R v Ah-See

[2004] NSWCCA 202

CITATION:	Regina v Ah-See [2004] NSWCCA 202
HEARING DATE(S):	4 June 2004
JUDGMENT DATE:	28 June 2004
JUDGMENT OF:	Bell J at 1; Howie J at 2; Hislop J at 3
DECISION:	Leave to appeal granted; Appeal dismissed.
CATCHWORDS:	Criminal law - Sentencing - Fernando principles - Protective custody - Sentence not manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 - ss 60(1), 112(2), 546C Criminal Procedure Act 1986 - Pt 3, Div 6
CASES CITED:	R v Burchell (1987) 34 A Crim R 148 R v Coleman (1990) 47 A Crim R 307 R v Drew [2000] NSWCCA 384 R v Durocher-Yvon [2003] NSWCCA 299 R v Fernando (1992) 76 A Crim R 58 R v Mostyn [2004] NSWCCA 97 R v Newell [2004] NSWCCA 183 R v Newman [2004] NSWCCA 102 R v Olbrich (1999) 199 CLR 270 R v Russell (1995) 84 A Crim R 386 R v Totten [2003] NSWCCA 207 Veen v R (No 2) (1988) 164 CLR 465
PARTIES :	Regina Douglas Keith Ah-See
FILE NUMBER(S):	CCA 60070/04
COUNSEL:	Ms E Wilkins - Crown Mr H Dhanji - Applicant
SOLICITORS:	S Kavanagh - Director of Public Prosecutions (NSW) SE O'Connor - Legal Aid Commission (NSW)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/61/0037
LOWER COURT JUDICIAL OFFICER :	Woods ADCJ

- 1 -

60070/04

BELL J
HOWIE J
HISLOP J

28 June 2004

REGINA v AH-SEE

Judgment

1 BELL J: I agree with Hislop J.

2 HOWIE J: I agree with Hislop J.

3 HISLOP J: The applicant was convicted by a District Court jury of the offence of breaking and entering a dwelling house and committing a serious indictable offence (larceny), in circumstances of aggravation, namely that he knew that there was a person or persons present within the said dwelling at that time, contrary to s 112(2) of the Crimes Act 1900.

4 The maximum penalty for such offence is twenty years imprisonment. Woods ADCJ sentenced the applicant to four years imprisonment to date from 13 November 2002 with a non-parole period of three years.

5 His Honour also dealt with the applicant for two related offences, under provisions which are now found in Part 3 Division 7 of the Criminal Procedure Act 1986, namely resisting police (s 546C of the Crimes Act 1900) and assault police (s 60(1) of the Crimes Act 1900). In respect of these offences his Honour imposed concurrent sentences of six months.

6 The applicant seeks leave to appeal against sentence.

7 The facts, as found by his Honour, were:

“…in the early hours of the morning of 13 November 2002 the (applicant) did break into the residence of Ms Jacqueline Cooper at 103 Arthur Street, Wellington, and did take certain property of Ms Cooper and did place it ready to remove from the house and he did this whilst Ms Cooper and her young son were asleep in the house. What happened was that Ms Cooper awoke to find the (applicant) asleep on the floor of the bedroom and she was able to contact police in time for them to attend at the residence and apprehend him before he got away from the house with the property that he had removed from the drawers and from her bag although she did have a traumatic twenty minutes on the phone calling 000 whilst he awoke and rummaged around the house.”

8 His Honour observed as to the objective seriousness of the offence:

“This was a break and enter of a dwelling house whilst the occupier was asleep. This is regarded as one of the most serious of offences and there can be no excuse or reason for such an intrusion into a place where people expect to be safe from harm and expect to be able to sleep peacefully and the community expects a strong deterrent punishment for any person who so deliberately attacks their security and puts people in fear and trepidation.”

