R v Dillon

[2004] NSWCCA 169

CITATION:	R v DILLON [2004] NSWCCA 169 revised - 10/06/2004
HEARING DATE(S):	26 May 2004
JUDGMENT DATE:	26 May 2004
JUDGMENT OF:	Hulme J at 1; Simpson J at 22; Howie J at 23
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
PARTIES :	Regina Michael John DILLON
FILE NUMBER(S):	CCA 60024/04
COUNSEL:	Crown: D Woodburn Appellant: H Dhanji
SOLICITORS:	Crown: S Kavanagh Appellant: S O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/31/0075
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

- 5 -

60024/04

HULME J
SIMPSON J
HOWIE J

Wednesday, 26 May 2004

R v MICHAEL JOHN DILLON

Judgment

1 HULME J: On 14 May 2003 Judge Nield sentenced the above-named who had pleaded guilty to two offences, firstly breaking into and entering a dwelling house and stealing property there from and, shortly afterwards, to having used an offensive weapon, namely a screw driver with intent to prevent his lawful apprehension. The offences were committed on 3 February 2003.

2 In respect of the offensive weapon charge his Honour imposed a sentence of imprisonment for a fixed period of 3 years commencing on 3 February 2003. In respect of the breaking, entering and stealing offence and taking into account 2 offences on the Form 1, the sentence imposed was imprisonment for a total period of 6 years including a non-parole period of 4 years and 6 months, both such periods to commence on 3 August 2003.

3 Thus the effective sentence imposed for both offences included a total period of 6 years and 6 months and a non-parole period of 5 years.

4 The maximum penalties prescribed for each of these offences are, for the offensive weapon charge, imprisonment for 12 years and for breaking, entering and stealing, 14 years.

5 The offences taken into account were one of driving unlicensed and one of larceny also committed on 3 February 2003.

6 At the time of commission of the offences the Applicant was on conditional liberty being subject to sentences imposed but suspended for 2 years by the County Court of Victoria on 8 October 2002 and subject to the terms of a bail undertaking in relation to a further offence in Victoria.

7 The Applicant was apprehended on the day of his offending and when interviewed, admitted what he had done. He pleaded guilty at the earliest appropriate opportunity, a fact which Judge Neild said entitled him to the maximum discount in that regard. His Honour, however, was not persuaded that the Applicant was remorseful.

8 The circumstances of the offences were described by Judge Nield, in remarks not subject to criticism in this appeal as follows:-

“What happened was this: on the morning of 3 February 2003 the offender drove his motor vehicle, Ford Telstar sedan, registered number Victoria PWQ 928, from his home at 30A Arlington Street at Gorokan to the branch office of the Department of Social Security at Wyong to attend to some matter related to his disability benefit. After leaving the office, he drove his vehicle to Tuggerah, where he went looking for an unoccupied house to break into. In due course, he happened upon the house occupied by Ms Bowers at 41 Pacific Highway and at about 12.40pm, after ensuring that the house was unoccupied, he broke down the front door of it. Doing this, he activated an alarm which alerted Mr Taylor, the owner of the house, to the unauthorised entry and he left his house at 30 Pacific Highway and went to the house at 41 Pacific Highway. In the meanwhile, the offender had entered the house at 41 Pacific Highway and he had taken a television set, a VCR remote control handpiece and a basket from the house and put them in his vehicle which he had parked at the front of the house. After returning to the house, he gathered together the stereo and speakers in preparation to taking them to his vehicle. However, while the offender was inside the house, Ms Bowers arrived home and, after parking her vehicle behind the offender’s vehicle, she walked toward her house and, in doing so, she walked past the offender’s vehicle and noticed her television set, VCR handpiece and basket on the back set of it.
Realising that someone had broken into her house, she saw that the ignition key was in the ignition switch of the offender’s vehicle and she removed the key from the switch and returned to her vehicle to use her telephone to call police. However, Ms Bowers was seen doing this by the offender and he ran from the house and confronted Ms Bowers at the driver’s door of her car and he demanded that she hand over his ignition key to him. As this was happening, Mr Taylor arrived at 41 Pacific Highway and he parked his vehicle at the front of the offender’s vehicle, locking it between his vehicle and Ms Bowers’ vehicle and he went to Ms Bowers’ aid. Then the offender went to his vehicle and removed a screwdriver form it and he again demanded that Ms Bowers hand over his vehicle’s ignition key to him. When this happened, Mr Taylor called out to Ms Bowers to throw the key to him, which she did. This caused the offender to confront Mr Taylor and a scuffle ensued between them, after which Mr Taylor threw the key back to Ms Bowers. When this happened, the offender returned to Ms Bowers and he grabbed her and forced her against her vehicle and, while threatening her with the screwdriver, he again demanded that she hand over his vehicle’s ignition key, which, on the urging of Mr Taylor, she did. After recovering the ignition key, the offender returned ot his vehicle and he drove it forward into the rear of Mr Taylor’s vehicle and then reversed it into Ms Bowers’ vehicle until he was able to drive his vehicle away. Enroute from Tuggerah to Gorokan, the offender stopped his vehicle and stole the numberplates from Mr O’Hallaron’s vehicle and put those numberplates on his vehicle. At about 4pm, police attended at the offender’s house at Gorokan and they arrested him and took him to The Entrance Police Station, where he was interviewed and charged.”

