R v Harris

[2007] NSWCCA 130

New South Wales
Court of Criminal Appeal

CITATION:	R v HARRIS [2007] NSWCCA 130
HEARING DATE(S):	12 March 2007
JUDGMENT DATE:	14 May 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 1; Hislop J at 1
DECISION:	See paragraph 90
PARTIES:	Regina William Mohi HARRIS
FILE NUMBER(S):	CCA 2006/2907
COUNSEL:	Crown: P Ingram Respondent: G Jones
SOLICITORS:	Crown: S Kavanagh Respondent: S O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/0208
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	24.10.06

- 29 -

2006/2907

McCLELLAN
HULME J
HISLOP J

Monday 14 May 2007

R v William Mohi HARRIS

Judgment

1 THE COURT: In these proceedings the Crown has appealed, on grounds of manifest inadequacy, against the sentences imposed on the Respondent by Judge Hughes on 24 October last. The offences and the sentences imposed were:-

1. On 15 March 2006 breaking and entering a dwelling house at 3B Undercliffe Lane, Earlwood and stealing there from in circumstances of aggravation, viz. being in company with another person – imprisonment for a non-parole period of 12 months from 30 May 2006 together with a further term of 10 months from 30 May 2007 to 29 May 2008;
2. On 15 March 2006 breaking and entering a dwelling house at 3A Undercliffe Lane, Earlwood and stealing there from in circumstances of aggravation, viz. being in company with another person – imprisonment for a non-parole period of 12 months from 30 May 2006 together with a further term of 10 months from 30 May 2007 to 29 May 2008; and
3. On 21 February 2006, at Redfern, taking and driving a conveyance registered number QCL 786 without the consent of the owner thereof – imprisonment for a fixed term of 6 months commencing on 30 May 2006.

2 The effective total sentence for the 3 offences was thus imprisonment for a non-parole period of 12 months from 30 May 2006 together with a further term of 10 months from 30 May 2007 to 29 May 2008.

3 The break, enter and steal offences contravened s112(2) of the Crimes Act and each rendered the Respondent liable to imprisonment for 20 years. Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act prescribes a period of 5 years as a standard non-parole period for offences under that sub-section. Had there not been the circumstance of aggravation, the maximum penalty to which the Respondent would have been liable would have been 14 years if tried on indictment. Being aggravated, the breaking and entering offences with which the Applicant was charged had to be so tried. The taking and driving offence contravened s154A of the Crimes Act and rendered the Respondent liable to imprisonment for 5 years if tried on indictment.

4 The circumstances of that offence were that the Respondent was driving the relevant vehicle when stopped by police. It had been stolen on the previous day and when stopped, its key barrel was observed to be detached from the steering column which had been damaged. When stopped, the Respondent asserted that he had borrowed it from a friend and acknowledged that he “sort of” knew it had been stolen because of the key. The key used belonged to a Subaru while the vehicle was a Ford.

5 The circumstances of the break, enter and steal offence at 3B Undercliffe Street were that an external glass door was smashed and the door jemmied open. Drawers and bags had been moved and the contents tipped out. Items stolen included cameras, watches and jewellery. Although one of the victims assessed the value of the goods stolen to be about $4,000, the Statement of Facts asserted the value to be $1,500 and this was the amount the judge found. The cost of fixing the door was some $7-800.

6 The offenders then moved to adjoining premises at 3A Undercliffe Street, gaining entry through a rear balcony door which they damaged. However they set off an alarm that resulted in an acquaintance of the owner attending and, it would seem, disturbing the offenders who left. The only item stolen in this second offence seems to have been a laptop computer, said to have been worth some $4,000. After the offenders left, the computer was found in a neighbour’s driveway, broken.

7 In sentencing the Respondent in respect of the first count, His Honour took into account two further offences: One of, on 15 March 2006, being in possession of an implement of housebreaking, viz a jemmy bar; and one of, on 6 March 2006, breaking and entering a dwelling house at 1 Woolcott St, Earlwood and stealing there from in circumstances of aggravation, viz. being in company.

8 The Respondent’s possession of the jemmy had been captured on a CCTV camera during the offence at 3A Undercliffe Street. The jemmy itself was found in a stolen motor vehicle AOM 91P in which the Respondent was travelling when the vehicle was stopped by police on 16 March. Having been arrested at that time he later identified the jemmy as the one depicted on the CCTV.

9 The offence at 1 Woolcott St was also commenced by the forcing of a door. Numerous items were stolen including jewellery, cameras, watches, mobile phones, perfume, speakers, clothes, and a very extensive pen collection (including rare pens). The owner estimated the cost of replacing the items stolen to be in excess of $23,000 although the Facts Sheet asserted merely a value of $5,000 to $6,000.

10 Why there were the discrepancies between the values given by the owners of the goods stolen (supported by detailed itemisation) and the values stated in the Statement of Facts is not apparent. Furthermore, why in the case of both offenders the Crown included the most serious offence in the Form 1 is difficult to understand. The most serious offence should have been charged and if it was desired to place some offences on a Form 1, they should have been one or more of the lesser offences.

