New South Wales Supreme Court CITATION : Regina v Byron Edward Spencer [1999] NSWSC 1073 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70202/97 HEARING DATE(S) : 9 July 1999 JUDGMENT DATE : 14 July 1999 Regina PARTIES : v Byron Edward Spencer JUDGMENT OF : Badgery-Parker AJ at 1 COUNSEL : Cr: Mr P Conlon D: Mr JC Nicholson SC SOLICITORS : Cr: Crown Solicitors Office, Wollongong D: Hoban & Co, Sydney CATCHWORDS : CRIMINAL LAW - Sentence - Two charges - Break enter and steal; break enter and steal with circumstances of aggravation - Weight to be given to various factors: plea of guilty and assistance to authorities - Subjective factors - Whether custodial sentence should be imposed where prisoner has demonstrated full rehabilitation. ACTS CITED : Crimes Act 1900 DECISION : See paragraphs 34 and 36 of judgment IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BADGERY-PARKER AJ Wednesday, 14 July 1999 No: 70202/97 REGINA v Byron Edward SPENCER SENTENCE 1 HIS HONOUR: Byron Edward Spencer was indicted before me in Sydney on 9 July upon two charges to each of which he pleaded guilty. The charges arose out of the following circumstances. On 25 June 1996 four men set out from a hotel in Yass in a car owned and driven by Gary Teale. The prisoner was one of the passengers. The others were brothers, Dean and Michael Privett. 2 The prisoner had come to Yass from Albury a few days earlier in the company of Michael Privett in order to attend a party. He had met Dean Privett only once about a year earlier, and he had had no previous association with the man Teale. 3 The excursion in the car was instigated by Dean Privett. I accept the prisoner's account of how he came to be involved. Dean Privett invited him to go with the others to steal some tools and some generators from one or more rural properties. There is no doubt that the prisoner was willing to engage in this criminal activity. I accept that he was somewhat intoxicated at the time, and probably to a degree disinhibited, but he was well aware of the criminal nature of what was proposed. He involved himself willingly, and I accept that the prospect of some easy money was what motivated him. He had been unemployed for over four years, a circumstance which does not excuse but does explain his willingness to engage in such criminal conduct. 4 The four men travelled first to a property known as Yass Plains in Dog Trap Road Yass. Entry to the property was blocked by a chain gate. They returned to Yass where Dean Privett obtained some bolt cutters, then went back to Yass Plains. The chain was cut and they drove in to a shed. 5 The prisoner took an active part with the others in collecting various tools, including some expensive power tools, and placing them in the boot of the car. They transported those items back to Yass where they were secreted in the backyard of premises occupied by Dean Privett. Again the prisoner took an active part in the unloading and concealment of the stolen goods. 6 In respect of that matter he was charged in the second count of the indictment, that on 25 June 1996 at Yass he did break and enter the workshop of Peter Walker situated at Yass Plains, Yass, and then in the said workshop did steal certain property, to wit, numerous tools, including one Makita drop saw, bench grinder, pop rivet gun, and other tools at the property of the said Peter Walker, in the said workshop then being. 7 The charge is laid under s112 of the Crimes Act 1900 and carries a maximum penalty of penal servitude for fourteen years. 8 Again at the instigation of Dean Privett, the four men again drove out of Yass, on this occasion to a property at Gundaroo where Dr Peter Rowland was building a house, and where there were a couple of sheds, in one of which Rowland sometimes stayed overnight. 9 The intention, as made known to the prisoner by Dean Privett, was to steal one or more generators. Dean Privett mentioned that he knew that such items were to be found on those premises. During the journey to the Gundaroo district, the prisoner became aware that Dean Privett had with him a shotgun. He loaded a number of cartridges into it. 10 On arrival at a gate close to the sheds, Dean Privett told Teale to stay in the car. Then the Privett brothers and the prisoner alighted. They climbed over a fence and went to towards the sheds. At that stage the prisoner became aware that Dean Privett was carrying a gun. He asked, "Why bring this along if you only want generators?". Privett reassured him, "Don't worry about it, it's just in case you know, if there's some dogs or something." Dean and Michael Privett went towards one shed in which there was a light. The prisoner went to another shed and used a torch to look for the generator. 11 When the Privetts entered the shed, after one of them had kicked the door down, shots were fired. Dr Rowland was shot dead. 12 I refer to those matters at this stage only for the purpose of pointing out that the prisoner was not in any way involved in the death of Dr Rowland, and the fact that the killing occurred at the time and place where the prisoner was present with intent to steal is not a matter relevant to be considered in sentencing the prisoner for the offence for which he has now been charged. 