Morrison v R

[2009] NSWCCA 211

Reported Decision: 197 A Crim R 103[2010] ALMD 6976

New South Wales

Court of Criminal Appeal

CITATION:	Morrison v Regina [2009] NSWCCA 211
HEARING DATE(S):	11 August 2009
JUDGMENT DATE:	25 August 2009
JUDGMENT OF:	McClellan CJatCL at 1; Grove J at 2; RA Hulme J at 9
DECISION:	Leave to appeal granted and appeal allowed. Re-sentenced to imprisonment for 3 years 3 months with a non-parole period of 1 year 11 months.
CATCHWORDS:	CRIMINAL LAW - sentence - break enter and steal - evaluation of remorse - expired parole but warrant outstanding for breach - whether conditional liberty - whether lesser sentence warranted
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Evidence Act 1995 Criminal Appeal Act 1912
CASES CITED:	Attorney General's Application (No 1) Under s26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327 Hoswell v R [2006] NSWCCA 70 R v Baleisuva [2004] NSWCCA 344 R v Bloomfield (1998) 44 NSWLR 734 R v Brewster [1998] 1 Cr App R 220 R v Castles [2005] NSWCCA 79 R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299 R v Gardner [2005] NSWCCA 383 R v Harris [2007] NSWCCA 130 R v Johnson [2005] NSWCCA 186 R v Kay [2004] NSWCCA 130 R v King [2003] NSWCCA 352 R v Lyons [2000] NSWCCA 337 R v Pitt [2004] NSWCCA 454 R v Proud [2002] NSWCCA 219 R v Radic [2001] NSWCCA 174 R v Richards (1981) 2 NSWLR 464 R v S Hassen [2002] NSWCCA 25 R v Shorten [2005] NSWCCA 106 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Skornia [2000] NSWCCA 422 R v Tran [1999] NSWCCA 109 Weininger v The Queen (2003) 212 CLR 629
PARTIES:	Jamie MORRISON v Regina
FILE NUMBER(S):	CCA 2008/10546
COUNSEL:	Crown: Ms V Lydiard Applicant: Mr M Dennis
SOLICITORS:	Crown: Solicitor for Public Prosecutions Applicant: Legal Aid Commission
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/10546
LOWER COURT JUDICIAL OFFICER:	Coolahan J
LOWER COURT DATE OF DECISION:	7 October 2008

2008/10546

McCLELLAN CJ AT CL
GROVE J
R A HULME J

25 August 2009

JAMIE MORRISON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with R A Hulme J.

2 GROVE J: I have had the advantage of reading the judgment of R A Hulme J in draft. I agree with that judgment and the order proposed by his Honour and wish only to make some brief additional observations about one matter which was canvassed in the appeal in relation to Ground 2 which asserted that the sentencing judge erred in finding that the applicant was on conditional liberty at the time of committing the subject offence.

3 The offence took place on 11 April 2008. In 2006 the applicant had been sentenced in respect of a previous and unconnected matter to imprisonment for 3 years commencing on 11 March 2005 and expiring on 10 March 2008 with a non-parole period of 18 months. He was duly released to parole. On 11 January 2008 the State Parole Authority revoked his parole and a warrant for arrest was issued. The applicant was not shown to be aware of the revocation or the issue of the warrant nor was there any evidence, if it was relevant, that he ought to have been aware of these things. He would have been aware that, as at 11 April 2008, the previous sentence in terms of its imposition was fully expired one month earlier on 10 March.

4 The sentencing judge found that the applicant was, on 11 April 2008, on conditional liberty because, as a result of breaches of parole, the warrant was in existence.

5 In support of that finding the Crown, in the appeal, drew attention to the effect of a revocation order pursuant to the terms of the Crimes (Administration of Sentences) Act 1999, s 171, viz:

“171(1) A revocation order takes effect, or is taken to have taken effect, on the date on which it is made or on such earlier date as the Parole Authority thinks fit.
[subs (1) am Act 94 of 2004 s 3 and Sch 1[1], opn 10 Oct 2005]
(2) The earliest date on which a revocation order may take effect is the date of the first occasion on which it appears to the Parole Authority that the offender failed to comply with the offender’s obligations under the parole order.
[subs (2) am Act 94 of 2004 s 3 and Sch 1 [1], opn 10 Oct 2005]
(3) If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.”

