R v Jason Proud

[2002] NSWCCA 219

CITATION:	R v Jason PROUD [2002] NSWCCA 219
FILE NUMBER(S):	CCA 60787/01
HEARING DATE(S):	24/05/2002
JUDGMENT DATE:	24 May 2002
PARTIES :	REGINA v Jason James PROUD
JUDGMENT OF:	Dowd J at 1; Smart AJ at 34

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0331
LOWER COURT JUDICIAL OFFICER :	Armitage J

COUNSEL :	Mr P G Ingram - Crown Mr A P Cook - Applicant
SOLICITORS:	S.E. O' Connor - Crown Legal Aid Commission -Applicant
CATCHWORDS:	Appeal against severity of sentence - matter taken into account-need to find error-need to find appropriate sentence
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Brown (2000) NSWCCA 428 Cameron v The Queen (2002) HCA 6 R v Henry 46 NSWLR 346 House v The King (1936) 55 CLR 499 Pearce v The Queen (1998) 72 ALJR 1416 R v Ponfield (1999) 48 NSWLR 327 R v Sharma (2002) NSWCCA 142 R v Simpson (2000) NSWCCA 534 R v Thompson and Houlten (2000) 49 NSWLR 383
DECISION:	Leave to appeal granted - Appeal dismissed

- 11 -IN THE COURT OF

60787/01

DOWD J
SMART AJ

24 MAY 2002

R v Jason James PROUD

Judgment

1 DOWD J: The applicant sought leave to appeal against sentences imposed by Armitage DCJ on 15 November 2001, for a count of break, enter and steal, an offence contrary to s112 of the Crimes Act 1900 ( “the Act”), four matters also in breach of s112 of the Act, taken into account on a Form I, pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999. The maximum penalty for an offence under s112 of the Act is fourteen years imprisonment.

2 The applicant pleaded guilty and was sentenced to a six-year term of imprisonment for the offence for which he stood for sentence, His Honour the Learned Sentencing Judge taking into account the four matters on the Form I. The sentence commenced on 10 July 2001, to expire on 9 July 2007, with a non-parole period of four years and six months, to expire 9 January 2006.

3 The offence for which the applicant stood for sentence was committed on 26 July 2000, at Charlestown in the Newcastle region, between 1pm and 4pm. The applicant gained entry to a private home unit owned by a sixty-eight-year-old woman, by smashing the toilet window with a rock. On accessing the premises, the applicant went into the bedroom, punched a hole in the base of the bedside table drawer, which had been locked, and stole cash held in three small red tins, being an amount of $40,000, this being the life savings of the victim and money she had received from her husband upon his death.

4 The four offences on the Form I occurred between September 2000, and March 2001. The first offence occurred on 26 September 2000 when the applicant broke into premises at North Belmont by smashing a glass panel in a door and stole property worth between $14,000 and $15,000.

5 The second offence occurred on 15 November 2000, when the applicant broke into a private house at Swansea by kicking in the back door and thereupon stole property to the value of some $10,000.

6 The third offence on the Form I occurred on 30 December 2000, when the applicant broke into a house at Mount Hutton by forcing the door open and stole property to the value of $10,000.

7 The fourth Form I offence occurred on 3 March 2000, when the applicant smashed the glass panel of the front door of a house in Mount Hutton and stole property worth $7000.

8 It is extraordinary that such large sums of money are kept in people’s private homes.

Subjective Matters

9 The applicant was born on 28 March 1972, being twenty-nine years of age at the time of sentence, and twenty-eight at the time he committed the crimes. He is the eldest of eight siblings and had had a very difficult childhood, with grossly inappropriate parenting. His natural father encouraged him to fight and to take drugs from a very early age. He left school halfway through year ten. He spent some time during his childhood in foster care due to problems at home. The applicant left home at the age of thirteen following the break-up of his parents’ relationship and some time after his mother had commenced a new relationship.

