Regina v Humphries

[2005] NSWCCA 305

CITATION:	REGINA v. HUMPHRIES [2005] NSWCCA 305
HEARING DATE(S):	Tuesday 23 August 2005
JUDGMENT DATE:	6 September 2005
JUDGMENT OF:	Sully J at 1; Hidden J at 2; Hall J at 3
DECISION:	Leave to appeal granted; appeal dismissed

CATCHWORDS:	Criminal law - disparity of sentences - whether less severe sentence warranted - justifiable sense of grievance - applicant received the same sentence as his brother - no basis for the claimed disparity - the facts did not permit a basis for distinguishing between the sentences - age alone was not a sufficient basis in these circumstances for distinguishing between the sentences
LEGISLATION CITED:	Crimes Act 1900 Pawnbrokers & Second-hand Dealers Act 1996 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Bavadra (2000) 115 A. Crim .R. 152 Vougdis (1989) 41 A. Crim .R. 125 Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 White (1981) 28 SASR 9 Murrell (1985) 4 FCR 168 Morgan (1993) 70 A. Crim .R. 368 Lowe (1984) 154 CLR 606 Postiglione (1997) 189 CLR 295 Doggett (CCA, unreported 24 March 1997)
PARTIES:	REGINA v. HUMPHRIES, Joshua
FILE NUMBER(S):	CCA No. 2005/770
COUNSEL:	Crown: J. Dwyer App: H. Dhanji
SOLICITORS:	Crown: S. Kavanagh App: S.E. O'Connor

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0222
LOWER COURT JUDICIAL OFFICER:	Coolahan, DCJ.

No. 2005/770

SULLY, J.
HIDDEN, J.
HALL, J.

TUESDAY 6 SEPTEMBER 2005

REGINA v. JOSHUA LUKE HUMPHRIES

Judgment

1 SULLY, J: I agree with Hall, J.

2 HIDDEN, J: I agree with Hall, J.

3 HALL, J: The applicant seeks leave to appeal in respect of a sentence imposed upon him by his Honour Judge Coolahan in the Newcastle District Court on 25 November 2004 after he had pleaded guilty to three counts of break, enter and steal contrary to s.112(1) of the Crimes Act, 1900 (NSW) on a joint indictment with a co-offender, his brother, Adam Humphries.

4 On that date, the applicant requested the District Court to take into account, in dealing with him for those three offences, a further seven offences on a Form 1. The additional offences comprised a further six counts of break, enter and steal committed between 16 July 2003 and 30 September 2003, and one count of making a false statement contrary to the Pawnbrokers & Second Hand Dealers Act 1996 on 10 September 2003.

Factual background

5 The applicant is presently aged 22 years (date of birth 12 April 1983). He left school at age 16 years, in Year 9 and worked for approximately two years in an electro-plating firm and then later as a roof tiler before joining his brother at Swan Bay.

6 On 5 November 2004, the applicant gave evidence following the conclusion of evidence given by his brother. On that occasion he told the court that he had left Sydney to come to Newcastle in 1996. His brother followed him at some point in the late 1990’s and joined him in Swan Bay. His brother is 10 years older than himself (date of birth 16 August 1973).

The sentences imposed

7 On 25 November 2005, Coolahan, DCJ. sentenced the applicant to a total effective term of imprisonment of 3 years with a non-parole period of 18 months made up as follows:-

(a) Count 2: break, enter and steal: a fixed term of imprisonment for 6 months commencing on 5 November 2004 and expiring on 4 May 2005.

(b) Count 3: break, enter and steal: a fixed term of imprisonment for 9 months commencing on 5 February 2005 and expiring on 4 November 2005;

(c) Count 1 (taking into account the 6 offences of break, enter and steal and one offence of giving false information to a pawnbroker): imprisonment for 2 years and 6 months commencing on 5 May 2005 and expiring on 4 November 2007, with a non-parole period of 12 months commencing on 5 May 2005 and expiring on 4 May 2006.

8 The maximum penalty for an offence against s.112(1) is imprisonment for 14 years. The offence of making a false statement contrary to s.24 of the Pawnbrokers & Second Hand Dealers Act 1996 is a fine of $5,500.

9 The sentencing judge allowed 25% for the early pleas and took into account the applicant’s co-operation with police. A finding of special circumstances was made which resulted in a variation to the statutory ratio reducing by 6 months the non-parole period on the aggregate sentence of three years.

