Regina v Levett
[2004] NSWCCA 276
•19 August 2004
CITATION: Regina v Levett [2004] NSWCCA 276 HEARING DATE(S): 16/04/04 JUDGMENT DATE:
19 August 2004JUDGMENT OF: Hidden J at 1; Kirby J at 34 DECISION: Leave granted, appeal allowed - substituted sentence of 6 years, NPP 3 years from 16.12.01. CATCHWORDS: CRIMINAL LAW: - Application for leave to appeal against sentence - variety of offences over period of about a year - young offender - good prospects of rehabilitation - whether effective sentence excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Ponfield & Ors (1999) 48 NSWLR 327PARTIES :
Tony Keith Robert Levett - Applicant
Crown - RespondentFILE NUMBER(S): CCA 60279/03 (2003/3099 CCAP) COUNSEL: T S Corish - Applicant
D M L Woodburne - CrownSOLICITORS: S O'Connor - Applicant
S Kavanagh - Crown
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0185 LOWER COURT
JUDICIAL OFFICER :Cooper DCJ
60279/03 (2003/3099 CCAP)
Thursday 19 August 2004HIDDEN J
KIRBY J
1 HIDDEN J: The applicant, Tony Keith Robert Levett, pleaded guilty in the District Court to a charge of break, enter and steal, two charges of stealing from a dwelling, one charge of larceny, a charge of receiving and a charge of assault occasioning actual bodily harm. He asked that nine further offences of dishonesty be taken into account on a form 1. On the charge of break, enter and steal, taking into account the matters on the form 1, he was sentenced to imprisonment for seven years, with a non-parole period of four years, to date from 17 January 2002. On the other five charges he was sentenced to shorter terms of imprisonment, wholly concurrent with the non-parole period on the first charge, which it is unnecessary to specify. He seeks leave to appeal against sentence.
Facts
2 There is no need to recite the facts of the offences in any detail. They were committed over a period of almost a year, between 7 March 2001 and 28 February 2002, and it is the sequence of events which is of importance. It should be noted, by way of background, that on 17 January 2001 the applicant had been placed on a twelve months bond in a Local Court for offences of common assault and maliciously destroying or damaging property. I shall set out the offences which bring him before this Court in chronological order, specifying those which were on the form 1.
3 On 7 March 2001 the applicant broke into a home at Dover Heights and stole property worth over $9,000, including $100 in cash. Most of that property was not recovered. This was the break, enter and steal offence for which the seven year sentence was imposed.
4 On 16 March 2001 the applicant pawned some electrical equipment, valued at $1,800.00, at a loan office at Bondi Junction. That equipment had been stolen from a home in Bellevue Hill earlier that day. This gave rise to a charge of goods in custody on the form 1.
5 On 7 April 2001 the applicant, in company with two other men, approached a man in Darlinghurst Road near Green Park, threatened him and punched him to the nose and left ear, causing bleeding. The victim ran away and the applicant and his two companions chased him, but they stopped because of the number of people in the vicinity. The victim later identified the applicant, who was still in the general area, to police and he was arrested. At that stage he denied the assault. This was the offence of assault occasioning actual bodily harm.
6 On 14 June 2001 the applicant entered a house at Queens Park through a rear window and stole a number of tin money-boxes containing coins worth almost $1,000.00. Those coins were recovered when he was arrested the same day. This was the first of the offences of stealing from a dwelling.
7 On 16 August 2001 the applicant entered the house of his former foster father at Leura, knowing that he had no permission to do so. He lived there for several days. This gave rise to a charge of enter enclosed lands on the form 1.
8 In the early hours of 31 August 2001 the applicant entered a dormitory occupied by students at Scots College, Bellevue Hill and stole a Walkman belonging to one of the boarders. A little after 7am, when the students were woken by their dormitory master, the applicant was found asleep on the floor with the Walkman in his trousers pocket. This was the second offence of stealing from a dwelling. Upon his arrest he was found to be in possession of a bottle of perfume, which gave rise to another charge of goods in custody on the form 1.
