R v Warren
[2003] NSWCCA 366
•10 December 2003
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Warren [2003] NSWCCA 366
FILE NUMBER(S):
60343/03
HEARING DATE(S): 5 December 2003
JUDGMENT DATE: 10/12/2003
PARTIES:
Regina v Bradley Malcolm Warren
JUDGMENT OF: Hidden J Smart AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 02/21/0140
LOWER COURT JUDICIAL OFFICER: Tupman DCJ
COUNSEL:
(C) P Power SC
(A) H Dhanji
SOLICITORS:
(C) C K Smith
(A) B Sandland
CATCHWORDS:
Sentences in District Court and Drug Court - application of principle of due proportion.
LEGISLATION CITED:
Drug Court Act 1998
DECISION:
Appeal allowed. Sentence quashed. (2) In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 3 years 9 months commencing 2 March 2002 with a non-parole period of 2 years 3 months expiring on 1 June 2004.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60343/03
HIDDEN J
SMART AJ
Wednesday, 10 December 2003
Reginav Bradley Malcolm WARREN
JUDGMENT
HIDDEN J: I agree with Smart AJ
SMART AJ: Bradley Malcolm Warren seeks leave to appeal against the severity of a sentence of imprisonment of 4½ years with a non-parole period of 3 years for the offence of aggravated break enter and steal, taking into account four further offences, namely goods in custody (2 offences) larceny and unlawful entry into enclosed lands.
The applicant's challenge to his sentence is based on that passed on a co-offender in the Drug Court of 2 years 6 months imprisonment by way of an initial sentence pursuant to s.7(2) of the Drug Court Act 1998. That sentence was suspended pursuant to s.7(3) of that Act during his Drug Court program. The applicant claims that there is a lack of due proportion in the sentences for the same offence.
The applicant was found guilty on 16 August 2002 following a trial before Tupman DCJ. The specific matter of aggravation relied upon was that the applicant was in company at the time of the offence. The applicant and his co-offender Samir Elsamad, broke into a house in Ashfield on the afternoon of 25 December 2001. They gained entry by smashing one side of a pair of French doors and pushing over a wardrobe unit. A quantity of electronic sound equipment was removed from inside the premises, stacked on the outside verandah and hidden under a doona.
The two offenders left the scene and later returned in a taxi they had hired from Ashfield Station. The stolen items were placed in the taxi. Soon after the police arrived and arrested the applicant and his co-offender. The goods were recovered. The applicant claimed in an ERISP and also in his trial that he was only assisting his co-accused to remove goods from a verandah and that he was not involved in any joint criminal enterprise to break enter and steal. The jury rejected this explanation.
When assessing the objective criminality of the offence Tupman DCJ concluded:
"It is towards the bottom of the range of offences for aggravated break enter and steal."
At the time of the commission of the offence the applicant was on a bond for the offence of shoplifting. That sentence had been imposed on 31 August 2001 in the District Court. Following his arrest for the subject offence the applicant was released on bail on 25 December 2001. The various matters dealt with on the Form 1 were offences committed by the applicant whilst on bail before his arrest on 2 March 2002 for three of the Form 1 offences. He remained in custody following that date.
The Form 1 contained four offences. The offence of goods in custody on 23 January 2002 related to 7 bottles of shampoo and about 15 bottles of conditioner and that of 2 March 2002 to one blue and white Bulldog cap. The property stolen on 2 March 2002 comprised 1 Sony MDLR mini disc player recorder valued at $428. The fourth offence was that of entering the enclosed land of Bankstown Square Shopping Centre on 2 March 2002.
The applicant was born on 24 February 1963 and was thus aged 38 at the time of the offence. The applicant has a lengthy criminal record which commenced in the Children's Court in February 1977. Up to October 2001 his record contained some 51 entries and many of the entries covered multiple offences. There are many entries for break, enter and steal and other offences of dishonesty. His record included offences for larceny, drug supply and goods in custody.
The applicant is the father of two children. His partner was also a heroin addict and it is apparent that he was dealing and committing crimes to feed both his own drug habit and that of his partner. His two children have now been placed in foster care by DOCS.