9 To the author of a pre-sentence report, the Applicant indicated that the inspiration for the burglary was the need for money, particularly to enable him to return to Victoria to collect his car and other possessions.

10 His Honour accepted that the breaking, entering and stealing offence was impulsive but planned, albeit poorly, and resulting in the ransacking of Miss Bowers’ belongings albeit not resulting in any loss.

11 The Applicant was born on 27 September 1970 and clearly had a difficult upbringing. He had learning difficulties and was placed in an opportunity school. He did not like school and was often absent. He left school barely literate. He has had short term casual employment and has been in receipt of a disability benefit since 1993 or 1994.

12 He commenced smoking cannabis at the age of 8 and later commenced using other drugs, becoming addicted to heroin. It would appear that of recent times that addiction has been dealt with by the use of Methadone and Buprenorphine. He suffers from serious depression.

13 He has an appalling record. Judge Neild observed that he had been dealt with for 82 offences in Queensland and 30 offences in Victoria. Included among the Queensland offences were 7 for breaking, entering and stealing, one for attempted breaking and entering with intent to steal, 6 for stealing and 1 for assault. Included among the Victorian offences were 2 for burglary, 4 for stealing and 8 for assault.

14 Addressing the Applicant’s prospects of rehabilitation, Judge Neild expressed doubts whether he would cease criminal offending saying that the Applicant’s past shows he is not motivated to change his ways.

15 His Honour declined to find special circumstances.

16 There can be no doubt that the sentence imposed on the Applicant for the breaking, entering and sealing was, by comparison with penalties generally imposed for that offence, a heavy one. It was of course less then half the 14 year maximum for which Parliament has provided, although that maximum must be considered in light of the fact that the relevant section covers several categories of conduct – see In the Matter of the Attorney General’s Application (No 1) [1999] NSWCCA 435.

17 However the Applicant is a recidivist, penalties imposed hitherto have not been sufficient to deter his offending and the Applicant’s offence was the result of a deliberate decision to abuse the conditional liberty which he was enjoying at the time of his offending – a circumstance properly regarded as a seriously aggravating feature.

18 Furthermore, although there are limits as to the extent to which protection of the community can justify the Applicant’s imprisonment, it is a factor relevant to sentencing which has particular significance in the case of someone of the Applicant’s ilk. He cannot expect the more lenient sentences which he has received in the past.

19 Although, of course, he is not to be repunished for his past offending, that past offending is very relevant to the light in which his current offending must be judged.

20 And it must not be forgotten that, in addition to the offence of breaking, entering and stealing, the other offence was by no means a minor one. The effective term of imprisonment imposed for it was only six months. Even had I taken the view, which I do not, that the sentence imposed on the more major charge was excessive, it is in the highest degree unlikely that I would have been disposed to reduce the overall sentence. Be that as it may, in my view the sentences imposed were well within the legitimate exercise of Judge Nield’s sentencing discretion.

21 I propose:-

1. Leave to appeal be granted.
2. That the appeal be dismissed.

22 SIMPSON J: I agree.

23 HOWIE J: I agree.

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Last Modified: 06/15/2004