Norford v The Queen

[2020] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Norford v R [2020] NSWCCA 104

Hearing dates:

7 May 2020

Date of orders:

27 May 2020

Decision date:

27 May 2020

Before:

Simpson AJA at [1]
Rothman J at [2]
Bellew J at [3]

Decision:

(1) Leave to appeal against sentence granted.

 

(2) Appeal allowed.    

 

(3) The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

 (4) In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.

Catchwords:

CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where serious indictable offence was larceny – Favourable findings made by the sentencing judge regarding the circumstances of the offending – Findings inconsistent with conclusions as to objective seriousness – Error established – Where the findings of the sentencing judge were not challenged – Special circumstances justifying adjustment of statutory ratio – Prospects of rehabilitation against a background of lengthy criminal history – Applicant re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Cases Cited:

Cohen v R [2011] NSWCCA 165
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Category:

Principal judgment

Parties:

Timothy John Norford – Applicant
Regina – Respondent

Representation:

Counsel:
P Coady – Applicant
C Young – Respondent

  Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s):

2018/333824

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 July 2019

Before:

Acting Judge Conlon SC

Judgment

1. SIMPSON AJA: I agree with Bellew J.

2. ROTHMAN J: I agree with Bellew J.

3. BELLEW J:

INTRODUCTION

4. On 22 July 2019 Timothy John Norford (the applicant) pleaded guilty to the following offences before Acting Judge Conlon SC in the District Court of NSW:

1. Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did enter the dwelling house of Stephanie Bourke situate at (xxx) with intent to commit a serious indictable offence therein, to wit, larceny in circumstances of aggravation, to wit, he knew that there was a person present within the said dwelling place.

2. Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did break and enter the dwelling house of Rachel Crerar situate at (xxx) and then in the said dwelling house did commit a serious indictable offence, to wit, larceny in circumstances of aggravation, to wit, he knew that there were persons present within the said dwelling.

5. The offending in (1) was contrary to s 111(2) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 14 years’ imprisonment. The offending in (2) was contrary to s 112(2) of the Act and carried a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 5 years’ imprisonment.

6. In respect of the offending in (2), the applicant also asked the sentencing judge to take into account a further offence of larceny which was included on a Form 1.

7. The sentencing judge imposed the following sentences:

1. in respect of the offending contrary to s 111(2) of the Act, a fixed term of imprisonment of 18 months to date from 31 October 2018 and to expire on 30 April 2020;

2. in respect of the offending contrary to s 112(2) of the Act (and taking into account the matter on the Form 1) a non-parole period of 2 years and 6 months’ imprisonment to date from 31 October 2018 and to expire on 30 April 2021, with an additional term of 2 years and 6 months’ imprisonment expiring on 30 October 2023.

8. The applicant now seeks leave to appeal against the sentence imposed for the offending contrary to s 112(2) of the Act, on the single ground discussed below.

THE FACTS OF THE OFFENDING

9. The sentencing judge found the facts of the offending to be as follows:[1]

On the evening of Tuesday, 31 October 2018 Rachel Crerar lived at (xxxx). The entrance to the building at (xxxx) was on McElhone Street. Crerar's apartment was set out over two levels and the front door of her apartment was on the lower level. Also on the lower level were two bedrooms and a lounge room. The main bedroom was upstairs and was accessed by one of the downstairs bedrooms.

On this evening she had a friend staying over at her apartment, a Mr Hiemstra. He had plugged his Blackberry mobile phone into a charger in the lounge room of the premises. Ms Crerar had put her children to sleep in one of the lower level bedrooms, and then she and Hiemstra had dinner. Afterwards they went upstairs to the bedroom. The door from the children's room to the upstairs room was open.

Sometime between about 10.19 and 10.30pm this offender entered Crerar's building from McElhone Street. He approached her apartment. The door to the apartment was closed but not locked. He opened the front door, he entered the lower level of the apartment and he took the Blackberry phone. Ms Crerar and Mr Hiemstra heard a noise from downstairs. They called out a few times but there was no reply. Ms Crerar saw the offender standing in the children's bedroom. He quickly backed out of the room and went towards the front door. Mr Hiemstra and Ms Crerar heard the front door closing.

Hiemstra opened the front door and chased the offender down the stairs of the building. Crerar then ran to the entrance of the apartment and yelled down the stairs, "You were just in my room". The offender replied to that by saying "Wrong house, wrong house. You can even look in my bag. I have nothing." He then ran away before Hiemstra could apprehend him. When Mr Hiemstra returned to the apartment he noticed his Blackberry phone was missing from the charger. Triple-0 was called at 10.32pm and the police attended the apartment shortly thereafter.

