Regina v Niass

[2004] NSWCCA 149

CITATION:	Regina v Niass [2004] NSWCCA 149
HEARING DATE(S):	10/05/04
JUDGMENT DATE:	14 May 2004
JUDGMENT OF:	Hodgson JA at 1; Levine J at 2; Hidden J at 3
DECISION:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - Sentence - Crown appeal - break enter and steal - suspended sentence - delay - prospects of rehabilitation - whether sentence inadequate
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Mill v The Queen (1988) 166 CLR 59 R v Blanco (1999) 106 ACrimR 303 R v Hayes [2001] NSWCCA 358 R v Ponfield (1999) 48 NSWLR 327 R v Todd (1982) 2 NSWLR 517 R v Zamagias [2002] NSWCCA 17 R v Foster [2001] NSWCCA 215
PARTIES :	Regina - Applicant Barry John Niass - Respondent
FILE NUMBER(S):	CCA 60035/04
COUNSEL:	G Rowling - Crown H Dhanji - Respondent
SOLICITORS:	S Kavanagh - Crown SE O'Connor - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0119
LOWER COURT JUDICIAL OFFICER :	Payne DCJ

60035/04

HODGSON JA
LEVINE J
HIDDEN J

Friday 14 May 2004

Regina v Barry John Niass

Judgment

1 HODGSON JA: I agree with Hidden J.

2 LEVINE J: I agree with Hidden J.

3 HIDDEN J: After a trial at the Parramatta District Court before Payne DCJ and a jury, the respondent, Barry John Niass, was found guilty of a charge of break enter and steal: an offence under s112(1) of the Crimes Act, carrying a maximum penalty of fourteen years imprisonment. When he appeared for sentence he asked her Honour to take into account an offence of possessing a prohibited drug, arising from the fact that the police who arrested him in respect of the major offence found a small quantity of amphetamine in his possession. Taking that matter into account, her Honour sentenced him to imprisonment for two years with a non-parole period of fifteen months, but suspended that sentence under s12 of the Crimes (Sentencing Procedure) Act upon his entering into a bond to be of good behaviour for the period of the sentence. Pursuant to s5D of the Criminal Appeal Act, the Director of Public Prosecutions appeals against that sentence.

Facts

4 In the early hours of 24 December 2001, the respondent and two other men broke into a factory at Guildford through a side door, having removed a padlock from a perimeter fence. They then broke through an inner wall and opened a roller-door. They “hot wired” a Bobcat loader, valued at about $45,000, drove it through the roller-door and onto a truck, using heavy metal ramps. However, the further pursuit of the offence was frustrated by the arrival of the police, who had been contacted by a member of the community who saw the truck. By the time they arrived, the Bobcat was on the back of the truck and the truck’s motor was running. The respondent was arrested but his co-offenders got away.

5 Her Honour found that it was the respondent who provided the truck and the metal ramps, and that it was his function to take the Bobcat away from the premises. The truck was not registered in the respondent’s name, and police found in it a spanner, pinchbar and screwdriver which did not belong to its owner. Her Honour found that the offence was planned, and described the respondent’s role in it as “vital and integral”.

Subjective case

6 The respondent was thirty-six years old at the time of the offence and is now thirty-eight. He has a criminal record which, while it does him no credit, is somewhat unusual. There are entries in Children’s Courts and Local Courts between 1981 and 1991 for offences of violence and of dishonesty, drug offences and driving offences. However, between 1991 and 1999, when he was living in Queensland, his record is clear except, apparently, for some driving offences. Between 1999 and 2002 there are further entries in New South Wales Local Courts for offences of violence and dishonesty and driving offences, and in July 2003 he was placed on a bond for goods in custody.

7 There is one entry for break enter and steal, but that was dealt with in a Children’s Court in 1981. Apart from committals to juvenile institutions in that same year, his only custodial sentence was a term of twenty months imprisonment imposed at a Local Court in August 2000 for a number of counts of obtaining money by deception. However, in 2001 he was ordered to perform concurrent terms of community service in respect of offences of violence and a drug offence, and he was subject to those orders at the time he committed the offence the subject of this appeal. Moreover, it was while he was on bail in respect of the present offence that he committed the offence of goods in custody which was dealt with in July 2003, to which I have referred.

