED: R v Thomson & anor (2000) 49 NSWLR 383
Pearce v The Queen (1998) 194 CLR 610PARTIES: Darren John Dominey v Regina FILE NUMBER(S): CCA 2007/906 COUNSEL: A.P. Cook (Applicant)
N. Noman (Respondent/Crown)SOLICITORS: S. O'Connor (Applicant)
S. Kavanagh (Respondent/Crown)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0297; 06/11/0619 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 13/10/06
2007/906
Thursday 21 June 2007BEAZLEY JA
GROVE J
SIMPSON J
Judgment
1 BEAZLEY JA: I will ask Grove J to deliver the first judgment.
2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sweeney DCJ at Sydney District Court. The applicant, having pleaded guilty before the Local Court, appeared for sentence on offences of breaking, entering and stealing and robbery contrary to ss 112(1) and 94 of the Crimes Act respectively. Each of these offences has a prescribed maximum penalty of fourteen years imprisonment. Her Honour was also asked to take into account on Form 1 offences of using offensive language in a public place and assaulting a police officer in the execution of his duty.
3 It is convenient to turn first to some background and facts relating to the offences. On 5 June 2004 residents of premises in Paddington departed for the day and when they returned found that the front door had been forced open. Inspection revealed that property had been removed from cupboards and the premises were in disarray. It was determined that a large number of items including jewellery and electrical items were missing. The property was not independently valued but the owners estimated their loss at something over $17,000.
4 On that evening the applicant was arrested in Kings Cross and was found to be in possession of some of the jewellery taken from the Paddington premises. He was charged with stealing that property and subsequently sentenced to imprisonment for six months. The amount of jewellery in his possession was recovered.
5 Part of the investigation into the break into the premises included taking a sample for DNA testing from a drink bottle which had been disturbed during the intrusion. DNA testing identified the applicant and he was arrested and charged with the offence of breaking, entering and stealing on 23 October 2005. By that time he had served the sentence of six months for stealing that amount of the jewellery which had been found in his possession in June 2004.
6 The offence of robbery occurred on 7 May 2006. A young man aged nineteen was walking in William Street, Kings Cross, attempting to make a telephone call from his mobile phone. This was unsuccessful as his phone had run out of credit and he approached the applicant seeking directions to a public telephone. The applicant threatened the victim with his fist and demanded the mobile phone. This demand was refused and they struggled and the applicant obtained possession of the item and made off. Later that day the victim, who was with a companion, saw the applicant and demanded the return of the phone. This approach was terminated when a female passer-by, no doubt unaware of the situation, told the victim and his friend to leave the applicant alone. The matter was reported to police and later that day the applicant was arrested. He was at the time, still in possession of the mobile phone.
7 After arrest the applicant was taken to a hospital to be treated for some unrelated injuries and whilst there he commenced repeatedly using loud and vulgar language, despite requests by police and hospital staff for him to desist. In the course of this conduct, whilst the police officer was attempting to calm him, he assaulted the police officer by spitting in his face. The matters on the Form 1 reflect these events. I note in passing, that the Form 1 incorrectly states the dates of these offences as 7 May 2005, rather than 7 May 2006.
8 The applicant had pleaded guilty in the Local Court to the offence of breaking, entering and stealing, and was awaiting sentence in the District Court when he was arrested for the robbery on 7 May 2006. He remained in custody continuously after that date. Consequent upon his plea of guilty to the offence of robbery, the matters were listed to be dealt with together.
9 Recognizing the pleas of guilty at the earliest opportunity, her Honour stated that she would accord the applicant a discount of 25 percent which she described as “the maximum discount ….for that early plea of guilty” for the offence of breaking, entering and stealing, and that again the applicant was entitled to “the maximum discount” for the early plea of guilty to the offence of robbery. These would appear to be references to the quantification of the utilitarian value of a plea of guilty in the guideline judgment R v Thomson & anor (2000) 49 NSWLR 383 at p 419. That decision offered guidance and did not purport to legislate a “maximum” and it is important that this be fully understood. Her Honour imposed sentence for the robbery first, and, taking into account the matters on the Form 1, sentenced the applicant to imprisonment consisting of a non-parole period of three years commencing on 7 May 2006, with a balance term of one year, and for the offence of breaking, entering and stealing, to imprisonment consisting of a non-parole period of three years commencing on 7 May 2007 and expiring on 6 May 2010 with a balance term of two years. The overall effect of those sentences was to create a term of custody of four years before eligibility for parole on 6 May 2010 with a balance term of two years.
10 The applicant is thirty years of age. He was raised by his mother following the separation of his parents, but developed a reasonable relationship with a stepfather. He did not complete Year 10 at school and did not attain any formal educational qualifications. He has only ever worked in employment in low skilled occupations. He has a considerable prior record commencing, as an adult, with a conviction for stealing in 1994. Significantly, in 1997 he was sentenced to community service for an offence of robbery whilst armed with an offensive weapon, but an appeal to this Court saw the substitution of a sentence consisting of a minimum term of one year nine months and an additional term of two years. He was again imprisoned for robbery by sentence of the District Court in 1999. It is disturbing to note that he has several convictions concerning custody or carrying knives or cutting weapons. At the time of the commission of these offences he was on conditional liberty by reason of grants of bail and there were in existence warrants for his arrest by reason of failures to appear in court when required.
