R v Hill

[1999] NSWCCA 140

CITATION:

R v HILL [1999] NSWCCA 140

FILE NUMBER(S):

CCA 60431/98

HEARING DATE(S):

28 May 1999

JUDGMENT DATE:

28 May 1999

PARTIES :

Regina
(Crown)

v

Scott John HILL
(Applicant)

JUDGMENT OF:

Barr J at 1; McInerney AJ at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/21/1067
LOWER COURT JUDICIAL OFFICER:	Nield DCJ

COUNSEL:	PG Berman (Crown) PM Strickland (Applicant)
SOLICITORS:	CK Smith (Crown) TA Murphy (Applicant)
CATCHWORDS:	Criminal Law - sentencing - whether enough weight given to good prospects of rehabilitation
CASES CITED:	R v GDP (1991) 53 A Crim R 112 R v Smith [1964] Crim LR 70
DECISION:	Leave to appeal granted; Appeal allowed; Ten sentences on breaking, entering and stealing offences quashed; See para 16 for sentences in lieu

IN THE COURT OF
CRIMINAL APPEAL

60431/98

BARR J
McINERNEY AJ

Friday, 28 May 1999

REGINA v Scott John HILL

JUDGMENT

1   BARR J: The applicant, Scott John Hill, seeks leave to appeal against sentences imposed in the District Court. On 3 February 1998 he pleaded guilty in the Local Court to ten counts of breaking, entering and stealing and one of receiving stolen property. On 11 August 1998 Judge Nield imposed ten concurrent terms, each of five years penal servitude on the breaking, entering and stealing counts and a concurrent fixed term of two years on the receiving count. The effective sentence was therefore one of five years comprising a minimum term of two and a half years and an additional term of two and a half years.

2   The applicant was a single man of eighteen years seven months of age in September 1997 when, in company with another young man, he carried out a series of break-ins in dwelling houses in the Blue Mountains near where he was living. As his Honour said, there was nothing remarkable about the individual offences. All were committed whilst the houses concerned were unoccupied. They were planned. They netted property worth about $30,000, 15,000 or so of which has not been recovered. On 30 January 1998, the applicant received the goods stolen in a further break-in.

3   The applicant’s criminal record did not help him. In August 1996 he and an unidentified friend stole a car and damaged it. In September 1996, whilst on bail for those two offences, he and an unidentified friend broke into three motor vehicles and stole property from them. A two year recognisance resulted from those offences. He was subject to that recognisance when he committed the eleven offences for which his Honour sentenced him. He was on bail for the ten break and enters when he committed the offence of receiving.

4   The first ground of appeal is that the sentence is manifestly excessive by comparison with sentencing statistics compiled by the Judicial Commission. Of 133 accused who pleaded guilty to multiple offences of breaking, entering and stealing, between 1994 and 1998, only twenty-four received sentences of five years or more. Twenty accused of age twenty-one or younger were sentenced for multiple counts and only two of them received terms of five years or more. However, it appears from material tendered by the Crown that those offenders all or almost all pleaded guilty. It was submitted that since the applicant was only eighteen years and seven months of age at the time of ten of the eleven offences, the sentences imposed showed that his Honour gave insufficient weight to his youth. It was put that the primary aim in sentencing young offenders is the promotion of rehabilitation.

5   Reference was made to R v GDP (1991) 53 A Crim R 112 and the well known case of R v Smith [1964] Crim LR 70. It was submitted that the principle had particular application to the applicant because his Honour found that he had ceased to drink alcohol, had been accepted into a respectable family, had got himself a job and had enrolled in a technical college course. It was put that a sentence towards the top end of the range was too high for someone like the applicant who was remorseful for his offences.

6   The offences in combination were very serious and his Honour was bound to impose a substantial sentence. Although the applicant was a young man, he was not a child or a young person who might have relied particularly heavily on the principles set forth in the cases I have cited. Although he was an adult, he was still young, however, and was not yet of an age, even taking into account his modest criminal experience, that denied him the benefit of those principles.

7   The recognisance which bound the applicant at the time of all the offences was a serious aggravation. Even after he had been granted bail on the ten charges of breaking, entering and stealing, he committed the eleventh offence. As his Honour said -

The breaking, entering and stealing offences are prevalent offences. They are relatively easy to commit and they are relatively difficult to identify the offender. They cause members of the community to feel afraid by the invasion of their home and privacy and they result in the victims losing property, often of little but sentimental value. They impose considerable costs upon both the victims and insurance companies. They support corrupt people who buy the stolen property knowing it to be have been stolen. The community demands as it is entitled to demand that the police protect its members against people who break into and enter its members homes and steal property therefrom, and it expects and it is entitled to expect that the courts will punish appropriately offenders who commit breaking, entering and stealing offences and receiving offences.

