Regina v Anderson

[2004] NSWCCA 39

CITATION:	Regina v Anderson [2004] NSWCCA 39
HEARING DATE(S):	6 February 2004
JUDGMENT DATE:	6 February 2004
JUDGMENT OF:	Dunford J at 1; Greg James J at 29
DECISION:	Leave to appeal granted, appeal upheld, head sentence confirmed, non parole period varied.
CATCHWORDS:	Criminal Law - Sentencing - aggravated break, enter and steal in company - offence committed whilst on parole - motive need, not greed - assistance to authorities in respect of murder of sister - special circumstances.
LEGISLATION CITED:	Crimes Act 1900 s 112(2) Crimes (Sentencing Procedure) Act 1999 s 23
PARTIES :	Regina v Robert Wallace Anderson
FILE NUMBER(S):	CCA 60392/03
COUNSEL:	A Francis (Crown) D C Frearson (Appellant)
SOLICITORS:	S E O'Connor (Crown) Legal Aid Commission (Appellant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/61/0092
LOWER COURT JUDICIAL OFFICER :	Urquhart DCJ

- 1 -

60392/03

DUNFORD J
GREG JAMES J

FRIDAY 6 FEBRUARY 2004

REGINA v ROBERT WALLACE ANDERSON

Judgment

1 DUNFORD J: This is an application for leave to appeal against the sentence imposed by his Honour Judge Urquhart in the District Court at Coonamble on 28 March 2003 following the applicant's plea of guilty to a charge of aggravated break, enter and steal in company, contrary to s 112 (2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment.

2 His Honour imposed a head sentence of 3 years and a non parole period of 18 months, the sentence to commence on 27 March 2003 being the date on which he was taken into custody.

3 His Honour summarised the facts as following:

“The offence was committed at a property known as Hulicon on Narawa Road at Coonabarabran. On that property, on 28 October 2001, there was a caravan, an Adco shed, some shipping containers, some vehicles, a bulldozer and some other machinery. The property was about five hundred acres, some cleared and some bushland. It appears clear to me from the evidence that there was a rumour, if that be the right word, that the person whose property it was had on that property a substantial amount of money. It was for the purpose of finding and stealing that money that the prisoner and the co-offender (his brother) attended the property at about 10.30 am on 28 October 2001. They travelled part of the way in a motor vehicle being driven by the prisoner's wife.
Prior to them setting out on that criminal enterprise they discussed what they were each about to do. They agreed they would go there, search for the money and take it away with them. That particular time of that particular day was chosen because it was thought by the prisoner no-one that was upon the property. When the prisoner and the co-offender reached the property they searched within the Adco shed, after breaking the seal to it and forcing entry. The prisoner thought that the money would be about $20,000. His co-offender thought it could be anything from $1000 to $100,000. Although there was a variety of items of property in the shed neither the prisoner nor his co-offender came upon any money. Items that were within the shed were then removed from the shed and they included a large television, some food stuffs a coin collection, numerous parts of an aeroplane, a camera and other miscellaneous items. That which they had removed, they took onto an adjoining property and hid it there. They then left, walked to the Newell highway and were there collected from by the prisoner's wife who was returning from a shopping trip.”

4 The evidence further disclosed that the applicant later returned to the property with his co-offender and his son in his four-wheel drive with trailer in possession of bolt, wire cutters and gloves intending to remove such of the items which they had stolen as they considered might be useful for sale or use, and to further search for the money. When they returned the applicant was confronted by police and arrested whereupon he made full admissions as to his involvement in the offence and continued those admissions in a subsequently recorded interview with police.

5 It later turned out that there was in fact $35,000 on the property. The applicant and his co-offender did not find it and the applicant was not charged with attempting to steal that money.

6 The applicant was born on 29 March 1965 and, accordingly, was aged 38 at the time of the offence and 39 at the time of sentence. He was raised in the Condobolin and Hillston areas, the eldest of five children of a station-hand and his wife. His parents separated when he was 18, but the separation was described as amicable, and his family life was supportive and he was not subject to any form of abuse.

7 He left school aged 14, in year 7, unable to read or write and with poor arithmetical skills. Some years ago he attempted a literacy course at the local college of TAFE, but was advised that he was dyslexic and this continued to cause problems.

8 Since leaving school he has been exclusively involved in farm work and prior to sentence was running his own property of about 150 acres and, as I understand it, leasing another one of 200 acres where he ran cattle. He was also doing farmhand work for others on nearby properties up to three days a week. He has been in a stable relationship with his partner for some 18 years and they married a few years ago. There were four children of the union aged 17 to 9.

