Nicholas v The Queen
[2010] NSWCCA 239
•20 October 2010
New South Wales
Court of Criminal Appeal
CITATION: Nicholas v R [2010] NSWCCA 239 HEARING DATE(S): 2 September 2010
JUDGMENT DATE:
20 October 2010JUDGMENT OF: Simpson J at 1; Hall J at 39; Garling J at 40 DECISION: (i) Leave granted to appeal against the sentence imposed for the offence of aggravated break out of premises; appeal allowed, sentence quashed; (ii) In lieu thereof, the applicant be sentenced to imprisonment with a non-parole period of 2 years and 6 months, commencing on 14 May 2012 and expiring on 13 November 2014, and a balance of term of 1 year and 6 months, expiring on 13 May 2016. CATCHWORDS: CRIMINAL LAW – property offences – being in dwelling, larceny and breaking out in circumstances of aggravation - CRIMINAL LAW – appeal against severity of sentence – whether sentencing judge erred in finding that objective seriousness of aggravated steal and break out offence was above mid-range – offence not capable of being an offence of more than mid-range gravity – applicant’s mental illness causally connected to offending which has a bearing on assessment of objective gravity: R v Way – head sentence disproportionate to non-parole period – error established LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900CATEGORY: Principal judgment CASES CITED: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168PARTIES: Jason Wayne Nicholas (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2007/15454; 2009/38880; 2009/12769 COUNSEL: C Bruce SC (Applicant)
J A Girdham (Respondent)SOLICITORS: Aboriginal Legal Service (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/15454; 2009/38880; 2009/12769 LOWER COURT JUDICIAL OFFICER: Berman DCJ
2007/15454
2009/38880
2009/1276920 October 2010SIMPSON J
HALL J
GARLING J
1 SIMPSON J: The applicant seeks leave to appeal against the severity of one of six sentences imposed upon him in the District Court on 11 December 2009 by Berman DCJ, following his pleas of guilty to a series of charges.
2 The sentence in question was imposed in respect of a charge brought under s 112(2) of the Crimes Act 1900. That was an offence of being in a dwelling house, committing a serious indictable offence, and breaking out, in circumstances of aggravation. The serious indictable offence was larceny. The circumstance of aggravation was that the applicant knew that a person was in the dwelling house. Pursuant to s 112(2), such an offence carries a maximum penalty of imprisonment for 20 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 5 years is applicable. In respect of that offence, Berman DCJ imposed a sentence of 6 years, commencing on 14 May 2012, with a non-parole period of 2 years and 6 months.
3 In due course it will be necessary to mention the other sentences imposed on that day.
History
4 The material before this Court does not give a complete history, but it does give one that is adequate for present purposes. What follows is an account, so far as it can be gleaned, from the material available.
5 On 12 February 2003 and 1 September 2003, the applicant broke and entered commercial premises at Waterloo, and stole property. The February offence was committed in circumstances of aggravation, in that the applicant was in company with three co-offenders. On 11 December 2004, the applicant broke and entered a private residence in Surry Hills, and again stole property.
6 In April 2006 he appeared before Berman DCJ in relation to each of those offences. He entered pleas of guilty. Berman DCJ took what he was later to describe as the unusual course of adjourning the proceedings, pursuant to s 11 of the Sentencing Procedure Act, for a lengthy period, in order to assess, and enable the applicant to demonstrate, his prospects of rehabilitation. On 23 February 2007, when the matter returned to Berman DCJ, his Honour found that the applicant had successfully complied with the conditions of remand. He accordingly imposed sentences of imprisonment, the execution of which, pursuant to s 12 of the Sentencing Procedure Act, he suspended. In respect of each sentence, in accordance with s 12(1)(a) of the Sentencing Procedure Act, he directed that the applicant enter into a good behaviour bond for the term of the sentence. The longest of the bonds expired on 22 February 2009.
7 During 2008 the applicant breached certain conditions of the bond.
8 On 10 November 2008 the applicant committed a further offence of break, enter and steal, by smashing the glass sliding door of a residential unit in Surry Hills, entering, and stealing property.
9 On 24 March 2009, through an open door, he entered a dwelling house in Centennial Park. The female owner of the house was in an upstairs study. The applicant took a towel from an upstairs bathroom, which he used to conceal his face. He walked into the study where the owner was. She screamed. He told her to do what he said.
10 She tried to escape. He pushed her to the floor and he hit her twice with his open hand. He pushed her towards a bedroom and told her to open the safe. She was unable to do so. He also attempted to open the safe and failed. He told her that he was going to leave, and to let him go. She told him to run. He ran down the stairs, and left the premises, taking with him a handbag, which contained a wallet. He told her not to call the police. He made his escape by pushing open a bi-fold door.