1. Commencing at ROS 1. His Honour’s references to the facts of the offending contrary to s 111(2) have not been reproduced as there is no appeal in respect of the sentence imposed for that offending.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

10. The sentencing judge found that the offending: [2]

    2. ROS 5.

1. did not involve the theft of property of substantial value;

2. did involve the theft of property which was randomly selected;

3. involved a level of planning which was “almost non-existent”, and which did not extend beyond forming the relevant intention;

4. reflected the fact that such intention was formed on the spur of the moment;

5. was opportunistic; and

6. was unsophisticated.

11. Having made these findings, his Honour concluded that the fact that the applicant had confronted the occupier of the premises precluded a finding that the offending fell at the lower end of the range. He concluded that it fell below mid-range. [3]

    3. ROS 5.

THE APPLICANT’S SUBJECTIVE CASE

12. A report of Julie Dombrowski was tendered in the applicant’s case on sentence. In outlining the applicant's background, Ms Dombrowski noted that the applicant was 41 years of age,[4] and set out his developmental history as follows:[5]

Mr Norford's parents separated when he was 18 months old. He grew up in Kingslangly, living with his mother and step-father and older step-brother. His step-father and mother owned and operated an electrical business. He described the family home as being chaotic, stressful and characterised by abuse. His step-father was frequently violent towards his mother and grandmother (on one occasion holding a gun to his grandmother's head). His older step-brother was also violent towards his mother (on occasion breaking her jaw and threatening to stab her). Throughout his childhood, he was fearful of his step-brother who regularly verbally and emotionally abused him. This abuse was largely condoned by his step-father. At the age of ten, his paternal uncle sexually abused him. At the age of 12, the Department of Community Services (DOCS) became involved with the family (after his step-father punched him at a community sporting event). He was placed for one month in the care of his paternal grandparents, who lived nearby.

4. At [5].

5. At [9].

13. The applicant gave evidence before the sentencing judge in the course of which he described this passage of Ms Dombrowski's reports as “a little bit wrong". [6] In correcting what Ms Dombrowski had said, the applicant was asked: [7]

    6. T4.26.

    7. Commencing at T4.28.

Q:    You've got a chaotic family history?

A:    Yeah.

Q:    Is it the case that you said your grandfather was violent in that particular respect to your grandmother?

A:   That's correct, yeah.

Q:   So your paternal grandfather?

A:   Yeah.

Q:   Was he violent to his wife?

A:   That's my stepfather's parents, so yeah.

Q:   Stepfather's parents?

A:   Yeah, but he was my father, yeah.

Q:   Essentially there was violence through the generations from grandparents – –

A:   Yeah.

Q:   – – to parents and step-parents down to you?

A:   Correct.

Q:   But apart from that, that report is correct, is that right?

A:   That's right, yes.

14. Ms Dombrowski noted that the applicant had completed Year 10, but had been suspended from school on multiple occasions. [8] She also noted that the applicant's frequent periods of incarceration had significantly disrupted his work history, to the point where he had not been employed for the majority of his adult life.

    8. At [11].

15. The applicant told Ms Dombrowski that he had commenced using cannabis at the age of 11, and that by the age of 15 he was regularly using MDMA, LSD, unprescribed benzodiazepines, amphetamines, cocaine, methamphetamine and heroin. [9] He also told Ms Dombrowski that he had smoked cannabis two weeks prior to his arrest for the offending, that he had used methamphetamine one month prior, that he had used heroin eight months prior, and that he was heavily affected at the time of the offending as a result of having taken 18mg of benzodiazepines immediately beforehand. In terms of his history of drug use, the applicant said the following: [10]

Q:   You've been homeless for many, many years haven't you?

A:   Yes since 2007, and so basically my drug use has helped me cope with my emotional and psychiatric problems. I believe that if I get counselling anything else will fall into place. Yeah, I still have been using drugs a small amount while I was out in the last couple of years, but it's been nowhere near to the extent of what it has been in the past.

9. At [13].

10. T7.1-T7.6.

16. Ms Dombrowski concluded that the applicant required treatment to resolve the ongoing impacts of past traumatic events, and would require long-term management over several years. [11] She also recommended that neuropsychological testing be carried out in order to allow the applicant to better understand (inter alia) the effect of substance abuse on his neurological functioning.

    11. At [19]-[20].

17. A letter from the applicant was tendered in the sentence proceedings, the truthfulness of which he confirmed in the course of giving evidence. [12] In relation to the contents of that letter, the applicant was asked: [13]

    12. T5.7-T5.8.

    13. Commencing at T5.21.

Q:   In that letter you express horror at your actions, is that correct, the offending actions?