9 He has a prior criminal record including a previous offence of break, enter and steal and some firearm offences in 1985 and a number of stealing offences and one of assault in 1989.

10 More seriously, 26 August 1999 at the Dubbo District Court he was convicted of cultivating a prohibited drug and two counts of supply a prohibited drug and sentenced to imprisonment for 18 months from 17 May 1999 until 16 November 2000 with an additional term of 18 months, subject to supervision. Accordingly, he was on parole for the cultivation offence at the time of the commission of this offence.

11 The evidence before his Honour was that on his release he and his wife had increased debts due to his incarceration, a motor vehicle accident which occasioned the necessity for repairs to their vehicle and the drought, and because of his imprisonment he tended to be shunned and ostracized by local people; all that making it more difficult for him to obtain outside work. At the time of the offence his debts amounted to $40,000.

12 His Honour made an express finding that the offence was motivated by need and not by greed. He also found he had suffered a degree of depression following his release on parole. The plea of guilty was entered at an early stage, having both utilitarian value and, together with the admissions made in the course of the record of interview, it also demonstrated the sincerity of his contrition and remorse.

13 His Honour found there was a degree of planning though it was not elaborate, but the return to the scene with the bolt and wire cutters and gloves was an aggravating factor. In my opinion, involving his son in the return visit was a further aggravating feature. His Honour gave less weight to general deterrence than would otherwise be the case on account of what he described "the developmental impairment" referred to by Doctor Carne, and he found special circumstances justifying a reduction in the standard non-parole period.

14 One matter that has figured prominently in the applicant's submissions relates to his assistance to authorities in relation to the death of his sister. In March 2002 the applicant's sister was murdered by her defacto husband of many years standing following domestic disputes, her attempts to leave him, and family negotiation relating thereto in respect of which the applicant had been involved. He provided a statement to police which was exhibit 1 before the learned sentencing judge, and in relation to the applicant's assistance his Honour stated:

“The prisoner has made a statement to police in respect of that and will be called to give evidence at the murder trial which is listed to take place in the Supreme Court at Dubbo in May this year. The prisoner will be a Crown witness in that.”

15 His Honour then went on to refer to the fact that as a consequence of his sister's death the applicant and his wife assumed the care of his sister's five children aged from 5 to 14 and noted that the applicant's assistance as a Crown witness in that murder trial would result in him serving his sentence in protective custody.

16 It has been submitted on behalf of the applicant that, whilst his Honour had regard to the issue of “onerous custody” as a result of the applicant’s assistance, he did not as required by s 23 of the Crimes (Sentencing Procedure) Act 1999 have regard to the usefulness of the offender’s assistance, or the truthfulness, completeness and reliability of any information or evidence provided by the offender, or the likelihood that the offender will commit any further offences if released; and it was submitted that the absence of express reference to such matters in the Remarks on Sentence or the assessment of the discount given for such assistance, his Honour did not have sufficient regard to such assistance.

17 The murder of his sister and his involvement in its aftermath, the investigation of the offence and the trial of the killer must have had a serious, devastating effect on the applicant and contributed to his depressive state of mind in the months leading up to the sentencing proceedings. In addition to all of this, he and his wife took into his home the sister’s five children which would have added to the emotional and financial burdens to which they were already subject.

18 Section 23 provides in summary that a court may impose a lesser sentence than otherwise on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist the law enforcement authorities in the prevention, detection, investigation of or proceedings relating to the offence concerned or any other offence, and sets out a number of specific matters to be taken into account.

19 Generally the section applies to accomplices and persons engaged in criminal activity who are able to give police information about offences because they have been accomplices or engaged in other criminal activity, although the section is not so limited; and it is generally accomplices who give evidence against their co offenders who receive substantial discounts such assistance.

20 This was not such a case. It involved the brutal murder of his sister by her husband and, as the deceased’s brother, one would expect that he would be only too happy to assist police in bringing the killer to justice and would not require any incentive or encouragement to do so.

21 We have the statement by the accused that he had made to police which was put before his Honour and, although I have some reservations as to whether it is strictly admissible as fresh evidence, the learned Crown Prosecutor has consented to the admission before us of evidence from the investigating police as to the usefulness of such assistance. That material discloses that the applicant supplied police with integral knowledge of the sister and brother-in-law’s relationship along with his knowledge of their movements in the days and weeks leading up to the deceased’s death.

