Paese v The Queen

[2010] NSWCCA 178

New South Wales
Court of Criminal Appeal

CITATION:	Paese v R [2010] NSWCCA 178
HEARING DATE(S):	9 August 2010
JUDGMENT DATE:	2 September 2010
JUDGMENT OF:	McClellan CJatCL at 1; James J at 2; Davies J at 3
DECISION:	(1) Leave to appeal granted. (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentence - appeal against severity - break, enter and steal - use of statistics - comparison between offence charged and aggravated form of the offence - sentence imposed said to fall within appropriate sentence for aggravated form of the offence - no error shown.
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986
CATEGORY:	Principal judgment
CASES CITED:	Graham v R [2009] NSWCCA 212 In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R V Ponfield [1999] NSWCCA 435 Markarian v R (2005) 228 CLR 35 R v Harris [2007] NSWCCA 130 R v Way (2004) 60 NSWLR 168
PARTIES:	Patrick Paese (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/11700
COUNSEL:	T Gartelmann (Applicant) V Lydiard (Respondent)
SOLICITORS:	Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11700
LOWER COURT JUDICIAL OFFICER:	Marien DCJ
LOWER COURT DATE OF DECISION:	13 February 2009

- 10 -

2008/11700

MCCLELLAN CJ AT CL, JAMES & DAVIES JJ

2 SEPTEMBER 2010

PAESE V R

Judgment

1 McCLELLAN CJ at CL

: I agree with Davies J.

2 JAMES J: I agree with Davies J.

3 DAVIES J: On 28 November 2008 the Applicant pleaded guilty in the District Court for an offence of break and enter a dwelling house and commit a serious indictable offence, namely larceny contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for this offence is fourteen years imprisonment.

4 On 13 February 2009 his Honour Judge Marien SC sentenced the Applicant to a non-parole period of 3 years and 10 months with an additional sentence of 1 year and 9 months. The sentence was to commence on 11 April 2008 and the non-parole period was to expire on 10 November 2012.

5 The appeal was filed out of time because of a misunderstanding by the solicitor for the Applicant that a 2-month extension period had been granted by this Court on 21 January 2010 when in fact only a one month period had been granted. No objection was taken by the Crown to the late filing of the Appeal. In the circumstances, leave will be granted to bring the appeal out of time.

6 Three persons were involved in the commission of the offence. One of the other offenders, Gary Victor Nawalu, was charged with the same offence as the Applicant. The third participant, Steven John Perri, was charged with being an accessory after the fact to the offence of break, enter and steal. Nawalu and Perri also pleaded guilty. His Honour dealt with all 3 together on 13 February 2009.

7 Although the only ground of appeal is that the sentence was manifestly excessive, it is to be noted that Mr Nawalu was sentenced to a non-parole period of 4 years and 2 months with a total sentence of 6 years. Mr Perri, the accessory, was released under s 10 on the basis of entering into a bond to be of good behaviour for 2 years.

8 His Honour sentenced the offenders on the basis of a Statement of Agreed Facts. The Applicant and Mr Nawalu also gave some brief evidence.

9 His Honour summarised the facts as follows:

[T]he offenders Mr Paese and Mr Nawalu on Thursday 10 January 2008 at 10pm with a third unknown offender forced their way into the two storey dwelling house of 70 Seaview Avenue, Newport after the front door was kicked off its hinges and onto the floor. Each of them had clothing or something similar wrapped around his head to mask his identity. They ran upstairs yelling "We're police".

A bedroom sliding door was ripped of its slides and the three offenders entered the bedroom then occupied by two of the residents, James Waite and his girlfriend Alexandra Rose. Mr Waite was naked and in the process of putting on his underpants and Ms Rose was in bed wearing underclothing. Mr Waite was pulled from the room, grazing his arms probably on the doorway. He was then thrown on the floor on his back.