6 In particular, the Crown Prosecutor drew attention to the expression relating to the person being “at large” in s 171 (3). It was sought to ally that expression with what had been said by me in R v King [2003] NSWCCA 352:

“It is true that the tabulation of factors in the guideline judgment in Re Attorney General’s Application No 1 (Ponfield) 1999 45 NSWLR 327 does not include a factor in terms of the offence being committed whilst the offender is at large after escaping from lawful custody. However, the first stated factor of enhanced seriousness is commission of an offence whilst at conditional liberty on bail or parole and it scarcely would need expression that it is, in a scale of seriousness, above that to commit an offence when one is not lawfully at liberty at all.
I recognise that counsel for the respondent does not contend that the status of the respondent as an absconder from detention is not capable of being regarded as an aggravating feature, but to foreclose submissions in the future, I would expressly state that ‘offence committed whilst the offender is unlawfully at large’ should notionally be added to the table in Ponfield .”

7 In King, the offender was “at large after escaping from lawful custody” and the subsequent statement concerning the commission of an offence “whilst the offender is unlawfully” at large is to be understood in that context, that is, an absconder from detention or an escapee who necessarily must be aware of the unlawfulness of his being out of custody. The statement should not be understood as extending to a restriction of which the offender is ignorant.

8 For the above reasons and those expressed by R A Hulme J the argument in support of Ground 2 should be upheld.

9 R A HULME J: Jamie Morrison (“the applicant”) was sentenced by his Honour Judge Coolahan (“the judge”) in the District Court at Newcastle to imprisonment for 3 years 9 months with a non-parole period of 2 years 3 months for an offence of break, enter and steal. This is an offence against s 112(1) of the Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 14 years.

10 There is no issue about the facts of the matter and so they may be briefly stated. On Friday 11 April 2008 at some time in the early afternoon the applicant broke into a house at Merewether Heights when the occupants were not home. He gained entry by tearing a flyscreen on a verandah door, enabling him to unlatch a bolt, and then used some sort of tool to crush the doorknob on a locked door that gave access to the house. The applicant then stole a variety of property from various rooms in the house including a safe fixed to the base of a wardrobe which contained a large amount of jewellery. It was estimated that the total value of property stolen was in excess of $40,000. None of it was recovered.

11 The couple who lived in the house returned at around 3.30pm and discovered the break-in. The wife rang the police and whilst she was on the telephone the husband answered the front door and found the applicant there. The applicant said he was looking for “Johnno” and upon being told that no-one by that name lived there he left. The husband followed him away and saw him enter the driver’s seat of a parked vehicle with an unknown male in the passenger’s seat. The applicant drove off but not before particulars of the registration number were noted. The husband later identified the applicant from an array of twenty photographs.

12 When a police fingerprint officer attended the home the following day a mobile phone that did not belong to the occupants was found in the bedroom from where the safe was stolen. It transpired that the applicant’s mother had lent him this phone in early April and when she later questioned him as to its whereabouts he told her, “You don’t want to get involved in it. I did a job and left it there”.

13 The judge regarded the offence as serious, noting in particular that it involved residential premises and a large amount of personal property including jewellery that had not been recovered. He referred to the guideline judgment of this Court in In the matter of the Attorney General’s Application (No 1) Under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327. There, Grove J said:

[48] A court should regard the seriousness of offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is accumulative effect upon seriousness and the need for appropriate reflection.


(i) The offence is committed whilst the offender is at conditional liberty on bail or on parole.

(ii) The offence is the result of professional planning, organization and execution.

(iii) The offender has a prior record particularly for like offences.

(iv) The offence is committed at premises of the elderly, the sick or the disabled.

(v) The offence is accompanied by vandalism and by any other significant damage to property.

(vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen 1998 72 ALJR 1416.

(vii) The offence is committed in a series of repeat incursions into the same premises.

(viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f) ), it was likely that the premises would be occupied, particularly at night.

(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s105A(1)(c),(d) and (e) ).

(xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation Crimes Act s105A(1)(a) ).

14 The judge noted in the context of his reference to Ponfield the presence of four “aggravating features”, they being that “the offence was committed whilst the offender was on conditional liberty in that a warrant was in existence for his arrest for a breach of parole; some degree of planning was involved; the offender has a prior record for like offences; (and) the value of the items taken and unrecovered is significant”.

15 The judge also took into account a number of mitigating factors. He allowed a discount of twenty-five percent for the utilitarian value of the applicant’s plea of guilty which had been entered in the Local Court. He found the applicant to have “some prospects” of rehabilitation, accepting his stated resolve to deal with drug and alcohol issues that had led to past offending. He accepted that the applicant was remorseful and had acknowledged the loss caused by his offence. In that respect, his Honour went on to say:

“However, his remorse is limited to the extent that it did not involve him, as I understand it, informing the authorities as to the details of the disposal of the stolen items so that some attempt could be made to retrieve them; nor did it extend to the naming of the other person in the motor vehicle.”

