NEWBURN Ronald Neville v R - [2008] NSWCCA 57

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
NEWBURN Ronald Neville v R [2008] NSWCCA 57

FILE NUMBER(S):
2007/2904

HEARING DATE(S):
19 February 2008

JUDGMENT DATE:
14 March 2008

PARTIES:
Ronald Neville Newburn
Regina

JUDGMENT OF:
McClellan CJ at CL Hulme J Mathews AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/31/0385

LOWER COURT JUDICIAL OFFICER:
Coolahan

LOWER COURT DATE OF DECISION:
3 April 2007

COUNSEL:
T Gartleman (Applicant)
P Ingram (Crown)

SOLICITORS:
Legal Aid Commission
Director of Public Prosecutions

CATCHWORDS:
CRIMINAL LAW - Sentencing - Plea of Guilty involving numerous offences - Lengthy criminal record - Sentences not excessive - No error in sentencing judge's approach

LEGISLATION CITED:
Crimes Act 1900

CASES CITED:
R v Ellis (1986) 6 NSWLR 603

TEXTS CITED:

DECISION:
Leave to appeal granted.
Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2007/2904
McCLELLAN CJ AT CL
HULME J
MATHEWS AJ
Friday, 14 March 2008

Ronald Neville NEWBURN v R

Judgment

McCLELLAN CJ AT CL: I agree with Mathews AJ.
HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Matthews AJ and the orders proposed by her Honour. I agree with her Honour’s Reasons and proposed orders. I would, however, add the following.
The Applicant is someone who has undoubtedly had a difficult beginning in life. Such a situation is one fairly entitled to recognition by the Courts. However, he has had far more recognition of this than he could reasonably expect. On no less than three occasions, he had been placed on probation. On no less than four, he has been placed on a bond. On no less than five occasions he has been sentenced to the rising of the Court and this for fifteen separate offences a number of which from their description would by no means seem insignificant.
The community cannot reasonably be expected to accept being preyed upon by the Applicant in the way it has for the last 7 years. Persons are entitled not to be assaulted, not to have their homes broken into, not to have their motor vehicles stolen or as occurred in one of the offences with which this Court is presently concerned, destroyed at the Applicant’s whim.
One of the purposes of sentencing - see Veen v R [No.2] – (1987-1988) 164 CLR 465 at 476 – is the protection of society. That and the Applicant’s recidivism argue strongly for penalties well in excess of those the subject of his appeal. Perhaps it is only harsh punishments which will teach him.
MATHEWS AJ: The applicant seeks leave to appeal against the severity of sentences imposed by Judge Coolahan at the Newcastle District Court on 3 April 2007. Three charges had been laid against the applicant in the Newcastle Local Court. He pleaded guilty to each of them and was committed for sentence. The charges were as follows:
1.Maliciously damaging property by fire pursuant to s 195(b) Crimes Act 1900 (“the Act”), committed on 17 March 2006.
2.Aggravated break enter and commit serious indictable offence (stealing) pursuant to s 112(2), committed on 17 March 2006.
3.Aggravated break, enter and commit serious indictable offence (stealing) pursuant to s 112(2), committed on 31 March 2006.
In addition the sentencing judge was asked to take into account ten further offences on a Form 1 document when sentencing the applicant in relation to the second of the above charges.
The maximum penalty for the first of these offences, under s 195 (1)(b), is imprisonment for ten years. The maximum penalty for the two offences under s 112(2) is imprisonment for twenty years. These offences attract a standard non-parole period of five years.
The applicant was sentenced to an effective overall sentence involving a non-parole period of 3 years and 9 months commencing on 31 July 2006 with an additional term of 2 years and 7 months.

