R v Stewart

[2005] NSWCCA 290

CITATION:	R v Stewart [2005] NSWCCA 290
HEARING DATE(S):	11 August 2005
JUDGMENT DATE:	22 August 2005
JUDGMENT OF:	Simpson J at 1; Johnson J at 2; Rothman J at 3
DECISION:	(a) Leave to appeal be granted (b) Appeal be allowed (c) Sentence for both Counts 1 and 2 imposed by his Honour Judge Coolahan DCJ on the applicant on 9 January 2005 be quashed and in lieu thereof the following sentences be imposed: (i) Count 1: imprisonment for a fixed term of 12 months commencing on 27 February 2004 and expiring on 26 February 2005 (ii) Count 2: imprisonment for a non-parole period of 12 months commencing on 27 August 2004 and expiring on 26 August 2005. The balance of the term of 2 years commencing on 27 August 2005 and expiring on 26 August 2007

CATCHWORDS:	Criminal Law - Sentencing - offender punished twice for overlapping criminal conduct - credit for prior imprisonment for the criminal conduct
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Carter (Court of Criminal Appeal, 9 March 1978) Pearce v The Queen (1998) 194 CLR 610 R v Boulghourgian (2001) 125 A Crim R 540 R v Simpson (2001) 53 NSWLR 704 Veen [No. 2] (1998) 164 CLR 465 R v Johnson [2004] NSWCCA 76
PARTIES:	Crown Kevin John STEWART
FILE NUMBER(S):	CCA 2005/1321
COUNSEL:	Applicant - Ms J Manuell Crown - W Dawe QC
SOLICITORS:	Applicant - S.E. O'Connor - Legal Aid Commission Crown - S. Kavanagh - DPP

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0303
LOWER COURT JUDICIAL OFFICER:	Judge Coolahan

- 1 -

2005/1321

SIMPSON J
JOHNSON J
ROTHMAN J

22 August 2005

REGINA v Kevin John STEWART

Judgment

1 SIMPSON J: I agree with Rothman J.

2 JOHNSON J: I agree with Rothman J.

3 ROTHMAN J: This matter comes before the Court pursuant to the terms of s.5(1)(c) of the Criminal Appeal Act 1912. The applicant seeks leave to appeal and, if granted, presses an appeal against the sentence imposed by his Honour Judge Coolahan DCJ on 9 February 2005 at the District Court in Newcastle. The applicant was charged with two counts of break, enter and steal which occurred on 14 January 2003 in the case of Count 1 and 30 March 2004 in the case of Count 2. Each of them, being a contravention of s.112(1) of the Crimes Act 1900, carry a maximum penalty of 14 years’ imprisonment.

4 The applicant, Kevin John Stewart, pleaded guilty to both counts and his Honour Judge Coolahan DCJ sentenced him to: in the case of Count 1, a term of imprisonment for a fixed term of 12 months commencing on 31 May 2004 and expiring on 30 May 2005; and in the case of Count 2, a term of imprisonment for a non-parole period of 12 months commencing on 30 November 2004 and expiring on 29 November 2005 and the balance of the term being a period of 2 years commencing on 30 November 2005 and expiring on 29 November 2007. The aggregate sentence was imprisonment for a non-parole period of 18 months commencing on 31 May 2004 and expiring on 29 November 2005. The balance of the term, in aggregate, is for a period of 2 years commencing on 30 November 2005 and expiring on 29 November 2007.

Facts

5 The facts giving rise to the two offences are not in dispute. In relation to the Count 1, it occurred on 14 January 2003 in the circumstances set out below.

6 During the course of Tuesday, 14 January 2003, premises in Wickham were locked and secured by the first victim when she proceeded to work. Between 11 am and 9.20 pm that day, the premises were broken into. Upon arriving home, the first victim noticed a rear window into the laundry was open. Upon entering the premises, the first victim saw that several items in the house had been moved or knocked over. The first victim further noticed that a large amount of jewellery was missing. Some of the missing jewellery were antiques.

7 The police were called and police forensic services attended and, through the removal of blood stains from both an external hot water unit and an internal window frame and the analysis of that blood, they found that the blood had the same DNA profile as the applicant. The applicant was arrested on 5 August 2003 and was placed into custody. It is relevant to note that the goods taken included an amount of jewellery and some watches. They were valued in the sum of nearly $29,000.

8 In relation to Count 2, which, I have noted already, was also the subject of a guilty plea, the facts are, once more, set out in a facts sheet tendered by agreement.

9 Between 8.15 am and 4.50 pm on 30 March 2004, the applicant attended premises in Mayfield occupied by the second victim. He went to the rear sliding door which he opened. He entered the premises and removed a DVD player and 13 DVD movies. He left the premises with that property. The police were informed as soon as it was discovered that the premises had been robbed and the police discovered fingerprints on the rear sliding door. These were all fully identified as belonging to the applicant. The applicant, upon being contacted by the police, admitted the commission of the offence.