11 At the time of sentencing the Respondent Judge Hughes also dealt with the Respondent’s co-offender, a Mr Facer. The charges preferred against him were the same as the first 2 charges against the Respondent. Mr Facer also had 2 matters on a Form 1, one of these being the break, enter and steal at 1 Woolcott Street and the second being possession of a small quantity of cannabis. Mr Facer had pleaded guilty and the sentences imposed on him were each of imprisonment for a non-parole period of 15 months commencing on 22 March 2006 and a balance of term of 12 months.

12 In the case of both offenders his Honour started with a sentence of 3 years, reducing this by 25% for the pleas and, in the case of the Respondent, by approximately another 15% for assistance.

13 Reference should be made to the Respondent’s antecedents and subjective matters. He was born in June 1981. In June 1999 he was placed on three 18 months recognisances for offences of larceny, goods in custody and possession of implements to enter or drive a conveyance. The bonds were accompanied by conditions or recommendations that he undergo drug and alcohol counselling. In September 1999 he was sentenced to 4 months imprisonment for breaking, entering and stealing. In November 1999 he was given a further recognisance for assault with intent to commit a felony and a condition was imposed that he participate in courses for anger management, drug and alcohol counselling as he might be directed. He was also sentenced to 2 years periodic detention for robbery whilst armed, periodic detention which was cancelled in April 2000 when he was sentenced to full time custody.

14 In April 2003 he was sentenced to 5 concurrent terms of 6 months imprisonment for assault, driving a conveyance taken without the consent of the owner, larceny, obtaining money by deception and receiving or disposing of stolen property. He was fined for 2 counts of possession of a prohibited drug and one of having custody of a knife in a public place. In May 2005 he was sentenced for 4 offences of break, enter and steal and in August of that year for one count of taking and driving a conveyance without the consent of the owner. Again 5 sentences of imprisonment were made concurrent. The longest period of imprisonment was one of 12 months including a non-parole period of 6 months, both periods commencing on 3 May 2005. There have also been other offences it is unnecessary to detail.

15 He was thus on parole at the time of each of the offences for which he was sentenced. At the time of commission of the breaking, entering and stealing offences, he was also on bail following his arrest on 21 February for the offence the subject of the third charge.

16 It should be mentioned also that the Respondent’s current incarceration commenced on 17 March 2006 when he was arrested in relation to the offences at Undercliffe Street. On 11 April 2006 he was sentenced to imprisonment for 6 months from that date for driving a conveyance taken without consent. Although it probably does not matter for present purposes, that vehicle would seem to have been one used to travel to and depart from the scene of the breaking, entering and stealing offences.

17 The Respondent gave evidence on sentence. Despite being in custody since his arrest he still had the support of a partner and had a daughter. He had been working and had undertaken some courses in custody. Asked why he had not addressed his drug problem prior to the commission of the offences he claimed that “It wasn’t my choice thing. I just wanted to support the habit I guess and I thought that was probably easier”.

18 With some assistance he had also typed up a statement that he said was true and which was admitted into evidence. In that statement he said that his parents had separated when he was young and he had not seen his mother since he was a small child. When they separated he was placed with an uncle and there subjected to violence. He ran away when he was 8 and started smoking marijuana when he was 10, missing school. He often missed school but did well with his school work. When he was 15 his father returned to New Zealand, picked up the Respondent and brought him to Australia. Nevertheless, he did not get on well with his father and said that on a few occasions his father “would get so high drunk and paranoid and chase me out of the house with anything he could use as a weapon.” After about a year the Respondent left and lived on the streets.

19 In about 1996 he met the woman who became his partner. They have been in a relationship since about 2000 despite the Respondent’s incarceration on some occasions since. His partner works and they have two children aged 1 and 4.

20 In the statement the Respondent maintains he has usually had a full time job, mainly in construction work or as a storeman; his employers have been generally happy with him until he “fade(d) away on drugs again”. He said that at the time of his arrest he was working but needed additional money for his habit and family.

21 He said that while he would wish for a better upbringing, he accepted that he had to make do with the cards life had dealt him and that he alone was responsible for his actions. He said he knew he had to stop taking drugs and was determined to do so. He had seen counsellors in prison, knew he needed intensive rehabilitation, had been accepted into the William Booth program and, whether or not as part of his sentence, he would participate in that program.

22 In evidence also was a Pre-Sentence Report. In light of the matters to which I have already referred it is only necessary to mention that the report recorded that the Respondent had been a talented rugby league player and that his only explanation for the offending was that “when he was not working he would “just do the crime” in order to pay the bills, that the Respondent admitted to occasional use of “ice” in addition to cannabis use described by the Respondent as “out of control” and that although the Respondent had not responded well to opportunities previously afforded by the courts he “seems seriously committed to making significant changes”.

23 In this connection, his Honour observed:-

“I am hopeful that there is some chance of rehabilitation. It seems, if I am correct on the anger management course and the William Booth courses that they are going to do when they get out of prison, that there is a good chance of rehabilitation although Mr Harris only seems to be involved with marijuana. I assume it is not as expensive as heroin.