9 The applicant relies, in his written submissions, upon three grounds of appeal, namely, (a) “The sentencing Judge had insufficient regard to the applicant’s subjective case and the principles enunciated in R v Fernando (1992) 76 A Crim R 58; (b) the sentencing Judge erred in failing to have regard to the applicant’s protective custody in determining the length of the sentence to be imposed and in determining whether there were special circumstances; and (c) in light of the applicant’s subjective case the sentence imposed is manifestly excessive.”

Ground One

10 The applicant is an aboriginal man, born on 15 November 1961. He was thus 40 years of age at the time of the offences. He had an extensive criminal record since 1979 (the Crown suggested it consisted of 106 convictions). The convictions were for a variety of offences, including crimes of violence, stealing, larceny, break and enter, malicious damage, breaches of recognisance and drug offences.

11 The applicant had served several terms of imprisonment and at various times had received bonds. Notwithstanding this, his criminal activity continued unabated. Indeed the subject offence was committed whilst the applicant was on parole, following a term of imprisonment of 12 months for break and enter.

12 The applicant did not give evidence at the sentencing hearing. A psychiatrist’s report was tendered, as was a Probation and Parole pre-sentence report.

13 The pre-sentence report stated that the applicant’s response to supervision and guidance by the Probation and Parole service had generally been superficial and to no avail. The applicant, despite being advised in past years to attend for counselling, had not complied and despite a history of stated good intentions regarding resolving his drug problems when in custody, he had failed to seriously address that issue when in the community. It was concluded, “there remains a likelihood of his continuing to maintain his current lifestyle should he not accept professional intervention”.

14 The principal submissions for the applicant on the first ground were based upon the principles in R v Fernando, this notwithstanding there had been no reliance upon those principles by experienced counsel at the sentencing hearing.

15 In Fernando’s case, it was held:

“The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing Court should ignore those facts which exist only be reason of the offender’s membership of such a group.”

16 It was submitted the applicant had had a disadvantaged childhood by reason of his aboriginality. However, the history contained in the psychiatrist’s report was that the applicant had a fairly good childhood, was close to his mother, never had any learning or disciplinary problems at school and completed year ten. It was not suggested on behalf of the applicant that the history, as recorded by the psychiatrist, was inaccurate. In the absence of any evidence by the applicant, his Honour was entitled to prefer the history obtained by the psychiatrist to that contained in the pre-sentence report which had stated the applicant was raised in a dysfunctional family environment, though it confirmed he completed schooling to year ten and stated he then completed three years of a carpentry apprenticeship.

17 The psychiatrist’s report contained a history obtained from the applicant that “he used to be a heavy drinker, many years ago. He described himself nowadays as an occasional drinker”. Alcohol was not a factor in this case.

18 The applicant did have a drug problem. The psychiatrist recorded a long-standing history of active poly-substance abuse; that prior to being taken into custody the applicant had been smoking cannabis and injecting heroin and amphetamines every day, and as much as he could afford. There was no evidence that such a problem existed only because of the applicant’s aboriginality. The self-administering of drugs is more likely to aggravate than mitigate - R v Coleman (1990) 47 A Crim R 307 at 327, particularly where the offender is aware of the effect of the drugs upon him, as was the case here.

19 The applicant suffered from a chronic ear infection with associated hearing deficit. It may be accepted hearing deficiencies caused by unattended ear infections is endemic among Australian aborigines (R v Russell (1995) 84 A Crim R 386 at 393). The psychiatrist recorded a history that the applicant had been abusing sleeping pills for many years in order to cope with his chronic ear infection, and that he was very upset finding himself back in gaol just because of the sleeping pills again. Every time he took the pills, he would not know what he was doing. The applicant was thus well aware of the effect of the sleeping pills. Although the taking of such pills may have contributed to the bizarre or extraordinary conduct of the applicant in sleeping on the victim’s floor, it does not make the applicant’s serious criminal conduct any the less liable to be punished for what it is – R v Newell [2004] NSWCCA 183 per Howie J at [41].

20 In my opinion, the applicant’s subjective case is not advanced in reliance upon Fernando’s case and the applicant’s aboriginality.