16 This comment arose in part from a passage at the end of the applicant’s evidence before the judge:

CROSS-EXAMINATION BY (PROSECUTOR)

Q. What did you do with the stuff you took from the house?
A. I sold it.

NO RE-EXAMINATION

HIS HONOUR

Q. Where did you sell it?
A. Pardon?

Q. Where did you sell it?
A. I can’t remember exactly, it was just to a person.

THE WITNESS WITHDREW

17 The applicant was aged 31 at the time of the offence. He has a criminal history which commenced at the age of 19. The majority of his convictions have been for dishonesty offences, including break, enter and steal. The most serious, however, was a drug supply offence which brought a sentence of imprisonment for three years with a non-parole period of eighteen months from 11 March 2005. The applicant was release on parole on 10 September 2006 with the period of parole due to expire on 10 March 2008. On 11 January 2008, however, the State Parole Authority revoked the parole with effect from 7 December 2007, and ordered that the offender serve the balance of 3 months 3 days. A warrant for the applicant’s apprehension and return to custody was issued and was executed when he was arrested and charged with the present matter on 6 May 2008. The judge turned his mind to this and determined that the sentence he imposed would commence at the end of the period in which the applicant was serving the balance of the earlier parole.

18 The judge took into account that the applicant had been deserted by his family and left to fend for himself as a homeless person around the time he left school at the end of Year 6. He had never had regular employment. Since his return to custody he had reconciled with his mother and siblings.

19 While the applicant was in the community on parole he was attending Narcotics Anonymous meetings. However, he told the judge in his evidence that he fell back into his “old ways” and succumbed to the temptation of an offer of drugs from a person he met at one of those meetings. He said he was using drugs for three or four months prior to the offence. He traced his history of drug use back to the age of 19, coinciding with the commencement of his criminal convictions. He said he had not used drugs since being returned to custody. He had employment in the correctional centre which he took pride in and which had persuaded him to find work and avoid drugs when he is released.

20 The judge found special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period. He accepted the applicant’s resolve to rehabilitate in respect of his drug and alcohol problems meant that he would benefit from a longer period of parole supervision. However he expressly stated that the reduction would not be “very significant”, noting that the non-parole period must still reflect the objective seriousness of the offence. The judge also stated that general deterrence and the protection of the community were paramount considerations in sentencing for this offence.

Proposed grounds of appeal

21 Two grounds of appeal were notified:

1. His Honour erred in finding that the applicant’s remorse was limited because the applicant:

(a) Failed to name the other person in the motor vehicle, and

(b) Failed to inform the authorities of the details of the disposal of the stolen items.

2. His Honour erred in finding that the applicant was on conditional liberty at the time of committing this offence.

Submissions in relation to Ground 1

22 Mr Dennis, counsel for the applicant, pointed to the absence of evidence (a) that the applicant had ever been asked by anyone to identify the other person in the motor vehicle in which he left the scene of the offence, (b) that the applicant would have declined to answer such a question, and (c) that the other person was criminally concerned in the offence. It was thus submitted that there was no evidence to establish an aggravating feature which must be proved beyond reasonable doubt and reference was made to Weininger v The Queen (2003) 212 CLR 629 at [18] – [19].

23 Counsel submitted that the “error” here was similar to that identified in Regina v Baleisuva [2004] NSWCCA 344. In that case the sentencing judge held that there was a lack of genuine contrition because the applicant refused to identify his co-offenders to the police and maintained that refusal in court. Initially he had explained that he did not wish to give up his friends but at the end of his evidence he said that it was because he was afraid for his life. Hoeben J, with whom the other members of the Court agreed, said:

[29] In relation to the applicant’s failure to identify his co-offenders to the police and to the court during the sentencing hearing, I agree that this ought not be taken into account as an aggravating feature or as something which should lead to an adverse finding against the applicant. This is particularly so when the questions were put to the applicant in open court in a situation where a full-time custodial sentence was inevitable.

[30] The applicant’s failure to identify his co-offenders to the police was relevant to the issue of contrition and rehabilitation in that an important part of the applicant’s case on those issues was the cessation of contact with his previous “bad companions” who had led him astray. The fact that he was unwilling to reveal the identity of those persons to the police and may still have regarded them as his friends was relevant to that question. His failure to identify those persons in open court in answer to direct questioning by his Honour involves quite different considerations. In my opinion his Honour erred in taking into account adversely to the applicant on the issues of contrition and rehabilitation the applicant’s refusal to name his co-offenders when asked to do so by his Honour in court. (Emphasis added).