24 In R v Hayes (1984) 1 NSWLR 740 at 742 Street CJ, with the concurrence of the other members of the Court, said:-

“It is becoming notorious in the community that offences of break enter and steal are being committed with increasing frequency…
It is not necessary to discourse at length upon the disruption to peaceable living caused by this current upsurge in burglaries. Householders cannot leave their homes in confidence that the contents will be safe. The trauma of re-entering a home that has been ransacked is in itself no light matter. This can cause a continuing uneasiness and disquiet at the knowledge that an unknown person has invaded their sanctity of the home. Added to this is the emotional distress at the loss of property, including treasured items that frequently have sentimental value far in excess of their intrinsic worth. Even those who are not immediate victims of burglary nevertheless feel its effect in the escalating premiums charged by the insurance industry for insuring against the risk of its occurrence. The invasion of people’s homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts. To some extent there is justification for Mr Glissan’s submission that the present sentences are high in comparison with current sentencing patterns. It is, however, the considered view of this Court that the time has come for a hardening in the policy of criminal courts when sentencing for this offence. There has developed a tendency to give inadequate weight to the legislative policy which fixes fourteen years as the statutory maximum for this offence. That tendency needs correction. The statutory maximum of fourteen years places break, enter and steal amongst the more serious of the offences within the offences dealt with in the Crimes Act 1900.”

25 Hayes had pleaded guilty to 4 charges of break, enter and steal with another 30 similar offences being taken into account. All the offences were committed whilst on parole. The Court dismissed an appeal by him against a sentence of 13 years including a non-parole period of 8 years.

26 In R v Jones (Unreported, CCA, 30 June 1994), Caruthers J, with the concurrence of Badgery-Parker J observed, “… over the ten years that have passed since this Court gave its judgment in Hayes … there has been a marked tendency for Courts to impose sentences for break, enter and steal which do not reflect the concern expressed in Hayes about the prevalence and seriousness of this offence … .” Then, after quoting from R v Hayes the passage commencing “The invasion …” and concluding with the sentence referring to the hardening of policy, his Honour remarked:-

“The time has come for a reassertion of that statement of policy by the Chief Justice. In my view, the dismissal of the appeal in this case should be looked upon as a correction of the trend which has developed since Hayes to underrate the degree of criminality involved in this offence.”

27 Jones had appealed against a sentence of 5 years and 4 months, including a minimum term of 4 years, on one count of breaking, entering a dwelling house and stealing there from goods to a value of a little over $4,200. He had committed at least 21 offences previously many, perhaps most, of dishonesty, including a prior incident of breaking, entering and stealing which the Court regarded as of particular relevance. For that offence he had received a sentence consisting of a minimum term of 2 years and an additional term of 2 years which had not expired at the time of the offence the subject of the appeal to this Court.

28 The approach of the Court in R v Hayes has been followed or cited with approval in this Court on numerous occasions – R v Maher [2004] NSWCCA 177 at [44]; R v Pantelakis (unreported, CCA, 8 September 1992); R v Berry (unreported, CCCA, 19 July 1991); R v Cottier (unreported, CCA, 18 December 1990); R v Simon (unreported, CCA, 26 July 1990); R v Sullivan (Unreported, CCA, 11 December 1990). See also R v Weaver (Unreported, CCA, 24 February 1997).

29 However, in the guideline judgment of Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors [1999] NSWCCA 435, Grove J, with the concurrence of the Chief Justice and Sully J pointed out that R v Hayes was decided when a system of remissions was in operation prior to the introduction of the Sentencing Act 1989 and in both R v Hayes and R v Jones there had been a failure to recognise that s112 and the maximum penalty prescribed also covered cases where the offence committed or contemplated in conjunction with the breaking and entering might be much more serious than stealing. Grove J’s remarks and those quoted and made in Marshall v R [2007] NSWCCA 24 certainly make it doubtful whether an offence of or involving breaking, entering and stealing could ever justify a sentence at the top of the ranges for which s112 (1) and (2) provide. Nevertheless the maxima of 14 years and 20 years provided by those subsections still leave plenty of scope for the imposition of heavy sentences where the addition to the elements of breaking and entering is stealing.

30 It is also to be observed that nowhere in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors was doubt cast on the appropriateness of most of the remarks the Court has quoted from the earlier cases. Indeed in R v Scott [1999] NSWCCA 434, one of four cases considered and in which judgement was delivered at that same time as the guideline judgment, Sully J, with whom the other judges agreed, quoted remarks of the sentencing judge in that case and observed that they were correct in principle. These remarks were:-

“The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community.
In the court of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such is the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders.
Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim.
It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes.
Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted.

Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment.”

31 Although in Attorney-General’s Application (No 1) under s26 of the Criminal Appeal Act, R v Ponfield and Ors the Court declined the Crown’s application to provide a guideline in quantitative terms, the Court indicated that a court should regard the seriousness of an offence contrary to s112(1) as enhanced and reflect that enhancement in the quantum of sentence if any of a number of specified factors are present. Included among the factors mentioned and relevant to the situation of the Respondent here were:-

(i) The offence is committed whilst the offender is at conditional liberty;
(ii) The offender has a prior record, particularly of like offences;
(iii) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Law Procedure Act);
(iv) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

32 In the sentencing of the Respondent Judge Hughes made a number of errors. The first is that His Honour imposed identical sentences on the first and second charges notwithstanding that in determining the sentence for count 1 he took into account the two further offences to which reference has been made. As has been said, one of those offences taken into account was the most serious of the breaking, entering and stealing offences. There should have been an increase in the sentence on count 1 beyond that he would otherwise have imposed to take account of these offences and accordingly that sentence should have been higher than the sentence imposed on the second charge.

