Regina v Elliott

[2001] NSWCCA 131

CITATION:	Regina v Elliott [2001] NSWCCA 131
FILE NUMBER(S):	CCA 60327/00
HEARING DATE(S):	4 April 2001
JUDGMENT DATE:	4 April 2001
PARTIES :	Regina v Shane William Elliott
JUDGMENT OF:	O'Keefe J at 21; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	21/3011 21/3037
LOWER COURT JUDICIAL OFFICER :	Ford ADCJ

COUNSEL :	(A) C B Craigie (R) P Hock
SOLICITORS:	(A) D J Humphreys (R) S E O'Connor
CATCHWORDS:	Sentencing, overall sentence fixed without fixing the appropriate sentence for each offence
LEGISLATION CITED:	Nil
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 Polden and Mitchell, unreported NSWCCA 13 November 1998
DECISION:	Extend time in which application for leave to appeal may be made; Leave to appeal granted; Appeals on the break enter and steal counts allowed. Sentences quashed; In lieu of sentences imposed on the break enter and steal counts ; (1) Count 1 - Fixed term of 2 years 6 months from 6 July 1999 and ending 5 January 2002 (2) Counts 2-8 (except last count) 3 years from 6 July 1999 with non-parole period of 2 years from 6 July 1999 ending 5 July 2001 (3) Count 9 - 4 years cumulative on sentence in count 1 from 6 January 2002 with non-parole period of 1 year 6 months from that day ending on 5 July 2003 - Appeal against sentence for taking and driving conveyance without consent dismissed it being noted that it is being served concurrently with the sentence on count 1;

IN THE COURT OF
CRIMINAL APPEAL

060327/00

O'KEEFE J

SMART AJ

Wednesday 4 April 2001

REGINA v SHANE WILLIAM ELLIOTT
JUDGMENT



1   SMART AJ: Shane William Elliott seeks leave to appeal against the severity of concurrent sentences comprising a minimum term of five years imprisonment and an additional term of three years imposed in respect of each of nine offences of breaking, entering and stealing. The judge took into account on the first count two further offences, namely, one of stealing from a dwelling and one of larceny. There was a concurrent fixed term of imprisonment for eighteen months for taking and driving a conveyance without consent.

2   Between 17 November 1998 and 4 July 1999 the appellant broke into and entered nine private homes in the Campbelltown area and nearby. A considerable amount of property was stolen. The value of the individual items or cash taken ranged from about $180 to $13,500 with a number of homes having items or cash of a value of $3,000 to $4,500 stolen. The total value of the items and cash taken amounted to $31,815 of which $28,135 has not been recovered.

3   At the time of the offences the applicant was at conditional liberty subject to a suspended sentence for the same type of offence. The applicant was born on 4 May 1971 and was thus aged twenty-two and then twenty-three at the time of the offences. His record includes dishonesty offences, drug offences and being carried in a conveyance without the consent of the owner. The record contains fourteen offences of break, enter and steal. In 1996 he was sentenced to six months imprisonment from 3 April 1996. In June 1997 he was sentenced to a minimum term of nine months imprisonment with an additional term of three months. In October 1997 he was sentenced to a minimum term of imprisonment of fifteen months with an additional term of five months. On 15 March 1999 he was sentenced for the offences of goods in custody, two counts of break, enter and steal and being carried in a conveyance without the consent of the owner. On the last mentioned charges he received fifteen months imprisonment suspended on entry into a Drug Court Programme. Conditions were imposed. These included entering Odyssey House for treatment of his drug condition.

4   The applicant went to Odyssey House but he stayed there for but a short period. He could not tolerate the structure there. He objected to having to report the minor and major transgressions of others.

5   He appeared for further sentencing. The applicant was sentenced to imprisonment comprising a minimum term of eleven months and an additional term of three months fourteen days. These concurrent sentences were to date from 6 July 1999. They have become subsumed in the sentences imposed by the judge which also dated from 6 July 1999. This cannot be overlooked.

6   The applicant stated that he has had a heroin problem for eight years. At the time of the offences he was using about $700 worth of heroin per day. He needed money to pay for his habit.

7   While in Goulburn Gaol the applicant had encountered difficulty, with other prisoners standing over him. The gaol authorities had placed him on protection. He understood that he would stay there during his sentence. That is a harsher form of imprisonment.

8   The applicant's parents separated when he was quite young and there have been difficulties in the family. The applicant's heroin addiction has contributed to these difficulties. His mother has two sons under ten years of age and will not allow the applicant to reside with her while his heroin habit remains unresolved.

9   While the judge recorded that the applicant had pleaded guilty he does not indicate that he had given him a discount for this. It seems that the plea was entered at an early stage, the proceedings being dealt with by way of committal for sentence from the Local Court.