13 In respect of this second matter, the prisoner was charged in the first count of the indictment that on 25 June 1996 at Gundaroo, whilst in company with Dean Privett and Michael Privett, did break and enter the dwelling house of Peter Browne Rowland situated at a property named Kingsgrove near Gundaroo via Yass with intent to commit a felony, to wit, stealing in circumstances of special aggravation. 14 The circumstances of special aggravation which the Crown alleges, and which the evidence clearly establishes, are in terms of the definition of s105A, that the alleged offender was armed with a dangerous weapon. 15 It is not the Crown case that the prisoner himself carried a weapon, but that he was knowingly part of a joint enterprise with others, one of whom was so armed. 16 The senior public defender who appeared for the prisoner properly conceded that that was sufficient to satisfy the definition of circumstances of special aggravation in s105A. 17 The charge is laid under s113(3) of the Crimes Act and carries a maximum penalty of penal servitude for twenty years. The heavy penalties prescribed by the legislature reflect the serious view which is taken of offences of this kind. Even in cases where no circumstances of aggravation exist, the prescribed maximum is fourteen years. 18 The availability of sentences of such magnitude reflects the vulnerability of property owners, and the economic and personal loss that the victims of such a crime sustain, and the sense of personal violation the victims may experience. All those factors may be regarded as present in the present case, and I am especially conscious of the vulnerability of those who live in remote, or relatively remote thinly settled rural areas. 19 Obviously the maximum penalty is to be reserved for cases far more serious than this one, but nevertheless the nature of the prisoner's crime is such as to lead the Court to consider a significant sentence of penal servitude. 20 But the sentencing process does not end with any evaluation of the objective gravity of the crime. The sentence ultimately that is to be imposed is required to reflect that of course, but not only that, regard must be had to a number of other factors. They include in this case the following. First, that the prisoner has pleaded guilty. The policy of the law expressed in s439 of the Crimes Act is to encourage pleas of guilty and to reward those who by pleading guilty make a contribution to easing the cost burden of the criminal justice system. The Act requires that a sentencing court take into account the plea of guilty, and authorises the court to reduce accordingly the sentence that would otherwise have been passed. The sentence reflects the common law and the principles to be applied are those of the common law stated in cases such as Winchester (1992) 58 A Crim R 345. The extent of discount will vary according to whether the plea of guilty is no more than the recognition of the inevitability of conviction entered to take advantage of the section, or is a genuine manifestation of contrition . 21 In this case I am satisfied that the plea of guilty does represent contrition, and there is other evidence of that. The prisoner was interviewed by police officers on 30 June, 1996 after he voluntarily went to Yass Police Station for that purpose. It was made clear to him that the interview was for the purpose of a murder investigation. Indeed he was arrested for murder immediately upon his arrival and before the interview began. That circumstance explains, I think, the fact that he was not altogether forthcoming about some aspects of the event, but the fact is that he did make at that early stage a full disclosure of his own role in the two offences for which he now stands for sentence. 22 In February 1997 he was committed for trial on the charge of murder, and at that time he offered to be further interviewed with a view to giving evidence at the murder trial. That further interview took place on 1 May 1997, and he again made full disclosure of his own guilt. 23 It is the policy of the law expressed in s442B of the Crimes Act that offenders should be rewarded for giving assistance to the prosecuting authorities, and in particular giving information to the police about crimes in which they were involved, or about which otherwise they had knowledge. Many crimes would otherwise go unsolved or unpunished. 24 In the interview on 1 May 1997 the prisoner gave police a great deal of information about the events surrounding Dr Rowland's death, and he has since given a written undertaking, and before me an oral undertaking on oath to give evidence at the trial of Dean and Michael Privett. 25 The weight to be given to an offender's cooperation in disclosing information and giving evidence varies with the circumstances. The likely value of his cooperation in securing the conviction of a major offender is highly relevant. So too any personal consequence that the witness may have suffered or may suffer in the future. In this case I am satisfied that but for the cooperation of the prisoner, Dean Privett would not have been brought to trial. Indeed at committal he was discharged. Further I am satisfied that the prisoner holds genuine fears for his own safety by reason of his cooperation with police, and I accept the evidence of Detective Inspector O'Neill that such fears have a realistic foundation. 