An offender who Mr Waite described as "the skinnier offender" told him not to look up, whilst an offender he described as a "larger offender" sat on him and began to choke him until Mr Waite indicated that he could not breathe. In the meantime one of the offenders was with Ms Rose, who was ordered out of bed. She pleaded for Mr Waite not to be hurt. Ms Rose was told by one of the offenders to "shut up" and she was tugged by the elbow and she was pushed onto the floor near Mr Waite.

One of the offenders said "Where is everyone? Is there any cash anywhere or anything?" One or more of the offenders went into the other upstairs bedroom of the third resident, Jesse Snowdon, who was not at home. After a search in that bedroom one of the offenders said "You've gotta have some cash or something to give me". A gram of cannabis was taken from one of the bedrooms, probably that of Mr Snowdon. The sum of $300 in cash, being rent money, consisting of five fifty dollar notes, two twenty dollar notes and one ten dollar note was stolen from the first bedroom.

At about this time, Jesse Snowdon arrived home with his girlfriend
Olivia Grice. From the front door Mr Snowdon asked if Mr Waite was all right and he replied by yelling out "run, there's three guys in the house". This unexpected turn of events brought things to a halt upstairs. Two of the offenders ran downstairs and out the front door and a few seconds later the third offender walked out of the house. In the meantime Mr Snowdon ran to a neighbouring house to make a triple-0 call, leaving Ms Grice at the scene. One of the offenders said "get her", but another shook his head to indicate to leave her alone. Ms Grice quickly walked away.

Mr Waite got dressed and went out of the house. He saw the three offenders getting into the passenger side of a car which was moving, initially without its lights on. Mr Waite described the car as a white Honda Civic.

Police attended the scene at 10.07pm. At 10.21pm police stopped the offender Steven Perri, who was driving his white Honda Civic. Also in the car were the offenders Gary Nawalu and Patrick Paese. Mr Perri indicated to police that they had been at Newport visiting a friend. The occupants were then searched. Mr Paese had a fifty dollar note in his pocket. When he was searched, some notes fell from out of the leg of his pants onto the bitumen. He stood on the notes and was asked by a constable "please step off the money". Mr Paese did so and when counted, the money consisted of five fifty dollar notes, two twenty dollars notes and one ten dollar note, totalling $300. Police also noticed a bleeding cut on a left finger of Mr Paese.

Police attended the scene at 70 Seaview Avenue and located on the ripped off bedroom door some blood and swabs were taken. Later DNA analysis demonstrated that the DNA profile of that blood matched the DNA profile of Mr Paese.

In relation to the offender Mr Perri, there is also before me an agreed statement of facts relating to him. Those fact state that Mr Perri told police after his arrest that he had met the other three offenders at a mutual friend's house earlier that evening and had agreed to drive them to a house they wished to visit. This turned out to be 70 Seaview Avenue. Mr Perri told the police he waited in the car while the other three got out and went into the house. He told police that he had no knowledge of what they intended to do. He said he thought they were visiting friends in the house and that they would return to the car in a few minutes. He said that when the men returned he was a bit suspicious but he did not say anything. He said they all returned to the mutual friend's house.

Mr Perri said that after a while he told the others he was going home and that Mr Paese and Mr Nawalu asked for a lift and Mr Perri agreed and they set off in the car, only to be stopped by the police in the circumstances I earlier described. The facts state that Mr Perri had knowledge of the fact that the other men had committed an offence of break enter and steal.

10 His Honour said that what he was engaged in was an unusual sentencing exercise. This was because a bill of indictment had originally been presented against all 3 of the offenders for an aggravated offence of break, enter and steal. The Applicant and Mr Nawalu made applications for separate trials. Judge Marien ordered that they be tried separately from Mr Perri. Thereafter, the Applicant and Mr Nawalu pleaded guilty to the offence of break, enter and commit a serious indictable offence which the Crown accepted in full discharge.