33 The only other difference between counts 1 and 2 lay in the value of the goods stolen, those the subject of count 1 being said to be worth $1,500 and the computer the subject of count 2 being said to be worth some $4,000. That difference may well have justified some difference in the penalties between the offences but was nowhere near enough to offset the demands of the offences taken into account. His Honour gave no reasons as to why he imposed a sentence of the same severity on the 2 counts.

34 A second error was to commence the Respondent’s sentence(s) on 30 May 2006. He was induced to do so by the Crown Prosecutor who urged that date saying that after the Respondent’s arrest on 17 March his parole was revoked and he was ordered to serve the balance of parole to date from 18 March and expire on 29 May 2006. However the Respondent’s antecedents report which was before his Honour revealed the 6 months sentence from 11 April 2006.

35 The effect of fixing 30 May as the commencement date was to subsume all of the period of that earlier sentence, except the 7 weeks or so between 11 April and 30 May, in the sentence(s) Judge Hughes was imposing. Totality required some concurrency but it was erroneous to afford that much and the Crown should never have suggested the 30 May.

36 A third error was in his Honour’s treatment of the Applicant’s assistance to the authorities. Section23(2) of the Crimes (Sentencing Procedure) Act sets out in detail matters that are to be considered in evaluating any discount to be allowed for assistance and his Honour did not carry out the task that the section required. Indeed the evidence hardly permitted him to do so, the only evidence in this connection being a statement in the Facts Sheet:-

“The accused has assisted Balmain Detectives with their investigation into a large number of break and enters in that area”.

37 His Honour also erred in making the 3 sentences he imposed concurrent.

38 Offences of the nature of those committed by the Respondent each involve their own loss or damage, in part in the sense of physical damage and goods taken and in part in the unease, disquiet, and feeling of violation such offences engender. With rare exceptions, each involves a different victim or group of victims and a separate exercise of an offender’s will. Even an offender who decides to spend his day breaking and entering makes separate decisions as he goes along a street, considering which houses are occupied, which may be entered undetected and which are likely to most productive of gain. Similarly in the case of car stealing or use. Although the offences may all share the same motivation, such as an offender’s need for money or goods with which to indulge a drug addiction, each involves its own separate criminality. Putting aside cases where there is a significant difference in the nature of the offences, an offender’s criminality is greater by reason of committing three offences rather than one or two.

39 In Pearce v R (1998) 194 CLR 610 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Thus, if additional or greater criminality inherent in the commission of second, third and subsequent offences is to be punished at all, some accumulation of sentences is almost always required. As was also said in Pearce v R (at [49]:-

“Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count.”

40 An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer that if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur – see R v Brown [1999] NSWCCA 323 at [24]; Mungomery (2004) 151 A Crim R 376 at 381.

41 Considerations of general and personal deterrence demand that the courts signal to would-be offenders, many of whom in this area are serial offenders, that they can expect punishment for each of their offences.

42 Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.

43 Of course at times there will be good reason for complete concurrency. One is where some offences are little more than incidents of, or incidental to, others. Thus had the possession of the jemmy been charged rather than placed on a Form 1, and there been no other evidence as to its use beyond what I have stated, it would not have been inappropriate to make that sentence wholly concurrent with the sentence for the offence in which it was used. Were an offender charged with break, enter and steal also charged with having custody of the same goods, it would be a rare case where anything other than concurrent sentences for those offences would be appropriate.

44 Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, “Principles of Sentencing” endorsed in Mill v R (1988) 166 CLR at 59 at 63:-

“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”

45 Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.

46 In this connection the Court endorses the remarks of Sully J, though as a member of a two judge bench, in R v Wheeler [2000] NSWCCA 34. At [36] – [37] his Honour said:-

“… (There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.
It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

47 Returning to the circumstances of the case in hand, each of the 3 offences for which the Respondent stood for sentence involved its own criminality. This is perhaps most obvious in the case of the third offence which occurred some 3 weeks prior to the break, enter and steal offences but reflecting decisions to enter separate premises and to steal more goods, thereby creating yet more victims, so did each of the break, enter and steal offences.

48 Because a standard non-parole period is specified in respect of the break, enter and steal offences, it is appropriate to reflect where on the scale of objective seriousness they fall. It is appreciably below the mid-point though not, as the Crown Prosecutor conceded below, “at the low range”. Factors leading the Court to that conclusion include the view, which we share, that stealing is one of the lesser indictable offences encompassed by s112; that the aggravating feature of being in company is one of the least aggravating of the features encompassed by the definition of “circumstances of aggravation” in s105 of the Crimes Act; the fact that the value of the property stolen was not large by comparison with many otherwise similar cases; the fact that the premises were not seriously damaged or vandalised; and the fact that the offences were committed in daylight. On the other hand, it is clear that they represented pre-planned, deliberate criminality.

49 There is no standard non-parole period fixed for offences under s154A. However it may be noted that because of its more confined terms, offences under that section fall within a much narrower range than do those falling within s112. Accordingly, the offence committed by the Respondent falls proportionately higher on the scale of criminality of offences under s154 than do the break, enter and steal offences on the scale of those under s112.