The pre-sentence report records that the applicant's childhood was difficult and traumatic, that his parents separated acrimoniously when he was 7 years old, and with his mother and sister he moved into his maternal grandmother's residence. Following parental separation the applicant and his sister were subject to alleged kidnapping from school by both parents and were constantly moved to various locations, thereby inhibiting the possibility of stable and interactive relationship with his peers.
The applicant's mother remarried into another violent domestic relationship and he was subjected by his stepfather to physical and emotional violence for some years. The applicant admitted to a long history of substance abuse with his drug of choice being heroin. He alleged that his most recent offences were directly related to an attempt to help support his ex de facto's drug habit.
On 9 September 2002 the applicant was assaulted in custody and sustained a fractured jaw requiring surgical intervention. The applicant stated that the reason for the assault was because he refused to divert his buprenorphine medication. He also suffers with a chronic medical condition for which he requires monitoring. The report concludes:
"In his formative years [the applicant] showed great promise as a sportsman but lost his potential through illicit drug use which he maintained for 15 years. As [the applicant] commenced on the buprenorphine treatment programme while in custody he may be considering a move towards a change in his life, if so, he would benefit from therapeutic intervention while in custody by participating in a drug and alcohol programme."
The applicant has a supportive relationship with his younger sister; he has limited contact with his mother and no contact with his father.
At the time the applicant committed the subject offence he was on a methadone programme. After carefully examining the materials the judge made these observations:
"[The applicant] has spent a considerable period of time in custody … throughout his life. He has been given the opportunity of various forms of alternative sentences most of which he has not taken advantage of. He has been placed on many bonds with supervision and has not responded well to supervision. He has also not completed periodic detention satisfactorily."
The judge concluded that the applicant's prospects of rehabilitation were
"… relatively poor given the long and sad history. However the present programme in which he is involved shows some prospects of success … [in light of that] … [h]is prospects of rehabilitation in those circumstances it seems to me are good, especially if he could refrain from relapsing either into the use of prohibited drugs or into the company of others who use them."
The judge determined that there were special circumstances by virtue of the need for a "slightly longer than normal period of supervision". The judge had noted that the applicant on release would probably go to the Taree area, where it seems that he would be able to obtain work and that as he was keen to have his children return to his custody he would have a strong motive for following a law-abiding life.
The judge considered the position in relation to Mr Elsamad. She observed:
"Issues of strict parity do not arise. Mr Elsamad pleaded guilty. He was also being sentenced for other substantive offences and at the same time had more serious offences taken into account on a Form 1. He has a roughly similar criminal record to this prisoner, perhaps not quite so long, but Mr Elsamad was a younger man. He was sentenced effectively to an overall term of imprisonment of 2½ years but it was in circumstances where he was also sentenced concurrently to other terms of imprisonment for other offences. Whilst strict parity does not arise nonetheless I take into account the quantum of sentence imposed I also note that the sentence by definition must have had factored into it a discount for the plea of guilty."
Apart from some driving offences in 1987 of no consequence, Mr Elsamad commenced his criminal career in about 1996 with being an accessory after the fact to attempted robbery. Thereafter he committed many offences which include break, enter and steal, driving offences, stealing, drug offences, assaulting police, and sundry other offences. He has received fines, bonds and prison sentences. It is a record that does not entitle him to leniency. Judge Milson, in the Drug Court on 8 July 2002 sentenced Elsamad for three offences on indictment, taking into account a further 7 offences on a Form 1. At the time of the subject offence Elsamad was serving a suspended sentence.
Elsamad was continuously in custody from 12 January 2002 until 8 July 2002. In respect of an earlier partially suspended sentenced passed on 9 October 2001 for breaking, entering and stealing Judge Milson directed that there was to be a non-parole period from 12 January 2002 until 8 July 2002 and that for the balance of the period Elsamad was to be released on parole.
As to the offence on 25 December 2001, Judge Milson noted the aggravating feature of the presence of another person and that he was taking into account the offences of larceny of a pushbike, malicious damage of a window, removing cash from an ATM by placing a diversionary container over the place where the money would have come out, possession of housebreaking implements (a backpack with knives, screwdrivers and things such as that), break, entering and stealing from premises at Ashfield and having in his custody property suspected of being stolen and also pieces cut from a recycling bin again being property suspected of having been unlawfully obtained.