10   The judge appears to have attached some weight to the applicant having been given opportunities to embark upon rehabilitation but not persisting. However, it was the frequency of the offences and the extent of the property taken that formed the basis of the sentence. While the judge recognised there was still a possibility of rehabilitation, any assessment in that regard has to be guarded. The three year non-parole period allows for supervised conduct upon release when there is always a danger of relapse.

11   The Crown accepted that the judge had adopted the former approach to sentencing of fixing one sentence covering the whole of the criminality and had not applied Pearce v The Queen (1998) 194 CLR 610 and the principle at 624, namely:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well, of course, as questions of totality."
12   The Crown contended that despite this the objective gravity of the applicant's criminal conduct was such that the overall sentence was appropriate even though its structure was not.

13   The applicant correctly accepted that there were three aggravating factors:


(a) The applicant was at conditional liberty during the currency of the suspended sentence.

(b) His prior record included some like offences. (It seems there were about fourteen of them which tends to demonstrate a continuing attitude of disobedience to the law).

(c) There were multiple counts and matters taken into account.




14   The Crown also points to the value of the property stolen and that $28,135 was still outstanding. It reminded the Court that the maximum penalty for the offence of break, enter and steal was fourteen years.

15   The applicant advanced two principal arguments. First, the judge did not give or appear to give the applicant any credit for his early plea of guilty. It had considerable utilitarian value. Trials would have taken some considerable time and involved a large number of witnesses. Counsel also relied on some contrition but it is difficult to attach weight to that when there are repeat offences.

16   Secondly, the statistics provided by the Judicial Commission and the judgment of Simpson J in Polden and Mitchell, unreported NSWCCA 13 November 1998, show that the sentence imposed on any one of the break, enter and steal offences is out of range. The statistics now available appear to be a little fuller than previously. They cover the period December 1994 to March 2000. Those dealing with full terms, multiple counts with Form 1 matters and a plea of guilty show that there were seven cases where there was a six year term, two cases where there was a seven year term and one where there was an eight year term. There was one of a ten year term and one of a twelve year term. There were two instances of minimum/fixed terms imposed in the present case of four and a half years and two instances of minimum terms of five years. Both the full term and the minimum/fixed terms imposed in the present case were at the top of the range, that is, in about the top four per cent of sentences measured by their length. The facts did not warrant sentences of that order.

17   In selecting the sentences which follow I have given credit for the early pleas of guilty. I have also borne in mind the principle of totality. The first offence of break, enter and steal (count 1) occurred in November 1998 and involves taking other offences into account. Each of the offences involve breaking into a different home on a different occasion and was a separate offence. The last count of break, enter and steal involved a theft of property of much larger value. The sentence for that offence should be cumulative.

18   Count 1 (break, enter and steal and taking into account the offences of stealing from a dwelling house and larceny) requires that a minimum period of two years, six months be spent in prison. Because there will be an accumulation of sentences there should be a fixed term of imprisonment of two years six months. The other counts of break, enter and steal, except for the last count, warrant a sentence on each count of three years with a non-parole period of two years to be served concurrently with the sentence on count 1. The last count of break, enter and steal was a more serious offence and warrants a cumulative sentence of four years. There should be a non-parole period of one year six months. This will allow for a period of two and a half years on parole. That takes account of the special circumstances. It allows for the accumulation of the sentences and the need for an extended period of support and supervision for rehabilitation after release.

19   My intention is that there should be a total head sentence amounting to six years six months with a non-parole period of four years.

20   I propose the following orders:

(a) Leave to extend the time within which the application for leave to appeal may be made.

(b) Leave to appeal granted.

(c) Appeals on the break, enter and steal counts allowed. Sentences quashed.

(d) In lieu of the sentences imposed on the break, enter and steal counts, Shane William Elliott is sentenced as follows:

(i) On count 1 (the Minto property, November 1998) and taking into account the offences of steal from a dwelling and larceny, to imprisonment for a fixed term of two years six months commencing on 6 July 1999 and ending on 5 January 2002.

(ii) On the other counts of break, enter and steal (counts 2 to 8 inclusive) except the last count to imprisonment for three years starting on 6 July 1999 with a non-parole period of two years starting on that day and ending on 5 July 2001.

(iii) On the last count of break, enter and steal goods to the value of $13,500 in July 1999, (count 9), to imprisonment for four years cumulative on the sentence in count 1 to start on 6 January 2002 with a non-parole period of one year six months starting that day and ending on 5 July 2003.

(e) Appeal against sentence for taking and driving a conveyance without consent dismissed; it being noted that it is being served concurrently with the sentence on count 1.


21   O'KEEFE J: I agree. The orders of the Court will be as proposed by Smart AJ.

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