R v Lucas
[2005] NSWCCA 194
•18 May 2005
CITATION: R v Lucas [2005] NSWCCA 194
HEARING DATE(S): 18 May 2005
JUDGMENT DATE:
18 May 2005JUDGMENT OF: Simpson J at 1, 23; Buddin J at 21; Hall J at 22
DECISION: (i) leave to appeal granted; (ii) appeal allowed in part; (iii) the applicant re-sentenced as follows - (a) Count 1 (and taking into account the additional offences): imprisonment with a non-parole period of two years, commencing on 10 December 2003 and expiring on 9 December 2005, with a balance of term of five years, commencing on 10 December 2005 and expiring on 9 December 2010; (b) Count 2: imprisonment with a non-parole period of two years, commencing on 10 December 2005 and expiring on 9 December 2007, with a balance of term of two years, commencing on 10 December 2007 and expiring on 9 December 2009. The earliest date on which the appellant will be eligible for release on parole is 10 December 2007.
CATCHWORDS: appeal against severity of sentence - break, enter and commit a serious indictable offence - second offence of same nature in aggravated form - additional offences taken into account - attempting to drive vehicle without consent of owner - larceny - pleas of guilty - special circumstances - Aboriginal heritage - drug dependence - whether aggregate sentence is manifestly excessive - whether adjustment in the aggregate non-parole period reflects special circumstances - prospects of rehabilitation
LEGISLATION CITED: Crimes Act 1900, s112
Crimes (Sentencing Procedure) Act 1999, Division 3, Part 3, s54DCASES CITED: R v Fernando (1992) 76 A Crim R 58
PARTIES: Crown - Respondent
Robert Harry Lucas - ApplicantFILE NUMBER(S): CCA 2005/421
COUNSEL: Virginia Lydiard - Crown
RJ Button - ApplicantSOLICITORS: S Kavanagh - Crown
SE O'Connor - Applicant
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 04/61/0052
LOWER COURT JUDICIAL OFFICER: Finnane DCJ
2005/421
Wednesday 18 May 2005SIMPSON J
BUDDIN J
HALL J
1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Finnane in the District Court in Orange on 3 June 2004, following his pleas of guilty to one count of break, enter and commit a serious indictable offence, and to a second offence of the same nature in its aggravated form. Two further offences, one of attempting to drive a vehicle without the consent of the owner, and one of larceny, were taken into account pursuant to Division 3, Part 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”).
2 Pursuant to s112(1) of the Crimes Act 1900 the offence of break, enter and commit a serious indictable offence carries a maximum penalty of imprisonment for 14 years. Pursuant to s112(2) the aggravated version carries a maximum penalty of imprisonment for 20 years. Pursuant to s54D of the Crimes (Sentencing Procedure) Act 1999 this offence is subject to a standard non-parole period of five years. On this charge Judge Finnane sentenced the applicant to imprisonment with a non-parole period of three years to commence on 10 December 2003, with a balance of term of four years, to expire on 9 December 2010. On the former charge he sentenced the applicant to a non-parole period of two years to commence on 10 December 2006 (that is, at the expiration of the non-parole period of the first sentence), expiring on 9 December 2008, and a balance of term of two years, expiring on 9 December 2010.
3 The aggregate sentence so imposed was a head sentence of seven years with a non-parole period of five years. In coming to that result, Judge Finnane expressly found that special circumstances existed warranting departure from the statutory proportion between the head sentence and non-parole period. However, when regard is had to the combined sentences, and the accumulation of the second upon the first, it can be seen that the reduction in the non-parole period was of only three months.
facts
4 Of all four offences the first in time was the offence against s112(1). In the afternoon or early evening of 7 August 2003 the applicant removed a fly screen door from a laundry window of an Orange home, and forced open the window. He entered and ransacked the premises, stealing a variety of personal items. He left the house through another window, taking the property with him.
5 Two offences were committed on 30 August 2003. A little after midnight, the applicant smashed a window of a vehicle parked in a street in front of the owners’ residence, and ransacked its contents. He attempted to start the vehicle, using a screwdriver, but caused damage that prevented its ignition. This was the first of the offences taken into account. The applicant then entered the owners’ residence by removing a fly screen door and opening a window. He searched for property in a wardrobe in a bedroom where the male owner was asleep. The female owner was alerted by a barking dog and came to investigate. A fracas ensued, the applicant pushing the woman backwards into the bedroom before running away. This was the aggravated break and enter offence, the use of violence being the aggravating feature.
6 The second offence taken into account was committed on the evening of 2 September 2003. The applicant smashed a window of a car parked in a street and stole about $3 from inside the vehicle.
subjective circumstances
7 The subjective case made for the applicant was compelling indeed. He was born on 29 March 1985 and was 18 at the time of all offences. He is of Aboriginal heritage and his history is an exemplar of the pattern of deprivation and disadvantage outlined by Wood J (as the Chief Judge then was) in R v Fernando (1992) 76 A Crim R 58. He had a criminal record, commencing in June 2001, when he would have been 16 years of age. Entries include assault, break, enter and steal, larceny, and, most seriously, being armed with intent to commit an indictable offence, this having been committed while he was still a juvenile. This offence resulted, after appeal, in a control order of 12 months with a non-parole period of almost seven months. A subsequent break, enter and steal resulted in imprisonment for 18 months, with a non-parole period of six months. The applicant was subject to the conditions of the parole order imposed in respect of the offence of being armed with intent to commit an indictable offence at the time of committing each of the present offences. He was also subject to the conditional liberty of four good behaviour bonds.