The individual sentences were as follows:
In relation to charge number 1 above, the applicant was sentenced to a non-parole period of 1 year and 3 months commencing on 31 July 2006 with an additional term of 6 months.
In relation to charge number 3 he was sentenced to a non-parole period of 1 year and 10 months commencing on 31 January 2007 with an additional term of 11 months.
In relation to the charge number 2, and taking into account the ten charges on the Form 1, he was sentenced to a non-parole period of 2 years and 3 months commencing on 31 January 2008 with an additional term of 2 years and 7 months.
Factual Background
Before discussing the grounds of appeal, it is appropriate to say something about the conduct giving rise to the various charges against the applicant.
All offences were committed in February and March 2006. Most of them were inter-related and all but three involved offences committed between 13 and 31 March 2006. The exceptions to this were the first three offences on Form 1, which comprised two charges of break, enter and commit serious offence (stealing) and one of taking and driving a conveyance. These offences were committed respectively on 16 February and 10 March 2006.
The remaining offences were committed in the following circumstances. On the evening of 13 March 2006 the applicant stole a Toyota Corolla station wagon at Cooks Hill. Not long afterwards he drove the Corolla to Charlestown where he stole an oxyacetylene kit from the back of a utility in a car park and placed it into the stolen Corolla. The stealing of the motor vehicle and the larceny of the kit constituted the fourth and fifth charges in Form 1.
In the early hours of the morning on 17 March 2006 the applicant drove the stolen Corolla past a police truck in Nelson Bay. He accelerated away, at one stage turning off his headlights and driving at highly excessive speeds. This constituted the charge of driving in a manner dangerous, the sixth charge in Form 1.
The applicant managed to avoid his police pursuers. He left the main road and attempted to drive the Corolla across a dirt track. However it became irretrievably bogged. At that point the applicant lit the stolen oxyacetylene torch inside the vehicle and walked away. The vehicle was completely destroyed by fire. The applicant later told police that he did this deliberately in order to destroy evidence. This gave rise to the charge of maliciously damaging property by fire (charge 1 in paragraph [1] above).
After setting fire to the Corolla the applicant walked along a bush track and, after a short time, came across a house which he entered by opening the door. Inside the house at the time were a married couple and their three children, all of them asleep. The applicant stole various items from inside the house including cash, a wallet, credit cards, two mobile phones and various keys. This gave rise to the charge of aggravated breaking, entering and committing a serious indictable offence (charge 2 in paragraph [1]).
The applicant then used the keys he had stolen to drive away in the householder’s Toyota landcruiser. This gave rise to a charge of take and drive conveyance (charge 7 in Form 1). Not long afterwards, he removed the roof carrier from the landcruiser in order to change the appearance of the vehicle and avoid detection. This gave rise to a charge of malicious damage (charge 8 in Form 1).
The final series of offences commenced in the early hours of the morning on 31 March 2006. Between 2 and 4 am that day the applicant broke into a unit in Nelson Bay by breaking the lock of a rear door. Three men were asleep in the house at the time. One of them woke up and called out. The applicant fled, taking with him three mobile phones and a wallet. This constituted the offence of aggravated break and enter and commit serious indictable offence (charge 3 in paragraph [1]).
Later that day the applicant gave one of the stolen mobile phones to an acquaintance in exchange for amphetamines. This constituted the offence of disposing of stolen property (charge 9 in Form 1).
The applicant was arrested later that day, 31 March. At the time he was found to be in possession of a knife in his back pocket. This gave rise to the charge of being in custody of a knife in a public place (charge 10 in Form 1).
The Applicant’s Background
The applicant is now nearly 25 years old, having been born on 18 March 1983. He has a very lengthy criminal history which commenced in the Children’s Court in 2000 when he was 17 years old. In that year he was dealt with for numerous offences, including various assaults, break enter and steals and an assault with intent to rob whilst armed with an offensive weapon. His offences since then are too numerous to list. Amongst many others, there are numerous offences of assault and assault occasioning actual bodily harm. He has served several terms of imprisonment and was on a bond at the time of committing these offences.
