Regina v Campbell [2000] NSWCCA 429

Reported Decision : [2000] 115 A Crim R 300

New South Wales Court of Criminal Appeal

CITATION : Regina v Campbell [2000] NSWCCA 429 FILE NUMBER(S) : CCA 60790/98 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 18 February 2000

PARTIES : Regina v Craig Campbell JUDGMENT OF : Sully J at 1,38, 40; Carruthers AJ at 2; Foster AJA at 39

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0103 LOWER COURT JUDICIAL Armitage DCJ OFFICER :

COUNSEL : P Zahra (Applicant) M C Marien (Crown/Respondent) SOLICITORS : Mr Ozen (Western Aboriginal Legal Service Ltd) S E O'Connor (Crown/Respondent) CATCHWORDS : Criminal law - sentence appeal - young Aboriginal male - multiple break, enter and steal offences - relevance, if any, of maximum sentences for like matters in the District Court - effective sentence of 5 years overall - minimum term 3 years - additrional term 2 years - appeal dismissed LEGISLATION CITED : Crimes Act 1900 In the Matter of the Attorney General's Application No. 1 under s 26 of The Criminal Appeal Act NSWCCA 16 December 1999; CASES CITED: Pearce v The Queen [1999] 72 ALJR 1416; R v Fernando (1999) 76 A Crim R 58 DECISION : Appeal Dismissed

