R v King - [2003] NSWCCA 352

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v King [2003] NSWCCA 352

FILE NUMBER(S):
60218/03

HEARING DATE(S): Friday 21 November 2003

JUDGMENT DATE: 21/11/2003

PARTIES:
Regina v David Scott King

JUDGMENT OF: Handley JA Grove J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1059, 02/21/1254

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
D. Frearson (Crown)/Applicant)
A. Cook (Respondent)

SOLICITORS:
C.K. Smith (Crown)
S. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MANIFEST INADEQUACY
CROWN APPEAL
AGGRAVATION
OFFENDER UNLAWFULLY AT LARGE WHEN OFFENDING
MULTIPLE OFFENCES
VALUABLE TOTAL OF PROPERTY UNRECOVERED
PARITY
CO-OFFENDERS DEALT WITH AT YOUTH DRUG COURT
COMMENT ON PURPOSES OF REMARKS ON SENTENCE

LEGISLATION CITED:

DECISION:
CROWN APPEAL ALLOWED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60218/03
HANDLEY JA
GROVE J
ADAMS J
Friday 21 November 2003

REGINA v DAVID SCOTT KING

Judgment

GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Payne DCJ in the Penrith District Court on 29 May 2003. The respondent was sentenced on five principal charges to which he had previously pleaded guilty before a magistrate and had been committed for sentence.
Her Honour also took into account two series of offences on respective Forms 1. Without detailing the structure of the individual sentences, the effective consequence was a head sentence of three years imprisonment with a non-parole period of one year and nine months.
The respondent was born on 11 November 1983. He had a significant, substantially juvenile, prior record. Among entries on the record were findings of guilty for two charges of robbery whilst armed in respect of which, in April 1996, without conviction, the respondent was subjected to a control order for a total term of five months.
On 19 March 1997 he appeared in the Sydney District Court and was convicted on two counts of assault with intent to rob and sentenced to a minimum term of twelve months and sixteen days, together with an additional term of one year eleven months and twelve days, the custodial portion of which was to be served in a juvenile justice centre.
On 15 December 2000 the respondent again appeared before a Children’s Court on five counts of robbery whilst armed with a dangerous weapon, and on each count was subjected to a control order without conditions for twelve months, with a non-parole period of twelve months.
On 2 October 2001 he again appeared before a Children’s Court on charges of robbery, affray and attempting to escape from lawful custody, for which offences he was again subjected to control orders. He lodged an appeal to the Penrith District Court. He was in detention pending the hearing of that appeal which was scheduled for 1 March 2002. He absconded from detention on 2 January 2002 and was at large until arrested on 14 July 2002.
On the following day he was convicted of an offence of goods in custody at Blacktown Local Court and sentenced to imprisonment for a fixed term of one month, which term accordingly expired on 13 August 2002. There are other offences on his record, but I have scheduled the apparently more serious ones.
The facts found by her Honour for the purpose of sentence were expressed in a somewhat unconventional fashion and, by way of example, I recite those pertinent to the first charge;
“(1) Date: 23 February 2002. Offence: break and enter and commit serious indictable offence, larceny. Location: Woodcroft. Amount: $24,052. Section, maximum penalty: Section 112(1), fourteen years imprisonment.”
I am moved to comment that expression which is produced along the lines of some formula which can be likened to a filled-in form may not serve the primary purpose of remarks on sentence of advising an offender of why he or she is to be subjected to the assessed punishment about to be meted out. I am conscious that there are secondary purposes which may not be so affected, such as exposing reasons as to enable an appellate court to adjudicate if necessary, and publication for general deterrence and the information of the public, but in my view, informing the one who is to suffer punishment is the primary purpose of remarks, and this is not done by incantations of references in terms which the offender cannot reasonably be expected to understand.
The evidence before the sentencing Court included “facts sheets” to which her Honour made reference by exhibit number, but it is appropriate in order to achieve a proper understanding of what was involved in the offences to examine those facts. We are today informed of some supplementary facts to which I will later turn. I shall first summarise the facts as they were stated in the Court below.
In relation to the first charge, between 7.30 pm and 10 pm on Sunday 23 February 2002 the respondent went to premises in Woodcroft which were locked and secured. He went to the rear yard and forced entry through a ground floor door and, once inside, he searched several rooms and stole property. This included lady’s earrings, wristwatch and a handbag containing perfume, $70 in cash, mobile telephones, photographic, computer and electronic equipment, keys and remote alarm controls for two vehicles, the total value of which was stated at $24,052. The respondent decamped with the property, which he disposed of in return for cash and drugs.
For this offence her Honour imposed a sentence of two years imprisonment commencing on 12 August 2002 and expiring on 11 August 2004, with a non-parole period of fifteen months.
In relation to the second charge, at about 7 pm on Friday 15 March 2002 the respondent and a co-offender, then aged seventeen years, went to different premises in Woodcroft. They went to the side ground floor window of the premises and forced entry by breaking it. Once inside they stole property from numerous rooms including a mobile telephone, electronic and photographic equipment, clothing, and a lady’s black handbag containing jewellery and other property, the total value of which was stated to be $11,000.
The respondent and his co-offender moved the property to the garage of the premises where a Toyota Camry motor vehicle was stored. The keys to that vehicle had been acquired and they decamped in it with the stolen property. The vehicle was later dumped at Doonside and was recovered by police the next day in Penrith, where it was discovered to have been involved in a collision and was severely damaged. The value of the vehicle was stated to be $26,500. The stolen property was disposed of in return for cash and drugs.