24 In relation to the failure to inform the authorities of the details of the disposal of the stolen property it was submitted that the question asked of the applicant by the representative of the Crown and the judge amounted to requiring the applicant to incriminate himself for the further offence of disposing of stolen property. Mr Dennis suggested, albeit with the wisdom of hindsight, the applicant should have been warned and recourse had to the provisions of s 128 of the Evidence Act 1995. Reliance was also placed upon Baleisuva in support of this part of the first ground.

25 The Crown sought to distinguish Baleisuva upon an interpretation that the error identified was in double counting by the judge in finding a lack of contrition by failing to provide information to the police as well as in court. Further, it was submitted that “the showing of remorse is not just simply about expressing regret but rather involves an offender co-operating with the authorities in explaining what happened to the funds stolen and about other persons involved in the criminal activity”. Counsel for the Crown cited the following passage from the judgment of Dowd J in Regina v Proud [2002] NSWCCA 219 in support of this proposition:

[24] It was submitted by the applicant, that he demonstrated a high level of remorse. The showing of remorse however, is not just simply about expressing regret but rather involves an offender co-operating with the authorities in explaining what happened to the funds and about other persons involved in the criminal activity, in which respect, the applicant did not give assistance to the police.

26 It was submitted that the applicant was given the benefit of a finding of remorse in spite of the fact that there was no positive evidence of the kind referred to in Proud.

Consideration of ground 1

27 In my view the remarks of the judge set out above at [15] should be understood as a statement to the effect that remorse is a matter that can be demonstrated in varying degrees and that in this case there was remorse but it was not as complete as it possibly could be. The judge was simply saying that whilst he was making a finding in the applicant’s favour on the question of remorse, it was possible for it to have been demonstrated to a greater degree. He was making a finding in the applicant’s favour. It was not an adverse finding and certainly not a finding of the presence of an aggravating factor as asserted.

28 Counsel for the applicant only referred to paragraph [29] of the judgment of Hoeben J in Baleisuva but what appears in the following paragraph is important. In the passage I have emphasised his Honour indicated that the failure to provide information to the police was, in the circumstances of that case, relevant to the issue of contrition. The error identified was in basing a finding of lack of contrition, in part, upon the failure to provide such information when asked in open court. Incidentally, I do not accept the submission of the Crown that the error identified can be characterised as one of “double counting”. The real point of distinction between that case and this is that in Baleisuva the judge made a finding of “lack of contrition” whereas here the finding was positively to the contrary.

29 Proud was an ex tempore judgment delivered in a two-judge bench sitting of this Court. The Court may be so constituted at the direction of the Chief Justice which may only be given “if the Chief Justice is of the opinion that the appeal is not likely to require the resolution of a disputed issue of general principle”: s 6AA(2) of the Criminal Appeal Act 1912. Accordingly, what was said in Proud must be read with some circumspection.

30 Remorse shown by an offender for an offence, where established, is one of the mitigating factors listed in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 that a court is required by s 21A(1) to take into account. It may be established upon proof on the balance of probabilities of the two matters specified in s 21A(3)(i):

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

31 Accordingly, an offender is entitled to a finding in his or her favour of remorse upon proof of both of those matters. The absence of the additional matters mentioned in the passage quoted above at [25] from the judgment of Dowd J in Proud does not disentitle an offender to this mitigating factor. However, in my opinion, where those additional matters are established an offender, generally speaking, would be entitled to expect that the weight to be attributed to the mitigating factor will be greater. Such an offender, again generally speaking, would also expect weight to be given to the additional mitigating factor of having assisted law enforcement authorities (s 21A(3)(m) and s 23) and, if that is so, a sentencing judge would undoubtedly need to exercise caution in not double counting the significance of the issue.

32 Nothing I have said should be taken as meaning that an offender who establishes both of the matters in s 21A(3)(i) but does not provide information to law enforcement authorities should have the mitigating value of remorse reduced. I am simply making the point, as I believe the judge in this case was making, that remorse can have even greater value if matters over and above those in s 21A(3)(i) are established.

33 I would reject ground 1.

Submissions in relation to ground 2

34 Counsel for the applicant drew attention to the following passage in the judge’s sentencing remarks:

“I am of the view that the offender was on conditional liberty. Whilst his parole period had expired, a warrant was in existence for his arrest because of his breaches of parole”.

35 His Honour made a similar remark earlier in his judgment when referring to the factors listed in Ponfield (supra).

36 The judge was informed by the solicitor appearing for the Crown that the revocation of parole was “for a failure to maintain proper contact throughout his period of parole and also for the use of drugs ... indicated by certain tests carried out by the Probation and Parole office”.

