R v Depoma
[2003] NSWCCA 382
•15 December 2003
CITATION: R v Depoma [2003] NSWCCA 382 HEARING DATE(S): 15/12/03 JUDGMENT DATE:
15 December 2003JUDGMENT OF: Barr J at 1; Kirby J at 36 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Criminal law - sentencing - disposing of stolen property LEGISLATION CITED: Crimes (Sentencing Procedure) Act ss32, 44
Crimes Act s188CASES CITED: R v Doan (2000) 50 NSWLR 115
R v Fernando & Anor [1999] NSWCCA 66PARTIES :
Regina
Torrens DepomaFILE NUMBER(S): CCA 60386/03 COUNSEL: Applicant: R W Burgess
Crown: D M A WoodburneSOLICITORS: Applicant: D Humphreys
Crown: S E O'Connor
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3024 LOWER COURT
JUDICIAL OFFICER :Robison DCJ
60386/03
Monday, 15 December 2003BARR J
KIRBY J
1 This is an application for leave to appeal against sentences imposed in the District Court. The applicant, Torrens Depoma, was arrested on 19 November 2002 after he had been identified as having pawned stolen goods. He was charged with breaking, entering and stealing and with two counts of disposing of stolen property. In the Local Court he pleaded not guilty to the first charge and guilty to the others and was committed to the District Court for trial and sentence accordingly. In the District Court the breaking, entering and stealing charge was discontinued and the applicant was sentenced for the two counts to which he had pleaded guilty all along.
2 On each count Robison DCJ sentenced him to imprisonment for two years. His Honour ordered the sentences to run concurrently and fixed a non-parole period of one year and two months. On the first count his Honour took into account under the provisions of s 32 of the Crimes (Sentencing Procedure) Act two instances of having goods in his custody reasonably suspected of having been stolen and two instances of furnishing false or misleading information. His Honour ordered the sentences to commence on 18 May 2003.
3 On 26 September 2001 the applicant had been sentenced at the Drug Court of New South Wales to fourteen months’ imprisonment for breaking, entering and stealing and driving offences. The non-parole period expired in May 2002 and the applicant was released on parole. Within about a month he had committed fresh offences and was arrested on 21 June 2002. A short time later his parole was revoked and he was ordered to serve the balance of the Drug Court sentences, then standing at five months and twenty-two days. However, he failed to do so and remained at large until his arrest on the present offences. He was then required to serve the balance of the Drug Court sentences until their expiry on 10 May 2003. During the currency of that sentence he was dealt with for the offences for which he had been arrested on 21 June 2002, comprising one count of having goods in his custody reasonably suspected of having been stolen and one count of dangerous driving. He was sentenced to concurrent sentences of six months’ imprisonment commencing on 19 November 2002 and expiring on 18 May 2003. In addition he was sentenced in the Local Court to eight months’ imprisonment for driving whilst disqualified and a non-parole period of six months was fixed, also expiring on 18 May 2003.
4 On 16 May 2002 he was sentenced in the Local Court for breaking, entering and stealing. A six-month sentence was imposed, also expiring on 18 May 2003. In the result, the applicant served four sentences, three of which expired on 18 May 2003 and the fourth of which had a non-parole period which expired on the same day. His Honour took the view, correctly, that the first day on which the applicant had been in custody solely for the two offences for which he had to sentence was the day of expiry of those sentences and that non-parole period. Accordingly, his Honour rejected a submission that the sentences should be backdated to commence from the date of arrest.
5 On 18 November 2002 somebody broke into a house near Liverpool and stole a number of items of property. During the afternoon of the same day the applicant went to a pawnbroker in Minto and pawned a video recorder valued at $400 and a number of items of jewellery valued at $450. Later on the same day the applicant returned to the shop and pawned a television receiver valued at $300. Altogether, the pawnbroker loaned the applicant $300 on the security of the goods. During the two transactions, the applicant certified to the pawnbroker that the goods were his. They were the two false or misleading statements taken account of in sentencing.
6 The applicant was arrested on the following day. Two gold necklaces and car keys, all belonging to the occupant of the house broken into, were found in his possession. The possession of the jewellery and the car keys was the remainder of the criminality taken into account on sentencing.
7 A substantial number of other items of property were taken as well but never recovered. All the stolen property was the subject of the breaking, entering and stealing charge which was withdrawn in the District Court.
8 The applicant declined to be interviewed by the police but later on confessed his part in the matter. He said that a person whom he did not identify had handed him the goods that he had pawned and had offered him heroin if he would pawn them. In due course, the sentencing judge found that that is substantially what happened.