On the charge of aggravated breaking, entering and stealing, the respondent was sentenced to two years seven months imprisonment, commencing on 12 August 2002 and expiring on 11 March 2005, with a non-parole period of one year six months. Four offences on a Form 1 were taken into account.
An offence of taking and driving a conveyance relating to the acquisition of the Toyota Camry motor car was taken into account on the Form 1.
In relation to the third charge, during one evening between Thursday 21 March 2002 and Sunday 24 March 2002, the respondent and another co-offender, also aged seventeen years, went to a third premises in Woodcroft. They entered the premises through an open garage door and the respondent smashed a hole through a gyprock wall thus gaining access to the inside of the premises.
Once inside they stole a DVD/video player and a watch, the total value of which was stated to be $780. That property was disposed of in return for cash and drugs.
For this offence the respondent was sentenced to imprisonment for one year and ten months, commencing on 12 August 2002 and expiring on 11 June 2004, with a non-parole period of twelve months.
In relation to the fourth charge, at about 7 pm on Friday 7 June 2002, the respondent went to a fourth premises in Woodcroft, the address of which suggests that it was two doors away from the premises mentioned in the facts concerning the third charge. He went to the rear yard of the premises and entered through a rear sliding door which was open and unlocked. There were several people inside the premises at the time and he saw them.
From the rear kitchen area he stole three mobile telephones and a bum bag, the total value of which was stated to be approximately $2,300. He left the premises but was later contacted by the victims on the stolen mobile telephone services and he directed verbal abuse at the callers. He later disposed of the mobile phones in return for cash and drugs.
On this charge the respondent was sentenced to imprisonment for one year and eight months, commencing on 12 August 2002 and expiring on 4 April 2004 with a non-parole period of twelve months.
In relation to the fifth charge, between midday and 10 pm on Saturday 22 June 2002, the respondent broke and entered premises at Granville by moving a window to a bedroom off its track. Once inside the premises the respondent stole property including computer and electronic equipment, jewellery, clothing, cordless and mobile telephones, sunglasses, a lady’s handbag and dress watches, the value of which was stated to be $10,000.
For this offence her Honour imposed a sentence, taking into account two offences on a Form 1, of two years and three months commencing on 12 May 2003 and expiring on 11 August 2005, with a non-parole period of twelve months, commencing on 12 May 2003 and expiring on 11 May 2004. Her Honour directed the release of the respondent to parole on the last mentioned date.
I have mentioned above the offence taken into account in the sentence on the second charge relating to the Toyota Camry sedan. Three other offences were taken into account on that sentence.
On 27 May 2002 at 9 am the respondent went to yet another house in Woodcroft, which was locked and secured. He attempted to force entry but triggered an alarm whereupon he decamped the premises without stealing any property. A short time later he went to still other premises in the suburb, which were locked and secured. He used a small hammer to break a rear bathroom window and gained entry thereby. Inside the premises he stole property including a wristwatch, clothing, television and electronic equipment, the total of which was said to be $10,270.
The fourth offence taken into account related to yet another house in Woodcroft, into which the respondent on 20 June 2002 gained entry by opening a sliding door, which was closed but unlocked. He stole property including mountain bikes, a photographic camera and a torch, the value of which was stated to be $900. He later disposed of the property in return for cash and drugs.
As also indicated, two offences were taken into account when sentence was imposed in relation to the fifth charge. The first of these involved breaking into the same premises as were concerned in the fifth charge. Between Thursday 6 June and Sunday 9 June, again by moving a window from its track as he did on the later occasion, the respondent entered and stole a DVD player, the value of which was stated to be $300.
The second offence taken into account was committed on Thursday 11 July 2002 when the respondent removed a flyscreen and forced a window to the bathroom of other premises in Granville. Once inside he stole property, including photographic and electronic equipment with a stated value of $2,500.
As can be observed from the preceding statements, all of the offences by the respondent were committed whilst he was at large after absconding from detention.
Although the respondent made full admissions to his crimes when interviewed by police, including the disposal by him of the stolen property, he would not inform police where he disposed of that property. Save the damaged car, none has been recovered.
There were significant factors to be taken into account in assessing subjective matters. Her Honour stated that she had taken into account the content of a pre-sentence report, a juvenile justice report and a psychological report, but did not elaborate. She also adverted to the respondent’s previous record, which was correctly described in Crown submissions as “extensive”. I have made some reference to this earlier.
Her Honour’s remarks included the following:
“The prisoner is still only a young man, he having been born on 11 November 1983. He is now aged about nineteen and a half years. He has spent a considerable part, if not the large bulk of his life, in juvenile custody. This is tragic for him and his offending is very bad for the community.
The prisoner had a very difficult early life. His intellectual functioning is below average.
....
Given his age, his rehabilitation must be of consideration. In my view there are certainly special circumstances in this case. The Crown accepted that this was so. See also the pre-sentence report at page 4, under supervision. He will need assistance with institutionalisation which he must be suffering from. Also he has a history of drug abuse. He has other conditions noted in the psychological report.”
It is convenient to turn to a written submission by the Crown in terms that it is suggested that insofar as her Honour took into account the respondent’s attention deficit hyperactive disorder as meriting a reduction of sentence imposed, her Honour fell into error. R v Dunn [2003] NSWCCA 169 is cited as authority for this proposition.