The circumstances of the offences

10 The applicant takes no issue with the facts as found by the sentencing judge. Before dealing with the grounds of appeal, it is necessary to say something about the circumstances surrounding the three offences of break, enter and steal.

Count 1 on the indictment

11 Between 7 November 2003 and 9 November 2003, the applicant and his brother broke into workshop premises at Thornton known as Thornton Welding Services. When inside the premises, they removed a large quantity of steel plating from the outside of the workshop, used bolt cutters to cut bolts to gain further access to the factory area and, in due course, removed a large amount of property consisting of welders and associated tools to the value of $23,059. All property, other than the two welders, was recovered and compensation had been sought by Thornton Welding Services for the sum of $18,700 for the unrecovered welders.

Count 2 on the indictment

12 Between 25 July 2003 and 28 July 2003, the applicant and his brother entered a building site at Corlette. A hole was cut into the boundary fence, a padlock cut and entry was gained to a building site by a gateway. A number of tools, consisting mainly of plumbing tools, were removed by the applicant and his brother from shipping containers.

Count 3 on the indictment

13 Between 16 July 2003 and 17 July 2003, the front door of premises under construction was jemmied open with a screwdriver. The applicant and his brother entered and removed a number of items, a good deal of which was, in due course, recovered.

The Form 1 offences

14 The objective seriousness of the offences which the sentencing judge was required to take into account included the additional charges listed on the Form 1. Section 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) required the sentencing judge to take into account such offences. In doing so, he was required to impose a sentence for the totality of the criminality before the Court, reflected in both the three offences with which the applicant was to be sentenced and the seven offences on the Form 1 to be taken into account Six of the seven Form 1 matters are said to have involved a value of greater than $15,000.. This did not mean that the matters were merely to be noted in passing: Regina v. Bavadra (2000) 115 A. Crim. R. 152. Rather, it meant that the sentence to be passed by the sentencing judge had to be greater than that which would have been appropriate for the three principal offences standing alone: Vougdis v. The Queen (1989) 41 A. Crim. R. 125. The focus of the Court, of course, remains upon sentencing for the primary offences.

15 In Attorney General’s Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146 at 155, Spigelman, CJ. observed that a number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial (see, eg., Regina v. White (1981) 28 SASR 9 at 13; Murrell v. The Queen (1985) 4 FCR 168 at 179, per Blackburn, J.; Regina v. Vougdis (1989) 41 A. Crim. R. 125 at 128-129; Regina v. Morgan (1993) 70 A. Crim. R. 368 at 371-372.

16 The seven offences listed on the Form 1 were as follows:-

Date Alleged offence

16.7.03 to Break and enter dwelling house of Masterton

17.7.03 Homes at Thornton: property allegedly stolen:

kitchen taps, bathroom mirrors, bathroom fittings

and a screen door of Masterton Homes

16.7.03 to Break, enter and steal Dwelling house of
17.7.03 Masterton Homes at Thornton: property
allegedly stolen: a solid timber front door the
property of Masterton Homes

16.7.03 to Break, enter and steal dwelling house at

17.7.03 Thornton: property allegedly stolen: kitchen

cupboard doors and painting equipment the

property of Masterton Homes

16.7.03 to Break, enter and steal dwelling house of

17.7.03 Masterton Homes at Thornton: property

allegedly stolen: solid timber entrance

door, the property of Masteron Homes

16.7.03 to Break, enter and steal dwelling house of

17.7.03 AV Jennings at Medowie: property

allegedly stolen: mirrored glass wardrobe

doors x 4, the property of AV Jennings

16.7.03 to Break, enter and steal dwelling house of

17.7.03 AV Jennings at Medowie: property allegedly

stolen: mirrored glass wardrobe doors, the

property of AV Jennings

10.9.03 Make a statement the he knew was false

in purported compliance with a requirement

under the Pawnbrokers & Second-hand

Dealers Act 1996

Remarks on sentence

17 In his remarks on sentence, the sentencing judge’s observations included the following:-

• The offences were serious. Property of significant value was taken, some of which remained either damaged or unrecovered.

• Whilst some offences could be described as opportunistic, in respect of others, the applicant and his brother were clearly “on the lookout for items to steal” .

• It was obvious that full time custodial sentences had to be imposed, given the seriousness of the offences.

