R v Labrooy

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Labrooy [2004] NSWCCA 371

FILE NUMBER(S):
2004/1802

HEARING DATE(S): 21/10/2004

JUDGMENT DATE: 21/10/2004

PARTIES:
Regina
Craig Derek Labrooy

JUDGMENT OF: Hulme J Buddin J M W Campbell AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1166

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:
P Ingram (Crown)
T Watts (Applicant)

SOLICITORS:
S Kavanagh (Crown)
Burston & Cole & Co (Applicant)

CATCHWORDS:
Criminal law - sentencing - enter dwelling house in circumstances of aggravation - effect of incarceration on third party

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Grant leave to appeal. 2. Allow appeal in respect of count 1. 3. Quash the sentence and in lieu thereof sentence the applicant to a non-parole period of 18 months imprisonment to commence on 4 February 2004 and to expire on 3 August 2005. The balance of the sentence will be 18 months imprisonment which will expire on 3 February 2007. 4. Confirm the sentence imposed in respect of count 2, but order that the non-parole period will now commence on 4 February 2005. The balance of the sentence will now expire on 3 February 2008. 5. The non-parole period in respect of count 2 will expire on 3 February 2006 at which time the applicant is eligible to be released on parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1802
HULME J
BUDDIN J
CAMPBELL AJ
THURSDAY 21 OCTOBER 2004