A:   Yeah, very much.

Q:   I think you say you weren’t in your right mind. What do you mean by that?

A:   That day, yeah, a lot of things had been going on. My wife before that, yeah I, I'd lost a child and my marriage had sort of – the relationship had fallen apart. I'd gone to Court that day and I thought that everything was going to be over, and I was under the influence.

Q:   You'd taken Xanax, is that right?

A:   Yeah, I'd taken a large amount of Xanax. I can – at the start I couldn't remember hardly anything that I'd done until I read the brief and the facts, and I, I couldn't believe I don't [sic] something like that, it's not me.

Q:   Just to be clear, you accept that you did do these things?

A:   Yeah.

Q:   You accept that the evidence shows that you did?

A:   Yeah, of course.

Q:   And your plea of guilty is genuine?

A:   Yeah.

18. The applicant told the sentencing judge that he had formulated what he described as a “short term plan" to be implemented when he was released from custody. He said: [14]

It's just a short term plan that I have written out in the last couple of days. I've sort of – I've never really had much of a plan when I've been released from jail and it's probably one of the main reasons why I come back. It's just a short term. I've written on my release I plan to do a Positive Lifestyle Program as I will more than likely be homeless when released. I have attended Campbell House, which is Mission Australia in Surry Hills in 2017. It's a living situation with rules and a curfew. This would be essential for me to adapt to community life and provide services I need, example [sic] housing, social worker and psychiatric care.

One of the main things that I think I need is like counselling around the sort of a large sort of area, and that it be like trauma and grief counselling, mental health, drug and alcohol, things like that. I've struggled with counsellors in the past as either the services are shut down or the counsellor has left. I've got a very bad trust issue with that cause [sic] it's happened so many times. I've never really gotten into detail with counsellors of what my problem is and – –

14. T6.14-T6.30.

19. His Honour reviewed the applicant's subjective circumstances by reference to the report of Ms Dombrowski. [15] Although not expressly stated, I infer that his Honour accepted that the applicant's expressions of remorse were genuine. [16] His Honour was satisfied that the fact (or the prospect) of the applicant’s institutionalisation constituted a proper basis on which to find special circumstances, and he applied a discount of “about 25%" to reflect the utilitarian value of the applicant's pleas of guilty. [17]

    15. Commencing at ROS 7.

    16. At ROS 13.

    17. ROS 13-14.

20. In sentencing the applicant, his Honour took into account that he was subject to two bonds at the time of the offending. Accordingly, he concluded that he should take no further action in respect of the breaches of those bonds. [18]

    18. ROS 15-16.

THE APPLICANT’S CRIMINAL HISTORY

21. The applicant has a lengthy criminal history which has seen him spend numerous periods in custody dating back to February 2001. The sentencing judge’s analysis of that history may be summarised as follows: [19]

    19. ROS 6-7.

1. the applicant was sentenced to a term of imprisonment in February 2001 and was released to parole on 20 February 2002;

2. he remained in the community for approximately three years until April 2007, at which time he was imprisoned again;

3. he was released to parole in October 2007 and remained in the community for about seven months;

4. in May 2008 he was sentenced to imprisonment again;

5. he was released in 2009, and for the major part of the balance of that year he remained in the community;

6. between 2009 and 2011 he had one period of two months in the community in early 2011, and another period of two months late in 2011;

7. in 2012 he was in the community but subject to parole orders for a period of four months up until June of that year;

8. he remained in the community until he was taken back into custody for further offending in October 2013;

9. he was released on parole in March 2014, and remained in the community for two months before being taken back into custody;

10. he was the subject of a further parole order in June 2014;

11. he remained in the community for a period of six months until being taken back into custody for further offending in December 2014;

12. he was released on parole in May 2016 and remained in the community for a period of three months before being taken back into custody and serving the balance of a sentence until May 2017;

13. from May 2017 he was in the community for a period of about 17 months up until the commission of the present offences.

22. His Honour concluded that the applicant had become institutionalised, to the point where he had not been able to avail himself of periods in the community which were sufficiently long to allow him to secure employment or stable housing accommodation. [20] His Honour concluded that in these circumstances, the applicant’s prospects of rehabilitation were “guarded”. [21]

    20. ROS 13.

    21. ROS 13.

THE GROUND OF APPEAL

The aggregate sentence is manifestly excessive taking into account the facts of the applicant's offending, and his subjective case.