8 A pre-sentence report and a psychiatric report presented a dismal picture of the applicant’s life. These disclosed that he had, at the time of the offences, been living with his mother, step-father and siblings in Orange. The siblings were said to include three older half-sisters, each of a different father, and six younger half-siblings, the children of his mother and step-father, who have been living together for 15 years. He was said to have a very good relationship with his step-father, but to have had virtually no contact with his biological father.
9 He did not attend school until he was aged eight, and left at 13, illiterate. He had severe conduct and behavioural problems and was suspended on many occasions and eventually expelled. He was the subject of violence at home for his disobedience. He began sniffing petrol at the age of nine; at ten he began to use cannabis on a daily basis and was still using that drug heavily at the time the psychiatric report was prepared; by 12 he was injecting amphetamines, and at 13 heroin. He used large amounts of alcohol from the age of 14. He has used various other drugs including cocaine and ecstasy.
10 In February 2004 he was diagnosed with acute hepatitis, and tested positive for hepatitis A, B and C. He has been treated with anti-psychotic medication and has been diagnosed as suffering from attention deficit disorder and possibly schizophrenia. He has made two attempts at drug and alcohol rehabilitation but had not completed either programme. There is a family pattern of alcoholism and drug abuse.
11 The applicant gave evidence in the sentencing proceedings. He was clearly vulnerable and broke down in tears during the course of his evidence. He said that he would like to try drug rehabilitation again, and that he had in fact begun a methadone programme. He has a relationship with a young woman, whom he hopes to marry and with whom he hopes to begin a family.
the remarks on sentence
12 Judge Finnane described the psychiatric report as “a very sad document”. He recounted the applicant’s history. Judge Finnane recognised that, because the applicant had pleaded guilty, the standard non-parole period had relevance as a benchmark. He considered that the applicant’s breaches of the law were all attributable to his dependence on drugs of addiction. In this respect he considered that his participation in a methadone programme may assist the applicant and concluded that he had some prospects of rehabilitation. Relevant to this was the family support shown by the presence of his mother, step-father and other family members in the court over the sentencing proceedings. He proceeded to impose the sentences I have set out above.
the application for leave to appeal
13 Two grounds of appeal were argued. The first asserted that the aggregate sentence is manifestly excessive; the second, that the adjustment in the aggregate non-parole period fails to reflect the special circumstances of the case.
14 The submission advanced in support of the first ground relied principally upon statistical material provided by the Judicial Commission of NSW. It is true that a superficial analysis of these figures would suggest that, in respect of the s112(2) offence, the applicant’s sentence fell within the top 9% of sentences imposed in respect of offences committed before 1 February 2003 (the date of the commencement of the provisions of the Sentencing Procedure Act specifying standard non-parole periods). The head sentence falls in to the top 6% of those imposed in respect of offences committed after that date.
15 It would not be right, however, to take this raw data in isolation. It was necessary for the sentencing judge to reflect other circumstances in the determination of the sentences. These included that the applicant was both subject to a series of bonds, and to a parole order at the time he committed the offences; that he had a prior record for offences of the same kind; that his sentencing was for a multiplicity of offences; that, particularly in relation to the s112(2) offence, it was likely that the premises would be occupied (as, indeed, they were) (see s105A of the Crimes Act). As against that, there were the compelling subjective circumstances. It is also relevant to note that, while corporal violence was used, it was not of the greatest order of magnitude which can give rise to a charge under s112(2).
16 Counsel who appeared for the applicant strongly pressed the argument that the aggregate sentences were excessive in the circumstances, particularly in the light of the applicant’s age, and the discrepancy between the sentences and the most severe sentences the applicant had previously served. However, as with the statistics, that is to be seen in the light of the additional and aggravating features.
17 Counsel also pressed in oral argument that the case called for some degree of concurrency, whereas the sentencing judge had made the second sentence wholly cumulative upon the non-parole period imposed in respect of the first. He recognised, correctly, that questions of concurrency and accumulation are very much a discretionary matter and have to be examined in the light of the totality of the offences.
18 Having regard to all of the matters that have been argued, I am unable to be persuaded that the total head sentence is outside the range legitimately available to the sentencing judge. I would reject this ground of appeal.
19 I take a different view, however, in relation to the second ground of appeal. The judge clearly intended to give the applicant the opportunity to spend a longer portion of his sentence at liberty on parole, and subject to supervision. There were very good reasons to support that view. The applicant was very young, only 19 years of age, at the date of sentencing. His history showed that he had barely had any opportunity of living a normal, law-abiding life. He had taken some steps towards rehabilitation of which his participation in the methadone programme was perhaps the most promising. He will, however, on release, be in need of a great deal of support if he is to have any chance of rehabilitation. In my opinion, Judge Finnane intended that the sentences imposed would give him that opportunity. But the sentences at which he arrived have not properly achieved what he intended to achieve. Accordingly, I would grant leave to appeal, and adjust the sentences but only by an adjustment to the overall non-parole period so that the applicant will have the greatest opportunity of retrieving his life.
20 The orders I propose are:
(i) leave to appeal granted;
(ii) appeal allowed in part;
(iii) the applicant to be re-sentenced as follows:
- (a) Count 1 (and taking into account the additional offences): imprisonment with a non-parole period of two years, commencing on 10 December 2003 and expiring on 9 December 2005, with a balance of term of five years, commencing on 10 December 2005 and expiring on 9 December 2010;
(b) Count 2: imprisonment with a non-parole period of two years, commencing on 10 December 2005 and expiring on 9 December 2007, with a balance of term of two years, commencing on 10 December 2007 and expiring on 9 December 2009. The earliest date on which the appellant will be eligible for release on parole is 10 December 2007.
21 BUDDIN J: I agree.
22 HALL J: I agree.
23 SIMPSON J: The orders of the Court will be as I have proposed.
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