37 Mr Dennis submitted that the present offence was committed on 11 April 2008 at a time when the parole had been revoked and a warrant issued. There was no evidence that the applicant was aware of the revocation of his parole or of the existence of the warrant. Moreover, it was submitted that there was no evidence that the applicant was aware that his contact with the Probation and Parole Service had been regarded as unsatisfactory and that tests had revealed the use of illicit drugs. As a result, it had not been established that the applicant had any reason to think otherwise than that his parole had expired on 10 March 2008, a month before the offence. Accordingly, it was submitted that there was no evidence that the applicant was “taking advantage” of conditional liberty and engaging in a “betrayal” or “repudiation” of the opportunity for rehabilitation at the time of committing the further offence, central features of what aggravates the further offence. In support of the latter, reference was made to R v Richards (1981) 2 NSWLR 464 at 465, R v Tran [1999] NSWCCA 109 and R v Cicekdag [2004] NSWCCA 357; (2004) 150 A Crim R 299 at [52].

38 It was conceded on behalf of the applicant that the behaviour that led to the revocation of parole would be relevant to an assessment of the prospects of rehabilitation.

39 The Crown submitted that the applicant would have been aware that by using drugs for three to four months prior to the offence and by not maintaining contact with his parole officer he was in breach of his parole. As a counter to the contention that the parole was at an end because it had been revoked and that all that remained was for the warrant to be executed the Crown submitted that the applicant was “at large”, wanted for arrest for breach of parole. Reference was made to the provisions of s 171 of the Crimes (Administration of Sentences) Act 1999, subsection 3 of which states:

(3) If an offender is not taken into custody until after the day on which the revocation order takes effect, the term of the offender’s sentence is, by this subsection, extended by the number of days the person was at large after the order took effect.

40 Thus, it was submitted that the applicant’s sentence for the drug supply offence had been extended and he was “at large” at the time of the offence on 11 April 2008.

41 The Crown referred the Court to Regina v King [2003] NSWCCA 352. That case concerned a Crown appeal against inadequate sentences committed after the respondent had absconded from a juvenile detention facility whilst awaiting the hearing of an appeal against sentence. The Crown contended that he was on conditional liberty at the time of the offences. The respondent took issue. Grove J, with whom the other members of the Court agreed, said:

[38] It is true that the tabulation of factors in the guideline judgment in Re Attorney General’s Application No 1 (Ponfield) 1999 45 NSWLR 327 does not include a factor in terms of the offence being committed whilst the offender is at large after escaping from lawful custody. However, the first stated factor of enhanced seriousness is commission of an offence whilst at conditional liberty on bail or parole and it scarcely would need expression that it is, in a scale of seriousness, above that to commit an offence when one is not lawfully at liberty at all.

[39] I recognise that counsel for the respondent does not contend that the status of the respondent as an absconder from detention is not capable of being regarded as an aggravating feature, but to foreclose submissions in the future, I would expressly state that “offence committed whilst the offender is unlawfully at large” should notionally be added to the table in Ponfield .

42 The Crown conceded that the finding of the judge that the applicant was on conditional liberty “may not be technically correct” but nevertheless submitted that “his status of being ‘at large’ was equivalent to his being on conditional liberty”.

Consideration of ground 2

43 The concession by the Crown is clearly correct. There is an abundance of authority, including those referred to by the applicant, as to what amounts to “conditional liberty” and the rationale for it being an aggravating factor when an offence is committed whilst subject to it. It is convenient for present purposes to refer to the statement by Grove J in Cicekdag (supra) where the issue was whether a community service order constituted conditional liberty:

[7] The conditional liberty of a person subject to parole, bail or recognizance is different in the procedures to be implemented to effect the consequences of breach or failure to comply with requirements, but the reasons that the commission of an offence whilst subject to any form of conditional liberty (including community service order) as a matter of aggravation are constant. At the very least, there is an abuse of the freedom granted by taking the opportunity to commit further crime: R vRichards (1981) 2 NSWLR 464 and, insofar as the non custodial penalty provided an opportunity for rehabilitation, the subsequent offence demonstrates failure and the undermining of a previously implicit expectation of such rehabilitation: R v Vranic unreported NSWCCA 7 May 1991

44 I do not accept the submission by the Crown concerning the applicant being “at large”. It involves an interpretation of s 171 of the Crimes (Administration of Sentences) Act to the effect that when parole is revoked and an offender remains at large the sentence is extended beyond the date it was due to expire and so the person should be regarded as being in a situation analogous to an escapee until the arrest warrant is executed. In my view a correct understanding of s 171(3) is that the sentence simply stops running from the date the revocation is ordered to take effect and is re-started upon the offender’s return to custody. The term “at large” is simply a reference to the person not being in custody. It does not convert the person into someone who is to be regarded as in the community under a form of conditional liberty.