8 Before her Honour was a pre-sentence report, from which it appears that the respondent had a disturbed background. He is one of five children, whose father died in a car accident in 1975 and whose mother died from cancer in 1994. There were difficulties in his relationships with his siblings. He left school after completing Year 8 and worked in various unskilled labouring positions in different parts of the country. However, about six years prior to the present sentence, he himself was involved in a car accident. As a result of his injuries, he was unable to work to the extent that he had previously and has been on a disability pension.

9 He has had three relationships with women, the first two of which produced a daughter and a son. The daughter is an adult but the son is a dependent child, who lives with his mother and for whom the respondent has provided some child support. The third relationship had existed for about a year at the time of sentence, but his partner had relapsed into drug abuse after a period of abstinence.

10 The author of the report noted that the respondent was attending an anger management program, and concluded:

Mr Niass has complied with the requests of this Service for the most part during the preparation of this Pre-Sentence Report. He failed to attend the first scheduled appointment, claiming that he had “forgotten about it”. However, he responded on the next occasion and appeared to be genuine about his claim. The offender has a poor reporting history with this Service. Possibly, these issues are related to many issues that extend back to his childhood years and hopefully his current anger management program will have some impact.
His upbringing would be considered to be difficult at best, albeit the efforts made after 1975 by his single parent mother caring for five children. The impact on the family after his father’s death when he was ten years old would have weighed heavily. His drug use and behavioural problems commenced a few years later followed by his criminal activities that all appear to have had a domino effect after losing his father. Coincidentally, he then has a car accident himself at age thirty-one. His relationships are also indicators of his instability and more so recently after his defacto recommenced her drug use.
If the Court should place the offender on a Bond, the offender has been assessed as requiring a [medium-High] level of intervention in the areas of: Anger Management and Psychological Intervention including Assessment and Treatment. Supervision would focus on the identified area and include participation in: An Anger Management program provided by this Service and a referral to a relevant psychologist for assessment and treatment. There are a range of anger and family related issues, along with perceived injustice issues, and possibly culminating in his accident, that may have had a significant impact on the offender’s offending behaviour over the last two decades. These issues, arguably, are a catalyst for his offences and require attention in an attempt to avoid further offence related behaviour. He has consented to undertake such a program of intervention to address his issues.

Sentence

11 Judge Payne considered the aggravating and mitigating factors set out in s21A(2)&(3) of the Crimes (Sentencing Procedure) Act. In aggravation, she noted the respondent’s criminal record, the fact that the offence was committed while he was subject to community service orders, and that the offence was planned. In mitigation, she found that the loss or damage occasioned by the offence was not substantial and that the respondent had “reasonable” prospects of rehabilitation. She also had regard to the factors bearing upon sentence for the offence of break enter and steal examined in R v Ponfield (1999) 48 NSWLR 327, as well as to the fact that the respondent was not entitled to the leniency he might have earned by a plea of guilty and the expression of remorse.

12 A matter which troubled her Honour was the delay in the case coming to trial and, later, to sentence. As I have said, the respondent was arrested on the day of the offence, 24 December 2001. He was committed for trial on 9 May 2002. However, the trial before her Honour did not begin until 31 July 2003. The jury returned their verdict on 8 August, but the sentence proceedings were not concluded until 19 December 2003. Sentence was passed on the same day. The reasons for the delay between committal and trial and between trial and sentence need not concern us. It is sufficient to say that none of it was the fault of the respondent.

13 For the two years between arrest and sentence the respondent was on bail, subject to a reporting condition. His only offence during that period was the goods in custody referred to earlier. Apart from the fact that it related to a small boat, there is nothing before us about the circumstances of that offence. Otherwise, her Honour saw some progress towards rehabilitation in his co-operation with the Probation and Parole Service and his having undertaken an anger management course.

