Robertson v The Queen

[2009] NSWCCA 38

New South Wales
Court of Criminal Appeal

CITATION:	Robertson v R [2009] NSWCCA 38
HEARING DATE(S):	23 February 2009
JUDGMENT DATE:	23 February 2009
JUDGMENT OF:	Grove J at 27; Buddin J at 1; Price J at 28
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal law -sentencing - offences of aggravated break, enter and steal, take and drive a conveyance (x2), malicious damage - totality - effect of imposing cumulative sentences upon overall non-parole period
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 Dunn v R [2007] NSWCCA 312 R v Ibrahim [2005] NSWCCA 43 R v Lyndon [2003] NSWCCA 152 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Dean Stanley Robertson (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2005/7136
COUNSEL:	I McClintock SC (Applicant) Ms V Lydiard (Respondent)
SOLICITORS:	S O'Connor (Solicitor for Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/31/0342
LOWER COURT JUDICIAL OFFICER:	O'Connor DCJ

2005/7136

GROVE J
BUDDIN J
PRICE J

MONDAY 23 FEBRUARY 2009

DEAN STANLEY ROBERTSON v R

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him following his conviction by a jury in the District Court. There is no appeal against those convictions.

2 The indictment upon which he was convicted contained four counts. In respect of the first two counts, each of which involved an offence of take and drive a conveyance, the applicant was sentenced to a fixed term of 2 years imprisonment to commence on 2 March 2006 and to expire on 1 March 2008. Those sentences were ordered to be served concurrently with each other. In respect of the fourth count, which was an offence of malicious damage, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 2 March 2006 and to expire on 1 March 2009. The maximum penalty for each of those three offences is 5 years imprisonment. In respect of count 3, an offence of aggravated break, enter and steal which was committed in company, the applicant was sentenced to a non-parole period of 6 years imprisonment with a total term of 8 years imprisonment. Those terms were each fixed to commence on 2 March 2007. The non-parole period will thus expire on 1 March 2013 at which time the applicant will be eligible for parole. The total term will expire on 1 March 2015. The maximum penalty for this offence is 20 years imprisonment and a standard non-parole period of 5 years applies. Two other counts of malicious damage, which appeared on a s166 certificate, each attracted a fixed term of 6 months imprisonment to commence on 2 March 2006. The total effective non-parole period is thus one of 7 years whilst the total term is one of 9 years imprisonment.

3 The sentencing judge made a number of factual findings for the purpose of sentencing the applicant. As there is no challenge to those findings, it is possible to briefly sketch the background to these offences.

4 A tabletop truck belonging to QIK Transport Pty Limited was stolen from Berkeley Vale depot on the Central Coast some time after close of business on 5 August 2004. The truck was subsequently located the following day behind the Caltex Service Station at Chittaway Bay. Located in the truck were two hard hats, a knife and a glove. None of these items had been in the truck prior to its being stolen (count 1). The truck sustained damage amounting to $1300 (that damage gave rise to the first of the two matters on the s 166 Certificate).

5 On 6 August 2004 a bobcat was stolen from premises at Kooindah Waters. The doors of the truck belonging to QIK Transport were then used as a ramp in order to load the forklift. The doors were later discovered at the premises (Count 2). The damage to the bobcat and the cost of repairs to it totalled $800 (that damage and cost of repairs gave rise to the second matter on the s 166 Certificate).

6 At 4.50 am on 6 August 2004 two men arrived at premises within a shopping centre known as Homemakers Super Centre at Tuggerah in a tabletop truck. The incident was recorded by CCTV. The registration number of the truck was observed and it was established that it belonged to QIK Transport. The bobcat referred to in count 2 was on the back of the truck. The two men then unloaded the bobcat. They were then seen to put on hard hats. One of the men got into the bobcat and drove it through the glass doors of the premises. The other male followed the bobcat into the premises. The bobcat was then used to remove the ATM from the floor of the building. It was carried outside and placed on the truck. The men departed in the truck but left the bobcat at the premises. The ATM was ultimately located by police on 18 August in a paddock at Somersby. It had been cut open and the contents removed. The ATM was valued at $9000 and an alarm (presumably damaged) was valued at $2000. There was $44,340 in the ATM at the time it was stolen. None of that money has been recovered (Count 3).

7 As a result of the incident, the glass doors and entryway to the Super Centre were damaged. The offenders had ruptured the hydraulics to the bobcat and as a result hydraulic fluid had been spilt throughout the centre. A number of tables and chairs in the food court area had been crushed. The offenders had also run into gyprock walls and the large palm trees that had been in the centre had been moved. One palm tree had been damaged to such an extent that it had to be removed completely. Pavers and a downpipe which were outside the entry to the Super Centre were also damaged. The total cost of the damage was estimated to be almost $30,000 (count 4).

