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: "Of further significance in the present case is the circumstance that by choice of the Crown, the overwhelming majority of these cases are proceeded with in the Local Court where the maximum sentence is well below what the Crown put forward as a possible guideline in the present proceedings." 22 I think the most that one could infer from what his Honour said is that the difficulty of fixing a guideline or one of the difficulties of fixing a guideline for the offence under s112(1) is that the guideline suggested by the Crown is inappropriate to the majority of offences which are dealt with in the Local Court by reason of the maximum penalty which can be imposed in the Local Court. His Honour did not say that when a judge is dealing with a matter in the District Court under s112(1) he or she is required to have regard, or should have regard, to the range of sentences being imposed for like matters in the Local Court. 23 Bearing in mind the prior criminal record of the present applicant, the seriousness of the offences for which he stood to be sentenced, and the fact that count two could only be dealt with in the District Court the Crown was perfectly entitled to have elected to have all these matters dealt with in the District Court. The matters then being properly and lawfully in the District Court for adjudication it was appropriate for the sentencing judge to deal with the matters by reference to the maximum sentences which could be imposed in the District Court for the relevant offences. However I am mindful of the authority of this Court that the maximum sentences which could be imposed for like offences in the Local Court may be a relevant consideration when sentencing in the District Court. 24 Be that as it may, counsel for the applicant have drawn this Court's attention to the fact that the Judicial Commission statistics disclose that offenders sentenced in the District Court serve an average minimum term of 20 months for s112(1) offences where the felony is stealing. Specifically those figures reveal that of 483 offenders sentenced to imprisonment for break, enter and steal, where there may well have been more than one offence for these offenders, only 12% received an overall sentence of five years and only 13% received minimum terms of three years or more. Thus the applicant's sentence falls within the top 13% of sentences imposed within the District Court. It was contended that the objective gravity of the break enter and steal offences in the instant matter was not such as to require a sentence to fall within the 13% range. 25 In the Attorney General's Application No. 1 to which I have referred, this Court identified by way of guidelines aggravating factors in the commission of offences under s112(1). The first of those factors is whether the offence is committed whilst the offender is at conditional liberty on bail or parole. All the subject offences were committed whilst the applicant was under supervision on parole serving two concurrent additional terms for the offences of break, enter and steal and receiving. Four of the offences, counts one to four, were committed whilst the applicant was on bail. 26 A second factor in the guidelines is whether the offender has a prior record particularly for like offences. This applicant has a lengthy record for like offences. 27 A third factor in the guidelines is the multiplicity of offences, in which case regard must be had to the criminality involved in each offence. See Pearce v The Queen. (1998) 72 ALJR 1416. Of course, in the instant case, there was a multiplicity of offences all of which had a relatively high degree of criminality. 28 A further factor in the guidelines is the value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. That factor is particularly relevant to the second count in the instant indictment which relates to the stolen pictures. 29 It is perfectly true, as Mr Zahra of counsel submitted in his particularly careful and helpful arguments before this Court that there are other factors in the guidelines which play no role in the subject offences. However, it must be said that it would be a rare case indeed which embraced all the factors in the guidelines. 30 It is convenient then to turn to the second ground of appeal by which the applicant contends that his Honour failed to give sufficient weight to the subjective circumstances. In this regard the applicant contends that he should have been given greater credit for pleading guilty, notwithstanding that the Crown case against him was strong. Secondly, it was contended that the applicant's aboriginality is a factor that his Honour should have taken into account as a basis for understanding the applicant's sense of dispossession and lack of opportunity. Specific reliance was placed here upon para 40 of the judgment of Grove J in The Attorney General's Application No. 1. There his Honour said: "A study (ANZ Journal of Criminology Vol 32 Pt 2) has concluded that aboriginal males are 'over- represented' among those convicted of breaking entering and stealing. It would have to be recognised that many such offenders would merit particular consideration for the reasons elaborated in R v Fernando (1992) 76 A Crim R 58." 31 Grove J went on to say that, in his view, the existence of such significantly large groups touches upon the content of guidelines rather than upon whether the Court should refrain from issuing guidelines. Interestingly the guidelines, as formulated make no specific reference to aboriginality. 32 Counsel for the Crown has pointed out in his written submissions that during the course of his remarks on sentence Judge Armitage said: "In particular I have regard to the applicant's deprived background." 33 I accept that this was a reference to the applicant's aboriginality and the deprivation which flowed therefrom. 34 For the purposes of the instant case I have carefully re-read Fernando's case but I am unable to conclude on the evidence available to Judge Armitage that the sentences which he imposed involved any conflict with the principles enunciated in Fernando or any misunderstanding of those principles. 35 I have already referred to the view expressed by Ms Robilliard that the applicant would work well in an appropriate psychotherapeutic setting. This is an observation which was relied upon heavily by the applicant in these proceedings. It seems to me however that his Honour accommodated that belief by fixing an extended additional term during which the applicant would be subject to supervision. 36 I am quite unable to conclude, giving full weight to the subjective circumstances of the applicant's aboriginality and the principles enunciated in Fernando, and the terms of his Honour's sentencing remarks that this aspect of the application for leave to appeal should be upheld. 37 Sadly the case does fall into what seems to now have become a well known syndrome of young aboriginal males, lack of opportunity, an early dysfunctional family and social life, alcohol and drug abuse, unemployment and criminality. However, taking all that into account, the sentencing regime imposed by his Honour was in my respectful view, well within the discretionary range available to him. I would in the circumstances grant the application for leave to appeal and dismiss the appeal. 38 SULLY J: I agree. 39 FOSTER AJ: I likewise agree. 40 SULLY J: The orders will be as proposed by his Honour. Thank you for your help Mr Zahra. Thank you Mr Campbell, go down please. 41 ZAHRA: Your Honour might those certificates be returned to Mr Campbell? Can I say one thing before Mr Campbell leaves about that. Your Honour from my conversations with him this morning he was very accepting of the difficulties that his application faced here today but there was an element of pride in his progress and he understands that your Honours could not take that into account in the application but he has made excellent progress and he was rather proud of that this morning and I think in Mr Campbell's presence it should be noted that he has made quite significant progress since the sentence but he was very accepting of the difficulty of the application here today. 42 SULLY J: Thank you Mr Zahra. 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