11 In respect of this event, the applicant was charged with taking and detaining a person with intent to obtain advantage, an offence which carries a maximum penalty of imprisonment for 14 years, and the offence the subject of the present application (which carries a maximum penalty of imprisonment for 20 years, and, a standard non-parole period of 5 years).
12 The applicant was arrested on 14 May 2009 and charged with the November 2008 and March 2009 offences. Bail was refused and he has remained in custody since that date.
The applicant’s personal circumstances
13 Evidence of the applicant’s personal circumstances was before the Court by way of a 2009 report of the Department of Corrective Services, directed to alcohol and other drug issues, a psychiatric report prepared by Dr Steven Allnutt, and in evidence given by the applicant.
14 The applicant was born in July 1977. His mother was Aboriginal, his father was not. He has a criminal record that commenced in 1990, when he was 13. On a number of occasions he was charged in the Children’s Court with offences of a kind similar to those the subject of the present proceedings. The most serious entry in his criminal history is an offence of robbery in company, in respect of which he was originally sentenced in January 1999. For that offence, he was sentenced, after appeal, to imprisonment with a minimum term of 3 years and an additional term of 2 years and 6 months.
15 The applicant’s personal history is best derived from, and is given in detail in, the report of Dr Allnutt. Berman DCJ described the background disclosed as “tragic”. His Honour summarised it as follows:
- “It is difficult to understand how someone could be as badly treated as the offender was. He has had setbacks, repeated setbacks throughout his life. They began very young. He was hit by a car when he was two years old and his maternal aunt who wrote a letter which was tendered to me today said that she never again saw the bright little boy that the offender was before the accident. He had learning difficulties throughout school. He was told that his father was dead although in truth he was in gaol serving a life sentence for murder. He lived with his mother for the first eight years of his life but she was an alcoholic and had abusive boyfriends and so the offender ran away and went to live with his maternal aunt. However, he missed his mother and went back to live with her. This was a mistake as there he was molested and abused by another of his mother’s boyfriends. At the age of thirteen he learned for the first time that his father was not in fact dead but in gaol. He decided he would like to visit his father and so he arranged with a woman to take him to the prison so that he could meet his father for the first time. The offender was sadly disappointed by his father’s reaction. The offender told me that his father was more interested in the woman who had taken him to the gaol than he was in his son. On his father’s release from custody, he had more contact with the offender but that too ended in tragedy. The offender was attempting to stop his father using drugs but he was unsuccessful, his father eventually dying of a drug overdose. This was yet another setback in the offender’s life which he says was a significant factor in him relapsing and starting to use drugs again.”
16 As well, the applicant has been diagnosed as suffering from paranoid schizophrenia, a condition which afflicts others in his family.
17 The applicant gave evidence in the sentencing proceedings. He said little about the circumstances of the offences, or of his motivation in committing them.
The remarks on sentence
18 Berman DCJ found that the aggravated steal and break out offence was “objectively above the middle of the range of objective seriousness”. He acknowledged that some of the matters aggravating that offence also were aggravating circumstances in relation to the detaining offence.
19 His Honour accepted that there was a causal connection between the applicant’s mental illness and his offending. He stated that, if it were not for the applicant’s tragic background, he would have imposed much more significant sentences than he did.
20 He allowed a 25 percent reduction of all sentences to take account of the applicant’s pleas of guilty: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.
21 He noted a “substantial overlap” between the criminality involved in the two March 2009 offences, and cautioned himself against “double-counting”.
22 In respect of the November break, enter and steal offence, he imposed sentence of a fixed term of imprisonment for 2 years, commencing on 14 May 2010; in respect of the take and detain offence of March 2009 he imposed a fixed term of imprisonment for 3 years to date from 14 May 2011; in respect of the aggravated enter premises and break out, he imposed a sentence of 6 years, with a non-parole period of 2 years and 6 months, commencing on 14 May 2012. Berman DCJ also dealt with the offences which had been the subject of suspended sentences and revoked the order of suspension. He ordered that each sentence be served by way of full-time imprisonment, commencing on 14 May 2009. The overall sentence imposed is of 9 years, with a non-parole period of 5½ years. It is only the sentence imposed in respect of the aggravated break out offence that is the subject of the present application. No complaint is made of the length of the non-parole period; the application is directed only to the head sentence.
The application for leave to appeal
23 Only one ground of appeal was identified. It was pleaded as:
- “The learned sentencing judge erred in finding that the objective seriousness of the aggravated steal and break out offence was ‘above the middle range of objective seriousness’.”