50 Of course, in addition to the objective circumstances of the offences other matters have to be taken into account. The Respondent’s record indicates that he is a recidivist who has not learnt from either the chances given or the punishments imposed by the courts in the past. As has been indicated, his record includes possession of implements to enter or drive a conveyance, 2 charges of driving or taking and driving a conveyance taken without the consent of the owner and 5 of break, enter and steal.

51 He chose to offend while on, and in blatant disregard of the terms of, conditional liberty – parole or bail or both - a circumstance that numerous decisions of this Court have indicated to be seriously aggravating.

52 Against the possibility that this Court should regard the sentence imposed by Judge Hughes as so low as to enliven the Court’s entitlement to interfere and allow the Crown appeal, and because of its potential relevance to any increased sentence, affidavits were read providing further information as to the nature, extent and usefulness of the Respondent’s assistance to police. It is neither necessary nor desirable that the Court detail this. There was some assistance but police enquiries or investigations showed that a deal of what the Respondent said was wrong, and in totality, his assistance was of very limited value. He would not seem to have suffered harsher custodial conditions in consequence.

53 The Court has not in those observations referred to all of the matters that s23(2) of the Crimes (Sentencing Procedure) Act requires a court to consider. None of the others argue for or against the Respondent to any substantial degree. However, the Court makes it clear that we have addressed them all. A discount of the order of either 5% or 6 months is the most the Court would be disposed to allow on account of the Respondent’s assistance.

54 The Court does not forget that the Respondent’s upbringing must have imposed difficulties to which most members of the community are not subject and which at least at some stage would have entitled him to a degree of leniency. However, he had a history of offending for some 17 years prior to the subject offences, he had been before the courts numerous times, he had had many opportunities to reform his ways and has not taken them. There is a limit to the period during which the community can be expected to endure his depredations and excuse them on the basis that it was his upbringing and not his choices that was at fault.

55 Nor does the Court ignore the good sense in the statement he prepared and which came into evidence and his expressions of willingness to participate in the William Booth program. The sentencing judge used terms of “chance” and “if” when referring to the Respondent’s prospects of rehabilitation rather than expressions indicative of more confidence but nevertheless in light of all of the evidence the Court regards the Respondent as entitled to some allowance on this account.

56 The parties did not attempt to refer the Court to any comprehensive or even reasonably comprehensive range of prior cases. Indeed, because of the number of offences of the nature presently under consideration, it probably would have been unproductive for this to have been done. The disparity in sentences one sees argues in the same direction. The 4 cases considered at the same time as the guideline judgment demonstrate as much.

57 In R v Ponfield [1999] NSWCCA 422, the Respondent to a Crown appeal had pleaded guilty to 3 offences of breaking, entering and stealing and asked that there be taken into account offences of possessing implements, of driving a conveyance and of failing to appear. At first instance, on 2 counts sentence was deferred upon him entering a recognisance, conditioned upon him continuing under the supervision of the Probation Service and undertaking full time rehabilitation if so directed, and on the third, he was sentenced to 500 hours community service. He had a bad record including 8 convictions for breaking, entering and stealing, 3 for breaking and entering with intent, 1 for attempting to break, enter and steal and one for robbery in company. One offence was committed whilst he was on bail.

58 During the course of the sentencing proceedings, adjournments for what was in total 5 months were granted during which the Respondent took steps toward rehabilitation that this Court described as “strides” and “commendable”. Allowing the Crown appeal upon the ground of manifest inadequacy, this Court imposed concurrent sentences of 2 years including non-parole periods of 6 months. The Court did not explain why the sentence was so low although it may well be that that was a reflection of the discretion that exists in Crown appeals, particularly when the allowing of a Crown appeal involves the imposition of a custodial sentence in lieu of a non-custodial one imposed below.

59 (To be fair in respect of what the Court sees to be an error in Judge Hughes’ approach, in R v Ponfield this Court took the matters on the Form 1 into account in relation to one only of the offences and did not explain why the same sentence was appropriate for each. It may be that in light of the leniency of the sentence this topic was regarded as insignificant.)

60 In R v Johnson [1999] NSWCCA 431 the offender had pleaded guilty to 7 counts of offending against s112(1) and asked that 18 further offences be taken into account. Of the further offences 12 were of breaking, entering and stealing, 2 were of breaking, entering and stealing with intent (sic) and the others were of a lesser nature. The offences occurred over a period of 2½ years. On one count, and taking into account the further 18 matters, a sentence of imprisonment of 6 years including a minimum term of 3 years, was imposed. On the other 6 offences, sentences of fixed terms of 3 years, concurrent with each other and concurrent with the first sentence mentioned were imposed. The Applicant was regarded as having a strong subjective case and, being willing to enter into a rehabilitation unit, a fair chance of rehabilitating himself. His appeal was dismissed.

61 The applicant in R v Ryan [1999] NSWCCA 432 had pleaded guilty to eleven counts including three of receiving stolen property and eight of breaking, entering and stealing. One matter of unlawful possession of cannabis was taken into account. In respect of the breaking, entering and stealing offences, the Applicant was sentenced to concurrent terms of imprisonment of 4 years including minimum terms of 2 years and in respect of the three other offences fixed terms of 2 years also concurrent with the breaking, entering and stealing sentences. The nature of the breaking, entering and stealing offences involved entry into unoccupied homes. The offender was 19 at the time of offending; was not a drug user at the time but was in a difficult financial situation. Sully J with whom Spigelman CJ and Grove J agreed, said that the total effective sentence was not manifestly excessive (although the appeal was allowed on parity grounds).

