New South Wales Court of Criminal Appeal CITATION : Regina v Luke Thomas Lord [2001] NSWCCA 533 revised - 11/02/2002 FILE NUMBER(S) : CCA 60657/01 HEARING DATE(S) : 4 December 2001 JUDGMENT DATE : 4 December 2001 PARTIES : Regina - Appellant - Crown Luke Thomas Lord - Respondent JUDGMENT OF : Stein JA at 1; Hidden J at 26; Howie J at 29 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0238 LOWER COURT JUDICIAL English DCJ OFFICER : COUNSEL : W G Dawe QC - Appellant - Crown M Thangarai - Respondent SOLICITORS : Crown Solicitors Office - Appellant - Crown Legal Aid Commission - Respondent CATCHWORDS : CRIMINAL LAW - Crown appeal on sentence - aggravated break and enter - assault - conditional bond - whether sentence manifestly inadequate - co-offender - excellent prospects rehabilitation - whether extenuating circumstances - double jeopardy - ND Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: n/a DECISION : See paras 25 and 34 for orders - 9 -IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60657/01 STEIN JA HIDDEN J HOWIE J Tuesday, 4 December 2001 REGINA v Luke Thomas LORD Judgment 1 STEIN JA: This is a Crown appeal by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act 1912, from a sentence imposed by Judge English in the District Court on Luke Thomas Lord on 24 September 2001. 2 The respondent pleaded guilty to one count of aggravated break and enter with intent pursuant to s 113(2) of the Crimes Act 1900. Her Honour also took into account an associated charge of assault occasioning actual bodily harm. Without proceeding to conviction her Honour ordered the respondent to enter into a conditional bond to be of good behaviour for a period of 12 months. The Director of Public Prosecutions submits that the sentence imposed was manifestly inadequate. 3 Briefly stated the facts are that during the afternoon of 3 May 2001 the respondent, together with a young person, went to the home of a 71 year old woman at Killarney Vale. The young person forced the locked front wire door and he and the respondent entered the house. Both then searched for money or jewellery to steal. The victim then entered the room where they were searching. The offenders grabbed a tapestry carry bag hanging on the door and ran from the room. It is not clear on the material before us or before the trial judge as to which offender grabbed the carry bag. 4 At this point in time the victim was standing in the hallway partially obstructing the exit point. The respondent and the young person forced their way past her in a bid to make good their escape. This caused the victim to fall heavily onto the tiled floor of the hallway and injure herself. Both offenders ran out of the house and decamped. 5 The young person was arrested a short time later and identified the respondent as an offender. Police arrested the respondent at his home. At the police station the respondent denied any involvement. Throughout an ERISP interview the respondent continued to maintain his innocence. The interview was suspended for the purpose of an identification parade taking place. While arrangements were being made for this, the respondent made admissions to police. The ERISP then resumed and the respondent admitted that he had entered the house with the young person, but did not fully realise at the time that the young person was committing a break and enter offence. When the victim entered the room he was in, the respondent panicked, and he may have knocked the old woman over as he ran past in order to escape. The respondent denied taking any property from the premises. 6 As her Honour noted in her reasons on sentence, statements taken from the young person and the victim greatly differed from the respondent's belated version of the events. So too does the statement taken from Brett O'Heir. His statement suggested that the respondent took a far more active part than he had stated to police. 7 The victim suffered a laceration to her right knuckle, swollen knuckles to her left hand, and pain and severe bruising to her lower back. The tapestry bag, and its contents, taken from the premises, have not been recovered. The value of the property was $45. 8 The elderly woman victim suffered from severe osteoporosis and experienced severe pain in her lower back for a lengthy period after the incident. She also suffered from anxiety, sleeplessness and nightmares. 9 Turning from the circumstances of the offence to the subjective features of the respondent. He was born on 7 May 1982 and was 18 years old at the time of the offence, although he turned 19 four days later. He had no prior criminal record although admitted an involvement with drugs. According to the evidence, he has taken steps to rid himself of his drug involvement and has excellent prospects of rehabilitation. The co-offender, who was one day short of 16 years, received a Community Service Order of 100 hours at the Childrens Court. He apparently has a large number of burglary offences to face and was apparently on supervised parole at the time of this offence. The Director of Public Prosecutions accepts that notwithstanding the age difference of three years, the young person was the more serious offender. 