Regina v Douglas

[1999] NSWCCA 345

CITATION:	Regina v Douglas [1999] NSWCCA 345
FILE NUMBER(S):	CCA 60618/98
HEARING DATE(S):	25 October 1999
JUDGMENT DATE:	25 October 1999
PARTIES :	Regina v Dean Douglas
JUDGMENT OF:	Simpson J at 14; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/71/0127
LOWER COURT JUDICIAL OFFICER:	Downs DCJ

COUNSEL:	A: C B Craigie R: L M B Lamprati
SOLICITORS:	A: Central Southern Aboriginal Corporation R: S E O'Connor
CATCHWORDS:	Sentencing; value of assistance to Authorities not indicated; irrelevant matters taken into consideration; matters relied on by judge from his own knowledge not put to offender
DECISION:	Appeal allowed; Sentence reduced

IN THE COURT OF
CRIMINAL APPEAL

60618/98

SIMPSON J
SMART AJ

MONDAY, 25 OCTOBER 1999

REGINA v DEAN DOUGLAS
JUDGMENT

1   SMART AJ: Dean Patrick Douglas seeks leave to appeal against the severity of a sentence comprising a minimum term of 2 years penal servitude and an additional term of 2 years for break and enter a dwelling-house and steal a considerable quantity of property. The judge adopting the facts provided by the Crown, stated them thus:

"On the night of Tuesday, 17 June 1997 and in the early hours of Wednesday, 18 June 1997, the prisoner, Dean Douglas and a friend, Jason Fox, went to the home of another friend, Stephen Greaves, in Leeton. There were a number of other men present at these premises and they were Karl Ingham, Norman Ingham and Douglas Johnson. The group sat about and consumed alcohol. They discussed where they might steal some tools from later that night in order that they might sell them for the purpose of purchasing cannabis. The group left Mr Greaves' premises and when they got to 743 Dundas Street, Leeton, the premises of Phillip and Francis Dunn, they observed that there were not any lights on in the premises. It transpired that they were away on holidays.

Norman Ingham, Jason Fox, Stephen Greaves and Douglas Johnson entered the premises by force. The prisoner and Karl Ingham went to the garage of the premises and they there found a power drill. A short time later Jason Fox came out of the premises with a bottle of scotch whisky that had been stolen from the premises. The prisoner was given the bottle of scotch whisky and he, with Karl Ingham, then walked to his home in Leeton where they commenced to drink the whisky.

A short time later the four other offenders arrived at the prisoner's home and they told the prisoner about what goods had been stolen from Mr and Mrs Dunn's home. The prisoner consented to the goods being stored in his home pending their disposal. The following property was conveyed in a wheelbarrow from the Dunn's home to the prisoners home: A 58 centimetre Panasonic television, a 68 centimetre Sanyo television, a video player, a Pioneer stereo system, a large sets of keys, liquor, torches, compact disks, a hip flask, a pair of binoculars, hair clippers, fire poker, kitchen knives, a set of scissors, a large quantity of Panadene Forte tablets, packets of frozen food, a Safe Guard floor safe which contained four diamond rings, two sapphire rings, one pearl diamond ring, two pearl necklaces, a collection of coins, a gold dress watch, a Longines chain watch, a gold necklace, a battery charger, batteries, socks, ties, two cushions, a shotgun, two rifles and one air rifle with ammunition, a gun belt, a shotgun cleaning kit, a Bowie knife in a leather sheath, butcher's knives, bench grinder, chainsaw, a whipper snipper and an assortment of tools including three power drills and one Tech screw gun.

This property was, with the consent of the prisoner, placed in his garage. The prisoner was present when the safe was forced open and the jewellery and coins that I have already referred to, were taken out. Douglas Johnson stated that he was claiming the jewellery, Jason Fox claimed one of the firearms, together with the smaller TV set, video player and chainsaw.

The prisoner took the larger TV set into his home and he and others commenced to play video games on the television. Norman Ingham, who had claimed the stereo, brought this into the prisoner's lounge room and played some tapes before the group retired to the backyard and drank alcohol.

Douglas Johnson at this stage obtained the air rifle from the garage and the group took turns shooting at a can in the backyard. At about 5.00 or 6.00am on 18 June 1997, with Karl Ingham, the prisoner went to a relative's home in Leeton where he fell asleep. He woke up later in the afternoon and went home. When he got home he saw that the stolen property was still there, with the exception of the small television and the video player. He placed all the items in a corner and then covered them with a blanket. Later on when his de facto wife, Donna Higgins, arrived home, they placed the items in cupboards in his house.

The break-in to the Dunn's premises was noticed on the afternoon of 18 June 1997 by a neighbour and Leeton Police were contacted. When the police attended at the premises they observed that furniture had been broken and that there was mud on the floor. They searched the surrounding area and they located a Medicare card bearing the name of Donna Higgins, that is the prisoner's de facto wife, to whom I have already referred. Upon finding this, they obtained a search warrant and so they went to the prisoner's premises at 70 Toorak Road, Leeton and executed the warrant.

When they did this, they found the 68 centimetre Sanyo television, the pioneer stereo system, the cordless drill, 2 batteries and a charger, a black box containing a coin collection, an assortment of knives, keys, an empty box of air rifle pellets and an assortment of frozen meat packages. The prisoner was arrested, taken to Leeton Police Station, where he was charged. He declined to take part in a record of interview and, as will become apparent later, many of the facts that I have dealt with up to this stage were only made known to the police last Monday, but I will come to that later.