62 In R v Scott [1999] NSWCCA 434 the Applicant had been found guilty of two offences of breaking, entering and stealing and pleaded guilty to a third, the offences occurring over an 18 month period. The sentence, with which this Court refused to interfere was, for the first of these offences, imprisonment for 5 years and 9 months including a minimum term of 3 years and 9 months and for each of the other offences imprisonment for 2 years to be served concurrently with the sentence on the first charge. The offender was 24 at the time he stood for sentence and seems to have had both a drug addiction and a record of offending in respect of which the sentencing judge took the view the Applicant had been shown much mercy in the past.

63 Of course, in these three last mentioned cases, the issue for the Court was whether the sentences were manifestly excessive, not whether they were adequate.

64 Particularly given the absence or impossibility of considering a reasonably comprehensive range of prior cases, reference should be made to the JIRS statistics. The Crown drew attention to those in relation to s112(2) – “Consecutive and Non-consecutive Terms, All Offenders” - and covering the period 1 February 2003 and June 2006. There were 253 cases where imprisonment was imposed and only 9 where the total sentence was less than 24 months and 21 where it was 24 months. (Of course one must be conscious that in the statistics, sentences are rounded upwards to the next figure divisible by 6.) One difficulty with this group is that one does not know how many individual sentences may be included in the “consecutive terms”.

65 The Crown also sought to rely on the figures for “Non-parole Period/Fixed Term, Non-consecutive Terms, All Offenders”. These showed 184 cases including 5 of sentences of 6 months, 36 of sentences of 12 months and the balance of longer periods. However since judgment was reserved, the statistics compiled as at April 1997 have become available. Set out below is a summary of those relating to sentences for higher courts for both offences under s112(1) and s112(2). Those for the former subsection are broken up into cases where there has been stealing and those where some other offence has been committed in addition to the breaking and entering. Those for offences under s112(2) are not. The statistics show:-

Section 112(1)

Plea Guilty, Same Priors, Non-Consecutive	Plea Guilty, Non consecutive, All
B, E & S	B, E & OtherB, E & S
Full Term	NPPFull TermNPPFull TermNPP
No of Cases	44	441313417417
Median – months	36	1830243618
% at median	30	278312729
% below median	46	4646464940
% above median	26	2747232531
% at or below R’s sentence	32	4646383440


Section 112(2)

Plea Guilty; Same Priors; Non-consecutive Terms	Plea Guilty; Non-Consecutive Terms; All
Pre 1/2/03	Post 1/2/03Pre 1/2/03Post 1/2/03
F T	NPPF TNPPFTNPPFTNPP
No Cases	70	705454243243189189
Median – months	36	18361836183624
% at median	21	24303722222621
% below median	30	33332728292649
% above median	47	42373549474930
% at or below R’s sentence	23	33202718291523

66 The statistics under s112(2) suggest only a small increase in the length of sentences since the introduction of the standard non-parole period. Of more significance however is the comparison between offences under ss112(1) and 112(2). Experience would indicate that at least 50% of the offences under the latter sub-section do involve stealing yet the difference in the sentencing patterns between those for offences under ss112(1) and 112(2) is only small. Given the difference in the maximum sentence prescribed by the sub-sections, the statistics thus suggest that inadequate weight is being given to the presence of circumstances of aggravation.

67 A comparison of the full terms and non-parole periods in the table is also noteworthy. In 5 of the 7 groups of cases, the median non-parole period is 50% of the median full sentence. In most categories the percentage of non-parole periods falling at or below that median is in the range of 69% or 77%. When regard is had to the terms of s44(2) of the Crimes (Sentencing Procedure) Act, the effect of which is to require a non-parole period to amount to three-quarters of the total sentence unless the court decides that there are “special circumstances”, it is apparent that “special” is being given an operation that bears no relationship to its meaning.

68 Of course, although we have used those we regard as most comparable, the statistics do not record the extent of the prior records of the offenders, nor whether offenders were on conditional liberty at the time (although experience makes it inevitable that some were). However, putting such matters aside, a comparison of the individual sentences imposed on the Respondent for the breaking, entering and stealing charges with the statistics suggests that while those imposed on the Respondent were lenient, they were not manifestly inadequate.

69 The statistics for sentences in the higher courts for offences under s154A are too few to make any comparison worthwhile. Those in the local courts show that of 1,003 offenders, 508 were sentenced to full time custody, the median sentence was of 12 months, 37% of offenders receiving this penalty and 41% receiving less. The median non-parole period or fixed term was 6 months, 29% of offenders receiving this penalty and 21% receiving less.

70 Again a simple comparison with the statistics does not indicate that the sentence on the third count was manifestly inadequate.

