Leigh Brown v The Queen

[2014] NSWCCA 335

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Leigh Brown v R [2014] NSWCCA 335
Hearing dates:	6 November 2014
Decision date:	23 December 2014
Before:	Beazley P at [1] Hidden J at [2] RS Hulme AJ at [33]
Decision:	Leave to appeal granted, appeal allowed, sentence passed in the District Court quashed, in lieu, applicant sentenced to an aggregate term of 6 years, commencing on 31 August 2012 and expiring on 30 August 2018, with a non-parole period of 2 ½ years, commencing on 31 August 2012 and expiring on 28 February 2015.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - aggregate sentence for various offences - offender with long history of drug abuse commencing as a child - defeated addiction - good prospects of rehabilitation
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Category:	Principal judgment
Parties:	Leigh Brown (applicant) Regina (Crown)
Representation:	Counsel: H White (applicant) P Ingram SC (Crown) Solicitors: John Krajcik (applicant) J Pheils - Solicitor for Public Prosecutions
File Number(s):	2012/27388
Decision under appeal	Date of Decision: 2013-09-19 00:00:00 Before: Colefax DCJ File Number(s): 2012/27388

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of Hidden J. I agree with his Honour's reasons and the orders he proposes.

1. HIDDEN J: The applicant, Leigh Raymond Brown, pleaded guilty in the District Court to the following counts:

1. Aggravated break, enter and commit a serious indictable offence (knowing there was a person present), an offence under s 112(2) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years;

2. Supplying a prohibited drug (17.3 grams of methylamphetamine), an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985, carrying a maximum sentence of 15 years imprisonment.

1. In respect of each count the applicant asked the sentencing judge to take into account on sentence matters on a Form 1. In relation to the first count, these were offences of larceny of a car trailer and receiving stolen property (a Holden vehicle). In respect of the second count, these were offences of possessing a prohibited drug (1.96 grams of amphetamine) and possessing a prescribed restricted substance (anabolic steroid - testosterone/deca). In addition, he was dealt with for a number of related offences under s 166 of the Criminal Procedure Act 1986. These were two offences of stealing a motor vehicle and two offences of possessing a shortened firearm.

1. After allowing a 25% discount of sentence in recognition of the pleas of guilty, the sentencing judge imposed an aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 3 months, dating from the day of his arrest, 31 August 2012. The indicative sentences for the principal offences, discounted for the pleas of guilty, were as follows:

Count 1 (Aggravated break and enter), taking into account the matters on the Form 1 - 4 years and 10 months with a non-parole period of 3 years and 8 months;

Count 2 (Supplying prohibited drug), taking into account the matters on the Form 1 - 3 years and 4 months.

1. In respect of the matters dealt with under s 166 of the Criminal Procedure Act, again after discount, the indicative sentences were:

Stealing the Holden R8 - 2 years and 3 months;

Stealing the Holden Commodore - 1 year and 6 months;

Each of the charges of possessing shortened firearms - 1 year and 6 months.

1. His Honour noted that, if he had not passed an aggregate sentence, he would have imposed concurrent sentences on the two firearms offences but those sentences would have been partly accumulated upon the other sentences, for which there would themselves have been some partial accumulation.

Facts

1. The facts of the offences, in chronological order, are helpfully summarised in the written submissions for the applicant, as follows:

"On 1 November 2011, the applicant received a Holden vehicle registration BUA00M knowing it to have been stolen (Form 1). The vehicle was subsequently stripped and the applicant was involved in telephone conversations relating to the sale of the vehicle and its various parts. The vehicle was recovered by the Police on 4 November 2011.

Between 9pm on 27 November 2011 and 7:30am on 28 November 2011, the applicant broke and entered premises at Wattle Grove (Count 1). At the time, he knew persons were present inside the premises. He stole a wallet containing $300, a drivers licence, personal cards and car keys relating to a Holden R8 HSV registration number MP2802. He used the keys to steal this vehicle which was parked in the driveway (s.166 certificate).

On the same evening, the applicant attended premises in Moorebank where he took a trailer registration number V70355 (Form 1).

On the same evening, the applicant stole a VT Holden Commodore from premises at Milperra (s.166 certificate). This vehicle had been built for the purpose of drag racing.