In fact, her Honour made no reference to the specific disorder, although she did direct attention to a psychological report in which this, amongst other things, is mentioned. R v Dunn is not authority for the wide proposition advanced by the Crown. As Meagher ACJ pointed out in that case, the sentencing judge had found that such a malady had nothing to do with the commission of the subject offences and it was therefore irrelevant to the appeal.
Barr J referred to cases supporting the principle, well accepted, that offenders suffering from mental illness or having severe intellectual deficit are usually not suitable persons, in respect of sentence, upon whom an element of general deterrence is appropriate. The Crown submission should be rejected. It might be noted that her Honour stated specifically that:
“General deterrence must be a feature of this sentencing exercise.”
A submission is made on behalf of the respondent that, contrary to Crown submissions, he was not on any form of conditional liberty at the time of the offences.
It is true that the tabulation of factors in the guideline judgment in Re Attorney General’s Application No 1 (Ponfield) 1999 45 NSWLR 327 does not include a factor in terms of the offence being committed whilst the offender is at large after escaping from lawful custody. However, the first stated factor of enhanced seriousness is commission of an offence whilst at conditional liberty on bail or parole and it scarcely would need expression that it is, in a scale of seriousness, above that to commit an offence when one is not lawfully at liberty at all.
I recognise that counsel for the respondent does not contend that the status of the respondent as an absconder from detention is not capable of being regarded as an aggravating feature, but to foreclose submissions in the future, I would expressly state that “offence committed whilst the offender is unlawfully at large” should notionally be added to the table in Ponfield.
It is again observed that all of the offences for which the respondent appeared for sentence, including those taken into account, were committed whilst he was an absconder from detention.
In my view the principal issue to be addressed by this Court is whether the sentences, given their overall effect, are so low that they fail to give proper reflection to the respondent’s criminality and the seriousness of his offences, even after making the fullest possible allowance for favourable subjective factors. In my opinion, the conclusion that the sentences are manifestly inadequate is inevitable when comparison is made between them and the facts which I have summarised above.
It is submitted that the residual discretion of this Court not to intervene should be exercised, having regard to the notice given by her Honour to the Crown that she was contemplating an effective sentence such as that ultimately imposed, and the absence of a contesting submission from the Crown.
The “notice” was given in oblique terms in that in an exchange her Honour said:
“Well, Mr Webb, would you say this is a case where he’d be looking perhaps at automatic release?”
This is invited to be taken to be a reference to the circumstance that sentences of three years or less are accompanied by a judicial order for release to parole at the expiry of the non-parole period in contrast with the situation where a sentence exceeding three years is imposed and a date of eligibility is specified, but the matter of actual release is committed to the Parole Board. Mr Webb was counsel then appearing for the respondent. Her Honour’s words appear to encourage submission. I note the response, “I think it’s within the range”.
I do not regard her Honour’s remark, and the absence of intervention by the Crown Prosecutor, as giving rise to a circumstance in which this Court should regard itself as inhibited from exercising its power to intervene to substitute an adequate sentence for one that is manifestly inadequate.
Today we have been provided with further information concerning co-offenders who have been dealt with in the Youth Drug Court, as well as an affidavit setting out some of the difficulties which the respondent has encountered in custody. In particular, his status as an escapee inhibits his progression into the less onerous forms of custody. Any alteration in status will be dealt with in accordance with the exercise of powers by a classification committee. The impediment would have been apparent at the time of sentence. Aspects of custody, it should be observed, are consequent upon the respondent’s own history.
There can be no justifiable sense of grievance harboured by the respondent where co-offenders in some of the offences are dealt with in an entirely different regime. We have today been handed the previous records of the co-offenders. These are not impressive, and I do not regard them as giving rise to what are generally called parity considerations.
We were also, by consent, handed a sheet which indicates that, contrary to the facts before her Honour, the respondent was accompanied by a co-offender on two occasions by each of the two different co-offenders, rather than, as in the facts which I have recited, been accompanied by a particular co-offender, once each on the occasion of the offences specified in charges 2 and 4. It is to be noted, of course, that in respect of charges 2 and 4, the respondent was charged with an aggravated form of offence because he was in company and the facts now tendered to us show incidentally that there might have been available that charge of the more serious nature in respect of two other offences.
Given the whole of the circumstances, and accepting the conceded further facts that have been offered to this Court, I do not regard these as matters which affect either the discretion of this Court or the orders that it should make.
As her Honour said, it is important to take into account the respondent’s comparative youth, his difficult early life, and the misfortune of spending so much of it in juvenile custody. Giving these matters, as I have said, the fullest account, there must in my view be a substitution by this Court of appropriate sentences.
Her Honour found that the respondent should have a 25 per cent discount for his confession and his pleas of guilty at the earliest opportunity, and that there were special circumstances justifying reduction in the respondent’s favour of the proportion between non-parole period and head sentence. I would implement both these findings for similar reasons on re-sentence.

