R v Martin

[2003] NSWCCA 325

CITATION:	R v Martin [2003] NSWCCA 325
HEARING DATE(S):	16 October 2003
JUDGMENT DATE:	5 November 2003
JUDGMENT OF:	Studdert J at 1; Barr J at 45; Whealy J at 46
DECISION:	Leave to appeal granted; appeal dismissed.
LEGISLATION CITED:	Crimes Act, ss 112, 114, 117 Crimes (Sentencing Procedure) Act, ss 5, 23
CASES CITED:	Re Attorney General's Application No. 1 R v Ponfield & Ors (1999) 48 NSWLR 327 R v Ellis (1986) 6 NSWLR 603
PARTIES :	Regina v Danny Paul Martin
FILE NUMBER(S):	CCA 60318/03
COUNSEL:	E. Wilkins (Crown) G. Wendler (Applicant)
SOLICITORS:	C.K. Smith (Crown) P. Van Houten (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/31/0264
LOWER COURT JUDICIAL OFFICER :	Twigg DCJ

60318/03

STUDDERT J
BARR J
WHEALY J

Wednesday 5 November 203

REGINA v DANNY PAUL MARTIN

Judgment

1 STUDDERT J: Having earlier pleaded guilty in the Local Court, the applicant, Danny Paul Martin, pleaded guilty in the District Court at Taree to three counts of break enter and steal, one count of enter land with intent to break enter and steal, and one count of larceny. The applicant was sentenced by his Honour Judge Twigg QC on 6 June 2003. For the most serious of the offences of break enter and steal involving the taking of $151,000, the applicant was sentenced to imprisonment for three years commencing on 6 June 2003 and to expire on 5 June 2006. Having found special circumstances, his Honour set a non parole period of twelve months to expire on 5 June 2004. On the other two charges of break enter and steal, a fixed term of imprisonment of twelve months was imposed with such term to commence on 6 June 2003. For the offence of enter land with intent to break enter and steal, the sentencing judge imposed a fixed term of imprisonment of twelve months, again to commence on 6 June 2003. Finally, in respect of the offence of larceny, a term of six months imprisonment was imposed to date from 6 June 2003.

2 The applicant seeks leave to appeal against the sentences imposed.

3 The most serious of the offences was that attracting the term of three years imprisonment. The victim of this offence was an elderly lady living at Bucketts Way, Taree. The applicant knew the victim’s family, being a friend of her grandson. The applicant kept watch at the house whilst his two accomplices broke into the house and stole a safe containing $151,000. The money stolen represented part of the proceeds of the victim’s sale of a dairy farm and part of the money was from the repayment of a loan that the victim had made to her daughter and her son-in-law.

4 The applicant was one of three offenders and the proceeds of the crime were divided evenly. The applicant and his co-offenders went to Queensland where part of the proceeds of the crime was spent. Something in excess of $68,000 was recovered by police, leaving nearly $93,000 missing at the time of sentence.

5 The applicant was arrested a week after the commission of this offence and was charged with the various matters for which the sentences presently being considered were imposed. When first interviewed, he denied any knowledge of the offences but two weeks later he participated in a second interview in which he admitted the offences and the additional offence of larceny.

6 The applicant also admitted to an offence of breaking entering and stealing from Cullen Holden at Taree. On 4 February 2002 he and his accomplices broke into Cullen Holden and stole Holden clothing and a Tech 2 car computer. The judge found that the applicant had made full restitution to Cullen Holden for what was taken.

7 The third of the break enter and steal offences was committed at the Caltex Service Station at Taree. On 23 or 24 February 2002 the applicant and the co-offender Schlenert broke into the Caltex service station and stole forty-five cartons of cigarettes. These cigarettes were subsequently sold for between $25 and $40 a carton. The applicant offered to reimburse the victim of this crime but, an insurance claim having been met, the victim, who was a friend of the applicant’s parents, declined the payment offered by the applicant.

8 The offence of entering land with intent to break enter and steal was committed before the most serious of the break enter and steal offences. The applicant and his accomplice Schlenert entered on to the property from whom a substantial sum of money was stolen one week later. There were two residences on that property and the applicant and Schlenert were observed and recognised by an occupant of one of the residences.

9 Then, between 22 February 2002 and 1 March 2002, the applicant and his co-offenders stole an outboard motor valued at $500, having cut it from the back of a boat at Manning Point.

10 The maximum penalty for break enter and steal imposed by s 112(1) of the Crimes Act is fourteen years imprisonment. The maximum penalty imposed by s 114(1)(d) for entering on land with intent to commit an indictable offence is seven years imprisonment. The maximum penalty for larceny imposed by s 117 of the Crimes Act is five years imprisonment.