10 The applicant was married in 1992 but was separated by 1996. He has two children aged seven and eight respectively. He worked for some four to five years as a brickies labourer straight after leaving school. Following that, he worked as a builder’s labourer for some one and a half years and then did a horticultural course in landscape gardening. He played Rugby League with the Parramatta Eels up to the age of nineteen and played representative football for the Western Suburbs Under 21s.

11 Following separation from his wife in 1996, the applicant described his life as “going downhill”. The Learned Sentencing Judge found that the applicant commenced using intravenous heroin and amphetamines following the break-up with his wife. The applicant developed an expensive heroin habit, spending up to $500 a day on drugs at the time of his arrest.

12 The Learned Sentencing Judge summed-up his criminal history in the following terms:

“He has a criminal record commencing in 1989. That record contains many offences of dishonesty. In 1991 he was sentenced at the Campbelltown Local Court to a minimum term of nine months with an additional term of three months for stealing a motor vehicle. On appeal that was reduced to a fixed term of imprisonment of six months.
In July 1994 he appeared before the Liverpool Local Court on a charge of break, enter and steal. He was bound over on recognisance, self in the sum of $1000 to be of good behaviour for four years and to accept the decision. He was called up for breach of that recognisance on 13 September 1995.
I notice that it was apparently ordered, as it appears on the record, that he reside at Odyssey House. As I say, there are many other offences of dishonesty, including larceny in July of 1997, steal from a person April 1999, goods in custody in January of this year.
In my view he has been given opportunities in the past and has not really availed himself of them. The best that can be said of that record is that it is of no assistance at all to the offender.”

13 The applicant’s evidence before His Honour was that he had little recollection of the events during that period, and particularly during the time that he committed the offences for which he was charged, as he was heavily intoxicated by drugs on a daily basis.

14 It was submitted on behalf of the applicant that there was no violence in the crimes committed by the applicant and they were not timed to coincide with occupancy, which facts Armitage DCJ accepted.

15 The applicant has endeavoured to turn around and change his ways during his time in prison immediately commencing a drug and alcohol rehabilitation course and a report to that effect was provided to His Honour signed by a Len Steel, a drug and alcohol counsellor, which stated:

“Mr Proud participated in a willing and constructive manner in the abovementioned programs with the alcohol and other drug induction programs we provide to all new inmates. Mr Proud provides peer support to these inmates and helps me present the course. He then gives ongoing support in the wing when they have problems and helps to relieve the fears that they may have.”

These matters were acknowledged by his Honour in the applicant’s favour. His Honour did take into account the utilitarian value of the applicant’s guilty plea.

16 The power conferred on this Court to grant or refuse leave to appeal is contained within s5 of the Criminal Appeal Act 1912, which sets out the powers of the Court but not the ground upon which this Court can set aside a sentence.

17 The manner in which an appeal against the exercise of judicial discretion is to be determined is governed by the principles in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. The position was further considered in R v Simpson (2000) NSWCCA 534 by Spigelman CL, with whom Mason P, Grove, Sully and Newman JJ agreed.

“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘if it is of the opinion that error has occurred in the sentencing process.’ That is not the statutory formulation. By section 6(3) this Court must form a positive opinion that ‘some other sentence ... is warranted in law and should have been passed.’ Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefore’ is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in section 6(3) further requires the identification of error in the requisite sense.”

18 It was firstly submitted by the applicant that the sentence was manifestly excessive and it was submitted that the applicant has come from a troubled background and genuinely attempted to rehabilitate himself in terms of his drug use. He pleaded guilty at the earliest possible time and in applying R v Thompson and Houlten (2000) 49 NSWLR 383 with a notional discount of twenty-five per cent, that would mean, it was submitted, the applicant’s starting point for his sentence was for a term of eight years. It is submitted that was excessive in the circumstances of this case.