REGINA v CRAIG DEREK LABROOY

Judgment

BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court in respect of two offences to which he entered pleas of guilty upon arraignment.
In respect of count 1, which was an allegation that the applicant entered a dwelling house in circumstances of aggravation knowing that there were persons therein with intent to commit therein a serious indictable offence, namely to assault occasioning actual bodily harm to Mark Lewis, a sentence of 4 years imprisonment with a non-parole period of 2 years was imposed. Both terms were ordered to commence on 4 February 2004 with the non-parole period fixed to expire on 3 February 2006.
In respect of count 2, which was an allegation that the applicant maliciously wounded Mark Lewis, a sentence of 3 years imprisonment with a non-parole period of 12 months was imposed. Both these terms were ordered to commence on 3 February 2006. The non-parole period for that offence was fixed to expire on 2 February 2007. The overall effective sentence is thus one of 5 years imprisonment with a non-parole period of 3 years. The maximum penalty prescribed for count 1 is 14 years imprisonment and for count 2, 7 years imprisonment.
The factual background to the offences can be briefly stated. The applicant and a woman named Karen Bugeja had been in a relationship from November 2001 until September 2002. During the course of the day of 18 November 2002 the applicant contacted Ms Bugeja by mobile phone on nine occasions. That evening Ms Bugeja stayed at Mark Lewis’ unit at St Marys. Also staying in the unit that night were Ms Bugeja’s sister and her two young children. The sister and her children were sleeping in the loungeroom.
At about 1.30 am on 19 November the applicant went to the block of units in which Mr Lewis resided. He climbed up from the ground to the first floor balcony of Mr Lewis’ unit which was on the first floor. He then entered the premises through the loungeroom. From there he walked into the main bedroom where Mr Lewis and Ms Bugeja were asleep on a mattress on the floor. Mr Lewis was lying face down on the mattress. The applicant reached down and placed both his hands around Mr Lewis’ throat. He squeezed his throat which caused him to choke. Both Mr Lewis and Ms Bugeja awoke and asked the applicant to desist.
The applicant continued to apply pressure to Mr Lewis’ throat. Mr Lewis was in fear for his life but nevertheless managed to get off the mattress and onto his feet. The applicant still had hold of him by the throat. The men continued to struggle as Mr Lewis endeavoured to get the applicant off his back by backing into the walls of the bedroom. During the course of the struggle the applicant bit down on Mr Lewis’ ear. A portion of the ear was torn away and the resulting wound began to bleed profusely. The struggle then continued in other parts of the house. Eventually Ms Bugeja was able to switch the kitchen light on and it was only then for the first time that she and Mr Lewis were able to recognise the applicant as being the assailant. In due course, Mr Lewis was able to free himself and shaped up towards the applicant. The applicant then walked down the stairs as if he were leaving the building. However he returned to the landing and pushed on the outside of the door of the unit in an attempt to prevent it from closing. Ultimately, Mr Lewis was able to close the door. The police were then called to the premises.
Mr Lewis was taken by ambulance to hospital where he underwent surgery. The portion of his ear which had been detached was located. Unfortunately however for Mr Lewis that portion cannot be reattached or replaced and the applicant will be without it for the rest of his life. In addition to the physical injuries which he sustained, Mr Lewis has also been deeply psychologically affected by the incident.
The applicant participated in an ERISP with police when arrested a few weeks later. He denied any involvement in the offence and indeed sought to set up an alibi.
The applicant was aged 32 at the time of the commission of the offences. He had no prior convictions of any kind and was treated by the sentencing judge as being of prior good character. The sentencing judge found that the applicant had been in fairly regular employment since he left school at the age of 15. There was evidence, which the sentencing judge accepted, that the applicant was a diligent and hardworking employee.
The sentencing judge took into account in the applicant’s favour his pleas of guilty. The pleas of guilty were entered on the day of trial although it appears that they followed negotiations between the parties. It also emerged during the sentencing proceedings that the Crown had disclosed additional material in the days preceding the trial which served to strengthen the case which it brought against the applicant. Nevertheless, it was in any event clearly a strong Crown case, consisting as it did of evidence from eyewitnesses together with DNA evidence which linked the applicant to the premises by reason of a baseball cap which he had left behind during the attack.
The sentencing judge allowed a 15% discount on account of the utilitarian aspect of the plea. His Honour also allowed a further discount of 5% on account of what was said to be the applicant’s remorse. That was despite his initial denials of involvement in the incident and his subsequent endeavours when speaking to the author of the pre-sentence report to suggest a rather more benign version of the events than the circumstances warranted. In any event, no complaint is made about the fact that an overall discount of 20% was allowed for the pleas of guilty.
The sentencing judge accepted that the applicant was suffering from depression and anxiety at the time of the offences. The evidence disclosed that the applicant’s mother, to whom he was very close, had had a long battle with cancer and was very ill at the time of the incident. That and other matters had caused the applicant to be in a state of emotional turmoil. There was also evidence, which his Honour accepted, that the applicant was considerably affected by alcohol at the time of the offences although he was not normally a person who abused alcohol.
