New South Wales Court of Criminal Appeal CITATION : Regina v Phillip John SCOTT [1999] NSWCCA 434 FILE NUMBER(S) : CCA 60198/98 HEARING DATE(S) : 1 October 1999 JUDGMENT DATE : 16 December 1999 PARTIES : Regina Phillip John Scott JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Sully J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0415; 97/31/0501; 96/31/0547 LOWER COURT JUDICIAL OFFICER : McGuire DCJ COUNSEL : C. K. Maxwell QC - Crown S. J. Odgers - Applicant SOLICITORS : S. E. O'Connor - Crown T. A. Murphy - Applicant CATCHWORDS : Criminal law - breaking, entering and stealing - 3 separte offences - 2 such offences committed in breach of bail conditions then current - very bad antecedents record - applicant sentenced, effectively, to penal servitude for 5 years and 9 months: MT3 years and 9 months/ AT 2 years - agreed sentence not challenged but minimum term challenged as appellably excessive in failing to give any, or any sufficient, attention to factors of mercy and rehabilitation; Held: no errors demonstrated - appeal against severity dismissed ACTS CITED : Crimes Act 1900 (NSW) Sentencing Act 1989 (NSW) DECISION : Leave granted to appeal against sentences; appeal against sentences dismissed IN THE COURT OF CRIMINAL APPEAL 60198/98 SPIGELMAN CJ GROVE J SULLY J 16 December 1999 REGINA v Phillip John SCOTT JUDGMENT 1 SPIGELMAN CJ: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL 60198/98 SPIGELMAN CJ GROVE J SULLY J 16 December 1999 REGINA v Phillip John SCOTT JUDGMENT 2 GROVE J: I agree with Sully J. IN THE COURT OF CRIMINAL APPEAL 60198/98 SPIGELMAN CJ GROVE J SULLY J 16 December 1999 REGINA v Phillip John SCOTT JUDGMENT 3 SULLY J: Mr. Phillip John Scott, ["the applicant"], applies for leave to appeal against the asserted severity of sentences imposed on him on 16 April 1998, and by his Honour Judge McGuire sitting in the District Court at Gosford. The application was heard by the Court in conjunction with the hearing of the Attorney-General's application which has resulted in the issue this morning of a guideline judgment in respect of offences contravening s.112(1) of the Crimes Act 1900 (NSW). 4 The relevant objective facts are within a small compass. They commence on 12 February 1996 when the applicant broke and entered premises in Orange Grove on the Central Coast of New South Wales. The applicant stole from those premises a number of items, being a cassette recorder, some power tools and some cash. 5 The applicant was arrested on 2 December 1996, and was charged with having broken, entered and stolen from the premises to which I have referred. The applicant denied that he had committed the offence charged against him; and in due course he was tried upon indictment in connection with that alleged offence. He pleaded not guilty; but he was found guilty by the verdict of a jury. 6 Upon his initial arrest on 2 December 1996 the applicant sought and was granted bail. He was released to that bail on 2 December 1996. Within an hour or thereabouts of his release on bail, the applicant committed a further offence which involved his breaking, entering and stealing from certain premises at Woy Woy. On this occasion, the defendant collected, with the obvious intention of wrongfully taking away, a number of items of electrical equipment, some items of personal jewellery, and some alcohol. The occupiers of the particular premises happened to return home before the applicant had made good his getaway. With the assistance of their Rottweiler dog, they were able to apprehend the applicant, and to keep him where he was until the police were able to attend and to arrest him. This particular offence is obviously aggravated by reason of its having been committed at a time when the applicant was at liberty on bail, and very recent bail at that. 7 Following his arrest on 2 December 1996, the applicant remained in custody until 24 March 1997. On that day he was granted, by a Supreme Court Judge, conditional bail. The conditions of bail required, put simply and so far as is now relevant, that the applicant go to, reside at, and otherwise take advantage of the programmes available to him at, the William Booth Centre. The applicant did in fact attend the Centre; but only for about a week. He then absconded. 8 In due course, and on 3 October 1997, the applicant pleaded guilty to the offence committed on 2 December 1996. 9 The applicant failed to attend the District Court for trial on 8 April 1997, on which day both of the offences to which I have previously referred had been listed for trial in that Court. A bench warrant for the applicant's apprehension was issued by the presiding District Court Judge. 10 On a date between 9 June 1997 and 24 June 1997 the applicant broke, entered and stole from a home at Umina on the Central Coast. The property then stolen included a bicycle, some power tools and some clothing. 11 On 10 September 1997 the applicant was arrested upon the District Court warrant. Bail was refused; and the applicant has continued in unbroken custody since that time. 12 On 8 April 1998 the applicant was presented for trial upon indictment in connection with the Umina offence. The indictment contained three counts. The first count charged a contravention of s.112(1) of the Crimes Act, that is to say, an offence of breaking, entering and stealing. The second count was charged in the alternative, and was a count of receiving. The third count was an additional one of breaking, entering and stealing. The applicant pleaded not guilty to each count. He was found guilty on the first count; it was therefore unnecessary to take a verdict on the second count; and he was acquitted by direction on the third count. The offences of which the applicant was thus convicted were further instances of offences committed by him while at liberty in breach of bail conditions. These particular offences breached the applicant's obligations to be of good behaviour while at liberty on bail, being obligations imposed upon him by the two separate grants of bail made respectively by the Local Court in December 1996 and by the Supreme Court in March 1997. 13 On 16 April 1998 the applicant stood before his Honour Judge McGuire for sentence upon each of the three matters of which he was guilty, in one case upon his own plea, and upon each of the other two cases upon the verdict of a jury. 14 His Honour sentenced the applicant as follows: (a) In relation to the offence committed on 12 February 1996, his Honour passed a sentence of penal servitude for 5 years and 9 months divided between a minimum term of 3 years and 9 months and an additional term of 2 years. The minimum term was dated to commence on 10 September 1997, being the date of the applicant's arrest on the District Court bench warrant to which I have earlier referred. (b) In relation to each of the other two offences, his Honour passed a sentence of penal servitude for a fixed term of 2 years, to be served concurrently with the minimum term referred to in (a) above. 