10 One other matter needs to be addressed. On 14 January 2003, the day on which the applicant broke into the home of the first victim, the applicant was arrested. He had in his possession watches that we now know were the watches stolen from the first victim, which watches formed part of the quantity of jewellery stolen as a result of the conduct charged in Count 1. The applicant was refused bail on 14 January 2003. He pleaded guilty to a charge under s.527C(1)(a) of the Crimes Act, being a charge of goods in custody, and was sentenced in the Newcastle Local Court on 8 April 2003 to a fixed term of 3 months’ imprisonment backdated to the date of arrest being 14 January 2003.

11 When the applicant was arrested on 5 August 2003, he was in Maitland Road, Islington and was noticed by two police officers. Constable Doherty pulled up along side the applicant and another male and had a short conversation with the applicant, returned to the police vehicle and ran a check on the applicant. Constable Doherty returned to where the applicant was still standing and had a conversation with him in the following terms:

“Doherty: ‘Kevin, I have been informed that you are currently wanted for a break and enter.’
Applicant: ‘What! I’ve been inside.’
Doherty: ‘Kevin, before you get worked up, you have been identified by way of DNA. The offence may have occurred some time ago.’

The applicant made no reply and was arrested and thereafter remained in custody.

12 It should also be pointed out that the issue of the term of imprisonment for the breach of s.527C was a matter that was raised in evidence during the sentencing hearing but was not the subject of submission by Counsel for the defence and was not a factor taken into account by his Honour in sentencing.

13 That evidence was in the following terms:

“Q: Now the first offence, which was the January 2003 offence, that place owned by [the first victim], you went there with another person who knew the contents?
A: Yes.
Q: I think he was related to [the first victim], is that right?
A: Yes.
Q: And you assisted him, is that right?
A: Yes.
Q: You were charged later with goods in custody in respect of some of the items that were found on you, I think some watches?
A: Yes.
Q: Is that all you got out of it?
A: Yes.
Q: So from the long list that was stolen, what did you actually acquire as a result of that break and enter?
A: What the police officers caught me with, what I got charged for, goods in custody.
Q: Which was watches?
A: Yeah.
Q: And what did you plan to use that for, those watches?
A: I got them to go and swap heroin for them.”

14 Section 112(1) of the Crimes Act 1900 relevantly provides:

“(1) Whosoever: … breaks and enters any dwelling house … and commits any serious indictable offence therein … shall be liable to imprisonment for 14 years.”

15 Section 527C(1)(a) of the Crimes Act 1900 provides, relevantly:

“(1) Any person who: (a) has any thing in his or her custody … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court … to imprisonment for 6 months, or to a fine of 5 penalty units, or both.”

16 While hypothetically it may be possible to commit a break enter and steal and not have goods in custody shortly thereafter, it is invariably the case that any person that is guilty of a break and enter and steal will at least for some short time have goods in custody: cf R v Carter (Court of Criminal Appeal, 9 March 1978) 4 Petty Sessions Review 1859 in which this Court discusses whether the Crown can be forced to charge for the more serious offence instead of the less serious one. The applicant was arrested on the day of the break, enter and steal offence and charged, convicted and sentenced for the offence under s.527C. The applicant spent, as already outlined, 3 months in gaol for that offence.

17 A complicating factor in the assessment of the circumstances of the applicant is that the sentence imposed for the contravention of s.527C was served concurrently with other offences.

18 The issue raised on appeal is that by not taking account of the three months served for goods in custody in the sentence imposed for the break enter and steal, the sentencing judge has effectively punished the applicant twice for the same offence or, more accurately, for overlapping criminal conduct.

19 In Pearce v The Queen (1998) 194 CLR 610 at 614, McHugh, Hayne and Callinan JJ said:

“[11] First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.
[12] Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged.
[13] Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused’s criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of the conduct.”

20 Their Honours thereafter considered the different stages in the process of criminal justice at which issues of double jeopardy arise. They were broadly categorised as double prosecution and double punishment. In relation to a double prosecution the High Court discussed the availability of a plea in bar and of a stay of proceedings.

21 It is not suggested, in this appeal, that because of the conviction and sentencing for goods in custody, it was impermissible for the applicant to have been charged and convicted with the break enter and steal which gave rise to his possession of the goods. However, if the charges had been heard together, or the charge for break enter and steal had been processed before the charge for goods in custody, there may well have been an arguable case that the charge for goods in custody could not proceed because all of the criminality associated with the possession of the goods was encompassed within the criminality associated with the break enter and steal. It is unnecessary for the Court to deal with whether or not there would or could be a successful stay, or a remedy based upon autrefois convict or a plea in bar.