45 I accept, however, that the fact that a person has breached parole may be relevant in other ways, including to the assessment of rehabilitation prospects and the need for personal deterrence.

46 I would uphold ground 2.

Section 6(3) Criminal Appeal Act

47 The question remains as to whether some other sentence was warranted in law and should have been passed. Identification of error is not the trigger for the intervention of this Court: Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [79]. In Regina v Johnson [2005] NSWCCA 186, Hunt AJA described the task of the Court in this situation as follows:

[34] … In cases where the error is apparent, the Court must first consider whether the sentence imposed is outside the appropriate range for the circumstances of the particular case unaffected by that error and, if it is, determine for itself what sentence is warranted in law in substitution for that sentence.

48 Some two months after the applicant was sentenced in the District Court in the present matter he appeared in the Local Court at Bathurst and was sentenced to a fixed term of imprisonment for 18 months for another offence of break, enter and steal. That sentence was specified to commence on 1 December 2008 and conclude on 31 May 2010 and so it was totally subsumed within the non-parole period of the District Court sentence. The Court was not provided with any information concerning that offence or the reason why the magistrate ordered that it be served entirely concurrently with the pre-existing sentence. A question was raised during the course of the hearing of the application whether this subsequently imposed sentence was relevant to the Court’s determination of the s 6(3) issue. I am of the view that it is not. The issue, as indicated above, is whether the District Court sentence is “outside the appropriate range for the circumstances of the particular case unaffected by error”. The subsequent Local Court sentence is not part of the “circumstances of the particular case”. This Court should not refrain from intervention in the present case if the sentence is found to be “outside the appropriate range” in order to remedy what, at least on the face of it, appears to have been an unduly generous exercise of sentencing discretion in the Local Court in the other case.

49 The parties did not attempt to provide the Court with a review of comparable cases and this is perhaps understandable. It was observed in R v Harris [2007] NSWCCA 130 that “because of the number of offences of the nature presently under consideration, it probably would have been unproductive for this to have been done”. That case concerned a Crown appeal against inadequate sentences imposed for offences against s 112(2) and s 154A but the comment is equally apt. The authors of the joint judgment (McClellan CJ at CL, Hulme and Hislop JJ) found some utility in examining sentencing statistics maintained by the Judicial Commission of NSW.

50 The statistics currently available from the Judicial Commission for offences against s 112(1) show sentences for break, enter and steal separate from breaking and entering and committing some other serious indictable offence. Specifying the criteria relevant to the present case of a single offence, no Form 1 matters, prior convictions of the same type with custody, and a plea of guilty produces the statistics for 169 cases. The total terms of the sentences, where full-time imprisonment was imposed, range from 5 years down to 6 months or less. Eighty percent of sentences are in the range 12 months to 3 years with the median falling at 2 years 6 months. The sentence in the present case can thus be seen to fall within the top 7 percent of sentences imposed. I acknowledge that sentencing statistics must be considered with caution: Regina v Bloomfield (1998) 44 NSWLR 734. One of the points identified there by the Chief Justice following his review of relevant authority was that “Statistics are least likely to be useful where the circumstances of the individual instances of the offence vary greatly, such as manslaughter” (at 739E). In Ponfield (supra), Grove J declined to specify a guideline in quantitative terms, citing (at [43]) the principal reason for this as being:

“.. the great diversity of circumstances in which the offence is committed. I have not found it possible to identify a useful typical case of the character which the Court did identify in R v Henry [(1999) 46 NSWLR 346](at 380 [162])”.

51 Then, after referring to some general observations by Lord Bingham CJ in R v Brewster [1998] 1 Cr App R 220 at 225, he added:

[46] Not only, as his Lordship perceived, can seriousness vary almost infinitely from case to case but so can relevant circumstances to be taken into account in moulding an appropriate sentence for a particular offender. The Court of Appeal determined that the offence was such that cases did not lend themselves to the derivation of precise arithmetical tariff. Likewise I have concluded that s 112(1) does not involve cases which lend themselves to specification of starting point or range.

52 Whilst acknowledging the “great diversity of circumstances in which the offence is committed” I am of the view that the statistical material is of some utility in that it demonstrates that the sentence imposed in the present case was at the upper end of the range of sentences imposed in a significant number of other cases involving the same offence with some important similar characteristics. To take the analysis one further step I have reviewed a number of cases bearing some similarity with the circumstances of the present case. All of the cases involved sentencing for a single count of break, enter and steal.