23. Although the terms in which this ground of appeal is pleaded make reference to an aggregate sentence, counsel for the applicant confirmed before this Court that this was an error, and that the application for leave to appeal was confined to the sentence imposed for the offending contrary to s 112(2) of the Act.

SUBMISSIONS OF THE PARTIES

Submissions of the applicant

24. Counsel for the applicant submitted that having regard to the findings of the sentencing judge as to the objective seriousness of the offending, the applicant’s early guilty plea, and what was described as the applicant's “rather desolate subjective case", the sentence imposed was manifestly excessive. It was submitted that larceny was at the very bottom of the range of serious indictable offences for the purposes of s 112 of the Act. Accepting that the aggravating circumstance in the present case was that the applicant knew that people were present in the premises where the offending was committed, counsel emphasised that the sentencing judge had recognised this circumstance but had nevertheless concluded that the offending fell below the mid-range. Counsel also emphasised that the sentencing judge had accepted, in large measure, the applicant's subjective case, including the fact that he had struggled with drug issues and homelessness for his entire life, to the point where he had become institutionalised and dependent on custody for food and shelter.

25. Whilst obviously accepting that the elements of the offence were made out, counsel for the applicant described the offending as “technical". In doing so, he sought to draw an analogy between this offending and the taking of a mobile phone from a table in a café. He submitted that the two types of offending were comparable because both scenarios involved opportunistic conduct without any element of violence. Counsel accepted that intrusion into a home was a particularly serious matter, but submitted that the Court should not be distracted by the fact that the applicant was found near a children's bedroom within the premises.

26. Whilst accepting that the two sentences imposed by the sentencing judge were ordered to be served wholly concurrently, counsel submitted that in the particular circumstances of this case the sentence was manifestly excessive. Counsel pointed, in particular, to the fact that between 2016 and 2018 the applicant’s offending had become both less serious and less frequent. Counsel relied on this as an objective factor in support of the proposition that the applicant had the capacity to rehabilitate himself if relevant services were provided to him. Counsel submitted that in this sense, the applicant was “not without hope” for the future.

27. Finally, counsel for the applicant submitted that the sentence imposed did not properly reflect the purposes of sentencing. He submitted that the elements of general deterrence and denunciation of the applicant's conduct had been met by the imposition of a custodial sentence, but that having regard to the fact that any need for the protection of the community was minimal, and also having regard to the applicant's need for rehabilitation, the sentence was manifestly excessive. Counsel submitted that the applicant was not an offender who would be rehabilitated by further and longer periods in custody, and that the community would not be protected by adopting that course. It was submitted that such course did nothing other than exacerbate the applicant's difficulties, and increase the resources that would be required to keep him lawfully in society.

Submissions of the Crown

28. The Crown pointed to the significant maximum penalty for the offence, and emphasised that there had been no challenge made to any of the findings of the sentencing judge. The Crown also pointed to the fact that at the time of the offending, the applicant was subject to conditional liberty in the form of two bonds pursuant to s 9.

29. The Crown placed considerable emphasis on the applicant's criminal history, and pointed out that notwithstanding the submission before this Court that there was hope for the applicant’s future, there had been no challenge to the finding of the sentencing judge that the applicant's prospects of rehabilitation were guarded.

30. The Crown also pointed out that the applicant had the benefit of a finding of special circumstances which reduced the ratio between the head sentence and the non-parole period to one of 50%, and was also the beneficiary of a finding that both terms of imprisonment which were imposed should be wholly concurrent, even though the second of the two offences was committed at a different residence, and involved a different victim.

31. The Crown submitted that in all of these circumstances, the sentence was not manifestly excessive.

CONSIDERATION

32. The principles which apply when considering a ground of manifest excess were summarised by R A Hulme J in Obeid v R in the following terms:[22]

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

22. (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], citations omitted.

33. Section 112 of the Act is in (inter alia) the following terms:

112 Breaking etc into any house etc and committing serious indictable offence

(1) A person who--

(a) breaks and enters any dwelling-house or other building and commits any serious indictable offence therein, or

(b) being in any dwelling-house or other building commits any serious indictable offence therein and breaks out of the dwelling-house or other building, is guilty of an offence and liable to imprisonment for 14 years.

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.