26 The prisoner, who was born on 22 September 1970, has no significant criminal record. He has one minor conviction for dishonesty about 1991, and some drink driving offences subsequently. They are not significant in the present sentencing exercise. 27 When the prisoner was admitted to bail in February 1997 a condition imposed was to the effect that he make diligent efforts to obtain employment. Until the time of his arrest he had, as I think I previously observed, been unemployed for over four years. The evidence shows that on his release from custody he went to live at his family home in Altona East in Victoria. He obtained employment on 14 May 1997 as a construction worker. The employing company has given him an excellent reference. He left that employ after a couple of years for less strenuous work, and became a leading hand cleaner in a major shopping mall; and that employment continues at the present time, and remains open to him indefinitely. Again his employer is full of praise of his honesty, his enthusiasm, his reliability, his competence and his efficiency. During 1998 the prisoner was married, and his wife is now seven months pregnant with their first child. 28 Those facts satisfy me that the prisoner is fully rehabilitated and will not again offend against the criminal law. 29 Mr Nicholson submitted that I should extend some measure of leniency in addition to what is attracted by the foregoing circumstances by reason of the fact that the prisoner was arrested for and charged with murder, and has had that matter hanging over his head since 30 June 1996. I am not persuaded that that is a relevant matter and I make no allowance for it. 30 The prisoner's offences were, as I have observed, such as to call for consideration of a custodial sentence. However, any sentence that could be imposed would not be of great duration given that the offences fall towards the lower end of the range of seriousness of offences of the kind, and given his evidently complete reformation since 1997. Any sentence which would now be imposed, and which would have the effect of returning him to custody would seriously threaten his rehabilitation, and it would necessarily be in any event a very short sentence by reason of the considerations to which I have referred as resulting from the application of s439 and s442B of the Crimes Act. 31 Ultimately, the objective of all sentencing is the protection of the community. Sometimes it is necessary to impose a sentence of physical detention to prevent reoffending, or to deter other offenders as well as the instant offender from similar criminal conduct. Where rehabilitation can be achieved, that also effectively protects the community. Where, as here, rehabilitation is evidently complete, the interests of the community will rarely be served by the imposition of a sentence that would disrupt that rehabilitation by returning the prisoner to custody thus damaging his family life and his employment prospects. Particularly so in the present case, whereas I have observed any sentence that I did impose would necessarily be a short one. 32 For those reasons I am convinced that notwithstanding the seriousness of the offence, the appropriate sentence is not one which would require the prisoner to return to custody at this stage. I say "return to custody" in recognition of the fact that from the time of his arrest on 30 June 1996 he was held in prison until 7 September 1996. There was a further period of about three weeks in custody early in the following year, so he has in fact served a total of rather more than three months. 33 I have considered the option of imposing upon him a sentence in the form of a community service order, such as was imposed on the man Gary Teale who came for sentence in the District Court at Wollongong. That is not, however, an available option in the present case because the prisoner lives and works in Victoria, and remarkably there do not exist reciprocal arrangements for the interstate enforcement of such an order. 34 That option being removed, I come to the conclusion that the prisoner should be dealt with in the following manner, and I impose the following sentence. In respect of the first count in the indictment, you are sentenced to penal servitude for a term of three months. That is a fixed term commencing on 30 June 1996, which would have expired on 29 September 1996. 35 The reason for imposing a fixed term, so far as it cannot be gathered from everything that I have said up to now relates to the fact that the prisoner is apparently rehabilitated, is not in need of supervision, and that there is therefore no reason to impose a period of parole. Furthermore, the sentence in respect of the next count adequately substitutes for an additional term. 36 In respect of the other count on the indictment, I record a conviction but defer passing sentence, and order the prisoner to enter into a recognisance, himself in the sum of $1,000, to be of good behaviour for the period of two years, and to come up for sentence if called upon to do so in the event of any breach within that period. I see no need for and make no order for supervision. * * * * * * * * Last Modified: 11/10/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.