21 In any event, it is not every case of deprivation and disadvantage suffered by an offender of aboriginal race or ancestry that calls for the special approach adopted in Fernando (see R v Newman [2004] NSWCCA 102 per Howie J at [61]) and the mitigating effect of being an aboriginal person loses much of its force where the offender has committed similar serious offences in the past (see R v Drew [2000] NSWCCA 384 per Newman J at [21]).

22 Other subjective features were relied upon in the written submissions. It was submitted his Honour erred in concluding, “there does not appear to have been any remorse shown by the applicant for the distress that must have been caused to the victim”. The evidence in support of that submission is a comment in the pre-sentence report that the applicant “acknowledged the frightful experience he placed on the victim”. In my opinion, this comment falls well short of an expression of remorse, and, in any event, can have little value coming, as it does, only after the applicant had been convicted after a fully contested trial. There was no other evidence of remorse. His Honour had the opportunity of observing the applicant give evidence at the trial. He was entitled to conclude there did not appear to have been any remorse shown by the applicant.

23 The written submissions also relied upon the fact that the applicant’s mother, to whom he was devoted, had passed away whilst he was in custody. This is an unfortunate and sad event, but not such as provides a basis for mitigation of penalty.

24 In my opinion, his Honour was correct to conclude there were no mitigating factors which would entitle the applicant to any leniency. Indeed the applicant’s record was characteristic of a continuing attitude of ignoring the law, which would have justified a more severe penalty – Veen v R (No 2) (1988) 164 CLR 465. In my opinion, the first ground of appeal fails.

Ground Two

25 It was common ground the applicant had been assaulted whilst in gaol and had been in protective custody for the period of his remand. The Crown acknowledged that the applicant would have to be in a more difficult type of custody. However there was no express evidence as to the nature of the protective custody or that it was likely to continue.

26 This Court has held that it is relevant to the consideration of the length of the term of imprisonment and to the question of whether special circumstances exist to justify departure from the statutory proportion between the sentence and the non-parole period that a sentence of imprisonment is likely to be served in conditions of protection – R v Burchell (1987) 34 A Crim R 148 at 151. The rationale is that such custody may be more onerous than that of prisoners housed in the general prison population. However, there are many kinds of protective custody and evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender’s custody will be more onerous than that of prisoners housed in the general prison population – R v Totten [2003] NSWCCA 207. The onus of establishing matters in mitigation lies upon the applicant – R v Olbrich (1999) 199 CLR 270.

27 Accordingly the fact that an offender may be likely to serve his sentence in protection will not necessarily result in a shorter head sentence. The weight such factor will have will also depend on the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period – R v Durocher-Yvon [2003] NSWCCA 299 per Howie J at [19] and [20]; R v Mostyn [2004] NSWCCA 97 per Howie J at [179] – [181].

28 That a sentencing Judge may not have expressly referred to the circumstance in his or her remarks on sentence should not necessarily give rise to an inference that he or she has failed to take the circumstance into account – R v Totten [2003] NSWCCA 207 per James J at [44].

29 In the present case, whilst it is unfortunate his Honour did not expressly refer to the fact that the applicant was and may continue in protective custody, it does appear from his judgment as a whole that he considered the matter as of little or no weight having regard to the applicant’s record, the objective seriousness of the offence and the need for general and specific deterrence. The material before his Honour, in my opinion, did not require the reduction of the head sentence or the finding of special circumstances.

Ground Three

30 The findings by the sentencing Judge and his conclusions as to penalty were well open to him on the evidence. The sentence imposed was not manifestly excessive and a lesser sentence was not warranted in law. Indeed it was accepted by counsel for the applicant that this ground relied upon the matters raised by grounds one and two, and must fail if those grounds were unsuccessful.

Conclusion

31 I propose the following orders:

(1) Leave to appeal granted.
(2) Appeal dismissed.
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Last Modified: 07/02/2004