On 1 August 1997 the police attended once again at the prisoner's home and the following items were discovered: The fire poker, hair clippers, bench grinder, wheelbarrow, torch, hip flask, compact disks, a drill, knife, ammunition.

The prisoner was first charged before me last Monday, 7 September 1998 and, as I said, he pleaded guilty. Following his plea he attended Griffith Police Station where he related all the facts that I have already dealt with. On 9 September, yesterday, Jason Fox, Norman Ingham and Stephen Greaves attended Leeton Police Station and in formal records of interview, admitted their involvement in the offence.

Jason Fox directed the police to an irrigation channel near Leeton where a 22 calibre rifle which had been stolen from the Dunn's home was discovered. The firearm was in a destroyed condition due to corrosion. A large amount of the stolen property hasn't been recovered. The value of the property stolen was estimated by the Dunns to be approximately $32,000. The value of the property recovered is estimated to have been approximately $2,500. The large amount of jewellery was valued at approximately $17,000 and three of the four firearms have not been recovered."

2   The applicant was born on 1 July 1971. He has a record commencing in the Children's Court in 1982. From 1982 to 1990 the record contained a mixture of dishonesty offences. From 1993 onwards there was a minor drug offence, some driving offences, one of assault occasioning actual bodily harm and a dishonesty offence. He had received a variety of probation, recognisances, fines and community service. Prior to the present sentence he had not received a custodial sentence. 3   The applicant was born and raised in Ivanhoe, being one of seven children and lived in a tin hut. His parents parted when he was aged ten years. His first offence occurred when he was aged 11. He still has contact with his mother and some of his siblings. He left school in year 9 when he was aged 15 years and has worked mainly as a labourer. There have been periods of unemployment totalling about five of the 12 years. He and his de facto wife have lived together since 1993 and have five young children. 4   In his reasons the judge called upon what he had been told over 25 years of coming to the Griffith district, namely that any person of sound mind and body who lived in the area could remain continuously employed for at least 10 and probably 11 months of every year. He concluded that anyone who did not work from that district was either lazy or had a mental attitude that they did not want to work. The judge said that the reason the applicant was not working was that he was a binge drinker. The applicant maintained he ceased binge drinking following the commission of the offences in March 1997. 5   As at September 1998 the applicant and his partner did not believe that he had an alcohol problem. The judge held that he did and treated that and his drug addiction as special circumstances. In view of the judge's stringent remarks and strong views about the applicant's unemployment, it is a pity that he did not put them to the applicant while he was giving evidence. The applicant may have had an explanation. The judge gave no details of his informants. Given the language of the judge, it is impossible to say that the judge was not influenced by the knowledge which he had gathered in imposing the sentence in this case. This was erroneous. 6   The judge found that the offence was premeditated by a group who were drinking alcohol and took place to obtain monies to purchase cannabis. The group effectively ransacked the home. While the applicant participated in the crime, he does not seem to have been the moving spirit. As to the assistance given by the applicant to the authorities, the judge spoke briefly:

"The prisoner is an Aborigine who has had a deprived background. He ultimately, last Monday, cooperated with the police and identified co-offenders, whereby obviously he has exposed himself to possible reprisals."

7   It is far from clear whether the judge gave the prisoner any discount for the assistance. There is no finding as to the value of the assistance. It had significant value. Three of the co-offenders named in the applicant's statement had subsequently made admissions to the police. The police felt that they now had sufficient material to approach a further two co-offenders. The assistance already given and that to be given by way of giving evidence, warranted a substantial discount. 8   The judge's treatment of the question of assistance to the authorities was in error. He did not make the basic findings. He also erred, as I have indicated, in his treatment of the unemployment point and the weight he attached to it. 9   Accordingly, it falls to this Court to resentence. This was a bad offence, warranting a full-time custodial sentence. As we are resentencing, we are at liberty to take into account what has happened since the imposition of the sentence. Having regard to the gravity of the offence and the subjective features, except the assistance to the authority, the correct starting point for the full term is three years. 10   The material before this Court indicates that three of the co-offenders have entered pleas of guilty to the charge of break, enter and steal with which the applicant also stands charged. Those three co-offenders adhered to their plea at the Griffith District Court on 16 February 1999. There is no further information before this Court, except that the solicitor for the applicant understands that the sentencing process in relation to the three co-offenders has not yet been completed. 11   A charge has also been laid in respect of another co-offender. The position of the other co-offender is not known. The value of the assistance given to date and to be given, warrants a discount of 33 and a third per cent, with 22.5 per cent to be allocated for assistance to date and the balance for assistance to be given. The full term thus becomes 2 years. There are special circumstances. This was the applicant's first time in gaol and he does have a drug and alcohol problem requiring extended supervision. There should be a minimum term of 15 months and an additional term of nine months. 12   In reaching these conclusions I have taken into account also the applicant's affidavit of 21 October 1999, which reveals his good behaviour in gaol and the courses he has attended. He has endeavoured to make good use of his time in gaol. One counsellor described him as very motivated. 13   I propose the following orders:

1. Leave to appeal against sentence granted.
2. Appeal allowed, sentence quashed.
3. In lieu thereof, the applicant is sentenced to a minimum term of 15 months, starting on 10 September 1998 and ending on 9 December 1999, and an additional term of 9 months starting on 10 December 1999.
4. Order that the applicant be released on 9 December 1999 with the conditions to be set by the Parole Authorities.

14   SIMPSON J: I agree. The orders of the Court will be as proposed by Smart AJ.

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