8 DNA samples were recovered from the band within the hard hat which was left in the truck and from the left hand lever of the bobcat. The samples were compared to hair samples taken from the applicant. DNA evidence led at the trial linked the applicant to the offences.

9 The applicant gave evidence at the trial in which he sought to provide an innocent explanation for the DNA evidence. He also relied upon an alibi. As to that evidence the sentencing judge made these observations:

I am not surprised the jury rejected the offender’s explanation in relation to the DNA or his alibi, having regard to the circumstances and the offender’s general demeanour in the witness box. It was not surprising in my view that the jury found the offender guilty of all those offences, a conclusion with which I agree.

10 The applicant was born on 10 October 1971 and is now 37. He was 32 at the time of the offences. He grew up in a close and loving family as the eldest of five children. Tragically two of his brothers have died. It appears that he never enjoyed school and that his education was characterised by truancy and disruptive behaviour. Towards the end of year 7 he left school and did not return.

11 The applicant began smoking cannabis on a daily basis when he was about 12 or 13. By his mid teens he was using amphetamines and then LSD. At the age of 19 he became a heroin user although since 2003 it seems that he has been on a methadone program.

12 At the time of sentence the applicant had been married for about 11 years. The evidence reveals that he is regarded as a good father to his five step-children who remain supportive of him. A report prepared by Ms Anna Robilliard revealed that the applicant was suffering from depression for which he is currently taking medication. Whilst he has been in custody the applicant has been working as a head sweeper. Whilst two institutional conduct charges have been recorded against him, it would appear that his attitude and behaviour has otherwise been regarded in a positive light by prison staff. Furthermore, he has completed a number of courses whilst in custody.

13 The applicant has a significant criminal history. In 1987 in the Children’s Court he received a recognisance and probation for driving a stolen vehicle and entering enclosed lands. The following year in the District Court he was placed on another recognisance for being armed with intent to commit a felony. In 1989 in the Children’s Court he received a control order for 12 months in respect of 6 counts of break, enter and steal and 4 counts of stealing a motor vehicle together with other offences of dishonesty. In the same year he received a term of 9 months imprisonment for breaching the recognisance imposed upon him in the District Court. Later that year other relatively minor drug and driving offences were disposed of either by way of pecuniary penalty or probation. In 1990 the applicant received a fixed term of 14 days for escaping from custody. In 1992 he received a minimum term of 14 months imprisonment with an additional term of 12 months for an offence of break and enter with intent. In 1995 in the Local Court he was fined $500 for goods in custody. In 1996 in the District Court two further offences of break, enter and steal led to the imposition of a total minimum term of about 15 months. In 1998 his parole was revoked and he was ordered to serve the balance of parole, a period of 11 months and 4 days. In February 1999 in the District Court the applicant was sentenced to a minimum term of 10 months 11 days with an additional term of 1 year 9 months for attempting to steal a motor vehicle and using an offensive weapon to prevent lawful apprehension. In October 1999 in the District Court the applicant was sentenced to a minimum term of 4 years 6 months with an additional term of 18 months for robbery whilst armed with a dangerous weapon (a number of other matters on a Form 1 being taken into account on sentence). In 2001 in the Local Court the applicant was sentenced to 14 days imprisonment for escaping lawful custody. In November 2005 in the Local Court the applicant was sentenced to 21 months imprisonment with a non-parole period of 16 months for two counts of destroying property. Offences of driving a conveyance without the consent of the owner and driving recklessly attracted shorter concurrent sentences. The non-parole period for those offences expired on 2 March 2006. The offences, the subject of this application, were ordered to commence on that date.

14 As the sentencing judge observed, the applicant has spent a considerable period of his life in custody. In fact it seems that the longest period that he has spent at liberty as an adult is 11 months. It is unsurprising in those circumstances that he has rarely engaged in gainful employment.

15 The sentencing judge quite properly observed that:

[h]is criminal record demonstrates that the current offences are not an aberration, but represent a continuing attitude of disobedience to the law and an escalation in the degree of seriousness of the offending behaviour. His record also deprives the offender of considerations of leniency and to my mind reflect poorly on prospects of rehabilitation.

16 The applicant’s criminal record also meant that considerations of personal deterrence assumed greater significance than would otherwise be the case.

17 As I observed earlier, a standard non-parole period was applicable in relation to count 3. The sentencing judge concluded that the offence lay above the mid-range. In so concluding, the sentencing judge referred to the very substantial amount of money which had been taken and never recovered. His Honour also concluded that the offence was part of a planned or organised criminal activity. In doing so the sentencing judge referred to the efforts which the offenders must have undertaken in order to find appropriate vehicles and equipment with which to achieve their objective. His Honour continued:

The timing of the offence was considered obviously, in the early hours of the morning. Under cover of darkness, the premises were no doubt chosen after time was spent analysing the risks of detection and the response time of the security or police. In that regard the operation was quick and efficient and demonstrated a level of planning of the upper level of the range.
…
It is also relevant to observe that there has, of recent times, been a spate of what are described as ram raids, and to my mind this points to the need for sentences for these type offences to have a significant element of deterrence.