IN THE COURT OF CRIMINAL APPEAL CCA60790/98

SULLY J CARRUTHERS AJ FOSTER AJ

Friday 18 February 2000 REGINA v Craig Raymond CAMPBELL JUDGMENT

1 SULLY J: The Court has come to a view about this matter. I invite Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: Craig Raymond Campbell seeks leave to appeal against sentences imposed upon him by his Honour Judge Armitage at the Dubbo District Court on 16 October 1998. The applicant had earlier pleaded guilty to two counts of break and enter with intent under s113(1) of the Crimes Act 1900 (hereinafter the Act). They were counts one and four of the indictment. This offence carries a maximum penalty of ten years penal servitude. A further three counts under s112 of the Act of break, enter and steal. They were counts two, eight and nine. This offence carries a maximum penalty of 14 years penal servitude. A further count under s154A of the Act of allow to be carried in a stolen conveyance. This was count three. This offence carries a maximum penalty of five years penal servitude. A further one count of receiving s118 of the Act. This was count six. This offence carries a maximum penalty of ten years penal servitude. Finally, one count of possess housebreaking implements under s114(1)(b) of the Act. This was count seven. This offence carries a maximum penalty of seven years penal servitude. 3 The indictment contained a further count of break enter and steal (count five). The applicant pleaded not guilty to this count and the Crown accepted the guilty pleas in relation to the other eight counts in full satisfaction of the indictment. 4 In relation to counts one, four, six, eight and nine his Honour sentenced the applicant to a minimum term of two and a half years penal servitude to commence on 27 March 1998 and to expire on 26 September 2000. His Honour imposed an additional term of two years to commence on 27 September 2000 and to expire on 26 September 2002. 5 In relation to count two, his Honour sentenced the applicant to a minimum term of three years penal servitude to commence on 27 March 1998 and to expire on 26 March 2001 with an additional term of two years to commence on 27 March 2001 and to expire on 26 March 2003. Count two was the most serious of the break enter and steal offences. 6 In relation to counts three and seven, his Honour imposed a fixed term of one year penal servitude to commence on 27 March 1998 and to expire on 26 March 1999. 7 Thus the effective overall sentence is one of five years. The effective minimum term is one of three years and the applicant will be eligible for parole on 26 March 2001. His Honour found special circumstances and imposed a longer than normal additional term. 8 The applicant was born on 10 November 1973 and was accordingly aged 24 at the time of the sentences and is presently aged 26. The applicant is of aboriginal descent. His background is set out in a report by Ms Anna Robilliard, psychologist, dated 8 October 1998. It appears from that report that the applicant's father who was an alcoholic, died in 1991. His mother lives in Dubbo. He spent his early childhood in the Redfern Waterloo area and left school at the age of 15 with a rudimentary education. He has never been in paid employment. From the age of 19 to the age of 21 he lived with a girlfriend, Raelene, who is five years older than himself and they have a young child. According to Ms Robilliard the applicant is sincerely committed to that child. 9 When the applicant was aged 20 he discovered that Raelene was using heroin and he likewise became addicted to that drug. He began drinking alcohol at the age of 17 and by the age of 20 he would often drink all day. However at about that age he ceased drinking but moved into drugs and was a user of marijuana until his arrest on 27 March 1998. He had a heroin habit for about a year when aged 21 but told Ms Robilliard he took control of his addiction during the 12 months he served in prison. On his release he returned to Raelene, found that she was using cocaine and then joined her in the use of that drug, not because he liked it but because he wanted to be close to her. 10 The sentencing judge noted that psychometric tests carried out by Ms Robilliard disclosed that the applicant functions at around the lower average range. He demonstrated quite adequate understanding for everyday purposes and is capable of acquiring basic self understanding and insight. The applicant was noted by his Honour, by reference to the report of Ms Robilliard, to be very disturbed in his thinking with extremely negative self opinion and feelings of self worth. He is distressed by certain events and struggles to control underlying levels of associated residual anger. He has expressed an interest in attending a rehabilitation program. Ms Robilliard supports that proposal and believes he would work well in an appropriate psychotherapeutic setting. 11 During the sentencing process his Honour noted with regard to the prisoner's record that "it is enough to say that it is of no assistance to him". When one looks at the applicant's antecedent criminal record his Honour's comment maybe categorised as euphemistic indeed. The applicant was first before a Court on 28 October 1987 when he was 12 years of age. Thereafter he was constantly before various courts in New South Wales. Ms Robilliard specifically noted, from an examination of the applicant's antecedent record, that although he has committed regular offences none featured an element of violence until 1992 when he was charged with malicious wounding. Since then he has incurred repeated assault charges, many of which have been directed against police officers. This seemed to Ms Robilliard to reflect some change in his disposition or mental health. Prior to the subject sentences the longest term which the applicant served was an effective minimum term of 12 months imprisonment concluding on 9 January 1998. Having been released to parole in January 1998 the applicant shortly thereafter committed the subject series of offences. 12 His Honour did not recount the details of the various offences in his reasons for sentence. A helpful summary of them is however to be found in the applicant's written submissions before this Court under the hand of Mr Nicholson QC. I shall gratefully adopt that summary. 13 The most serious of the offences was the break enter and steal at premises at Margaret Crescent Dubbo when some nine paintings from Central Australia and other items were taken. The value of the property taken was estimated to be $26,500. This is of course a reference to count two. 14 On the same day the applicant had broken into premises at Tink Avenue Dubbo by smashing the kitchen window. In a number of rooms cupboards were opened and drawers were pulled out as the applicant apparently searched for things to steal. However the home owners did not subsequently report anything as missing. 15 Four days later the applicant broke and entered premises at Cobra Street Dubbo by forcing the rear door. Two bedrooms showed signs of being searched and a rear door to the garage was also opened. 16 Two weeks earlier business premises at 43 Douglas Mawson Drive Dubbo had been broken into and a number of power tools had been stolen. Two days later the applicant pawned a hammer drill for $70 and a petrol generator for $150. Both items had earlier been stolen from those premises. The applicant was charged with receiving those goods. 17 On 21 March 1998 the applicant broke and entered business premises at Young Street Dubbo. The manager found a flyscreen had been removed and a window forced open. Two hundred and eight dollars plus a couple of cameras and a carry bag had been stolen. A cabinet which had contained money had been forced and the lock was damaged. The applicant left the scene by taxi which was intercepted by the police. When confronted by the police the applicant sought to flee. He was apprehended and found to have a yellow screwdriver concealed in his left sock. The applicant was charged with possessing housebreaking implements and subsequently that day released on bail. 18 On 9 March 1998 the applicant broke into and entered a workshop in Boundary Road Dubbo through a skylight which he smashed with a piece of wood. A mobile phone was taken. 19 These eight offences occurred over a three week period from 7 to 27 March 1998. All offences were committed while the applicant was on parole. The applicant was on bail when the offences of 23 March (counts 1, 2 and 3) and the offence on 27 March (count 4) were committed. 20 The first ground of appeal is that the sentences are manifestly excessive in the circumstances. According to the submissions on behalf of the applicant some 90% of break, enter and steal matters are dealt with in the Local Court where the maximum penalty that can be imposed by a magistrate for the offence is two years. Where there is more than one offence the maximum penalty is three years. Thus any offender dealt with by a magistrate would not receive a sentence greater than three years in relation to any particular offence of break enter and steal and to such a sentence the provisions of s5(2) of the Sentencing Act 1989 would normally apply. Thus a quarter of the sentence or more would be taken from the minimum term. 21 Counsel for the applicant seeks to rely in this regard on comments by Grove J In the Matter of the Attorney General's Application No.1 Under s26 of The Criminal Appeal Act dated 16 December 1999. However I do not, with respect, think that the judgment of Grove J goes as far as the applicant contends. The submission is that the District Court in setting a sentence should have regard to the range of sentences being imposed for like matters in the Local Court and as I have said the judgment of Grove J is relied on to support that proposition. Having carefully examined the judgment of Grove J, I have concluded that at the highest, for relevant purposes, his Honour said: