R v Harrison

[2002] NSWCCA 198

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     R v Harrison [2002]  NSWCCA 198

FILE NUMBER(S):
60688/01

HEARING DATE(S):    9 May 2002

JUDGMENT DATE:      09/05/2002

PARTIES:
Paul Shaun Harrison v Regina

JUDGMENT OF:        Kirby J Smart AJ    

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/11/0569

LOWER COURT JUDICIAL OFFICER:   Latham DCJ

COUNSEL:
(A)   In Person
(C)   L M B Lampratti

SOLICITORS:
(A)   In Person
(C)   S E O'Connor

CATCHWORDS:
Sentencing - No question of principle - sentences not excessive

LEGISLATION CITED:
Nil

DECISION:
Leave to appeal granted - Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60688/01

KIRBY J

SMART AJ

Thursday 9 May 2002

REGINAv      PAUL SHAUN HARRISON

JUDGMENT

1.              KIRBY J:  The court is in a position to give judgment immediately and I would ask Justice Smart to deliver the first judgment.

2.              SMART AJ:  Paul Shaun Harrison seeks leave to appeal against the alleged severity of a sentence of imprisonment for four years with a non-parole period of two years for stealing a motor vehicle, a sentence of imprisonment for four and a half years with a non-parole period of two years for breaking, entering and stealing, taking into account two offences of larceny, two offences of goods in custody, one offence of receiving and one offence of carried in a conveyance, and a sentence of imprisonment for a fixed term of twelve months for being carried in a conveyance.  All sentences are concurrent and date from 12 December 2000.  The applicant pleaded guilty to all offences at the first available opportunity in the Local Court.

1. On 7 March 2000 the locked security car parking area of a block of units at Cronulla was entered.  The locked metal door to the lock-up garage used by the victim  forced open and the padlock placed upon it for additional security broken.  The car alarm system had previously been set.  The applicant took the car, which had recently been purchased by the victim as a new car for $48,000.  The car was ultimately recovered by the police.  When inspected on 13 March 2000 the car was in a damaged condition, requiring quite a lot of work to restore it.  It was not in a damaged condition prior to it being taken.  The car was used in a crime of break, enter and steal.

1. About 2.30am on 10 March 2000 the applicant went to The Tobacconist at Fairfield in the previously stolen vehicle in company with three offenders.  The four men used a tyre lever to break through some plate glass at the premises.  They removed cigarettes from the building and placed them in the vehicle.  They were seen by a passing police patrol.  As the men attempted to leave the scene they veered into the path of a police vehicle and collided with it.  The men left in the stolen vehicle at high speed and eluded the police pursuit.  Considerable damage was done to the shutter and some plate glass at the front of the building, the stolen vehicle and the police vehicle.  The value of property stolen was $11,122.  This was a break, enter and steal of considerable seriousness and formed the subject of count two.

1. As to the offences taken into account the first was larceny.  Later on 10 March 2000, the applicant removed a number of compact discs with an estimated value of $400 from the stolen vehicle.  At 11pm that day the applicant had in his possession three hand-held VHF portable radios with the name of a well-known builder engraved on them.  The applicant later admitted to stealing them from a construction site.  This was the second charge of larceny.

1. The applicant also had in his possession a number of items of designer clothing reasonably suspected of being stolen.  The applicant later said that he had purchased these items for a nominal amount from a person in a park at Glebe.  This was the subject of a goods in custody charge.  On 18 July 2000 the applicant was found to have in his possession a further quantity of designer clothing reasonably suspected of being stolen.  The applicant stated that he bought these from a person in a park at Glebe for a nominal amount of money.  This was the subject of the second offence of goods in custody.

1. Between 6pm on 11 July 2000 and 7am the next day a car was broken into at Annandale and two digital video cameras were stolen.  The applicant said that he purchased one of these from a person in a park at Glebe.  On 14 August 2000 he pawned the camera, declaring himself to be the true owner.  The applicant admitted that when he purchased the camera he knew that it was stolen.  These facts gave rise to the charge of receiving.

1. On 4 March 1998 a Mitsubishi sedan was stolen from premises at Putney.  The police recovered this vehicle after it was involved in a short pursuit.  The applicant's fingerprints were located on the rear vision mirror and the rear of side window.  That gave rise to the charge of being carried in a conveyance.

1. The applicant went to Queensland.  On 12 December 2000 the police located him hiding in a rear bedroom.  He struggled with the police.  He was arrested and subdued, later charged and, on 14 December 2000, extradited.

1. The applicant's criminal history begins in April 1998.  He has been before the Children's Court and the Local Court on many occasions for serious driving offences, dishonesty offences, drug offences, assaulting a police officer, robbery in company and assault occasioning  actual bodily harm.  He has been subjected to a variety of penalties.  This is his first time in an adult gaol but he did spend some time in juvenile custody.  His record does not entitle him to leniency.

1. All but one of the offences under consideration were committed while the applicant was on a recognizance granted on 15 September 1999 at Balmain Local Court.  The applicant was born on 20 August 1981.

1. Ms J Devlin, consultant psychologist, has prepared a detailed report.  He told her that he had offended because he wanted to buy marihuana and "nice things like other people have."  He subsequently developed a gambling problem.

1. The applicant is the third of four children.  His parents separated when he was three.  Soon after their separation his mother associated with a man who was a violent alcoholic.  That man was often drunk and beat his mother.  The applicant was always afraid, never knowing when this man would beat him.  The applicant had little contact with his biological father for many years after his parents separated.  He had no one to whom he could turn.  The applicant's behaviour became increasingly disturbed and he began running away from home.  His schooling was disrupted and fragmentary.  He found himself unable to learn and this embarrassed him.  He was sent to a special school because of his disabilities.  The applicant's mother left her de facto when the applicant was aged thirteen.