8   The applicant also abused information that was available to him in order to pick his targets. One of the offences was against his father. He stole items of obvious sentimental and personal value. The offences of course were numerous.

9   However, even taking into account the combined seriousness of the offences, it seems to me in view of the age of the applicant and the quite remarkable evidence that he had already begun the process of rehabilitation, sentences so close to the upper limit of the range were inappropriate, for that is where these sentences lie when compared with the statistical information put before the Court.

10   The evidence about the applicant’s rehabilitation may be summarised as follows. The last offence for which his Honour was sentencing him was committed in January 1998. There was abundant evidence to justify his Honour’s finding that for some time before the commission of these offences, including the time of the offences of 1996 and for some time afterwards, the applicant was in a very bad way in his consumption of alcohol. He was drinking every day to excess and it does not overstate the position I think to say that alcohol had taken over his life. There was evidence of this before his Honour, but it was not put forward as providing an explanation, that is to say, a causal explanation for the offences. As a dominating feature in his life however, it was of the greatest importance. By the time the applicant came before his Honour, he had had the very good fortune to have been adopted, using that term in a loose and practical sense, by a responsible family and to have forsworn, apparently successfully, the use of alcohol altogether. As I said earlier in this judgment, he got himself a job, he began a technical college course. The pattern of his life was in stark contrast to the pattern which had obtained at the time of the commission of the offences.

11   It seems to me that those circumstances, combined with the applicant’s age, needed to be given very great weight, and the length of the total sentence of five years suggests to me that his Honour gave those features insufficient weight.

12   The second ground of appeal asserts that his Honour gave insufficient weight to the circumstances in which the applicant attended the police station voluntarily with his mother and confessed his offences. It was put that the police would otherwise not have charged him with three of them. A summary of the position seems to be as follows. The police had searched the applicant’s garage and might be supposed to have been able to connect the applicant with eight of the ten breaking, entering and stealing offences. They might not have been able to prove that he was involved in the stealing, of course, and the Crown might have had to be content with convictions for receiving. It was put that on that basis the applicant was entitled to a partial discount for having volunteered his criminality to the police. In respect of the two remaining offences, there was apparently nothing in the garage to link him with them and it is put that his volunteering his commission of those offences to the police gave them a case against him whereas they would otherwise have had no case.

13   There is some force in these submissions I think, though in the scheme of things it does not weigh very heavily with me. It is really a matter of conjecture what the police could have proved if the applicant had not volunteered his part in these offences. A feature which it is impossible to evaluate is the fact that his co-offender, whom he refused to name to the police, had been arrested. The applicant might very well have been motivated by a belief, justified or otherwise, that the co-offender might give him up to the police. Even so, I think that these considerations are entitled to some weight.

14   Because of what I see as his Honour’s failure to give sufficient weight to the age and rehabilitation of the applicant, I think that the Court should interfere with the sentences imposed. I would propose that the effective total term be reduced to four years. The question of the minimum term arises and I think that there are special circumstances which justify the fixing of an effective additional term exceeding one-third of the minimum term, principally because of the aspects of rehabilitation to which I have already referred.

15   Material has been put before the Court which shows that since sentence the applicant has been doing very well in gaol. He is very well regarded. He is a hard worker. He applies himself not only to his work but to courses, notably drug and alcohol counselling courses, and he seems to be resolute and successful in his efforts to stay away from alcohol. He will need some assistance when he gets out of gaol because he will be in a community where the temptations to drink will probably be more pressing than they are now and there will be a risk that he will slip back. However, he is well on the way to rehabilitation.

16   I think that an additional term of two years when he will be subject to the supervision of the probation and parole service will be appropriate. I propose the following orders; that leave be granted to appeal against the sentences and that the appeal be allowed, that the ten sentences on the breaking, entering and stealing offences be quashed and that in lieu the appellant be sentenced to ten concurrent sentences, each of four years’ penal servitude commencing on 11 August 1998, each sentence to comprise a minimum term of two years and an additional term of two years. The appellant would be eligible for release on parole on 10 August 2000.

17   McINERNEY: I agree.

18   BARR J: The orders of the Court are therefore as I have proposed.

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