The three vehicles were taken to premises in Ambarvale.

On the evenings of 28 and 29 November 2011 the applicant was involved in communications relating to the sale of the Holden R8 and the VT Holden Commodore.

On 29 November 2011, the Police executed a search warrant at premises in Ambarvale and located the VT Holden Commodore and the trailer.

In early December 2011, the Police intercepted a number of calls between the applicant and another male person suggestive of street-level drug supply.

On 30 December 2011, the Police executed a search warrant at the applicant's residence at Rosemeadow. The Police located a shortened shotgun loaded with four shells wrapped in a towel at the bottom of the applicants' bed (s.166 certificate) and a shortened .308 Winchester rifle loaded with five cartridges located in a backpack (s.166 certificate). Neither firearm was found to be in working order.

The police also located 17.13 grams of methyl-amphetamine at 12.5% purity (Count 2), 1.96 grams of amphetamine (Form 1) and six glass vials of testosterone (Form 1)."

1. As to the offence of aggravated break and enter, his Honour found that the applicant was aware that at least one person was in the premises at the time, although that person was asleep in a bedroom. He placed that offence and the four offences on the s 166 certificate at the lower end of the scale for offences of that kind. As to the offence of supplying methylamphetamine, he noted that the amount of the drug was three times the indictable quantity, but accepted that "the deemed supply" of the drug was largely to support the applicant's own habit. He found that offence to be "towards the lower end of the range." I shall turn later to his Honour's assessment of the firearms offences, which is the subject of one of the grounds of appeal.

Subjective case

1. The applicant was 28 years old at the time of the offences, and is now 31. He has a substantial criminal history, commencing when he was only 14 years old. It comprises offences of dishonesty and of violence, together with drug offences and driving offences. He had previously served terms of imprisonment, and on a number of occasions been dealt with by bonds or suspended sentences.

1. His background is unfortunate. His Honour noted that he had a troubled upbringing. His father was violent towards his mother and his older brothers. His mother subsequently had other partners, but it seems that they were not desirable role models for him. Moreover, his mother was a heroin addict. He suffered from ADHD and had a limited education.

1. He started smoking cannabis at the age of 9 or 10, under the influence of older boys with whom he was associating. From the age of about 14 he commenced using amphetamine, and thereafter developed a pattern of polysubstance abuse. At stages he used methamphetamine, ecstasy and LSD, and from the age of 21 he used cocaine and began to drink alcohol.

1. He was using drugs at the time of the offences. At that time he was also suffering from depression and symptoms of post-traumatic stress disorder, arising from a violent incident some years earlier in which he was shot in the leg. His Honour noted that he had had no legitimate employment up to that time, surviving and maintaining his drug habit by committing "a significant number of criminal offences."

1. After the offences, committed in late 2011, he fled to Queensland to avoid arrest. It was there that he was arrested on 31 August 2012. Significantly, however, during his sojourn in Queensland he ceased to use drugs, without professional help, and obtained employment as a labourer. He has remained drug free since. In the later part of 2011, before he committed the present offences, he had formed a relationship with a woman who, apparently, is law abiding, drug free and does not drink alcohol. She went with him to Queensland. The relationship endures, and in January 2013 she gave birth to their child, a daughter.

1. Some years previously, his mother had defeated her drug addiction with the help of her current partner, and they moved to a rural area. The applicant has re-established a relationship with her. He told a psychologist, whose report was in evidence, that upon his release he wanted to move to that area so as to be near his mother, to obtain work, and to find accommodation with his partner and their daughter. He also said that he wanted to develop a relationship with his daughter as a supportive father and role model. To the psychologist he expressed remorse for his crimes, as he did in evidence in the sentence proceedings.

1. The psychological report was prepared in July 2013. The psychologist expressed the opinion that, in the light of the applicant's long history of substance abuse and anti-social associates, he needs long term assistance and support. She recommended his participation in drug programs while in custody, and an outpatient rehabilitation program upon his release, together with a period of supervision by Community Offender Services to monitor his substance use through regular urinalysis or breathalyser screening.

