Leese v The Queen

[2007] NSWCCA 108

New South Wales
Court of Criminal Appeal

CITATION:	Leese v R [2007] NSWCCA 108
HEARING DATE(S):	04/04/2007
JUDGMENT DATE:	18 April 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hoeben J at 2; Hall J at 27
DECISION:	Leave to appeal refused.
CATCHWORDS:	Criminal law - sentence appeal - use by sentencing judge of phrase "the community would be horrified to think that anything other than a full time custodial sentence would be appropriate" - was this an irrelevant consideration.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-78
PARTIES:	Darrel Patrick Leese - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2007/383
COUNSEL:	Ms A Francis - Applicant Ms N Noman - Respondent Crown
SOLICITORS:	SE O'Connor, Solicitor for Legal Aid - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/2045
LOWER COURT JUDICIAL OFFICER:	Knight DCJ
LOWER COURT DATE OF DECISION:	09/08/2006

2007/383

McCLELLAN CJ at CL
HOEBEN J
HALL J

Wednesday, 18 April 2007

Darrel Patrick LEESE v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HOEBEN J:

Offences and sentence
On the day appointed for the commencement of his trial, the applicant pleaded guilty to one count of aggravated break enter and intimidate in the following terms:

“On 6 July 2005 at Riverstone in the State of New South Wales in circumstances of aggravation namely being in the company of Adam David Rowe did break and enter the dwelling house of Tracey Thomas situate at 21 Riverstone Road and therein did commit a serious indictable offence namely did intimidate Tracey Thomas with intent to cause her to fear physical or mental harm.”

This offence was contrary to s112(2) of the Crimes Act 1900 for which the maximum penalty was imprisonment for 20 years. There was a standard non-parole period of 5 years.

3 The Court was also asked to take into account one offence on a Form 1 of malicious damage contrary to s195(a) Crimes Act 1900 for which the maximum penalty was imprisonment for 5 years.

4 The applicant came before Knight DCJ for sentence on 9 August 2006. The sentence imposed by his Honour was imprisonment with a non-parole period of 1 year to commence on 9 August 2006 and to expire on 8 August 2007 with a balance of term of 1 year to expire on 8 August 2008.

Factual background

5 The facts of the offences were contained in a “Statement of Facts” which was admitted without objection. Those facts were amplified by the evidence which the applicant gave in the sentence proceedings.

6 The victim, Tracey Thomas, resided at 21 Riverstone Road, Riverstone with her fiancé, Peter Sajkic, her two daughters aged 17 and 15 and her grand-daughter aged 2. The applicant was married to the victim’s sister. The co-offender, Mr Rowe, was the victim’s stepbrother.

7 On 6 July 2005 officials from the Department of Community Services had attended the applicant’s home. Apparently a complaint had been made and their attendance was in response to that complaint. The officers told the applicant that it was the victim who had been responsible for making the complaint. The DOCS officials left the applicant’s home at about 7pm.

8 Shortly after 8pm that night, the applicant and the co-offender arrived at the victim’s home. She was there with the family members described above. Loud banging was heard on the front door, which was accompanied by demands from the co-offender to be granted entry. After several loud bangs the front door was heard to fly open and it was subsequently discovered that the door had been broken open.

9 The co-offender confronted Mr Sajkic in the hallway. The applicant also entered the victim’s home but remained in the archway of the front door. The co-offender pushed and threatened Mr Sajkic and demanded to know why they had made a complaint to DOCS. The applicant demanded to speak with the victim but was told by the older daughter that he could not do so and he and the co-offender were repeatedly told to leave. Threats were levelled at the family.

10 The applicant and the co-offender commenced to leave the premises but on the way the co-offender threw a vase at the television causing the screen to break. A chair was also thrown at the television by the co-offender.

11 Additional facts emerged from the applicant’s evidence. The applicant had been drinking at his home after the DOCS officers had left. He had been joined in that activity by the co-offender. His Honour accepted that the applicant was not the person who actually broke down the door and was not the person who damaged the television set. Nevertheless his Honour found that the applicant was standing in the premises prepared to give comfort and assistance to the co-offender and that it was because of the applicant that the two of them were there in the first place.

Remarks on sentence

12 Having reviewed the facts his Honour summarised the actions of the applicant as follows:

“In effect, because you had some sort of grievance with Ms Thomas, you and your co-offender went to Ms Thomas’ home while she was in residence, broke in the door and then threatened Mr Sajkic and refused repeatedly to leave, and when you did leave the television set was damaged. A person has a right, in our society, of all places to feel secure, in their own home and you trampled over that right of Ms Thomas. In my view the offence as I say, carries very considerable criminality, notwithstanding that your role in the actual violence involved in it was less than that of Mr Rowe.” (ROS 4)

13 In relation to subjective matters his Honour noted that the applicant had been born on 26 May 1964 and was 42 at the time of sentence. The applicant did have a criminal history. He first came under police notice when he was 29 years of age and thereafter had been convicted of offences such as cultivating a prohibited plant, assault, resisting a police officer in the execution of his duty, passing valueless cheques and various driving offences including driving with a high prescribed concentration of alcohol and driving while disqualified. The applicant had not previously served a period of imprisonment. He was on a good behaviour bond for driving while disqualified at the time of these offences.

