Rainbird v Tasmania
[2016] TASCCA 11
•23 August 2016
[2016] TASCCA 11
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Rainbird v Tasmania [2016] TASCCA 11
PARTIES: RAINBIRD, Jie Lawrence
v
STATE OF TASMANIA
FILE NO: CCA 851/2016
DELIVERED ON: 23 August 2016
DELIVERED AT: Hobart
HEARING DATE: 17 August 2016
JUDGMENT OF: Blow CJ, Estcourt and Brett JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Grounds for interference – Sentence manifestly excessive or inadequate – Aggravated burglary, stealing and receiving – Sentence of 2 years' imprisonment with non-parole period of 14 months.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: Not represented
Respondent: A Shand
Solicitors:
Appellant: Not represented
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASCCA 11
Number of paragraphs: 16
Serial No 11/2016
File No CCA 851/2016
JIE LAWRENCE RAINBIRD v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
ESTCOURT J
BRETT J
23 August 2016
Order of the Court
Appeal dismissed.
Serial No 11/2016
File No CCA 851/2016
JIE LAWRENCE RAINBIRD v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
23 August 2016
For the reasons stated by Estcourt J, I would dismiss the appeal.
File No CCA 851/2016
JIE LAWRENCE RAINBIRD v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
23 August 2016
The appeal
The appellant has appealed against a sentence imposed on him by Tennent J on 16 March 2016.
The appellant pleaded guilty to one count of aggravated burglary contrary to the Criminal Code, s 245(a)(iii), one count of stealing contrary to s 234, and one count of receiving stolen property contrary to s 258. He was sentenced to two years' imprisonment with effect from 28 January 2016 and the learned sentencing judge ordered that he was not to be eligible for parole until he had served 14 months of that term.
The notice of appeal contains one ground only, namely that the sentence was manifestly excessive in all the circumstances of the case.
The facts
The following statement of the facts of the case is taken from the comments on passing sentence of the learned sentencing judge:
"Between 12 and 13 August 2014, you and another male broke into the property at Sandy Bay and stole property valued in excess of $58,000. The occupants of the home were away at the time. Items stolen included a Toshiba desk top computer with key board and mouse, a WII computer game console and attachments, 2 safes, a quantity of personal identity documents, a number of collector's coins and Sydney Olympic pins, a large quantity of jewellery and watches, an Ipad Mini, a Bose mini sound system and ipod, an Olympus digital camera, a King size electric blanket, a gold chain with 2000 Sydney Olympic artist medallion, a pair of Kombl ski gloves and the keys to three vehicles.
On 14 August 2014, the homeowner found one of the stolen ski gloves. Your DNA was found when the inside of the glove was forensically examined.
On 13 December 2014, a red BMW was stolen from outside the same Sandy Bay home, using the keys stolen in the August burglary. On 9 January, 2015, that vehicle was found in a garage at your Glenorchy home. It was in poor condition. The BMW badges had been replaced with Holden badges and false registration plates had been affixed. You were arrested that day and later interviewed.
You told police you could not remember much about the burglary as you had just got over a bad ice addiction but believed you had helped someone with it. You recalled taking stolen property to a shipping container at Gagebrook and selling some of the property for $1000. You had had the BMW for about 5 weeks. You did not steal it but it came to you the night it was stolen.
The Crown asserts you aided and or abetted your associate in the aggravated burglary and stealing, by your presence at the scene when the burglary was occurring, and by transporting and selling the stolen property, and that you received the stolen BMW knowing that it was stolen. You have not named your co-offender and no one else has been charged in relation to the burglary and thefts.
The BMW was written off by its insurer NRMA, and the owner was paid out.
The contents of the burgled house were insured with RACT Insurance. The insurer paid out $58,203.92 on the claim. However, as there were many items that were not individually insured, the owner was out of pocket by an estimated $25,000, in addition to excesses."
The comments on passing sentence
On passing sentence the learned sentencing judge, after summarising the circumstances of the crimes, went on to say:
"You are 27 years old. You have a bad record involving offences of dishonesty. You have 22 convictions for burglary, over 30 convictions for stealing, over 45 convictions for motor vehicle stealing and convictions for aggravated burglary, receiving or possession of stolen property and many other offences. You have served terms of actual imprisonment, you have been given suspended sentences and breached them and you have been the subject of other community based sentences. You were actually on parole when the aggravated burglary and stealing were committed in August 2014.