Judge Coolahan had before him a report from Katy Seidler, a clinical psychologist. She reported that the applicant identified himself as an Aboriginal through his mother’s line. His father worked as a warrant officer in the Army which required the family to make frequent moves when he was young. His parents separated when he was 13 years old. He left home at the age of 14 and has lived independently ever since. He has a long history of alcohol abuse: he started drinking at about the age of 10 and by the age of 15 was becoming intoxicated on a daily basis. Later his alcohol intake decreased whilst his use of illicit drugs such as cannabis and amphetamines increased.
It is unnecessary for present purposes to describe the details of Ms Seidler’s report. It was referred to at length in Judge Coolahan’s Reasons for Sentence. His Honour took the various subjective matters into account in finding that special circumstances existed so as to break the statutory nexus between the non-parole period and the additional term. His Honour took into account the applicant’s plea of guilty. In addition, the applicant had made admissions to police during his ERISP on 1 April 2006 which identified himself as the offender in relation to some offences as to which the police did not otherwise have sufficient evidence to charge him. Pursuant to R v Ellis (1986) 6 NSWLR 603 Judge Coolahan determined that a further discount should be given on account of this assistance. He concluded that an overall discount of 40% to cover both the plea of guilty and the assistance given to the authorities was appropriate.
The Submissions on Appeal
The applicant relied on the following grounds of appeal:
(i) The sentences are manifestly excessive.
(ii)The sentencing judge erred in the approach to pre-sentence custody.
In support of the first ground of appeal the applicant submitted that the starting point for the sentences imposed by his Honour, before applying the 40% discount, were manifestly excessive. In particular, it was submitted that the two offences of aggravated break, enter and commit serious indictable offence were at a low range of objective seriousness. This was because stealing is one of the lesser “serious indictable offences”. Moreover, the circumstances of aggravation in each case were at the low end of the scale. The aggravation was constituted by the fact that people were in the houses when the applicant broke into them. However no harm arose from this. In the first offence the occupants were unaware of the applicant’s entry into the premises. In the second offence one of the occupants woke while he was there, upon which he immediately fled. Applicant’s counsel pointed out that the starting point for the overall non-parole period imposed in relation to all offences, before applying the 40% discount, was 6 years and 3 months with an additional term of a little over 4 years and 3 months. It was submitted that this was excessive in the circumstances, and that it led to the imposition of actual sentences which were similarly excessive.
The second ground of appeal was that Judge Coolahan erred in his approach to pre-sentence custody. The applicant was arrested in respect of the current offences on 31 March 2006 and remained in custody thereafter. However on 30 October 2006 he was sentenced in the Local Court for unrelated matters to a total of 4 months imprisonment commencing on 17 May 2006. Judge Coolahan took this into account by ordering that the sentences imposed by him should commence on 31 July 2006, four months after the applicant went into custody. The applicant submitted that his Honour erroneously failed to consider the issue of totality when determining the commencement date for the sentences he imposed.
As to the first ground of appeal, the respondent disputed that either the starting points or the discounted sentences imposed by Judge Coolahan was excessive. It was submitted that the objective seriousness of the offences amply warranted the sentences imposed in each case. Moreover the applicant’s substantial criminal record meant that significant emphasis needed to be placed on specific deterrence, retribution and denunciation.
As to the second ground of appeal, the respondent pointed out that the aggregate term of the pre-existing sentences commenced on 17 May and expired on 22 September 2006. Accordingly, the sentences imposed by Judge Coolahan were partially concurrent with the pre-existing sentences. This indicates that his Honour did take account of the principle of totality.
Findings
I accept the Crown’s submissions in relation to both grounds of appeal. In my opinion, Judge Coolahan in his very comprehensive Reasons for Sentence, took account of all relevant matters. The starting point for the sentences which he ultimately imposed were not only within the range available in the circumstances, but in my view were eminently reasonable. So too were the sentences ultimately imposed after the discount of 40%
Similarly, I can find no error in relation to the manner in which his Honour accumulated the various sentences, nor as to the dates upon which they were specified to commence.
In my view neither ground of appeal has been made out. I would propose that leave to appeal be granted but the appeal be dismissed.

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LAST UPDATED:
24 April 2008