14 The applicant’s family had emigrated from England when he was 18 months old. His father left the family when he was 13. Not long before that the applicant had been sexually abused by his father. He was educated to year 9 level and thereafter worked as a builder’s labourer. The applicant had run his own business until a couple of months before the offence, but had been unemployed since that date. Although the applicant’s employment over the years had been somewhat intermittent, he had been able to support his family. At the time of sentence he was the father of twin 8 year old daughters, a 7 year old daughter, a 4 ½ year old son and a 9 month old son.

15 Because a standard non-parole period applied to this offence, his Honour had regard to what this Court said in R v Way (2004) 60 NSWLR 168. His Honour did not consider that the standard non-parole period of 5 years was applicable because the applicant had entered a plea of guilty and because although the offence involved considerable criminality his Honour considered that it was significantly below the mid range of objective seriousness for offences of that kind.

16 Having said that his Honour still had regard to the standard non-parole period as a guidepost when determining the applicant’s sentence. His Honour also had regard to the principles in s3A and 21A of the Crimes (Sentencing Procedure) Act 1999. The s21A matters essentially cancelled each other out. His Honour did, however, consider that the fact that the offence was committed whilst the applicant was on a good behaviour bond was a serious aggravating feature.

17 His Honour found that the applicant had shown genuine remorse. His Honour was of the opinion that the plea of guilty had been entered at the earliest opportunity and that accordingly the applicant was entitled to a discount of 25 percent. The applicant had agreed to pay compensation in respect of the television set.

18 His Honour concluded his remarks as follows:

“Having regard to the objective seriousness of the offences determined by me and having regard also to the subjective factors to which I have referred, and to the principle of using the five year non-parole period as a guidepost, I have come to the conclusion that no sentence other than one of a custodial nature would be appropriate. Your counsel urged on me, having regard to the statistics for offences of this nature, that this was a case which could be dealt with either by way of a suspended sentence or periodic detention, and it is certainly true than some 10 percent of offenders who have pleaded guilty to a s112(2) offence, have received a suspended sentence plus supervision, and 3 percent have received periodic detention, whilst 86 percent have been sent to fulltime custody.
I have given the matter much thought. It is not an easy task for a sentencing judge to send a man of 42 years of age to gaol for the first time but I have come to the conclusion that the real nature of this offence was such that the community would be horrified were it to think that anything other than a fulltime custodial sentence would be appropriate. That is because, in truth as I have pointed out already, you and your co-offender literally invaded Ms Thomas’ house and then therein, did the acts to which I have already referred. It seems to me that that is an offence which does require a fulltime custodial sentence and I decline therefore to deal with it either by way of periodic detention or by way of home detention.” (ROS 12-13)

Appeal
Ground of appeal 1: The sentencing judge erred in concluding that fulltime custody was the only available option in this case.

19 It was submitted that in concluding that fulltime custody was the only available option, his Honour had failed to have adequate regard to the applicant’s strong subjective case, that he was the father of five children and that he had not previously served a sentence of imprisonment.

20 This ground of appeal does no more than challenge his Honour’s exercise of his sentencing discretion. His Honour considered carefully and in some detail the very matters which are raised in support of this ground of appeal. His Honour then carefully considered whether non-custodial options were appropriate and concluded that they were not. His Honour’s reasoning was precisely that recommended by this Court in R v Zamagias [2002] NSWCCA 17. No error in his Honour’s approach has been demonstrated. This ground of appeal has not been made out.

Ground of appeal 2: The sentencing judge erred by concluding that fulltime custody was warranted because “the community would be horrified were it to think that anything other than a fulltime custodial sentence would be appropriate”.

21 It was submitted that his Honour erred in taking into account this consideration. The question of whether or not “the community would be horrified”, it was submitted, was an irrelevant consideration and by taking it into account his Honour had fallen into error. Criticism was also levelled at his Honour’s use of the term “invade”. It was submitted that by using this word to characterise the behaviour of the applicant, his Honour was confusing the actions of the applicant with those of his co-offender.

22 In my opinion no error on the part of his Honour has been identified. By referring to community outrage his Honour was doing no more than taking into account that right minded members of the community would regard the criminality of this offence as such that it ought be denounced by a sentence of imprisonment. It is not without significance that in the context of what part antecedent criminal history should play in the sentencing process that the High Court said:

“Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalty.” ( Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477-78.)

23 His Honour did not confuse the part played by the applicant with that of the co-offender. His Honour was careful in his recitation of the facts to differentiate their conduct. Insofar as the applicant is concerned, he instigated the incident, although he did not personally break open the door he then entered the house albeit not to a great extent. He threatened the victim and refused to leave when requested. There is nothing in his Honour’s characterisation of the conduct of the applicant which revealed error. This ground of appeal has not been made out.

Ground 3: The sentence is manifestly excessive in the circumstances of this case.

24 The submissions in support of this ground were the same as those in support of ground 1. As indicated, no error has been identified in his Honour’s reasoning process nor in his exercise of his sentencing discretion. Not only was the objective criminality of the offence significant but his Honour had to have regard to the standard non-parole period as a guidepost, to the fact that the applicant was on a good behaviour bond at the time of the offence and to the Form 1 matter. This ground of appeal has not been made out.

Conclusion

25 The Court was advised that the applicant’s co-offender has not yet been sentenced. It was submitted that when the co-offender is sentenced a parity question may arise, which could be availed of by the applicant. In those circumstances if the Court was against the applicant’s submissions on this application it was asked to refuse leave to appeal but not dismiss the appeal.

26 The order which I propose is:

(1) Leave to appeal is refused.

27 HALL J: I agree with Hoeben J.

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