10 It is unfortunately almost like replaying a long playing record, but it should be recorded that the respondent's parents separated when he was only 4 years old. The respondent then resided with his father until he turned 15 years when he moved from Sydney to live with his mother on the Central Coast. Unfortunately it was here that he fell in with people of bad reputation and started using drugs. Since the commission of the offence he has returned to Sydney to live with his father, obtained work and remained drug free. 11 Of the offender her Honour said: The offender gave evidence before me. He has written a statement expressing his remorse and contrition which I accept as genuine. It is his desire to face his victim and apologise. Unfortunately, she has chosen not to participate in such a conference. He has impressed me as an intelligent and honest young man. The offender is aged 19. He was 18 at the time this offence was committed. 12 Her Honour acknowledged that the offences were 'serious offences indeed', and that the community and victim would expect that the offender would be placed in custody for a lengthy time. However, she continued: In normal circumstances the issues of general and specific deterrence would loom large. Here I find that there was no pre-planning by this offender. He foolishly followed his co-offender who masterminded the offence. That of course does not diminish the criminal responsibility for this offender. I find that the matter contained on the Form 1, whilst itself an objectively serious matter, also lacked any pre-planning. I find that the victim suffered the injuries that she did from the fall which was occasioned not by an intentional assault but by the offender as he made his escape. 13 Her Honour then noted that the respondent had no prior criminal record, was addressing his drug problem and had a favourable report from his counsellor. Further, he had returned to his father's home in Sydney and accepted the household discipline. Moreover, he had obtained employment. He had, according to the evidence, excellent prospects of rehabilitation. 14 Her Honour then said that there was a place for the exercise of mercy in the circumstances and that a custodial sentence was not called for. She accepted the respondent's remorse and contrition as genuine. Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999, her Honour found the offence proved but did not proceed to conviction, 'having regard to your age, your good character and what I have found to be the extenuating circumstances surrounding the commission of the offences'. She released the respondent on his entering into a 12 months bond to be of good behaviour. 15 Section 10(3) of the Crimes (Sentencing Procedure) Act sets forth the following factors to which regard is to be had by the Court when considering whether not to proceed to conviction and discharge the offender on a bond. These are: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. 16 Paragraph (a) is obviously relevant in this case. Paragraph (b) is not and there is no manner in which the offence can be seen as trivial. Her Honour purported to apply (c), saying that she had found that there were extenuating circumstances surrounding the commission of the offence. 17 However, it is not clear that her Honour specified any particular extenuating circumstances surrounding the commission of the offence. The respondent was not honest with police when arrested and first interviewed. It was not until he realised that he might be identified that he made admissions. Even then he minimised his involvement and, as her Honour properly observed, his version was not consistent with other evidence before the Court. Her Honour does not appear to have made any findings of fact which indicate whether she accepted or rejected the respondent's version of events in whole or part. 18 In my opinion, it was an error for her Honour to find there were extenuating circumstances under s 10(3) surrounding the commission of the offence by the respondent. Her Honour did not approach s 10 with the required two step process. Nor did she identify the provision within s 10 to which she had regard. Further, in my opinion, the sentence did not reflect the objective seriousness of the offence or maintain a reasonable proportionality between the sentence and the circumstances of the offence. It appears that inadequate weight was given to the objective seriousness of the offence by reason of the offender's subjective features. I accept the Crown's submission that there was no punitive aspect to the sentence and that it contained no relevant personal or general deterrence. 19 Accordingly, it is my view that the appeal must be upheld and the sentence set aside and the Court proceed to re-sentence the respondent. 