53 In Regina v Lyons [2000] NSWCCA 337 the applicant was sentenced to imprisonment for 2 years 8 months with a minimum term of 2 years following an early plea of guilty. He had broken into a domestic home by forcing open a rear door. He stole a variety of property estimated to have a value of $5,500. He was arrested later the same day and assisted police in recovering all of the property. Lyons was a 38 year old man with a longstanding addiction to heroin and other drugs and had a commensurately long criminal history including convictions for armed robbery and break, enter and steal. The appeal was dismissed.

54 In R v Skornia [2000] NSWCCA 422 the applicant was sentenced to imprisonment for 4 years with a minimum term of 2 years following a plea of guilty. The break in was to domestic premises and the property stolen had a value of $27,000 although some $7,000 worth was recovered. The applicant had not previously been charged with break, enter and steal but had prior convictions for dishonesty and other offences that was described as demonstrating “a disregard for his obligations in a civilised community”. Leave to appeal, including on a ground alleging manifest excess, was refused.

55 In R v Radic [2001] NSWCCA 174 the applicant was sentenced to imprisonment for 3 years 4 months with a non-parole period of 2 years 6 months following a plea of guilty. The break in was to a shed and the property stolen amount to a drill. (Ordinarily such an offence would be dealt with in the Local Court but it had also been alleged, but ultimately not proved that a large quantity of jewellery had been stolen). The applicant was 25 years of age with an addiction to heroin and a criminal history dating back to when he was aged 19. His prior convictions included offences of break, enter and steal. At the time of the offence he was on bail. At the time of sentence the applicant was in protective custody and was experiencing ill-health. The appeal was allowed with the sentence being reduced to one of 3 years with a non-parole period of 1 year 9 months.

56 In Regina v S Hassen [2002] NSWCCA 25 the applicant was sentenced to imprisonment for 4 years with a non-parole period of 3 years following a verdict of guilty at trial. (For the purposes of comparison, with an early plea of guilty as in the present case the sentence might have been in the order of 3 years with a non-parole period of 2 years 3 months). The break in was to a house achieved by removing a glass window at the rear. Property to the value of about $1,000 was stolen. The applicant was 33 years of age. He had a criminal history which began at the age of 13 and mainly involved repeated offences of dishonesty that was described as “truly appalling”. At the time of the offence the applicant was subject to a two year recognisance. The sentence was regarded as “high, even towards the top of the range” but not outside the discretion of the sentencing judge. The appeal was dismissed.

57 In R v Kay [2004] NSWCCA 130 the applicant was sentenced to imprisonment for 2 years 9 months with a non-parole period of 1 year 6 months following a plea of guilty. The break in was to a duty free store within a shopping centre. A number of glass cabinets in the store were smashed and property with a total value of $19,300 was stolen and never recovered. The applicant was on bail for a prior break, enter and steal offence. The offence occurred in October 2001 but the applicant was not charged until April 2003 when the results of DNA testing became available. In the meantime he had had served a sentence for other matters. The judge was satisfied that the applicant was under the influence of illicit drugs at the time of the offence but had since taken steps both within and outside the gaol system to rehabilitate himself. The sole issue on the application for leave to appeal was concerned with the delay between offence and sentencing. The appeal was dismissed.

58 In Regina v Pitt [2004] NSWCCA 454 the applicant was sentenced to imprisonment for 18 months with a non-parole period of 9 months following a plea of guilty. The break in was to domestic premises in the company of a co-offender and an amount of cash totalling $14,230 was stolen. The applicant and co-offender were arrested later the same day and police recovered $13,800 of the proceeds. The applicant had a minor record with no matters of a similar kind. She had a problem with alcohol abuse and had endured violent personal relationships. Four children had been removed from her care by the Department of Community Services and she had the sole care of a fifth child, aged twelve months. The co-offender had earlier been sentenced in identical terms by another judge. The application for leave to appeal focussed upon a comparison between the respective cases. The appeal was dismissed.

59 In R v Castles [2005] NSWCCA 79 the applicant was sentenced to imprisonment for 3 years with a non-parole period of 2 years 3 months following a plea of guilty. The break in was to domestic premises where “a significant quantity of jewellery and some electrical equipment” was stolen. There was an additional offence of break, enter and steal taken into account, it also involving domestic premises with the proceeds of the offence having a value of $10,000. The applicant was aged almost 27 at the time of the offence. He had an extensive drug habit since the age of 12 but had ceased heroin use at age 23. His general background was less than satisfactory. There was a record of having committed similar offences which was the sole aggravating factor. The applicant had been assessed as having a level of intelligence falling within the “well below average” or borderline” range. Error was established in the sentencing judge allowing a discount of only 14% for an early plea of guilty. The appeal was allowed. In re-sentencing the Court applied the same starting point of 3 years 6 months but reduced it by 25%, resulting in a sentence of 2 years 8 months with a non-parole period of 1 year 8 months.