18 In relation to subjective circumstances, the sentencing judge reached conclusions which were favourable to the applicant in terms of the following matters:-

(a) the expressions of remorse by the applicant;

(b) the applicant’s co-operation with police;

(c) the applicant’s age and his minor criminal history;

(d) the prospects of rehabilitation were considered to be good.

19 The sentencing judge’s approach was to make a slight variation from the statutory ratio by the making of a finding of special circumstances and to some degree to partially accumulate the sentences.

The grounds of appeal

Ground 1: the learned sentencing judge erred by taking into account the fact that the offences were committed in company as an aggravating feature

20 At the hearing of the application, Mr. Dhanji, of counsel for the applicant, no longer pressed this ground. Given the provisions of s.6(3) of the Criminal Appeal Act 1912 and the facts of this matter, it is understandable why the ground was no longer pressed.

Ground 2: The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and those imposed upon his co-offender, Adam Humphries

21 The submission on behalf of the applicant is that the sentencing judge erred when he stated:-

“Apart from count 4 on the indictment, I cannot see any basis for differentiating between the sentences of the two offenders.”

22 In relation to the three counts against the applicant, all of which were in common with his co-offender, his brother (with the exception of the commencement dates), identical sentences were passed on both offenders. It is contended on behalf of the applicant that, contrary to the above statement of the sentencing judge, there were, in fact, a number of significant matters which warranted a less severe sentence to be imposed in the case of the applicant. These are identified as:-

• The age of the applicant. He was only 20 at the time of the offences and was accordingly a very young offender, some 10 years younger than his brother, Adam.

• He had no relevant criminal record, whereas his brother had a number of prior offences. His brother had received a sentence of periodic detention for an offence of entering with intent, and a conviction for stealing and convictions for driving whilst disqualified.

• The co-offender had two more additional serious matters on his Form 1, being the offence of stealing a box trailer and an offence of cultivating a prohibited plant.

23 In this latter respect, the submissions on behalf of the applicant acknowledge that the applicant had the additional offence of furnishing false information to a pawnbroker, the maximum penalty of which is stated in paragraph [4] above.

24 It is the age differential which is said to be of particular significance in this matter. The submission is that the difference must be seen in the context of the co-offender being the applicant’s older brother and a person from whom he would ordinarily expect guidance. It is submitted that the applicant’s youth on its own is a matter of significance and that due allowance should have been made, having regard to these factors. Accordingly, so the submission goes, the applicant has a justifiable sense of grievance as a result of receiving the same sentences as those imposed on his older brother. Reliance is placed upon the principles relating to a justifiable sense of grievance based on relevant disparity: Lowe v. The Queen (1984) 154 CLR 606 at 613 per Mason, J. and Regina v. Postiglione (1997) 189 CLR 295 at 301.

25 The Crown relies upon the following matters:-

(a) The fact that the applicant was an adult at the time he committed the offences.

(b) That whilst the co-offender was his brother, there was no evidence by either of them that would show a dependency by the applicant upon his brother for guidance.

(c) The sentencing judge was correct in finding, apart from count 4 on the indictment, that there was no basis for differentiating between the sentences of the two offenders and that it was open to him to assess culpability as he did.

26 There is considerable force to the submission that the applicant, though younger than his brother, was an adult multiple offender in relation to a significant number of serious charges involving break, enter and steal offences and that the criminality in respect of the three charges which were common to each was assessed as being identical. The facts did not permit a basis for distinguishing between them and age alone was not sufficient in the circumstances.

27 The remarks on sentence demonstrate that the sentencing judge had the applicant’s youth well in mind along with other subjective factors all of which were discussed at some length.

28 The reference by the Crown to the decision of this Court in Regina v. Doggett (unreported, 24 March 1997) I consider to the apposite, wherein it was stated:

“What has to be demonstrated by the person complaining on the ground of parity is not that he feels aggrieved, but that a reasonable man looking overall at what has happened would see that his sense of grievance is a justified one.” (p.4)

Conclusion

29 The offences against the applicant were serious offences and I consider that the total effective sentence of 3 years with a non-parole period of 18 months to be appropriate and adequately reflects the subjective circumstances to which the sentencing judge referred in his remarks on sentence. Further, there is no basis for the claimed disparity as asserted in ground two.

30 I accordingly would grant leave to appeal, but dismiss the appeal. The orders I propose are:-

(a) Leave to appeal granted;

(b) The appeal be dismissed.

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