9 The applicant was born on 11 February 1978 and was 25 years old when sentenced. He had started smoking cannabis at age 15 years and heroin at age 21 years. He was dealt with in the Children’s Court for assault and theft charges. After he obtained his majority he continued to commit offences of breaking, entering and stealing, larceny and the like, the kinds of offences generally associated with the use of illegal drugs.
10 In 1999 he was sentenced to home detention for six months and then to a fixed term of imprisonment for seven months. The matters which were dealt with in the Drug Court which I have already mentioned comprised five counts of breaking, entering and stealing or like offences and three others, including driving offences.
11 The structure of the sentences imposed by his Honour had the effect that the applicant would be in custody from the date of his arrest until the expiry of his non-parole period, a period of one year and eight months, before the commencement of the ten-month period of parole.
12 The first ground of appeal was that his Honour erred in failing to give consideration to the fact that the two offences could have been dealt with in the Local Court. These charges were brought under s188 of the Crimes Act. When such a charge is brought and the value of the property concerned is less than $5,000, as it was here, it is to be dealt with summarily unless the prosecuting authority elects otherwise. A magistrate dealing with the matters could not have sentenced the applicant to more than twelve months’ imprisonment on either count.
13 In R v Doan (2000) 50 NSWLR 115 this Court said that the significance of the loss of the chance of the matter being dealt with in the Local Court would vary from case to case. In some cases it would contribute to mitigation of sentence. The Court said that it was a matter to be taken into account, but not a universal factor for the reduction of sentence.
14 It appears that the only reason that these two charges were sent to the District Court was that they were accompanying the outstanding breaking, entering and stealing charge which was then expected to go for trial and it is reasonable to suppose that, but for that charge, the applicant would have been dealt with by the magistrate unless the prosecuting authority had elected otherwise. It was impossible for the sentencing judge and it is impossible for this court to know what would have happened if circumstances had been different. There is, however, an argument that in view of the recent commission by the applicant of a troubling number of offences of like kind, the prosecution might not have agreed to deal with the matters in the Local Court.
15 During debate on sentence the subject of the maximum penalty was raised. The conversation continued:
- BARBER (the solicitor for the applicant): Yes, but if it’s a matter that’s dealt with summarily, summary disposal the maximum would be twelve months if the value of the goods is less than $2,000 (sic).
HIS HONOUR: Yes.
HIS HONOUR: Yes.BARBER: Which is a matter that your Honour would consider.
16 His Honour did not refer to this topic in his remarks on sentence. It is submitted in this Court that, to the detriment of the applicant, his Honour forgot to consider the matter. I would not draw that inference. As the record shows, the debate went up to the luncheon adjournment and his Honour said that he would reflect upon the matter and give judgment immediately after lunch. That is what happened.
17 The only two pieces of evidence said to support the inference contended for are the fact that his Honour did not mention the matter in his remarks on sentence and the length of the sentence itself. To my mind the length of the sentence does not suggest that his Honour overlooked the matter and I do not think that he did.
18 The next ground of appeal was that his Honour failed to take into account the effect of his accumulating the sentences upon the six-month terms which expired in May 2003. When considering whether to extend the parole period at the expense of the non-parole period pursuant to s44 of the Crimes (Sentencing Procedure) Act his Honour expressed the view that the applicant was making a sincere attempt to rehabilitate himself. He was not a violent person. Although there had been a lengthy course of criminal behaviour over the years, producing a significant and serious criminal history, the applicant appeared well-motivated. His Honour thought that his acts in the commission of the offences under consideration were impulsive. He thought it in the interests of the applicant and the community for measures to be taken to solve his drug problem while he was in custody and after his release on parole. His Honour found that the prospects of rehabilitation would be greatly enhanced if the non-parole period was reduced. His Honour did not mention the accumulation upon the six-month sentences as a reason for adjusting the relationship between parole and non-parole periods of the sentences he was to impose.
19 It was submitted in this Court that the accumulation of the sentences largely negated the result that his Honour intended and that the non-parole period was only ten weeks less than three-quarters of the combined lengths of all the sentences.
20 However that may be, it sufficiently appears to my mind that his Honour intended the applicant to have a period of ten months on parole. That was the result. Moreover, his Honour had to consider the length of the non-parole period and to ensure that its reduction, in order to permit the extension of the period on parole, was not so great as to fail to reflect the objective seriousness of the offences and of the matters taken into account.