1. The applicant's mother subsequently reunited with the applicant's father.  Since leaving school the applicant has led an itinerant life.  He has had some employment and also spent time on social service benefits.

1. He suffers from drug and alcohol abuse.  He became a gambler when he was about eighteen and developed a heavy gambling habit.

1. It appears from Ms Devlin's report that the applicant has suffered and suffers from severe cognitive difficulties.

1. Ms Devlin recorded that the applicant had problems with paying attention and short and long term memory, is illiterate and barely numerate.  He can read very little and cannot write.

Ms Devlin has written:

"However, I feel confident that some of Paul's cognitive problems and certainly the behavioural disturbance during childhood and adolescence that led to the early offending were at the very least exacerbated by his experience of abuse and domestic violence at home.  His poor intellectual skills probably made it even more difficult for him to understand what was happening and to access help, especially in the context of what he reports to be abuse of all of his family members.  The abuse at home also had the potential to compound the poor self-worth accruing to the ridicule he reports experiencing at school because of his performance deficits."

1. Ms Devlin has listed a series of risk factors for further offences and factors that support the prospect of rehabilitation and/or minimise the likelihood of further offending.  The latter included his young age, the apparent support of his partner and his family, his reasonable resilience despite the adversity he has encountered, his reasonable adaptive functioning and that he is capable of learning positive interpersonal skills and responding to psychological intervention.

1. Ms Devlin noted that the applicant appeared to be mildly intellectually disabled and that this has made things very difficult for him in other areas.  She thought also that the damage that underscores this disability whatever its cause was also responsible for his apparently low frustration tolerance, impulse control and vulnerability to addictive problems.  Ms Devlin lamented that it was unlikely that the applicant would have access to the necessary assistance while in custody.

1. The judge also lamented the lack of facilities and resources to give this applicant the assistance which he needs.

1. This case presents a dilemma.  On the one hand the offences are serious.  On the other hand the applicant has experienced many drawbacks and needs substantial assistance.  He is aged twenty-one and there is a substantial community interest in his rehabilitation.  It is impossible to read the materials without feeling a sense of sadness and sympathy for the applicant.

1. The judge determined that the principle of general deterrence should not receive the weight it would otherwise receive for the reason that the applicant's disability justifies some adjustment.  She held that the focus should be on allowing the prisoner to re-integrate into the community with assistance directed to his literacy skills and/or some form of vocational training.

1. The judge correctly found special circumstances on that basis and on the basis that this is the first full time custodial sentence in an adult institution which the applicant has served.

1. The applicant has submitted that as this is his first time in an adult gaol the sentences are a bit harsh for his crimes.  He asked the court to compare the sentence he received with those imposed in other cases.  I have done so.  The applicant has also submitted:

   "My co-accused got twelve months for the car and I got four years six months.

   I have been in custody for just over fifteen months now and I have seen lots of people come and go for the same crime I have committed.  Some were six months, nine months and twelve months.
   I am not a user, but I admit I have a marijuana habit and gambling habit but I am helping myself by seeing people who are helping me through my situations, like drug and alcohol awareness programme and the gambling awareness programme and for my main problem I have done a raising awareness course (an introduction to the Young Offenders Programme), and it has helped me a lot and will help me in the community."

2. As to the ground that a co-offender received a lesser sentence and that the applicant's sentence should be reduced, this apparently refers to a sentence imposed on Nathan Robert Reynolds on 8 June 2001.  The Crown pointed out:

   "Reynolds was sentenced...for a number of offences only one of which was an offence for which the applicant was sentenced.  For allowing himself to be conveyed in the stolen car used in the break and enter offence for which the applicant was sentenced, Reynolds was sentenced to a fixed term of twelve months' imprisonment.  That count appears to have been the only count for which the applicant was dealt with by Latham DCJ.  And her Honour imposed on the applicant a term of twelve months.  The other offences for which Reynolds was dealt with were different from those for which the applicant was sentenced."

   Accordingly, this ground has not been established.

3. The judge regarded the offence charged in count two as analogous to a "ram raid".  The vehicle was not driven into the glass panel or the building.  However, the vehicle was driven close to the building and a tyre lever was used to break through a plate glass panel at the entrance.  While this case was not the most serious form of a "ram raid", it did involve the smashing of glass and the crime committed was a serious one.

1. On count two the six offences earlier mentioned were taken into account.  A sentence of imprisonment of four and a half years having regard to the gravity of the offence and those taken into account is justified and permissible, being within the correct exercise of a sound discretionary judgment.  For the criminality involved the sentence imposed is not out of kilter with other sentences for like criminality.  The length of the non-parole period raises a difficult issue because of the relatively young age of the applicant, the first time that the applicant has been in an adult gaol and the non-availability in prison of some of the assistance which he needs.  The judge gave careful consideration to this aspect of the sentence noting that general deterrence had less weight in the present case.  The non-parole period selected was within the permissible range.  It cannot be said that the judge erred in fixing a non-parole period of two years.

1. There is no arguable basis for suggesting that the sentence on the third count is excessive.

1. As to the sentence on the first count this was a very serious instance of stealing.  The sentence imposed was within the permissible limits.  I propose that leave to appeal be granted and that the appeal be dismissed.

1. KIRBY J:  I agree.  The orders of the court will therefore be as proposed by Justice Smart, namely, that leave to appeal be granted but the appeal be dismissed.

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LAST UPDATED:       28/05/2002