R v Skornia

[2000] NSWCCA 422

CITATION:	R v SKORNIA [2000] NSWCCA 422
FILE NUMBER(S):	CCA 60162/2000
HEARING DATE(S):	11 October 2000
JUDGMENT DATE:	11 October 2000
PARTIES :	Regina Philip SKORNIA
JUDGMENT OF:	Hulme J at 1; Barr J at 14

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0486
LOWER COURT JUDICIAL OFFICER :	Coolahan DCJ

COUNSEL :	Crown: P Hock Appellant: C Lyons
SOLICITORS:	Crown: SE O'Connor Appellant: DJ Humphreys
DECISION:	Leave to appeal against sentence is refused

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IN THE COURT OF
CRIMINAL APPEAL
No: 60162/00

HULME J
BARR J

Wednesday, 11 October 2000
REGINA -v- Allan SKORNIA
JUDGMENT

1    HULME J: On 3 February 2000 this applicant for leave to appeal pleaded guilty to a charge to the effect that between 7 and 12 August 1999 at Cessnock he broke and entered a dwelling house and stole certain property therefrom. On 17 March Coolahan DCJ sentenced the applicant to imprisonment for a minimum term of two years from the date of his arrest, namely, 18 October 1999 and an additional term also of two years.

2    On behalf of the applicant it is contended that the sentence was manifestly excessive. More particular grounds of appeal are that:-
1. It was not open on the evidence for his Honour to find the offence was accompanied by a "significant degree" of planning.

2. His Honour erred in that he gave the applicant's criminal history inappropriate weight in all the circumstances.

3. His Honour erred in failing to have any regard to the type of custody in which the applicant will be held.

3    It is convenient to deal with these three last grounds first.

GROUND 1

4    The words his Honour in fact used were "some significant degree of planning" and "some degree of planning." His Honour's conclusion in this regard seems to have been inspired in large part by evidence given by the applicant that he took with him two sports bags, each big enough to fit a cricket bat in, the quantity of goods stolen and possibly the improbability of the applicant having just happened upon premises wherein was, to use his Honour's words, the "veritable treasure trove" stolen.

5    Considered in isolation, the applicant's evidence of taking the sports bags with him could conceivably refer to taking them away from the premises broken into as part of the goods stolen. However, although there was reference to the stolen property, including a "Ventura motor bike carry bag", neither in the specification of the goods stolen nor in other material before his Honour was there any suggestion that sports bags had been stolen. In these circumstances his Honour was fairly entitled to conclude that the sports bags were taken to the scene of the crime by the applicant. Such a conclusion is sufficient to support his Honour's references to planning.

GROUND 2

6    The instant offence was the first time the applicant had been charged with breaking, entering and stealing. However, his antecedents include at least three prior convictions for stealing, a further three for larceny and two charges of giving or having on premises goods reasonably suspected of being stolen. He has also been convicted of a number of offences not involving dishonesty but which, in totality, demonstrates a disregard for his obligations in a civilised community. Furthermore, although his Honour did not mention the fact, it must have been apparent that at the time of the commission of the subject offence, the applicant was on bail for a large number of charges, including some to which I have referred and in respect of which he was sentenced in September 1999. It has long been the law that the commission of an offence while on conditional liberty is a serious aggravating factor.

7 In a well-known passage in Regina v Veen (No 2) (1988) 164 CLR 465 at 477, four of the Judges of the High Court said:-

"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

8    More than one aspect of these remarks apply to the applicant and there was no error in his Honour's approach to the applicant's record. Indeed, the applicant would be well-advised to remember the words I have quoted. Unless he changes his ways, with the record he has now acquired, he is likely to spend a large proportion of the rest of his life in gaol.

GROUND 3

9    The applicant's time in custody has not been uneventful. In May 1998 while the applicant was in remand at Cessnock Gaol, an incident occurred leading to him being taken to hospital. There he escaped. Accordingly, within the prison system he now bears a classification in recognition of that fact and is likely to be kept in Correctional Centres with a higher, if not maximum, level of security. Coolahan DCJ took the view that this fact had no relevance in the sentencing process - a view with which I agree. Offenders who choose to demonstrate by their misconduct that they need a high level of security imposed on them cannot fairly complain at the result.

10    On 22 January the applicant was seriously assaulted in a shower block. He was offered, and refused to go into, protective custody but for his protection and general order in the institution he was placed in segregation. His Honour recorded that he was not prepared to find that the applicant was likely to serve the balance of his sentence on protection and although I am prepared to accept that segregation may involve some disadvantages not suffered by the general prisoner population, nothing has been put before this Court to indicate that the disadvantages are so significant that they should have been taken into account or taken into account to a degree which would have resulted in a lesser sentence than that imposed.

MANIFESTLY EXCESSIVE

11 Under section 112(1) of the Crimes Act, the applicant's offence rendered him liable to imprisonment for fourteen years. The goods stolen were of a value of some $27,000, although some $7,000 worth were recovered. Included in this recovery was a valuable camera which the applicant himself returned. Nevertheless, the loss to the victims of the applicant's offence - and it does not seem to me to matter whether they were the owners of the goods or their insurer - amounted to $20,000. The offence was thus serious.

12 Breaking, entering and stealing offences are rife in the community, so much so that, despite what was said in Re Attorney-General's Application (No 1): Regina v Ponfield & Ors (1999) 48 NSWLR 327 at para 28, one could be pardoned for thinking that the penalties imposed to this time need to be increased. But be that as it may, statistics from the Judicial Commission which have been put before the Court demonstrate that the sentence imposed on the applicant was well within the normal range of sentences for offences such as his. Remarks in Re Attorney-General's Application (No 1); Regina v Ponfield & Ors at para 30 are to similar effect.

13    In my view leave to appeal against sentence should be refused.

14    BARR J: I agree.

15    HULME J: The order of the Court is that leave to appeal against sentence is refused.

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