Judge Milson noted that in addition to these offences he was sentencing Elsamad for a further offence of break, enter and steal, from premises at Abbotsford which were ransacked. Finally there was included an offence of 26 August 2001 of breaking, entering and stealing. Judge Milson noted that these latter offences were committed prior to Elsamad's release on a bond.
While Judge Milson took into account the offender's plea of guilty he did not take into account many of the subjective features of Elsamad. The judge took the view that it was appropriate to take those matters into account when the sentence was finally imposed. Judge Milson said his sentence was:
"one rather which reflects the seriousness of the crime that he has committed in the context of them having been committed in part while other bonds had been in existence, of the principal offence being aggravated by its circumstances of having somebody else in company but also being a repetition of an offence of breaking, entering and stealing … and he has a past record for it."
Judge Milson concluded that for all of those reasons, for the offence of breaking, entering and stealing on 25 December 2001 and taking into account those matters on the Form 1 the appropriate penalty would have been 2½ years imprisonment. However, as Elsamad had been in custody for 6 months the sentence was reduced to one of 2 years imprisonment.
Sentencing in the Drug Court involves a somewhat different regime, but the sentence imposed by Judge Milson left out of account many of Elsamad's subjective features. Nevertheless the sentence regarded as adequate was one of 2 years 6 months. The matters taken into account on the Form 1 in Elsamad's case were far more serious than those taken into account in the applicant's sentencing.
When final sentencing took place in the Drug Court the sentence imposed could not be more than that initially imposed and suspended. See s.7 & s.12 of the Drug Court Act 1998 and R v McCrea (2001) 114 A Crim R 226.
There were significant differences between the circumstances relating to the sentencing of the applicant and Elsamad. A major difference was the plea of guilty entered on behalf of Elsamad. There was a difference in the ages of the applicant and Elsamad at the time the offence was committed, that is 38 and 31, but that is not significant. Both offenders were bound to be of good behaviour because of the bond the applicant had and the suspended sentence imposed on Elsamad. The applicant's criminal record was worse than that of Elsamad but both records were bad. Both men had previously committed break, enter and steal offences
The sentences imposed on the applicant and Elsamad respectively lack due proportion. See Postligionev The Queen, (1997) 189 CLR 295 at 301 to 302. A difference of 2 years is too great, that is 4 years 6 months and 2 years 6 months. The applicant has a justifiable sense of grievance but his sentence should not be reduced to the same level as that of Elsamad.
This Court was informed that Elsamad died on 14 December 2002 prior to completing his participation in the programme. This is not the case for a comprehensive review of the inter-relationship of sentences imposed by the Drug Court and the District Court. Suffice it to say that what happens in the Drug Court when it deals with a co-offender, needs to be taken into consideration. The weight to be given to what took place in the Drug Court will depend on all the circumstances.
As the applicant has a justifiable sense of grievance it is necessary to consider what sentence should be imposed upon him. The lowest permissible sentence is one of 3 years 9 months. I agree that there are special circumstances and that the applicant is in need of a longer period of supervision. He has a great deal of ground to make up but he does have a strong incentive to rehabilitation. In his affidavit of 26 November 2003 he states that he has remained free from illicit drugs in gaol and undertaken programmes designed to assist him in maintaining his desire to be drug free. Attached to that affidavit are various certificates of achievement. Also attached is a letter from the caseworker of DOCS in respect of the applicant and his children. That letter indicates that his children had visited him in gaol on a number of occasions and that the visits were beneficial for the applicant's son. The caseworker reports that the applicant's family is supportive of his children and that they spend time with his sister's family during school holidays.
The appropriate period on parole of one of 18 months and this leads to a non-parole period of 2 years 3 months.
I propose the following orders.
1.Appeal allowed. Sentence quashed.
2.In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 3 years 9 months commencing 2 March 2002 with a non-parole period of 2 years 3 months expiring on 1 June 2004.
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LAST UPDATED: 15/12/2003