11 His Honour noted, therefore, that the Applicant and Mr Nawalu were to be sentenced only for the offence to which they had pleaded guilty and he could not take into account as part of the circumstances of the offence facts which would make the offenders liable for the more serious offence. Accordingly, his Honour noted that although actual bodily harm was inflicted on Mr Waite and there was deprivation of the liberty of both Mr Waite and Ms Rose, those matters constituted circumstances of aggravation upon which a more serious charge of aggravated break enter and steal under s 112(2) could be laid.

12 His Honour said that he regarded the offence as falling at the mid range of objective seriousness for such an offence of break enter and steal. He came to that view because, although a relatively small amount of money was stolen, there was a high degree of force used to enter the premises and the manner in which the offenders entered the premises was highly threatening and menacing. His Honour also took into account the fact that by committing the offence at ten o'clock at night, the offenders would have been aware that it was likely that there would be persons in the premises.

Subjective matters

13 His Honour noted that although the Applicant had a positive childhood, at the age of nineteen years he accidentally discovered that he was adopted. Thereafter he engaged in rebellious and criminal behaviour due to anger and grief issues.

14 He moved to Australia from New Zealand in 2000 with his adoptive parents when he was twenty-two years of age.

15 He developed an alcohol problem after his father died in 2002. He also reported using cannabis, ecstasy and cocaine from the age of nineteen years and regularly using amphetamines in conjunction with alcohol.

16 His Honour noted that the Applicant had a lengthy and serious criminal record which dated back to 1995 in New Zealand. In that regard, it is to be noted that prior to the offender’s nineteenth birthday he had been convicted of unlawful possession of a firearm, intent to cause grievous bodily harm with a firearm, 2 offences of common assault, 2 counts of theft and an offence of being unlawfully in a building. A number of these offences resulted in imprisonment, the longest being a three year term for intent to cause grievous bodily harm with a firearm.

17 His offences in New South Wales commenced with driving with a middle range prescribed concentration of alcohol in 2000 and thereafter included a large number of driving offences, some of a serious nature including 3 of fail/refuse to undergo a breath test.

18 Other offences for which he has been imprisoned in New South Wales include break, enter and steal, drive a conveyance taken without the consent of the owner, common assault and, most seriously, aggravated robbery for which he was sentenced to 5 years imprisonment on 27 February 2004 with a non-parole period of 3 years and 3 months. In fact, he was only released to parole on 16 December 2007, and, as the sentencing Judge noted, the present offence was committed within a month of his release whilst on parole.

19 His Honour regarded that as a serious aggravating factor as he was entitled to do.

20 By reason of the commission of the present offence the offender’s parole was revoked on 25 January 2008 and he served the balance of parole of 6 months and 8 days in prison. In that regard, the sentencing Judge exercised his discretion to commence the present sentence approximately midway through the period of the revoked parole.

21 His Honour considered that the Applicant had expressed remorse and contrition for the offences, and found “to a certain extent”, that that was genuine. His Honour also found that the Applicant’s record and the fact that he re-offended so soon after being released to parole indicated that any assessment of his prospects of rehabilitation had to be guarded. In that regard, it must be borne in mind that whilst in prison from March 2003 to December 2007 the Applicant had completed 2 programs addressing his alcohol and drug use. The Probation and Parole report noted that the Applicant said that from 16 December 2007 to 13 January 2008 he had consumed minimal amounts of alcohol on several occasions socially but had not engaged in binge drinking and had not consumed any illicit substances in that period when the offence occurred.

22 His Honour noted that the Applicant pleaded guilty effectively at the commencement of the trial following the application for a separate trial. Although that entitled him to a reduction in the sentence the utilitarian value of the plea was somewhat reduced. His Honour considered that the sentence ought to be reduced by 15% for that plea.

The Applicant’s submissions

23 Three matters were put forward in support of the submission that the sentence was manifestly excessive. First, it was said that objective seriousness of the offence was not in the upper end of the range of objective seriousness for offences of its kind. Secondly, it was said that the agreed facts identified a number of features constituting circumstances of aggravation within the meaning of s 105A Crimes Act that would establish the more serious offence of aggravated break enter and steal contrary to s 112(2). Thirdly, it was suggested that an examination of the statistics for sentences in relation to the offence would show that the present sentence was outside the range of sentences for this offence.