11 The sentencing judge was correct to remark that the range of penalties provided recognised that these categories of offences were serious indictable offences.

12 The applicant was a young man nineteen years of age at the time these offences were committed. There were two co-offenders, one was an older man by the name of Maher, and the other was a young man named Schlenert, who was about the same age as the applicant. The applicant had no prior criminal history and he had the support of his parents, although for some time prior to the commission of the offences he had been living away from home and had been unemployed. By the time he came to be sentenced, and for many months before, the applicant was in gainful employment again.

13 There were a number of people through whom evidence of the applicant’s good character was offered. In addition, the judge had the benefit of a psychiatric report from Dr Westmore, as well as a report from a psychologist, Mr Spencer. His Honour plainly considered those reports, as is reflected in his sentencing remarks, and he recorded that Dr Westmore was of the opinion that the applicant was suffering from a depressive illness and that Dr Westmore thought there might be dysthymic disorder, a differential diagnosis including episodes of adjustment disorder with depression. Dr Westmore considered the applicant would require psychiatric support and assistance, but regarded the applicant as a young man with considerable potential and ability to achieve. This the sentencing judge also recorded.

14 The applicant has advanced a number of grounds of appeal which I will address in the order in which they were raised in the applicant’s written submissions.

Ground 1: That the sentences were manifestly excessive

15 It was submitted that the sentences were manifestly excessive in view of the applicant’s youth, his prior good record, his early pleas, his remorse and the restitution made or offered. A further factor advanced is that he was influenced by the elder of the co-offenders, Maher, to commit these offences.

16 I do not accept this submission. His Honour was correct to regard the break enter and steal offence at the elderly victim’s home as the most serious of the offences and his Honour made careful reference in assessing that offence to the guideline judgment in Re Attorney General’s Application No. 1 R v Ponfield & Ors (1999) 48 NSWLR 327. His Honour found that there was a degree of organisation and planning in this offence, and this was reflected by the earlier reconnaissance. There was evidence of vandalism and damage and what was taken was a very large sum of money. Further, the offence was committed at the home of an elderly lady known by the applicant to be elderly. The victim was eighty-two years of age at the time of the offence.

17 His Honour made a comprehensive review of the relevant objective and subjective considerations, and I detect no error of fact in that review bearing upon his sentencing task. His Honour indicated that a discount of twenty-five percent was given for the early plea, and that was altogether appropriate.

18 In respect of the other offences, his Honour considered their gravity and acknowledged them to be less serious than that offence attracting the three year sentence. The lesser gravity of the other offences was, of course, reflected in the sentences imposed for each of them.

Ground 2: Parity with the co-offender Maher

19 The applicant has submitted that the judge erred in not sufficiently reflecting the disparity between the criminality of the co-offender Maher and that of the applicant. The head sentence for the older offender Maher was six years, and that was double that of the applicant. It seems to me that the applicant can hardly have a justifiable sense of grievance bearing in mind this significant difference. Moreover, the older offender Maher, who had a significant criminal history, had imposed a non parole period of four years six months, which is three years six months more than was imposed upon the applicant.

20 To my mind there is no substance in ground 2.

Ground 3: Failure to consider other sentencing options

21 It was submitted that the sentencing judge failed to comply with s 5 of the Crimes (Sentencing Procedure) Act. Section 5(1) provides:

“A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

22 In this case the sentencing judge had before him a pre sentence report which identified sentencing options that included community service and periodic detention. Mr Wendler submitted that the judge should have stated his reasons as to why these, or any other options not adopted, were not adopted.

23 I do not consider this submission as having any merit. It seems to me to be clear from a reading of the entirety of the remarks on sentence that his Honour made it clear that he determined to impose a full time custodial sentence because no lesser form of punishment was appropriate. His Honour specifically stated that he had taken into account all other sentencing options.

24 Having read the judgment, I am not persuaded that his Honour failed to do that which he was required to do by s 5(1).

Ground 4: Failure to give weight to assistance to the authorities

25 Mr Wendler submitted that the judge fell into error in not making some allowance for assistance given to the authorities. In particular, Mr Wendler referred to the information given by the applicant that the offender Maher was involved in the larceny of the outboard motor. He submitted that s 23(2) of the Crimes (Sentencing Procedure) Act imposed upon the court the necessity to consider the matters set out, and in particular:

“(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,
(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence.”

