R v Lyons

[2000] NSWCCA 337

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     Regina v Lyons [2000]  NSWCCA 337

FILE NUMBER(S):
60489/99

HEARING DATE(S):           12/07/2000

JUDGMENT DATE:            12/07/2000

PARTIES:
Regina
Brett John LYONS

JUDGMENT OF:      James J Bell J    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        99/11/0293

LOWER COURT JUDICIAL OFFICER:     Armitage DCJ

COUNSEL:
P Hock - Crown
PJD Hamill - Applicant

SOLICITORS:
SE O'Connor - Crown
TA Murphy - Applicant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Sentencing Act 1989
Criminal Procedure Act 1986

DECISION:
Application for leave to appeal allowed; appeal dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60489/99

JAMES J
  BELL J
  12 July, 2000

REGINA v Brett John LYONS

JUDGMENT

1    JAMES J:  I will ask Justice Bell to give the first judgment.
2    BELL J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by his Honour Judge Armitage QC in the Sydney District Court on 16 August 1999. The applicant pleaded guilty to one count of break enter and steal pursuant to s 112(1) Crimes Act 1900. The maximum penalty in respect of this offence is one of 14 years imprisonment. His Honour imposed a minimum term of 2 years imprisonment to commence on 16 August 1999 and to expire on 15 August 2001. An additional term of 8 months was specified to commence on 16 August 2001.

3    The offence was committed on 7 April 1999.  The applicant was arrested on that day and was taken in to custody.  He was on parole at the date of the commission of the offence.  His parole was subsequently revoked with the revocation expressed to take effect from 7 April 1999.

4    The applicant broke into a domestic home in Naremburn by forcing open a rear door.  He stole a quantity of property including a lap-top computer, a VCR, assorted compact discs and some jewellery.  The total value of the property stolen was estimated at $5,500.  Later that afternoon, it appears that the applicant arranged for his girlfriend to sell the lap-top computer to a Cash Converters outlet in Chatswood.  Staff at the shop became suspicious and notified the police.  The police attended and observed the applicant in the near vicinity of the shop.  He was spoken to and arrested.  The applicant made full admissions prior to and during the course of an electronically recorded interview with police.  He took the police to Naremburn and identified the premises.  The whole of the property taken in the course of the offence was recovered and returned to the owner. 

5    The applicant is aged 38 years.  He is a single man with a longstanding addiction to heroin and other drugs.  The material before his Honour showed that the applicant was a single child who had grown up in a stable family environment.  Somewhat inexplicably against this background he had commenced criminal offending at the age of fourteen. His Honour summarised the applicant’s lengthy criminal record in the course of his reasons for sentence.  It is sufficient to note that the applicant’s record is extensive and contains a number of convictions for offences of armed robbery and break enter and steal.  His Honour noted that it was not his function to visit further punishment upon the applicant in respect of offences for which he had already paid a penalty.  The significance of the record in the approach that his Honour adopted was that it provided no assistance to the applicant in support of his submission for leniency.

6    Mr Hamill, who appears on behalf of the applicant, advances two challenges to the sentence which his Honour imposed.  Firstly, he submits that the sentence is manifestly excessive and, allied to this, he submits that the sentencing judge fell into error in failing to find that special circumstances existed requiring a departure from the statutory proportion as between the minimum and additional terms provided by s 5(2) of the Sentencing Act, 1989.

7    The applicant gave evidence at the sentence hearing.  He said that he had been released from custody on parole on 20 June 1998.  Thus, at the date of the commission of the subject offence, he had been at liberty for a period of approximately nine months.  Prior to this the longest time he had been out of gaol in the past twenty years was for six weeks.  He said that he had obtained three casual jobs in the ten month period of his liberty.  He had worked as a detailer and as a delivery driver for a dry-cleaning firm.  He was attending the Methadone Maintenance Programme at Herbert Street, St Leonards. His name had been placed on a waiting list for admission  to that clinic’s detoxification programme. He was due to be admitted to the programme on the day of the commission of the offence.  On that morning he arrived at the clinic a quarter of an hour late and was refused admission.  He was informed that he would have to place his name on the waiting list afresh.  He said that this decision had hit him very hard and that he had become very angry.  He had consumed a quantity of tablets and following this he broke into the house in Naremburn.  He told the police that he had been walking around Naremburn with a screwdriver looking for something to steal.