Furthermore there was evidence that the applicant had assumed a significant role in caring for his father, particularly in the period following his mother’s death which occurred after the incident in question but before the applicant came to be sentenced. The sentencing judge referred to that issue in the following terms in the Remarks on Sentence:
Your father is seventy-eight and will be seventy-nine years this year. A medical report from Doctor L. Kitson dated 2 February 2004 has been placed in front of me. It shows that your father is blind in the right eye, has only partial sight remaining in his left eye due to a rapidly growing cataract. He has a hearing deficiency. He is very confused and agitated and has had noticeable weight loss of recent times since the death of his wife. He is in need of constant assistance which you have been providing to him since his wife and your mother died. I note that Doctor Kitson expresses the view that should your father’s level of care be reduced his health would further deteriorate and that if you were not able to look after him he, Doctor Kitson would be concerned for your father’s welfare. Certainly on the evidence that has been put before me you have been a loving and attentive son and I fully recognise the problems that your absence will cause in relation to your father. It is true you have a sister but she is a married woman with children of her own and that makes it difficult for her to devote the degree of time, care and attention that your father’s state of health obviously warrants. I certainly take the bad health of your father and his need for your care into account in sentencing you.
The sentencing judge was prepared, in all the circumstances, to conclude that the applicant had good prospects for rehabilitation and that he was unlikely to re-offend.
The evidence concerning the applicant’s care of his father was at the forefront of a submission that was made to the sentencing judge that it was open to his Honour to impose a sentence of home detention upon the applicant. The sentencing judge rejected that submission and observed that it was inappropriate to do so “because of the very significant nature of the offences which were committed”. In that context his Honour referred to the substantial injuries, both psychological and physical, which had been occasioned to Mr Lewis. He highlighted the fact that Mr Lewis was in a vulnerable situation given that he was asleep at the time of what was an unprovoked attack upon him. Furthermore, his Honour was of the view that the offences involved some, albeit a fairly limited, degree of planning.
In relation to each offence, the sentencing judge found “special circumstances” and structured the individual sentences accordingly.
The principal complaint made on behalf of the applicant is that the sentences imposed were manifestly excessive. Before dealing with that submission it is convenient to deal with the other two grounds of appeal. The first ground asserts that “His Honour gave insufficient weight to the effect the applicant’s incarceration would have on his disabled father”.
The submission was advanced that the effective non-parole period “should have been significantly less than that imposed so as to allow the applicant to be released to resume the care of his disabled father as soon as possible”. The circumstances in which hardship to third parties can affect a sentencing outcome are well established. See R v Edwards (1996) 90 A Crim R 510. It is accepted by the applicant that the sentencing judge took that matter into account and reflected it in the sentencing process. The complaint is that the effective non-parole period should have been moderated even further. In support of this submission, the applicant points to the fact that in finding “special circumstances” in respect of the sentence imposed in relation to count 2, his Honour said that he had had regard to the applicant’s prior good record, his favourable prospects of rehabilitation and “the potential needs of his father”. However in finding ”special circumstances” in respect of count 1, his Honour referred only to the first two of those considerations. Moreover, his Honour had fixed in respect of count 1, a non-parole period which represented 50% of the head sentence, whilst the non-parole period in respect of count 2, represented only a third of the head sentence. This demonstrated, so it was submitted, that the sentencing judge had overlooked the question of the applicant’s father’s ill health when imposing sentence in respect of count 1.
I would reject this submission. As I have earlier observed, the sentencing judge specifically said that he had taken this matter into account in the applicant’s favour. It was a factor which was relevant not only to the non-parole period but to the head sentence as well. In any event I would be reluctant to infer in the circumstances that his Honour would have taken this matter into account in relation to only one of the matters with which he was concerned. But even if his Honour had done so, that would not necessarily demonstrate error. What ultimately must be established is that the overall effect of the sentences imposed is such as to demonstrate error, be it latent or patent. The reason why a proportionately lower non-parole period was imposed upon count 2 was no doubt to reflect the fact that it was a sentence that was partially accumulated upon the first sentence which was imposed. To have maintained the same proportion (that is 50%) in respect of count 2 would have worked an injustice to the applicant for it would have produced an overall non-parole period of 3½ years, that is 70% of the overall sentence. That outcome would not have properly reflected the finding of “special circumstances”. I would accordingly reject this Ground of Appeal.