1. His Honour noted this progress towards rehabilitation in his remarks, adding that "notwithstanding the two year period that he has not used drugs, the fact that in the preceding twenty years he had regularly used a wide range of drugs means that his prospects of rehabilitation must at this stage be somewhat guarded."

1. About two months after being taken into custody, the applicant was placed on protection after having been assaulted and having been threatened with violence because one of his brothers was proposing to give evidence on behalf of the Crown in unrelated proceedings. In the event, those proceedings had been completed without the brother having to give evidence. Nevertheless, the applicant was still on protection at the time he was sentenced, although his Honour was not persuaded that that was likely to remain the case for any significant period after sentence was imposed.

The application

1. Counsel for the applicant, Mr White, argued three grounds of appeal, the third being that the aggregate sentence is manifestly excessive. In argument on that third ground an issue was raised which persuades me that this court should intervene and re-sentence the applicant. I shall return to this but, given that conclusion, it is sufficient to refer to the other two grounds only briefly.

1. The first ground is that the indicative sentence for one of the related matters dealt with under s 166 of the Criminal Procedure Act exceeds the maximum sentence available. This was the offence of stealing the Holden R8, for which his Honour indicated a sentence of 2 years and 3 months. His Honour's approach to that sentence was governed by s 168(3) of the Criminal Procedure Act, which provides:

"(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court."

The effect of s 267(2) of the Act is that the maximum sentence the Local Court could have imposed for that offence was imprisonment for 2 years.

1. In this court the Crown prosecutor conceded the error, but submitted that it was not material because it made no difference to the aggregate sentence imposed. As this court is to re-sentence, there is no need to resolve that issue.

1. The second ground relates to a finding his Honour made concerning the two related offences of possessing firearms. The applicant told the psychologist that he had them because he had been threatened by someone, that he knew they were not in working order, but he wanted them so as to be able to threaten people for his self-protection. He said that the bullets came with the firearms, and he had no intention of repairing them so as to be able to fire them. His Honour accepted that account, but was not persuaded "on the balance of probabilities that they were totally unconnected with the supply of prohibited drugs" by the applicant. It is that finding which is challenged by this ground.

1. It seems to me that that finding was open but, again, it is unnecessary to resolve the issue. For the purpose of re-sentence I also accept that the applicant knew that the weapons were not in working order and kept them for his own protection. However, it is most likely that his fear of being threatened arose from the illicit drug milieu in which he moved at the time.

1. Mr White submitted that the aggregate sentence is manifestly excessive, as are each of the indicative sentences. The thrust of this ground is his argument, which I accept, that his Honour failed to give appropriate weight to the origin of the applicant's drug addiction and his achievement in defeating it in recent years. In the event, this was treated by the parties as a discrete issue to which argument was directed. My finding that his Honour did fall into error in that respect enlivens this court's discretion to intervene and re-sentence the applicant. A general ground of manifest excess need not be determined.

1. It is clear, and his Honour accepted, that the applicant's pattern of offending had its origin in his disturbed background and the drug addiction attributable to it. It is notable that that addiction commenced at the age of 9 or 10, an age at which his use of drugs could hardly be classified as a personal choice. There then ensued a period of consistent drug abuse and associated criminal activity. Yet after his flight to Queensland at the end of 2011, he defeated his drug addiction through his own efforts, has remained drug free, and appears to be on the path to rehabilitation.

1. Mr White referred to the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111, 46 NSWLR 346. The Chief Judge dealt with the relevance of drug addiction to sentence in a well-known passage at [273] (397-8). After dealing with the principles governing the bearing of addiction upon the offender's culpability for the crime in question, his Honour continued:

"... (c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (eg Lewis Court of Criminal Appeal New South Wales 1 July 1992);

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf Hodge Court of Criminal Appeal New South Wales 2 November 1993; and Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the "cross roads": Osenkowski(19882) 5 A Crim R 394."

1. Simpson J agreed with Wood CJ at CL on this issue (at [348]), adding some observations of her own. At [336] (410), her Honour noted that in some cases drug addiction may have its origins "in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character." She continued:

"In other cases, I have no doubt, it has its origins in social disadvantage, poverty, emotional, financial, or social deprivation, poor educational achievement, unemployment, and the despair and loss of self-worth that can result from these circumstances or any combination of them. In this court one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease."