(a) Objective seriousness and statistics

24 Although the written submissions for the Applicant said that the objective seriousness of the offence was not such as to situate it in the upper end of the range of objective seriousness for offences of its kind, the sentencing Judge did not so situate it. In oral submissions, it was explained that what was intended to be conveyed was that the sentence imposed was consistent with offences at the upper end or top of the range of objective seriousness for an offence of that kind. That submission appeared to relate to the submission concerning the statistics which tended to show that the sentence imposed on the Applicant was in the top 2% of the range for all offenders and, maybe, even in the top 1%.

25 This Court has noted on a number of occasions the care that must be taken in the use of statistics: R v Way (2004) 60 NSWLR 168 at [140]; Graham v R [2009] NSWCCA 212 at [35]-[37]. Although it may be appropriate to have regard to the statistics, the problem for the Applicant in the present case was in endeavoring to suggest that the sentence imposed placed the offence at the top of the range of objective seriousness. That submission ignores the significant aggravating subjective matters that the sentencing Judge appropriately took into account, not the least of which was that this offence was committed whilst the Applicant was on conditional liberty and within only a month of that conditional release.

[1999] NSWCCA 435 Grove J (with whom Spigelman CJ and Sully J agreed) said:

[48] A court should regard the seriousness of offence contrary to s 112(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 s 21 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 s 105A(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 s 105A(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 s 105A(1)(a)).

Of these matters, (i), (iii), (v) and (ix) were relevantly circumstances of aggravation not listed in s 105A(1) Crimes Act in respect of the offence with which the Applicant was charged.

27 Further, as McClellan CJ at CL, Hulme and Hislop JJ pointed out in R v Harris [2007] NSWCCA 130 when dealing with the statistics in respect of s 112(1) and s 112(2) offences, the statistics suggest that inadequate weight was being given to the presence of circumstances of aggravation (at [66]) and, further, that the statistics did not record the extent of the prior records of the offenders, nor whether offenders were on conditional liberty at the time (at [68]).

28 A comparison between the sentence in the present case and the statistics does not, in all the circumstances, cause me to consider that either the sentencing Judge has effectively situated the present offence in the upper end of the range of objective seriousness, nor that there has been any error in the sentence given.

(b) Circumstances of aggravation

29 The Applicant drew attention to the fact that the aggravated version of the offence attracted a standard non-parole period of 5 years which was applicable to the offence in the middle of the range of objective seriousness for an offence of that kind where an offender is convicted after trial. It was said that the sentence ultimately imposed on him was the sort of a sentence for a middle of the range aggravated version of the offence once the discount for the plea of guilty and the finding of special circumstances was taken into account. In that way, it was submitted, the sentence imposed was consistent with the aggravated version of the offence rather than the offence for which the Applicant was to be sentenced.

30 That submission appears to me to fall into the sort of error that the High Court corrected in Markarian v R (2005) 228 CLR 357 especially at [31] and [33]. As was made clear in those passages, the proper approach for the sentencing Judge is to start with the maximum penalty for the offence in question and not the penalty for another offence up or down the scale of seriousness from the offence for which the sentence is being passed.

31 The sentencing Judge quite appropriately drew attention to the maximum penalty for the offence to which the Applicant had pleaded guilty and referred only to the aggravated version of the offence in respect of matters that his Honour had rightly excluded from consideration when sentencing.

32 It is inappropriate to argue from the result of any otherwise appropriately fixed sentence to argue that such a sentence more appropriately fits into an aggravated form of the same offence, and to argue from that that error must have been committed by the sentencing Judge.

33 In my opinion, no error on the part of the sentencing Judge has been demonstrated.

34 In my opinion the following orders should be made:

(1) Leave to appeal granted.


(2) Appeal dismissed.

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