14 Her Honour concluded:

I do not think this is a crossroads case, but I am of the view that the Court confidently can say he has reasonable prospects for rehabilitation.
I must say, I have found this a very difficult case. Indeed, I think it is certainly borderline. Probably the most significant feature the Crown has in its favour is that this was an organized activity. You have the taking of a truck to an industrial area in the early hours of the morning. You have equipment there to ensure there could have been a successful taking of this very expensive piece of equipment. Having said that and considering the matter very anxiously, I am of the view that ultimately, the community interest in this case will be served by the imposition of a custodial sentence, but then the suspending of that custodial sentence. In my view, in all of the circumstances, that will give sufficient weight to the requirement for denunciation and specific and general deterrence. I am also of the view the rehabilitation of the offender will be assisted by him knowing that if he does re-offend, then he will most certainly go into fulltime custody.

The appeal

15 The Crown prosecutor in this Court submitted, firstly, that it was not open to her Honour to find in mitigation of sentence that the loss or damage occasioned by the offence was not substantial. He relied upon the fact that an internal wall had been damaged and the Bobcat had been hotwired. However, he did not refer us to any evidence about the extent of that damage or the expense of repairing it. I am not persuaded that her Honour’s finding was not open to her. In any event, it is not a matter of such significance as to warrant this Court’s intervention.

16 More importantly, the Crown prosecutor submitted that the sentence is manifestly inadequate. No argument was addressed to the length of the term of imprisonment, and I understand this submission to be directed to the fact that it was suspended. The Crown prosecutor referred to the undoubted seriousness of the offence, being a planned criminal enterprise involving property of substantial value committed by a man with a criminal record who was subject to community service orders at the time. He argued, in addition, that the sentence fails to reflect the drug offence which her Honour had to take into account. He challenged her Honour’s finding about the respondent’s prospects of rehabilitation, relying upon the fact that he had committed a further offence of dishonesty while on bail awaiting his trial. Generally, he emphasised the need for a sentence to mark appropriately the seriousness of the offence: R v Hayes [2001] NSWCCA 358, per Sully J at [51].

17 Of course, the Bobcat was recovered. Nevertheless, the offence was a serious one for the reasons identified by the Crown prosecutor, and it was attended by the aggravating circumstances to which he referred. All this her Honour recognised in her remarks. On the other hand, the drug offence which she took into account was a minor one.

18 However, in my view, it was open to her Honour to make the finding she did about the respondent’s prospects of rehabilitation. There was a basis for that finding in the pre-sentence report and, while he did re-offend whilst on bail, it was open to her Honour to draw some comfort from the fact that that was his only offence during the two year period between arrest and sentence. Given his age, his background and his somewhat unusual antecedents, her Honour was justified in affording some weight to the element of rehabilitation in fashioning her sentencing order.

19 Allied to this is the delay in the proceedings being brought to finality, which was of itself a significant factor. In R v Blanco (1999) 106 ACrimR 303, Wood CJ at CL (with whom Bell J and Smart AJ agreed) referred to R v Todd (1982) 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59, and continued at [16]:

The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach …

20 All that said, her Honour’s disposition in the present case is undoubtedly lenient. I am not persuaded, however, that it is manifestly inadequate. The salutary nature of a suspended sentence was recognised by Howie J (with whom Hodgson JA and Levine J agreed) in his helpful review of the sentencing options under the Crimes (Sentencing Procedure) Act in R v Zamagias [2002] NSWCCA 17 at [22] ff. By reference to R v JCE [2000] 120 ACrimR 18 and R v Foster [2001] NSWCCA 215, his Honour said at [31]:

A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended … That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive.

21 His Honour continued at [32]:

Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.

22 The passage from her Honour’s remarks quoted above (at para 14 of this judgment) demonstrates that her Honour approached her sentencing task with these principles in mind. I would not interfere with the exercise of her Honour’s discretion, particularly in the light of the long recognised constraints upon this Court’s intervention on a Crown appeal. I should add that we have before us an affidavit of the respondent attesting to his continuing progress towards rehabilitation in the period of almost five months since sentence was passed. Even if the sentence were manifestly inadequate, I would still decline to intervene in the exercise of this Court’s residual discretion. However, I do not find resort to that discretion necessary.

23 I would dismiss the appeal.

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Last Modified: 05/17/2004