R v James Lee-Alexander (Appellant) No. SCCRM 93/419 Judgment No. 4428 Number of Pages 4 Criminal Law and Procedure Sentence

[1994] SASC 4428

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), MILLHOUSE(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - sentence - housebreaking and wilful damage - motive of revenge for victims' assistance to appellant's estranged wife - sentence 5 years for housebreaking and 3 years for wilful damage concurrent but cumulative upon previously suspended sentence of 6 years 1 month for arson and threatening life - non-parole period 6 years - not excessive.

HRNG ADELAIDE, 21 February 1994 #DATE 21:2:1994

Counsel for appellant:     Mrs E M Shaw

Solicitors for appellant:    Hamilton Lindsay and Hemsley

Counsel for respondent:     Ms A M Vanstone

Solicitors for respondent: DPP

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against a sentence imposed in the Supreme Court by Olsson J for crimes of housebreaking and larceny and damage to property.

2. The background to the commission of these offences is to be found in the unfortunate matrimonial situation in which the appellant is involved. He is a married man with two children. When his marriage broke up, his wife and children left the matrimonial home. They were given some succour and assistance by a Mr and Mrs Knox. In providing that succour and assistance, Mr and Mrs Knox incurred the enmity of the appellant.

3. Following the break-up, the appellant uttered a threat to his wife's life on the telephone. Subsequently his wife went with police to the matrimonial home to obtain some possessions but the house was found to be filled with gas and they retreated. Subsequently the appellant set fire to the house. On 21 June 1991 the appellant was sentenced for these crimes of threatening life and of arson. Bollen J imposed a sentence of imprisonment of seven years for arson and four years for threatening life and ordered that those sentences be served concurrently. He fixed a non-parole period of five years. His Honor, however, suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of two years. Prior to the imposition of that sentence, the appellant had spent seven months in custody.

4. The offences to which I have just referred themselves constituted a breach of a bond for an assault which the appellant had earlier committed upon his daughter. During the currency of the bond in relation to the suspended sentence, the appellant made telephone calls to Mrs Knox which the learned judge, I think with justification, regarded as harassing telephone calls.

5. On 21 January 1992 the appellant went to the home of Mr and Mrs Knox. He entered those premises and, as the learned sentencing judge expressed the matter, "trashed" them. A great deal of damage was caused and some of it was of the most unpleasant character. He scattered foodstuffs from the refrigerator around the floors. He broke glassware, caused water damage to the house and even smeared blood on the wall. He took a substantial amount of property from the premises. It is not possible to be precise about the value of the property stolen or of the cost of repairing the damage. Mrs Knox estimated the value of the property stolen at $39,000 and the damage at $7,000. Mr Knox referred to a pay-out from the insurance company of $30,000 but said that there were repair costs in addition to that.

6. It is clear, however, that property of substantial value was stolen and there was a considerable amount of damage.

7. The appellant pleaded guilty to the charges of housebreaking and damage to property and the learned judge made some allowance for the plea of guilty. It was, however, a belated plea of guilty and was by no means a plea entered at the earliest opportunity.

8. The learned judge took into account that, due to some incidents in the prison, the appellant was likely to be in protective custody for a considerable time into the future and that he would, therefore, serve his sentence in a fashion which operated more harshly upon him than on other prisoners.

9. The offences of housebreaking and damage to property, of course, constituted a breach of bond upon condition of which the previous sentence had been suspended. Olsson J, therefore, revoked the suspension of the previous sentence but he reduced it by a period of 11 months to give the appellant full allowance for the fact that he had spent seven months in custody without the benefit of the possibility of good conduct remissions. His Honor also indicated that he took that 11 months period into account in deciding on the non-parole period. His Honor imposed a sentence for the crime of housebreaking and larceny of imprisonment for five years. He imposed a sentence of three years for the damage to property, and made that sentence concurrent with the sentence for housebreaking and larceny. He ordered that those sentences commence at the expiration of the reduced sentence for arson and threatening life. The total head sentence, therefore, became 11 years and one month. Having made the allowance, which he indicated, of 11 months, with respect to the non-parole period, His Honor arrived at a non-parole period of six years. The head sentence and non-parole period commenced from the date upon which Olsson J imposed his sentence, namely 15 October 1993.

10. Mrs Shaw has argued that the head sentence imposed for crimes of housebreaking and damage to property, and the extension of the non-parole period were manifestly excessive. The appellant is aged 41 years. He had no relevant prior convictions until his matrimonial problems came to the surface. They have obviously affected him very severely, and it is tragic that they have resulted in the serious criminal conduct which he has perpetrated. But whatever the cause, and it's obviously related to his emotional state, as a result of his matrimonial situation, his conduct was extremely grave.

11. He had had imposed upon him severe sentences, justifiably severe sentences, for his conduct following the break-up of the marriage. He was given an opportunity to change his ways and to avoid serving that sentence, but he persisted in intimidatory conduct arising evidently out of sentiments of bitterness, and even vindictiveness, in connection with his matrimonial affairs, and his resentment of the Knox' involvement in them. The crime of housebreaking and of damage to property were no mere crimes of dishonesty and vandalism. They were crimes of intimidation and revenge. There were victim impact statements before the learned sentencing judge indicating the severity of the effect of those crimes upon the victims.

12. It is true that a sentence of five years is a long sentence for a crime of housebreaking, even where aggravated by accompanying damage to property, but these were unusual crimes. As I have said, they were crimes of intimidation and revenge, and were committed against the background of the commission of the serious crimes of arson and threatening life only a short time before.

13. I cannot think, in the circumstances of this case, that it can be said that these sentences are manifestly excessive. Another judge might have imposed a somewhat shorter head sentence, but I think that an aggregate sentence of five years for these two crimes was well within the sentencing discretion.

14. As to the non-parole period it seems to me that the judge has taken a moderate course. Mrs Shaw argued that His Honor had given insufficient weight to what is described as the principle of totality and that the totality of the punishment which must now be suffered by the appellant should have inclined His Honor to reduce what otherwise might have been imposed by way of head sentence and non-parole period. I think, however, that the repetition by the appellant of intimidatory conduct which was involved in the commission of these crimes, following the suspension of the sentences for the earlier crimes made it necessary for the judge to impose additional punishment which would make clear to the appellant that this sort of conduct simply cannot be tolerated.

15. The crimes were serious. They had been committed following earlier serious crimes for which the appellant was given his opportunity to change his way of life, and to change the way in which he approached his matrimonial difficulties. He did not take the opportunity. He must now suffer the punishment, not only for the earlier crimes, but also for the crimes for which he has now been sentenced. One can only hope that the severe punishment which he must now undergo will lead him to re-assess his approach to his undoubted problems in life. In my opinion the appeal should be dismissed.

JUDGE2 MILLHOUSE J On the only point on which we thought it necessary to hear the Crown, Ms Vanstone would have won me over, if that had been necessary, with her first point: that had the learned 6 sentencing judge imposed one sentence of five years for the two crimes of housebreaking and larceny and for damaging property it would have been very difficult, if not impossible, to argue against the sentence. The learned sentencing judge worked out the penalty by a different method - five years for the housebreaking and larceny and three years for damaging property to be concurrent - but the result is the same. In my view that result is justified by the facts of the case. I agree that the appeal be dismissed.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed, for the reasons expressed by the Chief Justice.