Regina v Lyons [2000] NSWCCA 337

New South Wales Court of Criminal Appeal

CITATION : Regina v Lyons [2000] NSWCCA 337 FILE NUMBER(S) : CCA 60489/99 HEARING DATE(S) : 12/07/2000 JUDGMENT DATE : 12 July 2000

PARTIES : Regina Brett John LYONS JUDGMENT OF : James J at 1; Bell J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0293 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

COUNSEL : P Hock - Crown PJD Hamill - Applicant SOLICITORS : SE O'Connor - Crown TA Murphy - Applicant

Crimes Act 1900 LEGISLATION CITED : Sentencing Act 1989 Criminal Procedure Act 1986 Dalton-Morgan (unreported) NSWCCA 14.12.98; CASES CITED: Smith (unreported) NSWCCA 11.09.99 Attorney-General's Application (No 1); R v Ponfield & Ors [1999] NSWCCA 435 R v Crombie [1999] NSWCCA 297. DECISION : Application for leave to appeal allowed; appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL

60489/99

JAMES J BELL J 12 July, 2000 REGINA v Brett John LYONS

JUDGMENT

1 JAMES J: I will ask Justice Bell to give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of sentence imposed upon the applicant by his Honour Judge Armitage QC in the Sydney District Court on 16 August 1999. The applicant pleaded guilty to one count of break enter and steal pursuant to s 112(1) Crimes Act 1900. The maximum penalty in respect of this offence is one of 14 years imprisonment. His Honour imposed a minimum term of 2 years imprisonment to commence on 16 August 1999 and to expire on 15 August 2001. An additional term of 8 months was specified to commence on 16 August 2001. 3 The offence was committed on 7 April 1999. The applicant was arrested on that day and was taken in to custody. He was on parole at the date of the commission of the offence. His parole was subsequently revoked with the revocation expressed to take effect from 7 April 1999. 4 The applicant broke into a domestic home in Naremburn by forcing open a rear door. He stole a quantity of property including a lap-top computer, a VCR, assorted compact discs and some jewellery. The total value of the property stolen was estimated at $5,500. Later that afternoon, it appears that the applicant arranged for his girlfriend to sell the lap-top computer to a Cash Converters outlet in Chatswood. Staff at the shop became suspicious and notified the police. The police attended and observed the applicant in the near vicinity of the shop. He was spoken to and arrested. The applicant made full admissions prior to and during the course of an electronically recorded interview with police. He took the police to Naremburn and identified the premises. The whole of the property taken in the course of the offence was recovered and returned to the owner. 5 The applicant is aged 38 years. He is a single man with a longstanding addiction to heroin and other drugs. The material before his Honour showed that the applicant was a single child who had grown up in a stable family environment. Somewhat inexplicably against this background he had commenced criminal offending at the age of fourteen. His Honour summarised the applicant's lengthy criminal record in the course of his reasons for sentence. It is sufficient to note that the applicant's record is extensive and contains a number of convictions for offences of armed robbery and break enter and steal. His Honour noted that it was not his function to visit further punishment upon the applicant in respect of offences for which he had already paid a penalty. The significance of the record in the approach that his Honour adopted was that it provided no assistance to the applicant in support of his submission for leniency. 6 Mr Hamill, who appears on behalf of the applicant, advances two challenges to the sentence which his Honour imposed. Firstly, he submits that the sentence is manifestly excessive and, allied to this, he submits that the sentencing judge fell into error in failing to find that special circumstances existed requiring a departure from the statutory proportion as between the minimum and additional terms provided by s 5(2) of the Sentencing Act, 1989. 7 The applicant gave evidence at the sentence hearing. He said that he had been released from custody on parole on 20 June 1998. Thus, at the date of the commission of the subject offence, he had been at liberty for a period of approximately nine months. Prior to this the longest time he had been out of gaol in the past twenty years was for six weeks. He said that he had obtained three casual jobs in the ten month period of his liberty. He had worked as a detailer and as a delivery driver for a dry-cleaning firm. He was attending the Methadone Maintenance Programme at Herbert Street, St Leonards. His name had been placed on a waiting list for admission to that clinic's detoxification programme. He was due to be admitted to the programme on the day of the commission of the offence. On that morning he arrived at the clinic a quarter of an hour late and was refused admission. He was informed that he would have to place his name on the waiting list afresh. He said that this decision had hit him very hard and that he had become very angry. He had consumed a quantity of tablets and following this he broke into the house in Naremburn. He told the police that he had been walking around Naremburn with a screwdriver looking for something to steal. 8 A detailed report prepared by Janet Devlin, Consultant Psychologist, dated 29 July 1999 was tendered in the applicant's case. A pre-sentence report prepared by Geoff Bridle, Probation and Parole Officer, dated 5 August 1999 was also before the sentencing judge. In the concluding section of her report, Ms Devlin noted that the applicant's account of his life reflected the institutionalisation process. She then went on to set out what appear to be recognised phases associated with that phenomenon. It was in this context that she observed: "In the final phase, which Brett seems to have entered during his thirties, the depressive feelings and thoughts may greatly increase as the hopelessness of the circumstances begins to be accepted. …. Eventually the struggle may stop altogether and the individual is totally institutionalised. It is suggested that Brett is not yet at this stage and that he retains some hope for his future, bolstered by the comparative success he had during his last release. 9 Ms Devlin went on to comment that the applicant's account of the commission of the subject offence was reflective of his poor coping skills and of his readiness to blame events outside his control for his offending. She noted that his negative expectations of life tend to become a self fulfilling prophecy. In her conclusion, Ms Devlin said: "It is respectfully submitted that Brett retains the potential for successful rehabilitation, and that the provision of pre or post release training in social skills and stress and anger management and structured post release supervision, including assistance to access normative community supports (to reduce social isolation), will enhance his resilience to further drug use and the associated offending."