Your upbringing was disrupted and you began offending at an early age. Your father died when you were 10. You have spent long periods in jail. You have a long–standing drug problem. You were released from jail on parole on 28 October 2013. You moved to live with an aunt and were able to remain drug free. You then began a relationship with a female and moved in with her. The relationship soon fell apart, and while you returned to live with your aunt, you started using drugs again and offending. You have two children, aged 5 years and six months. You were involved in the care of both. As to the younger child, you actually took on the role of full time carer because the mother could not initially cope. However when she resumed care you were not able to see the child and now have no contact.
You now have a new partner who you began to live with before Christmas. She is in full time employment. You were taken back into custody on 28 January for other offending. The mother of your eldest child is happy for shared care arrangements to resume on your release. You have served no time in custody in respect of the matters I am now dealing with.
The burglary may not have been your idea and you may have only been there to help get stolen gear away from the premises. However, you still contributed to an invasion of someone's private home and a significant financial loss. You gained a financial benefit from the burglary. The stolen property has not been recovered. As to the BMW, while you might not have stolen it, you knew it was stolen when you got it and just took it as your own. You took steps to disguise its origins. You were responsible for what was done to it which resulted in its being written off.
Your only excuse appears to be that you were affected by drugs. Your record discloses that attempts have been made in the past to provide help for you in dealing with drug addiction. Clearly those attempts have failed. You cannot continue to use your use of drugs as an excuse for causing so much loss for complete strangers. There must be a sentence which might act as a deterrent. While I appreciate you have young children you obviously gave no priority to your involvement in your eldest child's life when you committed this offending."
Discussion
In Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], Porter J said of the approach of this Court to sentencing appeals of this type:
"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32 In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted]
33 Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. …".
In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, a case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, said at [8]:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539."
The appeal is woefully unmeritorious. By no stretch of the imagination can excess be said to be apparent. Taking into account every possible consideration that could be advanced on the appellant's behalf it could not be said that the sentence imposed by the learned sentencing judge is, by reason of its severity, unreasonable or plainly unjust.
As enumerated by her Honour, the appellant had 22 convictions for burglary, over 30 convictions for stealing, over 45 convictions for motor vehicle stealing, and convictions for aggravated burglary, receiving or possession of stolen property and many other offences. He had served terms of actual imprisonment, he had been given suspended sentences and breached them, and he had been the subject of community-based sentences. It was an aggravating factor that he was on parole when the aggravated burglary and stealing were committed in August 2014; Wright v Tasmania [2010] TASCCA 7, per Tennent J at [34] and Wood J at [54].
The appellant was apparently affected by drugs when he committed these crimes. However, the learned sentencing judge pointed out that attempts had been made in the past to provide help for him in dealing with his drug addiction and those attempts had failed. With respect, her Honour was perfectly correct to observe that the appellant could not continue to use his abuse of illicit drugs as an excuse for causing so much loss to complete strangers.
Her Honour was equally correct, in my respectful opinion, in giving little weight to the fact that the appellant had young children. It simply cannot be said that her Honour failed to give weight to some material consideration, or gave weight to some extraneous or irrelevant matter. She did not adopt an incorrect principle or make a mistake as to the facts. She properly canvassed the issue of the appellant's role in the commission of both crimes.
The appellant is not, of course, to be sentenced for his record (see the judgment of the plurality in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477), but given his appalling collection of prior convictions, including 22 convictions for burglary, over 30 convictions for stealing, over 45 convictions for motor vehicle stealing, and convictions for aggravated burglary, receiving or possession of stolen property, and the fact that the aggravated burglary and stealing were committed whilst the appellant was on parole, was a factor that the learned sentencing judge was entitled to take into account as showing a continuing attitude of disobedience to the law.
Although the learned sentencing judge did not specifically mention it, the sentence, in my view, adequately reflects the utilitarian benefit of the appellant's plea of guilty, and reflects a discount for that plea on what would otherwise have been an appropriate sentence. Without such a reduction that appropriate sentence would, in my view, have been have been longer, either as to the head sentence or the non-parole period, or both.
Disposition
I would dismiss the appeal.
File No CCA 851/2016
JIE LAWRENCE RAINBIRD v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
23 August 2016
I have had the benefit of reading draft reasons for judgment prepared by Estcourt J. I agree with those reasons. I would dismiss the appeal.
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