20 The respondent has tendered some updating evidence as to his personal circumstances. It appears that he has now left his father's home and is in rental accommodation in Sydney. He left his job in October 2001 and worked with a bricklaying firm on a part-time basis and for no pay. The proprietor says that the respondent will commence permanent employment with him in January 2002 as an apprentice brick layer. He will also attend TAFE one day a week and work up to six days a week with Mr Dunn. It is said by Mr Dunn, the employer, that the respondent has been found by him to be a reliable, hard worker and a young man who is motivated and serious about his future. 21 Were it not for the element of double jeopardy that the respondent is exposed to by the Crown appeal and the circumstances which have occurred since the sentencing in respect of which we have evidence, it is my view that some form of custodial sentence is called for. But bearing in mind the circumstances of the Crown appeal, I would not favour a full-time custodial sentence. 22 I also mention that when the matter was first called on today, the Court indicated that it would like to have the benefit of a pre-sentence report from the Probation and Parole Service as to the sentencing options, and in particular Community Service. I would like to take the opportunity to thank the Probation and Parole Service for tendering to the Court a report in such an expeditious manner. At 2 o'clock we were given the benefit of the report from the Service. The report indicates that the respondent has been assessed as suitable for periodic detention and assessed as suitable for a Community Service Order. The issues which have since been debated is the effect that a Community Service Order and other sentencing options might have on the respondent's work plans in relation to the apprenticeship which he is proposing to commence in January 2002. It was indicated by his counsel that if one was looking at what community service could be carried out by the respondent between now and January 2002, the maximum of 80 hours would be possible. That, of course, did not prevent a longer order of community service being made, which would extend into 2002. 23 The Court has to consider all of the circumstances of the appropriate available sentencing options. The options were of course a full time custodial sentence or periodic detention, a suspended sentence conditional upon entering into a bond to be of good behaviour, a s 9 bond and community service. I have already indicated my view that the sentence passed by her Honour utilising s 10 of the Crimes (Sentencing Procedure) Act was a manifestly inadequate one. At first instance it is my view that a custodial sentence at the very least, or periodic detention, would have been the most appropriate taking account of the objective seriousness of the offence. However, the situation is different on re-sentencing for the reasons I have already given relating to the double jeopardy that the respondent is placed in and the advances that he has made since the sentencing, and in particular his offer of an apprenticeship in bricklaying from the beginning of 2002. 24 In terms of the re-sentencing process and taking into account the objective gravity of the offence, as well as the respondent's subjective circumstances, including his early plea of guilty, and his acknowledged remorse, it is my view that a sentence of 18 months imprisonment is required. However, given the respondent's prior good record, his acknowledged excellent prospects of rehabilitation, together with his youth, this case may in my view be regarded as exceptional and the Court may proceed by way of conviction and a suspended sentence for a period of 18 months. The bond will of course provide the normal conditions including to be of good behaviour. However, I would also include a condition that the respondent place himself under the supervision of the Probation and Parole Service and undertake such Offender Management Group Program as directed by the Service. If the respondent breaches the bond on the suspended sentence, he may be liable to be called upon to be re-sentenced for the offence. Having an 18 months suspended sentence rather than 12 months and no condition is, in my view, preferable for the respondent at a crucial time in his life. The choice is not an easy one but taking into account the elements of double jeopardy and the updating evidence in relation to the personal situation of the respondent, I am of the view that the course which I propose is the course appropriate for the Court to follow. 25 Accordingly, I would allow the appeal and set aside the sentence imposed by the sentencing judge. I would order that the respondent be convicted and sentenced to 18 months imprisonment. I take into account the offence on Form 1. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act, the execution of the sentence is suspended for the term of the sentence and the Court directs that the respondent enter into a good behaviour bond for the term of 18 months subject to the following conditions: 1. that he appear before the Court if called upon to do so at any time; 2. to be of good behaviour; 3. to advise the Registrar of the Court of any change of residential address; 4. that he place himself under the supervision of the Probation and Parole Service and undertake such Offender Management Group Program as required by the Service. 