15 Upon the hearing of the present application for leave to appeal, the applicant accepted by counsel, that the aggregate sentence of 5 years and 9 months was not erroneous; but submitted that the minimum term as fixed by his Honour was so excessive as to warrant the intervention of this Court. 16 The objective facts as they have been recounted herein speak, essentially, for themselves. The applicant stood for sentence as a repeat offender with a very bad record. Of the three individual matters for which he thus stood for sentence, two had been committed in what can only be described as flagrant breaches of bail conditions then current. As to each of the offences, the case against the applicant was overwhelming. 17 The learned sentencing Judge made, in his Honour's remarks on sentence, extensive observations concerning the objective gravity of offences of the kind committed by the applicant. I quote them at length for the reason that they are, as I respectfully think, both correct in principle, and appropriate to the individual circumstances of the present applicant. His Honour said: "The incidence of break, enter and steal throughout the State, but in particular on the Central Coast of New South Wales, is such as to cause grave disquiet in the community. In the course of the first trial, a fingerprint expert gave evidence to the effect that he attends some ten locations a day in the course of investigating burglaries. The burglar seems to act with impunity, such as the frequency of this crime, which is carried out with brazen contempt for the law and the rights of innocent householders. Right thinking members of the community are understandably angry and frustrated at the seeming immunity enjoyed by the burglar. Their dwellings are ransacked. Their goods spirited away where they will be inevitably received by some Cash Converter, loan office or pawn broker. The operators of such businesses deal with vast volumes of stolen goods on a daily basis. The fact that successive governments neglect to pass efficacious laws which might tend to hinder the daily conversion of stolen goods into money is of great comfort to the burglar and of no assistance whatsoever to the victim. It is a notorious fact that householders face huge premiums, as well as the vast expense of endeavouring to make their homes secure, against those who apparently consider it their right to break into households and take whatever goods suit their purposes. Clearly the community has the rightful expectation that judicial officers will act responsibly and impose meaningful penalties on the rare occasion when the burglar is apprehended and convicted. Other would-be burglars just might be deterred when it is learnt that the crime of break, enter and steal is regarded as being grossly serious and will attract serious punishment." [Remarks on Sentence at 6-7] 18 The learned sentencing Judge had before him, and seems to me to have adverted correctly to, various matters subjective to the applicant. 19 The applicant was aged about 24 years when he stood for sentence. He is now aged a little more than 26 years. He had at all relevant times, and appears to retain, the support of parents who were described by the sentencing Judge as "loving and caring". The applicant has very little in the way of educational or vocational skills. He has only ever had intermittent employment; although it is fair to say that he seems to have been a reasonably diligent employee whenever he had work; and that he has lost employment by reason of retrenchment rather than by reason of fault on his own part. The applicant had, when sentenced, and has, a partner and a dependent child. 20 The principal matter urged in support of the present application has to do with the applicant's prior history of drug abuse. The sentencing Judge noted that his Honour had not heard any particular evidence from the applicant as to the applicant's history of drug abuse. His Honour took note of the contents of a report which had been prepared by a Drug and Alcohol worker in connection with the applicant's Supreme Court bail application to which I have earlier referred. His Honour observed: "Presumably the Supreme Court Judge who granted him bail was influenced by this report but as I have stated, he demonstrated his contempt for the leniency which was granted to him, the opportunity that he was given to address any drug problems." [Remarks on Sentence at 8] 21 It is, of course, clear from the terms of the sentences passed upon the applicant, that the learned sentencing Judge found "special circumstances" in the sense contemplated by s.5(2) of the Sentencing Act 1989 (NSW); and that his Honour adjusted accordingly the minimum term and additional term components of the aggregate sentence of 5 years and 9 months. 22 It was submitted for the applicant that the minimum term set by the learned sentencing Judge was manifestly excessive in the sense that it manifestly failed to give any, or any sufficient, attention to factors of mercy and rehabilitation. 23 As to mercy, the learned sentencing Judge appears to have taken the view that the applicant had been shown plenty of mercy in the course of his repeated appearances before Courts; and that the applicant had, in effect, chosen to throw away the chances that had been thus given to him. That such a view is austere does not mean that it is wrong in law. In my opinion, the learned sentencing Judge was entirely justified in taking a severe view of the applicant's conduct. 24 As to rehabilitation, the learned sentencing Judge does not seem to me to have disregarded such evidence as there was before his Honour upon that topic. Indeed, the finding of "special circumstances" entails, in the circumstances of the applicant's case, an acknowledgment of likely benefit to the applicant from a sensibly extended additional term, and a correspondingly reduced minimum term. 25 Were I to deal with the present application without reference to the guideline judgment published this morning, I would be wholly unpersuaded that the learned sentencing Judge has been shown to have fallen into error requiring correction by this Court. The newly published guidelines seem to me to strengthen, rather than to weaken, the appropriateness of the course taken by the learned sentencing Judge, and the process of reasoning by which his Honour reached the findings of fact made by his Honour and the sentences imposed by him. 26 In my opinion, the Court should order: 1) that leave be granted to appeal against the sentences imposed upon the applicant; 2) that the appeal against those sentences should be, in the case of each sentence, dismissed. ********** 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.