REGINA v BELL [1999] NSWCCA 423

New South Wales Court of Criminal Appeal CITATION : REGINA v BELL [1999] NSWCCA 423 FILE NUMBER(S) : CCA 60423/98 HEARING DATE(S) : 27 October 1999 JUDGMENT DATE : 27 October 1999

PARTIES : REGINA v TREVOR DEAN BELL JUNIOR JUDGMENT OF : Simpson J at 1; Smart AJ at 25

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/1127 LOWER COURT JUDICIAL OFFICER : Nield DCJ

COUNSEL : R D Ellis - Crown P J D Hamill - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Crimes Act 1900 Sentencing Act 1989 CASES CITED: R v Fernando [1992] 76 A Crim R 58 DECISION : Leave to appeal granted; Appeal allowed and sentence varied.; The applicant be sentenced to a total term of penal servitude for five years made up of a minimum term of two and a half years commencing on 21 February 1998 and expiring on 20 August 2000 and an additional term of two and a half years commencing on 21 August 2000 and expiring on 20 February 2003.

IN THE COURT OF CRIMINAL APPEAL 60423/98

SIMPSON J SMART AJ 27 October 1999 REGINA v TREVOR DEAN BELL JUNIOR JUDGMENT

SIMPSON J : 1 The applicant seeks leave to appeal a sentence imposed on him in the District Court by Nield DCJ following his plea of guilty to a single charge of aggravated break enter and steal. The charge was brought under section 112(2) of the Crimes Act 1900 and carries a maximum penalty of twenty years penal servitude. The sentence imposed by his Honour was one of a total term of penal servitude for six years. His Honour declined to find special circumstances within the meaning of section 5(3) of the Sentencing Act 1989 existed and divided the term conventionally into a minimum term of four-and-a-half years and an additional term of one-and-a-half years. 2 The offence was committed on 21 February 1998. The applicant smashed the bedroom window of a house and with his defacto wife entered the house and proceeded to collect a large amount of property. In smashing the window the applicant injured his hand and while the two were in the house he shed a good deal of blood throughout the house and on the property of the occupants. Having been notified of the entry, police arrived and encountered the two offenders in the premises. As a result no property was in fact removed from the premises but a great deal was damaged as a result of the blood shed by the applicant. The female occupant of the premises estimated the damaged property to be valued at about $3,000. The applicant and his defacto were arrested immediately. He declined to be interviewed by police. However, he subsequently entered a plea of guilty and the sentencing judge accepted that this was entered at the first available opportunity. 3 The applicant was born either on 31 August 1964 or 31 August 1965. The material is conflicting in this respect. He has an extremely lengthy criminal history. Judge Nield tallied the entries and concluded that he had been convicted of no less than seventy offences. Of these, nine were either of break enter steal or break and enter with intent to commit a felony. 4 The applicant is of Aboriginal descent and a pre-sentence report in evidence demonstrates that his history and background have many of the features and characteristics described by Wood J in Regina v Fernando [1992] 76 A Crim R 58. 5 He spent much time living in institutions from the age of seven or with relatives because of instability arising from his parents' alcohol abuse. Three siblings have died, at least one of them from a drug overdose. He has been addicted to heroin since early 1985 when he was about twenty years of age. In fact he first began using the drug at about fourteen years of age. He has attempted a methadone program but failed to complete it. At the time of the report in July 1998, he had again been admitted to a methadone program. He has used other drugs both legal and illegal and had become dependant upon prescribed barbiturates. 6 He has been in a defacto relationship with his co-offender since about 1991 and they have three children. A fourth child was still-born in December 1997 and this event appears to have caused a considerable breakdown in whatever stability he had acquired.