26 HIDDEN J: I agree with the learned Presiding Judge as to the error in her Honour's disposition, and I agree with the orders proposed by the learned presiding Judge. 27 I would add only this. The unusual circumstances of the case were such that I do not think that it was necessarily incumbent upon her Honour to have imposed a custodial sentence to be served full-time or by way of periodic detention. A suspended sentence such as now proposed, in my view, was open to her Honour. This raises the question of double jeopardy in a Crown appeal, quite clearly. Nevertheless, it seems to me that the seriousness of the offence was such that the only other option open, even for this Court on Crown appeal, was to impose a community service order. However, to have imposed an order which would adequately denounce the respondent's crime and recognise the need for deterrence would involve an order of such length that it may have well placed in jeopardy his employment and apprenticeship prospects, which are important for the rehabilitation which he is now undertaking. 28 For those reasons I feel that this Court has no choice but to adopt the course which the learned Presiding Judge has proposed, and I so agree. 29 HOWIE J: This is a difficult matter, not because there is any question whether the sentence imposed by her Honour was manifestly inadequate, but what should be the response of this Court to that finding. 30 In my view the offence was of such seriousness that the elements of punishment, including general deterrence and denunciation, had to be reflected in the sentence to be imposed by this Court notwithstanding the rehabilitation of the respondent and the aspect of double jeopardy. While both these latter matters were important, they cannot in my view be allowed to override other aspects of punishment. 31 I am of the opinion that her Honour's approach to sentencing the respondent was erroneous for the reasons given by the Presiding Judge. But in any event this is clearly a case where the sentence imposed was manifestly inadequate to a very high degree. 32 The only course her Honour could have taken in order to reflect the seriousness of the offence on the one hand, and taking into account the subjective features on the respondent, on the other, was to consider an alternative to a custodial sentence. So too, in my view, even on a successful Crown appeal, this Court must, if it is to interfere, ensure that the seriousness of the criminal conduct is reflected in the sentence to be imposed. 33 The difficulty in this case is to fashion a sentence that reflects, on the one hand, the youth, remorse and attempts at rehabilitation of the respondent but, on the other hand, to impose a sentence which takes into account the objective features of the offences and the other purposes of punishment. This Court was faced with the difficulty of imposing a sentence that would show mercy to the respondent yet denounce his serious criminal activity. An alternative to a full time custodial sentence was proposed, that being community service. Such a sentence had the benefit of fulfilling the requirements of punishment while not interfering with the respondent's attempts at rehabilitation. However, the only order, which was open to the Court and which the respondent might have reasonably been able to perform, was in my view completely inadequate notwithstanding the special circumstances to be considered in sentencing after a successful Crown appeal. 34 That being the case, the Court was forced to look for some other sentencing option as a suitable alternative to full time custody. I believe that the sentence proposed by the Presiding Judge is the only one that is available. Any other sentence, which the respondent could have hoped to complete without jeopardising his rehabilitation, would be inadequate yet again. 35 I acknowledge that it might well be that for certain offenders a community service order may be viewed as involving more punishment of the offender than a suspended sentence. So too might other alternatives to full time custody such as a sentence of periodic detention. But in the present case the only alternative to a full time gaol sentence by way of an order for community service which the respondent could reasonably perform without either a breach of the order or losing his chance of rehabilitation is not one which was open to the Court to impose while fulfilling its obligations in sentencing the respondent. 36 I therefore agree with the orders proposed by the Presiding Judge. 37 STEIN JA: In imposing the orders I did not indicate the date upon which the sentence should commence and expire. In my view the sentence should commence today and expire on 3 June 2003. 38 Accordingly, the orders of the Court are as I have indicated in my reasons for judgment, together with the commencement and expiry date of the sentence. 39 HIDDEN J: I agree. 40 HOWIE J: I agree. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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