19 The Crown submitted that whilst the Learned Sentencing Judge did not place the applicant’s crime at the top of the scale, he certainly considered it particularly serious and well up the scale of seriousness. It was submitted that the objective seriousness of the crime was enhanced by many of the factors which were identified in R v Ponfield (1999) 48 NSWLR 327 by Grove J, with whom Spigelman CJ and Sully J agreed. Grove J said at paras 48 to 49:

“A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of the sentence if any of the following factors are present. Necessarily, if more than one such factor is present, there is a cumulative effect upon seriousness and the need for appropriate reflection:
(i) The offence is committed whilst the
offender is at conditional liberty on bail or on parole.
(ii) The offence is the result of professional
planning, organisation and execution.
(iii) The offender has a prior record,
particularly for like offences.
(iv) The offence is committed at premises of
the elderly, the sick or the disabled.
(v) The offence is accompanied by vandalism
and by any other significant damage to
property.
(vi) The multiplicity of offences (reflected
either in the charges or matters taken
into account on a Form I pursuant to
s21 of the Crimes Sentencing & Procedure Act 1999
on multiple counts regard must be had to
the criminality involved in each: Pearce
v The Queen (1998) 72 ALJR 1416.
(vii) The offence is committed in a series of
repeat incursions into the same premises.
(viii) The value of the stolen property to the
victim, whether that value is measured in
terms of money or in terms of sentimental value.
(ix) The offence was committed at a time when,
absent specific knowledge on the part of
the offender (a defined circumstance of
aggravation – Crimes Act s 105A(1)(f)) it
was likely that the premises would be
occupied, particularly at night.
(x) That actual trauma was suffered by the
victims (other than as a result of corporal
violence, infliction of actual bodily harm or liberty
defined circumstances of aggravation: Crimes Act
s105A(1)(c) (d) and (e).

20 It will of course be requisite for a sentencing Court to give appropriate weight to matters in mitigation as manifested in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider, it is not, of itself, a mitigating factor. (see R v Henry 46 NSWLR 346 at paras 193-203 and 217-259)”

21 The Crown submitted that five of these factors were present in relation to the indictable offence and the four offences on the Form I and while I acknowledge some of these factors were present, it must be noted that the Court must take into account the subjective and objective features of the crime which indicate there has been a genuine attempt to rehabilitate and a clear showing of remorse.

22 More recently in R v Sharma (2002) NSWCCA 142, Spigelman CJ, with whom the other four members of the Court agreed, held:

“The sentencing judge did not err in taking into account the utilitarian value of the plea in accordance with R v Thompson . The subjective perspective of a ‘willingness to facilitate the course of justice’ referred to in Cameron v The Queen (2002) HCA 6; 76 ALJR 382 is not, in New South Wales, required to operate to the exclusion of objective considerations. Section 22 of the Crimes (Sentencing Procedure) Act 1999 has amended the common law in this respect.”

23 His Honour, in sentencing, was looking at, not only a very serious offence but was also looking at four other offences on a Form I, which obliged the Sentencing Judge to look at the enlargement of the penalty to take those matters into account. The offence for which the applicant stood for sentence and one other matter at least were committed whilst he was on parole and I consider them as very serious matters.

24 It was submitted by the applicant, that he demonstrated a high level of remorse. The showing of remorse however, is not just simply about expressing regret but rather involves an offender co-operating with the authorities in explaining what happened to the funds and about other persons involved in the criminal activity, in which respect, the applicant did not give assistance to the police.

25 I agree that the eight years is presumably the notional starting point. It seems to me that in the circumstances of this case, with an applicant who has a serious criminal record which provides him no assistance, that his Honour had a correct starting point before taking into account appropriate discounts.

26 In relation to special circumstances, it is put that his Honour ought to have found special circumstances. This is a common misunderstanding of s 44 of the Crimes (Sentencing Procedure) Act 1999. Section 44(1) of that Act requires the setting of a non-parole period as a term of the sentence and a non-parole period unfettered by anything other than principles of the common law.

27 Section 44(2) is a prohibition on making a non-parole period less than three-quarters of the term of the sentence unless there are special circumstances for it being less. The words “special circumstances” do not stand alone. They have to be the reasons found for it being less than three-quarters of the full term.

28 It was put on behalf of the applicant that the decision such as R v Brown (2000) NSWCCA 428, require a Sentencing Court to take into account, as a factor in rehabilitation the crushing effect of accumulating a total period where there have been short periods of freedom from custody, and to take that into account in accumulating this term and the previous terms.