22 He gave evidence, both at committal and at the trial, and such evidence was crucial in the case against the then accused. The police found the Anderson family to be very co-operative and hard working people who rallied around the children for support in the most trying of times, and noted they were still deeply affected by the death of the applicant’s sister, although they did go on to say the evidence supplied was in no way out of the ordinary for someone who has lost his sister as a result of a murder.

23 As I say, his Honour did take into account the fact that as a Crown witness in a murder trial, he expected him to serve his sentence on protection but having regard to the fact that it was the murder of his sister, this is not a case where, in my opinion, a substantial or substantial discount was called for in this regard.

24 Although the murder and its aftermath could not constitute a mitigating factor in the commission of the offence, it was a matter which his Honour was entitled to take into account in sentencing the applicant, in my view, his Honour paid insufficient attention to it in all the circumstances.

25 I have already referred to the fact that the offence was committed whilst on parole and it was a serious offence. For that reason, I am satisfied that the head sentence imposed by his Honour was well within the range of proper sentencing and discretion.

26 However, his Honour found special circumstances and reduced the non parole period below that specified in the section. Having regard to all the factors to which I have referred, I am of the view that it should have been reduced somewhat further. This will result, of course, in a longer period of parole under supervision and having regard to the comments of his Probation Officer in his report dated 25 March 2003, I am satisfied that this would be beneficial to the applicant in facilitating his rehabilitation, and thus ultimately beneficial to the community.

27 I, therefore, propose that leave to appeal be granted, the appeal be upheld, the head sentence confirmed, the non parole period quashed and, in lieu thereof, a non parole period of twelve months be specified commencing on 27 March 2003 and concluding on 26 March 2004.

28 I further propose an order that the prisoner be released on parole on that date subject to the conditions imposed by the regulations and the further condition that he place himself under the supervision of the Probation and Parole Service and obey all reasonable directions of such service.

29 GREG JAMES J: I agree. I would add that when this offender came forward for sentence, the circumstances were most unusual if not unique. Not only had he suffered the family tragedy, to which the presiding judge had referred, not only had he been subject to the stresses to which the presiding judge and the trial judge referred, but in addition, even though he had breached his parole, the parole officer had said of him:

“As outlined in the psychiatric report Mr Anderson appears to have some intellectual deficit and clinical depression. These factors coupled with the frustration Mr Anderson described over his inability to find post release employment, repay debts, be accepted by the local community, the death of his sister and the subsequent care of her five children appear to have been instrumental in his offending behaviour.
As mentioned above Mr Anderson has a strong work ethic and inquiries indicate that he is a devoted family man. Whilst any supervision with this Service would focus on stabilising his mental health, it is the opinion of this Service that much of Mr Anderson’s anxiety may well diminish following these court proceedings and therefore intervention by this Service would be minimal and mainly consist of a monitoring role.
Given his work ethic and personal circumstances a community service order may well provide the offender with the opportunity to provide for his family and stabilise his mental health, whilst repaying his debt to the community”.

30 The psychiatric report, to which the parole officer had referred, had been attached to the probation and parole report, and had apparently been obtained following the applicant’s solicitor and probation officer becoming aware of indicators of clinical depression in him prior to sentence.

31 The probation officer also recommended the supervision of the Service because of the applicant’s mental condition.

32 The psychiatric report of Dr Carne not only adverts to the various matters referred to by the trial judge in his remarks on sentence but also refers at its conclusion to the impact of custody in his special circumstances having had to take on board the children of the deceased’s sister. That report says:-

“If Mr. Anderson were to serve a custodial term the following adverse impacts are likely:-
(a) Worsening depression and risk of suicide.
(b) The welfare of his children, (his own four children and his sister’s give children) would be put in jeopardy. It is likely that they would lose their property and would have to move.
(c) His sister’s children are likely to respond poorly to this additional loss so soon after losing their mother and losing contact with their father.
In my opinion, Mr. Anderson’s professions of remorse are genuine. He is unlikely to offend any further.
If he were to be sentenced to a period of community service, he would be able to fulfil these obligations and still keep his family together.

I would encourage the court to consider a form of non-custodial disposition.”

33 Not withstanding these expressions of opinion, it was plainly open to the trial judge to impose a period of actual custody, having regard to the nature of the offence and the fact it was committed on parole. In my view, the necessity for imposing some period of custody must be upheld. But I share the view of the presiding judge that in all these circumstances the period that was imposed exceeded that which was necessary in the circumstances of the case.

34 It is in addition to those reasons given by Dunford J that the orders should be as made.

35 DUNFORD J: The orders of the court will be as I have indicated.

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Last Modified: 03/08/2004