22 The joint judgment in Pearce, supra, said:

“[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way which means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history rather than according to their just deserts.
[41] In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing … which suggests that Parliament intended that an offender such as the appellant should be twice punished for [common elements of two offences]. …
[42] … The identification of a single act as common to two offences may not always be … straightforward. It should, however, be emphasised that the inquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.”

23 The Crown seeks to rely on two bases, in its written submissions, to avoid the consequences of the application of the above principles to the situation of the applicant. Those two bases are firstly, that it would have been possible to define the charges in a way which confined the break enter and steal to jewellery, other than the watches that were found in the possession of the applicant and gave rise to the goods in custody charge. The second basis was the application of the principles in s.6(3) of the Criminal Appeal Act 1912.

24 The short answer to the first basis raised by the Crown is that, in fact, the charges were not so framed. The watches in the possession of the applicant which form the basis of the charge of goods in custody were also included in the charge for break enter and steal. Moreover, even if the prosecution proceeded in the manner suggested by the Crown as a possibility, the principles in Pearce are not so easily overcome.

25 As to the second basis relied upon by the Crown, it relies upon this Court coming to a view that the sentence imposed below was not incorrect. The Crown relies upon a passage from R v Boulghourgian (2001) 125 A Crim R 540 in which Spigelman CJ said at [34]:

“Even though there is error detected in the reasoning process of a trial judge, s.6(3) does not enable this Court, much less require it, to interfere with a sentence unless it is of the view that a more lenient sentence should have been passed.”

To that passage can be added the passage, also from the Chief Justice, in R v Simpson (2001) 53 NSWLR 704 in which Spigelman CJ said:

“[79] Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘if it is of the opinion that error has occurred in the sentencing process’. That is not the statutory formulation. By s.6(3) this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s.6(3) further requires the identification of error in the requisite sense.”

26 In circumstances such as this, there can be little doubt that the sentence for break enter and steal should, at least, have included a credit for the three months served for goods in custody which offence of goods in custody was necessarily a direct result and part of the criminal conduct for which the applicant was being sentenced in the charge before the Court below. This was a case of overlapping criminal conduct and the applicant should not be punished twice for that overlapping conduct: Pearce at [40]–[42]. In those circumstances, another sentence should be passed.

27 The Crown, quite appropriately, conceded that if the charges had been brought together, they would have been served wholly concurrently or, alternatively, if the break enter and steal had been processed first, the goods in custody would probably not have proceeded. In those circumstances, there is little to commend an approach which would not give full credit for the three months already served.

28 An issue was raised relating to the fact that his Honour, in considering the aggravating features in s.21A of the Crimes (Sentencing Procedure) Act 1999 took into account the prior convictions of the applicant which included the prior conviction of goods in custody to which I have already referred. It seems, on analysis of the overall sentence imposed, that any effect occasioned by the use of the goods in custody charge was immaterial or insignificant. Without the goods in custody charge being considered at all, there was still a significant criminal history which his Honour took into account and which was such that it was unlikely that the goods in custody charge would have had a significant effect. Of course, the criminal history is to be used in accordance with the principles in Veen [No. 2] (1998) 164 CLR 465 at 477 as an aggravating factor under s.21A(2)(d) of the Crimes (Sentencing Procedure) Act to deny, where appropriate, the level of leniency that might otherwise be shown and to require condign punishment to effect the greater need for specific deterrence (see also R v Johnson [2004] NSWCCA 76 at [32]-[37]).

29 In the circumstances, I propose that the appeal be allowed and I therefore deal with the sentence that should be imposed. In doing so, I take into account certain subjective factors which were also relied upon by the sentencing judge below. On the material before the Court, the offences of which the applicant has been convicted over a significant period of time largely, if not totally, relate to drug related offences or were occasioned by the need to satisfy his addiction. The material before the Court, although not up-to-date nor in the best form, suggests that the applicant has been the subject of a rehabilitation program and drug free since May 2004. There are, in those circumstances, special circumstances which would allow the fixing of a non-parole period which bears a relationship to the remainder of the prison term different from the statutory requirement. I continue to apply the discount that was fixed by the District Court to the sentence for the utilitarian value of the plea. I propose:

(a) Leave to appeal be granted;

(b) Appeal be allowed;

(c) Sentence for both Counts 1 and 2 imposed by his Honour Judge Coolahan DCJ on the applicant on 9 January 2005 be quashed and in lieu thereof the following sentences be imposed:

(i) Count 1: imprisonment for a fixed term of 12 months commencing on 27 February 2004 and expiring on 26 February 2005.
(ii) Count 2: imprisonment for a non-parole period of 12 months commencing on 27 August 2004 and expiring on 26 August 2005. The balance of the term of 2 years commencing on 27 August 2005 and expiring on 26 August 2007.

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