…

34. For the purposes of s 112(1)(a), the serious indictable offence committed by the applicant was that of larceny. In these circumstances, the observations made in Cohen v R are of significance:[23]

[43] The "serious indictable offence" which the applicant committed was larceny. By s 117 of the Crimes Act, the maximum penalty for that offence is imprisonment for 5 years - that is, at the very bottom of the range of sentences that will bring the break and enter offence within s 112. Other serious indictable offences that may be committed in the course of a break and entry that would bring that offence within s 112 include rape, assault, other offences of violence, and property damage. That the "serious indictable offence" was larceny, and not one of the more serious indictable offences specified in s 4, is a relevant circumstance in considering the objective gravity of the offence. The nature and value of the property the subject of the larceny is also a relevant consideration … but not decisive.

23. [2011] NSWCCA 165 at [43] per Simpson J (as her Honour then was), citations omitted.

35. I am unable to accept the submission of counsel for the applicant that the offending in the present case can be relevantly compared with the theft of a similar item from a table in a café. To begin with, offending of that nature might be described as simple larceny. It involves no breaking and entering of any premises which is obviously a matter of significance. Moreover, and notwithstanding the submission of counsel for the applicant, the Court cannot completely ignore the fact that once inside the premises, the applicant was confronted standing near a bedroom in which children were sleeping. Necessarily, that forms part of the facts surrounding the offending.

36. That said, the vast majority of the individual findings of the sentencing judge in relation to the circumstances of the offending were favourable to the applicant. [24] It is difficult to reconcile those findings with his Honour’s conclusion as to the objective seriousness of the offending. Even allowing for the fact that the applicant had been confronted by the occupier of the premises, the weight of the remaining factors identified by his Honour would, in my view, place the offending at a lower level of objective seriousness than that at which his Honour arrived.

    24. At [10] above.

37. Moreover, having reviewed the applicant's subjective case as set out in the report of Ms Dombrowski, it would appear that his Honour accepted the applicant’s background without demur, and accepted that his expressions of remorse were genuine. Allowing for all of these factors, and bearing in mind that a discount of 25% was applied to reflect the utilitarian value of the applicant's plea of guilty, his Honour adopted a starting point of 6 years and 7 months’ imprisonment.

38. Further, the fact that the relevant serious indictable offence was that of larceny, and thus an offence falling at the very bottom of the range of serious indictable offences for the purposes of s 112(2), is a relevant circumstance when considering the objective gravity of the offence. Whilst there is no evidence of the value of the item which was stolen by the applicant in the course of committing the offence, it was a single item of (one infers) relatively small monetary value.

39. In my view, all of those circumstances resulted in the imposition of a sentence which was unreasonable or plainly unjust. It follows that the ground of appeal has been made out, and this Court must re-sentence the applicant in the fresh exercise of the sentence discretion.

RE-SENTENCE

40. I have summarised the entirety of the evidence which was before the sentencing judge. None of his Honour's findings, be they as to the objective seriousness of the offending or the applicant’s subjective case, have been challenged before this Court and I adopt those findings for the purposes of re-sentence.

41. The applicant relied upon his affidavit of 2 April 2020 in which he stated that he has been obtaining counselling whilst in custody which has brought about the realisation that he requires a lengthy period of intensive therapy to learn better ways of dealing with life. [25] He has the support of members of his immediate family including his mother, father and grandmother, and is in regular contact with each of them. [26] He has been employed as a “sweeper" in custody, has not had any disciplinary charges brought against him, and is now on a methadone program to help with his drug addiction. [27]

    25. At [3].

    26. At [6].

    27. At [9]-[10].

42. Whilst the applicant’s criminal history is obviously significant, his period in the community leading up to the present offending was his longest such period since 2004 to 2007. Since being taken into custody, he has been employed as a sweeper which is a position of responsibility. He has already devised a plan to be adopted on his release with a view to maintaining a more positive lifestyle. Significantly, that appears to be the first occasion on which the applicant, having found himself in custody, has made any plan for his release. That plan addresses a number of aspects of his rehabilitation. All of these steps taken by the applicant are positive and in the circumstances, I tend to accept the submission advanced before this Court that the applicant’s successful rehabilitation is not entirely without hope. As is so often the case, the success of a plan of the kind devised by the applicant is dependent upon him adhering to it, and not lapsing into his previous lifestyle. However, the fact that he has devised the plan at all shows that he has some insight into the need for rehabilitation. All of these matters lead me to be cautiously optimistic about his prospects of rehabilitation.

43. Clearly, the applicant’s rehabilitation will benefit from an extended period on parole to assist his reintegration into the community and a finding of special circumstances is appropriate. In that regard I propose to adopt the same ratio as the sentencing judge. I also apply a discount of 25% to reflect the utilitarian value of the applicant’s plea of guilty.

ORDERS

44. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal allowed.

3. The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

4. In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.

**********

Endnotes

Decision last updated: 27 May 2020