9 The applicant was arrested in respect of the break, enter and steal at Dover Heights on the day of the offence, 7 March 2001, and he was on bail in respect of that offence at the time the other offences were committed. Indeed, while it is not entirely clear from the material before us, it appears that the other offences except the enter enclosed lands at Leura were the subject of separate arrests, giving rise to further grants of bail. In addition, at the time of all these offences he was subject to the Local Court bond to which I have referred, which did not expire until 16 January 2002.
10 On 25 January 2002 the applicant stole a racing bike from the garage of premises at Bondi Junction. This was the offence of larceny. Later that same day he pawned the bike at another loan office in Bondi Junction, signing a pledge certificate to the effect that he was its owner. This gave rise to a charge of making a false statement on the form 1.
11 On 3 February 2002 the applicant obtained possession of a turntable in a black fur case, knowing those items to have been stolen. He pawned them at the Bondi Junction loan office to which I have just referred. On the following day he did the same with some golf clubs and a golf bag. These incidents gave rise to two charges of disposing of stolen property on the form 1. When pawning the golf clubs and bag he again signed a pledge saying that they were his property. This led to a further charge of making a false statement on the form 1.
12 On 20 February 2002 the applicant entered the garage area of apartments in Centennial Park, holding a torch and a screwdriver. He was seen by witnesses to crawl through some wire mesh separating the garages, take a bicycle, open a locked garage door and leave the premises. He ran from the scene when he was confronted by the witnesses. He was arrested later that day, still in possession of the torch and the screwdriver. These events gave rise to charges of stealing in a building and breaking out and possession of housebreaking implements on the form 1.
13 On 28 February 2002 the applicant drove a Commodore motor vehicle which had been stolen from premises at Elizabeth Bay a few days earlier, and which he knew to have been stolen. This was the receiving offence.
14 As I have said, the applicant was arrested on 20 February 2002 after the incident at Centennial Park. From the material before us it appears that he was released on bail yet again the following day, only seven days before the receiving offence of 28 February. He was rearrested on 10 March 2002 and, apart from a period of about a month in the middle of that year, he has remained in custody since. It would appear that that arrest was in respect of the receiving offence, but that he was also interviewed about the other offences of January and February 2002 and admitted his involvement in them. However that may be, it is clear that all the 2002 offences were committed whilst on bail in respect of the offences of the previous year.
15 In respect of the earlier offences the applicant spent short periods in custody prior to his release on bail. As a result, by the time he appeared for sentence he had spent discrete periods in custody relating to the offences totalling one year four months and twenty-nine days. His Honour passed sentence on 16 May 2003, but he backdated the seven year sentence on the major charge to 17 January 2002 so as to give the applicant credit for that period. It seems that his Honour’s intention was to round off the period of pre-sentence custody at one year and five months but, in fact, the sentence was backdated by one year and four months. The Crown prosecutor in this Court acknowledged that, whatever might be the outcome of this application, the applicant should be granted the benefit of that additional month and that his sentence should date from 16 December 2001.
Subjective case
16 The applicant was aged between nineteen and twenty at the time of the offences and is now twenty-three. He had a criminal record, mainly for offences of dishonesty but also comprising drug offences, a few assaults and an armed robbery. Most of these matters were dealt with in Children’s Courts but the later entries are in Local Courts, including the offences for which he was placed on the bond to which I have referred. He had not previously been sentenced to a term of imprisonment.
17 For most of the period of continuous custody prior to sentence, he had been on protection. This was because of concerns for his personal safety, although the reason for those concerns does not emerge from the evidence. For three months of the period of protective custody he was on strict protection. He gave evidence that his protected status minimised his contact with other prisoners, but he did not otherwise explain the effect of that status upon his custodial conditions. He said that whether he would have to remain on protection after sentence would depend upon his placement after classification, which would itself be influenced by the length of the sentence.
18 He had a disturbed background. His parents were violent and abusive and were unable to cope with him and his siblings. At the age of two he was made a ward of the State, and he and one of his sisters spent several years thereafter at an orphanage. At the age of five he went into foster care, his foster father being a prominent and respected Sydney musician. He lived with that family until the age of sixteen.