71 Nevertheless we are satisfied that, even considered individually, all 3 sentences are manifestly inadequate. Both the decisions to which the Court has referred and more recent statistics make clear that offences of the types committed by the Respondent are common. While Issue Paper No. 36 of April 2007 published by the NSW Bureau of Crime Statistics and Research indicates that there has been a significant drop in break and enter offences since 2001, the statistics indicate that in 2005 and 2006 there were still, respectively, some 76,500 and 74,800 such incidents. The Australian Bureau of Statistics publication, “4509.1 – Crime and Safety, New South Wales, April 2006” records that in the 12 months to April 2006, 3.5% of households suffered being broken and entered and 3.1% were the subject of attempted breaking and entering. Such offences amount to a substantial impost on the community and as experience and cases the Court has mentioned show, those who commit them tend not to stop at one offence but repeat their offending time after time.

72 The taking and driving of vehicles is also regrettably common. Again while there has been a reduction, the NSW Bureau of Crime Statistics and Research paper to which reference has been made show that in 2005 and 2006 there were respectively 29,000 and 28,000 such offences. On average that is 78 offences every day.

73 The commission of the offences under present consideration demonstrates that the Respondent has been unwilling to learn from the courts’ treatment of him in the past and that prior punishments have been an insufficient deterrent.

74 Against the statutory maximum of 20 years, even if that is discounted substantially for the fact offences encompassed by the section include offences far more serious than breaking, entering and stealing, Judge Hughes’ starting point of 3 years for the breaking and entering offences for a recidivist with the Respondent’s record of similar offending and who offended in breach of both parole and bail is substantially too light. Even without that last mentioned factor, Judge Hughes starting point could not reasonably have been less than 4 years. When that factor is taken into account, it should have been not less than 5 years.

75 The length of the sentence imposed on the third charge was also manifestly inadequate. As the Court has said, offences falling within s154A of the Crimes Act fall within a much narrower range than do those falling within s112 and that committed by the Respondent falls proportionately higher on the scale of criminality of offences under s154 than do the break enter and steal offences on the scale of those under s112. Having regard to the simple definition of offences under the section, the objective seriousness of the Respondent’s offence the subject of the third charge was no lower than the midpoint of offences under that section. When regard is had to the Respondent’s failure to learn from his past experience in the courts, including for similar offences, and the fact that he was on conditional liberty, a proper starting point for this offence could not have been less than 3 years.

76 Because this is a Crown Appeal it is also necessary to notice additional matters. It is clear law that any failure by the Crown Prosecutor at first instance that contributes to an inadequacy in sentence may lead this Court to refuse to interfere on a Crown appeal or interfere to a lesser degree than would otherwise have been appropriate. In this case there were significant failures. The Court has referred to the Crown’s erroneous submission that the sentence commence on 30 May 2006. The more important of the other errors were that the Crown considered the offences were not only below the middle range of objective seriousness but in the low range; that it was open to the court to make the sentences wholly concurrent; while saying that the standard non-parole period did not apply, omitting to mention that it still had a part to play as a guide or benchmark in the sentencing of the Respondent – R v Way (2004) 60 NSWLR 168, R v Porteous [2005] NSWCCA 115 at [22-3], R v Lovell, R v Dominey [2006] NSWCCA 222 at [57]; and observing (merely) that the criminal history of each offender should not afford them any leniency. As a statement of the significance of an offender’s criminal history, the latter proposition was rejected by the High Court in Veen v R (No 2) (1987-88) 164 CLR 465 at 477-8.

77 Also to be considered are the sentences imposed on the Respondent’s co-offender, for to increase the Respondent’s sentences to what they should have been will clearly create disparity, indeed great disparity, with those imposed on Facey. Although of course there is a discretion to permit disparity to occur – R v Diamond (unreported, CCA, 18 February 1993; R v Steele (unreported, CCA, 17 April 1997; R v Ismunandar and Siregar [2002] NSWCCA 477 - the considerations that inspire the principle of parity mean that the Court should hesitate before allowing it.

78 Relevant in this connection is the fact that the Crown has not sought to appeal from the sentences imposed on Mr Facer. Counsel appearing before this Court, who was not involved in the relevant decision making or lack of it, was unable to explain why. Both circumstances are not uncommonly experienced when this Court has to consider appeals against the sentence imposed on one of a number of co-offenders. Despite criticism by the Court, the Office of the Director of Public Prosecutions still seems often incapable of co-ordinating its activities where co-offenders are involved.

79 The Court accepts that the nature of litigation is such that at times events judged by an appellate court to be erroneous are bound to occur. However the errors on the part of the Prosecution to which the Court has referred do not fall into that category. Whether it be lack of funds, lack of staff, lack of competence, lack of time or lack of organisation on the part of the office of the Director of Public Prosecutions, sentencing courts should be better served than was Judge Hughes. Nor should this Court have to deal with issues of parity because of problems in the office of the Director of Public Prosecutions of which this Court has complained numerous times in the past.

80 It should be added that counsel appearing for the Crown disclaimed any desire for a result that left the Respondent with a justifiable sense of grievance arising out of any disparity, and submitted that there were distinctions between the Respondent and Mr Facer such that the appeal could be allowed without creating disparity, these differences lying in the differences in criminal records, ages and the fact that Mr Facer stood to be sentenced for only the 2 breaking and entering offences. As has been said, the Respondent was born in June 1981. Mr Facer was born on 22 October 1986. At the time of commission of the offences in March 2006 the Respondent was thus nearly 24¾ whereas Mr Facer was about 19½.