26 There was no evaluation of the applicant’s assertions implicating Maher upon which the judge was able to draw. Where an offender gives an account that seeks to lessen his culpability by blaming somebody else, it does not automatically follow that such behaviour warrants the imposition of a lesser penalty on that offender. What s 23(1) contemplates is that the court may impose a lesser penalty than it would otherwise impose on an offender “having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities…”

27 In the absence of evidence that bore upon this, I am not persuaded that there was any error by the judge in not reducing the sentence he would otherwise have imposed simply because the applicant asserted that Maher was involved in the theft of the motor.

28 Because the applicant disclosed his own participation in the theft of the motor when he was interviewed by the police the second time, he was entitled to consideration for volunteering this, consistently with the decision in Ellis (1986) 6 NSWLR 603. The judge did not specifically indicate he was giving any consideration for this, but a sentence of six months was not an unreasonable sentence in the circumstances, having regard to the fact that the offence involved not only the taking away of the motor but its forcible removal from the boat to which it had been attached.

29 In any event, in determining whether to disturb the sentences that were imposed, this Court must have regard to the applicant’s total criminality.

Ground 5: Error in his Honour’s finding with respect to deterrence

30 Mr Wendler submitted that there was error in that the judge determined that general deterrence in the area of Taree required a heavy sentence.

31 What the judge said about the need for deterrence was this (R/S 27-28):

“There needs to be a strong warning, particularly in this area that offences of this kind, to either feed a habit or make gain and then to spend it, needs to be the subject of a heavy sentence…”

32 His Honour went on to deal with Mr Maher’s situation before turning his attention to the position of the applicant and the third offender, in relation to whom he said this:

“The other two need to have particular deterrence, and the authorities say where youth is concerned emphasis should be given on rehabilitation rather than emphasising particular deterrence. Nonetheless, there is a need to warn the other two young men that they must not re-offend.”

33 I perceive no error in the above remarks, and the sentences that were imposed do not convey to me that his Honour gave undue weight to consideration of deterrence.

Ground 6: Failing to take into account the relationship between the psychiatric and psychological condition of the applicant and the offences committed by him

34 There were two reports placed before the sentencing judge, a report from a psychiatrist, Dr Westmore, and from a psychologist, Mr Spencer. The judge, at R/S 15-16, remarked: “Dr Westmore found no medical or psychiatric history of note.”

35 It was submitted that this involved error because Dr Westmore determined that the applicant was suffering from a depressive illness and he also thought there might be dysthymic disorder with a differential diagnosis including episodes of adjustment disorder with depression.

36 A reading of his Honour’s remarks does not leave me with the impression that the judge misinterpreted Dr Westmore’s report. When his Honour referred to there being no medical or psychiatric history, I take it that what his Honour was referring to was background history. His Honour was alert to Dr Westmore’s medical conclusions about the applicant’s depressive illness and possible dysthymic disorder because his Honour went on specifically to address this at R/S 16 (see para 13 above). Further, in imposing a custodial sentence his Honour recommended that the applicant undertake psychological and psychiatric assessment and therapy, and imposed conditions for the eventual period of parole that included psychiatric and psychological assessment and treatment.

37 Dr Westmore did not consider that the chronic depression from which he suspected the applicant was suffering was the explanation for the applicant’s behaviour in participating in the commission of this offence. Rather, he considered that the participation was for “other psychodynamic reasons”.

38 I detect no error in his Honour’s evaluation of the psychiatric and psychological evidence.

39 Ground 6, in my view, fails.

Ground 7: The judge erred by giving inadequate weight to the applicant’s efforts to compensate the victims

40 I do not infer that these efforts were overlooked. His Honour specifically referred to the evidence that the applicant had reimbursed in full Cullen Holden (see R/S 13-14); his Honour also referred (R/S 14-15) to the sum of $1000 having been proffered by the applicant to Mr Dearth of Caltex. So far as the elderly victim of the most serious of the offences is concerned, this lady remained out of pocket for over $92,000 at the time of sentence.

41 His Honour was alert to these factors and the sentences imposed do not suggest to me that they were given other than due consideration.

42 His Honour faced a difficult task when it came to sentencing the applicant for his participation in the various crimes that were committed. There were powerful subjective features of the case to be weighed in his favour, and the applicant as a young man faced the prospect of imprisonment for the first time. On the other hand, appropriate recognition had to be paid to the objective gravity of what the applicant did.

43 His Honour’s comprehensive sentencing remarks to the extent that they affected the applicant disclosed no error of approach. Moreover, in my opinion, the sentences imposed upon the applicant were entirely appropriate, and no ground has been made out for this Court to interfere.

44 I therefore propose that leave to appeal be granted but that the appeal be dismissed.

45 BARR J: I agree with Studdert J.

46 WHEALY J: I agree with the reasons of Studdert J.

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Last Modified: 11/10/2003