19 He was educated to school certificate standard. He developed a musical talent as a trumpeter and he completed his last two years of schooling on a music scholarship, as it happens, at Scots College. However, in the last year of his primary education he was diagnosed with attention deficit disorder and, although he undertook a course of medication for that condition, there were disciplinary problems in his earlier years of secondary school. More importantly, he commenced to abuse drugs from the age of twelve, starting with cannabis and moving on to heroin and, at a later stage, amphetamines.
20 Not surprisingly, particularly in the light of his criminal activity, he and his foster family parted company and he had minimal contact with them in the period prior to his arrest. He appears to have had only sporadic employment since leaving school. At the time of his arrest he had been living for about two years with a young woman, who was herself a drug addict.
21 However, by the time he appeared for sentence much had changed. In the preceding period of continuous custody since mid-2002 he had remained drug free. For about three months prior to sentence he had been consulting a prison psychologist on a weekly basis. His girlfriend had entered the drug rehabilitation program at Lyndon House at Canowindra, and he wished to join her there. This course was supported by the psychologist and also by a probation and parole officer, who provided a pre-sentence report. Before his Honour was a letter from that organisation accepting him into the program.
22 In his report to the court the psychologist said of the applicant that he probably had a personality disorder needing long term therapy. He considered him to be intelligent and capable of higher education. He continued:
- A drug rehabilitation program in the community will be a good beginning for Mr Levett. Alongside this Mr Levett needs ongoing therapy. I will recommend psychiatrists to him with whom he can enter therapy. He will be vulnerable to further drug use and the risk of further offending behaviour if he loses support or finds himself alone. He needs to remove himself from the drug milieu of which he has been a part. If he remains motivated to seek help and make changes within himself he has very good prospects for the future.
23 The author of the pre-sentence report had this to say:
- Mr Levett comes from a severely dysfunctional family background and has issues of drug dependency, depression, anxiety and possibly a personality disorder. A residential treatment program will assist him to address some of these issues and his clearly stated wish to enter Lyndon House where his girlfriend is undergoing similar rehabilitation is supported.
He had the support of his girlfriend’s mother and of his foster mother, who provided a short statement to the court in which she concluded:
- Despite what Tony has done to our family, I do still have great faith and belief in him, and I feel that this opportunity for rehabilitation could be a great turning point of his life and a powerful redirection for him.
24 His Honour accepted that the applicant’s pleas of guilty had been entered at the earliest opportunity, and saw those pleas as consistent with the remorse which he had expressed in his evidence. In the course of giving his reasons for finding special circumstances, so as to depart from the usual proportion between head sentence and non-parole period, his Honour said:
- … over the past eleven months, there is evidence, which I accept, that his attitude has changed, so that he is beginning to have an insight into his problems and a desire to take active steps to overcome them, and thus, to avoid falling back into further crime.
- Indeed, I feel that given the chance, there is a reasonable chance that he can rehabilitate himself.
The application
25 Mr Corish, who appeared for the applicant in this Court, argued that the seven year sentence is manifestly excessive, whether viewed in isolation as a sentence for the break, enter and steal offence or globally as a sentence embracing the whole of the applicant’s criminality. He analysed the break, enter and steal offence by reference to the factors considered by Grove J in R v Ponfield & Ors (1999) 48 NSWLR 327, and took us to several decisions of this Court dealing with sentence for that offence in particular cases. Generally, he acknowledged the seriousness of the applicant’s course of criminal conduct, his criminal record and the aggravating features of his having been on a bond and on bail at relevant times, but submitted that the sentence failed to afford adequate recognition to his protected status within the prison system, his pleas of guilty, his age and his powerful subjective case.
26 In structuring the sentences, his Honour referred to “the need to impose separate and specific penalties in relation to each of the charges” and, at the same time, to “comply with principles of totality”, referring to Pearce v The Queen (1998) 194 CLR 610. Nevertheless, I consider the seven year sentence for the break, enter and steal, viewed in isolation, to be manifestly excessive. Of course, in passing that sentence his Honour took into account the nine matters on the form 1, and the criminality of those matters had to be reflected. Even so, as a sentence for the break, enter and steal offence with those other matters taken into account, the seven year term is more than was called for in all the circumstances.