29 R v Brown is a factor which a court may take into account and that position indicates that the Court should be enlivened to an approach to be taken in terms of rehabilitation, however, this Court should be very careful that it does not elevate to a principle of totality a factor which is merely one factor to be taken into account.

30 This was a sentencing on a single offence. It is, therefore, not an application of an accumulation. The four matters to be taken into account are to be applied in determining an appropriate sentence for that one offence. It is clear that His Honour looked very carefully at the record of the applicant, following which, and in determining an appropriate sentence, saw no reason, in terms of the applicant’s failure to take up opportunities provided to him, other than to impose a sentence which was, in my view, appropriate in the circumstances.

31 I do not consider that there is an error as suggested by the applicant in the application of the principle of totality. His Honour clearly took into account that record as I have set out earlier in this judgment and I consider that, even though His Honour did make reference to a professional approach, that this was, perhaps, a slight elevation of his modus operandi in terms of the break and enters.

32 Nonetheless, I can see in terms of the factors which His Honour did have to take into account in applying Ponfield, the very serious nature of this offence and the lack of effective remorse, that the sentence was, in the circumstances proper, and I do not consider in any event, even if error had occurred, that any other sentence should have been imposed in terms of s 6(3) of the Criminal Appeal Act 1912, or whether some less severe sentence is warranted in law in terms of that subsection.

33 I would grant leave to the applicant to appeal and would dismiss the appeal.

34 SMART AJ: The particular offence of break, enter and steal with which the applicant was charged, is a serious one. It involved breaking into the unit of an elderly lady and stealing some $40,000, which she kept in tins in a bedside table. A further four counts of break, enter and steal had to be taken into account. Each of those offences was a serious one in itself. This meant that the sentence to be imposed on the count of break, enter and steal had to be increased and increased quite significantly. In all, some $82,000 was taken.

35 In the applicant’s record of interview he claims to have no recollection of breaking into the victim’s unit or of the theft of $40,000. It was the fingerprints, which he left in this unit, which ensured his plea of guilty and there were also fingerprints left in some of the other units into which he broke and entered.

36 The applicant has really made a number of distinct points. First, the applicant referred to the very bad background, which he had. In particular, reference was made to the bad influence of his father and the very disturbed home. It was submitted that the Judge erred in not appreciating the mitigatory effect of this background and simply treated it as a subjective feature.

37 Secondly, it was submitted that the Judge had erred when he describes the particular offence as evincing a type of professional operation. What appeared was that the applicant took the basic precaution of knocking on the door of the premises, which he wished to enter, to ensure that nobody was at home. He then used a rock or some other item to smash a window and enter the premises. Professionalism would normally involve something more than this. I think the Judge’s description of what took place as a type of professional operation is marginally incorrect. However, it is plain, as the Judge held, that the applicant was getting around knowing exactly what he was doing, approaching premises and knocking on the door to ascertain if someone was at home.

38 I do not think that the slight misdescription of the operations is of any consequence, given that the Judge was plainly aware of what in fact had happened and concentrated on that.

39 Thirdly, it was submitted that the Judge erred in the non-parole period which he fixed. It was contended that the Judge should have had regard to the applicant’s custodial history in the sense that he should have appreciated that out of a total of eighty-four months the applicant was going to spend seventy-five months in custody and that overall the sentences amounted to approximately one hundred and twelve months.

40 The applicant was out of gaol from April 2000 to January 2001. It was submitted that the Judge should have adopted the approach, which was taken in R v Brown (2000) NSWCCA 423. That is an approach, which requires considerable circumspection and is not necessarily one to be universally adopted. One has to be very careful that the result of such an approach does not culminate in inadequate sentences and non-parole periods, which do not adequately reflect the criminality with which the Court is faced.

41 The gravity of the offence in question, when allied with the offences taken into account leads to the conclusion that no lesser sentence was warranted in law. I, accordingly, agree with the orders proposed.

42 DOWD J: The orders of the Court will, therefore, be as proposed by me.

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