21 I would not take his Honour’s not having mentioned accumulation in the context of the extension of the non-parole period as showing that his Honour had forgotten that he was accumulating these sentences onto the six-month sentences. It was a factor of which he was well aware. There had been debate about it and he had declined, for sound reasons, to backdate the commencement of the sentences. His Honour could not have overlooked the matter.
22 The third ground of appeal is that the sentences are manifestly excessive, given the objective seriousness of the offences, the early pleas of guilty, the subjective case and the fact that the offences could have been dealt with in the Local Court.
23 It was submitted that it was not correct to say, as his Honour did, that the applicant was on parole at the time of these offences. His parole had already been revoked. That submission was correct but I would regard as equally serious the facts that the applicant was in breach of his parole, that he had been ordered to serve the remainder of the sentences and that he had failed to continue to do so.
24 The Court was referred to statistics published by the Judicial Commission. It was pointed out that ordinarily the District Court deals only with the more serious examples of receiving or disposing of stolen goods. Statistics show that over a period of six years to December 2002 the District Court dealt with only fifty-seven cases of disposing of stolen property and two hundred and thirty-six cases of receiving. Only about half of those charged with disposing of stolen property were sentenced to full time imprisonment and the longest sentence was four years. Cases of disposing of stolen property which resulted in custodial sentences were only twenty-nine, insufficient in my view to constitute a statistically significant base. The sentences ranged from six months to four years, the preponderance being of two years.
25 Over a period of four years to March 2003, Local Court statistics show that twenty-one percent of persons convicted of receiving or disposing of stolen goods were sent to prison. Head sentences ranged up to twenty-four months but ninety-six percent of cases had head sentences not exceeding twelve months.
26 The Court has observed on a number of occasions that it is necessary to approach such statistics with caution. One cannot tell from the figures proffered how many cases dealt with persons like the applicant, men of mature age and having significant experience in criminal activity. Although the Local Court statistics suggest that these sentences were at the optimum range of sentences generally imposed they do not, to my mind, show that the sentences were outside the range of his Honour's sentencing discretion. Insofar as the District Court figures are of any guidance at all, they show that the sentences were well within the range of sentences generally imposed in that court.
27 I would accept the submission that the applicant’s criminality was not made significantly greater by the deceits he practised on the pawnbroker but I do regard as significant the possession of the other stolen goods not otherwise explained, which originated from the same breaking, entering and stealing.
28 Although minor when viewed in isolation, these offences were the latest in a substantial series of offences. In the circumstances, the statistics do not demonstrate that the sentences were outside the range of his Honour's discretion.
29 The attention of the court was drawn to the remarks of Wood CJ at CL in Regina v Fernando & Anor [1999] NSW CCA 66 and several other cases which have commented upon the principles which apply in sentencing persons of aboriginal and Torres Strait Islander descent, as this applicant is, with regard to the deprived circumstances and denial of opportunities which often accompany such offenders.
30 The attention of the sentencing judge was called to the applicant's personal and family history. He had had an unfortunate life. His father was violent and an alcoholic. His brother was killed when they were both young. Like many such people, he took to the use of illegal drugs fairly early in his life.
31 It was submitted that it ought to be concluded that his Honour had failed to take into account the principles explained in Fernando and the other cases. That conclusion can be reached only by inference from the lengths of the sentences themselves, for his Honour took the trouble to refer to the submissions in the case and to state that he had taken the principles into account. Like all the other submissions, this one comes down to one that the very lengths of the sentences imposed demonstrate error.
32 One of the things that his Honour concluded was that there were prospects of rehabilitation. His Honour observed that it appeared to him that the applicant had reached the crossroads. His Honour may very well have taken the view that simply to impose another short sentence, as had been unsuccessfully done a number of times in the recent past in the Local Court, would go nowhere at all to ensuring that this applicant turned the corner at this crossroads.
33 His Honour took the view, and in my view was entitled to take the view, that a substantial period of time on parole was necessary in order to try and solve the problem and stop the applicant offending. That could only be done, of course, if a substantial period of imprisonment was imposed. One can scarcely see how it would be possible with the sentences as short as 12 months.
34 Accordingly, it seems to me that there were sound reasons why his Honour should impose the sentences he imposed. It has not been demonstrated to my mind that they fell outside the proper range of his Honour's sentencing discretion.
35 I would grant leave to appeal but would dismiss the appeal.
36 KIRBY J: I agree with the order proposed and the reasons given.
37 BARR J: The orders of the court are as I have proposed.
Last Modified: 12/17/2003
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