27 However, it must be remembered that the sentences on the other five charges are wholly concurrent with the non-parole period for the break, enter and steal offence and, in my view, this Court should not intervene unless it appears that the seven year term is excessive to mark the criminality of all the fifteen offences. As the matter was developed in oral argument, the parties were content to approach the application in this way.
28 I have not found this case easy to resolve. His Honour faced a challenging sentencing exercise. On the one hand, he had to sentence a man who was not a first offender for a course of criminal conduct, including a significant offence of violence, over a period of about a year, the gravity of that conduct aggravated by the abuse of conditional liberty. Proper weight had to be given to considerations of retribution and deterrence. On the other hand, he was dealing with a young man with a disturbed background, whose criminal behaviour was linked to his drug abuse and who, in an extended period of custody prior to sentence, had resolved to deal with his drug problem and was presented with an opportunity to do so. In other respects he had taken steps towards his rehabilitation and he enjoyed the support of responsible older citizens. The community interest in the reform of a young offender loomed large.
29 In deciding whether this Court should intervene, it should also be noted that on 22 August 2003, after he was sentenced in the District Court, the applicant was sentenced in a Local Court for a series of offences to terms aggregating eighteen months imprisonment, to date from 28 June 2002. These appear to have been old offences in respect of which he had failed to appear at court on earlier occasions or which, for other reasons not disclosed, were not dealt with in a timely fashion. What is significant for present purposes is that all of those sentences also were concurrent with the non-parole period in respect of the break, enter and steal offence and, indeed, they have now expired.
30 That said, I have decided that the effective sentence passed by his Honour failed to give adequate weight to this young applicant’s prospects of rehabilitation and that, even though he has had the benefit of wholly concurrent sentences after subsequent convictions, that sentence should be set aside. On the question of re-sentence we received affidavit evidence from the applicant and from his foster mother. The effect of that material is as follows;
(a) For much of the time since being sentenced he has remained on protection. For part of that period he was on strict protection, which meant that he was allowed out of his cell only for two hours each day and his opportunities for employment and the pursuit of courses were severely limited.
(b) Nevertheless, whilst not on strict protection, he has been working and pursuing courses in personal development and various practical skills.
(d) He has re-established contact with his foster family and has their support, as well as that of the mother of his girlfriend. He can look forward to their continuing support upon his release.(c) He has been on a methadone program and has not been using illicit drugs. He has pursued such drug and alcohol counselling as has been available, and hopes to participate in a drug rehabilitation program available within the prison system towards the end of his non-parole period. Information about that program, known as the Ngara Nura Therapeutic Program, is annexed to his affidavit.
31 In my view, an appropriate aggregate sentence would be imprisonment for six years, with a non-parole period of three years, to date from 16 December 2001. Clearly, as his Honour found, there are special circumstances. While that outcome might be seen as lenient, I believe that both the head sentence and the non-parole period reflect an adequate measure of retribution and deterrence, both particular and general. I also believe that it gives appropriate effect to the aggravating and mitigating features of the case, within the meaning of s 21A of the Crimes (Sentencing Procedure) Act, which are apparent from my recital of the evidence and which need not be repeated. It takes account of the applicant’s pleas of guilty, although I find it unnecessary to express that factor as a quantified reduction of sentence.
32 I see no practical utility in restructuring the sentences on the various charges, and I would achieve the result I propose by substituting that sentence for the break, enter and steal offence. I would confirm the sentences on the other charges, which we were not invited to re-examine. They would remain concurrent with the head sentence which I would substitute, and the applicant’s earliest opportunity for release would be at the expiration of the non-parole period which I propose.
33 Accordingly, I would grant leave to appeal, allow the appeal, and make the following orders:
(a) The sentence in respect of the offence of break, enter and steal at Dover Heights on 7 March 2001 is quashed. In lieu, the applicant is sentenced to imprisonment for six years, to date from 16 December 2001, with a non-parole period of three years.
(b) The sentences on the other charges are confirmed.
(c) The applicant will be eligible for release on parole on 15 December 2004.
34 KIRBY J: I agree with Hidden J.
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