18 The sentencing judge took into account as an aggravating factor the fact that the applicant was on parole at the time these offences were committed on 6 August 2004. The applicant had been released on parole on 1 November 2003 for the offence of robbery whilst armed with a dangerous weapon. His parole period was not then due to expire until 2 May 2005. It is to be noted that he was still on parole when in September 2004 he also committed the offences of destroying property and the driving matters for which he was sentenced in the Local Court in 2005.

19 His Honour was unable to discern any mitigating factors. He noted that because the applicant continued to maintain his innocence in relation to these offences, he was not entitled to any reduction of sentence for having demonstrated remorse.

20 In structuring sentences in the manner in which he did, the sentencing judge had regard to the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. He explained his reasons for declining to make a finding of “special circumstances” in the following terms:

There is little objective evidence to suggest the rehabilitation will be effective warranting adjustment of the non parole period. The offender has had multiple opportunities to demonstrate such willingness and has serially ignored the opportunities offered to him. The period on parole will provide him with such opportunity if he is minded to take advantage of it.

21 There is no complaint about the individual sentences which were imposed. The sole ground of appeal is that the sentencing judge “erred in failing to take into account the effect of cumulation in determining the non-parole period”. The way in which the sentences were structured meant that the sentences imposed in respects of counts 1, 2 and 4 were all subsumed within the sentence imposed in respect of count 3. That sentence, in turn, was accumulated upon the other sentences but only to the extent of 12 months. In the final analysis as I have said the total non-parole period is 7 years and the total term is one of 9 years imprisonment.

22 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 provides that “the balance of the term of the sentence must not exceed one-third of the non-parole period of the sentence unless the court decides there are special circumstances for it being more”. The proportion which the non-parole period bears to the total term is 77.7%. That means that the balance of the term is less than one-third of the non-parole period. It was against that background that the applicant submitted that “the failure of the sentencing judge to refer to the effect of cumulation in relation to the setting of the non-parole period suggests that this factor was overlooked by the sentencing judge”.

23 It may be accepted that there have been instances in which this Court has intervened where there has been an error of the kind which is asserted in the present case. Counsel for the applicant referred to R v Lyndon [2003] NSWCCA 152; R v Ibrahim [2005] NSWCCA 43 and Dunn v R [2007] NSWCCA 312 as providing three such examples.

24 It is true that the sentencing judge in the present case made no specific reference to this particular issue. That is not however the end of the matter since s 44(2) does not prohibit a court from setting a period for the balance of the term which is less than one-third of the non-parole period. Each case inevitably turns on its own facts. So much is clear from the decision in Ibrahim (supra). There the sentencing judge had declined to find special circumstances but nonetheless produced an overall non-period of 45 months which was 90% of the total sentence of 50 months. In that case I said, with the concurrence of Grove and Bell JJ, that:

[t]he Crown referred us to two cases in which this Court dismissed appeals where it had been complained that the non-parole period was excessive by reason of the fact that it exceeded 75% of the overall term. In R v Lupton [2003] NSWCCA 200, the proportion was 80% and in R v So [2004] NSWCCA 362, it was of a similar order. However, it is pertinent to observe that in Lupton , the actual period to be spent on parole by the offender was 2 years, whilst in So it was 2½ years. It would appear moreover, that in each of those cases, the sentencing judge had specifically considered the question of the appropriate period of time which the offender was to spend on parole and the related question of the minimum period for which the offender was to be incarcerated. The sentencing judge in the present case simply made no reference to that issue or to the effect of the sentences which had been imposed a matter which, as I have said, his Honour seems not to have considered. (at par 17)

25 As is readily apparent, the departure from the normal statutory proportion in the present case is relatively minor. Moreover, his Honour took some care in selecting the overall non-parole period which, in his view, the objective gravity of the applicant’s offending conduct and his antecedents, warranted: see R v Simpson (2001) 53 NSWLR 704. His Honour was also satisfied that as against the overall non-parole period which he had selected, a period of 2 years on parole was perfectly adequate in all the circumstances. I detect no error in his Honour’s determination so far as either of those periods is concerned.

26 Accordingly, even if the sentencing judge did err in the manner which is asserted, I remain unpersuaded that some other sentence is warranted in law and should have been passed. I propose that leave to appeal be granted but the appeal be dismissed.

27 GROVE J: I agree.

28 PRICE J: I agree with Buddin J.

29 GROVE J: The orders of the Court will be as proposed by Buddin J.

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