8    A detailed report prepared by Janet Devlin, Consultant Psychologist, dated 29 July 1999 was tendered in the applicant’s case. A pre-sentence report prepared by Geoff Bridle, Probation and Parole Officer, dated 5 August 1999 was also before the sentencing judge.  In the concluding section of her report, Ms Devlin noted that the applicant’s account of his life reflected the institutionalisation process.  She then went on to set out what appear to be recognised phases associated with that phenomenon.  It was in this context that she observed:

“In the final phase, which Brett seems to have entered during his thirties, the depressive feelings and thoughts may greatly increase as the hopelessness of the circumstances begins to be accepted.  …. Eventually the struggle may stop altogether and the individual is totally institutionalised.

It is suggested that Brett is not yet at this stage and that he retains some hope for his future, bolstered by the comparative success he had during his last release.

9    Ms Devlin went on to comment that the applicant’s account of the commission of the subject offence was reflective of his poor coping skills and of his readiness to blame events outside his control for his offending.  She noted that his negative expectations of life tend to become a self fulfilling prophecy.  In her conclusion, Ms Devlin said:

“It is respectfully submitted that Brett retains the potential for successful rehabilitation, and that the provision of pre or post release training in social skills and stress and anger management and structured post release supervision, including assistance to access normative community supports (to reduce social isolation), will enhance his resilience to further drug use and the associated offending.”

1. Mr Bridle recited the lengthy history of contact between the applicant and the Probation and Parole Service in the pre-sentence report.  Relevantly, he concluded:

   “Whilst considerable reservations must be expressed about the offender’s ability to rehabilitate himself in the community, his latest parole was exceptional in that he managed to remain in the community for approximately nine months before he re-offended.  During this time he was in casual employment for approximately four months and appeared to be making a genuine effort to rehabilitate himself.

   Should the court be considering either a custodial or a non-custodial sentence it is considered that supervision within the community, would afford the best prospect for Mr Lyons to break the pattern of his persistent offending to feed his addiction.”

2. Mr Hamill submits that, in the light of the contents of these two reports and having regard to the applicant’s criminal history, this case was one in which special circumstances were clearly established on the evidence.

3. It is to be noted that his Honour made specific reference to the contents of both reports.  In particular he commented on Ms Devlin’s opinion both that the applicant was not as yet totally institutionalised and that he appeared to have made progress during his last release in obtaining employment.  His Honour went on to note the contents of Mr Bridle’s report making specific reference to Mr Bridle’s observation that the last period on parole was exceptional in that the applicant had managed to remain in the community for approximately nine months before re-offending.  At the conclusion of his reasons his Honour said:

   “In my view there are not special circumstances which would entitle me to alter the use of relationship between the length of the minimum term and the length of the additional term.”

4. The thrust of Mr Hamill’s submission is that the applicant is approaching forty years of age and had demonstrated some signs of progress towards rehabilitation notwithstanding his lengthy history of incarceration.  In the light of the positive indications in the reports of Ms Devlin and Mr Bridle his Honour must be taken to have erred in not finding that special circumstances existed such as to justify a departure from the statutory proportion in favour of a lengthy additional term.  Implicit in this is the contention that the minimum term might accordingly have been of much shorter duration.  As I have noted it is clear that his Honour considered the question of special circumstances.  His reasons disclose that he addressed himself to the contents of the relevant portions of both reports.  He referred to the evidence that the applicant himself had given on the hearing.  In this regard it is apparent that his Honour did not accept the applicant’s assertion that he was at the cross-roads of his life. 

5. It was open to his Honour to conclude that special circumstances had not been established.  The circumstance that it is possible to point to matters in the evidence which may have provided a basis for a different view is not a ground for this Court interfering with the exercise by an experienced judge of his discretion based upon his assessment of the evidence.

6. The next matter to which Mr Hamill referred was the circumstance that the offence was one which might have been dealt with summarily. As at 7 April 1999 an offence under s 112(1) where the felony alleged was stealing and the value of the property stolen did not exceed $15,000 was a Table 1 offence for the purposes of s 33C of the Criminal Procedure Act 1986 (the Act) and as such was an indictable offence to be prosecuted summarily unless the prosecuting authority or the person charged elected otherwise (the same provision is now made by s 20 of the Act and Schedule 1 thereto). An offence of break, enter and steal disposed of before the Local Court was subject to a maximum sentence two years imprisonment pursuant to s 33J(2) of the Act (now s 27(2)). Mr Hamill submits, by reference to decisions of this court in Shepherd [1999] NSWCCA 162; Dalton-Morgan (unreported) NSWCCA, 14 December, 1998 and Smith (unreported) NSWCCA, 11 September, 1999, that this is a matter which the sentencing judge may take into account. 

7. In Attorney-General’s Application (No 1); R v Ponfield & Ors [1999] NSWCCA 435 Grove J made reference to figures kept by the Bureau of Crime Statistics and Research and by the Judicial Commission which revealed a marked trend to have the majority of matters charged pursuant to s 112(1) dealt with at a summary hearing. In that case the court declined to indicate a starting point for sentences or to specify a range of sentences for the reason, among other things, that the overwhelming majority of charges brought pursuant to s 112(1) are dealt with, by choice of the Crown, before Magistrates.

8. In R v Crombie [1999] NSWCCA 297, Wood CJ at CL (with whom Simpson J agreed) observed [15 & 16]:

   “This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan, Jason Clyde-Smith and Shepherd.

   None of those decisions goes so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court.  At most they establish that the circumstance identified is to be taken into account.  Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment.  Moreover,  where it appears that the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal.”

9. The sentencing judge did not, in terms, refer to the circumstance that this offence was one which might be dealt with summarily. His Honour did refer to the maximum penalty fixed by the legislature and to the view that the offence was a serious one particularly where, as in this case, property in an amount in excess of $5,000 in value had been stolen. I do not consider in the circumstances of this case that his Honour’s failure to refer to the possibility of summary disposition of offences of this nature discloses error. The exercise of the prosecutorial discretion to bring the subject proceeding before the District Court was, in my view, unremarkable. The applicant was on parole in relation to his conviction before the Sydney District Court on three counts of demand money with menaces at the time he broke into a domestic dwelling and stole from it. The sentencing judge would have been well aware that many charges brought pursuant to s 112(1) are dealt with to finality in the Local Court.

10. The third ground of challenge to the sentence was the submission that it is manifestly excessive.  This ground relied in part upon the fact that such offences are commonly dealt with summarily.  In addition to the latter consideration Mr Hamill pointed to the applicant’s cooperation with police, his early plea of guilty,  his remorse and the fact that the property had been recovered.  The applicant was showing some progress towards rehabilitation with respect to his drug addiction.  A striking feature was said to be the circumstance that the applicant had sought admission to a health facility only hours before the commission of the offence and that his rejection had precipitated the offending. These were all matters upon which his Honour made comment in the course of his reasons. 

11. It was also submitted that the nature of the offence and the absence of what were described as aggravating features (save for the circumstance that the applicant was in breach of parole) tended towards a view that the sentence was manifestly excessive.  It is to be borne in mind in relation to this latter submission that s 112(2) & (3) provide for aggravated offences of breaking, entering and stealing to be charged as such and to attract higher maximum penalties.  The present offence involved the breaking into a private domestic dwelling home and the stealing of property of considerable value.  Such an offence falling within s 112(2) carries a maximum of fourteen years imprisonment. Offences of break enter and steal are serious offences.  I see little merit to the submission that the sentence was manifestly excessive because the offence lacked circumstances of aggravation. 

12. Mr Hamill seeks to deal with the fact that the applicant was on parole at the time of the commission of the offence by observing that he was punished in relation to this by his return to custody.  It is the case that his parole was revoked following his arrest.  However, the fact that an offence is committed whilst the offender is at liberty on parole is a circumstance of aggravation and it was a proper matter for his Honour to take into account in the present case.

13. The Crown Prosecutor in her careful submissions attached copies of statistics, prepared by the Judicial Commission, relating to the disposition in the District Court of cases of break enter and steal brought pursuant to s 112(1) in the period December 1994 to July 1999. Suffice it to say an analysis of those statistics lends no support to the submission that a sentence of 2 years and 8 months falls outside the range of the proper exercise of discretion. Such a view is consistent with the review of sentencing patterns in Attorney-General’s Application No 1.

14. I am not of the opinion that error has been demonstrated in the exercise of his Honour’s sentencing discretion. 

15. I would propose that the application for leave to appeal be allowed but that the appeal be dismissed.

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LAST UPDATED:    01/09/2000