11 At the age of sixteen he had formed a relationship with a girl of which there is a stepdaughter now aged sixteen and a son aged twelve, with neither of whom he has had contact for approximately eight years. Whilst the applicant was in prison his partner passed away as a result of a drug overdose. He was not permitted to attend her funeral. This loss appears to have had a considerable impact upon the applicant.
12 Since his mid-teens the applicant has used alcohol and drugs and he became addicted to the use of heroin. He had made attempts to deal with this by entering a methadone program but relapsed into drug use. He had began to use an amphetamine commonly known as “ice”.
13 Her Honour was supplied with a detailed report by Dr Bruce Westmore, a psychiatrist, who made a provisional diagnosis of drug induced psychosis. Dr Westmore thought it was probable that when the robbery occurred the applicant was paranoid and probably having auditory perceptual disturbances as a result of drug use.
14 It was pointed out to her Honour that, for his various offences, the applicant had spent two-thirds of the last nine years in custody and it was submitted that he was at risk of becoming institutionalized. He gave evidence to her Honour that he wished to take the opportunity of treatment that may be available for mental health and drug rehabilitation. Dr Westmore considered that the applicant required extended community based drug rehabilitation services.
15 The initial submission on behalf of the applicant was that her Honour erred in not taking into account that the applicant had served six months imprisonment for stealing part of the loot taken in the breaking, entering and stealing at Paddington. Her Honour was aware of that history and in her remarks referred to the applicant’s arrest for being in possession of that property, although she did not specifically refer to the sentence imposed upon him for stealing. The Crown pointed out that the charge of breaking, entering and stealing did not particularize those goods which had been recovered when the applicant was arrested in June 2004, so that there was no duplication in the charge. The Crown further points out that these six months which the applicant served for stealing was served concurrently with sentences for other offences and also, in part, with the service of a balance of parole which had been revoked.
16 The Crown submission is, therefore, that there was no meaningful sentence imposed for the offence of stealing. The submission by the applicant is that there is an appearance, and a reality, of double punishment, a consequence which should be avoided in accordance with the principles delineated in Pearce v The Queen (1998) 194 CLR 610.
17 As far as the offence of breaking, entering and stealing omitted particulars of the goods which had been recovered at the time of the earlier arrest, there was no reality of double punishment. Whether there is an appearance of double punishment very much depends upon the point of view which is adopted. Although her Honour was clearly conscious of the circumstances of the earlier arrest, her remarks do not reveal one way or the other, whether she made or declined to make any adjustment for the service of imprisonment for the earlier offence.
18 It is submitted by the applicant that the sentence is manifestly excessive in all the circumstances. Her Honour did not express the total term which she had assessed prior to applying the 25 percent discount, which she had indicated. Arithmetically, it can be calculated that the starting point before such a discount must have been six years and eight months and five years and three months respectively.
19 The learned sentencing judge had observed that the applicant was being detained on protection in a psychiatric care unit and this placed him under restrictive conditions in his custody. She acknowledged the long term drug problem and his expressions of wishes to rehabilitate. Her Honour assessed the robbery offence as being, at what she described as “medium end of the low to medium spectrum of robberies”.
20 There can be no doubt of the correctness of her Honour’s conclusion that there needed to be some element of cumulation of the sentences for the separate offences. However, given the absence of expression concerning the initial assessment prior to application of the discount for pleas of guilty and whether the service of six months for an offence, which, at the very least was associated with the breaking, entering and stealing and in the light of the overall effective sentence for these offences as finally determined, I have come to the conclusion that the applicant has made good his claim for intervention by this Court.
21 I propose that the sentences in the District Court be quashed and the applicant be resentenced by this Court. For the reasons given by her Honour, which I would respectfully adopt, I agree that there should be a finding of special circumstances so that the balance period of imprisonment during which the applicant may be released to parole exceeds one-third of the non-parole period. I note the comment in the letter by Mr Noonan, the alcohol and other drug counsellor at the Metropolitan Programs Centre of the Department of Corrective Services:
- “Throughout his incarceration, Mr Dominey has made every effort to address his offending behaviour and I expect him to continue to participate in counselling and programs, (when he can access them), both in custody and in the community.”
22 For the offence of robbery I would assess a total sentence of five years which I would reduce to three years nine months to recognize the plea of guilty.
23 For the offence of breaking, entering and stealing, I would assess a total sentence of six years reduced to four years six months to recognize the plea of guilty for that offence.
24 I propose the following orders:
- 1. Application for leave to appeal against sentence granted.
2. Appeal allowed and sentences in the District Court quashed.
3. In lieu thereof, the applicant sentenced as follows:
4. (a) On count 2 (robbery), taking into account the matters on Form 1, to imprisonment consisting of a non-parole period of two years six months to commence on 7 May 2006 and to expire on 6 November 2008 with a balance term of one year and three months;
- (b) On count 1 (breaking, entering and stealing), to imprisonment consisting of a non-parole period of two years six months to commence on 7 May 2007 and to expire on 6 November 2009 with a balance term of two years to commence on 7 November 2009.
25 BEAZLEY JA: I agree.
26 SIMPSON J: I also agree.
27 BEAZLEY JA: The orders of the Court are those proposed by Grove J.
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