81 Mr Facer’s antecedent’s report was tendered during the appeal. It shows that he was charged in December 2004 with a number of driving offences including driving though never licensed and using an unregistered and uninsured vehicle. He was charged on 20 January 2005 with malicious destruction of or damage to property and in April 2005 with break, enter and steal and possession of a prohibited drug. In June 2005 he was charged with another offence of breaking, entering and stealing. He was sentenced for all of these matters in October 2005, the longest sentence being imprisonment for 9 months commencing on 23 June 2005 including a non-parole period of 4 months. He was thus on parole at the time of all of the breaking, entering and stealing offences committed with the Respondent. In February 2006 he was charged with entering a vehicle or boat without the consent of the owner and of being carried in a conveyance taken without the owner’s consent. He was convicted in April 2006 and the orders recorded are that warrants were to issue.

82 Mr Facer’s record is thus much less extensive than that of the Respondent. Putting aside those dealt with by Judge Hughes, Mr Facer has been dealt with for about 9 offences and the Respondent for about 25. Overall the Respondent’s offences were also significantly more serious.

83 A further factor to be borne in mind is that 11 months of the Respondent’s 12 months non-parole period has expired. He was, as has been said, sentenced on 24 October 2006, the commencement of the sentence being back-dated to 30 May 2006. The Notice of Appeal was lodged on 8 December and the matter heard on 12 March last. No doubt it will weigh heavily on the Respondent to be told at this late stage of the non-parole period ordered by Judge Hughes that his sentence has been significantly increased. However, in the scales has to be included the fact that the prospect of imprisonment was not sufficient to prevent him offending and the principal reason that this Court’s orders are so close to the end of his pre-existing non-parole is the grossly inadequate sentence imposed by Judge Hughes.

84 Putting aside the question of assistance and the offences taken into account, the term of the sentence that should have been imposed on the Respondent for each of the breaking and entering offences was not less than 3 years and 9 months, being 5 years less 25% discount for his plea. On a similar basis the sentence for the offence of taking and driving a motor vehicle should have been not less than 2 years and 3 months. The need for a degree of accumulation should have resulted in the second and third sentences commencing so as to add an effective 12 months each. The sentence on the first charge should have been increased by reason of the offences taken into account, they demonstrating a greater need for personal deterrence and retribution, and, in our view, by at least 6 months. The result should have been reduced on account of the Respondent’s assistance to the authorities and, as the Court has indicated by about 5% or 6 months. We would select the latter. The result would be a total sentence of 5 years and 9 months.

85 The commencing date should have been some significant period – appreciably more than 11 weeks - after the commencement of the Respondent’s sentence imposed on 11 April 2006 so that that sentence was not almost completely subsumed in the ones presently under consideration.

86 The gross disparity between the sentence that should have been imposed and the one that was leads the Court to the view that, notwithstanding the errors by the Crown Prosecutor before Judge Hughes and the disparity with Mr Facer that will result, this Court should interfere and allow the Crown appeal. However, because of those matters, The Court would impose a sentence very considerably lower than the minimum that should have been imposed at first instance and also allow the commencing date of the Respondent’s sentence to remain 30 May 2006. The total sentence should be limited to one of 4 years.

87 Because of the Respondent’s proposal to enter the Salvation Army’s Bridge program, and only because of that we would find special circumstances and increase the balance of term at the expense of the non-parole period. That program runs for 12 months and although that does not determine the allowance that should be made for it in the circumstances of this case we would alter the ratio of the effective total non-parole period and balance of term by that amount.

88 In consequence of the decision to limit the sentence to 4 years and to alter the ratio as indicated in the immediately preceding paragraph, it will be necessary to reduce the sentences from those indicated above and allow a greater degree of concurrency than would otherwise have been appropriate. Because of the degree of concurrency, it is appropriate also to abstain from setting a non-parole period for 2 of the sentences, thus making them fixed terms.

89 We have wondered whether this Court should impose a condition as to participation in the Bridge Program, varying the sentences we have outlined to enable the Court to do so – see Crimes (Sentencing Procedure) Act, s50. However, after reflecting on the matter, and while we regard it as very desirable that such participation occur, we have concluded it is preferable that the matter be left to the decision of the parole authorities closer to the time of the Respondent’s release.

90 Accordingly, the Court makes the following orders:-

(i) Allow the appeal;
(ii) Quash the sentences imposed by Judge Hughes on 24 October 2006;
(iii) In respect of the charge of taking and driving a conveyance, sentence the Respondent to imprisonment for a fixed term of 1 year and 9 months commencing on 30 May 2006;
(iv) In respect of the charge of breaking and entering a dwelling house at 3A Undercliffe Lane, Earlwood, sentence the Respondent to imprisonment for a fixed term of 2 years commencing on 30 May 2006;
(v) In respect of the charge of breaking and entering a dwelling house at 3B Undercliffe Lane, Earlwood, and taking into account the offences of the Form 1, sentence the Respondent to imprisonment for a non-parole period of 2 years commencing on 30 May 2006, with a balance of term of 2 years;
(vi) Record as the date upon which it appears to the Court that the Respondent shall be eligible for parole, 30 May 2008.

**********