The sentences which I propose are assessed in the light of the restraint which should be exercised when re-sentencing after a successful Crown appeal. Each head sentence now proposed has been reduced by 25 per cent from my assessment otherwise.
I propose the following orders:
1. Crown appeal allowed.
2.Sentences imposed in the District Court quashed and in lieu thereof the respondent sentenced as follows:
(a)On the first charge, to four years and six months imprisonment to date from 12 August 2002 and to expire on 11 February 2007, with a non-parole period of two years and nine months to date from 12 August 2002 to 11 May 2005;
(b)On the second charge, taking into account the four matters on the first Form 1, to six years imprisonment to date from 12 August 2002 and to expire on 11 August 2008, with a non parole period of three years and six months to date from 12 August 2002 to 11 February 2006;
(c)On the third charge, to four years six months imprisonment to date from 12 August 2002 and to expire on 11 February 2007, with a non-parole period of two years and nine months to date from 12 August 2002 to 11 May 2005;
(d)On the fourth charge, to four years six months imprisonment to date from 12 August 2002 and to expire on 11 February 2007, with a non-parole period of two years and nine months to date from 12 August 2002 to 11 May 2005;
(e)On the fifth charge, taking into account the two matters on the second Form 1, to four years six months imprisonment to date from 12 August 2002 and to expire on 11 February 2007, with a non-parole period of two years and nine months to date from 12 August 2002 to 11 May 2005.
The first date of eligibility for parole is specified as 11 February 2006.

HANDLEY JA: I agree.

ADAMS J: I agree. I wish to add some comments of my own.
These were not impulsive crimes. They comprised the invasion of people’s homes. As difficult and harsh as the respondent’s upbringing was, he knew the seriousness of the crimes and made deliberate decisions to undertake them. It has often and rightly been said that rehabilitation is an important objective of sentencing. But it is not the only objective.
There are some signs in this case that the respondent can be rehabilitated, and it was right of the learned sentencing judge to give them real significance. But there are other important considerations, to which Grove J has called attention. The balance is never easy to make. But the seriousness of the crimes, considered objectively, which includes, of course, the actual moral culpability of the offender, is always the most important factor and provides the fundamental measure against which subjective considerations are but counterweights.
In the result, I am of the respectful view that the learned sentencing judge weighed the relevant factors in a mode that was significantly mistaken, and that the sentences proposed by Grove J are necessary to restore a proper balance, although they also reflect a degree of leniency that has always been extended by this Court when increasing punishment on a Crown appeal.
HANDLEY JA: The sentence of the Court and the orders of the Court will be as announced by Grove J.

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LAST UPDATED: 28/11/2003