The second ground upon which the applicant relies is that the sentencing judge erred in making the sentences partly cumulative. It was submitted that “although the two offences are separate offences, the nature of the two offences is so closely related that it would be proper that the sentences, both head sentence and non-parole period, be imposed and served concurrently”.
The sentencing judge explained why he had taken the course of partly accumulating the second sentence upon the first sentence. His Honour said:
I have taken that course because in my view these two offences whilst obviously being part of the same episode of criminality nevertheless were separate and distinct. The first offence was constituted by the breaking and entering with intent to commit an assault on Mr Lewis, the second offence was the carrying out of that assault by way of malicious wounding.
In my view it is appropriate that there be an additional time both in custody and in terms of head sentence for the second time offence over and above the first. The sentence that I have imposed represents my view of the totality of the criminality involved taking into account the subjective factors and having regard to the requirements of the R v Pearce.
The malicious wounding was constituted by the removal of a portion of Mr Lewis’ ear. It was as his Honour said, a separate and distinct offence albeit that it occurred during the course of the episode which had seen the applicant attend the premises in the first place. Nevertheless it was a somewhat more serious offence than the one which the applicant had had in contemplation when he entered the premises, namely an assault occasioning actual bodily harm. In those circumstances, it was well open to the sentencing judge to proceed in the manner in which he did. Moreover, as is apparent from his Honour’s remarks, the course upon which he embarked was designed to give effect to the requirements dictated by Pearce v The Queen (1998) 194 CLR 594. In the circumstances I detect no error in the approach which his Honour adopted.
There was a reference by his Honour in the passage which I have just set out, to the first offence involving a “breaking” as well as an “entering”. The offence to which the applicant pleaded guilty did not however involve any element of “breaking”. I am perfectly satisfied that his Honour’s reference to “breaking” in that context was entirely inadvertent and innocuous. His Honour had, at the outset of his Remarks on Sentence, set out in terms the offence to which the applicant had pleaded guilty and the maximum penalty which was available. There is no reason to infer that his Honour was, in all the circumstances, under any misapprehension as to the correct offence in respect of which he was required to impose sentence. I would reject the second Ground of Appeal.
There remains however the question of whether the sentences in their overall effect are manifestly excessive. The first offence to which the applicant pleaded guilty involved entering a dwelling house with intent to commit therein a serious indictable offence. A serious indictable offence is defined in the Crimes Act as an “indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. It is not without significance that the serious indictable offence which was in the applicant’s contemplation in the present case was an assault occasioning actual bodily harm which attracts a maximum penalty of 5 years imprisonment. The circumstance of aggravation relied upon was the applicant’s knowledge that there were present in the premises at the time a person or persons. There was no suggestion however that he knew prior to going to the premises of the presence of Ms Bugeja’s sister or her children. Furthermore, although as I have said, the sentencing judge was entitled to impose a partially cumulative sentence for the malicious wounding offence, it was necessary to bear steadily in mind the fact that there was a very considerable overlap between the two offences which of course arose out of the one episode of criminal misconduct. The second offence in time was in effect an incident of the earlier offence. It is not apparent that his Honour gave sufficient consideration to that factor in the sentences which he imposed.
To be weighed in the balance were the powerful subjective features of the case upon which the applicant was entitled to rely. These were offences committed by a man who hitherto had, as the sentencing judge found, led a blameless existence, who had pleaded guilty, who had acted in an uncharacteristic fashion at a time when he was in emotional turmoil and who was the primary caregiver to his aged and infirm father who was dependent upon him to a significant degree.
Notwithstanding the objective gravity of the offences, I am persuaded that this submission has been made good. Accordingly I am of the view that the court should intervene and proceed to re-sentence the applicant. In doing so, I have had due regard to the provisions of s 3A and s 21 A of the Crimes (Sentencing Procedure) Act 1999. I have also had regard to the additional affidavit material which has been placed before the court which suggests that the health of the applicant’s father has further deteriorated since the applicant was sentenced. I would also, as the sentencing judge did, make a finding of “special circumstances”.
I propose the following orders:
1. Grant leave to appeal.
2. Allow appeal in respect of count 1.
3.Quash the sentence and in lieu thereof sentence the applicant to a non-parole period of 18 months imprisonment to commence on 4 February 2004 and to expire on 3 August 2005. The balance of the sentence will be 18 months imprisonment which will expire on 3 February 2007.
4.Confirm the sentence imposed in respect of count 2, but order that the non-parole period will now commence on 4 February 2005. The balance of the sentence will now expire on 3 February 2008.
5.The non-parole period in respect of count 2 will expire on 3 February 2006 at which time the applicant is eligible to be released on parole.
HULME J: I agree.
CAMPBELL AJ: I also agree.
HULME J: The orders of the Court will be as proposed by Buddin J.

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LAST UPDATED: 22/10/2004

[2004] NSWCCA 371

21 October 2004