24 On behalf of the applicant it was accepted that, because of the factual circumstances of the two offences committed on 24 March, difficulty lay in the way of assessing the objective seriousness of each; more particularly, it may be said, of delineating the facts and circumstances of one offence (take and detain) from the other (aggravated steal and break out). His Honour was conscious of the difficulty, as is evidenced by his caution against “double-counting”.
25 It was, nevertheless, submitted that the judge’s reasons for making the assessment he did were “far from clear”, and that the exercise of determining the appropriate sentence for this offence, as required (see Pearce v The Queen [1998] HCA 57; 194 CLR 610) was not undertaken.
26 Factors relevant to the assessment of the objective seriousness of an offence were set out in R v Way [2004] NSWCCA 131; 60 NSWLR 168. They include:
(i) the actus reus ;
(ii) the consequences of the conduct;
(iii) factors that might properly be said to have impinged upon the mens rea of the offender;
(v) mental illness or intellectual disability where causally related to the commission of the offence.(iv) the mental state of the offender at the time of the commission of the offence (eg intention as distinct from recklessness);
27 On examination of these, those numbered (i), (ii) and (v) all favour the applicant. Those numbered (iii) and (iv) are, in my opinion irrelevant and neutral – there was no evidence of factors impinging on the mens rea of the applicant, or of his mental condition at the time of the offence (as distinct from generally).
28 The offence to which the applicant pleaded guilty was the aggravated form of the offence for which s 112(1) of the Crimes Act provides. That section is, relevantly, as follows:
- “112(1) A person who:
(a) …
(b) being in any dwelling-house … commits any serious indictable offence therein and breaks out of the dwelling-house …
is guilty of an offence and liable to imprisonment for 14 years.”
29 The offence therefore commenced after the applicant had entered the premises. Whilst therein, he committed two serious indictable offences. The first was the detention (and assault) of the victim. The second was the larceny of the handbag and wallet. It was only the latter of these that was relied upon as an element of the offence. (The offence of take and detain could not be – and was not – relied upon for this purpose, because it was the subject of a separate charge.)
30 Thus, the offence was committed by the applicant, being inside the premises, taking the handbag and wallet, and opening a bi-fold door in order to leave. In my opinion, that is not capable of being an offence of more than mid-range gravity. It may be that, in this respect, the assessment was clouded by his commission of the far more serious offence (despite its carrying a lower maximum penalty) of personal violence. Even so, his Honour was well aware of the danger.
31 Further, while the consequences of the conduct the subject of the take and detain offence were more serious, there was no evidence to support an assessment of the consequences of the conduct of this offence that would place the offence above mid-range. (There was evidence of the value of the property, which was significant, but that is common in respect of offences of this kind.)
32 Most importantly, his Honour found that the applicant’s mental illness was causally connected to his offending, and this, it was stated in Way, has a bearing on the assessment of objective gravity.
33 I am, accordingly, satisfied that this ground of appeal has been made out.
34 The issue may be approached another way. It has not been suggested, on behalf of the Crown, that, in the circumstances, the non-parole period of 2 years and 6 months was erroneous. But the head sentence bears, to the non-parole period, an unusual proportion. By s 44 of the Sentencing Procedure Act, what are sometimes referred to as the standard proportions between the non-parole period and the head sentence are identified. In those proportions, the non-parole period is 75 percent of the total, the parole period 25 percent. (Of course, departure from those proportions is, in all cases, permissible, where appropriate and justified.)
35 Assuming that 2 years and 6 months is a correct non-parole period, the head sentence (if imposed in accordance with the statutory proportions) would be 3 years and 4 months. The parole period would be 10 months. Here, where the head sentence is 6 years, the parole period is 3 years and 6 months. It seems to me that this is a considerable disproportion.
36 I am satisfied that error has been established.
37 I would grant leave to appeal, allow the appeal, quash the head sentence imposed in relation to the offence against s 112(2) of the Crimes Act, and substitute a head sentence of 4 years.
38 I propose the following orders:
(ii) In lieu thereof, the applicant be sentenced to imprisonment with a non-parole period of 2 years and 6 months, commencing on 14 May 2012 and expiring on 13 November 2014, and a balance of term of 1 year and 6 months, expiring on 13 May 2016.
(i) Leave granted to appeal against the sentence imposed for the offence of aggravated break out of premises; appeal allowed, sentence quashed;
39 HALL J: I agree with Simpson J.
40 GARLING J: I agree with Simpson J.
0
3
2