60 In R v Shorten [2005] NSWCCA 106 the applicant was sentenced to imprisonment for a fixed term of 3 years following a plea of guilty. The sentencing judge did not set a non-parole period at the specific request of the applicant. The break in was to domestic premises. The applicant was sentenced on the basis that he had stolen a large quantity of jewellery valued at about $54,000. He had twenty prior convictions for break, entering and stealing and numerous other convictions for offences of dishonesty. He had been released from custody on parole only a few days before committing the offence. The applicant was aged 42 years. He gave evidence that the many years he had spent in prison had led to him becoming institutionalised. The sole ground of appeal concerned delay between the offence and sentencing by reason of the time taken to obtain the results of a DNA analysis of blood left at the crime scene. The appeal was dismissed.

61 In R v Gardner [2005] NSWCCA 383 the applicant was sentenced to imprisonment for 2 years with a non-parole period of 1 year following a plea of guilty (25% discount). The break in was to domestic premises, achieved by damaging a screen and the front doors. Property in the form of antique items to the value of $15,000 was stolen from the elderly occupants who were not at home at the time. No property was recovered. The sentencing judge described the offence as “a very serious offence indeed”, involving as it did “some degree of planning” and being committed whilst the applicant was on conditional liberty. The applicant was aged 27 at the time of the offence which occurred in December 1999. She was not charged until some years later. She had a serious problem with drugs over many years and what was described as “an extensive criminal history including among other matters, offences of dishonesty and a number of property type offences”. The judge accepted that the applicant had ceased drug use and criminal behaviour in 2002. It was contended that the judge had erred by failing to take a number of matters into account and that he should have suspended execution of the sentence. The appeal was dismissed.

62 In Hoswell v R [2006] NSWCCA 70 the applicant was sentenced to imprisonment for 2 years 8 months with a non-parole period of 2 years following a plea of guilty (25% discount). The break in was to a home unit in daylight hours. Property valued at in excess of $2,000 was stolen. The applicant was arrested ten months later. He was aged almost 28 at the time of the offence and was described as having a “lengthy criminal history involving numerous (on the sentencing judge’s count, 44) offences of the same or similar kind to that the subject of the present application”. He was the product of a dysfunctional childhood, experienced periods of homelessness from the age of 12, commenced the abuse of alcohol at 14 and drugs from 16. He had an “intensive” heroin habit by the age of 21 and began using cocaine at 23. He was in protective custody. He had once breached a periodic detention order and four times breached parole orders. Whilst there was disagreement as to some of the grounds of appeal, the Court was unanimous that the sentence was not manifestly excessive. The appeal was dismissed. Spigelman CJ added (at [16]) that he regarded the sentence as “at the bottom of the permissible range”.

63 This is by no means an exhaustive review of comparable cases of sentencing for a single offence of break, enter and steal. Nevertheless, this review and the statistical material I have earlier referred to is sufficient for me to conclude that the sentence imposed upon the applicant in the present case is outside the appropriate range for the circumstances of the case unaffected by the error identified under ground two.

64 In determining the appropriate sentence I have had regard in particular to the following features – (1) the offence is a serious one, Parliament having prescribed a maximum penalty of imprisonment for 14 years; (2) it involved breaking in to a domestic dwelling; (3) the prevalence of the offence and the need for general and specific deterrence and protection of the community; (4) the features that enhanced the seriousness of the matter, being the substantial value of property stolen and unrecovered, and the applicant’s prior record, particularly for like offences; (5) the applicant’s remorse; (6) the applicant’s age, dysfunctional upbringing and history of drug addiction along with his current family support; (7) the judge’s qualified finding as to rehabilitation prospects; and (8) the early plea of guilty warranting the discount assessed by the judge of twenty-five percent.

65 The finding by the judge of special circumstances leading to a non-parole period of sixty percent of the total term should be maintained.

66 I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. The sentence imposed in the District Court on 7 October 2008 be quashed and in lieu thereof the applicant be sentenced to a term of imprisonment comprising a non-parole period of 1 year 11 months to commence on 9 August 2008 and expire on 8 July 2010 with a balance of the term of the sentence of 1 year 4 months to expire on 8 November 2011. The earliest date the applicant will be eligible for release on parole is 8 July 2010.

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