1. Later in her judgment, her Honour said at [344] (412):

"Where circumstances such as those I have mentioned (or others equally deserving of compassion) have been the foundation for the drug addiction, and part of the causal chain leading to the commission of crime, then it would be appropriate, in my view, for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case. In an appropriate case, rehabilitation might outweigh other sentencing factors. In order for those circumstances to provide a reason for reduction of sentence, however, there would need to be strong evidence of real progress towards actual rehabilitation. I would not wish to be understood to be saying other than that leniency of the kind to which I refer depends heavily upon demonstrated (as distinct from theoretical) rehabilitative prospects."

1. These observations are apposite to the present case. True it is, as the Crown prosecutor in this court pointed out, that the applicant stood for sentence for a persistent course of criminal activity, against the background of an unfavourable criminal history. Further offences were taken into account when he was sentenced for both of the principal offences. Nevertheless, there was force in the submissions of counsel appearing for him in the sentence proceedings that he was "a classic product" of his childhood and, at the time of sentence, was "at a cross-roads."

1. It does not appear from his remarks on sentence that his Honour approached the matter in this way. This is a case in which the applicant was entitled to a measure of leniency for the reasons articulated by Simpson J in the passage from her judgment in Henry which I have quoted in [27] above. Equally, it is a case in which, to adopt her Honour's words in the passage last cited, it was "appropriate...for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case." There was also "strong evidence of real progress towards actual rehabilitation." That said, while I myself might assess his prospects of rehabilitation as better than "somewhat guarded", it is important that a sentence be structured so as to afford him the opportunity of a lengthy period of conditional liberty, subject to supervision and the sanction of parole. To that end, like his Honour, I would find special circumstances.

1. While taking these matters into account, it remains necessary to pass a sentence which adequately reflects the applicant's criminality. However, the non-parole period, while also meeting the need for an appropriate measure of punishment and retribution, must recognise the progress he has made towards defeating his drug addiction and encourage him to remain on that rehabilitative path. The balance of term I propose would provide for a lengthy period of supervision and maintain the sanction of parole for a further period thereafter.

1. For the purpose of sentence, we received an affidavit of the applicant of 6 November 2014, and were assisted by enquiries made by the Crown prosecutor's instructing solicitor about his present custodial status. Even though his brother was not required to give evidence in the proceedings to which I have referred, he is still on protection and likely to remain so. He has completed a drug rehabilitation program, and remains drug free. He has also completed some educational programs to improve his employment prospects. His intention upon his release is to live with his mother, together with his partner and child, until he is able to obtain his own housing.

1. Accordingly, the court should intervene and resentence the applicant. I would grant leave to appeal, allow the appeal, quash the sentence passed in the District Court and, in lieu, sentence the applicant to an aggregate term of imprisonment for 6 years, commencing on 31 August 2012 and expiring on 30 August 2018, with a non-parole period of 2 ½ years, commencing on 31 August 2012 and expiring on 28 February 2015. I would indicate that, if an aggregate sentence had not been imposed, I would have passed the following sentences:

• Count 1 (aggravated break and enter), taking into account the matters on the Form 1 - 4 years with a non-parole period of 2 years;

• Count 2 (supplying a prohibited drug), taking into account the matters on the Form 1 - 2 ½ years;

• On each of the offences on the section 166 certificate - 15 months.

1. RS HULME AJ: I agree with the orders proposed by Hidden J and with his Honour's reasons.

1. I would, however, add this. I do not regard the sentence imposed at first instance as manifestly excessive as that expression is usually understood. Indeed, given the extent of the applicant's criminality for which it was imposed, it was arguably lenient.

1. However, under the aegis of the "manifestly excessive" ground, and with the acquiescence of the Crown, were raised the issues of the circumstances in which the applicant had become drug addicted and his achievement in apparently overcoming that addiction in conjunction with obtaining, for the first time in his life, regular employment.

1. For someone who was in the applicant's situation, his achievements are remarkable. They lessen greatly the weight needing to be given to personal deterrence, rehabilitation and the protection of the community in determining the length of the applicant's non parole period. No doubt his reform has its own rewards but it enables the Court also to provide some reward.

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Decision last updated: 23 December 2014